EXHIBIT (2)(g)(2)
TECHNICAL ASSISTANCE AND SECONDING AGREEMENT
THIS AGREEMENT ("Agreement") is dated as of June 1, 1997 by and among
THE MUTUAL FUND PUBLIC COMPANY LIMITED (the "Thai Manager"), a Thai limited
company, with its principal office located at 30th-32nd Floor, Lake Rajada
Building, 000-000 Xxxxxxxxxxxxxx Xxxx, Xxxxxx-Xxxx, Xxxxxxx, Xxxxxxxx; XXXXXX
XXXXXXX ASSET MANAGEMENT INC. (the "U.S. Manager"), a Delaware corporation, with
its principal office located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000; and THE THAI FUND, INC. (the "Company"), a Maryland corporation, with its
principal office located at c/o Morgan Xxxxxxx Asset Management Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
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WHEREAS, the Thai Manager has entered into an Investment Contract (as
defined below) for the establishment of a Thai investment fund (the "Thai
Fund"), whereunder the Thai Manager has assumed the management of the said fund
on the terms and conditions specified in the said Investment Contract; and
WHEREAS, the U.S. Manager has experience and expertise in the
management of assets, securities trading and investment research; and
WHEREAS, the parties hereto desire to provide for management of the
acquisition and disposition of securities by the Thai Fund, on the terms and
conditions hereinafter set forth; and
WHEREAS, the U.S. Manager and the Company desire that the U.S. Manager
render investment management services to the Company, on the terms and
conditions hereinafter set forth.
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions
1.1 "Board of Directors" means the Board of Directors of the Company.
1.2 "Council" shall have the meaning ascribed thereto in the Investment
Contract.
1.3 "District Court" shall have the meaning ascribed thereto in
Section 7.2.
1.4 "Effective Date" means the date on which the Registration Statement
first is declared effective by the SEC under the United States Securities Act of
1933, as amended.
1.5 The "Funds" means the Company and the Thai Fund, jointly and
severally, as if such entities were one entity.
1.6 "Investment Company Act" means the U.S. Investment Company Act of
1940, as amended.
1.7 "Investment Contract" means the agreement dated as of the date
first written above between the Company and the Thai Manager.
1.8 "Registration Statement" means the Company's Registration Statement
on Form N-2 filed with the SEC.
1.9 "SEC" means the U.S. Securities and Exchange Commission
1.10 "Seconded Staff" shall have the meaning ascribed thereto in
Section 2.1 hereof.
1.11 "Supreme Court" shall have the meaning ascribed thereto in
Section 7.2.
1.12 "Thai Custodian" means The Thai Farmers Bank or its successors or
permitted assigns.
1.13 "Thai Employees" shall have the meaning ascribed thereto in
Section 3.2.
1.14 The "Thai Fund" shall have the meaning ascribed thereto above.
1.15 "Underwriting Agreement" means the Underwriting Agreement in
respect of the Company's shares of common stock ($0.01 par value) executed on or
about the date hereof.
1.16 "U.S. Assets" shall have the meaning ascribed thereto in
Section 2.2 hereof.
2. Services to be rendered by the U.S. Manager
2.1 (a) The U.S. Manager shall (X) make available to the Thai Manager
seconded staff ("Seconded Staff"), such Seconded Staff to provide to the Thai
Manager advice with respect to all investment decisions for the Thai Fund and
all acquisitions and dispositions of securities by the Thai Fund, and (Y)
prepare and make available to the Thai Fund research and statistical data in
connection therewith, all in accordance with the Company's investment objectives
and policies and in accordance with supervision and instructions of the Board of
Directors.
(b) For purposes of this Agreement, "instructions from the Board of
Directors" shall include the right to request a power of attorney from the Thai
Manager in order to enforce claims of, or to defend claims against, the Fund.
2.2 The U.S. Manager shall make investment decisions for the Company
with respect to any assets other than those held through the Thai Fund (the
"U.S. Assets"), prepare and make available to the Company research and
statistical data in connection therewith, supervise the acquisition and
disposition of the U.S. Assets and select and place orders with brokers and
dealers for execution of transactions for U.S. Assets, all in accordance with
the Company's investment objectives and policies and in accordance with
guidelines and directions from the Board of Directors.
2.3 The U.S. Manager shall (i) assist the Funds as they may reasonably
request in the conduct of the Funds' business, subject to the direction and
control of the Board of Directors; (ii) maintain or cause to be maintained for
the Funds all books and records required under the Investment Company Act to the
extent that such books and records are not maintained or furnished by the Funds,
custodians or other agents of the Funds; (iii) furnish at the U.S. Manager's
expense for the use of the Funds such office space and facilities as the Funds
may require for their reasonable needs in the City of New York, and to furnish
at the U.S. Manager's expense clerical services in the United States related to
research, statistical and investment work; and (iv) pay the reasonable salaries,
fees and expenses of such of the Funds' officers and employees (including the
Funds' share of U.S. payroll taxes) and any fees and expenses of such of the
Funds' directors as are directors, officers or employees of the U.S. Manager;
provided, however, that the Funds, and not the U.S. Manager, shall pay the fees
of members of the Council and shall bear travel expenses of directors and
officers of the Funds who are managing directors, officers or employees of the
U.S. Manager to the extent that such expenses relate to attendance at meetings
of the Board of Directors or any committees thereof.
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2.4 The U.S. Manager shall bear all expenses arising out of its duties
hereunder but shall not be responsible for any expenses of the Funds other than
those specifically allocated to the U.S. Manager in paragraphs 2.1, 2.2, 2.3,
2.4 and 2.5. In particular, but without limiting the generality of the
foregoing, the U.S. Manager shall not be responsible, except to the extent of
the compensation of such of the Funds' employees as are managing directors,
officers or employees of the U.S. Manager whose services may be involved, for
the following expenses with respect to the Funds: organization expenses of the
Funds (including out-of-pocket expenses); fees, dues and expenses, incurred by
the Funds in connection with membership in investment company organizations;
fees and expenses of the Funds' administrators, custodians, transfer agents and
registrars; payment for portfolio pricing services to a pricing agent, if any;
expenses of preparing share and other certificates of the Funds, and other
expenses, including but not limited to stamp duties, in connection with the
issuance, offering, distribution, sale or underwriting of securities issued by
the Company or the Thai Fund; expenses of registering or qualifying securities
of the Company for sale; expenses relating to investor and public relations;
freight, insurance and other charges in connection with the shipment of the
Funds' portfolio securities; brokerage commissions, stamp duties or other costs
of acquiring or disposing of any portfolio securities of the Funds; expenses of
maintaining a register of holders of interests in the Thai Fund; expenses of
preparing and distributing reports and notices to the Company, the Company's
Board of Directors, the Council, the Company's administrators, the U.S. Manager,
the Thai Manager and the Company's stockholders, and expenses of communications
among such persons (other than by the Company's stockholders); expenses of
dividends and distributions to the Company and the Company's stockholders; costs
of stationery; expenses incurred in preparing and publishing notices; costs of
stockholders' and other meetings; litigation expenses; legal fees and expenses
of counsel (United States and Thailand) to the Funds and if such counsel are
retained by the Company's directors who are not "interested persons" of the Thai
Fund or the Company, of such counsel; fees and expenses of independent
accountants of the Funds; or expenses relating to the Company's dividend
reinvestment and cash purchase plan.
2.5 In connection with the rendering of services required under
paragraphs 2.1, 2.2, 2.3 and 2.4 above, Section 3.1 hereof provides that the
Thai Manager shall furnish certain services to the U.S. Manager, and the U.S.
Manager may contract with or consult with such banks, other securities firms or
other parties in Thailand or elsewhere as it may deem appropriate to obtain
information and advice, including investment recommendations, advice regarding
economic factors and trends, advice as to currency exchange matters, and
clerical and accounting services and other assistance, but any fee, compensation
or expenses to be paid to any such parties shall be paid by the U.S. Manager,
and no obligation shall be incurred on the Funds' behalf in any such respect
(except as to the Thai Manager for which the Funds shall pay the fees described
in Section 3.3 of the Investment Contract).
2.6 The Funds agree to pay in United States dollars to the U.S.
Manager, as full compensation for the services rendered and expenses borne by
the U.S. Manager hereunder, a monthly fee, payable, except as provided below,
within three New York business days of the first day of each month following the
day on which such payment is computed, equal to 1/12 of 0.90% of the value of
the average weekly net assets of the Funds up to and including $50 million, plus
1/12 of 0.70% of the value of the next $50 million of the average weekly net
assets of the Funds, plus 1/12 of 0.50% of the value of the average weekly net
assets of the Funds over $100 million. The weekly net assets of the Funds for a
month shall be determined as of the close of business in New York on the last
New York Stock Exchange business day of each week where such business day falls
within one month, and be averaged by dividing the total of such weekly net
assets by such numbers of weeks in such month. Such fee shall be computed
beginning on the "Closing Date" (as defined in the Underwriting Agreement) until
the termination of this Agreement for whatever reason. The fee from the Closing
Date to the end of the month during which the Closing Date occurs shall be
prorated according to the proportion which such period bears to the full monthly
period. Upon termination of this Agreement before the end of any month, such fee
for such part of a month shall be prorated according to the proportion which
such period bears to the full monthly period and shall be payable on the date of
termination of this Agreement. The fees payable from the Funds to the U.S.
Manager hereunder shall be paid from the Thai Fund and/or the U.S. Assets as
determined by the Board of Directors. All such fees paid from the Thai Fund
shall be paid subject to applicable Thai withholding tax. For the purposes of
this Agreement, the net assets of the Funds shall be computed pursuant to the
directions of the Board of Directors.
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2.7 Nothing herein shall be construed as prohibiting the U.S. Manager
from providing investment advisory services, to, or entering into investment
advisory agreements with, other clients (including other registered investment
companies), including clients which may invest in securities of Thai issuers, or
from utilizing (in providing such services) information furnished to the U.S.
Manager by the Thai Manager or others.
2.8 The U.S. Manager may rely on information reasonably believed by it
to be accurate and reliable. Neither the U.S. Manager nor its officers,
directors, employees, agents or controlling persons as defined in the Investment
Company Act shall be subject to any liability for any act or omission, error of
judgment or mistake of law, or for any loss suffered by the Funds, in the course
of, connected with or arising out of any services to be rendered hereunder,
except by reason of willful misfeasance, bad faith or gross negligence on the
part of the U.S. Manager in the performance of its duties or by reason of
reckless disregard on the part of the U.S. Manager of its obligations and duties
under this Agreement. Any person, even though also employed by the U.S. Manager,
whether or not as part of the Seconded Staff, who may be or may become an
employee of the Funds and paid by the Funds shall be deemed, when acting within
the scope of his employment by the Funds, to be acting in such employment solely
for the Funds and not as an employee or agent of the U.S. Manager.
3. Services to be rendered by the Thai Manager
3.1 The Thai Manager shall (i) furnish to the U.S. Manager or its
designee (a) a daily bulletin concerning Thai stock market developments, (b) a
weekly bulletin concerning securities and other assets owned by the Thai Fund,
(c) a weekly and month-end list of securities values of all Thai assets of the
Thai Fund, and (d) bulletins, from time to time requested by the U.S. Manager,
concerning Thai economic developments, industries and securities; (ii) furnish
to the U.S. Manager such additional information, investment recommendations,
advice and assistance, as the U.S. Manager shall from time to time reasonably
request in order that the U.S. Manager may provide the services undertaken by it
pursuant to Article 2 hereof; (iii) act in accordance with the advice of the
Seconded Staff in connection with all investment decisions for the Thai Fund and
all determinations as to acquisition and disposition of securities held by the
Thai Fund and with the selection and placing of orders with brokers and dealers
for execution for the Thai Fund; and (iv) exercise all rights associated with
such legal ownership of the assets of the Thai Fund, subject to the Company's
investment objectives and policies and guidelines and directions of the Board of
Directors as set forth in Section 3.A.1 of the Investment Contract.
3.2 The Thai Manager undertakes and agrees (i) to assist the Funds as
they may reasonably request in the conduct of the Funds' business subject to the
direction and control of the Board of Directors; (ii) to maintain or cause to be
maintained for the Funds all books and records required under Thai law and
regulations to the extent that such books and records are not maintained or
furnished by the Thai Custodian or other agents of the Funds; (iii) to furnish
at the Thai Manager's expense for the use of the Funds such office space and
facilities as the Funds may require for their reasonable needs in Thailand and
to furnish at the Thai Manager's expense clerical services in Thailand related
to research, statistical and investment work for the benefit of the Funds; and
(iv) to pay the reasonable salaries, fees and expenses of such of the Funds'
officers and employees (including the Funds' share of Thai payroll taxes) and
any fees and expenses of such of the Funds' directors as are directors, officers
or employees of the Thai Manager; provided, however, that the Funds, and not the
Thai Manager, shall pay the fees of members of the Council and shall bear travel
expenses of directors and officers of the Funds who are managing directors,
officers or employees of the Thai Manager ("Thai Employees") to the extent that
such expenses relate to attendance at meetings of the Board of Directors or any
committees thereof.
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3.3 The Thai Manager shall bear all expenses arising out of its duties
hereunder but shall not be responsible for any expenses of the Funds other than
those specifically allocated to the Thai Manager in paragraphs 3.1, 3.2, 3.3 and
3.4. In particular, but without limiting the generality of the foregoing, the
Thai Manager shall not be responsible, except to the extent of the compensation
of such of the Funds' employees as are Thai Employees whose services may be
involved, for the following expenses with respect to the Funds: organization
expenses of the Funds (including out-of-pocket expenses); fees, dues and
expenses incurred by the Funds in connection with membership in investment
company organizations; fees and expenses of the Funds' administrators,
custodians, transfer agents and registrars; payment for portfolio pricing
services to a pricing agent, if any; expenses of preparing share and other
certificates of the Funds, and other expenses, including but not limited to
stamp duties in connection with the issuance, offering, distribution, sale or
underwriting of securities issued by the Company or the Thai Fund; expenses of
registering or qualifying securities of the Company for sale; expenses relating
to investor and public relations; freight, insurance and other charges in
connection with the shipment of the Funds' portfolio securities; brokerage
commissions, stamp duties or other costs of acquiring or disposing of any
portfolio securities of the Funds; expenses of maintaining a register of holders
of interests in the Thai Fund; expenses of preparing and distributing reports
and notices to the Company, the Company's Board of Directors, the Council, the
Company's administrators, the U.S. Manager, the Thai Manager and the Company's
stockholders, and expenses of communications among such persons (other than by
the Company's stockholders); expenses of dividends and distributions to the
Company and the Company's stockholders; costs of stationery; expenses incurred
in preparing and publishing notices; costs of stockholders' and other meetings;
litigation expenses; legal fees and expenses of counsel (United States and
Thailand) to the Funds and, if such counsel are retained by the Company's
directors who are not "interested persons" of the Thai Fund or the Company, of
such counsel; fees and expenses of independent accountants of the Funds; or
expenses relating to the Company's dividend reinvestment and cash purchase plan.
3.4 The U.S. Manager agrees to work with the Thai Manager, in order to
make their relationship as productive as possible for the benefit of the Funds,
and to further the development of the Thai Manager's ability to provide the
services contemplated by paragraphs 3.1, 3.2, 3.3 and 3.4 hereof. To this end
the U.S. Manager agrees to work closely with the Thai Manager's employees and to
work with the Thai Manager to assist it in developing its research techniques,
procedures and analysis. The U.S. Manager agrees not to furnish, without the
Thai Manager's consent, to any person other than the U.S. Manager's personnel
and directors and representatives of the Funds any tangible research material
that is prepared by the Thai Manager, that is not publicly available, and that
has been stamped or otherwise clearly indicated by the Thai Manager as being
confidential.
3.5 Nothing herein shall be construed as prohibiting the Thai Manager
from providing investment advisory services to, or entering into investment
advisory agreements with, other clients including other investment companies.
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3.6 Neither the Thai Manager nor any affiliate of the Thai Manager
shall receive any compensation in connection with the placement or execution of
any transaction for the purchase or sale of securities or for the investment of
funds on behalf of the Funds, except that the Thai Manager or the Thai Manager's
affiliates may receive a commission, fee or other remuneration for acting as
broker in connection with the sale of securities to or by the Funds, if
permitted under the Investment Company Act, as amended.
3.7 The Thai Manager may rely on information reasonably believed by the
Thai Manager to be accurate and reliable. Neither the Thai Manager, the Thai
Manager's officers, directors, employees, agents nor any controlling persons as
defined in the Investment Company Act shall be subject to any liability for any
act or omission, error of judgment or mistake of law or for any loss suffered by
the Funds in the course of, connected with or arising out of any services to be
rendered hereunder except by reason of willful misfeasance, bad faith or gross
negligence in the performance of the Thai Manager's duties or by reason of
reckless disregard by the Thai Manager of the Thai Manager's obligations and
duties under this Agreement. Any person even though also employed by the Thai
Manager, whether or not as part of the Seconded Staff, who may be or become an
employee of the Funds and paid by the Funds shall be deemed, when acting within
the scope of his employment by the Funds, to be acting in such employment solely
for the Funds, and not as employee or agent of the Thai Manager.
4. Effective Date and Termination
4.1 This Agreement shall become effective on the date hereof; shall
remain in effect for a period of two years from the date hereof and shall
continue in effect thereafter, but only so long as such continuance is
specifically approved at least annually by the affirmative vote of (i) a
majority of the members of the Board of Directors who are not parties to this
Agreement or interested persons of the Funds, the Thai Manager or the U.S.
Manager, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) a majority of the Board of Directors or the holders of a
majority of the outstanding voting securities of the Company. This Agreement may
nevertheless be terminated at any time, without any penalty, by the Company's
Board of Directors or by vote of holders of a majority of the outstanding voting
securities of the Company, or by the U.S. Manager, upon 60 days' written notice
delivered or sent by registered mail, postage prepaid, to the other parties
hereto, at their respective addresses given above or at any other address of
which any shall have notified the others in writing, and shall automatically be
terminated in the event of its assignment (as defined in the Investment Company
Act) or termination of the Advisory Sections of the Investment Contract as set
forth in Section 8.2 thereof or other termination pursuant to Section 8.4
thereof. Any notice shall be deemed given when received by the addressee.
4.2 This Agreement may not be transferred, assigned, sold or in any
manner hypothecated or pledged by either party hereto other than as permitted
pursuant to Section 4.1 hereof. It may be amended by mutual agreement, but only
after authorization of such amendment (a) by the affirmative vote of (i) the
holders of a majority of the outstanding voting securities of the Company; and
(ii) a majority of the members of the Board of Directors who are not interested
persons of the Funds, the Thai Manager or the U.S. Manager, cast in person at a
meeting called for the purpose of voting on such approval; and (b) in accordance
with applicable Thai law.
5. Governing Law
This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the United
States and New York law.
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6. Notices
Except as otherwise provided herein, all notices or other
communications to the respective parties hereto shall be deemed to have been
duly made when delivered by airmail, telex or personal delivery at its address
specified below or to such other address as any of the parties hereto may
hereafter specify to the other in writing.
For the Thai Manager:
The Mutual Fund Public Company Limited
30th-32nd Floor
Lake Rajada Building
000-000 Xxxxxxxxxxxxxx Xxxx,
Xxxxxx-Xxxx
Xxxxxxx 00000, Xxxxxxxx
For the U.S. Manager:
Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
For the Company:
The Thai Fund, Inc.
c/o Morgan Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
7. Jurisdiction.
7.1 The parties irrevocably agree that any suit, action or proceeding
against the Company or the U.S. Manager arising out of or relating to this
Agreement shall be subject exclusively to the jurisdictions of the United States
District Court for the Southern District of New York and the Supreme Court of
the State of New York, New York County, and irrevocably submit to the
jurisdiction of each such Court in connection with any such suit, action or
proceeding. The parties waive any objection to the laying of venue of any such
suit, action or proceeding in either such Court, and waive any claim that such
suit, action or proceeding has been brought in an inconvenient forum. The
parties irrevocably consent to service of process in connection with any such
suit, action or proceeding by prepaid mail at their respective addresses as set
forth in this Agreement.
7.2 The parties further agree that any suit, action or proceeding
against the Thai Manager arising out of or relating to this Agreement may, at
the sole and unreviewable option of the Company (or the U.S. Manager, if the
Company is not a party), be commenced in the jurisdictions either (i) of the
courts of the Kingdom of Thailand or (ii) of the United States District Court
for the Southern District of New York (the "District Court") or the Supreme
Court of the State of New York, New York County (the "Supreme Court"). In the
event the Company (or the U.S. Manager, if the Company is not a party) exercises
its option to commence a suit, action or proceeding in either the District Court
or the Supreme Court, the Thai Manager irrevocably submits to the jurisdiction
of each such court in connection with any such suit, action or proceeding, and
the Thai Manager further agrees that, in the event the District Court, for
whatever reason, declines to exercise or is determined not to have jurisdiction
in connection with any such suit, action or proceeding, the Company (or the U.S.
Manager, if the Company is not a party) may commence a subsequent such suit,
action or proceeding in the Supreme Court, and the Thai Manager irrevocably
submits to the jurisdiction of the Supreme Court in connection with any such
subsequent suit, action or proceeding. The Thai Manager waives any objection to
the laying of venue of any such suit, action or proceeding in the District Court
or the Supreme Court, and waives any claim that such suit, action or proceeding
has been brought in an inconvenient forum. The Thai Manager irrevocably consents
to service of process in connection with any such suit, action or proceeding by
prepaid mail at its address as set forth in this Agreement.
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7.3 To the extent that the Thai Manager or the Company may now or
hereafter be entitled, in any jurisdiction in which judicial proceedings may at
any time be commenced with respect to this Agreement, to claim for itself or its
revenues or properties any immunity from suit, court jurisdiction, attachment
prior to judgment, attachment in aid of execution of a judgment, execution of a
judgment or from set-off, banker's lien, counterclaim or any other legal process
or remedy with respect to its obligations under this Agreement and/or to the
extent that in such jurisdiction there may be attributed to the Thai Manager or
the Company such an immunity (whether or not claimed), the Thai Manager and the
Company each hereby to the fullest extent permitted by applicable law
irrevocably agrees not to claim, and hereby to the fullest extent permitted by
applicable law expressly waives, any such immunity, including, without
limitation, a complete waiver of immunity pursuant to the United States Foreign
Sovereign Immunities Act.
8. Language.
The governing language of this Agreement shall be English.
9. Headings.
The headings contained in this Agreement are for reference only and
shall not be deemed to limit or affect any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized, all as of the date first above written.
THE MUTUAL FUND PUBLIC COMPANY LIMITED
By:/s/ Damrongsuk Amatyakul
-------------------------------------
Name: DAMRONGSUK AMATYAKUL
Title: PRESIDENT
XXXXXX XXXXXXX ASSET MANAGEMENT INC.
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal and General Counsel
THE THAI FUND, INC.
By:/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
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