1
EXHIBIT 10.10(b)
REVOLVING NOTE
FOR VALUE RECEIVED, the undersigned, SKECHERS U.S.A., INC., a California
corporation ("Company"), hereby unconditionally promises to pay to the order of
XXXXXX FINANCIAL, INC., a Delaware corporation ("Agent") as Agent for the
Lenders under that certain Amended and Restated Loan and Security Agreement
dated September 4, 1998 (the "Loan Agreement"), at Agent's office located at 000
Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place as the
holder of this Revolving Note may from time to time designate in writing, in
lawful money of the United States of America and in immediately available funds,
the principal amount of all "Revolving Loans" under the Loan Agreement, payable
in accordance with the terms of the Loan Agreement.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Loan Agreement.
This Note is the Revolving Note referred to in the Loan Agreement and is issued
to evidence Revolving Loans made to Company under the Loan Agreement. This
Revolving Note is entitled to the benefits of the Loan Agreement to which
reference is hereby made for a more complete statement of the terms, conditions
and covenants under which this Revolving Note is made and is to be repaid,
including, but not limited to, those related to acceleration of the indebtedness
represented hereby upon the occurrence of a default or event of default or upon
the termination of the Loan Agreement.
Company promises to pay interest on the outstanding unpaid principal amount
hereof from the date hereof until payment in full hereof at a rate per annum
equal to the Base Rate plus one quarter of one percent (0.25%). Interest shall
be computed on the daily principal balance on the basis of a 360-day year for
the actual number of days elapsed in the period during which it accrues and
shall be payable by Company or charged to Company's account at the end of each
month. Any publicly announced decrease or increase in the Base Rate shall result
in an adjustment to the interest rate on the next business day.
In no event shall the total interest received by Agent on the principal amount
of Company's obligations under this Revolving Note pursuant to the terms hereof
exceed the maximum rate permitted by applicable law (the "Maximum Rate") and in
the event excess interest ("Excess Interest") is determined by a court of
competent jurisdiction to have been paid, (a) at Agent's option, such Excess
Interest shall be applied as a credit against the outstanding principal balance
of such obligations or accrued but unpaid interest (not to exceed the maximum
amount permitted by law), refunded to Company or any combination thereof, (b)
the interest rate shall be automatically reduced to the Maximum Rate, and
Company shall not have any action against Agent for any damages arising out of
the payment or collection of Excess Interest.
Notwithstanding the foregoing, if for any period of time interest on any of
Company's obligations under this Revolving Note is calculated at the Maximum
Rate rather than the applicable rate under this Revolving Note, and thereafter
such applicable rate becomes less than the Maximum Rate, the rate of interest
payable on such obligations shall remain at the Maximum Rate until Agent shall
have received the amount of interest which Agent would have received during such
period on such obligations had the rate of interest not been limited to the
Maximum Rate during such period.
To secure the payment of the principal and interest of this Revolving Note and
all renewals and extensions of the same or any part thereof and any and all
other obligations now or hereafter owing or to become owing from Company to
Agent, howsoever created, arising, evidenced or acquired by Agent, whether
direct or contingent, Company has granted and given to Agent a general and
continuing lien and security interest in certain of Company's assets as listed
and described in the various agreements by and between Company and Agent, all as
amended from time to time, including, without limitation, the Loan Agreement
(collectively called the "Agreements") to which reference is made for a
statement of the nature and extent of the security and protection afforded, the
rights of Agent and the rights and
1
2
obligations of Company, together with all other and sundry grants and pledges of
security heretofore and hereafter given (collectively called the "Collateral"),
with full power and authority to Agent to transfer, assign, pledge or replace
the same in whole or in part. In case of exchange of, or substitution for, or
addition to the Collateral, the provisions hereof shall extend to such
exchanged, substituted, or additional Collateral. Upon payment of this Revolving
Note, Agent may nevertheless retain the Collateral hereby pledged to secure the
payment of other obligations of Company to Agent, if any, for which the same is
pledged. Agent is expressly released from all obligation or liability: (a) to
protect, collect, demand payment of, protest or enforce the Collateral; (b) to
take any action whatsoever in regard to the Collateral or any part thereof; or
(c) for any loss of or depreciation in the value of the Collateral.
Company hereby waives demand, presentment, protest, notice of demand, dishonor,
presentment, protest, nonpayment and all other notices in connection with this
Revolving Note. Subject to the Loan Agreement, Company also waives all rights to
notice and hearing of any kind upon the occurrence of a default or an event of
default prior to the exercise by Agent of its rights to repossess the Collateral
without judicial process or to replevy, attach or levy upon the Collateral
without notice or hearing.
If this Revolving Note is collected by or through an attorney-at-law, all costs
of collection, including reasonable attorneys' fees, shall be payable by the
undersigned.
THIS REVOLVING NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF CALIFORNIA. Whenever
possible each provision of this Revolving Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Revolving Note shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Revolving Note. Whenever in this Revolving Note
reference is made to Agent or Company, such reference shall be deemed to
include, as applicable, a reference to their respective successors and assigns.
The provisions of this Revolving Note shall be binding upon and shall inure to
the benefit of such successors and assigns. Company's successors and assigns
shall include, without limitation, a receiver, trustee or debtor in possession
of or for Company.
WITNESS the signature of the undersigned, as of the date first above written.
SKECHERS U.S.A., INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Title: CFO
-----------------------
2
