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Exhibit 4.4
THIRD AMENDMENT TO ASSET BASED LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT TO ASSET BASED LOAN AND SECURITY AGREEMENT, dated as of
June ____, 2001 (this "Amendment") is entered into by and between MAZEL STORES,
INC. ("Stores") an Ohio corporation, ODD-JOB ACQUISITION CORP. ("Odd-Job"), a
Delaware corporation, and HIA TRADING ASSOCIATES, a New York General
Partnership, jointly and severally (collectively, "Borrower"), whose mailing
addresses are 00000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000, and THE PROVIDENT BANK
("Agent"), an Ohio banking corporation, whose mailing address is 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, LASALLE BANK NATIONAL ASSOCIATION
("LaSalle"), a national banking association whose mailing address is 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and NATIONAL CITY BANK ("NCB," and
together with Agent and LaSalle, collectively "Lenders"), a national banking
association whose mailing address is National City Center, X.X. Xxx 0000, Xxx.
0000, Xxxxxxxxx, Xxxx 00000-0000.
W I T N E S S E T H:
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WHEREAS, Borrower and Lenders are parties to that certain Asset Based
Loan and Security Agreement dated as of March 10, 1998, as amended by that
certain First Amendment to Asset Based Loan and Security Agreement dated as of
July 31, 1999 and that certain Second Amendment to Asset Based Loan and Security
Agreement dated as of May 15, 2000 (collectively, the "Original Agreement");
WHEREAS, Borrower and Lenders have agreed to amend the Original
Agreement in order to modify certain terms and conditions contained in the
Original Agreement as more specifically described herein and subject to the
terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, Borrower and Lenders agree as follows:
SECTION 1. AMENDMENT TO ANNEXES AND EXHIBITS.
ANNEX 1-A to the Original Agreement sets forth each Lender's Revolving
Credit Commitment and Term Loan Commitment. ANNEX 1-A to the Original Agreement
is hereby amended by deleting such Annex in its entirety and substituting ANNEX
1-B in the form attached hereto and incorporated herein by reference.
SECTION 2. AMENDMENT TO DEFINITIONS.
(a) The definition of "Borrowing Base" appearing in Section 1.8 of the
Agreement shall be deleted in its entirety and the following shall be inserted
in lieu thereof:
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"1.8 BORROWING BASE shall mean the sum of (A) the
lesser of (x) sixty percent (60%) of the cost or
market value, whichever is lower, or (y) eighty-five
percent (85%) of the net recovery value as determined
by the most recent quarterly appraisal of Eligible
Inventory (as adjusted weekly for purchases and sales
and including Retail Inventory), PLUS (B) eighty-five
percent (85%) of the outstanding amount of Eligible
Accounts, PLUS (C) the amount of collected funds in
the Cash Collateral Account, MINUS (D) Reserves (as
defined in and calculated in accordance with Section
1.53 hereof)."
(b) The definition of "Debt Service Ratio" appearing in Section 1.13 of
the Agreement shall be deleted in its entirety and the following shall be
inserted in lieu thereof:
"1.13 DEBT SERVICE RATIO shall mean the ratio of (a)
the sum of (i) EBITDA MINUS (ii) cash taxes paid
MINUS (iii) capital expenditures to (b) the sum of
(i) Borrower's interest expense PLUS (ii) Borrower's
scheduled principal payments MINUS (iii) amortization
of costs and fees payable by Borrower in connection
with the transaction contemplated by this Agreement."
(c) The definition of "Default Rate" appearing in Section 1.14 of the
Agreement shall be deleted in its entirety and the following shall be inserted
in lieu thereof:
"1.14 DEFAULT RATE shall mean the rate of interest
which is three percent (3%) above the then applicable
rate under the Notes, or if there is no then
applicable rate, the default rate of interest shall
be a matter of interest equal to the Prime Rate plus
three percent (3%)."
(d) The definition of "Eligible Inventory" appearing in Section 1.18 of
the Agreement, subsection (k) of the Agreement shall be deleted in its entirety
and the following inserted in lieu thereof:
"(k) Which is fully prepaid, in transit Inventory not
yet received by Borrower UNLESS: (i) the period
during which such Inventory is in transit does not
exceed ninety (90) days; and (ii) (x) title to such
Inventory has passed to Borrower, and so long as such
Inventory is adequately insured to the reasonable
satisfaction of Agent and Agent is loss payee on such
insurance, with an aggregate value not in excess of
$5,000,000.00 at any one time (when taken together
with the Inventory described in subsection (y)
hereof), or (y) such Inventory is prepaid, in transit
but not yet received and Borrower has delivered a
letter of credit to Agent in respect of such
Inventory in form and
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substance reasonably satisfactory to Agent and
Borrower has insured such Inventory in accordance
with subsection (x) above, with an aggregate value
for such Inventory not in excess of $5,000,000.00 at
any one time (when taken together with the Inventory
described in subsection (x) hereof)."
(e) The definitions of "LIBOR Rate," "LIBOR Rate Loan," "Interest
Determination Date" and "Interest Period," each pertaining to the LIBOR pricing
option and appearing in Sections 1.25, 1.26, 1.35, 1.36 and 1.37 of the
Agreement, shall be eliminated in their entirety and the following language
shall be inserted in lieu thereof: "[Intentionally Omitted]," in each such
Section, respectively.
(f) The following shall be added to the end of the definition of
"Obligations" appearing in Section 1.43 of the Agreement:
"Without in any way limiting the generality of the
foregoing, "Obligations" shall include any and all
obligations of Borrower and/or Guarantor, or any one
or more of them, to Lenders, or any one or more of
them, pursuant to any credit card relationship,
Borrower, Guarantor and each of Lenders specifically
agreeing that in no event will it permit the
aggregate amount of such credit card obligations to
any Lender to exceed Two Hundred Seventy-Five
Thousand and 00/100 Dollars ($275,000.00)."
(g) The definition of "Reserve" appearing in Section 1.53 of the
Agreement shall be deleted in its entirety and the following shall be inserted
in lieu thereof:
"1.53 RESERVE shall mean that portion of the
Borrowing Base which is designated in the sole
discretion of Agent as a reserve for inventory
located on real property leased by Borrower and for
which a landlord waiver and consent agreement has not
been executed pursuant to Section 5.19 herein. As of
this date hereof until further written notice to
Borrower from Agent, the Reserve amount shall mean an
amount equal to the aggregate total of the base
rental payments due for each of the foregoing
locations for a period of two (2) months; provided,
however, that upon Borrower's request, Agent may
adjust the amount of the Reserve in the exercise of
its commercially reasonable discretion based upon
legal opinions issued in favor of Agent in respect of
a landlord's legal rights pertaining to any of
Borrower's Inventory located in a leased facility for
which no landlord waiver and consent agreement has
been executed."
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(h) The definition of "Retail Inventory" appearing in Section 1.54 of
the Agreement shall be deleted in its entirety and the following shall be
inserted in lieu thereof:
"1.54 RETAIL INVENTORY shall mean that portion of
Eligible Inventory which is located at any retail
location operated by Borrower. In addition to the
exclusions set forth in Section 1.18 hereof, the
aggregate value of Retail Inventory shall, for
purposes of determining the amount which can be
borrowed under the Revolving Loan, be reduced by (a)
any intercompany xxxx-up or profit margin, and (b) a
factor of two and one-half percent (2 1/2%) to
reserve for shrinkage and damaged or obsolete Retail
Inventory."
SECTION 3. AMENDMENT TO THE REVOLVING CREDIT FACILITY.
(a) Section 2.1(c) of the Agreement shall be deleted in its entirety
and the following shall be inserted in lieu thereof:
"(c) Advances under the Revolving Loan Note shall
be made pursuant to Borrower's written or
telephonic request therefor, given by
Borrower to Agent on the same Business Day of
a proposed Revolving Credit Borrowing,
stating the date of the requested borrowing,
the amount of the requested Advance and the
total amount to be borrowed. For all purposes
relating to Advances hereunder, Stores shall
be the agent of Borrower, and Agent shall not
be obligated to accept direction from any
other Borrower with respect to any Advance
until Agent shall have received written
notice to that effect. No written request for
an Advance shall become effective until
actually received by Agent. The Agent shall
give each Lender reasonably prompt notice by
telecopier or verbal notice not later than
12:00 noon (Cleveland, Ohio time) on the
Business Day immediately preceding the
requested date of the proposed Advance."
(b) Section 2.1(d) of the Agreement shall be deleted in its entirety
and the following shall be inserted in lieu thereof:
"(d) Borrower undertakes and agrees to pay to
Agent, for the benefit of Lenders, on the
first day of each calendar month interest on
the amount outstanding under such Lender's
Revolving Loan Note, at an annual rate based
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upon a year of three hundred sixty-five
(365) days, with respect to each Advance to
be determined as follows:
(i) From the date hereof through and
including July 31, 2001, a rate per
annum based on the Prime Rate plus one
percent (1%), and at all times
thereafter at a rate per annum based
upon the Prime Rate plus three percent
(3%).
(ii) The rate of interest on any Advance
will automatically and immediately
increase or decrease on the day of, and
by an amount equal to, each increase or
decrease in the Prime Rate with no
notice to Borrower.
(iii) Notwithstanding any provision in this
Amendment to the contrary, if an Event
of Default shall have occurred, the
unpaid principal and, to the extent
permitted by law, accrued interest
under the Revolving Loan Note shall
bear interest at the Default Rate until
the Event of Default shall have been
cured with the consent of Agent. Prior
to maturity, if any payment of
principal or interest is ten (10) or
more days past due, Borrower shall pay
a late fee of an amount equal to the
lesser of five percent (5%) of such
payment or Two Hundred Fifty Dollars
($250.00)."
SECTION 4. AMENDMENT TO THE LETTER OF CREDIT FACILITY.
(a) The number "Twenty Five Million Dollars ($25,000,000)"
appearing in Section 2.2(a)(x) of the Agreement shall be
deleted and the number "Twenty Million Dollars ($20,000,000)"
shall be inserted in lieu thereof.
(b) The last sentence appearing in Section 2.2(b) of the Agreement
shall be deleted in its entirety and the following shall be
inserted in lieu thereof:
"Notwithstanding anything to the contrary set forth
in this Amendment, in no event shall the maturity
date of any Letter of Credit issued by the Letter of
Credit Lender extend beyond December 31, 2001."
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SECTION 5. AMENDMENT TO THE TERM LOAN.
Section 2.3(d)(i) through (iv) shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
"(d) Borrower undertakes and agrees to pay to Agent
on the first day of each calendar month interest on
the principal amount outstanding under the Term Loan
Note at an annual interest rate of twenty-five
percent (25%) based upon a year of three hundred
sixty-five (365) days. Notwithstanding any provision
in this Amendment to the contrary, if an Event of
Default shall have occurred, the unpaid principal
and, to the extent permitted by law, accrued interest
under the Term Loan Note shall bear interest at the
Default Rate until the Event of Default shall have
been cured with the consent of Agent. Prior to
maturity, if any payment of principal or interest is
ten (10) or more days past due, Borrower shall pay a
late fee of an amount equal to the lesser of five
percent (5%) of such payment or Two Hundred Fifty
Dollars ($250.00)."
SECTION 6. AMENDMENTS TO APPLICATION OF PAYMENTS.
Section 2.6(a) of the Agreement shall be deleted in its entirety and
the following shall be inserted in lieu thereof:
"(a) APPLICATION OF PAYMENTS. The funds so
distributed to each Lender shall in each case be
applied by such Lender in accordance with the terms
of this Agreement. Prior to the occurrence and
continuation of an Event of Default, all funds
received hereunder shall be applied: (i) first, to
the payment of any accrued and unpaid interest and
fees, in that order on an invoice by invoice basis in
the order of their respective due dates, until paid
in full, (ii) second, to late charges until paid in
full, (iii) third, to Related Expenses until paid in
full, (iv) fourth, to the outstanding principal
amount of any Revolving Credit Advances in such order
as the Agent may choose in its sole discretion, (v)
fifth, to the extent there are not outstanding
Revolving Credit Advances, to the principal amount of
any Advance comprising any Term Borrowing which is
due on the next Repayment Date, (vi) sixth, to the
extent there are not outstanding Revolving Credit
Advances, to the outstanding principal amount of any
Advance comprising any Term Borrowing in the inverse
order of maturity or in such order as the Agent may
choose in its reasonable discretion and (vii) to any
other Obligations of Borrower hereunder. Upon the
occurrence and during the continuation of an
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Event of Default, each Lender shall apply any amounts
received by it in such manner and order as the Agent,
in its sole discretion, elects."
SECTION 7. AMENDMENT TO COLLATERAL REPORTING.
Section 5.4(d) of the Agreement shall be renumbered 5.4(e) and the
following shall be inserted in the Agreement as new Section 5.4(d):
"(d) Daily, a Borrowing Base Certificate in the form
of ANNEX 2 attached hereto and incorporated herein by
reference; provided, however, that Inventory shall be
adjusted on a weekly basis."
SECTION 8. AMENDMENT TO FINANCIAL COVENANTS.
Section 5.15 of the Agreement shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
"5.15 FINANCIAL COVENANTS. Maintain the following financial
covenants:
(a) Tangible Net Worth as follows: At all times equal
to or exceeding Forty-Five Million Dollars
($45,000,000.00) and increasing each calendar quarter
thereafter (on a cumulative basis) in the amount
equal to sixty-five percent (65%) of the net income,
after taxes, of Borrower, if positive. This covenant
shall be tested quarterly.
(b) [Intentionally deleted].
(c) A Debt Service Ratio at all times not less than
1.00 to 1.00. This covenant shall be tested on
February 2, 2002 and quarterly thereafter on a
rolling four (4) quarter basis.
(d) [Intentionally deleted].
(e) Achievement of plan as follows: (x) as of May 5,
2001, achieve financial performance that equals or
exceeds ninety-five percent (95%) of Borrower's
projected performance for the period ending May 5,
2001, as set forth in those certain monthly net
income projections dated May 25, 2001 for the twelve
(12) month period commencing February, 2001 and
ending February, 2002 and attached hereto as ANNEX 3
(as adjusted for fees and interest rate modifications
included in this Amendment, the "Projections"); and
(y) at all times
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after May 5, 2001, achieve and maintain financial
performance that equals or exceeds one hundred
percent (100%) of the Projections as determined at
the end of each fiscal quarter; it being specifically
agreed that for purposes of calculating such net
income projections and Borrower's achievement of the
Projections, extraordinary income events shall be
specifically excluded and extraordinary losses shall
be specifically included; provided, further, that
Borrower shall deliver updated Projections on or
before the end of each fiscal year for the following
fiscal year.
(f) Borrowing availability as follows: maintain
collateral availability of not less than ninety
percent (90%) of projected availability as set forth
in those certain collateral availability projections
attached hereto as ANNEX 4 (the "Availability
Projections"), such Availability Projections to be
tested monthly and to be updated on an annual basis
on or before the end of each fiscal year at all times
during the term of this Agreement in form and
substance satisfactory to Agent;
(g) Consummation and funding of a minimum investment
of $10,000,000.00 of subordinated capital into
Borrower upon terms and conditions acceptable to
Agent and Lenders (including, without limitation,
acceptable terms and conditions relating to
standstill and blockage rights) on or before
September 1, 2001, or consummation and funding of a
full refinancing of the Revolving Credit Facility
with another lending institution on or before
September 1, 2001."
SECTION 9. AMENDMENT TO MAINTENANCE OF AGENT ACCOUNTS.
Section 5.16 of the Agreement shall be deleted in its entirety and the
following shall be inserted in lieu of thereof:
5.16 MAINTENANCE OF AGENT ACCOUNTS. Except as
otherwise agreed from time to time, concentrate all
of its depository accounts with Agent, including,
without limitation, all demand deposit, lock box,
time deposit, concentration and zero balance accounts
except, however, certain accounts necessary for the
operation of its retail locations need not be
maintained at the Agent provided blocked account
agreements have been delivered by such financial
institutions executed in favor of Agent in form and
substance acceptable to Agent (each a "Blocked
Account Agreement"). Borrower shall provide Agent
with a power of attorney with respect to each such
account. Borrower further agrees to cause each
Guarantor to concentrate all of
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its depository accounts with Agent, including without
limitation, all demand deposit, lock box, time
deposit, concentration and zero balance accounts.
Borrower shall also cause each Guarantor to provide
Agent with a power of attorney with respect to each
such account." Borrower further acknowledges and
agrees that all collections and proceeds of the sale
of assets (including credit card collections) shall
be deposited in an account with Agent or an account
within another financial institution provided such
account is subject to a Blocked Account Agreement."
SECTION 10. AMENDMENT TO CAPITAL EXPENDITURE COVENANT.
Section 6.13 of the Agreement shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
"6.13 CAPITAL EXPENDITURES. Borrower shall not expend funds or
accrue expense for any machinery, equipment, real or personal
property or any other type of property including leasehold
improvements, whether through direct purchases and capitalized
lease obligations, in excess of aggregate amount not to exceed
fifty percent (50%) of EBITDA in any fiscal year, and (ii)
Seven Hundred Thousand Dollars ($700,000.00) to fixture and
equip each new retail location. The capital expense limits
contained herein are subject to the continued compliance by
Borrower (prior to and after giving effect to the expenditure)
with the covenants and obligations herein. Borrower shall be
permitted to carry-forward as an additional capital expense
allowance the amount of any unexpended portion of the capital
expense limitation from the immediately preceding calendar
year which had been designated for scheduled capital
expenditures during such calendar year."
SECTION 11. AMENDMENT TO SERVICE CHARGES.
Section 8 of the Agreement shall be deleted in its entirety and the
following shall be inserted in lieu thereof:
"SECTION 8. SERVICE CHARGES. In addition to the principal and
interest on the Loans and the reimbursement of expenses to
Agent pursuant to this Amendment, Borrower shall pay to (i)
Agent, for the benefit of Lenders, an annual facility fee of
three-eighths of one percent (3/8%) of the unused portion of
the Revolving Loan (determined at the end of each fiscal
quarter based upon the average daily balance outstanding
{which for this purpose shall include amounts reserved for
drawings under outstanding Letters of Credit} under the
Revolving Loan Note during the preceding quarter) payable
quarterly in arrears; (ii) Agent, for the benefit of the
Lenders, a negotiation
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commission of (x) two percent (2%) of the stated amount of any
Standby Letter of Credit issued pursuant hereto or (y) one
percent (1%) of the stated amount of any Commercial or
Documentary Letters of Credit issued pursuant hereto, payable
quarterly in arrears based upon the Letters of Credit
negotiated in the previous quarter, plus an issuance fee of
Sixty-Five Dollars ($65.00) for each such Letter of Credit;
provided further that (x) all such fees shall be payable in
full within ten (10) days of a billing from Agent in respect
thereof, and (y) a Letter of Credit Lender shall be permitted
to alter the Letter of Credit issuance fee stated herein at
such time as such Letter of Credit Lender is changing its fees
generally charged its customers, and shall give notice to
Borrower thereof, (iii) to Agent for its own account, a
collateral monitoring fee of $3,000.00 per month which shall
include the cost of quarterly audits but shall exclude out of
pocket expenses which shall be paid in addition to the
foregoing monthly fee, and (iv) the cost of quarterly net cost
liquidation value appraisals of Inventory by an appraiser
acceptable to Lenders."
SECTION 12. AMENDMENT TO EVENTS OF DEFAULT.
The first sentence of Section 10.1 of the Agreement shall be deleted in
its entirety and the following shall be inserted in lieu thereof:
"The following shall constitute Events of Default under this
Agreement, it being agreed that time is of the essence hereof:
(a) failure of the Borrower to pay when due any of the
Obligations; (b) failure of the Borrower and/or Guarantor to
observe or perform any covenant contained in this Agreement or
in any other Loan Document; (c) discovery that any
representation or warranty at any time made by the Borrower
and/or Guarantor to the Agent in this Agreement or in any Loan
Document (including documents and materials delivered to the
Agent for the purpose of obtaining the Loans) is, untrue or
misleading in any material respect at the time made; (d)
suspension by the Borrower and/or Guarantor of the operation
of its present business, or the insolvency of the Borrower
and/or Guarantor, or the inability of the Borrower and/or
Guarantor to meet its debts as they mature, or its admission
in writing to such effect, or its calling any meeting of all
or any of its creditors or committing any act of bankruptcy,
or the filing by or against the Borrower and/or Guarantor of
any petition under any provision of the Bankruptcy Act, as
amended, or the entry of any judgment or filing of any lien
against the Borrower and/or Guarantor; and (e) the occurrence
of any material adverse change in the condition of Borrower,
any Guarantor or any of the Collateral."
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SECTION 13. CONDITIONS PRECEDENT.
Borrower hereby acknowledges and agrees that the effectiveness of this
Amendment is subject to the receipt by Agent, on or prior to the date hereof, of
the following items and such other documents as Agent may reasonably request in
connection with this Amendment and the transactions contemplated hereby:
1. Receipt of all necessary consents and approvals to
the financing evidenced hereby by all appropriate and
interested parties.
2. Satisfactory completion of due diligence, including
collateral examinations, appraisals of Inventory and
UCC-11 lien searches.
3. Delivery of a certified Borrowing Base certificate
satisfactory to Agent and Lenders.
4. Delivery of this Amendment to Agent and Lenders and
each of the further agreements, documents,
certificates and instruments contemplated hereby.
5. Delivery of a Warrant Agreement executed by Mazel
Stores, Inc. in favor of Agent and Lenders in the
form of ANNEX 5 hereto.
6. Delivery of copies of all material documents and
agreements pertaining to or in respect of
transactions or events which would affect the capital
structure of Borrower, including, without limitation,
transactions or events resulting in changes in equity
ownership interests, conversion of debt to equity or
the granting and/or exercise of options or warrants
for the capital stock of Borrower (or any of them).
7. Delivery of a Perfection Certificate executed by
Borrower in favor of Agent in the form of ANNEX 6
hereto.
8. Delivery of legal opinions of counsel to Borrower and
Guarantors reasonably satisfactory in form and
substance to Agent and its counsel, including,
without limitation, with respect to the
enforceability and perfection of the security
interests.
9. Delivery of Certificates of Good Standing, Certified
Articles of Incorporation, By-Laws and Authorizing
Resolutions for Borrower and each Guarantor in form
and substance acceptable to Agent and Lenders.
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10. Receipt of all other information (financial or
otherwise) requested by Agent and Lenders in form and
substance reasonably satisfactory to Agent and
Lenders.
11. Verification that all financing statements and
notices as may be necessary for Agent to perfect its
security interest in the Collateral for itself and
for the benefit of Lenders and Agent have been filed
or given in order to assure its first-priority status
therein.
12. Verification of no material misstatements in or
omissions from the materials previously furnished to
Agent for its review. Agent must be satisfied that
any financial statements delivered to it fairly
present the business and financial condition of
Borrower and its subsidiaries and each Guarantor, and
that there has been no material adverse change in the
assets, business, financial condition, income or
prospects of Borrower, its subsidiaries or any
Guarantor since the date of the most recent financial
information delivered to Agent.
13. The absence of any litigation or other proceeding the
result of which might have a material adverse effect
on Borrower or any of its subsidiaries or any
Guarantor.
14. The absence of any default of any material contract
or agreement of Borrower or any of its subsidiaries
or any Guarantor.
15. The absence of any material adverse change in the
condition (financial or otherwise), operations,
assets, income and/or prospects of Borrower or any of
its subsidiaries or any Guarantor.
16. The absence of any material changes in governmental
regulations or policies affecting Borrower, any of
its subsidiaries, any Guarantor or Agent or Lenders.
SECTION 14. FEES, EXPENSES AND WARRANTS.
In consideration of the modifications set forth herein, Borrower shall
pay to Lenders at closing a Closing Fee in the amount of one-half of one percent
(0.50%) of the aggregate amount of the Commitments of Lenders identified on
ANNEX 1-B attached hereto. In addition, Borrower shall pay to Lenders on July 1,
2001 a fee of one-half of one percent (0.50%) of the aggregate amount of the
Commitments of Lenders set forth in ANNEX 1-B if Borrower has failed to obtain a
firm commitment to (A) refinance the Revolving Credit Facility on or before
August 1, 2001, or (B) fund an investment of subordinated capital in Borrower in
an amount not less than $10,000,000 upon
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terms and conditions satisfactory to Agent and Lenders. Effective July 1, 2001,
Borrower shall also issue warrants to Lenders at a nominal rate of ($0.01) per
warrant share equal to ten percent (10%) of the issued and outstanding shares of
Mazel Stores, Inc. (the "Warrants") which shall be exercisable by Lenders or
their assigns only if neither of the events described in Subsections (A) and (B)
above have occurred prior to or on September 1, 2001. The Warrants shall have a
ten (10) year maturity. Notwithstanding the foregoing, the Warrants may be
reduced by ten percent (10%) of the Warrant Shares (as defined in the Warrant
Agreement (as defined below)) for each $1,000,000 of subordinated capital raised
by Borrower on terms and conditions reasonably satisfactory to Agent and Lenders
(including without limitation satisfactory terms and conditions relating to
standstill and blockage rights) prior to September 1, 2001 if such amount is
equal to or less than $10,000,000. The specific terms and conditions pertaining
to the Warrants shall be evidenced by a Warrant Agreement to be executed by
Borrower at closing, with an effective date of July 1, 2001, in the form
attached hereto as ANNEX 5 (THE "WARRANT AGREEMENT"). In addition to the
foregoing, Borrower shall also pay all out-of-pocket fees and expenses incurred
by Agent and Lenders in connection with the preparation, negotiation, execution
and delivery of this Amendment and the agreements, documents and instruments
executed in connection therewith, including, without limitation, legal fees and
other costs and expenses of Agent and Lenders.
SECTION 15. REFERENCES.
On and after the Effective Date of this Amendment each reference in the
Original Agreement to "this Agreement", "hereunder", "hereof", "thereof" and
each reference to the Original Agreement in any of the other Loan Documents
shall mean and refer to the Original Agreement, as amended by this Amendment.
All references to exhibits, schedules or annexes in the Original Agreement shall
be deemed to refer to the exhibits, schedules or annexes attached hereto. The
Original Agreement, as amended by this Amendment, is and shall continue to be in
full force and effect and is hereby and in all respects ratified and confirmed.
Except as amended by this Amendment, all of the terms, conditions and provisions
of the Original Agreement are incorporated herein by reference and Borrower
agrees to be bound by all of the terms and conditions of the Original Agreement
as amended by this Amendment. The Loan Documents executed in connection with the
Original Agreement shall remain in full force and effect in all respects as if
the unpaid balance of the principal outstanding, together with interest accrued
thereon, had originally been payable and secured as provided for therein, as
amended from time to time and as modified by this Amendment. Nothing herein
shall affect or impair any rights and powers which Lenders may have under the
Original Agreement and any and all related Loan Documents. All capitalized terms
not otherwise defined herein shall have the meanings set forth with respect
thereto in the Original Agreement.
SECTION 16. APPLICABLE LAW.
This Amendment shall be deemed to be a contract under the laws of the
State of Ohio, and for all purposes shall be construed in accordance with the
laws of the State of Ohio.
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SECTION 17. COUNTERPARTS; CONFLICTS.
This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any one
of the parties hereby may execute this Amendment by signing any such
counterpart. In the event of any ambiguity of conflict between the terms,
conditions, or provisions of the Original Agreement and this Amendment, the
terms, conditions and provisions of this Amendment will control.
SECTION 18. EFFECTIVE DATE.
This Amendment shall be effective as of June _______, 2001 ("Effective
Date").
SECTION 19. ADDITIONAL PROVISIONS.
A. CONFIRMATION OF LOAN DOCUMENTS, SECURITY INTERESTS AND LIENS. Except
as expressly modified and amended by the terms of this Amendment, all of the
other terms and conditions of the Original Agreement and all other agreements,
documents and instruments executed in connection therewith or herewith
(collectively, the "Loan Documents") remain in full force and effect and are
hereby ratified, confirmed and approved. Borrower (i) reaffirms, ratifies, and
confirms that the security interests, and liens granted to Agent and Lenders in
the Collateral securing the Obligations (each of the foregoing capitalized terms
as defined in the Original Agreement) remain first and valid liens therein, (b)
acknowledges and agrees that any and all collateral security heretofore,
simultaneously herewith or hereafter granted to Agent and/or Lenders by Borrower
shall secure all of Borrower's present and future indebtedness (including the
Obligations) to Agent and Lenders, and (c) further represents and warrants that
as of the date hereof, there are no claims, set-offs or defenses to Agent and/or
Lenders' exercise of any rights or remedies available to Agent and each Lender
as a creditor in realizing upon the Collateral under the terms and conditions of
this Amendment, the Loan Documents and applicable law. Borrower has not assigned
any claim, set-off or defense to any person, individual, or entity. If there is
an express conflict between the terms of this Amendment and the terms of the
Loan Documents, the terms of this Amendment shall control.
B. RELATED EXPENSES. In addition to the fees and expenses required
under Section 8 of the Original Agreement, as amended hereby, Borrower also
agrees that Borrower's obligations and liabilities to Agent and Lenders shall
include all Related Expenses. For the purposes of this Amendment, "Related
Expenses" means any and all costs, liabilities, and expenses (including without
limitation, losses, damages, penalties, claims, actions, attorney's fees, legal
expenses, judgments, suits, and disbursements) incurred by, imposed upon, or
asserted against, Agent or Lenders in connection with the Obligations, the Loan
Documents or in any attempt by Agent or Lenders (subject to any limitations set
forth herein):
(a) to obtain, preserve, perfect, or enforce any security interest
evidenced by (i) this Amendment and the Loan Documents, or (ii)
any other pledge agreement, mortgage deed, hypothecation
agreement,
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15
guaranty, security agreement, assignment, or security
instrument executed or given by Borrower or any Guarantor to or
in favor of Agent and/or Lenders;
(b) to obtain payment, performance, and observance of any and all
of Borrower's obligations and liabilities to Agent and Lenders,
including, without limitation, the Obligations;
(c) to maintain, insure, audit, collect, preserve, repossess, and
dispose of any of the Collateral, including, without
limitation, costs and expenses for appraisals, assessments, and
audits of Borrower or the Collateral;
(d) incidental or related to (a) through (c) above, including,
without limitation, interest thereupon from the date incurred,
imposed, or asserted until paid at the rate payable as set
forth in the Revolving Credit Note, but in no event greater
than the highest rate permitted by law.
C. SALE OF THE COLLATERAL. Upon and after the occurrence of an Event of
Default, Agent shall be permitted to sell, lease or otherwise dispose of the
Collateral in accordance with the terms of the Loan Documents and applicable
law. Borrower and Guarantors hereby consent and agree to such sale, lease or
other disposition of the Collateral by Agent. Borrower and the Guarantors hereby
waive, renounce and forever relinquish all rights to notice prior to disposition
of the Collateral required by the Loan Documents, and all rights that are
waivable under Article 9 of the Uniform Commercial Code, as enacted in any
applicable state (and similar provisions of any applicable law of any other
jurisdiction), whether such rights are waivable before or after default,
including, without limitation, those rights with respect to the compulsory
disposition of collateral and with respect to redemption of collateral, and the
right to notice of any disposition of the Collateral. Borrower and Guarantors
further waive and forever relinquish any and every right of redemption,
including any statutory right of redemption, any equitable right of redemption,
and any other right of redemption that may exist. This paragraph and the
irrevocable waivers contained herein shall survive the termination of this
Amendment and the Loan Documents.
D. AGENT'S ACTIONS; COOPERATION. Upon surrender of the Collateral to
Agent, Agent will dispose of the Collateral in a commercially reasonable manner.
Borrower and the Guarantors agree to cooperate fully with Agent in facilitating
the disposition of the Collateral, including (i) granting Agent the right to
take possession of any premises operated by Borrower for purposes of changing
locks, securing the Collateral and conducting sale of the Collateral, and (ii)
providing any information and, upon Agent's request, executing any documents
necessary to place title to the Collateral or any portion thereof in Agent.
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16
E. COOPERATION OF BORROWER AND GUARANTORS. Borrower and Guarantors
shall take any and all actions of any kind or nature whatsoever, either directly
or indirectly, that are necessary to prevent Agent and each Lender from
suffering a loss with respect to the Obligations, the Collateral or of any
rights or remedies of Agent or any Lender with respect to the Obligations, the
Loan Documents or this Amendment in the Event of a Default. Borrower nor any
Guarantor shall enter into any agreements with any creditors other than Agent
that might impair Borrower's ability to perform under this Amendment or the Loan
Documents, it being specifically agreed by Borrower that Borrower shall promptly
provide Agent with copies of any and all such agreements that Borrower has
entered into before the date of this Amendment and any agreements with any other
creditor that may constitute an agreement that Borrower may enter into during
the term hereof.
F. REMEDIES. In addition to any and all remedies available under the
Loan Documents, Borrower and each Guarantor agrees that immediately upon the
occurrence of an Event of Default, and notwithstanding anything to the contrary
set forth herein, Agent shall have the rights and remedies set forth in the Loan
Documents and in any other document previously, now or hereafter executed and
delivered to Agent by Borrower in connection with the Loan Documents, the rights
and remedies contained in this Amendment, and all rights and remedies existing
under applicable law. All rights and remedies shall be cumulative and not
exclusive, and Agent shall have the right to exercise any and all other rights
and remedies which may be available. Any action by Agent against any property or
party shall not serve to release or discharge any other security, property or
person in connection with this transaction. In addition to any other rights and
remedies which may be available, Agent may, in its sole discretion: (i) enter,
with or without process of law, any premises where the Collateral or the books
and records of Borrower related thereto are or may be located, and without
charge or liability to Agent therefore, seize and remove the Collateral and
books and records in any way relating to the Collateral from such premises
and/or remain upon the premises and use the same (together with said books and
records) for the purpose of collecting, preparing and/or disposing of the
Collateral; (ii) sell or otherwise dispose of the Collateral at public or
private sale for cash or credit; (iii) in the event that Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Amendment or the Loan Documents, obtain temporary and permanent injunctive
relief without the necessity of proving irreparable injury, and without the
necessity of posting a bond or other security, it being expressly recognized and
agreed that no remedy at law will provide adequate relief to Lender under such
circumstances.
Upon the occurrence of an Event of Default and at all times thereafter,
Agent, without the necessity of obtaining any prior approval of any court, shall
be entitled to (a) terminate all advances or other extensions of credit; (b)
return any and all checks drawn against Borrower's account at Agent or any
Lender, upon payment of all checks issued prior to the occurrence of such Event
of Default; (c) apply all funds in Borrower's account at Agent, any Lender or
any other financial institution that has executed a Blocked Account Agreement in
favor of Agent to liability; and (d) exercise in respect of any Collateral it
may hold all rights and remedies of the secured creditor available to it under
applicable laws, and Agent shall also be entitled to exercise all rights and
remedies available to Agent as a creditor generally, including, without
limitation, all remedies available to Agent under the Loan Documents, as well as
rights and remedies available to Agent at
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law or in equity. All of its rights and remedies shall be cumulative. No failure
or delay on the part of Agent in exercising the power, right or remedy under any
of the Loan Documents shall operate as a waiver thereof, and no single or
partial release of any such power, right or remedy shall preclude any further
exercise thereof or the exercise of any other party, right or remedy.
No provision of or exercise of any rights under this Section shall
limit the right of any party to exercise self help remedies such as setoff,
collection of rents, to foreclose against any real or personal property
collateral, or to obtain provisional or ancillary remedies such as injunctive
relief or the appointment of a receiver from a court having jurisdiction before,
during or after the pendency of any arbitration. At Agent's option, foreclosure
under a deed of trust or mortgage may be accomplished either by exercise of
power of sale under the deed of trust or mortgage or by judicial foreclosure.
The institution and maintenance of an action for judicial relief or pursuit of
provisional ancillary remedies or exercise of self help remedies shall not
constitute a waiver of the controversy or claim to arbitration.
G. WAIVER AND RELEASE OF ALL CLAIMS AND DEFENSES. All defenses and
claims of every kind or nature, whether existing by virtue of state, federal, or
local law, by agreement or otherwise, against Agent or any Lender, the
Obligations, or the Collateral, whether previously or now existing or arising
out of or related to any transaction or dealings between Agent, Lenders and
Borrower or Agent, Lenders and any Guarantor or any of them, which Borrower or
Guarantors or any of them may have or may have made at any time up through and
including the date of this Amendment, are hereby forever waived, relinquished,
discharged and released against the Obligations, the Collateral, and Agent,
Lenders, their successors, assigns, directors, officers, shareholders, agents,
employees and attorneys, including, without limitation, any affirmative
defenses, counterclaims, setoffs, deductions or recoupments, by Borrower,
Guarantors and all of their representatives, successors, assigns, agents,
employees, officers, directors and heirs. All defenses and claims of every kind
or nature, whether existing by virtue of state, federal, or local law, by
agreement or otherwise, against Agent, whether previously or now existing or
arising out of or related to any transaction or dealings between Agent, Lenders
and Borrower or Agent, Lenders and any Guarantor or any of them, which any
Lender may have or may have made at any time up through and including the date
of this Amendment, are hereby forever waived, relinquished, discharged and
released against the Agent and its successors, assigns, directors, officers,
shareholders, agents, employees and attorneys, including, without limitation,
any affirmative defenses, counterclaims, setoffs, deductions or recoupments, by
any Lender and all of its representatives, successors, assigns, agents,
employees, officers, directors and heirs. By way of illustration but not
limitation, "Claims" includes all debts, demands, actions, causes of action,
suits, dues, sums of money, accounts, bonds, warranties, covenants, contracts,
controversies, promises, agreements or obligations of any kind, type or
description, and any other claim or demand of any nature whatsoever, whether
known or unknown, accrued or unaccrued, disputed or undisputed, liquidated or
contingent, in contract, tort, at law or in equity, any of them ever had,
claimed to have, now has, or shall or may have. Nothing contained in this
Amendment prevents enforcement of this release.
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H. INDEMNIFICATION. In addition to any other obligations of
indemnification, Borrower and Guarantors hereby jointly and severally assume
responsibility and liability for, and hereby hold harmless and indemnify Agent
and Lenders from and against, any and all, by way of example but without
limitation, liabilities, demands, obligations, injuries, costs, damages (direct,
indirect or consequential), awards, loss of interest, principal or any portion
of the Indebtedness, charges, expenses, payments of money and reasonable
attorneys, fees, incurred or suffered, directly or indirectly, by Agent or
Lenders or asserted against Agent or Lenders, by any person or entity
whatsoever, including Borrower and Guarantors or any of them, arising out of
this Amendment, or any document executed in connection herewith, or the
relationship between or among the parties hereto, or the exercise of any right
or remedy, including the realization, disposition or sale of the Collateral, or
any portion thereof, or the exercise of any right in connection therewith, for
which Agent or Lenders may be liable, for any reason whatsoever except for
Agents or Lenders own acts of gross negligence.
I. WAIVER OF CONTRIBUTION RIGHTS. Borrower and each Guarantor waives
any claim or other right which any of them may have or hereafter acquire against
one another or any other person that is primarily or contingently liable on the
Obligations, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification and any right to
participation in any claim or remedy of Agent or Lenders against Borrower, any
Guarantor or any collateral security therefore.
J. CONSENT TO RELIEF FROM AUTOMATIC STAY. Borrower and each Guarantor
hereby agrees that if they, individually or jointly, shall (i) file with any
bankruptcy court of competent jurisdiction or be the subject of any petition
under Title 11 of the United States Code, as amended, (ii) be the subject of any
order for relief issued under such Title 11 of the U.S. Code, as amended, (iii)
file or be the subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future federal or state act or law relating to bankruptcy,
insolvency, or other relief for debtors, (iv) seek consent to or acquiesce in
the appointment of any trustee, receiver, conservator, or liquidator, (v) be the
subject of any order, judgment or decree entered by any court of competent
jurisdiction approving a petition filed against Borrower or any of Guarantor for
any reorganization, arrangement, composition, readjustment, liquidation,
dissolutionment, or similar relief under any present or future federal or state
act or law relating to bankruptcy and insolvency, or relief for debtors, Agent
shall thereupon be entitled to relief from any automatic stay imposed by Section
362 of Title 11 of the United States Code, as amended, or from any other stay or
suspension of remedies imposed in any other manner with respect to the exercise
of the rights and remedies otherwise available to Agent under the terms of this
Amendment and the Loan Documents. Borrower agrees that upon the occurrence of an
Event of Default hereunder or under the Loan Documents Agent shall be entitled
to and Borrower hereby consents to the appointment of a receiver for the
Collateral under Ohio law or under any other applicable law in any other court
of appropriate jurisdiction.
K. INDULGENCE; MODIFICATIONS. No delay or failure of Agent or Lenders
to exercise any right, power or privilege hereunder shall affect such right,
power or privilege nor shall any single or
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partial exercise thereof preclude any further exercise thereof, nor the exercise
of any other right, power or privilege. The rights of Agent and Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
Lender would otherwise have except as modified herein. No amendment,
modification, supplement, termination, consent or waiver of or to any provision
of this Amendment or the Loan Documents, nor any consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by or on behalf of Agent.
L. POWER OF ATTORNEY. Borrower and Guarantors do hereby irrevocably
constitute and appoint Agent its or his true and lawful attorney-in-fact for it
or him, in its or his name, place and xxxxx, with full power of delegation and
substitution, to make, execute, deliver any and all instruments, papers and
documents, which shall become necessary, proper, convenient or desirable to
further evidence perfection of Agent's liens against, or to liquidate any of,
the Collateral, including, without limitation, the right to supply any necessary
endorsement for any instrument or in connection with the Warrant Agreement.
M. REVERSAL OF PAYMENTS. If Agent or any Lender receives any payments
or proceeds of Collateral which are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be paid to a trustee,
debtor-in-possession, receiver or any other party under any bankruptcy law,
common law, equitable cause or otherwise, then, to such extent, the obligations
or part thereof intended to be satisfied by such payments or proceeds shall be
reserved and continue as if such payments or proceeds had not been received by
Agent or such Lender.
SECTION 20. MISCELLANEOUS.
A. In consideration of this Amendment, Borrower hereby releases and
discharges Agent and Lenders and their shareholders, directors, officers,
employees, attorneys, affiliates and subsidiaries from any and all claims,
demands, liability and causes of action whatsoever, now known or unknown,
arising prior to the Effective Date of this Amendment out of or in any way
related to the extension or administration of the obligations, liabilities, and
indebtedness of Borrower to Agent and Lenders, the Original Agreement or any
mortgage or security interest related thereto or any other Loan Document.
B. Borrower, Agent and Lenders hereby agree to extend all liens and
security interests securing the obligations, liabilities, and indebtedness of
Borrower to Agent and Lenders, until said obligations, liabilities, and
indebtedness, as modified herein, and any and all related promissory notes have
been fully paid. The parties hereto further agree that this Amendment shall in
no manner affect or impair the liens and security interests evidenced by the
Original Agreement and/or any other instruments evidencing, securing or related
to the obligations, liabilities, and indebtedness. Borrower hereby acknowledges
that all liens and security interests securing the obligations, liabilities, and
indebtedness of Borrower to Lenders are valid and subsisting.
C. Borrower covenants and agrees (i) to pay the balance of any
principal, together with all accrued interest, as specified above in connection
with any promissory note executed and
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evidencing any indebtedness incurred in connection with the Original Agreement,
as modified by this Amendment, and (ii) to perform and observe covenants,
agreements, stipulations and conditions on its part to be performed hereunder or
under the Original Agreement as amended by this Agreement and all other related
Loan Documents executed in connection herewith or therewith.
D. Borrower hereby declares and certifies to Lenders that as of the
Effective Date of this Amendment, no Event of Default exists under the Original
Agreement, as amended by this Amendment, nor shall any event have occurred
which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default.
E. Borrower hereby represents and warrants to Agent and Lenders that
(a) Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officials executing this Amendment have been duly authorized
to execute and deliver the same and bind Borrower with respect to the provisions
hereof; (c) the execution and delivery hereof by Borrower and the performance
and observance by Borrower of the provisions hereof do not violate or conflict
with the organizational agreements of Borrower or any law applicable to Borrower
or result in a breach of any provisions of or constitute a default under any
other agreement, instrument or document binding upon or enforceable against
Borrower; and (d) this Amendment constitutes a valid and binding obligation upon
Borrower in every respect.
SECTION 21. MUTUAL WAIVER OF JURY TRIAL.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR LENDERS TO EXTEND CREDIT TO
BORROWER AND FOR BORROWER TO BORROW FROM LENDERS, AND AFTER HAVING THE
OPPORTUNITY TO CONSULT COUNSEL, BORROWER HEREBY EXPRESSLY WAIVES THE RIGHT TO
TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS AMENDMENT OR THE
OTHER LOAN DOCUMENTS OR ARISING IN ANY WAY FROM THE LOANS OR OTHER OBLIGATIONS
UNDER THE LOAN DOCUMENTS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers.
AGENT,
LETTER OF CREDIT LENDER, AND
LENDER:
THE PROVIDENT BANK
By:
--------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Vice President
LENDER:
NATIONAL CITY BANK LASALLE BANK
NATIONAL ASSOCIATION
By: By:
----------------------------- --------------------------------
Xxxxxxx Xxxxxxx Xxxxx X. Xxxxx
Vice President Assistant Vice President
BORROWER:
HIA TRADING ASSOCIATES, MAZEL STORES, INC.,
a New York general partnership a Delaware corporation
By: ODD-JOB ACQUISITION CORP., By:
a Delaware corporation ------------------------------
Name:
------------------------------
Its:
------------------------------
By:
-------------------------------
Name: ODD-JOB ACQUISITION CORP.,
------------------------------- a Delaware corporation
Its:
-------------------------------
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
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ANNEX 1-B
---------
COMMITMENTS OF LENDERS
----------------------
The Revolving Credit Commitment of each Lender for the period from and including
January 1st of each calendar year to and including April 30th of each calendar
year until the Revolving Credit Termination Date shall be as follows:
=================================================================================================
NAME OF REVOLVING CREDIT TERM LOAN RATABLE
LENDER COMMITMENT COMMITMENT PORTION
=================================================================================================
THE PROVIDENT BANK $25,000,000.00 $2,000,000.00 50%
-------------------------------------------------------------------------------------------------
LASALLE NATIONAL BANK $12,500,000.00 $1,000,000.00 25%
ASSOCIATION
-------------------------------------------------------------------------------------------------
NATIONAL CITY BANK $12,500,000.00 $1,000,000.00 25%
-------------------------------------------------------------------------------------------------
TOTAL $50,000,000.00 $4,000,000.00 100%
=================================================================================================
The Revolving Credit Commitment of each Lender for the period from and including
May 1st of each calendar year to and including December 31st of each calendar
year until the Revolving Credit Termination Date shall be as follows:
=================================================================================================
NAME OF REVOLVING CREDIT TERM LOAN RATABLE
LENDER COMMITMENT COMMITMENT PORTION
=================================================================================================
THE PROVIDENT BANK $30,000,000.00 $2,000,000.00 50%
-------------------------------------------------------------------------------------------------
LASALLE NATIONAL BANK $15,000,000.00 $1,000,000.00 25%
ASSOCIATION
-------------------------------------------------------------------------------------------------
NATIONAL CITY BANK $15,000,000.00 $1,000,000.00 25%
-------------------------------------------------------------------------------------------------
TOTAL $60,000,000.00 $4,000,000.00 100%
=================================================================================================
23
ANNEX 2
-------
FORM BORROWING BASE CERTIFICATE
-------------------------------
24
ANNEX 3
-------
PROJECTIONS
-----------
25
ANNEX 4
-------
AVAILABILITY PROJECTIONS
------------------------
26
ANNEX 5
-------
FORM OF WARRANT AGREEMENT
-------------------------
27
ANNEX 6
-------
FORM OF PERFECTION CERTIFICATE
------------------------------
