California (State or Other Jurisdiction of Incorporation) | 0-21296 (Commission File Number) | 95-3759463 (IRS Employer Identification No.) |
3450 East Miraloma Avenue Anaheim, CA (Address of principal executive offices) | 92806-2101 (Zip Code) |
Item 9.01 Financial Statements and Exhibits. | |||
(c) Exhibits. | |||
10.1 Modification Agreement, dated as of July 1, 2014, between Miraloma and Anico | |||
10.2 Modification of Note, Mortgage and Other Agreements, dated as of July 1, 2014, between PacSun Stores and Anico |
PACIFIC SUNWEAR OF CALIFORNIA, INC. | |
/s/ CRAIG E. GOSSELIN | |
Craig E. Gosselin Sr. Vice President, General Counsel and Human Resources |
1. | Modification of the Note. The Note is hereby modified as follows: |
a. | Maturity Date. The Maturity Date of the Note is extended to July 1, 2021 (“Extended Maturity Date”). Notwithstanding any contrary provisions of any Amended Loan Document, Trustor shall have no further right to extend the Maturity Date of the Note. |
b. | Additional Advance; Balance of Note; Interest Rate Adjustment; Payment of Note. Trustor and Beneficiary agree that upon the Effective Date the unpaid principal balance of the Note is $15,631,622.66 (“Original Principal Balance”) and interest has been paid through June 30, 2014. At the request of Trustor, Beneficiary has agreed to increase the principal balance of the Note with an additional advance in the amount of $278,377.34 (“Additional Advance”), which Trustor advises Beneficiary will be applied to fund the payment of fees, commissions and expenses incurred by Beneficiary and Trustor, in connection with this Second Modification, bringing the principal balance on the Note to $15,910,000.00 (“Adjusted Principal Balance”). In addition, the Contract Rate under the Note shall be modified, as of the date of the disbursement of the Additional Advance (“Disbursement Date”), to the rate of five and twenty-five hundredths percent (5.25%) per annum (the “Adjusted Contract Rate”). Principal and accrued interest is payable by Trustor to the order of Beneficiary in monthly installments of $93,672.14 each, the first installment to become due and payable on August 1, 2014 and one of said installments to become due and payable on the same day of each and every succeeding calendar month thereafter to the Extended Maturity Date, at which time the entire unpaid principal amount, any interest accrued but remaining unpaid, and all other sums due under the Amended Loan Documents, shall be due and payable. |
c. | No Further Advances. Notwithstanding anything to the contrary in this Modification or any other Amended Loan Document, Trustor and Beneficiary agree that upon the Disbursement Date, the Note shall be fully funded and Trustor shall not be entitled to request or receive any additional advances under the Note, as amended hereby. |
d. | Paragraph one (1) of the Note shall be amended by adding the following language: |
e. | Paragraph nine (9) of the Note shall be deleted in its entirety and replaced with the following: |
Trustor's Initials: | /s/ CEG |
2. | Modification of Mortgage and other Loan Documents. The liens, security interests, assignments and other rights evidenced by the Mortgage, as previously amended, and the other Amended Loan Documents, as previously amended, are renewed and extended to secure payment of the Note as amended hereby. |
3. | Conditions Precedent to Effectiveness. The effectiveness of this Second Modification shall be conditioned upon the receipt of all or verification of the following documents and events upon terms and conditions acceptable to Beneficiary: |
a. | a duly executed original of this Second Modification signed by all parties hereto, with all such signatures being notarized; |
b. | upon or before the recordation hereof, and as conditions precedent to the effectiveness of this Second Modification, (a) Trustor shall cause to be issued by First American Title Insurance Company (“Title Company”) to Beneficiary, at Borrowers’ sole cost and expense, the following CLTA endorsements to Beneficiary’s ALTA Extended Coverage Lender’s Policy of Title Insurance insuring the Mortgage issued by Title Company dated August 20, 2010 Policy No. 446233 (the "Lender's Title Policy"): (i) a CLTA endorsement 108.8 in the amount of the Additional Advance; (ii) a CLTA endorsement 110.5, or equivalent, insuring that the recordation of this Modification will not affect the priority of the lien of the Mortgage and that the Mortgage, as modified by the First Modification and by this Second Modification, remains a lien in first position encumbering the Property; and (iii) such other CLTA endorsements to Lender’s Title Policy as may be reasonably requested by Lender; |
c. | Trustor shall pay all costs and expenses incurred in connection with the modifications and agreements described herein, including, without limitation, the fees and expenses of Beneficiary's outside legal counsel, title costs and recording and filing fees. |
d. | any and all other documentation as Beneficiary may reasonably require. |
4. | Trustor’s Representations and Warranties. Trustor represents and warrants that Trustor: (i) is fully aware of and clearly understands all of the terms and provisions contained in this Second Modification; (ii) has voluntarily, with full knowledge and without coercion or duress of any kind, entered into this Second Modification; (iii) is not relying on any representation, whether written or oral, express or implied, made by Beneficiary other than as set forth in this Second Modification; (iv) on its own initiative has made proposals to the Beneficiary, the terms of which are reflected by this Second Modification; and (v) has received actual and adequate consideration to enter into this Second Modification. |
5. | Miscellaneous. |
a. | Except as expressly modified hereby, the provisions of the Amended Loan Documents shall continue in full force and effect, and the Trustor acknowledges and reaffirms its liability to Beneficiary thereunder. In the event of any inconsistency between this Second Modification and the terms of the Amended Loan Documents, this Second Modification shall govern. |
b. | In case any one or more of the provisions contained in this Second Modification 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 hereof, and this Second Modification shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. |
c. | Beneficiary does not, by its execution of this Second Modification, waive any rights it may have against any person not a party hereto. |
d. | This Second Modification may be executed in multiple counterparts, each of which shall constitute an original instrument, but all of which shall constitute one and the same agreement. |
e. | All headings and captions in this Second Modification are for convenience of reference only and shall not be used in the interpretation of any provisions of this Second Modification. |
f. | Time is of the essence of this Second Modification. |
g. | Where appropriate, all references to the singular shall include the plural and vice versa and all references to any gender shall include the others. |
TRUSTOR: | ||
MIRALOMA BORROWER CORPORATION, | ||
a Delaware corporation | ||
By: | /s/ CRAIG E. GOSSELIN | |
Name: | CRAIG E. GOSSELIN | |
Its: | PRESIDENT | |
BENEFICIARY: | ||
AMERICAN NATIONAL INSURANCE | ||
COMPANY, a Texas insurance company | ||
By: | /s/ ROBERT J. KIRCHNER | |
Name: | ROBERT J. KIRCHNER | |
Title: | VICE PRESIDENT |
THE STATE OF TEXAS | § |
§ | |
COUNTY OF GALVESTON | § |
1. | Modification of the Note. The Note is hereby modified as follows: |
a. | Maturity Date. The Maturity Date of the Note is extended to July 1, 2021 (“Extended Maturity Date”). Notwithstanding any contrary provisions of any Loan Document, Maker shall have no further right to extend the Maturity Date of the Note. |
b. | Additional Advance; Balance of Note; Interest Rate Adjustment; Payment of Note. Maker and Noteholder agree that upon the Effective Date, the unpaid principal balance of the Note is $12,095,898.40 (“Original Principal Balance”) and interest has been paid through June 30, 2014. At the request of Maker, Noteholder has agreed to increase the principal balance of the Note with an additional advance in the amount of $224,101.60 (“Additional Advance”), which Maker advises Noteholder will be applied to fund the payment of fees, commissions and expenses incurred by Noteholder and Maker, in connection with this Modification, bringing the principal balance on the Note to $12,320,000.00 (“Adjusted Principal Balance”). In addition, the Contract Rate under the Note shall be modified, as of the date of the disbursement of the Additional Advance (“Disbursement Date”), to the rate of five and twenty-five hundredths percent (5.25%) per annum (the “Adjusted Contract Rate”). Principal and accrued interest is payable by Maker to the order of Noteholder in monthly installments of $72,484.39 each, the first installment to become due and payable on August 1, 2014 and one of said installments to become due and payable on the same day of each and every succeeding calendar month thereafter to the Extended Maturity Date, |
c. | No Further Advances. Notwithstanding anything to the contrary in this Modification or any other Loan Document, Maker and Noteholder agree that upon the Disbursement Date, the Note shall be fully funded and Maker shall not be entitled to request or receive any additional advances under the Note, as amended hereby. |
d. | Paragraph one (1) of the Note shall be amended by adding the following language: |
e. | Paragraph nine (9) of the Note shall be deleted in its entirety and replaced with the following: |
2. | Modification of Mortgage and other Loan Documents. The liens, security interests, assignments and other rights evidenced by the Mortgage, as previously amended, and the other Loan Documents, as previously amended, are renewed and extended to secure payment of the Note as amended hereby. |
3. | Conditions Precedent to Effectiveness. The effectiveness of this Modification shall be conditioned upon the receipt of all or verification of the following documents and events upon terms and conditions acceptable to Noteholder: |
a. | a duly executed original of this Modification signed by all parties hereto, with all such signatures being notarized; |
b. | any and all other documentation as Noteholder may reasonably require. |
4. | Maker’s Representations and Warranties. Maker represents and warrants that Maker: (i) is fully aware of and clearly understands all of the terms and provisions contained in this Modification; (ii) has voluntarily, with full knowledge and without coercion or duress of any kind, entered into this Modification; (iii) is not relying on any representation, whether written or oral, express or implied, made by Noteholder other than as set forth in this Modification; (iv) on its own initiative has made proposals to the Noteholder, the terms of which are reflected by this Modification; and (v) has received actual and adequate consideration to enter into this Modification. |
5. | Miscellaneous. |
a. | Except as expressly modified hereby, the provisions of the Loan Documents shall continue in full force and effect, and the Maker acknowledges and reaffirms its liability to Noteholder thereunder. In the event of any inconsistency between this Modification and the terms of the Loan Documents, this Modification shall govern. |
b. | In case any one or more of the provisions contained in this Modification 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 hereof, and this Modification shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. |
c. | Noteholder does not, by its execution of this Modification, waive any rights it may have against any person not a party hereto. |
d. | This Modification may be executed in multiple counterparts, each of which shall constitute an original instrument, but all of which shall constitute one and the same agreement. |
e. | All headings and captions in this Modification are for convenience of reference only and shall not be used in the interpretation of any provisions of this Modification. |
f. | Time is of the essence of this Modification. |
g. | Where appropriate, all references to the singular shall include the plural and vice versa and all references to any gender shall include the others. |
MAKER: | ||
PACIFIC SUNWEAR STORES CORP., | ||
a California corporation | ||
By: | /s/ CRAIG E. GOSSELIN | |
Name: | CRAIG E. GOSSELIN | |
Its: | PRESIDENT | |
NOTEHOLDER: | ||
AMERICAN NATIONAL INSURANCE | ||
COMPANY, a Texas insurance company | ||
By: | /s/ ROBERT J. KIRCHNER | |
Name: | ROBERT J KIRCHNER | |
Title: | VICE PRESIDENT |
THE STATE OF TEXAS | § |
§ | |
COUNTY OF GALVESTON | § |