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EXHIBIT 7.01
[A Copy of the Trust Agreement]
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FIRST AMENDMENT TO SECOND RESTATED AGREEMENT
H. 0. ▇▇▇▇ TRUST
Dated the 22nd day of December, 1980.
The Trust Agreement dated April 7, 1967, as restated by a Trust
Agreement dated December 17, 1970 and amended thereafter, between ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, of Erie, Pennsylvania, as the Settlor, his children, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the individual Trustees and MELLON BANK, N.A., as the
corporate Trustee and again restated by a Second Restated Agreement dated the
20th day of January, 1978 (and pursuant to the power to amend as contained in
paragraph 7.03 of the said Second Restated Agreement) is hereby amended and
restated again to read as set forth herein ("this Agreement").
The Settlor has heretofore transferred and delivered certain
property to the Trustees, together with all his interest therein. The Trustees
shall continue to hold said property, together with any additions thereto as
hereinafter provided, as a Trust Estate, shall invest and reinvest the same and
shall distribute the net income (hereinafter called "Income") and principal as
set forth in the following provisions:
ARTICLE I
Lifetime Trust
1.01. During Settlor's lifetime:
(a) To pay to the Settlor the Income quarter-annually or to apply the
same to his use as directed by him,
(b) To pay over to Settlor free of trust any amount of principal which
he may at any time request in writing,
(c) To pay to settlor or apply for his benefic any amounts of principal
as Trustees in their discretion may from Lime to time deem advisable for the
welfare and comfortable support of Settlor,
(d) To make gifts from principal to individuals and organizations
consistent with Settlor's previous pattern of gifts.
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ARTICLE II
Payment of Certain Taxes, Debts, Legacies and Expenses After Settlor's Death
2.01. Upon the Settlor's death, the Trustees shall pay all estate,
inheritance and other taxes in the nature thereof, together with any interest
and penalties thereon, becoming payable because of the Settlor's death with
respect to the property constituting his gross estate for death tax purposes,
whether or not such property passes under this Agreement; PROVIDED, however,
that no assets which are not subject to such taxes shall be used for this
purpose and that the death taxes on future interests may be paid at such Lime or
times as the Trustees at their sole discretion deem advisable. The Trustees
shall not seek contribution or reimbursement from anyone receiving or having a
beneficial interest in any part of said gross estate. The Trustees shall also
pay to the Settlor's personal representative or shall expend directly such sums
as said personal representative shall certify as necessary co supplement the
Settlor's probate estate in order to pay debts, funeral expenses, legacies and
administration expenses. PROVIDED, however, chat no assets shall be used for
this purpose which are not otherwise included in the Settlor's gross taxable
estate. Subject to such payments, the principal remaining at the Settlor's death
and any accrued or undistributed Income shall be divided and held as is provided
in Article III below,
ARTICLE III
Administration of Trust Estate
3.01. The Trust Estate shall be held and administered as hereinafter
stated.
(a) The Trustees shall divide the Trust Estate into two equal shares
for the Settlor's children, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and shall
hold each share as a separate trust.
(1) During the lifetime of each of the Settlor's children, the
Trustees shall pay the Income from his or her trust quarter-annually to or for
the benefit of said child, and if the corporate Trustee considers the Income to
be insufficient, in view of other income of said child of which it has
knowledge, to provide for the welfare and comfortable support of said child and
his or her family, including educational and funeral expenses, the corporate
Trustee is authorized in its discretion to use such sums from the principal as
it deems advisable therefor; PROVIDED, however, that no shares of Class 8
capital stock of ERIE INDEMNITY COMPANY may be used for this purpose. In
addition, said child shall have the right to withdraw any or all of the
principal, exclusive of shares of Class B capital stock of ERIE INDEMNITY
COMPANY. Upon the death of said child, if the trust has not already terminated,
the remaining principal, exclusive of any shares of Class B capital stock of
ERIE INDEMNITY COMPANY, shall be transferred and delivered to or for the benefit
of such one or more persons, corporations
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or other organizations, in such portions or amounts and subject to such crusts,
terms and conditions as said child may appoint by specific reference to this
power in his or her will.
(2) Upon the death of each child, or upon the Settlor's death in
the case of either child who is not then living, the shares of Class B capital
stock of ERIE INDEMNITY COMPANY in said child's trust and any principal not
appointed by said child as aforesaid, shall be held and distributed as follows:
(a) During the lifetime of the surviving spouse Of the deceased child,
the Income shall be paid quarter-annually to said spouse, and if the Trustees
consider the Income to be insufficient, in view of *other income of said spouse
and children of *which they 'have knowledge, to provide for the welfare and
comfortable support of said child's spouse and children, including educational
and funeral expenses, the Trustees are authorized in their discretion cc use
such sums from principal, exclusive of shares of Class B stock of ERIE INDEMNITY
COMPANY, as they deem advisable therefor; PROVIDED, however, that a child of
Settlor shall have the right and power exercisable by specific reference to this
power in his or her Will, to direct that the trust shall not continue for the
benefit of his or her surviving spouse, or shall continue for a shorter time
than the life of said surviving spouse, and in the event of the exercise of said
power the trust shall terminate as thus directed.
(b) Upon the termination of said spouse's interest, the principal shall
be divided into as many equal shares as said child has children then living and
deceased children with issue then living, and each said share shall be held as a
separate trust. The Settlor's son now has two living children, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, and his daughter also has two living children,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(i) Until the termination of the trust, as provided in subparagraph
(ii) below, the Trustees shall pay the Income from each grandchild's trust
quarter-annually to or for the benefit of said grandchild or, if he or she is
deceased, to his or her issue living at the time of payment per stirpes, and if
the corporate Trustee considers the Income to be insufficient, in view of other
income of which it has knowledge, to provide for the welfare, comfortable
support and education of said grandchild and his or her family, the corporate
Trustee is authorized in its discretion to use such sums from principal,
exclusive of shares of Class B capital stock of ERIE INDEMNITY COMPANY, as it
deems advisable therefor; PROVIDED, however, that prior to said grandchild's
twenty-first (list) birthday, the Trustees may pay to him or her or to the
person having custody of him or her, Without liability on the part of the
Trustees to see to the application thereof, or may expend directly such sums
from Income or principal as the corporate Trustee deems advisable for such
purpose and shall add any excess Income to principal and invest it as such. The
Trustees may pay any other minor's share of Income to his or her natural
guardian or such other person as may have custody of him or her or to any adult
as Custodian for him or her tinder the Pennsylvania Uniform
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Gifts to Minors Act or may deposit the same in an interest-bearing account in
said minor's name in the banking department of the corporate Trustee of
elsewhere.
(ii) Each trust shall terminate upon the first to occur of (a) the
sale or other disposition of all the shares of capital stock of ERIE INDEMNITY
COMPANY held under this Agreement or (b) the expiration of a period of
twenty-one (21) years following the death of the survivor of all the Settlor's
descendants living at the Settlor's death. Upon such termination, the principal
shall be transferred and delivered to the Settlor's respective grandchild or, if
he or she is deceased, to his or her then living issue per stirpes.
(iii) Should any grandchild become deceased without issue at any
time prior to such termination, the then principal of his or her trust shall be
added equally to the shares of the other children of his or her parent, the
Settlor's child, who are either then living or deceased with issue then living,
(iv) Should all the issue of either of the Settlor's children die
before the termination of the trusts, the then principal of said child's share
shall be added to the other child's share and held as part thereof.,
(B) If any remainderman under the foregoing provisions is a minor and
is entitled to a share in excess of the amount which may be paid to his or her
natural guardian, such share shall be retained by the corporate Trustee in a
separate trust until the eighteenth (18th) birthday of said remainderman, at
which time the trust shall terminate and the principal shall be transferred and
delivered to him or her free of trust. During such minority period, the Trustee
shall pay to the person having custody of said remainderman, without liability
on the part of the Trustee to see to the application thereof, or may expend
directly so much of the Income and principal as it deems advisable for the
welfare, comfortable support and education of said remainderman and shall add
any excess Income to principal and interest it as such. In the event of the
death of said remainderman during minority, the Trustee is authorized in its
discretion to pay part or all of the funeral expenses, and the remaining
principal shall be transferred and delivered to said remainderman's estate.
(C) The interest of any beneficiary hereunder, including a
remainderman, in Income or principal, shall not be subject to assignment,
alienation, pledge, attachment or claims of creditors until after payment has
actually been made by the Trustees as hereinbefore provided.
(D) Upon the death of any Income beneficiary, any Income accrued or
received by the Trustees subsequent to the last Income payment date shall be
paid to the person or persons for whose benefit the principal producing such
Income is continued in trust or to whom such principal is distributed under the
terms hereof.
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(E) Corporate distributions received in shares of the
distributing corporation shall be allocated to principal, regardless of the
number of shares and however described or designated by the distributing
corporation.
ARTICLE IV
Powers of Trustees
4.01. The Trustees hereunder shall have the following powers, in
addition to and not in limitation of those granted by law: to accept assets in
kind from the Settlor, his estate or elsewhere, to purchase assets from the
estate and to retain such assets in kind; to sell assets and to invest and
reinvest the proceeds and any other cash in any kind of property, real or
personal, or part interest therein, without being restricted to investments
which are listed as legal for trust funds; to pledge, exchange or mortgage real
or personal property and to lease the same for terms exceeding five (5) years;
to give options for sales, leases and exchanges to borrow money to compromise
claims, to vote shares of corporate stock, in person or by proxy, in favor of or
against management proposals, except that they shall vote any bank or bank
holding company stock only as directed by an individual Trustee or, if there is
none, by a competent adult Income beneficiary of the trust in which said shares
are held: in the sole discretion of the Corporate Trustee, to carry securities
in the name of a nominee; to make division or distribution. hereunder either in
cash or in kind; and to allot different kinds of or interests in property to
different shares. The Trustees are specifically authorized to accept in kind and
to retain any shares of MELLON NATIONAL CORPORATION stock, with no duty on the
part of the corporate Trustee to review the same for investment purposes.
4.02. As among the Trustees, the corporate Trustee shall perform all
ministerial and administrative duties, including the keeping of books and
records, acting as custodian of the trust property and preparing all necessary
tax returns. Each individual Trustee named herein but not including any
Successor Trustee may delegate from time to time to his or her spouse, to any
person eligible to be a successor individual trustee, or to the corporate
Trustee, by an instrument in writing, (which instrument shall remain in effect
as long as the individual Trustee shall remain in office unless sooner revoked
or until expiring according to its terms) any and all of his or her rights,
powers and duties hereunder and may also retain such agents as he or she deems
advisable in the performance of his or her duties.
4.03. 'Notwithstanding the foregoing paragraphs 4.01 and 4.02 and any
other provision of this Agreement, the following shall apply while any shares of
capital stock of ERIE INDEMNITY COMPANY are held hereunder:
(A) At least one of the individual Trustees shall always be a
member of the Board of Directors of said Company.
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(B) The Settlor hereby declares that the purpose of this Trust is to
create and preserve unified ownership and control of ERIE INDEMNITY COMPANY as a
means of preserving the existence of ERIE INSURANCE EXCHANGE and ERIE INDEMNITY
COMPANY as viable entities capable of furnishing insurance to subscribers at the
Exchange and employment to loyal employees of the Exchange and the Company. The
Settlor further declares that in his experience in the insurance business over
half a century, including the Great Depression of the 1930's, World War II, the
Korean and Viet Nam wars and several recessions, he has never lost sight of the
fact that ERIE INSURANCE EXCHANGE, as a reciprocal insurer, was organized and
exists primarily for the benefit of its subscribers or policyholders and that
therefore the interests of the people who put their trust in the Exchange for
the protection of their personal and business affairs must come first. However,
when the Exchange is healthy, its managing attorney-in-fact ERIE INDEMNITY
COMPANY, will necessarily be prosperous and healthy, to the benefit of the
stockholders of the latter. The Settlor therefore urges that the Trustees
familiarize themselves with the nature of reciprocal insurers in general and the
ERIE INSURANCE EXCHANGE in particular; that in the discharge of their trust
duties they concentrate, in cooperation with the Board of Directors of ERIE
INDEMNITY COMPANY and the individual whom the Board designates .from time to
time as "Manager" of the Exchange and Company, to keep ERIE INSURANCE EXCHANGE
in the best of health; and that only when the task proves impossible shall they
consider what then appears to them to be a logical change to prevent
deterioration and possible disaster to the interests of all concerned.
(C) The Trustees will therefore maintain and preserve ownership of all
shares of class B capital stock of ERIE INDEMNITY COMPANY unless and until they
shall determine, subject to the specific provisions of paragraph 4.04, chat the
sale, exchange in a corporate combination or reorganization, or other
disposition by the Trust of such ownership will best serve said purpose, in
which event they are authorized to sell, exchange is a corporate combination or
reorganization, or otherwise dispose of the' ownership of all, but not less than
all, of said shares, for whatever consideration and upon whatever terms they may
determine. In the exercise of their unlimited discretion and in making any
determination or decision relative to the ultimate purpose stated herein, the
Trustees shall be entitled to assume that whatever best serves to preserve the
existence of the Exchange and the Company also serves the best interest of any
and all beneficiaries and recipients entitled at any time to receive
distribution of any Income or principal hereunder.
4.04. In the absence of anything herein contained to the contrary, all
powers pertaining to the administration of the trust shall be exercised only by
a majority of the Trustees in office; PROVIDED, however, that in the exercise of
the power and authority to sell, exchange in a corporate combination or
reorganization, or otherwise dispose of shares of ERIE INDEMNITY COMPANY granted
in paragraph 4.03 and referred to in paragraph 4.1, or in the taking of any
action to terminate the crust or co distribute any part of the corpus to either
individual Trustee as a beneficiary other than pursuant to
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withdrawal as stated in paragraph 3.01(A)(1), the affirmative vote of the
corporate Trustee shall be required, and the affirmative or negative vote of
either or both of the individual Trustees, although constituting a majority,
shall not be sufficient to authorize any such action.
4.05. The corporate Trustee shall be entitled to receive annual
compensation for its services hereunder in accordance with its schedule in
effect when the services are performed, but not in excess of such compensation
as would be approved by a court of competent jurisdiction during the Settlor's
lifetime, such compensation shall be charged wholly against income, unless the
Settlor directs otherwise in writing. For any services performed by it in
connection with the Settlor's estate, which services are normally performed by
the personal representative, the corporate Trustee shall be entitled to such
additional compensation as may be fair and reasonable under the circumstances,
not to exceed seventy-five (75%) percent of the additional compensation to which
it would be entitled as Executor if the assets of this Trust Estate were to be
superimposed upon the testamentary estate of the Settlor. The corporate Trustee
is authorized in its discretion to sell securities to the extent: necessary to
pay any portion of such compensation which is chargeable against principal. The
individual Trustees shall also be entitled to reasonable compensation for their
services hereunder.
ARTICLE V
Successor Trustees
5.01. Upon the occurrence of any vacancy in the office of individual
Trustee due to death, incapacity, removal, resignation or any other cause, a
Successor Trustee shall be elected by a majority vote of the remaining Trustees
and the Board of Directors of Erie Indemnity Company, with each remaining
Trustee and said Board of Directors each having one vote, provided that after
such election, as required by paragraph 4.03(l), at least one Trustee shall be a
member of said Board of Directors, If no successor is thus elected within thirty
(30) days after occurrence of the vacancy, the remaining Trustees and said Board
shall petition the Common Pleas Court of Erie County, Pennsylvania, to fill said
vacancy by appointment from a list of not fewer than three (3) persons furnished
with said petition and the President Judge of the Orphans Court Division of said
Common Pleas Court is hereby empowered to fill said vacancy.
5.02. The corporate Trustee may resign at any time during the Settlor's
lifetime by written notice to him. After the Settlor's death, the corporate
Trustee may resign at any time, without stating cause, by petitioning a court of
competent jurisdiction in ▇▇▇▇ County to designate and appoint a successor
corporate Trustee. In case of the merger or consolidation of the corporate
Trustee, the resulting company shall become successor corporate Trustee
hereunder without notice to any party.
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ARTICLE VI
General Provision
6.01. The Settlor or others may add hereto, by Will, inter vivos
transfer or beneficiary designation, cash or such property in kind as is
acceptable to the corporate Trustee.
6.02. The Settlor reserves the right to terminate this Agreement, in
whole or in part, by written notice delivered to the Trustees during the
Settlor's lifetime.
6.03. The Settlor reserves the right to amend this Agreement at any
time by a proper instrument in writing, executed by the Settlor, delivered to
the Trustees during the Settlor's lifetime and accepted by the Trustees.
6.04. The Settlor may delegate to F. ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
jointly or to the survivor of them, the right to terminate this Agreement as
reserved in paragraph 6.02 above and the right to amend this Agreement as
reserved in paragraph 6.03 above, only by a Special Power of Attorney in
writing, duly executed and acknowledged by the Settlor before an officer
empowered by law to take acknowledgments, and specifically referring to said
rights and said portions of this Agreement.
6.05. If the Settlor designates the Trustees as beneficiaries of the
proceeds of any policies of insurance on his life, the duty and responsibility
for the payment of premiums and other charges on such policies during the
Settlor's lifetime shall rest solely upon him, unless he shall expressly direct
the Trustees in writing to pay the same from Income or principal. Otherwise, the
only duty of the Trustees shall be the safekeeping of such policies as are
deposited with them, and the Trustees shall be under no duty to notify the
Settlor chat any such premium or other charge is due and payable. All options,
rights, privileges and benefits exercisable by or accruing to the Settlor during
his lifetime by the terms of the policies shall be for his sole benefit and
shall not be subject to this trust; the Settlor agrees, however, not to exercise
any options whereby the proceeds would be payable to the Trustees other than in
one sum. Upon the written request of the Settlor, the Trustees shall execute and
deliver such consents and instruments as may be requisite to enable the Settlor
to exercise or avail himself of any option, right, privilege or benefit granted
by any of the policies. Upon the Settlor's death, or at such later time as may
be specified in the policies, the net proceeds of any policies then payable to
the Trustees hereunder shall be collected by the Trustees; the receipt of the
Trustees for such proceeds shall release the insurance companies from liability
on the policies, and the insurance companies shall be under no duty to see to
the application of such proceeds. The Trustees may take all steps necessary in
their opinion to enforce payment of said policies and shall be entitled to
indemnify themselves out of any property held hereunder against all expenses
incurred in taking such action.
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ARTICLE VII
Certain Rules of Construction
7.01. As used in this Agreement, the singular may include the plural
and the plural the singular, and the use of any gender shall be applicable to
all genders.
7.02. This Agreement has been delivered to and accepted by the
corporate Trustee in. the Commonwealth of Pennsylvania and shall be governed in
all respects by the laws of said Commonwealth.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals the day and year aforesaid.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (SEAL)
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Witness ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (SEAL)
-------------------------------- ----------------------------------
Witness ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (SEAL)
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Witness ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(SEAL)
MELLON BANK, N.A.
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
Trust Officer Asst. Vice President
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COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ERIE )
On this, the 22 day of Dec., 1980, before me, a Notary
Public, personally appeared ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he execute the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ERIE )
On this, the 22 day of Dec., 1980, before me, a Notary
Public, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he execute the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Notary Public
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COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ERIE )
On this, the 22 day of Dec., 1980, before me, a Notary
Public, personally appeared ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he execute the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF ERIE )
On this, the 22 day of Dec., 1980, before me, a Notary
Public, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he execute the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇ ▇. Malingoski
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Notary Public
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