Exhibit 10.40
Loan and Security Agreement
between
Telular Corporation,
as Lender
and
DNIC Brokerage Company,
as Borrower
Dated as of October 9, 2001
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT, dated as of October 9, 2001 (this
"Loan Agreement"), between Telular Corporation, a Delaware corporation (the
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"Lender"), and DNIC Brokerage Company, an Illinois corporation (the "Borrower"),
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confirms that for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I.
THE LOANS
1.1. The Loans. The Lender agrees, upon the terms and subject to the
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conditions hereinafter set forth, to make loans (the "Loans") to the Borrower
from time to time in an aggregate principal amount at any time outstanding not
to exceed (i) on and after the date hereof until April 1, 2002, Seven Hundred
Fifty Thousand Dollars ($750,000), (ii) on and after April 2, 2002, until April
1, 2003, Five Hundred Thousand Dollars ($500,000) and (iii) on and after April
2, 2003, until April 1, 2004, Two Hundred Fifty Thousand Dollars ($250,000). To
request Loans hereunder, the Borrower shall present the Lender with a
certificate in the form of Exhibit A hereto, (a) setting forth the aggregate
amount of the requested Loans and (b) confirming compliance with Section 4.2
hereof. The Lender shall make the requested Loans available to the Borrower no
later than the fifth business day following Lender's receipt of such
certificate. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow the Loans.
1.2. The Note; Grant of Security Interest. The Loans will be evidenced
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by a promissory note (the "Note") substantially in the form of Exhibit A annexed
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hereto. The Loans shall be secured by a security interest in, and with recourse
for the payment of principal limited to,
the Borrower's rights, whether now existing or hereafter at any time acquired or
created by the Borrower, in and to (a) the first Two Hundred Fifty Thousand
Dollars ($250,000) of royalty income received by the Lender from U.S. Patents
(as defined below) under all Licensing Agreements (as defined below) and any
renewal or replacement thereof having no greater scope and (b) any and all
proceeds of the foregoing in any form (collectively, the "Collateral"). As used
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in this Loan Agreement, (i) "U.S. Patents" means those U.S. patents listed on
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Schedule 2.1(a) of that certain Amended and Restated Limited Partnership
Agreement dated as of June 1, 1992 (the "Agreement of Limited Partnership"), of
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Telular Group L.P., to which the Lender is successor-in-interest, and (ii)
"Licensing Agreements" means those licensing agreements listed on Schedule
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2.1(b) of the Agreement of Limited Partnership. In consideration of the Loans
and as security for the prompt repayment, performance and observance of any and
all of the Borrower's obligations under this Loan Agreement and the Note
(collectively, the "Obligations"), the Borrower hereby assigns and pledges to
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the Lender for its benefit, and hereby grants to the Lender for its benefit, a
security interest in the Collateral.
1.3. Interest. The Loans shall bear interest at the prime rate of
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interest as published in the Wall Street Journal as in effect from time to time.
Accrued interest on the Loans shall be payable in arrears semi-annually, on
April 1 and October 1 of each year until April 1, 2004. All interest hereunder
shall be computed on the basis of a year of 360 days, and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
1.4. Mandatory Prepayments. On each of (i) Xxxxx 0, 0000, (xx) April
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1, 2003 and (iii) April 1, 2004, the amount of Two Hundred Fifty Thousand
Dollars ($250,000) (or, if less, the outstanding balance of the Loans) shall
become immediately due and payable as a
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mandatory prepayment of the principal amount of the Loans. The Lender may apply
payments otherwise due to the Borrower out of the Collateral to satisfy the
obligation of the Borrower pursuant to this Section 1.4. Amounts repaid pursuant
to this Section 1.4 may not be reborrowed. Any repayment pursuant to this
Section shall be applied first to the unpaid principal of the Loans, and then to
interest accrued but unpaid through the date of prepayment.
1.5. Optional Prepayment. The Borrower may prepay the Loans at any
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time, in whole or in part, without premium or penalty. Each such prepayment
shall be applied first to interest accrued but unpaid through the date of
prepayment, and then to the unpaid principal amount of the Loans.
ARTICLE II.
PURPOSE OF LOANS AND USE OF PROCEEDS
2.1. Purpose of the Loans. The Lender and the Borrower agree that the
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exclusive purpose of the Loans is to fund the Borrower's purchase of shares of
stock of Telular Corporation in open-market transactions (the "Stock
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Purchases").
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2.2. Use of the Proceeds. The Borrower covenants to use the proceeds
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of the Loans solely for the purposes described in Section 2.1 of this Loan
Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
3.1. Organization and Powers. The Borrower is a corporation duly
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organized and validly existing under the laws of the State of Illinois. The
Borrower has the corporate power and authority to own its assets and properties,
to carry on its activities as now conducted and to execute, deliver and perform
this Loan Agreement and the Note and to borrow hereunder.
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3.2. Authorization; Binding Agreement. The execution, delivery and
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performance by the Borrower of this Loan Agreement and the Note and the
borrowing hereunder have been duly authorized by all necessary corporate action.
This Loan Agreement and the Note constitute the legal, valid and binding
obligations of the Borrower enforceable in each case against the Borrower in
accordance with their respective terms, except as enforceability may be limited
by laws governing bankruptcy, insolvency and similar matters or by general
principles of equity.
3.3. Litigation. There is no judgment, action, suit or claim, or
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legal, administrative or arbitral proceedings or investigation, pending or
threatened, against or involving the Borrower, before any federal, state or
local court or arbitration tribunal or governmental or administrative body or
agency, nor is there any basis for any judgment, action, suit or claim, or
legal, administrative or arbitral proceeding or investigation, that might
reasonably be expected, to a material extent, to impair the ability of the
Borrower to perform its obligations under this Loan Agreement or the Note, to
prevent the use of the proceeds of the Loans as contemplated by this Loan
Agreement or to adversely affect the Lender's interest in the Collateral.
3.4. No Conflicts. The execution, delivery and performance by the
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Borrower of this Loan Agreement and the Note and the borrowing hereunder will
not violate, conflict with, result in a breach of or constitute a default under
any provision of law, any order, rule or regulation of any court or governmental
or regulatory body, the charter or bylaws of the Borrower or any indenture,
agreement, instrument or deed of trust to which the Borrower is a party or by
which the Borrower or its assets or properties are bound. The Borrower is not a
party to any indenture, agreement or instrument or subject to any restriction
(including, without limitation, any restriction set forth in its charter or
bylaws) which materially adversely affects the ability of the Borrower to
perform its obligations under this Loan Agreement or the Note or to
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use the proceeds of the Loans as contemplated by this Loan Agreement. The
Borrower is not in default under any indenture, agreement or instrument for
borrowed money, and is not in default under any indenture, agreement or
instrument which if in default might reasonably be expected, to a material
extent, to impair the ability of the Borrower to perform its obligations under
this Loan Agreement or the Note, to prevent the use of the proceeds as
contemplated by this Loan Agreement or to adversely affect the Lender's interest
in the Collateral.
3.5. Consents and Actions. No consent of any other person and no
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consent, approval or authorization of, or declaration or filing with, any
governmental or administrative body or agency on the part of the Borrower and no
other action of any type on the part of the Borrower is required for the valid
execution, delivery and performance by the Borrower of this Agreement or the
Note, the borrowing hereunder, the grant of the security interest herein or the
perfection or maintenance of the security interest created hereby as a first
priority security interest, except for the filing of financing and continuation
statements necessary to perfect security interests created by the Loan
Agreement.
3.6. No Default. The Borrower is in compliance with all of the terms
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and provisions set forth in this Loan Agreement on its part to be observed or
performed, and no Event of Default specified in Article VI or any event which
upon notice or lapse of time or both would constitute any such Event of Default,
has occurred and is continuing or would result from the consummation of the
Closing, including, without limitation, the Borrower's receipt of the proceeds
of the Loans.
3.7. Collateral. This Agreement creates a valid and perfected first
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priority security interest in the Collateral securing the Obligations. The
Borrower is the legal and
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beneficial owner of the Collateral free and clear of any lien, security interest
or other charge or encumbrance, except for the security interest created by this
Loan Agreement.
ARTICLE IV.
CONDITIONS OF LENDING
The obligation of the Lender to make any Loans is subject to the
following conditions precedent:
4.1. Loans Documents. This Loan Agreement and the Note shall have been
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duly executed and delivered to the Lender and shall be in full force and effect.
4.2. Representations and Warranties. The representations and
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warranties set forth in Article III of this Loan Agreement shall be true and
correct on and as of such date with the same effect as though such
representations and warranties had been made on and as of such date.
ARTICLE V.
COVENANTS OF THE BORROWER
The Borrower covenants and agrees that so long as this Loan Agreement
shall remain in effect or the Note shall be unpaid, unless the Lender shall
otherwise consent in writing, the Borrower covenants to the Lender as follows:
5.1. Use of Proceeds. The Borrower will use the proceeds of the Loans
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solely and exclusively to fund Stock Purchases.
5.2. Existence and Properties; Change of Name or Principal Offices.
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The Borrower will do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its existence. The Borrower will comply in all
material respects with all laws and regulations applicable to it, obtain and
maintain in full force and effect all material authorizations,
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consents, approvals, exemptions, franchises, permits and licenses of, and
filings with, governmental or administrative bodies or agencies which, if not
complied with, obtained, maintained or filed, as the case may be, would be
reasonably anticipated to have a material, adverse effect on the Borrower's
ability to perform its obligations under this Loan Agreement or the Note, the
Borrower's use of the proceeds of the Loans as contemplated by this Loan
Agreement or on the Lender's interest in the Collateral. The Borrower will not
voluntarily or involuntarily change its identity or corporate name or change the
location of its principal offices, unless the Borrower shall have first given
the Lender written notice thereof and shall have executed and caused to be filed
and/or delivered to the Lender any financing statements or other documents
reasonably required by the Lender in connection with the Collateral.
5.3. Notification of Default under Loans. The Borrower will notify the
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Lender in writing of any event or circumstance which constitutes (or, with
notice or lapse of time or both, would constitute) an Event of Default hereunder
promptly after the Borrower obtains knowledge or information of such event or
circumstance.
5.4. Books and Records/ Inspections and Audits. The Borrower will
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maintain books of record and account in which full, true and correct entries are
made of all Stock Purchases and, upon the reasonable request of the Lender upon
reasonable notice, make such records available for inspection and audit by the
Lender and/or its accountants.
5.5. Further Actions. The Borrower will, promptly upon reasonable
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request by the Lender, procure or execute and deliver any document, give any
notices, execute and file any financing statements or other documents, all in
form and substance reasonably satisfactory to the Lender, and take any other
actions that are necessary or, in the reasonable opinion of the Lender,
desirable to perfect or continue the perfection and priority of the security
interest in the Collateral
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created herein, to protect the Collateral against the rights, claims, or
interests of third persons or to effect the purposes of this Agreement, and will
pay all costs incurred in connection therewith. The Borrower shall take such
steps as are reasonably necessary to preserve its rights in the Collateral and
defend it against claims by third parties that are adverse to the interests of
the Lender in the Collateral.
5.6. No Further Encumbrances. Without the prior written consent of the
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Lender, the Borrower will not in any way encumber or create or permit to exist
any lien, security interest, charge or encumbrance on or other interest in the
Collateral except for the lien created by this Loan Agreement, and the Borrower
will not sell, transfer, assign, exchange or otherwise dispose of the
Collateral.
5.7. Securities Laws. The Borrower will comply with (i) the Securities
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Exchange Act of 1934, as amended, and the regulations issued pursuant thereto,
including without limitation Rule 10b-18, and (ii) the Securities Act of 1933,
as amended, and the regulations issued pursuant thereto, in each case in
connection with all Stock Purchases and all subsequent resales of securities
acquired in Stock Purchases.
ARTICLE VI.
DEFAULTS
6.1. Events of Default. The following events shall constitute Events
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of Default under this Loan Agreement:
(a) the Borrower fails to pay the interest on the Note when due and
payable and such failure continues unremedied for thirty (30)
days after receipt of notice from Lender of such non-payment;
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(b) any representation or warranty made in writing by or on behalf of
the Borrower in, or pursuant to, this Loan Agreement shall have
been incorrect in any material respect on the date as of when
made and Borrower fails to cure such error within thirty (30)
days following notice by the Lender to the Borrower of such
error;
(c) the Borrower fails to observe or perform of any covenant,
condition or agreement contained in this Loan Agreement and such
default has not been cured within thirty (30) days after the
Borrower has notice of such failure;
(d) the Borrower (A) ceases operations; (B) applies for or consents
to the appointment of a custodian, receiver, trustee or
liquidator for it or for all or a substantial part of its assets
or properties; (C) admits in writing its inability to pay its
debts as they become due; (D) makes an assignment for the benefit
of creditors; or (E) files a petition commencing a voluntary case
under any chapter of the Bankruptcy Code, 11 U.S.C. Section 101
et seq. or a petition seeking for itself any reorganization or
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arrangement with creditors or to take advantage of any
bankruptcy, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding
under any such law, or corporate action shall be taken by the
Borrower for the purpose of effecting any of the foregoing; or
(e) an involuntary case or other proceeding is commenced against the
Borrower seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or
other similar law now or
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hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary
case or other proceeding remains undismissed and unstayed for a
period of sixty (60) days; or an order for relief is entered
against the Borrower under the Federal bankruptcy laws as now or
hereafter in effect.
6.2. Automatic Acceleration on the Occurrence of Certain Events of
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Default. On the occurrence of an Event of Default referred to in Section 6.1(d)
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or (e), the unpaid principal amount of, and the accrued interest on, the Note,
together with all other amounts payable by the Borrower hereunder, shall become
automatically immediately due and payable without presentment, demand, protest
or other formalities of any kind, all of which are hereby expressly waived by
the Borrower, and the Lender may exercise it rights described in Sections 6.3
(b) and (c).
6.3. Remedies on the Occurrence of Certain Events of Default. On the
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occurrence of an Event of Default referred to in Sections 6.1(a) through (c),
the Lender may exercise all or any of the following remedies:
(a) The Lender may, by written notice to the Borrower, declare the
Note forthwith to be due and payable, whether or not the
indebtedness evidenced by the Note is otherwise due and payable
and whether or not Lender has initiated any other action for the
enforcement of the Note, and whereupon the Note shall become due
and payable pursuant to the terms thereof, as to principal,
interest and any other amounts payable;
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(b) The Lender may protect and enforce its rights by appropriate
judicial proceedings, including, in appropriate cases, an award
of specific performance or other equitable remedy in aid of the
exercise of power granted in or pursuant to this Loan Agreement;
and
(c) The Lender may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise
available to it, all the rights, powers and remedies of a secured
party upon default under the Uniform Commercial Code in effect in
the State of Illinois at such time.
ARTICLE VII.
MISCELLANEOUS
7.1. Entire Agreement. This Loan Agreement and the Exhibits annexed
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hereto, together with the Note, constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior
agreements or understandings, written or oral, in respect thereof, and shall not
be amended or modified in any fashion except by instrument in writing signed by
the Lender and the Borrower. The Exhibits annexed hereto are incorporated in and
made a part of this Loan Agreement.
7.2. Notices. Any notice or communication given pursuant to this Loan
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Agreement by either of the parties to the other party shall be in writing and
delivered by hand, sent by telecopy (if confirmed by telephone with the
addressee), mailed by postage-prepaid first class mail, or delivered by
overnight courier addressed as follows:
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If to the Borrower, to:
DNIC Brokerage Company
0000 Xxxxxxx Xxxxxx #000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xx Xxxxxx
Fax: (000) 000-0000
If to the Lender, to:
Telular Corporation
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
or to such other address or addresses as hereafter shall be furnished as
provided in this Section 7.2 by either of the parties to the other party. Except
as otherwise specified in this Loan Agreement, all notices and other
communications will be deemed to have been duly given: (i) on the date of
delivery, if delivered by hand or by overnight courier; (ii) on the date
confirmed by telephone, if sent by facsimile; and (iii) three (3) business days
after the date of mailing, if duly transmitted by mail.
7.3. Waiver; Remedies. No delay on the part of either party hereto in
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exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of either party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
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7.4. Assignment. The Borrower may not assign all or any portion of its
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rights or obligations under this Loan Agreement without the prior written
consent of the Lender or its successors or assigns. The Lender may assign all or
any portion of its rights and obligations under this Loan Agreement with the
prior written consent of the Borrower or its successors or assigns, which
consent shall not be unreasonably withheld.
7.5. No Partnership, Joint Venture or Similar Relationship Between
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Borrower and Lender. Nothing contained herein is intended or shall be construed
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to form a partnership, joint venture or similar relationship between the
Borrower and the Lender in connection with the carrying out of the purposes
described in Article II hereof, or any other activity in which the Borrower is
or becomes involved. The relationship between the Borrower and the Lender is one
of debtor and creditor.
7.6. Indemnification. The Borrower shall and hereby does indemnify,
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defend and hold harmless the Lender and its trustees, directors, officers,
agents, employees, counsel and other professionals, contractors, subcontractors,
licenses, invitees, successors and assigns (collectively, the "Indemnitees")
from and against any and all losses, claims, damages, liabilities, penalties,
demands, actions, deficiencies, judgments, costs and expenses incurred by any
Indemnitee arising from claims of third parties and out of or in any way related
to (i) this Loan Agreement or the transactions contemplated hereby, (ii) any
actual or proposed use by the Borrower of the proceeds of the Loans, or (iii)
the Lender's entering into this Loan Agreement, including, without limitation,
reasonable amounts paid in settlement, court costs and the fee and disbursements
of counsel or other professionals incurred in connection with any litigation,
investigation, claim or proceeding, except to the extent that it is finally
judicially determined to have resulted from the gross negligence or willful
misconduct of the Indemnitee. If and to the
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extent that the obligations of the Borrower under this Section 7.6 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of the obligations that is
permissible under applicable law. The Borrower's obligations hereunder shall
survive any termination of this Loan Agreement and the payment in full of the
Loans, and are in addition to, and not in substitution of, any other of its
obligations set forth in this Loan Agreement.
7.7. Captions. All Article and Section titles or captions contained
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in this Loan Agreement are for convenience only and shall not be deemed a part
of this Loan Agreement.
7.8. Variation of Pronouns. All pronouns and all variations thereof
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shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
7.9. Counterparts. This Loan Agreement may be executed in
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counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement, and either party hereto may
execute this Loan Agreement by signing one or more counterparts hereof.
7.10. Governing Law. This Loan Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Illinois, without
giving effect to principles of conflicts of laws.
7.11. Lender Right to Make Required Filings. The Borrower hereby
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authorizes the Lender to file such financing statements and continuation
statements and make such other filings relating to the Collateral without the
signature of the Borrower as are necessary or appropriate in connection with the
perfection or continuation of perfection of the Lender's security interest in
the Collateral.
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IN WITNESS WHEREOF, the parties have duly executed this Loan Agreement as
of the day and year first above written.
DNIC BROKERAGE COMPANY
By:________________________
Name:
Title:
TELULAR CORPORATION
By:________________________
Name:
Title:
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EXHIBIT A
BORROWING CERTIFICATE
The undersigned hereby certifies, in accordance with Section 1.1 of
that certain Loan and Security Agreement, dated as of October 9, 2001 (the "Loan
Agreement"), among the Borrower and the Lender, that:
(a) The Borrower seeks Loans in the aggregate principal amount of
$__________; and
(b) The representations and warranties set forth in Article III of the
Loan Agreement are true and correct as of the date hereof.
Capitalized terms used and not otherwise defined in this certificate
shall have the meanings set forth in the Loan Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the ___ day of ____________, 20__.
DNIC BROKERAGE COMPANY
By:______________________________
Name:
Title:
EXHIBIT B
October 9, 2001
PROMISSORY NOTE
Up to $750,000
For value received, DNIC BROKERAGE COMPANY (the "Borrower"), promises
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to pay to the order of the TELULAR CORPORATION (the "Lender") (i) at each time
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on which a payment of principal is due in respect of Loans pursuant to the Loan
Agreement referred to below, the unpaid principal amount of the Loans of the
Lender due and payable to the Lender at such time, as provided in the Loan
Agreement, and (ii) on April 1, 2004, the aggregate unpaid principal amount of
the Loans of the Lender. The Borrower also promises to pay interest on the
unpaid principal amount of each such Loans on the dates and at the rate or rates
provided for in the Loan Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in immediately available
funds at the office of the Lender, 000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx.
The Loans made by the Lender and all repayments of the principal of
such Loans shall be recorded by the Lender and, prior to any transfer hereof,
appropriate notations to evidence the foregoing information with respect to the
Loans then outstanding shall be endorsed by the Lender on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Lender to make any such recordation or
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endorsement shall not affect the obligations of the Borrower hereunder or under
the Loan Agreement.
The Loans made by the Lender pursuant to the Loan Agreement are
secured by a security interest in, and with recourse for the payment of
principal limited to, the Collateral.
The Borrower hereby waives diligence, presentment, demand, protest or
notice of any kind in connection with this note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF ILLINOIS.
This note is the promissory note referred to in Section 1.2 of the
Loan Agreement dated as of October 9, 2001, among the Borrower and the Lender
(as the same may be amended from time to time, the "Loan Agreement"). Terms used
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herein and not otherwise defined herein shall have the meanings set forth in the
Loan Agreement. Reference is made to the Loan Agreement for provisions for the
mandatory and optional prepayment hereof and the acceleration of the maturity
hereof.
DNIC BROKERAGE COMPANY
By:______________________________
Name:
Title:
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SCHEDULE OF TERM LOANS AND PAYMENTS OF PRINCIPAL
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Amount of Unpaid
Amount of Principal Principal Notations
Date Class of Loans Repaid Balance Made by
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Loans
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