EXHIBIT 99.B9(B)
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
TNE INVESTMENT SERVICES CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment;Duties of the Bank ................ 2
Article 2 Fees and Expenses ...................................... 6
Article 3 Representations and Warranties of the Bank ............. 7
Article 4 Representations and Warranties of the Transfer Agent ... 8
Article 5 Data Access and Proprietary Information ................ 9
Article 6 Indemnification ........................................ 11
Article 7 Standard of Care ....................................... 14
Article 8 Covenants of the Fund and the Transfer Agent ........... 14
Article 9 Termination of Agreement ............................... 16
Article 10 Assignment ............................................. 16
Article 11 Amendment .............................................. 17
Article 12 Massachusetts Law to Apply ............................. 17
Article 13 Force Majeure .......................................... 17
Article 14 Consequential Damages .................................. 18
Article 15 Merger of Agreement .................................... 18
Article 16 Counterparts ........................................... 18
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of September, 1993, by and between TNE
INVESTMENT SERVICES CORPORATION, a Massachusetts corporation, having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company having its principal office and place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Transfer Agent has been appointed by each of the
investment companies (including each series thereof) listed on Schedule A (the
"Fund(s)"), each an open-end management investment company registered under the
Investment Company Act of 1940, as amended, as transfer agent, dividend
disbursing agent and shareholder servicing agent in connection with certain
activities, and the Transfer Agent has accepted each such appointment;
WHEREAS, the Transfer Agent has entered into a Shareholder Servicing
and Transfer Agent Agreement with each of the Funds (including each series
thereof) listed on Schedule A pursuant to which the Transfer Agent is
responsible for certain transfer agency and dividend disbursing functions and
the Transfer Agent is authorized to subcontract for the performance of its
obligations and duties thereunder in whole or in part with the Bank;
WHEREAS, the Transfer Agent is desirous of having the Bank perform
certain shareholder accounting, administrative and servicing functions
(collectively "Shareholder and Record-Keeping Services");
WHEREAS, the Transfer Agent desires to appoint the Bank as its agent,
and the Bank desires to accept such appointment; NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
Article 1 Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement,
the Transfer Agent hereby employs and appoints the Bank to act as, and the Bank
agrees to act as, the agent of the Transfer Agent for the Shares of each of the
Funds in connection with any accumulation, open-account, retirement plan or
similar plan provided to the shareholders of each Fund ("Shareholders") and set
out in the currently effective prospectus and statement of additional
information ("Prospectus") of each such Fund, including without limitation any
periodic investment plan or periodic withdrawal program. As used herein, the
term "Shares" means the authorized and issued shares of common stock, or shares
of beneficial interest, as the case may be, for each of the Funds (including
each class thereof) enumerated in Schedule A hereto (as the same may from time
to time be amended to add one or more Funds or to delete one or more Funds).
1.02 The Bank agrees that it will perform the following Shareholder and
Record-Keeping services:
(a) In accordance with procedures established from time to time by
agreement between the Transfer Agent and the Bank, the Bank shall:
(i) Receive for acceptance, order for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof
to the Custodian of the Fund authorized pursuant to the Articles
of Incorporation or Declaration of Trust of each Fund (the
"Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to
the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, the Bank shall execute transactions directly with the
Funds' principal underwriter (the "Distributor") or with broker-
dealers authorized by the Distributor who shall thereby be
deemed to be acting on behalf of the Funds;
(v) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders, and calculate the
amount of and pay over or cause to be paid over to the
Distributor any applicable contingent deferred sales charges;
(vi) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by each Fund;
(viii) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Bank of
indemnification satisfactory to the Bank and protecting the Bank
and each Fund, and the Bank, at its option, may issue
replacement certificates in place of mutilated stock
certificates upon presentation thereof and without such
indemnity;
(ix) Maintain records of account for and advise each Fund and its
Shareholders as to the foregoing; and
(x) Record the issuance of shares of each Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of shares of
each Fund which are authorized, based upon data provided to it
by each Fund, and issued and outstanding. The Bank shall also
provide each Fund on a regular basis with the total number of
shares which are authorized and issued and outstanding and shall
have no obligation, when recording the issuance of shares, to
monitor the issuance of such shares or to take cognizance of any
laws relating to the issue or sale of such shares, which
functions shall be the sole responsibility of the Distributor.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: (i) perform the
customary services of a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to: maintaining all Shareholder accounts, preparing Shareholder meeting
lists, mailing and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all purchases
and redemptions of Shares and other confirmable transactions in Shareholder
accounts, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable each Fund to monitor the total number of Shares sold in each State.
(c) In addition, each Fund shall (i) identify to the Bank in writing
those transactions and assets to be treated as exempt from blue sky reporting
for each State and (ii) verify the establishment of transactions for each State
on the system prior to activation and thereafter monitor the daily activity for
each State. The responsibility of the Bank for each Fund's blue sky State
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by each Fund and the reporting of
such transactions to each Fund as provided above.
(d) Procedures as to who shall provide certain of these services in
Article 1 may be established from time to time by agreement between the Transfer
Agent and the Bank per the attached service responsibility schedule. The Bank
may at times perform only a portion of these services and the Transfer Agent,
the Funds or their agent may perform these services on each Fund's behalf.
(e) The Bank shall provide additional services on behalf of the
Transfer Agent (i.e., escheatment services) which may be agreed upon in writing
between the Fund and the Bank.
Article 2 Fees and Expenses
2.01 For the performance by the Bank pursuant to this Agreement, the
Transfer Agent agrees to pay the Bank an annual maintenance fee for each
Shareholder account as set out in the initial fee schedule attached hereto. Such
fees and out-of-pocket expenses and advances identified under Section 2.02 below
may be changed from time to time subject to mutual written agreement between the
Transfer Agent and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Transfer
Agent agrees to reimburse the Bank for out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage, or advances incurred by the
Bank for the items set out in the fee schedule attached hereto. In addition, any
other expenses incurred by the Bank at the request or with the consent of the
Transfer Agent will be reimbursed by the Transfer Agent.
2.03 The Transfer Agent agrees to pay all fees and reimbursable
expenses within five days following the receipt of the respective billing
notice. Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Bank by the
Transfer Agent at least seven (7) days prior to the mailing date of such
materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Transfer Agent that:
3.01 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the Commonwealth
of Massachusetts.
3.03 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.06 It has and will at all times maintain in effect insurance
coverage, including, without limitation, errors and omissions, fidelity bond and
electronic data processing coverage at levels of coverage consistent with those
customarily maintained by other high quality servicing agents for registered
investment companies.
Article 4 Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Bank that:
4.01 It is a corporation duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.04 Each Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933, as
amended, for each Fund is currently effective and will remain effective, and
appropriate state securities law filings have been made and will continue to be
made, with respect to all Shares of each Fund being offered for sale.
Article 5 Data Access and Proprietary Information
5.01 The Transfer Agent acknowledges that the data bases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Transfer Agent by the Bank as part of the
Fund's ability to access certain Fund-related data ("Customer Data") maintained
by the Bank on data bases under the control and ownership of the Bank or other
third party ("Data Access Services") constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary Information") of
substantial value to the Bank or other third party. In no event shall
Proprietary Information be deemed Customer Data. The Transfer Agent agrees to
treat all Proprietary Information as proprietary to the Bank and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting the
foregoing, the Transfer Agent agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated
in writing by the Bank and solely in accordance with the Bank's
applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to - any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform the Bank in a timely manner of such fact and
dispose of such information in accordance with the Bank's
instructions;
(d) to refrain from causing or allowing third-party data acquired
hereunder from being retransmitted to any other computer facility
or other location, except with the prior written consent of the
Bank;
(e) that the Transfer Agent shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in Proprietary
Information at common law, under federal copyright law and under
other federal or state law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
5.02 If the Transfer Agent notifies the Bank that any of the Data
Access Services do not operate in material compliance with the most recently
issued user documentation for such services, the Bank shall endeavor in a timely
manner to correct such failure. Organizations from which the Bank may obtain
certain data included in the Data Access Services are solely responsible for the
contents of such data and the Transfer Agent agrees to make no claim against the
Bank arising out of the contents of such third-party data, including, but not
limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS
AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Transfer Agent include the
ability to originate electronic instructions to the Bank in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information then in such event the Bank shall be entitled
to rely on the validity and authenticity of such instruction without undertaking
any further inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Bank from time to time.
Article 6 Indemnification
6.01 The Bank shall not be responsible for, and the Transfer Agent
shall indemnify and hold the Bank harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of the Bank or its agent or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are taken in
good faith and without negligence or willful misconduct.
(b) The Transfer Agent's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Transfer Agent hereunder.
(c) The reliance on or use by the Bank or its agents or subcontractors
of information, records, documents or services which (i) are received by the
Bank or its agents or subcontractors, and (ii) have been prepared, maintained or
performed by the Transfer Agent or each Fund or any other person or firm on
behalf of the Transfer Agent or each Fund including but not limited to any
previous transfer agent or registrar (other than the Bank).
(d) The carrying out by the Bank or its agents or subcontractors of any
instructions or requests of the Transfer Agent or each Fund, provided that such
instructions or requests are undertaken in conformity with security procedures
established by the Bank from time to time.
(e) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or regulations
of any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or by any
state with respect to the offer or sale of such Shares in such state.
6.02 At any time the Bank may apply to any officer of the Transfer
Agent for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors shall not be
liable and shall be indemnified by the Transfer Agent for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of such
counsel. The Bank, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Transfer Agent or each Fund, reasonably believed to be genuine and to have
been signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Bank or its agents or
subcontractors by machine readable input, telex, CRT data entry or other similar
means authorized by the Transfer Agent and reasonably believed to be genuine,
and shall not be held to have notice of any change of authority of any person,
until receipt of written notice thereof from the Transfer Agent. The Bank, its
agents and subcontractors shall also be protected and indemnified in recognizing
stock certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of each Fund, and the proper
countersignature of the Transfer Agent or any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which the Transfer
Agent may be required to indemnify the Bank, the Bank shall promptly notify the
Transfer Agent of such assertion, and shall keep the Transfer Agent advised with
respect to all developments concerning such claim. The Transfer Agent shall have
the option to participate with the Bank in the defense of such claim or to
defend against said claim in its own name or in the name of the Bank. The Bank
shall in no case confess any claim or make any compromise in any case in which
the Transfer Agent may be required to indemnify the Bank except with the
Transfer Agent's prior written consent.
Article 7 Standard of Care
7.01 The Bank shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees.
Article 8 Covenants of the Transfer Agent and the Bank
8.01 The Transfer Agent shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Board of Directors of the
Transfer Agent authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
8.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Transfer Agent for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
8.03 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of each Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to each Fund on and in accordance with its request.
8.04 The Bank and the Transfer Agent agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
8.05 In case of any requests or demands for the inspection of the
Shareholder records of any of the Funds, the Bank will endeavor to notify the
Transfer Agent and to secure instructions from an authorized officer of the
Transfer Agent as to such inspection. The Bank reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the Shareholder
records to such person.
Article 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other. Notwithstanding the foregoing,
this Agreement shall terminate concurrently with the termination of the
Shareholder Servicing and Transfer Agent Agreement in effect between the
Transfer Agent and the Funds.
9.02 Should the Transfer Agent exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Transfer Agent. Additionally, the Bank reserves the right to
charge for any other reasonable expenses associated with such termination.
Article 10 Assignment
10.01 Except as provided in Section 10.03 and 10.04 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
10.03 The Bank may, without further consent on the part of the Transfer
Agent, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as
a transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly registered
as a transfer agent pursuant to Section 17A(c)(1) or (iii) a BFDS affiliate;
provided, however, that the Bank shall be as fully responsible to the Transfer
Agent for the acts and omissions of any subcontractor as it is for its own acts
and omissions.
10.04 The Transfer Agent may, without further consent on the part of
the Bank, and upon written notice to the Bank assign this Agreement to any other
entity that (i) is then under common control with the Transfer Agent, (ii) is
acting or has been appointed to act as Transfer Agent for the Funds and (iii) is
duly registered as a Transfer Agent pursuant to Section 17A(c)(1).
Article 11 Amendment
11.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the
Transfer Agent.
Article 12 Massachusetts Law to Apply
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 13 Force Majeure
13.01 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
Article 14 Consequential Damages
14.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
Article 15 Merger of Agreement
15.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
Article 16 Counterparts
16.01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
TNE INVESTMENT SERVICES CORPORATION
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Executive Vice President
ATTEST:
/s/▇. ▇▇▇▇▇▇▇▇
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STATE STREET BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
1. Receives orders for the purchase X Add-ons X New
of Shares.
2. Issue Shares and hold Shares in X
Shareholders accounts.
3. Receive redemption requests. X X
4. Effect transactions 1-3 above
directly with broker-dealers. X X
5. Pay over monies to redeeming X
Shareholders.
6. Effect transfers of Shares. X
7. Prepare and transmit dividends X
and distributions.
8. Issue Replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and X
accurate control book for each
issue of securities.
12. Mail proxies. OTI
13. Mail Shareholder reports. X
14. Mail prospectuses to current
Shareholders. X
15. Withhold taxes on U.S. resident
and non-resident alien accounts. X
16. Prepare and file U.S. Treasury X
Department forms.
17. Prepare and mail account and
confirmation statements for
Shareholders. X
18. Provide Shareholder account
information. X
19. Blue sky reporting. X
* Such services are more fully described in Article 1.02 (a),
(b) and (c) of the Agreement.
TNE INVESTMENT SERVICES CORPORATION
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BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Executive Vice President
ATTEST:
/s/▇. ▇▇▇▇▇▇▇▇
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