EXHIBIT 10.(n)
LESSOR: Xxxxxxx Capital EQUIPMENT
0000 Xxxx Xxxxxx, Xxx. 000 LEASE AGREEMENT
Xxxxxxx Xxxxx, XX 00000
LEASE AGREEMENT NO. 00-0000-00000
Lease Agreement made this 26TH day of NOVEMBER 1996 between XXXXXXX
CAPITAL ("Lessor") with a place of business located at NEWPORT BEACH, CA and
VISUAL DATA CORPORATION/HOTELVIEW CORPORATION as Co-Lessees ("Lessee") having
its principal place of business located at 0000 X. XXXXX XXX., 0XX XX., XXXX
XXXXX, XX 00000 .
1. LEASE AGREEMENT. Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor all of the personal property ("Equipment") described in Equipment Lease
Schedule(s), which are or may from time to time be executed by Lessor and Lessee
and attached hereto or incorporated herein by reference ("Schedules"), upon the
terms and conditions set forth in this Lease, as supplemented by the terms and
conditions set forth in the appropriate Schedule(s) identifying such items of
Equipment. All terms and conditions of this Lease shall govern the rights and
obligations of Lessor and Lessee except as specifically modified in writing.
Whenever reference is made herein to the "Lease", it shall be deemed to include
each of the various Schedules identifying all items of Equipment, all of which
constitute one undivided Lease of the Equipment and the terms and conditions of
which are incorporated herein by reference.
2. SELECTION OF EQUIPMENT; ACCEPTANCE. Lessee will select the type, quantity sad
supplier of each item of Equipment designated in the appropriate Schedule, and
in reliance thereon such Equipment will then be ordered by Lessor from such
supplier or Lessor will accept an assignment of any existing purchase order
therefore. Lessor will have no liability for any delivery or failure by the
supplier to fill the purchase order or to meet the conditions thereof. Lessee
acknowledges that Lessor has not participated and will not participate in any
way in Lessee's selection of the Equipment or of the supplier. Lessee agrees to
inspect the Equipment and to execute an Acknowledgment and Acceptance of
Equipment by Lessee notice, as provided by Lessor, after the Equipment has been
delivered and after Lessee is satisfied that the Equipment is satisfactory in
every respect Lessee hereby authorizes Lessor to insert in this Lease serial
numbers or other identifying data with respect to the Equipment.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. LESSOR, NOT
BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT, MAKES NO
EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE
EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, THE MERCHANTABILITY OF THE EQUIPMENT
OR ITS FITNESS
FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE EQUIPMENT; THE
QUALITY OR CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP IN THE EQUIPMENT;
COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENT OF ANY LAW, RULE, SPECIFICATION
OR CONTRACT PERTAINING THERETO; PATENT INFRINGEMENT; OR LATENT DEFECTS. LESSEE
LEASES THE EQUIPMENT "AS IS" AND WITH ALL FAULTS. Lessee accordingly agrees not
to assert any claim whatsoever against Lessor for loss of anticipatory profits
or consequential damages. Lessor shall have no obligation to install, erect,
test, service, or maintain the Equipment. Lessee shall look to the manufacturer
and/or seller for any claims related to the Equipment.
IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS
REPRESENTED OR WARRANTED BY THE SUPPLIER OR MANUFACTURER, OR IS UNSATISFACTORY
FOR ANY REASON, REGARDLESS OF CAUSE OR CONSEQUENCE, LESSEE'S ONLY REMEDY, IF
ANY, SHALL BE AGAINST THE SUPPLIER OR MANUFACTURER OF THE EQUIPMENT AND NOT
AGAINST LESSOR.
LESSOR HEREBY ACKNOWLEDGES THAT ANY MANUFACTURER'S AND/OR SELLER'S
WARRANTIES ARE FOR THE BENEFIT OF BOTH LESSOR AND LESSEE. NOTWITHSTANDING THE
FOREGOING, LESSEE'S OBLIGATIONS TO PAY THE RENTALS OR OTHERWISE UNDER THIS LEASE
SHALL BE AND ARE ABSOLUTE AND UNCONDITIONAL. TO THE EXTENT PERMITTED BY THE
MANUFACTURER OR SELLER, AND PROVIDED LESSEE IS NOT IN DEFAULT UNDER THIS LEASE,
LESSOR SHALL MAKE AVAILABLE TO LESSEE ALL MANUFACTURER AND/OR SELLER WARRANTIES
WITH RESPECT TO EQUIPMENT.
LESSEE SPECIFICALLY ACKNOWLEDGES THAT THE EQUIPMENT IS LEASED TO LESSEE
SOLELY FOR COMMERCIAL OR BUSINESS PURPOSES AND NOT FOR PERSONAL, FAMILY,
HOUSEHOLD, OR AGRICULTURAL PURPOSES.
THE PARTIES HAVE SPECIFICALLY NEGOTIATED AND AGREED TO THE FOREGOING PARAGRAPH:
LESSEE INITIALS:___________
4. STATUTORY FINANCE LEASE. Lessee agrees and acknowledges that it is the intent
of both parties to this Lease that it qualify as a statutory finance lease under
Article 2A of the Uniform Commercial Code. Lessee acknowledges and agrees that
Lessee has selected both: (1) the Equipment; and (2) the supplier from whom
Lessor is to purchase the Equipment Lessee acknowledges that Lessor has not
participated in any way in Lessee's selection of the Equipment or of the
supplier, and Lessor has not selected, manufactured, or supplied the Equipment.
LESSEE IS ADVISED THAT IT MAY HAVE RIGHTS UNDER THE CONTRACT EVIDENCING
THE LESSOR'S PURCHASE OF THE EQUIPMENT FROM THE SUPPLIER CHOSEN BY LESSEE AND
THAT LESSEE SHOULD CONTACT THE SUPPLIER OF THE EQUIPMENT FOR A DESCRIPTION OF
ANY SUCH RIGHTS.
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5. ASSIGNMENT BY LESSEE PROHIBITED. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE SHALL NOT ASSIGN THIS LEASE OR SUBLEASE THE EQUIPMENT OR ANY INTEREST
THEREIN, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF THE EQUIPMENT
COVERED HEREBY.
6. COMMENCEMENT AND TERMINATION. The obligations under this Lease shall commence
upon the written acceptance thereof by Lessor and shall end upon full
performance and observance of each and every term, condition and covenant set
forth in this Lease, each Schedule hereto and any extensions hereof. The rental
term of the Equipment listed in each Schedule shall commence on the date that
the first rental payment is due and shall terminate on the last day of the term
stated in such Schedule unless such schedule has been extended or otherwise
modified. Lessor shall have no obligation to Lessee under this Lease if the
Equipment, for whatever reason, is not delivered to Lessee within 90 days after
Lessee signs this Lease. Lessor shall have no obligation to Lessee under this
Lease if Lessee fails to execute and deliver to Lessor an Acknowledgment and
Acceptance of Equipment by Lessee notice for the Equipment within 30 days after
it is delivered to Lessee, with respect to any Schedule.
7. RENTAL PAYMENTS. The rent for the Equipment described in each Schedule shall
be due and payable on the dates set forth therein. Such rents shall be payable
at Lessor's principal place of business unless Lessor otherwise designates.
Lessee shall not xxxxx, set off, deduct any amount or reduce any payment for any
reason.
8. SECURITY DEPOSIT. As security for the prompt and full payment of rent, and
the faithful and timely performance of all provisions of this Lease, and any
extensions or renewals thereof, Lessee shall pledge and deposit with Lessor the
security amount set forth in the section shown as "Security Deposit" on each
respective Schedule. In the event any default shall be made in the performance
of any of Lessee's obligations under this Lease, Lessor shall have the right,
but shall not be obligated, to apply said security to the curing of such
default. Within 15 days after Lessor mails notice to Lessee that Lessor has
applied any portion of the Security Deposit to the curing of any default, Lessee
shall restore said Security Deposit to the full amount set forth in the
Schedules. On the expiration or earlier termination of each Schedule to this
Lease, or any extension or renewal thereof, provided Lessee has paid all of the
rent herein called for and fully performed all other provisions of this Lease
with respect to such schedule, Lessor will return to Lessee any then remaining
balance of the security deposit with respect to such Schedule, without interest.
Said security deposit may be commingled with Lessor's other funds.
9. LIMITED PREARRANGED AMENDMENTS. SPECIFIC POWER OF ATTORNEY. In the event it
is necessary to amend the terms of this Lease or the terms of any Schedule to
reflect a change in one or more of the following conditions:
(1) Lessor's actual cost of procuring the Equipment; or
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(2) Lessor's actual cost of providing Equipment to Lessee; or
(3) A change in the Lease payments as a result of (1) and/or (2)
above; or
(4) Description of the leased Equipment,
Lessee agrees that any such amendment shall be described in a letter from Lessor
to Lessee, and unless within 15 days after the date of such letter Lessee
objects thereto in a writing delivered to Lessor, this Lease and any affected
Schedules shall be deemed amended and such amendments shall be incorporated
herein/therein as if originally set forth herein/therein.
Lessee grants to Lessor a specific power of attorney for Lessor to use as
follows: (1) Lessor may sign and file on Lessee's behalf any document Lessor
deems necessary to perfect or protect Lessor's interest in the Equipment or
pursuant to the Uniform Commercial Code; and (2) Lessor may sign, endorse or
negotiate for Lessor's benefit any instrument representing proceeds from any
policy of insurance covering the Equipment.
10. LOCATION. The equipment shall be kept at the location specified in each
Schedule or, if none is specified, at Lessee's address as set forth above, and
shall not be removed therefrom without Lessor's prior written consent.
11. USE. Lessee shall use the Equipment in a careful manner, shall make all
necessary repairs at Lessee's expense, and shall comply with all laws relating
to its possession, use or maintenance, and shall not made any alterations,
additions or improvements to the Equipment without Lessor's prior written
consent. All additions, repairs or improvements made to the Equipment shall
belong to Lessor.
12. OWNERSHIP; PERSONALTY. The Equipment is, and shall remain, the property of
Lessor, and Lessee shall have no right, title or interest therein or thereto
except as expressly set forth in this Lease. The Equipment shall remain personal
property even though installed in or attached to real property.
13. SURRENDER. By this Lease, Lessee acquires no ownership rights in the
Equipment and has no option to purchase same. Upon the expiration or termination
of any Schedule or this Lease, or in the event of a default pursuant to
Paragraph 21 hereof, Lessee, at its expense, shall return the Equipment in good
repair, ordinary wear and tear resulting from proper use thereof alone expected,
by delivering it, packed and ready for shipment, to such place or carrier as
Lessor may specify.
14. RENEWAL. At the expiration of the term set forth in each Schedule, Lessee
shall return the Equipment subject to said Schedule in accordance with Paragraph
13 hereof At Lessor's option, this Lease, with respect to each Schedule, may be
continued on a month-to-month basis until 30 days after Lessee returns the
Equipment subject to the Schedule to Lessor. In the event that the Lease, with
respect to a Schedule, is so
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continued, Lessee shall pay to Lessor rentals in the same periodic amounts as
indicated under "Rental" on the Schedule.
15. LOSS AND DAMAGE. Lessee shall bear the entire risk of loss, theft, damage or
destruction of the Equipment from any cause whatsoever, and no loss, theft,
damage or destruction of the Equipment shall relieve Lessee of the obligation to
pay rent or to comply with any other obligation under this Lease.
In the event of damage to any item of Equipment, Lessee shall immediately place
the same in good repair at Lessee's expense. If Lessor determines that any item
of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall
at Lessee's option do one of the following:
(a) Replace the same with like Equipment in good repair; acceptable to
Lessor;
or
(b) Pay Lessor in cash the following: (i) all amounts due by Lessee to
Lessor with respect to all affected Schedules up to the date of the loss; (ii)
the unpaid balance of the total rent for the remaining term of the affected
Schedules attributable to said item, reduced to present value at a discount rate
of 9% as of the date of the loss; and (iii) the Lessor's estimate as of the time
this Lease was entered into of Lessor's residual interest in the Equipment,
discounted to present value at a discount rate of 9(degree)/. as of the date of
the loss. Upon Lessor's receipt of payment as set forth above, Lessee shall be
entitled to the Equipment, without any warranties. If insurance proceeds are
used to fully comply with this subparagraph, the balance of any such proceeds
shall go to Lessee to compensate for loss of use of the Equipment for the
remaining term of the Lease.
16. INSURANCE; LIENS; TAXES. Lessee shall provide and maintain insurance against
loss, theft, damage or destruction of the Equipment in an amount not less than
the full replacement value of the Equipment, with loss payable to the Lessor.
Lessee shall also provide and rnaintain comprehensive general all-risk liability
insurance, including but not limited to product liability coverage, insuring
Lessor and Lessee wilh a severability of interest endorsement or its equivalent,
against any and all loss or liability for damages either to persons or property
or otherwise, which might result from or happen in connection with the
condition, use or operation of the Equipment, with such limits and with an
insurer as are satisfactory to Lessor. Each policy shall expressly provide that
said insurance as to Lessor and its assigns shall not be invalidated by any act,
omission or neglect of Lessee and cannot be canceled without 30 days written
notice to Lessor. As to each policy, Lessee shall furnish to Lessor a
certificate of insurance from the insurer, which certificate shall evidence the
insurance coverage required by this Paragraph and shall designate Lessor as loss
payee and/or additional insured. Lessor shall have no obligation to ascertain
the existence or adequacy of insurance, or to provide any insurance coverage for
the Equipment or for Lessee's benefit.
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Lessee shall keep the Equipment free and clear of all levies, liens and
encumbrances. Lessee shall pay all charges and taxes (local, slate and federal)
which may now or hereafter be imposed upon the ownership, leasing, rental, sale,
purchase, possession or use of the Equipment excluding, however, all taxes on or
measured by Lessor's net income.
If Lessee fails to procure or maintain said insurance or to pay said
charges or taxes, Lessor shall have the right, but shall not be obligated, to
effect such insurance, or pay such charges or taxes. In that event, Lessor shall
notify Lessee of such payment and Lessee shall repay to Lessor the cost thereof
within 15 days after such notice is mailed to Lessee.
17. INDEMNITY. Lessee shall indemnify Lessor against any claims, actions,
damages or liabilities, including all attorney fees, arising aut of or connected
with the Equipment, without limitation. Such indemnification shall survive the
expiration, cancellation or termination of this Lease. Lessee waives any
immunity Lessee may have under any industrial insurance act with regard to
indemnification of Lessor.
18. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all the rights but
none of the obligations of Lessor under this Lease. Lessee shall recognize and
hereby consents to any assignment of this Lease by Lessor, and Lessee shall not
assert against the assignee any defense, counterclaim or set-off that Lessee may
have against Lessor. Subject to the foregoing, this Lease inures to the benefit
of and is binding upon the heirs, devisees, personal representatives, survivors,
successors in interest and assigns of the parties hereto.
19. SERVICE CHARGES; INTEREST. If Lessee shall fail to make any payment required
by this Lease within 10 days of the due date thereof, Lessee shall pay to Lessor
a service charge of 10% of the amount due, provided, however, that not more than
one such service charge shall be made on any delinquent payment regardless of
the length of delinquency. In addition, Lessee shall pay to Lessor any actual
additional expenses incurred by Lessor in collection efforts, including but not
limited to long-distance telephone charges and travel expenses.
Further, Lessee shall pay to Lessor interest on any delinquent payment
or amount due under this Lease from the due date thereof until paid, at the
lesser of the maximum rate of interest allowed by law or 18% per annum.
20. TIME OF ESSENCE. Time is of the essence of this Lease, and this provision
shall not bc impliedly waived by the acceptance on occasion of late or defective
performance.
21. DEFAULT. Lessee shall be in default of this Lease if:
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(a) Lessee shall fail to make any payment due under the terms of this
Lease for a period of 10 days from the due date thereof; or
(b) Lessee shall fail to observe, keep or perform any other provision
of this Lease, and such failure shall continue for a period of 10 days; or
(c) Lessee has made any misleading or false statement in connection
with application for or performance of this Lease; or
(d) The Equipment or any part thereof shall be subject to any lien,
levy, seizure, assignment, transfer, bulk transfer, encumbrance, application,
attachment, execution, sublease, or sale without prior written consent of
Lessor, or if Lessee shall abandon the Equipment or permit any other entity or
person to use the Equipment without the prior written consent of Lessor, or
(e) Lessee dies or ceases to exist; or
(f) Lessee defaults on any other agreement it has with Lessor; or
(g) Any guarantor of this Lease defaults on any obligation to Lessor,
or any to the above-listed events of default occur with respect to any
guarantor, or any such guarantor files or has filed against it a petition under
the bankruptcy laws.
(h) Lessee ceases doing business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to W
its debts as they become due, files a voluntary petition in bankruptcy, is
adjudicated a bankrupt or an insolvent, files a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar arrangement under any present or future statute, law or regulation or
files an answer admitting the material allegations of a petition filed against
it in any such proceeding, consents to or acquiesces in the appointment of a
trustee, receiver, or liquidator of it or of all or any substantial part of its
assets or properties, or if it or its shareholders shall take any action looking
to its dissolution or liquidation.
22. REMEDIES. If Lessee is in default, Lessor, with or without notice to Lessee,
shall have the right to exercise any one or more of the following remedies,
concurrently or separately and without any election of remedies being deemed to
have been made:
(a) Lessor may enter upon Lessee's premises and without any court order
or other process of law may repossess and remove the Equipment, or render the
Equipment unusable without removal, either with or without notice to Lessee,
Lessee hereby waives any trespass or right of action for damages by reason of
such entry, removal or disabling. Any such repossession shall not constitute a
termination of this Lease;
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(b) Lessor may require Lessee, at its expense, to return the equipment
in good repair, ordinary wear and tear resulting from proper use thereof alone
excepted, by delivering it, packed and ready for shipment, to such place or
carrier as Lessor may specify;
(c) Lessor may cancel or terminate this Lease and may retain any and
all prior payments paid by Lessee;
(d) Lessor may declare all sums due and to become due under this Lease
immediately due and payable, including as to any or all items of Equipment,
without notice or demand to Lessee;
(e) Lessor may re-lease the Equipment to any third party, without
notice to Lessee, upon such terms and conditions as Lessor alone shall
determine, or may sell the Equipment without notice to Lessee, at private or
public sale, at which sale Lessor may be the purchaser;
(f) Lessor may xxx for and recover from Lessee the sum of all unpaid
rents and other payments due under this Lease then accrued, plus all accelerated
future payments due under this Lease, reduced to their present value using a
discount rate of 9%, as of the date of default, plus Lessor's estimate at the
time this Lease was entered into of Lessor's residual interest in the Equipment,
reduced to present value at a discount rate of 9%, as of the date of default,
less the net proceeds of disposition, if any, of the Equipment;
(g) To pursue any other remedy available at law, by statute or in
equity.
No right or remedy conferred upon or reserved to Lessor is exclusive of any
other right or remedy herein, or by law or by equity provided or permitted, but
each shall be cumulative of every other right or remedy given herein or now or
hereafter existing by law or equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time. No single or partial
exercise by Lessor of any right or remedy hereunder shall preclude any other or
further exercise of any other right or remedy.
23. MULTIPLE LESSEES. Lessee and each of them are jointly and severally
responsible and liable to Lessor under this Lease. Lessor may, with the consent
of any one of the Lessees hereunder, modify, extend or change any of the terms
hereof without consent or knowledge of the others, without in any way releasing,
waiving or impairing any right granted to Lessor against the others.
24. EXPENSE OF ENFORCEMENT. In the event of any legal action with respect to
this Lease, the prevailing party in any such action shall be entitled to
reasonable attorney fees, including attorney fees incurred at the trial level,
including action in bankruptcy
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court, on appeal or review, or incurred without action, suits or proceedings,
together with all costs and expenses incurred in pursuit thereof.
25. MISCELLANEOUS.
(1) LESSEE HEREBY ACKNOWLEDGES THAT THIS LEASE IS NONCANCELABLE FOR THE
ORIGINAL RENTAL TERM SET FORTH IN EACH SCHEDULE.
(2) LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLER NOR
ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLER IS AN AGENT OF LESSOR NO
BROKER OR SUPPLER, NOR ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLER IS
AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE, AND NO
REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY A BROKER OR SUPPLER OR
ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLER SHALL IN ANY WAY AFFECT
LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM LESSEE'S OBLIGATIONS SET FORTH
IN THIS LEASE.
26. SEVERABILITY. This Lease is intended to constitute a valid and enforceable
legal instrument. In the event any provision hereof is declared invalid, such
provision will be deemed severable from the remaining provisions of this Lease,
all of which will remain in full force and effect.
27. ENTIRE AGREEMENT; WAIVER. This instrument and the Schedules executed by
Lessor and Lessee constitute the entire agreement between Lessor and Lessee with
respect to the Equipment and the subject matter of this Lease. No provision of
this Lease shall be modified unless in writing signed by an authorized
representative of Lessor. Waiver by Lessor of any provision hereof in one
instance shall not constitute a waiver of any other instance.
Lessee initials__________
28. CHOICE OF LAW; JURISDICTION. This Lease shall not be effective until signed
by Lessor at its principal place of business listed above. This Lease shall be
considered to have been made in the state of Lessor's principal place of
business and shall be interpreted in accordance with the laws and regulations of
that state.
Lessee agrees to Jurisdiction in the state of Lessor's principal place of
business in any action, suit or proceeding arising out of this Lease, and
concedes that it, and each of them, transacted business in the said state by
entering into this Lease. In the event of legal action to enforce this Lease,
Lessee agrees that venue may be laid in county of Lessor's principal place of
business.
Lessee initials__________
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LESSEE: VISUAL DATA CORPORATION / LESSOR: XXXXXXX CAPITAL
HOTEL VIEW CORPORATION
AS CO-LESSEES
/S/ XXXXX XXXXXX Date 11/08/96 /S/ X. XXXXXXXXX Date 11/08/96
----------------------- -------- ---------------- --------
Xxxxx Xxxxxx, President
_____________________ Date _____________
_____________________ Date _____________
_____________________ Date _____________
_____________________ Date _____________
Sworn and subscribed before me this 8th day
of November 1996 by Xxxxx X. Xxxxxx, to me
personally known.
/S/ XXXXXX X. XXXXXX
-------------------------
Xxxxxx X. Xxxxxx
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