EXHIBIT 10.100
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LEASE SCHEDULE NO. 1000098533 FINANCING LEASE
---------- (Per Diem Interim Rent)
Master Lease Agreement dated 04/24/98
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Lessor: BANC ONE LEASING CORPORATION
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Lessee: MEADOW VALLEY CONTRACTORS, INC.
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1. GENERAL. This Lease Schedule is signed and delivered under the Master Lease
Agreement identified above, as amended from time to time ("Master Lease"),
between Lessee and Lessor. Capitalized terms defined in the Master Lease will
have the same meanings when used in this Schedule.
2. FINANCING. Lessor finances for Lessee, and Lessee finances with Lessor, all
of the property ("Equipment") described in Schedule A-1 attached hereto (and
Lessee represents that all Equipment is new unless specifically identified as
used):
3. AMOUNT FINANCED: Equipment Cost: $ 164,836.22
Set-up/Filing Fee: N/A
Miscellaneous: N/A
Sales Tax: N/A
Total: $ 164,836.22
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4. FINANCING TERM. The Base Term of this Schedule shall be 84 months and the
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Base Term shall commence on the Acceptance Date ("Commencement Date"). The total
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Lease Term consists of the Interim Term plus the Base Term. The Interim Term
begins on the date that Lessor accepts this Schedule as stated below Xxxxxx's
signature ("Acceptance Date") and continues up to the Commencement Date.
5. INSTALLMENT PAYMENTS/FEES. As financing for the Equipment, Lessee shall pay
to Lessor all amounts stated below on the due dates stated below. There shall be
added to each installment payment all applicable Taxes as in effect from time to
time.
(a) For the Interim Term, Lessee shall pay to Lessor on the Commencement Date
an amount equal to one-thirtieth (1/30th) of the Installment Payment multiplied
by the number of days in the Interim Term. "Installment Payment" means the total
of all installment payments due and payable during the Base Term divided by the
number of months in the Base Term.
(b) During the Base Term, Lessee shall pay to Lessor installment payments in
the amounts and according to the timing set forth below, provided however, that
notwithstanding the following, the final installment payment due hereunder shall
be equal to the remaining principal balance hereunder together with all accrued
interest and fees.
(1) Amount of each installment payment during the Base Term (including
principal and interest):
84 MONTHLY PAYMENTS AT $2,588.71
(2) Frequency of installment payments during the Base Term: MONTHLY
(3) Timing of installment payments during the Base Term: ARREARS
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[LOGO OF BANK ONE]
(c) Lessee shall pay Lessor a Set-Up/Filing Fee as follows:
(1) $N/A shall be paid on the Acceptance Date, or
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(2) $N/A has been included in the above Amount Financed of the Equipment.
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(d) Security Deposit: $N/A. On the Acceptance Date, Lessee shall pay Lessor
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said Security Deposit which shall be held in accordance with paragraph 6 below.
6. SECURITY INTEREST. This Schedule is intended to be a secured debt financing
transaction, not a true lease. See Paragraph 7 below regarding Xxxxxx's
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ownership of the Equipment. As collateral security for payment and performance
of all Secured Obligations (defined in Paragraph 8 below) and to induce Lessor
to extend credit from time to time to Lessee (under the Lease or otherwise),
Lessee hereby grants to Lessor a first priority security interest in all of
Lessee's right, title and interest in the Equipment, whether now existing or
hereafter acquired, any sums specified in this Schedule as a "Security Deposit",
and in all Proceeds (defined in Paragraph 8 below). At its option, Lessor may
apply all or any part of any Security Deposit to cure any default of Lessee
under the Lease. If upon final termination of this Schedule, Xxxxxx has
fulfilled all of the terms and conditions hereof, then Lessor shall pay to
Lessee upon Xxxxxx's written request any remaining balance of the Security
Deposit for this Schedule, without interest.
7. TITLE TO EQUIPMENT; FIRST PRIORITY LIEN. Lessee represents, warrants and
agrees: that Xxxxxx currently is the lawful owner of the Equipment; that good
and marketable title to the Equipment shall remain with Lessee at all times;
that Lessee has granted to Lessor a first priority security interest in the
Equipment and all Proceeds; and that the Equipment and all Proceeds are, and at
all times shall be, free and clear of any Liens other than Lessor's security
interest therein. Lessee at its sole expense will protect and defend Xxxxxx's
first priority security interest in the Equipment against all claims and demands
whatsoever.
8. CERTAIN DEFINITIONS. "Secured Obligations" means (a) all payments and other
obligations of Lessee under or in connection with this Schedule, and (b) all
payments and other obligations of Lessee (whether now existing or hereafter
incurred) under or in connection with the Master Lease and all present and
future Lease Schedules thereto, and (c) all other leases, indebtedness,
liabilities and/or obligations of any kind (whether now existing or hereafter
incurred, absolute or contingent, direct or indirect) of Lessee to Lessor or to
any affiliate of either Lessor or BANK ONE CORPORATION. "Proceeds" means all
cash and non-cash proceeds of the Equipment including, without limitation,
proceeds of insurance, indemnities and/or warranties.
9. AMENDMENTS TO MASTER LEASE. For purposes of this Schedule only, Lessee and
Lessor agree to amend the Master Lease as follows: (a) public liability or
property insurance as described in the second sentence of Section 8 will not be
required; (b) the definition of "Stipulated Loss Value" in clause (b) of Section
9 is deleted and replaced by Paragraph 10 below; (c) the text of Section 10 is
deleted in its entirety; (d) Subsections 23(a) and 23(c) are deleted; (e)
subsection 23(b) and the last sentence of section 4 will apply only if an event
of default occurs; and (f) all references in the Lease as it relates to this
Schedule to "Lessee" and "Lessor" shall be changed to "Borrower" and "Lender"
respectively.
10. STIPULATED LOSS VALUE. For purposes of this Schedule only, the "Stipulated
Loss Value" of any item of Equipment during its Lease Term equals the aggregate
of the following as of the date specified by Lessor: (a) all accrued and unpaid
interest, late charges and other amounts due under this Schedule and the Master
Lease to the extent it relates to this Schedule as of such specified date, plus
(b) the remaining principal balance due and payable by Lessee under this
Schedule as of such specified date, plus (c) interest on the amount described in
the foregoing clauses (a) and
(b) at the Overdue Rate commencing with the specified date; provided, that the
foregoing calculation shall not exceed the maximum amount which may be collected
by Lessor from Lessee under applicable law in connection with enforcement of
Lessor's rights under this Schedule and the Master Lease to the extent it
relates to this Schedule.
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11. LESSEE TO PAY ALL TAXES. For purposes of this Schedule and its Equipment
only: Lessee shall pay any and all Taxes relating to this Schedule and its
Equipment directly to the applicable taxing authority; Lessee shall prepare and
file all reports or returns concerning any such Taxes as may be required by
applicable law or regulation (provided, that Lessor shall not be identified as
the owner of the Equipment in such reports or returns); and Lessee shall, upon
Lessor's request, send Lessor evidence of payment of such Taxes and copies of
any such reports or returns.
12. LESSEE'S ASSURANCES. Lessee irrevocably and unconditionally: (a) reaffirms
all of the terms and conditions of the Master Lease and agrees that the Master
Lease remains in full force and effect; (b) agrees that the Equipment is and
will be used at all times solely for commercial purposes, and not for personal,
family or household purposes; and (c) incorporates all of the terms and
conditions of the Master Lease as if fully set forth in this Schedule.
13. REPRESENTATIONS AND WARRANTIES: Lessee represents and warrants that: (a)
Lessee is a corporation, partnership or proprietorship duly organized, validly
existing and in good standing under the laws of the state of its organization
and is qualified to do business and is in good standing under the laws of each
other state in which the Equipment is or will be located; (b) Lessee has full
power, authority and legal right to sign, deliver and perform the Master Lease,
this Schedule and all related documents and such actions have been duly
authorized by all necessary corporate/partnership/proprietorship action; and
(c) the Master Lease, this Schedule and each related document has been duly
signed and delivered by Lessee and each such document constitutes a legal, valid
and binding obligation of Lessee enforceable in accordance with its terms.
14. CONDITIONS. No lease of Equipment under this Schedule shall be binding on
Lessor, and Lessor shall have no obligation to purchase the Equipment covered
hereby, unless: (a) Lessor has received evidence of all required insurance; (b)
in Lessor's sole judgment, there has been no material adverse change in the
financial condition or business of Lessee or any guarantor; (c) Lessee has
signed and delivered to Lessor this Schedule, which must be satisfactory to
Lessor, and Lessor has signed and accepted this Schedule; (d) no change in the
Code or any regulation thereunder, which in Lessor's sole judgment would
adversely affect the economics to Lessor of the lease transaction, shall have
occurred or shall appear to be imminent; (e) Lessor has received, in form and
substance satisfactory to Lessor, such other documents and information as Lessor
shall reasonably request; and (f) Lessee has satisfied all other reasonable
conditions established by Lessor.
15. OTHER DOCUMENTS: EXPENSES: Xxxxxx agrees to sign and deliver to Lessor any
additional documents deemed desirable by Lessor to effect the terms of the
Master Lease or this Schedule including, without limitation, Uniform Commercial
Code financing statements which Lessor is authorized to file with the
appropriate filing officers. Lessee hereby irrevocably appoints Lessor and any
designee of Lessor as Xxxxxx's attorney-in-fact with full power and authority in
the place of Lessee and in the name of Lessee to prepare, sign, amend, file or
record any Uniform Commercial Code financing statements or other documents
deemed desirable by Lessor to perfect, establish or give notice of Lessor's
interests in the Equipment or in any collateral as to which Xxxxxx has granted
Lessor a security interest. Lessee shall pay upon Xxxxxx's written request any
actual out-of-pocket costs and expenses paid or incurred by Lessor in connection
with the above terms of this section or the funding and closing of this
Schedule.
16. PURCHASE ORDERS AND ACCEPTANCE OF EQUIPMENT. Lessee agrees that (i) Lessor
has not selected, manufactured, sold or supplied any of the Equipment, (ii)
Lessee has selected all of the Equipment and its suppliers, and (iii) Lessee has
received a copy of, and approved, the purchase orders or purchase contracts for
the Equipment. AS BETWEEN XXXXXX AND XXXXXX, XXXXXX AGREES THAT: (a) XXXXXX HAS
RECEIVED, INSPECTED AND APPROVED ALL OF THE EQUIPMENT; (b) ALL EQUIPMENT IS IN
GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS OR CONTRACTS AND
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ALL APPLICABLE SPECIFICATIONS; (c) LESSEE IRREVOCABLY ACCEPTS ALL EQUIPMENT FOR
PURPOSES OF THE LEASE "AS-IS, WHERE-IS" WITH ALL FAULTS; AND (d) LESSEE
UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO REVOKE ITS ACCEPTANCE OF
THE EQUIPMENT.
XXXXXX HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. XXXXXX AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE.
BANC ONE LEASING CORPORATION MEADOW VALLEY CONTRACTORS, INC.
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(Lessor) (Lessee)
By: /s/ [ILLEGIBLE] By: /s/ Xxxxxxx X Xxxxxx
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Title: Funding Authority Title: President
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Acceptance Date: 9-10-99 Witness: /s/ Xxxxx X. Xxxxx
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CORPORATE GUARANTY
Master Lease Agreement Date: 04/24/98
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Lessee Name: MEADOW VALLEY CONTRACTORS, INC
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Equipment Cost: $164,836.22
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1. For valuable consideration, the receipt of which is hereby
acknowledged, the undersigned jointly and severally unconditionally guarantee to
BANC ONE LEASING CORPORATION (hereinafter called "Lessor") the full and prompt
performance by the lessee identified above (hereinafter called "Lessee"), of all
obligations which Lessee now has or may hereafter have to Lessor, including but
not limited to obligations under equipment leases and promissory notes executed
in connection with anticipated equipment leases (including but not limited to
all present and future lease schedules and promissory notes under the Master
Lease identified above, with a total original equipment cost to the Lessor of no
more than the amount of the Equipment Cost set forth above), and unconditionally
guarantee the prompt payment when due (whether at scheduled maturity, upon
acceleration or otherwise) of any and all sums, indebtedness and liabilities of
whatsoever nature, due or to become due, direct or indirect, absolute or
contingent, now or hereafter at any time owed or contracted by Xxxxxx to Lessor,
and all costs and expenses of and incidental to collection of any of the
foregoing, including reasonable attorneys' fees (all of the foregoing
hereinafter called "Obligations"). It is the undersigned's express intention
that this guaranty in addition to covering all present Obligations of Lessee to
Lessor, shall extend to all future Obligations of Lessee to Lessor, whether or
not such Obligations are reduced or entirely extinguished and thereafter
increased or are reincurred, whether or not such Obligations are related to the
Master Lease identified above, whether or not such Obligations exceed the
Equipment Cost identified above, and whether or not such Obligations are
specifically contemplated by the undersigned, Xxxxxx, and Xxxxxx as of the date
hereof.
2. This is an absolute and unconditional guarantee of payment and not of
collection. Lessor shall not be required, as a condition of the liability of the
undersigned, to resort to, enforce or exhaust any of its remedies against the
Lessee or any other party who may be liable for payment on any Obligation or to
resort to, xxxxxxxx, enforce or exhaust any of its remedies against any leased
property or any property given or held as security for this Guaranty or any
Obligation.
3. The undersigned hereby waive and grant to Lessor, without notice to
the undersigned and without in any way affecting the liability of the
undersigned, the right at any time and from time to time, to extend other and
additional credit, leases, loans or financial accommodations to Lessee apart
from the Obligations, to deal in any manner as it shall see fit with any
Obligation of Lessee to Lessor and with any leased property or security for such
Obligation, including, but not limited to, (i) accepting partial payments on
account of any Obligation, (ii) granting extensions or renewals of all or any
part of any Obligation, (iii) releasing, surrendering, exchanging, dealing with,
abstaining from taking, taking, abstaining from perfecting, perfecting, or
accepting substitutes for any or all leased property or security which it holds
or may hold for any Obligation, (iv) modifying, waiving, supplementing or
otherwise changing any of the terms, conditions or provisions contained in any
Obligation and (v) the addition or release of any other party or person liable
hereon, liable on the Obligations or liable on any other guaranty executed to
guarantee any of Xxxxxx's Obligations. The undersigned jointly and severally
hereby agree that any and all settlements, compromises, compositions, accounts
stated and agreed balances made in good faith between Lessor and Lessee shall be
binding upon the undersigned.
4. Every right, power and discretion herein granted to Lessor shall be
for the benefit of the successors or assigns of Lessor and of any transferee or
assignee of any Obligation covered by this Guaranty, and in the event any such
Obligation shall be transferred or assigned, every reference herein to Lessor
shall be construed to mean, as to such Obligation, the transferee or assignee
thereof. This Guaranty shall be binding upon each of the undersigned's
executors, administrators, heirs, successors and assigns.
5. This Guaranty shall continue in force for so long as Lessee shall be
obligated to Lessor, and thereafter until Lessor shall have actually received
written notice of the termination hereof from the undersigned, it being
contemplated that Lessee may borrow, lease, repay and subsequently borrow money
from or lease property from, or become obligated to, Lessor from time to time,
and the undersigned, not having given notice of the termination hereof as herein
provided for, shall be deemed to have permitted this Guaranty to remain in full
force and effect for the purpose of inducing Lessor to make further leases or
loans to Lessee; provided, however, no notice of termination of this Guaranty
shall affect in any manner the rights of Lessor arising under this Guaranty with
respect to the following: (a) any Obligation incurred by Lessee in connection
with the Master Lease identified above with a total equipment cost of no more
than the amount of the Total Equipment Cost set forth above, whether such
obligation is in the form of a lease or a promissory note; or (b) any Obligation
incurred by Lessee prior to receipt by Lessor of written notice of termination
or any Obligation incurred after receipt of such written notice pursuant to a
written agreement entered into by Lessor prior to receipt of such notice.
The undersigned expressly waive notice of the incurring by Xxxxxx of any
Obligation to Lessor. The undersigned also waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of or nonperformance of any
Obligation.
6. The undersigned hereby waive any claims or rights which they might now
have or hereafter acquire against Lessee or any other person primarily or
contingently liable on any Obligation of Lessee, which claims or rights arise
from the existence or performance of the undersigned's obligations under this
Guaranty or any other guaranty or under any instrument or agreement with respect
to any leased property or any property constituting collateral or security for
this Guaranty or any other guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, or any
right to participate in any claim or remedy of Lessor or any other creditor
which the undersigned now has or hereafter acquires, whether such claim or right
arises in equity, under contract or statute, at common law, or otherwise.
7. Xxxxxx's rights hereunder shall be reinstated and revived, and this
Guaranty shall be fully enforceable, with respect to any amount at any time paid
on account of the Obligations which thereafter shall be required to be restored
or returned by Lessor upon the bankruptcy, insolvency or reorganization of the
Lessee, the undersigned, or any other person, or as a result of any other fact
or circumstance, all as though such amount had not been paid.
8. The undersigned jointly and severally agree to pay to Lessor all costs
and expenses, including reasonable attorneys' fees, incurred by Xxxxxx in the
enforcement or attempted enforcement of this Guaranty, whether or not suit is
filed in connection therewith, or in the exercise by Lessor of any right,
privilege, power or remedy conferred by this Guaranty.
9. The undersigned represent and warrant that they have relied
exclusively on their own independent investigation of Xxxxxx, the leased
property and the collateral for their decision to guarantee Xxxxxx's Obligations
now existing or thereafter arising. The undersigned agree that they have
sufficient knowledge of the Lessee, the leased property, and the collateral to
make an informed decision about this Guaranty, and that Lessor has no duty or
obligation to disclose any information in its possession or control about
Lessee, the leased property, and the collateral to the undersigned. The
undersigned warrant to Lessor that they have adequate means to obtain from the
Lessee on a continuing basis information concerning the financial condition of
the Lessee and that they are not relying on Lessor to provide such information
either now or in the future.
10. As long as any indebtedness under any of the Obligations remains
unpaid or any credit is available to Lessee under any of the Obligations, the
undersigned agree to furnish to Lessor: (a) annual financial statements setting
forth the financial condition and results of operation of the undersigned
(financial statements shall include balance sheet, income statement, changes in
financial position and all notes thereto) within 120 days of the end of each
fiscal year of the undersigned; (b) quarterly financial statements setting forth
the financial condition and results of operation of the undersigned within 60
days of the end of each of the first three fiscal quarters of the undersigned;
and (c) such other financial information as Lessor may from time to time request
including, without limitation, financial reports filed by the undersigned with
federal or state regulatory agencies.
11. No postponement or delay on the part of Lessor in the enforcement of
any right hereunder shall constitute a waiver of such right. The failure of any
person or entity to sign this Guaranty shall not discharge the liability of any
of the undersigned.
12. This Guaranty remains fully enforceable irrespective of any claim,
defense or counterclaim which the Lessee may or could assert on any of the
Obligations including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, fraud, bankruptcy,
accord and satisfaction, and usury, same of which the undersigned hereby waive
along with any standing by the undersigned to assert any said claim, defense or
counterclaim.
13. This Guaranty contains the entire agreement of the parties and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Guaranty is not intended to replace
or supersede any other guaranty which the undersigned have entered into or may
enter into in the future. The undersigned may enter into additional guaranties
in the future which may or may not refer to the Master Lease identified above
and such guaranties are not intended to replace or supersede this Guaranty
unless specifically provided in that additional guaranty. The interpretation,
construction and validity of this guaranty shall be governed by the laws of the
State of Ohio. With respect to any action brought by Lessor against Guarantor to
enforce any term of this guaranty, Guarantor hereby irrevocably consents to the
jurisdiction and venue of any state or federal court in Franklin County, Ohio,
where Lessor has its principal place of business and where payments are to be
made by Xxxxxx and Guarantor.
ALL PARTIES TO THIS GUARANTY, INCLUDING GUARANTOR AND XXXXXX, WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN
CONNECTION WITH OR IN ANY WAY RELATED TO THIS GUARANTY.
Guarantor:
MEADOW VALLEY CORPORATION
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By: /s/ Xxxxxxx X Xxxxxx
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Title: President
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Witness: /s/ Xxxxx X. Xxxxx
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Date: 9-8-99
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Bane One Leasing Corporation
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 1
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EQUIPMENT LOCATION: 0000 X. 00XX XX., XXXXX X-00
XXXXXXX, XX 00000
XXXXXX: MARICOPA
COST: $164,836.22
1 XXXXXX TRAILER MODEL 6OKTP VIN NUMBER - 0X0XX0000X0000000
1 1998 KENWORTH T800 DUMP TRUCK
WITH BOMAX TRAILER VIN NUMBER - 0XXXXX0X0XX000000
TOGETHER WITH ALL ATTACHMENTS, ADDITIONS, ACCESSIONS, PARTS, REPAIRS,
IMPROVEMENTS, REPLACEMENTS AND SUBSTITUTIONS THERETO.
This Schedule A-1 is attached to and made a part of Lease Number 1000098533 and
constitutes a true and accurate description of the equipment.
Lessee:
MEADOW VALLEY CONTRACTORS, INC.
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By: /s/ Xxxxxxx X Xxxxxx
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Date: 9-8-99
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