MASTER LEASE AGREEMENT
This Lease Agreement is made the 6th day of October, 1989 by and between
Lessor: Lessee:
American Finance Group Westinghouse Electric Corporation
Exchange Place Science & Technology Center
Boston, MA 02109 Building 701 - 508
P. 0. Box 830
Pittsburgh, PA 15230
In consideration of the exchange of good and valuable consideration, the Parties
hereto, intending to be legally bound, do hereby agree as follows:
LEASE:
Subject to the terms and conditions hereinafter set forth Lessor shall lease to
Lessee and Lessee shall hire from Lessor, the units of personal property
(hereinafter collectively referred to as the ("Equipment" and individually as a
("Unit") described in the Schedule(s) or Purchase Order(s) of Equipment
attached hereto. Any reference to "Lease" shall mean this Lease Agreement, the
Schedule(s) of Equipment and all additional Schedule(s), Attachment(s), Purchase
Order(s) and Supplement(s) hereto and thereto, if any.
No Equipment shall be provided for use to Lessee by virtue of this Agreement
alone. Lessee shall issue a Purchase Order to Lessor designating the Equipment
type, monthly rental charge, required delivery date, invoicing and delivery
addresses, the initial term of the Lease and any other special terms and
conditions not provided for in the Equipment Lease Agreement. Such Purchase
Order shall incorporate this Agreement specifically by reference.
DEFINITIONS:
(a) "Installation Date" shall mean the date designated as such in the Schedule
of Equipment. The Installation Date shall mean the date the Equipment is
installed at the designated location, ready for use, acceptable for
maintenance by the Maintenance Vendor and accepted by Lessee which
acceptance shall not be unnecessarily delayed except for any reasons not
within the exclusive control of the Lessee.
(b) "Commencement Date" shall mean as to any Unit designated on any Schedule
of Equipment, where the Installation Date for such Unit falls on the first
day of the month, that date, or where it falls on any other date, the
first day of the month following such Installation Date.
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TERM OF LEASE:
(a) The term of this Lease as to any Unit designated on any Schedule of
Equipment or Purchase Order, shall commence on the Commencement Date for
such Unit, and shall continue for such number of months thereafter as
specified in the appropriate Schedule(s) of Equipment or Purchase Order(s)
("The Initial Term").
(b) This Lease may be terminated without cause at the expiration of the
Initial Term, or any time thereafter, by written notice of termination
given by either party to the other not less than three (3) months prior to
the date of termination designated in such notice which date shall be the
last day of a calendar month. At the conclusion of the Initial Term any
Unit designated on the respective schedule(s) of Equipment or Purchase
Order(s) not specifically terminated will continue on a month-to-month
rental until terminated pursuant to the previous sentence. Lessor may not
terminate this Lease provided that Lessee is actively using, maintaining,
storing, possessing or operating the Equipment and is not in default
hereunder.
RENTAL:
(a) As to all Equipment, the rental payable by Lessee to Lessor will be as set
forth in the applicable Schedule(s) of Equipment or Purchase Order(s).
Rental shall begin on the Installation Date and shall be due and payable
in advance on the first day of each month during the term hereof. If the
Installation Date does not fall on the first day of a month, the first
rental payment shall be the pro rata portion of the rental for that
portion of the month during which the Equipment is installed, calculated
on a 30-day month basis, and shall be due and payable on such Installation
Date.
(b) Any payment past due hereunder for more than thirty (30) days shall be
payable on demand with interest computed from the day payment was due at
the rate of 1.5% per month, or if such rate shall exceed the maximum rate
of interest allowed by law, then at such maximum rate.
TAXES:
Lessee will pay any sales, use, privilege, property or excise taxes, however
designated, excluding any tax on Lessor's income or any franchise tax. Lessor
shall not pay and/or bill to Lessee any taxes for which Lessee is responsible
without first giving Lessee an opportunity to review and/or contest the tax
before payment is made. All expenses, charges and penalties associated with such
review or contest shall be Lessee's responsibility.
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Lessor shall accept full and exclusive liability for the payment of any and all
contributions or taxes for unemployment insurance, old age or retirement
benefits, pensions, annuities, or other similar benefits for employees of
Lessor; shall accept full and exclusive liability for payment by all of its
subcontractors and supplies of any and all such contributions or taxes; shall
comply with all applicable laws and regulations respecting the assumption of
liability for such taxes or contributions; and shall reimburse Lessee for any
such taxes or contributions which Lessee may be required to pay.
NET LEASE:
Except as provided herein to the contrary, this Lease is a net lease. Lessee's
agreement to pay all obligations hereunder, including but not limited to rental
installments, shall be absolute and unconditional.
TRANSPORTATION:
The Equipment will be delivered to Lessee at such place as Lessee specifies.
Until such time as the Equipment is placed on Lessee's loading dock, the
machines will be at the risk of the Lessor. Lessee will be responsible for all
costs of any nature including, but not limited to, transportation, local
drayage, rigging, packing, insurance, and installation and disconnect charges
arising out of or in connection with or related to this Lease or the Equipment
both on delivery to Lessee and redelivery to Lessor. Lessor shall not be liable
to Lessee for delays in delivery beyond its reasonable control. Upon termination
of the Agreement, Lessee at its own risk, will return the Equipment, without
undue delay, to Lessor in the same condition as when delivered, ordinary wear
and tear excepted. In the event Lessor has purchased and leased-back Equipment
already installed on Lessee premises, Lessee will pay for disconnection of
Equipment and have Equipment available for return to Lessor at Lessee's loading
dock. While on Lessee's loading dock, the Equipment will be at the risk of the
Lessee provided that Equipment is removed from Lessee's loading dock within
thirty (30) days from receipt of notification to Lessor of availability of
Equipment. Lessee will pay for return transportation (lowest cost safe ground
transportation) to Lessor. The return transportation cost is not to exceed the
standard published rates for the shortest of the original distance from Lessor
to Lessee, had Lessor supplied the Equipment, or from the manufacturer to
Lessee, should the manufacturer supply the Equipment, or from the location from
which the Equipment had actually been shipped to Lessee. Irrespective of any
other provision hereof, Lessee will bear the risk of damage from fire, the
elements or otherwise until delivery of the Equipment to Lessor at Lessee's
loading dock. At such time as they are placed on Lessor's loading dock, the
Equipment will be at the risk of the Lessor.
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ELECTRIC POWER:
Lessee, at its own expense, will provide the required electric current and
suitable place of installation for the Equipment with all appropriate facilities
as specified by the Manufacturer.
SUPPLIES:
Any Equipment, cards, disks, tape, paper or other items and supplies not
specified in the Equipment Schedule which are used on or in, consumed or
required by the Equipment will be provided by Lessee at its own expense.
MAINTENANCE AND REPAIRS:
During the term of this Lease, Lessee shall, at its sole expense, keep the
Equipment in good working order and condition and make all necessary adjustments
and repairs thereto and replacements thereof. Lessee shall not use or permit the
Equipment to be used for any purpose for which the Equipment is not designed or
intended. Without limiting the generality of the foregoing, and except as the
same may be covered by warranties issued by the manufacturer on any of the
Equipment, Lessee shall, during the term of this Lease, at its expense, maintain
in full force and effect a contract with the manufacturer or a Maintenance
Contractor (the "Maintenance Organization") covering maintenance of the
Equipment. Lessee shall furnish Lessor with a copy of such maintenance contract
or warranty upon written request. Lessee may choose to maintain the Equipment in
a manner other than a maintenance contract, i.e., time-and-material repair
authorization. Lessee warrants that, any Equipment, except as precluded by
reasonable wear and tear, leased hereunder, upon return to Lessor, will be
eligible for the manufacturer's maintenance or Lessee will cause (at its own
expense) such repairs and/or adjustments to be made to the Equipment to make it
so eligible.
OWNERSHIP, ACCESS, ENCUMBRANCES, DAMAGE:
(a) The Equipment shall, at all times, be the sole and exclusive property of
Lessor. Lessee shall have no right or property interest therein, except
for the right to use the Machines in the normal operation of it's business
at the Location of Installation, or as otherwise provided herein. The
Equipment is and shall remain personal property even if installed in or
attached to real property. Lessor shall be permitted to display notice of
its ownership on each of the Machines by means of a suitable stencil,
label or plaque affixed thereto.
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Lessee shall cause the Equipment to be operated in accordance with the
applicable vendor's or manufacturer's manual of instructions by competent
and qualified personnel.
(b) Upon reasonable written notice to Lessee, Lessor or its agents shall
have, subject to National and Lessee's Security, free access to the
Equipment at reasonable times for the purpose of inspection and for any
other purpose pursuant to this Lease.
(c) Lessee shall keep this Lease and the Equipment free and clear of all liens
and encumbrances (except those created by Lessor, or anyone acting by,
through or under Lessee) and Lessee shall not sublease any of the
Equipment without the prior written consent of Lessor, which consent will
not be unreasonably withheld, except no consent shall be necessary for a
sublease to any of Lessee's subsidiaries or corporate affiliates, or to
the purchaser of Lessee's business using such Equipment, but Lessee shall
give Lessor notice of any change of location of the Equipment in the event
that it is moved. No permitted sublease will relieve Lessee of any of its
obligations hereunder.
(d) Lessee shall promptly notify Lessor of all details concerning any damage
to, or loss of, the Equipment arising out of any event or occurrence
whatsoever, including but not limited to, the alleged or apparent improper
manufacture, functioning or operation of the Equipment.
QUIET ENJOYMENT:
Lessor warrants that it has good title to the Equipment and/or the full right to
lease same to Lessee. Notwithstanding any assignment by Lessor, Lessee shall
have the uninterrupted right to the quiet possession and exclusive unlimited
usage of the Equipment subject to and in accordance with the provisions of this
Lease provided that Lessee shall not be in default hereunder.
INSURANCE:
During the term of this Lease, Lessee shall at its sole cost and expense
maintain in full force and effect "all risk" extended coverage fire and casualty
insurance on the Equipment with policy limits of at least the remaining
replacement value of the Equipment, naming Lessor as an additional insured.
Notwithstanding the foregoing provisions, Lessor acknowledges that Lessee may be
self-insured for purposes of this Agreement. Lessee acknowledges and agrees that
such self-insurance shall in no way limit or relieve Lessee of its obligations
herein.
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DAMAGE: DESTRUCTION OR LOSS:
(a) From and after any Installation Date, and until redelivery to Lessor,
Lessee shall be responsible for and hereby assumes the entire risk of
loss, damage or destruction with respect to the installed Units resulting
from any cause whatsoever other than acts or omissions of Lessor.
(b) In the event any Units are materially damaged, Lessee shall promptly
notify Lessor. If such damaged Unit can be repaired Lessee shall promptly
effect the same at its own cost and expense, unless caused by Lessor's
acts or omissions.
(c) Unless caused by Lessor's acts or omissions, if any Unit shall be damaged
beyond repair or is lost, stolen, destroyed or, in the opinion of the
manufacturer or the Maintenance Organization, be rendered permanently
unusable or not economically repairable (any such occurrence hereinafter
referred to as an "Event of Loss"), then this Lease shall continue in full
force, and effect without any abatement of rental. Lessee shall promptly
notify Lessor of the same and, at Lessee's expense, promptly replace the
affected Unit with a like Unit, in good condition and otherwise acceptable
to Lessor, and having a fair market value equal to that of the replaced
Unit prior to its being so affected, free and clear of any liens. Any such
replacement Unit shall be the property of Lessor and for the purpose of
this Lease be deemed to be the Unit which it replaced and thereupon shall
be subject to the terms of this Lease.
ENFORCEMENT OF WARRANTIES:
Lessor hereby assigns to Lessee during the term of this Lease, so long as Lessee
is not in default hereunder, whatever claims and rights including warranty of
the Unit(s) which Lessor may have against the manufacturer(s) and
subcontractor(s) of the manufacturer or any vendors. Lessee will not assert any
claim of any nature whatsoever against Lessor based on any of the foregoing
matters. To the extent that any claims or rights of Lessor to the Unit(s) will
not be assigned or made available to Lessee, Lessor will use reasonable efforts
at Lessee's cost to enforce such claims or rights, and Lessor agrees that it
will not take any action to prejudice any warranties which Lessor may have
against the manufacturer(s), subcontractors of the manufacturer(s), or any
vendors with respect to the Unit(s) covered by this Lease.
If any such warranty shall be enforceable by Lessee in its own name, Lessee
shall, upon receipt of written request from Lessor, so long as this Agreement is
in force, take all reasonable action requested by Lessor to enforce any such
warranty which is enforceable by Lessee in its own name: provided, however, that
Lessee shall not be obligated to commence any suit or action or resort to
litigation to enforce any such warranty unless Lessor shall pay all expenses in
connection therewith.
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WARRANTIES, DISCLAIMERS:
THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND
OF FITNESS FOR ANY PARTICULAR PURPOSE. LESSEE ACKNOWLEDGES THAT IT IS NOT
RELYING ON LESSOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR
ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH ARE NOT CONTAINED
IN THIS AGREEMENT. LESSOR SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
PERFORMANCE OF THE EQUIPMENT OR ITS USE, AND SHALL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THE LESSEE'S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER SO LONG AS ANY
SUCH FAILURE DOES NOT ARISE FROM THE ACTS OR OMISSIONS OF LESSOR.
INDEMNIFICATION:
Lessee hereby agrees to assume liability for, and does hereby agree to
indemnify, protect, save and keep harmless Lessor and its respective successors,
assigns, legal representatives, agents and servants, from and against, any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses or disbursements (including reasonable legal fees and
expenses) of any kind and nature whatsoever which may be imposed on, incurred by
or asserted against Lessor or any of its respective successors, assigns, legal
representatives, agents and servants (whether or not also indemnified against by
the manufacturer(s) or any other person), in any way relating to or arising out
of Lessee's acts or omissions or possession and use of the Equipment or any
accidents in connection therewith; provided, however, that Lessee shall not be
required to indemnify Lessor or its respective successors, assigns, legal
representatives, agents and servants, for loss or liability in respect to any
item of Equipment arising from acts or events which occur after possession of
such item of Equipment has been returned to Lessor or loss or liability
resulting from the negligence or active willful misconduct of the party
otherwise to be indemnified hereunder. Lessee agrees that Lessor shall not be
liable to Lessee for any liability, claim, loss, damage or expense of any kind
or nature arising in strict liability or caused directly or indirectly by the
inadequacy of the Equipment for any purpose or any deficiency or defect therein
or the use or maintenance thereof or any repairs, servicing or adjustments
thereto or any delay in providing or a failure to provide any thereof or any
interruption or loss of service or use thereof or any loss of business, unless
caused by Lessor's acts or omissions.
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ALTERATIONS AND ATTACHMENTS:
Upon prior written notice to Lessor, Lessee may, at its own expense, make
alterations in or add attachments to the Equipment, provided such alterations or
attachments do not interfere with the normal and satisfactory operation or
maintenance of the Equipment or with Lessee's ability to obtain and maintain the
maintenance agreement as required herein. The manufacturer or other organization
selected by Lessee and approved in writing by Lessor to maintain the Equipment
("Maintenance Organization") may incorporate engineering changes or make
temporary alterations and attachments. Upon termination, at the option of
Lessee, Lessee shall, at its own expense, remove such alterations and
attachments (except engineering changes) and restore the Equipment to its
original condition, reasonable wear and tear excepted. All consents under this
provision shall not be unreasonably withheld.
DEFAULT AND REMEDIES:
(a) The following shall be deemed events of default with respect to an
Equipment Schedule or Purchase Order written pursuant to this Lease: (i)
Lessee fails to pay any installment or rent or other charge within twenty
(20) days after receipt of written notice of a delinquent payment; (ii)
Lessee attempts to remove, sell, transfer, assign, encumber, or sublet any
of the Equipment, except as expressly permitted herein; (iii) Lessee fails
to observe or perform any of the other obligations required to be observed
or performed by Lessee hereunder within thirty (30) days after receipt of
written notice of such failure, or, if more than thirty (30) days are
reasonably required, Lessee fails to commence to diligently perform such
obligations within such thirty (30) days; (iv) Lessee ceases doing
business as a going concern; makes an assignment for the benefit of
creditors; admits in writing its inability to pay 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 to effect its dissolution or liquidation; (v) within
sixty (60) days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation such proceedings shall not have been dismissed, or if within
sixty (60) days after the appointment without Lessee's consent or
acquiescence of any trustee, receiver or liquidator of it or of all or any
substantial part of its assets and properties, such appointment shall not
be vacated.
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(b) If any of the foregoing events of default, (but only to the extent of the
defaulting Equipment Schedule or Purchase Order), shall take place, Lessor
may at its option do any or all of the following: (i) by notice to Lessee,
terminate this Lease as to all or any of the Equipment; (ii) whether or
not this Lease is terminated as to all or any of the Equipment, take
possession of any or all of the Equipment wherever situated; (iii) sell,
dispose of, hold, use or lease any Equipment as Lessor in its sole
discretion may decide, without any duty to account to Lessee, except as
may be required by applicable law; (iv) by notice to Lessee, declare
immediately due and payable all monies to be paid by Lessee during the
Initial Term or, if the Initial Term of this Lease has then expired,
declare immediately due and payable all monies to be paid during any
additional Lease term then in effect, the Lessee shall thereupon be
obligated to pay such monies (discounted to the date of payment at the
actual rate at which the defaulted Equipment Schedule was discounted or,
if not discounted the interest rate implied in the Schedule) to Lessor
immediately. Lessee shall in any event remain fully liable for reasonable
damages as provided by law and for all costs and expenses incurred by
Lessor on account of such default including all court costs and reasonable
attorney's fees.
(c) The waiver by Lessor or Lessee of any breach of any obligation of Lessee
shall not be deemed a waiver of such obligation or of any subsequent
breach of the same or any other obligation. The subsequent acceptance of
rental payments hereunder by Lessor shall not be deemed a waiver of any
prior existing breach at the time of acceptance of such rental payments.
The rights afforded Lessor under this paragraph shall not be deemed to be
exclusive, but shall be in addition to any rights or remedies provided by
law.
(d) In the event Lessee shall fail to perform any of its obligations
hereunder, then Lessor, in addition to all of its rights and remedies
hereunder, may perform the same at the cost and expense of Lessee, but
shall not be obligated to do so. In any such event, Lessee shall promptly
upon written demand reimburse Lessor for any such costs and expenses
incurred by Lessor together with interest computed at the rate of 1.5% per
month until the date such reimbursement is made; provided, however, that
if such rate exceeds the maximum rate of interest allowed by applicable
law, then said interest shall be computed at such maximum rate.
ASSIGNMENT:
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and (to the extent specified in any
assignment) assigns. Lessee, however shall not assign this Agreement or sublet
any Equipment without first obtaining the prior written consent of Lessor, which
consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, no consent need be sought for an
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assignment to Lessee's corporate, parent, subsidiary, or affiliate, or the
purchaser of the business located where the Equipment is installed. Lessee
acknowledges that the terms and conditions of this Agreement have been fixed in
anticipation of the possible assignment of Lessor's rights under this Agreement
and in and to the Equipment as collateral security or otherwise to one or more
third party(s) ("Assignee" herein) which will rely upon and be entitled to the
benefit of the provisions of this Agreement. Lessee agrees with Lessor and any
such Assignee to recognize in writing any such assignment within fifteen (15)
days after receipt of written notice thereof and to pay thereafter all sums due
to Lessor hereunder directly to such Assignee as directed by it notwithstanding
any defense, set-off or counterclaim whatsoever (whether arising from a breach
of this Agreement) that Lessee may from time to time have against Lessor.
Lessee, nevertheless, reserves its rights to have recourse directly against
Lessor on account of any such defense, set-off or counterclaim. Upon such
assignment, the Assignee shall be entitled to all the rights, privileges,
indemnifications, remedies and protections afforded to Lessor under this
Agreement as if named in this Agreement wherever Lessor is named herein. Any
such assignment shall be subject to Lessee's rights to the use and possession of
the Equipment so long as Lessee is not in default hereunder.
GENERAL:
(a) This Lease shall not be binding upon Lessor unless signed on its behalf by
a duly authorized officer. This Lease shall be deemed to have been made
and delivered in the Commonwealth of Pennsylvania and shall be governed in
all respects by the laws of such Commonwealth.
(b) This Lease constitutes the entire agreement between Lessee and Lessor with
respect to the Equipment referenced in the Machine Schedules or Purchase
Orders written pursuant to this Lease and no covenant, condition or other
term or provision hereof may be waived or modified orally.
(c) All notices, consents or requests desired or required to be given
hereunder may be given electronically and promptly thereafter shall be
confirmed in writing and shall be delivered in person or sent by
registered or certified mail, return receipt requested, postage prepaid,
or overnite courier to the address of the other party set forth on the
first page hereof or to such other address as such party shall have
designated by proper notice.
(d) This Lease shall be binding upon and inure to the benefit of parties
hereto and their respective successors and assigns (as may be permitted
hereunder).
(e) Section headings are for convenience only and shall not be construed as
part of this Lease.
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(f) Wherever the approval or consent of either party is required hereunder,
such approval or consent shall not be unreasonably withheld or delayed.
(g) In the event of any conflict between the terms of this Lease and the terms
of any Equipment Schedule(s), Attachment(s) or Purchase Order(s) hereto or
thereto, the terms of such Schedule(s), Attachment(s) or Purchase Order(s)
will prevail. The preprinted terms and conditions appearing on the reverse
side of the Purchase Order shall not apply to this Agreement.
(h) There shall be only one original of this Lease including any Equipment
Schedule(s), Attachment(s) or Purchase Order(s). Such documents shall be
marked "original" and all other counterpart documents will be marked
"duplicate original." All such markings shall be initialed by Lessor and
Lessee as follows:
"ORIGINAL"
Lessor /s/ [Illegible] Lessee /s/ [Illegible]
--------------- ---------------
"DUPLICATE ORIGINAL"
Lessor Lessee
--------------- ---------------
To the extent that a security interest is created by Lessor utilizing these
Lease documents, then such security interest shall be perfected utilizing
documents marked "original" only.
Accepted by: Accepted by:
AMERICAN FINANCE GROUP WESTINGHOUSE ELECTRIC CORPORATION
(LESSOR)
By: /s/ [Illegible] By: /s/ J.A. Pickett
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Title: Vice President Title: J.A. Pickett, Manager
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Computer Systems Acquisition
Date: October 6, 1989 Date: October 6, 1989
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