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EXHIBIT 10.34
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is entered into as of the 30th day
of April, 1996, by and among: (i) 000 XXXXX XXXXXX, XXX, a Massachusetts limited
liability company (the "Borrower"), with a principal place of business at 00
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000; (ii) XXXXXXX X. XXXXXXX,
individually, with a primary residence at 0 Xxxxxxxxx Xxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Xx. Xxxxxxx"); (iii) XXXXXXX X. XXXXX, individually, with
a primary residence at 00 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Xx. Xxxxx," and together with Xx. Xxxxxxx, the
"Guarantors," and each a "Guarantor"); and (iv) CYRK, INC., a Delaware
corporation (the "Lender"), with a place of business at 0 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000. (The Borrower and the Guarantors are sometimes collectively
referred to herein as the "Obligors"). Capitalized terms used herein but not
defined shall have the meanings specified in the Mortgage (defined below).
WITNESSETH:
RECITALS:
A. The Borrower has executed and delivered to the Lender simultaneously
herewith a certain Promissory Note dated April 30, 1996 payable to the order of
the Lender in the original principal amount of $3,500,000 (as amended in writing
from time to time, the "Note"). The maturity date of the Note is April 30, 1997.
The indebtedness evidenced by the Note and related loan and security documents
is referred to herein as the "Loan."
B. Repayment of the Note is secured by, among other things, a first
priority Mortgage and Security Agreement (the "Mortgage"), related first
priority Assignment of Leases and Rents (the "Assignment") and UCC-1 Financing
Statements (the "Financing Statements"), each of even date herewith granted by
the Borrower to the Lender, delivered simultaneously herewith, relating to the
premises, improvements and related appurtenances known as 000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx (as more fully described in the Mortgage,
the "Property").
C. Repayment of the Loan is fully guaranteed by separate unlimited
Guaranties of each of the Guarantors, dated as of the date hereof and delivered
simultaneously herewith, all as more fully described below (the "Guaranties").
The Guarantors' obligations under the Guaranties are secured by a certain Pledge
and Assignment Agreement of the Guarantors to the Lender of even date herewith
relating to the Guarantors' interests in the Borrower (the "Pledge Agreement").
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(The Note, Mortgage, Assignment, Financing Statements, Guaranties, the
Pledge Agreement, this Agreement and the other Closing Documents (defined
below), each as amended in writing from time to time, are collectively referred
to herein as the "Loan Documents").
FOR GOOD AND VALUABLE CONSIDERATION the receipt and sufficiency of which
is hereby acknowledged, and in order to induce the Lender to make the Loan and
enter into this transaction, the Obligors hereby agree with the Lender as
follows:
I. AUTHORITY; PLACE OF BUSINESS; ETC.
1.1 Authority. Each Obligor hereby warrants and represents to the
Lender that:
(a) The execution, delivery and performance of this Agreement,
the Loan Documents and all other documents, certificates, agreements and
instruments delivered by such Obligor in connection herewith (all of the
foregoing, collectively, the "Closing Documents") have been duly and validly
authorized by all requisite action;
(b) All consents and approvals which are necessary for the
authorization, binding effect, performance and enforceability of this Agreement
and the other Closing Documents against the Obligors have been obtained and are
in full force and effect;
(c) The execution, delivery and performance of this Agreement
and the other Closing Documents by the Obligors did not and do not constitute
and will not result in a violation of or a conflict with, any law, regulation,
court order or other commitment or restriction, contractual or otherwise,
applicable to the Obligors, or to any assets of the Obligors; and
(d) This Agreement and the other Closing Documents constitute
the valid, binding and enforceable obligations of the Obligors, enforceable
against the Obligors in accordance with their respective terms.
1.2 Principal Place of Business.
The Borrower warrants and represents to the Lender that its
principal place of business and chief executive office, and the location of its
books and records, is as of the date hereof, and shall continue to be during the
term of this Loan, 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
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II. GENERAL.
2.1 Further Advances. The Loan proceeds shall be advanced in two
phases. At the closing hereof, subject to the Obligors compliance with all
applicable conditions and requirements, the Borrower has requested, and the
Lender shall advance, the sum of $3,220,000 to consummate the acquisition of the
Property for a purchase price of $3,200,000, and to satisfy related costs and
expenses. Thereafter, provided no Event of Default (or any event which with the
passage of time or the giving of notice would constitute an Event of Default)
shall have occurred, the remaining balance of the Loan shall be advanced to
satisfy additional costs and expenses related to the Property, reasonably
approved by the Lender.
2.2 Security Documents. Simultaneously with the execution and
delivery of this Agreement, the Borrower has executed and delivered to the
Lender certain security documents to further secure the Note, including without
limitation, the Mortgage, Assignment and Financing Statements relating to the
Property. The Obligors hereby covenant and agree that whether or not such
instruments are recorded, the Mortgage, Assignment and Financing Statements are
intended to, and shall, be a first priority lien on the Property, and
immediately effective, fully binding and operative documents, absolutely
delivered to the Lender, not in escrow. If Lender has not previously done so,
Lender shall be entitled to record such security documents even after the
occurrence of any Event of Default hereunder.
2.3 Lease. The parties acknowledge that there is an existing lease
(the "Existing Lease") dated April 17, 1986 relating to the Property (notice of
which has been filed with the Essex South Registry District of the Land Court as
Document No. 56693), the tenant's interest thereunder having been absolutely
assigned to the Lender pursuant to an Assignment of Lessee's Interest in Lease
dated June [ ], 1995 (the "Lease Assignment"). When such Existing Lease expires,
or is terminated, or Hasbro, Inc. fails to perform its obligations under the
Lease Assignment, and in the Lender's opinion such failure will not be duly
rectified (the earlier of which shall be defined herein as the "Lease
Termination Date"), the Obligors hereby agree to use their best efforts to
obtain a written termination of the Existing Lease from Hasbro, Inc., and to
enter into a new lease, effective immediately between Borrower, as landlord, and
Lender, as tenant, for a rental not to exceed $3.60 per square foot, on a triple
net basis, and containing a right of offset in favor of Lender for any unpaid
amounts under the Loan, otherwise in accordance with the terms and conditions
specified in that certain "Letter of Intent" dated as of April 30, 1996 between
Borrower and Lender.
2.4 Refinancing. The Obligors covenant and agree to promptly and
diligently seek permanent financing (the "Permanent
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Financing") to repay the Loan in full when due, and shall provide to Lender
copies of their applications, term sheets, commitment letters and related
materials. The Obligors acknowledge that the Lender has made no commitment to
extend or renew the Loan or any agreement to release collateral prior to full
repayment of the Loan.
III. COVENANTS. Without derogating from or limiting any
covenant or other term or provision in the Mortgage or any other
Loan Document, the Obligors hereby agree as follows, for so long
as the Loan remains outstanding:
3.1 Property.
(a) The Obligors shall not, directly or indirectly, permit or
suffer to be created or to remain, and shall discharge or promptly cause to be
discharged, any mortgage, lien, attachment, lis pendens or other encumbrance
charge or restriction on, or pledge or lease of, the Property or any part
thereof or interest therein, other than the Loan Documents;
(b) The Obligors shall not, directly or indirectly, convey,
sell, assign, transfer, lease, or dispose of, whether voluntarily or
involuntarily, all or any part of the Property or any legal or beneficial
interest in the Property;
(c) The Obligors shall not, directly or indirectly, convey,
sell, assign, transfer, lease or dispose of, whether voluntarily or
involuntarily, including the grant of any security interest in, any ownership
interest in the Borrower, or in any beneficiary or member in the Borrower, or in
any other entity which holds any legal or beneficial interest in the Property;
(d) The Obligors shall not enter into any lease of the
Property (except with Lender) or engage in any construction or alteration of the
Property without the prior written consent of Lender. Without limiting the
foregoing, the Obligors shall not take any action in connection with the
Property which would materially adversely affect the value, saleability or
financeability of the Property;
(e) The Obligors shall comply with all notification and
other requirements under M.G.L. Ch. 21E and related regulations and laws
applicable to the Property, and shall provide, simultaneously therewith, copies
of all notices and correspondence to the Lender;
(f) The Obligors shall diligently pursue to completion the
remedy of a certain title defect relating to the absence of a M.G.L. Chapter 91
License, subject to the terms of a certain escrow agreement between Borrower and
Bank of Nova
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Scotia, and shall provide simultaneously therewith copies of any correspondence
in connection therewith to the Lender.
IV. Put and Call. In consideration of the Loan, the Obligors further
agree with the Lender as follows:
4.1 Put. Provided no Event of Default (or occurrence which with the
passage of time or the giving of notice shall constitute an Event of Default)
has occurred, the Borrower shall have the right, but only after the Lease
Termination Date and prior to the earlier of: (a) the maturity of the Loan or
(b) any binding commitment for permanent financing of the Property, to elect to
convey to the Lender (or, at Lender's election, Lender's nominee), the Property,
in each case free and clear of any and all encumbrances (other than those of
record on the date hereof and any notice of environmental matters relating to
any environmental condition existing on the date hereof) (the "Put Rights"), in
full satisfaction of the Obligors' liability under the Loan and the instruments
evidencing and/or securing the Loan. Such conveyance shall be consummated no
later than 10 days from Borrower's written notice to Lender of such election,
and pursuant to documents and affidavits in form and content satisfactory to
Lender, including, without limitation, a title examination and lien search
confirming the absence of encumbrances. The Put Rights shall not be assignable.
4.2 Call. At any time prior to the earlier of (a) the maturity of
the Loan, or (b) the "Financing Election Date" defined below after which the
Borrower actually consummates the refinancing transaction pursuant to the
applicable commitment letter and repays the Loan in full, the Lender shall have
the right to elect to receive a conveyance to the Lender (or, at Lender's
election, Lender's nominee) of the Property, and the Borrower shall so convey
the Property free and clear of any and all encumbrances (other than those of
record on the date hereof and any notice of environmental matters relating to
any environmental condition existing on the date hereof) (the "Call Rights") in
full satisfaction of the Obligors' liability under the Loan and the instruments
evidencing and/or securing the Loan. The Borrower shall make such conveyance of
the Property no later than 10 days from the Lender's written notice to Borrower
of such election, pursuant to documents and affidavits in form and content
satisfactory to Lender, including, without limitation, a title examination and
lien search confirming the absence of encumbrances. If Lender elects to exercise
its Call Rights, but the Obligors cannot duly convey the Property to the Lender
(or Lender's nominee) free and clear of any and all encumbrances in accordance
with the above provisions, the Obligors shall be obligated to use their diligent
efforts to remove and/or remedy any noncompliance with the above requirements.
If Obligors are unsuccessful, the Lender shall have the right, at its sole
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election, to require conveyance of the Property, and the Borrower shall so
convey the Property despite the Obligors' failure to conform with the
requirements herein. In such event, the Lender shall be entitled to receive
conveyance of the Property, but the Obligors' credit against the Loan balance
shall be reduced by the amount of such non-complying encumbrances on the
Property, and the Obligors shall continue to have liability for such remaining
Loan balance. (For example, if the Lender exercises its Call Rights hereunder,
but the Property has been encumbered by an attachment against the Borrower in
the amount of $10,000, the Lender, at its option, shall be entitled nevertheless
to a conveyance of the Property, and shall release the Obligors from liability
under the Loan to the extent of the then outstanding Loan amount less $10,000,
and the Obligors shall remain liable for such balance.) If the amount of any
such non-complying encumbrance is not quantifiable by its express terms, then
each of the Lender and the Borrower shall obtain an appraisal of property by an
appraiser who is a member of the American Institute of Real Estate Appraisers
each of which shall specify the diminution in value to the Property which
results from such encumbrance. If the appraisers' determinations differ by more
than ten percent (10%), then both appraisers shall promptly select a third
appraiser (who shall also be a member of the American Institute of Real Estate
Appraiser's) to also determine the diminution in value which results from such
encumbrance. A written determination of the diminution in value which results
from such encumbrance signed by any two of the three appraisers shall be final
and binding upon the parties. If the appraisals of the first two appraisers
differ by ten percent (10%) or less, then the average of their appraisals shall
be the final determination binding on the parties.
4.3 Financing Election Date. The Obligors hereby covenant and agree that
promptly upon their receipt of each bona fide, binding commitment for permanent
financing of the Property, the Obligors shall provide a copy thereof to the
Lender. The Lender shall have at least ten (10) business days from Lender's
receipt of such notice in which to elect to exercise Lender's Call Rights (the
last day of any such ten day period, each hereinafter, a "Financing Election
Date"). In such event, the Obligors hereby agree to assist the Lender in
obtaining an assignment of each such financing commitment from the applicable
lender. If Lender elects not to exercise its Call Rights, the Borrower shall be
free to consummate the refinancing transaction upon the terms in such
commitment. If the Borrower fails to do so, or substantially modifies the
commitment, the Lender's rights hereunder shall continue (i.e., Lender shall be
entitled to have ten business days from the date of such modification or
subsequent commitments to exercise its Call Rights as herein provided) until the
Borrower actually consummates a refinancing transaction for the Property and
repays the Loan in full.
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4.4 Transfer Costs. All transfer costs, including without limitation,
legal fees, deed stamps, recording fees, title examination fees, and UCC search
fees shall be paid by the party exercising the Put Rights or Call Rights, as the
case may be.
V. DEFAULT; REMEDIES; ETC.
5.1 Events of Default. The occurrence of any one or more of the
following shall constitute an "Event of Default" hereunder:
(a) The failure to fully and timely pay or perform any of the
covenants and agreements made herein or in any of the other Closing Documents by
any of the Obligors when due;
(b) The failure of any material representation or warranty
made by or on behalf of any of the Obligors in this Agreement to be true,
accurate and complete when made;
(c) The occurrence of any Event of Default under and as
defined in, the Note, Mortgage, Assignment, Pledge Agreement, or any other Loan
Document.
5.2 Remedies.
(a) Upon the occurrence of any Event of Default,
notwithstanding anything to the contrary herein or in any other Loan Document,
at the option of the Lender, all obligations of the Obligors under the Loan
Documents shall be accelerated and immediately due and payable, without further
notice or demand, and the Lender shall be entitled to exercise all rights and
remedies under the Loan Documents and/or under applicable law.
(b) No remedy conferred in this Agreement or in any of the
other Loan Documents upon the Lender is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder, thereunder or under any of the
other Loan Documents or now or hereafter existing at law or in equity, by
statute or otherwise.
VI. No Further Assurances. The Obligors hereby acknowledge and agree that
the Lender shall have no obligation to the Obligors to extend, rewrite or
otherwise restructure the Note or the other Loan Documents, or to amend this
Agreement, and that in making any determination as to any issue in connection
therewith, the Lender shall be justified in attempting to protect only its own
interests as a creditor. The Obligors further acknowledge and agree that the
relationship between the Lender and the Obligors is strictly that of a lender
and a borrower and/or guarantor, and that no other business relationship, such
as a partnership or joint venture, is created (or shall be deemed to
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have been created) as a result of the transactions contemplated by this
Agreement, and that no fiduciary relationship exists between the Lender and the
Obligors and that, except as otherwise specifically provided in the Loan
Documents, no express or implied duty from the Lender to the Obligors is created
by virtue of this Agreement or the other Closing Documents, or any action taken
by the Obligors in connection herewith.
VII. Litigation; Claims; Etc. Each of the Obligors hereby warrants and
represents to the Lender that there is no litigation or governmental proceeding
pending (nor has such Obligor received notice that any such action is threatened
or to be commenced) against any Obligor or the Property.
VIII. Additional Documents. From time to time, the Obligors shall execute
and deliver to the Lender such security documents, instruments, amendments,
certificates and affidavits, as reasonably requested by the Lender, to effect or
confirm the transactions contemplated in this Agreement and the other Closing
Documents, or take such action, as reasonably requested by the Lender, to
effectuate, confirm or clarify the transactions contemplated in this Agreement
and the other Closing Documents.
IX. Benefit; No Duress. By executing this Agreement below, each of the
Obligors acknowledges and agrees that it/he has read and understands the
contents of this Agreement and the transactions contemplated hereby, and has had
an opportunity to consult with counsel of its/his choice respecting the same,
and each has acted voluntarily and without duress in connection with the
execution and delivery hereof and other documents delivered in connection
herewith.
X. Survival. All covenants, representations, warranties,
acknowledgments and agreements (including without limitation, indemnification
provisions, if any) shall survive the execution and delivery of this Agreement.
XI. Governing Law. This Agreement has been negotiated and accepted in
and shall be deemed to have been made in the Commonwealth of Massachusetts, and
the validity of this Agreement and the other Loan Documents, their construction,
interpretation and enforcement and the rights of the parties hereunder, shall be
determined under, and governed by and construed in accordance with, the internal
laws (and not the law of conflicts) of The Commonwealth of Massachusetts.
XII. Captions; Construction; Etc. The captions in this Agreement are for
convenience of reference only and shall not affect the meaning of, nor give any
construction to, any of the provisions hereof. The interpretation of the
provisions of this Agreement shall not be construed against any party hereto
based upon the fact that such party may have drafted or caused to be
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drafted such provision. The Obligors hereby acknowledge that they have been
represented by independent counsel of their own selection and, notwithstanding
that counsel for the Lender has prepared the first draft of this Agreement and
the other Closing Documents, the Obligors hereby agree that the same shall not
be construed against the Lender in the event of any ambiguity, in that each
parties' counsel extensively participated in the negotiation and codification of
this Agreement and the other Closing Documents. Further, no prior draft or
version of this Agreement or any other Closing Document may be used or relied
upon to interpret or construe any provisions hereof or thereof.
XIII. Time Is Of The Essence. Time shall be of the essence with respect to
each and every of the various undertakings and obligations of the Obligors set
forth in this Agreement.
XIV. Entire Agreement. The Closing Documents (including all exhibits or
schedules to any of them), constitute the entire agreement between the Lender
and the other parties to such documents relating to or connected with the
transactions contemplated hereby and thereby, and supersede any and all prior
and contemporaneous discussions, correspondence and term sheets with respect to
the Loan.
XV. Severability. In case any provision (or any part of any provision)
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or the remaining part of the affected
provision) of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision (or part thereof) had never been
contained herein, but only to the extent it is invalid, illegal or
unenforceable.
XVI. Notices. All notices given in connection with this Agreement shall
be deemed duly given if made in the manner specified in the Mortgage, and with
respect to the Guarantors, in the manner specified in the Guaranties.
XVII. Miscellaneous. This Agreement may be executed in any number of
counterparts which together shall constitute one instrument and shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[This space intentionally left blank.]
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EXECUTED as a Massachusetts instrument under seal as of the date first set
forth above.
WITNESSES: BORROWER:
000 XXXXX XXXXXX, LLC
/s/ J. Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
hereunto duly authorized
GUARANTORS:
/s/ J. Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, individually
/s/ J. Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, individually
LENDER:
CYRK, INC.
By:
/s/ J. Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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----------------------------,
hereunto duly authorized
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