SECOND AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS SECOND AMENDMENT TO REIMBURSEMENT AGREEMENT dated as of September
24, 2002 (this "Second Amendment"), is made by and among DELTA AIR LINES, INC.,
a Delaware corporation (the "Borrower"), the financial institutions parties
hereto (the "Lenders") and COMMERZBANK AG, acting through its New York branch
("Commerzbank"), as letter of credit fronting bank (the "Fronting Bank") and
agent (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders and Commerzbank, as letter of
credit fronting bank, agent and arranger, are parties to that certain
Reimbursement Agreement dated as of May 1, 2000, as amended by the First
Amendment to Reimbursement Agreement dated as of November 9, 2001 (as amended,
the "Reimbursement Agreement"), pursuant to which the Fronting Bank and the
Lenders made certain financial accommodations available to the Borrower; and
WHEREAS, the Borrower has requested that the Fronting Bank, the Agent
and the Lenders amend the Reimbursement Agreement in certain respects; and
WHEREAS, the Fronting Bank, the Agent and the Lenders are willing to
so amend the Reimbursement Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Second Amendment have the
meanings provided in the Reimbursement Agreement.
SECTION 2. Amendments to Reimbursement Agreement. Effective on
(and subject to the occurrence of) the Effective Date, the Reimbursement
Agreement is hereby amended in accordance with this Section 2. Except as so
amended, the Reimbursement Agreement shall continue in full force and effect.
(a) Section 2.01 of the Reimbursement Agreement is amended to add
the following to the end of such Section:
With respect to the Letters of Credit issued hereunder that
have scheduled expiration dates after June 8, 2003, the Borrower shall
provide timely instructions to the Applicable Bond Trustees for such
Letters of Credit that such Letters of Credit shall terminate on a
specified date or dates which shall be on or before the close of
business on June 8, 2003, thereby triggering a mandatory tender for
purchase of the related Bonds under the Applicable Indentures. If, as
a result
thereof, the Letters of Credit are drawn upon in order to pay the
purchase price of the Bonds, the Borrower shall, or shall cause the
Applicable Bond Trustee to, reimburse the aggregate amount of such
Drawing to the Fronting Bank by the Fronting Bank's close of business
on the day such payment is made.
(b) Section 5.03 of the Reimbursement Agreement is amended by
deleting subclause (c) of the first sentence thereof and all of the second
sentence thereof.
(c) Section 5.04 of the Reimbursement Agreement is amended to
read in its entirety as follows:
Section 5.04. Minimum Liquidity. The Borrower will not
permit its Liquidity (as defined below) as at the last day of any
calendar month, beginning with October 31, 2002, to be less than
$1,000,000,000. For purposes of this Section 5.04, the Borrower's
"Liquidity" as at any day means the amount of unrestricted cash and
cash equivalents and short-term investments that would appear on a
consolidated balance sheet of the Borrower and its consolidated
subsidiaries as if such balance sheet were prepared as at such day in
accordance with GAAP. The Borrower shall provide to the Fronting Bank,
the Agent and the Lenders within ten (10) days after the end of
October 31, 2002 and each calendar month thereafter a statement as of
the end of such calendar month establishing compliance with the
provisions of Section 5.04, certified by an authorized financial
officer of the Borrower as accurate in all material respects.
(d) Section 5.10 of the Reimbursement Agreement is amended to
read in its entirety as follows: "Section 5.10. [Reserved.]"
SECTION 3. Representations and Warranties. The Borrower hereby
represents and warrants that each of the representations and warranties of the
Borrower contained in the Reimbursement Agreement are true and accurate in all
material respects as of the date hereof except for (i) any representations and
warranties that expressly relate solely to an earlier date, which
representations and warranties were true and accurate in all material respects
on and as of such earlier date, (ii) the representations and warranties
contained in Section 4.07 of the Reimbursement Agreement, which representations
and warranties were true and accurate in all material respects on and as of May
1, 2000, and (iii) changes disclosed by the Borrower in a report on Form 10-K,
10-Q or 8-K filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, prior to the date of this Second
Amendment, as such changes affect the representation and warranty contained in
the last sentence of Section 4.04 of the Reimbursement Agreement. The Borrower
further represents and warrants to the Fronting Bank, the Agent and each of the
Lenders that (i) it has the requisite corporate power and authority to execute,
deliver and perform this Second Amendment, (ii) this Second Amendment
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms and (iii) the execution,
delivery and performance by the Borrower of this Second Amendment (A) have been
duly authorized by all necessary corporate action and do not require any
consent or
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approval, authorization, permit or license from any federal, state or other
regulatory authority which has not been obtained, or violate any law,
regulation, order, judgment, decree or determination having applicability to
the Borrower or its organizational documents, or result in a breach of, or
constitute a default under any existing indenture or credit agreement or any
other agreement or instrument to which the Borrower is a party or by which its
properties may be bound or affected, except where the failure to have such
consent or approval or such violation, breach or default could not reasonably
be expected to result in a material adverse effect on the business, financial
condition or results of operations of the Borrower and its Subsidiaries taken
as a whole, and (B) will not conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, the Certificate of
Incorporation or Bylaws of the Borrower or of any agreement or instrument to
which the Borrower is now a party, which breach would have a material adverse
effect on the business, financial condition or results of operations of the
Borrower and its Subsidiaries taken as a whole.
SECTION 4. Effective Date. This Second Amendment shall be and
become effective on the date (the "Effective Date") on or prior to October 31,
2002 upon which (i) all of the conditions set forth in this Section 4 shall
have been satisfied and (ii) the Agent, the Fronting Bank, the Majority Lenders
and the Borrower shall have duly executed counterparts of this Second Amendment
and provided original copies thereof to the Agent.
(a) Closing Certificate. The Agent shall have received an
Officer's Certificate, in form reasonably satisfactory to the Agent, certifying
that (i) before and after giving effect to this Second Amendment, no Default or
Event of Default exists or will be in existence and (ii) the representations
and warranties of the Borrower contained in this Second Amendment are true and
accurate in all material respects with the same effect as though such
representations and warranties had been made on and as of the Effective Date.
(b) Termination of Other Facility. All letters of credit issued
under the Credit Agreement dated as of May 19, 2000, as amended, among the
Borrower, the financial institutions parties thereto and Bayerische Hypo-und
Vereinsbank AG, New York Branch, as letter of credit bank and agent, shall have
expired or otherwise been terminated, the commitments thereunder shall have
been terminated and no loans or reimbursement obligations (or any accrued
interest thereon) shall remain outstanding or unpaid.
(c) Legal Opinion. The Borrower shall have delivered to the Agent
a legal opinion of counsel to the Borrower, in form and content reasonably
satisfactory to the Agent, opining that this Second Amendment has been duly
authorized, executed and delivered by Borrower and is a valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
(d) Amendment Fee. The Agent shall have received from the
Borrower, for the account of each Lender (a "Consenting Lender") that has
evidenced its agreement hereto as provided in clause (ii) of this Section 4 by
5:00 p.m. (Atlanta, Georgia time) on the later of (i) September 24, 2002, and
(ii) the date on which the Agent issues a notice to the Lenders stating that
the condition set forth in clause (ii) of this Section 4 has been satisfied, an
amendment fee in
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an amount equal to 20 basis points (0.20%) on the aggregate amount of such
Consenting Lender's Commitment.
(e) Termination Date. Notwithstanding the terms of this Section
4, in the event that the Borrower shall fail to comply with each of the
conditions to effectiveness set forth in this Section 4 on or before October
31, 2002, this Second Amendment shall not become effective and each of the
signatures submitted by the Agent, the Fronting Bank and the Majority Lenders
to the Agent shall be released.
SECTION 5. Miscellaneous.
(a) References to Reimbursement Agreement. Each reference to the
Reimbursement Agreement in the Reimbursement Agreement or any of the other
instruments, agreements, certificates or other documents executed in connection
therewith, shall be deemed to be a reference to the Reimbursement Agreement, as
amended hereby and as the same may be further amended, restated, supplemented
or otherwise modified from time to time in accordance with Section 9.08
thereof.
(b) Expenses of Agent. The Borrower agrees to pay, on demand, all
reasonable fees, costs and expenses incurred by the Agent in connection with
the preparation, negotiation and execution of this Second Amendment and any
other Financing Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation, the
reasonable costs and fees of the Agent's legal counsel and any taxes or
expenses associated with or incurred in connection with any instrument or
agreement referred to herein or contemplated hereby.
(c) Benefits. This Second Amendment shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
(d) Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.
(e) Effect. Except as expressly herein amended, the terms and
conditions of the Reimbursement Agreement shall remain in full force and effect
without amendment or modification, express or implied. The entering into this
Second Amendment by the Lenders shall not be construed or interpreted as an
agreement by the Lenders to enter into any future amendment or modification of
the Reimbursement Agreement or any of the other Financing Documents.
(f) Counterparts; Telecopied Signatures. This Second Amendment
may be executed in any number of counterparts and by different parties to this
Second Amendment on separate counterparts, each of which when so executed shall
be deemed to be an original and shall be binding upon all parties, their
successors and assigns. Any signature delivered or
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transmitted by a party by facsimile transmission shall be deemed to be an
original signature hereto.
(g) Further Assurances. The Borrower agrees to take such further
actions as the Agent shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any
of the transactions contemplated hereby.
(h) Section Titles. Section titles and references used in this
Second Amendment shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto.
(i) Release of Claims. To induce the Agent, the Fronting Bank and
the Lenders to enter into this Second Amendment, the Borrower hereby releases,
acquits and forever discharges the Agent, the Fronting Bank and the Lenders,
and all officers, directors, agents, employees, successors and assigns of the
Agent, the Fronting Bank and the Lenders, from any and all liabilities, claims,
demands, actions or causes of actions of any kind or nature (if there be any),
whether absolute or contingent, disputed or undisputed, at law or in equity, or
known or unknown, that the Borrower now has or ever had against such Persons
arising under or in connection with, directly or indirectly, any of the
Financing Documents.
[Text continued on the following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Reimbursement Agreement to be executed under duly authorized
officers as of the date above written.
DELTA AIR LINES, INC.
By:
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Name:
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Title:
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COMMERZBANK, A.G., New York Branch,
as Fronting Bank, as Agent and as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANCA NAZIONALE DEL LAVORO S.p.A.,
New York Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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0
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX X.X., Xxx Xxxx Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BAYERISCHE LANDESBANK
GIROZENTRALE, Cayman Island Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CITIBANK, N.A.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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7
CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Name:
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Title:
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By:
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Name:
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Title:
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MIZUHO CORPORATE BANK, LTD.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG,
Cayman Islands Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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8
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE
By:
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Name:
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Title:
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By:
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Name:
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Title:
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XXXXXXX XXXXX CAPITAL CORP.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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9
NATEXIS BANQUES POPULAIRES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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NORDDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch
and/or Cayman Islands Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE SANWA BANK, LIMITED
By:
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Name:
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Title:
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By:
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Name:
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Title:
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10
THE SUMITOMO MITSUI BANKING CORP.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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SUNTRUST BANK
By:
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Name:
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Title:
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By:
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Name:
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Title:
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, Xxx Xxxx Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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