1 GLOSSARY OF TERMS USED IN BANKING TRANSACTIONS AND WORKOUTS All bank meeting Meeting of all lenders, usually called by the company or the coordinators, for example to: To commence a standstill Seek decisions on aspects of the workout Basis point Bonds Represents the smallest measure used in quoting yields on bonds and notes. One basis point is 1/100th of a per cent or 0.01%. Therefore, a bond s yield that changes from 5.5% to 5.4% is said to have moved 10 basis points (bps). Investors provide funds to a business in return for paper (the bond) agreeing that the holder will be repaid the sum invested plus interest. Bonds are issued by the company directly to investors, which can include banks, institutions or other companies. These instruments can then be traded in the secondary market. The risk associated with a bond is assessed by credit rating agencies (Moody s, S&P etc) and a set of letters assigned. Below BAA or BBB is classed as Junk/High Yield. Bookrunner Breaking syndicate Chapter 11 The managing underwriter of an underwritten new issue of securities who run the syndicate books and accounting. Usually is the lead manager, controlling the negotiation, pricing and distribution of a bond issue. The lead manager s name would usually appear on the far left on the cover of the prospectus. Terminating the Agreement Among Underwriters and Dealer Agreement governing a fixed price offering. The agreements generally provide for a termination date 30 days after commencing an offering. However, the lead manager may terminate earlier, generally when all the securities have been sold. Once the agreements are terminated, members of the syndicate may resell the securities at market without restriction on the price. US legal procedure designed to allow the company a breathing period whilst the management formulate a restructuring plan. Often a fall back for US management teams as: Management retain control ( debtor in possession ); There is a minimum 180 day moratorium on creditor action before management s restructuring plan is heard in Court; Management are allowed to raise money against the assets of the business assets that then benefits from super priority over existing lenders ( DIP financing ).
2 Class tests The UK Listing Rules require that certain transactions by UK listed companies require disclosure or shareholder consent. The action taken by the company and the information to be sent to shareholders is determined by the Class of the transaction, which is dependent on the size of the transaction relative to the company (as measured by assets, profits and consideration). The class tests and information requirements are set out in Chapter 10 of the Listing Rules. In particular, Class1 transactions (ratios >25%) require shareholder approval. Closing Comfort letter Commercial paper Coordinator, lead bank Occurs subsequent to pricing an issue, typically one week later, where all documents with respect to the transaction are signed and the underwriter hands over the check to the issuer in exchange for the securities issued. Independent auditor s letter, required in securities underwriting agreements, to assure that the financial information in the registration statement and prospectus is correctly prepared and that no material changes have occurred since its preparation. Similar to bonds but with a maturity of less than a year. Title applied to the bank which coordinates the bank s response and relationship with the company during the workout; usually that with the greatest lending to the company. Not necessarily an agent bank (and there may be a number of agent banks where there are more than one syndicates). May take the role of security agent if the banks are granted security as a result of the workout. Cram down Credit derivatives Cross default/cross acceleration Any creditor or class of creditor that is legally bound to accept a restructuring procedure despite voting against that procedure can be said to have been crammed down. Effectively an insurance policy for the lender should the company default. The lender pays a fee to another financial institution who, in return, agrees to pay the lender either the interest (interest only credit derivative) or the interest and principal (total return derivative) on default. A clause in lending documentation creating an event of default in one agreement if there has been an event of default or another (otherwise unconnected) agreement with the same company or group. This covenant states that if other debt of the issuer is declared in default or is accelerated, the debt subject to the covenant is automatically in default or may be accelerated as well. This provision assures the bondholder that if any other outstanding debt of the issuer enters default, the debt protected by cross default will also enter default. Similarly, a debt issue without cross default does not automatically go into default if another debt issue of the issuer enters default.
3 Credit Default Swaps (CDS) A bilateral contract that enables an investor to buy protection against the risk of default of an asset issued by a specific issuer. Following a defined credit event, the buyer of protection receives a payment intended to compensate against the loss of the investment. Credit Default Swaps reflect the pure credit risk associated with a credit. Debt Factoring Debt: equity swap; debt conversions As Invoice Discounting. However, the third party manages the debt collection process. Debt: equity swap is the process by which banks exchange debt lending for an equity position in the company. The prime aim of a debt:equity swap is usually to protect the residual debt; a secondary aim is the potential return from the equity either by way of dividend or other distributions or through capital gain on a sale or transfer of the equity. Debt:equity swaps are complex and there are many issues involved, including: The valuation of debt and the existing business to establish a conversion rate to equity; Preserving some interest for existing shareholders and/or management; The amount of equity to hold and there may be legal, tax and regulatory issues involved (depending on jurisdiction) at various trigger points from 3% (UKLA disclosure) to 90% (ability to acquire minority shareholder s equity); The type of equity instrument and rights attaching to the equity taken Default interest Documentation A clause in most loan documents conferring a right to the lenders to receive an additional margin in the period where an event of default has occurred and has not been either rectified by the company or waived by the lenders. Usually involves: Standstill agreement; GFA; Intercreditor agreement; and Security documentation including a security trust deed if the coordinator acts as trustee for the lending group. May also involve subscription, shareholder and potentially other agreements if a debt: equity swap is a feature of the workout.
4 Drag-along rights A term usually seen in private equity deals but which may be part of debt: equity documentation. The right of a group of shareholders (usually a majority group by votes) on an offer for the purchase of shares to require the other shareholders to sell their shares on identical terms. A bank may seek to have drag along rights in a document in order to achieve a clean exit by sale of shares without minority shareholders frustrating the transaction. See also Tag-along rights. Enforcement date Entity priority Date of demand for facility repayment, or the date of commencement of an insolvency procedure. Refers to the right of lenders to a specific company or subgroup of companies to participate before all other lenders in the workout from the sale of assets or other cash flows from that company or subgroup. This can be advantageous to the lender involved, however it can greatly complicate workout documentation, as any such ring fencing will need to be supported by restricted covenants on intercompany asset and cash movements however this can also lead to a greater group funding requirement as group treasury management will be restricted. Equalisation Post enforcement payments made between banks to adjust indebtedness to reflect the relative position as at the date of the Standstill. Examples would be where a company has been trading cash positively during the workout but the cash inflows are reflected in lower utilisation of an overdraft with one bank, or of an RCF with a syndicate where not all lenders are members. In these cases, lenders with lower debt position relative to the position at the Standstill date would make payments to the other lenders before asset recoveries are shared pro rata to the equalised position. Equitable subordination A concept in law by which intra group lending is subordinated to the claims of third party lenders. Applies in certain jurisdictions, notably Germany (where the hausbank concept and banks as shareholders may result in bank debt being subordinated) and the United States.
5 Event of default Consequence of a failure to comply with the terms of loan documentation. An unremedied event of default will allow the lenders to make demand for the loan following service of a default notice and notice of demand ( acceleration ). Even if the lenders do not accelerate the loan, the default and the on demand status of the loan may cause: A default margin to be applied; and The directors and auditors to have difficulty in releasing financial statements without making reference to the banking position and potentially needing to reclassify the debt as due within one year. Events of default can arise as a result of: Technical breaches through default of an obligation (for example, failure to provide information to the lenders within a specified time frame); Breach of financial covenants; Material adverse change usually cited in loan documentation, however there are no known examples of this being relied upon as grounds for calling an event of default; or Non payment of interest or capital. An event of default may be remedied by the company performing the obligation (in which case the lenders may issue a time limited waiver in order to allow the company to fulfil the obligation), or the company may have to renegotiate the terms of the facility. Where loan documents provide for cross default, default and acceleration may result from an event of default in another (otherwise unconnected) facility. Event risk language Forex facility Forwards The risk that a bond will suddenly decline in credit quality and warrant a lower rating. The language is an indenture which protects bondholders typically by a make whole mandatory redemption from different types of designated events such as a merger, stock repurchase or special dividend. This allows the company to hedge against any transactions not in its domestic currency eg, a $10 million facility allows the company to buy or sell forward of up to $10 million of currency and hence fix the exchange for forecast US$ receipts or purchases. A forwards contract is an agreement to buy or sell a specific amount of a commodity or financial instrument at a particular price on a stipulated date. Generally with a firm obligation to make or take DELIVERY of the underlying asset. Futures A future is an agreement to buy or sell an asset at a certain time for a certain price. These instruments are exchange traded (other party is found via the exchange) and tend not to be based on a commitment by either party to transfer the underlying asset.
6 GFA ( Global Facilities Arrangement ); Override Agreement ; Restructuring Agreement An agreement between the banks and the company that overrides certain terms in existing documentation in respect of lending and other facilities dealt with in the workout. The existing documentation will remain in place. Typically, a GFA will include: Waiver of all defaults up to the date of signing; Moratorium on lender action against the company other than provided for by the GFA; Overriding definitions of events of default Representations, warranties, undertakings and covenants including: Obligations on the company to maintain the assets of the Business as at the standstill date (negative pledge, restrictions on acquisitions, disposals etc.); Obligations to provide management and financial information; Margin and fee rates; Amortisation and events leading to prepayments (asset disposals, change of control, etc) Gross spread Indenture Interbank, intercreditor agreement The difference (spread) between the public offering price of the bond paid by the bondholder and the price paid by the underwriter to the issuer. The gross spread is composed of the management fee, the underwriting fee and the selling concession. Detailed legal agreement between an issuer of bonds and the trustee for the bondholders covering such considerations as: form of the bond, amount of the issue, protective covenants and call privileges. Sets out the relationship between lenders as at the standstill date and seeks to preserve relative positions. Typically includes clauses dealing with priorities, basis of liquidation principles, loss sharing/equalisation and voting/decision making by the lender group. Sometimes incorporated within the GFA. Invoice discounting A percentage of invoice value (typically 75-90%) sold to a third party at the point of invoice, repaid when the debt is collected. This can be recourse factoring where the corporate has to pay if the debtor does not, or nonrecourse factoring where the third party takes the risk of non-payment.
7 Kicker, equity kicker Describes the instrument by which the lenders may gain equity in the company as a way of increasing the overall return on their position. Usually achieved by either: Granting warrants pro rata to the level of participation in the debt; or Issuing some of the restructured debt in the form of convertible bonds (which in reality are usually simply low/zero coupon bonds with warrants attached). Lender liability The concept in law that a lender may be liable for the losses incurred by the ordinary creditors of the company if it can be shown that the lender has acted wrongly in either continuing to support or prematurely withdrawing support from a company in financial difficulties. Applies in certain jurisdictions, notably France, Germany and the United States. May sometimes be used by lenders for a reason for not participating in new money requests etc. Letter of credit Liquidation principles A document issued by a bank that essentially acts as an irrevocable guarantee of payment to a beneficiary (if you do not perform your obligations, your bank has to pay). Method by which the lenders relative positions are established. Assessment of recoveries to each lender assuming a liquidation had taken place at the date of the Standstill, taking into account security, guarantee positions, covenants and ring fencing provisions establishing entity priority, intercompany positions. Usually involves the creation of a dividend model. The output can then be used for the basis of relativities going forward (equalisation, loss sharing, participation in equity following a debt:equity swap, etc.) LMA Loan notes Loan Market Association its main objective is to establish sound and widely accepted market practice in the primary and secondary loan market in Europe, the Middle East and Africa, and seeks to promote the syndicated loan as the key debt product available to borrowers. Generally issued following a buy out or investment by a private equity house. Interest can be paid as cash or PIK. The loan notes generally mature at the end of the PE house s intended investment horizon.
8 London approach The name given to the lender support protocol, historically employed in London based workouts. The London Approach is voluntary and contractual, not statutory. The main features are that the lenders to a company in distress: Work together towards a common objective of rescuing the company under a coordinator or lead bank, with or without a steering committee; Are flexible in reaching a solution there are no fixed rules; Enter a moratorium (the standstill ) with the company whilst information is gathered and options formulated and assessed usually with the assistance of Independent Accountants; and Provide new liquidity if necessary, either as a group as a whole or by a subgroup of lenders who are then given priority by the other lenders for the repayment of that new money ahead of all existing claims notwithstanding existing security rights or entity priorities. It is a principle that each lender remains entitled to exercise its own commercial judgement whilst remaining sympathetic to the overall objective of supporting the company. Many of the principles of the London Approach are echoed in the out of Court informal rescue protocols of other jurisdictions and are encapsulated in the INSOL Statement of Principles for a Global Approach to Multi-creditor Workouts. Loss sharing Loss sharing is the mechanism that ensures that any loss borne by the lending group is shared amongst the individual lenders in proportion to its participation in the total debt at the Standstill date. The principal components of loss sharing are: Sharing of pre enforcement prepayments of debt; Sharing of proceeds from asset realisations (pre and post enforcement); Equalisation; Distribution of proceeds from the sale of secured assets. Examples of situations where loss sharing would be used in addition to equalisation would be: Where pre enforcement mandatory prepayments are made (eg on the sale of a major asset) but where a lender has only soft facilities and so has no indebtedness to be repaid. Other lenders may be paid a greater amount than would otherwise be possible on the basis that post enforcement loss sharing (see below) will bring relativities back to reflect the position at the date of the Standstill; or A sale of a subsidiary business through the sale of shares where one lender or a lending group has its debt assumed by the acquirer ie a full repayment of facilities by the company in workout). Again, post enforcement loss sharing could be used to address the position.
9 Make whole provision A make whole call will be defined in the indenture. It is a type of call provision in a bond that allows a borrower to pay off remaining debt early. However, the borrower has to make an additional payment that is derived from a formula based on the net present value of the future debt payments not paid because of the call. The issuer doesn't expect to have to use this type of provision, but if the issuer does, investors will be compensated, or "made whole." Because the cost can often be significant, such provisions are rarely invoked. Majority decision Those decisions not requiring unanimity are generally dealt with by a majority of banks. The majority is usually 51-75% by value of debt, and where a small number of banks dominate the lending by value, a majority by number of institutions is often applied in addition. Mezzanine debt A form of subordinated debt ranking behind the senior debt. Interest can be paid periodically (cash interest) or rolled up over the term of the loan until maturity when the loan and accrued interest is repaid as a bullet (PIK interest). This is generally more expensive to equity as it requires significant cash generation to enable repayment, it ranks behind the senior debt and is generally unsecured. Negative pledge New money Under this covenant, the issuer pledges that it will not allow mortgages, liens or other encumbrances to be placed on various assets. This covenant assures the bondholder that no class of long-term creditors will have a claim prior or senior to its own pool of assets. New money is used in two contexts: Where the company in standstill/workout requires additional funding this new money requirement is met by the lenders pro rata to their position as at the standstill date. However, there are times when either the entire lending group will not participate (either as a principle or because it would not be possible, for example a provider of duty deferment guarantees may not have the capability) or cannot participate (for example certain types of US insurance investors, who are barred by their regulations from investing further in distressed companies). In this situation the lenders providing the new money are given priority over all other claims for the extent of New Money made available. In addition, new money facilities may attract greater margin and fees; and New money may also refer to the extent of cash turning under a newly granted floating charge before the charge hardens under s.245 of the Insolvency Act Offering circular Term used to describe the offering document sent to investors in securities with information regarding the new issue. In the context of MTNs, the terms Prospectus and Pricing Supplement describe the offering documents for an issue.
10 Options There are two basic types of options: A call option gives the holder the right to buy the underlying asset by a certain date for a certain price A put option gives the holder the right to sell the underlying asset by a certain date for a certain price Ordinary shares Overdraft Oversubscribed Payment return bond Performance bond Plain Vanilla Preference shares Price/yield relationship terms Standard share in a business. Can be used by the corporate at any time up to a fixed limit. Interest charged on amount utilised. Usually repayable on demand. Oversold, demand for a particular security exceeds the issue size. Is used when the contract provides for an advanced payment to the seller; it guarantees the return of the payment to the buyer if the seller does not fulfil the obligation to deliver goods or render services. Is used to strengthen the contractual relationship between the buyer and the seller and guarantees the delivery of goods or the rendering of services on time and in accordance with the conditions specified in the contract. Straightforward bond issue with interest and principal. A share in a company yielding a fixed rate of interest rather than a variable dividend. Whilst preference shares do confer degree of ownership of the company, voting rights are restricted. Tightening - the yield on a security decreases (which increases the price). Widening - the yield on a security increases (which decreases the price). Cheap - if a bond is cheap its price has decreased and its yield has increased relative to the market (spread has widened). Rich - if a bond is rich its price has increased and its yield has decreased relative to the market (spread has tightened). Priorities This has two distinct meanings. Priorities for repayment in a workout are generally as follows: Repayment of new money lending; Facilities with recourse to the assets at the Standstill Date; then Facilities without recourse to the assets as at the Standstill date. These priorities can be established by way of additional security and guarantees or indemnities between lenders. Priorities in a formal insolvency process are governed by the appropriate insolvency legislation and can differ significantly from country to country.
11 Profit warning The statement made by directors in respect of a deterioration in expected profits is often termed a profit warning and may be the first indication that the company is in, or facing the possibility of being in, financial distress. Rule 9.2 of the UKLA Listing Rules obliges the directors of a company to disclose without delay any changes in financial condition, performance or expectation of performance that knowledge of the change is likely to lead to a significant movement in the price off its listed securities. Qualified Institutional Buyer QIB RCF (Revolving Credit Facility) Reconstruction Red herring Refinancing Regulation S (RegS) Reoffer spread Rescheduling Defined in Rule 144A of the Securities Act of 1933 concerning private resales of securities to institutions. A QIB is an entity acting for its own account or the accounts of other QIBs, which in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity. Facility which can be drawn down to a fixed limit but must be repaid within a short (1-5 year) fixed period. Often used to finance working capital in seasonal businesses. Usually refers to a complete balance sheet reorganisation generally involving a debt:equity swap and rescheduling of the residual debt. A preliminary prospectus that is distributed prior to an offering. It has language that it is only a preliminary prospectus printed in red ink on the cover. Refinancing usually refers to the successful exit from workout through a group of lenders voluntarily extending credit to the company. Refinancing may occur after debt has been reduced through business or assets sales, capital rising or through the successful implementation of a an operational turnaround plan. A regulation under the Securities Act of 1933 that exempts offshore offerings of securities from registration with the SEC. Eurobonds, for example, are sold without SEC registration under RegS. These issues cannot be sold into the US. The premium or spread over the underlying benchmark (government or swaps) which accounts for the creditworthiness of the issuer. The reoffer spread is added to the benchmark level to determine the reoffer yield. The reoffer yield is then rounded down by 1/8th or 12.5 basis points to determine the coupon. Rescheduling usually refers to renegotiating the core terms of the debt: Security; Term; Margin and Amortisation. Rescheduling of itself does not usually present a solution, however it may be used to buy time whilst the company develops a longer term solution and financing plan. Residual debt The debt remaining after a debt:equity swap has been affected.
12 Ring fencing Refers to the mechanism by which a lender or lender group can create priority over assets and/or cash flows from a company or subgroup by way of, for example: Restrictive covenants over asset transfers and intercompany cash flows; Strict financial covenants regulating limited intercompany trading; Security documentation including negative pledge. Such ringfencing effectively creates an entity priority situation. Rule 144A Secondary debt market, debt traders Rule under The Securities Act of 1933, governing private resales of securities to institutions. Rule 144A permits unrestricted resales among Qualified Institutional Buyers (QIBs). The banks and funds which trade in distressed debt employ a number of trading strategies: Event traders look to buy in ahead of a major announcement or breakthrough in order to make a quick return; Yield investors looking to buy at an attractive yield, typically once a restructuring is nearing completion; Capital gain investors and equity players look to a debt:equity swap as a cheap route to an equity position; Greenmail investors, who look to buy enough of a position to frustrate the restructuring until they are bought out in turn. Debt trading in a workout can be positive, in that it provides for an early exit for unwilling or recalcitrant lenders (albeit a below par exit). However debt trading can significantly destabilise a workout, particularly in the early period, as: Debt traders will almost certainly have bought in below par and so will have different expectations or requirements of a restructuring. They may seek to force the banks and the company to pursue an exit strategy which is unattractive to other players; Debt traders may not have liquid resources and so the remaining lenders have a measure of counterparty risk should new moneys be invested and then called for on equalisation; Insider dealing rules may mean that debt traders seek to avoid involvement in the workout for fear of receiving too much inside information; May be difficult to identify the debt owners Due to the potential destabilising influence of debt traders it is usual to attempt to block or restrict trading activity during the Standstill and even the workout period. Where transfers are allowed, it is usual for the company and the bank group to restrict transfers to reputable banks, often by reference to Moody/S&P ratings.
13 Soft facilities Soft banking facilities are usually taken to include: Settlement facilities; Forex contracts/lines; Swaps and derivative contracts/lines; and Performance bonds and guarantees. The treatment of these in a Standstill is a matter for negotiation, however generally: Settlement limits are usually excluded from the standstill other than to restrict the company from opening new facilities and ensuring that funding is or will be available to cover any daylight exposures; Forex risk is usually measured as a function of the risk weighted exposure as at the Standstill date and therefore a forex limit can be established as a committed facility limit for the purposes of the bank s relative position and ongoing requirements; Swaps and derivatives are usually measured using a mark to market methodology at the Standstill date to establish the limit. New moneys are a function of the volatility of the swap in the market; Performance bonds are measured by reference to the amount guaranteed; Other guarantees are measured by the amount of guarantees in issue at the Standstill date. This may not be the facility limit, however it is usually taken as the limit from the Standstill date, and utilisation may fluctuate from time to time as guarantees are issued and recalled. Stabilization Standstill, standfast Intervention in the market by a managing underwriter in order to keep the market price from falling below the public offering price during the offering period. The underwriter places orders to buy back bonds at a specific price. The Standstill is the opening phase of a workout during which the banks and the company agree to take no action which would change the position of the banks relative to the company or the relative position of the banks and the banks agree not to make demand or accelerate their positions. It is during the Standstill that the initial work of Investigating Accounts is carried out to establish the causes of financial distress, the likelihood of recovery and the further investment required and the position of the banks. It is the responsibility of the company to call for a Standstill, usually at the first all bank meeting. The basis of the standstill is a contract between the company and the banks, and the banks amongst themselves. It is usual (but not necessary) to have the standstill formally documented. Standstill/standfast date The Standstill is usually taken to have begun at close of business the day prior to the all bank meeting at which the request is made.
14 Steering committee A group of banks elected by all lenders to work with the coordinator in managing the workout process. It is usual to have a representative bank form each constituency eg one from each syndicate, or one to represent all bilateral lenders, one for a bondholders, etc. Stock finance Success fee Similar to debt finance, however the level of finance is based on the level of stock (generally up to 60% of the eligible stock balance). The coordinators will usually seek to negotiate a fee based on the successful exit from the workout. The main elements of such a fee are: The determination of success - usually that any lenders extending credit do so voluntarily on commercial terms. The quantum of the success fee - normally determined by reference to a percentage of total debt as at the Standstill date; and The way in which the fee is paid whether by cash or an equity type instrument. SWAPS An agreement between two counterparties to exchange a series of payments over a specified period of time, based on reference rates (interest rates, currencies, commodities, indices). For example a company may be paying a variable interest and decides it would prefer to pay fixed. It can arrange with another bank to pay it fixed interest in return for receiving variable interest a SWAP. The company can then net off the variable interest received from the new bank with that payable to the original bank so it effectively only pays the fixed rate. Tag-along rights A term usually seen in private equity deals but which may be part of debt:equity documentation. If an owner of shares in the company receives an offer, the holders of tagalong rights are given notice of the terms of the offer and are entitled to have their shares sold as part of the transaction pro rata to the pre transaction holdings. A bank may seek to disapply tag-along rights with respect to its shareholding so that it can achieve a clean exit in a single transaction without involving other shareholders. See also Drag-along rights Term loan Loan over a fixed period at a fixed margin over Libor. Repaid in instalments or as a final bullet repayment on maturity.
15 Voting Decisions by the banking group are either: Taken by the coordinator or the Steering Committee, in which case the decisions which can be made in this way will be documented from agreement at an all bank meeting Taken by all banks, either: By majority which may be by value or by headcount, or both and will usually cover administrative matters relating to the workout, or By unanimity usually reserved for issues relating to the key terms in the loan documentation (term, amortisation, margin, lender priorities, security, voting rights). Warrants A warrant is an instrument issued by a company that gives the holder the right to subscribe for shares at set price. The money received from the exercise of the warrant is received by the company, unlike an option that is the right to buy or sell an existing share. Warrants are a tradable instrument and so can represent an exit or return in themselves. Warrants are sometimes issued to debt providers to give the debt provider the chance of making an equity return post the restructuring often termed an equity kicker. Workout Zero Divided Preference Shares (ZDPS) The process by which a company in financial distress is stabilised and refinanced with the support of a coordinated lender group. Preference shares that pay no dividend. The shares are issued at a discount and then repaid at full value on maturity.
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