Exhibit 4.6
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COMMON SECURITIES GUARANTEE AGREEMENT
CT CONVERTIBLE TRUST I
Dated as of July 28, 1998
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738639.2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION...............................1
SECTION 1.1. Definitions and Interpretation.............1
ARTICLE II GUARANTEE....................................................2
SECTION 2.1. Guarantee..................................2
SECTION 2.2. Waiver of Notice and Demand................3
SECTION 2.3. Obligations Not Affected...................3
SECTION 2.4. Rights of Holders..........................3
SECTION 2.5. Guarantee of Payment.......................4
SECTION 2.6. Subrogation................................4
SECTION 2.7. Independent Obligations....................4
ARTICLE III LIMITATION OF TRANSACTIONS; SUBORDINATION....................4
SECTION 3.1. Limitation of Transactions.................4
SECTION 3.2. Subordination..............................5
ARTICLE IV TERMINATION..................................................5
SECTION 4.1. Termination................................5
ARTICLE V MISCELLANEOUS................................................5
SECTION 5.1. Successors and Assigns.....................5
SECTION 5.2. Amendments.................................5
SECTION 5.3. Notices....................................6
SECTION 5.4. Benefit....................................6
SECTION 5.5. Governing Law..............................6
738639.2
PRIOR TO THE TRANSFER RESTRICTION TERMINATION DATE (AS DEFINED IN THE
DECLARATION), ANY CERTIFICATE EVIDENCING THIS COMMON SECURITIES GUARANTEE SHALL
BEAR A LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM, UNLESS OTHERWISE AGREED BY
THE REGULAR TRUSTEES (WITH WRITTEN NOTICE TO THE INSTITUTIONAL TRUSTEE) PURSUANT
TO SECTION 9.1(D) OF THE DECLARATION:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON SHARES ISSUABLE UPON
CONVERSION OR EXCHANGE OF THIS SECURITY EXCEPT (A) TO CAPITAL TRUST (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE WILMINGTON
TRUST COMPANY, AS TRUSTEE (OR, IF THIS CERTIFICATE EVIDENCES COMMON SHARES, THE
TRANSFER AGENT FOR THE COMMON SHARES), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
WILMINGTON TRUST COMPANY, AS TRUSTEE (OR, IF THIS CERTIFICATE EVIDENCES COMMON
SHARES, SUCH HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR CT CONVERTIBLE TRUST I
(THE "TRUST") MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT). IF THIS CERTIFICATE DOES NOT
EVIDENCE COMMON SHARES AND IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE WILMINGTON TRUST COMPANY, AS TRUSTEE,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE
TRUST MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
738639.2
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATIONS UNDER THE SECURITIES ACT.
738639.2
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of July 28, 1998, is executed and delivered by Capital Trust, a California
business trust (the "Guarantor"), for the benefit of the Holders (as defined
herein) from time to time of the Common Securities (as defined herein) of CT
Convertible Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to a Declaration of Trust (the "Declaration"), dated
as of July 28, 1998, among the trustees of the Issuer named therein, the
Guarantor, as sponsor, and the holders from time to time of undivided beneficial
interests in the assets of the Issuer, the Issuer is issuing on the date hereof
up to 4,650 common securities (the "Common Securities"), having an aggregate
stated liquidation amount of $4,650,000, designated the 8.25% Step Up
Convertible Trust Common Securities;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Preferred Securities Guarantee") in
substantially identical terms to this Common Securities Guarantee for the
benefit of the holders of the Preferred Securities (as defined herein), except
that if an Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
holders of Preferred Securities to receive guarantee payments under the
Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Common Securities Guarantee
for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of
this Common Securities Guarantee have the same meaning when used in this Common
Securities Guarantee unless otherwise defined in this Common Securities
Guarantee;
(c) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(d) all references to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are to this Common Securities Guarantee as modified,
supplemented or amended from time to time;
738639.2
(e) all references in this Common Securities Guarantee to Articles and
Sections are to Articles and Sections of this Common Securities Guarantee,
unless otherwise specified; and
(f) a reference to the singular includes the plural and vice versa.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Common Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price (the "Redemption Price") or Adjusted Redemption Price, specified in the
Indenture, as the case may be, and all accrued and unpaid Distributions to the
date of redemption, to the extent the Issuer has funds available therefor, with
respect to any Common Securities called for redemption by the Issuer, and (iii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the redemption of all of the Common
Securities or the distribution of Debentures to the Holders in exchange for
Common Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Common Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders of Common Securities then
outstanding upon the liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an Event of Default (as defined in the Indenture) has
occurred and is continuing, the rights of holders of the Common Securities to
receive payments under the Common Securities Guarantee Agreement are
subordinated to the rights of Holders of Common Securities to receive Guarantee
Payments.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities; provided, however, that, in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Majority in liquidation amount of the Common Securities" means,
except as provided in the terms of the Common Securities, or except as provided
by the Trust Indenture Act, a vote by Holder(s), voting separately as a class,
of more than 50% of the liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Common Securities.
"Preferred Securities" means the securities representing preferred
undivided beneficial interests in the assets of the Issuer.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
738639.2
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SECTION 2.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right or remedy to require a proceeding
first against the Issuer or any other Person before proceeding directly against
the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 2.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Common Securities Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Common Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price or the Adjusted Redemption Price,
as the case may be, Liquidation Distribution or any other sums payable under the
terms of the Common Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of Distributions,
Redemption Price or the Adjusted Redemption Price, as the case may be,
Liquidation Distribution or other sum payable that results from the extension of
any interest payment period on the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Common Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4. Rights of Holders.
Any Holder of Common Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Common
Securities Guarantee, without first instituting a legal proceeding against the
Issuer or any other person or entity. The Guarantor waives any right or remedy
to require that any action be brought first against the Issuer or any other
person or entity before proceeding directly against the Guarantor.
738639.2
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SECTION 2.5. Guarantee of Payment.
This Common Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 2.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Common Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Common Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 2.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions.
So long as any Common Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on the Debentures
by extending the interest payment period and such extension period, or any
extension thereof, shall be continuing, (ii) the Guarantor shall be in default
with respect to its Guarantee Payments or other obligations under this Common
Securities Guarantee or (iii) there shall have occurred and be continuing an
Event of Default under the Declaration or any event that, with the giving of
notice or lapse of time or both, would constitute an Event of Default under the
Declaration, then the Guarantor shall not (a) declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire, or make
any liquidation payment with respect to, any of its Capital Stock or (b) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities of the Guarantor that rank pari passu with or
junior in interest to the Debentures or make any guarantee payment with respect
to any guarantee by the Guarantor of the debt securities of any subsidiary of
the Guarantor if such guarantee ranks pari passu with or junior in interest to
the Debentures (other than (i) as a result of a reclassification of the Capital
Stock of the Guarantor or the exchange or conversion of one class or series of
the Capital Stock of the Guarantor for another class or series of the Capital
Stock of the Guarantor, (ii) the purchase of fractional interests in shares of
the Capital Stock of the Guarantor pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted into or
exchanged for such Capital Stock, (iii) dividends or distributions in Common
Shares of the Guarantor, (iv) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the issuance of shares
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (v) payments under the Common Securities Guarantee and
Preferred Securities Guarantee, (vi) purchases of Common Shares of the Guarantor
related to the issuance of Common Shares of the Guarantor or rights under any of
the Guarantor's benefit plans for its directors, officers or employees and (vii)
obligations under any dividend reinvestment and stock purchase plans).
738639.2
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SECTION 3.2. Subordination.
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor (except any liabilities that
may be pari passu expressly by their terms), (ii) pari passu with the most
senior preferred or preference shares now or hereafter issued by the Guarantor
and with any guaranty now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any Affiliate of the Guarantor and (iii)
senior to the Guarantor's Common Shares.
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.
This Common Securities Guarantee shall terminate upon (i) full payment
of the Redemption Price and accrued and unpaid distributions with respect to all
Common Securities, (ii) the distribution of the Common Shares to such Holder
upon the conversion of such Holder's Common Securities into the Common Shares,
(iii) the distribution of the Debentures to the Holders of the Common
Securities, or (iv) full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. This Common Securities Guarantee
shall terminate completely upon full payment of the amounts payable in
accordance with the Declaration. Notwithstanding the foregoing, this Common
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder must restore payment of any sum paid
under the Common Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns.
All guarantees and agreements contained in this Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding. Except in connection with any merger
or consolidation of the Guarantor with or into another entity permitted by
Section 9.1 of the Indenture or any sale, transfer or lease of the Guarantor's
assets to another entity permitted by Section 9.1 of the Indenture, the
Guarantor may not assign its rights or delegate its obligations under this
Common Securities Guarantee without the prior approval of the holders of at
least a Majority in liquidation amount of the Common Securities then
outstanding.
SECTION 5.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Common Securities Guarantee may only be amended with the prior approval of the
Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of the Common Securities then outstanding. The provisions of Section
12.2 of the Declaration with respect to meetings of Holders apply to the giving
of such approval.
738639.2
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SECTION 5.3. Notices.
All notices provided for in this Common Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Regular Trustees at the
Issuer's mailing address set forth below (or such other address as the Issuer
may give notice of to the Holders of the Common Securities):
CT Convertible Trust I
Capital Trust
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Common Securities):
Capital Trust
605 Third Avenue, 26th Floor
New York, NY 10016
Attention: Chief Financial Officer
(c) If given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 5.4. Benefit.
This Common Securities Guarantee is solely for the benefit of the
Holders of the Common Securities and is not separately transferable from the
Common Securities.
SECTION 5.5. Governing Law.
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
738639.2
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
CAPITAL TRUST, as Guarantor
By: /s/ John R. Klopp
---------------------------
Name: John R. Klopp
Title: Chief Executive Officer
738639.2
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