Exhibit 10.3
FIBER OPTIC SYSTEM AGREEMENT
XX. 0000000
XXXXXXXXX XX. 0
BETWEEN
AT&T CORP.
AND
XX.XXX, CORP.
09/05/00
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ACCEPTANCE SHALL BE INDICATED BY
SIGNING AND RETURNING DUPLICATE
TO: FROM:
XX.Xxx Corp. AT&T Corp.
000 Xxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxx
Xxxxx 000 Room 09E30
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx Attn: Xxxx 0. Xxxxxx
General Purchase Agreement Number 4569177 ("Agreement") between AT&T Corp.
("Company") and XX.Xxx, Corp. ("Supplier") dated October 29,1999, and as
modified by Amendment No. 1, is further modified by Amendment Number 2 as
follows:
1. Article 3: Statement of Work for the Supply of Link(s):
A. Section 3.1 of the Agreement is deleted in its entirety:
B. The following is added as Section 3.1 .A:
3.1.A The City Link(s) table below lists the Primary Cities for each
Link and is more fully detailed in Exhibit B.
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PRIMARY CITIES
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LINK MILEAGE Termination A Termination Z
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1 000 Xxxxxxxxx, XX Xxxxxxxxxx, XX
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1A 27.14 Pine Springs, VA (Reroute) Calverton VA (Reroute)
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2 000 Xxxxxxx, XX Xxxxxxxxxxxx, XX
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3 000 Xxxxxxxxxxxx, XX Xxxxxxx, XX
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4 000 Xxxxxxxxxx, XX Xxxx Xxxxxx, XX (Splice point)
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6 000 Xxxxxxxxxx, XX Xxxxxxx, XX (Through Windermere)
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7 000 Xxxxxxxxxx, XX Xxx Xxxxxxx, XX
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7A 00 Xxxxxxxxxx, XX Xxxxxxxxxxxx, XX
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8 000 Xxx Xxxxxxx, XX Xxxxxxx, XX
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9 000 Xxxxxxx, XX Xxx Xxxxxxx, XX
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10 105 San Antonio, TX Austin, TX
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11 000 Xxxxxx, XX Ft. Worth, TX
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12 1,129 Ft. Worth, TX Phoenix, AZ
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PRIMARY CITIES -- (Continued from Page 1)
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LINK MILEAGE Termination A Termination Z
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13 000 Xxxxxxx, XX Xxxxxx, XX
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13A 000 Xxxxxx, XX Xxx Xxxxx, XX
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14 000 Xxx Xxxxx, XX Xxx Xxxxxxx, XX
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19 265 Tulsa, OK Kansas City
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20 000 Xxxxxx Xxxx, XX Xx. Xxxxx, XX
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37 000 Xxxxxxxxxx, XX Xxxxxxx, XX
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38 000 Xxxxxxxxx, XX Xxxxxxxxxxxx, XX
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39 000 Xxxxxxxxxxxx, XX Xxxxxx, XX
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43 125 Chicago, IL Elkhart, IN
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44 000 Xxxxxx, XX Xxxxxxxxx, XX
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TOTAL 6,352.14
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C. The following language is added to the Agreement as a new Section
3.1.B:
3.1.B Folkston, GA: On Link 2, the Builder is authorized by AT&T to
add an additional six thousand five hundred (6,500) feet at Twenty
Three Dollars and .09 Dollars ($23.09) per foot additional at a
total cost of One Hundred Fifty Thousand and Forty Dollars
($150,040) hereinafter referred to as the "Folkston Addition". Where
AT&T has existing Conduit in the Folkston Addition, the Builder is
authorized by AT&T to replace the existing Conduit with new Conduit
at the rate of Two Dollars ($2.00) per foot for twelve thousand five
hundred feet (12,500). The costs for replacing the entire Conduit in
the Folkston Addition shall not exceed Twenty Five Thousand Dollars
($25,000.00) unless agreed to by AT&T. These costs shall be paid to
Builder on the same schedule as set forth in Exhibit B for other
payments. All costs and mileage or footage is subject to an
adjustment of plus or minus three percent (3%) as conditions in the
field and final measurements indicate.
D. The following language is added to the Agreement as a new Section
3.1.C:
3.1.C Gibsonville and Durham Segment: After review by Builder and
AT&T of the engineering data and ROW being used for the construction
of the Route Segment between Gibsonville and Durham, North Carolina
on Link 1 (hereinafter referred to as the "Gibsonville Route"), the
cost of the relocation of the entire existing ROW of the Gibsonville
Route by three and one-half (3 1/2) feet by Builder shall not exceed
Ten Thousand Dollars ($10,000.00) per mile for approximately thirty
(30) miles unless agreed to by AT&T. These costs shall be paid to
Builder on the same schedule as set forth in Exhibit B for other
payments. All costs and mileage or footage are subject to an
adjustment of plus or minus three percent (3%) as conditions in the
field and final measurements indicate.
E. The following language is added to the Agreement as a new Section
3.1.D and 3.1.D(a):
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3.1.D Norfolk, VA Tunnel: For construction of that portion of Link 1
in the vicinity of Norfolk, VA, AT&T approves and Builder agrees to
utilize the Norfolk, VA tunnel, also known as the Midtown tunnel on
Highway 58 in Virginia, utilizing the upper and lower xxxxxxxx
respectively of the tunnel with one (1) fiber optic cable in each
chamber.
3.1.D(a) Xxxxxxxxxx Xxxxxxxx xx Xxxxxxx, XX: For that portion of
Link 1 in the vicinity of Norfolk, VA, adjacent to the Norfolk
Tunnel identified in 3.1.D, Builder is hereby authorized to
determine the cost and feasibility for a river bore. AT&T will be
responsible for paying for the reasonable permitting and engineering
charges, not to exceed Five Hundred Thousand Dollars ($500,000.00)
including quotes for fixed construction costs and Builder management
of the project, of a potential new bore which will be a minimum of
one hundred (100) feet from the Norfolk, VA tunnel. AT&T will then
have the option, to:
(i) Accept the bid and hire Builder to perform the river bore.
(ii) Reject the bid proposal.
F The following language is added to the agreement as a new Section
3.1.E:
3.1.E For Links 37,43 and 44 AT&T has agreed to provide ROW
Perfection, Plant Protection and the specified fibers (as indicated
in Exhibit B) within "The Cable" which is required to support the
Builder construction schedule during 2001.
G. The following language is added to the Agreement as a new Section
3.1.F:
3.1.F. Notwithstanding anything to the contrary as set forth in this
Agreement, and specifically to the terms and conditions of Exhibits
C and E, AT&T and Builder agree that the Route Segments identified
in (i) and (ii) of this Section 3.1.F will include a water crossing
that will not require manhole and/or hand holes access along its
length. The costs for these two (2) water crossings and
specification modifications are covered by pricing contained in
Exhibit B, Link 7 and no increase in costs to AT&T will be charged
by Builder. In each location provided below in (i) and (ii), a spare
fiber optic cable reel shall be provided for maintenance purposes
containing cable equal to the entire length of the water crossing
plus such additional footage necessary to accommodate splicing as
may reasonably be contemplated. Builder will provide this
maintenance cable at no additional charge to AT&T.
(i) Lake Ponchartrain, LA water crossing of approximately
thirty-five thousand (35,000) feet, and
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(ii) Pascagoula, MS water crossing of approximately twenty-five
thousand (25,000) feet.
H. The following language is added to the Agreement as a new Section
3.1.G:
3.1.G Notwithstanding anything to the contrary as set forth in this
Agreement, and specifically to the terms and conditions of Exhibit
E, the manholes provided by Builder for the AT&T System shall be
rectangular in shape. AT&T has agreed to pay the additional cost to
Builder for changing the type of manholes from round to rectangular
including the added installation cost for the AT&T System at a cost
not to exceed Eight Hundred Thousand Dollars ($800,000.00). Builder
has agreed that Two Hundred Thousand Dollars ($200,000.00) of the
cost of the manholes and labor owed by AT&T to Builder will be paid
by the supplying by AT&T of two (2) of its four inch (4") existing
ducts of approximately four thousand (4,000) feet each along the El
Paso, TX Route Segment for the installation of three (3) inner ducts
in each four (4") inch duct. Upon AT&T's provision of the ducts
described herein, the amount owing Builder for the rectangular
manholes for the AT&T System shall not exceed Six Hundred Thousand
Dollars ($600,000.00). This amount is due and payable within thirty
(30) days of receipt of an invoice to AT&T from Builder. AT&T will
provide and supply such documentation as may be necessary to effect
the conveyance of one (1) of said four (4") inch ducts to Builder
for its own use in the System.
I. The following language is added to the Agreement as a new Section
3.1.H, 3.1.I, 3.1.J, 3.1.K, 3.1.L., and 3.1.M.
3.1.H. Change Orders: From time to time in the future during ROW
selection, engineering and construction, and as mutually agreed upon
by the parties in writing, AT&T or Builder may request additions to
or alterations or deviations (all hereinafter referred to as a
"Change") from the Link, Route or Route Segment called for by the
Exhibits (hereinafter referred to as "Work"). No Change shall be
considered as an addition or alteration to or deduction or deviation
from the Work called for by the Exhibits to this Agreement nor shall
Builder be entitled to any compensation for work done pursuant to or
in contemplation of a Change, unless made pursuant to a written
e-mail copy of a Change Order authorized by AT&T Supplier Management
and authorized by Xxx XxXxxxx representing Builder. Within ten (10)
days after a request for a Change from either party, Builder shall
submit a proposal to AT&T, which includes any increases or decreases
in Builder's costs or changes in the delivery or Work schedule
necessitated by the Change. AT&T shall, within ten (10) days of
receipt of the proposal, either:
(i) accept the proposal in which event AT&T shall issue a
Change Order directing Builder to perform the Change, or
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(ii) advise Builder not to perform the Change in which event
Builder shall proceed with the original Work.
3.1.I Notwithstanding any other provisions in this Agreement, the
amount payable by AT&T for the aggregate amount of accepted Work as
described in Section 3.1.H: Change Orders shall not exceed Eight
Million Dollars ($8,000,000). Included in these pending Change
Orders, will be costs for connecting the existing Baltimore and
Camden AT&T POP's to new AT&T POP locations in those cities. Builder
shall not render Work and AT&T shall not be required to pay for Work
in excess of the amount stipulated in this Section 3.1.I of the
Agreement for any Changes, unless Builder shall have first secured
an amendment to this Agreement authorizing the increased
expenditure.
3.1.J Added AOL Routes and Sites: Builder is authorized to reroute
the Route Segment between Richmond and Arlington on Link I from
Highway #28 in Calverton, VA to Xxxxxxx #00 xx Xxxx Xxxxxxx, XX,
adding twenty-seven and fourteen tenths (27.14) miles (hereinafter
referred to as the "AOL Bypass Link 1A in Exhibit B". The parties
agree that after review by Builder and AT&T of the engineering data
and ROW being used for construction, the cost of the said reroute to
AT&T shall not exceed Fifty Two Thousand Nine Hundred Dollars
($52,900) per mile. All costs and mileage or footage is subject to
an adjustment of plus or minus three percent (3%) as conditions in
the field and final measurements indicate.
3.1.K Mobile Bay Crossing Change Order: The size of the duct used
from the West side of the Mobile River parallel with Dauphin Street
to a location of a point South of Alabama DOT Highway 31 near
Spanish Fort at the Mobile Causeway along Link 8 is changed from one
and one-half inch (1 1/2") SDR-11 to one and one-fourth inch
(1 1/4") inch SDR-13 for a distance of approximately seven and nine
tenths (7.9) miles. There is no cost or price adjustment owing by
AT&T due to this Change Order.
3.1.L For AT&T private ROW, AT&T gives Builder permission to
contract with AT&T Local Network Services ("LNS") to utilize AT&T
private ROW to the extent as such AT&T private ROW may be required
for the placement of conduit or inner duct by Builder on behalf of
LNS.
3.1.M Santa Ana, CA: After review by Builder and AT&T of the
engineering data and ROW being used for the construction of the
Route Segment on Link 00 xxxxxxx Xxxxxxx Xxxxx xxx Xxxxxxx, XX, the
cost of the engineering and permitting for the Santa Xxx segment is
increased by an amount not to exceed Seventy Five Thousand Dollars
($75,000.00) to cover re-engineering and re-permitting charges.
These costs shall be paid to Builder in accordance with Exhibit B.
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J. Section 3.6 of the Agreement is deleted in its entirety and replaced
with the following Section 3.6 that will cover all Links and Additional
Links referred in this Agreement:
3.6 Regeneration Buildings, OP/AMP Space and Sites: Builder agrees
to acquire two (2) acre sites where commercially available for
OP/AMP sites. The two (2) acre sites will be subdivided in a way so
that the useable acreage is approximately equal taking into
consideration portions encumbered by easements or other legal
restrictions with respect to use and so that each party's acreage
can be configured in such a way so as to permit the parties to erect
the parties' building(s) with parking, access and landscaping
necessary to accommodate each party's respective needs. In the event
that Builder is unable to acquire a full two (2) acres for each Site
for a price and other terms and conditions that are commercially
reasonable or if permitting requirements or other restrictions or
requirements, governmental or otherwise, make the acquisition or use
of a full two (2) acres not commercially reasonable, then Builder
may acquire a parcel of a lesser size provided that such site is
commercially reasonable for the use of both AT&T and the Builder.
The latter condition requires AT&T and Builder to mutually agree on
the site configuration. Each party shall designate the type and size
of building(s) for its facilities and separately bear the cost of
such building(s) unless agreement is made between the parties for
construction of partitioned buildings with separate access. The
Builder will work with AT&T to develop these Sites to ensure they
meet all the requirements and specifications of AT&T. The spacing
between each Site shall be forty-eight (48) to fifty-two (52) miles
or as mutually agreed upon by the parties.
2. Article 5: Completion of Links:
Section 5.5 of the Agreement is deleted in its entirety and replaced with
the following:
"For the following Links 9 (Houston to San Antonio), 10 (San Antonio
to Austin), and 11 (Austin to Fort Worth) as set forth in Exhibit B,
no early delivery incentives for delivery of the Link prior to the
Builder Substantially Complete Date shall apply. However, if Builder
fails to perform its obligations for the Builder Substantially
Complete Date set forth in Exhibit B of the Agreement with respect
to any of these Links 9, 10, or 11 by the respective Builder
Substantially Complete Dates, Builder will be deemed as having
missed the delivery date and the terms as set forth in Sections 5.2,
5.3 or 5.4 shall apply. If Builder completes a Link other than the
Links 9, 10 or 11 at least thirty (30) days prior to the Builder
Substantially Complete Date, the Builder shall be entitled to an
amount equal to one percent (1%) of the contract price of that Link
per each thirty (30) day period for which that Link is early, not to
exceed two percent (2%) as an incentive to Builder."
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3. Article 10: Payment Terms
In Section 10.2.A of the Agreement, the following clause is added as a new
paragraph 10.2.F:
10.2.F Ten percent (10%) of the total contracted amount as stated in
Exhibit B for the additional Links as set forth in the table appearing in
paragraph 5 below titled ADDED LINKS PRIMARY CITIES, within ten (10) days
of the execution of this Amendment #2.
4. Article 18: Notices
In Sections 18.1 and 18.2 of the Agreement, the clauses are deleted in
their entirety and replaced with the following language:
18.1 Unless otherwise provided herein all notices and communications
concerning this Agreement shall be in writing and addressed to the
other party as follows:
If to AT&T: AT&T Corp.
ATTENTION: Xxxxxxx X. Xxxxx
Division Manager -- Network Services
000 Xxxxx 000/000
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: AT&T Corp.
ATTENTION: Procurement Specialist
0000 Xxxxxxxxx Xxxxxx, Xxxx 00X00
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: AT&T Corp.
ATTENTION: General Attorney --
Network Services
Room 3244J1
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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If to Builder: XX.Xxx, Corp.
ATTENTION: Xxxxx Xxxxxx, Xx.
President & Chief Executive Officer
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: XX.Xxx, Corp.
ATTENTION: Xxxxxxx Xxxxxx
Vice-President, Legal
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx,XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Or such other address as either party may designate from time to
time in writing to the other party.
18.2 Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by facsimile,
and shall be deemed served and delivered to the addressee or its
office when received at the address for notice specified above when
hand-delivered, upon confirmation of sending when by facsimile, on
the day after being sent when delivered by overnight delivery
service, or three (3) days after deposit in the mail when sent by
U.S. mail.
5. Article 29: Other Builder Covenants. Representations and Warranties
A. Section 29.11.B of the Agreement is modified to read as follows:
In the first sentence, the words "the Business Plan" are deleted and
substituted with the words "Exhibit O attached hereto and
incorporated herein".
B. Section 29.8 of the Agreement is amended by adding the following as
the last sentence of the section:
"The Links listed in the following table titled ADDED LINKS PRIMARY
CITIES, will not be applicable to the determination of the date of
the Builder Substantially Complete Date for the last Link for the
purposes of this Section 29.8; it being the understanding that the
Builder Substantially Complete Dates for said Links, whenever they
occur, will not be used in
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any way to prohibit the sale of the Common Stock of Parent by Xxxx
Ventures, Xxxx Xxxxx and Xxxxxxx Xxxxx.
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ADDED LINKS PRIMARY CITIES
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LINK Termination A Termination Z
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0X Xxxx Xxxxxxx, XX (Xxxxxxx) Xxxxxxxxx XX (Reroute)
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0 Xxxxxxxxxx, XX Xxxx Xxxxxx, XX (Splice Point)
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Xxxxxxx, Xx (xxxxxxx)
0 Xxxxxxxxxx, XX Windermere
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00 Xxxxxxx, XX Xxxxxxxxxx, XX
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00 Xxxxxxxxx, XX Xxxxxxxxxxxx, XX
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39 Philadelphia, PA Newark NJ
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43 Chicago, IL Elkhart, IN
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44 Toledo, OH Cleveland, OH
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6. Modifications to Exhibits:
A. Exhibit B of the Agreement is hereby deleted in its entirety
and substituted with revised
Exhibit B attached hereto.
B. Exhibit G of the Agreement is amended by adding to it the terms and
conditions in Exhibit G-1 attached hereto.
C. Exhibit O is hereby added to the Agreement and attached hereto.
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This Amendment No. 2 is effective as of the execution of this Amendment by both
parties and shall be incorporated in and shall constitute a part of the
Agreement as if fully set forth therein. EXCEPT AS AMENDED HEREIN, ALL TERMS AND
CONDITIONS OF THE AGREEMENT REMAIN UNCHANGED.
APPROVAL:
Acknowledged and agreed to by:
XX.XXX, CORP. AT&T CORP.
By /s/ Xxxxx Xxxxxx, Xx. By /s/ Xxxxx X. Xxxx
--------------------------------- --------------------------------------
(signature) (signature)
Name XXXXX XXXXXX, XX. Name XXXXX X. XXXX
Title President & Chief Executive Title Chief Procurement Officer,
Officer
Date 12/9/00 Date 12/6/00
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(typed or printed) (typed or print&d)
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