1
EXHIBIT 10.15
LOAN AGREEMENT
This LOAN AGREEMENT (the "Loan Agreement") is made and entered into as
of the 3rd day of July, 2000, by and between Delta Design, Inc., a Delaware
corporation (the "Lender"), and IPX Camelback, LLC, an Arizona limited liability
company (the "Borrower") with reference to the facts set forth in the Recitals
below.
R E C I T A L S
A. Borrower is acquiring real property (the "Property") located at 00000
Xxxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx, 00000, and identified as the Anacomp
Building. The Property is more particularly described in Exhibit "A" attached
hereto.
B. Lender has agreed to make advances to Borrower to pay costs of
acquiring the Property.
NOW THEREFORE, in consideration of the above recitals, the mutual
covenants of the parties herein contained and other valuable consideration, the
parties agree as follows:
A G R E E M E N T
SECTION 1
DEFINITIONS
1.1 "ADVANCES" shall mean the advances made by Lender to Borrower under
this Loan Agreement.
1.2 "CLOSE OF ESCROW" shall mean the date Borrower takes legal,
beneficial or equitable title to all or a portion of the Property.
1.3 "DEFAULT" shall mean:
(a) Any failure to pay any principal or interest under the
Promissory Note when the same shall become due and payable and such failure
continues for ten (10) days after notice thereof to Borrower, or the failure to
pay any other sum due under the Promissory Note or this Loan Agreement as and
when the same shall become due and payable and such failure continues for ten
(10) days after notice thereof to Borrower. No notice, however, shall be
required after maturity of the Promissory Note;
(b) Any failure or neglect to perform or observe any of the
covenants, conditions or provisions of this Loan Agreement;
(c) The filing by Borrower of any proceeding under the federal
bankruptcy laws now or hereafter existing or any other similar federal or state
statute now or hereafter in effect; the entry of an order for relief under such
laws with respect to Borrower; or the appointment of a receiver, trustee,
custodian or conservator of all or any part of the assets of Borrower;
2
(d) The admission in writing by Borrower that Borrower is unable
to pay its debts as they mature or that it is generally not paying its debts as
they mature (but this provision shall not affect Borrower's respective rights to
contest any real estate taxes or related assessments);
(e) The institution of any legal action or proceedings to
enforce any lien or encumbrance upon any portion of the Property that is not
dismissed within thirty (30) days after its institution; or
(f) The encumbrance of the Property by Borrower other than those
encumbrances created by Borrower for money borrowed under this Loan Agreement.
SECTION 2
LOAN COMMITMENT; ADVANCES
2.1 Subject to the conditions herein set forth and for the purposes set
forth in the Recitals, Lender agrees to loan to or for the benefit of Borrower,
and Borrower agrees to draw upon and borrow funds in the manner and upon the
terms and conditions herein expressed (the "Loan"). Disbursements under the Loan
are referred to herein individually as an "Advance" and collectively as the
"Advances."
2.2 The Loan shall be evidenced by a Promissory Note (the "Note") of
Borrower, executed and delivered simultaneously with the execution of this Loan
Agreement, in the form attached hereto as Exhibit "B", payable to Lender upon
the terms and conditions contained therein. The Note shall be secured by a Deed
of Trust (the "Deed of Trust"), in form and substance reasonably satisfactory to
Borrower and Lender, encumbering the Property as a first priority lien. Lender
may elect at its own cost and expense to obtain a title insurance policy
ensuring the priority of the Deed of Trust.
2.3 Borrower shall have no right to any Advance other than to have the
same disbursed by Lender in accordance with this Loan Agreement. Any assignment
or transfer, voluntary or involuntary, of this Loan Agreement or any right
hereunder shall not be binding upon or in any way affect Lender without its
written consent.
2.4 Lender shall make the Advances contemplated herein and requested by
Borrower in immediately available funds within three (3) business days after
receipt of a written request therefor from Borrower.
SECTION 3
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as follows:
3.1 The recitals and statements of intent appearing in this Loan
Agreement are true and correct.
2
3
3.2 Borrower is a duly organized, validly existing limited liability
company and in good standing under the laws of the state of its organization and
is qualified to do business and is in good standing in the State of Arizona.
Borrower is not required to qualify to do business in California since Borrower
will not enter into repeated and successive transactions of business in
California.
3.3 Borrower has full power and authority to own its properties and
assets (as legal, beneficial or equitable owner) and to carry on its business as
now being conducted.
3.4 Borrower is fully authorized and permitted to enter into this Loan
Agreement, to execute any and all documentation required herein, and to borrow
the amounts contemplated herein upon the terms set forth herein.
3.5 No actions, suits or proceedings are pending or threatened against
Borrower that might materially and adversely affect the repayment of the Loan,
the performance by Borrower under this Loan Agreement or the financial
condition, business or operations of Borrower.
3.6 This Loan Agreement is valid, binding and enforceable, and the
execution does not conflict with laws or other agreements or contracts binding
on Borrower.
SECTION 4
WAIVER
4.1 Borrower waives presentment, demand, protest and notices of protest,
nonpayment, partial payment and all other notices and formalities except as
expressly called for in this Loan Agreement. Borrower consents to and waives
notice of: (i) the granting of indulgences or extensions of time of payment,
(ii) the taking or releasing of security, and (iii) the addition or release of
persons who may be or become primarily or secondarily liable for the Loan or any
other indebtedness arising in connection with the Loan, or any part thereof, and
all in such manner and at such time as Lender may deem advisable.
4.2 No delay or omission by Lender in exercising any right, power or
remedy hereunder, and no indulgence given to Borrower, with respect to any term,
condition or provision set forth herein, shall impair any right, power or remedy
of Lender under this Loan Agreement, or be construed as a waiver by Lender of,
or acquiescence in, any Event of Default. Likewise, no such delay, omission or
indulgence by Lender shall be construed as a variation or waiver of any of the
terms, conditions or provisions of this Loan Agreement. Any actual waiver by
Lender of any Event of Default shall not be a waiver of any other prior or
subsequent Event of Default or of the same Event of Default after notice to
Borrower demanding strict performance.
4.3 Upon the occurrence of any Default and at any time while such
Default is continuing, Lender may do one or more of the following:
(a) Cease upon fifteen (15) days' advance written notice making
Advances and declare the entire Subordinated Loan and all other indebtedness of
Borrower hereunder immediately due and payable, without notice or demand;
3
4
(b) Proceed to protect and enforce its rights and remedies under
this Loan Agreement, the Note and the Deed of Trust; and
(c) Avail itself of any other relief to which Lender may be
legally or equitably entitled.
SECTION 5
ACTION UPON AGREEMENT
5.1 This Loan Agreement is made for the sole protection and benefit of
the parties hereto and no other person or organization shall have any right of
action hereon.
5.2 This Loan Agreement embodies the entire agreement of the parties
with regard to the subject matter hereof. There are no representations,
promises, warranties, understandings or agreements expressed or implied, oral or
otherwise, in relation thereto, except those expressly referred to or set forth
herein. Borrower acknowledges that the execution and delivery of this Loan
Agreement is its free and voluntary act and deed, and that said execution and
delivery have not been induced by, nor done in reliance upon, any
representations, promises, warranties, understandings or agreements made by
Lender, its agents, officers, employees or representatives.
5.3 No promise, representation, warranty or agreement made subsequent to
the execution and delivery of this Loan Agreement by either party hereto, and no
revocation, partial or otherwise, or change, amendment or addition to, or
alteration or modification of, this Loan Agreement shall be valid unless the
same shall be in writing signed by all parties hereto.
5.4 Lender and Borrower each have separate and independent rights and
obligations under this Loan Agreement. Nothing contained herein shall be
construed as creating, forming or constituting any partnership, joint venture,
merger or consolidation of Borrower and Lender for any purpose or in any
respect.
SECTION 6
GENERAL
6.1 This Loan Agreement shall survive the making of the Advances and
shall continue so long as any part of the Loan, or any extension or renewal
thereof, remains outstanding.
6.2 Time is expressly made of the essence of this Loan Agreement.
6.3 Any request, notice or other communication to be given under this
Loan Agreement must be in writing and delivered personally or by messenger,
private mail, courier service, facsimile or sent by registered, certified mail,
return-receipt requested, or postage-prepaid. All notices will be considered
effective (i) upon receipt, if delivered personally or by messenger or private
mail courier, (ii) on the business day of successful transmission by facsimile,
(iii) otherwise on the third business day after deposit in the U.S. mail,
postage- prepaid, or (iv) the next business day after deposit with a nationally
recognized overnight courier
4
5
service. Any party may change its address or facsimile number by a communication
in accordance herewith.
6.4 This Loan Agreement shall be governed by and construed according to
the laws of the State of California.
6.5 Except as otherwise provided herein, this Loan Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
successors and assigns.
6.6 The headings or captions of sections in this Loan Agreement are for
reference only, do not define or limit the provisions of such sections, and
shall not affect the interpretation of this Loan Agreement.
6.7 Wherever in this Loan Agreement it shall be required or permitted
that notice or any other communication be given or served by either party to
this Loan Agreement to or on the other, such notice or other communication shall
be deemed to have given or served if in writing, and delivered personally, or
deposited in the United States mail, certified with return receipt requested,
postage prepaid, addressed as follows:
Lender: Delta Design, Inc.
Attn: Xxxx X. Xxxxx
0000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Borrower: IPX Camelback, LLC
Attn: Xxxxx X. Church
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
6.8 Notwithstanding anything to the contrary in this Loan Agreement or
in the Promissory Note, this is a non-recourse obligation with respect to
Pacific American Property Exchange Corporation. Lender's sole source for
repayment of the obligation is the Property. Pacific American Property Exchange
Corporation, its directors, officers and assigns shall not have personal
liability for the repayment of any amounts evidenced by the Promissory Note or
for the performance or observance of any covenant, indemnification, or condition
contained in this Loan Agreement or the Promissory Note. No personal deficiency
judgment shall be sought or entered against Pacific American Property Exchange
Corporation by the Lender as a result of any default.
IN WITNESS WHEREOF, the parties have executed this Loan Agreement as of
the date indicated above.
SIGNATURES APPEAR ON FOLLOWING PAGE
5
6
BORROWER:
IPX Camelback, LLC, an Arizona limited
liability company
By: Pacific American Property Exchange
Corporation, a California corporation
Its: Manager
By: /s/ Xxxxx X. Church
-------------------------------------
Xxxxx X. Church
Its: Assistant Vice President and
Exchange Coordinator
LENDER:
Delta Design, Inc., a Delaware
corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Its: Vice President, Finance and Chief
Financial Officer
6
7
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
The Real Property is located in the City of Poway, County of San Diego,
State of California and is more particularly described as follows:
Parcels 101, 102 and a portion of Parcel 103 of Parcel Map No. 16320 filed in
the office of the County Recorder of San Diego County on December 10, 1990.
Said portion of Parcel 103 is described as follows:
Beginning at the Northeasterly corner of Parcel 105 of said Parcel Map
16320,
North 39(degree) 45' 33" West 618.40 feet; thence,
North 00(degree) 07' 57" East 584.60 feet; thence,
South 88(degree) 28' 24" East 290.00 feet; thence,
South 00(degree) 07' 57" West 46.94 feet; thence,
South 82(degree) 46' 00" East 506.32 feet; thence,
South 63(degree) 08' 00" East 170.54 feet; thence,
North 38(degree) 08' 00" East 253.23 feet; thence,
South 03(degree) 51' 02" West 673.92 feet; thence,
South 87(degree) 26' 00" West 482.83 feet to the beginning of a tangent
curve concave Southeasterly with a radius of 324.50 feet; thence,
Along said curve central angle 60(degree) 48' 13" a length of 344.37
feet to the point of beginning, a radial to said curve bears North
63(degree) 22' 13" West.
Excepting therefrom all minerals, oils, gas, petroleum, other
hydrocarbon substances and all underground water in or under or which may be
produced from said property which underlies a plane parallel to and 500 feet
below the present surface of said property for the purpose of prospecting for,
the exploration, development, production, extraction and taking of said
minerals, oil, gas, petroleum, other hydrocarbon substances and water from said
property but without the right to enter upon the surface or any portion thereof
above said plane parallel to and 500 feet below the present surface of the said
property for any purpose whatsoever.
7
8
EXHIBIT "B"
PROMISSORY NOTE
(as amended October 27, 2000)
$21,288,468.05 Phoenix, Arizona July 3, 2000
FOR VALUE RECEIVED, the undersigned IPX CAMELBACK, LLC, AN ARIZONA
LIMITED LIABILITY COMPANY (the "Maker"), promises to pay to the order of DELTA
DESIGN, INC., A DELAWARE CORPORATION (the "Lender"), and each subsequent
transferee and/or owner of this Note, whether taking by endorsement or otherwise
(the "Holder") at 0000 Xxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000, or at
such other place as Holder may from time to time designate in writing to Maker,
the principal sum of TWENTY ONE MILLION TWO HUNDRED EIGHTY EIGHT THOUSAND FOUR
HUNDRED SIXTY EIGHT DOLLARS AND 05/100 ($21,288,468.05) or so much thereof as
Holder shall have advanced to Maker, plus interest at the rate of six percent
(6%) per annum, compounded annually on each annual anniversary date of this
Note, on the principal balance from time to time outstanding, principal,
interest and all other sums payable hereunder to be paid in lawful money of the
United States of America on the Due Date (as defined herein).
"Default" has the meaning set forth in the Loan Agreement.
"Due Date" means the earlier of: (i) the sale or disposition by Maker of
all of its interest in the Property, or (ii) July 3, 2001.
"Property" means the property located at 00000 Xxxxxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxxxxx, 00000, and identified as the Anacomp Building and described
on Exhibit "A" to the Loan Agreement.
"Loan Agreement" means that certain Loan Agreement dated as of July 3,
2000, by and between Lender and Maker.
Other capitalized words and phrases used herein shall have the meanings
set forth in the Loan Agreement.
Maker agrees to an effective rate of interest that is the rate stated
above plus any additional rate of interest resulting from any changes in the
nature of interest paid or to be paid by or on behalf of Maker, or any benefit
received or to be received by Holder, in connection with this Note.
If any payment required under this Note is not paid within fifteen (15)
days after the date such payment is due, then, at the option of Holder, Maker
shall pay a "late charge" equal to four percent (4%) of the amount of that
payment to compensate Holder for administrative expenses and other costs of
delinquent payments. This late charge may be assessed without notice, shall be
immediately due and payable and shall be in addition to all other rights and
remedies available to Holder.
8
9
All payments on this Note shall be applied first to the payment of any
accrued interest and then to the reduction of the principal balance.
This Note is issued pursuant to the Loan Agreement.
Time is of the essence of this Note. At the option of Holder, the entire
unpaid principal balance, all accrued and unpaid interest and all other amounts
payable hereunder shall become immediately due and payable thirty (30) days
after written notice by Holder to Maker of the occurrence of any Default, as
defined in the Loan Agreement, unless Default shall have been fully cured during
such thirty (30) day period.
Maker shall have the option to prepay this Note, in full or in part, at
any time without penalty.
Failure of Holder to exercise any option hereunder shall not constitute
a waiver of the right to exercise the same in the event of any subsequent
default or in the event of continuance of any existing default after demand for
strict performance hereof.
Maker waives any and all formalities in connection with this Note to the
maximum extent allowed by law, including (but not limited to) demand, diligence,
presentment for payment, protest, notice of extension, dishonor, and nonpayment
of this Note; and consents that Holder may extend the time of payment or
otherwise modify the terms of payment of any part or the whole of the debt
evidenced by this Note, at the request of any other person liable hereon, and
such consent shall not alter nor diminish the liability of any person hereon.
Maker agrees that to the extent Maker makes any payment to Holder in
connection with the indebtedness evidenced by this Note, and all or any part of
such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid by Holder or paid over to a
trustee, receiver or any other entity, whether under any bankruptcy act or
otherwise (any such payment is hereinafter referred to as a "Preferential
Payment"), then the indebtedness of Maker under this Note shall continue or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by Holder, the indebtedness evidenced by this Note or part thereof
intended to be satisfied by such Preferential Payment shall be revived and
continued in full force and effect as if said Preferential Payment had not been
made.
This Note shall be binding upon Maker and its successors and assigns and
shall inure to the benefit of Holder, and any subsequent holders of this Note,
and their successors and assigns.
All notices required or permitted in connection with this Note shall be
given at the place and in the manner provided in the Loan Agreement for the
giving of notices.
This Note shall be governed by and construed according to the laws of
the State of California.
Notwithstanding anything to the contrary in this Note or in the Loan
Agreement, this is a non-recourse obligation with respect to Pacific American
Property Exchange Corporation. Maker's sole source for repayment of the
obligation is the Property. Pacific American Property Exchange Corporation, its
directors, officers and assigns shall not have personal liability for the
9
10
repayment of any amounts evidenced by this Note or for the performance or
observance of any covenant, indemnification, or condition contained in the Loan
Agreement or this Note. No personal deficiency judgment shall be sought or
entered against Pacific American Property Exchange Corporation by the Maker as a
result of any default.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
written above.
IPX Camelback, LLC, an Arizona limited
liability company
By: Pacific American Property Exchange
Corporation, a California corporation
Its: Manager
By: /s/ Xxxxx X. Church
-------------------------------------
Xxxxx X. Church
Its: Assistant Vice President and
Exchange Coordinator
10
