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EXHIBIT 10.25
MONY Loan Xx. 000000
Xxxxxxx, Xxxxxxxxxx
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of the 21st day of
December, 2000, by and between YALE INVESTMENTS, LLC, a Delaware limited
liability company (the "Borrower"), and MONY LIFE INSURANCE COMPANY, a New York
corporation ("Lender").
In consideration of the mutual covenants and agreements contained
herein, Lender agrees to make and Borrower agrees to accept a loan (the "Loan")
in the original principal amount of Seven Million Eight Hundred Fifty Thousand
Dollars ($7,850,000.00 U.S.), pursuant to that certain Mortgage Loan Application
dated November 1, 2000, executed by Skechers U.S.A., Inc., a Delaware
corporation, as applicant on behalf of the Borrower pending Borrower's
formation, and accepted by Lender on November 29, 2000 (the "Commitment"), and
in accordance with and subject to the terms and conditions set forth below.
1. AGREEMENT TO LEND
1.1 LOAN. In reliance on Borrower's prompt and faithful performance of all
the terms, provisions and conditions of the Commitment, Lender agrees
to advance the Loan to Borrower subject to all the terms and conditions
contained in this Agreement and any and all documents executed by
Borrower to evidence or secure, or otherwise in connection with, the
Loan (collectively with this Agreement, the "Loan Documents");
provided, however, that that Borrower's Certificate and Indemnity
Regarding Hazardous Substances executed by Borrower on or about the
date hereof, shall not be a Loan Document, and shall be and constitute
at all times, an unsecured obligation of Borrower.
1.2 ADVANCE OF FUNDS. Borrower's execution of this Agreement constitutes
authorization by Borrower to Lender to proceed with advancing the sum
of $7,850,000 for the account of Borrower as the proceeds of the Loan
(the "Loan Proceeds"), by wiring the sum of $8,085,500 (representing
said Loan proceeds plus the sum of $235,500 as a refund of Borrower's
"Commitment Fee") to Xxxxxxx Title Company ("Escrow Agent"). Borrower
acknowledges that the Loan Proceeds so advanced shall be evidenced by
and bear interest at the rate set forth in that certain Loan Document
entitled Promissory Note of even date herewith made by Borrower payable
to the order of Lender in the original principal amount of the Loan
(the "Note"), from the day on which such fluids are first so advanced
by Lender ("Closing Date"), notwithstanding any delay occasioned by any
cause whatsoever in the receipt of such funds by Escrow Agent or in the
disbursement of such funds to or for the account of Borrower.
1.3 AMOUNTS IN EXCESS OF LOAN. Lender shall have the right, but not the
obligation, to fund amounts in excess of the Loan from time to time to
pay accrued and unpaid interest owing on the Loan or to correct any
defaults in any of the Loan Documents (Borrower agreeing that the
correcting of a default by Lender shall not cure any Event of Default
under this Agreement). Such excess amounts when funded shall be deemed
evidenced by
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the Note, shall bear interest at the Augmented Rate (as defined in the
Note), shall be covered by any guaranty furnished to Lender in
connection with the Loan, and shall be secured and otherwise evidenced
by the other Loan Documents and all other security and collateral for
the Loan. Borrower hereby agrees to execute additional notes,
mortgages, security agreements, and other additional Loan Documents,
and modifications thereto, promptly upon request by Lender, in favor of
Lender, evidencing and securing any amounts funded in excess of the
Loan.
2. BORROWER REPRESENTATIONS, WARRANTIES, CERTIFICATIONS, CONFIRMATIONS,
COVENANTS AND AGREEMENTS
Borrower, having had the benefit of legal counsel, warrants,
represents, certifies, confirms, covenants and agrees, with and to
Lender, that each of the following statements are or will be true and
correct as of the Closing Date, quid shall remain true during the term
of the Loan secured hereby:
2.1 CONDITIONS PREVENTING COMPLIANCE. To the best knowledge of Borrower, no
conditions exist which would prevent Borrower or any guarantor of the
Note ("Guarantor") from fully complying with the provisions of this
Agreement or of any of the other Loan Documents, within the applicable
time limits herein or therein set forth.
2.2 LAND AND IMPROVEMENTS. Borrower has good and marketable indefeasible
fee simple title to that certain real property located in San
Bernardino County, California, more particularly described on EXHIBIT
"A" attached hereto and by this reference made a part hereof (the
"Land"), which is improved by a newly constructed industrial building
containing approximately 262,854 square feet of net rentable area and
on-site, striped parking spaces for 147 standard-sized American
automobiles, 49 trucks, and 7 handicap vehicles located on the Land
(collectively, the "Improvements"; the Improvements and the Land being
collectively referred to herein as the "Real Property").
2.3 NON-FOREIGN STATUS; DUE ORGANIZATION; NO BANKRUPTCY; PENSION STATUS.
(A) Borrower is and will continue to be a limited liability company
duly organized and validly existing under the laws of the State of
California. Borrower has all requisite power and authority to carry on
its business, to hold title to the Real Property, to enter into this
Agreement and the Loan Documents and to consummate the transactions
contemplated hereby and thereby. Guarantor is and will continue to be a
corporation duly organized and validly existing under the State of
Delaware and has all requisite power and authority to execute the
instruments to be executed by Guarantor as set forth in the Commitment
(the "Guarantor Documents").
(B) Borrower: (i) does not hold, directly or indirectly, any ownership
interest (legal or equitable) in any real or personal property other
than the interest which it owns in the Real Property and personal
property located in and used in connection with the ownership and
operation of the Real Property; (ii) is not a shareholder or partner or
member of any other entity; and (iii) does not conduct any other
business other than the ownership, management and operation of the Real
Property.
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(C) Neither Borrower nor any Guarantor is a non-resident alien, foreign
corporation, foreign partnership, foreign trust, foreign estate or
other "foreign person" (as these terms are defined in the United States
Internal Revenue Code and the regulations promulgated pursuant thereto
(collectively, the "I.R.C.")); Borrower's social security number or
United States Taxpayer Identification Number (whichever is applicable)
is 200033210039 and its office address is 000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000. Borrower understands that
Lender is relying on and will rely on the above certification in
determining whether withholding is required pursuant to Section 1445 of
the I.R.C. Borrower further understands that the above certification
may be disclosed to the Internal Revenue Service by Lender and that any
false statement Borrower has made therein could be punished by fine,
imprisonment, or both. Neither Borrower nor Guarantor is currently in
or contemplating dissolution, suspension, termination, liquidation,
partition and/or winding up.
(D) Neither Borrower nor any Guarantor nor all or any portion of the
Real Property or other property of Borrower or any Guarantor is the
subject of or under the jurisdiction of (i) any voluntary or
involuntary proceeding under any applicable bankruptcy, insolvency,
debtor relief or other similar law; or (ii) the appointment of or
possession by any receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official; nor has Borrower (A) made any general
assignment for the benefit of creditors; (B) generally failed to pay
their debts as they became due; or (C) taken any action in furtherance
of any of the foregoing.
(E) The execution, delivery and performance of the Loan Documents and
Guarantor Documents (i) have been duly authorized in accordance with
the provisions of the Borrower's and Guarantor's, as applicable,
organizational documents and in accordance with all other of the
governing documents by which the operations and administration of
Borrower and Guarantor are controlled (collectively, the "Governing
Instruments"), and no other action or authority is requisite or will be
required for the execution, delivery and performance of the Loan
Documents or Guarantor Documents, (ii) create legal, valid and binding
obligations of Borrower and Guarantor enforceable in accordance with
their terms, subject to bankruptcy and similar laws and general
equitable principles; (iii) do not require the approval or consent of
any Governmental Authority (as hereinafter defined) having jurisdiction
over Borrower, any Guarantor or the Real Property; (iv) do not and will
not constitute a violation of, or default under, the Governing
Instruments of Borrower or Guarantor or any law, statute, ordinance,
rule or regulation applicable to Borrower or Guarantor; and (v) will
not be in contravention of any court or administrative order or ruling
applicable to Borrower, Guarantor or the Real Property. Any and all
such authorizations remain in full force and effect and have not been
amended, revoked or terminated. As used herein, "Governmental
Authority" means the United States of America, the state wherein the
Real Property is located, the state under the laws of which Borrower or
any Guarantor is organized, any political subdivision of any of them,
and any court, agency, department, commission, board, bureau or
instrumentality of any of them.
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(F) The Real Property is owned by Borrower, which is not a pension plan
or employee benefit plan and is not controlled by a pension plan or
employee benefit plan. Borrower does not have, as a partner (general or
limited), shareholder, member or other principal, any pension plan or
employee benefit plan. Borrower (and its constituents) and Lender are
not parties in interest and the Loan will not constitute a prohibited
transaction under the Internal Revenue Code or the Employee Retirement
Income Security Act of 1974.
2.4 TAXES PAID. Borrower has filed and will file all tax returns and
reports required by law. Borrower has paid, to the extent now due and
payable, all taxes, assessments, contributions, fees, and other
governmental charges upon Borrower and upon the Real Property. No tax
liens have been filed against any assets of Borrower.
2.5 NO VIOLATION. There is no violation of or default with respect to any
term or provision of any mortgage, deed of trust, security deed,
indenture, contract, agreement or instrument applicable to Borrower or
the Real Property, or by which Borrower or the Real Property is bound,
and the execution, delivery, performance of and compliance with each
and every one of the Loan Documents will not result in any such
violation and will not be in conflict with or constitute a default
under any such term or provision, or result in the creation of any
lien, charge, or encumbrance on any of the properties or assets of
Borrower other than the Loan Documents. No consent of any other person
or entity to such execution, delivery and/or performance is required to
render the Loan Documents as valid, binding and enforceable in
accordance with their terms.
2.6 LITIGATION. No actions, suits, or proceedings are pending or, to the
best knowledge of Borrower, threatened against or affecting Borrower,
any Guarantor, or the Real Property or any other assets subject to the
Loan Documents, in any court of law or in equity, or before any
governmental department, commission, board, bureau, agency, or other
instrumentality which might materially adversely affect the ability of
Borrower or any Guarantor to perform their obligations hereunder or
under any of the Loan Documents or Guarantor Documents or might
adversely affect the priority of Lender's first lien on the Real
Property.
2.7 NO CONFLICT. The consummation of the transactions contemplated herein
and by the Loan Documents or Guarantor Documents will not conflict with
or result in a breach of any law or any regulation, order, writ,
injunction or decree of any court or governmental instrumentalities,
domestic or foreign. Neither Borrower nor any Guarantor is in violation
or ire default of any applicable law or regulation which materially
affects the business, properties (including the Real Property),
condition (financial or otherwise) or operation of Borrower or any
Guarantor. Neither Borrower nor any Guarantor is in violation or in
default of any order, writ, injunction, demand or decree of any court,
or any indenture, agreement or other instrument under which Borrower,
any Guarantor or the Real Property is or may be bound, the violation or
default of which might have an adverse effect on the business,
properties, condition (financial or otherwise) or operations of
Borrower or any Guarantor or might result in the acceleration of the
maturity of any of their indebtedness.
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2.8 NO CONSENT REQUIRED. No consent, approval, or authorization of or
registration, declaration or, filing with any governmental or public
body or authority is required (or, if required, such consent, approval,
order, or authorization will be obtained prior to the date it is
required) in connection with the valid execution and delivery of each
of the Loan Documents, or the carrying out of or performance of any of
the transactions required or contemplated hereby or thereby. Borrower
has not received any material order or notice from any governmental
agency regarding the Real Property which it has not delivered promptly
to Lender.
2.9 ACCESS. The Land is contiguous to public streets, roads or highways,
and vehicular and pedestrian access from the Land is permitted to any
such streets, roads or highways.
2.10 CONDEMNATION. No condemnation or eminent domain proceeding has been
commenced or, to the best knowledge of Borrower, threatened against the
Real Property or any portion thereof.
2.11 BINDING OBLIGATION. The Loan Documents and the Guarantor Documents will
be duly executed and delivered and are and will be valid and legally
binding obligations of Borrower and any Guarantor. Borrower has
thoroughly read and reviewed the terms and provisions of this and all
other Loan Documents and such terms and provisions are clearly
understood and have been fully and unconditionally consented to by
Borrower. Borrower has had a complete and sufficient opportunity for
advice of legal counsel of its own selection, in regard to
understanding the terms, meaning and effect of this and all other Loan
Documents. Borrower has freely and voluntarily executed this Agreement
and the other Loan Documents with full knowledge of the consequences
thereof and without duress or undue influence. Neither Borrower nor any
Guarantor has relied on representations, either written or oral,
express or implied, made to it by Lender or any attorney or agent
acting on behalf of Lender, which are not contained in the Loan
Documents.
2.12 PROCEEDS AND THEIR USE, SET-OFFS AND DEFENSES. Borrower acknowledges
that it has received the full amount of the Loan Proceeds. The proceeds
of the Loan will be used by Borrower exclusively for commercial,
investment or other business purposes and not for personal, family or
household purposes. There are no setoffs or defenses to Borrower's
obligation to pay the indebtedness evidenced by the Note or otherwise
perform pursuant to this and the other Loan Documents.
2.13 RENT ROLL AND LEASES. EXHIBIT "B" attached hereto and by this reference
made a part hereof is a true, accurate and complete rent roll (the
"Rent Roll") indicating all leases and subleases currently in effect
with respect to any portion of the Real Property (collectively the
"Leases"). In connection with the Leases, Borrower represents and
warrants as follows:
(A) The Leases previously delivered to Lender are complete and correct
copies of the original Leases, including all amendments, addenda,
riders, subleases and other documentation relative thereto, and all
Leases are in full force and effect without default and are unmodified
except as noted in the Rent Roll or in any tenant estoppel statement
previously delivered to Lender;
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(B) Borrower is the lessor under the Leases and has not assigned or
agreed to assign (except to Lender) its interest as lessor or master
lessor, as appropriate, under the Leases in whole or in part;
(C) No monetary concessions or inducements of any kind or nature have
been given or promised to the tenants under the Leases (individually, a
"Lessee" and collectively, the "Lessees"), and no Lessee has any
existing defense or claim of offset against Borrower or to such
Lessee's payment and performance of its obligations under its Lease,
except as noted in the Rent Roll or in any tenant estoppel statement
previously delivered to Lender by such Lessee;
(D) No Lessee has or can acquire any right to terminate such Lessee's
Lease, or cease paying the full rent thereunder, before the end of the
term of such Lease except as set forth in the Rent Roll;
(E) The Lessees are each in possession and actually paying rent, in the
sums and at the times and under the terms as set forth in the Leases,
except as disclosed in the Rent Roll;
(F) No Lessee has an option or right of first refusal or other right to
purchase all or any portion of the Real Property, except as set forth
in the Rent Roll or in a tenant estoppel statement previously delivered
to Lender;
(G) The Leases are on an unfurnished basis;
(H) The original term of each Lease is accurately set forth in the Rent
Roll;
(I) No rent has been collected from any Lessee in advance of the date
due (other than any security deposits);
(J) Borrower has committed no default or breach under any of the
Leases, nor has any event occurred which, with the passage of time or
the giving of notice, or both, would constitute a default or breach by
Borrower, under any of the Leases;
(K) None of the Lessees are, as of the date hereof, in default in the
performance of any Lease, nor has any event occurred which, with the
passage of time or the giving or notice, or both, would constitute a
default or breach by Lessee except as disclosed in the Rent Roll;
(L) Except as noted in the Rent Roll, no Lease has been assigned and no
premises demised under any Lease have been sublet;
(M) Except for Lessees occupying the Real Property under the Leases, no
persons have any possessory right in or right to occupy the Real
Property; and
(N) All work, labor, services and material furnished to or in
connection with the portions of the Real Property let pursuant to the
terms of the Leases have been fully paid for, so that no mechanics',
materialmen's or other lien may properly be filed against the Real
Property relating to such matters.
2.14 BROKERAGE COMMISSIONS. No claim is made by any person for unpaid
commissions or brokerage or any other participation in the income from
or ownership of the Real
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Property, and no persons have any liens or claims for money which are
or may be superior to the lien and charge of the Loan Documents.
2.15 REPRESENTATIONS IN COMMITMENT AND OTHERWISE. The representations made
in connection with the Commitment, including but not limited to the
type of development, income and expenses of the Real Property, the
Leases, and the financial condition and credit of Borrower, are as
represented in the Commitment in all respects, except any changes which
may have been approved by Lender in writing. In addition to the
foregoing, all financial and other information and statements relating
to Borrower, any Guarantor and/or any of the Real Property which has
been previously supplied to Lender by Borrower, are true, complete and
correct in all material respects and have been prepared in accordance
with generally acceptable accounting principles, consistently applied.
2.16 STATUS OF REAL PROPERTY. As of the date hereof: (a) not fewer than
262,854 square feet of net rentable area of the Improvements are
physically occupied by Lessees; (b) all of the Lessees together are
paying gross annual rentals of not less than $1,012,488; (c) all of the
Improvements are in tenantable condition (except, in the case of space
not yet occupied, for tenant finish items and fixtures required for a
particular Lessee's use); (d) there are no elevators located in the
Improvements; (e) there are (and throughout the term of the Loan shall
continue to be) not fewer than 203 paved parking spaces at the
Property, including 49 truck spaces and 7 parking spaces suitable for
handicap vehicles; (f) there has been no material damage to the Real
Property or undue settlement of the Improvements; (g) neither Borrower
nor, to the best knowledge of Borrower, any of the Lessees are the
subject of any bankruptcy, reorganization or insolvency proceeding or
any other similar debtor-creditor proceeding; and (h) the Real Property
is free from all due and unpaid water charges, sewer rents, taxes and
assessments.
2.17 OPERATION OF THE REAL PROPERTY.
(A) The Real Property is in full compliance with all governmental
permits and requirements necessary under applicable law to the lawful
ownership and operation of the Real Property;, including but not
limited to all applicable zoning, building, safety and environmental
laws, ordinances and regulations. All inspections, licenses, permits
and certificates required by law, regulation or insurance standards
with respect to the use and occupancy of the Real Property have been
issued and are in full force and effect. All documents evidencing the
right lawfully to occupy the Real Property were duly issued in the
usual course, and Borrower has not received notice of any violation of
any covenants (public or private), ordinances, statutes, rules, orders
or other regulations, nor any notice that the Certificate of Occupancy
or equivalent certification (a copy of which was previously delivered
to Lender) has been called into question or revoked, nor has Borrower
received any notice that the Real Property or the uses to which it has
been put are being challenged by any private individual or any court,
administrative body, municipal corporation or official having
jurisdiction. Borrower has not received any notices, suits, orders,
decrees or judgments relating to violations or alleged violations of
zoning, building, use and occupancy, fire, health, sanitation, air
pollution, ecological, environmental, or other laws against or with
respect to the Real Property or any part
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thereof. Borrower is not aware of any irregularity in the issuance of
any governmental permits or approvals which were necessary to construct
or operate lawfully the Real Property.
(B) There are no actions, suits or proceedings that have been
instituted or, to the best knowledge of Borrower, threatened against
Borrower or affecting or involving any portion of the Real Property, at
law or in equity, by or for any Federal, State or Municipal
governmental department, commission, board, bureau, agency or
instrumentality or any arbitration group or body, and there are no
claims, rights of offset, or litigation, actual, or to the best
knowledge of Borrower, threatened, with respect to the Real Property or
any portion thereof or Borrower, or any principal therein.
(C) Borrower has no knowledge of any material defects in the
Improvements or any of them.
(D) The Real Property: (i) is in compliance with applicable subdivision
and land use ordinances, if any; (ii) constitutes a separate tax lot or
lots for real estate tax purposes, separate from all other taxed
properties (Borrower hereby covenanting and agreeing that it shall not
undertake or consent to the taking of any action to change such
status); and (iii) is being used for purposes consistent with all
applicable zoning laws and regulations and all restrictive covenants
affecting the Property.
(E) All of the Improvements have been constructed (and, as applicable,
renovated) in accordance with the requirements of all regulatory
authorities having jurisdiction. All Improvements have been constructed
or renovated entirely on the Real Property within the applicable
building restriction lines; do not and shall not violate use or other
restrictions contained in prior conveyances, zoning ordinances or
restrictions; and will not encroach upon any easement or right of way
or upon the land of others.
(F) All utilities and services necessary to the full use and enjoyment
of the Real Property and Improvements (including, without limitation,
gas, electricity and telephone) have been fully installed and are
connected to the Property. All roads necessary for the full utilization
of the Real Property and Improvements for their intended purposes have
been completed. There is unrestricted access for the passage of motor
vehicles to and from the Real Property to and from Champagne Avenue.
(G) Borrower has not received any notices from any insurance company of
any defects or inadequacies in the Real Property or any portion
thereof, which would materially and adversely affect the insurability
of the Real Property or any portion thereof or the premiums for the
insurance thereof, and no notice has been given to Borrower by any
insurance company that has issued a policy with respect to any portion
of the Real Property or by any board of fire underwriters (or other
body exercising similar functions) requesting the performance of any
work, which has not been fully complied with.
(H) Except as disclosed in writing by Borrower to Lender prior to the
date of this Agreement, no part of the Property is located in an area
designated as having special flood hazards on any maps entitled: "Flood
Insurance Rate Map," "Flood Hazard Floodway Boundary Map," "Flood
Hazard Boundary Map," or "Flood Boundary and Floodway Map" published by
the Federal Emergency Management Agency or a "Flood
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Hazard Boundary Map" published by the United States Department of
Housing and Urban Development.
(I) There are no parties in possession of any portion of the Real
Property except Lessees under Leases. All Leases are in full force and
effect. Borrower and the Real Property are in compliance with all
Leases.
(J) No options or other contracts are outstanding which give or grant
to any party a right to purchase from Borrower the Real Property, any
interest in the Real Property, any interest in Borrower, or any portion
of any of the foregoing.
(K) On the date hereof, the Real Property is zoned M-2 Vintage
Industrial Overlay District, pursuant to the zoning ordinances of the
City of Ontario, San Bernardino County, California. This zoning
classification permits operation and use of the Real Property for a
warehouse, distribution facility, offices and showrooms.
2.18 BORROWER'S REAL ESTATE EXPERIENCE. Borrower is a commercially
sophisticated entity with experience in dealing in the financial
marketplace and specifically in the real estate financial marketplace.
2.19 COMPLETE INFORMATION. No representation or warranty of Borrower or any
Guarantor contained in any of the Loan Documents or Guarantor
Documents, no statement of Borrower or any Guarantor contained in any
certificate, schedule, list, financial statement or other instrument
furnished to Lender by or on behalf of Borrower or any Guarantor, and,
to the best knowledge of Borrower, no statement of any person or entity
other than Borrower or any Guarantor contained in any certificate,
schedule, list, financial statement or other instrument furnished to
Lender by or on behalf of Borrower or any Guarantor, contains any
untrue statement of a material fact, or omits to state a material fact
necessary to make the statements contained therein not misleading in
any material respect.
2.20 TITLE POLICY. There is no agreement or arrangement between Xxxxxxx
Title and Guaranty Company ("Title Company") and Borrower (or any
person affiliated with Borrower) relative to Title Company's not
setting forth in the title policy issued to Lender concurrently with
the Closing of the Loan an exception for any matter, lien or
encumbrance on or affecting the Real Property and/or Improvements,
unless such agreement or arrangement has been disclosed to and
consented to by Lender in writing prior to the date of this Agreement.
No such agreement or arrangement will hereafter be entered into without
the prior written consent of Lender.
3. MISCELLANEOUS
3.1 DEFAULT AND REMEDIES. Any breach by Borrower of any covenant or
agreement contained herein, or any misrepresentation by Borrower of any
representation, warranty, certification or confirmation contained
herein, shall, subject to any applicable notice and cure periods set
forth in the other Loan Documents, constitute an "Event of Default"
hereunder, and shall entitle Lender to exercise any and all remedies
available to Lender pursuant to this Agreement and any other Loan
Document, or available to Lender at law or in equity. In furtherance of
the foregoing, any Event of Default hereunder shall be deemed to
constitute an Event of Default under any and all of the other Loan
Documents.
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The remedies herein provided or otherwise available to Lender shall be
cumulative and may be exercised concurrently and may be pursued
singularly, successively or together, at the sole discretion of Lender,
and may be exercised as often as occasion therefor shall arise.
3.2 NO WAIVER; CONSENTS. Lender may waive any breach by Borrower of any of
the provisions contained herein or in the Loan Documents, and/or any
default by Borrower in the observance or performance of any covenant or
condition required to be observed or performed by it contained herein
or therein; provided always that such waiver or waivers shall be in
writing, shall not be construed as a continuing waiver, and shall not
extend to or be taken in any manner whatsoever to affect any subsequent
breach, act of omission or default or affect Lender's rights resulting
therefrom. Lender's consent to any act or omission of Borrower shall
not be construed to be a consent to any other or subsequent act or
omission or to waive the requirement for Lender's consent to be
obtained in any future or other instance. No act of omission or
commission of Lender, including specifically any failure to exercise
any right, remedy or recourse, shall be deemed to be a waiver or
release of the same, and any waiver or release with reference to any
one event shall not be construed as continuing or as a bar to, or as a
waiver or release of, any subsequent right, remedy or recourse as to a
subsequent event.
3.3 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan Documents
shall be binding upon Borrower and its respective successors and
assigns, and shall inure to the benefit of Lender and its successors
and assigns. Borrower shall not assign any right which it may have
pursuant to the terms of this Agreement and the other Loan Documents
without obtaining the prior written consent of Lender, which consent
may be given or withheld in Lender's sole and absolute discretion.
Lender may endorse, convey, transfer and assign its rights and
interests under this Agreement and the other Loan Documents to any
other party and/or affiliate of Lender and Borrower agrees to make such
modifications in the Loan Documents as will facilitate such assignment
provided that such modifications do not add to the obligations of
Borrower.
3.4 NATURE OF RELATIONSHIP.
(A) The relationship between Lender and Borrower in connection with the
Loan shall be solely that of creditor and debtor. Nothing contained in
this Agreement or in any other Loan Documents shall be deemed or
construed to create a partnership, tenancy-in-common, joint tenancy,
joint venture or co-ownership between Lender and Borrower. Lender shall
not be in any way responsible or liable for the debts, losses,
obligations or duties of Borrower with respect to the Real Property or
otherwise by virtue of the Loan. All obligations to pay real property
or other taxes, assessments, insurance premiums, and all other fees and
charges arising from the ownership, operation, use or occupancy of the
Real Property and to perform obligations under all Leases and other
agreements and contracts relating to the Real Property shall be the
sole responsibility of Borrower.
(B) Lender is not a partner or joint venturer in any manner whatsoever
with Borrower or any other party in the operation of the Real Property.
Lender shall not in any manner whatsoever be liable or responsible by
reason of the provisions hereof, or otherwise, for
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the payment of any claims arising from the operation of the Real
Property. Lender shall not be responsible for the solvency of any
company issuing any policy of insurance pursuant to any of the Loan
Documents whether or not approved by it, or for the collection of any
amounts due under any such policy, and shall be responsible and
accountable only for such money as may be actually received by it, and
then only in accordance with the terms of the Loan Documents. Nothing
contained in any of the Loan Documents shall be construed as making
Lender liable in any way for any loss, damage, or injury resulting from
the non-insurance of the Real Property or any property located on the
Real Property.
3.5 INDEMNIFICATION BY BORROWER.
(A) Borrower hereby agrees to and shall indemnify, defend, protect and
hold Lender harmless from and against any and all third party claims,
demands, damages, losses, liens, liabilities, penalties, fines,
lawsuits and other proceedings, and all costs and expenses (including,
without limitation, reasonable attorney's fees), arising directly or
indirectly from, or out of, or in any way connected with (i) any
inaccuracy in the representations, warranties, certifications or
confirmations contained in this Agreement or in any of the other Loan
Documents; and/or (ii) Borrower's ownership or operation of the
Property. Borrower agrees that its obligations hereunder shall not be
limited or in any way affected by any limitations on liability for
repayment of the Indebtedness contained elsewhere in the Loan
Documents, including, without limitation, any limitations on liability
contained in Section 3.6 below, Section 9 of the Note or Section 3.7 of
the Security Instrument (defined below).
(B) Borrower agrees to indemnify, protect, defend, reimburse and hold
Lender harmless for, from and against any and all claims and
liabilities, losses, injuries, costs, damages and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) which
Lender may incur in administering or enforcing the Loan, Loan Documents
or Guarantor Documents as a result of any act of Lender thereunder or
taken pursuant hereto and of and from any and all claims or demands
whatsoever which may be instituted against Lender by reason of any
alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants or agreements contained in any Lease or any
other agreement made by Borrower relating to the Real Property. Should
Lender incur any such liability under any Lease, or under or by virtue
of this Agreement or any other Loan Document, or any other agreement
made by Borrower relating to the Real Property, or in defense of any
claims or demands related thereto, the amount thereof, including,
without limitation, costs, expenses and reasonable attorneys' fees,
shall be secured by the Security Instrument and all other instruments
of security made in connection with the Loan, and Borrower agrees to
reimburse Lender therefor immediately upon demand together with
interest thereon at the Augmented Rate from the later of the date the
demand therefor is received by Borrower or the date such amounts were
incurred by Lender, to the date reimbursed. Upon the failure of
Borrower to so indemnify, protect, defend, hold harmless or reimburse
and the expiration of any applicable cure periods, Lender may declare
all sums due hereunder and under the Note and the other Loan Documents
immediately due and payable.
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3.6 NON-RECOURSE, WITH EXCEPTIONS. Except as provided below, the liability
of Borrower for payment of the indebtedness evidenced by the Note shall
be limited to the Real Property and such other collateral ("Other
Collateral") as may be pledged to secure the indebtedness evidenced
hereby, pursuant to the Loan Documents, or otherwise. The Real Property
and the Other Collateral are sometimes collectively referred to herein
as the "Security." Lender agrees not to seek or obtain any deficiency
or personal judgment against Borrower except such judgment or decree as
may be necessary to obtain Borrower's interest in the Security. The
foregoing limitation of Borrower's liability shall not apply to, and
regardless of the sale or other disposition of the Security, Borrower
shall be and remain personally liable for any loss, damage or expense,
including reasonable attorney's fees, suffered by Lender as a result of
any of the following (collectively, the "Recourse Obligations"):
(A) Any failure of Borrower to maintain in full force and erect all
insurance required to be maintained under the Loan Documents or to
repair and/or reconstruct any of the Security in accordance with the
terms of the Loan Documents.
(B) Any failure of Borrower to pay when due all taxes and assessments
levied or assessed against any of the Security (including, without
limitation, any failure of Borrower to deposit sufficient
tax/assessment impounds with Lender as required under the Loan
Documents).
(C) The execution, modification and/or termination of any Leases
affecting the Security without the consent of Lender.
(D) Any transfers of any of the Security or ownership interests in
Borrower or in any entity that constitutes, either directly or
indirectly, Borrower, without the consent of Lender, where such consent
is required under the Loan Documents.
(E) Any actions and claims instituted against or, affecting any of the
Security, including mechanic's liens.
(F) Any default under any separate Certificate(s) and Indemnity(ies)
Regarding Hazardous Substances given by Borrower and/or Guarantor(s) in
favor of Lender.
(G) Any waste or intentional or willful destruction of any of the
Security by Borrower or its agents arid contractors.
(H) Any fraud or intentional or willful misrepresentation, by any party
(other than Lender) executing the Note or any other Loan Document (even
if other than Borrower) or any successor or permitted assign thereof.
(I) Any misapplication of any proceeds (A) paid under any insurance
policies or (B) realized from awards from condemnation or the exercise
of the power of eminent domain (or a taking in lieu thereof), in any
case arising from any of the Security (which misapplication shall be
deemed to have occurred in the event that any such proceeds are not
used in the manner provided in the Loan Documents relative to casualty
and/or condemnation, as applicable).
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(J) Any misapplication of the gross proceeds (including without
limitation rents and all other revenues) from any of the Security
(which misapplication shall be deemed to have occurred in the event any
of such gross proceeds are not first applied to costs of operating and
maintaining the Security, including without limitation, payment of the
Note).
(K) Any application of security deposits other than in accordance with
applicable law and with the terms of the applicable leases under which
the security deposits are held; or Borrower's failure to provide such
security deposits to Lender upon Lender's acquisition of the Security,
after default.
(L) The removal of any personal property, fixtures and equipment from
the Security by or on behalf of the Borrower and Borrower's failure to
replace same with items of the same utility and the same or greater
value.
(M) Any fees and commissions paid by Borrower to any member, partner,
shareholders, agent, employee, affiliate or related party of Borrower.
Notwithstanding any other provision of this Section 3.6 to the
contrary, the Loan shall be fully recourse in the event that Borrower
commences a voluntary bankruptcy or insolvency proceeding or a
bankruptcy or insolvency proceeding is commenced against Borrower and
is not dismissed within ninety (90) days of filing. As used herein, the
phrase "Recourse Obligations" shall include Borrower's full recourse
liability pursuant to the preceding sentence. Nothing contained herein,
however, shall constitute a waiver of any right which Lender may have
under any provisions of the United States Bankruptcy Code to file a
claim for the full amount of the indebtedness secured by the Security
Instrument or to require that the Real Property shall continue to
secure all of the indebtedness owing to Lender.
In connection with the foregoing, Borrower shall cause each
Guarantor(s) to execute a guaranty relative to the Recourse Obligations
acceptable to Lender in all respects.
3.7 ATTORNEYS' FEES.
(A) In the event Borrower fails to perform any of its obligations under
the Loan Documents or if any dispute arises between the parties hereto
concerning the meaning or interpretation of any provision of this
Agreement or other Loan Document or a party's rights hereunder, then
the Borrower shall pay any and all costs and expenses incurred by
Lender on account of such default and/or in enforcing or establishing
its rights hereunder, including, without limitation, court costs and
reasonable attorneys' fees and disbursements, whether in trial courts,
appellate courts, bankruptcy courts, arbitration or mediation. Arty
such attorneys' fees and other expenses incurred by Lender in enforcing
a judgment in its favor under this Agreement shall be recoverable
separately from and in addition to arty other amount included in such
judgment, and such attorneys' fees obligation is intended to be
severable from the other provisions of this Agreement and to survive
and not be merged into any such judgment.
(B) Without limiting the generality of Section 3.7(a) above, Borrower
hereby agrees to pay all costs of collection under the Loan Documents
and the Guarantor Documents
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executed in connection herewith, including attorneys' fees, whether or
not litigation is actually commenced and whether in trial courts,
appellate courts, bankruptcy courts, arbitration or mediation. In the
event Lender is made a party to any litigation because of the existence
or execution of the Loan Documents or Guarantor Documents, Borrower
shall reimburse Lender for its costs and attorneys' fees incurred with
respect to such litigation.
3.8 TIME OF ESSENCE. Time is of the essence of all obligations under the
Loan Documents.
3.9 MODIFICATION, AND AMENDMENTS. No modification, consent, amendment or
waiver of any provision:, of the Loan Documents or the other documents
executed in connection therewith, nor consent of any departure by
Borrower therefrom, shall be effective unless the same be in writing.
3.10 INDEMNIFICATION FOR BROKERS' FEES. Borrower represents and warrants to
Lender that it has had no dealings, negotiations, or consultations with
any broker, representative, employee, agent or other intermediary other
than X.X. Xxxxxx and Company ("Broker") in connection with the
obtaining or the funding of the Loan. Borrower agrees to indemnify,
defend and hold Lender free and harmless from the claims of Broker and
any other brokers, representatives, employees, agents or other
intermediaries claiming to have represented Borrower or otherwise to be
entitled to compensation in connection with this Agreement or the
funding of the Loan. The provisions of this Section 3.10 shall survive
the funding and subsequent repayment of the Loan.
3.11 SURVIVAL OF WARRANTIES. All covenants, agreements, representations,
certifications, confirmations, warranties and indemnifications made
herein shall survive the execution and delivery of this Agreement and
the other Loan Documents and the making of the Loan.
3.12 SEVERABILITY. If any provision of this Agreement or any of the other
Loan Documents is invalid, illegal or unenforceable, such provision
shall be severable from the rest of this Agreement or the other Loan
Documents and the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
3.13 GOVERNING LAW. This Agreement and the other Loan Documents shall be
governed by and construed in all respects according to the laws of the
state wherein the Real Property is located, without regard to the
choice of laws provisions thereof.
3.14 RELATIONSHIP OF LOAN DOCUMENTS AND THIS AGREEMENT TO COMMITMENT. The
terms and provisions of this Agreement and the other Loan Documents
supersede any inconsistent terms and conditions of the Commitment which
shall otherwise survive the execution and delivery of the Loan
Documents. Any failure by Borrower to perform any remaining obligations
under the Commitment, including but not limited to any obligation to
pay fees to Lender or to pay any costs or expenses relating to the
Loan, shall constitute an Event of Default hereunder and under the
other Loan Documents.
3.15 REASONABLENESS OF ACTIONS. In each and every instance in which the
approval, consent, authorization, or satisfaction of Lender is required
under the provisions of this Agreement or any of the ocher Loan
Documents, such approval, consent, authorization, or satisfaction
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if withheld or delayed shall be presumed reasonable, and in the event
it is ultimately determined that Lender's approval, consent,
authorization, or satisfaction was wrongly withheld or delayed,
Borrower's remedies shall be limited to specific performance if
specific performance would make Borrower whole, and if not, Borrower's
damages shall be limited to actual damages and/or specific performance
the end result of which is to make Borrower whole. By the execution of
this Agreement, Borrower waives any right to claim consequential,
exemplary or punitive damages against Lender.
3.16 NOTICES. All notices given by any party hereunder and under the other
Loan Documents shall be given in the manner provided in the deed to
secure debt, mortgage or deed of trust on even date herewith (the
"Security Instrument") given by Borrower to Lender to secure the Loan.
3.17 WAIVER OF SUBROGATION. Borrower, until the Loan is paid in full, hereby
waives any and all rights of subrogation to Lender's rights or claims
to the extent affecting the Security for the Loan.
3.18 NO THIRD PARTIES BENEFITED. By their execution of this Agreement, the
parties hereto do not intend to create any rights of any kind or nature
whatsoever in any third parties and no third parties shall have any
rights hereunder.
3.19 HEADINGS. Headings of the sections of this Agreement are inserted for
convenience only and shall not be, deemed to constitute a part hereof.
3.20 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (and by different parties on separate counterparts), each
of which shall be deemed an original and all of which, when taken
together, shall constitute one instrument.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement as of the day and year first written above.
BORROWER:
YALE INVESTMENTS, LLC,
a Delaware limited liability company
By: SKECHERS U.S.A., INC.,
a Delaware corporation, as the Sole Member and Manager
of Yale Investments, LLC
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXXX X. XXXXXXXX
--------------------------- --------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
------------------------ ----------------------------
Title: CFO Title: General Counsel & Secretary
----------------------- ---------------------------
LENDER:
MONY LIFE INSURANCE COMPANY,
a New York corporation
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxx XxXxxxxx
-------------------------------
Title: Sr. Vice President
------------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
The land located in San Bernardino County, State of California, more
particularly described as follows:
PARCELS 18 AND 23 OF PARCEL MAP NO. 9252, AS SHOWN BY MAP ON FILE IN BOOK 107
PAGE(S) 75 THROUGH 82, INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAN BERNARDINO
COUNTY, CALIFORNIA;
ALSO EXCEPTING THEREFROM ALL MINERAL AND ALL MINERAL RIGHTS, OIL AND GAS AND
RIGHTS THERETO TOGETHER WITH SOLE, EXCLUSIVE AND PERPETUAL RIGHT TO EXPLORE FOR,
REMOVE AND DISPOSE OF, SAID MAINERALS BY ANY MEANS OR METHODS SUITABLE, BUT
WITHOUT ENTERING UPON OR USING THE SURFACE OF SAID LANDS AND IN SUCH A MANNER AS
NOT TO DAMAGE SURFACE OF SAID LANDS AS NOT TO INTERFERE WITH THE USE THEREOF, AS
CONVEYED TO UNION PACIFIC LAND RESOURCES CORPORATION BY DEED RECORDED NOVEMBER
23, 1982 AS INSTRUMENT NO. 82-234011 OF OFFICIAL RECORDS.
NOTE: SAID LAND IS DESCRIBED AND DELINEATED AS LOT A IN THAT CERTAIN CERTIFICATE
APPROVING A XXX XXXX XXXXXXXXXX XX. XX-00-00, RECORDED JANUARY 7, 2000 AS
INSTRUMENT NO. 00-006152 OF OFFICIAL RECORDS.
18
EXHIBIT "B"
RENT ROLL
19
RENT ROLL
----------------------------------------------------------------------------------------------------------
Suite No. Tenant Lease Area Comm. Expiration Minimum Minimum Exp.
Status (sq. ft.) Date Date Current Annual Rate Stop
Annual ($psf)
Rental
($psf)
----------------------------------------------------------------------------------------------------------
1670 S. Skechers Assigned 263,670 07/15/00 07/14/15 $3.90/sf/yr $1,028,316 None
Champ-agne USA,
Avenue Inc.
--------------------------------------------------------------------
Fixed CPI/Fixed Rent Total Tenant Security
Reimbur- Increases Occupied Share Deposit
sement Sq. Ft.
--------------------------------------------------------------------
NNN, tenant Month 61: $92,285 100% 100% $85,693
responsible Month 96: CPI
for all Month 132: CPI
operating Month 168: CPI
I hereby certify this to
be true and accurate:
Yale Investments, LLC
By:
---------------------------------
Its:
--------------------------------
Date:
-------------------------------
