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SECOND AMENDMENT TO ASSET BASED LOAN AND SECURITY AGREEMENT
-----------------------------------------------------------
THIS SECOND AMENDMENT TO ASSET BASED LOAN AND SECURITY AGREEMENT, dated
as of May 15, 2000 (this "Second 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:
--------------------
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 (collectively, the "Original Agreement");
WHEREAS, Borrower and Lenders have agreed to amend the Original
Agreement in order to modify certain terms contained in the Original Agreement
in connection with Lenders providing Borrower a $10,000,000 seasonal increase in
the Revolving Credit facility, all upon the terms and conditions set forth in
this Second 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 to the Original Agreement sets forth each Lender's Revolving
Credit Commitment. At Borrower's request, Lenders have agreed to increase their
Revolving Credit Commitments on a seasonal basis in order to provide an
aggregate $10,000,000 increase in the Revolving Credit facility from May 1
through December 31 of each calendar year. ANNEX 1 to the Original Agreement is
hereby amended by deleting such Annex in its entirety and substituting ANNEX 1-A
attached hereto and incorporated herein. EXHIBIT C to the Original Agreement
(Form of Revolving Loan Promissory Note) is hereby amended by deleting such
Exhibit in its entirety and substituting the form attached hereto as EXHIBIT
C-1. Borrower hereby agrees that Borrower will, contemporaneously with the
execution of this Second Amendment, execute and deliver to Lenders Amended and
Restated Revolving Loan Promissory Notes in the form of EXHIBIT C-1
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attached hereto in the face amount of each Lender's Revolving Credit Commitment
to replace the Revolving Loan Promissory Notes currently held and owned by
Lenders.
SECTION 2. CONDITIONS PRECEDENT.
Borrower hereby understands and agrees that the effectiveness of this
Second Amendment is subject to the receipt by Lenders, on or prior to the date
hereof, of the Amended and Restated Revolving Loan Promissory Notes in the form
of EXHIBIT C attached hereto in the face amount of each Lender's Revolving
Credit Commitment and such other documents as Lenders may reasonably request in
connection with this Second Amendment and the transactions contemplated hereby.
SECTION 3. FEES AND EXPENSES.
In consideration of the modifications set forth herein, Borrower shall
pay all out-of-pocket fees and expenses incurred by Lenders in connection with
the preparation, negotiation, execution and delivery of this Second Amendment
and the agreements, documents and instruments executed in connection therewith,
including, without limitation, legal fees and other costs and expenses of the
Agent.
SECTION 4. REFERENCES.
On and after the Effective Date of this Second 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 Second
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 Second 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 Second 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 Second
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 Second 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 5. APPLICABLE LAW.
This Second 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 6. COUNTERPARTS; CONFLICTS.
This Second 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 Second 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 Second Amendment,
the terms, conditions and provisions of this Second Amendment will control.
SECTION 7. EFFECTIVE DATE.
This Second Amendment shall be effective as of May 15, 2000 ("Effective
Date").
SECTION 8. MISCELLANEOUS.
A. In consideration of this Second Amendment, Borrower hereby
releases and discharges 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 Second Amendment out of or
in any way related to the extension or administration of the
obligations, liabilities, and indebtedness of Borrower to
Lenders, the Original Agreement or any mortgage or security
interest related thereto.
B. Borrower and Lenders hereby agree to extend all liens and
security interests securing the obligations, liabilities, and
indebtedness of Borrower to 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 Second 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
evidencing any indebtedness incurred in connection with the
Original Agreement, as modified by this Second Amendment, and
(ii) to perform and observe covenants, agreements,
stipulations and conditions on its part to be performed
hereunder or under the Original Agreement and all other
related Loan Documents executed in connection herewith or
therewith.
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D. Borrower hereby declares and certifies to Lenders that as of
the Effective Date of this Second Amendment, except as
previously reported to Lenders in writing or except as waived
in connection herewith, no Event of Default exists under the
Original Agreement, as amended by this Second 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. Borrower hereby declares that Borrower has no set
offs, counterclaims, defenses or other causes of action
against Lenders arising out of the Original Agreement or any
related Loan Documents, and to the extent any such set offs,
counterclaims, defenses or other causes of action may exist,
whether known or unknown, such items are hereby waived by
Borrower.
E. Borrower hereby represents and warrants to Lenders that (a)
Borrower has the legal power and authority to execute and
deliver this Second Amendment; (b) the officials executing
this Second 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 Second Amendment constitutes a valid and binding
obligation upon Borrower in every respect.
SECTION 9. 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 SECOND AMENDMENT OR
THE OTHER LOAN DOCUMENTS OR ARISING IN ANY WAY FROM THE LOANS OR OTHER
OBLIGATIONS UNDER THE LOAN DOCUMENTS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers.
AGENT,
LETTER OF CREDIT LENDER, AND
LENDER:
THE PROVIDENT BANK
By: ------------------------------------
Xxxx X. Xxxxxxxxx, Xx.
Senior Vice President
LENDER:
NATIONAL CITY BANK LASALLE BANK
NATIONAL ASSOCIATION
By: ______________________________ By: ________________________________
Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Senior Vice President Its: 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.,
Its: ________________________________ a Delaware corporation
By: ________________________________
Name: ________________________________
Its: ________________________________
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ANNEX 1-A
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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 COMMITMENT RATABLE
LENDER COMMITMENT PORTION
================================================================================
THE PROVIDENT BANK $25,000,000.00 $ 5,000,000.00 50%
--------------------------------------------------------------------------------
LASALLE NATIONAL BANK $12,500,000.00 $ 2,500,000.00 25%
ASSOCIATION
--------------------------------------------------------------------------------
NATIONAL CITY BANK $12,500,000.00 $ 2,500,000.00 25%
--------------------------------------------------------------------------------
TOTAL $50,000,000.00 $10,000,000.00 100%
================================================================================
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 COMMITMENT RATABLE
LENDER COMMITMENT PORTION
================================================================================
THE PROVIDENT BANK $30,000,000.00 $ 5,000,000.00 50%
--------------------------------------------------------------------------------
LASALLE NATIONAL BANK $15,000,000.00 $ 2,500,000.00 25%
ASSOCIATION
--------------------------------------------------------------------------------
NATIONAL CITY BANK $15,000,000.00 $ 2,500,000.00 25%
--------------------------------------------------------------------------------
TOTAL $60,000,000.00 $10,000,000.00 100%
================================================================================
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EXHIBIT C-1
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FORM OF AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
-----------------------------------------------------------
NOTE NO. ___________
Cleveland, Ohio
$____,000,000.00 May ____, 2000
The undersigned (collectively, "Borrower"), for value received,
jointly and severally promise to pay to the order of THE PROVIDENT BANK (the
"Holder," which term shall include any subsequent holder hereof), at any of its
offices, the sum of _______________ Million and No/100 Dollars
($____,000,000.00), (the "Maximum Credit") or so much thereof as is loaned by
the Holder pursuant to the provisions hereof, together with interest until
maturity at the rate determined as set forth in Section 2.1 of the Loan
Agreement (as hereinafter defined). Interest shall be computed on the basis of a
year of three hundred sixty-five (365) days for the actual number of days
elapsed. Interest shall be due and payable on the first day of each month,
commencing on April 1, 1998, and at maturity. Principal shall be due and payable
in full on November 15, 2002 (the "Maturity Date").
This Revolving Loan Promissory Note (hereinafter, the "Note")
evidences a revolving credit. Subject to the conditions hereof and of the Loan
Agreement and until the Maturity Date, the Borrower may borrow and reborrow from
the Holder and the Holder shall lend and relend to the undersigned such amounts
not to exceed the Maximum Credit as the undersigned may at any time and from
time to time request in accordance with the terms of the Loan Agreement upon
satisfactory notice to the Holder. The proceeds of this Note shall be available
to the Borrower until the Maturity Date, unless extended pursuant to the terms
of the Loan Agreement.
This Note is one of the "Revolving Loan Notes" described and referred
to in that certain Asset Based Loan and Security Agreement of even date herewith
among the Borrower and Holder, among others (the "Loan Agreement"). The Loan
Agreement is incorporated by reference herein. This Note is entitled to the
benefits and is subject to the terms, conditions, and provisions of the Loan
Agreement. The Loan Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the occurrence and continuance of an
Event of Default (as defined therein). This Note is being executed and delivered
as an amendment and restatement of an existing Revolving Loan Promissory Note
executed by Borrower and dated March 10, 1998, and the execution and delivery of
this Note shall not constitute a novation thereof and shall not terminate or
otherwise affect the first lien and security interest of Holder in Borrower"s
property.
If any Event of Default has occurred and is continuing, then this
Note shall, at the option of its Holder, become immediately due and payable,
without demand or notice. The undersigned shall promptly provide such financial
information as the Holder shall reasonably request from time to time.
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As collateral security for the payment of the amounts from time to
time owing hereunder, Borrower and all indorsers hereby grants to the Holder a
security interest in the Collateral (as defined in the Loan Agreement) which
includes all accounts, securities and properties now or hereafter in the
possession of the Holder and in which the undersigned or any indorsers have any
interest. Upon this Note becoming due under any of its terms and provisions, and
not being fully paid and satisfied, the total sum then due hereunder may, at any
time and from time to time, be charged against any account or accounts
maintained with the Holder hereof by and of the Borrower, without notice to or
further consent from any of the Borrowers, and the Borrower and all indorsers
agree to be and remain jointly and severally liable for all remaining
indebtedness represented by this Note in excess of the amount or amounts so
applied.
If any payment of principal or interest is not paid when due
(including within any grace period provided for in the Loan Agreement), then the
Holder, at its option, may charge and collect, or add to the unpaid balance
hereof, a late charge as provided in Section 2 of the Loan Agreement . After an
Event of Default (as defined in the Loan Agreement) or maturity, whether at
stated maturity or by acceleration, interest shall be calculated at the Default
Rate (as defined in the Loan Agreement) until the Event of Default shall have
been cured with the consent of Holder.
The Borrower, all indorsers hereof, any other party hereto, and any
guarantor hereof (collectively "Obligors"), each (i) waive(s) presentment,
demand, notice of demand, protest, notice of protest and notice of dishonor and
any other notice required to be given by law in connection with the delivery,
acceptance, performance, default or enforcement of this Note, of any indorsement
or guaranty of this Note or of any document or instrument evidencing any
security for payment of this Note; and (ii) consent(s) to any and all delays,
extensions, renewals or other modifications of this Note or waivers of any term
hereof or release or discharge by the Holder of any of Obligors or release,
substitution or exchange of any security for the payment hereof or the failure
to act on the part of the Holder or any indulgence shown by the Holder, from
time to time and in one or more instances, (without notice to or further assent
from any of Obligors) and agree(s) that no such action, failure to act or
failure to exercise any right or remedy, on the part of the Holder shall in any
way affect or impair the obligations of any Obligors or be construed as a waiver
by the Holder of, or otherwise affect, any of the Holder's rights under this
Note, under any indorsement or guaranty of this Note or under any document or
instrument evidencing any security for payment of this Note. The Borrower and
all Obligors further agree to reimburse the Holder for all advances, charges,
costs and expenses, including reasonable attorneys' fees, incurred or paid in
the exercising any right, power or remedy conferred by this Note, or in the
enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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THE PROVISIONS OF THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
THE HOLDER TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO
CONSULT COUNSEL, THE BORROWER AND ALL OBLIGORS HEREBY EXPRESSLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS NOTE OR ARISING
IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT. THE BORROWER HEREBY DESIGNATES
ALL COURTS OF RECORD SITTING IN CLEVELAND, OHIO, BOTH STATE AND FEDERAL, AS
FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT
OF THIS NOTE, ITS MAKING, VALIDITY OR PERFORMANCE, MAY BE PROSECUTED AS TO ALL
PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION THE
BORROWER CONSENT(S) TO THE JURISDICTION AND VENUE OF SUCH COURTS.
ODD-JOB ACQUISITION CORP., MAZEL STORES, INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: ________________________
Name: _____________________________ Name: ________________________
Its: _____________________________ Its: ________________________
HIA TRADING ASSOCIATES,
a New York general partnership
By: ODD-JOB ACQUISITION CORP.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Its: _____________________________
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AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
---------------------------------------------------
NOTE NO. __________________
Cleveland, Ohio
$30,000,000.00 May 15, 2000
The undersigned (collectively, "Borrower"), for value received, jointly
and severally promise to pay to the order of THE PROVIDENT BANK (the "Holder,"
which term shall include any subsequent holder hereof), at any of its offices,
the sum of Thirty Million and No/100 Dollars ($30,000,000.00), (the "Maximum
Credit") or so much thereof as is loaned by the Holder pursuant to the
provisions hereof, together with interest until maturity at the rate determined
as set forth in Section 2.1 of the Loan Agreement (as hereinafter defined).
Interest shall be computed on the basis of a year of three hundred sixty-five
(365) days for the actual number of days elapsed. Interest shall be due and
payable on the first day of each month, commencing on April 1, 1998, and at
maturity. Principal shall be due and payable in full on November 15, 2002 (the
"Maturity Date").
This Revolving Loan Promissory Note (hereinafter, the "Note") evidences
a revolving credit. Subject to the conditions hereof and of the Loan Agreement
and until the Maturity Date, the Borrower may borrow and reborrow from the
Holder and the Holder shall lend and relend to the undersigned such amounts not
to exceed the Maximum Credit as the undersigned may at any time and from time to
time request in accordance with the terms of the Loan Agreement upon
satisfactory notice to the Holder. The proceeds of this Note shall be available
to the Borrower until the Maturity Date, unless extended pursuant to the terms
of the Loan Agreement.
This Note is one of the "Revolving Loan Notes" described and referred to
in that certain Asset Based Loan and Security Agreement of even date herewith
among the Borrower and Holder, among others (the "Loan Agreement"). The Loan
Agreement is incorporated by reference herein. This Note is entitled to the
benefits and is subject to the terms, conditions, and provisions of the Loan
Agreement. The Loan Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the occurrence and continuance of an
Event of Default (as defined therein). This Note is being executed and delivered
as an amendment and restatement of an existing Revolving Loan Promissory Note
executed by Borrower and dated March 10, 1998, and the execution and delivery of
this Note shall not constitute a novation thereof and shall not terminate or
otherwise affect the first lien and security interest of Holder in Borrower"s
property.
If any Event of Default has occurred and is continuing, then this Note
shall, at the option of its Holder, become immediately due and payable, without
demand or notice. The undersigned shall promptly provide such financial
information as the Holder shall reasonably request from time to time.
As collateral security for the payment of the amounts from time to time
owing hereunder, Borrower and all indorsers hereby grants to the Holder a
security interest in the Collateral (as
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defined in the Loan Agreement) which includes all accounts, securities and
properties now or hereafter in the possession of the Holder and in which the
undersigned or any indorsers have any interest. Upon this Note becoming due
under any of its terms and provisions, and not being fully paid and satisfied,
the total sum then due hereunder may, at any time and from time to time, be
charged against any account or accounts maintained with the Holder hereof by and
of the Borrower, without notice to or further consent from any of the Borrowers,
and the Borrower and all indorsers agree to be and remain jointly and severally
liable for all remaining indebtedness represented by this Note in excess of the
amount or amounts so applied.
If any payment of principal or interest is not paid when due (including
within any grace period provided for in the Loan Agreement), then the Holder, at
its option, may charge and collect, or add to the unpaid balance hereof, a late
charge as provided in Section 2 of the Loan Agreement . After an Event of
Default (as defined in the Loan Agreement) or maturity, whether at stated
maturity or by acceleration, interest shall be calculated at the Default Rate
(as defined in the Loan Agreement) until the Event of Default shall have been
cured with the consent of Holder.
The Borrower, all indorsers hereof, any other party hereto, and any
guarantor hereof (collectively "Obligors"), each (i) waive(s) presentment,
demand, notice of demand, protest, notice of protest and notice of dishonor and
any other notice required to be given by law in connection with the delivery,
acceptance, performance, default or enforcement of this Note, of any indorsement
or guaranty of this Note or of any document or instrument evidencing any
security for payment of this Note; and (ii) consent(s) to any and all delays,
extensions, renewals or other modifications of this Note or waivers of any term
hereof or release or discharge by the Holder of any of Obligors or release,
substitution or exchange of any security for the payment hereof or the failure
to act on the part of the Holder or any indulgence shown by the Holder, from
time to time and in one or more instances, (without notice to or further assent
from any of Obligors) and agree(s) that no such action, failure to act or
failure to exercise any right or remedy, on the part of the Holder shall in any
way affect or impair the obligations of any Obligors or be construed as a waiver
by the Holder of, or otherwise affect, any of the Holder's rights under this
Note, under any indorsement or guaranty of this Note or under any document or
instrument evidencing any security for payment of this Note. The Borrower and
all Obligors further agree to reimburse the Holder for all advances, charges,
costs and expenses, including reasonable attorneys' fees, incurred or paid in
the exercising any right, power or remedy conferred by this Note, or in the
enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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THE PROVISIONS OF THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
THE HOLDER TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO
CONSULT COUNSEL, THE BORROWER AND ALL OBLIGORS HEREBY EXPRESSLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS NOTE OR ARISING
IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT. THE BORROWER HEREBY DESIGNATES
ALL COURTS OF RECORD SITTING IN CLEVELAND, OHIO, BOTH STATE AND FEDERAL, AS
FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT
OF THIS NOTE, ITS MAKING, VALIDITY OR PERFORMANCE, MAY BE PROSECUTED AS TO ALL
PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION THE
BORROWER CONSENT(S) TO THE JURISDICTION AND VENUE OF SUCH COURTS.
ODD-JOB ACQUISITION CORP., MAZEL STORES, INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: ______________________
Name: _____________________________ Name: ______________________
Its: _____________________________ Its: ______________________
HIA TRADING ASSOCIATES,
a New York general partnership
By: ODD-JOB ACQUISITION CORP.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Its: _____________________________
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AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
---------------------------------------------------
NOTE NO. _____________
Cleveland, Ohio
$15,000,000.00 May 15, 2000
The undersigned (collectively, "Borrower"), for value received, jointly
and severally promise to pay to the order of NATIONAL CITY BANK (the "Holder,"
which term shall include any subsequent holder hereof), at any of its offices,
the sum of Fifteen Million and No/100 Dollars ($15,000,000.00), (the "Maximum
Credit") or so much thereof as is loaned by the Holder pursuant to the
provisions hereof, together with interest until maturity at the rate determined
as set forth in Section 2.1 of the Loan Agreement (as hereinafter defined).
Interest shall be computed on the basis of a year of three hundred sixty-five
(365) days for the actual number of days elapsed. Interest shall be due and
payable on the first day of each month, commencing on April 1, 1998, and at
maturity. Principal shall be due and payable in full on November 15, 2002 (the
"Maturity Date").
This Revolving Loan Promissory Note (hereinafter, the "Note") evidences
a revolving credit. Subject to the conditions hereof and of the Loan Agreement
and until the Maturity Date, the Borrower may borrow and reborrow from the
Holder and the Holder shall lend and relend to the undersigned such amounts not
to exceed the Maximum Credit as the undersigned may at any time and from time to
time request in accordance with the terms of the Loan Agreement upon
satisfactory notice to the Holder. The proceeds of this Note shall be available
to the Borrower until the Maturity Date, unless extended pursuant to the terms
of the Loan Agreement.
This Note is one of the "Revolving Loan Notes" described and referred to
in that certain Asset Based Loan and Security Agreement of even date herewith
among the Borrower and Holder, among others (the "Loan Agreement"). The Loan
Agreement is incorporated by reference herein. This Note is entitled to the
benefits and is subject to the terms, conditions, and provisions of the Loan
Agreement. The Loan Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the occurrence and continuance of an
Event of Default (as defined therein). This Note is being executed and delivered
as an amendment and restatement of an existing Revolving Loan Promissory Note
executed by Borrower and dated March 10, 1998, and the execution and delivery of
this Note shall not constitute a novation thereof and shall not terminate or
otherwise affect the first lien and security interest of Holder in Borrower"s
property.
If any Event of Default has occurred and is continuing, then this Note
shall, at the option of its Holder, become immediately due and payable, without
demand or notice. The undersigned shall promptly provide such financial
information as the Holder shall reasonably request from time to time.
As collateral security for the payment of the amounts from time to time
owing hereunder, Borrower and all indorsers hereby grants to the Holder a
security interest in the Collateral (as
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defined in the Loan Agreement) which includes all accounts, securities and
properties now or hereafter in the possession of the Holder and in which the
undersigned or any indorsers have any interest. Upon this Note becoming due
under any of its terms and provisions, and not being fully paid and satisfied,
the total sum then due hereunder may, at any time and from time to time, be
charged against any account or accounts maintained with the Holder hereof by and
of the Borrower, without notice to or further consent from any of the Borrowers,
and the Borrower and all indorsers agree to be and remain jointly and severally
liable for all remaining indebtedness represented by this Note in excess of the
amount or amounts so applied.
If any payment of principal or interest is not paid when due (including
within any grace period provided for in the Loan Agreement), then the Holder, at
its option, may charge and collect, or add to the unpaid balance hereof, a late
charge as provided in Section 2 of the Loan Agreement . After an Event of
Default (as defined in the Loan Agreement) or maturity, whether at stated
maturity or by acceleration, interest shall be calculated at the Default Rate
(as defined in the Loan Agreement) until the Event of Default shall have been
cured with the consent of Holder.
The Borrower, all indorsers hereof, any other party hereto, and any
guarantor hereof (collectively "Obligors"), each (i) waive(s) presentment,
demand, notice of demand, protest, notice of protest and notice of dishonor and
any other notice required to be given by law in connection with the delivery,
acceptance, performance, default or enforcement of this Note, of any indorsement
or guaranty of this Note or of any document or instrument evidencing any
security for payment of this Note; and (ii) consent(s) to any and all delays,
extensions, renewals or other modifications of this Note or waivers of any term
hereof or release or discharge by the Holder of any of Obligors or release,
substitution or exchange of any security for the payment hereof or the failure
to act on the part of the Holder or any indulgence shown by the Holder, from
time to time and in one or more instances, (without notice to or further assent
from any of Obligors) and agree(s) that no such action, failure to act or
failure to exercise any right or remedy, on the part of the Holder shall in any
way affect or impair the obligations of any Obligors or be construed as a waiver
by the Holder of, or otherwise affect, any of the Holder's rights under this
Note, under any indorsement or guaranty of this Note or under any document or
instrument evidencing any security for payment of this Note. The Borrower and
all Obligors further agree to reimburse the Holder for all advances, charges,
costs and expenses, including reasonable attorneys' fees, incurred or paid in
the exercising any right, power or remedy conferred by this Note, or in the
enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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15
THE PROVISIONS OF THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
THE HOLDER TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO
CONSULT COUNSEL, THE BORROWER AND ALL OBLIGORS HEREBY EXPRESSLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS NOTE OR ARISING
IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT. THE BORROWER HEREBY DESIGNATES
ALL COURTS OF RECORD SITTING IN CLEVELAND, OHIO, BOTH STATE AND FEDERAL, AS
FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT
OF THIS NOTE, ITS MAKING, VALIDITY OR PERFORMANCE, MAY BE PROSECUTED AS TO ALL
PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION THE
BORROWER CONSENT(S) TO THE JURISDICTION AND VENUE OF SUCH COURTS.
ODD-JOB ACQUISITION CORP., MAZEL STORES, INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: __________________________
Name: _____________________________ Name: __________________________
Its: _____________________________ Its: __________________________
HIA TRADING ASSOCIATES,
a New York general partnership
By: ODD-JOB ACQUISITION CORP.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Its: _____________________________
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16
AMENDED AND RESTATED REVOLVING LOAN PROMISSORY NOTE
---------------------------------------------------
NOTE NO. __________________
Cleveland, Ohio
$15,000,000.00 May 15, 2000
The undersigned (collectively, "Borrower"), for value received, jointly
and severally promise to pay to the order of LASALLE BANK NATIONAL ASSOCIATION
(the "Holder," which term shall include any subsequent holder hereof), at any of
its offices, the sum of Fifteen Million and No/100 Dollars ($15,000,000.00),
(the "Maximum Credit") or so much thereof as is loaned by the Holder pursuant to
the provisions hereof, together with interest until maturity at the rate
determined as set forth in Section 2.1 of the Loan Agreement (as hereinafter
defined). Interest shall be computed on the basis of a year of three hundred
sixty-five (365) days for the actual number of days elapsed. Interest shall be
due and payable on the first day of each month, commencing on April 1, 1998, and
at maturity. Principal shall be due and payable in full on November 15, 2002
(the "Maturity Date").
This Revolving Loan Promissory Note (hereinafter, the "Note") evidences
a revolving credit. Subject to the conditions hereof and of the Loan Agreement
and until the Maturity Date, the Borrower may borrow and reborrow from the
Holder and the Holder shall lend and relend to the undersigned such amounts not
to exceed the Maximum Credit as the undersigned may at any time and from time to
time request in accordance with the terms of the Loan Agreement upon
satisfactory notice to the Holder. The proceeds of this Note shall be available
to the Borrower until the Maturity Date, unless extended pursuant to the terms
of the Loan Agreement.
This Note is one of the "Revolving Loan Notes" described and referred to
in that certain Asset Based Loan and Security Agreement of even date herewith
among the Borrower and Holder, among others (the "Loan Agreement"). The Loan
Agreement is incorporated by reference herein. This Note is entitled to the
benefits and is subject to the terms, conditions, and provisions of the Loan
Agreement. The Loan Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the occurrence and continuance of an
Event of Default (as defined therein). This Note is being executed and delivered
as an amendment and restatement of an existing Revolving Loan Promissory Note
executed by Borrower and dated March 10, 1998, and the execution and delivery of
this Note shall not constitute a novation thereof and shall not terminate or
otherwise affect the first lien and security interest of Holder in Borrower"s
property.
If any Event of Default has occurred and is continuing, then this Note
shall, at the option of its Holder, become immediately due and payable, without
demand or notice. The undersigned shall promptly provide such financial
information as the Holder shall reasonably request from time to time.
As collateral security for the payment of the amounts from time to time
owing hereunder, Borrower and all indorsers hereby grants to the Holder a
security interest in the Collateral (as
17
defined in the Loan Agreement) which includes all accounts, securities and
properties now or hereafter in the possession of the Holder and in which the
undersigned or any indorsers have any interest. Upon this Note becoming due
under any of its terms and provisions, and not being fully paid and satisfied,
the total sum then due hereunder may, at any time and from time to time, be
charged against any account or accounts maintained with the Holder hereof by and
of the Borrower, without notice to or further consent from any of the Borrowers,
and the Borrower and all indorsers agree to be and remain jointly and severally
liable for all remaining indebtedness represented by this Note in excess of the
amount or amounts so applied.
If any payment of principal or interest is not paid when due (including
within any grace period provided for in the Loan Agreement), then the Holder, at
its option, may charge and collect, or add to the unpaid balance hereof, a late
charge as provided in Section 2 of the Loan Agreement . After an Event of
Default (as defined in the Loan Agreement) or maturity, whether at stated
maturity or by acceleration, interest shall be calculated at the Default Rate
(as defined in the Loan Agreement) until the Event of Default shall have been
cured with the consent of Holder.
The Borrower, all indorsers hereof, any other party hereto, and any
guarantor hereof (collectively "Obligors"), each (i) waive(s) presentment,
demand, notice of demand, protest, notice of protest and notice of dishonor and
any other notice required to be given by law in connection with the delivery,
acceptance, performance, default or enforcement of this Note, of any indorsement
or guaranty of this Note or of any document or instrument evidencing any
security for payment of this Note; and (ii) consent(s) to any and all delays,
extensions, renewals or other modifications of this Note or waivers of any term
hereof or release or discharge by the Holder of any of Obligors or release,
substitution or exchange of any security for the payment hereof or the failure
to act on the part of the Holder or any indulgence shown by the Holder, from
time to time and in one or more instances, (without notice to or further assent
from any of Obligors) and agree(s) that no such action, failure to act or
failure to exercise any right or remedy, on the part of the Holder shall in any
way affect or impair the obligations of any Obligors or be construed as a waiver
by the Holder of, or otherwise affect, any of the Holder's rights under this
Note, under any indorsement or guaranty of this Note or under any document or
instrument evidencing any security for payment of this Note. The Borrower and
all Obligors further agree to reimburse the Holder for all advances, charges,
costs and expenses, including reasonable attorneys' fees, incurred or paid in
the exercising any right, power or remedy conferred by this Note, or in the
enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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18
THE PROVISIONS OF THIS NOTE SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
THE HOLDER TO EXTEND CREDIT TO BORROWER, AND AFTER HAVING THE OPPORTUNITY TO
CONSULT COUNSEL, THE BORROWER AND ALL OBLIGORS HEREBY EXPRESSLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO THIS NOTE OR ARISING
IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT. THE BORROWER HEREBY DESIGNATES
ALL COURTS OF RECORD SITTING IN CLEVELAND, OHIO, BOTH STATE AND FEDERAL, AS
FORUMS WHERE ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING FROM OR OUT
OF THIS NOTE, ITS MAKING, VALIDITY OR PERFORMANCE, MAY BE PROSECUTED AS TO ALL
PARTIES, THEIR SUCCESSORS AND ASSIGNS, AND BY THE FOREGOING DESIGNATION THE
BORROWER CONSENT(S) TO THE JURISDICTION AND VENUE OF SUCH COURTS.
ODD-JOB ACQUISITION CORP., MAZEL STORES, INC.,
a Delaware corporation a Delaware corporation
By: _____________________________ By: ___________________________
Name: _____________________________ Name: ___________________________
Its: _____________________________ Its: ___________________________
HIA TRADING ASSOCIATES,
a New York general partnership
By: ODD-JOB ACQUISITION CORP.,
a Delaware corporation
By: _____________________________
Name: _____________________________
Its: _____________________________
-3-
