Exhibit 4.5
THIRD AMENDMENT dated as of October 27, 1998 (the "Amendment") to REVOLVING
CREDIT AGREEMENT dated as of June 2, 1997 (the "Credit Agreement") between
XXXXXX XXX MARKETING, INC. (the "Borrower") and THE CIT GROUP/COMMERCIAL
SERVICES, INC. ("CIT"). Terms which are capitalized in this Amendment and not
otherwise defined shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Borrower and The Xxxxxx Apparel Group, Ltd. ("Xxxxxx Apparel") have
entered into an Asset Purchase Agreement dated as of September 25, 1998,
pursuant to which (i) Xxxxxx Apparel has agreed to sell to the Borrower, and the
Borrower has agreed to purchase, substantially all of Xxxxxx Apparel's inventory
and related intangible assets and (ii) the Borrower has agreed to assume certain
of the obligations of Xxxxxx Apparel, all on the terms and subject to the
conditions contained in the Purchase Agreement; and
WHEREAS, the Borrower has requested CIT's consent to the Borrower's consummation
of the transactions hereinabove described, and to the modification of various
terms and provisions contained in the Credit Agreement, including certain of the
financial covenants contained therein; and
WHEREAS, CIT has agreed to consent to the Borrower's consummation of such
transactions, and to such modification of the Credit Agreement, all on the terms
and subject to the fulfillment of the conditions contained in this Amendment;
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Section One - Amendment. Effective upon the fulfillment of the conditions
contained in Section Four hereof, the Credit Agreement is hereby amended to
provided as follows:
(a) Section 1.01. Certain Definitions. The definitions of the terms
Borrowing Base, Maturity Date, Net Amount of Eligible Accounts Receivable,
Notice of Termination, and Revolving Credit Commitment are deleted in their
entirety, the following are substituted in lieu thereof, and the terms "Loan
Gross-up Method", "Termination Date", "Xxxxxx Apparel"; "Xxxxxx Apparel
Acquisition" and "Xxxxxx Apparel Purchase Agreement", and the definitions
thereof, are added to Section 1.01 in the appropriate alphabetical order, as
follows:
"Borrowing Base" shall mean, as of the Relevant Date, an amount equal to
the difference between:
(i) the sum of (A) 85% of the Net Amount of Eligible Accounts
Receivable, plus (B) the lesser of (1) the sum of (x) 50% of
the Book Value of Eligible Inventory and (y) 50% of the amount
of L/C Inventory, provided that the Inventory with respect
thereto is not otherwise included in the Borrowing Base and
(2) $15,000,000, plus
(C) 100% of the excess, if any, of the balance in the
Funds-in-Use Account over the debit balance in the Loan
Account, as of the opening of business on such date; and
(ii) such reserves as CIT, in its sole discretion exercised
reasonably, may deem appropriate.
"Loan Gross-up Method" means CIT's current system of operations by which
the calculation, as of any date of determination with respect to Eligible
Accounts Receivable, of the aggregate amount, expressed in dollars, of
discounts granted by the Borrower with respect to such Eligible Accounts
Receivable, is reflected in the Borrower's Loan Account.
"Maturity Date" shall mean, initially, the last day of the Original Term,
and thereafter, the last day of the then current Renewal Term, if CIT
shall have given the Borrower a Notice of Termination prior to such date
within the time period applicable to CIT required pursuant to the
definition of the term Notice of Termination.
"Net Amount of Eligible Accounts Receivable" means the aggregate unpaid
invoice amount of Eligible Accounts Receivable less (i) sales, excise or
similar taxes, returns, discounts (but with respect to such discounts,
only on and after the date upon which the Loan Gross-up Method shall
cease to be used by CIT), chargebacks, claims, advance payments, credits
and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed, and (ii) in the case of sums due under
the Factoring Agreement, deductions for factoring charges, interest,
discounts ( but with respect to such discounts, only on and after the
date upon which the Loan Gross-up Method shall cease to be used by CIT),
estimated anticipation, chargebacks based upon disputes and returns,
chargebacks of client risk accounts purchased with recourse, and all
other charges, offsets and reserves under the Factoring Agreement.
"Notice of Termination" shall mean, in the case of CIT, the written
notice of CIT delivered to the Borrower at least sixty (60) days prior to
the relevant Maturity Date, pursuant to which CIT shall indicate its
intention to terminate this Agreement effective as of such Maturity Date,
and shall mean, in the case of the Borrower, the written notice of the
Borrower delivered to CIT at least sixty (60) days prior to the
Termination Date stated in such Notice of Termination, pursuant to which
the Borrower shall indicate its intention to terminate the Agreement
effective as of such Termination Date.
"Revolving Credit Commitment" shall mean the commitment of CIT to make
Loans to the Borrower pursuant to Section 2.01(a) hereof in an aggregate
principal amount not to exceed (i) $37,000,000 at all times through and
including December 31, 1998 and (ii) $42,000,000 at all times after
December 31, 1998, as such amounts may be reduced pursuant to the terms
of this Agreement.
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"Termination Date" shall mean the date stated by the Borrower in its
Notice of Termination, if the Borrower shall have given CIT a Notice of
Termination prior to such date within the time period applicable to the
Borrower pursuant to the definition of the term Notice of Termination.
"Xxxxxx Apparel" shall mean The Xxxxxx Apparel Group Ltd., a New York
corporation.
"Xxxxxx Apparel Acquisition" shall mean the acquisition by the Borrower
of substantially all of the inventory of Xxxxxx Apparel, and certain
intangible assets related thereto, all as more fully set forth in the
Xxxxxx Apparel Purchase Agreement.
"Xxxxxx Apparel Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of September 25, 1998, between Xxxxxx Apparel and the
Borrower, as the same may be amended, modified, supplemented or restated
from time to time.
(b) Section 2.05. Interest Rate. Section 2.05 is deleted in its entirety,
and the following is substituted in lieu thereof:
"2.05. Interest Rate. Each Loan shall bear interest on the principal
amount thereof from time to time outstanding for each day during each
calendar month, until paid, at a rate per annum for each such day equal
to the Prime Rate in effect on the last day of the previous month (the
"then applicable Prime Rate"), minus an interest rate margin of
one-quarter of one percent (1/4 of 1%). "Prime Rate", as used herein,
shall mean the interest rate per annum publicly announced from time to
time by the Bank in New York, New York as its Prime Rate. In the event of
any change in the Prime Rate, the rate of interest hereunder shall
change, as of the first day of the month following any change, so as to
remain one-quarter of one per cent (1/4 of 1%) below the then applicable
Prime Rate. The Prime Rate is not intended to be the lowest rate of
interest charged by the Bank to its borrowers."
(c) Section 3.01. Letters of Credit. Section 3.01 (a) (i) is amended by
deleting the second sentence thereof, and by substituting the following in lieu
thereof:
"The aggregate Letter of Credit Exposure shall not exceed $25,000,000, of
which not more than $5,000,000 may be Letter of Credit Exposure with
respect to Standby Letters of Credit; provided, however, that the
calculation of such $5,000,000 limit shall exclude the Letter of Credit
Exposure with respect to the "Xxxxxx Apparel Stand-by L/C", as such term
is defined in Section Three of the Third Amendment, dated as of October
27, 1998 to this Credit Agreement."
(d) Section 5.01. Term of Agreement. Section 5.01 is deleted in its
entirety, and the following is substituted in lieu thereof:
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"5.01. Term of Agreement. Subject to CIT's rights under Article XI
hereof, this Agreement shall be in effect during the period commencing on
the Closing Date and ending on June 2, 2001 (the "Original Term"), and
thereafter shall automatically renew itself for successive one-year
periods (each a "Renewal Term"), unless sooner terminated as provided in
Section 5.02 hereof."
(e) Section 5.02. Termination. Section 5.02 (b) is deleted in its
entirety, and the following is substituted in lieu thereof:
"(b) Termination by the Borrower. Upon delivery to CIT by the Borrower of
a Notice of Termination, this Agreement shall terminate on the
Termination Date specified in such Notice of Termination, provided,
however, that on the Termination Date so specified, the Borrower shall
satisfy in full all of its obligations under Section 5.03 hereof and
under any other Related Document. Any Notice of Termination so given by
the Borrower shall be irrevocable unless CIT otherwise agrees in
writing."
(f) Section 5.03. Effect of Termination. Section 5.03 (a) is amended by
(i) deleting the word "and" at the end of clause (iii) thereof, (ii) deleting
the period at the end of clause (iv) thereof and substituting in lieu thereof a
semi-colon and the world "and" and (iii) inserting the following clause (v)
immediately after clause (iv) thereof:
"(v) if such Notice of Termination is given by the Borrower to CIT, and
the Termination Date specified therein is a date which is (x) prior to
June 2, 1999, the Borrower shall pay to CIT on such Termination Date an
early termination fee in an amount equal to one per cent (1%) of the
"average outstanding amount", as hereinafter defined, or (y) on or after
June 2, 1999 but prior to June 2, 2000, the Borrower shall pay to CIT on
such Termination Date an early termination fee in an amount equal to
one-half of one per cent (1/2 of 1%) of the average outstanding amount.
As used in this Section, the term "average outstanding amount" means, for
the twelve month period ending with the month preceding the Termination
Date specified by the Borrower in its Notice of Termination, the sum of
(A) the average amount of the Loans outstanding at the end of each day
during such period plus (B) the average amount of Letter of Credit
Exposure outstanding at the end of each day during such period."
(g) Section 10.06. Dividends and Related Distributions. Section 10.06 is
deleted in its entirety and the following is substituted in lieu thereof:
"10.06. The Borrower shall not declare, make, pay or agree to pay, any
dividend or other distribution of any nature (whether in cash, property,
securities or otherwise) on account of or in respect of shares of its
capital stock or on account of the purchase, redemption, retirement or
acquisition of any shares of capital stock (or warrants, options or
rights therefor), provided, however, that the Borrower shall be permitted
to pay dividends or repurchase stock in an aggregate amount not to exceed
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$10,000,000 during the two year fiscal period ending on December 31,
1999, so long as: (a) at the time of, and after giving effect to, any
such payment of dividends or repurchase of stock, no Event of Default
shall have occurred and be continuing, and (b) the undrawn Availability
before and after the making of any such dividend payment or stock
repurchase shall be not less than $5,000,000.00."
(h) Section 10.15. Minimum Consolidated Tangible Net Worth. Section 10.15
is deleted in its entirety and the following is substituted in lieu thereof:
"10.15 Minimum Consolidated Tangible Net Worth. The Borrower will not
permit the Parent's Consolidated Tangible Net Worth to be less than the
following amounts during and at the end of each of the following fiscal
months: (a) $34 million for each of the fiscal months of April, May,
June, July and August of 1997, (b) $35 million for each of the fiscal
months of September, October and November of 1997, (c) $35 million for
each of the fiscal months of December of 1997 and January, February,
March, April, May, June, July and August of 1998, and (d) $37 million for
each fiscal month thereafter, provided, however, that at all times on and
after the effective date of the Xxxxxx Apparel Acquisition, the amount of
$37 million set forth in this clause (d) shall automatically be reduced
to, and at all times thereafter shall be deemed to be, $35 million."
(i) Section 10.16. Minimum Consolidated Working Capital. Section 10.16 is
deleted in its entirety and the following is substituted in lieu thereof:
"10.16 Minimum Consolidated Working Capital. The Borrower will not permit
the Parent's Consolidated Working Capital to be less than the following
amounts during and at the end of each of the following fiscal months: (a)
$33 million for each of the fiscal months of April, May, June, July and
August 1997, (b) $35 million for each of the fiscal months of September,
October, November and December 1997, and January, February, March, April,
May, June and July 1998, (c) $36 million for the fiscal month of August
1998, and (d) $37 million for the fiscal month of September 1998 and for
each fiscal month thereafter, provided, however, that at all times on and
after the effective date of the Xxxxxx Apparel Acquisition, the amount of
$37 million set forth in this clause (d) shall automatically be reduced
to, and at all times thereafter shall be deemed to be, $35 million, and
provided further that solely for purposes of determining the Borrower's
compliance with this covenant, the calculation of such Consolidated
Working Capital as of any date of determination shall exclude the
aggregate principal amount of any Loans and Letter of Credit Exposure
outstanding as of such date."
(j) Section 10.17. Minimum Ratio of Consolidated Current Assets to
Consolidated Current Liabilities. Section 10.17 is deleted in its entirety and
the following is substituted in lieu thereof:
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"10.17 Minimum Ratio of Consolidated Current Assets to Consolidated
Current Liabilities. The Borrower will not permit the ratio of the
Parent's Consolidated Current Assets to the Parent's Consolidated Current
Liabilities to be less than (a) 2.60 to 1.00 as of the end of the second
fiscal quarter of 1997, (b) 2.60 to 1.00 as of the end of the third
fiscal quarter of 1997, (c) 2.60 to 1.00 as of the end of the fourth
fiscal quarter of 1997, (d) 3.00 to 1.00 as of the end of the first
fiscal quarter of 1998, (e) 3.10 to 1.00 as of the end of the second,
third and fourth fiscal quarters of 1998 and (f) 3.30 to 1.00 as of the
end of each fiscal quarter thereafter, provided, however, that solely for
purposes of determining the Borrower's compliance with this covenant, the
calculation of the Parent's Consolidated Current Liabilities, as of any
date of determination, shall exclude the aggregate principal amount of
any Loans and Letter of Credit Exposure outstanding as of such date."
(k) Section 10.20. Capital Expenditures. Section 10.20 is deleted in its
entirety, and the following is substituted in lieu thereof:
"10.20 Capital Expenditures. The Borrower shall not make Capital
Expenditures in an amount greater than (a) $1.5 million in the aggregate
for the period from the Closing Date through January 3, 1998, (b) $3.0
million in the aggregate for the 1998 fiscal year and (c) $2.5 million in
the aggregate for the 1999 fiscal year, and for each fiscal year
thereafter, provided, however, that if the aggregate amount of Capital
Expenditures actually made during any such fiscal year (or lesser period,
if applicable) shall be less than the limit with respect thereto set
forth above (such limit, without giving effort to any increase therein
pursuant to this proviso, the "base amount"), then the amount of such
short fall (the "rollover amount") may be added to the amount of Capital
Expenditures permitted to be made for the immediately succeeding fiscal
year, provided further that any Capital Expenditures made during any
fiscal year for which any rollover amount shall have been so added shall
be applied first, to the base amount for such year and second, to the
rollover amount added to such fiscal year."
(l) Exhibit A to the Credit Agreement is replaced in its entirety by
Exhibit A annexed to this Amendment.
(m) Schedule 1.01A to the Credit Agreement is replaced in its entirety by
Schedule 1.01A annexed to this Amendment.
(n) Schedule 1.01B to the Credit Agreement is replaced in its entirety by
Schedule 1.01B annexed to this Amendment.
(o) Schedule 7.25 to the Credit Agreement is amended by adding the
following trademark information thereto:
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Trademark Appln. */Reg. No. Class
------------------------------------------------------------
XXXXX XXXXXX 1202108 25
DW3 1842411 25
XXXXXXX XXXXXX 1417515 25
RIMINI 1424026 25
REGGIO 75/139829 25
Section Two - Consent. Subject to the fulfillment of the conditions contained in
Section Four of this Amendment, CIT hereby consents to (i) the execution and
delivery by the Borrower of the Xxxxxx Apparel Purchase Agreement and the other
documents, instruments and agreements executed or delivered by the Borrower in
connection therewith, (ii) the consummation by the Borrower of the Xxxxxx
Apparel Acquisition and the other transactions contemplated to occur in
connection therewith, and (iii) the delivery to CIT no later than January 15,
1999 of the estimated operating budget and related projections for the Parent
and its consolidated Subsidiaries for the fiscal year ending December 31, 1999,
notwithstanding the terms of Section 9.01(g)(i), and agrees that the Borrower's
failure to deliver such items to CIT no later than December 1, 1998 shall not be
deemed to be a breach or violation of such Section or an Event of Default.
Section Three - Stand-by Letter of Credit. The Borrower hereby confirms that, in
conjunction with the Xxxxxx Apparel Acquisition, pursuant to the Xxxxxx Apparel
Purchase Agreement, the Borrower has agreed to obtain for the benefit of CIT,
and to deliver to CIT, a stand-by letter of credit issued for the Borrower's
account (the "Xxxxxx Apparel Stand-by L/C"), which letter of credit shall secure
(i) the payment or reimbursement of all documentary Letters of Credit issued
with CIT's assistance for the account of Xxxxxx Apparel, outstanding on the
effective date of the Xxxxxx Apparel Acquisition, as more particularly described
on the Schedule of Outstanding Xxxxxx Apparel L/C's annexed to this Amendment
and (ii) all other obligations, liabilities and indebtedness arising under or
relating to such documentary Letters of Credit.
Section Four - Conditions Precedent. This Amendment shall become effective on
the date when all of the following conditions, the fulfillment of each of which
is a condition precedent to the effectiveness of this Amendment, shall have
occurred.
(a) CIT shall have received a fully executed counterpart or original of
this Amendment, and each of the following agreements, instruments, opinions,
certificates and documents:
(i) an Amended and Restated Note, substantially in the form annexed
hereto as Exhibit A;
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(ii) the Xxxxxx Apparel Stand-by L/C, on terms and conditions
satisfactory to CIT;
(iii) a Note Pledge and Security Agreement, executed in favor of CIT by
Xxxxxx Apparel, as assignor, and confirmed by the Borrower, substantially in the
form annexed hereto as Exhibit B;
(iv) a Confirmation of Continuing Secured Guaranty, executed in favor of
CIT by each Guarantor, substantially in the form annexed hereto as Exhibit C;
(v) financing statements on forms UCC-1 and UCC-3, as applicable, naming
the Borrower as debtor, to be filed in all requisite jurisdictions; and
(vi) a legal opinion, in form and substance satisfactory to CIT, from the
Borrower's counsel.
(b) CIT shall have received a Certificate of the Secretary of the
Borrower (l) relating to the adoption of the resolutions of the Board of
Directors of the Borrower, approving this Amendment, the other documents
executed or to be executed by the Borrower in connection herewith and in
connection with the Xxxxxx Apparel Acquisition and (2) certifying that no
amendments have been made to the Certificate of Incorporation and by-laws of the
Borrower since June 2, 1997 and further certifying the names and incumbency of
officers and the names and validity of signatures of such officers.
(c) CIT and its counsel shall have received and reviewed to their
satisfaction the definitive Xxxxxx Apparel Purchase Agreement and all ancillary
documents relating thereto, the Xxxxxx Apparel Acquisition shall have been
consummated and all conditions precedent to its effectiveness shall have
occurred or, if any such condition shall have been waived, CIT shall have
determined that such waiver is acceptable.
(d) Upon the effectiveness of this Amendment, all representations and
warranties set forth in the Credit Agreement (except for such inducing
representations and warranties that were only required to be true and correct as
of a prior date) shall be true and correct in all material respects on and as of
the effective date hereof, and no Event of Default shall have occurred and be
continuing.
(e) No event or development shall have occurred since the date of
delivery to CIT of the most recent financial statements of the Parent and its
Subsidiaries which event or development has had or is reasonably likely to have
a Material Adverse Effect.
(f) All corporate and legal proceedings and all documents and instruments
executed or delivered in connection with this Amendment shall be satisfactory in
form and substance to CIT and its counsel.
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(g) There shall be no action, suit or proceeding pending or threatened
against the Borrower before any court (including any bankruptcy court),
arbitrator or governmental or administrative body or agency which challenges or
relates to the consummation of the Xxxxxx Apparel Acquisition, this Amendment or
the other transactions contemplated herein.
(h) CIT shall have received such further agreements, consents,
instruments and documents as may be necessary or proper in the reasonable
opinion of CIT and its counsel to carry out the provisions and purposes of this
Amendment.
Section Five. Representations and Warranties. The Borrower represents
and warrants (which representations and warranties shall survive the execution
and delivery hereof) to CIT that:
(a) The Borrower has the corporate power, authority and legal right to
execute, deliver and perform this Amendment, and the instruments, agreements,
documents and transactions contemplated hereby, and has taken all actions
necessary to authorize the execution, delivery and performance of this
Amendment, and the instruments, agreements, documents and transactions
contemplated hereby;
(b) No consent of any Person (including, without limitation, stockholders
or creditors of the Borrower or creditors of the Parent, as the case may be)
other than CIT, and no consent, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration with
(collectively a "Consent") any governmental authority, is required in connection
with the execution, delivery, performance, validity or enforceability of this
Amendment, and the instruments, agreements, documents and transactions
contemplated hereby;
(c) This Amendment has been duly executed and delivered on behalf of the
Borrower by its duly authorized officer, and constitutes the legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms;
(d) The Borrower is not in default under any indenture, mortgage, deed of
trust, or other material agreement or material instrument to which it is a party
or by which it may be bound. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will (i) violate any law or regulation
applicable to it, or (ii) cause a violation by the Borrower, of any order or
decree of any court or government instrumentality applicable to it, or (iii)
conflict with, or result in the breach of, or constitute a default under, any
indenture, mortgage, deed of trust, or other material agreement or material
instrument to which the Borrower is a party or by which it may be bound, or (iv)
result in the creation or imposition of any lien, charge, or encumbrance upon
any of the property of the Borrower, except in favor of CIT, to secure the
Obligations, or (v) violate any provision of the Certificate of Incorporation,
By-Laws or any capital stock provisions of the Borrower;
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(e) No Event of Default has occurred and is continuing; and
(f) Since the date of CIT's receipt of the financial statements of the
Parent and Subsidiaries on a consolidated and consolidating basis as of August
28, 1998, for the eight month period ending on such date, no change or event has
occurred which has had or is reasonably likely to have a Material Adverse
Effect.
Section Six. General Provisions.
(a) Except as herein expressly amended, the Credit Agreement and all
other agreements, documents, instruments and certificates executed in connection
therewith, are ratified and confirmed in all respects and shall remain in full
force and effect in accordance with their respective terms.
(b) The Borrower hereby acknowledges and confirms its understanding of
the Loan Gross-up Method, and agrees that (i) CIT's method of calculating the
aggregate amount of the discounts granted by the Borrower with respect to any
referenced Eligible Accounts Receivable, and reflecting such calculation as a
charge to the Borrower's Loan Account rather than as a reduction to the gross
amount of such Eligible Accounts Receivable, is an appropriate and accurate
method of making such calculation and (ii) CIT may continue in its sole
discretion to employ such methodology with respect to the calculation of and
accounting for discounts granted by the Borrower.
(c) The Borrower hereby covenants and agrees that it shall execute and
deliver to CIT as soon as possible, and in any event not later than thirty (30)
days from the date hereof, a trademark security agreement, in form and substance
satisfactory to CIT, suitable for recordation with the U.S. Patent and Trademark
Office, covering the trademarks described in Section One (o) of this Amendment.
(d) All references in the Related Documents and Loan Documents to the
Credit Agreement shall mean the Credit Agreement as amended as of the effective
date hereof, and as amended hereby and as hereafter amended, supplemented or
modified from time to time. From and after the date hereof, all references in
the Credit Agreement to "this Agreement," "hereof," "herein," or similar terms,
shall mean and refer to the Credit Agreement as amended by this Amendment.
(e) This Amendment may be executed by the parties hereto individually or
in combination, in one or more counterparts, each of which shall be an original
and all of which shall constitute one and the same agreement.
(f) This Amendment shall be governed and controlled by the laws of the
State of New York without reference to its choice of law principles.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXX XXX MARKETING, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
Secretary
THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: AVP
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SCHEDULE 1.01A
Xxxxxx Xxx Marketing, Inc.
Domestic Inventory Locations
Location Name Address County Inventory Description
[to be completed by Borrower]
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SCHEDULE 1.01B
License Agreements
[to be completed by Borrower]
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