Exhibit 23(h)(1)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of July 28, 2000 by and between PFPC INC., a
Delaware corporation ("PFPC"), and KELMOORE STRATEGY(TM) VARIABLE TRUST, a
Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund and listed on the Authorized Persons Appendix
attached hereto and made a part hereof or any amendment
thereto as may be received by PFPC. An Authorized Person's
scope of authority may be limited by the Fund by setting forth
such limitation in the Authorized Persons Appendix.
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(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(i) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may
be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC or
its affiliates to provide services to the Fund and approving
this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund (each, a Portfolio);
(d) A copy of the distribution agreement with respect to each
class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC
is not providing the Portfolio with such services;
(e) Copies of any shareholder servicing agreements made in respect
of the Fund or a Portfolio;
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(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with
all applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any of its investment portfolios.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Trustees or of
the Fund's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that
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such confirming Written Instructions are not received by PFPC
shall in no way invalidate the transactions or enforceability
of the transactions authorized by the Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to
have been received from an Authorized Person, PFPC shall incur
no liability to the Fund in acting upon such Oral Instructions
or Written Instructions provided that PFPC's actions comply
with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice at its own cost from such
counsel of its own choosing (who may be counsel for the Fund,
the Fund's investment adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice it
receives from counsel, PFPC may rely upon and follow the
advice of counsel. In the event PFPC so relies on the advice
of counsel, PFPC remains liable for any action or omission on
the part of PFPC which constitutes willful misfeasance, bad
faith, gross negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this
Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or
Oral Instructions or Written
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Instructions it receives from the Fund or from counsel and
which PFPC believes, in good faith, to be consistent with
those directions, advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (i) to seek, unless
otherwise required to do so under the terms of this Agreement,
such directions, advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such
directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly
taking or not taking such action. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of
PFPC constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties,
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. PFPC agrees to keep confidential the records of the
Fund and information relating to the Fund and its shareholders, unless
the release of such records or information is otherwise consented to,
in writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be
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exposed to civil or criminal contempt proceedings or when required to
divulge such information or records to duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC.
12. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless PFPC
and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities
arising under the Securities Laws and any state and foreign securities
and blue sky laws, and amendments thereto), and expenses, including
(without limitation) attorneys' fees and disbursements, arising
directly or indirectly from (i) any action or omission to act which
PFPC takes (a) at the request or on the direction of or in
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reliance on the advice of the Fund or (b) upon Oral Instructions or
Written Instructions or (ii) the acceptance, processing and/or
negotiation of checks or other methods utilized for the purchase of
Shares. Neither PFPC, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability)
arising out of PFPC's or its affiliates' own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement, provided that in the absence of a
finding to the contrary the acceptance, processing and/or negotiation
of a fraudulent payment for the purchase of Shares shall be presumed
not to have been the result of PFPC's or its affiliates own willful
misfeasance, bad faith, gross negligence or reckless disregard of such
duties and obligations. Notwithstanding anything in this Section 13 to
the contrary, the indemnity provided in this Section 13 shall not apply
to any consequential, special or indirect losses or damages which PFPC
may incur or suffer as a result of acting or not acting (i) at the
request or on the direction of or in reliance on the advice of the Fund
or (ii) upon Oral Instructions or Written Instructions, whether or not
the likelihood of such losses or damages was known by the Fund.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC in writing. PFPC shall be
obligated to exercise care and diligence in the performance of
its duties hereunder and to act in good faith in performing
services provided for under this Agreement. PFPC shall be
liable for any damages arising out of PFPC's failure to
perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith,
gross negligence or
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reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC, shall not be
liable for losses beyond its control, provided that PFPC has
acted in accordance with the standard of care set forth above;
and (ii) PFPC shall not be under any duty or obligation to
inquire into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine;
or (B) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control,
including acts of civil or military authority, national
emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Fund
for any consequential, special or indirect losses or damages
which the Fund may incur or suffer by or as a consequence of
PFPC's or its affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or
damages was known by PFPC or its affiliates.
14. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain proper shareholder registrations;
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(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the clients;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(i) Accept and post daily Fund purchases and redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in
writing by the shareholder).
(c) Purchase of Shares. PFPC shall issue and credit an account of
an investor, in the
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manner described in the Fund's prospectus, once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in proper form and directs the method of
redemption. If Shares are received in proper form, Shares
shall be redeemed before the funds are provided to PFPC from
the Fund's custodian (the "Custodian"). If the recordholder
has not directed that redemption proceeds be wired, when the
Custodian provides PFPC with funds, the redemption check shall
be sent to and made payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) Transfer authorizations are signed by the
recordholder when Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the
broker-dealer and made payable to the broker-dealer on behalf
of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of
the Fund's Board of
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Trustees authorizing the declaration and payment of dividends
and distributions, PFPC shall issue dividends and
distributions declared by the Fund in Shares, or, upon
shareholder election, pay such dividends and distributions in
cash, if provided for in the Fund's prospectus. Such issuance
or payment, as well as payments upon redemption as described
above, shall be made after deduction and payment of the
required amount of funds to be withheld in accordance with any
applicable tax laws or other laws, rules or regulations. PFPC
shall mail to the Fund's shareholders such tax forms and other
information, or permissible substitute notice, relating to
dividends and distributions paid by the Fund as are required
to be filed and mailed by applicable law, rule or regulation.
PFPC shall prepare, maintain and file with the IRS and other
appropriate taxing authorities reports relating to all
dividends above a stipulated amount paid by the Fund to its
shareholders as required by tax or other law, rule or
regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders,
checks and applications.
(ii) PFPC may arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in an
automatic redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
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(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) Records. PFPC shall create and maintain all records required
of it pursuant to its duties under the terms of this Agreement
in accordance with all applicable terms of this Agreement in
accordance with all applicable laws, rules, and regulations.
To that end, PFPC shall maintain records of the accounts for
each shareholder. The account information maintained by PFPC
in connection with each shareholder account should include the
following information as well as any additional information
that PFPC may be required to maintain by applicable laws,
rules, or regulations:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
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(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer
agent to perform any calculations contemplated or
required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
against any certificate reported to be lost or stolen and
comply with all applicable federal regulatory requirements for
reporting such loss or alleged misappropriation. A new
certificate shall be registered and issued only upon:
(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request from
any Fund shareholder to inspect stock records, PFPC will
notify the Fund and the Fund will issue instructions granting
or denying each such request. Unless PFPC has acted contrary
to the Fund's instructions, the Fund agrees and does hereby,
release PFPC from any liability for refusal of permission for
a particular shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates.
Upon receipt of Written Instructions, PFPC shall cancel
outstanding certificates surrendered by the Fund to reduce the
total amount of outstanding shares by the number of shares
surrendered by the Fund.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days' prior written
notice to the other party.
16. NOTICES. All notices and other communications, including Written
Instructions, shall be
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in writing or by confirming telegram, cable, telex or facsimile sending
device. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
Parkway, Wilmington, Delaware 19809, Attention: President; (b) if to
the Fund, at 2471 E. Bayshore Rd., #501, Palo Alto, CA 94303,
Attention: Tamara Beth Heiman (c) if to neither of the foregoing, at
such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been
given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of PNC Bank Corp., provided that (i) PFPC gives the Fund 60
days prior written notice of such assignment or delegation, (ii) the
assignee or delegate agrees to comply with the relevant provision of
the 1940 Act and the terms of this Agreement, and (iii) PFPC and such
assignee or delegate promptly provide such information as the Fund may
reasonably request, and respond to such questions as the Fund may
reasonably ask, relative to the assignment or delegation (including,
without limitation, the capabilities of the assignee or delegate).
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law; provided, however, that
this Agreement at all times shall be interpreted in a manner
that is consistent with the 1934 Act and 1940 Act.
(d) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(e) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall
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constitute the valid and binding execution hereof by such
party.
(g) All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against
the Fund as neither the Trustees, officers, agents or
shareholders assume any personal liability for obligations
entered into on behalf of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
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Title:
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KELMOORE STRATEGY(TM) VARIABLE TRUST
By: Shawn K. Young
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Title: President
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EXHIBIT A
THIS EXHIBIT A, dated as of July 28, 2000, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of July 28, 2000 between PFPC Inc.
and Kelmoore Strategy(TM) Variable Trust.
PORTFOLIOS
Kelmoore Strategy(TM) Variable Fund
Kelmoore Strategy(TM) Variable Eagle Fund
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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