Skechers U.S.A. Annual Report 2000

Plain-text annual report

1================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM 10-K ----------------[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2000 OR[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____________ TO ____________ . COMMISSION FILE NUMBER: 001-14429 SKECHERS U.S.A., INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 95-4376145 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 228 MANHATTAN BEACH BLVD. MANHATTAN BEACH, CALIFORNIA 90266 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (310) 318-3100 SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NAME OF EACH EXCHANGE TITLE OF EACH CLASS ON WHICH REGISTERED ------------------- ---------------------- Class A Common Stock $0.001 par value New York Stock Exchange Indicate by check mark whether the registrant (1) has filed all reportsrequired to be filed by Section 13 or 15(d) of the Securities Exchange Act of1934 during the preceding 12 months (or for such shorter period that theregistrant was required to file such reports), and (2) has been subject to suchfiling requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item405 of Regulation S-K is not contained herein, and will not be contained, to thebest of registrant's knowledge, in definitive proxy or information statementsincorporated by reference in Part III of the Form 10-K or any amendment to thisForm 10-K. [X] The aggregate market value of the voting stock held by non-affiliates of theregistrant based upon the closing sales price of its Class A Common Stock onMarch 26, 2001 on the New York Stock Exchange was approximately $419 million. The number of shares of Class A Common Stock outstanding as of March 26, 2001was 12,546,972. The number of shares of Class B Common Stock outstanding as of March 26, 2001was 23,505,451. DOCUMENTS INCORPORATED BY REFERENCE Portions of the Registrant's Definitive Proxy Statement issued in connectionwith the 2001 Annual Meeting of the Stockholders of the Registrant areincorporated by reference into Part III.================================================================================ 2 SKECHERS U.S.A., INC. FOR THE FISCAL YEAR ENDED DECEMBER 31, 2000 INDEX TO ANNUAL REPORT ON FORM 10-K PAGE ---- PART IItem 1. Business............................................................... 3Item 2. Properties............................................................. 15Item 3. Legal Proceedings...................................................... 16Item 4. Submission of Matters to a Vote of Security Holders.................... 17 PART IIItem 5. Market for Registrant's Common Equity and Related Stockholder Matters.. 18Item 6. Selected Financial Data................................................ 19Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.................................................. 19Item 7a. Quantitative and Qualitative Disclosures About Market Risk............ 23Item 8. Financial Statements and Supplementary Data............................ 24Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure................................................... 24 PART IIIItem 10. Directors and Executive Officers of the Registrant..................... 25Item 11. Executive Compensation................................................. 25Item 12. Security Ownership of Certain Beneficial Owners and Management......... 25Item 13. Security Relationships and Related Transactions........................ 25 PART IVItem 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K........ 26Signatures........................................................................ 29Consolidated Financial Statements................................................. F-1 2 3 PART IITEM 1. BUSINESS Certain information contained in this report constitutes forward-lookingstatements which involve risks and uncertainties including, but not limited to,information with regard to our plans to increase the number of retail locationsand styles of footwear, the maintenance of customer accounts and expansion ofbusiness with such accounts, the successful implementation of our strategies,future growth and growth rates and future increases in net sales, expenses,capital expenditures and net earnings. The words "believes," "anticipates,""plans," "expects," "endeavors," "may," "will," "intends," "estimates," andsimilar expressions are intended to identify forward-looking statements. Theseforward-looking statements involve risks and uncertainties, and our actualresults could differ materially from those anticipated in these forward-lookingstatements as a result of certain factors, including, but not limited to, thoseset forth under "Risk Factors" and elsewhere in this Report.GENERAL Skechers U.S.A., Inc. ("Skechers") designs and markets branded contemporarycasual, active, rugged and lifestyle footwear for men, women and children. Ourobjective is to become a leading source of contemporary casual and activefootwear while ensuring the longevity of both Skechers and the Skechers brandname through controlled, well managed growth. We strive to achieve thisobjective by developing and offering a balanced assortment of basic andfashionable merchandise across a wide spectrum of product categories and styles,while maintaining a diversified, low-cost sourcing base and controlling thegrowth of our distribution channels. We sell our products to department storessuch as Nordstrom, Macy's, Dillards, Robinsons-May, and JC Penney and specialtyretailers such as Footlocker, Lady Footlocker, Kid's Footlocker, FamousFootwear, Genesco's Journeys and Jarman chains, and Footaction U.S.A. We alsoown and operate Skechers' retail stores and sell product directly to consumersthrough mail order and web site distribution. We, through major internationaldistributors, sell our products in over 100 countries and territories, with theexception of France and Germany where we sell directly to department stores andspecialty retailers. Our product offerings of men's, women's and children's footwear appeal to abroad customer base between the ages of 5 and 40 years. Our strategy ofproviding a growing and balanced assortment of quality basic footwear andseasonal and fashion footwear with progressive styling at competitive pricesgives Skechers this broader based customer appeal. Our men's and women'sfootwear are primarily designed with the active, youthful lifestyle of the 12 to25 year old age group in mind. Our product offerings include casual and utilityoxfords, loggers, boots and demi-boots; skate, street and fashion sneakers;hikers, trail runners and joggers; sandals, slides and other open-toe footwear;and dress casual shoes. Our management and design team collectively possess extensive experience inthe footwear industry. Robert Greenberg and Michael Greenberg, the Chairman ofthe Board and President, respectively, founded Skechers in 1992. Prior to thattime, Robert Greenberg co-founded L.A. Gear, Inc. ("L.A. Gear") and, togetherwith a management team which included Michael Greenberg, was instrumental inL.A. Gear's growth until his resignation in early 1992. The Greenbergs arejoined on the management team by several design, merchandise, production, andmarketing executives with experience in a broad range of industries. We believethis core group comprises an effective and efficient management and design teamwith the experience to recognize and respond to emerging consumer trends anddemands.FOOTWEAR Skechers offers men's, women's and children's footwear in a broad range ofstyles, fabrics and colors. We offer a broad selection of categories in aneffort to maximize our ability to respond to changing fashion trends andconsumer preferences as well as to limit our exposure to any specific style. Webelieve that our products and brand offer a broad appeal to men, women andchildren. We introduced our first footwear line with the Skechers brand name inDecember 1992. Since that time, we have expanded our product offerings and grownour net sales while substantially increasing the breadth and penetration of ouraccount base. We currently categorize our footwear into six product lines: (i)Skechers USA, (ii) Skechers Sport, (iii) Skechers Collection, (iv) SkechersKids, (v) Somethin' Else from Skechers, and (vi) Skechers by Michelle K. Thesegeneral product lines are offered in varying styles for men, women and children(except for Skechers Collection which is currently offered in men's styles onlyand Somethin' Else from Skechers and Skechers by Michelle K which are offered inwomen's styles only). Skechers USA. Our Skechers USA category includes four types of footwear: (i)Sport Utility, (ii) Utility, (iii) Classics, and (iv) Hikers. The Sport Utilitycategory includes generally "Black & Brown" boots and shoes that have a rugged,less refined design with industrial-inspired fashion features. This category isdefined by the heavy-lugged outsole and value-oriented materials employed in theuppers. Uppers are typically constructed of oiled suede and "Crazy Horse" ordistressed leathers which enhance the rugged appearance of the boots and oxfordsof this category. We design and price this category to appeal primarily to youngmen with broad acceptance 3 4across age groups. Suggested retail price points range from $45.00 to $70.00 forthis category. Our Utility styles consist of a single category of boots that aredesigned to meet the functional demands of a work boot but are marketed ascasual footwear. The outsoles of this category are designed to be durable andwearable with Goodyear welted, hardened rubber outsoles. Uppers are constructedof thicker, better grades of heavily oiled leathers. Utility boots may includesteel toes, water-resistant or water-proof construction and/or materials, paddedcollars and Thermolite insulation. Styles include logger boots and demi-boots,engineer boots, motorcycle boots and six- and eight-eyelet work boots. Suggestedretail price points range from $80.00 to $100.00 for this category. The Classicsstyles include comfort oriented design and performance features. Boots and shoesin this category employ softer outsoles which are often constructed of polyvinylcarbon ("PVC"). The more refined design of this footwear employs better gradesof leather and linings than those used in our Sport Utility boots and shoes.Uppers are generally constructed of grizzly leather or highly-finished leatherthat produces a waxy shine. Designs are sportier than the Sport Utility categoryand feature oxfords, wingtips, monkstraps, demi-boots and boots. Suggestedretail price points range from $55.00 to $75.00 for this category. Our Hikerstyles consist of a single category of boots and demi-boots that include manycomfort and technical performance features that distinguish this footwear asHikers. We market this footwear primarily on the basis of style and comfortrather than on technical performance. However, many of the technical performancefeatures in the Hikers contribute to the level of comfort this footwearprovides. Outsoles generally consist of molded and contoured hardened rubber.Many designs may include gussetted tongues to prevent penetration of water anddebris, cushioned mid-soles, motion control devices such as heel cups,water-resistant or water-proof construction and materials and heavier, moredurable hardware such as metal D-rings instead of eyelets. Uppers are generallyconstructed of heavily oiled nubuck and full-grain leathers. Suggested retailprice points range from $55.00 to $100.00 for this category. Skechers Sport. Skechers Sport or "Active Street" footwear includes skatesneakers, joggers, trail runners, sport hikers and multi-functional shoesinspired by cross-trainers. We distinguish our Skechers Sport category by itstechnical performance inspired looks; however, generally we do not promote thetechnical performance features of these shoes. Certain of our skate sneakers aredesigned with the technical performance features necessary for competitive levelskateboarding. The skate sneaker styles ("Street Sneaker") are designed toappeal to the teenager whose casual shoe of choice is a skate or street sneakerand is intended to be retailed through specialty casual shoe stores anddepartment stores. The other Skechers Sport footwear styles include comfortperformance not available in the Street Sneaker styles. The Skechers Sportdesigns are light-weight constructions that include cushioned heels,polyurethane mid-soles, phylon and other synthetic outsoles and white leather orsynthetic uppers such as durabuck and cordura and ballistic nylon mesh. TheSkechers Sport features electric and technically inspired hues in addition tothe traditional athletic white. Skechers Sport is marketed through traditionalathletic footwear specialty retailers as well as basic existing accounts.Suggested retail price points range from $40.00 to $65.00 for this category. Skechers Collection. The Skechers Collection features dress casual shoesdesigned to complement a young man's semi-formal attire. This category featuresmore sophisticated designs influenced, in part, by prevailing trends in Italyand other European countries. As such, this footwear is more likely than othercategories to be sourced from Italy and Portugal. Outsoles project a sleekerprofile, while uppers are constructed of glossy, "box" leather and aniline,resulting in a highly polished appearance. Designs include monkstraps, wingtips,oxfords, cap toes and demi-boots and often feature blind-eyelets to enhance thesophisticated nature of the styling. Suggested retail price points range from$85.00 to $130.00 for this category. Skechers Kid's. The Skechers Kid's line features a range of productsincluding boots, shoes and sneakers and is comprised primarily of shoes that aredesigned like their adult counterparts but in "takedown" versions, so that theyounger set can wear the same popular styles as their older siblings andschoolmates. This "takedown" strategy maintains the integrity of the product inthe premium leathers, hardware and outsoles without the attendant costs involvedin designing and developing new products. In addition, we also adapt currentfashion from our men's and women's lines by modifying designs and choosingcolors and materials that are more suitable to the playful image we haveestablished in the children's footwear market. We also have a Skechers Lightscategory, which is a line of lighted footwear combining sequencing patterns andlights in the outsole and other areas of the shoes. Our children's footwear isoffered at retail prices ranging from $20.00 to $50.00. Somethin' Else from Skechers. The Somethin' Else from Skechers line,introduced in February 2001, is a young women's line that features an array ofstylish shoes, boots and sandals for females between the ages of 12 and 24. Thisnew line is expected to be available to consumers beginning Fall 2001. Wedesigned the line to be a complementary line for the junior customer who alreadywears Skechers USA and Skechers Sport styles. Skechers by Michelle K. The Skechers by Michelle K line, also introduced inFebruary 2001, is a new dress casual junior line for trend-savvy young womenbetween the ages of 18 and 34. This new line is expected to be available in Fall2001. We offer sandalized footwear which features open-toe and open-sideconstructions consistent with our offerings in the Skechers USA, Skechers Sportand Skechers Collection categories of footwear. Such footwear includesfisherman's sandals, shower sandals, beach sandals, slides, comfort-orientedland sandals and technically-inspired water sport sandals. Sandalized footwearincludes both 4 5leather and synthetic constructions and may feature suede footbeds withform-fitting mid-soles. We typically deliver our sandalized footwear toretailers from February to August. Suggested retail price points range from$20.00 to $60.00 for this category.PRODUCT DESIGN AND DEVELOPMENT We believe that our product success is related in a large part to our abilityto recognize trends in the footwear markets and to design products whichanticipate and accommodate consumers' ever-evolving preferences. We strive toanalyze, interpret and translate current and emerging lifestyle trends.Lifestyle trend information is compiled by our designers through various methodsdesigned to monitor changes in culture and society, including (i) review andanalysis of modern music, television, cinema, clothing, alternative sports andother trend-setting media, (ii) travel to domestic and international fashionmarkets to identify and confirm current trends, (iii) consultation with ourretail customers for information on current retail selling trends, (iv)participation in major footwear trade shows to stay abreast of popular brands,fashions and styles and (v) subscription to various fashion and colorinformation services. In addition, a key component of our design philosophy isto continually reinterpret both our basic and current successful styles in theSkechers image. We intend to continue to leverage our reputation for quality products and ourrelationships with retailers through, among other things, the introduction ofnew styles in our existing and new categories of footwear. Also, we believe ourin stock inventory program enhances our position with retailers. This programincreases the availability of our best-selling products, which we believe hascontributed to more consistent product flow to our retail customers and anincreased ability to respond to reorder demand. Offer a Breadth of Innovative Products. We have continued to broaden our product line in an effort to reach a larger consumer base. In addition, offering a broader range of products allows us to increase sales to our current customer and consumer base. We offer a wide variety of different styles of footwear generally in three to four different colors and material variations andtypically in 10 to 12 different sizes. These styles span a broad spectrum ofproduct categories ranging from skate and street sneakers to fashion sneakers,from steel toe boots with heavy-lugged soles to casual dress shoes for men. Wehave developed this breadth of merchandise offerings in an effort to improve ourability to respond to changing fashion trends and customer preferences, as wellas to limit our exposure to any single industry participant. We do not believethat any single industry participant competes directly with us across our entireproduct offering. Although major new product introductions take place in advanceof both the spring and the fall selling seasons, we typically introduce newdesigns in to our existing lines every 30 to 60 days to keep current withemerging trends. Design Team. All of our footwear is designed with an active, youthfullifestyle in mind. The design team's primary mandate is to design shoesmarketable to the 12 to 25 year old consumer. While these designs arecontemporary in styling, we believe that substantially all of the line appealsto the broader 5 to 40 year old consumer. Although many of our shoes haveperformance features, such as hikers, trail runners, skate sneakers and joggers,we generally do not position our shoes in the marketplace as technicalperformance shoes. Our principal goal in product design is to generate new andexciting footwear with contemporary and progressive style features and comfortenhancing performance features. We do not believe that technology is adifferentiating factor in marketing footwear in the casual shoe industry. The footwear design process typically begins about nine months before thestart of a season. Skechers' products are designed and developed by our in-housestaff. We also utilize outside design firms on an item-specific basis tosupplement our design efforts. Separate design teams focus on each of the men's,women's and children's categories, and report to our senior design executives.The design process is extremely collaborative; members of the design staff meetweekly with the heads of retail and merchandising, sales, production andsourcing to further refine Skechers' products to meet the particular needs ofour markets. After the design team arrives at a consensus regarding the fashion themes forthe coming season, the group then translates these themes into Skechersproducts. These interpretations include variations in product color, materialstructure and decoration, which are arrived at after close consultation with ourproduction department. Prototype blueprints and specifications are created andforwarded to our prototype manufacturers located in Taiwan, which then forwarddesign prototypes back to our domestic design team. New design concepts areoften also reviewed by our major retail customers. Customer input not onlyallows us to measure consumer reaction to the latest designs, but also affordsus an opportunity to foster deeper and more collaborative relationships with ourcustomers. Our design team can easily and quickly modify and refine a designbased on customer input.SOURCING A substantial portion of our products are produced in China. To date,products have been purchased in U.S. Dollars, although we cannot assure you thatthis will continue to be the case. We do not own or operate any manufacturingfacilities. We believe the use of independent manufacturers increases ourproduction flexibility and capacity while at the same time substantiallyreducing capital expenditures and avoiding the cost of managing a largeproduction work force. We finance our production activities in part through theuse of interest-bearing open purchase arrangements with certain of our Asianmanufacturers. These facilities currently bear interest 5 6at a rate between 1.0% and 2.0% for 30 to 60 days financing, depending on thefactory. We believe that the use of these arrangements affords us additionalliquidity and flexibility. While we have long-standing relationships with manyof our manufacturers and believe our relationships to be good, there are nolong-term contracts between us and any of our manufacturers. We maintain an in-stock position for selected styles of footwear in orderto minimize the time necessary to fill customer orders. In order to maintain anin-stock position, we place orders for selected footwear with our manufacturersprior to the time we receive customers' orders for such footwear. In order toreduce the risk of overstocking, we seek to assess demand for our products bysoliciting input from our customers and monitoring retail sell-through. Inaddition, we analyze historical and current sales and market data to developinternal product quantity forecasts which helps reduce inventory risks. Asian Office. To safeguard product quality and consistency, we oversee thekey aspects of the production process from prototyping through production tofinished product. Monitoring is performed by our domestic production departmentand from our offices in China and Taiwan. We believe that our Asian presenceallows us to negotiate supplier and manufacturer arrangements more effectively,decrease product turnaround time, and ensure timely delivery of finishedfootwear. In addition, we require our manufacturers to certify that neitherconvict, forced, indentured labor (as defined under U.S. law) nor child labor(as defined by the manufacturer's country) is used in the production process,that compensation will be paid according to local law and that the factory is incompliance with local safety regulations. Factories. Manufacturers are selected in large part on the basis of our priorexperience with the manufacturer and the amount of available productioncapacity. We attempt to monitor our selection of independent factories to ensurethat no one manufacturer is responsible for a disproportionate amount of ourmerchandise. We also seek to use, whenever possible, manufacturers that havepreviously produced our footwear, which we believe enhances continuity andquality while controlling production costs. In addition, we source product forstyles that account for a significant percentage of our net sales from at leastfour different manufacturers. For the year ended December 31, 2000, we had fourmanufacturers which accounted for between 9% and 20%, each, of total purchases. Quality Control. We believe that quality control is an important andeffective means of maintaining the quality and reputation of our products. Ourquality control program is designed to ensure that finished goods not only meetour established design specifications, but also that all goods bearing ourtrademarks meet our standards for quality. Quality control personnel perform anarray of inspection procedures at various stages of the production process,including examination and testing of (i) prototypes of key raw materials priorto manufacture, (ii) samples and materials at various stages of production and(iii) final products prior to shipment. Our employees are on-site at eachof our major manufacturers to oversee key phases of production. Inaddition, unannounced visits to the manufacturing sites, to further monitorcompliance with our manufacturing specifications, are made by our employeesand agents.MARKETING AND PROMOTION Our marketing focus is to maintain and enhance recognition of the Skechersbrand name as a casual, active youthful brand that stands for quality, comfortand design innovation. Senior management is directly involved in shaping ourimage and our advertising and promotional activities. Towards this end, weendeavor to spend between 8% and 10% of annual net sales in the marketing ofour footwear through an integrated effort of advertising, promotions,public relations, trade shows and other marketing efforts, which we believesubstantially heightens brand awareness. Advertising. We believe that our success to date is due in large part to ouradvertising strategies and methods. Our in-house marketing and advertising teamhas developed a comprehensive program to promote the Skechers brand name throughlifestyle and image advertising. We have made a conscious effort to avoid theassociation of the Skechers name with any single category of shoe to providemerchandise flexibility and to aid the ability to take the brand and productdesign in the direction of evolving footwear fashions and consumer preferences.We use a variety of media for our national advertising. Print efforts arerepresented by one and two page ads displayed in popular fashion and lifestyleconsumer publications that appeal to our target customer group. Our progressivetelevision advertisements are primarily produced in-house and air frequently ontop television shows. Different advertisements are created for each of the 5 to9, 10 to 24 and 25 to 35 year old consumer groups. Certain of our retail accounts feature "in-store shop" formats in which weprovide fixtures, signage and visual merchandise assistance in a dedicated floorspace within the store. The design of our "in store shop" utilizes our distinctadvertising strategies to promote brand recognition and differentiate ourpresence in the store from that of our competition. The installationof these "in-store shops" enables us to establish premium locations within theretailers and we believe it aids in increased sell-through and higher maintainedmargins for our customers. Our in-house display merchandising departmentsupports retailers and distributors by developing point-of-purchase advertisingto further promote our products in stores and to leverage the brand recognitionat the retail level. 6 7 Promotions. Our in-house promotions department is also responsible forbuilding national brand name recognition. Teaming up with national retailers andradio stations, the promotions department is responsible for cross promotions,which help draw customers to retail store locations. Public Relations. Our in-house public relations department is alsoresponsible for increasing our media exposure. Our objective is to communicatethe Skechers image to the public and news media through the active solicitationof fashion editorial placements, arranging interviews for our key personnel andcoordinating local publicity and special event programs for us. During 2000, wereceived notable press coverage in print publications including the New YorkTimes, the Los Angeles Times, Investors Business Daily and BusinessWeek.Skechers was noted in the press in BusinessWeek's top 100 hot growth companiesand ranked in the number five position; for receiving Footwear Plus' YoungWomen's Excellence in Design award; and, in DNR, as a top footwear brand for theGeneration Y male. With our strategy tied to promoting the newest styles produced by the product development team, our products are often featured in fashion and pop culture magazines and in a select group of films and popular television shows. Endorsements. In 2000, we signed our first celebrity endorsement agreementsin an effort to strategically leverage and market the Skechers brand to specificconsumer groups. We signed singer Britney Spears for an international (worldwideexcluding the United States) print media campaign through June 2002. We signedactor Matt Dillon for a Skechers Collection print media campaign, which willappear in magazines through January 2002. We also signed actor Rob Lowe for alimited term print media campaign. From time to time, we may sign othercelebrities to endorse the brand and to strategically focus marketing, but thereare currently no other endorsements planned. Trade Shows. To showcase the Skechers product to footwear buyers, weexhibited at 21 trade shows during 2000. We pride ourselves on having innovativeand dynamic exhibits on the show floor. Designed in-house, our state-of-the-arttrade show exhibits feature the latest products and provide a stage showfeaturing progressive music and nightclub lighting. Electronic Commerce and Mail-Order Catalog. During 2000, we continued theproduction and distribution of our mail order catalog. The mail order catalogoffers a selection of the most popular products sold at retail. Concurrent withthe distribution of each catalog, our interactive website (www.skechers.com) isexpanded to include the offerings of the current catalog. Our website alsofeatures photos, interviews and information on Skechers-sponsored events. Ourwebsite and mail-order catalog are intended to further enhance the Skechersbrand image.DISTRIBUTION CHANNELS We have implemented a strategy of controlling the growth of the distributionchannels through which our products are sold in order to protect the Skechersbrand name, properly service customer accounts and better manage the growth ofthe business. We have limited distribution of our product to those retailersthat we believe can best support the Skechers brand name in the market. Byfocusing on our existing accounts, we can deepen our relationships with ourexisting customers by providing a heightened level of customer service. Webelieve close relationships with our customers help us to maximize our (i)retail sell-through, (ii) maintained margins, (iii) inventory turns, (iv) andreduce our inventory markdowns and customer returns and allowances. Sales and Field Service Representatives. As of February 28, 2001, we had 102and 15 sales and field service representatives, respectively. Each of the salesrepresentatives is compensated on a salary plus commission basis; therepresentatives sell Skechers products exclusively. Senior management isactively involved in selling to and maintaining relationships with our majorretail accounts. For the year ended December 31, 2000, the top five salespersons accounted for 36.1% of our net domestic wholesale sales. One of thesesalespersons generated 14.0% of our net domestic wholesale sales for the yearended December 31, 2000. The field service representatives ensure proper presentation of ourmerchandise and point-of-purchase marketing materials. Our sales and fieldservice personnel work closely with the accounts to coordinate the appropriateinventory level and product mix that should be carried in each store in aneffort to help retail sell-through and enhance the customer's product margin.Such information is then used as a basis for developing sales projections andproduct needs for such customers. This information in turn assists us withscheduling production. Along with a staff of in-house customer serviceemployees, we are committed to achieving customer satisfaction and to building aloyal customer base by providing a high level of knowledgeable, attentive andpersonalized customer service. Concept Stores. As of December 31, 2000, we operated 24 concept stores atmarquee locations in major metropolitan cities. The stores are typicallydesigned to create a distinctive Skechers look and feel and enhance customerassociation of the Skechers brand with current youthful lifestyle trends andstyles. The concept stores feature modern music and lighting and present an openfloor design to allow customers to readily view the merchandise on display.These concept stores serve a threefold purpose in our operating strategy. First,concept stores showcase a wide range of our product offerings for the currentseason, providing the customer with the entire product story. In contrast, weestimate that our average retail customer carries no more than 5.0% of thecomplete Skechers line. 7 8Second, retail locations are generally chosen to generate maximum marketingvalue for the Skechers brand name through signage and store front presentation.Third, our concept stores also serve as marketing and product testing venues byproviding rapid product feedback. We believe that product sell-throughinformation derived from our concept stores enables our sales, merchandising andproduction staff to respond quickly to market changes and new productintroductions. We occasionally order limited production runs which may initiallybe tested in Skechers' concept stores. By working closely with store personnel,we obtain customer feedback that often influences product design anddevelopment. We believe that sales in our retail stores can help forecast salesin national retail stores. Such responses serve to augment sales and limit ourinventory markdowns and customer returns and allowances. We adjust our productand sales strategy based upon seven to 14 days of retail sales information. We seek to instill enthusiasm and dedication in our concept store managementpersonnel and sales associates through incentive programs and regularcommunication with store personnel. Sales associates receive commissions onsales with a guaranteed minimum compensation. Concept store managers receivebase compensation plus incentive compensation based on sales. We havewell-established concept store operating policies and procedures and utilizes anin-store training regimen for all new store employees. Merchandise presentationinstructions and detailed product descriptions also are provided to salesassociates to enable them to gain familiarity with Skechers product offerings. Factory and Warehouse Outlet Stores. As of December 31, 2000, we alsooperated 28 factory and warehouse outlet stores that enable us to liquidateexcess, discontinued and odd-size inventory in a cost-efficient manner.Inventory in these stores is supplemented by certain first-line styles sold atfull retail price points. The factory outlet stores are generally located inmanufacturers' outlet centers throughout the country. Our factory outlet storeshave enabled us to increase sales in certain geographic markets where ourproducts were not previously available and to consumers who favor value-orientedretailers. The outlets provide opportunities for us to sell discontinued andexcess merchandise, thereby reducing the need to sell such merchandise todiscounters at excessively low prices. Our free-standing warehouse outlet storesenable us to liquidate other excess merchandise, discontinued lines and oddsizes. We strive to geographically position our factory and warehouse outletstores to areas not supported by traditional footwear retailers that would carryour brand. Other Direct Distribution Outlets. Our mail-order catalog and website act assales vehicles. We believe that these distribution channels will not become asignificant portion of total revenues for us in the near term; however, webelieve that they may present attractive long-term opportunities with minimalnear-term costs.INTERNATIONAL OPERATIONS Although our primary focus is on the domestic market, we presently market ourproducts in countries and territories in Europe, Asia and selected other foreignregions. We derive revenues and earnings from outside the United States fromthree principal sources: (i) sales of our footwear directly to foreigndistributors who distribute such footwear to department stores and specialtyretail stores, (ii) in France and Germany, we sell footwear directly todepartment stores and specialty retail stores and (iii) to a lesser extent,royalties from licensees who manufacture and distribute our products outside theUnited States. We believe that international distribution of our products may represent asignificant opportunity to increase revenues and profits. Although we are in theearly stages of our international expansion, our products are currently sold inmore than 100 countries and territories. Our goal is to increase internationalsales, through both foreign distributors and directly, by heightening ourinternational marketing presence in those countries. During 2000, we continuedour international advertising campaigns, which are designed to establishSkechers as a global brand synonymous with casual shoes. We are also exploringfurther direct sales to retailers in certain European countries. In February2001, we announced the creation of Skechers USA Ltd., a subsidiary with itsheadquarters in London, England. Skechers USA Ltd. will organize its operationsin the United Kingdom and Ireland and establish direct control over wholesaledistribution, merchandising, and marketing in that region. In addition, we areselectively opening flagship retail stores internationally on our own or throughjoint ventures. In February and March 2001, we opened our first flagship retailstores on Oxford Street in London and in the prestigious Centro Mall inOberhausen, Germany, respectively. We also plan to open a flagship store at theForum Les Halles in Paris by the end of Spring 2001.DISTRIBUTION FACILITY We believe that strong distribution support is a critical factor in ouroperations. Once manufactured, our products are packaged in shoe boxes bearingbar codes and either shipped to our approximately 962,000 square feet ofSkechers managed distribution centers located in Ontario, California, or shippeddirectly from the manufacturer to our international customers. During 2000, weincreased our distribution capacity with the purchase of an approximately264,000 square foot distribution center located in Ontario, California. We leasethe remaining distribution space of approximately 698,000 square feet. 8 9POTENTIAL LICENSING ARRANGEMENTS We believe that selective licensing of the Skechers brand name tonon-footwear-related manufacturers may broaden and enhance the Skechers imagewithout requiring significant capital investments or additional incrementaloperating expenses by us. From time to time, we have experimented with certainmanufacturers on a very limited basis to study the potential impact of licensingthe brand. We periodically review potential internationally licensingarrangements for footwear in various geographical regions that present favorablebusiness opportunities. We believe that revenues from licensing agreements willnot provide a significant portion of our net revenues in the near term; however,we believe that licensing arrangements may present attractive long-termopportunities with minimal near-term costs.BACKLOG We generally receive the bulk of our orders for each of the spring and fallseasons a minimum of three months prior to the date the products are shipped tocustomers. At December 31, 2000, our backlog was $221.6 million, compared to$121.7 million at December 31, 1999. While backlog orders are subject tocancellation by customers, we have not experienced significant cancellation oforders in the past and we expect that substantially all the orders will beshipped in fiscal 2001. However, for a variety of reasons, including the timingof shipments, product mix of customer orders and the amount of in-season orders,backlog may not be a reliable measure of future sales for any succeeding period.INTELLECTUAL PROPERTY RIGHTS We own and utilize a variety of trademarks, including the Skechers trademark.We have a significant number of both registrations and pending applications forour trademarks in the United States. In addition, we have trademarkregistrations and trademark applications in approximately 81 foreign countries.We also have design patents, and pending design and utility patent applications,in both the United States and various foreign countries. We continuously look toincrease the number of our patents and trademarks, both domestically andinternationally, where necessary to protect valuable intellectual property. Weregard our trademarks and other intellectual property as valuable assets andbelieve that they have significant value in the marketing of our products. Wevigorously protect our trademarks against infringement, including through theuse of cease and desist letters, administrative proceedings and lawsuits. We rely on trademark, patent, copyright, trade secret protection,non-disclosure agreements and licensing arrangements to establish, protect andenforce intellectual property rights in our logos, tradenames and in the design of our products. In particular, we believe that our future success willlargely depend on our ability to maintain and protect the Skechers trademark.Despite our efforts to safeguard and maintain our intellectual property rights,we cannot assure you that we will be successful in this regard. We cannot assureyou that third parties will not assert intellectual property claims against usin the future. Furthermore, we cannot assure you that our trademarks, productsand promotional materials or other intellectual property rights do not or willnot violate the intellectual property rights of others, that our intellectualproperty would be upheld if challenged, or that we would, in such an event, notbe prevented from using our trademarks or other intellectual property rights.Such claims, if proven, could materially and adversely affect our business,financial condition and results of operations. In addition, although any suchclaims may ultimately prove to be without merit, the necessary managementattention to and legal costs associated with litigation or other resolution offuture claims concerning trademarks and other intellectual property rights couldmaterially and adversely affect our business, financial condition and results ofoperations. We have sued and have been sued by third parties for infringement ofintellectual property. It is our opinion that none of these claims havematerially impaired our ability to utilize our trademarks. The laws of certain foreign countries do not protect intellectual propertyrights to the same extent or in the same manner as do the laws of the UnitedStates. Although we continue to implement protective measures and intend todefend our intellectual property rights vigorously, we cannot assure you thatthese efforts will be successful or that the costs associated with protectingour rights in certain jurisdictions will not be prohibitive. From time to time,we discover products in the marketplace that are counterfeit reproductions ofour products or that otherwise infringe upon intellectual property rights heldby us. We cannot assure you that actions taken by us to establish and protectour trademarks and other intellectual property rights will be adequate toprevent imitation of our products by others or to prevent others from seeking toblock sales of our products as violating trademarks and intellectual propertyrights. If we are unsuccessful in challenging a third party's products on thebasis of infringement of our intellectual property rights, continued sales ofsuch products by that or any other third party could adversely impact theSkechers brand, result in the shift of consumer preferences away from us andgenerally have a material adverse effect on our business, financial conditionand results of operations. 9 10COMPETITION Competition in the footwear industry is intense. Although we believe that wedo not compete directly with any single company with respect to its entire rangeof products, our products compete with other branded products within theirproduct category as well as with private label products sold by retailers,including some of our customers. Our utility footwear and casual shoes competewith footwear offered by companies such as The Timberland Company, Dr. Martens,Kenneth Cole Productions, Steven Madden, Ltd. and Wolverine World Wide, Inc. Ourathletic shoes compete with brands of athletic footwear offered by companiessuch as Nike, Inc., Reebok International Ltd., Adidas-Salomon AG and NewBalance. Our children's shoes compete with brands of children's footwear offeredby The Stride Rite Corporation. In varying degrees, depending on the productcategory involved, we compete on the basis of style, price, quality, comfort andbrand name prestige and recognition, among other considerations. These and othercompetitors pose challenges to our market share in our major domestic marketsand may make it more difficult to establish Skechers in Europe, Asia and otherinternational regions. We also compete with numerous manufacturers, importersand distributors of footwear for the limited shelf space available for thedisplay of such products to the consumer. Moreover, the general availability ofcontract manufacturing capacity allows ease of access by new market entrants.Many of our competitors are larger, have achieved greater recognition for theirbrand names, have captured greater market share and/or have substantiallygreater financial, distribution, marketing and other resources than us. Wecannot assure you that we will be able to compete successfully against presentor future competitors or that competitive pressures faced by us will not have amaterial adverse effect on our business, financial condition and results ofoperations.EMPLOYEES As of February 28, 2001, we employed 1,666 persons, 917 of which wereemployed on a full-time basis and 749 of which were employed on a part-timebasis. None of our employees are subject to a collective bargaining agreement.We believe that our relations with our employees are satisfactory. We offer ouremployees a discount on Skechers merchandise to encourage enthusiasm for theproduct and Skechers loyalty.RISK FACTORS In addition to the other information in this Form 10-K, the followingfactors should be considered in evaluating us and our business.OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO RESPOND TO CHANGING CONSUMERDEMANDS AND TO IDENTIFY AND INTERPRET FASHION TRENDS. The footwear industry is subject to rapidly changing consumer demands andfashion trends. Accordingly, we must identify and interpret fashion trends andrespond in a timely manner. If we do not continue to meet changing consumerdemands or develop successful styles in the future, then we may not besuccessful. Sometimes, we must make decisions about product designs severalmonths in advance. If we fail to anticipate, identify or react appropriately tochanges in styles and trends our failure may result in lower sales, excessinventories, higher inventory markdowns, and impaired brand image. A failure to anticipate trends may also lead to lower gross margins as apercentage of net sales since we may have to provide allowances and discounts toretailers. Conversely, if we fail to anticipate consumer demand for ourproducts, we may experience inventory shortages. Inventory shortages might delayshipments to customers, negatively impact retailer and distributorrelationships, and diminish brand loyalty.CONSUMERS MAY CONSIDER OUR BRAND OUTMODED. Even if we react appropriately to changes in consumer preferences, there isalways a risk that consumers may consider our brand image to be outmoded orassociate the brand with styles of footwear that are no longer popular. As aresult of these risks, several footwear companies have experienced periods ofrapid growth in revenues and earnings followed by periods of declining sales andlosses which, in some cases, have resulted in a decision to cease doingbusiness.OUR NEW STYLES OF FOOTWEAR MAY NOT BE POPULAR. We intend to market new lines of footwear in the future. Demand for andmarket acceptance of these new products are uncertain. In addition, achievingmarket acceptance for new products may require substantial marketing efforts. Wecannot be sure that our marketing efforts will be successful or that we willhave the funds necessary to sufficiently market the new products. Our growth andprofitability could be materially and adversely impacted if our marketingefforts and new products are not successful. 10 11OUR BUSINESS MAY BE ADVERSELY AFFECTED IF ANY STYLE OF FOOTWEAR REPRESENTS ASUBSTANTIAL PORTION OF OUR NET SALES. If consumer demand for a style or group of styles that represents asubstantial portion of our net sales decreases then our business may beadversely affected. In the past, we have experienced decreased consumer demandfor a style of footwear that represented a significant portion of our sales andour gross sales were adversely affected as a result. This style no longerrepresents a significant portion of our sales. We now offer a broad range ofproducts and no style comprised over 10% of our gross wholesale sales, net ofdiscounts, for the year ended December 31, 2000. Nonetheless, it is alwayspossible that fluctuations in sales of styles that represent a significantportion of our net sales will occur in the future. Such fluctuations could haveharm our business.IF WE FAIL TO MANAGE OUR GROWTH EFFECTIVELY, IT COULD HAVE AN ADVERSE EFFECT ONOUR BUSINESS. In the past, we have experienced rapid growth and we intend to continue topursue an aggressive growth strategy by expanding our marketing and promotionefforts, frequently introducing new products, broadening our lines of casual andperformance footwear, and increasing our international market. Our growthstrategy may place a significant strain on our finances, management and otherresources. Our future performance will depend on various factors, including ourability to manage increased sales and additional retail stores, manage change inour domestic and international operations, attract, train, manage and retainmanagement, sales, marketing and other key personnel, and continue to improveour operational and financial control systems, infrastructure and managementinformation systems. We cannot be sure that these expansion efforts will besuccessfully completed or that they will not interfere with existing operations.If our management cannot manage growth effectively it could harm our business.WE MAY BE UNABLE TO SUSTAIN OUR PRIOR RATE OF GROWTH. We have grown quickly since we started our business. Our net salesincreased at a compound annual growth rate of 39.7% from $90.8 million in 1994to $675.0 million in 2000. From 1999 to 2000, we experienced a 59% increase innet sales and 109% increase in earnings from operations. Our future rate ofgrowth will depend upon, among other things, the continued success of ourefforts to expand our footwear offerings and distribution channels. Ourprofitability in any calendar quarter depends, in part, upon the timing andlevel of advertising and trade show expenditures, and shipments of seasonalmerchandise. Our rate of growth may decline or we may not be profitable in anyquarter of any succeeding fiscal year. Furthermore, as our business becomeslarger, we may not be able to maintain our prior growth rate. Our current growthstrategy includes further penetration of existing retail accounts, openingretail stores in selected locations, increasing our international operations,and distributing in countries where we have little distribution experience orwhere our brand name is not well known. Our future success depends on variousfactors, including (i) the strength of our brand name, (ii) market success ofcurrent and new products, (iii) competitive conditions and our ability to manageincreased sales and additional retail stores, (iv) the availability of desirablelocations, and (v) increasing sales to existing customers. We cannot assure youthat our current growth strategy or other growth strategies will be successfulor that our sales or earnings will increase as a result of the implementation ofsuch efforts.OUR BUSINESS MAY BE NEGATIVELY IMPACTED AS A RESULT OF CHANGES IN THE ECONOMY. Our industry is dependent on the general economic environment and levels ofconsumer spending which affect not only the ultimate consumer, but alsoretailers, our primary direct customers. Purchases of footwear tend to declinein periods of recession or uncertainty regarding future economic prospects, whenconsumer spending, particularly on discretionary items, declines. We may not beable to increase our sales to existing customers, open and operate new retailstores or increase our international operations on a profitable basis or improveour earnings from operations as a percentage of net sales. As a result, ouroperating results may be adversely affected by downward trends in the economy orthe occurrence of events that adversely affect the economy in general.Furthermore, in anticipation of continued increases in net sales, we havesignificantly expanded our infrastructure and workforce to achieve economies ofscale. Because these expenses are fixed in the short term, operating results andmargins could be adversely impacted if we do not continue to grow asanticipated.OUR INTERNATIONAL SALES AND OPERATIONS COULD ADVERSELY EFFECT OUR BUSINESS. Substantially all of our net sales for the year ended December 31, 2000were derived from sales of footwear manufactured in other foreign countries,with most manufactured in China. We also sell our footwear in several foreigncountries and plan to increase our international sales efforts as part of ourgrowth strategy. Foreign manufacturing and sales are subject to a number ofrisks, including (i) work stoppages, (ii) transportation delays, (iii) changingeconomic conditions, (iv) expropriation, (v) international political tension,(vi) political and social unrest, (vii) nationalization, (viii) the impositionof tariffs, (ix) import and export controls and other nontariff barriers, (x)exposure to different legal standards (particularly with respect to intellectualproperty), (xi) compliance with foreign laws, and (xii) changes in domestic andforeign governmental policies. Each of these risks could harm our business. 11 12 In addition, if we, or our suppliers, violate U.S. laws or regulations wemay be subjected to extra duties, significant monetary penalties, the seizureand the forfeiture of the products we are attempting to import or the loss ofour import privileges. Possible violations of U.S. laws or regulations couldinclude inadequate record keeping of our imported products, misstatements orerrors as to the origin, quota category, classification, marketing or valuationof our imported products, fraudulent visas, or labor violations under U.S. orforeign laws. These risks could render our conduct of business in a particularcountry undesirable or impractical and have a negative impact on our business,financial condition and results of operations. We continue to monitor thepolitical and economic stability of the Asian countries with which we conductbusiness.WE COULD BE ADVERSELY AFFECTED IF THE CHINESE GOVERNMENT CHANGES ITS POLICIESTOWARDS THE UNITED STATES OR NATIONALIZES PRIVATE ENTERPRISE. Over the past several years, the Chinese government has pursued economicreform policies and has encouraged greater private economic activity andeconomic decentralization. The Chinese government may not continue to pursuethese policies or may significantly alter them to our detriment from time totime without notice. Manufacturers with whom we work could be affected bychanges in policies by the Chinese government resulting in changes in laws,regulations, or their interpretation, the imposition of confiscatory taxation,restrictions on currency conversion or imports, and changes in the sources ofsupply. These risks could harm our business.WE COULD SUFFER LOSSES FROM CORRUPT OR FRAUDULENT BUSINESS PRACTICES. Conducting business in China is inherently risky. Corruption, extortion,bribery, pay-offs, theft and other fraudulent practices are common in China. Wecould suffer losses from these practices if we do not implement successfulpreventative measures.WE COULD BE ADVERSELY BE AFFECTED BY CURRENCY FLUCTUATIONS. Even though we have not experienced material losses as a result offluctuations in the value of foreign currencies, our net sales and cost of goodssold are denominated in U.S. Dollars and we do not engage in currency hedging,therefore we could be adversely affected by currency fluctuations in the future.TRADE RESTRICTIONS COULD HARM OUR BUSINESS. Our products are subject to certain quotas and restrictions on foreignproducts in some of the foreign countries where our footwear is sold. To date,these quotas have not had a material adverse effect on our business, financialcondition or results of operations. However, the quotas or restrictions may bemodified or altered at any time. In addition, countries where our products aremanufactured may impose new quotas or adjust existing quotas or otherrestrictions on exported products. The United States might also impose newduties, tariffs and other restrictions on imported products, any of which couldhave a material adverse effect on our business, financial condition and resultsof operations. New duties, tariffs or other restrictions could also affect ourability to import products at our current levels or at increased levels and,consequently, harm our business. If tariffs or duties on our products are raisedor made more restrictive, it may result in higher costs and could negativelyimpact our business.WE DEPEND ON CONTRACT MANUFACTURERS. Our footwear products are currently manufactured by independent contractmanufacturers. For the year ended December 31, 2000, the top four manufacturersof our manufactured products produced approximately 9%-20% each of totalpurchases. We do not have long-term contracts with manufacturers and we competewith other footwear companies for production facilities. Although we haveestablished close working relationships with our principal manufacturers, wemust maintain those relationships and develop new relationships with additionalmanufacturers. It is possible that we may experience difficulties with thesemanufacturers, including reductions in the availability of production capacity,failure to meet our quality control standards, failure to meet productiondeadlines or increased manufacturing costs. This could result in cancellation oforders, refusal to accept deliveries or a reduction in purchase prices, any ofwhich could harm our business. If our current manufacturers cease doing business with us, we couldexperience an interruption in the manufacture of our products, which could havea material adverse effect on our business, financial condition and results ofoperations. Although we believe that we could find alternative manufacturerswithin 90 to 120 days, new manufacturing relationships involve variousuncertainties, including payment terms, costs of manufacturing, adequacy ofmanufacturing capacity, quality control, and timeliness of delivery. We may beunable to establish new manufacturing relationships that will be as favorable asthe relationships we have now. If we are unable to provide products consistentwith our standards or the manufacture of our footwear is delayed, our businesscould be harmed. 12 13OUR BUSINESS COULD BE NEGATIVELY IMPACTED IF OUR CONTRACT MANUFACTURERS VIOLATETHE LAW. We require our independent contract manufacturers to operate in compliancewith applicable laws and regulations. We also require our manufacturers tocertify that neither convict, forced, indentured labor (as defined under U.S.law) nor child labor (as defined by the manufacturer's country) is used in theproduction process, that compensation will be paid in accordance with local lawand that the factory is in compliance with local safety regulations. Although wepromote ethical business practices and our sourcing personnel periodically visitand monitor the operations of our independent contract manufacturers, we do notcontrol these vendors or their labor practices. If one of our independentcontract manufacturers violates the labor or other laws, it could result inadverse publicity for us and harm our business. In addition, if the UnitedStates Customs Service determines that laws or regulations have been violated orthat we failed to exercise reasonable care in our obligations to comply withthese laws or regulations we may incur significant penalties that maybe monetaryor otherwise.WE ARE DEPENDENT ON KEY CUSTOMERS. During the year ended December 31, 2000, our net sales to our five largestcustomers accounted for approximately 26.5% of total net sales. No one customeraccounted for 10.0% or more of net sales during the year ended December 31,2000. Although we have long-term relationships with many of our customers, ourcustomers do not have a contractual obligation to purchase our products and wecannot be certain that we will be able to retain our existing major customers.Furthermore, the retail industry has experienced consolidation, contractions andclosings. If there are further consolidations, contractions or closings in thefuture, we may lose customers or be unable to collect accounts receivables ofmajor customers in excess of amounts that we have insured. As of December 31,2000, we had one customer that accounted for 15.3% of trade accounts receivable.If we lose a major customer, experience a significant decrease in sales to amajor customer, or are unable to collect the accounts receivable of a majorcustomer in excess of amounts insured, our business could be harmed.WE DO NOT HAVE NON-COMPETITION AGREEMENTS WITH OUR SALESPERSONS. We have entered into employment agreements with each of our salespersons.Although these employment agreements require our salespersons to keep certaininformation confidential, we have not entered into separate non-competitionagreements with them. In addition, if a salesperson leaves or is terminated,service may be disrupted to the customers who were serviced by this salesperson.These factors could harm our business.SEASONAL FLUCTUATIONS IN DEMAND FOR FOOTWEAR AND DELIVERY DELAYS MAY AFFECT OURQUARTERLY NET SALES. Sales of footwear products have historically been somewhat seasonal innature with the strongest sales generally occurring in the third and fourthquarters. During 2000, we continued to address seasonal fluctuations byintroducing new styles that addressed seasonal demands. We have experienced andexpect to continue to experience some variability in our net sales, operatingresults and net earnings on a quarterly basis. Our domestic customers generally assume responsibility for schedulingpickup and delivery of purchased products. Delays in scheduling or pickup whichare beyond our control could materially negatively impact our net sales andresults of operations for any given quarter. We believe the factors whichinfluence this variability include (i) the timing of our introduction of newfootwear products, (ii) the level of consumer acceptance of new and existingproducts, (iii) general economic and industry conditions that affect consumerspending and retail purchasing, (iv) the timing of the placement, cancellationor pickup of customer orders, (v) increases in the number of employees andoverhead to support growth, (vi) the timing of expenditures in anticipation ofincreased sales and customer delivery requirements, (vii) the number and timingof new retail store openings, and (viii) actions by competitors. Due to theseand other factors, the results for any particular quarter are not necessarilyindicative of results for the full year. This cycle and any related fluctuationsin consumer demand could have a material adverse effect on our business,financial condition and results of operations.IF WE FAIL TO MAINTAIN APPROPRIATE LEVELS OF INVENTORY, OUR BUSINESS COULD BEHARMED. We place orders with our manufacturers for some of our products prior tothe time we receive all of our customers' orders. We do this to minimizepurchasing costs, the time necessary to fill customer orders, and the risk ofnon-delivery. We also maintain an inventory of certain products that weanticipate will be in greater demand. However, we cannot assure you that we willbe able to sell the products we have ordered in advance from manufacturers orthat we have in our inventory. Inventory levels in excess of customer demand mayresult in inventory write-downs and the sale of excess inventory at discountedprices could significantly impair our brand image and could have a materialadverse effect on our business, financial condition and results of operations. 13 14WE MAY HAVE SIGNIFICANT CAPITAL REQUIREMENTS AND EXPENDITURES AS A RESULT OF OURAGGRESSIVE GROWTH STRATEGY. We expect that cash flow from operations, available borrowings under ourrevolving line of credit, cash on hand and our financing arrangements will besufficient to provide us with the liquidity to fund our anticipated workingcapital and capital requirements through 2001. We will, however, havesignificant working capital requirements and capital expenditures as a result ofour aggressive growth strategy. Our future capital requirements will depend onfactors such as (i) the levels at which we maintain inventory, (ii) the marketacceptance of our footwear, (iii) the levels of promotion and advertisingrequired to promote our footwear, (iv) the extent to which we invest in newproduct design, (v) improvements to our existing product design, and (vi) thenumber and timing of new store openings. If available funds are insufficient to fund our future activities, we mayneed to raise additional funds through public or private financing. We cannot besure that additional financing will be available or that, if available, it canbe obtained on terms that will be favorable to us. If we fail to obtain suchfinancing, we may not be able to complete our planned expansion and our businesscould be harmed. In addition, if we raise additional capital through the sale ofadditional equity or convertible securities, our stockholders' ownership may bediluted.WE DEPEND ON KEY PERSONNEL TO MANAGE OUR BUSINESS EFFECTIVELY IN A RAPIDLYCHANGING MARKET, AND IF WE ARE UNABLE TO RETAIN EXISTING PERSONNEL, OUR BUSINESSCOULD BE HARMED. Our future success depends upon the continued services of Robert Greenberg,Chairman of the Board and Chief Executive Officer, Michael Greenberg, President,and David Weinberg, Executive Vice President and Chief Financial Officer. Eachof these officers currently has a three-year employment contract with us, eachagreement was entered into on June 14, 1999. These agreements do not havenon-competition provisions upon termination of employment. The loss of theservices of any of these individuals or any other key employee could have amaterial adverse effect on our business, financial condition and results ofoperations. We maintain $5.0 million of "key man" life insurance on the life ofRobert Greenberg. Our future success also depends on our ability to identify,attract and retain additional qualified personnel. Competition for employees inour industry is intense. Furthermore, we may not be successful in identifying,attracting and retaining qualified employees in the future. The loss of keyemployees or the inability to hire or retain qualified employees in the futurecould harm our business.ONE PRINCIPAL STOCKHOLDER IS ABLE TO CONTROL SUBSTANTIALLY ALL MATTERS REQUIRINGA VOTE OF OUR STOCKHOLDERS. Robert Greenberg, Chairman of the Board and Chief Executive Officer,beneficially owns 72.7% of our outstanding Class B Common Stock. The holders ofClass A Common Stock and Class B Common Stock have identical rights except thatholders of Class A Common Stock are entitled to one vote per share while holdersof Class B Common Stock are entitled to ten votes per share on all matterssubmitted to a vote of the stockholders. As a result, Mr. Greenberg holdsapproximately 69.0% of the aggregate number of votes eligible to be cast by ourstockholders. Therefore, Mr. Greenberg is able to control substantially allmatters requiring approval by our stockholders. Matters that require theapproval of our stockholders include the election of directors and the approvalof mergers or other business combination transactions. Mr. Greenberg also hascontrol over our management and affairs. As a result of such control, certaintransactions are not possible without the approval of Mr. Greenberg, including,proxy contests, tender offers, open market purchase programs, or othertransactions that can give our stockholders the opportunity to realize a premiumover the then-prevailing market prices for their shares of Class A Common Stock.The differential in the voting rights may adversely affect the value of theClass A Common Stock to the extent that investors or any potential futurepurchaser view the superior voting rights of the Class B Common Stock to havevalue.OUR CHARTER DOCUMENTS AND DELAWARE LAW MAY INHIBIT A TAKEOVER, WHICH MAY CAUSE ADECLINE IN THE VALUE OF OUR STOCK. Provisions of Delaware law, our certificate of incorporation, or our bylawscould make it more difficult for a third party to acquire us, even if closingsuch a transaction would be beneficial to our stockholders. Mr. Greenberg'ssubstantial beneficial ownership position, together with the authorization ofPreferred Stock, the disparate voting rights between the Class A and Class BCommon Stock, the classification of the Board of Directors and the lack ofcumulative voting in our certificate of incorporation and bylaws, may have theeffect of delaying, deferring or preventing a change in control, may discouragebids for our Class A Common Stock at a premium over the market price of theClass A Common Stock and may adversely affect the market price of the Class ACommon Stock.WE CANNOT ASSURE YOU THAT THE TRADING MARKET FOR OUR CLASS A COMMON STOCK WILLREMAIN ACTIVE, AND THE PRICE OF OUR STOCK MAY BE VOLATILE. The market price of our Class A Common Stock has been extremely volatile.During 2000, our Class A Common Stock reached a high of $19.94 per share and alow of $3.25. On December 31, 2000, the closing market price was $15.50 pershare. The market 14 15price for shares of our Class A Common Stock may continue to fluctuate basedupon a number of factors, including, without limitation (i) businessperformance, (ii) news announcements, (iii) quarterly fluctuations in ourfinancial results, (iv) changes in earnings estimates, (v) recommendations byanalysts, (vi) changes in general economic and market conditions, or (vii) afailure to meet the expectations of securities analysts or investors in a futurequarter. These same factors could have a material adverse effect on the marketprice of our Class A Common Stock.THE SALES OF SUBSTANTIAL AMOUNTS OF OUR CLASS A COMMON STOCK IN THE PUBLICMARKET OR THE PROSPECT OF SUCH SALES COULD MATERIALLY AND ADVERSELY AFFECT THEMARKET PRICE OF THE CLASS A COMMON STOCK. As of March 26, 2001, we had outstanding 12,546,972 shares of Class ACommon Stock. In addition, we had outstanding 23,505,451 shares of Class BCommon Stock, all of which are convertible into Class A Common Stock on ashare-for-share basis at the election of the holder or upon transfer ordisposition to certain persons. The 12,546,972 shares of Class A Common Stockare eligible for sale in the public market without restriction. The 23,505,451shares of Class B Common Stock are restricted in nature and are saleablepursuant to Rule 144 under the Securities Act of 1933. As of March 26, 2001, Robert Greenberg, Chairman of the Board and ChiefExecutive Officer, and Michael Greenberg, President, beneficially own anaggregate of 18,948,619 shares of Class B Common Stock. Robert and MichaelGreenberg have also received certain registration rights to sell shares of ClassA Common Stock which will be issuable upon conversion of their shares of Class BCommon Stock in the public market. Shares of Class A Common Stock reserved forissuance pursuant to our Stock Option Plan and the 1998 Employee Stock PurchasePlan have also been registered under the Securities Act of 1933.SPECIAL NOTE ON FORWARD LOOKING STATEMENTS AND REPORTS PREPARED BY ANALYSTS. The Form 10-K contains or incorporates forward-looking statements. You canidentify these forward-looking statements by our use of the words "believes,""anticipates," "plans," "expects," "endeavors," "may," "will," "intends,""estimates" and similar expressions, whether in the negative or affirmative.Although we believe that these forward-looking statements reflect our plans,intentions and expectations reasonably, we may not actually achieve these plans,intentions or expectations. In addition, the risks included here are notexhaustive. Other sections of this report may include additional factors whichcould adversely impact our business and financial performance. Moreover, weoperate in a very competitive and rapidly changing environment. New risk factorsemerge from time to time and we cannot predict all such risk factors, nor can weassess the impact of all such risk factors on our business or the extent towhich any factor, or combination of factors, may cause actual results to differmaterially from those contained in any forward looking statements. Given theserisks and uncertainties, investors should not place undue reliance onforward-looking statements as a prediction of actual results. Investors shouldalso be aware that while we do, from time to time, communicate with securitiesanalysts, we do not disclose any material non-public information or otherconfidential commercial information to them. Accordingly, individuals should notassume that we agree with any statement or report issued by any analyst,regardless of the content of the report. Thus, to the extent that reports issuedby securities analysts contain any projections, forecasts or opinions, suchreports are not our responsibility.ITEM 2. PROPERTIES Our corporate headquarters and additional administrative offices are locatedat four premises in Manhattan Beach, California, and consist of an aggregate ofapproximately 100,000 square feet. We own and lease portions of our corporateheadquarters and administrative offices. The leased property expires betweenFebruary 2002 and February 2008, with options to extend in some cases, and thecurrent aggregate annual rent is approximately $1.1 million. We also lease space for our distribution centers and our retail stores. Theseleased facilities aggregate approximately 1.0 million square feet, with anannual aggregate base rental of approximately $10.7 million, plus, in somecases, a percentage of the store's gross sales in excess of the base annualrent. The terms of these leases vary as to duration and rent escalationprovisions. We have also signed leases for retail stores expected to be openedin 2001. In general, the leases expire between January 2002 and August 2011 andprovide for rent escalations tied to either increases in the lessor's operatingexpenses or fluctuations in the consumer price index in the relevantgeographical area. During 2000, we purchased an administrative office building in ManhattanBeach, California with approximately 63,000 square feet of office space. Thepurchase price was $14.5 million and the acquisition was financed, in part, witha bank loan of $10,850,000. We also purchased an approximately 264,000 squarefoot distribution facility located in Ontario, California. The purchase pricewas $11,450,000, and the acquisition was financed, in part, with a bank loan of$7,850,000. 15 16 In February 2001, we completed the purchase of three adjacentproperties located in Manhattan Beach, California for a total of $4,500,000. Wefinanced the purchase of the properties through internally generated funds and currently available short-term borrowings. We intend to build additional administrative offices on these properties.ITEM 3. LEGAL PROCEEDINGS On June 14, 1999, a complaint captioned R. GRIGGS GROUP LIMITED V. SKECHERSU.S.A., INC. was filed against Skechers in the United States District Court,Northern District of California (San Francisco Division), Case No. 99-2862. R.Griggs Group Limited manufactures and markets footwear including Dr. Martens.The complaint alleged various causes of action, including Federal, state andcommon law unfair competition and Federal and state dilution, with respect tocertain trade dress of certain styles of footwear, and fraud and deceitregarding the plaintiff's alleged postponement of the filing of the action. Thecomplaint was resolved in February 2000. The parties have settled the matter anda final settlement agreement has been signed. The terms are confidential butSkechers can disclose that the settlement did not require payment of any moneyby Skechers. The non-monetary terms will not have a material impact on theSkechers' financial position or results of operations. On December 29, 1999, a complaint captioned SHAPIRO, ET AL., V. SKECHERSU.S.A., INC., ET AL. was filed against Skechers and two of its officers anddirectors in the United States District Court, Central District of California,Case No. 99-13559. The complaint is a purported class action claiming damagesfor alleged violations of the Securities Act of 1933 and the Securities ExchangeAct of 1934. The complaint also names as defendants the underwriters forSkechers' June 9, 1999 initial public offering of its Class A Common Stock. OnJanuary 12, 2000, a complaint captioned Abraham, et al., v. Skechers U.S.A.,Inc., et al. was filed against Skechers and two of its officers and directors inthe United States District Court, Central District of California, Court Case No.00-00471. The complaint is a purported class action claiming damages for allegedviolations of the Securities Act of 1933 and the Securities Exchange Act of1934. On January 24, 2000, a complaint captioned Astrolio, et al., v. SkechersU.S.A., Inc., et al. was filed against Skechers and two of its officers anddirectors in the United States District Court, Central District of California,Case No. 00-00772. The complaint is a purported class action claiming damagesfor alleged violations of the Securities Act of 1933 and the Securities ExchangeAct of 1934. The complaint also names the underwriters for Skechers' initialpublic offering of its Class A Common Stock as defendants in the case. OnJanuary 19, 2000, a complaint captioned Pugliesi, et al., v. Skechers U.S.A.,Inc., et al. was filed against Skechers and two of its officers and directors inthe United States District Court, Central District of California, Case No.00-00631. The complaint is a purported class action claiming damages for allegedviolations of the Securities Act of 1933 and the Securities Exchange Act of1934. All four securities actions were subsequently consolidated into one matterand a consolidated complaint was filed on June 1, 2000. The consolidatedcomplaint named as defendants Skechers, two officers of Skechers, and theunderwriters of Skechers' initial public offering of its Class A Common Stock onJune 9, 1999. The class alleged in the consolidated complaint, consists of allpersons who purchased securities in, or traceable to, Skechers' initial publicoffering of its Class A Common Stock on June 9, 1999 or thereafter on the openmarket prior to June 15, 1999. In response to the consolidated complaint, Skechers filed a motion to dismissthe entire case. On September 25, 2000, a tentative order was issued to dismissthe consolidated complaint in its entirety, with leave to amend. As of December31, 2000, a final order has not issued. Thus, as these matters are still in thepleading stage and no discovery has been conducted, neither Skechers norSkechers' counsel are able to conclude as to the potential likelihood of anunfavorable outcome. In any event, Skechers is vigorously defending the claimsand believes that our defenses are meritorious. Skechers also maintainsinsurance that we believe covers all the matters alleged in the consolidatedcomplaint as currently pled. Accordingly, Skechers has not provided for anypotential losses associated with these lawsuits. On September 29, 2000, a complaint captioned MADISON TRADING LIMITEDCORPORATION AND MERCURY INTERNATIONAL TRADING CORPORATION V. SKECHERS USA, INC.,LOVITT FILMS, INC. AND BERT LOVITT was filed against Skechers in the UnitedStates District Court in Massachusetts, Civil Case No. CV-12016JLT. The lawsuitalleges quantum meruit, intentional interference with contract, intentionalinterference with advantageous relationship, unfair practices and declaratoryrelief arising out of a business arrangement between Skechers and inventor BertLovitt. The complaint seeks an injunction preventing Skechers from using certaintechnology, compensatory damages, exemplary damages and treble damages. Thecourt denied the plaintiffs' motion for a preliminary injunction. While it istoo early to predict what the outcome of such suit will be, Skechers deniesliability and will defend itself vigorously. Nonetheless, there is no basis tobelieve that an adverse result would have a material impact on operations orfinancial results. Accordingly, Skechers has not provided for any potentiallosses associated with this lawsuit. We occasionally become involved in litigation arising from the normal courseof business. Other than the foregoing, we believe that any liability withrespect to pending legal actions, individually or in the aggregate, will nothave a material adverse effect on our business, financial condition and resultsof operations. 16 17ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to our security holders to be voted on during the fourth quarter of 2000. 17 18 PART IIITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS Skechers' Class A Common Stock began trading on the New York Stock Exchangeon June 9, 1999 after Skechers completed an initial public offering of 7,000,000shares of Class A Common Stock at $11.00 per share. Skechers' Class A CommonStock trades under the symbol "SKX". The following table sets forth, for theperiods indicated, the high and low sales prices of the Class A Common Stock. HIGH LOW ------ ----- YEAR ENDED DECEMBER 31, 2000 First Quarter.................................. $ 7.69 $3.25 Second Quarter................................. 16.31 7.50 Third Quarter.................................. 19.94 12.50 Fourth Quarter................................. 16.75 11.44 YEAR ENDED DECEMBER 31, 1999 Second Quarter(1).............................. $11.81 $9.75 Third Quarter.................................. 10.25 4.75 Fourth Quarter................................. 5.19 3.44----------(1) For the period from June 9, 1999 to June 30, 1999. As of March 26, 2001, there were 63 holders of record of Class A Common Stock(including holders who are nominees for an undetermined number of beneficialowners) and 9 holders of record of Skechers' Class B Common Stock. These figuresdo not include beneficial owners who hold shares in nominee name. The Class BCommon Stock is not publicly traded but each share is convertible upon requestof the holder into one share of Class A Common Stock. In May 1992, Skechers elected to be treated for Federal and state income taxpurposes as an S Corporation under Subchapter S of the Internal Revenue Code of1986, as amended (the "Code"), and comparable state laws. As a result, earningsof Skechers, since such initial election, were included in the taxable income ofSkechers' stockholders for Federal and state income tax purposes, and Skecherswas not subject to income tax on such earnings, other than franchise and networth taxes. Prior to the closing of Skechers' initial public offering of itsClass A Common Stock on June 9, 1999, Skechers terminated its S Corporationstatus, and since then Skechers has been treated for Federal and state incometax purposes as a corporation under Subchapter C of the Code and, as a result,had become subject to state and Federal income taxes. By reason of Skechers'treatment as an S Corporation for Federal and state income tax purposes,Skechers, since inception, had provided to its stockholders funds for thepayment of income taxes on the earnings of Skechers. Skechers declareddistributions relating to its S Corporation status of $7.9 million in 1998 and$35.4 million in 1999 ("S Corporation Distributions"), $21.0 million of whichwas paid from a portion of the net proceeds of Skechers' initial public offeringof its Class A Common Stock. In connection with Skechers' initial public offering of its Class A CommonStock and the termination of Skechers' S Corporation tax status, Skechersentered into a tax indemnification agreement with each of its stockholders. Theagreement provides that Skechers will indemnify and hold harmless each of thestockholders for Federal, state, local or foreign income tax liabilities, andcosts relating thereto, resulting from any adjustment to Skechers' taxableincome that is the result of an increase in or change in character of, Skechers'income during the period it was treated as an S Corporation up to Skechers' taxsavings in connection with such adjustments. The agreement also provides that ifthere is a determination that Skechers was not an S Corporation prior to theinitial public offering of its Class A Common Stock on June 9, 1999,stockholders will indemnify Skechers for the additional tax liability arising asa result of such determination. The stockholders will also indemnify Skechersfor any increase in Skechers' tax liability to the extent such increase resultsin a related decrease in the stockholders' tax liability. Purchasers of shares in the initial public offering of its Class A CommonStock on June 9, 1999 did not receive any portion of the S CorporationDistributions. Skechers has never declared or paid dividends on its Class ACommon Stock. Skechers currently intends to retain any earnings for use in itsbusiness and does not anticipate paying any cash dividends in the foreseeablefuture. 18 19ITEM 6. SELECTED FINANCIAL DATA The following tables set forth selected consolidated financial data ofSkechers as of and for each of the years in the five-year period ended December31, 2000. SUMMARY FINANCIAL DATA (IN THOUSANDS, EXCEPT EARNINGS PER SHARE) YEARS ENDED DECEMBER 31, ------------------------------------------------------------ 1996 1997 1998 1999 2000 -------- -------- -------- -------- -------- STATEMENT OF OPERATION DATA: Net sales ......................... $115,410 $183,827 $372,680 $424,601 $675,036 Gross profit ...................... 34,211 68,723 154,580 174,608 284,225 Operating expenses: Selling ........................ 11,739 21,584 49,983 57,332 77,451 General and administrative ..... 18,939 32,397 71,461 79,114 125,827 Earnings from operations .......... 5,125 15,636 33,991 38,830 81,263 Interest expense .................. 3,231 4,186 8,631 6,554 9,230 Earnings before income taxes ...... 1,955 11,413 25,121 32,691 72,351 Net earnings ...................... 1,910 11,023 24,471 24,056 43,751PRO FORMA OPERATIONS DATA:(1) Earnings before income taxes ...... $ 1,955 $ 11,413 $ 25,121 $ 32,691 $ 72,351 Income taxes ...................... 782 4,565 10,048 12,880 28,600 Net earnings ...................... 1,173 6,848 15,073 19,811 43,751 Net earnings per share:(2) Basic .......................... $ 0.04 $ 0.25 $ 0.54 $ 0.62 $ 1.24 Diluted ........................ $ 0.04 $ 0.23 $ 0.49 $ 0.60 $ 1.20 Weighted average shares:(2) Basic .......................... 27,814 27,814 27,814 31,765 35,142 Diluted ........................ 29,614 29,614 30,610 33,018 36,563 AS OF DECEMBER 31, ------------------------------------------------------------BALANCE SHEET DATA: 1996 1997 1998 1999 2000 ------------------- -------- -------- -------- -------- -------- Working capital ..................... $ 11,987 $ 17,081 $ 23,106 $ 65,003 $ 93,305Total assets ........................ 42,151 90,881 146,284 177,914 303,400Total debt .......................... 25,661 39,062 70,933 33,950 85,321Stockholders' equity ................ 3,336 11,125 27,676 86,000 134,046----------(1) Reflects adjustments for Federal and state income taxes for 1996 through 1999 assuming Skechers had been taxed as a C Corporation rather than as an S Corporation for the full year.(2) Basic earnings per share represents net earnings divided by the weighted-average number of common shares outstanding for the period. Diluted earnings per share reflects the potential dilution that could occur if options to issue common stock were exercised or converted into common stock. The weighted average diluted shares outstanding gives effect to the sale by Skechers of those shares of common stock necessary to fund the payment of (i) stockholder distributions paid or declared from January 1, 1998 to June 7, 1999, the S Corporation termination date, in excess of (ii) the S Corporation earnings from January 1, 1998 to December 31, 1998 for both 1997 and 1998, and January 1, 1999 to June 7, 1999 for 1999, based on an initial public offering price of $11 per share, net of underwriting discounts.ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTSOF OPERATIONS Certain information contained in the following Management's Discussion andAnalysis of Financial Condition and Results of Operations constituteforward-looking statements within the meaning of the Securities Act and theSecurities Exchange Act, which can be identified by the use of forward-lookingterminology such as "believes," "anticipates," "plans," "expects," "endeavors," "may," "will," "intends," "estimates" and similar expressions that are intendedto identify forward-looking statements. These forward-looking statements involverisks and uncertainties, and our actual results may differ materially from theresults discussed in the forward-looking statements as a result of certainfactors set forth in "Risk Factors" and elsewhere in this report.OVERVIEW Skechers has realized rapid growth since inception, increasing net sales at acompound annual growth rate of 39.7% from $90.8 million in 1994 to $675.0million in 2000. This momentum continued into 2000 with a 59.0% increase insales and a 109.3% increase in earnings from operations, as compared to 1999.During 1998 and 1999, our gross margins as a percentage of net sales remainedrelatively constant at 41.5% and 41.1%, respectively, and during 2000, grossmargins improved to 42.1% of net sales. Operating 19 20margin as a percentage of net sales also increased from 9.1% in each of 1998 and1999 to 12.0% in 2000. In the future, our rate of growth will be dependent upon,among other things, the continued success of our efforts to expand our footwearofferings within the Skechers brand or developing alternative, successfulbrands. We cannot assure you that the rate of growth will not decline in futureperiods or that we will improve or maintain operating margins. As our sales growth has accelerated, we have focused on investing in ourinfrastructure to support continued expansion in a disciplined manner. Majorareas of investment have included expanding our distribution and administrativefacilities, hiring additional personnel, developing product sourcing and qualitycontrol offices in China and Taiwan, upgrading our management informationsystems, developing and expanding our retail stores and expanding the offeringsavailable through our web site and direct mail catalog. We have established thisinfrastructure to achieve further economies of scale in anticipation ofcontinued increases in sales. Because expenses relating to this infrastructureare fixed, at least in the short-term, operating results and margins would beadversely affected if we do not achieve anticipated continued growth. We have implemented a strategy of controlling the growth of the distributionchannels through which our products are sold in order to protect the Skechersbrand name, properly service customer accounts and better manage the growth ofthe business. Increasing sales depend on various factors, including strength ofour brand name, competitive conditions, and our ability to manage the increasedsales and stores. We cannot assure you that our growth strategy will besuccessful or that our sales or earnings will increase as a result of theimplementation of such efforts.YEAR ENDED DECEMBER 31, 2000 COMPARED TO THE YEAR ENDED DECEMBER 31, 1999Net Sales Net sales for 2000 were $675.0 million, an increase of $250.4 million or59.0% over 1999 net sales of $424.6 million. The substantial increase in netsales continues to be driven by increases in our wholesale revenues, whichincreased 59.0% over last year. In addition, we realized a 51.5% increase inwholesale units sold, to 29.4 million units in 2000 from 19.4 million units in1999. The increase in the wholesale business is primarily due to expansion ofthe domestic sales force, continued consumer acceptance of the company's productofferings, and increased marketing campaigns. During 2000, we continued tointroduce, and generate sales from, new product categories in the women's,men's, children's athletic shoes, and our men's quality dress line. Retail salesfor 2000 also increased over 1999 due to increased sales at those stores openedat least one year and from the addition of 10 new locations added during 2000.Mail order sales in 2000 also increased over 1999 due to an increase in thenumber of mailings and an increase in the circulation of the mailings. Fiscalyear 2000 international sales increased over last year primarily due toincreased brand acceptance and increased advertising campaigns. During 2000, we continued to increase our focus on international sales,through such measures as the establishment of an international infrastructure,creation of an international subsidiary (Skechers USA, Ltd.), selling direct todepartment stores and specialty retailers, the opening of concept stores inLondon and Germany, and the signing of a lease for a concept store in France,scheduled to open during May 2001. In addition, we have signed celebrityendorsements that will be used in various international marketing campaignsthrough the middle of 2002.Gross Profit In 2000, gross profit increased to $284.2 million, a 62.8% increase overgross profit of $174.6 million in 1999. Gross profit as a percentage of netsales was 42.1% in 2000, in comparison to 41.1% in 1999. The increase in grossprofit as a percentage of net sales is due to (i) an increase in the proportionof sales derived from the women's footwear line, which have a higher grossmargin as a percentage of net sales than the men's footwear line (ii) fewermarkdowns as a percentage of sales and (iii) increased sales at retail whichprovide a higher gross margin as a percentage of net sales than wholesale grossmargins.Selling Expenses Selling expenses were $77.5 million in 2000, an increase of 35.1% overselling expenses of $57.3 million in 1999. However, selling expense as apercentage of net sales decreased to 11.5% in 2000 from 13.5% in 1999. Theincrease in absolute dollars was primarily due to increased print advertising,both internationally and domestically, increased promotional expenses, andadditional sales commissions due to increased sales volume. We are committed to the overall marketing strategy that is largelyresponsible for the increase in the market presence, product visibility andproduct demand over the past three years. We have increased our advertisingbudget consistent with projected sales, which has included such avenues asmagazines, television, trade shows, billboards, and buses. We endeavor to spendapproximately 20 218% to 10% of annual net sales in the marketing of Skechers footwear throughadvertising, promotions, public relations, trade shows and other marketingefforts.General and Administrative Expenses General and administrative expenses in 2000 were $125.8 million compared to$79.1 million in 1999. As a percent of sales, general and administrativeexpenses remained the same at 18.6% in both 2000 and 1999. The increase ingeneral and administrative expenses are primarily due to additional salary,wages, temporary help costs, and warehousing and distribution costs associatedwith increased sales volume. In addition, we realized increased operating costsfrom the ten new retail facilities added during 2000, and, although to a lesserextent, we incurred additional general and administrative expenses related toinfrastructure additions to support our international operations. We expect general and administrative expenses to increase in absolutedollars, however, to remain the same or decrease as a percent of net sales. Theincrease in expenditures will be the result of our continued efforts to increaseour market share, through the opening of additional retail stores, bothdomestically and internationally, expanding our direct selling effortsinternationally, and creating the necessary infrastructure to support theongoing operations.Interest Expense Interest expense increased to $9.2 million in 2000 from $6.6 million in1999. The increase was due to increased financing costs associated withadditional borrowings to support our working capital requirements, capitaladditions made during the year, increased purchases of inventory and the buildup of accounts receivable commensurate with our growth.Other, Net Other, net consists primarily of a gain from the settlement of commerciallawsuits and net gain from foreign exchange rate fluctuations.Income Taxes The 2000 effective tax rate was 39.5%, which is comparable to the pro formaeffective rate of 39.4% in 1999. The prior years pro forma taxes represent thosetaxes that would have been reported had we been subject to federal and stateincome taxes as a C corporation for the full year. We continually review andevaluate various tax strategies to minimize our tax liability. We are expanding our international operations and plan to reinvest anyundistributed earnings from our non-U.S. subsidiaries, thereby indefinitelypostponing their remittance. As a result, we do not plan to provide for deferredincome taxes on any accumulated undistributed earnings that our non-U.S.subsidiaries earn in the future. Assuming that our international operations aresuccessful, our effective tax rates should decrease accordingly.YEAR ENDED DECEMBER 31, 1999 COMPARED TO THE YEAR ENDED DECEMBER 31, 1998Net Sales Net sales increased by $51.9 million to $424.6 million, an increase of 13.9%over 1998 sales of $372.7 million. Continued growth in the sales of brandedfootwear is primarily the result of (i) greater brand awareness driven in partby a continued expansion of our national marketing efforts, (ii) a broaderbreadth of men's, women's and children's product offerings, (iii) thedevelopment of our domestic and international sales forces and (iv) thetransition of our account base in the direction of larger accounts with multiplestores and increased sales to such accounts, resulting in higher sales peraccount. During 1999, we were able to successfully target additional styles andcategories in the moderately-priced footwear market. Wholesale units soldincreased 20.5% from 16.1 million units in 1998 to 19.4 million units in 1999.We were able to accomplish this and still maintain our gross margin, as apercentage of net sales, at a level comparable to that achieved in 1998 bycarefully targeting production and inventory levels with the level of ordersfrom customers. In addition, we were able to better match styles with seasonaltrends during 1999. 21 22Gross Profit Our gross profit increased $20.0 million, or 13.0%, to $174.6 million in 1999compared to $154.6 million in 1998. Gross margins as a percentage of net salesdecreased slightly in 1999 to 41.1% compared to 41.5% in 1998. The slightdecrease in gross margin, as a percentage of net sales, in 1999 compared to1998, was due to slightly higher ocean freight costs by third party shippingcompanies on imported products.Selling Expenses Selling expenses increased $7.3 million, or 14.7%, to $57.3 million in 1999compared to $50.0 million in 1998. As a percentage of net sales, sellingexpenses remained relatively constant in 1999 at 13.5% compared to 13.4% in1998. The increase in selling expenses was primarily due to increasedadvertising expenses and additional compensation resulting from increased salesvolume. Advertising expenses as a percentage of sales for 1999 and 1998 was11.2% and 11.3%, respectively.General and Administrative Expenses General and administrative expenses increased $7.7 million to $79.1 millionin 1999, compared to $71.5 million in 1998. As a percentage of sales, generaland administrative expenses decreased to 18.6% in 1999 from 19.2% in 1998. Theincrease in general and administrative expenses was due to (i) the hiring ofadditional personnel, (ii) increased distribution related costs to support theincrease in sales volume, (iii) and additional rent and other operating expensesrelated to the addition of 10 new stores added in 1999.Interest Expense Interest expense decreased to $6.6 million in 1999 from $8.6 million in 1998as a result of a reduction in borrowings under the Company's revolving line ofcredit and the repayment of the $10.0 million note payable to a stockholder.Pro Forma Income Taxes Pro forma income taxes represent taxes, which would have been reportedassuming the Company been subject to federal and state taxes as a C Corporation.LIQUIDITY AND CAPITAL RESOURCES Our capital needs are derived primarily from working capital requirements andthe continued growth of the business. Our working capital at December 31, 2000was $93.3 million, an increase of $28.3 million over working capital of $65.0million at December 31, 1999. The increase in working capital was primarily dueto the increase in accounts receivable and inventories, partially offset byincreases in short term borrowings and accounts payable. Net cash used in operating activities for the current year was $1.0 millioncompared to cash provided by operating activities of $13.1 million last year.The decrease in cash provided by operating activities was due to the significantincreases in receivables and inventories, offset by increases in accountspayable and increased depreciation, to support the increase in sales volume. Net cash used in investing activities was $21.8 million, an increase of $11.0million over last year. The increase in investing activities reflects thenon-financed portion of capital expenditures related to the material handlingand sortation equipment for our distribution facility, and the acquisition of anadministrative building and distribution facility. Current year capitalexpenditures also includes the construction and investment in 10 new retailfacilities opened during 2000. During 2000, we financed a significant portion of our acquisition of adistribution facility located in Ontario, California and the acquisition of anadministrative office building in Manhattan Beach, California. The financingprovides for monthly payments of principal and interest and a balloon paymentdue in 10 years. Net cash provided by financing activities totaled $20.8 million in 2000compared to cash used in financing activities of $2.4 million in 1999. The cashprovided by financing activities was derived primarily from our short-termcredit facilities, and, to a lesser extent, proceeds from the exercise of stockoptions. Our credit facility provides for borrowing under a revolving line of creditof up to $120.0 million and a term loan, with actual borrowings limited toavailable collateral and certain limitations on total indebtedness(approximately $62.1 million of availability as of December 31, 2000) with theCIT Group, as agents for the lenders. At December 31, 2000, there wasapproximately $49.8 million outstanding under the revolving line of credit. Therevolving line of credit bears interest at prime rate (9.5% at December 31,2000) 22 23minus .5%. Interest on the line of credit is payable monthly in arrears. Therevolving line of credit expires on December 31, 2002. The revolving line ofcredit provides a sub-limit for letters of credit of up to $36.0 million tofinance our foreign purchases of merchandise inventory. As of December 31, 2000,we had approximately $8.6 million of letters of credit under the revolving lineof credit. The term loan component of the credit facility, which has a principalbalance of $2.1 million as of December 31, 2000, bears interest at the primerate plus 1.0% and is due in monthly installments with a final balloon paymentDecember 2002. The proceeds from this note were used to purchase equipment forone of our distribution centers in Ontario, California and the note is securedby such equipment. The credit facility contains certain financial covenants thatrequire us to maintain minimum tangible net worth, working capital, andspecified leverage ratios and limits our ability to pay dividends if we are indefault of any provisions of the credit facility. We were in compliance withthese covenants as of December 31, 2000. At December 31, 1998, we had an unsubordinated note payable to the GreenbergFamily Trust in the amount of $10.0 million. We recorded interest expense ofapproximately $433,000 and $540,000 related to notes payable to the GreenbergFamily Trust during the years ended December 31, 1999 and 1998, respectively.This note was repaid during 1999, with the proceeds, in part, from Skechers'initial public offering of its Class A Common Stock. By reason of our treatment as an S Corporation for Federal and state incometax purposes, we have since inception provided to our stockholders funds for thepayment of income taxes on our earnings as well as the conversion from an SCorporation to a C Corporation during 1999. We declared S CorporationDistributions of $35.4 million ($21.0 million of which was paid from a portionof the net proceeds of Skechers' initial public offering of its Class A CommonStock) and $7.9 million in 1999 and 1998, respectively. Since the termination ofour S Corporation status, earnings have been and will be retained for theforeseeable future in the operations of the business. We believe that anticipated cash flows from operations, available borrowingsunder our revolving line of credit, cash on hand and its financing arrangementswill be sufficient to provide us with the liquidity necessary to fund ouranticipated working capital and capital requirements through fiscal 2001.However, in connection with our growth strategy, we will incur significantworking capital requirements and capital expenditures. Our future capitalrequirements will depend on many factors, including, but not limited to, thelevels at which we maintain inventory, the market acceptance of our footwear,the levels of promotion and advertising required to promote our footwear, theextent to which we invest in new product design and improvements to our existingproduct design and the number and timing of new store openings. To the extentthat available funds are insufficient to fund our future activities, we may needto raise additional funds through public or private financing. We cannot assureyou that additional financing will be available or that, if available, it can beobtained on terms favorable to us and our stockholders. Failure to obtain suchfinancing could delay or prevent our planned expansion, which could adverselyaffect our business, financial condition and results of operations. In addition,if additional capital is raised through the sale of additional equity orconvertible securities, dilution to our stockholders could occur.INFLATION Skechers does not believe that the relatively moderate rates of inflationexperienced in the United States over the last three years have had asignificant effect on its sales or profitability. However, Skechers cannotaccurately predict the effect of inflation on future operating results. Althoughhigher rates of inflation have been experienced in a number of foreign countriesin which Skechers' products are manufactured, Skechers does not believe thatinflation has had a material effect on Skechers' sales or profitability. In thepast, Skechers has been able to offset its foreign product cost increases byincreasing prices or changing suppliers, we cannot assure you that Skechers willbe able to continue to make such increases or changes in the future.EXCHANGE RATES Skechers receives U.S. Dollars for substantially all of its product sales andits royalty income. Inventory purchases from offshore contract manufacturers areprimarily denominated in U.S. Dollars; however, purchase prices for Skechers'products may be impacted by fluctuations in the exchange rate between the U.S.Dollar and the local currencies of the contract manufacturers, which may havethe effect of increasing Skechers' cost of goods in the future. During 1999 and2000, exchange rate fluctuations did not have a material impact on Skechers'inventory costs. Skechers does not engage in hedging activities with respect tosuch exchange rate risk.ITEM 7(a) QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Skechers does not hold any derivative securities. At December 31, 2000, 37% of the Company's total indebtedness contained fixedrates of interest ranging from 7.66% to 7.89%. Substantially all of theCompany's remaining indebtedness is at variable rates of interest and,accordingly, while changes in interest rates would not impact the fair value ofthese financial instruments, such changes would impact net earnings in futureperiods. 23 24FUTURE ACCOUNTING CHANGES In March 2000, the Financial Accounting Standards Board ("FASB") issued FASBInterpretation No. 44 ("Interpretation 44"), Accounting for Certain TransactionsInvolving Stock Compensation. Interpretation 44 provides criteria for therecognition of compensation expense in certain stock-based compensationarrangements that are accounted for under Accounting Principles Board OpinionNo. 25, Accounting for Stock-Based Compensation. Interpretation 44 is effectiveJuly 1, 2000, with certain provisions that are effective retroactively toDecember 15, 1998 and January 12, 2000. Interpretation 44 did not have amaterial impact on our financial statements In June 1998, the Financial Accounting Standards Board issued Statement ofFinancial Accounting Standards ("SFAS") No. 133, Accounting for DerivativeInstruments and Hedging Activities ("SFAS No. 133"), as amended by SFAS No. 137.SFAS No. 133 modifies the accounting for derivative and hedging activities andis effective for fiscal years beginning after June 15, 2000. Since Skechers doesnot presently hold any derivatives or engage in hedging activities, accordinglySFAS No. 133 should not impact Skechers' financial position or results ofoperations.ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The information required by this Item 8 is incorporated by reference to ourConsolidated Financial Statements and Independent Auditors' Report beginning atpage F-1 of this Form 10-K.ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING ANDFINANCIAL DISCLOSURE None. 24 25 PART IIIITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The information required by this Item 10 is hereby incorporated byreference from our definitive proxy statement, to be filed pursuant toRegulation 14A within 120 days after the end of our 2000 fiscal year.ITEM 11. EXECUTIVE COMPENSATION The information required by this Item 11 is hereby incorporated byreference from our definitive proxy statement, to be filed pursuant toRegulation 14A within 120 days after the end of our 2000 fiscal year.ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The information required by this Item 12 is hereby incorporated byreference from our definitive proxy statement, to be filed pursuant toRegulation 14A within 120 days after the end of our 2000 fiscal year.ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The information required by this Item 13 is hereby incorporated byreference from our definitive proxy statement, to be filed pursuant toRegulation 14A within 120 days after the end of our 2000 fiscal year. 25 26 PART IVITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) Consolidated financial statements and schedules required to be filed hereunder are indexed on Page F-1 hereof. (b) Reports on Form 8-K -- There were no reports on Form 8-K filed during the last quarter of the fiscal year ended December 31, 2000. (c) Exhibits EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ------ ---------------------- 2.1 Agreement of Reorganization and Plan of Merger (incorporated by reference to exhibit number 3.2(a) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on May 12, 1999). 3.1 Certificate of Incorporation (incorporated by reference to exhibit number 3.1 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 3.2 Bylaws (incorporated by reference to exhibit number 3.2 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 3.2(a) Amendment to Bylaws (incorporated by reference to exhibit number 3.2(a) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on May 12, 1999). 4.1 Form of Specimen Class A Common Stock Certificate (incorporated by reference to exhibit number 4.1 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on May 12, 1999). 10.1 Amended and Restated 1998 Stock Option, Deferred Stock and Restricted Stock Plan (incorporated by reference to exhibit number 10.1 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.2 Amended and restated 1998 Employee Stock Purchase Plan (incorporated by reference to exhibit number 10.1 of the Registrant's Form 10-Q, for the period ending June 30, 2000) 10.3 Employment Agreement dated June 14, 1999, between the Registrant and Robert Greenberg (incorporated by reference to exhibit number 10.3 of the Registrant's Form 10-Q for the period ending June 30, 1999). 10.3(a) Amendment No. 1 to Employment Agreement between the Registrant and Robert Greenberg dated December 31, 1999 (incorporated by reference to exhibit number 10.3(a) of the Registrant's Form 10-K for the year ending December 31, 1999). 10.4 Employment Agreement dated June 14, 1999, between the Registrant and Michael Greenberg (incorporated by reference to exhibit number 10.4 of the Registrant's Form 10-Q for the period ending June 30, 1999). 10.4(a) Amendment to Employment Agreement between the Registrant and Michael Greenberg dated December 31, 2000 (incorporated by reference to exhibit number 10.4(a) of the Registrant's Form 10-K for the year ending December 31, 1999). 10.5 Employment Agreement dated June 14, 1999, between the Registrant and David Weinberg (incorporated by reference to exhibit number 10.5 of the Registrant's Form 10-Q for the period ending June 30, 1999). 10.5(a) Amendment No. 1 to Employment Agreement between the Registrant and David Weinberg dated December 31, 2000 (incorporated by reference to exhibit number 10.5(a) of the Registrant's Form 10-K for the year ending December 31, 1999). 10.6 Indemnification Agreement dated June 7, 1999 between the Registrant and its directors and executive officers (incorporated by reference to exhibit number 10.6 of the Registrant's Form 10-K for the year ending December 31, 1999). 10.6(a) List of Registrant's directors and executive officers who entered into Indemnification Agreement referenced in Exhibit 10.6 with the Registrant (incorporated by reference to exhibit number 10.6(a) of the Registrant's Form 10-K for the year ending December 31, 1999). 10.7 Registration Rights Agreement dated June 9, 1999, between the Registrant, the Greenberg Family Trust, and 26 27 EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ------ ---------------------- Michael Greenberg (incorporated by reference to exhibit number 10.7 of the Registrant's Form 10-Q for the period ending June 30, 1999). 10.8 Tax Indemnification Agreement dated June 8, 1999, between the Registrant and certain shareholders (incorporated by reference to exhibit number 10.8 of the Registrant's Form 10-Q for the period ending June 30, 1999). 10.9 Lease Agreement, dated July 1, 1999, between the Registrant and Richard and Donna Piazza, regarding 1108-B Manhattan Avenue, Manhattan Beach, California (incorporated by reference to exhibit number 10.22 of the registrant's Form 10-K for the year ending December 31, 1999) 10.10 Amended and Restated Loan and Security Agreement between the Registrant and Heller Financial, Inc., dated September 4, 1998 (incorporated by reference to exhibit number 10.10 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.10(a) Term Loan A Note, dated September 4, 1998, between the Registrant and Heller Financial, Inc. (incorporated by reference to exhibit number 10.10(a) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.10(b) Revolving Note dated September 4, 1998, between the Registrant and Heller Financial, Inc. (incorporated by reference to exhibit number 10.10(b) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.10(c) First Amendment to Amended and Restated Loan and Security Agreement, dated September 11, 1998 (incorporated by reference to exhibit number 10.10(c) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.10(d) Second Amendment to Amended and Restated Loan and Security Agreement, dated December 23, 1998 (incorporated by reference to exhibit number 10.10(d) of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.10(e) Third Amendment to Amended and Restated Loan and Security Agreement dated February 1, 2000. 10.10(f) Fourth Amendment to Amended and Restated Loan and Security Agreement dated June 1, 2000. 10.11 Lease Agreement, dated April 15, 1998, between the Registrant and Holt/Hawthorn and Victory Partners, regarding 228 Manhattan Beach Boulevard, Manhattan Beach, California (incorporated by reference to exhibit number 10.11 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.12 Commercial Lease Agreement, dated February 19, 1997, between the Registrant and Richard and Donna Piazza, regarding 1110 Manhattan Avenue, Manhattan Beach, California (incorporated by reference to exhibit number 10.12 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.13 Lease Agreement, dated June 12, 1998, between the Registrant and Richard and Donna Piazza, regarding 1112 Manhattan Avenue, Manhattan Beach, California (incorporated by reference to exhibit number 10.13 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.14 Lease Agreement, dated November 21, 1997, between the Registrant and The Prudential Insurance Company of America, regarding 1661 So. Vintage Avenue, Ontario, California (incorporated by reference to exhibit number 10.14 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.15 Lease Agreements, dated November 21, 1997, between the Registrant and The Prudential Insurance Company of America, regarding 1777 So. Vintage Avenue, Ontario, California (incorporated by reference to exhibit number 10.15 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.16 Commercial Lease Agreement, dated April 10, 1998, between the Registrant and Proficiency Ontario Partnership, regarding 5725 East Jurupa Street (incorporated by reference to exhibit number 10.16 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on July 29, 1998). 10.17 Lease Agreement and Addendum, dated June 11, 1998, between the Registrant and Delores McNabb, regarding Suite 3 on the first floor of the north building, Suite 9 on the first floor of the south building at 904 Manhattan Avenue, Manhattan Beach, California (incorporated by reference to exhibit number 10.17 of the Registrant's 27 28 EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ------ ---------------------- Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.18 Addendum to Lease Agreement, dated September 14, 1998, between the Registrant and Delores McNabb, regarding Suites 3, 4 and 5 on the second floor of the north building at 904 Manhattan Avenue, Manhattan Beach California (incorporated by reference to exhibit number 10.18 of the Registrant's Registration Statement on Form S-1, as amended (File No. 333-60065), filed with the Securities and Exchange Commission on April 9, 1999). 10.19 Standard Offer, Agreement and Escrow Instructions, Addendum and Additional Provisions, dated October 12, 2000, between the Registrant and/or its assignees and Champagne Building Group L.P., for the purchase of property located at 1670 South Champagne Avenue, Ontario, California. 10.20 Lease Agreement, dated November 15, 1999, between the Registrant and Champagne Building Group L.P., regarding 1670 South Champagne Avenue, Ontario, California (incorporated by reference to exhibit 10.20 of the Registrant's Form 10-K for the year ending December 31, 1999). 10.21 Amendment of Lease Agreement dated December 20, 2000, between the Registrant and Yale Investments, LLC (a wholly owned subsidiary of the Registrant), regarding 1670 South Champagne Avenue, Ontario, California. 10.22 Purchase and Sale Agreement with Escrow Instructions, dated November 13, 2000, between the Registrant and Pacifica California/Apollo, LLC, for the purchase of property located at 225 South Sepulveda Boulevard, Manhattan Beach, California. 10.22(a) First Amendment to Purchase and Sale Agreement, dated November 29, 2000, between the Registrant and Pacifica California/Apollo, LLC, for the purchase of property located at 225 South Sepulveda Boulevard, Manhattan Beach, California. 10.23 Promissory Note, dated December 27, 2000, between the Registrant and Washington Mutual Bank, FA, for the purchase of property located at 225 South Sepulveda Boulevard, Manhattan Beach, California. 10.24 Assignment and Assumption Agreement, dated December 27, 2000, between the Registrant and Pacifica California/Apollo, LLC, regarding 225 South Sepulveda Boulevard, Manhattan Beach, California. 10.25 Loan Agreement, dated December 21, 2000, between Yale Investments, LLC, and MONY Life Insurance Company, for the purchase of property located at 1670 South Champagne Avenue, Ontario, California. 10.26 Promissory Note, dated December 21, 2000, between Yale Investments, LLC, and MONY Life Insurance Company, for the purchase of property located at 1670 Champagne Avenue, Ontario, California. 21.1 Subsidiaries of the Registrant 23.1 Consent of KPMG LLP 24.1 Power of Attorney (included on signature page) 28 29 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the SecuritiesExchange Act of 1934, the Registrant has duly caused this report to be signed onits behalf by the undersigned, thereunto duly authorized, in the City ofManhattan Beach, State of California on the 29th day of March, 2001. SKECHERS U.S.A, INC. By: /s/ ROBERT GREENBERG ------------------------------------- Robert Greenberg Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of Skechers U.S.A., Inc., dohereby constitute and appoint Robert Greenberg, Michael Greenberg and DavidWeinberg, or either of them, our true and lawful attorneys and agents, to do anyand all acts and things in our names in the capacities indicated below, whichsaid attorneys and agents, or either of them, may deem necessary or advisable toenable said corporation to comply with the Securities Exchange Act of 1934, asamended, and any rules, regulations, and requirements of the Securities andExchange Commission, in connection with this report, including specifically, butwithout limitation, power and authority to sign for us or any of us in our namesand in the capacities indicated below, any and all amendments to this report,and we do hereby ratify and confirm all that the said attorneys and agents, oreither of them, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, thisreport has been signed by the following persons on behalf of the Registrant andin the capacities and on the dates indicated. SIGNATURE TITLE DATE --------- ----- ---- /S/ ROBERT GREENBERG Chairman of the Board and Chief March 29, 2001-------------------------------------------- Executive Officer (Principal Robert Greenberg Executive Officer) /S/ MICHAEL GREENBERG President and Director March 29, 2001-------------------------------------------- Michael Greenberg /S/ DAVID WEINBERG Executive Vice President, Chief March 29, 2001-------------------------------------------- Financial Officer and Director David Weinberg (Principal Financial and Accounting Officer) /S/ JEFFREY GREENBERG Director March 29, 2001-------------------------------------------- Jeffrey Greenberg /S/ JOHN QUINN Director March 29, 2001-------------------------------------------- John Quinn /S/ ROBERT SIEGEL Director March 29, 2001-------------------------------------------- Robert Siegel /S/ RICHARD SISKIND Director March 29, 2001-------------------------------------------- Richard Siskind 29 30 SKECHERS U.S.A., INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS PAGE ---- Independent Auditors' Report......................................................... F-2Consolidated Balance Sheets -- December 31, 1999 and 2000............................ F-3Consolidated Statements of Earnings -- Each of the years in the three-year period ended December 31, 2000..................................................... F-4Consolidated Statements of Stockholders' Equity -- Each of the years in the three-year period ended December 31, 2000.......................................... F-5Consolidated Statements of Cash Flows -- Each of the years in the three-year period ended December 31, 2000..................................................... F-6Notes to Consolidated Financial Statements........................................... F-7Schedule II -- Valuation and Qualifying Accounts..................................... S-1 F-1 31 INDEPENDENT AUDITORS' REPORTThe Board of Directors and StockholdersSkechers U.S.A., Inc.: We have audited the accompanying consolidated financial statements ofSkechers U.S.A., Inc. and subsidiaries as listed in the accompanying index. Inconnection with our audits of the consolidated financial statements, we alsohave audited the financial statement schedule as listed in the accompanyingindex. These consolidated financial statements and financial statement scheduleare the responsibility of the Company's management. Our responsibility is toexpress an opinion on these consolidated financial statements and financialstatement schedule based on our audits. We conducted our audits in accordance with auditing standards generallyaccepted in the United States of America. Those standards require that we planand perform the audit to obtain reasonable assurance about whether theconsolidated financial statements are free of material misstatement. An auditincludes examining, on a test basis, evidence supporting the amounts anddisclosures in the consolidated financial statements. An audit also includesassessing the accounting principles used and significant estimates made bymanagement, as well as evaluating the overall financial statement presentation.We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to abovepresent fairly, in all material respects, the financial position of SkechersU.S.A., Inc. and subsidiaries as of December 31, 1999 and 2000 and the resultsof their operations and their cash flows for each of the years in the three-yearperiod ended December 31, 2000 in conformity with accounting principlesgenerally accepted in the United States of America. Also, in our opinion, therelated financial statement schedule, when considered in relation to the basicconsolidated financial statements taken as a whole, presents fairly, in allmaterial respects, the information set forth therein. KPMG LLPLos Angeles, CaliforniaFebruary 23, 2001 F-2 32 SKECHERS U.S.A., INC. CONSOLIDATED BALANCE SHEETS DECEMBER 31, 1999 AND 2000 (IN THOUSANDS) ASSETS 1999 2000 -------- -------- Current assets: Cash .......................................................................... $ 10,836 $ 8,781 Trade accounts receivable, less allowances for bad debts and returns of $3,237 in 1999 and $5,152 in 2000 ............................... 63,052 96,628 Due from officers and employees ............................................... 851 540 Other receivables ............................................................. 2,771 1,016 -------- -------- Total receivables ..................................................... 66,674 98,184 -------- -------- Inventories ................................................................... 68,959 111,708 Prepaid expenses and other current assets ..................................... 5,130 6,457 Deferred tax assets ........................................................... 2,810 4,414 -------- -------- Total current assets .................................................. 154,409 229,544Property and equipment, at cost, less accumulated depreciation and amortization ............................................................. 21,387 70,405Intangible assets, at cost, less applicable amortization ........................ 663 559Other assets, at cost ........................................................... 1,455 2,892 -------- -------- $177,914 $303,400 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITYCurrent liabilities: Short-term borrowings ......................................................... $ 30,382 $ 49,754 Current installments of long-term borrowings .................................. 1,060 2,452 Accounts payable .............................................................. 47,696 72,865 Accrued expenses .............................................................. 10,268 11,168 -------- -------- Total current liabilities ............................................. 89,406 136,239 -------- --------Long-term borrowings, excluding current installments ............................ 2,508 33,115Commitments and contingencies Stockholders' equity: Preferred stock, $.001 par value. Authorized 10,000 shares; none issued and outstanding ................................................ -- -- Class A Common stock, $.001 par value. Authorized 100,000 shares; issued and outstanding 7,091 and 10,789 shares at December 31, 1999 and 2000, respectively ............................................................... 7 10 Class B Common stock, $.001 par value. Authorized 60,000 shares; issued and outstanding 27,814 and 24,805 shares at December 31, 1999 and 2000, respectively ............................................................... 28 25 Additional paid-in capital .................................................... 69,948 74,243 Retained earnings ............................................................. 16,017 59,768 -------- -------- Total stockholders' equity ............................................ 86,000 134,046 -------- -------- $177,914 $303,400 ======== ======== See accompanying notes to consolidated financial statements. F-3 33 SKECHERS U.S.A., INC. CONSOLIDATED STATEMENTS OF EARNINGS THREE-YEAR PERIOD ENDED DECEMBER 31, 2000 (IN THOUSANDS, EXCEPT PER SHARE DATA) 1998 1999 2000 --------- --------- --------- Net sales .................................. $ 372,680 $ 424,601 $ 675,036Cost of sales .............................. 218,100 249,993 390,811 --------- --------- --------- Gross profit ..................... 154,580 174,608 284,225Royalty income, net ........................ 855 668 316 --------- --------- --------- 155,435 175,276 284,541 --------- --------- ---------Operating expenses: Selling .................................. 49,983 57,332 77,451 General and administrative ............... 71,461 79,114 125,827 --------- --------- --------- 121,444 136,446 203,278 --------- --------- --------- Earnings from operations ......... 33,991 38,830 81,263 --------- --------- ---------Other income (expense): Interest ................................. (8,631) (6,554) (9,230) Other, net ............................... (239) 415 318 --------- --------- --------- (8,870) (6,139) (8,912) --------- --------- --------- Earnings before income taxes ..... 25,121 32,691 72,351 Earnings before income taxes ..... 25,121 32,691 72,351Income taxes ............................... 650 8,635 28,600 --------- --------- --------- Net earnings ..................... $ 24,471 $ 24,056 $ 43,751 ========= ========= =========Net earnings per share: Basic .................................... $ 1.24 Diluted .................................. $ 1.20 =========Weighted-average shares: Basic .................................... 35,142 Diluted .................................. 36,563 =========Pro forma operations data: Earnings before income taxes ............. $ 25,121 $ 32,691 Income taxes ............................. 10,048 12,880 --------- --------- Net earnings ..................... $ 15,073 $ 19,811 ========= =========Net earnings per share: Basic .................................... $ 0.54 $ 0.62 Diluted .................................. $ 0.49 $ 0.60 ========= =========Weighted-average shares: Basic .................................... 27,814 31,765 Diluted .................................. 30,610 33,018 ========= ========= See accompanying notes to consolidated financial statements. F-4 34 SKECHERS U.S.A., INC. CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY THREE-YEAR PERIOD ENDED DECEMBER 31, 2000 (IN THOUSANDS) COMMON STOCK ---------------------------------------------- SHARES AMOUNT ADDITIONAL TOTAL --------------------- --------------------- PAID-IN RETAINED STOCKHOLDERS' CLASS A CLASS B CLASS A CLASS B CAPITAL EARNINGS EQUITY --------- --------- --------- --------- ---------- --------- ------------- Balance at December 31, 1997 ............... -- 27,814 -- $ 2 -- $ 11,123 $ 11,125 Net earnings ............................. -- -- -- -- -- 24,471 24,471 S Corporation distribution ............... -- -- -- -- -- (7,920) (7,920) --------- --------- --------- --------- --------- --------- ---------Balance at December 31, 1998 ............... -- 27,814 -- 2 -- 27,674 27,676 Net earnings ............................. -- -- -- -- -- 24,056 24,056 Proceeds from issuance of common stock in connection with initial public offering 7,000 -- $ 7 26 $ 69,687 -- 69,720 Proceeds from issuance of common stock under the employee stock purchase plan 91 -- -- -- 261 -- 261 S Corporation distribution: Cash .................................. -- -- -- -- -- (35,363) (35,363) Cross Colours trademark ............... -- -- -- -- -- (350) (350) --------- --------- --------- --------- --------- --------- ---------Balance at December 31, 1999 ............... 7,091 27,814 7 28 69,948 16,017 86,000 Net earnings ............................. -- -- -- -- -- 43,751 43,751 Proceeds from issuance of common stock under the employee stock purchase plan. 267 -- -- -- 1,073 -- 1,073 Proceeds from issuance of common stock under the employee stock option plan .. 422 -- -- -- 1,499 -- 1,499 Tax effect of non-qualified stock options ............................... -- -- -- -- 1,636 -- 1,636 Deferred compensation .................... -- -- -- -- 87 -- 87 Conversion of Class B common stock into Class A common stock .................... 3,009 (3,009) 3 (3) -- -- -- --------- --------- --------- --------- --------- --------- ---------Balance at December 31, 2000 ............... 10,789 24,805 $ 10 $ 25 $ 74,243 $ 59,768 $ 134,046 ========= ========= ========= ========= ========= ========= ========= See accompanying notes to consolidated financial statements. F-5 35 SKECHERS U.S.A., INC. CONSOLIDATED STATEMENTS OF CASH FLOWS THREE-YEAR PERIOD ENDED DECEMBER 31, 2000 (IN THOUSANDS) 1998 1999 2000 -------- -------- -------- Cash flows from operating activities: Net earnings ................................................................ $ 24,471 $ 24,056 $ 43,751 Adjustments to reconcile net earnings to net cash provided by (used in) operating activities: Depreciation and amortization of property and equipment .................. 2,843 3,752 5,894 Amortization of intangible assets ........................................ 148 108 104 Provision (recovery) for bad debts and returns ........................... 1,423 (176) 1,915 Tax effect of non-qualified stock options ................................ -- -- 1,636 Deferred compensation .................................................... -- -- 87 Loss on disposal of equipment ............................................ -- 903 78 Gain (loss) on distribution of intangibles ............................... 190 (118) -- Increase in assets: Receivables ............................................................ (17,760) (17,282) (33,426) Inventories ............................................................ (19,558) (3,569) (42,749) Prepaid expenses and other current assets .............................. (1,877) (2,514) (1,327) Deferred tax assets .................................................... -- (2,810) (1,604) Other assets ........................................................... (512) 466 (1,437) Increase (decrease) in liabilities: Accounts payable ....................................................... 2,132 9,551 25,169 Accrued expenses ....................................................... 4,249 738 900 -------- -------- -------- Net cash provided by (used in) operating activities ................. (4,251) 13,105 (1,009) -------- -------- --------Cash flows used in investing activities: Capital expenditures ........................................................ (9,434) (10,846) (21,897) Proceeds from the sales of fixed assets ..................................... -- -- 51 Intangible assets ........................................................... (14) -- -- -------- -------- -------- Net cash used in investing activities ............................... (9,448) (10,846) (21,846) -------- -------- --------Cash flows from financing activities: Net proceeds from initial public offering of common stock ................... -- 69,720 -- Net proceeds from issuance of common stock .................................. -- 261 2,572 Net proceeds (payments) related to short-term borrowings .................... 31,486 (23,697) 19,372 Proceeds from long-term debt ................................................ 581 -- -- Payments on long-term debt .................................................. (562) (1,042) (1,144) Payments on notes payable to stockholder .................................... (1,006) (12,244) -- Distributions paid to stockholders .......................................... (7,320) (35,363) -- -------- -------- -------- Net cash provided by (used in) financing activities ................. 23,179 (2,365) 20,800 -------- -------- -------- Net increase (decrease) in cash ..................................... 9,480 (106) (2,055)Cash at beginning of year ..................................................... 1,462 10,942 10,836 -------- -------- --------Cash at end of year ........................................................... $ 10,942 $ 10,836 $ 8,781 ======== ======== ========Supplemental disclosures of cash flow information: Cash paid during the year for: Interest ................................................................. $ 8,067 $ 6,782 $ 8,386 Income taxes ............................................................. 1,416 10,619 27,712 ======== ======== ========SUPPLEMENTAL DISCLOSURES OF NONCASH INVESTING AND FINANCING ACTIVITIES: During 2000, the Company acquired $14,444 of property and equipment undercapital lease arrangements. In addition, the Company acquired an office buildingand distribution facility and issued two notes for $10,850 and $ 7,850,respectively. During 1999, the Company declared a noncash distribution of intangibles of$350. During 1998, the Company acquired $1,372 of property and equipment undercapital lease arrangements. In connection with one of these arrangements, theCompany received $581 in cash through a sale leaseback transaction. See accompanying notes to consolidated financial statements. F-6 36 SKECHERS U.S.A., INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DECEMBER 31, 1999 AND 2000(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (a) The Company Skechers U.S.A., Inc. (the Company) designs, develops, markets anddistributes footwear. The Company also operates retail stores, direct mail ande-commerce businesses. The accompanying consolidated financial statements include the accounts ofthe Company and its wholly owned subsidiaries. All significant intercompanybalances and transactions have been eliminated in consolidation. (b) Revenue Recognition Revenue is recognized upon shipment of product or at point of sale for retailoperations. Allowances for estimated returns and discounts are provided when therelated revenue is recorded. Revenues from royalty agreements are recognized as earned. (c) Inventories Inventories, principally finished goods, are stated at the lower of cost(based on the first-in, first-out method) or market. The Company provides forestimated losses from obsolete or slow-moving inventories. (d) Income Taxes The Company accounts for income taxes under the asset and liability method.Deferred tax assets and liabilities are recognized for the future taxconsequences attributable to the differences between the financial statementcarrying amounts of existing assets and liabilities and their respective taxbases. The effect on deferred tax assets and liabilities of a change in taxrates is recognized in income in the period that includes the enactment date. (e) Depreciation and Amortization Depreciation and amortization of property and equipment is computed using thestraight-line method based on the following estimated useful lives: Buildings 20 years Building improvements 20 years or useful life, whichever is shorter Furniture, fixtures and equipment 5 years Leasehold improvements Useful life or remaining lease term, whichever is shorter Intangible assets consist of trademarks and are amortized on a straight-linebasis over ten years. The accumulated amortization as of December 31, 1999 and2000 is $1,196,000 and $492,000, respectively. (f) Long-Lived Assets The Company reports long-lived assets, including intangibles, at amortizedcost. As part of an ongoing review of the valuation and amortization oflong-lived assets, management assesses the carrying value of assets if facts andcircumstances suggest that such assets may be impaired. If this review indicatesthat the assets will not be recoverable, as determined by a nondiscounted cashflow projection over the remaining amortization period, their carrying value isreduced to estimated fair value, based on discounted cash flows. F-7 37 (g) Advertising Costs Advertising costs are expensed in the period in which the advertisements arerun. Advertising expense for the years ended December 31, 1998, 1999 and 2000were approximately $42,200,000, $47,400,000 and $59,122,000, respectively.Prepaid advertising costs at December 31, 1999 and 2000 were $1,800,000 and$2,605,000, respectively. Prepaid amounts outstanding at December 31, 1999 and2000 represent advertising in trade publications, which had not run as ofDecember 31, 1999 and 2000, respectively. (h) Earnings Per Share Basic earnings per share represents net earnings divided by theweighted-average number of common shares outstanding for the period. Dilutedearnings per share reflects the potential dilution that could occur if optionsto issue common stock were exercised or converted into common stock. Theweighted average diluted shares outstanding gives effect to the sale by theCompany of those shares of common stock necessary to fund the payment of (i)stockholder distributions paid or declared from January 1, 1998 to June 7, 1999,the S Corporation termination date, in excess of (ii) the S Corporation earningsfrom January 1, 1998 to December 31, 1998 for 1998, and January 1, 1998 to June7, 1999 for 1999, based on an initial public offering price of $11 per share,net of underwriting discounts. The reconciliation of basic to diluted weighted-average shares is as follows(in thousands): 1998 1999 2000 ------ ------ ------ Weighted-average shares used in basic computation ...... 27,814 31,765 35,142Shares to fund stockholder distributions ............... 1,800 533 --Dilutive effect of stock options ....................... 996 720 1,421 ------ ------ ------Weighted-average shares used in diluted computation .... 30,610 33,018 36,563 ====== ====== ====== Options to purchase 1,391,000, 1,411,000 and 1,117,920 shares of common stockat prices ranging from $2.78 to $19.19 were outstanding at December 31, 1998,1999 and 2000, respectively, but were not included in the computation of dilutedearnings per share because the options' exercise price was greater than theaverage market price of the common shares. (i) Use of Estimates Management has made a number of estimates and assumptions relating to thereporting of assets, liabilities, revenues and expenses and the disclosure ofcontingent assets and liabilities to prepare these consolidated financialstatements in conformity with accounting principles generally accepted in theUnited States of America. Actual results could differ from those estimates. (j) Product Design and Development Costs The Company charges all product design and development costs to expense whenincurred. Product design and development costs aggregated approximately$2,400,000, $2,600,000 and $3,700,000 during the years ended December 31, 1998,1999 and 2000, respectively. (k) Comprehensive Income Except for net earnings, the Company does not have any transactions and othereconomic events that qualify as comprehensive income. (l) Fair Value of Financial Instruments The carrying amount of the Company's financial instruments, which principallyinclude cash, accounts receivable, accounts payable and accrued expenses,approximates fair value due to the relatively short maturity of suchinstruments. The fair value of the Company's short-term instruments reflects the fairvalue based upon current rates available to the Company for similar debt. F-8 382) PROPERTY AND EQUIPMENT Property and equipment is summarized as follows (in thousands): 1999 2000 ------- ------- Land ............................................. $ -- $ 7,858 Buildings and improvements ....................... -- 18,639 Furniture, fixtures and equipment ................ 17,863 37,529 Leasehold improvements ........................... 12,392 21,029 ------- ------- Total property and equipment ........... 30,255 85,055 Less accumulated depreciation and amortization ... 8,868 14,650 ------- ------- Property and equipment, net ............ $21,387 $70,405 ======= =======(3) SHORT-TERM BORROWINGS The Company has available a secured line of credit, as amended in June 2000,permitting borrowings up to $120,000,000 based upon eligible accounts receivableand inventories. The agreement expires on December 31, 2002. Borrowings bearinterest at the rate of prime (9.5% at December 31, 2000) minus .50%. Theagreement provides for the issuance of letters of credit up to a maximum of$36,000,000, which decreases the amount available for borrowings under theagreement. Outstanding letters of credit at December 31, 2000 were $8,586,000.Available borrowings under the line of credit at December 31, 2000 wereapproximately $62,054,000. The Company pays an unused line of credit fee of .25%annually. The Company is required to maintain certain financial covenantsincluding specified minimum tangible net worth, working capital and leverageratios as well as limit the payment of dividends if it is in default of anyprovision of the agreement. The Company was in compliance with these covenantsat December 31, 2000.(4) NOTES PAYABLE TO STOCKHOLDER Stockholder loans were repaid during 1999. The Company recorded interestexpense of approximately $540,000 and $433,000 related to the stockholder notesduring the years ended December 31, 1998 and 1999, respectively.(5) LONG-TERM BORROWINGS Long-term debt at December 31, 1999 and 2000 is as follows (in thousands): 1999 2000 ------- ------- Capital lease, due in aggregate monthly installments of $195, interest rate of 7.66%, secured by equipment, balloon payment of $4,431 due February 2006 ............................ $ -- $12,661Note payable to bank, due in monthly installments of $82.2 (includes principal and interest), fixed rate interest at 7.79%, secured by property, payment of $8,716 due January 2011 .............................................................................. -- 10,850Note payable to bank, due in monthly installments of $57.6 (includes principal and interest), fixed rate interest at 7.89%, secured by property, balloon payment of $6,776 due February 2011 ...................................................................... -- 7,850Note payable to bank, due in monthly installments of $25 plus interest at prime (9.5% at December 31, 2000) plus 1%, secured by equipment, due December 2002 .................. 2,400 2,100Capital leases, due in aggregate monthly installments of $101, interest rates from 8.75%-18.28%, secured by equipment, maturing in various installments through February 2005 ................. 1,168 2,106 ------- ------- 3,568 35,567Less current installments ...................................................................... 1,060 2,452 ------- ------- $ 2,508 $33,115 ======= ======= The aggregate maturities of long-term borrowings at December 31, 2000 are asfollows: 2001............................................. $ 2,452 2002............................................. 4,100 2003............................................. 2,274 2004............................................. 2,461 2005............................................. 2,244 Thereafter....................................... 22,036 ------- $35,567 ======= F-9 39(6) STOCKHOLDERS' EQUITY (a) Stock Issuances Effective as of May 28, 1999, the Company was reincorporated in Delaware. Theexisting California corporation was merged into a newly formed Delawarecorporation and each outstanding share of common stock of the existingCalifornia corporation was exchanged, for a share of $.001 par value Class Bcommon stock of the new Delaware corporation. In addition, pursuant to thereincorporation merger, an approximate 13,907-for-1 common stock split wasauthorized. The amendment and stock split has been reflected retroactively inthe accompanying consolidated financial statements. The authorized capital stock of the Delaware corporation consists of100,000,000 shares of Class A common stock, par value $.001 per share, and60,000,000 shares of Class B common stock, par value $.001 per share. TheCompany has also authorized 10,000,000 shares of preferred stock, $.001 parvalue per share. The Class A common stock and Class B common stock have identical rights otherthan with respect to voting, conversion and transfer. The Class A common stockis entitled to one vote per share, while the Class B common stock is entitled toten votes per share on all matters submitted to a vote of stockholders. Theshares of Class B common stock are convertible at any time at the option of theholder into shares of Class A common stock on a share-for-share basis. Inaddition, shares of Class B common stock will be automatically converted into alike number of shares of Class A common stock upon any transfer to any person orentity which is not a permitted transferee. On June 9, 1999, the Company issued 7,000,000 shares of Class A common stockin an initial public offering and received net proceeds of $69,720,000. During 2000, certain Class B stockholders converted 3,008,704 shares of ClassB common stock to Class A common stock. (b) Stock Option Plan In January 1998, the Board of Directors of the Company adopted the 1998 StockOption, Deferred Stock and Restricted Stock Plan (Stock Option Plan) for thegrant of qualified incentive stock options (ISO), stock options not qualifiedand deferred stock and restricted stock. The exercise price for any optiongranted may not be less than fair value (110% of fair value for ISOs granted tocertain employees). Under the Stock Option Plan, 5,215,154 shares are reservedfor issuance. In January 1998, 1,390,715 options to acquire Class A common stockwere granted at an exercise price of $2.78 per share, which was equal to thefair value. The options vested 25% on June 9, 1999 and 25% each anniversarythereafter over the next three years. In connection with the Company's initialpublic offering on June 9, 1999, the Company granted 1,209,636 options toacquire Class A common stock at an exercise price of $11 per share which vestratably in 20% increments commencing one year from the grant date. During 2000,118,999 of the $11 per share options were canceled. The options expire ten yearsfrom the date of grant. Shares subject to option under the Stock Option Plan were as follows: SHARES OPTION PRICE ---------- ------------- Outstanding at December 31, 1998 ..................... 1,390,715 $ 2.78 Granted ............................................ 1,209,636 11.00 Canceled ........................................... (84,777) 11.00Outstanding at December 31, 1999 ..................... 2,515,574 2.78 -- 11.00 ---------- Granted ............................................ 1,532,695 3.94 -- 19.19 Exercised .......................................... (422,370) 2.78 -- 13.00 Canceled ........................................... (136,998) 3.94 -- 13.00 ----------Outstanding at December 31, 2000 ..................... 3,488,901 2.78 -- 19.19 ==========Exercisable at December 31, 2000 ..................... 862,111 2.78 -- 18.44 ========== ==== =====Options available for grant at December 31, 2000 ..... 1,303,883 ========== (c) Stock Purchase Plan Effective July 1, 1998, the Company adopted the 1998 Employee Stock PurchasePlan (1998 Stock Purchase Plan). Under the terms of the 1998 Stock PurchasePlan, 2,781,415 shares of common stock are reserved for sale to employees at aprice no less that 85% of the lower of the fair market value of the Class Acommon stock at the beginning of the one-year offering period or the end of eachof the six-month purchase periods. During 2000, 266,865 shares (90,913 shares in1999) were issued under the 1998 Stock Purchase Plan for which the Companyreceived $1,073,000 ($261,000 in 1999). F-10 40 (d) Stock Compensation The Company accounts for stock compensation under SFAS No. 123, Accountingfor Stock-Based Compensation, and has elected to measure compensation cost underAccounting Principles Board Opinion No. 25 and comply with the pro formadisclosure requirements of SFAS 123. Had compensation cost been determined usingthe fair value at the grant date for awards during 1998, 1999, and 2000consistent with the provisions of SFAS No. 123, the Company's pro forma netearnings (in thousands) and earnings per share would have been reduced to theamounts as indicated below. 1998 1999 2000 -------- -------- -------- Pro forma net earnings ................ $ 14,875 $ 19,077 $ 41,458 ======== ======== ======== Pro forma net earnings per share: Basic ............................... $ .53 $ .60 $ 1.18 Diluted ............................. .49 .58 1.13 ======== ======== ======== The fair value of each option is estimated on the date of grant. The Companyused the minimum value method for stock awards prior to its initial publicoffering and the Black-Scholes option pricing models for stock awardsafterwards. The following weighted-average assumptions used for grants were asfollows: 1998 1999 2000 ---- ---- ---- Dividend yield .............. -- -- -- Expected volatility ......... -- 55% 70% Risk-free interest rate ..... 5.7% 6.2% 6.3% Expected life of option ..... 8 5 5 ==== ==== ==== The weighted-average fair value of options granted during 1998, 1999, and2000 were $2.78, $6.93, and $10.69, respectively.(7) INCOME TAXES The pro forma unaudited income tax adjustments for 1998 and 1999 representtaxes, which would have been reported assuming the Company had been subject tofederal and state income taxes as a C Corporation the entire year. The actualand pro forma provisions for income tax expense were as follows (in thousands): 1998 1999 2000 -------- -------- -------- Actual income taxes: Federal: Current .............................. $ -- $ 8,012 $ 25,420 Deferred ............................. -- (792) (1,360) -------- -------- -------- Total federal ................... -- 7,220 24,060 -------- -------- -------- State: Current .............................. 650 1,480 4,784 Deferred ............................. -- (65) (244) -------- -------- -------- Total state ..................... 650 1,415 4,540 -------- -------- -------- Total actual income taxes ....... 650 8,635 28,600 -------- -------- --------Pro forma adjustments: Federal ................................. 7,864 3,533 State ................................... 1,534 712 -------- -------- Total pro forma adjustments ..... 9,398 4,245 -------- -------- Total pro forma income taxes .... $ 10,048 $ 12,880 ======== ======== Income taxes (proforma for 1998 and 1999) differs from the statutory tax rateas applied to earnings before income taxes as follows: 1998 1999 2000 ------- ------- ------- Expected income tax expense .............................. $ 8,541 $11,569 $25,323State income tax, net of federal benefit ................. 1,507 1,311 2,951Other .................................................... -- -- 326 ------- ------- ------- Total provision for pro forma income taxes ..... $10,048 $12,880 $28,600 ======= ======= ======= The tax effects of temporary differences that give rise to significantportions of deferred tax assets and deferred tax liabilities at December 31,1999 and 2000 are presented below: F-11 41 Deferred tax assets: 1999 2000 ------ ------ Inventory adjustments ...................... $ 615 $1,176 State taxes ................................ 520 1,490 Allowances for receivables ................. 1,275 2,100 Other ...................................... 808 1,060 ------ ------ Total deferred tax assets .......... 3,218 5,826 ------ ------ Deferred tax liabilities: Depreciation of property and equipment ..... 279 1,386 Other ...................................... 129 26 ------ ------ Total deferred tax liabilities ..... 408 1,412 ------ ------ Net deferred tax assets ................. $2,810 $4,414 ====== ====== Management believes it is more likely than not that the results of futureoperations will generate sufficient taxable income to realize the net deferredtax assets. Through June 7, 1999, the Company was treated for federal and state incometax purposes as an S Corporation under Subchapter S of the Internal Revenue Codeand comparable state laws. As a result, the earnings of the Company through June7, 1999 were included in the taxable income of the Company's stockholders forfederal and state income tax purposes, and the Company was generally not subjectto income tax on such earnings, other than California and other state franchisetaxes. In connection with the Company's initial public offering of its Class Acommon stock in June 1999, the Company terminated its S Corporation status andbecame a C Corporation subject to federal and state income taxes. The Company'schange of status to a C Corporation resulted in the recording of deferred taxassets amounting to $1,800,000. This amount is reflected as a reduction ofactual income tax expense in the accompanying 1999 consolidated statement ofearnings.(8) BUSINESS AND CREDIT CONCENTRATIONS The Company sells footwear products principally throughout the United Statesand foreign countries. The footwear industry is impacted by the general economy.Changes in the marketplace may significantly affect management's estimates andthe Company's performance. Management performs regular evaluations concerningthe ability of customers to satisfy their obligations and provides for estimateddoubtful accounts. Domestic accounts receivable amounted to $57,189,000 and$87,825,000 before allowances for bad debts and returns at December 31, 1999 and2000, respectively, which generally do not require collateral from customers.Foreign accounts receivable amounted to $9,100,000 and $13,955,000 beforeallowance for bad debts and returns at December 31, 1999 and 2000, respectively,which generally are collateralized by letters of credit. International net salesamounted to $34,700,000, $43,900,000 and $65,159,000 for the years endedDecember 31, 1998, 1999 and 2000, respectively. The Company's credit losses forthe years ended December 31, 1998, 1999 and 2000 were $102,000, $1,699,000 and$537,000, respectively, and did not significantly differ from management'sexpectations. Net sales to customers in the United States of America exceeded 90% of totalnet sales for each of the years in the three-year period ended December 31,2000. All long-lived assets of the Company are located in the United States. TheCompany has no significant assets outside the United States of America. During 1999 and 2000, no customer accounted for 10% or more of net sales.During 1998, the Company had one significant customer which accounted for 11.8%of net sales. The Company had one customer which accounted for 10.1% and 15.3%of trade accounts receivable at December 31, 1999 and 2000, respectively. During 1998, the Company had four manufacturers that accounted for between10.4% and 15.4% each of total purchases. During 1999, the Company had fourmanufacturers that accounted between 12.3% and 15.5% each of total purchases.During 2000, the company had four manufacturers that accounted for 9.2% and20.2% each of total purchases. Substantially all of the Company's products are produced in China. TheCompany's operations are subject to the customary risks of doing businessabroad, including, but not limited to, currency fluctuations, custom duties andrelated fees, various import controls and other monetary barriers, restrictionson the transfer of funds, labor unrest and strikes and, in certain parts of theworld, political instability. The Company believes it has acted to reduce theserisks by diversifying manufacturing among various factories. To date, these riskfactors have not had a material adverse impact on the Company's operations. F-12 42(9) BENEFIT PLAN The Company has adopted a profit sharing plan covering all employees who are21 years of age and have completed one year of service. Employees may contributeup to 15.0% of annual compensation. Company contributions to the plan arediscretionary and vest over a five-year period. The Company's contributions tothe plan amounted to $242,000, $259,000 and $500,000 for the years endedDecember 31, 1998, 1999 and 2000, respectively.(10) COMMITMENTS AND CONTINGENCIES (a) Leases The Company leases facilities under operating lease agreements expiringthrough August 2011. The leases are on an all-net basis, whereby the Companypays taxes, maintenance and insurance. The Company also leases certain equipmentand automobiles under operating lease agreements expiring at various datesthrough July 2005. Rent expense for the years ended December 31, 1998, 1999 and2000 approximated $7,900,000, $9,800,000 and $13,200,000, respectively. The Company also leases certain property and equipment under capital leaseagreements requiring monthly installment payments through February 2006. Future minimum lease payments under noncancellable leases at December 31,2000 are as follows (in thousands): CAPITAL OPERATING LEASES LEASES ------- --------- Year ending December 31: 2001............................................. $ 3,191 $14,168 2002............................................. 3,013 14,210 2003............................................. 2,798 12,199 2004............................................. 2,798 11,477 2005............................................. 2,394 10,724 Thereafter....................................... 4,626 18,909 ------- ------- $18,820 $81,687 Less imputed interest............................ 4,053 ======= ------- Present value of net minimum lease payments...... $14,767 ======= (b) Litigation In December 1999 and January 2000, the Company and two officers/directorswere named as defendants in four purported class-action lawsuits. Two of thelawsuits also named the underwriters of the Company's initial public offering asdefendants. All of the complaints seek damages and rescission on behalf of aclass of persons who purchased securities in, or traceable to, the Company'sinitial public offering or thereafter on the open market prior to July 6, 1999.All four actions were subsequently consolidated into one matter and aconsolidated complaint was filed on June 1, 2000. The consolidated complaintnamed as defendants the Company, two officers of the Company, and theunderwriters of the Company's Offering. The class, as currently alleged in theconsolidated complaint now on file, consists of all persons who purchasedsecurities in, or traceable to, the Company's June 9, 1999 Offering orthereafter on the open market prior to June 15, 1999. In response to the consolidated complaint, the Company filed a motion todismiss the entire case. On September 25, 2000, the Court issued a tentativeorder to dismiss the consolidated complaint in its entirety, with leave toamend. As of December 31, 2000, the Court has not issued a final order. Thus, asthese matters are in still in the pleading stage and no discovery has beenconducted, neither the Company nor Company counsel are able to conclude as tothe potential likelihood of an unfavorable outcome. In any event, the Company isvigorously defending the claims and believes that its defenses are meritorious.The Company also maintains insurance that it believes covers all the mattersalleged in the consolidated complaint as currently pled. Accordingly, theCompany has not provided for any potential losses associated with theselawsuits. The Company is involved in other litigation arising from the ordinary courseof business. Management does not believe that the disposition of these matterswill have a material effect on the Company's financial position or results ofoperations. F-13 43 (c) Purchase Commitments At December 31, 2000, the Company had purchase commitments of approximately$107,000,000. The Company finances production activities in part through the use ofinterest-bearing open purchase arrangements with certain of its Asianmanufacturers. These arrangements currently bear interest at a rate between 1%and 2% per 30 to 60 day term. The amounts outstanding under these arrangementsat December 31, 1999 and 2000 were $34,900,000 and $48,484,000, respectively,which are included in accounts payable in the accompanying consolidatedfinancial statements. Interest expense incurred by the Company under thesearrangements amounted to $2,900,000 in 1998, $3,000,000 in 1999 and $6,400,000in 2000. (d) Compensation Certain officers and key employees of the company are entitled to incentivebonuses under employment contracts. The bonuses are based on company performance(11) SUBSEQUENT EVENTIn February 2001, the Company completed the purchase of three separate realproperties, located in Manhattan Beach, California, for a total of $4,500,000.(12) SUMMARY OF QUARTERLY FINANCIAL INFORMATION (UNAUDITED) Summarized unaudited financial data are as follows (in thousands):2000 MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31---- -------- ------- ------------ ----------- Net sales ...................... $133,344 $163,899 $205,749 $172,044Gross profit ................... 53,634 69,137 86,911 74,543Net earnings ................... 6,734 12,010 15,286 9,721 ======== ======== ======== ========Net earnings per share: Basic ........................ $ .19 $ .34 $ .43 $ .27 Diluted ...................... .19 .33 .40 .26 ======== ======== ======== ========1999 MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31---- -------- ------- ------------ ----------- Net sales ...................... $ 95,736 $104,582 $124,177 $100,106Gross profit ................... 36,698 42,732 52,837 42,341Pro forma net earnings ......... 2,104 6,248 8,545 2,914 ======== ======== ======== ========Pro forma net earnings per share: Basic ........................ $ .08 $ .21 $ .25 $ .08 Diluted ...................... .07 .20 .24 .08 ======== ======== ======== ======== F-14 44 SKECHERS U.S.A., INC. SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS YEARS ENDED DECEMBER 31, 1998, 1999, AND 2000 BALANCE AT CHARGED TO DEDUCTIONS BALANCE BEGINNING OF COSTS AND AND AT ENDDESCRIPTION PERIOD EXPENSES WRITE-OFFS OF PERIOD----------- ------------ ------------ ------------ ------------ As of December 31, 1998: Allowance for obsolescence .................... $ 908,000 $ 64,000 $ (465,000) $ 507,000 Allowance for doubtful accounts ............... 1,265,000 702,000 (501,000) 1,466,000 Reserve for sales returns and allowances ...... $ 725,000 $ 10,840,000 $ (9,618,000) $ 1,947,000As of December 31, 1999: Allowance for obsolescence .................... $ 507,000 $ 134,000 $ -- $ 641,000 Allowance for doubtful accounts ............... 1,466,000 740,000 (1,699,000) 507,000 Reserve for sales returns and allowances ...... $ 1,947,000 $ 13,600,000 $(12,817,000) $ 2,730,000As of December 31, 2000: Allowance for obsolescence .................... $ 641,000 $ 177,000 $ -- $ 818,000 Allowance for doubtful accounts ............... 507,000 1,326,000 (537,000) 1,296,000 Reserve for sales returns and allowances ...... $ 2,730,000 $ 15,651,000 $(14,525,000) $ 3,856,000 ============ ============ ============ ============ S-1 1 EXHIBIT 10.10(e) THIRD AMENDMENT OF AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This Third Amendment of Amended and Restated Loan and SecurityAgreement (this "Amendment") is made as of February 1, 2000 by and betweenSKECHERS U.S.A., INC., a California corporation ("Borrower") and THE CITGROUP/COMMERCIAL SERVICES, INC., a New York corporation ("Lender"), successor bypurchase to the Commercial Services Division of Heller Financial, Inc. ThisAmendment is made with reference to that certain Amended and Restated Loan andSecurity Agreement dated as of September 4, 1998 by and between Borrower andLender (as amended from time to time, the "Loan Agreement"). All capitalizedterms used herein and not otherwise defined shall have the meanings assigned tosuch terms in the Loan Agreement. Whereas, Borrower and Lender desire to amend certain terms of the LoanAgreement as set forth below; Now, Therefore, for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree asfollows: SECTION 1. AMENDMENT 1.1 Subsection 4.6 of the Loan Agreement is amended by adding thefollowing new trade names or styles to Schedule 4.6: SKECHERS SPORT SKECHERS COLLECTIONS SECTION 2. RATIFICATION OF AGREEMENT 2.1 To induce Lender to enter into this Amendment, Borrower representsand warrants that after giving effect to this Amendment no violation of theterms of the Loan Agreement exist and all representations and warrantiescontained in the Loan Agreement are true, correct and complete in all materialrespects on and as of the date hereof except to the extent such representationsand warranties specifically relate to an earlier date in which case they weretrue, correct and complete in all material respects on and as of such earlierdate. 2.2 Except as expressly set forth in this Amendment, the terms,provisions and conditions of the Loan Agreement and the other Loan Documents areunchanged, and said agreements, as amended, shall remain in full force andeffect and are hereby confirmed and ratified. SECTION 3. COUNTERPARTS; EFFECTIVENESS This Amendment may be executed in any number of counterparts, and allsuch counterparts taken together shall be deemed to constitute one and the sameinstrument. Signature pages may be detached from counterpart documents andreassembled to form duplicate executed originals. This Amendment shall becomeeffective as of the date hereof upon the execution of the counterparts hereof byBorrower, Guarantor and Lender. SECTION 4. GOVERNING LAW THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED ANDENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA. 2 Witness the execution hereof by the respective duly authorized officersof the undersigned as of the date first above written.THE CIT GROUP/COMMERCIAL SKECHERS U.S.A., INC.SERVICES, INC.By: /s/ WILLIAM F. ELLIOTT By: /s/ DAVID WEINBERG --------------------------------- ---------------------------------Title: Vice President Title: CFO ------------------------------ ------------------------------ 2 1 EXHIBIT 10.10(f) FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT This Fourth Amendment to that certain Amended and Restated Loan andSecurity Agreement ("Amendment") is made and entered into as of June 1, 2000, byand between Skechers U.S.A., Inc. ("Borrower") and The CIT Group/CommercialServices, Inc. ("CIT"), successor by purchase to the Commercial ServicesDivision of Heller Financial, Inc., as Agent and as Lender ("Agent"). Allcapitalized terms used herein and not otherwise defined shall have the meaningsset forth to such terms in the Amended and Restated Loan and Security Agreement. WHEREAS, Agent and Borrower are parties to a certain Amended andRestated Loan and Security Agreement, dated September 4, 1998 and all amendmentsthereto (the "Agreement"); and WHEREAS, Borrower and Agent desire to amend the Agreement ashereinafter set forth; NOW THEREFORE, for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree asfollows: SECTION 1. AMENDMENT1.1 Throughout the Agreement and in any other agreement between the parties thereto, any reference to Heller shall be deleted and CIT shall be inserted in lieu thereof.1.2 Delete the first paragraph of subpart (A) to subsection 2.2 and substitute the following new paragraph: (A) Rate of Interest. All Loans shall be Base Rate Loans. The Loans and all other Obligations shall bear interest from the date such Loans are made or such other Obligations become due to the date paid at a rate per annum equal to: (a) the Base Rate minus 0.50% with respect to the Revolving Loan, Swingline Loan and other Obligations for which no other interest rate is specified, and (b) The Base Rate plus 1.0% with respect to Term Loan A (collectively, the "Interest Rate"). Any publicly announced change in the Base Rate shall result in an adjustment to the Interest Rate as of the first of the month following such change in the Base Rate.1.3 Add the following new definition to subsection 11.1: "CIT" means The CIT Group/Commercial Services, Inc. SECTION 2. RATIFICATION OF AGREEMENT 2.1 To induce CIT to enter into this Amendment, Borrower represents and warrants that after giving effect to this Amendment, no violation of theterms of the Agreement exist and all representations and warranties contained inthe Agreement are true, correct and complete in all material respects on and asof the date hereof. 2.2 Except as previously set forth in this Amendment, the terms,provisions and conditions of the Agreement are unchanged, and said Agreement, asamended, shall remain in full force and effect and is hereby confirmed andratified. SECTION 3. COUNTERPARTS; EFFECTIVENESS This Amendment may be executed in any number of counterparts, and allsuch counterparts taken together shall be deemed to constitute one and the sameinstrument. 2Signature pages may be detached from counterpart documents and reassembled toform duplicate executed originals. This Amendment shall become effective as ofthe date hereof upon the execution of the counterparts hereof by Borrower,Guarantor and CIT. SECTION 4. GOVERNING LAW THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED ANDENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA. SECTION 5. ACKNOWLEDGMENT AND CONSENT BY GUARANTORS Each Guarantor hereby acknowledges that it has read this Amendment andconsents to the terms thereof and further hereby confirms and agrees that,notwithstanding the effectiveness of this Amendment, the obligations of suchGuarantor under its respective guaranty shall not be impaired or affected andthe guaranties are, and shall continue to be, in full force and effect and arehereby confirmed and ratified in all respects. Witness the execution hereof by the respective duly authorized officersof the undersigned as of the date first above written. THE CIT GROUP/COMMERCIAL SERVICES, INC., as Agent and as Lender By: /s/ WILLIAM F. ELLIOTT ------------------------------------ Title: Vice President --------------------------------- SKECHERS U.S.A., INC.ATTEST: /s/ PHILIP C. PACCIONE By: /s/ DAVID WEINBERG ------------------------------------ ------------------------------------ Title: --------------------------------- GUARANTOR: SKECHERS USA, INC. II, a Delaware corporation By: /s/ DAVID WEINBERG ------------------------------------ Title: --------------------------------- SKECHERS BY MAIL, INC., a Delaware corporation By: /s/ DAVID WEINBERG ------------------------------------ Title: --------------------------------- 2 1 EXHIBIT 10.19 STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE (NON-RESIDENTIAL) American Industrial Real Estate Association October 12, 2000 ---------------------------- (Date of Reference Purposes)1. BUYER. 1.1 Skechers USA, Inc. and/or assignee ---------------------------------------------------------- _________("BUYER") hereby offers to purchase the real property, hereinafter described, from the owner thereof ("SELLER") (collectively, the "PARTIES" or individually, a "PARTY"), through an escrow ("ESCROW") to close on or before December 15, 2000 ("EXPECTED CLOSING ------------------------------ DATE") to be held by First .American Title Company ("Escrow Holder") whose address is ____________________________________ , Phone No._______________, Facsimile No. ____________________________________ upon the terms and conditions set forth in this agreement ("AGREEMENt"). Buyer shall have the right to assign Buyer's rights hereunder, but any such assignment shall not relieve Buyer of Buyer's obligations herein unless Seller expressly releases Buyer. 1.2 The term "DATE OF AGREEMENT" as used herein shall be the date when by execution and delivery (as defined in paragraph 20.2) of this document or a subsequent counter-offer thereto, Buyer and Seller have reached agreement in writing whereby Seller agrees to sell, and Buyer agrees to purchase, the Property upon temps accepted by both Parties. 2. PROPERTY. 2.1 The real property ("Property") that is the subject of this offer consists of (insert a brief physical description) a new concrete tilt-up industrial building of approximately ----------------------------------------------------------------------- 263,670 sq ft situated on approximately 12.63 acres of land ----------------------------------------------------------------------- is located in the City of Ontario , County of San Bernardino -------- ------------------------- ,State of California, is commonly known by the street address of ---------- 1670 Champagne Avenue and is legally described as: to be supplied in escrow (APN: _______________________). ------------------------ 2.2 If the legal description of the Property is not complete or is inaccurate, this Agreement shall not be invalid and the legal description shall be completed or corrected to meet the requirements of First American Title Company ("TITLE COMPANY"), which shall issue the ---------------------------- title policy hereinafter described. 2.3 The Property includes, at no additional cost to Buyer, the permanent improvements thereon, including those items which the law of the state in which the Property is located provides is part of the Property, as well as the following items, if any, owned by Seller and at present located on the Property: electrical distribution systems (power panel, bus ducting, conduits, disconnects, lighting fixtures); telephone distribution systems (lines, jacks and connections only); space heaters; heating; ventilating; air conditioning equipment ("HVAC"); air lines; fire sprinkler systems; security and fire detection systems; carpets; window coverings; wall coverings; and Buyer acknowledges that the Property has been completed to the specifications to be met by the Lessor as set forth in that certain lease dated October 15, 1999 by and between Champagne Building Group, LP "Lessor" and Skechers USA, Inc. "Lessee" (the "Lease"), subject, however, to representations, warranties and covenants of Seller specifically set forth in this Agreement (collectively, the "IMPROVEMENTS"). 2.4 Within the time period specified in paragraph 9.1(a), Seller shall make to Buyer, through escrow, all of the applicable disclosures required by law (See American Industrial Real Estate Association ("AIR") standard form entitled "Sellers Mandatory Disclosure Statement").3. PURCHASE PRICE. 3.1 The purchase price ("PURCHASE PRICE") to be paid by Buyer to Seller for the Property shall be $11,450,000.00, payable as follows: -------------- (a) Cash down payment, including the Deposit as definedin paragraph 4.3 (or if an all cash transaction, thePurchase Price) $2,850,000.00 -------------(Strike if not (b) Amount of "New Loan" as defined in applicable) paragraph 5.1, ifany: $8,600,000 ---------- (c) Buyer shall take title to the Property subject to the following existing deeds) of trust ("EXISTING DEED(S) OF TRUST") securing the existing promissory notes) ("EXISTING Notes)"): (i) An Existing Note ("First Note") with an unpaid principal balance as of the/s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 1 of 10 2 Closing of approximately: $____________ Said First Note is payable at $__________(Strike if not per month, annum until paid (and/or the applicable) including interest at the rate of _______% per entire unpaid balance is due on ___________________________). (ii) An Existing Note ("SECOND NOTE") with an unpaid principal balance as of the Closing of approximately: $_____________ Said Second Note is payable at $__________ per month, including interest at the rate of ______________ % per annum until paid (and/or the entire unpaid balance is due on ___________________________), (d) Buyer shall give Seller a deed of trust ("PURCHASE MONEY DEED OF TRUST") on the Property, to secure the promissory note of Buyer to Seller described in paragraph 6 ("PURCHASE MONEY NOTE") in the amount of: $_____________ Total Purchase Price: $11,450,000.00 ------------- 3.2 If an Existing Deed of Trust permits the beneficiary to demand payment of fees including, but not limited to, points, processing fees, and appraisal fees as a condition to the transfer of the Property, Buyer agrees to pay such fees up to a maximum of 1.5% of the unpaid principal balance of the applicable Existing Note.4. DEPOSITS 4.1 Buyer hereby delivers a check in the sum of $200,000.00 , payable to Escrow Holder, to be held uncashed until the Date of Agreement. Such check shall be deposited in accordance with paragraph 4.3 and applied toward the Purchase Price of the Property at the Closing. Should Buyer and Seller not enter into an agreement for purchase and sale, Buyer's check or funds shall, upon request by Buyer, be promptly returned to Buyer. 4.2 Additional deposits: (a) Within 5 business days after the Date of Agreement, Buyer shalldeposit with Escrow Holder the additional sum of $ 0 to be applied to the ---Purchase Price at the Closing (b) Within 5 business days after the contingencies discussed inparagraph 9.1(a) through (k) are approved or waived, Buyer shall deposit withEscrow Holder the additional sum of $ 0 to be applied to the Purchase Price at ---the Closing. 4.3 Escrow Holder shall deposit the funds deposited with it by Buyer pursuant to paragraphs 4.1 and 4.2 (collectively the "DEPOSIT"), in a State or Federally chartered bank in an interest bearing account whose term is appropriate and consistent with the timing requirements of this transaction. The interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges that there may be penalties or interest forfeitures if the applicable instrument is redeemed prior to its specified maturity. Buyer's Federal Tax Identification Number is ___________ NOTE: Such interest bearing account cannot be opened until Buyer's Federal Tax Identification Number is provided.5. FINANCING CONTINGENCY (Strike if not applicable) 5.1 This offer is contingent upon Buyer obtaining from an insurance company, financial institution or other lender, a commitment to lend to Buyer a sum not less than $8,600,000 , at terms reasonably ---------- acceptable to Buyer. Such loan ("NEW LOAN") shall be secured by a first trust upon the Property. 5.2 Buyer hereby agrees to diligently pursue obtaining the New Loan. If Buyer shall fail to notify Escrow Holder and Seller, in writing within 30 days following the Date of Agreement, that the New -- Loan has not been obtained, it shall be conclusively presumed that Buyer has either obtained said New Loan or has waived this New Loan contingency. 5.3 If, after due diligence, Buyer shall notify Escrow Holder and Seller, in writing, within the time specified in paragraph 5.2 hereof, that Buyer has not obtained said New Loan, this Agreement shall be terminated, and Buyer shall be entitled to the prompt return of the Deposit, plus any interest earned thereon, less only Escrow Holder and Title Company cancellation fees and costs, which Buyer shall pay.6. SELLER FINANCING (Purchase Money Note) (Strike if not applicable)./s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 2 of 10 37. REAL ESTATE BROKERS. 7.1 The following real estate broker(s) ("BROKERS") and brokerage relationships exist in this transaction and are consented to by the Parties (check the applicable boxes):[ ] Seeley Company (pursuant to separate agreement) --------------------------------------------------------------------------- represents Seller exclusively ("SELLER'S BROKER");[ ] CB Richard Ellis, Inc. (pursuant to separate agreement) --------------------------------------------------------------------------- represents Buyer exclusively ("BUYER'S BROKER"); or[ ] --------------------------------------------------------------------------- represents both Seller Buyer ("DUAL AGENCY").Brokers' rights and entitlement to compensation in connection with thetransaction contemplated by this Agreement, if any, are governed by agreementsseparate from this Agreement (the "BROKER AGREEMENTS"). Brokers ARE NOT thirdparty beneficiaries to this Agreement. Notwithstanding any statement to thecontrary elsewhere in this Agreement, Brokers (i) have no authority to act foreither Party and (ii) have no rights to receive any notices with regard to anymatter pursuant to this Agreement. See paragraph 24 for disclosures regardingthe nature of a real estate agency relationship. 7.2 Buyer and Seller each represent and warrant to the other that he/she/it has had no dealings with any person, firm, broker or finder in connection with the negotiation of this Agreement and/or the consummation of the purchase and sale contemplated herein, other than the Brokers named in paragraph 7.1, and no broker or other person, firm or entity, other than said Brokers is/are entitled to any commission or finder's fee in connection with this transaction as the result of any dealings or acts of such Party. Buyer and Seller do each hereby agree to indemnify, defend, protect and hold the other harmless from and against any costs, expenses or liability for compensation, commission or charges which may be claimed by any broker, finder or other similar party, other than said named Brokers by reason of any dealings or act of the indemnifying Party.8. ESCROW AND CLOSING. 8.1 Upon acceptance hereof by Seller, this Agreement, including any counter-offers incorporated herein by the Parties, shall constitute not only the agreement of purchase and sale between Buyer and Seller, but also instructions to Escrow Holder for the consummation of the Agreement through the Escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending the Agreement unless specifically so instructed by the Parties. Subject to the reasonable approval of the Parties, Escrow Holder may, however, include its standard general escrow provisions. 8.2 As soon as practical after the receipt of this Agreement and any relevant counter-offers, Escrow Holder shall ascertain the Date of Agreement as defined in paragraphs 1.2 and 20.2 and advise the Parties in writing, of the date ascertained. 8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow In accordance with this Agreement, applicable law and custom and practice of the community in which Escrow Holder is located, including any reporting requirements of the Internal Revenue Code. In the event of a conflict between the law of the state where the Property is located and the law of the state where the Escrow Holder is located, the law of the state where the Property is located shall prevail. 8.4 Subject to satisfaction of the contingencies herein described, Escrow Holder shall close this escrow (the "CLOSING") by recording a general warranty deed (a grant deed in California) and the other documents required to be recorded, and by disbursing the funds and documents in accordance with this Agreement. 8.5 Buyer and Seller shall each pay one-half of the Escrow Holder's charges and Seiler shall pay the usual recording fees and any required documentary transfer taxes. Seller shall pay the premium for a standard coverage owner's or joint protection policy of title insurance. 8.6 Escrow Holder shall verify that all of Buyers contingencies have been satisfied or waived prior to Closing. The matters contained in paragraphs 9.1 subparagraphs (b), (c), (d), (e), (g), (i), (n), and (o), 9.4, 9.5, 12, 13, 14, 16, 18, 20, 21, 22, and 24 are, however, matters of agreement between the Parties only and in no way constitute instructions to Escrow Holder. 8.7 If this transaction is terminated for non-satisfaction and non-waiver of a Buyer's Contingency, as defined in paragraph 9.2, then neither of the Parties shall thereafter have any liability to the other under this Agreement, except to the extent of the breach of any affirmative covenant or warranty in this Agreement. In the event of such termination, Buyer shall be promptly refunded all funds deposited by Buyer with Escrow Holder, less only Title Company and Escrow Holder cancellation fees and costs, all of which shall be Buyer's obligation. 8.8 The Closing shall occur on the Expected Closing Date, or as soon thereafter as the Escrow is in condition for Closing; provided, however, that if the closing does not occur by the Expected Closing Date and said Date is not extended by mutual instructions of the Parties, a Party not then in default under this Agreement may notify the other Party and, Escrow Holder in writing that, unless the Closing occurs within 5 business days following said notice, the Escrow shall be deemed terminated without further notice or instructions. 8.9 Except as otherwise provided herein, the termination of Escrow shall not relieve or release either Party from any obligation to pay Escrow Holder's fees and costs or constitute a waiver, release or discharge of any breach or default that has occurred in the performance of the obligations, agreements, covenants or warranties contained therein. 8.10 If this Escrow is terminated for any reason other than Seller's breach or default, then at Seller's request, and as a condition to the return of Buyer's deposit, Buyer shall within 5 days after written request deliver to Seller, at no charge, copies of all surveys, engineering studies, soil reports, maps, master plans, feasibility studies and other similar items prepared by or for Buyer that pertain to the Property. Provided, however, that Buyer shall not be required to deliver any such report if the written contract which Buyer entered into with the consultant who prepared such report specifically forbids the dissemination of the report to others.9. CONTINGENCIES TO CLOSING. 9.1 The Closing of this transaction is contingent upon the satisfaction or waiver of the following contingencies. IF BUYER FAILS TO NOTIFY ESCROW HOLDER, IN WRITING, OF THE DISAPPROVAL OF ANY OF SAID CONTINGENCIES WITHIN THE TIME SPECIFIED THEREIN, IT SHALL BE CONCLUSIVELY PRESUMED THAT BUYER HAS APPROVED SUCH ITEM, MATTER OR DOCUMENT. Buyer's conditional approval shall/s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 3 of 10 4constitute disapproval, unless provision is made by the Seller within the timespecified therefor by the Buyer in such conditional approval or by thisAgreement, whichever is later, for the same position of the condition imposed bythe Buyer. Escrow Holder shall promptly provide all Parties with copies of anywritten disapproval or conditional approval which it receives. With regard tosubparagraphs (a) through (l) the pre-printed time periods shall control unlessa different number of days is inserted in the spaces provided. (a) Disclosure. Seller shall disclose to Buyer any matters required by applicable law (see paragraph 2.4) and provide Buyer with a completed Property Information Sheet ("PROPERTY INFORMATION SHEET") concerning the Property, duly executed by or on behalf of Seller in the current form or equivalent to that published by the AIR within 10 or ____________ following the Date of Agreement. Buyer has 10 days from the receipt of said disclosures to approve or disapprove the matters disclosed. (b) Physical Inspection. Buyer has 10 or _______________ days from the receipt of the Property Information Sheet or the Date of Agreement, whichever is later, to satisfy itself with regard to the physical aspects and size of the Property. (c) Hazardous Substance Conditions Report. Buyer has 30 days -- from the receipt of the Property Information Sheet, or the Date of Agreement, whichever is later, to satisfy itself with regard to the environmental aspects of the Property. Seller recommends that Buyer obtain a hazardous Substance Conditions Report concerning the Property and relevant adjoining properties. Any such report shall be paid for by Buyer. A "HAZARDOUS SUBSTANCE" for purposes of this Agreement is defined as any substance whose nature and/or quantity of existence, use, manufacture, disposal or effect, render it subject to Federal, state or local regulation, investigation, remediation or removal as potentially injurious to public health or welfare. A "HAZARDOUS SUBSTANCE CONDITION" for purposes of this Agreement is defined as the existence on, under or relevantly adjacent to the Property of a Hazardous Substance that would require remediation and/or removal under applicable Federal, state or local law. (d) Soil Inspection. Buyer has 30 days from the receipt of the -- Property Information Sheet or the Date of Agreement, whichever is later, to satisfy itself with regard to the condition of the soils on the Property. Seller recommends that Buyer obtain a soil test report. Any such report shall be paid for by Buyer. Seller shall provide Buyer copies of any soils report that Seller may have within 10 days of the Date of Agreement. (e) Governmental Approvals. Buyer has 10 days from the Date of -- Agreement to satisfy itself with regard to approvals and permits from governmental agencies or departments which have or may have jurisdiction over the Property and which Buyer deems necessary or desirable in connection with its intended use of the Property, Including, but not limited to, permits and approvals required with respect to zoning, planning, building and safety, fire, police, handicapped and Americans with Disabilities Act requirements, transportation and environmental matters. (f) Conditions of Title. Escrow Holder shall cause a current commitment for title insurance ("TITLE COMMITMENT") concerning the Property issued by the ride Company, as well as legible copies of all documents referred to in the Title Commitment ("UNDERLYING DOCUMENTS") to be delivered to Buyer within 10 or ____________ days following the Date of Agreement. Buyer has 10 days from the receipt of the Title Commitment, the Survey referred to in 91(g), and Underlying Documents to satisfy itself with regard to the condition of title. The disapproval of Buyer of any monetary encumbrance, which by the terms of this Agreement is not to remain against the Property after the Closing, shall not be considered a failure of this contingency; as Seller shall have the obligation, at Seller's expense, to satisfy and remove such disapproved monetary encumbrance at or before the Closing. (g) Survey. Buyer has 30 days from the receipt of the Title -- Commitment the Survey described In this paragraph 9.1(g), and Underlying Documents to satisfy itself with regard to any ALTA title supplement based upon a survey prepared to American Land Title Association ("ALTA") standards for an owner's policy by a licensed surveyor, showing the legal description and boundary lines of the Property, any easements of record, and any improvements, poles, structures and things located within 10 feet of either side of the Property boundary lines. Any such survey shall be prepared at Seller's direction and expense. If Buyer has obtained a survey and approved the ALTA title supplement, Buyer may elect within the period allowed for Buyer's approval of a survey to have an ALTA extended coverage owner's form of title policy, in which event Buyer shall pay any additional premium attributable thereto. (h) Existing Leases and Tenancy Statements. N/A Buyer is the Lessee under the Lease. (i) Other Agreements. Seller shall within 10 or 5 days of the -- Date of Agreement provide Buyer with legible copies of all other agreements ("OTHER AGREEMENTS") known to Seller that will affect the Property after Closing. Buyer has 10 days from the receipt of said Other Agreements to satisfy itself with regard to such Agreements. (j) Financing. If paragraph 5 hereof dealing with a financing contingency has not been stricken, the satisfaction or waiver of such New Loan contingency. (l) Personal Property. In the event that any personal property is included in the Purchase Price, Buyer has 10 or ____________ days from the Date of Agreement to satisfy itself with regard to the title condition of such personal property. Seller recommends that Buyer obtain a UCC-1 report. Any such report shall be paid for by Buyer. Seller shall provide Buyer copies of any liens or encumbrances affecting such personal property that it is aware of within 10 or ____________ days of the Date of Agreement. (m) Destruction. Damage or Loss. There shall not have occurred prior to the Closing, a destruction of, or damage or loss to, the Property or any portion thereof, from any cause whatsoever other than Buyer (as Tenant under the Lease or such Tenant's invitees), which would cost more than $10,000.00 to repair or cure. If the cost of repair or cure is $10,000.00 or less, Seller shall repair or cure the loss prior to the Closing. Buyer shall have the option, within 10 days after receipt of written notice of a loss costing more than $10,000.00 to repair or cure, to either terminate this transaction or to purchase the Property notwithstanding such loss, but without deduction or offset against the Purchase Price. If the cost to repair or cure is more than $10,000.00 and Buyer does not elect to terminate this transaction, Buyer shall be entitled to any insurance proceeds applicable to such loss. Unless otherwise notified in/s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 4 of 10 5 writing, Escrow Holder shall assume no such destruction, damage or loss has occurred prior to Closing. (n) Material Change. Buyer shall have 10 days following receipt of written notice of a Material Change within which to satisfy itself with regard to such change. "MATERIAL CHANGE" shall mean a change in the status of the use, occupancy, tenancy or condition of the Property that occurs after the date of this offer and prior to the Closing. Unless otherwise notified in writing, Escrow Holder shall assume that no Material Change has occurred prior to the Closing. (o) Seller Performance. The delivery of all documents and the due performance by Seller of each and every undertaking and agreement to be performed by Seller under this Agreement. (p) Warranties. That each representation and warranty of Seller herein be true and correct as of the Closing. Escrow Holder shall assume that this condition has been satisfied unless notified to the contrary in writing by any Party prior to the Closing. 9.2 All of the contingencies specified in subparagraphs (a) through (p) of paragraph 9.1 and In part A of the Additional Provisions attached hereto are for the benefit of, and may be waived by, Buyer, and may be elsewhere herein referred to as "BUYER CONTINGENCIES." 9.3 If any Buyer's Contingency or any other matter subject to Buyers approval is disapproved as provided for herein in a timely manner ("DISAPPROVED ITEM"), Seller shall have the right within 10 days following the receipt of notice of Buyers disapproval to elect to cure such Disapproved Item prior to the Expected Closing Date ("SELLERS ELECTION"). Seller's failure to give to Buyer within said 10 day period, written notice of Seller's commitment to cure such Disapproved Item on or before the Expected Closing Date shall be conclusively presumed to be Seller's Election not to cure such Disapproved Item. If Seller elects, either by written notice or failure to give written notice, not to cure a Disapproved Item, Buyer shall have the election, within 10 days after Sellers Election to either accept title to the Property subject to such Disapproved Item, or to terminate this transaction. Buyer's failure to notify Seller in writing of Buyer's election to accept title to the Property subject to the Disapproved Item without deduction or offset shall constitute Buyer's election to terminate this transaction. Unless expressly provided otherwise herein, Sellers right to cure shall not apply to the remediation of Hazardous Substance Conditions or to the Financing Contingency. Unless the Parties mutually instruct otherwise, if the time periods for the satisfaction of contingencies or for Sellers and Buyers said Elections would expire on a date after the Expected Closing Date, the Expected Closing Date shall be deemed extended to coincide with the expiration of 3 business days following the expiration of. (a) the applicable contingency period(s), (b) the period within which the Seller may elect to cure the Disapproved Item, or (c) if Seller elects not to cure, the period within which Buyer may elect to proceed with this transaction, whichever is later. 9.4 Buyer understands and agrees that until such time as all Buyer's Contingencies have been satisfied or waived, Seller and/or its agents may solicit, entertain and/or accept back-up offers to purchase the subject Property.10. DOCUMENTS REQUIRED AT OR BEFORE CLOSING: 10.1 Five days prior to the Closing Date Escrow Holder shall obtain an updated Title Commitment concerning the Property from the Title Company and provide copies thereof to each of the Parties. 10.2 Seller shall deliver to Escrow Holder in time for delivery to Buyer at the Closing, an original ink signed: (a) Grant of general warranty deed, duly executed and in recordableform, conveying fee title to the Property to Buyer. (b) If paragraph 3.1(c) has not been stricken, the BeneficiaryStatements concerning Existing Note(s). (c) If applicable, the Existing Leases and Other Agreements togetherwith duly executed assignments thereof by Seller and Buyer. The assignment ofExisting Leases shall be on the most recent Assignment and Assumption ofLessor's Interest in Lease form published by the AIR or its equivalent. (d) If applicable, Estoppel Certificates executed by Seller and/or thetenant(s) of the Property. (e) An affidavit executed by Seller to the effect that Seller is not a"foreign person" within the meaning of Internal Revenue Code Section 1445 orsuccessor statutes. If Seller does not provide such affidavit in form reasonablysatisfactory to Buyer at least 3 business days prior to the Closing. EscrowHolder shall at the Closing deduct from Seller's proceeds and remit to InternalRevenue Service such sum as is required by applicable Federal law with respectto purchases from foreign sellers. (f) If the Property is located in California, an affidavit executed bySeller to the effect that Seller is not a "nonresident" within the meaning ofCalifornia Revenue and Tax Code Section 18662 or successor statutes. If Sellerdoes not provide such affidavit in form reasonably satisfactory to Buyer atleast three business days prior to the Closing, Escrow Holder shall at theClosing deduct from Seller's proceeds and remit to the Franchise Tax Board suchsum as is required by such statute. (g) If applicable, a bill of sale, duly executed, conveying title toany included personal property to Buyer. (h) If the Seller is a corporation, a duly executed corporateresolution authorizing the execution of this Agreement and the sale of theProperty. 10.3 Buyer shall deliver to Seller through Escrow: (a) The cash portion of the Purchase Price and such additional sums asare required of Buyer under this Agreement for prorations, expenses andadjustments. The balance of the cash portion of the Purchase Price, includingBuyer's Escrow charges and other cash charges, if any, shall be deposited byBuyer with Escrow Holder, by federal funds wire transfer, or any other methodacceptable to Escrow Holder as immediately collectable funds, no later than 2:00P.M. on the business day prior to the Expected Closing Date. (b) If a Purchase Money Note and Purchase Money Deed of Trust arecalled for by this Agreement, the duly executed originals of those documents,the Purchase Money Deed of Trust being in recordable form, together withevidence of fire insurance on the improvements in the amount of the fullreplacement cost naming Seller as a mortgage loss payee, and a real estate taxservice contract (at Buyer's expense). assuring Seller of notice of the statusof payment of real property taxes during the life of the Purchase Money Note. (c) The Assignment and Assumption of Lessors Interest in Lease formspecified in paragraph 10.2(c) above, duly executed by Buyer. (d) Assumptions duly executed by Buyer of the obligations of Sellerthat accrue after Closing under any Other Agreements. (e) If applicable, a written assumption duly executed by Buyer of theloan documents with respect to Existing Notes. (f) If the Buyer is a corporation, a duly executed corporate resolutionauthorizing the execution of this Agreement and the purchase of the Property./s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 5 of 10 6 10.4 At Closing, Escrow Holder shall cause to be issued to Buyer a standard coverage (or ALTA extended, if elected under paragraph 9.1(g)) owner's form policy of title insurance effective as of the Closing, issued by the Title Company in the full amount of the Purchase Price, insuring title to the Property vested in Buyer, subject only to the exceptions approved by Buyer. In the event there is a Purchase Money Deed of Trust in this transaction, the policy of title insurance shall be a joint protection policy insuring both Buyer and Seller.IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TOOBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY BEPRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE PROPERTYBEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TOENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.11. PRORATIONS AND ADJUSTMENTS. 11.1 Taxes. Real property taxes and special assessment bonds payable by the owner of the Property shall be prorated through Escrow as of the date of the Closing, based upon the latest tax bill available. The Parties agree to prorate as of the Closing any taxes assessed against the Property by supplemental bill levied by reason of events occurring prior to the Closing. Payment shall be made promptly in cash upon receipt of a copy of any such supplemental bill of the amount necessary to accomplish such proration. 11.2 Insurance. WARNING: The insurance coverage which Seller maintained on the Property will terminate on the Closing. Buyer is advised to obtain appropriate insurance to cover the Property. 11.3 Rentals, Interest and Expenses. Collected rentals, interest on Existing Notes, utilities, and operating expenses shall be prorated as of the date of Closing. The Parties agree to promptly adjust between themselves outside of Escrow any rents received after the Closing. 11.4 Security Deposit. Security Deposits held by Seller shall be given to Buyer as a credit to the cash required of Buyer at the Closing. 11.5 Post Closing Matters. Any item to be prorated that is not determined or determinable at the Closing shall be promptly adjusted by the Parties by appropriate cash payment outside of the Escrow when the amount due is determined. 11.6 Variations in Existing Note Balances. In the event that Buyer Is taking title to the Property subject to an Existing Deed of Trust(s), and in the event that a Beneficiary Statement as to the applicable Existing Note(s) discloses that the unpaid principal balance of such Existing Note(s) at the Closing will be more or less than the amount set forth in paragraph 3.1(c) hereof ("EXISTING NOTE VARIATION"), then the Purchase Money Note(s) shall be reduced or increased by an amount equal to such Existing Note Variation. If there is to be no Purchase Money Note, the cash required at the Closing per paragraph 3.1 (a) shall be reduced or increased by the amount of such Exiting Note Variation. 11.7 Variations in New Loan Balance. In the event Buyer Is obtaining a New Loan and in the event that the amount of the New Loan actually obtained is greater than the amount set forth In paragraph 5.1 hereof, the Purchase Money Note, if one is called for in this transaction, shall be reduced by the excess of the actual face amount of the New Loan over such amount as designated in paragraph 5.1 hereof.12. REPRESENTATION AND WARRANTIES OF SELLER AND DISCLAIMERS. 12.1 Sellers warranties and representations shall survive the Closing and delivery of the deed for a period of three years, and, are true, material and relied upon by Buyer in all respects. Seller hereby makes the following warranties and representations to Buyer: (a) Authority of Seller. Seller is the owner of the Property and/or hasthe full right, power and authority to sell, convey and transfer the Property toBuyer as provided herein, and to perform Sellers obligations hereunder. (b) Maintenance During Escrow and Equipment Condition At Closing.Except as otherwise provided in paragraph 9.1(m) hereof, Seller shall maintainthe Property until the Closing In its present condition, ordinary wear and tearexcepted. The HVAC, plumbing, elevators, loading doors and electrical systemsshall be In good operating order and condition at the time of Closing. (d) Compliance. Seller has no knowledge of any aspect or condition ofthe Property which violates applicable laws, or of any unfulfilled order ordirective of any applicable governmental agency or casualty insurance companyrequiring any investigation, remediation, repair, maintenance or improvement beperformed on the Property. (e) Changes in Agreements. Prior to the Closing, Seller will notviolate or modify any Existing Lease or Other Agreement, or create any newleases or other agreements affecting the Property, without Buyers writtenapproval, which approval will not be unreasonably withheld. (f) Possessory Rights. Seller has no knowledge that anyone will, at theClosing, have any right to possession of the Property, except as disclosed bythis Agreement or otherwise in writing to Buyer. (g) Mechanics' Liens. There are no unsatisfied mechanics' ormaterialmens' lien rights concerning the Property. (h) Actions, Suits or Proceedings. Seller has no knowledge of anyactions, suits or proceedings pending or threatened before any commission,board, bureau, agency, arbitrator, court or tribunal that would affect theProperty or the right to occupy or utilize same. (i) Notice of Changes. Seller will promptly notify Buyer in writing ofany Material Change (see paragraph 9.1(n)) affecting the Property that becomesknown to Seller prior to the Closing. (j) No Tenant Bankruptcy Proceedings. Seller has no notice or knowledgethat any tenant of the Property is the subject of a bankruptcy or insolvencyproceeding. (l) No Seller Bankruptcy Proceedings. Seller is not the subject of abankruptcy, insolvency or probate proceeding. (m) Personal Property. Seller has no knowledge that anyone will, at theClosing, have any right to possession of any personal property included in thePurchase Price nor knowledge of any liens or encumbrances affecting suchpersonal property, except as disclosed by this Agreement or otherwise in writingto Buyer. Seller Is also making those Additional Representations and Warrantiesset forth in part B of the Additional Provisions attached hereto. To the extentthe provisions of the Additional Provisions attached hereto conflict with theremainder of this paragraph 12.1, the provisions of the Additional Provisionsshall control. 12.2 Buyer hereby acknowledges that, except as otherwise stated in this Agreement, Buyer is purchasing the Property in its existing condition and will, by the time called for herein, make or have waived all inspections of the Property Buyer believes are necessary to protect its own interest in, and its contemplated use of, the Property. The Parties acknowledge that, except as otherwise stated in this Agreement, no representations, inducements, promises, agreements, assurances, oral or written, concerning the Property, or any aspect of the occupational safety and health laws, Hazardous Substance laws, or any other act, ordinance or law, have been made by either Party or Brokers, or relied upon by either Party hereto. 12.3 In the event that Buyer learns that a Seller representation or warranty might be untrue prior to the Closing, and Buyer elects to purchase the Property anyway then, and in that event, Buyer waives any right that it may have to bring an action or proceeding against Seller or Brokers regarding said representation or warranty. 12.4 Any environmental reports, soils reports, surveys, and other similar documents which were prepared by third party consultants and provided to/s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 6 of 10 7Buyer by Seller or Seller's representatives have been delivered as anaccommodation to Buyer and without any representation or warranty as to thesufficiency, accuracy, completeness, and/or validity of said documents, all ofwhich Buyer relies on at its own risk. Seller believes said documents to beaccurate, but Buyer is advised to retain appropriate consultants to review saiddocuments and investigate the Property. 13. POSSESSION. Possession of the Property shall be given to Buyer at the Closing.14. BUYERS ENTRY.At any time during the Escrow period, Buyer, and its agents and representatives,shall have the right at reasonable times and subject to rights of tenants, toenter upon the Property for the purpose of making inspections and testsspecified in this Agreement. No destructive testing shall be conducted, however,without Sellers prior approval which shall not be unreasonably withheld.Following any such entry or work, unless otherwise directed in writing bySeller, Buyer shall return the Property to the condition it was in prior to suchentry or work, including the recompaction or removal of any disrupted soil ormaterial as Seller may reasonably direct. All such inspections and tests and anyother work conducted or materials furnished with respect to the Property by orfor Buyer shall be paid for by Buyer as and when due and Buyer shall indemnify,defend, protect and hold harmless Seller and the Property of and from any andall claims, liabilities, losses, expenses (Including reasonable attorneys'fees), damages, including those for injury to person or property, arising out ofor relating to any such work or materials or the acts or omissions of Buyer, itsagents or employees in connection therewith.15. FURTHER DOCUMENTS AND ASSURANCES.The Parties shall each, diligently and in good faith, undertake all actions andprocedures reasonably required to place the Escrow in condition for Closing asand when required by this Agreement. The Patties agree to provide all furtherinformation, and to execute and deliver all further documents, reasonablyrequired by Escrow Holder or the Title Company.16. ATTORNEYS' FEES.If any Party brings an action or proceeding (including arbitration) Involvingthe Property, to enforce the terms hereof, or to declare rights hereunder, thePrevailing Party (as hereafter defined) In any such proceeding, action, orappeal thereon, shall be entitled to reasonable attorneys' fees. Such fees maybe awarded in the same suit or recovered in a separate suit, whether or not suchaction or proceeding is pursued to decision or judgment. The term "PrevailingParty" shall include, without limitation, a Party who substantially obtains ordefeats the relief sought, as the case may be, whether by compromise,settlement, judgment, or the abandonment by the other Party of its claim ordefense. The attorneys' fees award shall not be computed in accordance with anycourt fee schedule, but shall be such as to fully reimburse all attorneys' feesreasonably incurred. 17. PRIOR AGREEMENTS/AMENDMENTS. 17.1 This Agreement supersedes any and all prior agreements between Seller and Buyer regarding the Property other than the lease 17.2 Amendments to this Agreement are effective only if made in writing and executed by Buyer and Seller.19. NOTICES. 19.1 Whenever any Party or Escrow Holder herein shall desire to give orserve any notice, demand, request, approval, disapproval or other communication,each such communication shall be in writing and shall be delivered personally,by messenger or by mail, postage prepaid, to the address set forth in thisAgreement or by facsimile transmission. 19.2 Service of any such communication shall be deemed made on the dateof actual receipt if personally delivered. Any such communication sent byregular mail shall be deemed given 48 hours after the same is mailed.Communications sent by United States Express Mail or overnight courier thatguarantee next day delivery shall be deemed delivered 24 hours after delivery ofthe same to the Postal Service or courier. Communications transmitted byfacsimile transmission shall be deemed delivered upon telephonic confirmation ofreceipt (confirmation report from fax machine is sufficient), provided a copy isalso delivered via delivery or mail. If such communication is received on aSaturday, Sunday or legal holiday, it shall be deemed received on the nextbusiness day. 19.3 Any Party hereto may from time to time, by notice in writing,designate a different address to which, or a different person or additionalpersons to whom, all communications are thereafter to be made.20. DURATION OF OFFER. 20.1 If this offer is not accepted by Seller on or before 5:00 P.M. according to the time standard applicable to the city of Newport Beach -------------California on the date of____________ it shall be deemed automatically revoked.---------- 20.2 The acceptance of this offer, or of any subsequent counterofferhereto, that creates an agreement between the Parties as described in paragraph1.2, shall be deemed made upon delivery to the other Party herein of a dulyexecuted writing unconditionally accepting the last outstanding offer orcounteroffer./s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 7 of 10 823. MISCELLANEOUS. 23.1 BINDING EFFECT. This Agreement shall be binding on the Partieswithout regard to whether or not paragraphs 21 and 22 are initialed by both ofthe Parties. Paragraphs 21 and 22 are each incorporated into this Agreement onlyif initialed by both Parties at the time that the Agreement is executed. 23.2 APPLICABLE LAW. This Agreement shall be governed by, and paragraph22.3 is amended to refer to, the laws of the state in which the Property islocated. 23.3 TIME OF ESSENCE. Time is of the essence of this Agreement. 23.4 COUNTERPARTS. This Agreement may be executed by Buyer and Sellerin counterparts, each of which shall be deemed an original, and all of whichtogether shall constitute one and the same instrument. Escrow Holder, afterverifying that the counterparts are identical except for the signatures, isauthorized and instructed to combine the signed signature pages on one of thecounterparts, which shall then constitute the Agreement. 23.5 WAIVER OF JURY TRIAL. The Parties hereby waive their respectiverights to trial by jury in any action or proceeding involving the Property orarising out of this Agreement.24. DISCLOSURES REGARDING THE NATURE OF A REAL ESTATE AGENCY RELATIONSHIP. 24.1 The Parties agree that their relationship(s) with the Brokersshall be governed by the principles set forth in the applicable sections of theCalifornia Civil Code, as summarized in paragraph 24.2 a5 well as by the termsof the Broker Agreements. 24.2 When entering into a discussion with a real estate agent regardinga real estate transaction, a Buyer or Seller should from the outset understandwhat type of agency relationship or representation it has with the agent oragents in the transaction. Buyer and Seller acknowledge being advised by theBrokers in this transaction, as follows: (a) Seller's Agent. A Seller's agent under a listing agreement with theSeller acts as the agent for the Seller only. A Seller's agent or subagent hasthe following affirmative obligations: (1) To the Seller. A fiduciary duty ofutmost care, integrity, honesty, and loyalty in dealings with the Seller. (2) Tothe Buyer and the Seller. a. Diligent exercise of reasonable skills and care inperformance of the agent's duties. b. A duty of honest and fair dealing and goodfaith. c. A duty to disclose all facts known to the agent materially affectingthe value or desirability of the property that are not known to, or within thediligent attention and observation of, the Parties. An agent is not obligated toreveal to either Party any confidential information obtained from the otherParty which does not involve the affirmative duties set forth above./s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 8 of 10 9 (b) Buyer's Agent. A selling agent can, with a Buyer's consent, agreeto act as agent for the Buyer only. In these situations, the agent is not theSeller's agent, even if by agreement the agent may receive compensation forservices rendered either in full or in part from the Seller. An agent actingonly for a Buyer has the following affirmative obligations: (1) To the Buyer: Afiduciary duty of utmost care, integrity, honesty, and loyalty in dealings withthe Buyer. (2) To the Buyer and the Seller: a. Diligent exercise of reasonableskills and care in performance of the agent's duties. b. A duty of honest andfair dealing and good faith. c. A duty to disclose all facts known to the agentmaterially affecting the value or desirability of the Property that are notknown to, or within the diligent attention and observation of, the Parties. Anagent is not obligated to reveal to either Party any confidential informationobtained from the other Party which does not involve the affirmative duties setforth above. (c) Agent Representing Both Seller and Buyer. A real estate agent,either acting directly or through one or more associate licenses, can legally bethe agent of both the Seller and the Buyer in a transaction, but only with theknowledge and consent of both the Seller and the Buyer. (1) In a dual agencysituation, the agent has the following affirmative obligations to both theSeller and the Buyer. a. A fiduciary duty of utmost care, integrity, honesty andloyalty in the dealings with either Seller or the Buyer. b. Other duties to theSeller and the Buyer as stated above in their respective sections (a) or (b) ofthis paragraph 24.2. (2) In representing both Seller and Buyer, the agent maynot without the express permission of the respective Party, disclose to theother Party that the Seller will accept a price less than the listing price orthat the Buyer will pay a price greater than the price offered. (3) The aboveduties of the agent in a real estate transaction do not relieve a Seller orBuyer from the responsibility to protect their own interests. Buyer and Sellershould carefully read all agreements to assure that they adequately expresstheir understanding of the transaction. A real estate agent is a personqualified to advise about real estate. If legal or tax advice is desired,consult a competent professional. (d) Further Disclosures. Throughout this transaction Buyer and Sellermay receive more than one disclosure, depending upon the number of agentsassisting in the transaction. Buyer and Seller should each read its contentseach time it is presented, considering the relationship between them and thereal estate agent in this transaction and that disclosure.18. CONSTRUCTION OF AGREEMENT. In construing this Agreement, all headings and titles are for the convenience of the Parties only and shall not beconsidered a part of this Agreement. Whenever required by the context, thesingular shall include the plural and vice versa. Unless otherwise specificallyindicated to the contrary, the word "days" as used in this Agreement shall meanand refer to calendar days. This Agreement shall not be construed as if preparedby one of the parties, but rather according to Its fair meaning as a whole, asif both Parties had prepared it. 19. ADDITIONAL PROVISIONS: Additional provisions of this offer, if any, are as follows or are attached hereto by an addendum consisting of paragraphsthrough . (If there are no additional provisions write "NONE".) SEE ADDENDUM andADDITIONAL PROVISIONS FOR PURCHASE AND SALE AGREEMENT--------------------------------------------------------------------------------ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICANINDUSTRIAL REAL ESTATE ASSOCIATION OR BY NY BROKER AS TO THE LEGAL SUFFICIENCY,LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION O WHICHIT RELATES. THE PARTIES ARE URGED TO:1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THEPOSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THEINTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THESUITABILITY OF THE PROPERTY FOR BUYER'S INTENDED USE.WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAINPROVISIONS OF THIS AGREEMENT MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OFTHE STATE IN WHICH THE PROPERTY IS LOCATED.--------------------------------------------------------------------------------NOTE: 1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY. 2. IF THE BUYER IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BESIGNED BY TWO CORPORATE OFFICERS. THE UNDERSIGNED BUYER OFFERS AND AGREES TO BUYTHE PROPERTY ON THE TERMS AND CONDITIONS STATED AND ACKNOWLEDGES RECEIPT OF ACOPY HEREOF. BUYER: Skechers USA, Inc. and/or Assignee/s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 9 of 10 10 /s/ DAVID WEINBERG -------------------------------------------------------------- -------------------------------------------------------------By: By: ---------------------------------------------------------- ---------------------------------------------------------Name Printed: Name Printed: David Weinberg ------------------------------------------------ -----------------------------------------------Title: Title: Chief Financial Officer ------------------------------------------------------- ------------------------------------------------------ By: /s/ PHILIP PACCIONE --------------------------------------------------------- Name Printed: Philip Paccione ----------------------------------------------- Title: General Counsel & Secretary ------------------------------------------------------Address: Address:228 Manhattan Beach, Blvd ----------------------------------------------------- ----------------------------------------------------- Manhattan Beach, California 90266 -------------------------------------------------------------- ------------------------------------------------------------- 310-318-2082 310-798-7961 ------------------------ ------------------- ------------------------ -----------------------Telephone Facsimile No. Telephone Facsimile No. Federal ID No. Federal ID No. 95-437-6145 ---------------------------------------------- ---------------------------------------------20. ACCEPTANCE.20.1 Seller accepts the foregoing offer to purchase the Property and hereby agrees to sell the Property to Buyer on the terms and conditions therein specified.NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT. SELLER: Champagne Building Group, L.P., a ------------------------------------------------------------- California limited partnership -------------------------------------------------------------- -------------------------------------------------------------By: By: D and D Chamagne, LLC ---------------------------------------------------------- ---------------------------------------------------------Name Printed: Name Printed: D.W. Gilmour ------------------------------------------------ -----------------------------------------------Title: Title: General Partner ------------------------------------------------------- ------------------------------------------------------ By: /s/ ILLEGIBLE --------------------------------------------------------- Name Printed: Donald Gilmour ----------------------------------------------- Title: General Partner ------------------------------------------------------Address: Address: 2240 University Drive, Suite 100 ----------------------------------------------------- ---------------------------------------------------- Newport Beach, California 92660 -------------------------------------------------------------- ------------------------------------------------------------- 949-722-7058 949-722-8565 ------------------------ ------------------- ------------------------ -----------------------Telephone Facsimile No. Telephone Facsimile No.Federal ID No. Federal ID No. 33-0840777 ---------------------------------------------- ---------------------------------------------THESE FORMS ARE OFTEN MODIFIED TO MEET CHANGING REQUIREMENTS OF LAW AND NEEDS OFTHE INDUSTRY. ALWAYS WRITE OR CALL TO MAKE SURE YOU ARE UTILIZING THE MOSTCURRENT FORM: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 700 SOUTH FLOWERSTREET, SUITE 600, LOS ANGELES, CA 90017. (213) 687-8777. (C) COPYRIGHT 1998-BY AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION. ALL RIGHTS RESERVED. NO PART OF THESE WORKS MAY BE REPRODUCED IN ANY FORM WITHOUT PERMISSION IN WRITING./s/ Illegible /s/ PP------------- -------- /s/ DW------------- --------Initials Initials 10 of 10 11THIS IS AN ADDENDUM TO STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FORPURCHASE OF REAL ESTATE DATED JUNE 7, 2000 FROM SKECHERS USA, INC. FOR THE REALPROPERTY LOCATED AT 1670 CHAMPAGNE AVENUE, ONTARIO, CALIFORNIA.--------------------------------------------------------------------------------1) EXPECTED CLOSING DATE; TITLE COMPANY: Notwithstanding anything in Section 1 of the Agreement to the contrary, the Expected Closing Date shall be on or before December 22, 2000. Seller shall have the right to extend the Expected Closing Date until on or before January 15, 2001 by notice to Buyer and Escrow Holder prior to December 22, 2000. Wherever in the Agreement reference is made to "First American Title Company" such reference shall be changed to "Stewart Title Company".2) DEPOSITS (CONTINUED): --------------------- Buyer's deposit pursuant to this Paragraph 4 shall be refundable until the satisfaction or waiver of all the Buyer's contingencies contained herein or in the event Seller fails to close the Escrow contemplated herein. Unless Buyer has disapproved a Buyer's contingency on or before the earlier of (i) the time specified in the Agreement with respect to particular contingencies and (ii) November 30, 2000, then on December 1, 2000 Buyer's deposit shall be released to Seller without the need for further instruction from Buyer or Seller and upon such release Buyer's deposit shall become non-refundable except in the event Seller fails to close the Escrow contemplated herein.5) NEW LOAN CONTINGENCY PERIOD: ---------------------------- The language in paragraph 5.2 of the Agreement which states "within 30 days following the Date of Agreement" shall be replaced by the language "on or before November 30, 2000".27) BROKERAGE FEES: --------------- Seller agrees that any fees owing from Seller to the Brokers pursuant to separate agreements between Seller and such Brokers shall be paid at Closing through Escrow.28) REMOVAL FROM MARKET: -------------------- From the execution hereof Seller shall not market the Property For Sale but shall reserve the right to receive unsolicited back up offers to purchase during Buyer's contingency period. Upon removal of all Buyer's contingencies and the release of the Buyer's Deposit to Seller, Seller shall remove the Property from the market.29) AMERICANS WITH DISABILITY ACT (ADA) NOTIFICATION: ------------------------------------------------- Seller and Buyer each acknowledge receipt of Exhibit "A" attached hereto and made a part hereof.30) ADDITIONAL DEPOSITS: -------------------- In addition to the Purchase Price, Buyer shall deposit into Escrow prior to Closing the following: (A) any amounts then due and payable pursuant to the Lease from Buyer (as Lessee under the Lease) to Seller (as Lessor under the Lease) and (B) the amount of Supplemental Taxes due with respect to the Property and not paid prior to Closing. If prior to Closing, a Supplemental Tax Bill has been received and such Supplemental Tax Bill has not been paid by Buyer (as Lessee under the 12 Lease), then Buyer shall deposit in Escrow the amount of such Supplemental Tax Bill and Escrow Holder shall pay such Supplemental Tax Bill at Closing. If at Closing, a Supplemental Tax Bill has not been received by Escrow Holder, Buyer shall deposit the sum of $35,000 as an estimate of such Supplemental Taxes. Escrow Holder shall retain such deposit until a Supplemental Tax Bill has been received. When such Supplemental Tax Bill has been received, Escrow Holder shall use such deposit to pay the amount of such Supplemental Tax Bill and remit any excess to Buyer. If the deposit is insufficient to pay the full amount of the Supplemental Tax Bill, Escrow Holder shall use the deposit to cover as much of the Supplemental Tax Bill as possible and Buyer, within 10 days of notice from Escrow Holder, shall deposit such additional amount as is necessary to fully pay such Supplemental Tax Bill. In any event, Buyer agrees that Buyer is solely responsible for all taxes assessed with respect to the Property for periods after July 15, 2000. 13 ADDITIONAL PROVISIONS FOR PURCHASE AND SALE AGREEMENT 1670 CHAMPAGNE AVENUE ONTARIO, CALIFORNIAADDITIONAL CONDITIONS PRECEDENT: (1) Property Documents. Buyer acknowledges that Seller has delivered, ormade available, to Buyer copies of all permits, soils reports, licenses,maintenance contracts, utility contracts, operating contracts, managementcontracts, service contracts, and other contracts pertaining to the Property,together with any amendments or modifications (collectively, PropertyDocuments). Buyer has reviewed each Property Document that Buyer has deemedappropriate in Buyer's exercise of its due diligence and Buyer's decision topurchase the Property is based upon Buyer's review of such Property Documentsand Buyer's independent evaluation of the Property. On or before the Close ofEscrow, Seller shall assign to Buyer all of Seller's rights and remedies underthe Property Documents, to the extent assignable, pursuant to an assignment ofcontracts, warranties, guarantees, and other intangible property (Assignment ofContracts) in form and substance satisfactory to Buyer. At Buyer's request,Seller shall obtain the consent to assignment of any other parties to theProperty Documents that Buyer specifies within five (5)[10] business days of theexecution hereof. At Buyer's request, Seller shall terminate the PropertyDocuments that Buyer specifies by delivering notices to the other parties underthe Property Documents in sufficient time to terminate the Property Documentsprior to the Close of Escrow. (2) Architect's Certificate. Seller has delivered to Buyer a certificationby HPA, Inc. (the "Architect's Certificate") confirming the total square footageof the Base Building (as defined in the Lease described in Section 2.3), thatall improvements have been designed and constructed in accordance withapplicable building codes, which shall be prepared at Seller's expense. Buyerhas approved the Architect's Certificate. (3) Plans and Specifications. Seller has delivered to Buyer a copy of theplans and specifications for the Improvements, together with all amendmentsthereto (collectively, "Plans"). (4) Certificates of Occupancy. Seller has delivered to Buyer copies of allcertificates of occupancy with regard to the improvements and the Property,which are required for the use and occupancy of the Property, as presentlyconstructed. On or before the Closing, Seller shall deliver originals of thefinal or permanent certificates of occupancy to Buyer. (5) Buyer has occupied the Property and the Base Building since thecommencement of the Lease. On Closing, except as otherwise specifically setforth in this Agreement, Buyer shall have accepted the Property and the BaseBuilding in the then condition of the Property and the Base Building.ADDITIONAL REPRESENTATIONS AND WARRANTIES: Seller represents and warrants to Buyer that as of the date of thisAgreement and as of the Close of Escrow: (a) Disclosure. To Seller's actual knowledge, Seller has disclosed toBuyer, or made available for Buyer's review, all information concerning theProperty to which Seller has access. 14 (b) Condition of Property. To Seller's Actual Knowledge, the Property(including, without limitation the Base Building) is in good condition and freefrom any defects, including without limitation, erosion, drainage or soilproblems, physical, mechanical (including, without limitation, any loadingdoor), plumbing, fire sprinkler, lighting, heating, ventilating, airconditioning, electrical, parking lot pavement or utility system defects, ordefects in any similar elements (except to the extent any of the foregoing havebeen constructed by Buyer). The duration of the foregoing warranty,notwithstanding anything in this Agreement to the contrary, shall be limited asfollows: If, after the Commencement Date under the Lease, Buyer does not giveSeller written notice of any non-compliance with this warranty within: (i) five(5) years as to the roof and the structural portion of the roof, (ii) two (2)years as to the slab and concrete walls, and (iii) one (1) year as to theremaining systems and other elements of the Base Building, correction of suchnon-compliance shall be the obligation of Buyer at Buyer's sole cost andexpense; provided, however, that Buyer's sole obligation with respect to theitems specified in subsections (i) - (iii) of this sentence shall not commenceunless and until Seller has given to Buyer notice that as to such applicablesubsection, Seller's obligations are ending or have ended and Buyer'sobligations are beginning or have begun. Seller's obligations with respect toany warranties given to Buyer pursuant to this Section (b) are conditioned uponthe following: (a) Buyer shall have given notice to Seller of any claims on suchwarranties promptly and in no event not later than twenty (20) days after thediscovery of the condition giving rise to such claim, and (b) except inconnection with an emergency that threatens property or safety, if Buyer or anyperson other than a person selected by Seller repairs or otherwise attempts tocorrect a condition giving rise to the claim, Seller shall be relieved of thewarranty obligations related to such condition repaired or corrected by suchother person. Any repairs which are made at the direction of Seller shall beperformed by contractors or subcontractors reasonably acceptable to Buyer. (c) Special Assessments or Condemnation. To Seller's Actual Knowledge,there are not presently pending (i) any special assessments, except those shownas Exceptions, or (ii) condemnation actions against the Property or any part.Moreover, Seller has not received notice of any special assessments orcondemnation actions being contemplated. To Seller's Actual Knowledge, there areno existing, proposed, or contemplated eminent domain proceedings that wouldaffect the Property. Moreover, Seller has not received any notice of existing,proposed, or contemplated eminent domain proceedings that would affect theProperty. (d) Encroachment/Streets. To Seller's Actual Knowledge, (i) Encroachments. Except as shown on the survey provided inaccordance with Section 9.1(g), there are no encroachments on the Property fromadjoining property, and the Property does not encroach on adjoining property,easements, or streets. (ii) Streets. There are no existing, proposed, or contemplated plansto widen, modify, or realign any street or highway which affects thecontemplated size of, use of, or set-backs on the Property and the improvements. (e) Compliance with Laws. To Seller's Actual Knowledge, all laws,ordinances, rules, and regulations of any government or agency, body, orsubdivision thereof, bearing on the construction, operation, ownership, or useof the Property, have been complied with by Seller. (f) Utilities. All water, sewer, electric, telephone, and drainagefacilities, and all other utilities required by law or for the normal operationof the Property are installed to the property 2 15lines of the Property, have been connected to the Base Building, are connectedwith valid permits, and, to Seller's Actual Knowledge, are in good workingorder, and are adequate to service the Property. (g) Permits; Compliance with Applicable Law. Seller has obtained allappropriate licenses, permits, easements, and rights of way, including proofs ofdedication, which are required to use and operate the Property, and theimprovements comply with all applicable laws, covenants or restrictions ofrecord, building codes, regulations and ordinances in effect at the Closing.Said warranty does not apply to the use to which Buyer will put the Property(unless otherwise agreed to by Buyer and Seller) or to any alterations made orto be made by Buyer. In addition, there are no commitments or agreements, towhich Seller is a party, affecting the Property which have not been disclosed bySeller to Buyer in writing. (h) State of Facts. To Seller's Actual Knowledge, Seller is not in defaultof Seller's obligations or liabilities pertaining to the Property; nor are therefacts, circumstances, conditions, or events which, after notice or lapse oftime, would constitute default. Seller has not received notice or informationthat any party to any document affecting the Property considers a breach ordefault to have occurred; nor has Seller any reason to believe that there islikely to be a default under any of the documents. (i) Consents and Releases. To Seller's Actual Knowledge, Seller hasobtained all required consents, releases, and permissions to convey good andmarketable title to Buyer. (j) Litigation. Seller is not involved in or aware of pending or threatenedlitigation which could affect the Property. Furthermore, to Seller's ActualKnowledge, there are no proceedings pending or threatened against Seller beforeany court or administrative agency relating to the Property which may adverselyaffect the Property now or in the future, or which may adversely affect Seller'sability to fulfill all obligations under this Agreement and the relateddocuments. (k) Authority. This Agreement and all other documents delivered prior to orat the Closing (i) have been duly authorized, executed, and delivered by Seller;(ii) are binding obligations of Seller; (iii) are collectively sufficient totransfer all of Seller's rights to the Property; and (iv) do not violate theprovisions of any agreement to which Seller is a party or which affects theProperty, and do not violate Seller's partnership agreement, subject, however,to applicable bankruptcy, insolvency, and other similar laws affecting theenforcement of creditors' rights generally, and to principles of equitableremedies. Seller further represents that it is a limited partnership organizedand existing under the laws of the State of California. (l) Bankruptcy. No filing or petition under the United States BankruptcyLaw or any insolvency laws, or any laws for composition of indebtedness or forthe reorganization of debtors has been filed with regard to Seller or anygeneral partner of Seller. (m) Foreign Investment Real Property Tax Act. Seller is not a foreignperson within the meaning of 42 USCS Section 1445(f)(3). (n) Toxic or Hazardous Waste. (i) To Seller's Actual Knowledge, the Property is free from HazardousSubstances and is not in violation of any Environmental Laws. 3 16 (ii) To Seller's Actual Knowledge, there are no buried or partiallyburied storage tanks located on the Property. (iii) Seller has received no notice, warning, notice of violation,administrative complaint, judicial complaint, or other formal or informal noticealleging that conditions on the Property are or have been in violation of anylaw governing the storage, use, transportation or release of HazardousSubstances (hereinafter, "Environmental Laws"), or informing Seller that theProperty is subject to investigation or inquiry regarding Hazardous Substanceson the Property or the potential violation of any Environmental Laws. (iv) To Seller's Actual Knowledge, there is no monitoring programrequired by the Environmental Protection Agency (EPA) or any similar stateagency concerning the Property. (v) To Seller's Actual Knowledge, no toxic or hazardous chemicals,waste, or substances of any kind have ever been spilled, disposed of, or storedon, under, or at the Property, whether by accident, burying, drainage, orstorage in containers, tanks or holding areas, or by any other means. (vi) To Seller's Actual Knowledge, the Property has never been used asa dump or landfill. (o) Special Studies Zone. The Property is not within a special studies zoneunder the Alquist-Priolo Geologic Hazard Act [Pub Res C Section Section Sections2621.9 et seq.]. (p) Notice of Proceedings. Seller shall immediately notify Buyer of anylawsuits, condemnation proceedings, rezoning, or other governmental order oraction, or any threat thereof, known to Seller, which might affect the Propertyor any interest of Buyer. (q) Seller's Actual Knowledge. When used herein, "Seller's ActualKnowledge", "Seller's Knowledge" shall refer to the actual, but not theconstructive or impute, knowledge of Donald Gilmour, without investigation.INDEMNITIES (1) Seller and its successors and assigns shall indemnify, defend,reimburse and hold Buyer, its employees and lenders, harmless from and againstany and all damages, liabilities, judgments, claims, expenses, penalties, andattorneys' and consultants' fees and all environmental damages, including thecost of remediation, arising out of or involving any Hazardous Substances on theProperty prior to the Commencement Date under the Lease or which are caused bythe gross negligence or willful misconduct of Seller, its agents or employees.Seller's obligations shall include, but not be limited to, the cost ofinvestigation, removal, remediation, restoration and/or abatement. Notermination, cancellation or release agreement entered into by Seller and Buyershall release Seller from its obligations under this Agreement with respect toHazardous Substances, unless specifically so agreed by Buyer in writing at thetime of such agreement. The provisions of the this Section (1) shall survive theClosing. (2) Seller shall indemnify, defend, and hold Buyer harmless from allliability, loss, or claim 4 17for damages, including costs and attorney fees, arising from (a) breach ofSeller's covenants under this Agreement or (b) Seller's false representations inthis Agreement. The provisions of this Section shall survive the Closing asfollows: (i) with respect to those matters described in AdditionalRepresentations and Warranties Section (b) above, as set forth in said Section(b), (ii) with respect to those matters described in Indemnities Section (1)above relating to Hazardous Substances, as set forth in said Section (1), and(iii) with respect to all other matters [what else is there?], for a period ofone (1) year following the Commencement Date under the Lease.MEDIATION PROVISIONMEDIATION OF DISPUTES: SELLER AND BUYER AGREE TO MEDIATE ANY DISPUTE OR CLAIMBETWEEN THEM ARISING OUT OF THIS AGREEMENT BEFORE RESORTING TO ARBITRATION ORCOURT ACTION.Mediation is a process in which parties attempt to resolve a dispute bysubmitting it to an impartial, neutral mediator who is authorized to facilitatethe resolution of the dispute but who is not empowered to impose a settlement onthe parties. Mediation fees, if any, shall be divided equally among the partiesinvolved. Before the mediation begins, the parties agree to sign a documentlimiting the admissibility in arbitration or any civil action of anything said,any admission made, and any documents prepared, in the course of the mediation,consistent with Evidence Code Section 1119.IF ANY PARTY COMMENCES AN ARBITRATION OR COURT ACTION BASED ON A DISPUTE ORCLAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THEMATTER THROUGH MEDIATION, THEN IN THE DISCRETION OF THE ARBITRATOR(S) OR JUDGE,THAT PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES EVEN IF THEY WOULDOTHERWISE BE AVAILABLE TO THAT PARTY IN ANY SUCH ARBITRATION OR COURT ACTION.However, the filing of a judicial action to enable the recording of a notice ofpending action, for order of attachment, receivership, injunction, or otherprovisional remedies, shall not in itself constitute a loss of the right torecover attorneys' fees under this provision. The following matters are excludedfrom the requirement of mediation hereunder: an unlawful detainer action, thefiling or enforcement of a mechanic's lien, and any matter which is within thejurisdiction of a probate court/s/ Illegible /s/ PP ------------------------------ ----------------------------------------Seller's Initials Buyer's Initials 5 1 EXHIBIT 10.21 AMENDMENT OF LEASE THIS AMENDMENT OF LEASE (hereinafter this "Amendment") dated foridentification purposes only, December 20, 2000, is entered into by and betweenYALE INVESTMENTS, LLC, a Delaware limited liability company ("Lessor") andSKECHERS U.S.A., Inc., a Delaware corporation ("Lessee"). This Amendment isentered into with respect to the following facts: A. Lessee is a party to a certain Industrial/Commercial Single-TenantLease Net, dated November 15, 1999, in which Champagne Building Group, LP, aCalifornia limited partnership ("Champagne Building Group") is named as originallessor, covering certain premises (the "Premises") commonly known as 1670 S.Champagne Avenue, Ontario, California (the "Lease"). B. Lessor intends to acquire fee title to the Premises described by theLease from Champagne Building Group, and Champagne Building Group has assignedits interest in the Lease to Lessor. C. This Amendment shall be effective only if the Premises are acquired byLessor. FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which ishereby acknowledged, it is agreed as follows:1. TERM. The first sentence of Paragraph 1.3 of the Lease is hereby amended andrestated as follows: "1.3 Term: Sixteen (16) years and Zero (0) months ("Original Term") commencing upon July 15, 2000 (the "Commencement Date") and ending sixteen (16) years after the Commencement Date (the "Expiration Date")."2. EARLY POSSESSION. Paragraph 1.4 of the Lease is hereby amended and restatedas follows: ["Intentionally Deleted."]3. REAL ESTATE BROKERS. Paragraph 1.10 of the Lease is hereby amended andrestated as follows: "1.10 Real Estate Brokers: (See also Paragraph 15) (a) Representation: Neither Lessor nor Lessee has been represented by a broker in this transaction; accordingly, no brokerage relationships exist and as of the date of execution of this Amendment by both Parties, no brokers are owed any fees." 24. CONDITION. The fourth sentence of Paragraph 2.2 of the Lease is herebyamended and restated as follows: "If, after the Commencement Date, Lessee does not give Lessor written notice of any non-compliance with this warranty within: (i) five (5) years as to the roof and the structural portion of the roof, (ii) two (2) years as to the slab and concrete walls, and (iii) one (1) year as to the remaining systems and other elements of the Building, correction of such non-compliance shall be the obligation of Lessee at Lessee's sole cost and expense."5. COMPLIANCE. Paragraph 2.3(a) of the Lease is hereby amended and restated asfollows: "(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof."6. EARLY POSSESSION. Paragraph 3.2 of the Lease is hereby amended and restatedas follows: "[Intentionally Deleted.]"7. USE. The third sentence of Paragraph 6.1 of the Lease is hereby amended andrestated as follows: "Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements on the Premises or the mechanical or electrical systems therein, is not significantly more burdensome to the Premises, and the modification of the Agreed Use will not be likely to involve the use of Hazardous Substances on or about the property in such a manner as to create a "Reportable Use" pursuant to Section 6.2 or violate any existing laws." The fourth sentence of Paragraph 6.1 of the Lease is hereby amended andrestated as follows: "If Lessor elects to withhold consent, Lessor shall within thirty (30) business days after such request give written notification of same, which notice shall include an explanation of Lessor's objections to the change in use."8. HAZARDOUS SUBSTANCES. Paragraph 6.2(a) is hereby amended and restated todelete the last sentence, which reads as follows: 2 3 "In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit."Paragraph 6.2(d) is hereby amended and restated as follows: "(d) LESSEE INDEMNIFICATION. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties and attorneys' and consultants' fees and all environmental damages, including the cost of remediation, arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessor shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from adjacent properties occurring before or after the Commencement Date). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee or Lessor, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement."9. LESSEE'S COMPLIANCE WITH APPLICABLE REQUIREMENTS. The first sentence ofparagraph 6.3 is hereby amended and restated as follows: "Except as otherwise provided in this Lease (and, in particular, Paragraphs 2.2 and 2.3 hereof), Lessee shall, at Lessee's sole expense, fully and diligently and in a timely manner, materially comply with all Applicable Requirements, and the requirements of any applicable fire insurance underwriter or rating bureau, without regard to whether said requirements are now in effect or become effective after the Commencement Date."10. LIABILITY LIMITS. The second sentence of Paragraph 8.2(a) of the Lease ishereby amended and restated as follows: "Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $5,000,000 per occurrence with an "ADDITIONAL INSURED-MANAGERS OR LESSORS OF PREMISES ENDORSEMENT" and contain the "AMENDMENT OF THE POLLUTION EXCLUSION 3 4 ENDORSEMENT" for damage caused by heat, smoke or fumes from a hostile fire."11. FLOOD AND EARTHQUAKE INSURANCE. The fourth sentence of Paragraph 8.3 of theLease is hereby amended and restated as follows: "If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake damage unless required by a Lender in its capacity as a lender or as an owner following foreclosure, or by a third party owner following foreclosure), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss."12. WORKER'S COMPENSATION. Paragraph 8.4 of the Lease is hereby amended andrestated to add a new paragraph (c) as follows: "(c) WORKER'S COMPENSATION. Lessee shall obtain and carry all statutory workers' compensation insurance with respect to any work on or about the Premises, covering all of Lessee's employees working on the Premises and all employees of Lessee's property manager and vendors providing service on the Premises. Lessee shall provide Lessor with written evidence that such insurance is in force." The existing paragraph (c) shall now be paragraph (d); no other change tothe language of former paragraph (c) shall be made, however.13. INSURANCE PROVISIONS. Paragraph 8.5 of the Lease is hereby amended andrestated as follows: "Insurance required herein shall be by companies duly licensed or admitted to transact business in the style where the Premises are located, and maintaining during the policy term a "General Policyholders Rating" of at least A- or better, with a minimum Class VIII Rating, as set forth in the most current issue of "Best's Insurance Guide," or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, as of the Commencement Date, deliver to Lessor certified copies of policies of such insurance or certificates evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after thirty (30) days prior written notice to Lessor and Lender. Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor and the Lender with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies 4 5 shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less, and the Lender must be named as an additional insured. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same, provided, however, that any Party that obtains insurance on behalf of another Party shall be reimbursed within ten (10) days of demand for payment."14. EXEMPTION OF LESSOR FROM LIABILITY. The first two sentences of Paragraph 8.8of the Lease are hereby amended and restated as follows: "Subject to the provisions of Section 6 of the Work Letter, Lessor shall not be liable for injury, damage or other consequential damages to the person or goods, wares, merchandise of other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, utility blackouts, or for any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building of which the Premises are a part, or from other sources or places. Lessor shall not be liable for any damages or consequential damages arising from any act or neglect of any other tenant of Lessor."15. DAMAGE OR DESTRUCTION: DEFINITIONS. Article 9 of the Lease is hereby amendedand restated to add a new Paragraph 9.9 as follows: "9.9 LOAN DOCUMENTS ARE CONTROLLING. Notwithstanding any of the foregoing language contained in Paragraphs 9.1 through 9.8, to the extent that any of the terms of this Lease relating to the matters covered in paragraphs 9.1 through 9.8 conflict with a deed of trust in favor of a Lender, the terms and provisions of the Deed of Trust shall control both prior to and, at the sole election of Lender (or a third party purchaser following foreclosure), subsequent to any foreclosure or other transfer in lieu of foreclosure. In addition, if Lessor rebuilds pursuant to the provisions of a Lender's deed of trust, the Lease shall not be terminated pursuant to Paragraph 9.4."16. TAXES. The last sentence of Paragraph 10.2(a) of the Lease is hereby amendedand restated as follows: "If Lessee shall fail to pay any required Real Property Taxes, Lessor shall have the right to pay the same, and Lessee shall reimburse Lessor therefore within ten (10) days of its demand." 5 6 The first sentence of Paragraph 10.2(b) of the Lease is hereby amendedand restated as follows: "In the event Lessee incurs a late charge on any Rent payment, Lessor may, at Lessor's option, next estimate the current Real Property Taxes and require that such taxes be paid in advance to Lessor by Lessee, either: (i) in a lump sum amount equal to the installment due, at least twenty (20) days prior to the applicable delinquency date, or (ii) monthly in advance with the payment of the Base Rent." The fourth sentence of Paragraph 10.2(b) of the Lease is hereby amendedand restated as follows: "If the amount collected by Lessor is insufficient to pay such Real property Taxes when due, Lessee shall pay Lessor, within ten (10) days of demand, such additional sums as are necessary to pay such obligations."17. ASSIGNMENT. Paragraph 12.1(a) of the Lease is hereby amended and restated asfollows: "(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign" or "assignment") or sublet all or any part of Lessee's interest in this Lease or the Premises without Lessor's prior written consent, which consent shall not be unreasonably withheld or delayed. In its notice to the Lessor, Lessee must provide certain information, including but not limited to the name of the proposed assignee, sublessee or occupant; the nature of the proposed assignee's, sublessee's or occupant's business to be carried out on the Premises; the terms and provisions of the proposed Assignment or Sublease, and a copy of such documents; and such financial information concerning the proposed assignee, sublessee or occupant and other reasonable information regarding the transaction which Lessor shall have requested following its receipt of Lessee's request for consent. In making its determination as to whether or not to consent to the proposed Assignment or Sublease, Lessor shall be entitled to consider any fact or factor which Lessor reasonably deems relevant to its decision, including but not limited to the following, all of which are hereby agreed to be reasonable factors for Lessor's consideration: the financial strength of the proposed assignee or sublessee (which shall be at least equal to that of Lessee as of the date of execution of this Lease), including the adequacy of its working capital to pay all expenses anticipated in connection with any remodeling of the Premises; the experience of the proposed assignee or sublessee with respect to businesses of the type and size which such assignee or sublessee proposes to conduct in the Premises; the quality and nature of the business and/or services to be conducted in or from the Premises by the proposed assignee or sublessee and in any other locations which it has, as reflected by, among other things, average sales or revenue; 6 7 violation of exclusive use rights previously granted by Lessor to other Lessees of the Premises; the effect of the type of services and business which the proposed assignee or sublessee proposes to conduct in the Premises; diminution or potential diminution of percentage rent, if any, payable pursuant to this Lease as the result of such Assignment or Sublease; the quality of the appearance of the Premises resulting from any remodeling or renovation to be conducted by the proposed assignee or sublessee; whether there then exists any default by Lessee pursuant to this Lease or any non-payment or non-performance by Lessee under this Lease which, with the passage of time and/or the giving of notice, would constitute a default under; any fact or factor upon which Lessor reasonably concludes that the business to be conducted by such assignee or sublessee will not be a financial success in the Premises."18. EXCESS RENT. Paragraph 12.3(a) of the Lease is hereby amended and restatedto replace the first sentence of Paragraph 12.3(a) with the following language: "(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. If the Rent payable pursuant to the terms of a sublease exceeds Lessee's obligations under this Lease, Lessor shall be entitled to fifty percent (50%) of the excess amount."19. REMEDIES. The fourth sentence of Paragraph 13.2(a) of the Lease is herebyamended and restated as follows: "Efforts by Lessor to mitigate damages caused by Lessee's breach of this Lease shall not waive Lessor's right to recover the balance of damages owing under Paragraph 13." The first sentence of Paragraph 13.2(b) of the Lease is hereby amendedand restated as follows: "(b) Continue the Lease and Lessee's right to possession and recover Rent as it becomes due, in which event, Lessee may sublet or assign, subject only to reasonable limitations as set forth in Paragraph 12." Paragraph 13.2 of the Lease is hereby amended and restated to addparagraph (e) as follows: "(e) No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative (to the extent the same does not result in double recovery for the Lessor) with all other remedies at law or in equity." 7 820. CONDEMNATION PROVISIONS. Paragraph 14 of the Lease is hereby amended andrestated to include the following language as the final sentence of Paragraph14: "Notwithstanding any of the foregoing provisions of Paragraph 14, to the extent the language of Paragraph 14 conflicts with a Lender's rights under a deed of trust, the terms and provisions of the deed of trust shall control prior to foreclosure, and at the Lessor's option, following foreclosure, or other transfer in lieu of a foreclosure."21. ESTOPPEL CERTIFICATES. The following sentence shall be added as the lastsentence in Paragraph 16(a) of the Lease: "Lessee shall provide Estoppel Certificates and financials directly to the Lender upon the Lender's request."The first sentence of Paragraph 16(b) of the Lease is hereby amended andrestated as follows: "(b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such ten day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) if the Lessor is the Requesting Party, not more than one month's Rent has been paid in advance."22. DEFINITION OF LESSOR. The second and third sentences of Paragraph 17 of theLease are hereby amended and restated as follows: "In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit and interest accrued and payable on the Security Deposit to the new Lessor. Except as provided in Paragraph 12, upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor."23. TERMINATION OF OPTION. Paragraph 39.4(c) of the Lease is hereby amended andrestated as follows: "(c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term, (i) Lessee fails to pay Rent for a period of thirty (30) days after such Rent becomes due (without any necessity of Lessor to give notice thereof), (ii) Lessor gives to Lessee three (3) or more notices of separate Default, 8 9 whether or not the Defaults are cured, or (iii) if Lessee commits a Breach of this Lease which Breach has not been cured."24. RENT. The following language is added as Paragraph 51 of the Lease, in lieuof the language which presently reads "[intentionally omitted]": "51. Cost of Living Increases. Beginning on the eighty-fifth (85th) month and continuing until and including the one hundred ninety-second (192nd) month, the Base Rent shall be calculated as follows: 51.1. On the eighty-fifth (85th), one hundred twenty-first (121st) and one hundred fifty-seventh (157th) months of the term of the lease, the Base Rent shall be adjusted by the change, if any, from the Base Month specified below, in the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for the "CPI W" (Urban Wage Earners and Clerical Workers) Los Angeles-Riverside-Orange County, All Items (1982-1984 = 100), herein referred to as "CPI" 51.2. The monthly rent payable in accordance with paragraph 51.1 shall be calculated as follows: the Base Rent then in effect shall be multiplied by a fraction the numerator of which shall be the CPI of the calendar month two months prior to the month(s) specified in paragraph 51.1 above during which the adjustment is to take effect, and the denominator of which shall be the CPI of the calendar month thirty-six (36) months prior to the month(s) specified in paragraph 51.1 above during which the adjustment is to take effect (the "Base Month"). The sum so calculated shall constitute the new monthly rent hereunder, but in no event shall any such new monthly rent be less than the rent payable for the month immediately preceding the rent adjustment. 51.3. In the event the compilation and/or publication of the CPI shall be transferred to any other governmental department or bureau or agency or shall be discontinued, then the index most nearly the same as the CPI shall be used to make such calculation. In the event that the Parties cannot agree on such alternative index, then the matter shall be submitted for decision to the American Arbitration Association in accordance with the then rules of said Association and the decision of the arbitrators shall be binding upon the parties. The cost of said Arbitration shall be paid equally by the Parties."25. OPTION TO EXTEND TERM. Paragraphs 52, 52.1 and 52.2 are each hereby amendedand restated as follows: "[Intentionally Deleted.]"26. PREMISES TOTAL DESTRUCTION. Paragraph 53 is hereby amended and restated toinclude the following language as the final sentence of this paragraph: 9 10 "Notwithstanding any of the foregoing provisions of Paragraph 53, to the extent the language of Paragraph 53 conflicts with a Lender's rights under a deed of trust, the terms and provisions of the deed of trust shall control prior to foreclosure, and at the Lessor's option, following foreclosure, or other transfer in lieu of foreclosure."27. PARTIAL DAMAGE-UNINSURED LOSS. Paragraph 54 is hereby amended and restatedto include the following language as the final sentence of this Paragraph: "Notwithstanding any of the foregoing provisions of Paragraph 54, to the extent the language of Paragraph 54 conflicts with a Lender's rights under a deed of trust, the terms and provisions of the Deed of Trust shall control prior to foreclosure, and at the Lessor's option, following foreclosure, or other transfer in lieu of foreclosure."28. DAMAGE NEAR END OF TERM. The following language shall be added to paragraph55 of the Lease: "Lessee shall only have this right to terminate this Lease pursuant to this provision if Lessee's rental interruption insurance will not be invalidated by such termination. In addition, notwithstanding any of the foregoing provisions of Paragraph 55, to the extent the language of Paragraph 55 conflicts with a lender's rights under a deed of trust, the terms and provisions of the Deed of Trust shall control prior to foreclosure, and at the Lessor's option, following foreclosure, or other transfer in lieu of foreclosure."29. ASSIGNMENT. Paragraph 56 is hereby amended and restated as follows: "[Intentionally Deleted.]"30. CONDEMNATION. Paragraph 57 is amended and restated as follows: "Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be compensation for diminution in value of the Premises, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any portion of such condemnation award specifically attributable (and expressly in the award) to (i) Lessee's loss of business goodwill and/or Trade Fixtures, and (ii) if this Lease is terminated pursuant to the provisions of Paragraph 14 of the Lease, Lessee's reasonable relocation expenses and any excess of market rental value of the Premises for the remainder of the Original Term (as the same may be extended) over the present value as of the date of such termination of the Base Rent payable for the remainder of the Original Term (as the same may be extended). Notwithstanding any of the foregoing provisions of Paragraph 57, to the extent the language of Paragraph 57 conflicts with the a Lender's rights under a deed of trust, the 10 11 terms and provisions of the deed of trust shall control prior to foreclosure, and at the Lessor's option, following foreclosure, or other transfer in lieu of foreclosure."31. CONNECTION TO NEIGHBORING PROPERTY. Paragraph 60 is hereby amended andrestated as follows: "[Intentionally Deleted.]"32. DELAY IN COMMENCEMENT DATE. Paragraph 61 is hereby amended and restated asfollows: "Lessee hereby acknowledges that any damages resulting from Lessor's failure to cause Substantial Completion to occur on or before the Commencement Date have been waived by the Lessee."33. RATIFICATION OF LEASE. Except as amended hereby, the Lease shall remain infull force and effect.34. MISCELLANEOUS CHARGES. Paragraph 7.5 of the Work Letter is hereby amendedand restated as follows: "Lessee hereby acknowledges that its obligation under the Lease to pay for parking, restrooms, HVAC usage, electricity, water, elevator usage, loading dock usage, freight elevator usage and security, has commenced."35. ADDENDUM. The first sentence of the first paragraph of the Addendum to theLease is hereby amended and restated as follows: "The following provisions are added to that certain Standard Industrial/Commercial Single Tenant Lease-Net dated for reference purposes as of November 15, 1999, by and between Champagne Building Group, LP, a California limited partnership, as the original lessor, Yale Investments, LLC, a Delaware limited liability company, as Lessor and Skechers USA, a Delaware corporation, as the Lessee."36. NON-DISCRIMINATION CLAUSE. The Lease is hereby amended and restated to addthe following language as Paragraph 66: "The Premises are subject to the restriction that there shall be no discrimination or segregation based upon race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Premises." 11 12 "Lessor" YALE INVESTMENTS, LLC, a Delaware limited liability company By: Skechers U.S.A., Inc., a Delaware corporation, its sole member and manager By: /s/ DAVID WEINBERG -------------------------------- David Weinberg, Executive Vice President And Chief Financial Officer By: /s/ PHILIP PACCIONE -------------------------------- Philip Paccione, Secretary and General Counsel "Lessee" SKECHERS USA, a Delaware corporation By: /s/ DAVID WEINBERG -------------------------------- David Weinberg, Executive Vice President And Chief Financial Officer By: /s/ PHILIP PACCIONE -------------------------------- Philip Paccione, Secretary and General Counsel 1 EXHIBIT 10.22 PURCHASE AND SALE AGREEMENT WITH ESCROW INSTRUCTIONS This Agreement for Purchase and Sale Agreement with Escrow Instructions(this "Agreement") dated November 13, 2000, for identification purposes only, ismade and entered into in Los Angeles County, California, by and between PACIFICACALIFORNIA/APOLLO, LLC, a California limited liability company (hereinaftercollectively "Seller"), and SKECHERS USA, INC., a Delaware corporation, or theirassignee(s) under Paragraph 18.6 below (collectively the "Buyer") collectively,the "Parties" or individually, a "Party." RECITALS: A. Seller is the fee owner of certain property located in Los AngelesCounty, California, which is legally described on Exhibit A to this Agreement(the "Property"). B. The Parties wish to enter into this Agreement to provide for theagreed terms and conditions for the purchase and sale of the Property.Now, Therefore, Buyer and Seller agree as follows:1. Definitions. For purposes of this Agreement, the following terms are definedas follows: 1.1 Agreement. "This Agreement" means this contract including allExhibits and amendments to these documents. The following Exhibits areincorporated by reference: Exhibit A Legal Description of Property Exhibit B Escrow Instructions Exhibit C Form of Deed Exhibit D General Assignment Exhibit E Form of Assignment and Assumption Agreement Exhibit F Tenant Estoppel Statements Exhibit G Seller's Certificate Exhibit H Due Diligence Materials Exhibit I Bill of SaleThis Agreement constitutes the contract for purchase and sale of real propertyand instructions to the Escrow Holder for the consummation of the Agreementthrough the Escrow. If there is any inconsistency or conflict between the termsof this Agreement and the Escrow Instructions set forth in Exhibit B, the termsof this Agreement shall control. 1 2 1.2 Buyer. "Buyer" means Skechers USA, Inc., a Delaware corporation,whose address is 228 Manhattan Beach Boulevard, Manhattan Beach, California.Buyer also means and includes the permitted assignee(s) of Buyer as provided inSection 18.6. 1.3 Seller. "Seller" means Pacifica California/Apollo, LLC, a Californialimited liability company, whose address is c/o Pacifica Capital Group, LLC, 330Washington Boulevard, Marina del Rey, CA 90292. Seller's Taxpayer IdentificationNumber (TIN) is 95-4655238. 1.4 Property. "Property" means the real property including Seller'sinterest, if any, in Improvements thereon consisting of a commercial developmentcommonly known as 225 S. Sepulveda Boulevard, Manhattan Beach, California, asmore particularly described on Exhibit "A" attached hereto. 1.5 Escrow Holder. "Escrow Holder" means Chicago Title Company, whoseaddress is 700 S. Flower St., Suite 900, Los Angeles, CA 90017, Attn: AmyHiraheta. 1.6 Title Company. "Title Company" means Chicago Title Company, whoseaddress is 700 S. Flower Street, Suite 900, Los Angeles, CA 90017, Attn: NateGlover. 1.7 Preliminary Title Report. "Preliminary Title Report" means the TitleReport, dated August 14, 2000, and supplements, if any, issued by the TitleCompany, in respect to the Property. 1.8 Closing. "Closing" or "Close of Escrow" are terms usedinterchangeably in this Agreement. "Close of Escrow" will be deemed to haveoccurred when the Deed (as hereafter defined) is recorded in the officialrecords of the County of Los Angeles. The last date on which the Closing shalloccur is set forth in Section 3.5 unless Buyer requests an early Closing asprovided therein. 1.9 Improvements. "Improvements" means all buildings, permanentstructures, mechanical systems, electrical systems, heating, ventilation and airconditioning systems, plumbing systems, hydraulic systems, security systems,driveways, sidewalks, and other hardscape, landscape, sewers and undergroundutilities on the Property to be sold with the Property. 1.10 To Seller's Information and Belief. "To Seller's information andbelief" or "to Seller's knowledge" means information actually known to AndyCarpiac, and is based on his actual knowledge. 2 3 1.11. Permits. "Permit" or "Permits" mean and refers to any permit,approval, authorization, license, variance or permission required from agovernmental authority regarding the Property. 1.12 Claim. "Claim" means any claim or demand by any Person for anyalleged liabilities whether based in contract, tort, implied or expresswarranty, strict liability, criminal or civil statute, Permit, ordinance,regulation, common law, equity or otherwise. 1.13 Person. "Person" means any person, employee, individual,corporation, unincorporated association, limited liability company, partnership,trust, federal, state or local governmental agency, authority or other privateor public entity. 1.14 Due Diligence Materials. "Due Diligence Materials" means any ofthose documents provided by Seller to Buyer before the Due Diligence Period. 1.15 Due Diligence Period. "Due Diligence Period" means the periodexpiring on November 29, 2000, during which period Buyer must complete its duediligence and satisfy all Buyer contingencies as provided in Section 9 of thisAgreement. 1.16 Effective Date. The "Effective Date" shall be October 30, 2000. 1.17 "Environmental Laws" means all federal, state, local, or municipallaws, rules, orders, regulations, statutes, ordinances, codes, decrees, orrequirements of any government authority regulating, relating to, or imposingliability or standards of conduct concerning any Hazardous Substance, orpertaining to occupational health or industrial hygiene (and only to the extentthat the occupational health or industrial hygiene laws, ordinances, orregulations relate to Hazardous Substances on, under, or about the Property),occupational or environmental conditions on, under, or about the Property, asnow or may at any later time be in effect, including without limitation, theComprehensive Environmental Response, Compensation and Liability Act of 1980(CERCLA) [42 USCS Sections 9601 et seq.]; the Resource Conservation and RecoveryAct of 1976 (RCRA) [42 USCS Sections 6901 et seq.]; the Clean Water Act alsoknown as the Federal Water Pollution Control Act (FWPCA) [33 USCS Sections 1251et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS Sections 2601 etseq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCS Sections 1801et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS Sections 136 etseq.]; the Superfund Amendments and Reauthorization Act [42 USCS Sections 6901et seq.]; the Clean Air Act [42 USCS Sections 7401 et seq.]; the Safe DrinkingWater Act [42 USCS Sections 300f et seq.]; the Solid Waste Disposal Act [42 USCSSections 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCSSections 1201 et seq.]; the Emergency Planning and Community Right to Know Act[42 USCS Sections 11001 et seq.]; the Occupational Safety and Health Act [29USCS Sections 655, 657]; the California Underground Storage of HazardousSubstances Act [H & S C Sections 25280 et seq.]; the California HazardousSubstances Account Act [H & S C Sections 25300 et seq.]; the CaliforniaHazardous Waste Control Act [H & S C Sections 25100 3 4et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S CSections 24249.5 et seq.]; the Porter-Cologne Water Quality Act [Wat C Sections13000 et seq.], together with any amendments of or regulations promulgated underthe statutes cited above and any other federal, state, or local law, statute,ordinance, or regulation now in effect or later enacted which pertains tooccupational health or industrial hygiene (and only to the extent that theoccupational health or industrial hygiene laws, ordinances, or regulationsrelate to Hazardous Substances on, under, or about the Property), or theregulation or protection of the environment, including ambient air, soil, soilvapor, groundwater, surface water, or land use. 1.18 Hazardous Substances includes without limitation: 1.18.1 Those substances included within the definitions ofhazardous substance, hazardous waste, hazardous material, toxic substance, solidwaste, or pollutant or contaminant in the Comprehensive Environmental Response,Compensation and Liability Act of 1980 (CERCLA) [42 USCS Section 9601 et seq.];the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS Sections 6901et seq.]; the Clean Water Act, also known as the Federal Water Pollution ControlAct (FWPCA) [33 USCS Sections 1251 et seq.]; the Toxic Substances Control Act(TSCA) [15 USCS Sections 2601 et seq.]; the Hazardous Materials TransportationAct (HMTA) [49 USCS Sections 1801 et seq.] or under any other Environmental Law; 1.18.2 Those substances listed in the United States Department ofTransportation (DOT) Table [49 CFR Section 172.101], or by the EnvironmentalProtection Agency (EPA), or any successor agency, as hazardous substances [40CFR Part 302]; 1.18.3 Other substances, materials, and wastes which are or becomeregulated or classified as hazardous or toxic under federal, state, or locallaws or regulations; and 1.18.4 Any material, waste, or substance which is (i) a petroleumor refined petroleum product, (ii) asbestos, (iii) polychlorinated biphenyl,(iv) designated as a hazardous substance pursuant to 33 USCS Section 1321 orlisted pursuant to 33 USCS Section 1317, (v) a flammable explosive, or (vi) aradioactive material. 1.19 Additional Definitions. This Agreement provides additionaldefinitions of certain words and phrases related to the terms and conditions asspecified in various Sections of the Agreement.2. General Representations 2.1 Status of Seller. Seller represents that: (i) Seller is a dulyorganized and existing limited liability company existing and in good standingunder the laws of the State of California and is qualified to do business in theState of California; (ii) the individuals signing this Agreement are authorizedto sign this Agreement on behalf of 4 5the Seller; and (iii) no other or additional action is required to authorizethe sale of the Property. 2.2 Status of Buyer. Buyer represents that (i) it is a Delawarecorporation, existing and in good standing and qualified to do business underthe laws of the State of California; (ii) the persons executing this Agreementare authorized to sign this Agreement on behalf of Buyer; and (iii) the purchaseof the Property in accordance with the terms of this Agreement has been validlyauthorized by Buyer. 2.3 Joint Representation. Seller and Buyer represent and agree thatnothing contained in this Agreement is intended to create or shall be deemed ajoint venture, partnership, or principal and agent business relationship.3. Purchase and Sale. 3.1 Agreement for Purchase and Sale. Seller hereby agrees to sell andBuyer hereby agrees to purchase the Property for the price and on all terms andconditions of this Agreement. 3.2 Purchase Price. The Purchase Price for the Property is FourteenMillion Five Hundred Thousand and No/100 Dollars ($14,500,000.00) payable bybank wire transfer in immediately available funds to Seller upon Close ofEscrow. Upon Closing, the Purchase Price Deposit (defined below) plus allinterest accrued on the Purchase Price Deposit shall apply to the payment of thePurchase Price. 3.3 Purchase Price Deposit. Within two (2) business days after signingthis Agreement and subject to Buyer's right to terminate this Agreement asprovided in Section 9, Buyer shall deliver to the Escrow Holder Two HundredFifty Thousand and No/100 Dollars ($250,000.00) (the "Purchase Price Deposit")by a bank cashier's check or by federal wire transfer in immediately availablefunds. 3.3.1 Payment of Purchase Price Deposit. If Buyer breaches theAgreement after the expiration of the Due Diligence Period (provided that Buyerhas not terminated the Agreement before the expiration of the Due DiligencePeriod) and the transaction contemplated hereby does not close as a result ofsuch breach, then the total Purchase Price Deposit plus accrued interest shallbe non-refundable to Buyer and shall be payable to Seller as liquidated damages.If this transaction is consummated in accordance with the terms of thisAgreement, the total amount of such deposit plus accrued interest shall beapplied in full towards payment of the Purchase Price at the Close of Escrow.All funds deposited in Escrow shall earn interest until paid out as liquidateddamages or credited to payment of the Purchase Price at the Close of Escrow.Time is of the essence for deposit of the Purchase Price Deposit. 3.4 Opening of Escrow. Within two (2) business days after the fullexecution of this Agreement, the Parties shall open an escrow (the "Escrow")with Escrow Holder. The delivery of: (i) the Purchase Price Deposit by Buyer tothe 5 6Escrow Holder; and (ii) a fully signed copy of this Agreement includingExhibits to Escrow Holder, shall constitute opening the Escrow in accordancewith this Agreement including the escrow instructions provided in Exhibit B. 3.5 Close of Escrow. Close of Escrow shall occur on a date no later thanthirty (30) days after the end of the Due Diligence Period (the "ClosingDeadline"). The parties agree that Buyer may request an earlier Closing subjectto at least ten (10) business days prior written notice to Seller of Buyer'sintent to Close effective as of the date specified in the notice. 3.5.1 Extension of Close of Escrow. Buyer shall have a one-timeright to extend the Closing Date for up to thirty (30) days by notifying Sellerand Escrow Holder in writing of such election at least five (5) business daysprior to the Closing Deadline (the "EXTENSION NOTICE"), provided thatconcurrently with Buyer's delivery to Seller and Escrow Holder of the ExtensionNotice and as a condition to such extension, Buyer shall deposit into Escrow theadditional sum of Fifty Thousand Dollars ($50,000) (the "ADDITIONAL Deposit").The Additional Deposit shall be immediately disbursed by Escrow Holder to Sellerand such Additional Deposit shall not be refundable to Buyer. Upon Closing, theAdditional Deposit plus all interest accrued thereon shall apply to the paymentof the Purchase Price.4. Property Sales Condition. 4.1 "As Is" Sale. Buyer agrees and acknowledges that except for andsubject to the express representations and warranties provided in thisAgreement, Buyer acknowledges and agrees that (I) THE PROPERTY IS SOLD "AS IS","WHERE IS", AND "WITH ALL FAULTS" IN ITS CONDITION AS OF THE CLOSE OF ESCROWWITHOUT ANY REPRESENTATION OR WARRANTY REGARDING ITS CONDITION, FITNESS FOR ANYPARTICULAR PURPOSE, MERCHANTABILITY, OR COMPLIANCE WITH GOVERNMENTAL LAWS,ORDINANCES OR REGULATIONS, OR WITH ANY OTHER WARRANTY, EXPRESS OR IMPLIED BY LAWOR OTHERWISE; (II) BUYER SHALL PURCHASE THE PROPERTY BASED SOLELY ON BUYER'S OWNINDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY AND IMPROVEMENTS ANDBUYER'S INDEPENDENT EVALUATION OF THE DUE DILIGENCE MATERIALS WHICH SHALL BECOMPLETED BEFORE THE EXPIRATION OF THE DUE DILIGENCE PERIOD; AND (III) SELLER ISNOT OBLIGATED TO ALTER, MODIFY, REMEDIATE OR IMPROVE THE PROPERTY ORIMPROVEMENTS BEFORE THE CLOSING. 4.2 Buyer Acknowledgment. Buyer acknowledges and agrees that as of theexpiration of the Due Diligence Period, Buyer shall have reviewed, inspected andevaluated the Property including, without limitation, the environmentalconditions regarding soil, groundwater and asbestos conditions (ACM), in, on orunder the Property, the condition of title, whether the Property is located in a"flood zone" as 6 7set forth in HUD's Special Flood Zone Area Maps or is situated in a SpecialStudy Zone as designated under the Alquist-Priolo Special Studies Zone Actand/or Earthquake Fault Zoning Act (and all successive and/or similar acts), theavailability of utility services to the Property "as is" or as subdivided, thesubdivision, the existing zoning, the condition of the roof and structuralbuilding components for all buildings, the electrical, plumbing, water, sewer,sprinkler, mechanical and other building systems for all buildings above orbelow ground, the Due Diligence Materials, and the suitability of the Propertyand Improvements "as is" (except for and subject to the express representationsand warranties provided in this Agreement), at the Closing for Buyer's purposesand its intended use of the Property. Furthermore, except to the extentresulting from fraud, any intentional tort, any breach by Seller of any of itsrepresentations and warranties under this Agreement or any post-closingobligations of Seller under this Agreement, Buyer, and any and all of Buyer'ssuccessors and assigns, do hereby release and waive with respect to Seller andSeller's agents any and all claims, losses, liabilities, costs and damages,known or unknown, with respect to the Property for any reason whatsoever,including, but not limited to, any improvements located thereon; and inconnection therewith, further waive all rights and benefits arising underCalifornia Civil Code Section 1542 (and all successor and similar sections),which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."-----------------------------Buyer's InitialsThe foregoing releases, waivers and agreements of Buyer, and any and all ofBuyer's successors and assigns, as set forth in this Paragraph 4 shall survivethe Closing or any expiration or earlier termination of this Agreement. 4.3 Subject to Seller's representations and warranties contained in thisAgreement, Seller has no obligation to repair or correct any facts,circumstances, conditions or defects regarding the Property or to compensateBuyer for same.5. Title 5.1 Title Clearance. Buyer acknowledges receipt of the Preliminary TitleReport from Seller for a CLTA owner's title policy together with photostaticcopies of all documents affecting title, as disclosed in the Preliminary TitleReport. Buyer shall approve or in good faith disapprove the Preliminary TitleReport or any part thereof, by written notice to Seller and Escrow Holder withinten (10) business days after the date of this Agreement, unless otherwise waivedby Buyer. If Buyer fails to so 7 8approve or in good faith disapprove the Preliminary Title Report, or any partthereof, in writing within this period, it shall be conclusively presumed thatBuyer has approved and accepted the Preliminary Title Report in its entirety. 5.2 Title Exceptions. If the Title Company issues any additionalsupplements before Closing that add exceptions to the Preliminary Title Report,Buyer shall have five (5) business days after delivery to Buyer of eachsupplement with copies of all documents referred to in the supplements toapprove or in good faith disapprove these supplements by written notice toSeller and Escrow Holder. If Buyer fails to so approve or in good faithdisapprove such items within this five (5) business day period, it shall beconclusively presumed that Buyer has approved and accepted these supplements. Ifthere are any title exceptions not approved by the Buyer as provided above,Seller shall have the right until the Close of Escrow to have the exceptionsremoved or corrected by the Title Company or to extend the Closing for a periodnot to exceed fifteen (15) days until such exceptions have been removed orcorrected for approval by Buyer. If Seller is unable to have such exceptionsremoved or corrected by the Title Company for approval by Buyer, Buyer may electto either (i) waive such exceptions or disapprovals; or (ii) terminate thisAgreement upon written notice of the termination of this Agreement to Seller andEscrow Holder no later than five (5) days after written notice from Seller thatthe exceptions will not be removed. Buyer's failure to so terminate within thefive (5) business day period constitutes a waiver of Buyer's termination rightsand for this reason such title exceptions shall be deemed approved. If theAgreement is terminated by Buyer as provided above, Escrow Holder shall returnto Buyer the Purchase Price Deposit plus accrued interest and the Escrow shallterminate. Upon such termination Seller shall pay the Escrow costs if Buyer ingood faith disapproves of any condition of title not corrected by Seller. 5.3 Scope of Seller's Title Obligations. Seller shall have the obligationto remove Buyer's title objections in respect to monetary liens created by orthrough Seller, except for unpaid taxes, which are not delinquent.Notwithstanding the above, in the event Seller cannot cure such monetary liensby commercially reasonable action, Seller shall have the right to terminate thisAgreement by providing Buyer and Escrow Holder with written notice of suchtermination. Upon such termination Seller shall pay the Escrow costs and returnthe Purchase Price Deposit to Buyer. 5.4 Effect of Closing. Upon Closing, Buyer shall accept title to theProperty subject to all exceptions approved, deemed approved or waived by Buyeras provided in this Agreement.6. Buyer Investigation of Property. 6.1. Buyer Investigation. a. Buyer shall have the right to conduct and complete aninspection and evaluation of the Property during the Due Diligence Period todetermine if Buyer wishes to purchase the Property. This determination shall bein the sole and absolute 8 9discretion of Buyer for any reason or no reason. Notwithstanding the above,Buyer agrees that Buyer's investigation shall not include the penetration of theground surface of the Property, or of any flooring, exterior walls or roofing,unless Buyer has obtained Seller's prior written consent thereto (which consentshall not be unreasonably withheld or delayed). b. Buyer hereby agrees to indemnify and defend, with counselreasonably satisfactory to Seller, Seller and Seller's agents, employees andofficers, from and against any and all claims, demands, causes of action,damages and costs, resulting directly or indirectly from Buyer's inspection andinvestigation of the Property. c. Prior to commencing any inspection or investigation of theProperty, Buyer shall deliver to Seller evidence of insurance, in form andamount reasonably satisfactory to Seller, maintained by such individuals orentities. 6.2. Due Diligence Materials. Seller has delivered the Due DiligenceMaterials to Buyer and Buyer acknowledges receipt of the same, except for thoseitems listed on Exhibit "H" which are identified as "NOT APPLICABLE." As tothose items and as to the books and records in Seller's possession relating tothe Property, Seller agrees to make its files relating to the Property (otherthan those of a privileged or confidential nature) available for review by Buyerat any time during normal business hours provided Buyer has given Seller atleast one (1) business day prior written notice thereof. 6.3. On-Site Investigation. In addition to the Due Diligence Materialsmade available to Buyer by Seller, Buyer and its consultants shall have theright, if requested, during the Due Diligence Period to enter on the Property,at reasonable times, upon reasonable notice, and in such a manner as to minimizedisturbance to lessees and other occupants of the Property, to conduct anindependent on-site inspection of the Property based on Seller's reasonableentry conditions. Buyer shall be responsible for its own costs incurred duringthe Due Diligence Period and before the Closing. 6.4. Completion of Buyer's Investigation. Upon expiration of the DueDiligence Period, Buyer's investigation of the Property for any and all reasonsin accordance with the terms of this Paragraph 6, including Buyer's review ofthe Due Diligence Materials (hereinafter collectively referred to as "Buyer'sInvestigation") shall be deemed completed for purposes of this Agreement exceptas to matters disclosed by supplements to the Preliminary Title Report inaccordance with Paragraph 5.1, above.7. Representations and Covenants of Seller and Disclaimer. 7.1 Seller hereby make the following representations to Buyer: 9 10 7.1.1 Authority of Seller. Seller has the full right, power andauthority to sell, convey and transfer the Property to Buyer and to performSeller's obligations under this Agreement. 7.1.2 Maintenance During Escrow. Seller shall maintain theProperty until the Closing in its condition as of signing this Agreement,ordinary wear and tear or casualty loss excepted. 7.1.3 Foreign Person. Seller is not a "foreign person" within themeaning of Internal Revenue Code Section 1445 and California Revenue andTaxation Code Section 18662. 7.1.4 Special Assessments or Condemnation. To Seller's knowledge,there are not presently pending (i) any special assessments, except those shownas exceptions on the Preliminary Title Report, or (ii) condemnation actionsagainst the Property or any part. Moreover, to Seller's knowledge, Seller hasnot received notice of any special assessments or condemnation actions beingcontemplated. To Seller's knowledge, there are no existing, proposed, orcontemplated eminent domain proceedings that would affect the Property.Moreover, to Seller's knowledge, Seller has not received any notice of existing,proposed, or contemplated eminent domain proceedings that would affect theProperty. 7.1.5 Streets. To Seller's knowledge, there are no existing,proposed, or contemplated plans to widen, modify, or realign any street orhighway which affects the contemplated size of, use of, or set-backs on theProperty and the Improvements. 7.1.6 Compliance with Laws. To Seller's knowledge, Seller has notreceived information from any governmental authority that the Property is inviolation of any laws, ordinances, rules or regulations of such authority,unless any such violation has been cured. 7.1.7 State of Facts. To Seller's knowledge, Seller has notreceived written notice or written information that any party to any of theLeases or Service Contracts (as each term is defined below) considers a breachor default by Seller to have occurred. 7.1.8 Litigation. To Seller's knowledge, Seller is not involved inor aware of pending or threatened litigation which affects the Property.Furthermore, to Seller's knowledge, there are no proceedings pending orthreatened against Seller before any court or administrative agency relating tothe Property which adversely affects the Property, or which is likely toadversely affect Seller's ability to fulfill all of its obligations under thisAgreement and the related documents. 7.1.9 Authority. This Agreement and all other documents deliveredby Seller prior to or at the Close of Escrow (i) do not violate the provisionsof any 10 11agreement to which Seller is a party or which affects the Property, anddo not violate Seller's Articles of Organization or Operating Agreement. 7.1.10 Bankruptcy. No filing or petition under the United StatesBankruptcy Law or any insolvency laws, or any laws for composition ofindebtedness or for the reorganization of debtors has been filed with regard toSeller or any managing member of Seller. 7.1.11 Toxic or Hazardous Waste. To Seller's knowledge, there areno Hazardous Substances located on, under or about the Property, except asotherwise disclosed in any of the environmental reports delivered by Seller toBuyer as part of the Due Diligence Materials. 7.1.12 Seller's Estoppel. To Seller's knowledge, the informationcontained in any Seller's Estoppel Certificate given by Seller to Buyer pursuantto Section 13(b) below shall be true and correct as of the Closing. 7.1.13 Option to Purchase. Except as may otherwise be set forth inany of the Leases, to Seller's knowledge, no tenant of the Property has acontractual right or option to purchase the Property. 7.1.14 Commissions. To Seller's knowledge, except for anycommissions which may be payable under any of the Leases upon occupancy of therespective premises by the applicable tenant, there are no unpaid brokeragecommissions which are currently due and owing as of the date of this Agreementin connection with any of the Leases. To Seller's knowledge, the onlycommissions which are payable under any of the Leases upon occupancy relate tothe lease of Suite 290 (by Multaler) and Suite 240 (by Buyer). 7.1.15 General Disclaimer. Except as expressly provided in arepresentation, warranty or statement of Seller in this Agreement, Seller makesno representation or warranty as to the accuracy of any document, certificate orschedule furnished or to be furnished to Buyer pursuant to this Agreement, andSeller makes no such warranty or representation as to whether such document,certificate or schedule contains or will contain any untrue statement ofmaterial fact or omits or will omit to state a material fact thereby making thestatements or facts contained therein materially misleading. 11 12 7.2. Seller agrees as follows: 7.2.1 Tenant Leases. Seller shall not modify, cancel, or amend anyLease or enter into any new lease between the date of this Agreement and the endof the Due Diligence Period without notifying Buyer in writing of such action(which notice shall be delivered on or before the earlier of five (5) daysfollowing such action or the end of the Due Diligence Period) and Seller shallnot modify, cancel or award any Lease between the end of the Due DiligencePeriod and the Close of Escrow without Buyer's written approval, which shall notbe unreasonably withheld (and which shall be given or denied within three (3)business days following Seller's request therefor; with Buyer's approval beingdeemed given if Buyer fails to timely respond within such three (3) business dayperiod). 7.3 Limitations. The foregoing representations of Seller are true as ofthe date of this Agreement and as of the Closing and shall survive therecordation of the Deed and Close of Escrow for a period of twelve (12) months.Seller's representations are for the exclusive benefit of Buyer and Buyer'sassignees and shall not be for the benefit of any other Person.8. Representations of Buyer and Reliance. 8.1 Representations. Buyer hereby makes the following representations toSeller: 8.1.1 Authority of Buyer. It has full right, power and authorityto purchase the Property from Seller under this Agreement and to perform Buyer'sobligations under this Agreement including the financial capacity to performthis Agreement. 8.2 Limitations. The foregoing representations are true as of the date ofthis Agreement and shall be true as of the Closing.9. Buyer's Right To Terminate. 9.1 Contingency For Buyer's Property Investigation. In addition toBuyer's right to terminate this Agreement as provided in Section 5, 15 and 16,if Buyer's Investigation discloses any condition or circumstance about theProperty and Improvements that is unsatisfactory to Buyer during the DueDiligence Period, Buyer shall promptly notify Seller and Escrow Holder inwriting of all facts and circumstances regarding such conditions and, at Buyer'selection, Buyer may in its sole and absolute discretion either (i) terminatethis Agreement and recover the Purchase Price Deposit plus accrued interest fromEscrow; or (ii) waive such conditions or circumstances and this Agreement shallcontinue to the Close of Escrow in accordance with its terms and conditions.Except as otherwise provided in this Agreement, Buyer's right to terminate asprovided above shall expire the last day of the Due Diligence Period. Buyershall exercise the right to terminate by giving Seller and Escrow Holder 12 13written notice of the unconditional termination of this Agreement before theexpiration of the Due Diligence Period. Failure to so exercise this right on orbefore that date shall be deemed a waiver of the right to terminate for thiscontingency. 9.2 Return of Due Diligence Materials. If this Agreement is terminated asprovided in this Agreement, Buyer shall promptly deliver to Seller all originalcopies of the Due Diligence Materials provided by Seller to Buyer and copies ofall Buyer consultant reports and other documents prepared by or for Buyer thatpertain to the Property and Buyer's Investigation (hereinafter collectivelyreferred to as "Consultant Reports"). 9.3 Escrow Termination. Upon receipt of Buyer's written notice toterminate as provided above, Escrow Holder shall terminate the Escrow and returnthe Purchase Price Deposit to Buyer and Buyer shall pay all costs of Escrow, ifany. 9.4 Buyer Remedies. In the event Seller shall breach or be in default ofany of the terms and conditions of this Agreement, Buyer, prior to the pursuitof any other remedy, provisional or otherwise, shall arbitrate such matter inaccordance with Section 17 hereof. In the event that Buyer shall elect to closeEscrow with knowledge of any breach or default by Seller, then in such an event,Buyer shall be deemed to have waived such breach or default, and further waivedany right to seek damages or other remedy thereafter. 9.5 SELLER'S DEFAULT. IF SELLER DEFAULTS UNDER THIS AGREEMENT AND FAILSTO COMPLETE THE PURCHASE AS PROVIDED HEREIN, THEN BUYER SHALL BE ENTITLED, ASITS SOLE AND EXCLUSIVE REMEDY, WHETHER AT LAW OR IN EQUITY, EITHER (A) TOTERMINATE THIS AGREEMENT AND RECOVER THE PURCHASE PRICE DEPOSIT OR (B) IN LIEUOF TERMINATING THE AGREEMENT AND RECOVERING THE PURCHASE PRICE DEPOSIT, BUYERSHALL BE ENTITLED TO PURSUE SPECIFIC PERFORMANCE OF THIS AGREEMENT WITHOUT RIGHTTO ANY DAMAGES OR OTHER EQUITABLE RELIEF WHATSOEVER, BUT ONLY IF BUYER DEPOSITSWITH ESCROW HOLDER THE CASH BALANCE OF THE PURCHASE PRICE (OR EVIDENCE A LOANCOMMITMENT FOR SUCH CASH BALANCE OR FINANCIAL STATEMENTS EVIDENCING BUYER'SABILITY TO FUND SUCH CASH BALANCE), WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THESCHEDULED CLOSING DATE, TOGETHER WITH ALL CLOSING DOCUMENTS REQUIRED HEREUNDERFROM BUYER AND BUYER FILES SUCH SPECIFIC PERFORMANCE ACTION WITHIN THIRTY (30)DAYS FOLLOWING THE SCHEDULED CLOSING DATE. BUYER SHALL NOT BE ENTITLED TO RECORDA LIEN OR LIS PENDENS AGAINST THE PROPRETY OTHER THAN IN CONNECTION ANDCONCURRENTLY WITH THE FILING OF SUCH SPECIFIC PERFORMANCE ACTION./s/ SO /s/ Illegible ------------------------ ------------------------- 13 14SELLER'S INITIALS BUYER'S INITIALS10. Confidentiality. 10.1 Confidentiality of Due Diligence Materials. Buyer acknowledges andagrees that the Due Diligence Materials are confidential business documents ofSeller except for those documents that are available in public records. 10.2 Acknowledgment. Buyer shall instruct each of its employees, agents,contractors and consultants and any other person or firm performing consultingand/or legal services in connection with the purchase of the Property beforeClosing that the Due Diligence Materials and Consultant Reports are confidentialbusiness documents of Seller, and shall not be disclosed to any third personwithout the prior approval of Seller. 10.3 Post Closing Confidentiality. After Closing, Buyer may use any DueDiligence Materials in its possession or the possession of any Buyer'sconsultants as of the Close of Escrow as Buyer deems necessary and withoutSeller's prior approval.11. Escrow. 11.1 Escrow Holder Performance. Escrow Holder is authorized andinstructed to conduct the Escrow in accordance with this Agreement and ExhibitB, applicable law, and customary escrow practice in Southern Californiaincluding any reporting requirements of the Internal Revenue Service. EscrowHolder shall close the Escrow by recording the Deed and such other documentsrequired to be recorded and by disbursing the funds and documents in accordancewith this Agreement and Exhibit B. Escrow Holder shall not prepare any furtherescrow instructions restating or amending this Agreement unless specificallyinstructed by the Parties. 11.2 Compliance with Notices, Demands or Changes. Escrow Holder shall notcomply with any notice, demand or change of the Escrow Instructions unless suchnotice, demand or change is signed by authorized representatives of both partiesor of one Party if the terms of this Agreement state that such notice may beprovided solely by such one party. 11.3 Deliveries Into Escrow. No later than 11:00 A.M. on the business dayprior to the Closing Deadline; (i) Buyer shall deliver to Escrow Holder, incertified funds or by wire transfer, all funds necessary to Close the Escrow inaccordance with the terms of this Agreement; and (ii) Seller and Buyer shallalso each deliver to Escrow Holder, all documents necessary on the part of eachparty to comply with this Agreement and as necessary for the Escrow Holder toclose the Escrow in accordance with terms of this Agreement. These documentsinclude, without limitation, the following documents: 14 15 (a) Deed. Seller will provide a duly executed and acknowledgeddeed (the "Deed") in recordable form conveying the Property to Buyer as setforth in Exhibit C. Seller shall execute and acknowledge a deed as providedherein and Seller shall deliver the Deed to the Escrow Holder before the ClosingDeadline. (b) Title Policy. Escrow Holder will provide to Buyer at Seller'ssole cost a standard CLTA Owner's title insurance policy in the amount of thePurchase Price. If Buyer wishes to obtain an ALTA Owner's title insurance policyand/or any endorsements to the title policy, Buyer shall at its sole cost andexpense and without delay to the Closing comply with all requirements of theTitle Company for issuance of an ALTA Owner's title policy and/or anyendorsements to the title policy. Buyer shall provide the Title Company with anALTA survey of the Property, if required, at Buyer's expense, in a formsatisfactory to the Buyer and the Title Company. Buyer shall pay all titleinsurance costs and expenses in excess of the cost of the standard CLTA Owner'stitle insurance policy. The actual Owner's title insurance which is issued toBuyer by the Title Company is hereinafter referred to as the "Title Policy." (c) Non-Foreign Affidavits. Seller will provide duly executedNon-Foreign Affidavits pursuant to Section 1445 of the Internal Revenue Code, asamended, and Section 18662 of California Revenue and Taxation Code. (d) General Assignment. Seller and Buyer will provide a fullyexecuted General Assignment (hereinafter, the "General Assignment") in the formset forth in Exhibit D attached hereto with respect to the intangible propertyrelating to the Property and the Improvements described therein including,without limitation, all approvals, permits, plans, maps, applications,subdivision rights, licenses, systems, meters, sewer connections and otherproperty located on or attached to the Property and any Improvements remainingas of the Close of Escrow. (e) Assignment and Assumption Agreement. Seller and Buyer willprovide a fully executed Assignment and Assumption Agreement (hereinafter, the"Assignment and Assumption Agreement") in the form set forth in Exhibit Eattached hereto. (f) Bill of Sale. Seller will provide an executed Bill of Sale(the "Bill of Sale") in the form set forth in Exhibit "I" attached hereto. (g) Seller's Deposits. Seller shall furthermore deposit intoEscrow the following: (i) Plans. The original plans and specifications relating to the Property, to the extent in Seller's actual possession; (ii) Leases. The original Leases, to the extent in Seller's actual possession; and 15 16 (iii) Certificates of Occupancy. The original certificates of occupancy, to the extent in Seller's actual possession. (iv) Additional Items. All general ledger records, worksheets relating to CAM charges, original vendor invoices and tax bills, to the extent in Sellers' actual possession and solely relating to the Property. (h) Proof of Authority. Proof of the authority and authorizationof Buyer and Seller to enter into and complete performance of this Agreementincluding proof of the power and authority of the persons signing and/ordelivering any instruments, documents, or certificates on behalf of the partiesto act for and bind each party as reasonably required by the Title Company,Escrow Holder, Buyer, or Seller. 11.4 Close of Escrow. As used in this Agreement, "Close of Escrow" meansthe recordation of the Deed and in the official records of Los Angeles County,State of California. Escrow Holder shall complete the Closing on or before theClosing Deadline if it has received all the cash funds and documents required tobe delivered into Escrow by Buyer and Seller and if all of the conditions toClosing specified in this Agreement or the Escrow Instructions have beensatisfied. Right to possession of the Property shall transfer to Buyer at theClose of Escrow, subject to Buyer's rights of early entry and investigation setforth herein, and the rights of tenants-in-possession, and further subject tothe exceptions contained in the Title Policy. 11.5 Recordation and Distribution. To Close the Escrow, the Escrow Holdershall do the following: (i) cause the Deed to be recorded by the County Recorderof Los Angeles County and pay any real estate transfer taxes; (ii) deliver toBuyer the CLTA Owner's title policy or ALTA Owner's title policy if requested byBuyer, and the General Assignment, Bill of Sale, and Assignment and AssumptionAgreement, and Seller's Non-Foreign Affidavit; (iii) pay Buyer any funds inexcess of the Purchase Price and Buyer's share of costs and prorations which areproperly refundable to Buyer; and (iv) concurrently deliver to Seller cash fundsin the amount of the Purchase Price, less or plus the net debit or credit toSeller by reason of the prorations and allocation of Escrow costs and otheradjustments provided for in this Agreement or other instructions to the EscrowHolder. 11.6 Escrow Prorations. (a) Proration Process. All taxes, assessments, improvement bondsand other similar expenses, if any, affecting the Property shall be prorated asof 12:01 a.m. on the day of Closing in accordance with the following provisions.For calculating prorations, Buyer shall be deemed to have title to the Propertyfor the entire day upon which Closing occurs. Any apportionments and prorationswhich are not expressly provided for below shall be made in accordance withcustomary escrow practice in Southern California. Escrow Holder shall prepare anagreed schedule of 16 17tentative adjustments no later than two (2) days before Closing for submissionto Buyer and Seller. These adjustments, if and to the extent known and agreed bythe parties, shall be paid by Buyer to Seller if the prorations result in netcredit to Seller or by Seller to Buyer if the prorations result in a net creditto the Buyer by increasing or reducing the cash to be paid by Buyer throughEscrow at Close of Escrow. Any adjustments not determined or agreed upon as ofClosing shall be paid by Buyer to Seller, or by Seller to Buyer, as the case maybe, in cash as soon as practicable after the Closing. (b) Real Estate Taxes. All nondelinquent real estate taxes,assessments and improvements bonds due and payable on the Property shall beprorated as of the date of Closing based on the actual current Los AngelesCounty tax bill. After Closing, Buyer shall be solely liable and responsible forany real estate taxes and assessments except to the extent such taxes areattributable to the Property before Closing. All real estate tax assessmentswhich are or may become a lien against the Property arising out of Seller'sownership, use or development of the Property prior to Closing, excludingassessments arising out of Buyer's ownership, use or development of theProperty, shall be paid by Seller to be prorated as of the Closing. (c) Utilities. As of the Closing, all outstanding and/or unpaidassessments for sewer and charges for consumption of electricity, water and gas(the "Utility Charges") shall be the responsibility of Seller to be prorated asof the Closing. Seller shall make a reading of all utility meters as of theClosing and report them to Buyer within thirty (30) days after the Closing.Buyer shall be responsible for and pay all such Utility Charges, and sewerassessments after the Closing and all such Utility Charges shall be prorated asof the Close of Escrow accordingly. (d) Security Deposits. Buyer shall be credited and Seller shall becharged with any security deposits and advanced rentals in the nature ofsecurity deposits made by the lessees under the Leases, except to the extentsame have been applied in accordance with the terms of said Leases. (e) Rentals. Buyer shall be credited and Seller shall be chargedwith rentals and other payments, including "Percentage Rent" and operating costpass-throughs, actually paid by lessees, licensees, concessionaires and otherpersons using or occupying the Property or any part thereof, for or inconnection with such use or occupancy, for periods subsequent to the Close ofEscrow. However, Buyer shall not be obligated to make any payment or give anycredit to Seller on account of, or by reason of, any rental or other paymentswhich are unpaid as of the Closing Date, but shall be required merely to turnover to Seller its share of the same if, as and when received by Buyer. Allpayments received by Buyer from a lessee, licensee, concessionaire or otherperson shall be applied against the most delinquent obligation or obligations ofthe payor. Buyer hereby agrees to utilize reasonable commercial efforts tocollect such delinquent sums. 17 18 (f) Leasing Commissions and Tenant Improvements. Commissions ofleasing and rental agents and tenant improvement allowances for any Leasesentered into prior to November 1, 2000, whether in respect to base lease term,future expansions, renewals, or otherwise, shall be paid in full at or prior tothe Closing by Seller, without contribution or proration from Buyer (except thatSeller shall have no responsibility for the payment of commissions which are notdue and owing as of the Closing [including any commissions due under any of theLeases upon occupancy where the tenant has not occupied its premises as of theClosing] or which relate to any future expansion or lease renewal which occursafter the Closing, nor shall Seller be responsible for the payment of any tenantimprovement allowance which is not due and owing as of the Closing, and Buyershall be solely responsible for the same). Commissions of leasing and rentalagents and tenant improvement allowances for any Leases entered into on orsubsequent to November 1, 2000, in accordance with Paragraph 18.2, whether withrespect to base lease term, future expansions, renewals, or otherwise, shall beprorated between Seller and Buyer based upon the portions of the lease termwhich occur prior to (which shall be the obligation of Seller) and after (whichshall be the obligation of Buyer) the Closing. Notwithstanding anything to thecontrary contained herein, Seller is responsible for all commissions and tenantimprovement allowances with respect to the lease of Suite 175 in the Property(containing approximately 3,341 rentable square feet). Seller shall provideBuyer with a credit at the Closing in the amount of any tenant improvementallowance which remains due, but unpaid by Seller as of the Closing Date withrespect to the lease of Suite 175. (g) Post Closing Matters. Any item to be prorated that is notdetermined or determinable at the Closing shall be promptly adjusted by theParties by appropriate transfer payments outside of Escrow when the amount dueis determined after the Close of Escrow. 11.7 Escrow Costs and Expenses. (a) Seller Costs. Seller shall pay (i) all premiums for thestandard CLTA Owner's title policy in the amount of the Purchase Price; (ii)one-half (1/2) of all Escrow fees and costs; (iii) Seller's share of the aboveprorations; and (iv) fifty percent (50%) of all documentary transfer taxes. (b) Buyer Costs. Buyer shall pay (i) the ALTA portion of titleinsurance premiums for the standard ALTA Owners title policy and the cost of anyendorsements to such policy requested by Buyer; (ii) all document recordingcharges and fifty percent (50%) of all documentary transfer taxes; and (iii)one-half (1/2) of all Escrow fees and costs. (c) Professional Fees. Buyer and Seller shall each pay the legaland professional fees of any agents and consultants retained by them as incurredby Buyer and Seller respectively. All other Closing costs and expenses shall beallocated 18 19between Buyer and Seller in accordance with the customary escrow practice inSouthern California. (d) Tax Transfer. Unless requested by Buyer to the contrary,Escrow Holder shall affix documentary transfer tax amounts before therecordation of the Deed. (e) Withholding Tax. Seller shall deliver to the Escrow Holder aduly executed California Form 590 that exempts Seller from any withholding taxon the Purchase Price under Section 18662 of the California Revenue and TaxationCode.12. Seller's Conditions to Closing. Close of Escrow and Seller's obligation toperform under this Agreement are conditioned upon the full performance by Buyeror waiver by Seller at the Closing of all of the following: (a) Buyer shall have deposited all documents and funds into Escrow asrequired by this Agreement and the balance due in the total amount of thePurchase Price; (b) Buyer shall have paid into Escrow any other sums required as providedin this Agreement; (c) All Buyer representations set forth in this Agreement shall be trueand correct in all material respects as of Closing; and, (d) Seller shall not have terminated this Agreement pursuant to the termsof this Agreement. 12.1 Waiver. All of the above conditions are for the exclusive benefit ofSeller and may be waived by Seller at any time, provided that any waiver to beeffective must be in writing duly signed by Seller and delivered to EscrowHolder and Buyer. Escrow Holder shall assume that Buyer representations are trueand the conditions set forth in Section 12(c) are satisfied or waived unless itreceives written notice to the contrary from Seller before Closing. Seller'sconsent to Closing shall constitute a waiver by Seller of any unsatisfiedconditions provided that such waiver shall not waive Buyer's obligations tocause such conditions to be satisfied promptly after the Closing.13. Buyer's Conditions to Closing. Close of Escrow and Buyer's obligations toperform under this Agreement are conditioned upon the full performance by Selleror waiver by Buyer at the Closing of all of the following: (a) The Deed executed by Seller, and in recordable form, shall have beendeposited into Escrow together with other documents which Seller is required todeposit in the Escrow; 19 20 (b) Tenant Estoppel Certificates and Tenant Subordination Agreements.Seller shall use reasonable efforts to deliver to Buyer, not more than thirty(30) days and not less than ten (10) days prior to the Close of Escrow (i) acompleted, executed tenant estoppel certificate (the "Estoppel Certificates")from each tenant at the Property, substantially in the form attached hereto asExhibit "F", or on a different form approved by Seller, and (ii) a subordinationagreement (the "Subordination Agreements"), executed and notarized in recordableform, from each tenant at the Property on the most recent Subordination,Non-Disturbance and Attornment form adopted by the American Institute of RealEstate or on a different form approved by Seller (the "AIR "Subordination").Notwithstanding the preceding sentence, it shall be a condition precedent toBuyer's obligation to purchase the Property (which may be waived by Buyer in itssole discretion) that Seller deliver to Buyer (aa) Estoppel Certificates (the"Required Certificates") from both (x) all tenants (other than Buyer) who, atthe Close of Escrow, lease more than 5,000 rentable square feet of space at theProperty ("Major Tenants"), and (y) tenants (including the Major Tenants) who,at the Closing Date, in the aggregate, lease at least 75% of the rentable squarefootage of the Property (provided that for purposes of determining the rentablesquare footage of the Property, the rentable square footage leased or subleasedby Buyer in the Property shall not be included), exclusive of month-to-monthtenancies, and (bb) Subordination Agreements (the "Required Agreements") fromboth (x) all Major Tenants (other than Buyer), and (y) tenants (including theMajor Tenants) who, at the Closing Date, in the aggregate, lease at least 75% ofthe rentable square footage of the Property (provided that for purposes ofdetermining the rentable square footage of the Property, the rentable squarefootage leased or subleased by Buyer in the Property shall not be included),exclusive of month-to-month tenancies. If Seller is unable to deliver a RequiredCertificate or Required Agreement prior to the Closing Date, Seller may elect,by written notice to Buyer, to either (1) subject to Buyer's willingness toaccept Seller Estoppel Certificates (in Buyer's sole and absolute discretion),close the transaction in accordance with the terms and conditions of thisAgreement by providing to Buyer, Seller Estoppel Certificates, as defined below,sufficient, when combined with Estoppel Statements executed by Tenants, torepresent at least 75% of the rentable square footage of the Property (providedthat for purposes of determining the rentable square footage of the Property,the rentable square footage leased or subleased by Buyer in the Property shallnot be included), as provided above, or (2) extend the Closing Date for up tothirty (30) days (the "30 Day Period") to enable Seller to obtain and deliver toBuyer the Required Certificates and Required Agreements. If Seller elects todelay the Closing Date for the 30 Day Period and Seller fails to deliver theRequired Certificates or the Required Agreements by the end of such 30 DayPeriod, Buyer may elect, by written notice to Seller, to either (xx) close thetransaction in accordance with the terms and conditions of this Agreement, or(yy) terminate the transaction (and receive a full refund of the Purchase PriceDeposit). If Buyer fails to deliver a written notice to Seller specifying one ofthe foregoing courses of action within three (3) business days following the endof the 30 Day Period, such inaction shall be deemed Buyer's election to acceptthe Property and proceed to the Closing in a timely manner. Prior to deliveringthe Estoppel Certificates and Subordination Agreements to the tenants, Sellershall first deliver the same to the Buyer for review 20 21and approval. Buyer shall have three (3) business days after the receipt of eachsuch unexecuted Estoppel Certificate and Subordination Agreement to approve ordisapprove the same. After Seller has obtained the executed EstoppelCertificates and Subordination Agreement from any tenant, Seller shall againdeliver the same to Buyer for review and approval. Buyer shall have three (3)business days after the receipt of each such executed Estoppel Certificate andSubordination Agreement to approve or disapprove the same (provided, however,that Buyer may only disapprove a tenant executed Estoppel Certificate orSubordination Agreement if it (dd) contains information materially inconsistentwith the unexecuted draft of the same previously approved by Buyer, (ee) allegesa default under the applicable lease, or (ff) discloses a material disputebetween the landlord and tenant in connection with the applicable lease). A copyof the Seller Estoppel Certificate is attached hereto as Exhibit "G."Notwithstanding any other terms herein, the AIR Subordination shall be utilizedby Seller, and shall be deemed approved by Buyer, unless, prior to the end ofthe Due Diligence Period, Buyer shall provide Seller with an alternativeSubordination Agreement form reasonably acceptable to Seller. (c) The Title Company shall be prepared to issue an ALTA Owner's policyto Buyer subject to the conditions of title approved or waived pursuant toSection 5 (provided that this condition shall be deemed satisfied unless thefailure to issue any ALTA policy results from the issuance by the Title Companyof a supplemental title report after the end of the Due Diligence Period); (d) Seller shall deliver to the Escrow Holder, in respect to each Owner,a duly executed California Form 590RE that exempts Seller from any withholdingtax on the Purchase Price under Section 18422 of the California Revenue andTaxation Code. (e) Seller shall deliver to the Escrow Holder a FIRPTA certificationunder IRC Section 1445 and California Revenue and Taxation Code Section 18662. (f) All Seller representations set forth in this Agreement shall be trueand correct in all material respects as of Closing; and, (g) Buyer shall not have terminated this Agreement pursuant to theSections 5, 9, 15 or 16 of this Agreement. 13.1 Waiver. All of the above conditions are for the exclusive benefit ofBuyer and may be waived by Buyer at any time, provided that any waiver must bein writing duly signed by Buyer and delivered to Escrow Holder and Seller to beeffective. Escrow Holder shall assume that Seller representations are true andthat the conditions set forth in Section 13(f) are satisfied or waived, and suchconditions shall be deemed satisfied or waived unless Escrow Holder receiveswritten notice to the contrary from Buyer before the Closing. Buyer's consent toClosing shall constitute a waiver by Buyer of any unsatisfied conditions toClosing, provided that such waiver shall not waive Seller's obligations to causesuch conditions to be satisfied promptly after the Closing. 21 2214. SELLER LIQUIDATED DAMAGES. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULTTO DETERMINE, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BESUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THISAGREEMENT. THEREFORE, IF BUYER BREACHES THE OBLIGATION TO PURCHASE THE PROPERTYAND THE SALE DOES NOT CLOSE AS A RESULT OF SUCH BREACH, SELLER SHALL BE ENTITLEDTO LIQUIDATED DAMAGES PAYABLE BY BUYER OR ESCROW HOLDER ON BEHALF OF BUYER TOSELLER IN THE AMOUNT OF THE PURCHASE PRICE DEPOSIT THEN IN ESCROW PLUS ACCRUEDINTEREST THEREON TO THE DATE OF PAYMENT TO SELLER. UPON PAYMENT OF SAID SUMS TOSELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, EXCEPT FORBUYER'S OBLIGATIONS UNDER SECTIONS 6.1(b) AND 18.13 OF THIS AGREEMENT. THISPAYMENT TO SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLERPURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALLNOT BE DEEMED TO CONSTITUTE A FORFEITURE OF PENALTY WITHIN THE MEANING OFSECTION 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION./s/ Illegible /s/ SO------------------------- -------------------------Buyer's Initials Seller's Initials15. Condemnation. If prior to Closing, the Property or any part of the Propertyis taken through the power of eminent domain, then Buyer has the right to electin writing within ten (10) days after Seller's notice of this action to (i)terminate this Agreement by written notice to Seller and Escrow Holder of theunconditional termination of this Agreement within ten (10) days after receiptof such notice from Seller and receive a refund of all monies deposited inEscrow plus accrued interest thereon; or (ii) close the Escrow as provided inthis Agreement and have all eminent domain proceeds payable by reason of suchcondemnation assigned to and paid to Buyer. If Buyer does not so elect toterminate this Agreement, the Escrow shall proceed to Closing as provided inthis Agreement and Seller shall assign to Buyer all eminent domain proceeds,claims, or causes of action. If prior to the Closing, there is a temporary taking through the power ofeminent domain of all or part of the Property, this Agreement will remain infull force and effect and the obligations of the parties shall be extended forthe period of delay caused by this temporary taking; provided, however, afterone (1) month of delay Buyer or Seller shall have the right to terminate thisAgreement upon written notice to the other party and Escrow Holder. If Buyer orSeller elects to terminate this Agreement as provided above, then the PurchasePrice Deposit plus accrued interest thereon shall be paid to Buyer and thisAgreement shall be deemed terminated and each 22 23party shall be relieved of their respective obligations under this Agreement.Seller and Buyer shall each bear one-half of the escrow costs.16. Casualty Loss. 16.1 Notice of Casualty. Between the date of this Agreement and theClosing, Seller shall give Buyer written notice of any fire or other casualtyloss or other occurrence including seismic disturbance at the Property andImprovements, including the amount of such damage or loss. 16.2 Losses. If prior to the Closing the Property or any part thereof isdamaged and a contractor designated by both parties determines in its solereasonable judgment that the cost of repairing such damage is in excess of$250,000, then Buyer has the right to elect in writing within ten (10) daysafter Seller's notice of the occurrence and amount of damage to (1) terminatethis Agreement by written notice to Seller and Escrow Holder within ten (10)days after receipt of such notice from Seller and receive the return of allmonies deposited in Escrow plus accrued interest thereon; or (ii) proceed toClose the Escrow as provided in this Agreement, in which event Seller shallassign to Buyer all of Seller's right, title and interest in and to anyinsurance proceeds resulting from such damage. If prior to the Closing, the Property and Improvements or any partthereof is damaged and a contractor designated by both parties determines in itssole reasonable judgment that the cost of repairing such damage is less than$250,000.00, Seller shall, at Seller's election, (a) repair or replace thedamaged Property and Improvements at its sole cost and expense before Closing or(b) assign to Buyer all of Seller's right, title and interest in and to anyinsurance proceeds resulting from such damage, and, in addition thereto, creditto Buyer, at the Closing, the difference between the cost of repairing thedamage, determined above, and the amount of Seller's insurance proceeds beingassigned pursuant to this paragraph. 16.3 Disputes. All disputes arising under this Section 16, to the extentthat they cannot be resolved by mutual agreement between Seller and Buyer, shallbe resolved as provided in Section 17 of this Agreement before or after Closing.17. Settlement of Disputes. 17.1 Arbitration of Disputes. Any dispute regarding the interpretation,enforcement or performance of this Agreement, the Deed, the General Assignment,the Bill of Sale, or the Assignment and Assumption Agreement shall be decided bybinding and non-appealable arbitration before a single arbitrator pursuant tothe commercial arbitration rules of JAMS. Following a demand for arbitration,the parties shall have ten (10) calendar days to agree upon an arbitrator. Ifthe parties cannot agree upon an arbitrator within such period, then eitherparty may request that JAMS appoint an arbitrator. The decision of sucharbitrator shall be final, and either party may apply to a court of competentjurisdiction for the confirmation thereof. The prevailing party in 23 24such arbitration shall be entitled to reimbursement of its reasonable attorney'sfees and costs, expert witness fees and arbitration fees. Any such arbitrationshall be conducted in Los Angeles County. 17.2 NOTICE: BY INITIALING IN THE SPACE BELOW, EACH PARTY GIVES UP ANYRIGHTS TO HAVE ANY DISPUTE LITIGATED IN A TRIAL COURT AND TO A JURY TRIAL. IFEITHER PARTY REFUSES TO SUBMIT TO THE AGREED ARBITRATION PROCEEDINGS, SUCH PARTYMAY BE COMPELLED TO SUBMIT TO SUCH ARBITRATION PROCEEDINGS UNDER THE AUTHORITYOF THE CALIFORNIA CODE OF CIVIL PROCEDURE. THE PARTIES' AGREEMENT TO THISREFERENCE PROVISION IS VOLUNTARY. THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TOSUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "SETTLEMENT OFDISPUTES" PROVISIONS TO ARBITRATION./s/ Illegible /s/ SO------------------------- ---------------------- Buyer's Initials Seller's Initials18. General Provisions. 18.1 Counterparts. This Agreement may be signed in counterparts, providedthat this Agreement or any counterpart shall be of no force and effect unlessand until Buyer and Seller have both signed this Agreement or a counterpart. 18.2 Use of Land and Improvements. Subject to the provisions of thisAgreement, Seller shall retain the possession and use of the Property until theClose of Escrow in a manner determined by Seller. 18.3 Notices. 18.3.1 Notice to Parties. All notices and demands shall be givenin writing by personal delivery, courier service, Federal Express, or U. S.registered or certified mail postage prepaid return receipt requested. Noticeshall be deemed given as of two (2) business days after deposit into the UnitedStates mail, or in the case of any other acceptable communication, upon deliveryto the addressee. Notices shall be addressed as set forth below for therespective party, provided that if a party gives notice of a change of name oraddress, notices to that party shall thereafter be given as specified in thatnotice. Facsimile communication may be used to expedite communication only. 24 25 To Seller: Pacifica California/Apollo, LLC c/o Pacifica Capital Group, LLC 330 Washington Boulevard, Ste. 300 Marina Del Rey, California 90292 Attn: Andy Carpiac Telephone: (310) 301-4333 Facsimile: (301) 301-4334 with a copy to: Jeffer, Mangels, Butler & Marmaro LLP 2121 Avenue of the Stars, Tenth Floor Los Angeles, California 90067 Attn: Scott M. Kalt, Esq. Telephone: (310) 785-5314 Fax: (310) 203-0567 To Buyer: Skechers USA, Inc. 228 Manhattan Beach Boulevard Manhattan Beach, California 90266 Attn: Philip Paccione, Esq. Telephone: (310) 318-3100 Facsimile: (310) 798-7961 with a copy to: Kirkpatrick and Lockhart 9100 Wilshire Boulevard, Eighth Floor (East Tower) Beverly Hills, California 90212 Attn: William Bernfeld, Esq. Telephone: (310) 273-1870 Fax: (310) 274-8293 18.3.2 Notice to Escrow Holder. Notices shall be sent to theEscrow Holder as follows: To Escrow Holder: Chicago Title Company 700 S. Flower Street Los Angeles, CA 90017 Attention: Amy Hiraheta Telephone: 213-488-4300 Facsimile: 213-488-4384Notices sent to either Party after Escrow is opened shall also be sent to theEscrow Holder. 18.4 Amendment. This Agreement may be amended at any time only by themutually acceptable written agreement signed by authorized representatives ofBuyer and Seller. 25 26 18.5 Binding Upon the Parties. All amendments, changes, and revisions ofthis Agreement, in whole or in part, and made from time to time, shall bebinding upon the parties and their successors or permitted assigns if thedocument is in writing and signed by the Buyer and Seller. 18.6 Assignment; Binding on Successors. Seller shall not assign thisAgreement or any right under it without the prior written consent of Buyer whichBuyer may withhold in its sole and absolute discretion. Any attempted assignmentin violation of this Agreement shall be null and void. Buyer may assign this Agreement to an Affiliate. For the purposes of thisparagraph, the term "Affiliate" means an entity that is wholly owned by Buyer. 18.7 Waiver of Conditions or Remedies. The waiver by one party of theperformance of any agreement, condition, or promise under this Agreement shallnot invalidate this Agreement nor shall it be considered a waiver by that partyof any other agreement, condition, or promise under this Agreement. The waiverby either or both parties of the time for performing any act required by thisAgreement shall not constitute a waiver of the time for performing any other actor an identical act required to be performed at a later time. The exercise ofany remedy provided in this Agreement shall not be a waiver of any consistentremedy provided by law, and any provision in this Agreement for a specificremedy shall not exclude other consistent remedies unless they are expresslyexcluded. 18.8 Exhibits. All exhibits to which reference is made are deemedincorporated in this Agreement whether or not the Exhibits are actuallyattached. 18.9 Further Acts. Each party agrees to perform any additional acts whichmay be reasonably necessary to carry out the provisions of this Agreementincluding the signing and delivery of documents specified in this Agreement. 18.10 Severability. If any provisions of this Agreement or any escrowinstructions signed pursuant to this Agreement are held by a court of competentjurisdiction to be invalid, this determination shall not affect the validity ofthe remaining provisions of this Agreement. 18.11 Time of the Essence. Time shall be of the essence as to all datesand times of performance whether contained in this Agreement or in the EscrowInstructions. 18.12 Recording Documents. Under no circumstances may either Party recordthis Agreement or any amendment thereto or record a memorandum thereof beforeClosing. 18.13 Brokers. Seller and Buyer each agree to indemnify, defend, and holdeach other harmless against any loss, liability, damage, cost, claim or expenseincurred 26 27by reason any brokerage fee, commission or finder's fee alleged to be payablebecause of the formation of this Agreement or any dealings or other acts oromissions of the indemnifying party regarding any broker or other intermediarycompensation for the purchase and sale of the Property. In the event the sale ofthe Property to Buyer is consummated pursuant to the terms hereof, Seller agreesto pay a brokerage commission to Grubb & Ellis and Leonard & Ohren pursuant tothe terms of a separate agreement. 18.14 Publicity. Except for those matters that must be disclosed toperform the Buyer and Seller commitments under this Agreement, the parties agreethat the provisions of this Agreement are confidential business of Buyer andSeller and no press releases concerning the transactions provided for in thisAgreement shall be made by either party before Closing without the prior writtenconsent of the other party which consent may be withheld as the other decides inits sole discretion. 18.15 Applicable Law. This Agreement shall be construed and enforced inaccordance with and its performance shall be governed by the law of the State ofCalifornia including any other federal or local law, regulation or ordinancethat apply as provided in this Agreement. 18.16 Construction. This Agreement has been prepared by Seller and itsprofessional advisors and reviewed by Buyer and its professional advisors.Seller and Buyer and their respective advisors believe that this Agreement isthe result of their negotiation efforts, that it expresses their agreement andthat it should not be interpreted in favor of or against either Buyer or Seller.The Parties further agree that this Agreement will be construed to effectuatethe normal and reasonable expectations of a sophisticated Seller and Buyer. 18.17 Survival of Provisions. The covenants, agreements, representationsand warranties of both Buyer and Seller set forth in this Agreement (includingany certification by Seller pursuant to any Seller Estoppel Certificate), shallsurvive the recordation of the Deed and the Close of Escrow for a period oftwelve (12) months. 18.18 Holidays. Whenever this Agreement provides for a date or period oftime on or before which date certain acts or events are to occur, if such dateor last day of such period falls on a Saturday, Sunday or legal Holiday in theState of California, the date shall be deemed to fall on the next business day. 18.19 Entire Understanding. This Agreement contains the entireunderstanding between the Parties and supersedes any prior understandings orwritten or oral agreements between them regarding the purchase and sale of theProperty. There are no representations, agreements, arrangements orunderstandings, oral or written, between the parties hereto relating to thesubject matter of this Agreement which are not fully expressed in thisAgreement. The parties further intend that this Agreement constitutes thecomplete and exclusive statement of its terms and that no extrinsic 27 28evidence whatsoever may be introduced in any judicial proceeding involving thisAgreement. 18.20 No Obligations to Third Parties. Except as otherwise expresslyprovided herein, the execution and delivery of this Agreement shall not bedeemed to confer any rights upon, nor obligate any of the parties thereto, toany person or entity other than the parties hereto. 18.21 Limitation of Liability. Buyer acknowledges and agrees that neitherthe trustees, shareholders, officers, investment managers, employees, partnersnor advisors of Seller, assume any personal liability for obligations enteredinto by or on behalf of Seller. Notwithstanding any other provision of thisAgreement to the contrary, in no event shall Seller have any liability forspeculative, special, consequential, punitive, or any other damages other thanactual damages under this Agreement and in no event will Seller's liability foractual damages exceed the sum of $1,000,000.00.IN WITNESS WHEREOF, parties have executed this Agreement together with theExhibits attached hereto by their duly authorized signatories effective as ofthe day and year last written below.SELLER: BUYER:PACIFICA CALIFORNIA/APOLLO, LLC, a SKECHERS USA, INC.,California limited liability company a Delaware corporationBy: /s/ STEVEN OHREN By: /s/ DAVID WEINBERG -------------------------------- ------------------------------------- Steven Ohren, Manager Name: David Weinberg ----------------------------------- Its: CFO ------------------------------------ By: /s/ PHILIP C. PACCIONE ------------------------------------- Name: Philip C. Paccione ----------------------------------- Its: VP of Business Affairs ------------------------------------Dated: ___________, 2000 Dated: 11-13, 2000Place: Los Angeles, CA Place: Los Angeles, CA 28 29 EXHIBIT A Legal Description of the PropertyParcel A as created by that certain Declaration of Lot Consolidation recordedOctober 29, 1987, Instrument No. 87-1732114, Official Records, also describedas:LOTS 11, 12 AND 13 IN BLOCK 2 OF CARNATION VILLA TRACT, IN THE CITY OF MANHATTANBEACH, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED INBOOK 7 PAGE 42 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.EXCEPT THEREFROM THAT PORTION OF SAID LOT 11, DESCRIBED AS FOLLOWS:BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 11, THENCE NORTH 89 DEGREES 45MINUTES 30 SECONDS WEST ALONG THE NORTH LINE OF SAID LOT 11 A DISTANCE OF 12.00FEET; THENCE SOUTH 00 DEGREES 09 MINUTES 00 SECONDS WEST, A DISTANCE OF 199.96FEET TO A POINT OF CURVATURE; THENCE THROUGH A CURVE, CONCAVE TO THE NORTHWEST,HAVING A RADIUS OF 25 FEET, A DISTANCE OF 39.31 FEET TO A POINT OF TANGENCY ONTHE SOUTH LINE OF SAID LOT 11; THENCE SOUTH 89 DEGREES 45 MINUTES 30 SECONDSEAST ALONG THE SOUTH LINE OF SAID LOT 11 A DISTANCE OF 37.04 FEET TO THESOUTHEAST CORNER OR SAID LOT 11; THENCE NORTH 00 DEGREES 09 MINUTES 00 SECONDSEAST ALONG THE EAST LINE OF SAID LOT 11 A DISTANCE OF 225.00 FEET TO THE POINTOF BEGINNING. 1 30 EXHIBIT B ESCROW INSTRUCTIONSTo: Chicago Title Company Escrow No._________________________________________________________________ _____________, 2000The attached Agreement for Purchase and Sale of Real Property and EscrowInstructions dated November 13, 2000 (herein referred to as the "Agreement") byand between Pacifica California/Apollo, LLC, a California limited liabilitycompany, collectively as Seller, and Skechers USA, Inc., a_________________________, as Buyer, together with the escrow instructionsprovided below are your escrow instructions. You as Escrow Holder are authorizedto act thereunder as provided therein. You are only to be concerned with thesections in the Agreement that pertain to the Escrow Holder. All other terms ofthe Agreement are matters between the Buyer and Seller. ARTICLE 1 SPECIAL PROVISIONS1. Upon opening Escrow, Buyer shall deposit the Purchase Price Deposit in the principal amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) by cash, bank cashier's check, or wire transfer in immediately available funds.2. Except as otherwise provided in the Agreement, if written objection is filed with you by Buyer or Seller regarding any Escrow Holder action, you are directed to hold all money and documents in this escrow and take no further action until otherwise directed by either the mutual written instructions of Buyer and Seller or by final order of a court of competent jurisdiction or the Referee under Article 17 of the Agreement.3. You shall establish an interest bearing escrow account for receipt of any funds or payments you receive from Buyer or Seller as provided in the Agreement.4. All sums to be paid by you to the Seller upon Closing shall be by wire transfer in immediately available funds for credit to the following account: Account Name: Account Number: Bank Name: Bank Location: ABA No.: 1 31 GENERAL PROVISIONS1. These escrow instructions embody, by reference above, those certaininstructions executed by and between Seller and Buyer, as identified in thePurchase and Sale Agreement ("Agreement")2. In the event of any conflict or inconsistency between these escrowinstructions and those in the Agreement, these instructions shall fully controlas between all parties to this escrow and the escrow holder.3. The escrow holder is fully empowered by the parties hereto to decline toperform some of the acts it is or may be instructed to perform under Agreement,if in the considered opinion and sound judgment of the escrow holder those actsare too onerous, hazardous, or not with the ordinary scope of the escrowholder's activity.4. The parties hereto fully understand the total responsibility and agencyauthority of the escrow holder is limited to those actions requiring thatperformance and compliance by the principals that are identified as conditionsprecedent to the recording of the documents and delivery of the instruments tothe respective parties entitled thereto, and the disbursement of funds in escrowas a consequence of said closing. The parties hereto, by execution of theseinstructions acknowledge that the escrow holder assumes no responsibility orliability for the supervision of any act or the performance of any conditionwhich is a condition subsequent to the closing of this transaction.5. Any provisions of the Agreement notwithstanding, the escrow holder shall havethe right and authority to withhold any action and require the written consentof all necessary parties if, in the judgment of the escrow holder, such actioncalls or appears to require the use of discretionary judgment by the escrowholder.6. "Close of Escrow" shall mean the day the deed and other papers are filed forrecord. 7. All adjustments and/or prorations are to be made on the basis of a thirty(30) day month, unless escrow holder is otherwise instructed in writing. Escrowholder is to use the information contained in the last available tax statement;rental statement as furnished by the Seller and beneficiary's statement providedby the Lender and fire insurance policies delivered into escrow as the basis ofprorations.8. Funds deposited into this escrow are to be maintained in a Federally Insuredtrust account, and any escrow related services provided to escrow holder by anydepository bank or savings and loan association are hereby consented to andapproved.9. Proceeds of this escrow are to be disbursed by your check payable to theparties as their names are signed hereto, and your checks and documents may bemailed to the addresses set forth in these instructions. 2 3210. If for any reason funds are retained or remain in escrow after the closingdate, you are to deduct therefrom a reasonable monthly charge as custodianthereof of not less than Ten Dollars ($10.00) per month.11. You are instructed to furnish any broker or lender identified with thistransaction, or anyone acting on behalf of said lender, any informationconcerning this escrow, copies of all instructions, amendments, and statementsupon request.12. If the conditions of this escrow have not been complied with at the timeprovided herein, you are nevertheless to complete the same as soon as theconditions (except as to time) have been complied with, unless I shall have madewritten demand upon you for the return of money and/or instruments deposited byme. Either principal hereunder claiming to exercise the right of revocation ofyour agency as escrow holder of the escrow shall file notice and demand forrevocation with your office, in writing, in duplicate. You shall promptly mailone copy of such writing to the other principal at his address stated herein.Unless written objection thereto shall be filed in your office by such otherprincipal within ten (10) days, exclusive of Sundays and legal holidays;thereafter you are instructed to comply with such notice and demand upon paymentof your accrued charges. In the event that such written objection shall befiled, you are authorized, but not obligated, to hold all money and instrumentsin this escrow pending agreement of the principals or order of a court ofcompetent jurisdiction.13. No notice, demand or change of instructions, except a demand for revocationmade in accordance with the foregoing paragraph, shall be of any effect in thisescrow unless given in writing by all parties affected thereby.14. You shall be under no obligation or liability for a failure to inform eitherparty regarding any sale, loan, exchange, or other transaction or facts withinyour knowledge, even though some concern the property described herein providedthey do not prevent your compliance with these instructions, nor shall you beliable for the sufficiency or correctness as to any form, manner of execution,or validity of any instrument deposited into this escrow, nor as to theidentity, authority, or rights of any person executing the same. Your liabilityas escrow holder shall be confined to the things specifically provided for inthe written instructions in this escrow.15. Should you, before or after the close of this escrow, receive or becomeaware of any conflicting demands or claims with respect to this escrow or theright of any of the parties hereto, or any money or property deposited herein oraffected hereby, you shall have the absolute right at your election todiscontinue any or all further acts on your part until such conflict is resolvedto your satisfaction, and you shall have the further right to commence or defendany action or proceedings for the determination of such conflict. All partieshereto, jointly and severally, agree to pay on demand, as well as to indemnifyand hold you harmless from and against all costs, damages, judgments,obligations, liabilities, and expenses of any 3 33kind or nature, including reasonable attorney's fees, and including, but withoutlimiting the generality of the foregoing, a suit of interpleader brought by you,which in good faith, you may incur or sustain in connection with or arising outof this escrow, and you are hereby given a lien upon all of the rights, titles,and interests of each of the undersigned in all escrowed papers and otherproperties and moneys deposited in the escrow to protect your rights and toindemnify and reimburse you under this agreement. In the event you file a suitof inter- pleader, you shall be ipso facto be fully released and discharged fromall obligations further to perform any and all duties or obligations imposedupon you in this escrow.16. Any amended, supplemental, or additional instructions given shall be subjectto the foregoing conditions.17. ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT CHICAGO TITLE COMPANY DOES NOTPROVIDE LEGAL ADVICE NOR HAS IT MADE ANY INVESTIGATION, REPRESENTATIONS, ORASSURANCES WHATSOEVER REGARDING THE COMPLIANCE OF THIS TRANSACTION WITH ANY TAX,SECURITIES, OR OTHER LAWS OF THE UNITED STATES OR THE STATE IN WHICH THETRANSACTION IS CONSUMMATED.The escrow fee is payable upon close of this escrow and is to be divided betweenthe parties as provided in the Agreement.THE FOREGOING TERMS, CONDITIONS, PROVISIONS AND INSTRUCTIONS HAVE BEEN READ ANDARE UNDERSTOOD AND AGREED TO BY EACH OF THE UNDERSIGNED.Seller(s): Buyer(s):-------------------------------- -------------------------------------------------------------- -------------------------------------------------------------- ------------------------------ 4 34 EXHIBIT CRECORDING REQUESTED BYAND WHEN RECORDED MAIL TO:------------------------------------------------------------------------------Attention: ----------------MAIL TAX STATEMENTS TO:same address as above (Above Space For Recorder's Use Only) 1 GRANT DEEDTHE UNDERSIGNED GRANTOR DECLARES:Documentary Transfer Tax is $( ) computed on full value of property conveyed, or( ) computed on full value less value of liens and encumbrances remaining at time of sale( ) City of ______________, __________ County.FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,_______________________, LLC, a California limited liability company("Grantor"), hereby grants to _________________________ ("Grantee"), the realproperty located in the County of _____________, State of California, describedon Exhibit "A" attached hereto ("Property").Dated: _________________, 2000--------------------------- 1 35 EXHIBIT D General Assignment THIS GENERAL ASSIGNMENT ("Assignment") is executed this ___ day of_________, 2000, by and between _________________________ (herein referred to as("Assignor") and _____________________, a _________________________(hereinreferred to as the "Assignee"), with reference to the following: RECITALS A. Assignor has of even date herewith conveyed to Assignee that certainproperty described on Exhibit A attached hereto (herein referred to as the"Property"), pursuant to that certain Agreement of Purchase and Sale of Propertyand Escrow Instructions dated __________, 2000, (the "Sale Agreement") by andbetween Assignor, as "Seller", and ______________, a California ______________,as "Buyer". B. In connection with the conveyance of the Property, Assignor andAssignee intend that Assignor's right, title and interest in and under anyexisting plans, specifications, license, permits, certificates, agreements andother instruments that pertain to the Property to be assigned, conveyed andtransferred to Assignee. NOW, THEREFORE, the parties hereto agree as follows: Governmental Approvals and Certificates. To the extent permissible by law, Assignor hereby assigns, transfers and conveys to Assignee any and all of Assignor's right, title and interest in and under any existing grading and building permits, certificates of occupancy and subdivision maps and other permits, licenses, approvals and certificates that were obtained solely for the Property and that are not used or useful for any business purpose or any other property of Assignor other than the Property (collectively, "Governmental Approvals"). Plans and Specifications. Assignor hereby assigns, transfers and conveys to Assignee any and all of Assignor's right, title and interest in and to all existing maps, plans, specifications and related documents prepared or used by Assignor for the development and construction of any and all improvements located on the Property (collectively, "Plans"). Warranty. Assignor makes no representation or warranty whatsoever regarding the Governmental Approvals or Plans which are assigned, transferred and conveyed to Assignee, and such Governmental Approvals and Plans are assigned hereby without recourse "as is", "where is" and "with all faults" in existing condition as of the 1 36 Closing. ASSIGNOR HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY INCLUDING, WITHOUT LIMITATION, ASSIGNABILITY, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. Successors and Assigns. This Assignment shall inure to the benefit of, and be binding upon, the successors, executors, administrators, legal representatives and assigns of the parties hereto. Governing Law. This Assignment shall be construed under and enforced in accordance with the laws of the State of California. Further Assurances. At no cost or liability to Assignor, Assignor shall (i) cooperate with Assignee to fully vest in Assignee the right, title and interest herein intended to be assigned and (ii) execute and deliver to Assignee and documents, instruments or conveyances reasonably required to accomplish such transfer. If any dispute arises regarding this assignment, this dispute shall be litigated in accordance with Section 17 "Settlement of Disputes" of the Sales Agreement which is incorporated herein by reference.IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignmenteffective as of the date set forth above."Assignor" -------------------------------------"Assignee" ------------------------------------- 2 37 EXHIBIT E ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is madethis _______ day of ____________, 2000, by and between ______________________("Assignor") and _________________________________________ ("Assignee"). WITNESSETH: WHEREAS, Assignor and Assignee are parties to that certainPurchase and Sale Agreement with Escrow Instructions (the "Agreement") dated asof ________ 2000, respecting the sale of certain "Property" (as described in theAgreement). Capitalized terms used herein and not otherwise defined shall havethe meanings ascribed to them in the Agreement. WHEREAS, under the Agreement, Assignor shall assign to Assigneeand Assignee shall assume all of Assignor's right, title and interest in and to(i) the Leases, and (ii) the Service Contracts (defined below). The "ServiceContracts" shall mean any and all management agreements, service contracts,brokerage agreements, art contracts, landscaping contracts, equipment, leases,maintenance, agreements and all other contracts for the provision of labor,services, materials or supplies to or for the benefit of the Property. A list ofthe Service Contracts are set forth on Schedule "1" attached hereto. NOW, THEREFORE, for good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged, Assignor hereby assigns,sells, transfers, sets over and delivers unto Assignee all of Assignor's estate,right, title and interest in and to the Leases and Service Contracts, andAssignee hereby accepts such assignment. By acceptance of this Assignment, Assignee hereby assumes theperformance of all of the terms, obligations, covenants and conditions imposedupon Assignor under the Leases and Service Contracts, accruing or arising on orafter the date hereof (collectively, the "Assigned Obligations"). In the event any party hereto institutes any action or proceedingagainst the other party with regard to this Assignment, the prevailing party insuch action shall be entitled to recover, in addition to the cost of the suit,its actual attorneys' fees. This Assignment shall be binding upon and inure to the benefit ofthe successors, assignees, personal representatives, heirs and legatees of allthe respective parties hereto. 1 38 This Assignment and the obligations of the parties hereunder shallsurvive the closing of the transaction referred to in the Agreement and shallnot be merged therein, shall be binding upon and inure to the benefit of theparties hereto, their respective legal representatives, successors and assigns,shall be governed by and construed in accordance with the laws of the State ofCalifornia applicable to agreements made and to be wholly performed within saidState and may not be modified or amended in any manner other than by a writtenagreement signed by the party to be charged therewith. This Assignment may be executed in counterparts, each of whichshall be an original and all of which counterparts taken together shallconstitute one and the same agreement. IN WITNESS WHEREOF, Assignor and Assignee have executed anddelivered this Assignment as of the day and year first above written. ASSIGNOR: ---------------------------------------- By: ------------------------------------- Its: ASSIGNEE: ---------------------------------------- By: ------------------------------------- Its: ------------------------------- 2 39 SCHEDULE 1 LIST OF SERVICE CONTRACTS 3 40 EXHIBIT F FORM OF TENANT ESTOPPEL CERTIFICATE------------------------------------------------------------------------ Re: __________________ (the "Property") Suite ____________Dear _________:It is our understanding that you are purchasing the ___________________ and, inconnection therewith, have required this certification by the undersigned.Accordingly, the undersigned, as Tenant under that certain lease (the "Lease")dated ___________________, ____ (a copy of which is attached hereto and made apart hereof), made and entered into with __________________________("Landlord"), hereby certifies to you as follows:1. Except as set forth below, Tenant has not assigned, sublet, mortgaged,pledged, hypothecated, encumbered or otherwise transferred all or any part ofTenant's interest in the Lease or the subject premises.2. The term of the Lease commenced on _____________, ____ and expires on___________, _______.3. The Lease is in full force and effect and has not been amended, modified orsupplemented in any way (except as set forth in Paragraph 4 below).4. Attached hereto is a true and complete copy of the Lease. The Lease has(check one) ( ) not been assigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwise transferred, and there are no other agreements, written or oral, between Landlord and Tenant with respect to the Lease or the Premises. ( ) been assigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwise transferred by the following described agreements, copies of which are attached hereto: ------------------------------------------------------------------ ------------------------------------------------------------------ ---------------. 1 415. Tenant has accepted, and is now in full, actual and complete possession ofand is now conducting business in the premises.6. Tenant acknowledges that the Lease will be assigned to _______________ or itsassigns (the "Purchaser").7. The minimum monthly rental under the Lease is $________ and has been paidthrough ____________________. No rent under the Lease has been paid for morethan thirty (30) days in advance of its due date. Tenant's percentage rentalobligation under the Lease is _____________________.8. A security deposit in the sum of $_______________ has been deposited with theLandlord.9. All work required to be performed by the Landlord under the Lease has beensatisfactorily completed and all required contributions by Landlord to Tenant onaccount of Tenant's improvements have been received.10. To the best of Tenant's knowledge, there are no defaults on the part ofLandlord or Tenant under the Lease and no event has occurred and no conditionsexist which with the passing of time or giving of notice would constitute adefault under the Lease by the Landlord or Tenant hereunder.11. Tenant is in full compliance with its obligations under the Lease tomaintain insurance.12. The Lease, amended as noted in Item 4 above, represents the entire agreementbetween Landlord and Tenant as to the premises.All provisions of the Lease and the amendments thereto (if any) referred toabove are hereby ratified by Tenant.This certificate is being made with the knowledge that you may obtain financingto purchase the Property and that you and your lender may rely on therepresentations contained herein.Sincerely,Tenant:---------------------------------------------------------------- 2 42 EXHIBIT G FORM OF SELLER ESTOPPEL CERTIFICATE------------------------------------------------------------------------ Re: __________________ (the "Property") Suite ____________Dear _________:In connection with your purchase of the referenced Property, you have requiredthis certification by the undersigned. Accordingly, the undersigned, as theLandlord under that certain lease (the "Lease") dated ___________________, ____(a copy of which is attached hereto and made a part hereof), made and enteredinto with __________________________ ("Tenant"), hereby certifies to you asfollows:1. Except as set forth below, to Landlord's knowledge and belief, Tenant has notassigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwisetransferred all or any part of Tenant's interest in the Lease or the subjectpremises.2. The term of the Lease commenced on _____________, ____ and expires on___________, ______.3. The Lease is in full force and effect and, to Seller's knowledge and belief,has not been amended, modified or supplemented in any way (except as set forthin Paragraph 4 below.4. Attached hereto is a true and complete copy of the Lease. To Seller'sknowledge, the Lease has (check one) ( ) not been assigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwise transferred. There are no other agreements, written or oral, between Landlord and Tenant with respect to the Lease or the Premises. ( ) been assigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwise transferred by the following described agreements, copies of which are attached hereto: ------------------------------------------------------------ 1 43 ------------------------------------------------------------ ----------------------------------------.5. Tenant has accepted, and to Seller' knowledge and belief, is now in full,actual and complete possession of and is now conducting business in thepremises.6. Landlord acknowledges that the Lease will be assigned to _______________ orits assigns (the "Purchaser").7. The minimum monthly rental under the Lease is $________ and has been paidthrough ____________________. No rent under the Lease has been paid for morethan thirty (30) days in advance of its due date. Tenant's percentage rentalobligation under the Lease is_______________________.8. A security deposit in the sum of $_______________ has been deposited with theLandlord.9. To Landlord's knowledge and belief, all work required to be performed by theLandlord under the Lease has been satisfactorily completed and all requiredcontributions by Landlord to Tenant on account of Tenant's improvements havebeen received.10. To Landlord's knowledge and belief, there are no defaults on the part ofLandlord or Tenant under the Lease and no event has occurred and no conditionsexist which with the passing of time or giving of notice would constitute adefault under the Lease by the Landlord or Tenant hereunder.11. To Landlord's knowledge and belief, Tenant is in full compliance with itsobligations under the Lease to maintain insurance.12. To Landlord's knowledge and belief, the Lease, amended as noted in Item 4above, represents the entire agreement between Landlord and Tenant as to thepremises.All provisions of the Lease and the amendments thereto (if any) referred toabove are hereby ratified by Landlord.This certificate is being made with the knowledge that you may obtain financingto purchase the Property and that you and your lender may rely on therepresentations contained herein.Sincerely, 2 44Landlord:-------------------------------------------------------- 3 45 EXHIBIT H DUE DILIGENCE MATERIALS1. A CURRENT RENT ROLL, CERTIFIED BY THE SELLER TO BE TRUE AND CORRECT AS OF THE DATE ISSUED. -- CURRENT AS OF 10/1/002. A COPY OF ALL LEASES AFFECTING THE PROPERTY, TOGETHER WITH ALL THE AMENDMENTS AND SUPPLEMENTS THERETO. -- SEE ATTACHED LIST3. ANY AND ALL OTHER CONTRACTS COVERING ANCILLARY INCOME. -- SITE LICENSE AGREEMENT WITH EZIAZ, INC.4. A COPY OF INCOME ANd EXPENSE REPORTS RELATING TO THE OPERATION OF THE PROPERTY FOR 1998, 1999 AND 2000 YEAR-TO-DATE. -- BUDGET COMPARISON DATED 1/00-9/00 -- BUDGET COMPARISON DATED 1/99-12/99 -- BUDGET COMPARISON DATED 6/98-12/985. COMMON AREA MAINTENANCE (CAM) CALCULATIONS SHOWING BASE YEAR AMOUNTS FOR ALL TENANTS. -- SPREADSHEET WITH BASE YEAR CALCULATIONS6. RECONCILIATION OF ACTUAL 1999 OPERATING EXPENSES FOR 1999 CAM SCHEDULE. -- CAM REC'S AND 2000 ESTIMATED EXPENSES INDIVIDUAL SHEETS FOR EACH TENANT (DOESN'T INCLUDE CAM REC'S FOR TRADEWINDS ESCROW AND PANTHER SOFTWARE)7. OPERATING BUDGET FOR 2000.8. Tenant ledgers for the past twelve (12) months showing amounts billed, amounts paid and Tenant payment history.9. Tenant improvements and leasing commissions incurred on all leases commencing during the previous twelve (12) months.10. A copy of the most recent tax bill. Please include information on any pending appeals, pending or potential assessments and tax expense amounts included in operation expense amounts for tenants that have Prop. 13 protection, upon property sale. -- Tax bills for 1997, 1998 and 199911. Copies of all monthly utility bills for 1999 and 2000 year-to-date 1 46 -- SCE bills through 10/00 -- Refuse bills through 10/00 -- Water bills for through 10/0012. A copy of all currently effective vendor service, property management or any other contracts that affect the Property. -- Maintenance Agreement with VTS (elevator) -- Maintenance Agreement with Chemco Products -- Maintenance Agreement with Exterminetics -- Maintenance Agreement with Southwest Landscape -- Maintenance Agreement with Temp Tec -- Maintenance Agreement with Pacifica Capital Group -- Listing agreement with Leonard & Ohren dated 3/25/9913. Copy of all insurance policies currently in force on the Property.14. Preliminary Title Report and copies of all underlying documents. -- Prelim Report dated 4/28/0015. A copy of the most recent survey that seller has in its possession. -- ALTA survey dated 10/3/97 -- ALTA survey dated 3/25/9016. A copy of all the available architectural and engineering plans and specifications and all tenant improvement plans which seller has in its possession. -- Available in Pacifica's offices for review17. A copy of any and all Environmental Reports that seller has in its possession. -- Phase I dated 10/2/9718. A copy of any and all soils, site assessment and physical inspection reports that seller has in its possession. -- Seismic Report dated 12/2/9719. All equipment and/or building warranties, e.g., roof, compressors, etc. -- Not applicable. Pacifica's files are available for review.20. A copy of any and all correspondence and documentation to any litigation that may be in process or anticipated. -- Letter from Ken Roberts on behalf of AppleOne/Howroyd-Wright21. A copy of any and all reports or correspondence from any City, County or Federal Governmental Agencies regarding any aspect of the Property or its condition or operation. -- Not applicable. Pacifica's files are available for review. 2 47 EXHIBIT I BILL OF SALE KNOW ALL MEN BY THESE PRESENTS that ___________________________________________ ("Seller"), for good and valuable consideration, thereceipt of which is hereby acknowledged, has sold, granted, assigned, conveyedand transferred to ______________ ("Buyer"), and by these presents does herebysell, grant, assign, convey and transfer to Buyer all of Seller's right, titleand interest in and to the furnishings, equipment and other personal property(the "Personal Property") located on and used in connection with the Property,but specifically excluding the personal property listed on Schedule 1 attachedhereto. Capitalized terms used herein and not otherwise defined shall have themeanings ascribed to them in the Purchase and Sale Agreement with EscrowInstructions dated _________________ between Buyer and Seller. TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns toand for its own use and behalf forever. This Bill of Sale shall be governed by and construed in accordance withthe laws of the State of California. This Bill of Sale shall be without representation or warranty by andwithout recourse to Seller. IN WITNESS WHEREOF, Seller has executed this instrument on this ___ dayof ___________, 200__. 1 48 SCHEDULE 1 TO EXHIBIT INone 2 1 EXHIBIT 10.22(a) FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT WITH ESCROW INSTRUCTIONS This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT WITH ESCROWINSTRUCTIONS (the "Amendment") is dated as of November 29, 2000, by and betweenPACIFICA CALIFORNIA/APOLLO, LLC, a California limited liability company("Seller"), and SKECHERS USA, INC., a Delaware corporation ("Buyer"), withreference to the following facts: RECITALS A. Buyer and Seller entered into that certain Purchase and SaleAgreement with Escrow Instructions dated November 13, 2000 (the "Agreement"). B. Buyer and Seller hereby desire to modify the Agreement inaccordance with the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify,defend and hold harmless Buyer from and against any and all damages, losses andexpenses incurred by Buyer as a direct result of (i) the improper collection bySeller of operating expense payments from any tenants of the Property at anytime prior to the Close of Escrow (but only to the extent (A) of operatingexpense overcharges by Seller to tenants during the calendar year 2000, or (B)no operating expense payments whatsoever were actually due and owing by suchtenants under their respective leases to Seller for such period); and (ii)without limiting Buyer's obligations under Paragraph 11.6(f) of the Agreement,Seller's failure to pay any brokerage commissions relating to leases enteredinto prior to November 1, 2000 which remain due and owing and unpaid as of theClosing. The indemnifications set forth in this paragraph 1 shall survive therecordation of the Deed and the Closing for a period of twelve (12) months. 2. COMMISSIONS. Notwithstanding the terms of Paragraph 11.6(f) of theAgreement to the contrary, Buyer shall have no obligation to pay a brokeragecommission to Leonard & Ohren as representatives of the landlord in connectionwith any future expansions lease renewals or rent increases which occur afterthe Closing, provided that (i) Buyer shall remain obligated to pay suchcommissions to Leonard & Ohren in connection with the lease of Suite 290 [toMultaler] and Suite 240 [to Buyer], and (ii) Leonard & Ohren shall be entitledto any such commissions in connection with its representation of any tenant(s)at the Property. 3. SERVICE CONTRACTS. Paragraph 7.1 of the Agreement is herebymodified by the addition of the following paragraph: "7.1.16 Service Contracts. To Seller's knowledge, other than the service contracts provided to Buyer as part of the Due Diligence Materials or otherwise 2 delivered to Buyer on or before November 29, 2000, there are no service contracts relating to the Property which are not terminable on 30 days (or less notice." 4. TERMINATION OF CONTRACTS. Seller agrees to cause any brokeragelisting agreement with Leonard & Ohren and any management agreement relating tothe Property to be terminated effected as of the Close of Escrow. 5. SELLER'S DEPOSITS. Without limiting the terms of Paragraph 11.3(g)of the Agreement, Seller agrees to deposit into Escrow or otherwise deliver toBuyer as of the Closing originals of all files in Seller's possession whichrelate to the Property (excepting therefrom tax returns, appraisals, analysis,reports or other records which are of a confidential or proprietary nature). 6. BUYER'S CONTINGENCIES. Buyer acknowledges that the Due DiligencePeriod has expired and that Buyer has not elected to terminate the Agreement inaccordance with Paragraphs 5.1, 5.2 or 9.1, except that Buyer shall continue tohave the rights set forth in Section 5.2 with respect to any additional titleexceptions set forth in any supplemental title reports. 7. DEFINED TERMS. Except as expressly defined herein, all capitalizedterms used in this Amendment shall have the meanings given to them in theAgreement. 8. COUNTERPARTS. This Amendment may be executed in any number ofcounterparts, each of which shall be deemed an original, but all of which, whentaken together, shall constitute one and same instrument. 9. NO FURTHER MODIFICATION. Except as expressly amended hereby, theAgreement shall remain unchanged and continue in full force and effect. 10. FACSIMILE. Each party hereto, and their respective successors andassigns shall be authorized to rely upon the signatures of all of the partieshereto on this Amendment which are delivered by facsimile as constituting a dulyauthorized, irrevocable, actual current delivery of this Amendment with originalink signatures of each person and entity; provided, however, that each partyhereto that delivers such facsimile signatures to another party hereto,covenants and agrees that it shall deliver an executed original of the same tothe party(ies) so receiving the previous facsimile signatures within ten (10)days after the delivery of such facsimile signatures. 2 3 IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment asof the date first set forth above.SELLER: BUYER:PACIFICA CALIFORNIA/APOLLO, SKECHERS USA, INC., a DelawareLLC, a California limited liability corporationcompanyBy: /s/ ILLEGIBLE By: /s/ PHILIP PACCIONE ---------------------------------------- -----------------------------Name: 11/30/00 Name: Philip Paccione -------------------------------------- -----------------------------Its: Member/Mgr Its: General Counsel ------------------------------------- ----------------------------- By: /s/ DAVID WEINBERG ----------------------------- Name: David Weinberg ----------------------------- Its: CFO ----------------------------- 3 1 EXHIBIT 10.23[LOAN NO. 3587665-5] (NOTE: THIS PROMISSORY NOTE MAY REQUIRE A BALLOON PAYMENT AT MATURITY) PROMISSORY NOTE$10,850,000(U.S.) STOCKTON, CALIFORNIA DECEMBER 27, 2000 FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to theorder of WASHINGTON MUTUAL BANK, FA, a federal association, at its office at 400East Main Street, STA3MLM, Stockton, California 95290, Attention: CommercialReal Estate Asset Management, or at such other place as the holder of this Note(hereinafter, "holder") may from time to time designate in writing, the sum ofTEN MILLION EIGHT HUNDRED FIFTY THOUSAND DOLLARS ($10,850,000) in lawful moneyof the United States, with interest thereon from the date of this Note untilpaid at the rates set forth below, computed on monthly balances. Interest foreach full calendar month during the term of this Note shall be calculated on thebasis of a 360-day year and twelve 30-day months. Interest for any partialcalendar month at the beginning or end of the term of this Note shall becalculated on the basis of a 360-day year and the actual number of days in thatmonth. SECTION 1. INTEREST RATE. The per annum interest rate hereunder (the "Note Rate") shall be sevenand seventy-nine one-hundredths percent (7.79%). SECTION 2. MONTHLY PAYMENTS. Beginning on February 1, 2001 and on the first day of each and everycalendar month thereafter throughout the term of this Note (the "Monthly PaymentDates"), Borrower shall make monthly payments of principal and interest (the"Monthly Payment Amounts") to holder in the amount of Eighty-Two Thousand TwoHundred Thirty-Eight and 31/100 Dollars ($82,238.31). SECTION 3. MATURITY. Unless sooner repaid by Borrower, the entire unpaid principal balance ofthis Note, plus all accrued but unpaid interest, and all other amounts owinghereunder or under the Security Documents (as defined in Section 7) shall be dueand payable in full on January 1, 2011 (the "Maturity Date"). -1- 2 SECTION 4. APPLICATION OF PAYMENTS. Payments shall be applied: (a) first, to the payment of accrued interest;(b) second, at the option of holder, to the payment of any other amounts owingunder this Note or secured by the Security Documents, other than accruedinterest and principal, including, but not limited to advances holder may havemade for attorneys' fees or for taxes, assessments, insurance premiums, or othercharges on any property given as security for this Note and late charges duehereunder; and (c) third, to the reduction of principal of this Note. SECTION 5. PREPAYMENT. Borrower may prepay its obligation under this Note in full upon thirty(30) days' prior written notice to holder, or in part on any Monthly PaymentDate, upon payment of a premium (the "Prepayment Premium") equal to the greaterof: (a) the "Present Value Premium" (as defined below); or (b) one percent (1%) of the amount prepaid. The "Present Value Premium" is the present value, as of the date ofprepayment, of a stream of monthly interest payments for the period remaining tothe Maturity Date of this Note, computed on the basis of (a) the amount prepaidand (b) an interest rate equal to the amount, if any, by which (i) the Note Rateexceeds (ii) the "Reinvestment Rate" (as defined below). Each of such monthlyinterest payments shall be discounted to present value at the "ReinvestmentRate" from the applicable Monthly Payment Date to the date of prepayment. The "Reinvestment Rate" shall be based on the weekly average treasuryconstant maturity yields reported in Federal Reserve Statistical Release H.15(519), Selected Interest Rates ("Publication H.15"). The figures in the mostrecent edition of Publication H.15 available as of the prepayment date thatappear in the column for the week ending immediately preceding the date of suchedition shall be used for purposes of the Reinvestment Rate calculation. TheReinvestment Rate shall be the yield adjusted to constant maturities stated inPublication H.15 for the United States government security having a maturitythat most closely corresponds to the Maturity Date of this Note, determined bylinear interpolation between the yields reported in Publication H.15, ifnecessary. Holder may, in its reasonable discretion, select a comparable alternativesource of the Reinvestment Rate if Publication H.15 ceases to be available, orif the method of calculating treasury constant maturity yield figures set forththerein changes so as to substantially impact the calculation of theReinvestment Rate. Borrower expressly waives any right to prepay this Note except asprovided in this Section 5. Therefore, if the maturity of this Note isaccelerated for any reason, including, without limitation, the occurrence of anyevent of default hereunder or under the Deed of Trust (as defined in Section 7),including without limitation Section 4.13 of the Deed of Trust, -2- 3or any other document that evidences or secures the repayment of this Note, thenany subsequent tender of payment of this Note, including any redemptionfollowing foreclosure of the Deed of Trust, shall constitute an evasion of therestrictions on prepayment set forth herein and shall be deemed a voluntaryprepayment. Accordingly, holder may impose as a condition to accepting any suchtender, and may bid at any sheriff's or trustee's sale under the Deed of Trust,and/or include in any complaint for judicial foreclosure or for any claim inbankruptcy, as part of the indebtedness evidenced by this Note and secured bythe Deed of Trust, the Prepayment Premium that would have otherwise been payablehereunder for prepayment of this Note occurring on the date of suchacceleration. The Prepayment Premium will not be payable for prepayment of thisNote occurring as a result of the application of insurance and condemnationproceeds to the reduction of the unpaid principal balance of this Note. Borrower acknowledges that: (i) it is a knowledgeable real estateinvestor, (ii) it fully understands the effect of the above waiver, (iii) themaking of the loan evidenced by this Note at the interest rates set forth aboveis sufficient consideration for such waiver, and (iv) holder would not make theloan evidenced by this Note without such waiver. Borrower acknowledges that any statement made by holder setting forth theamount of the Prepayment Premium shall only be binding upon holder if suchstatement is made in writing and that the amount of the Prepayment Premium setforth in such statement is subject to change and is valid only for the date ofsuch statement. Borrower hereby expressly waives any right it may have under CaliforniaCivil Code 2954.10 to prepay this Note, in whole or in part, without prepaymentcharge, upon acceleration of the Maturity Date of this Note, and agrees that iffor any reason a prepayment of any or all of this Note is made, whethervoluntarily or upon or following any acceleration of the Maturity Date of thisNote by holder, Borrower shall pay the Prepayment Premium calculated pursuant tothis Section 5. By signing this provision in the space provided below, Borrowerhereby declares and agrees that holder's agreement to make the loan evidenced bythis Note at the Note Rate and for the term set forth in this Note constitutesadequate consideration, given individual weight by Borrower, for this waiver andagreement. SKECHERS U.S.A., INC., a Delaware corporation By ---------------------------------------- Michael Greenberg, President By /s/ PHILIP C. PACCIONE ---------------------------------------- Philip G. Paccione, General Counsel and Secretary -3- 4 SECTION 6. LATE CHARGE. If any amount payable hereunder is paid more than ten (10) business daysafter the due date thereof, Borrower promises to pay a late charge of fivepercent (5%) of the delinquent amount as liquidated damages for the extraexpense in handling past due payments. SECTION 7. SECURITY. This Note is secured by a deed of trust, security agreement, assignmentof leases and rents, and fixture filing (the "Deed of Trust") of even dateherewith and executed by Borrower, encumbering real property located in LosAngeles County, California, and by an assignment of leases and rents (the"Assignment of Leases and Rents") made by Borrower as assignor in favor ofLender as assignee. The Deed of Trust, the Assignment of Leases and Rents andany and all other documents securing this Note are collectively referred to asthe "Security Documents," provided, however, that "Security Documents"specifically shall not mean and shall not include the certificate and indemnityagreement regarding hazardous substances being delivered concurrently herewithto holder by Borrower (the "Indemnity Agreement"). The real property and theother collateral provided for in the Security Documents are collectivelyreferred to as the "Property." SECTION 8. NOTICE AND OPPORTUNITY TO CURE DEFAULTS. Any provision of this Note or the Security Documents seemingly to thecontrary notwithstanding, holder agrees not to exercise any of the remedies fordefault permitted hereunder or under the Security Documents unless and until: (a) If the default consists of the violation of a covenant to paymoney (other than the covenant to repay the balance due hereunder at maturity),holder has given Borrower at least ten (10) business days' written notice ofsuch default and such default has not been cured within ten (10) business daysafter the receipt of such written notice; or (b) If the default consists only of a violation of any provisionof this Note or the Security Documents other than a covenant to pay money or acovenant to obtain or renew insurance policies or pay insurance premiums asrequired by the Deed of Trust unless and until holder has given Borrower thirty(30) days' written notice of such default and such default has not been curedwithin such thirty (30) day period, provided that if the default is one whichcan be cured, but for causes beyond the reasonable control of Borrower cannotwith due diligence be cured within such thirty (30) day period, and providedfurther that no monetary default occurs while the cure period continues for thesubject nonmonetary default, such thirty (30) day period shall be deemedextended for such time as is necessary to cure the default (but in no eventlonger than ninety (90) days from the date of default) if Borrower gives noticeof its intent to cure or cause such default to be cured prior to the expirationof the initial thirty (30) day cure period, thereafter proceeds promptly withand prosecutes with all due diligence all steps necessary to cure the same, andprovides such written status reports to -4- 5holder regarding the progress of such cure as holder may reasonably request fromtime to time while such cure progresses. Nothing contained in this Section 8 shall be construed as imposing anyobligation on holder other than to postpone the exercise of its remedies fordefault until the expiration of the applicable grace period, if any, specifiedherein. Failure to give opportunity to cure defaults in the manner hereinprovided shall not in any way invalidate or prohibit holder from exercising anyof the remedies for default permitted hereunder or under the Security Documents(other than to prohibit holder from proceeding further until the applicablegrace period, if any, for the curing of such default has expired), or give riseto liability for damages suffered by Borrower or any other party on account ofsuch failure. The provisions of subparagraph (a) of this Section 8 shall not affectBorrower's liability for late charges under Section 6 with respect to anypayment that is more than ten (10) days past due. SECTION 9. DEFAULT; REMEDIES. If default is made in the payment of any amount payable hereunder whendue or in the keeping of any covenant of the Security Documents and such defaultis not cured as provided in Section 8 hereof, then, at the option of holder, theentire indebtedness evidenced hereby shall become immediately due and payable.Upon default, and without notice or demand, all amounts owed under this Note,including all accrued but unpaid interest, shall thereafter bear interest at therate of five percent (5%) per annum above the Note Rate (the "Default Rate")until such default is cured. Failure to exercise any option granted to holderhereunder shall not waive the right to exercise the same in the event of anysubsequent default. Interest at the Default Rate shall commence to accrue upondefault under this Note, including the failure to pay this Note at maturity. SECTION 10. ATTORNEYS' FEES. In the event of any default under this Note, or in the event that anydispute arises relating to the interpretation, enforcement, or performance ofthis Note, holder shall be entitled to collect from Borrower on demand allreasonable fees and expenses incurred in connection therewith, including but notlimited to fees of attorneys, accountants, appraisers, environmental inspectors,consultants, expert witnesses, arbitrators, mediators, and court reporters.Without limiting the generality of the foregoing, Borrower shall pay all suchcosts and expenses incurred in connection with: (a) arbitration or otheralternative dispute resolution proceedings, trial court actions, and appeals;(b) bankruptcy or other insolvency proceedings of Borrower, any guarantor orother party liable for any of the obligations of this Note or any party havingany interest in any security for any of those obligations; (c) judicial ornonjudicial foreclosure on, or appointment of a receiver for, any propertysecuring this Note; (d) postjudgment collection proceedings; (e) all claims,counterclaims, cross-claims, and defenses asserted in any of the foregoingwhether or not they arise out of or are related to -5- 6this Note or any security for this Note; (f) all preparation for any of theforegoing; and (g) all settlement negotiations with respect to any of theforegoing. SECTION 11. SALE, TRANSFER OR ENCUMBRANCE OF PROPERTY. The Deed of Trust contains the following provision, by which Borroweragrees to be bound (in such provision, the term "Trustor" means Borrower and"Beneficiary" means holder): 4.13 SALE, TRANSFER, OR ENCUMBRANCE OF PROPERTY. Trustor shall not, without the prior written consent of Beneficiary, sell, transfer or otherwise convey the Property or any interest therein, further encumber the Property or any interest therein, cause or permit any change in the entity, ownership or control of Trustor or agree to do any of the foregoing without first repaying in full the Note and all other sums secured hereby. Consent to any one such occurrence shall not be deemed a waiver of the right to require consent to any future occurrences. In each instance in which a sale, transfer or other conveyance of the Property occurs and regardless of whether Beneficiary's consent thereto is given, waived or denied or whether Beneficiary elects to accelerate the maturity date of the Note, Trustor and its successors shall be jointly and severally liable to Beneficiary for the payment of a transfer fee (the "Transfer Fee") of one percent (1.00%) of the unpaid principal balance of the Note as of the date of such sale, transfer or other conveyance. Such fee shall be payable on demand, shall bear interest from ten (10) days after such demand to and including the date of collection at the Default Rate (as defined in the Note), and shall be secured by this Trust Deed. Beneficiary's waiver of such fee in whole or in part for any one sale, transfer or other conveyance shall not preclude the imposition thereof in any other transaction. Notwithstanding the foregoing, Beneficiary's consent will not be required, and the one percent (1.00%) Transfer Fee will not be imposed, for the transfer of the publicly held shares of stock of Trustor, or for the transfer of any of the privately held shares of stock of Trustor so long as Robert Greenberg retains Control (as defined below) of Trustor. Also notwithstanding the foregoing, Beneficiary will not unreasonably withhold its consent, and upon granting of such consent will not require payment of the one percent (1.00%) transfer fee, to a one-time transfer of the Property by Trustor to an Affiliate of Trustor, provided, however, that Trustor must notify Beneficiary in writing of such proposed transfer and the identity of the proposed transferee at least 30 days before the anticipated transfer; shall provide Beneficiary with such financial information regarding the proposed transferee as -6- 7 Beneficiary may reasonably require, which information must be satisfactory to Beneficiary in its discretion; and shall provide Beneficiary, at Trustor's expense, with an endorsement to Beneficiary's mortgagee's policy of title insurance insuring the lien hereof, insuring that such transfer does not affect the validity or priority of the lien hereof. In addition, Beneficiary may require that the prospective transferee execute and deliver to Beneficiary an assumption agreement with respect to the loan hereby secured. In no event shall Beneficiary's consent to a transfer of title be deemed a release of the original Trustor identified herein from its liability for repayment of the Note and for performance of the other obligations of such Trustor under the Loan Documents. For purposes hereof, an "Affiliate" of Trustor means a person or entity that is in Control of, under common Control with, or Controlled by, Trustor. For purposes hereof, "Control" of an entity means the power or authority, through the ownership (directly or as a trust beneficiary) of voting securities; by contract; or otherwise, to direct the management of such entity. SECTION 12. MISCELLANEOUS. (a) Every person or entity at any time liable for the payment ofthe indebtedness evidenced hereby waives all taking of formal collection steps,including, but not limited to, presentment for payment, demand, and notice ofnonpayment, protest, dishonor or acceleration of this Note. Every such person orentity further hereby consents to any extension of the time of payment hereof orother modification of the terms of payment of this Note, the release of all orany part of the security herefor, or the release of any party liable for thepayment of the indebtedness evidenced hereby at any time and from time to timeat the request of anyone now or hereafter liable therefor. Any such extension orrelease may be made without notice to any of such persons or entities andwithout discharging their liability. All payments required to be made under thisNote, the Security Documents, the Indemnity Agreement and the other documents,instruments and agreements entered into in connection therewith (collectively,the "Loan Documents") shall be made without offset or deduction of any kind. (b) Each person or entity who signs this Note is jointly andseverally liable for the full repayment of the entire indebtedness evidencedhereby and the full performance of each and every obligation contained in theSecurity Documents. (c) The headings to the various sections have been inserted forconvenience of reference only and do not define, limit, modify, or expand theexpress provisions of this Note. (d) Time is of the essence under this Note and in the performanceof every term, covenant, and obligation contained herein. -7- 8 (e) This Note is made with reference to and is to be construed inaccordance with the laws of the State of California. (f) This Note and the other Loan Documents constitute the finalexpression of the entire agreement of the parties with respect to thetransactions set forth therein. No party is relying on any oral agreement orother understanding not expressly set forth in the Loan Documents. The LoanDocuments may not be amended or modified except by means of a written documentexecuted by the party sought to be charged with such amendment or modification. (g) In the event holder at any time discovers that this Note orthe Security Instrument or any of the other Loan Documents contains an errorcaused by a clerical mistake, calculation error, computer error, printing erroror similar error, Borrower shall, upon notice from holder, re-execute any suchLoan Document as necessary to correct any such error(s), and Borrower shall alsonot hold holder responsible for any damage suffered by Borrower resulting fromany such error. In addition, if any of the Loan Documents are lost, stolen,mutilated or destroyed, Borrower shall execute and deliver to holder on holder'srequest a duplicate of such Loan Document identical in form and content, andwhich will be identical in effect for all purposes, provided holder delivers toBorrower an indemnification agreement in favor of Borrower protecting Borrowerfrom any damages arising from such re-execution. DATED as of the day and year first above written. SKECHERS U.S.A., INC., a Delaware corporation By /s/ MICHAEL GREENBERG ---------------------------------------- Michael Greenberg, President By /s/ PHILIP C. PACCIONE ---------------------------------------- Philip G. Paccione, General Counsel and Secretary -8- 1 EXHIBIT 10.24 ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made this27th day of December 2000, by and between Pacifica California/Apollo, LLC, aCalifornia limited liability company ("Assignor"), and Skechers USA, Inc., aDelaware corporation ("Assignee"). WITNESSETH WHEREAS, Assignor and Assignee are parties to that certain Purchase andSale Agreement with Escrow Instructions (the "Agreement") dated as of November13, 2000, respecting the sale of certain "Property" (as described in theAgreement). Capitalized terms used herein and not otherwise defined shall havethe meanings ascribed to them in the Agreement. WHEREAS, under the Agreement, Assignor shall assign to Assignee andAssignee shall assume all of Assignor's right, title and interest in and to (i)the Leases, and (ii) the Service Contracts (defined below). The "ServiceContracts" shall mean any and all management agreements, service contracts,brokerage agreements, art contracts, landscaping contracts, equipment, leases,maintenance, agreements and all other contracts for the provision of labor,services, materials or supplies to or for the benefit of the Property. A list ofthe Service Contracts are set forth on Schedule "1" attached hereto. NOW THEREFORE, for good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Assignor hereby assigns, sells,transfers, sets over and delivers unto Assignee all of Assignor's estate, right,title and interest in and to the Leases and Service Contracts, and Assigneehereby accepts such assignment. By acceptance of this Assignment, Assignee hereby assumes theperformance of all of the terms, obligations, covenants and conditions imposedupon Assignor under the Leases and Service Contracts, accruing or arising on orafter the date hereof (collectively, the "Assigned Obligations"). In the event any party hereto institutes any action or proceedingagainst the other party with regard to this Assignment, the prevailing party insuch action shall be entitled to recover, in addition to the cost of the suit,its actual attorneys' fees. This Assignment shall be binding upon and inure to the benefit of thesuccessors, assignees, personal representatives, heirs and legatees of all therespective parties hereto. This Assignment and the obligations of the parties hereunder shallsurvive the closing of the transaction referred to in the Agreement and shallnot be merged therein, shall be binding upon and inure to the benefit of theparties hereto, their respective legal representatives, successors and assigns,shall be governed by and construed in accordance with the laws of the State ofCalifornia application to agreements made and to be wholly 2performed within said State and may not be modified or amended in any mannerother than by a written agreement signed by the party to be charged therewith. This Assignment may be executed in counterparts, each of which shall bean original and all of which counterparts taken together shall constitute oneand the same agreement. IN WITNESS WHEREOF, Assignor and Assignee have executed and deliveredthis Assignment as of the day and year first above written. ASSIGNOR: PACIFICA CALIFORNIA/APOLLO, LLC, a California limited liability company By: /s/ STEVEN OHREN --------------------------------------- Steven Ohren, Manager ASSIGNEE: SKECHERS USA, INC., a Delaware corporation By: /s/ PHILIP C. PACCIONE --------------------------------------- Name: Philip C. Paccione --------------------------------------- Title: General Counsel and Secretary --------------------------------------- By: /s/ MICHAEL GREENBERG --------------------------------------- Name: Michael Greenberg --------------------------------------- Title: President --------------------------------------- 1 EXHIBIT 10.25 MONY Loan No. 101183 Ontario, California LOAN AGREEMENT THIS LOAN AGREEMENT (this "Agreement") is made as of the 21st day ofDecember, 2000, by and between YALE INVESTMENTS, LLC, a Delaware limitedliability company (the "Borrower"), and MONY LIFE INSURANCE COMPANY, a New Yorkcorporation ("Lender"). In consideration of the mutual covenants and agreements containedherein, Lender agrees to make and Borrower agrees to accept a loan (the "Loan")in the original principal amount of Seven Million Eight Hundred Fifty ThousandDollars ($7,850,000.00 U.S.), pursuant to that certain Mortgage Loan Applicationdated November 1, 2000, executed by Skechers U.S.A., Inc., a Delawarecorporation, as applicant on behalf of the Borrower pending Borrower'sformation, and accepted by Lender on November 29, 2000 (the "Commitment"), andin accordance with and subject to the terms and conditions set forth below.1. AGREEMENT TO LEND1.1 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 Stewart 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 2 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. 2 3 (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 228 Manhattan Beach Boulevard, Manhattan Beach, California 90266. 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. 3 4 (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. 4 52.8 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; 5 6 (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 6 7 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 7 8 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 8 9 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 Stewart 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. MISCELLANEOUS3.1 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. 9 10 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 10 11 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. 11 123.6 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). 12 13 (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 13 14 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 L.J. Melody 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 14 15 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 15 16 IN WITNESS WHEREOF, the parties hereto have hereunto executed thisAgreement 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/ DAVID WEINBERG By: /s/ PHILIP C. PACCIONE --------------------------- -------------------------------- Name: David Weinberg Name: Philip C. Paccione ------------------------ ---------------------------- Title: CFO Title: General Counsel & Secretary ----------------------- ---------------------------LENDER:MONY LIFE INSURANCE COMPANY,a New York corporationBy: /s/ THOMAS MCCAHILL ---------------------------------Name: Thomas McCahill -------------------------------Title: Sr. Vice President ------------------------------ 16 17 EXHIBIT "A" LEGAL DESCRIPTIONThe land located in San Bernardino County, State of California, moreparticularly described as follows:PARCELS 18 AND 23 OF PARCEL MAP NO. 9252, AS SHOWN BY MAP ON FILE IN BOOK 107PAGE(S) 75 THROUGH 82, INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAN BERNARDINOCOUNTY, CALIFORNIA;ALSO EXCEPTING THEREFROM ALL MINERAL AND ALL MINERAL RIGHTS, OIL AND GAS ANDRIGHTS THERETO TOGETHER WITH SOLE, EXCLUSIVE AND PERPETUAL RIGHT TO EXPLORE FOR,REMOVE AND DISPOSE OF, SAID MAINERALS BY ANY MEANS OR METHODS SUITABLE, BUTWITHOUT ENTERING UPON OR USING THE SURFACE OF SAID LANDS AND IN SUCH A MANNER ASNOT TO DAMAGE SURFACE OF SAID LANDS AS NOT TO INTERFERE WITH THE USE THEREOF, ASCONVEYED TO UNION PACIFIC LAND RESOURCES CORPORATION BY DEED RECORDED NOVEMBER23, 1982 AS INSTRUMENT NO. 82-234011 OF OFFICIAL RECORDS.NOTE: SAID LAND IS DESCRIBED AND DELINEATED AS LOT A IN THAT CERTAIN CERTIFICATEAPPROVING A LOT LINE ADJUSTMENT NO. LL-99-15, RECORDED JANUARY 7, 2000 ASINSTRUMENT 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 SecurityReimbur- Increases Occupied Share Depositsement Sq. Ft.--------------------------------------------------------------------NNN, tenant Month 61: $92,285 100% 100% $85,693responsible Month 96: CPIfor all Month 132: CPIoperating Month 168: CPII hereby certify this to be true and accurate:Yale Investments, LLCBy: ---------------------------------Its: --------------------------------Date: ------------------------------- 1 EXHIBIT 10.26 PROMISSORY NOTE MONY Loan No. 101183$7,850,000 Ontario, California December 21, 2000 ("Effective Date") FOR VALUE RECEIVED, YALE INVESTMENTS, LLC, a Delaware limited liabilitycompany, as maker, having its principal place of business at 228 Manhattan BeachBoulevard, Manhattan Beach, California 90266 ("Borrower"), herebyunconditionally promises to pay to the order of MONY LIFE INSURANCE COMPANY, aNew York corporation, as payee, having an address at 1740 Broadway, New York,New York 10019 ("Lender"), by wire transfer to Lender's account at a bankinginstitution and in accordance with instructions issued by Lender or at suchother place and in such manner as the holder hereof may from time to timedesignate in writing, the principal sum of SEVEN MILLION EIGHT HUNDRED FIFTYTHOUSAND DOLLARS ($7,850,000.00), in lawful money of the United States ofAmerica with interest thereon to be computed from the date of this Note at theApplicable Interest Rate (defined below) in accordance with the terms of thisNote. Initially capitalized terms used herein and not otherwise defined hereinshall have the meanings assigned thereto in the Security Instrument (as definedbelow) entered into by and between Borrower and Lender on or about the datehereof. ARTICLE 1: PAYMENT TERMS Borrower agrees to pay sums under this Note in installments as follows: (a) a payment of interest only on January 1, 2001, representing paymentof interest from the Effective Date through and including the last day of themonth in which the Effective Date falls; (b) a constant payment of Fifty-Seven Thousand Six Hundred One andno/100ths Dollars ($57,601.00) on the first day of February, 2001, and on thefirst day of each calendar month thereafter up to and including the first day ofDecember, 2010 (each, a "Payment Date"); and (c) (the balance of the principal sum and all interest thereon on thefirst day of January, 2011 (the "Maturity Date"). All payments on this Note shall, at the option of Lender, be appliedfirst to the payment of late charges and/or interest due at the Default Rate (asdefined below), if any, then to the repayment of any sums advanced by Lender forthe payment of any insurance premiums, taxes, assessments or other chargesagainst the property securing this Note, then to the payment of any other sumsdue from Borrower to Lender pursuant to the Security Instrument or OtherSecurity Documents, then to the payment of accrued and unpaid interest, and,after all such premiums, charges, sums and interest have been paid, anyremainder shall be applied to reduction of the principal sum. ARTICLE 2: INTERESTThe interest rate on this Note is Seven and Eighty-Nine/100ths percent (7.89%)per annum (the "Applicable Interest Rate"). Interest on the principal sum ofthis Note shall be calculated by multiplying the actual number of days elapsedin the applicable period by a daily rate based upon a three hundred sixty (360)day year. 1 2 ARTICLE 3: DEFAULT AND ACCELERATION If any payment required in this Note is not paid (a) prior to the fifth(5th) day after a Payment Date, (b) on the Maturity Date, or (c) on thehappening of any other default (after the expiration of any applicable noticeand grace periods), herein or under the terms of the Security Instrument or anyof the Other Security Documents (as defined in the Security Instrument)(collectively, an "Event of Default"), at the option of Lender the followingshall, without notice, become immediately due and payable: (i) the whole of theprincipal sum and accrued interest on this Note; (ii) late charges and othersums, as provided in this Note, the Security Instrument or the Other SecurityDocuments, commencing on the eleventh (11th) day after the Payment Date if suchpayment has not yet been received by the eleventh (11th) day; (iii) defaultinterest, as provided in this Note, the Security Instrument or the OtherSecurity Documents; (iv) all other monies agreed or provided to be paid byBorrower in this Note, the Security Instrument or the Other Security Documents;(v) all sums advanced pursuant to the Security Instrument to protect andpreserve the Property (defined below) and the lien and the security interestcreated thereby and (vi) all sums advanced and costs and expenses incurred byLender in connection with the Debt (defined below) or any part thereof, anyrenewal, extension, or change of or substitution for the Debt or any partthereof, or the acquisition or perfection of the security therefor, whether madeor incurred at the request of Borrower or Lender (all the sums referred to in(i) through (vi) above shall collectively be referred to as the "Debt"). ARTICLE 4: DEFAULT INTEREST Borrower agrees that upon the occurrence of an Event of Default, Lendershall be entitled to receive and Borrower shall pay interest on the entireunpaid principal sum at a per annum rate equal to the lesser of (a) fifteenpercent (15%) per annum, and (b) the maximum interest rate which Borrower may bylaw pay (the "Default Rate"). The Default Rate shall be computed from theoccurrence of the Event of Default until the earlier of the date upon which theEvent of Default is cured or the date upon which the Debt is paid in full.Interest calculated at the Default Rate shall be added to the Debt, and shall bedeemed secured by the Security Instrument. This clause, however, shall not beconstrued as an agreement or privilege to extend the date of the payment of theDebt, nor as a waiver of any other right or remedy accruing to Lender by reasonof the occurrence of any Event of Default. ARTICLE 5: LATE CHARGE As to each default in the performance of the covenants and obligationsof Borrower under the Security Instrument or under any of the Other SecurityDocuments not involving the payment of money, a late charge of $1,000 shall bedue and payable for the month in which the default first occurred, on the daythe applicable grace, notice or cure period, if any, expires or if none, then onthe day of the default. An additional $1,000 late charge shall be due, withoutnotice, on the first day of each calendar month thereafter during which thedefault continues, until the default is fully cured. ARTICLE 6: REPAYMENT (a) The principal balance of this Note may not be prepaid in whole orin part except as expressly permitted pursuant hereto. 2 3 (b) No prepayment of this Note shall be permitted for a period of one(1) year after the date hereof. Thereafter, Borrower may prepay the Loan Balancein full (but not in part) on any regularly scheduled payment date hereunderafter giving Lender sixty (60) days prior written notice ("Prepayment Notice")and upon payment of a prepayment premium (the "Premium") calculated as providedbelow. Any Prepayment Notice given hereunder may not be withdrawn within fifteen(15) days prior to the scheduled date of prepayment ("Prepayment Date") withoutLender's consent in its sole discretion, and this Note shall be due in full onthe Prepayment Date. No more than one (1) Prepayment Notice may be given withinany sixty (60) day period. (i) The Premium shall equal the greater of (i) the Aggregate Present Values of the Monthly Income Losses or (ii) one percent (1.0%) of the then outstanding Principal Amount; provided however that in the event Borrower prepays the Loan in full and not in part during the last sixty (60) days immediately prior to the Maturity Date, such prepayment may be made at par without the requirement to pay the Premium. The Premium shall be calculated on the date ("Calculation Date") ten (10) business days prior to the Prepayment Date. (ii) The Aggregate Present Values of the Monthly Income Losses shall be calculated as follows: (A) Subtract the Discount Rate (as defined below) from the Interest Rate to determine the "Rate Difference" (provided that the Rate Difference shall in no event be less than zero). Then divide the Rate Difference by twelve (12) to determine the "Monthly Rate Difference"; (B) Determine, as of the first day of each month during the Calculation Period (as defined below), what the Principal Amount would have been had the Loan been paid pursuant to the regular installment terms of this Note based on the amortization schedule then in effect on the Loan (for each such month, the "Amortizing Monthly Balance"); (C) Multiply the Monthly Rate Difference by the Amortizing Monthly Balance of each month during the Calculation Period to determine the "Gross Monthly Income Loss" applicable to each month; (D) Determine the present value of the Gross Monthly Income Loss for each month by discounting the Gross Monthly Income Loss for each month at the Monthly Discount Rate (as defined below); (E) Add the present value of the Gross Monthly Income Loss for each month during the Calculation Period to determine the Aggregate Present Values of the Monthly Income Losses. (iii) As used in these prepayment provisions, the following definitions shall apply: (A) The "Calculation Period" is the period from the Prepayment Date through the Maturity Date; and (B) The "Discount Rate" shall be equal to the "ask yield" rate on the U.S. Treasury note or bond (not including "inflation indexed" issues) maturing closest in time to the Maturity Date as such "ask yield" is reported in The 3 4 Wall Street Journal, or similar publication designated by Lender, on the Calculation Date. If there is more than one such U.S. Treasury note or bond so reported, Lender shall determine in its sole discretion, which one shall be utilized as the "Discount Rate." The "Monthly Discount Rate" shall be equal to the Discount Rate divided by twelve (12); (iv) Borrower acknowledges that the Premium represents the reasonable estimate of Lender and Borrower of a fair average compensation for the loss that may be sustained by Lender due to the payment of any of the indebtedness evidenced hereby prior to the originally scheduled Maturity Date. The Premium shall be paid without prejudice to the right of Lender to collect any other amounts provided to be paid hereunder or under the other Loan Documents. Borrower hereby expressly: (i) waives any statutory and common law rights it may have to prepay thus Note, in whole or in part, without penalty, upon acceleration of the Maturity Date; and, (ii) agrees that if, for any reason, a prepayment of any or all of this Note is made, whether voluntary or upon or following any acceleration of the Maturity Date by Lender on account of any default by Borrower under the terms of this Note, or any of the other Loan Documents, including without limitation, any transfer or disposition of any of the Security for this Note, as prohibited or restricted by the terms of any of the Loan Documents, and whether or not said payment is made prior to or at any foreclosure sale held under the terms of the Loan Documents, then Borrower shall be obligated to pay the applicable Premium concurrently therewith. INITIALS: /s/ ILLEGIBLE -------------- ARTICLE 7: SECURITY This Note is secured by that certain Deed of Trust, Assignment ofRents, Security Agreement and Fixture Filing dated the date hereof given byBorrower to (or for the benefit of) Lender covering the fee simple estate ofBorrower in certain premises located in San Bernardino County, State ofCalifornia, and other property, as more particularly described therein(collectively, the "Property") and intended to be duly recorded in said County(the "Security Instrument"), and by the Other Security Documents. ARTICLE 8: LOAN CHARGES This Note, the Security Instrument and the Other Security Documents aresubject to the express condition that at no time shall Borrower be obligated orrequired to pay interest on the principal balance due hereunder at a rate whichcould subject Lender to either civil or criminal liability as a result of beingin excess of the maximum interest rate which Borrower is permitted by applicablelaw to contract or agree to pay. If by the terms of this Note, the SecurityInstrument and the Other Security Documents, Borrower is at any time required orobligated to pay interest on the principal balance due hereunder at a rate inexcess of such maximum rate, the Applicable Interest Rate or the Default Rate,as the case may be, shall be deemed to be immediately reduced to such maximumrate and all previous payments in excess of the maximum rate shall be deemed tohave been payments in reduction of principal and not on 4 5account of the interest due hereunder. All sums paid or agreed to be paid toLender for the use, forbearance, or detention of the Debt, shall, to the extentpermitted by applicable law, be amortized, prorated, allocated, and spreadthroughout the full stated term of the Note until payment in full so that therate or amount of interest on account of the Debt does not exceed the maximumlawful rate of interest from time to time in effect and applicable to the Debtfor so long as the Debt is outstanding. ARTICLE 9: WAIVERS Borrower and all others who may become liable for the payment of all orany part of the Debt do hereby severally waive presentment and demand forpayment, notice of dishonor, protest and notice of protest and non-payment andall other notices of any kind (including without limitation notices under CivilCode Section 2954.5, relating to default and late charges), except for noticesexpressly provided for in this Note, the Security Instrument or the OtherSecurity Documents. No release of any security for the Debt or extension of timefor payment of this Note or any installment hereof, and no alteration, amendmentor waiver of any provision of this Note, the Security Instrument or the OtherSecurity Documents made by agreement between Lender or any other person or partyshall release, modify, amend, waive, extend, change, discharge, terminate oraffect the liability of Borrower, and any other person or entity who may becomeliable for the payment of all or any part of the Debt, under this Note, theSecurity Instrument or the Other Security Documents. No notice to or demand onBorrower shall be deemed to be a waiver of the obligation of Borrower or of theright of Lender to take further action without further notice or demand asprovided for in this Note, the Security Instrument or the Other SecurityDocuments. If Borrower is a partnership, corporation or limited liabilitycompany, the agreements contained herein shall remain in full force and effect,notwithstanding any changes in the individuals or entities comprising theBorrower, and the term "Borrower," as used herein, shall include any alternateor successor entity, but any predecessor entity, and its partners or members, asthe case may be, shall not thereby be released from any liability. (Nothing inthe foregoing sentence shall be construed as a consent to, or a waiver of, anyprohibition or restriction on transfers of interests in Borrower which may beset forth in the Security Instrument or any Other Security Document.) ARTICLE 10: WAIVER OF TRIAL BY JURY BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THERIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER INCONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOANEVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THIS NOTE,THIS NOTE, THE SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTSOR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS INCONNECTION THEREWITH. BORROWER DOES HEREBY CONSTITUTE AND APPOINT MONY ITS TRUEAND LAWFUL ATTORNEY-INFACT, WHICH APPOINTMENT IS COUPLED WITH AN INTEREST, ANDBORROWER DOES HEREBY AUTHORIZE AND EMPOWER LENDER, IN THE NAME, PLACE AND STEADOF BORROWER, TO FILE THIS NOTE WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENTJURISDICTION AS A STATUTORY WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY. ARTICLE12: 5 6 ARTICLE 11: EXCULPATION (a) Notwithstanding anything to the contrary contained in this Note,the Security Instrument or any Other Security Document (but subject to theprovisions of subsections (b), (c) and (d) of this Article l1), Lender shall notenforce the liability and obligation of Borrower to perform and observe theobligations contained in this Note or the Security Instrument by any action orproceeding wherein a money judgment or any deficiency judgment or other judgmentestablishing any personal liability shall be sought against Borrower or anyprincipal, director, officer, employee, beneficiary, shareholder, partner,member, trustee, agent or affiliate of Borrower or any person owning, directlyor indirectly, any legal or beneficial interest in Borrower, or any successorsor assigns of any of the foregoing (collectively, the "Exculpated Parties"),except that Lender may bring a foreclosure action, action for specificperformance or other appropriate action or proceeding to enable Lender toenforce and realize upon this Note, the Security Instrument, the Other SecurityDocuments, and the interest in the Property, the Rents (as defined in theSecurity Instrument) and any other collateral given to Lender to secure thisNote; provided, however, subject to the provisions of subsections (b), (c) and(d) of this Article 11, that any judgment in any such action or proceeding shallbe enforceable against Borrower only to the extent of Borrower's interest in theProperty, in the Rents and in any other collateral given to Lender to securethis Note. Lender, by accepting this Note and the Security Instrument, agreesthat it shall not, except as otherwise provided in this Article 1.1, sue for,seek or demand any deficiency judgment against Borrower or any of the ExculpatedParties, in any such action or proceeding, under or by reason of or under or inconnection with this Note, the Security Instrument or the Other SecurityDocuments. The provisions of this Article 11 shall not, however: (i) constitutea waiver, release or impairment of any obligation evidenced or secured by thisNote, the Security Instrument or the Other Security Documents delivered toLender; (ii) impair the right of Lender to name Borrower as a party defendant inany action or suit for judicial foreclosure and sale under the SecurityInstrument; (iii) affect the validity or enforceability of any indemnity,guaranty, master lease or similar instrument made in connection with this Note,the Security Instrument, or the Other Security Documents; (iv) impair the rightof Lender to obtain the appointment of a receiver; (v) impair the enforcement ofthe Assignment of Leases and Rents executed in connection herewith; (vi) impairthe right of Lender to enforce the provisions of Section 12.2 of the SecurityInstrument or of Section 3.12(e) of the Security Instrument; or (vii) impair theright of Lender to obtain a deficiency judgment or other judgment on the Noteagainst Borrower if necessary to obtain any insurance proceeds or condemnationawards to which Lender would otherwise be entitled under this SecurityInstrument; provided however, Lender shall only enforce such judgment to theextent of the insurance proceeds and/or condemnation awards. (b) Notwithstanding the provisions of this Article 11 to the contrary,Borrower shall be personally liable to Lender for the Losses (as defined in theSecurity Instrument) it incurs due to: (i) any failure of Borrower to maintainin full force and effect all insurance required to be maintained under theSecurity Instrument or to repair and/or reconstruct any of the Property inaccordance with the terms of the Security Instrument or any of the OtherSecurity Documents; (ii) any failure of Borrower to pay when due all taxes andassessments levied or assessed against any of the Property (including, withoutlimitation, any failure of Borrower to deposit sufficient 6 7tax/assessment impounds with Lender as required under the Security Instrument);(iii) the execution, modification and/or termination of any leases affecting theProperty without the consent of Lender, where such consent is required under theSecurity Instrument or under any of the Other Security Documents; (iv) anytransfers of any of the Property or ownership interests in Borrower or in anyentity that constitutes, either directly or indirectly, Borrower, without theconsent of Lender, where such consent is required under the Security Instrumentor under any of the Other Security Documents; (v) any actions and claimsinstituted against or affecting any of the Property, including mechanic's liens;(vi) any default under the Certificate and Indemnity Regarding HazardousSubstances given by Borrower and Guarantor in favor of Lender; (vii) any wasteor intentional or willful destruction of any of the Property by Borrower or itsagents or contractors; (viii) any fraud or intentional or willfulmisrepresentation, by any party (other than Lender) executing the Note, theSecurity Instrument or any of the Other Security Documents (even if other thanBorrower) or any successor or permitted assign thereof; (ix) any misapplicationof any proceeds (A) paid under any insurance policies or (B) realized fromawards from condemnation or the exercise of the power of eminent domain (or ataking in lieu thereof), in any case arising from a casualty to or taking of anyof the Property (which misapplication shall be deemed to have occurred in theevent that any such proceeds are not used in the manner provided in the SecurityInstrument or any of the Other Security Documents relative to casualty and/orcondemnation, as applicable; (x) any misapplication of the gross proceeds(including without limitation Rents and all other revenues) from any of theProperty (which misapplication shall be deemed to have occurred in the event anyof such gross proceeds are not first applied to costs of operating andmaintaining the Property, including without limitation, payment of the Note);(xi) any application of security deposits other than in accordance withapplicable law and with the terms of the applicable leases under which thesecurity deposits are held; or Borrower's failure to provide such securitydeposits to Lender upon Lender's acquisition of the Property after default;(xii) the removal of any personal property, fixtures and equipment from theProperty by or on behalf of the Borrower and Borrower's failure to replace samewith items of the same utility and the same or greater value; (xiii) any feesand commissions paid by Borrower to any member, partner, shareholder, agent,employee, affiliate or related party of Borrower. (c) Notwithstanding the foregoing, the agreement of Lender not topursue recourse liability as set forth in subsection (a) above SHALL BECOME NULLAND VOID and shall be of no further force and effect in the event of Borrower'sdefault under Article 8 of the Security Instrument or if the Property or anypart thereof shall become an asset in (i) a voluntary bankruptcy or insolvencyproceeding; or (ii) an involuntary bankruptcy or insolvency proceeding (otherthan one filed by Lender) which is not dismissed within ninety (90) days offiling. (d) Nothing herein shall be deemed to be a waiver of any right whichLender may have under Section 506(a), 506(b), 1111(b) or any other provision ofthe U.S. Bankruptcy Code to file a claim for the full amount of the indebtednesssecured by the Security Instrument or to require that all collateral shallcontinue to secure all of the indebtedness owing to Lender in accordance withthis Note, the Security Instrument and the Other Security Documents. ARTICLE 12: AUTHORITY Borrower (and the undersigned representative of Borrower, if any)represents that Borrower has full power, authority and legal right to executeand deliver this Note, the Security 7 8Instrument and the Other Security Documents and that this Note, the SecurityInstrument and the Other Security Documents constitute valid and bindingobligations of Borrower. ARTICLE 13: GOVERNING LAW This Note shall be governed, construed, applied and enforced inaccordance with the laws of the state in which the Property is located. ARTICLE 14: NOTICESAll notices required or permitted hereunder shall be given as provided in theSecurity Instrument. ARTICLE 15: INCORPORATION BY REFERENCE All of the terms, covenants and conditions contained in the SecurityInstrument and the Other Security Documents are hereby made part of this Note tothe same extent and with the same force as if they were fully set forth herein. ARTICLE 16: MISCELLANEOUS (a) Wherever pursuant to this Note it is provided that Borrower pay anycosts and expenses, such costs and expenses shall include, but not be limitedto, reasonable legal fees and disbursements of Lender, whether with respect toretained firms, the reimbursement for the expenses of in-house staff, orotherwise. Borrower shall pay to Lender on demand any and all expenses,including legal expenses and reasonable attorneys' fees, incurred or paid byLender in enforcing this Note, whether or not any legal proceeding is commencedhereunder, together with interest thereon at the Default Rate from the date paidor incurred by Lender until such expenses are paid by Borrower. (b) This Note shall not be modified, amended, waived, extended,changed, discharged or terminated orally or by any act or failure to act on thepart of Borrower or Lender, but only by an agreement in writing signed by theparty against whom enforcement of any modification, amendment, waiver,extension, change, discharge or termination is sought. (c) If Borrower consists of more than one person or party, theobligations and liabilities of each person or party shall be joint and several. (d) Whenever used, the singular number shall include the plural, theplural number shall include the singular, and the words "Lender" and "Borrower"shall include their respective successors, assigns, heirs, executors andadministrators. (e) If Lender accepts a guaranty of only a portion of the Debt,Borrower hereby waives its right under California Civil Code Section 2822(a) orany similar statute or common law provisions, to designate the portion of theDebt which shall be satisfied by any guarantor's partial payment. SIGNATURE PAGE TO FOLLOW 8 9 IN WITNESS WHEREOF, Borrower has duly executed this Note as of the dayand year first above written. 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/ PHILIP C. PACCIONE ------------------------------------------ Name: Philip C. Paccione ---------------------------------------- Title: General Counsel & Secretary --------------------------------------- Acknowledgment appears on the following page. By: /s/ DAVID WEINBERG ------------------------------------------ Name: David Weinberg ---------------------------------------- Title: CFO --------------------------------------- 9 10STATE OF California ) ) ss.COUNTY OF Los Angeles ) On this 19th day of December, 2000, before me personally appeared Philip C. Paccione and David Weinberg, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity(ies), and that by his signature(s) on the instrument the person(s) or the entity(ies) upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. /s/ KAREN SMITH ----------------------------------- Signature of Notary[seal]My Commission Expires: 4-4-01 ---------------------- 10 1 Exhibit 21.1 Subsidiaries of the RegistrantName of Subsidiary State/Country of Incorporation/Organization------------------ -------------------------------------------Skechers By Mail, Inc. DelawareSkechers U.S.A., Inc. II DelawareSkechers U.S.A. Ltd. EnglandSkechers U.S.A. SAS FranceSkechers U.S.A. Deutschland GmbH GermanySkechers S.a.r.l. SwitzerlandSkechers U.S.A., Inc., Taiwan Branch TaiwanSkechers Collection LLC CaliforniaSkechers Sport LLC CaliforniaDuncan Investments, LLC CaliforniaYale Investments, LLC Delaware 1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENTThe Board of DirectorsSkechers U.S.A., Inc.:We consent to the incorporation by reference in the registration statement onForm S-8 (Nos. 333-87009 and 333-87011) of Skechers U.S.A., Inc. of our reportdated February 23, 2001 with respect to the consolidated balance sheets ofSkechers U.S.A., Inc. and subsidiaries as of December 31, 2000 and 1999, and therelated consolidated statements of earnings, stockholders' equity, and cashflows for each of the years in the three-year period ended December 31, 2000,and related schedule, which report appears in the December 31, 2000, annualreport on Form 10-K of Skechers U.S.A., Inc. /s/ KPMG LLPLos Angeles, CaliforniaMarch 29, 2001

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