HomeMy WebLinkAbout97-00583
MARITAL PROPERTY AND SETTLEMENT AGREEMENT
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THIS AGREEMENT, made this JLI day of November, by and
between Norma J, Fazio, party of the first part, hereinafter referred to as "Wife", and
Joseph R. Fazio, party of the second part, hereinafter referred to as "Husband",
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been
married on October 15, 1988; and
WHEREAS, Husband and Wife and the parents of the following children:
8enjamin J, Fazio, 0,0,8, 9/17/89; Nicholas R. Fazio, 0,0,8, 1/2/91; and Sara E,
Fazio, 0,0,8, 3/25/93, (hereinafter referred to as "children"); and
WHEREAS, certain differences have arisen by and between the parties
as a result of which they have now separated and the parties hereto are desirous of
settling fully and finally their respective financial and property rights and obligations as
between each other including, without limitation by specification: the settling of all
matters between them relating to the ownership and equitable distribution of real and
personal property; the settling of all matters between them relating to the past, present
and future support and/or maintenance of the children; the settling of all matters
between them relating to the past, present and future support, alimony and/or
maintenance of Wife by Husband or of Husband by Wife; and in general, the settling of
any and all claims and possible claims by one against the other or against their
respective estates,
WHEREAS, the parties being fully advised as to their respective rights,
duties and obligations growing out of their marital status, particularly with respect to
the relevant sections of the Divorce Code, Act of April 2, 1980, P.L. 63, Act No, 26, as
amended, 23 P.S, 3101 et seq" and being fully aware of their right to consult with or
having consulted with their respective legal counselor advisors, Jacqueline M,
Verney, Esquire, Attorney for Wife, and Andrew C, Sheely, Esquire, Attorney for
Husband, and having had the opportunity and ability to request a full and complete
disclosure of Income and assets from the other, and reviewing this Agreement, have
come to an agreement as to each and all of their said matters of property and
relations; and
WHEREAS, Husband has filed a No-fault Complaint in
Divorce, said Complaint being docketed in the Cumberland County Prothonotary's
Office at 97 - 583,
NOW, THEREFORE, in consideration of the above recitals and the
mutual covenants hereinafter set forth, each of the parties hereto Intending to be
legally bound hereby by affixing their hands and seals agree as follows:
1, ADVICE OF COUNSEL
Husband and Wife acknowledge that they have been given the
opportunity to obtain the advice of counsel regarding the provisions of this Agreement
and their legal effect in advance of the date set forth above to permit such independent
review, Each party acknowledges that he or she has had the opportunity to receive
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independent legal advice from counsel from his or her selection, and that each fully
understands the facts and has been fully Informed as to his her or her legal rights and
obligations, and each party acknowledges and accepts that this Agreement Is, and the
circumstances, fair and equitable, after having the opportunity to receive such advice
and with such knowledge, and that execution of this Agreement is not the result of any
Improper or Illegal agreement or agreements, In addition, each party hereto
acknowledges that he or she has had the opportunity to be fully advised by his or her
respective attorney of the impact of the Pennsylvania Divorce Code, whereby the court
has the right and duty to determine all marital rights of the parties including divorce,
alimony, alimony pendente lite, equitable distribution of all marital property or property
owned or possessed individually by the other, counsel fees and costs of litigation and,
fully knowing the same and having the opportunity to be fully advised if his or her
rights thereunder, each party hereto still desires to execute this Agreement,
acknowledging that the terms and conditions set forth therein are fair, just and
equitable to each of the parties, and waives his and her respective right to have the
Court of Common Pleas of Cumberland County, or any other court of competent
jurisdiction, make any determination or order effecting the respective parties rights to a
divorce, alimony, alimony pendente lite, equitable distribution of all marital property,
counsel fees and costs of litigation.
2, SEPARATION
It shall be lawful for each party at all times hereafter to live separate and
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apart from each other in such place or places as he or she may from time to time
choose or deem fit.
3, INTERFERENCE
Each party shall be free from interference, authority and control, direct or
Indirect, by the other as fully as if he or she were single and unmarried, Neither shall
molest the other or compel or endeavor to compel the other to cohabitate or dwell with
him or her, or to in any way harass or malign the other.
4, WAIVER OF CLAIMS AGAINST ESTATES
Except as otherwise provided herein, Husband relinquishes his inchoate
intestate right and his right to act as a personal representative in the estate of Wife,
and Wife relinquishes her inchoate intestate right and her right to act as a personal
representative in the estate of Husband, Each of the parties hereto by their presents,
for himself or herself, his or her heirs, executors, administrators or assigns, does
remise, release, quit-claim and forever discharge the other party hereto, his or her
heirs, executors, administrators or assigns or any of them, of any and all claims,
demands, damages, actions, causes of actions, suits, at law or equity, of whatsoever
kind or nature, for or because of any matter or thing omitted or suffered to be done by
said other party prior to and including the date hereof, except that this release shall in
no way exonerate or discharge either party hereto from the obligations and promises
made and imposed by reason of this Agreement and shall in no way affect any cause
of action in absolute divorce which either party may have against each other,
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5, MARITAL PROPERTY
The parties hereto acknowledge that during their marriage they have
acquired. Individually or jointly, various assets and property, Including the following:
(A) Marital residence located at 8 Clearview Avenue, Carlisle, (North
Middleton Township), Cumberland County, Pennsylvania; and
(B) Husband's Teachers Insurance and Annuity Association College
Retirement Equities Fund with a pre-tax value of approximately $42,633,14; and
(C) Wife's 401 (k) savings plan with Roadway Express; and
(C) 1983 Volkswagen Sedan with an estimated value of $1,000,00: and
(D) 1968 Chevrolet Pickup Truck with an estimated value of $1,000.00;
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and
(E) 1997 Chevrolet Truck; and
(F) Apache Camper with an estimated value of $500,00; and
(G) Miscellaneous U,S. Savings Bonds; and
(H) Life Insurance Policy # ADD-81S0 with ITT Hartford with a face value
of $1,000,00; and
(I) Life Insurance Policy # D4899470 with CUNA Mutual with a face
value of $1,000,00: and
(J) Life Insurance Policy # 0760029769 with Continental with a face
value of $1,000,00; and
(K) Miscellaneous personal property, including furniture, personal items,
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dishes, tools, jewelry, increase in value of non,marltal property, equipment,
coins and cash,
(L) Mortgage on marital residence with GMAC encumbering the marital
residence with an estimated payoff of $69,000,00; and
(M) Home Equity Line of credit encumbering marital residence with
Green Tree with an estimated pay-off of $6,771.56; and
(N) Home Equity Line of Credit with PNC Bank encumbering the marital
resIdence with and estimated pay-off of $9,040,18; and
(0) P,S,E,C,U, car loan on 1997 Chevrolet Truck in the approximate
amount of $23,275,53; and
(P) Wife's Student loans in the approximate amount of $4,000,00;
(Q) Wife's Personal Service Loan in the approximate amount of
$4,255,28
(R) Miscellaneous credit card debt.
Husband and Wife acknowledge that they are aware of their respective rights
pursuant to the Divorce Code of 1980, as amended, to obtain formal valuations or
appraisals of the marital residence, any and all pensions, and other items of marital
property, However, the parties agree that they will not undertake this expense and
acknowledge that no financial disclosures are attached to this agreement as separate
exhibits or schedules, The parties hereby waive any necessity for completing or
attaching any financial disclosure(s), Each party further acknowledges the opportunity
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to attach a full and complete financial disclosure and that such disclosure is not
desired to effectuate a fair and equitable resolution of their marital rights, duties and
obligations as provided in the Divorce Code of 1980, as amended,
6, PERSONAL PROPERTY
The parties hereto mutually agree that they have effected a satisfactory
division of the furniture, household furnishings, appliances and other household
personal property between them, and they mutually agree that each party shall from
and after the date hereof be the sole and separate owner of all such tangible personal
property presently in his or her possession. whether said property is heretofore owned
jointly or individually by the parties hereto, and this Agreement shall have the effect of
an assignment or bill of sale from each party to the other for such property as may be
in the individual possessions of each of the parties hereto.
Further, the parties hereto have divided between themselves, to their
mutual satisfaction, all items of tangible and intangible marital property, Neither party
shall make any claim to any such items of marital property, or of the separate personal
property of either party, which are now in the possession and/or under the control of
the other.
From and after the date of the signing of this Agreement both parties
shall have complete freedom of disposition as to their separate property which is in
their possession or control pursuant to this Agreement and may mortgage, sell, grant,
conveyor otherwise encumber or dispose of such property, whether real or personal,
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whether such property was acquired before, during or after marriage, and neither
Husband nor Wife need join in, consent to, or acknowledge any deed, mortgage, or
other Instrument of the other pertaining to such disposition of property,
7, REAL ESTAIE
Wife agrees to transfer her right, title and interest in and to the parcel of
jointly-owned real estate with improvements thereon situate at 8 Clearview Avenue,
Carlisle, (North Middleton Township), Cumberland County, Pennsylvania, to Husband
and to sign all documents necessary to effect said transfer of the title to the real estate
to Husband's name individually.
Husband further agrees to satisfy and save Wile harmless from any
obligation which she may be liable as a result of the mortgage and other
encumbrances presently on the jointly-owned real estate, said mortgages and
encumbrances being recorded in the Cumberland County Recorder of Deeds Office,
Husband agrees that upon delivery of the deed to the jointly-owned real estate, he will
continue to make the mortgage and home equity line payments and will indemnify
Wife on account of any obligation she may have on account of the mortgage or
mortgages, as well as any other obligation concerning the ownership of the real estate
Including, but not being limited to, municipal liens, real estate taxes, sewer and water
assessments, fire and casualty insurance, and utilities. Furthermore, Husband agrees
to satisfy the mortgages and home equity lines of credit through refinancing or any
other method of payment within thirty (30) days from the date of this Agreement or
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within a reasonable period of time thereafter not to exceed ninety (90) days,
Husband and Wife further agree that they shall each assume liability for
his or her respective share of any capital gains taxes which may be assessed
hereafter as the result of a sale of the above described real estate, and it is further
agreed between the parties that they shall satisfy their respective liabilities, at their
respective options, by qualifying for an exemption or by paying any taxes due.
S, MOTOR VE:tl!C!.E:~AND TRAIl.ER
The parties hereto agree that Husband shall be entitled to have the sole
and exclusive control, benefit, use and title of the 1983 Volkswagen Sedan and the
1968 Chevrolet Pick-up Truck. The parties hereto agree that Wife shall be entitled to
have the sole and exclusive control, benefit, use and title of the 1997 Chevrolet Truck
and that Wife shall hold Husband harmless from any liability associated with the 1997
Chevrolet Truck with PSECU as identified in Item 5(0) above, Titles to the motor
vehicles shall be transferred within thirty (30) days from the date of this Agreement to
the party receiving title in accordance with this Agreement, if necessary.
Husband and Wife further agree that title to the Apache Camper shall be
transferred to Wife within thirty (30) days from the date of this Agreement and that Wife
shall have exclusive possession of the Apache Camper.
9, MISCELLANEOUS
(A) The parties hereto acknowledge and agree that any and all savings
and checking accounts, as well as certificates of deposit, owned by them jointly or
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singly, have been divided to their mutual and individual satisfaction,
(B) Neither party hereto shall make a claim upon the other for
accumulated pension, profit-sharing, retirement support, retirement benefits, insurance
policies, IRA's, or any retirement-related benefits, Wife specifically waives her right to
claim any portion of Husband's Teachers Insurance and Annuity Association College
Retirement Equities Fund as identified in Item 5 (B) above and Husband specifically
waives his right to claim any portion of Wife's 401 (k) with Roadway Express, Inc,
Both parties shall assist with signing any documents necessary to waive their
respective interests in these retirement-related benefits.
(C) The parties hereto acknowledge and agree that any and all life
Insurance policies owned by them jointly or singly have been divided to their mutual
and individual satisfaction, Each party hereto acknowledges that they have in their
sole possession those polley or policies of life insurance which they intend to keep
and retain as their sole and exclusive property and, further, each party shall have the
right to designate the beneficiaries of said policies.
(D) The division of existing marital property is not, except as otherwise
expressly provided herein, intended by the parties to constitute in any way, a sale or
exchange of assets and the division is being affected without the introduction of
outside funds or other property not constituting a part of the marital estate, As a part of
an equitable division of the marital properties and the marital settlement herein
contained, the parties hereto agree to save and hold each other harmless from all
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income taxes assessed against the other resulting from the division of the property as
herein provided,
(E) Each party represents and warrants to the other that he or she has
not Incurred any debt, obligation or other liability, other than those described in this
Agreement, on which the other party is or may be liable, A liability not disclosed in this
Agreement will be the sole responsibility of the party who has incurred or may
hereafter incur it, and such party agrees to pay it as the same shall become due, and
to indemnify and hold the other party and his or her property harmless from any and all
such debts, obligations and liabilities.
(F) Each party representsJEJ warrants to the other that each shall file a
joint income tax return for tax year 199~nd separate income tax returns thereafter,
Information maintained by one party which is necessary to complete any income tax
return shall not be unreasonably withheld upon the request of either party,
(G) Each party further warrants that neither party shall invade or dispose
of the children's separate savings accounts which are presently maintained for the
benefit of the children without first obtaining the other party's written consent. Nothing
herein shall prevent either party from depositing additional sums in these accounts in
the future should they so desire,
10, DEBTS OF HUSBAND,to.ND 'l'JIFE
Husband and Wife acknowledge have incurred various marital, Oolnt and
separate) debts prior to separation. Presently, Husband and Wife remain indebted to
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the following persons or entities in the following approximate amounts:
Name
A, GMAC Mortgage
B, Green Tree
C, PNC Bank
D, P,S,E.C.U. Truck loan
E, Personal Service Loan
F, Wife's Student Loan (approximate)
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8rJ:lQ1Jnt Ql..Qebl
$69,000.00
$ 6,771,56
$ 9,040.18
$ 23,275.53
$ 4,255.28
$ 4,000.00
Husband hereby agrees to assume full liability and hold Wife harmless from
any liability associated with items A, Band C as set forth above, Wife hereby agrees to
assume full liability and hold Husband harmless from any liability associated with item
D, E and F above,
11, ALlMONY.SUPE.oRT ANDMAINIE~AN_C_E
Both parties acknowledge and agree that the provisions of this
Agreement providing for equitable distribution of marital property are fair, adequate
and satisfactory to them and are accepted by them in lieu of and in full and final
satisfaction of any claims or demands that either may now or hereafter have against
the other for support, maintenance or alimony. Husband and Wife further, voluntarily
and intelligently, waive and relinquish any right to seek from the other any payment for
support, alimony and maintenance and, further, waive and relinquish any rights to
division of property, other than provided in this Agreement and. finally, waive any
rights to alimony pendente lite, counsel fees and court costs.
Husband and Wife both agree that they have been respectively advised
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and are aware of the contents of the provisions of the Divorce Code, as amended, In
Pennsylvania, wherein considerations are set forth in determining an appropriate
amount, if any, to be paid in the form of alimony, After being fully advised of the
contents of the Divorce Code, as amended, both parties voluntarily and Intelligently
waive and relinquish any right to seek from the other payment for support, alimony and
maintenance,
12, Q.LLSTODY-OF THE Cl:!lLDREf\!
Husband and Wife have reached a general agreement with regards to custody
wherein both parties will have legal custody of the children and share physical
custody of the children as is reasonably practical. The parties further agree that
Cumberland County shall remain the jurisdiction for custody purposes, However,
nothing in this Agreement shall prevent any party from petitioning the Court of
Common Pleas of Cumberland County for the purpose of obtaining a formal court
order with regards to custody of the children should the circumstances change,
Nothing in this Agreement shall prejudice the right of either party to file for custody at
some point in the future should circumstances change.
13, SUPPORT FQR~ILDREf\!
The parties hereto acknowledge that alllllallers pertaining to the support
of the minor children are presently resolved. In tile event Husband and Wife cannot
agree upon the amount of child support at any time hereafter, Husband and Wife
agree that nothing set forth in this paragraph or tllis Marital Property and Settlement
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Agreement shall prejudice the right of either party to file a petition for modification or
entry of an amount of child support, at any time, in any Court of appropriate
jurisdiction, if necessary, It is the specific intent of the parties that this Agreement is
designed to avoid the present filing of formal child support proceedings only. and any
future award of child support will be governed by tile applicable support guidelines
and case law,
14, MUTUAL RE_LEASE
Subject to the provisions of this Agreement. each party waives his or her
right to alimony and further distribution of property inasmuch as the parties hereto
agree that this Agreement provides for an equitable distribution of their marital
property in accordance with the Divorce Code. as amended. Subject to the provisions
of this Agreement. each party has released and discharged and by this Agreement
does for himself or herself, and his or her heirs, legal representatives. executors,
administrators and assigns, release and discharge the other of and from alf causes of
action. claims. rights or demands whatsoever in la\'1 or equity, which either of the
parties ever had or now has against the other, except any or all cause or causes of
action for divorce or except in any or all causes of action for breach of any provisions
of this Agreement. Each party also waives their rigllt to request marital counseling
pursuant to Section 3302 of the Divorce Code.
15, SUBSEQUE;NTJlLVORCE
A decree in divorce entered by a cOLIn of competent jurisdiction to either
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party shall not suspend, supersede or alfectthe terms of this Agreement. Both parties
agree, If requested, to enter a Consent Order or Orders concerning the provisions of
this Agreement In the Court of Common Pleas of Cumberland County, Pennsylvania,
or any other Court of competent jurisdiction, as a part of a resolution of any divorce
action filed or to be filed, This Agreement. and the terms and conditions contained
herein, as well as the enforcement of said terms and conditions, shall be contingent
upon the granting of a Divorce Decree to either party by the Court of Common Pleas of
Cumberland County, Pennsylvania, or any other Court of competent jurisdiction,
Furthermore, both parties Ilereto agree. if requested. to execute the appropriate
affidavits and consents to secure a No-fault Divorce as may be required by the Divorce
Code, as amended. Both parties hereto agree that tllis Agreement may be
incorporated into a separate Court Order but shall not merge in such order.
16, ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties and
there are no representations, warranties, covenants or undertakings other than those
expressly set forth herein Husband and Wife acknowledge and agree that the
provisions of this Agreement with respect to the distribution and division of marital and
separate property are fair. ,)quitable and satisfactory to them based on the length of
their marriage and otller relevant factors which have been taken into consideration by
the parties. Both parties Ilureby accept tile provisions of this Agreement with respect
to the division of property In lieu of and in full and final settlement and satisfaction of allO
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claims and demands that they may now have or hereafter have against the other for
equitable distribution of their property by any court of competent jurisdiction pursuant
to Section 3502 of the Divorce Code or any amendments thereto, Husband and Wife
each voluntarily and intelligently waive and relinquish any right to seek a court
ordered determination ami distribution of marital property, but nothing herein
contained shall constitute a waiver by either party 01 any rights to seek the relief of any
court for the purpose 01 enforcing the provisions 01 this Agreement.
17. VOLUNTARY EXECUTIQN
The provisions 01 this Agreement and their legal effect have been fully
explained to the parties by their respective counsel. and each party acknowledges that
the Agreement is lair and equitable, that it is being entered into voluntarily, with full
knowledge 01 the assets of both parties, and that it is not the result 01 any duress or
undue influence, The parties acknowledge that they have been lurnished with all
information relating to the financial affairs 01 the other which has been requested by
each 01 them or by their respective counsel.
18, ADDITIONAl..JNSTRUM_ENIS
Husband and Wife shalllrom time to time at the request 01 the other,
execute, acknowledge and deliver to the other party any and alllurther instruments
that may be reasonably reqlllred to give lulllorce and effect to the conditions of this
Agreement.
19, MODIFICATION AND WA!V_ER
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Any modification or waiver of any of the provisions of this Agreement
shall be effective only if made in writing and executed with the same formality as this
Agreement. The failure of eltller party to insist upon strict performance of any of the
provisions of this Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature. The waiver of any term, condition, clause or
provision of this Agreement shall in no way be deemed or construed as a waiver of
any other term, condition, clause or provision of tllis Agreement.
20, BREACH
If either party 11l'reto breaches any provision of this Agreement, the other
party shall have the right. at his or her election, to sue for such breach, or seek other
remedies or relief as may 1)0 available to him or her. Both parties agree and are
aware that noncompliance ,'11th any provision of this Agreement permits either party to
pursue appropriate legal remedies, including sanctions as set forth in 23 Pa, C,S,A,
~3105,
Each party lurther hereby agrees to save and hold harmless the other
party from any and all attorneys' fees, costs and legal expenses and expenses that
either may sustain, or incul 01 become liable or answerable for, in any way
whatsoever, or shall pay upon, or in consequence of, any default or breach by the
other of any of the terms 0' IJlovisions of tllis Agreement by reason of which either
party shall or shall be obll[l' '(I to retain or engage counsel to initiate or maintain or
defend proceedings against tile other at law or equity or both or in any way
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whatsoever, provided that the party who seeks to recover such attorneys' fees, costs
and legal expenses and expenses must first be successful in whole or in part, before
there would be any liability for attorneys' fees, costs, legal expenses and expenses, It
is the specific agreement anti intent of the parties that a breaching or wrongdoing
party shall bear the burden and obligation of any and all costs and expenses and
counsel fees incurred by the other party in endeavoring to protect and enforce his or
her rights under this Agreement.
All remedies provided by law and all remedies provided for in this
Agreement for enforcement uf the Agreement shall be deemed to be cumulative and
the exercise of one remedy shall not bar or prevent the pursuit of any other remedy
and either party may elect to pursue such remedies simultaneously and the exercise
of a remedy one or more times shall not exhaust its use or prevent further pursuit of
such remedy,
21. DESCRIPTIVE H!;APING"s
The descriptive headings used herein are for convenience only. They
shall not have any effect whatsoever in determining the rights or obligations of the
parties,
22, INDEPENDENT SEPARATE CQVHtANIS
It is specifically understood and agreed by and between the parties
hereto that each paragraph hereof shall be deemed to be a separate and independent
covenant and agreement.
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23, APPLICABLE LAW
This Agreement shall be construed under the laws of the Commonwealth
of Pennsylvania, For contract interpretation parties, this Agreement was prepared by
both parties,
24, VOID CLAUSES
If any term, conclitions, clause or provision of this Agreement shall be
determined or declared to be void or invalid in law or otherwise, then only that term,
condition, clause or provision shall be stricken from this Agreement and in all other
respects this Agreement shall be valid and continue in full force, effect and operation,
25, BINDING AGREEME~n
This Agre'~mel': shall IJe binding ami shall inure to the benelit of the
parties hereto and their resplJctive heirs. executors, administrators, successors and
assigns.
IN WITNESS WHEREOF, the partie~ Ilave heleunto set their hands and
seals the day and year first illJove written.
WITNESS:
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