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EXHIBIT 10.23
SECURITY AGREEMENT
(Elite Information Systems, Inc.)
THIS AGREEMENT made as of July 23, 1997, by and between ELITE
INFORMATION SYSTEMS, INC., a California corporation having its principal place
of business at 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 ("Debtor") and FLEET NATIONAL BANK, a national banking
association organized under the laws of the United States having an office at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 as Agent for itself and each of the
other Lenders who are now or hereafter become parties to the hereinafter defined
Loan Agreement ("Secured Party"). Capitalized terms used but not expressly
defined herein shall have the meanings assigned thereto in said Loan Agreement.
Section 1. Recitals.
(a) Broadway & Seymour, Inc., a Delaware corporation, Elite Information
Systems International, Inc., a California corporation, The MiniComputer Company
of Maryland, Inc., a Maryland corporation and Pragmatix Telephony Solutions,
Inc., a North Carolina corporation are herein collectively referred to as the
"Other Borrowers"; and the Other Borrowers together with Debtor are herein
collectively referred to as the "Borrower".
(b) Secured Party, Debtor and the Other Borrowers have this day entered
into that certain Loan Agreement (as the same may be amended from time to time,
the "Loan Agreement") pursuant to the terms of which Secured Party has agreed to
make loans to Borrower as set forth therein.
Section 2. The Security Interests. (a) In order to secure (i) payment
and performance of all of the obligations of Borrower under the Loan Agreement
and under the Note, (ii) the performance of all of the obligations of Debtor to
Secured Party contained herein, and (iii) the payment of all other future
advances and other obligations of Debtor and /or the Other Borrowers to Secured
Party, including, without limitation, any future loans and advances made to
Debtor and/or the Other Borrowers by Secured Party prior to, during or following
any (a) application by Debtor or any of the Other Borrowers for or consent by
Debtor or any of the Other Borrowers to the appointment of a receiver, trustee
or liquidator of Debtor or any of the Other Borrowers' property, (b) admission
by Debtor or any of the Other Borrowers in writing of its or their inability to
pay or failure generally to pay its or their respective debts as they mature,
(c) general assignment by Debtor or any of the Other Borrowers for the benefit
of creditors, (d) adjudication of Debtor or any of the Other Borrowers as
bankrupt or (e) filing by Debtor or any of the Other Borrowers of a voluntary
petition in bankruptcy or a petition or an answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debts, dissolution or
liquidation statute, or an answer admitting the material allegations of a
petition filed against it in a proceeding under any such law (any of the
foregoing shall hereinafter be referred to as a "Bankruptcy Event"), any
interest accruing under the Note and/or the Loan Agreement after the
commencement of a Bankruptcy Event to the extent permitted by applicable law,
and any and all other indebtedness, liabilities
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and obligations of Debtor and the Other Borrowers to Secured Party of every kind
and description, direct, indirect or contingent, now or hereafter existing, due
or to become due (all of the foregoing being hereinafter called the
"Obligations"), Debtor hereby grants to Secured Party for its benefit a
continuing security interest in the following described fixtures and personal
property (hereinafter collectively called the "Collateral"):
All fixtures and all tangible and intangible personal property
of Debtor, whether now owned or hereafter acquired by Debtor, or in
which Debtor may now have or hereafter acquire an interest, including,
without limitation, (a) all equipment (including all machinery, tools
and furniture), inventory and goods (each as defined in the Uniform
Commercial Code, if so defined therein); (b) all accounts, accounts
receivable, other receivables, contract rights, chattel paper, and
general intangibles (including, without limitation, trademarks,
trademark registrations, trademark registration applications,
servicemarks, servicemark registrations, servicemark registration
applications, goodwill, tradenames, trade secrets, patents, patent
applications, licenses, permits, copyrights, copyright registrations,
copyright registration applications, moral rights, any other proprietary
rights, exclusionary rights or intellectual property and any renewals
and extensions associated with any of the foregoing, as each of the
foregoing may be secured under the laws now or hereafter in force and
effect in the United States of America or any other jurisdiction) of
Debtor (each as defined in the Uniform Commercial Code, if so defined
therein); (c) all instruments, documents of title, policies and
certificates of insurance, securities, bank deposits, deposit accounts,
checking accounts and cash of Debtor; (d) all accessions, additions or
improvements to, all replacements, substitutions and parts for, and all
proceeds and products of, all of the foregoing and (e) all books,
records and documents relating to any of the foregoing.
(b) All Collateral consisting of accounts receivable, contract rights,
instruments, chattel paper and general intangibles (each as defined in the
Uniform Commercial Code) of Debtor arising from the sale, delivery or provision
of goods and/or services, including, without limitation, all documents, notes,
drafts and acceptances, now owned by Debtor as well as any and all thereof that
may be hereafter acquired by Debtor and in and to all returned or repossessed
goods arising from or relating to any contract rights, accounts or other
proceeds of any sale or other disposition of inventory, are sometimes
hereinafter collectively called the "Customer Receivables".
(c) The security interests granted pursuant to this Section 2 (the
"Security Interests") are granted as security only and shall not subject Secured
Party to, or transfer or in any way affect or modify, any obligation or
liability of Debtor under any of the Collateral or any transaction which gave
rise thereto.
Section 3. Delivery of Pledged Securities, Chattel Paper and Database.
All securities other than Cash Equivalent Investments having a maturity and term
of thirty (30) days or less, including, without limitation, shares of stock and
negotiable promissory notes, of Debtor, whether now owned or hereafter acquired
by Debtor, shall be delivered to Secured Party by Debtor simultaneously with the
delivery hereof or, with respect to after acquired securities,
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promptly after the same have been acquired by Debtor (which securities are
hereinafter called the "Pledged Securities") shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed undated
instruments of transfer or assignments in blank, all in form and substance
satisfactory to Secured Party. Exhibit A attached hereto and made a part hereof
sets forth a complete description of all securities owned by Debtor on the date
hereof. Secured Party may at any time or from time to time, at its sole
discretion, require Debtor to cause any chattel paper included in the Customer
Receivables to be delivered to Secured Party or any successor agent or
representative designated by it for the purpose of causing a legend referring to
the Security Interests to be placed on such chattel paper and upon any ledgers
or other records concerning the Customer Receivables.
Section 4. Filing; Further Assurances. Debtor will, at its expense,
execute, deliver, file and record (in such manner and form as Secured Party may
reasonably require), or permit Secured Party to file and record, any financing
statements, any carbon, photographic or other reproduction of a financing
statement or this Security Agreement (which shall be sufficient as a financing
statement hereunder), any specific assignments or other paper that may be
reasonably necessary or desirable, or that Secured Party may reasonably request,
in order to create, preserve, perfect or validate any Security Interest or to
enable Secured Party to exercise and enforce its rights hereunder with respect
to any of the Collateral. Debtor hereby irrevocably appoints Secured Party as
Debtor's attorney-in-fact to execute in the name and behalf of Debtor such
additional financing statements as Secured Party may reasonably request.
Section 5. Representations and Warranties of Debtor. Debtor hereby
represents and warrants to Secured Party that (a) Debtor is, or to the extent
that certain of the Collateral is to be acquired after the date hereof, will be,
the owner of the Collateral free from any adverse Lien except as permitted under
the Loan Agreement; (b) except for such financing statements identified on
Exhibit C hereto and such financing statements relating to Liens against Debtor
specifically described in and permitted by the Loan Agreement, no financing
statement covering the Collateral is on file in any public office, other than
the financing statements filed pursuant to this Security Agreement; (c) all
additional information, representations and warranties contained in Exhibit B
attached hereto and made a part hereof are true, accurate and complete in all
material respects on the date hereof; and (d) there are no restrictions upon the
voting rights or the transfer of all or any of the Pledged Securities (other
than as may appear on the face of any certificate evidencing any of the Pledged
Securities or as may be imposed by any state or local agency or government) and
Debtor has the right to vote, pledge, grant the Security Interest in and
otherwise transfer the Pledged Securities free of any encumbrances (other than
applicable restrictions imposed by any state or local agency or government or
Federal or state securities laws or regulations).
Section 6. Covenants of Debtor. Debtor hereby covenants and agrees with
Secured Party that Debtor (a) will defend the Collateral against all claims and
demands of all persons at any time claiming any interest therein other than that
of Secured Party; (b) will provide Secured Party with prompt written notice of
(i) any change in the office where Debtor maintains its books and records
pertaining to the Customer Receivables, and (ii) the movement or location of
Collateral to or at any address other than as set forth in Exhibit B attached
hereto; (c) will promptly pay any
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and all taxes, assessments and governmental charges upon the Collateral prior to
the date penalties attach thereto except to the extent permitted under the Loan
Agreement; (d) will immediately notify Secured Party of any event causing a
substantial loss or diminution in the value of all or any material part of the
Collateral and the amount or an estimate of the amount of such loss or
diminution; (e) will have and maintain insurance at all times in accordance with
the provisions of the Loan Agreement; (f) except in the ordinary course of
business or as otherwise permitted under the Loan Agreement, will not sell or
offer to sell or otherwise assign, transfer or dispose of the Collateral or any
interest therein, without the prior written consent of Secured Party; (g) will
keep the Collateral free from any adverse Lien (other than Liens permitted under
the Loan Agreement) and in good order and repair, reasonable wear and tear
excepted, and will not waste or destroy the Collateral or any part thereof; and
(h) will not use the Collateral in violation of the Loan Agreement or this
Agreement.
Section 7. Records Relating to Collateral. Debtor will keep its records
concerning the Collateral, including the Customer Receivables and all chattel
paper included in the Customer Receivables, at the location(s) set forth in
Exhibit B attached hereto or at such other place or places of business of which
Secured Party shall have been notified in writing no less than ten (10) days in
advance. Debtor will hold and preserve such records and chattel paper and will,
to the extent provided in the Loan Agreement, (a) permit representatives of
Secured Party at any time during normal business hours to examine and inspect
the Collateral and to make abstracts from such records and chattel paper, and
(b) furnish to Secured Party such information and reports regarding the
Collateral as Secured Party may from time to time reasonably request.
Section 8. Record Ownership of Pledged Securities. Debtor will promptly
give to Secured Party copies of any notices or other communications received by
Debtor with respect to Pledged Securities registered in the name of Debtor. Upon
the occurrence of an Event of Default, Secured Party may cause any or all of the
Pledged Securities to be transferred of record into the name of Secured Party
(or a designee of Secured Party).
Section 9. Right to Receive Distributions on Pledged Securities. Unless
an Event of Default shall have occurred and be continuing, Debtor shall be
entitled, from time to time, to collect and receive for its own use all
dividends, interest and other payments and distributions made upon or with
respect to the Pledged Securities, except:
(i) dividends of stock;
(ii) dividends payable in securities or other property (except
cash dividends);
(iii) other securities issued with respect to or in lieu of the
Pledged Securities (whether upon conversion of the convertible
securities included therein or through stock split, spin-off, split-off,
reclassification, merger, consolidation, sale of assets, combination of
shares or otherwise).
All of the foregoing, together with all new, substituted or additional shares of
capital stock, warrants, options or other rights, or other securities issued in
addition to or in respect of all or
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any of the Pledged Securities shall be delivered to Secured Party hereunder as
required by Section 3 hereof, to be held as Collateral pursuant to the terms
hereof in the same manner as the Pledged Securities delivered to Secured Party
on the date hereof.
Section 10. Right to Vote Pledged Securities. Unless an Event of Default
shall have occurred and be continuing, Debtor shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect to
the Pledged Securities and to exercise conversion rights with respect to the
convertible securities included therein, and Secured Party shall, upon receiving
a written request from Debtor accompanied by a certificate signed by Debtor's
principal financial officer stating that no Event of Default has occurred,
deliver to Debtor or as specified in such request such proxies, powers of
attorney, consents, ratifications and waivers in respect of any Pledged
Securities which are registered in Secured Party's name, and make such
arrangements with respect to the conversion of convertible securities as shall
be specified in Debtor's request, such arrangements to be in form and substance
reasonably satisfactory to Secured Party.
If an Event of Default shall have occurred and be continuing, and
provided Secured Party elects to exercise the rights hereinafter set forth by
notice to Debtor of such election, Secured Party shall have the right, to the
extent permitted by law, and Debtor shall take all such action as may be
necessary or reasonably appropriate to give effect to such right, to vote and to
give consents, ratifications and waivers and take any other action with respect
to all the Pledged Securities with the same force and effect as if Secured Party
were the absolute and sole owner thereof.
Section 11. General Authority. Debtor hereby irrevocably appoints
Secured Party Debtor's lawful attorney, with full power of substitution, in the
name of Debtor, for the sole use and benefit of Secured Party, its successors
and assigns, but at Debtor's expense, to exercise, all or any of the following
powers with respect to all or any of the Collateral during the existence and
continuance of any Event of Default:
(i) to demand, xxx for, collect, receive and give acquittance
for any and all monies due or to become due;
(ii) to receive, take, endorse, assign and deliver all checks,
notes, drafts, securities, documents and other negotiable and
non-negotiable instruments and chattel paper taken or received by
Secured Party;
(iii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto;
(iv) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof or the related goods securing the
Customer Receivables, as fully and effectually as if Secured Party were
the absolute owner thereof;
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(v) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto;
(vi) to discharge any taxes or Liens at any time placed thereon;
and
(vii) to execute any document or form, in the name of Debtor,
which may be necessary or desirable in connection with any sale of
Pledged Securities by Secured Party, including without limitation Form
144 promulgated by the Securities and Exchange Commission;
provided, that Secured Party shall give Debtor not less than ten (10) days'
prior written notice of the time and place of any sale or other intended
disposition of any of the Collateral.
Section 12. Events of Default. Debtor shall be in default under this
Security Agreement upon the occurrence of any Event of Default under the Loan
Agreement.
Section 13. Remedies Upon Event of Default. If any Event of Default
shall have occurred and be continuing, Secured Party may exercise all the rights
and remedies of a secured party under the Uniform Commercial Code. Secured Party
may require Debtor to assemble all or any part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which is
reasonably convenient. Secured Party shall give Debtor ten (10) days' written
notice of its intention to make any public or private sale or sale at a broker's
board or on a securities exchange of the Collateral. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as
Secured Party may determine. Secured Party shall not be obligated to make any
such sale pursuant to any such notice. To the extent permitted by law, Secured
Party may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be adjourned. Secured Party, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
Section 14. Application of Collateral and Proceeds. The proceeds of any
sale of, or other realization upon, all or any part of the Collateral shall be
applied in the following order of priorities: (a) first, to pay the expenses of
such sale or other realization, including reasonable attorneys' fees, and all
expenses, liabilities and advances incurred or made by Secured Party in
connection therewith, and any other unreimbursed expenses for which Secured
Party may be reimbursed pursuant to Section 15; (b) second, to the payment of
the Obligations in such order of priority as Secured Party, in its sole
discretion, shall determine; and (c) finally, to pay to Debtor, or its
successors or assigns, or as a court of competent jurisdiction may direct, any
surplus then remaining from such proceeds.
Section 15. Expenses; Secured Party's Lien. Debtor will forthwith upon
demand pay to Secured Party: (a) the amount of any taxes which Secured Party may
have been required to pay by reason of the Security Interests (including any
applicable transfer and personal property taxes
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but excluding taxes in respect of Secured Party's income and profits) or to free
any of the Collateral from any Lien thereon and (b) the amount of any and all
reasonable costs and expenses, including the reasonable fees and disbursements
of its counsel and of any agents not regularly in its employ, which Secured
Party may incur in connection with (i) the collection or other disposition of
any of the Collateral, (ii) the exercise by Secured Party of any of the powers
conferred upon it hereunder, (iii) any default on Debtor's part hereunder or
(iv) any Bankruptcy Event.
Section 16. Termination of Security Interests; Release of Collateral.
Upon the repayment and performance in full of all the Obligations and the
expiration or termination of any obligations of Secured Party to advance funds
to Debtor, or upon the sale of any Collateral which is permitted under the Loan
Agreement or as otherwise consented to in writing by Secured Party, the Security
Interests on such sold Collateral shall terminate and all rights to the
Collateral shall revert to Debtor. Upon any such termination of the Security
Interests or release of Collateral, Secured Party will execute and deliver to
Debtor such documents as Debtor shall reasonably request to evidence the
termination of the Security Interests or the release of such Collateral, as the
case may be. Notwithstanding the foregoing, this Security Agreement shall be
reinstated if at any time any payment made or value received with respect to an
Obligation is rescinded, invalidated, declared to be fraudulent or preferential,
or set aside or is required to be repaid to a trustee, receiver or any other
party under any case or proceeding, voluntary or involuntary, for the
distribution, division or application of all or part of the assets of Debtor or
the proceeds thereof, whether such case or proceeding be for the liquidation,
dissolution or winding up of Debtor or their respective businesses, a
receivership, insolvency or bankruptcy case or proceeding, an assignment for the
benefit of creditors or a proceeding by or against Debtor for relief under the
federal Bankruptcy Code or any other bankruptcy, reorganization or insolvency
law or any other law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
marshalling of assets or otherwise, all as though such payment had not been made
or value received.
Section 17. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and mailed or
telefaxed or delivered to the applicable party in the manner set forth in
Section 9.6 of the Loan Agreement.
Section 18. Intentionally Omitted.
Section 19. Miscellaneous. (a) No failure on the part of Secured Party
to exercise, and no delay in exercising, and no course of dealing with respect
to, any right, power or remedy under this Security Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by Secured Party of any
right, power or remedy under this Security Agreement preclude any other right,
power or remedy. The remedies in this Security Agreement are cumulative and are
not exclusive of any other remedies provided by law. Neither this Security
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally but only by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
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(b) This Security Agreement shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any state other than The Commonwealth of Massachusetts
with respect to Collateral located in any such other state are governed by the
laws of said state.
(c) This Security Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same Security Agreement.
Section 20. Consent to Jurisdiction and Service of Process.
(a) Except to the extent prohibited by applicable law, Debtor
irrevocably:
(i) agrees that any suit, action, or other legal proceeding
arising out of this Security Agreement or any of the Loans may be
brought in the courts of record of The Commonwealth of Massachusetts or
any other state(s) in which any of the Collateral is located or the
courts of the United States located in The Commonwealth of Massachusetts
or any other state(s) in which any of the Collateral is located;
(ii) consents to the jurisdiction of each such court in any such
suit, action or proceeding; and
(iii) waives any objection which it may have to the laying of
venue of such suit, action or proceeding in any of such courts.
For such time as any of the Obligations of Debtor to Secured Party shall
be unpaid in whole or in part and/or the Commitment is in effect, Debtor
irrevocably designates the registered agent or agent for service of process of
the Assignor as reflected on the records of the Secretary of State of California
as its registered agent, and, in the absence thereof, the Secretary of State of
State of California, as its agent to accept and acknowledge on its behalf
service of any and all process in any such suit, action or proceeding brought in
any such court and agrees and consents that any such service of process upon
such agent and written notice of such service to Debtor by registered or
certified mail shall be taken and held to be valid personal service upon Debtor
regardless of where Debtor shall then be doing business and that any such
service of process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and requirements of
such service in each such state and waives any claim of lack of personal service
or other error by reason of any such service. Any notice, process, pleadings or
other papers served upon the aforesaid designated agent shall, within three (3)
Business Days after such service, be sent by the method provided therefor under
Section 9.6 of the Loan Agreement to the Debtor at its address set forth in the
Loan Agreement. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF ANY DISPUTE BETWEEN THE DEBTOR AND SECURED PARTY WITH
RESPECT TO THE FINANCING DOCUMENTS AND/OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
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Section 21. Separability. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
favor of Secured Party.
IN WITNESS WHEREOF, this Security Agreement has been executed by the
parties hereto all as of the day and year first above written.
ELITE INFORMATION SYSTEMS, INC.
By:
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Xxxx X. Xxxxxxxx,
Executive Vice President
FLEET NATIONAL BANK, as Agent for
itself and the other Lenders
By:
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Xxxxxxx X. Xxxxxxx
Assistant Vice President
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EXHIBIT A
Securities Owned by Debtor
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EXHIBIT B
Additional Representations and Warranties
1. The exact title of Debtor is: Elite Information Systems, Inc. Debtor
has not conducted business under any other corporate name except for those
listed below:
2. Debtor uses in its business, or has used at any time during the last
five years, and owns the following trade names:
3. Debtor was formed as a corporation on ___________________, 199_,
under the laws of State of California and is in good standing under those laws.
4. The senior officers of Debtor are:
5. Debtor is qualified to transact business in the following states:
6. Debtor has places of business at:
7. Debtor owns or has an interest in personal property located elsewhere
at:
8. Debtor maintains its records concerning the Collateral, including the
Customer Receivables and all chattel paper included in Customer Receivables, at:
9. Debtor owns property consisting of fixtures at the following
locations:
Address Record Owner of Real Estate
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None
10. The following financing statements naming Debtor as "Debtor" are on
file:
Location Date File Number Collateral
-------- ---- ----------- ----------
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EXHIBIT C
Permitted Liens
Those liens identified under the Borrower on Exhibit 1.8 of the Loan
Agreement.
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