Free Motion for Issuance of Letters Rogatory - District Court of Federal Claims - federal

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EXHIBIT B

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EXHIBIT B DOCUMENTS TO BE PRODUCED BY CREDIT SUISSE FIRST BOSTON LTD. DEFINITIONS & INSTRUCTIONS A. "Document," "record" and "material" include any written, printed, typed, electronic or graphic matter of any kind or nature. Any draft or non-identical copy constitutes a separate document for purposes of these requests. The terms shall be construed to include, but shall not be limited to, correspondence, electronic mail, notes, notations, contracts, brochures, agreements, deeds, leases, letters, memoranda, checks, bank statements, reports, analyses, projections, studies, records, corporate minutes, financial statements, financial records, accounting or audit workpapers (including permanent workpapers), spreadsheets, transcripts, recordings, and all other types of written or documentary materials. B. Any copy of a document that varies in any way from the original or from any other copy of the document, whether by reason of handwritten or other notation or any omission, shall constitute a separate document and must be produced. Each document is to be produced in its entirety, without abbreviation or expurgation, and the person who made the notation identified. C. If any documents are withheld under a claim of privilege, furnish a list identifying each document for which a privilege is claimed, together with the following information and sufficient details so as to permit a court to adjudicate the validity of the claim of privilege: date, sender, recipient, type (e.g., letter, memorandum, telegram, chart, photograph, etc.), subject matter of the document, the basis on which a privilege is claimed, and the paragraph or paragraphs of this request to which the document responds. D. If any document that would have been responsive to these requests no longer exists, please state the following for each document: the date of destruction, the reason for destruction, and the person(s) responsible for the decision to destroy the document(s) and for the actual destruction of the documents. E. Responses to these requests should be made in a manner consistent with Fed. R. Evid. 902(12), Certified Foreign Records of Regularly Conducted Activity. F. The term "Con Ed" shall refer to Consolidated Edison Company of New York, Inc. & Subsidiaries, and affiliated companies, including, but not limited to, Consolidated Edison Development, Inc., Consolidated Edison Leasing, Inc., and Consolidated Edison, Inc.

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G. The term "Banc One" shall refer to Banc One Leasing Corp. its related affiliates, subsidiaries, successors, and assigns, including, but not limited to, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. H. The term "EZH" shall refer to N.V. Electriciteitsbedrifj Zuid-Holland, its related affiliates, subsidiaries, successors, and assigns, including, but not limited to, Preussen Elektra A.G. and E.ON Benelux Generation N.V., and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. I. The term "RoCa3" shall refer to the gas fired CHP facility located in the Netherlands on the border between Rotterdam and Capelle aan den IJessel, constituting the third unit alongside two previously built units, which was owned by EZH on or about December 15, 1997. J. The term "HBU" shall refer to Hollandsche Bank-Unie N.V., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. K. The term "ABN AMRO" shall refer to ABN AMRO Bank N.V., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. L. The term "Tauw" shall refer to Tauw Milieu B.V., its related affiliates, subsidiaries, successors, and assigns, including, but not limited to, Tauw B.V., and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. M. The term "CSFB" shall refer to Credit Suisse First Boston Ltd., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. N. The term "Lease Transaction" shall refer to the series of transactions pertaining to the RoCa3 facility as described in paragraphs 61-77, inclusive of the complaint attached hereto as Exhibit B-1. O. The term "Lease Transaction Participants" refers to the following entities: ABN AMRO Bank N.V.; Hollandsche Bank-Unie N.V.; EZH; Con Ed; Credit Suisse; Bayerische Landesbank; Wilmington Trust Co.; and ABB Leasing GmbH, and any and all affiliated businesses, successors, assigns, predecessor or successor businesses, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations.
Exhibit B

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P. The term "Capstar" refers to Capstar Partners L.L.C., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, director, member, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. Q. The term "Cornerstone" refers to Cornerstone Financial Advisors L.P., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, partner, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. DOCUMENTS TO BE PRODUCED 1. The documents in the files of CSFB that discuss the Lease Transaction.

2. The documents in the files of CSFB that discuss or pertain to its solicitation as a potential participant in the Lease Transaction. 3. The documents in the files of CSFB that discuss CSFB's decision to participate in the Lease Transaction. 4. The documents in the files of CSFB that contain the analyses made in conjunction with the decision to participate in the Lease Transaction. 5. The documents in the files of CSFB that discuss the negotiations performed with respect to CSFB's role in the Lease Transaction or the purchase or issuance of US treasury strips in connection therewith. 6. The documents in the files of CSFB that describe or discuss the lease options the Lease Transaction provides to Con Ed and/or EZH, including documents that address the feasibility and/or likelihood of exercise of those options. 7. The documents in the files of CSFB discussing any negotiations performed with respect to the terms of the Lease Transaction or the purchase of US Treasury strips in connection therewith. 8. The documents in the files of CSFB evidencing the transfer of any funds by or to any of the Lease Transaction Participants in connection with the Lease Transaction or the purchase of US Treasury strips in connection therewith.

Exhibit B

3

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9. The documents in the files of CSFB containing or discussing Credit Suisse's analysis of appropriate market rates for the various loans, debt defeasance deposits, and collateral purportedly used in the Lease Transaction as identified in the correspondence Bates Nos. PF00613031, PF006132-33, PF006134-35, PF006136-37, and PF006138-39, attached hereto as Exhibits B-2, B-3, B-4, B-5, and B-6 respectively, including, but not limited to, how the percentage rates set forth in each of those documents was selected. 10. The drafts and underlying work papers for the opinion letters referred to in paragraph 9 in the files of CSFB. COMMUNICATIONS 11. The letters, memoranda, notes, e-mails, and other written communication in the files of CSFB exchanged by and/or between CSFB and any of the Lease Transaction Participants (or their affiliates, assigns, or successors in interest) in connection with the Lease Transaction or the US Treasury Strips purchased or issued in connection therewith. 12. The letters, memoranda, notes, e-mails, and other written communication in the files of CSFB exchanged by and/or between CSFB and Capstar in connection with the Lease Transaction or the US Treasury Strips purchased or issued in connection therewith. 13. The letters, memoranda, notes, e-mails, and other written communication in the files of CSFB exchanged by and/or between CSFB and Cornerstone in connection with the Lease Transaction or the US Treasury Strips purchased or issued in connection therewith. 14. The letters, memoranda, notes, e-mails, and other written communication in the files of CSFB exchanged by and/or between CSFB and Banc One in connection with the lease transaction between Banc One and EZH for the undivided interest in the RoCa3 facility not involved in the Lease Transaction, or the US Treasury Strips purchased or issued in connection therewith. ACCOUNT INFORMATION 15. The documents in the files of CSFB discussing or referring to Account Number 2F4A2, as referred to in Bates Nos. PF002841-2843, attached hereto as Exhibit B-7, as it related to the Lease Transaction.

Exhibit B

4

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TREASURY STRIPS 16. The documents in the files of CSFB discussing or pertaining to the following US treasury strip coupons identified in documents identified as Bates Nos. US01835, US01836, and US01837-US01840, attached hereto as Exhibits B-8, B-9, and B-10: US treasury strip coupons 11/15/2011, CUSIP 912833JX9; US treasury strip coupon 11/15/2016, CUSIP 912833KK5; US treasury strip coupon 2/15/2017, CUSIP 912833KL3; US treasury strip coupon 5/15/2017, CUSIP 912833KM1; US treasury strip coupon 8/15/2017, CUSIP 912833KN9; US treasury strip coupon 2/15/2018, CUSIP 912833KQ2; US treasury strip coupon 5/15/2018, CUSIP 912833KRO; US treasury strip coupon 8/15/2018, CUSIP 912833KS8; and US treasury strip coupon 11/15/2018, CUSIP 912833KT6, including, but not limited to all documents pertaining to the purchase, issuance, and ownership of the treasury strips, the specific maturity dates, amounts, and percentages selected for each treasury strip, and the role of the treasury strips in the Lease Transaction and/or any substantially similar transaction involving the RoCa3 facility to which Banc One was a party. 17. The documents in the files of CSFB discussing or pertaining to the account or accounts containing the US treasury strip coupons identified in paragraph 16. SIMILAR TRANSACTIONS 18. The documents within the files of CSFB that discuss or pertain to any of the following lease transactions considered by the plaintiff, Con Ed, between 1997 and 2001, including the documents discussing the solicitation of CSFB as a potential participant in such a transaction and the documents reflecting CSFB's consideration of such transactions and decision to participate in such transactions: a. b. c. d.
Exhibit B

NUON lease (Netherlands); MEGA Gas and Thermal Distribution lease/leaseback (Netherlands); EPON lease (Netherlands); ENECO lease (Netherlands); 5

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e. f. g. h. i. j. k. l. m. n. o. p. q. r. s. t. u. v.

ENN lease (Nethelands); ENW gas lease (Netherlands); MCN lease (United States); ELECTRABEL power plant lease/leaseback (Belgium); Diefland gas and thermal distribution lease/leaseback (Netherlands); Linz power plant lease/leaseback (Austria); UNA power plant lease/leaseback (Netherlands); EG Laufenburg lease/leaseback (Switzerland); Humber power lease/leaseback (United Kingdom); EWZ electric transmission grid lease/leaseback (Switzerland); ESAG lease (Germany); REMU lease (Netherlands); DELTA lease (Netherlands); ZETA/TEL lease (Netherlands); EDON lease (Netherlands); DEW lease (Germany); VASA lease (Germany); and SWISCO lease (Switzerland).

19. The documents in the files of CSFB that discuss any other transaction similar to the Lease Transaction and/or the transaction described in Revenue Ruling 2002-69, 2002-2 C.B. 760 (copy attached hereto as Exhibit B-11), from 1996 through 2001, including the documents discussing the solicitation of CSFB as a potential participant in such a transaction and the documents reflecting CSFB's consideration of such transactions and decision to participate in such transactions. CONTINUING COMMUNICATIONS 20. The letters, memoranda, notes, e-mails, and other written communication in the files of CSFB exchanged by and/or between CSFB and E.On Benelux Generation N.V., E.On Energie A.G., or EZH, or representatives thereof, discussing the acquisition of EZH by Preussen 6

Exhibit B

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Elektra AG in connection with the Lease Transaction or the US treasury strip coupons identified in paragraph 16 above.

Exhibit B

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EXHIBIT B-1

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IN THE UNITED ST A TES COURT OF FEDERAL CLAIMS
)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES,

FILED APR ,9 _

)

)
) ) ) ) ) ) )
)

Plaintiff,
v.

t06- 305 T
.,' No.

THE UNITED STATES,

Defendant.

) )

COMPLAINT
Plaintiff, Consolidated Edison Company of New York, Inc. & Subsidiares, brings this
action for a refund of federal taxes paid in connection with the Internal Revenue Service's

proposed adjustments to its federal tax return for the taxable year ending December 31, 1997.
The adjustments ar related to Plaintiffs investment in an electric generation facility located

outside Rorteidam, The Netherlands.
In support of its refund claim, Plaintiff alleges as follows:

JUSDICTION AND SUMRY OF ACTION
1. Plaintiff, Consolidated Edison Company of New York, Inc. & Subsidiares ("Con

Edison NY"), brings this refund

action, founded upon the Internal Revenue Code of 1986, for the

recovery of federal income tax paid by Plaintiff for the taxable year ended December 31, 1997
("the 1997 taxable year").

2. Defendant is the United States of America.
3. This Court has jurisdiction by reason of 28 U,S.C. §§ 1346(a)(1) and 1491(a)(1)

and 26 U.S.c. § 7422.

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4. On or before September 9, 1998, Con Edison NY filed a timely federal
consolidated income tax return for the 1997 taxable year with the Internal Revenue Service

("IRS") and timely paid income taxes in the amount of $291,003,408.

5. Con Edison NY's name, address, and identification number appearng on the
1997 tax return ar: Consolidated Edison Company of New York, Inc. & Subsidiares; 4 Irving

Place, Room 615-5, New York, New York, 10003; and 13-5009340, respectively.
6. During the 1997 taxable year, Con Edison NY, through its subsidiares, made an

investment i~ an electric generation plant in The Netherlands. The plant is generally known as
"RoCa3" and is owned by N.V. Electriciteitsbedrjf Zuid-Holland ("South Holland Electric").

This transaction is hereinafter referred to as the "RoCa3 Investment."
7. On its 1997 tax return, Con Edison NY reported rental income with respect to the

RoCa3 Investment and deducted rental expense, amortization of expenses, and interest expense

,

relating to the property and indebtedness incurred in the RoCa3 Investment, for a net loss of

$937,331.

8. The IRS, during a routine audit of Con Edison NY's tax return for the 1997
taxable year, disputed Con Edison NY's tax treatment of the RoCa3 Investment.
9. On or about September 15,2005, the IRS issued a Notice of Proposed Adjustment

to Con Edison NY, proposing additional federal income of $937,331 for the 1997 taable year
with respect to the RoCa3 Investment.

10. The IRS's proposed adjustments resulted in a tax increase of $328,066, increasing
Con Edison NY's federal income tax liability for the 1997 taxable year from $291,003,408 to
$291,331,474.

2

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EXHIBIT C

2375192.1

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EXHIBIT C DOCUMENTS TO BE PRODUCED BY STANDARD & POOR'S DEFINITIONS & INSTRUCTIONS A. "Document," "record" and "material" include any written, printed, typed, electronic or graphic matter of any kind or nature. Any draft or non-identical copy constitutes a separate document for purposes of these requests. The terms shall be construed to include, but shall not be limited to, correspondence, electronic mail, notes, notations, contracts, brochures, agreements, deeds, leases, letters, memoranda, checks, bank statements, reports, analyses, projections, studies, records, corporate minutes, financial statements, financial records, accounting or audit workpapers (including permanent workpapers), spreadsheets, transcripts, recordings, and all other types of written or documentary materials. B. Any copy of a document that varies in any way from the original or from any other copy of the document, whether by reason of handwritten or other notation or any omission, shall constitute a separate document and must be produced. Each document is to be produced in its entirety, without abbreviation or expurgation, and the person who made the notation identified. C. If any documents are withheld under a claim of privilege, furnish a list identifying each document for which a privilege is claimed, together with the following information and sufficient details so as to permit a court to adjudicate the validity of the claim of privilege: date, sender, recipient, type (e.g., letter, memorandum, telegram, chart, photograph, etc.), subject matter of the document, the basis on which a privilege is claimed, and the paragraph or paragraphs of this request to which the document responds. D. If any document that would have been responsive to these requests no longer exists, please state the following for each document: the date of destruction, the reason for destruction, and the person(s) responsible for the decision to destroy the document(s) and for the actual destruction of the documents. E. Responses to these requests should be made in a manner consistent with Fed. R. Evid. 902(12), Certified Foreign Records of Regularly Conducted Activity. F. The term "Con Ed" shall refer to Consolidated Edison Company of New York, Inc. & Subsidiaries, and affiliated companies, including, but not limited to, Consolidated Edison Development, Inc., Consolidated Edison Leasing, Inc., and Consolidated Edison, Inc.

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G. The term "Banc One" shall refer to Banc One Leasing Corp. its related affiliates, subsidiaries, successors, and assigns, including, but not limited to, and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. H. The term "EZH" shall refer to N.V. Electriciteitsbedrifj Zuid-Holland, its related affiliates, subsidiaries, successors, and assigns, including, but not limited to, Preussen Elektra A.G. and E.ON Benelux Generation N.V., and any person, officer, director, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. I. The term "RoCa3" shall refer to the gas fired CHP facility located in the Netherlands on the border between Rotterdam and Capelle aan den IJessel, constituting the third unit alongside two previously built units, which was owned by EZH on or about December 15, 1997. J. The term "Capstar" refers to Capstar Partners L.L.C., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, director, member, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. K. The term "Cornerstone" refers to Cornerstone Financial Advisors L.P., its related affiliates, subsidiaries, successors, and assigns, and any person, officer, partner, accountant, lawyer, agent, or entity acting on behalf of any of the foregoing organizations. DOCUMENTS TO BE PRODUCED COMMUNICATIONS 1. The letters, memoranda, notes, e-mails, and other written communication in the files of Standard & Poor's exchanged by and/or between Standard & Poor's and Cornerstone, including but not limited to Rob Holzman, pertaining to EZH, the RoCa3 facility, the Dutch Energy Market, Con Ed, or the transaction between EZH and Con Ed. 2. The letters, memoranda, notes, e-mails, and other written communication in the files of Standard & Poor's exchanged by and/or between Standard & Poor's and Con Ed, including, but not limited to Brian DePlautt and Jeanette Li, pertaining to EZH, E.On Benelux Generation N.V., E.On Energie A.G., E.On Benelux B.V., the RoCa3 facility, the Dutch Energy Market, Con Ed, or the transaction between EZH and Con Ed. 3. The letters, memoranda, notes, e-mails, and other written communication in the files of Standard & Poor's exchanged by and/or between Standard & Poor's and Banc One pertaining to EZH, E.On Benelux Generation N.V., E.On Energie A.G., E.On Benelux B.V., the
Exhibit C

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RoCa3 facility, the Dutch Energy Market, Con Ed, or the transaction between EZH and Con Ed and or Banc One. ANALYSIS 4. The documents in the files of Standard & Poor's containing or discussing the analyses performed by Standard & Poor's pursuant to a request by Cornerstone, Con Ed, Banc One or their representative, pertaining to EZH, E.On Benelux Generation N.V., E.On Energie A.G., E.On Benelux B.V., the RoCa3 facility, the Dutch Energy Market, Con Ed, or the transaction between EZH and Con Ed during the time period from November 1997 through December 1997 as may be reflected in correspondence between Standard and Poor's and Cornerstone, Bates Nos. PF000001, PF003585, and PF004056, attached hereto as Exhibits C-1, C-2, and C-3 respectively. 5. The documents in the files of Standard & Poor's containing or discussing the analyses performed by Standard & Poor's pursuant to a request by Cornerstone, Con Ed, or their representative, pertaining to EZH, E.On Benelux Generation N.V., E.On Energie A.G., E.On Benelux B.V., the RoCa3 facility, the Dutch Energy Market, Con Ed, or the transaction between EZH and Con Ed during the time period from January 2001 through March 2001 as may be reflected in correspondence between Standard and Poor's and Cornerstone, Bates Nos. US08402, attached hereto as Exhibit C-4. SIMILAR TRANSACTIONS 6. The documents within the files of Standard & Poor's pertaining to any analyses performed by Standard & Poor's pursuant to a request by Cornerstone, Con Ed, Banc One or their representative in connection with the following lease transactions considered by the plaintiff, Con Ed, between 1997 and 2001, including the correspondence and communications between the Standard & Poor's and Cornerstone, Con Ed, Banc One or their representative pertaining to such transactions: a. b. c. d. e. f. NUON lease (Netherlands); MEGA Gas and Thermal Distribution lease/leaseback (Netherlands); EPON lease (Netherlands); ENECO lease (Netherlands); ENN lease (Nethelands); ENW gas lease (Netherlands);

Exhibit C

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g. h. i. j. k. l. m. n. o. p. q. r. s. t. u. v.

MCN lease (United States); ELECTRABEL power plant lease/leaseback (Belgium); Diefland gas and thermal distribution lease/leaseback (Netherlands); Linz power plant lease/leaseback (Austria); UNA power plant lease/leaseback (Netherlands); EG Laufenburg lease/leaseback (Switzerland); Humber power lease/leaseback (United Kingdom); EWZ electric transmission grid lease/leaseback (Switzerland); ESAG lease (Germany); REMU lease (Netherlands); DELTA lease (Netherlands); ZETA/TEL lease (Netherlands); EDON lease (Netherlands); DEW lease (Germany); VASA lease (Germany); and SWISCO lease (Switzerland).

Exhibit C

4

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EXHIBIT C-1

Case 1:06-cv-00305-MBH
NCV 19-97 WoD 16::0

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? 03 :-,0:'':'0:':

~::NUv-.i';'::, 1(:,)0
Ei.oipãlf ~I1Ji...', c.anai HII!ur.

r'"(Ull ~isr- ,-W"Cr-UroH ~ C. r- 1 i'lrli'lL:: I'- :;GlC! .iC''' '..i:-'o:a~..C'_'

CCRIERST~NE F ¡ N r ~x ~= aa7SóCJ83

15 ñtUury Cimii
Lr; helM 7el' Td +.f-f r0)lJ.s26 J800 føc ..+! (0)J71.826 Jô90

Standard & FoOTS 'i
A O'...ii.. øI'Jli..~..JlUl Co"'/,""~,

i 9 November J 997

Rob Holzman

Vice Prsident

Cornerstone Finew Adviso,"
RiveN/aik Suite 45D

215D E.Lake Cook RDsd
Buffao Grove

Ilinois 60089
USA

DeM Rob

Re: EZH
Based on Standar & Poor's ~viC' of the Dutch elec.trcity genertion sector, J CaD confimi that oompanies such as Electriciteitsbeclijí Zu.d Hollad ("EZH"). are lil:eJy, if" rating were
requested, to be rate at or above the .. A" categol)'.

This information i~ confidential and must: not be- dis.closed under any circumst3ces to EZH

Ol third pares (apar fri;)rn your US utility client on th transacton). This opinion in no way
constrai Standard &. Poor.s futue acrlons 'nth EZH.

Yours sincerely

~~
CE 000002

Aidan O~Mnhony Director
Corpora1e Ratings

J-.G..,V 1~1_-l",'..1 (1 Li4 1.l;lNrr 01('4 Md,i"'..11'!I i-..r; J!,.,,...,,.i ¡:aii Af.I.i~J..iu !.,bli,. S/. LO/. ~Gl"(':i Hi f",i,~J rl ~ai VA l 1'" "to :.'V i:Uj

TOTAL p 02

Nn' ._ 'C~ 17;~O

ci,:'7.:1Ci:P?==7

=:CJr:~ c'''

PF000001

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