Exhibit 10.23
FINANCIAL GUARANTY
FACULTATIVE REINSURANCE AGREEMENT
The agreement (the "Agreement") is made between MBIA Insurance Corporation,
a New York stock insurance corporation (the "Company"), and RAM Reinsurance
Company Ltd. (the "Reinsurer").
In consideration of the mutual covenants and upon the terms and conditions
set forth below, the parties hereto agree as follows:
ARTICLE I
COVER
The Company hereby cedes facultative reinsurance to the Reinsurer and the
Reinsurer hereby accepts facultative reinsurance from the Company as set forth
in each Reinsurance Memorandum executed between the Company and the Reinsurer
from time to time, each such Reinsurance Memorandum being considered to be
attached to and incorporated with this Agreement. Each such Reinsurance
Memorandum shall be subject to the terms and conditions of the Agreement, and
shall specify the share of the interests and liabilities of the Company assumed
by respect of the Policy covered by that Reinsurance Memorandum, the Reinsurance
Premium paid, and the Commission allowed; provided, however, that to the extent
the specific provisions of any Reinsurance Memorandum conflict with the terms of
this Agreement, the terms of such Reinsurance Memorandum shall govern. The
Reinsurer's liability shall attach on the date set forth in the Reinsurance
Memorandum (the "Effective Date"), and shall continue unless terminated in
accordance with ARTICLE XXVI - COMMENCEMENT AND TERMINATION.
ARTICLE II
BUSINESS COVERED
The policies ceded under this Agreement as set forth in each Reinsurance
Memorandum incorporated hereto are surety or financial guaranty insurance
policies covering financial loss by reason of non-payment of principal and
interest when due with respect to Municipal Bonds and/or Municipal Notes and/or
securitized and/or structured finance obligations, as applicable.
ARTICLE III
LIMIT
A. Except as set forth in a particular Reinsurance Memorandum, the limit of
the Reinsurer's liability for loss under the Reinsurance Memorandum attached to
this Agreement shall be the Reinsurer's share of the Debt Service, being
principal par amount plus allocable interest, set forth in the applicable
Reinsurance Memorandum.
B. In addition, except as set forth in a particular Reinsurance Memorandum,
the Reinsurer shall be liable for its Proportionate Share of any Allocated Loss
Adjustment Expenses paid by the Company at the times and in the manner specified
in ARTICLE X - ACCOUNTS.
The terms "Proportionate Share" with respect to a particular loss shall mean the
ratio of the amount of the loss covered by the Reinsurer to the aggregate amount
of the loss. "Allocated Loss Adjustment Expenses" as used in this Agreement,
means all court costs, interest upon judgments, and mitigation, investigation,
adjustment, and legal expenses chargeable to: (I) the mitigation, investigation,
negotiation, settlement of or defense against loss, (ii) loss prevention,
mitigation or investigation in respect of Policies as to which the Company has
posted a loss reserve, (iii) the investigation and workout of a potential loss,
or (iv) the protection, perfection and exercise of any subrogation or salvage or
reimbursement rights or security interests with respect to a Policy. Allocated
Loss Adjustment Expenses shall exclude all office expenses and salaries of
officials and employees of the Company.
ARTICLE IV
EXCLUSIONS
This Agreement does not apply to and specifically excludes the following:
1. liability of the Company, arising by contract, operation of law, or
otherwise, from its participation or membership, whether voluntary or
involuntary, in any Insolvency Fund. "Insolvency Fund", as used in this
Agreement, shall mean any guaranty fund, insolvency fund, plan, pool,
association, fund or other arrangement howsoever denominated, established or
governed, which provides for any assessment of or payment of any claim, debt,
charge, fee or other obligation of an insurer, or its successors or assigns,
which has been declared by the competent authority to be insolvent, of which is
otherwise deemed unable to meet any claim, debt, charge, fee or other obligation
in whole or in part; or,
2. unallocated loss adjustment expenses of the Company including all office
expenses and salaries of officials and employees of the Company.
ARTICLE V
REINSURANCE FOLLOWS ORIGINAL POLICIES
Each Reinsurance Memorandum attached to this Agreement is subject in all
respects to the terms and conditions of the Policy to which it relates, the true
intent of the Agreement being that the Reinsurer shall, in the amount specified
in the Reinsurer Memoranda, follow the fortunes of the Company, provided,
however, that this clause shall not be construed to create in any third party
any rights under this Agreement.
ARTICLE VI
REINSURANCE PREMIUMS AND COMMISSIONS
A. The Company shall pay the Reinsurer the Reinsurance Premium set forth in the
Reinsurance Memoranda attached to this Agreement after first deducting the
Ceding Commission. Net premiums due to the Reinsurer shall be paid pursuant to
the ARTICLE X - ACCOUNTS.
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B. Unless otherwise set forth in a particular Reinsurance Memorandum, the Ceding
Commission shall be [*] of the Reinsurance Premium.
C. The Company shall pay the Reinsurer the Reinsurance Premium set forth in the
Reinsurance Memoranda attached to this Agreement after first deducting the
Ceding Commission. Net premiums due to the Reinsurer shall be paid pursuant to
the ARTICLE X - ACCOUNTS.
* Confidential treatment requested for redacted portion.
ARTICLE VII
CLAIMS
The Company shall provide notice to the Reinsurer of any potential claim
under any Policy as soon as is reasonably possible. Failure to provide such
notice shall not relieve the Reinsurer of its obligation under this Agreement
for any loss or expense resulting from the claim unless the Reinsurer has
suffered undue prejudice thereby.
ARTICLE VIII
LOSS PAYMENTS
A. The Reinsurer shall pay to the Company the Reinsurer's proportionate
share or other applicable amount, as set forth in the related Reinsurance
Memorandum as set forth in the appropriate Reinsurance Memorandum, of all losses
and Allocated Loss Adjustment Expenses for which payment is due by the Company
under the Policies so named. Losses and Allocated Loss Adjustment Expenses due
to the Company shall be paid pursuant to paragraph D of this Article and ARTICLE
X - ACCOUNTS.
B. The Company shall have complete and sole control of and direction of all
efforts to: (i) mitigate, investigate, negotiate, settle or defend a loss, (ii)
prevent, mitigate, or investigate a probable loss under Policies as to which the
Company or Reinsured has posted a loss reserve, (iii) investigate and work out a
potential toss, and (iv) protect, perfect and exercise any subrogation, salvage
or reimbursement rights or security interests with respect to any Policy and may
take any action as it may deem advisable with respect thereto. All loss
settlements by the Company, all salvage and all subrogation settlements, and all
settlements shall be final, conclusive and unconditionally binding upon the
Reinsurer.
C. The Reinsurer shall pay to the Company in same day funds the Reinsurer's
proportionate share, or other applicable amount as set forth in the related
Reinsurance Memorandum, of any loss on the later of (a) three (3) business days
following receipt of notice from the Company, or (b) the payment date. The
Reinsurer shall effect payment by wire transfer of same day funds to the party
designated by the Company in the notice. Details of the loss will be provided to
the Reinsurer by the Company promptly by fax followed by confirmation by mail or
by such other means as requested by the Reinsurer.
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D. The Reinsurer shall pay to the Company the Reinsurer's proportionate
share, or other applicable amount as set for in the related Reinsurance
Memorandum, of any Allocated Loss Adjustment Expenses by the Company at the
items and in the manner specified in ARTICLE X - ACCOUNTS.
ARTICLE IX
SALVAGE AND SUBROGATION
A. The Company shall credit the Reinsurer with its proportionate share of
any recoveries, salvage or reimbursements on account of any claims and
settlements involving Policies.
B. In the event there are any recoveries, salvage, or reimbursements
recovered subsequent to a loss settlement, it is agreed that if the expenses
incurred in obtaining salvage or other recoveries are less than the amount
recovered, if any, such expenses shall be borne by each party in the proportion
that each party benefits from the recoveries or, otherwise, the amount recovered
shall first be applied to the reimbursement of the expense of recovery and then
in proportion to the liability of each party for the loss before such recovery
had been obtained. "Expenses", as used in this ARTICLE IX - SALVAGE AND
SUBROGATION, shall exclude all office expenses and salaries of officials and
employees of the Company.
ARTICLE X
ACCOUNTS
A. Within forty-five (45) days following the end of each month in which there
has been activity, the Company shall render a net account (the "Net Account") to
the Reinsurer showing:
1. gross Reinsurance Premium;
2. Ceding Commission allowed;
3. the Reinsurer's portion of losses and Allocated Loss Adjustment
Expenses paid;
4. the Reinsurer's portion of subrogation, salvage, and other
recoveries received by the Company on losses and Allocated Loss Adjustment
Expenses under the Policies.
B. Amounts due to the Reinsurer shall be remitted by the Company at the time the
Net Account is rendered.
C. Within ten (10) days of its receipt of the Net Account, the Reinsurer shall
remit to the Company all amounts due to the Company.
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D. Within forty-five days (45) days following the end of each calendar year, the
Company shall furnish the Reinsurer any other information which the Reinsurer
may require for its annual statutory financial statements.
E. In addition to the report required by paragraph A of this ARTICLE X -
ACCOUNTS, the Company shall provide quarterly reports showing the Reinsurer's
share of all contingency, loss, loss adjustment expense, and unearned premium
reserves maintained by the Company on all in-force business covered by this
Agreement and shall provide such additional statistics as may reasonably be
required by the Reinsurer on such business.
ARTICLE XI
INSOLVENCY
A. In the event of the insolvency of the Company, the reinsurance provided by
each Reinsurance Memorandum and deemed incorporated hereby with this Agreement
shall be payable by the Reinsurer on the basis of the liability of the Company
under the Policies without diminution because of the insolvency of the Company
or because the liquidator, receiver, conservator or statutory successor of the
Company has failed to pay all or portion of any claim. The liquidator, receiver,
conservator or statutory successor of the Company shall give written notice to
the Reinsurer within a reasonable time of the pendency of a claim against the
Company under any Policy. During the pendency of such claim, the Reinsurer may
investigate such claim and interpose, at its own expense, in the proceeding
where such claim is to be adjudicated, any defense or defenses that it may deem
available to the Company or its liquidator, receiver, conservator or statutory
successor. The expense thus incurred by the Reinsurer shall be chargeable,
subject to the approval of the court, against the Company as part of the expense
of conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the Company solely as a result of the defense undertaken by
the Reinsurer.
B. The reinsurance provided by the Reinsurance Memoranda and deemed incorporated
hereby shall be payable by the Reinsurer to the Company, or to its liquidator,
receiver, conservator or statutory successor, except as provided by (i) Section
4118 (a) of the New York Insurance Law or any successor statute thereto or (ii)
except any Law local to a jurisdiction outside of the United States which is
agreed or adjudicated as controlling, or (iii) except (a) where the applicable
Reinsurance Memorandum specifically provides another payee of such reinsurance
in the event of the insolvency of the Company and (b) where the Reinsurer, with
the consent of the direct insured or insureds, has assumed the obligations of
the Company under the Policies as its direct obligations to the payees under
such Policies and in substitution for the obligations of the Company to such
payees.
ARTICLE XII
OFFSET
Each party hereto shall have, and may exercise at any time and from time to
time, the right to offset any balance or balances, whether on account of
premiums or on account of losses or otherwise, due from such party to the other
party under this Agreement or under any other reinsurance agreement heretofore
or hereafter entered into by and between them, and may offset
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the same against any balances due or to become due to the former from the latter
under the same or any other reinsurance agreement between them. The party
asserting the right of offset shall have and may exercise such right whether the
balance or balances due or to become due to such party from the other are on
account of premiums or on account of losses or otherwise and regardless of the
capacity, whether as assuming reinsurer or as ceding company, in which each
party acted under the agreement or, if more than one, the different agreements
involved. In the event of the insolvency of a party hereto, offsets shall be
allowed in accordance with the provisions of Section 7427 of the Insurance Law
of the State of New York or in accordance with a Law local to a jurisdiction
outside of the United States, which is agreed or adjudicated as controlling.
ARTICLE XIII
ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve
either party hereto from any liability which would attach to it hereunder if
such delay, omission or error had not been made, provided such delay, omission
or error is rectified as soon as possible after discovery.
ARTICLE XIV
DOCUMENTATION
The Reinsurer or its duly authorized representative shall, upon request, be
provided with copies of the relevant financial guaranty insurance policies and
all documents related thereto, subject to ARTICLE XX - CONFIDENTIALITY.
ARTICLE XV
ARBITRATION CLAUSE
A. As a condition precedent to any right of action hereunder, if any
dispute shall arise between the Company and the Reinsurer with reference to the
interpretation of the Reinsurance Memoranda attached to this Agreement or their
rights with respect to any transaction under such Reinsurance Memoranda, whether
such dispute arises before or after termination of this Agreement, such dispute,
upon the written request of either party within a reasonable time after the
dispute has risen, shall be submitted to three (3) arbitrators, one to be chosen
by each party, and the third by two (2) arbitrators so chosen. If either party
refuses or neglects to appoint an arbitrator within thirty (30) days after the
receipt of written notice from the other party requesting it to do so, the
requesting party may appoint two (2) arbitrators. If the two (2) arbitrators
fail to agree in the selection of a third arbitrator within thirty (30) days of
their appointment, each of them shall name two (2), of whom the other shall
decline one and the decision shall be made by drawing lots. All arbitrators
shall he neutral and shall be active or retired disinterested officers of
insurance or reinsurance companies or not under the control of or a former
officer of either party to this Agreement. The arbitration shall take place in
New York, New York, unless some other place is mutually agreed upon by the
Company and the Reinsurer.
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B. The claimant shall submit its pre-hearing brief within forty-five (45)
days from appointment of the third arbitrator. The respondent shall submit its
brief within forty-five (45) days thereafter and the claimant may submit a reply
brief within thirty (30) days after the filing of the respondent's brief. The
periods of time may be extended by unanimous consent in writing of the
arbitration panel (the "Panel"). The rules and procedures for pre-hearing
investigations shall be established by the Panel. To the extent any rules or
procedures necessary to conduct such arbitration are not specified by this
arbitration clause, the Commercial Arbitration Rules of the American Arbitration
Association shall be used as a guideline in fashioning such rules or procedures.
C. The Panel shall make its decision with regard to the custom and usage of
the insurance and reinsurance business. The Panel shall issue its decision in
writing based upon a hearing in which evidence may be introduced without
following the strict rules of evidence but in which cross-examination and
rebuttal shall be allowed. At such hearing, each party shall have the right to
be represented by counsel of its own choice. The Panel shall make its decision
within sixty (60) days following the termination of the hearings unless the
parties consent to an extension. The majority decision of the Panel, upon
delivery thereof to the parties, shall be final and binding upon all parties to
the proceeding.
D. Unless prohibited by applicable law, any arbitral award hereunder and
any judgment thereon shall bear interest from the date of the expiry of the
Grace Period provided in ARTICLE XVII - INTEREST at a rate provided in that
article.
E. Each party shall bear the expenses of the arbitrator appointed by it or
on its behalf and its own counsel and shall jointly and equally bear with the
other party the expenses of the third arbitrator. The remaining costs of the
arbitration proceeding shall be allocated by the Panel in their discretion.
F. The parties consent to the jurisdiction of the Supreme Court of the
State of New York, County of New York, and of the United States District Court
of the Southern District of New York, for all purposes in connection with such
arbitration, including without limitation any application to compel arbitration
or to confirm any arbitration award. The parties consent that any process or
notice of motion or other application to either of said Courts, and any paper in
connection with arbitration, may be served by certified mail, return receipt
requested, or by personal service or in such other manner as may be permissible
under the rules of the applicable court or Panel provided a reasonable time for
appearances is allowed. Service upon the Company shall be directed to the
Company, in care of the Company's General Counsel. Service upon the Reinsurer
shall be directed to Reinsurer in care of Reinsurer's General Counsel.
ARTICLE XVI
CURRENCY
All amounts payable pursuant to this Agreement under a Reinsurance
Memorandum shall be payable in the currency as reflected in that Memorandum.
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ARTICLE XVII
INTEREST
Any amounts due by either party under the attached Reinsurance Memoranda
that are outstanding forty-five (45) days after the date on which settlement is
due (the "Grace Period") shall be subject to the payment of interest by the
debtor as from the expiry of the Grace Period. Interest shall be calculated at a
per annum rate which is 2% in excess of the ninety (90) day United States
Treasury Xxxx rate as published in the Wall Street Journal (hereinafter referred
to as the "Published Rate") on the last business day of each week. Such interest
rate shall fluctuate weekly with any change in the Published Rate and shall
remain payable up to the day the debtor effects settlement unless the creditor
shall extend the Grace Period.
ARTICLE XVIII
RESERVES AND RISKS LIMITS
A. The Reinsurer shall maintain proper reserves and risk limits with
respect to the Issues covered hereunder, including appropriate contingency
reserves, unearned premium reserves, loss reserves including incurred but not
reported (IBNR) loss reserves and loss adjustment expense reserves and risk
limits, each in accordance with the requirements of the New York Insurance Law
and the regulations thereunder, or with the requirements of such local law in a
jurisdiction outside of the United States as may be applicable.
B. In order to enable the Reinsurer to establish appropriate risk limits
pursuant to paragraph A of this ARTICLE XVIII - RESERVES AND RISK LIMITS, the
Reinsurance Memoranda attached to this agreement shall set forth the Reinsurer's
Share of the Par Value amount of the Issue covered. The Reinsurer's Share of the
Par Value Amount of the Issue shall have no bearing upon the Reinsurer's
liability for loss and Allocated Loss Adjustment Expenses with respect to the
Issue, which shall be determined solely on the basis of the Reinsurer's Share of
the Debt Service Amount as provided in ARTICLE III - LIMIT.
C. When governing a body of any jurisdiction in which the Company legally
operates or to which it submits requires as a condition to credit for the
reinsurance provided by the Reinsurance Memoranda incorporated with this
agreement (i) that the Reinsurer establish and maintain reserves of a prescribed
type and amount, the Reinsurer shall establish and maintain reserves of that
type and amount, or (ii) that the Reinsurer post security in a prescribed form
and amount, the Reinsurer shall post security in that form and amount.
D. The Reinsurer agrees to participate proportionately to their share of
this Reinsurance in the unexpired risks and outstanding loss reserves, if
applicable, by setting up a deposit which shall, at their option, be either in
cash or securities.
1) Unexpired Risk Reserve:
The Reinsurer agrees to participate proportionately to their
share of this Reinsurance in the Unexpired Risk Reserve which shall, for
the first period, be calculated
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at pro rata of the time as at 30th June 1998 and 31st December 1998, and in
the half-yearly accounts for subsequent years.
2) Outstanding Loss Reserve:
The Outstanding Loss Reserve shall match the total amount of
those losses which, irrespective of their occurrence date, appear as still
unpaid, according the amount of such losses in the Company's half-yearly
accounts (as at 30th June 1998 and 31st December 1998 for the first
period).
ARTICLE XIX
TAXES
The Company shall be liable for all taxes on the premiums paid on the
policies.
ARTICLE XX
CONFIDENTIALITY
The Reinsurer agrees that it will maintain the confidentiality of the
Policies, the reinsurance undertaken with respect to the policies, all
underlying transactions and underlying obligations and all certificates,
reports, agreements, notices and communications of any sort relating to any of
the foregoing in its communications with third parties, except of the extent
required by law, regulation or order, and except as may be made to the
Reinsurer's legal counsel, auditors and accountants, to rating agencies in
connection with their ratings of the Reinsurer and except as may be necessary or
appropriate in connection with any retrocession, subject to receipt of a written
confidentiality commitment from the proposed retrocessionaire. The Reinsurer and
its legal counsel, auditors and accountants will have no obligation of
confidentiality in respect of any information that may be generally available to
the public or become available to the public through no fault or such person.
The confidentiality obligations set forth herein shall apply to all information
provided to the Reinsurer in connection with is evaluation of potential
reinsurance regardless of whether the Reinsurer and the Company ultimately
execute a Reinsurance Memorandum.
ARTICLE XXI
NOTICE
A. Any and all notices, requests, demands or other communications required
or permitted to be given hereunder shall be given or mailed by first class
certified mail, return receipt requested, by an overnight delivery service, or
by telex or telecopy addressed to the parties as stipulated in the Reinsurance
Memoranda attached to this Agreement.
B. The Company and Reinsurer shall provide each other, with wiring
instructions promptly after execution of this Agreement and at the time of any
change in such instructions.
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ARTICLE XXII
GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York except where the local law of a jurisdiction
outside of the United States shall be agreed or adjudicated as controlling.
ARTICLE XXIII
ENDORSEMENTS
No endorsement to this Agreement shall be valid unless in writing and
signed by each party hereto.
ARTICLE XXIV
FINANCIAL STATEMENT CREDIT
The Reinsurer, upon the request and at the discretion of the Company, shall
provide the Company evidence that the Reinsurer has taken all steps necessary to
assure that the Company obtains full credit on its financial statements,
according to statutory requirements in all applicable jurisdictions, for the
reinsurance ceded and any obligations arising hereunder in a form and amount
satisfactory to the Company under such statutory requirements, including the
posting of security, if required.
ARTICLE XXV
RETROCESSIONS
The Reinsurer agrees that it will not retrocede any risk it has undertaken
with respect to any Bond unless the Company has given its written consent to
such retrocession (including the amount and other terms and conditions of such
retrocession and the company to which such retrocession is to be made), which
consent will not be unreasonably withheld. Any request for such consent shall be
accompanied by the proposed form of reinsurance agreement shall include
provisions limiting further retrocessions which require the prior consent of the
Company and a confidentiality provision substantially similar to ARTICLE XX -
CONFIDENTIALITY.
ARTICLE XXVI
COMMENCEMENT AND TERMINATION
A. This Agreement shall take effect at 12:0l A.M., Eastern Standard Time,
March 16, 1998 and shall govern the rights and obligations of the parties
pursuant to this Agreement effective on or after the date hereof and shall
continue until this Agreement is terminated in accordance with ARTICLE XXVI (B)
or until terminated by the mutual consent of the parties.
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B. The Company shall have the right to terminate this Agreement by giving
immediate notice to the Reinsurer following the occurrence of any of the
following events:
1. If the Reinsurer is rated by Best's with a Best's rating of less
than B+, or if the Reinsurer is a multi-line Reinsurer and is
rated by Standard & Poor's with a claims-paying rating of less
than AA-, or if the Reinsurer is a monoline financial guarantee
Reinsurer and is rated by Standard & Poors with a claims-paying
rating of less than AAA or is rated by Moody's with a Financial
Strength rating of less than Aa3.
2. the Reinsurer has not passed a majority of the solvency tests as
contained in the NAIC Insurance Regulatory Information System
(IRIS); or
3. the Policyholders' Surplus of the Reinsurer is less than the
amount required in order for the Company to be entitled to credit
for the reinsurance provided by this Agreement by any regulatory
body of any jurisdiction in which the Company legally operates or
to which it submits
C. Upon termination of this Agreement, the Company shall have the option on
the termination date or on any date subsequent thereto to reassume the liability
and unearned premiums less ceding commissions on the Policies covered under the
Reinsurance Memoranda attached to this Agreement as of the date on which the
election is exercised. The Reinsurer shall refund the unearned premiums less
ceding commissions within forty-five (45) days of the date on which the
elections is exercised.
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REINSURANCE AGREEMENT OF FINANCIAL GUARANTY - FACULTATIVE
REINSURANCE, in duplicate, as of the dates recorded below:
At: Xxxxxxxx Bermuda
This 16th day of March, 1998
RAM REINSURANCE COMPANY, LTD
ACCEPTED:
At: Arrnonk, New York
This 16th day of March, 0000
XXXX INSURANCE CORPORATION
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