Exhibit 10.9
SUBLEASE AGREEMENT
This Sublease ("Sublease") is made this 16 day of July, 2001, by and between
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Motorola, Inc., a Delaware corporation, having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Sublandlord") and Safelink
Corporation, a Delaware corporation having an office at ▇▇▇▇▇ ▇▇ ▇/▇▇/ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇-▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Subtenant").
WHEREAS, Sublandlord leases certain premises (approximately 5,049 rentable
square feet), pursuant to that certain Lease dated as of the 5/th/ day of
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December 1986, and executed by and between TAPF Number Four, Inc. who was later
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succeeded in interest by Principal Mutual Life Insurance Company ("Prime
Landlord"), and Sublandlord, as Tenant, hereinafter "Prime Lease" by the terms
of which Prime Lease, the property, commonly known as the ▇▇▇▇▇▇▇▇▇ Corporate
Center ("Building") located at ▇▇▇▇▇ ▇▇ ▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, consisting of 5,049 rentable square feet and hereinafter
("Premises") was leased to the Sublandlord; and
WHEREAS the Prime Lease was amended by the First Amendment dated August 31,
1991; the Second Amendment dated January 1993 and the Third Amendment dated
February 11, 1998;
WHEREAS, a copy of the Prime Lease and Amendments are attached hereto as Exhibit
A and made a part of this Sublease; and
WHEREAS, Sublandlord now desires to sublease the Premises (approximately 5,049
rentable square feet) (the "Sublease Premises") attached hereto as Exhibit B and
Subtenant desires to lease same from Sublandlord; and
WHEREAS, the Prime Landlord (as defined below) has consented to such subletting
from Sublandlord to Subtenant.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
undersigned agree as follows:
1. Subletting. Sublandlord hereby agrees to sublease to Sublease Premises,
and Subtenant hereby agrees to lease such Sublease Premises from Sublandlord, on
the terms and conditions as set forth herein.
2. Terms of Sublease.
A. Subtenant has inspected the Sublease Premises and agrees to accept the
Sublease Premises in its "AS-IS" condition with no improvements to be
performed by Sublandlord or NO WARRANTIES OF ANY KIND AND WITH ALL FAULTS
AND DEFECTS EITHER KNOWN, UNKNOWN OR LATER DISCOVERED. Subtenant
acknowledges that Sublandlord makes no representation that the Sublease
Premises are in full compliance with Title III of the Americans With
Disabilities Act (42 U.S.C. Section 12101 et seq. hereinafter the "ADA")
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and that any modifications that may be necessary pursuant to the ADA, if
any, are the responsibility of Subtenant. Subtenant shall obtain prior
written approval from Sublandlord and Prime Landlord for any and all
Subtenant improvements to the Sublease Premises, which consent shall not be
unreasonably withheld, conditioned or delayed by Sublandlord, and shall be
governed by the Prime Lease as to Prime Landlord. Sublandlord shall respond
to Subtenant's written request for any improvements submitted with detailed
drawings and specifications within ten (10) business days. Subtenant must
receive Sublandlord's prior written consent, which shall not be
unreasonably withheld, concerning the contractor(s) and materials to be
used and the nature of the work to be performed. Subtenant shall provide
Sublandlord with copies of any and all architectural and
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construction drawings, with specifications. Said drawings shall be attached to
this Sublease as an Exhibit prior to execution of the Sublease by both parties,
if Subtenant plans any improvements upon Sublease commencement. Sublandlord
shall designate, in writing, at the time of the approval process if any of the
improvements need to be returned to their original condition upon the
termination of the Term, or if this Sublease terminates for any other reason.
Notwithstanding the foregoing provisions, Sublandlord makes no representation to
Subtenant as to whether Prime Landlord will approve or disapprove of any
modifications, alterations or improvements.
B. The term of this Sublease shall be for a period of approximately twenty
(20) months commencing on August 1, 2001, and ending at 11:59 P.M. local time on
March 31, 2003 ("Sublease Term").
C. Subtenant agrees, as to the Sublease Premises only, to perform and fulfill
all the terms, covenants, conditions, duties, responsibilities and obligations,
and to pay all sums required of Sublandlord as Tenant under the Prime Lease as
if Subtenant were the Tenant under the Prime Lease only to the extent of the
Sublease Premises, and agrees to accept all liabilities thereunder arising from
and after the date hereof; and to make all warranties and indemnification to
Sublandlord as those that Sublandlord makes to the Prime Landlord; provided,
however, that Rent shall not be payable to Prime Landlord, but shall be payable
from Subtenant to Sublandlord in the amount of Nine Thousand Two Hundred Fifty
Six and 50/100 DOLLARS ($9,256.50) per month plus any applicable taxes.
OPEN
The parties acknowledge that the total monthly Rent set forth above already
includes a component for Subtenant's estimated proportionate share of Expenses
for the Year 2000. Subtenant shall be responsible for and pay its Proportionate
Share (Sublease Premises as it relates to Premises) of Operating Expenses in
excess of the calendar year 2000. Subtenant will be responsible for One Hundred
and 00/100 percent (100.00%) of the for the Premises, and the building of which
the Sublease Premises are a part pursuant to Section 4 of the Prime Lease.
Subtenant agrees that it shall also be responsible and pay for One Hundred and
00/100 percent (100.00%) of all utilities, office cleaning security, air
conditioning maintenance, repairs or replacements, or any other expenses or
costs Sublandlord incurs for the Premises and Sublease Premises and any other
common area maintenance expenses not covered as provided for by the Prime
Landlord pursuant to Section 3 of the Prime Lease. Rental checks and checks for
other sums due pursuant to this Sublease, should be sent to Motorola de Puerto
Rico, Inc., Motorola, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇ M/315 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Manager, Lease Administration.
The Rental during the Term shall be due and payable in the following manner: the
first months rent for October 2001 shall be in the amount of Nine Thousand Two
Hundred Fifty Six and 50/100 DOLLARS ($9,256.50) plus any applicable taxes and
the Security Deposit as set forth in Section 1 (R) of this Sublease shall be due
upon Subtenant signing this Sublease; the remaining seventeen (17) consecutive,
equal monthly installments, shall be due in advance, on the first day of each
calendar month during the Term for November 2001 through March 2003.
Additionally, Subtenant hereby agrees to indemnify, save and hold harmless
Sublandlord its successors and assigns from and against any and all losses,
costs, claims and expenses suffered including reasonable attorneys fees and
court costs, sustained and incurred by Sublandlord because of Subtenant's
failure to comply with the obligations of Tenant, as to the Sublease Premises
only, under the Prime Lease.
D. As consideration for Subtenant's warranty to pay the brokerage commissions
as referenced in Section 1Q herein this Sublease and to perform and be
responsible for any and all restorations, improvements or alterations to the
Sublease Premises in the document dated June 21, 2001, attached hereto and set
forth in "Exhibit E", Sublandlord has abated the rent between August 1, 2001 and
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September 31, 2001. In the event Subtenant defaults at any time during the term
of the Sublease, does not perform timely pay the brokerage commissions as
referenced in Section 1Q herein this Sublease or perform and be responsible for
any and all restorations, improvements or alterations to the Sublease Premises
in the document dated June 21, 2001, attached hereto and set forth in "Exhibit
E", the amount of rent abated which is Eighteen Thousand Five Hundred Thirteen
and 00/100 Dollars ($18,513.00) shall become immediately due and payable from
Subtenant to Sublandlord.
E. The parties agree that the Section 10 and 11 of the Prime Lease do not
permit the Sublandlord to actually provide the services and utilities or
maintenance and repairs required under those sections of the Prime Lease, rather
the Sublandlord shall only be required to use reasonable efforts to obtain the
Prime Landlord's performance of the Section 10 and 11 under the Prime Lease only
to the extent that they apply to the Sublease Premises.
F. The parties agree that the Sublandlord shall not be required to maintain
any insurance as landlord would be required pursuant to Section 14 of the Prime
Lease. Subtenant agrees to provide insurance as required of Tenant under the
Prime Lease pursuant to Section 14 of the Prime Lease. Subtenant agrees to name
both Sublandlord and Prime Landlord as additional insured under the Sublease.
G. The parties agree in no event shall Sublandlord be obligated to restore or
rebuild the Sublease Premises pursuant to Section 15 of the Prime Lease, rather
the Sublandlord shall only be required to use reasonable efforts to obtain Prime
Landlord's performance under Section 15 of the Prime Lease. The parties agree
that Subtenant shall have no right to terminate the Sublease pursuant to
Section 15 of the Prime Lease unless Prime Landlord has permitted Sublandlord to
terminate (as Tenant) all of the Sublease Premises. The parties agree that there
shall be no abatement of Rent pursuant to Section 15 of the Prime Lease except
to the extent Sublandlord's rent payable to Prime Landlord is actually abated as
it relates specifically to the Sublease Premises. Subtenant agrees that Prime
Landlord's right to terminate under Section 15 shall be binding on Subtenant and
if Prime Tenant elects to terminate this Prime Lease, this Sublease shall also
terminate simultaneously.
H. The parties agree that Subtenant shall have no right to terminate the
Sublease pursuant to Section 16(c) of the Prime Lease unless Prime Landlord has
permitted Sublandlord to terminate (as Tenant) all of the Sublease Premises. The
parties agree that there shall be no abatement of Rent pursuant to Section 16
(c) of the Prime Lease except to the extent Sublandlord's rent payable to Prime
Landlord is actually abated as it relates specifically to the Sublease Premises.
I. The parties agree that Section 17 of the Prime Lease does not apply to this
Sublease. Subtenant agrees that it is prohibited from subleasing or assigning
its rights for all or any of the Sublease Premises under this Sublease.
J. Pursuant to Section 18 of the Prime Lease, Subtenant agrees that it shall
only be entitled to five (5) days to cure any payment default and fifteen (15)
days to cure any violations or provisions under this Sublease. Subtenant agrees
that the shorter time periods to cure shall allow Sublandlord the opportunity,
but not the obligation, to cure any alleged default by Subtenant prior to the
longer cure periods expiring under the Prime lease to try prevent a breach
under the Prime Lease.
K. The parties agree that the second paragraph of Section 25 of the Prime
Lease only as it relates to "holding-over" does not apply to this Sublease and
is hereby replaced in its entirety with the following: If Subtenant should hold
over in the Sublease Premises after the Term of the Sublease, Subtenant shall
pay Two Hundred Percent of the Rent last in effect in addition to being liable
for any and all costs, damages, claims and expenses Sublandlord may incur or be
liable for as a result of such hold-over. In no event shall this provision be
deemed to be permission or consent to holdover in the Sublease Premises.
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L. Subtenant agrees that Section 32 of the Prime Lease setting forth "Payments
to Tenant Relative to former Lease" shall not apply to this Sublease. The
parties agree that Section 32 of the Prime Lease does not apply to this
Sublease.
M. Subtenant agrees that Section 33 of the Prime Lease shall not apply to this
Sublease. The parties agree that Section 33 of the Prime Lease does not apply to
this Sublease.
N. Subtenant agrees that Section 34 of the Prime Lease setting forth Parking
shall apply to this Sublease, however the monthly rental shall be forty dollars
($40.00) per month per unreserved stall in the covered area and the shall be
payable from Subtenant to Sublandlord. Subtenant agrees to allow Subtenant the
right to use Sublandlord's two (2) unreserved parking stall in the covered area
during the term of the Sublease, provided that Subtenant is complying with the
terms and conditions of this Sublease.
O. Subtenant agrees that Section 35 of the Prime Lease setting forth a "Moving
Allowance" shall not apply to this Sublease. The parties agree that Section 35
of the Prime Lease does not apply to this Sublease.
P. Subtenant agrees that Section 9 and Section 10 of the Third Amendment of
the Prime Lease setting forth "Tenant Improvement Allowance" and "Tenant
Improvements" shall not apply to this Sublease. The parties agree that Section 9
and 10 of the Third Amendment of the Prime Lease does not apply to this
Sublease.
Q. Attached hereto as "Exhibit C" is a list of the existing office furniture
and card key security system ("Personal Items") at the Sublease Premises that
relate to this Sublease. As consideration for Subtenant's agreement to pay the
broker's commission attached hereto and set forth in "Exhibit D" and perform and
be responsible for any and all restorations, improvements or alterations to the
Sublease Premises in the document dated June 21, 2001, attached hereto and set
forth in "Exhibit E", Sublandlord by duly executing this, Sublease hereby
conveys the Personal Items to Subtenant "AS-IS" WITH ALL FAULTS NOW KNOWN OR
LATER DISCOVERED AND WITHOUT ANY WARRANTIES OF ANY TYPE, EXPRESS, IMPLIED,
FITNESS FOR PARTICULAR PURPOSE MERCHANTABILITY OR OTHERWISE. Subtenant agrees to
remove all Personal Items from the Sublease Premises prior to the expiration of
the Term of the Sublease. Subtenant agrees to indemnify and hold Sublandlord,
its successors and assigns harmless for any and all damages, costs, losses,
claims or expenses Sublandlord incurs relating to this paragraph
R. Upon Subtenant signing this Sublease, Subtenant shall deposit with the
Sublandlord the sum of Nine Thousand Two Hundred Fifty Six and 50/100 DOLLARS
($9,256.50), which shall be retained by the Sublandlord as security for the
Subtenant's payment of Rent and performance of all of its other obligations
under the provisions of this Sublease. On the occurrence of an Event of Default
(as defined in the Prime Lease), the Sublandlord shall be entitled, at its sole
discretion, to:
(i) apply any or all of such sum in payment of any Rent then due and
unpaid, any expense incurred by the Sublandlord in curing any such
default, and/or any damages incurred by the Sublandlord by reason of
such default (including but not limited to reasonable attorneys'
fees), in which event Subtenant shall immediately restore the amount
so applied, and/or
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(ii) to retain any or all of such sum in liquidation of any or all
damages suffered by the Sublandlord by reason of such default.
However, the foregoing shall not serve in any event to limit the
rights, remedies and damages accruing to Sublandlord or any other
provision of this Sublease on account of default by Subtenant.
The security deposit shall not be applied to the last month's
installment of Rent; rather, upon the termination of this
Sublease, any of such security deposit then remaining shall be
returned to the Subtenant within thirty (30) days from the date
of termination. Such security deposit shall not bear interest
while being held by the Sublandlord hereunder.
3. Binding and Benefit. This Sublease shall be binding on and inure to the
benefit of the parties to this Sublease, their successors in interest and
permitted assigns.
4. No Right To Renew. Notwithstanding anything to the contrary contained in
this Sublease or the Prime Lease, Subtenant shall not have the right to renew or
extend this Sublease or the Prime Lease beyond March 31, 2003. In the event
Subtenant desires to extend its occupancy of the Sublease Premises beyond such
date, Subtenant must enter into its own agreement with Prime Landlord.
5. Environmental.
A. For purposes of this paragraph:
(1) "Existing Environmental Conditions" shall mean the environmental conditions
at the Premises, including the presence of any Hazardous Materials, as of the
commencement of the term of this Sublease.
(2) "Environmental Requirement" shall mean any law, regulations or legal
requirement relating to health, safety or the environment, now in effect or
hereinafter enacted, including but not limited to the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA"), the Toxic
Substances Control Act ("TSCA"), the Federal Insecticide Fungicide and
Rodenticide Act (FIFRA"), the Resource Conservation and Recovery Act ("RCRA"),
the Clean Air Act (CAA") and the Clean Water Act ("CWA"), the Occupational
Safety and Health Act (OSHA") and all similar state and local laws, rules,
regulations and guidance, now in existence or hereinafter enacted, as each such
law, rule or regulation may be amended from time to time.
(3) "Environmental Hazard" shall mean Hazardous Materials (as defined
hereinafter), or the storage, handling, production, disposal, treatment or
release thereof.
(4) "Hazardous Material" shall mean (a) any hazardous waste, any extremely
hazardous waste, or any restricted hazardous waste, or words of similar import,
as defined in the Resource Conservation and Recovery Act (42 U.S. C. Section
6901 et seq.); (b) any hazardous substances as defined in the Comprehensive
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Environmental Response Compensation and Liability Act (42 U.S. C. Section 9601
et seq.); (c) any toxic substances as defined in the Toxic Substances Control
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Act (15 U.S.C. Section 2601 et seq.); (d) any pollutant as defined in the Clean
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Water Act (33 U.S.C. Section 1251 et seq.); (e) gasoline, petroleum or other
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hydrocarbon products or by-products; (f) asbestos; or (g) any other materials,
substances or wastes subject to environmental regulation under any applicable
federal, state or local law, regulation, or ordinance now or hereafter in
effect.
(5) "Environmental Liabilities" shall mean any liability, penalties, fines
forfeitures, demands, damages, losses, claims causes of action, suits judgments
and costs and expenses incidental thereto (including cost of defense,
settlement, reasonable attorneys' fees), arising from or based on (i)
environmental contamination or the threat of environmental contamination or
(ii) compliance with, or violation of, any Environmental Requirement, and shall
include, but not be limited to, liability arising from:
(a) any governmental action, order, directive, administrative proceeding,
or ruling;
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(b) personal or bodily injuries (including death) or damages to any
property (including loss of use) or natural resources;
(c) cleanup, remediation, investigation, monitoring or other response
action.
(6) "Environmental Release" shall mean any release, spill, leak, discharge,
injection, disposal, or emission of any Hazardous Materials into the
environment.
B. At all times during the term of the Sublease, Subtenant shall conduct its
activities at the Sublease Premises, and shall ensure that any invitee of
Subtenant conducts its activities at the Sublease Premises, in strict compliance
with all applicable Environmental Requirements.
C. Subtenant shall notify Sublandlord immediately of any Environmental Release
at, on, under, or from the Sublease Premises. Unless directed otherwise by the
Sublandlord, Subtenant shall act immediately to investigate the extent of, and
to take appropriate action to ▇▇▇▇▇ and remediate, such Environmental Release,
whether or not ordered or otherwise directed to do so by any governmental entity
or otherwise obligated to do so by any Environmental Requirement.
D. Sublandlord shall have the right to make inquiries concerning all
environmental matters and Subtenant will cooperate with such inquiries. Such
inquiries may include physical inspections, including tests and sampling, at the
Sublease Premises, the Building or the Property, and interviews with personnel
of Subtenant.
E. Notwithstanding any other provision of this Sublease, Subtenant agrees to
indemnify and hold harmless Sublandlord, Prime Landlord, their successors and
assigns, and present and future officers, directors, employees, and agents,
(collectively "Indemnitees") from and against any and all Environmental
Liabilities which Sublandlord, Prime Landlord or any or all of the Indemnitees
may hereafter suffer, incur, be responsible for or disburse as a result of any
Environmental Hazard at the Sublease Premises caused by or attributable to the
Subtenant or the Subtenant's activities or by any invitee by the activities of
any invitee of the Subtenant.
F. The provision of this paragraph shall survive the termination of this
Sublease.
6. Brokers.
The parties agree that the Broker provision as set forth in Section 1
(P) of the Prime Lease and Section 3 of the Second Amendment to the Prime Lease
and Sections 11 and 12 of the Third Amendment to the Prime Lease do not apply to
this Sublease.
The parties agree that the Staubach Company and Binswanger of Puget
Sound Properties ("Broker") are the only brokers who brought about this
Sublease. Subtenant represents and warrants that Subtenant did not negotiate
with respect to the leasing of the Premises through any broker and that no
broker was instrumental in bringing about this Sublease. Subtenant shall
indemnify Sublandlord against any and all claims of any other brokers with whom
Subtenant has had any dealings, and shall hold Sublandlord harmless from all
losses and expenses in connection therewith, including reasonable not legal
expenses. Sublandlord represents and warrants that Sublandlord has not dealt
with any real estate broker in connection with the subleasing of the Premises,
and Sublandlord agrees
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to indemnify and hold Subtenant harmless from all losses and expenses in
connection with the claims of any real estate broker claiming by, under or
through Prime Landlord, including reasonable legal expenses. Subtenant agrees to
pay the Broker commission, fees and expenses pursuant to the written agreement
attached as Exhibit D.
7. Representations by Sublandlord. Sublandlord represents that:
(A) Prime Lease attached hereto (Exhibit A) is a true and correct copy of
the Prime Lease, including any amendments to date, of the Premises.
(B) the Lease is in full force and effect without default on the part of
Prime Landlord or Sublandlord (as Tenant thereunder);
(C) the Lease is not encumbered by any prior transfer, assignment,
mortgage or any other encumbrance by Sublandlord; and
(D) Sublandlord has no knowledge of any transfer or assignment by Prime
Landlord of the Lease expect as may be set forth below:
8. Notices. Any notice or demand required to be given hereunder shall be made
by certified or registered mail return receipt requested or reliable overnight
courier to the address set forth below:
If to Sublandlord: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Manager
with copy to: same address as above
Attention: Real Estate & Development Counsel
If to Subtenant: Safelink Corporation
▇▇▇▇▇ ▇▇ ▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Operations
9. Conflicts. In the event of any conflict between the terms contained in this
Sublease and the Prime Lease, the terms herein contained in this Sublease shall
control the obligations and liabilities of the parties.
IN WITNESS WHEREOF, the parties hereunto have executed this Sublease on the day
and year set forth above.
[STAMP]
SUBLANDLORD SUBTENANT
Motorola, Inc., Safelink Corporation
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: VICE PRESIDENT AND DIRECTOR Title: 07/16/01
REAL ESTATE AND DEVELOPMENT -------------------------
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