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EXHIBIT 10.46
[CISCO SYSTEMS LOGO]
Master Lease No. 2352
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THIS MASTER AGREEMENT TO LEASE EQUIPMENT (this "AGREEMENT") is entered
into as of APRIL 8, 1999 by and between CISCO SYSTEMS CAPITAL CORPORATION
("LESSOR"), having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and DIGITAL ENTERTAINMENT NETWORK, INC., a Delaware
Corporation ("LESSEE"), having a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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1.1 LEASE OF EQUIPMENT. In accordance with the terms and conditions of
this Agreement, Lessor shall lease to Lessee, and Lessee shall lease from
Lessor, the personal property, including all substitutions, replacements,
repairs, parts and attachments, improvements and accessions thereto and therein
(the "EQUIPMENT"), described in the lease schedule(s) (each, a "LEASE") to be
entered into from time to time into which this Agreement is incorporated. Each
Lease shall constitute a separate, distinct, and independent lease and
contractual obligation of Lessee. Lessor or its assignee shall at all times
retain the full legal title to the Equipment, it being expressly agreed by both
parties that each Lease is an agreement of lease only.
1.2 TERM OF LEASE. The original term (the "ORIGINAL TERM") of the
Equipment shall commence on the Commencement Date and, subject to Sections 3.3
and 3.5 below, shall terminate on the date specified in the Lease.
Notwithstanding the foregoing, the Original Term for the Equipment shall
automatically extend for successive 30-day periods after its expiration (each,
an "EXTENDED TERM") unless either party gives the other party written notice,
at least thirty (30) days prior to the expiration of the Original Term or any
Extended Term, as the case may be, of its intent not to so extend the
applicable Lease. Except as specifically provided in this Section 1.2, no Lease
may be terminated by Lessor or Lessee, for any reason whatsoever, prior to the
end of the Original Term or any Extended Term (collectively, the "LEASE TERM").
Notwithstanding any provision to the contrary contained in this Agreement,
Lessee shall be deemed to accept the Equipment on the Commencement Date (as
specified in each Lease).
1.3 RENTAL PAYMENTS. Lessee shall pay Lessor rent ("RENT") for the
Equipment in the amounts and at the times specified in the Lease. All Rent and
other amounts payable by Lessee to Lessor hereunder shall be paid to Lessor at
the address specified above, or at such other place as Lessor may designate in
writing to Lessee from time to time.
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1.4 RETURN OF EQUIPMENT. Upon expiration of the Lease Term of the
Equipment, Lessee shall immediately return the Equipment to Lessor as provided
in Section 3.3 below. If Lessee fails to return any of the Equipment upon
demand therefor by Lessor, Lessee shall pay Lessor, as the measure of Lessor's
damages, the Casualty Value (as defined in the applicable Lease) of such
Equipment.
II. DISCLAIMERS AND WARRANTIES; INTELLECTUAL PROPERTY
2.1 DISCLAIMERS; WARRANTIES. Lessee represents and acknowledges that the
Equipment is of a size, design, capacity and manufacture selected by it, and
that it is satisfied that the Equipment is suitable for its purposes. LESSOR
LEASES THE EQUIPMENT AS IS, AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT,
THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS
FOR ANY PARTICULAR PURPOSE, DESIGN OR CONDITION OF THE EQUIPMENT, LESSOR SHALL
NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE INSTALLATION,
OPERATION OR OTHER USE, OR DEINSTALLATION OF THE EQUIPMENT, INCLUDING, WITHOUT
LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS.
Lessee shall look solely to the manufacturer or the supplier of the Equipment
for correction of any problems that may arise with respect thereto, and,
provided no Event of Default (as defined in Section 4.1) has occurred and is
continuing, all warranties made by the manufacturer or such supplier are, to the
degree possible, hereby assigned to Lessee for the Lease Term. To the extent any
such warranty requires performance of any kind by the beneficiary of the
warranty, Lessee shall perform in accordance therewith.
2.2 INTELLECTUAL PROPERTY. Except as otherwise expressly provided in
each Lease, LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH
RESPECT TO THE INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY
PATENT, COPYRIGHT AND TRADEMARK RIGHTS, OF ANY THIRD PARTY WITH RESPECT TO THE
EQUIPMENT, WHETHER RELATING TO INFRINGEMENT OR OTHERWISE. Lessor shall, when
requested in writing by Lessee and at Lessee's cost and expense, exercise
rights of indemnification, if any, for patent, copyright or other intellectual
property infringement obtained from the manufacturer under any agreement for
purchase of the Equipment. If notified promptly in writing of any action
brought against Lessee based on a claim that the Equipment infringes a United
States patent, copyright or other intellectual property right, Lessor shall
promptly notify the manufacturer thereof for purposes of exercising, for the
benefit of Lessee, Lessor's rights with respect to such claim under any such
agreement.
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3.1 PAYMENTS UNCONDITIONAL; TAX BENEFITS; ACCEPTANCE. EACH LEASE SHALL BE
A NET LEASE, AND LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS THEREUNDER,
AND THE RIGHTS OF LESSOR IN AND TO SUCH PAYMENTS, SHALL BE ABSOLUTE AND
UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF,
DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT, FOR ANY REASON
WHATSOEVER. It is the intent of Lessor, and an inducement to Lessor, to enter
into each Lease, to claim all available tax benefits of ownership with respect
to the Equipment subject thereto. Lessee's acceptance of the Equipment subject
to a Lease shall be conclusively and irrevocably evidenced by Lessee executing
an Acceptance Certificate with respect to such Equipment, and upon acceptance,
such Lease shall be noncancellable for the Lease Term unless otherwise agreed to
in writing by Lessor. Any nonpayment of Rent or other amounts payable under any
Lease shall result in Lessee's obligation to promptly pay Lessor as additional
Rent on such overdue payment, for the period of time during which it is overdue
(without regard to any grace period), interest at a rate equal to the lessor of
(a) fourteen percent (14%) per annum, or (b) the maximum rate of interest
permitted by law.
3.2 USE OF EQUIPMENT. Lessee shall use the Equipment solely in the
conduct of its business, in a manner and for the use contemplated by the
manufacturer thereof, and in compliance with all laws, rules and regulations of
every governmental authority having jurisdiction over the Equipment or Lessee
and with the provisions of all policies of insurance carried by Lessee pursuant
to Section 3.6 below. Lessee shall pay all costs, expenses, fees and charges
incurred in connection with the use and operation of the Equipment.
3.3 DELIVERY; INSTALLATION; RETURN; MAINTENANCE AND REPAIR; INSPECTION.
Lessee shall be solely responsible, at its own expense, for (a) the delivery of
the Equipment to Lessee, (b) the packing, rigging and delivery of the Equipment
back to Lessor, upon expiration or termination of the Lease Term, in good
repair, condition and working order, ordinary wear and tear excepted, at the
location(s) within the continental United States specified by Lessor, and (c)
the installation, de-installation, maintenance and repair of the Equipment.
During the Lease Term, Lessee shall ensure that the Equipment is covered by a
maintenance agreement, to the extent available, with the manufacturer of the
Equipment or such other party, reasonably acceptable to Lessor. Lessee shall, at
its expense, keep the Equipment in good repair, condition and working order,
ordinary wear and tear excepted, and, at the expiration or termination of the
Lease Term, or any renewal term, with respect to any of the Equipment, have
such Equipment inspected and certified acceptable for maintenance service by
the manufacturer. In the event any of the Equipment, upon its return to Lessor,
is not in good repair, condition and working order, ordinary wear and tear
excepted, Lessee shall be obligated to pay Lessor for the out-of-pocket
expenses Lessor incurs in bringing such Equipment up to such status, but not in
excess of the Casualty Value (as defined in the applicable Lease) for such
Equipment, promptly after its receipt of an invoice for such expenses. Lessor
shall be entitled to inspect the Equipment at Lessee's location at reasonable
times.
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3.4 TAXES. Lessee shall be obligated to pay, and hereby indemnifies
Lessor and its successor and assigns against, and holds each of them harmless
from, all license fees, assessments, and sales, use, property, excise and other
taxes and charges, other than those measured by Lessor's net income, now and
hereafter imposed by any governmental body or agency upon or with respect to
any of the Equipment, or the possession, ownership, use or operation thereof,
or any Lease or the consummation of the transactions contemplated in any Lease
or this Agreement. Notwithstanding the foregoing, Lessor shall file all
required personal property tax returns, and shall pay all personal property
taxes payable, with respect to the Equipment, Lessee shall pay to Lessor, as
additional Rent, the amount of all such personal property taxes within fifteen
(15) days of its receipt of an invoice for such taxes.
3.5 LOSS OF EQUIPMENT. Lessee shall bear the entire risk of the Equipment
being lost, destroyed or otherwise permanently unfit or unavailable for use
from any cause whatsoever (an "EVENT OF LOSS") after it has been delivered to
common carrier for shipment to Lessee. If an Event of Loss shall occur with
respect to any item of Equipment, Lessee shall promptly notify Lessor thereof
in writing. On the rental payment date following Lessor's receipt of such
notice, Lessee shall pay to Lessor an amount equal to the rental payment or
payments due and payable with respect to such item of Equipment on or prior to
such date, plus a sum equal to the Casualty Value of such item of Equipment as
of the date of such payment as set forth in such Lease. Upon the making of such
payment by Lessee regarding any item of Equipment, the Rent for such item of
Equipment shall cease to accrue, the term of this Lease as to such item of
Equipment shall terminate and (except in the case of loss, theft or complete
destruction) Lessor shall be entitled to recover possession of such item of
Equipment in accordance with the provisions of Section 3.3 above. Provided that
Lessor has received the Casualty Value of any item of Equipment, Lessee shall
be entitled to the proceeds of any recovery in respect of such item of
Equipment from insurance or otherwise.
3.6 INSURANCE. Lessee shall obtain and maintain for the Lease Term at its
own expense, property damage and liability insurance and insurance against loss
or damage to the Equipment (including so-called extended coverage), as a result
of theft and such other risks of loss as are normally maintained on equipment
of the type leased hereunder by company's carrying on the business in which
Lessee is engaged, in such amounts, in such form and with such insurers as
shall be satisfactory to Lessor. Each insurance policy will name Lessee as
insured and Lessor as an additional insured and loss payee thereof as Lessor's
interests may appear, and shall provide that it may not be canceled or altered
without at least thirty (30) days prior written notice thereof being given to
Lessor or its successor and assigns.
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3.7 INDEMNITY. Except with respect to the gross negligence or willful
misconduct of Lessor, Lessee hereby indemnifies, protects, defends and holds
harmless Lessor and its successors and assigns, from and against any and all
claims, liabilities (including negligence, tort and strict liabilities),
demands, actions, suits, and proceedings, losses, costs, expenses and damages,
including without limitation, reasonable attorneys' fees and costs
(collectively, "CLAIMS"), arising out of, connected with, or resulting from
this Agreement, any Lease or any of the Equipment, including, without
limitation, the manufacture, selection, purchase, delivery, possession,
condition, use, operation, or return of the Equipment. Each of the parties
shall give the other prompt written notice of any Claim of which it becomes
aware. The provisions of this Section 3.7 shall survive the expiration or
termination of this Agreement or any Lease.
3.8 PROHIBITIONS RELATED TO LEASE AND EQUIPMENT. Without the prior
written consent of Lessor, which consent as it pertains to subsections (b) and
(d) below shall not be unreasonably withheld, Lessee shall not: (a) assign,
transfer, pledge, encumber, hypothecate or otherwise dispose of this Lease or
any rights or obligations thereunder; (b) sublease any of the Equipment; (c)
create or incur, or permit to exist, any lien or encumbrance with respect to any
of the Equipment, or any part thereof; (d) move any of the Equipment from the
location at which it is first installed; or (e) permit any of the Equipment to
be moved outside the continental limits of the United States.
3.9 IDENTIFICATION. Lessee shall place and maintain permanent markings
provided by Lessor on the Equipment evidencing ownership, security and other
interests therein, as specified from time to time by Lessor.
3.10 ALTERATIONS AND MODIFICATIONS. Lessee shall not make any additions,
attachments, alterations or improvements to the Equipment without the prior
written consent of Lessor. Any addition, attachment, alteration or improvement
to any item of Equipment shall belong to and become the property of Lessor
unless, at the request of Lessor, it is removed prior to the return of such
item of Equipment by Lessee. Lessee shall be responsible for all costs relating
to such removal and shall restore such item of Equipment to its operating
condition that existed at the time it became subject to the applicable Lease.
3.11 EQUIPMENT TO BE PERSONAL PROPERTY. Lessee acknowledges and
represents that the Equipment shall be and remain personal property,
notwithstanding the manner in which it may be attached or affixed to realty,
and Lessee shall do all acts and enter into all agreements necessary to ensure
that the Equipment remains personal property.
3.12 FINANCIAL STATEMENTS. Lessee shall promptly furnish to Lessor such
financial or other statements respecting the condition and operations of
Lessee, and information respecting the Equipment, as Lessor may from time to
time reasonably request.
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3.13 LESSEE REPRESENTATIONS. Lessee hereby represents that, with respect
to this Agreement and each Lease: (a) the execution, delivery and performance
thereof by Lessee have been duly authorized by all necessary corporate action;
and (b) the individual executing such document is duly authorized to do so; (c)
such document constitutes a legal, valid and binding obligations of Lessee,
enforceable in accordance with its terms.
IV. DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (a) Lessee shall fail to pay any
Rent or other payment due hereunder within five (5) days after it becomes due
and payable; (b) any representation or warranty of Lessee made in this
Agreement, any Lease, or in any document furnished pursuant to the provisions of
this Agreement or otherwise, shall prove to have been false or misleading in any
material respect as of the date when it was made; (c) Lessee shall fail to
perform any covenant, condition or agreement made by it under any Lease, and
such failure shall continue for twenty (20) days after its receipt of notice
thereof; (d) bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation or other similar proceedings shall be instituted by or against
Lessee or all or any part of its property under the Federal Bankruptcy Code or
other law of the United States or of any other competent jurisdiction, and, if
such proceeding is brought against Lessee, it shall consent thereto or shall
fail to cause the same to be discharged within thirty (30) days after it is
filed; (e) Lessee shall default under any agreement with respect to the purchase
or installation of any of the Equipment; or (f) Lessee or any guarantor of
Lessee's obligations under any Lease shall default under any other agreement
with Lessor or Cisco Systems, Inc.
4.2 REMEDIES. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following remedies: (a)
terminate any or all of the Leases and Lessee's rights thereunder; (b) proceed,
by appropriate court action or actions, to enforce performance by Lessee of the
applicable covenants of any or all of the Leases or to recover damages for the
breach thereof; (c) recover from Lessee an amount equal to the sum of (i) all
accrued and unpaid Rent and other amounts due under any or all of the Leases
(ii) as liquidated damages for loss of a bargain and not as a penalty, the
present value of (A) the balance of all Rent and other amounts under any or all
of the Leases discounted at a rate of five percent (5%) per annum, and (B)
Lessor's estimated fair market value of the Equipment at the expiration of the
Original Term (d) personally, or by its agents, take immediate possession of any
or all of the Equipment from Lessee and, for such purpose, enter upon Lessee's
premises where any of the Equipment is located with or without notice or process
of law and free from all claims by Lessee; and (e) require the Lessee to
assemble the Equipment and deliver the Equipment to Lessor at a location which
is reasonably convenient to Lessor and Lessee. The exercise of any of the
foregoing remedies by Lessor shall not constitute a termination of any Lease or
this Agreement unless Lessor so notifies Lessee in writing.
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4.3 DISPOSITION OF EQUIPMENT. In the event, upon the occurrence of an
Event of Default, Lessor repossesses any of the Equipment, Lessor may sell or
lease any or all of such Equipment, at one or more public or private sales. The
proceeds of (i) any rental of the Equipment for the balance of the Original Term
(discounted to present value at the rate of five percent (5%) per annum) or (ii)
any sale of the Equipment shall be applied to the payment of (A) all costs and
expenses (including, without limitation, reasonable attorney's fees) incurred by
Lessor in retaking possession of, and removing, storing, repairing, refurbishing
and selling or leasing such Equipment and (B) the obligations of Lessee to
Lessor pursuant to this Agreement. Lessee shall remain liable to Lessor for any
deficiency.
5.1 PERFORMANCE OF LESSEE'S OBLIGATIONS. Upon Lessee's failure to pay Rent
(or any other sum due hereunder) or perform any obligation hereunder when due,
Lessor shall have the right, but shall not be obligated, to pay such sum or
perform such obligation, whereupon such sum or cost of such performance shall
immediately become due and payable hereunder as additional Rent, with interest
thereon at the highest legal rate from the date such payment or performance was
made.
5.2 QUIET ENJOYMENT. So long as no Event of Default shall have occurred
and be continuing, neither Lessor nor its assignee shall interfere with Lessee's
right of quiet enjoyment and use of the Equipment.
5.3 FURTHER ASSURANCES. Lessee shall, upon the request of Lessor, from
time to time, execute and deliver such further documents and do such further
acts as Lessor may reasonably request in order fully to effect the purpose of
any Lease and Lessor's rights thereunder. Lessor is authorized to file a
financing statement, signed only by Lessor in accordance with the Uniform
Commercial Code or signed by Lessor as Lessee's attorney in fact, with respect
to any of the Equipment.
5.4 RIGHT AND REMEDIES. Each and every right and remedy granted to Lessor
under any Lease shall be cumulative and in addition to any other right or remedy
therein specifically granted or now or hereafter existing in equity, at law, by
virtue of statute or otherwise, and may be exercised by Lessor from time to time
concurrently or independently and as often and in such order as Lessor may deem
expedient. Any failure or delay on the part of Lessor in exercising any such
right or remedy, or abandonment or discontinuance of steps to enforce the same
shall not operate as a waiver thereof or affect Lessor's right thereafter to
exercising the same. Waiver of any right or remedy on one occasion shall not be
deemed to be a waiver of any other right or remedy or of the same right or
remedy on any other occasion.
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5.5 NOTICES. Any notice, request, demand, consent, approval or other
communication provided for or permitted hereunder shall be in writing and shall
be conclusively deemed to have been received by a party hereto on the day it is
delivered to such party at its address set forth above (or at such other
addresses such party shall specify to the other party in writing), or if sent
by registered or certified mail, return receipt requested, on the fifth day
after the day on which it is mailed, postage prepaid, addressed to such party.
5.6 SECTION HEADINGS; COUNTERPARTS. Section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of this Agreement. This Agreement and each Lease may be executed
in counterparts, and when so executed each counterpart shall be deemed to be an
original, and such counterparts together shall constitute one and the same
instrument.
5.7 ENTIRE LEASE. This Agreement and each Lease constitute the entire
agreement between Lessor and Lessee with respect to the lease of the Equipment.
No amendment of, or any consent with respect to, any provision of this
Agreement or any Lease shall bind either party unless set forth in a writing,
specifying such waiver, consent, or amendment, signed by both parties. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND NOT OTHERWISE SPECIFICALLY PROVIDED TO
LESSEE IN THIS AGREEMENT, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS OR REMEDIES
CONFERRED UPON A LESSEE UNDER THE CALIFORNIA COMMERCIAL CODE, AND ANY OTHER
APPLICABLE SIMILAR CODE OR STATUTES OF ANOTHER JURISDICTION, WITH RESPECT TO A
DEFAULT BY LESSOR UNDER THIS AGREEMENT OR ANY LEASE.
5.8 SEVERABILITY. Should any provision of this Agreement or any Lease be
or become invalid, illegal, or unenforceable under applicable law, the other
provisions of this Agreement and such Lease shall not be affected and shall
remain in full force and effect.
5.9 ATTORNEYS' FEES. Should either party institute any action or
proceeding to enforce this Agreement or any Lease, the prevailing party shall
be entitled to receive from the other party all reasonable out-of-pocket costs
and expenses, including, without limitation, attorneys' fees.
5.10 GOVERNING LAW AND JURISDICTION. THIS LEASE SHALL BE GOVERNED IN ALL
RESPECTS BY THE LAWS OF THE STATE OF CALIFORNIA WITH RESPECT TO AGREEMENTS
ENTERED INTO, AND TO BE PERFORMED, ENTIRELY IN CALIFORNIA. LESSOR AND LESSEE
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM THIS AGREEMENT
OR ANY LEASE. LESSEE CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE
COURTS OF CALIFORNIA, AND THE FEDERAL COURTS SITTING IN THE STATE OF
CALIFORNIA, FOR THE RESOLUTION OF ANY DISPUTES HEREUNDER.
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5.11 SURVIVAL. All obligations of Lessee to make payments to Lessor
under any Lease or to indemnify Lessor, pursuant to Section 3.4 or 3.7 above,
with respect to a Lease, and all rights of Lessor hereunder with respect to a
Lease, shall survive the termination of such Lease.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS.
LESSOR: LESSEE:
CISCO SYSTEMS CAPITAL DIGITAL ENTERTAINMENT
CORPORATION NETWORK, INC.
By: /s/ ▇▇▇ ZAIDINA By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇ III
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(Authorized Signature) (Authorized Signature)
MANAGER, CUSTOMER SERVICE
& OPERATIONS CHIEF EXECUTIVE OFFICER
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(Name/Title) (Legal Name/Title)
JUNE 16, 1999 APRIL 13, 1999
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(Date) (Date)
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