Date: June 1, 2001
Joe's Jeans, Inc.
0000 Xxxx Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
FACTORING AGREEMENT
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Ladies and Gentlemen:
We are pleased to confirm the terms and conditions that will govern our
funds In use accounting, notification factoring arrangement with advances (the
"Agreement").
1. SALE OF ACCOUNTS
You sell and assign to us, and we purchase as absolute owner, all
accounts receivable arising from your sales of inventory or rendition of
services which you In your discretion choose to factor with us, including those
under any trade names, through any divisions and through any selling agent
(collectively, the "Accounts" and individually, an "Account').
2. CREDIT APPROVAL
2.1 Requests for credit approval for all of your orders must be
submitted to our Credit Department via computer by either: (a) On-Line Terminal
Access, or (b) Electronic Batch Transmission. If you are unable to submit orders
via computer, then orders can be submitted over the phone, by fax or In writing.
All credit decisions by our Credit Department (including approvals, declines and
holds) will be sent to you daily by a Credit Decisions Report, which constitutes
the official record of our credit decisions. Credit approvals will be effective
only if shipment is made or services are rendered within thirty (30) days from
the completion date specified in our credit approval. Credit approval of any
Account may be withdrawn by us any lime before shipment is made or services are
rendered.
2.2 We assume the Credit Risk on each Account approved in the Credit
Decision Report. "Credit Risk" means the customer's failure to pay the Account
in full when due on its longest maturity solely because of its finandal
inability to pay. If there is any change in the amount, terms, shipping date or
delivery date for any shipment of goods or rendition of services (other than
accepting returns and granting allowances as provided in section 8 below), you
must submit a change of terms request to us, and, if such pertains to a Factor
Risk Account, then we shall advise you of our decision either to retain the
Credit Risk or to withdraw the credit approval. Accounts on which we bear the
Credit Risk are referred to collectively as "Factor Risk Accounts", and
individually as a "Factor Risk Account". Accounts on which you bear some or all
of the risk as to credit are referred to collectively as "Client Risk Accounts',
and individually as a "Client Risk Account".
2.3 We shall have no liability to you or to any person, firm or entity
for declining, withholding or withdrawing credit approval on any order. If we
decline to credit approve an order and furnish to you any information regarding
the credit standing of that customer, such information is confidential and you
agree not to reveal same to the customer, your sales agent
or any third party. You agree that we have no obligation to perform, in any
respect, any contracts relating to any Accounts.
3. INVOICING
You agree to place a notice (in form and content acceptable to us) on
each invoice and invoice equivalent that the Account is sold, assigned and
payable only to us, and to take all necessary steps so that payments and
remittance information are directed to us. All invoices, or their equivalents,
will be promptly mailed or otherwise transmitted by you to your customers at
your expense. You will provide us with copies of all invoices (or the equivalent
thereof if the invoices were sent electronically), confirmation of the sale of
the Accounts to us and proof of shipment or delivery, all as we may reasonably
request. If you fall to provide us with copies of such invoices (or equivalents)
or such proofs when requested by us, we will not bear any Credit Risk as to
those Accounts.
4. REPRESENTATIONS AND WARRANTIES
4.1 You represent and warrant that each Account is based upon a bona
fide sale and delivery of inventory or rendition of services made by you in the
ordinary course of business; the inventory being sold and the Accounts created
are your exclusive property and are not, and will not be, subject to any lien,
consignment arrangement, encumbrance or security interest other than in our
favor; all amounts are due in United States Dollars; all original invoices bear
notice of the sale and assignment to us; any taxes or fees relating to your
Accounts or inventory are solely your responsibility; and none of the Accounts
factored with us hereunder represent sales to any subsidiary, affiliate or
parent company. You also warrant and represent that: your customers have
accepted the goods or services and owe and are obligated to pay the full amounts
stated in the invoices according to their terms, without dispute, claim, offset,
defense, deduction, rejection, recoupment, counterclaim or contra account, other
than as to returns and allowances as provided in section 8 below (the foregoing
being referred to in this Agreement as "Customer Claims"). You covenant and
agree that the average dollar amount of all of your invoices and credits
representing your Accounts will be at least $700.00.
4.2 You further represent and warrant that: you are a duly organized
and validly existing business organization qualified to do business in all
states where required; the most recent financial statements provided by you to
us accurately reflect your financial condition as of that date and there has
been no material adverse change in your financial condition since the date of
those financial statements. You agree to furnish us with such information
concerning your business affairs arid financial condition as we may reasonably
request from time to time. You will furnish to us as soon as possible, but not
later than one hundred twenty (120) days after the dose of each of your fiscal
years, your financial statements as of the end of such year, reviewed by a firm
of independent, certified public accountants, selected by you and acceptable to
us.
4.3 You agree that you xxxx promptly notify us of any change in your:
name, location of your chief executive office, place(s) of business, use of
trade names arid divisions, and legal or business structure. Further, you agree
that you will promptly notify us of any change in control of the ownership of
your business organization, and of significant law suits or proceedings against
you.
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5. PURCHASE OF ACCOUNTS
We shall purchase the Accounts for the gross amount of the respective
invoices, less: factoring fees or charges, trade and cash discounts allowable
to, or taken by, your customers, credits, cash on account and allowances
("Purchase Price'). Our purchase of the Accounts will be reflected on the
Statement of Account (defined in section 10 below), which we shall render to
you, which will also reflect all credits and discounts made available to your
customers.
6. ADVANCES
At your request, and in our sole discretion, we may advance funds to
eighty-five percent (85%) of your Factor Risk Accounts, prior to the collection
of the Accounts. We have the right, at any time and from time to time, to hold
any reasonable reserves we deem reasonably necessary as security for the payment
and performance of any and all of your Obligations (defined in section 12
below). All amounts you owe us, including all advances to you and any debit
balance in your Client Position Account (defined in section 10 below), and any
Obligations, are payable on demand and may be charged to your account at any
time.
7. PAYMENT OF ACCOUNTS
7.1 All payments received by us on the Accounts will be promptly
applied to your account with us after crediting your customer's account. in
exchange for such application, we shall charge your account monthly with the
cost of three (3) additional business days on all such payments at the rate
charged by us in section 14.1 below on debit balances. No checks, drafts or
other instruments received by us will constitute final payment of an Account
unless and until such items have actually been collected.
7.2 The amount of the Purchase Price of any Factor Risk Account which
remains unpaid will be deemed collected and will be credited to your account as
of the earlier of the following dates:
(a) the date of the Account's longest maturity if a proceeding or
petition is filed by or against the customer under any state or federal
bankruptcy or insolvency law, or if a receiver or trustee is appointed for the
customer; or
(b) the last day of the third month following the Account's longest
maturity date if such Account remains unpaid as of said date without the
occurrence of any of the events specified in clause (a) above.
If any Factor Risk Account credited to you was not paid for any reason other
than Credit Risk we shall reverse the credit and charge your account
accordingly, and such Account is then deemed to be a Client Risk Account.
8. CUSTOMER CLAIMS AND CHARGE BACKS
8.1 You must notify us promptly of any matter affecting the value,
enforceability or collectibility of any Account and of all Customer Claims. You
agree to promptly issue credit memoranda or otherwise adjust the customer's
account upon accepting returns or granting
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allowances. For full invoice credit memoranda, you agree to send duplicate
copies thereof to us and to confirm their assignment to us. You may continue to
do so until we have advised you that all such credits or allowances on Factor
Risk Accounts require our prior written approval. We shall cooperate with you in
the adjustment of Customer Claims, but we retain the right to adjust Customer
Calms on Factor Risk Accounts directly with customers, upon such terms as we in
our sole discretion may deem advisable.
8.2 We may at any time charge back to your account the amount of: (a)
any Factor Risk Account which is not paid in full when due for any reason other
than Credit Risk; (b) anticipation (interest) deducted by a customer on any
Account; (c) Customer Claims; (d) any Client Risk Account which is not paid in
full when due; and (e) any Account for which there is a material breach of any
representation or warranty. A charge back does not constitute a reassignment of
an Account. We shall immediately charge any deduction taken by a customer to
your account.
8.3 We may at any time charge to your account the amount of: (a)
payments we receive on Client Risk Accounts which we are required at any time to
turnover or return (including preference claims); (b) all remittance expenses
(including incoming wire charges, currency conversion fees and stop payment
fees), other than stop payment fees on Factor Risk Accounts; (c) expenses,
collection agency fees and reasonable attorneys' fees incurred by us in
collecting or attempting to collect any Client Risk Account or any Obligation
(defined in section 12 below); and (d) out fees for handling collections on
Client Risk Accounts which you have requested us to process, as provided in the
Guide (see section 18.2 below).
9. HANDLING AND COLLECTING ACCOUNTS; RETURNED GOODS
9.1 As owners of the Factor Risk Accounts, we have the right to: (a)
bring suit1 or otherwise enforce collection, in your name or ours; (b) modify
the terms of payment, (c) settle, compromise or release, in whole or in part,
any amounts owing, and (d) issue credits in your name or ours. To the extent
applicable, you waive any and all claims and defenses based on suretyship. If
moneys are due and owing from a customer for both Factor Risk Accounts and
Client Risk Accounts, you agree that any payments or recoveries received on such
Accounts will be applied using our normal procedures. If at the time of a
customer liquidation, we each have Accounts at our respective risks we agree
that all payments, dividends, recoveries or proceeds will be shared pm rata in
proportion to our respective Credit Risk for that customer. Once you have
granted or issued a discount full invoice credit or full invoice allowance on
any Account, you have no further interest therein. Any checks, cash, notes or
other documents or instruments, proceeds or property received with respect to
the Accounts must be held by you in trust for us, separate from your own
property, and immediately turned over to us with proper endorsements. We may
endorse your name or ours on any such check, draft, instrument or document.
9.2 As owners and assignees of the Accounts and all proceeds thereof,
upon our written notice, you will, at your expense, set aside, xxxx with our
name and hold in trust for us, any and all returned, rejected, reclaimed or
repossessed inventory ("Returned Goods") unless such purchased invoice is
charged back to you. Further, upon such notice, you agree promptly: to notify us
of all material Returned Goods and, at our request, either to deliver same to
us, or to pay us the invoice price thereof or to sell the same for our account.
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10. STATEMENT OF ACCOUNT
10.1 After the end of each month, we shall send you certain reports
reflecting Accounts purchased, advances made, fees and charges and all other
financial transactions between us during that month ("Reports"). The Reports
sent to you each month include a Statement of Account reflecting transactions in
three sections: Accounts Receivable, Client Position Account and Funds In Use.
The Reports shall be deemed correct and binding upon you and shall constitute an
account stated between us unless we receive your written statement of exceptions
within sixty (60) days after same are mailed to you.
11. GRANT OF SECURITY INTEREST
11.1 You hereby assign and grant to us a continuing security interest
in all of your right, title and interest in and to all of your now existing and
future: (a) Accounts and all instruments, documents, chattel paper, general
intangibles, and any other obligations owing to you; (b) unpaid seller's rights
(including rescission, repossession, replevin, reclamation and stoppage in
transit); (c) rights to any inventory represented by the foregoing, including
Returned Goods; (d) reserves and credit balances arising hereunder (e)
guarantees or collateral for the foregoing (including rights under any letters
of credit or other credit enhancements in your favor); (f) insurance policies,
proceeds or rights relating to the foregoing; ; (g) cash and non-cash proceeds
of the foregoing; and. (h) Books and Records (defined in section 13 below)
evidencing or pertaining to the foregoing.
11.2 You agree to comply with all applicable laws to perfect our
security interest in collateral pledged to us hereunder, and to execute
financing statements and other documents as we may require to effectuate the
foregoing and to implement this Agreement. To the extent permitted by applicable
law, you authorize us to sign your name, or to file financing statements or
continuations without your signature, all in order to create, perfect or
maintain our security interest in the collateral.
12. OBLIGATIONS SECURED
The security interest granted hereunder and any lien or security
interest that we now or hereafter have in any of your other assets, collateral
or property, secure the payment and performance of all of your now existing and
future indebtedness and obligations to us, whether absolute or contingent
whether arising under this Agreement or any other agreement or arrangement
between us, by operation of law or otherwise ("Obligations"). Obligations also
includes ledger debt (which means indebtedness for goods and services purchased
by you from any party whose accounts receivable are factored or financed by us),
and indebtedness arising under any guaranty, credit enhancement or other credit
support granted by you in our favor. Any reserves or balances to your credit and
any other assets, collateral or property of yours in our possession constitutes
security for any and all Obligations.
13. BOOKS AND RECORDS AND EXAMINATIONS
13.1 You agree to maintain such Books and Records concerning the
Accounts as we may reasonably request and to reflect our ownership of the
Accounts therein. "Books and Records" means your accounting and financial
records (whether paper, computer or electronic),
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data, tapes, discs, or other media, and all programs, files, records and
procedure manuals relating thereto, wherever located.
13.2 Upon our reasonable request, you agree to make your Books and
Records available to us for examination and to permit us to make copies or
extracts thereof. Also, you agree to permit us to visit your premises during
your business hours and to conduct such examinations as we deem reasonably
necessary. To cover our costs and expenses of any such examinations, we shall
charge you a fee for each day, or part thereof, during which such examination is
conducted, plus any out-of-pocket costs and expenses incurred by us, as provided
in the Guide (see section 18.2 below). Notwithstanding the foregoing, such fees
shall not exceed $5,000.00 annually, unless there is a default by the Client.
14. INTEREST
14.1 Interest is charged as of the last day of each month based on the
daily debit balances in your Funds In Use account for that month, at a rate
equal to the greater-of {a) the sum of one-quarter of one percent (.25%) plus
the Chase Prime Rate (defined below), or (b) six percent (6% per annum. The
Chase Prime Rate is the per annum rate of interest publicly announced by The
Chase Manhattan Bank (or its successor) in New York New York from time to time
as its prime rate, and is not intended to be the lowest rate of interest charged
by The Chase Manhattan Bank to its borrowers. Any change in the rate of interest
hereunder due to a change in the Chase Prime Rate will take effect as of the
first of the month following such change in the Chase Prime Rate. Interest will
be credited as of the last day of each month based on the daily credit balances
in your Funds In Use account for that month, at a rate four percent (4%) per
annum below the Chase Prime Rate being used to calculate interest for the
period. All interest is calculated on a 360 day year.
14.2 In no event will interest charged hereunder exceed the highest
lawful rate. In the event however, that we do receive interest in excess of the
highest lawful rate, you agree that your sole remedy would be to seek repayment
of such excess, and you irrevocably waive any and all other rights and remedies
which may be available to you under law or in equity.
15. FACTORING FEES AND OTHER CHARGES
15.1 For our services hereunder, you will pay us a factoring fee or
charge of eight-tenths of one percent (.80%) of the gross face amount of all
Accounts factored with us. In addition, you will pay a fee of one-quarter of one
percent (1/4 of 1%) of the gross face amount of each Account for each thirty
(30) day period or part thereof by which the longest terms of sale applicable to
such Account exceed ninety (90) days (whether as originally stated or as a
result of a change of terms requested by you or the customer). For Accounts
arising from sales to customers located outside the fifty states of the United
States of America, you will pay us an additional factoring fee of one percent
(1%) of the gross face amount of all such Accounts. All factoring fees or
charges are due and charged to your account upon our purchase of the underlying
Account. Commencing January 1, 2002, in no event shall the aggregate of the
factoring fees or commissions payable to us hereunder for each quarter, or part
thereof ("Period"), by you and Innovo, Inc. under the separate factoring
agreements with us (the "Agreements"), be less than $9,000.00. The amount, if
any, by which $9,000.00 exceeds
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commissions earned on accounts receivable factored with us by you and Innovo,
Inc. for any Period, shall be charged to either of the aforementioned accounts,
at our discretion, pursuant to the respective Agreements with us as of the end
of such Period.
15.2 You agree to pay all reasonable costs and expenses incurred by us
in connection with the preparation, execution, administration and enforcement of
this Agreement, including all reasonable fees and expenses attributable to the
services of our attorneys (whether in-house or outside), search fees and public
record filing fees. Furthermore, you agree to pay to us our fees (as more fully
set forth in the Guide, see section 18.2 below) including fees for: (a) special
reports prepared by us at your request; (b) wire transfers; (c) handling change
of terms requests relating to Accounts; and (d) your usage of our on-line
computer services. Our fees may be changed by us from lime to time upon notice
to you; however, any failure to give you such notice does not constitute a
breach of this Agreement and does not impair our ability to institute any such
change.
15.3 Any tax or fee of any governmental authority imposed on or arising
from any transactions between us, any sales made by you, or any inventory
relating to such sales is your sole responsibility (other than income and
franchise taxes imposed on us which are not related to any specific transaction
between us). If we are required to withhold or pay any such tax or fee, or any
interest or penalties thereon, you hereby indemnify and hold us harmless
therefor and we shall charge your account with the full amount thereof.
15.4 If during the Test Period the Actual Invoice Size is less than the
Warranted Invoice Size of $700.00, then, upon our giving you notice, the
factoring fee set forth above will be increased. The increase will be
fifteen-hundredths of one percent (0.15%) for each $250 that the Actual Invoice
Size is less than the Warranted Invoice Size, effective as of the first of each
month. "Actual Invoice Size" is determined by dividing the aggregate net amount
of Accounts (i.e., the gross face amount of invoices less credits) factored with
us during each Test Period by the aggregate number of invoices and credits
evidencing such Accounts. Determination of the Actual Invoice Size and
institution of the factoring fee increase, if any, will occur and be adjusted
after each Test Period. "Test Period" means each consecutive six month period
commencing on December 1, 2001.
15.5 In addition to the fees and charges under this Agreement, you will
pay us, as of the date hereof, a facility fee in the amount of $3,000.00 for the
initial setup and implementation of your account with us.
16. TERMINATION
16.1 You may terminate this Agreement only as of an Anniversary Date
and then only by giving us at least sixty (60) days prior written notice of
termination. "Anniversary Date means the last day of the month occurring one
year from the date hereof, and the same date in each year thereafter. In the
event that this Agreement is terminated by you prior to an Anniversary Date, we
shall be entitled to the unpaid portion of the Minimum Factoring Fees, if any,
for such Period, as provided in section 15.1 above, as of the effective date of
termination. Except as otherwise provided, we may terminate this Agreement at
any time by giving you at least sixty (60) days prior written notice of
termination. However, we may terminate this Agreement immediately,
7
without prior notice to you, upon the occurrence of an Event of Default (defined
in section 17,1 below).
16.2 This Agreement remains effective between us until terminated as
herein provided. Unless sooner demanded, all Obligations will become immediately
due and payable upon any termination of this Agreement.
16.3 All of our tights, liens and security interests hereunder continue
and remain in full force and effect after any termination of this Agreement and
pending a final accounting, we may withhold any balances in your account unless
we are supplied with an indemnity satisfactory to us to cover all Obligations.
You agree to continue to assign accounts receivable to us and to remit to us all
collections on accounts receivable, until all Obligations have been paid in full
or we have been supplied with an indemnity satisfactory to us to cover all
Obligations.
17. EVENTS OF DEFAULT AND REMEDIES UPON DEFAULT
17.1 It is an "Event of Default under this Agreement if: (a) your
business ceases or a meeting of your creditors is called; (b) any bankruptcy,
insolvency, arrangement reorganization, receivership or similar proceeding is
commenced by or against you under any federal or state law; (c) you breach any
material representation, material warranty or covenant contained in this
Agreement; or (d) you fail to pay any Obligation when due.
17.2 After the occurrence of an Event of Default which is not waived by
us with respect to the default in paragraph 17.1, section (c) and not cured by
you within ten (10) days, we may terminate this Agreement without notice to you.
We shall then have immediate access to, and may remove from any premises where
same may be located, any and all Books and Records as may pertain to the
Accounts, Returned Goods and any other collateral hereunder. Furthermore, as may
be necessary to administer and enforce our rights in the Accounts, Returned
Goods and any other collateral hereunder, or to facilitate the collection or
realization thereof, we have your permission to:
(a) use (at your expense) your personnel, supplies, equipment,
computers and space, at your place of business or elsewhere; and (b) notify
postal authorities to change the address for delivery of your mail to such
address as we may designate and to receive and open your mail. We agree to turn
over to you or your representative all mail not related to the aforesaid
purposes.
17.3 After the occurrence of an Event of Default which is not waived by
us, with respect to any other property or collateral in which we have a security
interest, we shall have all of the rights and remedies of a secured party under
Article 9 of the Uniform Commercial Code. If notice of intended disposition of
any such property or collateral is required by law, it is agreed that five (5)
days notice constitutes reasonable notice. The net cash proceeds resulting from
the exercise of any of the foregoing rights, after deducting all charges, costs
and expenses (including reasonable attorneys fees) will be applied by us to the
payment or satisfaction of the Obligations, whether due or to become due, in
such order as we may elect You remain liable to us for any deficiencies. With
respect to Factor Risk Accounts and Returned Goods relating thereto, you hereby
confirm that we are the owners thereof and that our rights of ownership permit
us to deal with this property as owner and you confirm that you have no interest
therein.
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18. MISCELLANEOUS PROVISIONS
18.1 This Agreement, and all attendant documentation, as the same may
be amended from time to time, constitutes the entire agreement between us with
regard to the subject matter hereof, and supersedes any prior agreements or
understandings. This Agreement can be changed only by a writing signed by both
of us. Our failure or delay in exercising any right hereunder will not
constitute a waiver thereof or bar us from exercising any of our rights at any
time. The validity, interpretation and enforcement of this Agreement is governed
by the laws of the State of California, excluding the conflict laws of such
State.
18.2 The Client Service Guide, as supplemented and amended from time to
time (the "Guide") has been furnished to you or is being furnished to you
concurrently with the signing of this Agreement, and by your signature below you
acknowledge receipt thereof. The Guide provides information on credit approval
processes, accounting procedures and fees. The procedures for-Electronic Batch
Transmission are covered in supplemental instructions to the Guide. From time to
time, we may provide you with amendments, additions, modifications, revisions or
supplements to the Guide, which will be operative for transactions between us.
All information and exhibits contained in the Guide, on any screen accessed by
you, and on any print-outs, reports, statements or notices received by you are,
and will be, our exclusive property and are not to be disclosed to, or used by,
anyone other than you, your employees or your professional advisors, in whole or
in part, unless we have consented in writing.
18.3 This Agreement binds and benefits each of us and our respective
successors and assigns, provided, however, that you may not assign this
Agreement or your rights hereunder without our prior written consent
18.4 Section headings are for convenience only and are not continuing.
The use of "including" means "including without limitation"~
18.5 If any provision of this Agreement is contrary to, prohibited by,
or deemed invalid under applicable laws or regulations, such provision will be
inapplicable and deemed omitted to such extent, but the remainder will not be
invalidated thereby and will be given effect so far as possible.
Remainder of this page intentionally left blank
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To the extent permitted by applicable law, we each hereby waive any
right to a trial by jury in any action or proceeding arising directly or
indirectly out of this Agreement, or any other agreement or transaction between
us or to which we are parties.
If the foregoing is in accordance with your understanding, please so
indicate by signing and returning to us the original and one copy of this
Agreement. This Agreement will take effect as of the date set forth above but
only after being accepted below by one of our officers in California, after
which we shall forward a fully executed copy to you for your files.
Very truly yours,
THE CIT GROUP/
COMMERCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx, Senior Vice President
Read and Agreed to:
JOE'S JEANS, INC.
Xxx Xxxxx Xxxxxx X. Xxxxxx, Xx.
-------------------------------- --------------------------------------
Name: Xxx Xxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: President Title: Vice-President
Accepted at: Los Angeles, Ca
THE CIT GROUP/
COMMERCIAL SERVICES, INC.
By: Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice-President
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