EXECUTION COPY
TRUST AGREEMENT
TRUST AGREEMENT made as of the third day of May, 2002, by and between
Credit And Asset Repackaging Vehicle Corporation, as depositor (the
"Depositor"), and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"), consisting of this agreement and Schedules I, II and III
attached hereto, which Schedules are made a part hereof and are hereinafter
referred to collectively as the "Terms Schedule". The terms of the Standard
Terms for Trust Agreements, dated September 5, 2001 (the "Standard Terms"),
agreed between the Depositor and the Trustee are, except to the extent otherwise
expressly specified herein, hereby incorporated by reference herein in their
entirety with the same force and effect as if set forth herein. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Standard Terms. The words "herein", "hereof", "hereunder", "this
Trust Agreement" and other words of similar import refer to this agreement
including the Terms Schedule and the Standard Terms so incorporated by
reference.
WHEREAS, the Depositor and the Trustee desire to establish the trust
identified in Schedule I attached hereto (the "Trust") for the primary purposes
of (i) holding the Securities, (ii) entering into the Swap Agreement with the
Swap Counterparty and (iii) issuing the Certificates;
WHEREAS, the Depositor desires that the beneficial interests in the
Trust be divided into transferable fractional shares, such shares to be
represented by the Certificates;
WHEREAS, the Depositor desires to appoint the Trustee as trustee of the
Trust and the Trustee desires to accept such appointment;
WHEREAS, the Depositor desires to transfer to the Trust, without
recourse, and the Trust desires to acquire, all of the Depositor's right, title
and interest in, to and under the Securities (excluding the Retained Interest)
and other property, all as identified in Schedule II to the Trust Agreement (the
"Trust Property"); and
WHEREAS, the Trust desires to acquire the Trust Property specified
herein in consideration for issuing Certificates having an initial Principal
Balance (or Notional Amount, as applicable) identified in Schedule I attached
hereto, subject to the terms and conditions specified in the Trust Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto hereby agree
as follows:
1. The Depositor hereby appoints the Trustee as trustee of the Trust and
requests the Trustee to receive (i) the Securities (excluding the Retained
Interest) and any related documents, (ii) the Swap Agreement, (iii) the Swap
Guarantee and (iv) the documents
specified in the Swap Agreement (in Part 3 of the Schedule to the ISDA Master
Agreement).
2. The Trustee hereby accepts the appointment referred to in Section 1 and
declares that it will hold the assets referred to in Section 1 and all other
assets comprising the Trust Property in trust, for the exclusive use and benefit
of all present and future Certificateholders and for the purposes and subject to
the terms and conditions set forth in the Trust Agreement.
3. The Trustee hereby agrees, as agent for and on behalf of the Depositor, to
prepare, deliver to the Depositor for signature, and file after receiving such
signature, each of the Exchange Act Reports referred to in Section 6.04(a)
(other than the current report or reports on Form 8-K to be filed in connection
with the execution and delivery of the Trust Agreement, the Swap Agreement, the
Swap Guarantee), within such time periods (and, if applicable, in such
circumstances) prescribed therefor by the Commission under the Exchange Act. In
this connection, the Depositor agrees to furnish the Trustee with such
information not otherwise available to the Trustee as may be required to
prepare, deliver or file any of the Exchange Act Reports in accordance with the
immediately preceding sentence.
4. It is intended that the Trust be classified as a grantor trust for U.S.
federal income tax purposes and the Trustee hereby agrees, and each
Certificateholder by acquiring one or more Certificates agrees, to take no
action or reporting position that is inconsistent with such classification.
Furthermore, the Trustee hereby agrees, and each initial Certificateholder by
acquiring one or more Certificates agrees, (i) that, as of the Closing Date, the
Trustee shall make an election (an "Integration Election"), as agent for and on
behalf of such Certificateholder, pursuant to U.S. Treasury Regulations Section
1.1275-6 to integrate the Securities with the Swap Agreement for all U.S.
federal income tax purposes and (ii) to treat each Certificate purchased by an
initial Certificateholder as subject to the Integration Election for all U.S.
tax purposes.
5. Solely with respect to this Trust Agreement, the Trust and the Certificates
and for no other purpose, Section 9.01(c) of the Standard Terms is hereby
replaced by the following provision:
"(c) any Security Redemption with respect to all Securities held by the
Trust; provided that, for the avoidance of doubt, the dissolution of
the Security Issuer following any distribution of the Junior
Subordinated Debentures (as defined in the Terms Schedule) to the Trust
and the other holders of Capital Securities (as defined in the Terms
Schedule) shall not constitute a Trust Wind-Up Event;"
6. This Trust Agreement and each Certificate issued hereunder shall be governed
by, and construed in accordance with, the laws of the State of New York.
The Federal and State courts in the Borough of Manhattan in The City of
New York shall have non-exclusive jurisdiction in respect of any Proceeding
arising out of or relating to this Trust Agreement or any Certificate.
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7. This Trust Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the Depositor and the Trustee has caused this
instrument to be executed by its duly authorized officer as of the date first
written above.
CREDIT AND ASSET REPACKAGING
VEHICLE CORPORATION, as Depositor
By: /s/ Ram Sundaram
---------------------------------
Name: Ram Sundaram
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee on
behalf of the Trust identified in
Schedule I hereto, and not in its
individual capacity
By: /s/ Xxxxxx X. X'Xxxxxxx
---------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Corporate Trust Officer
Attachments: Terms Schedule (consisting of Schedules I, II and III)
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SCHEDULE I
(Terms of Trust and Certificates)
Trust: Public Credit and Repackaged
Securities(SM) (PCARS)(SM) Trust JPM
Capital Trust I Series 2002-2
Date of Trust Agreement: May 3, 2002
Trustee: Xxxxx Fargo Bank Minnesota, National
Association
Principal Balance: $63,777,275
Issue Price: 100%
Par Value;
Minimum Denomination: $25
Closing Date: May 3, 2002
Business Day: Each day on which commercial banks are
open for business in The City of New
York.
Interest Rate: 7.125% per annum
If any payment of interest payable
hereunder is deferred, interest will
accrue on such deferred payment at a rate
of 7.125% per annum, compounded
semi-annually.
Payments of interest on the Certificates
will be calculated on the basis of a
360-day year consisting of twelve 30-day
months. No adjustment will be made with
respect to interest payable on the
Certificates for Distribution Dates that
occur on a date other than the scheduled
date therefor.
Calculation Agent: Swap Calculation Agent
Rating: "A1" by Xxxxx'x and "A" by S&P
Rating Agencies: Xxxxx'x and S&P
Method of Distribution: Firm commitment underwriting
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Distribution Dates: The 15th day of each January and July,
commencing on July 15, 2002, subject to
deferral if and for as long as
distributions on the Securities are
deferred in accordance with the terms
thereof.
If any payment with respect to the
Securities is not received by the Trustee
by 12 noon (New York City time) on a
Distribution Date, the corresponding
distribution on the Certificates will not
occur until the next Business Day that
the Trust is in receipt of such payment
by 12 noon (New York City time), with no
adjustment to the amount distributed.
Record Dates: With respect to any Distribution Date,
the last day of the month immediately
preceding such Distribution Date,
regardless of whether such day is a
Business Day and notwithstanding any
adjustment to the related Distribution
Date due to such Distribution Date
falling on a day other than a Business
Day.
Scheduled Final Distribution Date: January 15, 2027
Form of Certificate: Global, Registered
Alternative ERISA Restrictions: Do Not Apply
Deemed Representations: Apply
Trigger Amount: $25,000
Maximum Reimbursable Amount: $150,000
Exchangeable Series Terms: Not applicable
Depositor Optional Exchange: Not applicable
Retained Interest: The Depositor's right to receive the
aggregate amount of all distributions on
the Securities in respect of the period
from and including January 15, 2002 to
but excluding May 3, 2002. These
accumulated distributions will be paid to
the Depositor, or upon its direction, on
the first Distribution Date for the
Certificates, from the first distribution
payment made in respect of the Securities
after the Closing Date.
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Callable Series: No (but see "Redemption of Certificates"
below).
Redemption of Certificates: If there is a partial redemption of
Securities, a pro rata share of the
Principal Balance corresponding to the
pro rata share of the Securities being
redeemed shall be redeemed in accordance
with the following provisions; provided
that, if such pro rata share of the
Principal Balance would otherwise be a
number that is not evenly divisible by
$25, such pro rata share shall be rounded
down to the next number that is evenly
divisible by $25. Promptly after
receiving notice of such partial
redemption of Securities, the Trustee
shall allocate the number of Certificates
to be redeemed ratably based on the
aggregate Principal Balance of
Certificates then held by each holder of
Certificates, and shall notify each
holder of the Principal Balance of
Certificates to be redeemed from that
holder. The selected Certificates shall
become redeemable without any further
action on the part of the Trustee or the
Certificateholders upon receipt by the
Trustee of the proceeds from the related
partial redemption of Securities. In
respect of the Certificates being
redeemed, each holder shall receive, out
of the redemption proceeds and any
payment under the Swap Agreement (as
defined in Schedule III), an amount equal
to 100% of the aggregate Principal
Balance of the Certificates held by it
that are being redeemed, together with
any accrued and unpaid interest on those
Certificates. No premium shall be paid on
any redeemed Certificates.
Issuance of Additional Certificates: Not applicable
Listing: The Certificates have been approved,
subject to issuance, for listing on the
New York Stock Exchange under the symbol
"GRK".
Other Provisions: The Trust Wind-Up Event specified in
clause (e) of Section 9.01 of the
Standard Terms shall not apply.
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SCHEDULE II
(Terms of Trust Property)
Concentrated Securities: JPM Capital Trust I 7.54% Cumulative
Capital Securities (the "Capital
Securities"), representing preferred
beneficial interests in JPM Capital Trust
I, a statutory business trust formed
under the laws of the State of Delaware
for the purpose of, among other things,
investing in 7.54% Junior Subordinated
Debentures (the "Junior Subordinated
Debentures") issued by the Security
Guarantor, or, if and after the Junior
Subordinated Debentures are distributed
to the Trust and the other holders of
Capital Securities in accordance with the
Security Issuance Agreement for the
Capital Securities, the Junior
Subordinated Debentures.
Other Securities: None
Security Issuer: JPM Capital Trust I or, if and after the
Junior Subordinated Debentures are
distributed to the Trust and the other
holders of Capital Securities in
accordance with the Security Issuance
Agreement for the Capital Securities, the
Security Guarantor.
Security Guarantor: The Security Issuer's obligations under
the Capital Securities are fully and
unconditionally guaranteed, on a
subordinated basis and subject to
specified limitations, by X.X. Xxxxxx
Chase & Co., into which X.X. Xxxxxx & Co.
Incorporated has been merged.
Liquidation Amount: $60,267,000
Security Rate: 7.54 %
Current Credit Ratings: "A1" by Xxxxx'x , "A" by S&P and "A+" by
Fitch Ratings
Listing: None
Security Issuance Agreement: As to the Capital Securities, the Amended
and Restated Declaration of Trust, dated
as of December 4, 1996, among the
Security Guarantor, as Sponsor, U.S. Bank
Trust National Association (formerly
known as First Trust of New York,
National
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Association), as Property Trustee,
Wilmington Trust Company, as Delaware
Trustee, the Regular Trustees named
therein and the holders, from time to
time, of the undivided beneficiary
interests in the assets of the Security
Issuer. As to the Junior Subordinated
Debentures, the Indenture, dated as of
November 1, 1996, as supplemented by the
First Supplemental Indenture, dated as of
December 4, 1996, between X.X. Xxxxxx
Chase & Co., into which X.X. Xxxxxx & Co.
Incorporated has been merged, and U.S.
Bank Trust National Association (formerly
known as First Trust of New York,
National Association), as Trustee.
Form of Security: One or more registered global
certificates
Currency of Denomination: U.S. Dollars
Acquisition Price by Trust: Certificates having an initial Principal
Balance of $63,777,275.
Security Payment Dates: Each January 15 and July 15
In the event of any election by the
Security Guarantor to defer payment of
interest on the Junior Subordinated
Debentures, the Security Issuer will
defer payment of distributions on the
Securities for a period not exceeding 10
consecutive semi-annual periods, with
respect to each deferral period, except
that no such deferral period may extend
beyond the Maturity Date (as defined
below).
Original Issue Date: On or about December 4, 1996.
Maturity Date: January 15, 2027
Sinking Fund Terms: Not applicable
Redemption Terms: On January 15, 2027, the stated maturity
date of the Junior Subordinated
Debentures. In addition: (i) at any time
in whole but not in part following the
repayment of the Junior Subordinated
Debentures, upon the occurrence of
certain events specified in the Security
Issuance Agreement; and (ii) in whole at
any time or in part from time to time on
or after January 15, 2007 subject to
payment of the applicable
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redemption price by the Security
Guarantor.
CUSIP No.: CUSIP No. 00000XXX0
Security Trustee: As to the Capital Securities, U.S. Bank
Trust National Association, as Property
Trustee, Wilmington Trust Company, as
Delaware Trustee and the Regular Trustees
named in the Security Issuance Agreement.
As to the Junior Subordinated Debentures,
U.S. Bank Trust National Association.
Available Information Regarding The Security Guarantor is subject to the
the Security Issuer: informational requirements of the
Exchange Act, and in accordance therewith
files, reports and other information with
the Securities and Exchange Commission
(the "Commission"). Such reports and
other information can be inspected and
copied at the public reference facilities
maintained by the Commission at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Copies of such materials can be obtained
from the Public Reference Section of the
Commission at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000 at prescribed
rates
Cut-Off Date: Not applicable
Credit Support: None
Credit Support Default: Not applicable
Other Trust Property: None
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SCHEDULE III
(Swap Agreement)
Swap Agreement: A confirmation in the form of Exhibit A
hereto, evidencing an obligation of the
Swap Counterparty to pay a certain amount
to the Trust in the case of a Trust
Wind-Up Event or a redemption of the
Securities (the "Swap Agreement"), as
well as (i) any amendments to, or
restatements of, such agreement and (ii)
any additional swap agreements entered
into in connection with any additional
issuance of Certificates.
Swap Counterparty: Xxxxxxx Sachs Capital Markets, L.P.
Swap Guarantee: The Xxxxxxx Xxxxx Group, Inc. will
guarantee the obligations of the Swap
Counterparty under the Swap Agreement
under a guarantee dated the date hereof.
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EXHIBIT A
EXECUTION COPY
XXXXXXX SACHS CAPITAL MARKETS, L.P. | 00 XXXXX XXXXXX x
XXX XXXX, XXX XXXX 00000 | TEL: 000-000-0000
--------------------------------------------------------------------------------
CONFIRMATION
DATE: May 3, 2002
TO: Public Credit and Repackaged Securities(SM) (PCARS)(SM)
Trust JPM Capital Trust I Series 2002-2
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
SUBJECT: Par Value Swap Transaction
REF. NO.: NUUS204OZ0(860000000)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Sachs Capital Markets, L.P. ("Party A"),
guaranteed by The Xxxxxxx Xxxxx Group, Inc., and Public Credit and Repackaged
Securities(SM) (PCARS)(SM) Trust JPM Capital Trust I Series 2002-2 ("Party B"
and, together with Party A, the "Parties"). Party B was formed pursuant to a
Trust Agreement, dated as of the date hereof (the "Trust Agreement"), between
Credit and Repackaging Vehicle Corporation, as depositor, and Xxxxx Fargo Bank
Minnesota, National Association, as trustee. This communication constitutes a
"Confirmation" as referred to in the Swap Agreement specified below.
1. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions
(the "Definitions"), published by the International Swaps and Derivatives
Association, Inc. This Confirmation supplements, forms a part of and is subject
to the ISDA Master Agreement dated as of the date hereof, as amended and
supplemented from time to time (the "Swap Agreement") between Party A and Party
B. All provisions contained in, or incorporated by reference into, the Swap
Agreement shall govern this Confirmation except as expressly modified below. In
the event of any inconsistency between this Confirmation, the Definitions or the
Swap Agreement, as the case may be, this Confirmation will control for purposes
of the Transactions to which this Confirmation relates.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Fixed Amount Payer A: Party A
Fixed Amount Payer B: Party B
Trade Date: April 19, 2002
Effective Date: May 3, 2002
Termination Date: January 15, 2027
Notional Amount: USD 3,510,275, as reduced from time to time
by the aggregate amount of any Redemption
Notional Amounts.
Business Days: New York City
Calculation Agent: Party A
Party B Fixed Amount:
Party B Fixed Amount: USD 1,302,409.74
Party B Payment Date: Effective Date
Party A Fixed Amounts:
Party A Fixed Amounts: Subject to the following two paragraphs, the
Party A Fixed Amount payable on any Early
Termination Date shall equal the Notional
Amount, multiplied by a factor (i) the
numerator of which is equal to the amount of
the proceeds from the sale of the Securities
then held by Party B pursuant to Section 9.03
of the Trust Agreement (if any) net of the
aggregate amount of distributions on the
Securities representing the Retained Interest
(if any) and (ii) the denominator of which is
equal to the aggregate liquidation amount of
the Securities then held by Party B; provided
that under no circumstances shall such factor
be greater than one.
The Party A Fixed Amount payable on the date
of any Securities Redemption prior to January
15, 2007 related to a "tax event" or "capital
treatment event" under the Securities shall
equal the Notional Amount.
The Party A Fixed Amount payable on the date
of any Securities Redemption on or after
January 15, 2007 under the Securities shall
equal the Redemption Notional Amount minus
the difference of (i) the amount paid by the
issuer of the Securities to the Trust in
connection with such Securities Redemption
(net of any accumulated distributions on the
Securities being redeemed) and (ii) the
aggregate liquidation amount of the
Securities then held by Party B that is
subject to such Securities Redemption.
Party A Payment Dates: (i) Any Early Termination Date, and (ii) the
date or dates of any Securities Redemption
that does not result in an Early Termination
Date.
Additional Amounts: On any Party A Payment Date other than the
date of any Securities Redemption on or after
January 15, 2007, in consideration of the
obligations of Party A hereunder, an amount
(if positive) equal to (i) any amounts
received by Party B as proceeds from the
related sale or redemption (as applicable) of
Securities then held by Party B net of the
aggregate amount of distributions on the
Securities representing the Retained Interest
(if any), minus (ii) the aggregate
liquidation amount of the Securities
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being sold or redeemed (as applicable), minus
(iii) , in the case of a Securities
Redemption, the amount of any accumulated
distributions on the Securities being
redeemed (other than the aggregate amount of
distributions on the Securities representing
the Retained Interest, if any), shall be paid
by Party B to Party A.
Payments on Early Termination: Except as specified under "Party B Fixed
Amount", "Party A Fixed Amounts" and
"Additional Amounts" above, no payment shall
be payable in respect of this Transaction by
either Party in connection with the
occurrence of an Early Termination Date.
Additional Definitions: "Securities" means the securities held by
Party B as trust property pursuant to the
Trust Agreement.
"Securities Redemption" means any redemption
of the Securities in whole or in part by the
issuer thereof, including the scheduled
redemption on the Termination Date; provided
that, for the avoidance of doubt, the
dissolution of the Security Issuer following
any distribution of the Junior Subordinated
Debentures (as defined in the Trust
Agreement) to the Trust and the other holders
of Capital Securities (as defined in the
Trust Agreement) shall not constitute a
Securities Redemption.
"Redemption Notional Amount" means (i) in the
event of a Securities Redemption with respect
to all of the Securities then held by Party
B, the Notional Amount and (ii) in the event
of a Securities Redemption with respect to
less than all of the Securities then held by
Party B, an amount equal to the (A) the
Notional Amount (without giving effect to any
reductions after the date hereof), multiplied
by (B) the aggregate liquidation amount of
Securities then held by Party B that is
subject to such Securities Redemption,
divided by (C) USD 60,267,000.
"Retained Interest" means the aggregate
amount of all distributions on the Securities
in respect of the period from and including
January 15, 2002 to but excluding May 3,
2002.
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3. Account Details:
Payments to Party A:
For the Account of: Xxxxxxx Xxxxx Capital Markets, L.P.
Name of Bank: Citibank, N.A. New York
Account No: 40670834
ABA No: 021000089
Inquiries Swap Operations
Xxxxxxx Sachs Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Payments to Party B: In accordance with Party B's written
instructions as set forth below or otherwise
delivered to Party A. Party A shall make no
payments without having received (i) such
written instructions and (ii) a fully
executed facsimile copy of this Confirmation
or other written acceptance of the terms
hereof.
For the Account of : Corporate Trust Services
Name of Bank: Xxxxx Fargo Bank, Minneapolis, MN
Account No: 0000000000
ABA No.: 000000000
Attention: Xxxxxx X'Xxxxxxx
Ref.: PCARS/JPM Series 2002-2
(SEI#12480700)
4. Offices:
(i) The Office of Party A for this Transaction is 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000.
(ii) The Office of Party B for this Transaction is Xxxxx Fargo Bank
Minnesota, N.A., 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
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5. Party B hereby agrees (i) to check this Confirmation (Reference No.
NUUS204OZ0(860000000)) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (ii) to confirm that
the foregoing correctly sets forth the terms of the agreement between Party A
and Party B with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy to
Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
Agreed and Accepted By:
PUBLIC CREDIT AND REPACKAGED SECURITIES(SM) (PCARS)(SM)
TRUST JPM CAPITAL TRUST I SERIES 2002-2
By: Xxxxx Fargo Bank Minnesota, National Association, as Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
---------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Corporate Trust Officer
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