EXHIBIT 1.2
CORNERSTONE REALTY FUND, LLC
FORM OF
PARTICIPATING BROKER AGREEMENT
Dear Sirs:
Cornerstone Realty Fund, LLC, a California limited liability company
(the "Fund"), and its managing member, Cornerstone Industrial Properties, a
California limited liability company ("Managing Member"), propose to offer and
sell to selected persons or entities acceptable to the Managing Member, upon the
terms and subject to the conditions set forth in the enclosed Prospectus, up to
100,000 units of limited liability company interests relating to the Fund
("Units") aggregating a maximum of $50,000,000, in the minimum number of five
Units (two Units for Tax-Qualified Retirement Plans), and to enter into the
Operating Agreement in the form included in such Prospectus as Exhibit "A" (the
"Operating Agreement") with such persons or entities.
Pacific Cornerstone Capital, Incorporated, a California corporation
("Dealer Manager"), has entered into a dealer manager agreement ("Dealer Manager
Agreement") with the Fund pursuant to which it has agreed to act as dealer
manager in connection with the offer and sale of the Units. Dealer Manager has
agreed to use commercially reasonable efforts to find purchasers of Units both
directly and indirectly through a selling group consisting of participating
brokers ("Participating Brokers").
Dealer Manager hereby invites you to become a Participating Broker in
connection with the offer and sale of the Units. By your acceptance hereof, you
agree to act in such capacity and to use your best efforts to find purchasers
for the Units in accordance with the terms of the Prospectus and this Agreement.
Accompanying this Agreement is a copy of the Prospectus and all
written, audio or audio-visual material, including an investment summary, audio
tape, video tape and internet site ("Supplemental Material") prepared by the
Fund for use in conjunction with the offer and sale of the Units. You are not
authorized to use any solicitation material other than that referred to in this
paragraph, which material has been furnished by the Fund.
1. SALE OF THE UNITS.
A subscription agreement ("Subscription Agreement") must be
completed by each person desiring to purchase Units, or, at your option, by you
on behalf of each such person, and returned by you together with any other
documents that may be required under state securities laws or by the Managing
Member, to the Managing Member at 4590 MacArthur Blvd., Suite 610, Newport
Beach, California 92660, Attention: Terry G. Roussel. You shall ascertain that
the Subscription Agreement has been properly completed in full and signed by the
prospective purchaser prior to its return.
All subscription checks shall be made payable to the order of
USB ESCROW NO. 13778-GG FOR CORNERSTONE REALTY FUND until the Minimum
Subscription Date and thereafter all subscription checks shall be made payable
to CORNERSTONE REALTY FUND, LLC. If you receive a check not conforming to the
foregoing instructions, you must return such check directly to the subscriber
not later than the end of the next business day following its receipt. On or
before the Minimum Subscription Date, checks conforming to the foregoing
instructions shall be transmitted by you for deposit directly to U.S. Bank,
National Association ("Escrow Agent"), at 4100 Newport Place, Suite 130, Newport
Beach, California 92660 by the end of the next business day following receipt by
you. Following the Minimum Subscription Date, checks conforming to the foregoing
instructions
shall be transmitted by you for deposit directly to the Escrow Agent, at 4100
Newport Place, Suite 130, Newport Beach, California 92660 by the end of the next
business day following receipt by you. In the event your final internal
supervisory review is conducted at a different location, then checks must be
transmitted to your final review office by the end of the next business day
following receipt by you and your final review office must in turn, by the end
of the next business day following receipt by it, transmit the check for deposit
directly to the Escrow Agent on or before the Minimum Subscription Date or to
the Fund after the Minimum Subscription Date.
Upon receipt of the Subscription Agreement, the Managing
Member, on behalf of the Fund, will determine promptly (and in any event within
ten (10) days after such receipt) whether it wishes to accept the proposed
purchaser as a member in the Fund, it being understood that the Managing Member
reserves the right to reject the tender of any Subscription Agreement and to
reject all tenders after the Termination Date, in each case in its sole
discretion. Should the Managing Member determine to accept the tender of the
Subscription Agreement, the Managing Member will promptly advise you of such
action. Should the Managing Member determine to reject the tender, it will
promptly notify in writing the prospective purchaser and you of such
determination and will promptly return the tendered Subscription Agreement and
instruct the Escrow Agent to return the purchase price of the Units directly to
the prospective purchaser if the determination is made on or before the Minimum
Subscription Date or the Fund will return the purchase price of the Units
directly to the prospective purchaser if the determination is made after the
Minimum Subscription Date.
All payments received prior to the Minimum Subscription Date,
except as hereinafter provided, from purchasers of Units shall be transmitted
directly to the Escrow Agent and deposited in an escrow account (the "Escrow
Account") with Escrow Agent. Such funds may be temporarily invested in bank
savings accounts, bank or money market accounts, bank short-term certificates of
deposit of U.S. banks having a net worth of $100 million, or short-term U.S.
government issued or guaranteed obligations. Prior to the Minimum Subscription
Closing Date, the Fund will have no right to obtain any funds from the Escrow
Agent. Funds for Units purchased on or before the Minimum Subscription Date
shall be made available to the Fund, or its order, by the Escrow Agent, on the
Minimum Subscription Closing Date.
Nothing contained in this Section 1 shall be construed to
impose upon the Managing Member the responsibility of assuring that prospective
purchasers meet the suitability standards contained in the Prospectus and the
Subscription Agreement or to relieve you of the responsibility of complying with
the Conduct Rules of the National Association of Securities Dealers, Inc.
("NASD").
2. Termination Date, Minimum Subscription Date and Minimum
Subscription Closing Date.
As used herein, the term "Termination Date" shall mean the
earliest to occur of (i) the date upon which subscriptions for the maximum
number of Units have been accepted by the Managing Member, which date the
Managing Member shall designate by notice to Dealer Manager in writing, or (ii)
____________, 2003. The Managing Member may terminate the offering of Units at
any time for any reason by written notice to the Dealer Manager at least two (2)
business days prior to the termination date.
As used herein, the term "Minimum Subscription Date" or
"Minimum Subscription Closing Date" shall mean the date on which the Managing
Member shall mail or otherwise furnish to Dealer Manager notification that
subscriptions and payments for an aggregate of at least 6,000 Units have been
received and accepted by the Managing Member and deposited with the Escrow
Agent. In the event that subscriptions and payments for at least 6,000 Units
shall not have been received and accepted by the Managing Member on or prior to
____________, 2002, this Agreement will terminate and neither the Fund nor the
Managing Member shall have any further obligation or liability hereunder to
Dealer Manager or Participating Brokers. In the event of such termination, all
purchase payments deposited with
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the Escrow Agent shall be returned to the subscribers and no selling commissions
(as described below) will be payable.
3. COMPENSATION.
Except in cases where the purchaser of Units receives a Volume
Discount as defined in the Prospectus, for your services as a Participating
Broker in soliciting and obtaining purchasers of Units, Dealer Manager shall
reallow to you from the selling commissions received from the Fund, only with
respect to prospective purchasers who are accepted as members of the Fund, a
selling concession of _____ % of the gross offering proceeds realized from the
sale of each Unit sold by you in accordance with the provisions of this
Agreement until the Fund has sold $3,000,000 of Units and thereafter ___% of the
gross proceeds realized from the sale of each Unit sold by you in accordance
with the provisions of this Agreement. Dealer Manager shall reallow to you an
additional ___% of the gross offering proceeds realized from the sale of each
Unit sold by you as a marketing support fee for marketing services, expense
reimbursements, bonuses and incentive compensation. Dealer Manager shall reallow
to you an additional ___% of the gross offering proceeds realized from the sale
of each Unit sold by you as a non-accountable expense allowance. dealer manager
shall reallow to you an additional _____% of the gross offering proceeds
realized from the sale of each Unit sold by you as due diligence expense. The
selling commissions, marketing support fee, non-accountable expense allowance
and due diligence expense allowance will be paid as follows: (i) on or promptly
following the Minimum Subscription Closing Date, the Fund will pay the selling
commissions, marketing support fees, non-accountable expense allowance and due
diligence expense allowance payable with respect to the Units purchased on or
before the Minimum Subscription Date, and (ii) after the Minimum Subscription
Closing Date, the Fund will pay the selling commissions, marketing support fees
and due diligence expense allowance payable with respect to Units purchased
during the period commencing with the first business day following the Minimum
Subscription Date and ending on the Termination Date unless otherwise agreed no
later than the 15th day of the month with respect to purchases made through the
end of the prior month.
In the event the Dealer Manager gives you any advance of any
portion of the marketing support fee, non-accountable expense allowance or due
diligence expense allowance, the amount of the advance shall be deducted by the
Fund from amounts owed to you for selling commissions, marketing support fees,
non-accountable expense allowance or due diligence expense allowance by the
Fund.
No person will be entitled to a selling commission in any case
in which it is determined that the solicitation or obtaining of purchasers by
such person was made in violation of the securities laws of the United States or
any state or other jurisdiction or in violation of the requirements of Section 5
hereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTICIPATING BROKER.
The Participating Broker represents and warrants to and covenants to the Dealer
Manager, the Fund and the Managing Member that:
(a) It is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation. It has full power
and authority to act as a Participating Broker in connection with the offer and
sale of the Units, and to perform all of its obligations hereunder or
contemplated hereby or in the Prospectus, and is qualified to do business in
each jurisdiction in which such qualification is necessary to enable it to
perform such obligations or to so act as the Participating Broker.
(b) This Agreement has been duly authorized, executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Participating Broker, enforceable against the Participating Broker in accordance
with its terms, subject, as to enforcement, to the availability of
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equitable remedies and limitations imposed by bankruptcy, insolvency,
reorganization and other similar laws and related court decisions relating to or
affecting creditors' rights generally.
(c) It is (i) a registered broker-dealer under the Securities
Exchange Act of 1934, (ii) a member in good standing of the National Association
of Securities Dealers, Inc. ("NASD"), and (iii) registered as a broker-dealer in
each jurisdiction in which it is required to be registered as such in order to
offer and sell the Units in such jurisdiction.
(d) It has not violated any of the "bad boy" disqualification
provisions contained in the securities or "blue sky" laws of any jurisdiction in
which the Units may be offered.
(e) It will not make any written or oral statement with
respect to the Fund or the offering of Units that is materially inconsistent
with the statements in the Prospectus or Supplemental Material.
(f) It will periodically notify the Dealer Manager of the
jurisdictions in which the Units are being, or will be, offered by it, and will
periodically notify the Dealer Manager of the status of the offering conducted
pursuant to this Agreement.
(g) It will cease making offers and soliciting subscriptions
for Units if so requested by the Dealer Manager in order to comply with
applicable federal and state securities laws, and will forward to offerees for
execution and delivery such additional documents and instruments as the Dealer
Manager may reasonably require.
(h) It will: (i) maintain all representation letters,
questionnaires and other materials utilized by it to ascertain the satisfaction
of the above criteria by offerees and investors, for a period of at least six
years from the date of the offering is completed; and (ii) make such material
available to the Dealer Manager upon its request.
(i) Before, during or after the offering, except with the
prior written consent of the Dealer Manager and except for internal-use only
purposes or for the delivery to its advisors, it has not duplicated and will not
duplicate any of the Supplemental Material or other similar selling
documentation furnished to it by the Dealer Manager, the Fund or Managing
Member.
(j) It has not paid or awarded, and will not pay or award,
directly or indirectly, any commission or other compensation to any person
engaged to render investment advice to a potential subscriber as an inducement
to advise the purchase of the Units, except as such commissions or other
compensation may be paid or awarded to it or reallowed by it in connection with
the sale of the Units as described in the Prospectus.
5. AGREEMENTS OF PARTICIPATING BROKER.
(a) You covenant and agree to comply with any applicable
requirements of the Act and of the 1934 Act, and the published rules and
regulations thereunder, and the Conduct Rules of the NASD, and, in particular
the Conduct Rules which require you: (i) to recommend the purchase of Units only
when you have reasonable grounds to believe that the investment is suitable for
the investor, and that the investor is in a financial position to sustain the
risks inherent in the investment including loss of investment and lack of
liquidity, (ii) to maintain certain files concerning the basis for your
determination of the suitability of the investor, (iii) to determine the
adequacy and accuracy of the disclosure in the Prospectus, and (iv) to inform
the prospective investor of all pertinent facts relating to the liquidity and
marketability of the investment during the term of the investment. You agree you
shall not execute any transaction in a discretionary account without the prior
written approval of the transaction by the customer. In determining the adequacy
of disclosed facts, you shall obtain facts relating at a minimum to
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the following to the extent relevant to the investment: (1) items of
compensation; (2) physical properties; (3) tax aspects; (4) financial stability
and experience of the sponsor; (5) the investment's conflicts and risk factors;
and (6) appraisals and other pertinent reports. You may only rely upon the
results of an inquiry conducted by another NASD member or members if: (x) you
have reasonable grounds to believe that such inquiry was conducted with due
care; (y) the results of the inquiry were provided to you with the consent of
the NASD member or members conducting or directing the inquiry; and (z) no NASD
member that participated in the inquiry is a sponsor of the investment or an
affiliate of such sponsor. You also agree not to deliver the Supplemental
Material to any person unless the Supplemental Material is accompanied or
preceded by the Prospectus. You confirm that you are registered as a
broker-dealer and are in good standing under the 1934 Act. You also confirm that
you are a member in good standing of the NASD.
(b) You will not give any information or make any
representation in connection with the offering of the Units other than those
contained in the Prospectus and Supplemental Material furnished by the Managing
Member and the Fund. You agree not to publish, circulate or otherwise use any
other advertisement or solicitation material. You are not authorized to act as
agent of the Fund or the Managing Member in any connection or transaction, and
you agree not to act as such agent and not to purport to do so without the prior
written approval of the Managing Member. You agree that if and when the Managing
Member supplies you with copies of any supplement to the Prospectus, you will
affix such copies of such supplement to copies of the Prospectus already in your
possession, and that thereafter you will only distribute Prospectuses containing
such supplement and that you will accept subscriptions only from investors who
have received a copy of the Prospectus containing such supplement. You further
agree to comply with all instructions from the Managing Member concerning the
destruction of out-dated Prospectuses and the use of supplemented or amended
Prospectuses.
(c) You agree to solicit purchases of the Units only in the
states and other jurisdictions in which the Managing Member indicates that such
solicitation can be made and in which you have determined that such solicitation
can be made by you and in which you are qualified to so act.
(d) You will not sell the Units pursuant to this Agreement
unless the Prospectus is furnished to the purchaser at least five (5) business
days prior to the mailing of the confirmation of sale, or is sent to such person
under circumstances that it would be received by him five (5) business days
prior to his receipt of a confirmation of the sale.
(e) You will use reasonable efforts to select investors who
you reasonably believe meet the investor suitability requirements which are set
forth in the Prospectus and Subscription Agreement (Exhibit "C" to the
Prospectus) and such additional individual state requirements as are specified
in the applicable Subscription Agreement, and which are confirmed by the
investors by payment of the purchase price for the Units including that each
individual or custodial investor be of legal age in the state of his or her
residency. You will, for a period of six years, maintain in your files a copy of
the Subscription Agreement for each investor for whom you act as Participating
Broker.
(f) To the extent that information is provided to you marked
"For Broker-Dealer Use Only", you covenant and agree not to provide such
information to prospective investors.
6. INDEMNIFICATION.
(a) You agree to indemnify, defend and hold harmless the Fund,
the Managing Member and the Dealer Manager from all losses, claims, demands,
liabilities and expenses, including reasonable legal and other expenses incurred
in defending such claims or liabilities, whether or not resulting in any
liability to the Fund, the Managing Member or the Dealer Manager, which the
Fund, the Managing Member or the Dealer Manager may incur in connection with the
offer or sale of any Units by you pursuant to this Agreement which arise out of
or are based upon (1) an untrue statement or alleged untrue statement of a
material fact, or any omission or alleged omission of a material fact, other
than a
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statement or omission contained in the Prospectus, the Registration Statement,
or any state securities filing which was not based on information supplied to
the Fund, the Managing Member or the Dealer Manager by you, or (ii) your breach
of any of the terms and conditions of this Agreement, including, but not limited
to, alleged violations of the Securities Act of 1933, as amended; or (iii) your
violation of the NASD Conduct Rules.
(b) The Fund and the Managing Member, jointly and severally, will
indemnify, defend and hold harmless you, your affiliates, and each of your
officers, directors and employees, and each person, if any, who "controls" you
(within the meaning of the 1933 Act) from and against any and all losses,
claims, demands, damages, liabilities, costs and expenses (including reasonable
attorney's fees and other expenses incurred in defending such claims or
liabilities, whether or not resulting in any liability to you, to which the you,
your affiliates, or any such officer or employee or such controlling person may
become subject, under the 1933 Act or any other federal or state securities law
or otherwise, insofar as such losses, claims, demands, damages, liabilities,
costs and expenses (or actions or proceedings in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus or Supplemental Material or in
information furnished pursuant to this Agreement or otherwise by the Fund, the
Managing Member or their respective representatives, or in any "blue sky"
application or other document filed under state securities laws or regulations
(collectively, "Blue Sky Documents"); (ii) the omission or alleged omission from
the Prospectus or Supplemental Material, or from information furnished pursuant
to this Agreement or otherwise by the Fund, the Managing Member or their
respective representatives, or from any Blue Sky Documents, of any statement or
information which is required to be stated therein or is necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; (iii) the making of an offer by the Fund, the Managing Member or
their respective affiliates, or anyone acting on behalf of them, other than you,
of any interests or securities; (iv) violations by the Fund or the Managing
Member of any of their respective representations, warranties, covenants and
agreements contained in this Agreement; or (v) the failure of the offer and sale
of the Units to be registered or qualified for exemption from registration under
any state securities or "blue sky" laws other than as a result of the
non-compliance by you with your obligations hereunder; and the Fund and the
Managing Member, jointly and severally, will reimburse you for any legal or
other expenses reasonably incurred by you, your affiliates, or any such officer,
director or employee or any such controlling person in connection with
investigating, defending or preparing to defend any such loss, claim, damage,
liability or action. The indemnity agreement in this Section 7(b) shall be in
addition to any liability which the Fund or the Managing Member may otherwise
have to you, your affiliates, or any such officer or employee or any such
controlling person.
7. EFFECTIVE DATE AND TERMINATION.
This Agreement shall become effective upon its execution and
delivery by Dealer Manager, the Fund and you.
Until the Minimum Subscription Closing Date, this Agreement
may be terminated by you or Dealer Manager at either of our option by giving
written notice to the other and the Fund and the Managing Member if: (a) the
Fund or the Managing Member shall have become a defendant in any litigation
which, in Dealer Manager's opinion, may reasonably be expected to result in a
judgment having materially adverse consequences for the Fund or the Managing
Member or there shall have been, since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
material adverse change in the condition, financial or otherwise, of the Fund or
the Managing Member, which change in Dealer Manager's or your judgment shall
render it inadvisable to proceed with the delivery of the Units, or (b) there
shall have been any important change in market levels, major catastrophe,
substantial change in national, international or world affairs, national
calamity, postal strike, act of God, or other event or occurrence which, in
Dealer Manager's or your judgment, will materially disrupt the financial markets
of the United States, or (c) trading in securities generally on the New York
Stock Exchange shall have been suspended or minimum prices shall have been
established on such
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Exchange by the Commission or by such Exchange, or (d) a general banking
moratorium shall have been declared by federal or state authorities, or (e) the
Managing Member has terminated the offering of Units as provided in Section 2
hereof, or (f) the Fund or the Managing Member is in breach of this Agreement or
the Dealer Manager Agreement and has failed to cure such breach within 30 days
notice from you or Dealer Manager to the Fund or the Managing Member of such
breach..
Following the Minimum Subscription Closing Date, this
Agreement may be terminated by you or Dealer Manager at you or its option by
giving written notice to the other and the Fund and the Managing Member. In any
case, this Agreement will terminate at the close of business on the Termination
Date; provided, however, that all fees payable to you under the terms and
conditions hereof shall be paid when due although this Agreement shall have
theretofore been terminated.
Except as otherwise provided in Section 8, any termination of
this Agreement pursuant to this Paragraph 7 shall be without liability of Dealer
Manager, the Fund and the Managing Member to you and without liability on your
part to Dealer Manager, the Fund or the Managing Member, except with respect to
compensation earned for accepted subscriptions.
8. SURVIVAL OF INDEMNITIES, WARRANTIES AND REPRESENTATIONS.
Your indemnity agreements contained in Section 6 hereof shall remain
operative and in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of you,
Dealer Manager, the Fund, the Managing Member, or any controlling person
thereof, and shall survive the delivery of and payment for the Units, and any
successor of the Fund, the Managing Member or the Dealer Manager or of any such
controlling person or any legal representative of any such controlling person,
as the case may be, shall be entitled to the benefit of your indemnity
agreements.
9. NOTICES.
Except as otherwise provided in this Agreement, (a) whenever
notice is required by the provisions of this Agreement or otherwise to be given
to the Fund, or the Managing Member, such notice shall be in writing addressed
to the Fund or the Managing Member at 4590 MacArthur Boulevard, Suite 610,
Newport Beach, California 92660, Attention: Terry G. Roussel, (b) whenever
notice is required by the provisions of this Agreement or otherwise to be given
to Dealer Manager, such notice shall be in writing addressed to Dealer Manager
at 4590 Macarthur Blvd., Suite 610, Newport Beach, California 92660, and (c)
whenever notice is required by the provisions of this Agreement or otherwise to
be given to you, at the address set forth on the last page of this Agreement.
Any notice referred to herein may be given in writing or by facsimile or
telephone and if by telephone shall be immediately confirmed in writing. Notice
(unless actual) shall be effective upon mailing or facsimile transmission with
confirmation of receipt, as the case may be.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
Except as provided in the next sentence, this Agreement is
made solely for the benefit of you, the other Participating Brokers, Dealer
Manager, the Fund and the Managing Member or controlling persons thereof, and
their respective successors and assigns, and no other person shall acquire or
have any right by virtue of this Agreement, and the term "successors and
assigns," as used in this Agreement, shall not include any purchaser, as such
purchaser, of any of the Units. The agreements of the Fund and the Managing
Member specified in Section 6(b) are also made for the benefit of the purchasers
of the Units and such purchasers and their successors and assigns shall be
entitled to the indemnification therein provided.
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11. NOT A SEPARATE ENTITY.
Nothing contained herein shall constitute you, Dealer Manager
or the other Participating Brokers, or any of them, as an association,
partnership, unincorporated business or other separate entity.
Please confirm your agreement to become a Participating Broker
under the terms and conditions herein set forth by signing and returning the
enclosed duplicate copy of this Agreement at once to Dealer Manager at 4590
Macarthur Blvd., Suite 610, Newport Beach, California 92660.
Very truly yours,
PACIFIC CORNERSTONE CAPITAL, INCORPORATED
a California corporation
By:
---------------------------
Terry G. Roussel,
President
AGREED AND ACCEPTED:
(Name of Participating Broker) (Address of Participating Broker)
By: ---------------------------------------------------
Its: -----------------------------------------
Dated: ----------------------- , 2001
CORNERSTONE REALTY FUND, LLC
a California limited liability company
By: CORNERSTONE INDUSTRIAL PROPERTIES, LLC
a California limited liability company
By: CORNERSTONE VENTURES, INC.,
its Operating Partner
By: -------------------------------------
Terry G. Roussel, President
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CORNERSTONE INDUSTRIAL PROPERTIES, LLC,
California limited liability company
By: CORNERSTONE VENTURES, INC.,
its Operating Partner
By: ----------------------------------------
Terry G. Roussel, President
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