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EXHIBIT 10.13
AMENDED AND RESTATED MASTER RIC REIMBURSEMENT AGREEMENT
THIS AMENDED AND RESTATED MASTER RIC REIMBURSEMENT AGREEMENT
dated as of November 1, 1998 (the "Agreement"), which amends and restates the
Master RIC Reimbursement Agreement dated as of June 1, 1995 (the "Original
Agreement") is by and among WESTERN FINANCIAL BANK, a federally chartered
savings bank formerly known as Western Financial Savings Bank, F.S.B. (including
its successors and assigns, the "Bank"), WFS FINANCIAL AUTO LOANS 2, INC., a
California corporation (including its successors and assigns, "WFAL 2"), and
FINANCIAL SECURITY ASSURANCE INC., a New York stock insurance company (including
its successors and assigns, "Financial Security").
R E C I T A L S
The Bank is (i) the joint obligor with WFAL 2 under certain
joint reinvestment contracts dated on or after the date hereof (as amended from
time to time, the "Joint Reinvestment Contracts" or "Joint RICs") comprising
certain of the RICs (as defined below) and (ii) the obligor under certain
reinvestment contracts dated prior to the date hereof (as amended from time to
time, the "Bank Reinvestment Contracts" or "Bank RICs"; and, together with the
Joint RICs, the "RICs" defined in Section 1 hereof.
Financial Security has issued financial guaranty insurance
policies guaranteeing payment by the Bank under the Bank RICs on each
Distribution Date. The Bank and WFAL 2 have requested, and may in the future
request, that Financial Security issue financial guaranty insurance policies to
the Trustee of the Trusts (as defined in Section 1 hereof) to guarantee payment
under the Joint RICs on each Distribution Date. The policies referred to in the
preceding two sentences are herein called "RIC Policies".
As partial inducement to Financial Security to issue RIC
Policies, the Bank and WFAL 2 intend to enter into this Agreement in order to
secure the obligations of the Bank and WFAL 2 hereunder, and, pursuant to the
Second Amended and Restated Master Collateral Assignment Agreement, to pledge
Collateral to the Master Collateral Agent for the benefit of Financial Security.
All parties hereto wish to maintain in force RIC Policies and
other arrangements with respect to the Bank RICs.
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A G R E E M E N T S
The parties hereto agree as follows:
Section 1. Definitions 1. Definitions. For all purposes of
this Agreement, the terms specified below shall have the meanings or
constructions provided below. Capitalized terms used and not defined herein
shall have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement of the related Trust, unless the context shall otherwise
require.
"Authorized Officer" means, with respect to the Bank, WFAL 2
or any corporation, the president, the chief financial officer or any vice
president.
"Bank" means Western Financial Bank (including its successors
and assigns).
"Collateral" has the meaning ascribed thereto in the Master
Collateral Assignment Agreement.
"Depositor" means Western Financial Auto Loans, Inc. and any
other depositor under a Trust.
"Existing Agreements" means the Pooling and Servicing
Agreements and any related RIC, RIC Policy, insurance, indemnity and pledge
agreement, sub-servicing agreement, indemnification agreement, relating to a
Trust and the Master Collateral Assignment Agreement to which the Bank, WFAL 2
or any affiliate thereof is a party.
"Financial Security's Authorized Agent" means each Authorized
Officer of Financial Security and each other Person that Financial Security
designates as its authorized agent with notice to the Bank and WFAL 2.
"Independent Accountant" means an independent accountant
within the meaning of the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended.
"Insurance Agreements" means the insurance, indemnity and
pledge agreements entered into with respect to each Trust.
"Late Payment Rate" means the greater of (i) a per annum rate
equal to 3% in excess of Financial Security's cost of funds, determined on a
monthly basis, or (ii) a per annum rate equal to 3% in excess of the arithmetic
average of the prime or base lending rates publicly announced by The Chase
Manhattan Bank, N.A. (New York, New York) and Citibank, N.A. (New York, New
York), as in effect on the last day of the month for which interest is being
computed, but in no event greater than the maximum rate permitted by law.
"Master Collateral Assignment Agreement" means the Second
Amended and Restated Master Collateral Assignment Agreement dated as of November
1, 1998 among the Bank, WFAL 2,
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the Depositor, Financial Security, the Trustee, the Collateral Agent and the
Master Collateral Agent.
"Policies" means financial guaranty insurance policies in
respect of the Trusts (including, in each case, any endorsements thereto) issued
by Financial Security.
"Trust Agreements" mean the trust agreements pursuant to which
the Trusts are constituted, as amended from time to time in accordance with
their terms.
"RICs" means the Joint RICs and the Bank RICs and the Bank
RICs as defined in the Recitals hereof, and referenced in the Sale and Servicing
Agreements defined in the Trust Agreements, without regard to any amendment or
modification of such RIC except amendments or modifications to which Financial
Security has given its prior written consent.
"RIC Policies" has the meaning given in the Recitals hereof.
"RIC Reimbursement Amount" means, with respect to any Trust,
the sum of the following amounts:
(1) a sum equal to the total of all amounts which may be
paid by Financial Security under the related RIC Policy;
(2) any and all reasonable charges and expenses which
Financial Security may pay or incur relating to any payment under the
related RIC Policy, including, but not limited to, any fees and charges
in connection with any accounts established to facilitate payments
under the related RIC Policy, to the extent Financial Security has not
been immediately reimbursed on the date that any amount is paid by
Financial Security under the related RIC Policy;
(3) the amount of any costs or expenses (including
attorneys' and accountants' fees and expenses) incurred by Financial
Security (A) in connection with the enforcement of this Agreement or
the Original Agreement, or (B) in connection with the foreclosure upon,
sale or other disposition of the Collateral, to the extent that such
costs and expenses are not recovered from such foreclosure, sale or
other disposition; and
(4) any amount otherwise required to be paid to or on
behalf of Financial Security under this Agreement (including the
Original Agreement).
"Servicer" means Western Financial Bank (including its
successors), as servicer under the Servicing Agreement except in the case of
Collateral which consists of retail installment loans or retail installment
contracts secured in both cases by automobiles or light duty trucks, in which
event "Servicer" means WFS as Servicer under the WFS Servicing Agreement.
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"Termination Date" means the date which is the earlier of (A)
the latest of (i) the date on which all RICs shall have terminated and all
amounts owing by the Bank, WFAL 2 and the Depositor to the relevant Trusts,
Financial Security and the Trustees shall have been paid in full, (ii) the date
on which Financial Security shall have received full payment and performance by
WFAL 2, the Bank, WFS and the Depositor pursuant to the Existing Agreements,
(iii) the latest date on which any payment received by Financial Security
pursuant to the Existing Agreements could be avoided in whole or in part as a
preference payment under the United States Bankruptcy Code or any similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization, or (B) the date on which no amounts in any
accounts under Pooling and Servicing Agreements are invested in RICs or general
ledger accounts at the Bank or are otherwise commingled with funds of the Bank,
or (C) any date mutually agreed by WFAL 2, the Bank and Financial Security.
"Trusts" means the grantor trusts or business trusts created
in respect of automobile installment sale contract securitization transactions
established on the date heretofore or from time to time hereafter by the
Servicer and its affiliates whose certificates of beneficial interest or other
securities have the benefit of Policies.
"WFS" means WFS Financial Inc, and its successors.
Section 2. Reimbursement Obligations. The Bank agrees
absolutely and unconditionally to pay to Financial Security all RIC
Reimbursement Amounts relating to Bank RICs. The Bank and WFAL 2 jointly and
severally agree absolutely and unconditionally to pay to Financial Security all
RIC Reimbursement Amounts relating to Joint RICs. All RIC Reimbursement Amounts
to be paid by the Bank and/or WFAL 2 pursuant to this Agreement shall be due and
payable without demand. Interest shall accrue at the Late Payment Rate on all
unpaid RIC Reimbursement Amounts from the date such amounts are due and payable
up to and including the date on which such amounts are paid.
Section 3. Representations of the Bank. The Bank represents
and warrants, that this Agreement has been duly authorized, executed and
delivered and constitutes a valid and binding agreement of the Bank and that
neither the execution and delivery of this Agreement nor the performance of the
obligations of the Bank under this Agreement will contravene any federal or
state law or any order, decree, license, permit or the like which is applicable
to the Bank or to which the Bank is a party or by which the Bank is bound.
Section 4. Representations of WFAL 2. WFAL 2 hereby represents
and warrants, as of the date hereof and each Pledge Date (as defined in the
Master Collateral Assignment Agreement) as follows:
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a. Due Organization; Corporate Power and Authority. WFAL 2 is
a corporation duly organized, validly existing and in good standing under the
laws of the State of California, with full right, power and authority to own its
properties and to conduct its business as presently conducted; WFAL 2 has the
power and authority to execute and deliver this Agreement, each Joint RIC and
the Master Collateral Assignment Agreement (each, a "WFAL 2 Agreement"); and to
carry out the terms of each such Agreement, and the execution, delivery, and
performance of each WFAL 2 Agreement has been duly authorized by WFAL 2 by all
necessary corporate action. WFAL 2's principal place of business, chief
executive office and the office where it keeps its records is located at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
b. Valid and Binding Obligations. Each of this Agreement and
the other WFAL 2 Agreements constitutes a legal, valid, and binding obligation
of WFAL 2, enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
receivership or other similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or at law.
c. Noncontravention. The consummation of the transactions
contemplated by Agreement and by each other WFAL 2 Agreement and the fulfillment
of the terms hereof and thereof will not conflict with, result in any breach of
any of the terms and provisions of, or constitute a default (or an event which,
with the giving of notice or passage of time, or both, would constitute a
default) under, the articles of incorporation or by-laws of WFAL 2, or any
indenture, agreement, or other instrument to which WFAL 2 is a party or by which
it is bound; result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement, or other
instrument (other than the WFAL 2 Master Collateral Assignment Agreement); or
violate any law or any order, rule, or regulation applicable to WFAL 2 of any
court or of any federal or state regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over WFAL 2 or its
properties.
d. No Consents. No consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency, nor any consent, approval, waiver or notification of any creditor,
lessor or other non-governmental person, is required in connection with the
execution, delivery and performance by WFAL 2 of this Agreement of any other
WFAL 2 Agreement is a party, except (in each case) such as have been obtained
and are in full force and effect.
e. Pending Litigation or Other Proceeding. To the best
knowledge of WFAL 2, there are no proceedings or investigations pending, or
threatened, before any court,
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regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over WFAL 2 or its properties: (A) asserting the invalidity
of this Agreement, any other WFAL 2 Agreement (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other WFAL 2 Agreement, or (C) seeking any determination or ruling that might
materially and adversely affect the performance by WFAL 2 of its obligations
under, or the validity or enforceability of, this Agreement or any other WFAL 2
Agreement.
f. WFAL 2 is not a party to any agreement, contract,
instrument or other document other than, and has no actual, contingent or other
liabilities or obligations of any kind other than pursuant to, (1) this
Agreement and the other WFAL 2 Agreements and (2) one or more promissory notes
of WFAL 2 issued in accordance with the [SALE AGREEMENT BETWEEN WFS AND WFAL 2]
(such notes, the "WFAL 2/WFS Notes").
Section 5. Affirmative Covenants of the Bank and WFAL 2of the
Bank and WFAL 2. Each of the Bank and WFAL 2 covenants and agrees with Financial
Security that, at all times during the term of this Agreement:
a. Compliance With Agreements. It will comply with all terms
and conditions of this Agreement and each other Existing Agreement to which it
is a party. It will not cause or permit to become effective any amendment to or
modification of any RIC to which it is a party unless Financial Security shall
have previously approved in writing the form of such amendment or modification.
b. Financial Statements, Accountants' Reports, Other
Information. It will keep proper books and records, in which full and correct
entries will be made of financial transactions and its assets and business in
accordance with generally accepted accounting principles consistently applied.
It will also deliver to Financial Security, simultaneously with the delivery of
such documents to its stockholder copies of all financial statements prepared by
it or on its behalf.
c. Certificate of Compliance. It will deliver to Financial
Security, concurrently with the delivery of the annual financial statements
required pursuant to paragraph (b) above, a certificate signed by an Authorized
Officer stating that:
(i) review of it's performance under this Agreement and the
other Existing Agreements to which it is a party during such period has
been made under such officer's supervision; and
(ii) to the best of such officer's knowledge, based upon
such review, it has fulfilled all its obligations under this Agreement
and the other Existing Agreements to which it is a party during such
period, or, if there has been a default of any such obligation,
specifying each such default known to such officer and the nature and
status thereof.
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d. Access to Records; Discussions With Officers and
Accountants. It will, upon the reasonable request of Financial Security, permit
Financial Security's Authorized Agent at reasonable times (i) to inspect its
books and records as may relate to its obligations under this Agreement and the
other Existing Agreements to which it is a party; and (ii) to discuss the
affairs, finances and accounts with any of its respective officers, directors
and representatives, including its Independent Accountants.
e. Maintain Licenses. It will maintain all licenses, permits,
charters and registrations that are material to the performance by it of its
obligations under the Existing Agreements to which it is a party or by which it
is bound.
f. Maintain Existence; Merger. The Bank will keep in full
effect its existence, rights and franchises as a stock savings association (or,
if the Bank elects to convert to any other type of depository institution, such
depository institution) under the laws of the United States and its rights and
franchises under the laws of the State of California, the accounts of which are
insured, to the extent permitted by law, by the Federal Deposit Insurance
Corporation and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the Existing
Agreements to which the Bank is a party. WFAL 2 will keep in full effect its
existence, rights and franchises as a corporation under the laws of the State of
California, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the Existing
Agreements to which WFAL 2 is a party. Neither the Bank nor WFAL 2 will
consolidate with or merge into any other Person or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless the Person
formed by such consolidation or into which it has merged or the Person which
acquires by conveyance, transfer or lease substantially all its assets as an
entirety, can lawfully perform its obligations hereunder and executes and
delivers to the Trustee and Financial Security an agreement, in form and
substance reasonably satisfactory to the Trustee and Financial Security, which
contains an assumption by such Person of the due and punctual performance and
satisfaction of each covenant and condition to be performed or satisfied by it
under this Agreement.
g. Maintain Separate Corporate Existence. WFAL 2 will at all
times hold itself out to the public, including WFS and the Bank, under WFAL 2's
own name and as a separate and distinct entity from WFS and the Bank. At all
times at least one director and one executive officer of WFAL 2 (or one
individual serving in both capacities) will be a Person who is not a director,
officer or employee of any Person owning beneficially
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more than 10% of the outstanding common stock of WFAL 2. WFAL 2 will maintain
separate corporate records and books of account from those of WFS and the Bank,
will not commingle its assets with any other Person (except to the limited
extent (if any) permitted by the approval of Financial Security) and will
authorize its corporate actions in accordance with applicable law. WFAL 2 will
not engage in business transactions with any of its Affiliates on terms and
conditions less favorable to WFAL 2 than those available to WFAL 2 for
comparable transactions from Persons who are not Affiliates of WFAL 2. WFAL 2
will maintain its chief executive office, principal place of business and the
office where it keeps its records in the State of California and separate and
apart from any office of the Master Servicer.
Section 6. Negative Covenants of WFAL 2. WFAL 2 agrees and
covenants with Financial Security that at all times during the term of this
Agreement: Section 6. Negative Covenants of WFAL 2. WFAL 2 agrees and covenants
with Financial Security that at all times during the term of this Agreement:
a. Amendments to Organizational Documents. WFAL 2 will not
amend, supplement or otherwise modify, or cause to permit any amendment,
supplement or other modification of, any provision of its charter or its bylaws
without the prior written consent of Financial Security.
b. No Liens. Without the prior written consent of Financial
Security, WFAL 2 will not create, incur, assume or suffer to exist any mortgage,
deed or trust, security interest, assignment, deposit arrangement or other
preferential arrangement, charge or encumbrance (including, without limitation,
any conditional sale or other title retention agreement or finance lease) or any
nature upon or with respect to any of its properties or assets, now owned or
hereafter acquired, other than as provided for in the WFAL 2 Agreements, or sign
or file under the Uniform Commercial Code of any jurisdiction any financing
statement that names the Company as a debtor, or sign any security agreement
authorizing any secured party thereunder to file such financing statement,
except as so provided.
c. Creation of Indebtedness. Without the prior written consent
of Financial Security, WFAL 2 will not create, incur, assume or suffer to exist
any indebtedness other than the Joint RIC or the WFAL 2/WFS Notes or other
indebtedness guaranteed or approved in writing by Financial Security.
d. Guarantee, Etc. Without the prior written consent of
Financial Security, WFAL 2 will not assume, guarantee, endorse or otherwise be
or become directly or contingently liable for the obligations of any Person by,
among other things, agreeing to purchase any obligation of another Person,
agreeing to advance funds to such Person or causing or assisting such Person to
maintain any amount of capital.
e. Subsidiaries. Without the prior written consent of
Financial, WFAL 2 will not form, or cause to be formed, any subsidiaries.
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f. Insolvency. WFAL 2 will not commence any case, proceeding
or any action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seek appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its assets, or make a general
assignment for the benefit of its credits. WFAL 2 will not take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in
any of the acts set forth above. WFAL 2 will not be unable to, or admit in
writing its inability to, pay its debts.
g. Impairment of Rights. WFAL 2 will not take any action or
fail to take any action that will interfere with the enforcement of any rights
under this Agreement or the other WFAL 2 Agreements.
h. No Petition Agreement. WFAL 2 covenants and agrees that,
for a period of one year plus one day after payment in full of all amounts
payable in respect of the certificates from the last outstanding Trust, it will
not institute against, or join any other Person in instituting against any
Depositor or WFS any bankruptcy, reorganization, arrangement, conservatorship,
receivership, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy, receivership or similar law, in connection with
any amounts due WFAL 2 (or any Affiliate thereof) under any Existing Agreement
or otherwise without the prior written consent of Financial Security. The
provisions of this paragraph shall survive termination of this Agreement.
Section 7. No Relief from Prior Obligations. Nothing in this
Agreement shall relieve the Bank or WFAL 2 from any obligation under any
Insurance Agreement or related agreement entered into with Financial Security
prior to the date hereof.
Section 8. Waiver 8. Waiver. Any waiver by any party of any
provision of this Agreement or any right, remedy or option hereunder shall only
prevent and estop such party from thereafter enforcing such provision, right,
remedy or option if such waiver is given in writing and only as to the specific
instance and for the specific purpose for which such waiver was given. The
failure or refusal of any party hereto to insist in any one or more instances,
or in a course of dealing, upon the strict performance of any of the terms or
provisions of this Agreement by any party hereto or the partial exercise of any
right, remedy or option hereunder shall not be construed as a waiver or
relinquishment of any such term or provision, but the same shall continue in
full force and effect.
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Section 9. Amendments. This Agreement may be amended, changed,
modified, altered or terminated only by written instrument or written
instruments signed by each of the parties hereto. The Original Agreement, as
amended and restated hereby, shall remain in full force and effect. 9.
Amendments. This Agreement may be amended, changed, modified, altered or
terminated only by written instrument or written instruments signed by each of
the parties hereto. The Original Agreement, as amended and restated hereby,
shall remain in full force and effect.
Section 10. Notices. All notices and other given
communications pursuant to this Agreement shall be communicated to the addresses
listed below or to such other address or to the attention of such other person
as such party shall have designated for such purposes in a written notice to the
other:
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If to Financial Security: Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance Department
If to WFAL 2: WFS Financial Auto Loans 2, Inc
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
Associate General Counsel
If to the Bank: Western Financial Bank
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
Associate General Counsel
Section 11. Term of this Agreement. This Agreement shall take
effect on the date hereof and shall continue in effect until the Termination
Date. On the Termination Date, this Agreement shall terminate and all
obligations of the parties hereunder shall cease and terminate.
Section 12. Binding Effect; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, transferees and assigns; provided that neither the Bank
nor WFAL 2 may assign all or any part of this Agreement without the prior
written consent of Financial Security.
Section 13. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA.
Section 14. Counterparts. This Agreement may be executed in
one or more counterparts and by the different parties hereto on separate
counterparts, all of which shall be deemed to be one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers as of the day
and year first written above.
WESTERN FINANCIAL BANK
By:
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Name:
Title:
WFS FINANCIAL AUTO LOANS 2, INC.
By:
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Name:
Title:
FINANCIAL SECURITY ASSURANCE INC.
By:
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Name:
Title: