Exhibit 10.07
Guaranty Agreement
This Agreement dated as of this 6th day of September, 1996, by the parties
who have executed this Guaranty (such parties, along with any other parties who
execute and deliver to the Agent hereinafter identified and defined an agreement
in the form attached hereto as Exhibit A, being herein referred to collectively
as the "Guarantors" and individually as a "Guarantor").
W i t n e s s e t h:
Whereas, the Guarantors are subsidiaries or affiliates of either LaSalle
Partners Limited Partnership, a Delaware limited partnership ("LPL") or LaSalle
Partners Management Limited Partnership, a Delaware limited partnership ("LPML";
LPL and LPML are sometimes hereinafter referred to individually as a "Borrower"
and collectively as the "Borrowers"); and
Whereas, the Borrowers, Xxxxxx Trust and Savings Bank ("Xxxxxx"),
individually and as agent (Xxxxxx acting as such agent and any successor or
successors to Xxxxxx in such capacity being hereinafter referred to as the
"Agent") and various other lenders have entered into a Credit Agreement dated as
of even date herewith (such Credit Agreement as the same may from time to time
hereafter be modified or amended being hereinafter referred to as the "Credit
Agreement") pursuant to which Xxxxxx and other lenders which are now or which
may from time to time hereafter become parties thereto (Xxxxxx and such other
lenders being hereinafter referred to collectively as the "Lenders" and
individually as a "Lender") have extended various credit facilities to the
Borrowers (the Agent and the Lenders being hereinafter referred to collectively
as the "Guaranteed Creditors" and individually as a "Guaranteed Creditor"); and
Whereas, the interdependent nature of the businesses of each of the
Guarantors and the Borrowers is such that the viability of each Guarantor is
dependent upon the continued success of the Borrowers and upon the continuation
of the Borrowers' business relationships with such Guarantor, and the
continuation thereof necessitates the Borrowers' access to credit and other
financial accommodations from the Lenders which the Lenders will only make
available on the condition, among others, that the Guarantors execute and
deliver this Guaranty; and
Whereas, each Guarantor will directly and substantially benefit from credit
and other financial accommodations extended and to be extended by the Lenders to
the Borrowers; and
Now, therefore, for value received, and in consideration of advances made
or to be made, or credit accommodations given or to be given, to the Borrowers
by the Lenders from time to time, each Guarantor hereby makes the following
representations and warranties to the Guaranteed Creditors and hereby covenants
and agrees with the Guaranteed Creditors as follows:
1. Each Guarantor hereby jointly and severally guarantees to the
Guaranteed Creditors, the due and punctual payment of (i) any and all
indebtedness, obligations and liabilities owing to the Guaranteed Creditors, and
any of them, by either Borrower under or in connection with or evidenced by (w)
the Credit Agreement or (x) all notes issued by either Borrower under the Credit
Agreement and any and all notes issued in extension or renewal thereof or in
substitution or replacement therefor (collectively, the "Notes") or (y) any
instrument or document executed by a Borrower or Guarantor granting to the Agent
a lien on
and security interest in any personal property of a Borrower or Guarantor (the
"Collateral Documents,") or in each case whether now existing or hereafter
arising (and whether arising before or after the filing of a petition in
bankruptcy), due or to become due, direct or indirect, absolute or contingent,
and howsoever evidenced, held or acquired, (ii) the obligations of the Borrowers
to reimburse the Guaranteed Creditors, and any of them, for the amount of all
drawings on all letters of credit (the "Letters of Credit") issued for the
account of the Borrowers pursuant to the Credit Agreement, and all other
obligations of the Borrowers under any and all applications for such Letters of
Credit (each an "Application"; the Notes, the Letters of Credit, the Credit
Agreement, the Applications, the Collateral Documents and any guaranty or
security agreement executed by another subsidiary or affiliate of either
Borrower in connection with the Credit Agreement being hereinafter collectively
referred to as the "Credit Documents") and (iii) any and all expenses and
charges, legal or otherwise, suffered or incurred by the Guaranteed Creditors,
and any of them, in collecting or enforcing any of such indebtedness,
obligations and liabilities or in realizing on or protecting or preserving any
security therefor other than any of the foregoing that result from the gross
negligence or willful misconduct of the Agent or such Lender. The indebtedness,
obligations and liabilities described in the immediately preceding clauses (i),
(ii) and (iii) are hereinafter referred to as the "indebtedness hereby
guaranteed". In case of failure by either Borrower punctually to pay any
indebtedness hereby guaranteed, each Guarantor hereby jointly and severally
agrees to make such payment or to cause such payment to be made punctually as
and when the same shall become due and payable (whether at stated maturity, by
acceleration or otherwise) and following the lapse of any grace period expressly
applicable to such default in payment, and as if such payment were made by such
Borrower.
2. Each Guarantor further jointly and severally agrees to pay all
expenses, legal and/or otherwise (including court costs and reasonable
attorneys' fees), paid or incurred by any Guaranteed Creditor in endeavoring to
collect the indebtedness hereby guaranteed, or any part thereof, and in
protecting, defending or enforcing this guaranty in any litigation, bankruptcy
or insolvency proceedings or otherwise.
3. Each Guarantor agrees that upon demand made at any time after default
in payment of any indebtedness hereby guaranteed and the lapse of any grace
period expressly applicable to such default in the Credit Agreement, such
Guarantor will then pay to the Agent for the benefit of the Guaranteed Creditors
the full amount of the indebtedness hereby guaranteed whether or not any one or
more of the other Guarantors shall then or thereafter pay any amount whatsoever
in respect to their obligations hereunder.
4. Each of the Guarantors agrees that such Guarantor will not exercise or
enforce any right of exoneration, contribution, reimbursement, recourse or
subrogation available to such Guarantor against any person liable for payment of
the indebtedness hereby guaranteed, or as to any security therefor, unless and
until the full amount owing to the Guaranteed Creditors of the indebtedness
hereby guaranteed has been paid and any commitment by the Guaranteed Creditors
to extend any indebtedness hereby guaranteed shall have terminated and each
Letter of Credit shall have expired. The payment by any Guarantor of any amount
or amounts to the Guaranteed Creditors pursuant hereto shall not in any way
entitle any such Guarantor, either at law, in equity or otherwise, to any right,
title or interest (whether by way of subrogation or otherwise) in and to the
indebtedness hereby guaranteed or any part thereof or any collateral security
therefor or any other rights or remedies in any way relating thereto or in and
to any
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amounts theretofore, then or thereafter paid or applicable to the payment
thereof howsoever such payment may be made and from whatsoever source such
payment may be derived unless and until all of the indebtedness hereby
guaranteed and all costs and expenses suffered or incurred by the Guaranteed
Creditors in enforcing this Guaranty have been paid in full and any commitment
by the Guaranteed Creditors to extend any indebtedness hereby guaranteed shall
have terminated and each Letter of Credit shall have expired.
5. Each Guaranteed Creditor may, without any notice whatsoever to any of
the Guarantors, sell, assign, or transfer all of the indebtedness hereby
guaranteed, or any part thereof, or grant participations therein as permitted by
the Credit Agreement, and in that event each and every immediate and successive
assignee, transferee, or holder of or participant in all or any part of the
indebtedness hereby guaranteed, shall have the right to enforce this Guaranty,
by suit or otherwise, for the benefit of such assignee, transferee, holder or
participant, as fully as if such assignee, transferee, holder or participant
were herein by name specifically given such rights, powers and benefits; but
each Guaranteed Creditor shall have an unimpaired right to enforce this Guaranty
for its own benefit or any such participant, as to so much of the indebtedness
hereby guaranteed that it has not sold, assigned or transferred. Without
limiting the generality of the foregoing, and subject to the provisions of
Section 10.13 and 10.14 of the Credit Agreement, any Lender may assign or
otherwise transfer any of the indebtedness hereby guaranteed or held by it to
any other person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, subject, however, to the provisions of the Credit
Agreement.
6. This Guaranty is a continuing, absolute and unconditional Guaranty,
and shall remain in full force and effect until written notice of its
discontinuance executed by the Borrowers and all the Guarantors shall be
actually received by the Guaranteed Creditors and also until any and all of said
indebtedness hereby guaranteed which was created or existing before receipt of
such notice shall be fully paid and any commitment by the Guaranteed Creditors
to extend any indebtedness hereby guaranteed shall have terminated and each
Letter of Credit shall have expired. The dissolution of any of the Guarantors
shall not terminate this Guaranty until notice of such dissolution shall have
been actually received by the Guaranteed Creditors, nor until all of said
indebtedness hereby guaranteed, created or existing or committed to be extended
in each case before receipt of such notice shall be fully paid and each Letter
of Credit issued before receipt of such notice shall have expired. The
Guaranteed Creditors may at any time or from time to time release any Guarantor
from its obligations hereunder or effect any compromise with any Guarantor and
no such release or compromise shall in any manner impair or otherwise affect the
obligations hereunder of the other Guarantors. No release, compromise, or
discharge of any one or more of the Guarantors shall release, compromise or
discharge the obligations of the other Guarantors hereunder.
7. In case of the dissolution, liquidation or insolvency (howsoever
evidenced) of, or the institution of bankruptcy or receivership proceedings
against either Borrower or any of the Guarantors, all of the indebtedness hereby
guaranteed which is then existing shall, at the option of the Required Lenders
(as defined in the Credit Agreement), immediately become due or accrued and
payable from the Guarantors.
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8. The liability hereunder shall in no wise be affected or impaired by
(and the Guaranteed Creditors are hereby expressly authorized to make from time
to time, without notice to any of the Guarantors), any sale, pledge, surrender,
compromise, settlement, release, renewal, extension, indulgence, alteration,
substitution, exchange, change in, modification or other disposition of any of
said indebtedness hereby guaranteed, either express or implied, or of any Credit
Document or any other contract or contracts evidencing any thereof, or of any
security or collateral therefor or any guaranty thereof. The liability hereunder
shall in no way be affected or impaired by any acceptance by the Guaranteed
Creditors of any security for or other guarantors upon any of said indebtedness
hereby guaranteed, or by any failure, neglect or omission on the part of the
Guaranteed Creditors to realize upon or protect any of said indebtedness hereby
guaranteed, or any collateral or security therefor, or to exercise any lien upon
or right of appropriation of any moneys, creditors or property of either
Borrower, possessed by the Guaranteed Creditors, toward the liquidation of said
indebtedness hereby guaranteed, or any application of payments or credits
thereon. The Guaranteed Creditors shall have the exclusive right to determine
how, when and what application of payments and credits, if any, shall be made on
said indebtedness hereby guaranteed, or any part of same. In order to hold any
Guarantor liable hereunder, there shall be no obligation on the part of the
Guaranteed Creditors at any time, to resort for payment to either Borrower or to
any other Guarantor, or to any other Person, its properties or estate or to any
other guaranty of any indebtedness hereby guaranteed or to resort to any
collateral, security, property, liens or other rights or remedies whatsoever,
and the Guaranteed Creditors shall have the right to enforce this Guaranty
against any Guarantor irrespective of whether or not other proceedings or steps
are pending seeking resort to or realization upon or from any of the foregoing.
9. In the event the requisite Guaranteed Creditors shall at any time in
their discretion permit a substitution of Guarantors hereunder or a party shall
wish to become Guarantor hereunder, such substituted or additional Guarantor
shall, upon executing an agreement in the form attached hereto as Exhibit A,
become a party hereto and be bound by all the terms and conditions hereof to the
same extent as though such Guarantor had originally executed this Guaranty and
in the case of a substitution, in lieu of the Guarantor being replaced. No such
substitution shall be effective absent the written consent of the requisite
Guaranteed Creditors nor shall it in any manner affect the obligations of the
other Guarantors hereunder.
10. All diligence in collection or protection, and all presentment,
demand, protest and/or notice, as to any and everyone, whether or not the
Borrowers or the Guarantors or others, of dishonor and of default and of non-
payment and of the creation and existence of any and all of said indebtedness
hereby guaranteed, and of any security and collateral therefor, and of the
acceptance of this Guaranty, and of any and all extensions of credit and
indulgence hereunder, are expressly waived.
11. No act of commission or omission of any kind, or at any time, upon the
part of the Guaranteed Creditors in respect to any matter whatsoever, shall in
any way affect or impair this Guaranty.
12. The Guarantors waive any and all defenses, claims and discharges of
either Borrower, or any other obligor, pertaining to the indebtedness hereby
guaranteed, except the defense of discharge by payment in full. Without limiting
the generality of the foregoing, the
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Guarantors will not assert, plead or enforce against the Guaranteed Creditors
any defense of waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of frauds, antideficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to a
Borrower or any other person liable in respect of any of the indebtedness hereby
guaranteed, or any setoff available against the Guaranteed Creditors to a
Borrower or any such other person, whether or not on account of a related
transaction. The Guarantors agree that the Guarantors shall be and remain
jointly and severally liable for any deficiency remaining after foreclosure of
any mortgage or security interest securing the indebtedness hereby guaranteed,
whether or not the liability of the Borrowers or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision.
13. If any payment applied by the Guaranteed Creditors to the indebtedness
hereby guaranteed is thereafter set aside, recovered, rescinded or required to
be returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of a Borrower or any other obligor), the
indebtedness hereby guaranteed to which such payment was applied shall for the
purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such of the indebtedness hereby guaranteed as fully as if such application had
never been made.
14. The liability of the Guarantors under this Guaranty is in addition to
and shall be cumulative with all other liabilities of the Guarantors after the
date hereof to the Guaranteed Creditors as a Guarantor of the indebtedness
hereby guaranteed, without any limitation as to amount, except as set forth in
Section 17 hereof and unless the instrument or agreement evidencing or creating
such other liability specifically provides to the contrary.
15. Any invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and applications hereof,
and to this end the provisions of this Guaranty are declared to be severable.
Without limiting the generality of the foregoing, any invalidity or
unenforceability against any Guarantor of any provision or application of the
Guaranty shall not affect the validity or enforceability of the provisions or
application of this Guaranty as against the other Guarantors.
16. Each of the Guarantors jointly and severally agrees to pay to the
Agent for the benefit of the Guaranteed Creditors all costs and expenses, legal
and/or otherwise, (including court costs and reasonable attorneys' fees)
suffered or incurred by the Guaranteed Creditors in enforcing or endeavoring to
enforce the Guarantors' obligations hereunder, or any part thereof, and in
protecting, defending or enforcing the Guarantors' obligations hereunder in any
litigation, bankruptcy or insolvency proceedings or otherwise.
17. Notwithstanding anything herein to the contrary, the right of recovery
against each Guarantor under this Guaranty shall not exceed the Maximum
Liability Amount. For purposes of this Section, the term "Maximum Liability
Amount" shall mean $1.00 less than the amount of the lowest claim on this
Guaranty which would render it void or voidable under applicable law against
such Guarantor.
18. Any demand for payment on this Guaranty or any other notice required
or desired to be given hereunder to any Guarantor shall be deemed to have been
validly served, given or
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delivered to such Guarantor when given to such Guarantor or when given to the
Borrowers in accordance with the Credit Agreement.
19. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW
OF THE STATE OF ILLINOIS (without regard to principles of conflicts of laws) in
which state it shall be performed by the Guarantors and may not be waived,
amended, released or otherwise changed except by a writing signed by the
requisite Guaranteed Creditors. This Guaranty and every part thereof shall be
effective upon delivery to the Agent, without further act, condition or
acceptance by the Guaranteed Creditors, shall be binding upon the Guarantors and
upon the legal representatives, successors and assigns of the Guarantors, and
shall inure to the benefit of the Guaranteed Creditors, their successors, legal
representatives and assigns. The Guarantors waive notice of the Guaranteed
Creditors' acceptance hereof. This Guaranty may be executed in counterparts and
by different parties hereto on separate counterparts each of which shall be an
original, but all together to be one and the same instrument.
20. PERSONAL JURISDICTION. (a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED
IN SUBSECTION (b), THE GUARANTEED CREDITORS AND THE GUARANTORS AGREE THAT ALL
DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS GUARANTY, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY
BY STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY, ILLINOIS BUT EACH OF THE
GUARANTEED CREDITORS AND THE GUARANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY, ILLINOIS.
EACH OF THE GUARANTORS WAIVES IN ALL DISPUTES ANY OBJECTION THAT SUCH GUARANTOR
MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE OR ANY OBJECTION
THAT SUCH GUARANTOR MAY HAVE THAT ANY ONE OR MORE OF THE OTHER GUARANTORS HAVE
NOT BEEN JOINED IN SUCH PROCEEDING.
(b) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT THE GUARANTEED
CREDITORS SHALL HAVE THE RIGHT TO PROCEED AGAINST EACH AND ANY OF THE GUARANTORS
OR THEIR PROPERTY ("PROPERTY") IN A COURT IN ANY LOCATION TO ENABLE THE
GUARANTEED CREDITORS TO REALIZE ON PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF THE GUARANTEED CREDITORS, WHETHER OR NOT
PROCEEDING SEPARATELY AGAINST A GUARANTOR OR ITS PROPERTY OR JOINTLY AGAINST ANY
ONE OR MORE OTHER GUARANTORS OR THEIR PROPERTY. EACH OF THE GUARANTORS AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
IN ACCORDANCE WITH THIS PROVISION BY THE GUARANTEED CREDITORS TO REALIZE ON
PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
GUARANTEED CREDITORS. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT IN WHICH THE GUARANTEED CREDITORS HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION.
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In Witness Whereof, the Guarantors have caused this Guaranty to be executed
and delivered as of the date first above written.
LaSalle Partners Management (Arizona) Limited
Partnership, an Arizona limited partnership
By: LaSalle Partners Management Limited
Partnership, a Delaware limited partnership
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Its: President, Managing
Director, Treasurer and
Secretary
LaSalle Partners (Georgia) Limited Partnership, a
Georgia limited partnership
By: LaSalle Partners Limited Partnership, a
Delaware limited partnership
Its: General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------
Name: Xxxxxxx X. XxXxxxxxx
Its: Vice President, Treasurer
and Assistant Secretary
LaSalle Construction Limited Partnership, a
Delaware limited partnership
By: LaSalle Construction Corporation, an Illinois
corporation
Its: General Partners
By: /s/ Xxxxxx X. Xxxxxx Weele
---------------------------
Name: Xxxxxx X. Xxxxxx Weele
Its: Senior Vice President
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LaSalle Advisors Limited, a Delaware limited
partnership
By: LaSalle Partners Limited Partnership, a
Delaware limited partnership
Its: General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Its: Vice President, Treasurer
and Assistant Secretary
ABKB/LaSalle Securities Limited Partnership, a
Maryland limited partnership
By: ABKB/LaSalle Securities, Inc., a
Maryland corporation
Its: General Partners
By: /s/ Xxxxxx X. Xxxxxx Weele
---------------------------------
Name: Xxxxxx X. Xxxxxx Weele
Its: Senior Vice President
LASALLE PARTNERS (NEW YORK) LIMITED PARTNERSHIP
By: LaSalle Partners Incorporated, a New
York corporation
Its: General Partners
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Its: President
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LaSalle Partners Management (Illinois) Limited
Partnership, an Illinois limited partnership
By: /s/ Xxx X. Xxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxx
Its: General Partner
LSPAM (California) Limited Partnership, a
California limited partnership
By: LaSalle Partners Asset Management of
California, Inc., a California corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Its: President
LPAML-COPUB Limited Partnership, a
Delaware limited partnership
By: LPAML-COPUB Corporation, a Delaware
corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Its: President
LPAML Colorado Limited Partnership, a
Colorado limited partnership
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: General Partner
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LaSalle Partners Development Limited, a
Delaware limited partnership
By: LaSalle Partners Management Limited
Partnership, a Delaware limited partnership
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx. Jr.
Its: President
LP International, a Limited Liability Company
By:________________________________________
Its:_______________________________________
LaSalle Partners Management (Ohio) Limited
Partnership, an Illinois limited partnership
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: General Partner
LaSalle Partners Management Limited
Partnership, a Florida limited partnership
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
Its: General Partner
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LSP Services (California) Limited Partnership, a
California limited partnership
By: LaSalle Partners of California, Inc., a
California corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Its: President
LaSalle Partners (Illinois) Limited Partnership,
an Illinois limited partnership
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Its: President
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