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EXHIBIT 10.66
LINE OF CREDIT AGREEMENT
This Line of Credit Agreement, dated as of November 30, 1998 (the
"Agreement"), is entered into by and between Sea View Restaurants, Inc., a
California corporation ("Borrower"), and Outside, LLC, a California limited
liability company ("Lender").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, by which Borrower directly or indirectly (i) acquires any
going business or all or substantially all of the assets of any firm,
partnership, joint venture, corporation or division thereof, whether
through purchase of assets, merger or otherwise, or (ii) acquires (in
one transaction or as the most recent transaction in a series of
transactions) control of at least a majority in ordinary voting power
of the securities of a corporation which have ordinary voting power for
the election of directors, or (iii) acquires control of a fifty percent
(50%) or more ownership interest in any partnership or joint venture.
"Affiliate" means, as to any Person, any other Person who
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise).
"Authorization" means any authorization, consent, approval,
order, license, permit, exemption or other action by or from, or any
filing, registration or qualification with, any Governmental Agency or
other Person.
"Capital Expenditure" means any expenditure that is considered
a capital expenditure under Generally Accepted Accounting Principles,
consistently applied, including any amount that is required to be
treated as an asset subject to a Capital Lease.
"Capital Lease" means, as to any Person, a lease of any
property by that Person as lessee that is, or should be, in accordance
with the rules promulgated by the Financial Accounting Standards Board,
recorded as a "capital lease" on the balance sheet of that Person.
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"CBR" means California Beach Restaurants, Inc., a California
corporation, its successors and permitted assigns.
"Contingent Obligation" means, as to any Person, any (a)
direct or indirect guarantee of Indebtedness of, or other obligation
performable by, any other Person, including any endorsement (other than
for collection or deposit in the ordinary course of business),
co-making or sale with recourse of the obligations of any other Person
or (b) contractual assurance (not arising solely by operation of law)
given to an obligee with respect to the performance of an obligation
by, or the financial condition of, any other Person, whether direct,
indirect or contingent.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws from time to time in effect affecting the rights of
creditors generally.
"Disposition" means the sale, transfer, lease, loan,
abandonment or other disposition in any single transaction or series of
related transactions of (a) all or substantially all of the assets of a
division or comparable business segment of Borrower, or (b) any other
individual asset, or group of related assets, of Borrower that has or
have at the date of the Disposition a book value or fair market value
(which shall be deemed to be equal to the sales price for such asset or
assets upon a sale to a Person) of Seventy-five Thousand Dollars
($75,000) or more, other than (i) the sale or other disposition of
inventory in the ordinary course of business and (ii) the sale or other
disposition of equipment or other personal property that is (x) not
required in the business of Borrower as presently conducted or
reasonably foreseen to be useful in the future, or (y) replaced by
equipment or personal property, as the case may be, performing
substantially the same function, not later than ninety (90) days after
such sale or disposition.
"Distribution" means, with respect to any shares of capital
stock or any warrant or right to acquire shares of capital stock or any
other equity security issued by a Person, (a) the retirement,
redemption, purchase, or other acquisition for value by such Person of
any such security, and (b) the declaration or (without duplication)
payment by such Person of any dividend in cash or in property (other
than in common stock of such Person) on or with respect to any such
security.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality or
public body, (c) any court, administrative tribunal or public utility,
or (d) any arbitration tribunal or other non-governmental authority to
whose jurisdiction a Person has consented.
"Indebtedness" means, as to any Person, (a) all indebtedness
of such Person for borrowed money, (b) that portion of the obligations
of such Person under Capital Leases
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which is properly recorded as a liability on a balance sheet of that
Person prepared in accordance with generally accepted accounting
principles, (c) any obligation of such Person that is evidenced by a
promissory note or other instrument representing an extension of credit
to such Person, whether or not for borrowed money, (d) any obligation
of such Person for the deferred purchase price of property or services
(other than trade or other accounts payable in the ordinary course of
business in accordance with customary terms), (e) any obligation of
such Person that is secured by a Lien on assets of such Person, whether
or not that Person has assumed such obligation or whether or not such
obligation is non-recourse to the credit of such Person, but only to
the extent of the fair market value of the assets so subject to the
Lien, and (f) obligations of such Person for unreimbursed draws under
letters of credit issued for the account of such Person.
"Investment" means, when used in connection with any Person,
any investment by or of that Person, whether by means of purchase or
other acquisition of capital stock or other Securities of any other
Person or by means of loan, advance, capital contribution, guaranty or
other debt or equity participation or interest, or otherwise, in any
other Person, including any partnership and joint venture interests of
such Person in any other Person.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or charge of any kind, whether voluntarily incurred or arising by
operation of law or otherwise, affecting any property, including any
agreement to grant any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature of a security
interest, and/or the filing of or agreement to give any financing
statement (other than a precautionary financing statement with respect
to a lease that is not in the nature of a security interest) under the
Uniform Commercial Code or comparable law of any jurisdiction with
respect to any property.
"Permitted Encumbrances" means: (a) general and special ad
valorem real estate taxes and assessments which are not delinquent; (b)
present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy use or enjoyment of real property;
(c) liens in favor of Lender; and (d) purchase money liens and
equipment leases entered into in the ordinary course of business.
"Person" means any person or entity, whether an individual,
trustee, corporation, general partnership, limited partnership, joint
stock company, trust, estate, unincorporated organization, business
association, firm, joint venture, Governmental Agency, or otherwise.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
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"Securities" means any capital stock, share, voting trust
certificate, bond, debenture, note or other evidence of indebtedness,
limited partnership interest, or any warrant, option or other right to
purchase or acquire any of the foregoing.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any corporation, partnership or joint venture,
whether now existing or hereafter organized or acquired: (a) in the
case of a corporation, of which a majority of the securities having
ordinary voting power of the election of directors or other governing
body (other than securities having such power only by reason of the
happening of a contingency) are at the time beneficially owned by such
Person and/or one or more Subsidiaries of such Person, or (b) in the
case of a partnership or joint venture, of which such Person or a
Subsidiary of such Person is a general partner or joint venturer or of
which a majority of the partnership or other ownership interests are at
the time beneficially owned by such Person and/or one or more of its
Subsidiaries.
ARTICLE 2
LOANS
2.1 Revolving Line of Credit. Lender hereby agrees to make loans in an
aggregate amount of One Million Dollars ($1,000,000) on a revolving credit basis
to Borrower ("Revolving Commitment"). The Lender's Revolving Commitment shall
terminate on February 28, 1999, at which time all outstanding principal and
accrued interest on the Revolving Note shall be due and payable.
A loan made by Lender to Borrower shall be evidenced by a
promissory note of Borrower, substantially in the form of Exhibit A ("Revolving
Note"), with appropriate insertions therein as to date and principal amount of
any borrowing hereunder and representing the obligation of the Borrower to pay
the aggregate unpaid principal amount of all loans made by Lender to Borrower
hereunder, with interest thereon at ten percent (10%) per annum, payable on the
first of each month. (Five days prior to the first of each month, Borrower shall
provide Lender with a written calculation of interest payable on the first day
of the next month.) Lender is hereby authorized (but not required) to record the
date and amount of each borrowing, payment or prepayment of principal of its
loan made to Borrower, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded. Failure of Lender to
make any such recordation or notation in the books and records of Lender (or any
error in such recordation or notation) shall not affect the obligations of the
Borrower hereunder under the Revolving Note. Interest shall be calculated on the
basis of a year of 360 days and actual days elapsed. Amounts borrowed by
Borrower may be repaid and, through February 28, 1999, reborrowed.
2.2 Notice of Borrowing. Borrower shall give Lender written notice five
(5) business days prior to the proposed borrowing date, requesting that the
Lender make the revolving loan on the proposed borrowing date and specifying the
aggregate amount of the revolving loan requested to be made. All borrowings
hereunder shall made in a minimum aggregate amount of Twenty-five Thousand
Dollars ($25,000).
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2.3 Late Payments. If any installment of principal or interest under
the Revolving Note to Lender is not paid when due, it shall thereafter bear
interest at the fixed rate of fifteen percent (15%) per annum, to the fullest
extent permitted by applicable law. Accrued and unpaid interest on past due
amounts (including, without limitation, interest on past due interest) shall be
compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable law.
2.4 Manner and Treatment of Payments. Each payment hereunder or on the
Revolving Note shall be made to Lender, by wire transfer, in immediately
available funds not later than 11:00 a.m., Los Angeles time, on the day of
payment. Lender shall provide Borrower with payment instructions, including bank
accounts and wire transfer instructions. All payments received after 11:00 a.m.,
Los Angeles time, on any particular business day, shall be deemed received on
the next succeeding business day. All payments shall be made in lawful money of
the United States of America.
2.5 Failure to Charge Not Subsequent Waiver. Any decision by Lender not
to require payment of any interest (including interest at any post-default
rate), or to calculate any amount payable by a particular method, on any
occasion shall in no way limit or be deemed a waiver of Lender's right to
require all payment of any interest (including interest after default).
2.6 Commitment Fee. The Borrower agrees to pay the Lender a commitment
fee equal to $3,125, due on the date hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
3.1 Existence and Qualification; Power; Compliance With Laws. Borrower
is a corporation duly formed, validly existing and in good standing under the
laws of California. Borrower is duly qualified to transact business, and is in
good standing, in California. Borrower has all requisite corporate power and
authority to conduct its business, to own and lease its properties and to
execute and deliver the Agreement and the Revolving Note to which it is a party
and to perform the obligations to be performed by it.
3.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations. The execution, delivery and performance by Borrower of
the Agreement and the Revolving Note have been duly authorized by all necessary
corporate action, and do not:
(a) Require any consent or approval not heretofore obtained of
any partner, director, stockholder, security holder or creditor of
Borrower;
(b) Violate or conflict with any provision of Borrower's
charter, articles of incorporation or bylaws, as applicable;
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(c) Result in or require the creation or imposition of any
Lien with respect to any property now owned or leased or hereafter
acquired by Borrower;
(d) Violate any Requirement of Law applicable to Borrower; or
(e) Result in a breach of or default under, or would, with the
giving of notice or the lapse of time or both, constitute a breach of
or default under, or cause or permit the acceleration of any obligation
owed under, any indenture or loan or credit agreement or any other
contractual obligation to which Borrower is a party or by which
Borrower or any of its property is bound or affected.
3.3 No Governmental Approvals Required. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required to authorize or permit
under applicable laws the execution, delivery and performance by Borrower of the
Agreement and Revolving Note.
3.4 Binding Obligations. Each of the Agreement and Revolving Note will,
when executed and delivered by Borrower, constitute the legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as enforcement may be limited by Debtor Relief Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
ARTICLE 4
AFFIRMATIVE COVENANTS
So long as any part of the Revolving Note remains unpaid, or any other
Obligation remains unpaid or unperformed, Borrower shall, unless Lender
otherwise consents:
4.1 Liens and Taxes. Keep the assets and property of the Borrower free
and clear of all Liens, subject only to Permitted Encumbrances, and pay and
perform when due all other obligations secured by or constituting a Lien
affecting any of the Collateral, except that Borrower shall not be required to
pay or perform any such taxes, Lien claims or other obligations (x) for which
Borrower has been fully indemnified, or (y) which are being actively contested
in good faith by appropriate proceedings, provided that Borrower has established
and maintains adequate accounting reserves for the payment or performance of
such taxes, Lien claims or other obligations.
4.2 Preservation of Existence. Preserve and maintain its existence in
the jurisdiction of its formation and all authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits and registrations
from any Governmental Agency that are necessary for the transaction of its
businesses, and qualify and remain qualified to transact business in each
jurisdiction in which such qualification is necessary in view of its businesses
or the ownership or leasing of its properties except where the failure to
preserve and maintain any such
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authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits and registrations or to so qualify or remain qualified would
not constitute a material adverse effect on the Borrower.
4.3 Maintenance of Properties. Maintain, preserve and protect all of
its depreciable properties in good order and condition, subject to wear and tear
in the ordinary course of business, and not permit any waste of its properties,
except that the failure to maintain, preserve and protect a particular item of
depreciable property that is not of significant value, either intrinsically or
to the operations of Borrower, shall not constitute a violation of this covenant
unless such failure occurs with respect to a sufficient number of items of
depreciable property to jeopardize the existing condition of any bar or
restaurant operation of Borrower.
4.4 Maintenance of Insurance. At all times maintain its existing
policies of insurance.
4.5 Compliance With Laws. Comply with all requirements of applicable
laws.
4.6 Books, Records and Inspection Rights. At all times maintain full
and complete books of account and other records with respect to its business and
operations in conformity with generally accepted accounting principles and in
material conformity with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over Borrower.
4.7 Compliance With Agreements. Promptly and fully comply with all
Contractual obligations under all material agreements, indentures, leases and/or
instruments to which it is a party, whether such material agreements,
indentures, leases or instruments are with Lender or another Person, except that
Borrower need not comply with contractual obligations under any such agreements,
indentures, leases or instruments then being contested by any of them in good
faith by appropriate proceedings or if the failure to comply with such
agreements, indentures, leases or instruments does not constitute a material
adverse effect.
4.8 Financial Information. So long as any part of the Revolving Note
remains unpaid, Borrower shall deliver to Lender copies of Borrower's filings
with the Securities and Exchange Commission within three (3) business days of
such filings.
ARTICLE 5
NEGATIVE COVENANTS
5.1 Disposition of Property. Make any Disposition of its property,
whether now owned or hereafter acquired.
5.2 Mergers; Dissolution. Merge or consolidate with or into any Person;
or dissolve or agree to its dissolution.
5.3 Investments and Acquisitions. Make any Acquisition or enter into
any agreement to make any Acquisition, or make or suffer to exist any
Investment, except:
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(a) Investments consisting of cash equivalents; and
(b) Investments consisting of demand deposits in any bank or
other financial institution.
5.4 Distributions. Make any Distribution, whether from capital, income
or otherwise, and whether in cash or other property, except for Distributions to
CBR less than or equal in aggregate amount to the aggregate amount of all taxes
paid in cash by CBR with respect to property or operations of Borrower, or
Distributions to CBR in repayment of money advanced by CBR to the Company.
5.5 Change in Nature of Business. Make any material change in the
nature of the business of Borrower as at present conducted.
5.6 Liens; Sales and Leasebacks. Create, incur, assume or suffer to
exist any Lien of any nature upon or with respect to any of its property,
whether now owned or hereafter acquired; or engage in any sale and leaseback
transaction with respect to any of its property, except Permitted Encumbrances.
5.7 Indebtedness and Contingent Obligations. Create, incur, assume or
suffer to exist any Indebtedness or Contingent Obligation, except Indebtedness
and Contingent Obligations in favor of Lender under this Agreement.
5.8 Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of Borrower, except for transactions on terms at least
as favorable to Borrower as would be the case in an arm's-length transaction
between unrelated parties of equal bargaining power.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
UPON EVENT OF DEFAULT
6.1 Events of Default. The existence or occurrence of any one or more
of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower fails to make any payment of principal or
interest on any Loan within the earlier of ten (10) business days
following the date when due, or two (2) business days following receipt
of written notice of nonpayment; or
(b) Borrower fails to perform or observe any other covenant
contained in this Agreement, and such failure continues for thirty (30)
days after the earlier to occur of (i) a senior officer of Borrower
becoming aware of such failure, or (ii) notice thereof from the Lender;
or
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(c) Any representation or warranty made in this Agreement
proves to have been incorrect when made in any respect that is
materially adverse to the interests of Lender; or
(d) This Agreement or the Revolving Note at any time after its
execution and delivery and for any reason other than the agreement of
Lender or satisfaction in full of all the obligations, ceases to be in
full force and effect or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any
respect; or
(e) A judgment against Borrower is entered for the payment of
money in excess of One Hundred Thousand Dollars ($100,000) and, absent
procurement of a stay of execution, such judgment remains unbonded or
unsatisfied for forty-five (45) calendar days after the date of entry
of judgment; or
(f) Borrower or CBR institutes or consents to any proceeding
under a Debtor Relief Law relating to it or to all or any part of its
respective property, or is unable or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of that
Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under a Debtor Relief Law
relating to Borrower or CBR or to all or any part of its respective
property is instituted without the consent of that Person and continues
undismissed or unstayed for sixty (60) calendar days; or any judgment,
writ, warrant of attachment or execution or similar process is issued
or levied against all or any material part of the property of Borrower
or CBR and is not released, vacated or fully bonded within sixty (60)
calendar days after its issue or levy; or
(g) The occurrence of a "Draw Down" (as such term is
specifically defined in the Letter of Credit Agreement dated November
1, 1998 (the "Letter of Credit Agreement"); or
(h) The Concession Agreement dated November 1, 1997, by and
between the County of Los Angeles and Borrower, or any other license or
permit is modified, revoked or terminated such that Borrower's business
operations are modified in any materially adverse respect.
6.2 Remedies Upon Event of Default. Without limiting any other rights
or remedies of Lender provided for elsewhere in this Agreement, or the Revolving
Note, or by applicable law, or it equity, or otherwise, Lender may declare all
or any part of the unpaid principal of the Revolving Note, all interest accrued
and unpaid thereon and all other amounts payable under the Revolving Note to be
forthwith due and payable, whereupon the same shall become and be
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forthwith due and payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly waived by
Borrower.
ARTICLE 7
MISCELLANEOUS
7.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of Lender provided herein or in the Revolving Note are cumulative and
not exclusive of any right, power, privilege or remedy provided by law or
equity. No failure or delay on the part of Lender in exercising any right,
power, privilege or remedy may be, or may be deemed to be, a waiver thereof; nor
may any single or partial exercise of any right, power, privilege or remedy
preclude any other or further exercise of the same or any other right, power,
privilege or remedy.
7.2 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement, no approval
or consent thereunder, and no consent to any departure by Borrower or any other
party therefrom, may in any event be effective unless in writing signed by
Lender, and then only in the specific instance and for the specific purpose
given.
7.3 Costs, Expenses and Taxes.
(a) Borrower shall pay on demand the reasonable attorneys
fees, costs and expenses of Lender incurred in connection with the
negotiation, preparation, execution and delivery of the Agreement;
(b) Borrower shall pay on demand the reasonable attorneys
fees, costs and expenses of Lender incurred in connection with any
amendment, waiver, refinancing, restructuring, reorganization
(including a bankruptcy reorganization) and enforcement or attempted
enforcement of the Loan Documents, and any matter related thereto.
7.4 Nature of Lender's Obligations. Nothing contained in this Agreement
or any other Loan Document and no action taken by Lender pursuant hereto or
thereto may, or may be deemed to, make Lender and Borrower or any Affiliate of
Borrower a partnership, an association, a joint venture or other entity.
7.5 Survival of Representations and Warranties. All representations and
warranties contained herein or in the Revolving Note have been or will be relied
upon by Lender, notwithstanding any investigation made by Lender or on its
behalf.
7.6 Notices.
(a) All notices, requests, demands, directions and other
communications provided hereunder must be in writing and must be
mailed, telecopied, or personally delivered to the appropriate party at
the address set forth on the signature pages of this
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Agreement or at any other address as may be designated by it in a
written notice sent to the other party; and
(b) Any notice, request, demand, direction or other
communication given by telecopier must be confirmed within forty-eight
(48) hours by letter mailed or delivered to the appropriate party at
its respective address.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto or thereto may execute any counterpart, each
of which when executed and delivered will be deemed to be an original and all of
which counterparts, when taken together will be deemed to be but one and the
same instrument.
7.8 Binding Effect; Assignment. This Agreement and the Revolving Note
shall be binding upon and inure to the benefit of Borrower, Lender and their
respective successors and assigns, except that Borrower and/or its Affiliates
may not assign their rights hereunder or thereunder or any interest herein or
therein without the prior written consent of Lender. Lender shall have the right
to sell or transfer any interest in this Agreement and the Revolving Note to (i)
any Person other than a competitor of Borrower with the prior consent of
Borrower, which consent shall not be unreasonably withheld, or (ii) any
Affiliate.
7.9 Indemnity by Borrower. Borrower agrees to defend (by counsel
satisfactory to Lender), indemnify, save and hold harmless Lender and its
Affiliates, directors, partners, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against:
(a) Any and all claims, demands, actions, causes of action and
discovery requests that are asserted against any Indemnitee by any
Person (other than Lender) if the claim, demand, action or cause of
action directly or indirectly relates to a claim, demand, action or
cause of action that such Person asserts or may assert against
Borrower, any Affiliate of Borrower (excluding Lender and its
Affiliates, except in their capacities as Lender hereunder) or any
officer, director or shareholder of Borrower;
(b) Any and all claims, demands, actions, causes of action and
discovery requests if the claim, demand, option, cause of action or
discovery request arises out of or relates to the relationship of
Borrower and Lender under this Agreement (including without limitation
any injury or death to persons or damage to property or other loss
occurring on or in connection with the assets and property of Borrower,
whether caused by the alleged negligence or any other act or omission
of Borrower or any other Person);
(c) Any and all claims, demands, actions, causes of action or
discovery requests if the claim, demand, action, cause of action or
discovery request arises out of or relates to any alleged act or
omission of Borrower, any Affiliate of Borrower (excluding Lender and
its Affiliates, except in their capacities as Lender hereunder), or any
Person who is an agent or employee of Borrower; and
(d) Any and all liabilities, losses, costs or expenses
(including reasonable attorneys' fees (including, without limitation,
the cost of in-house legal services) and
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disbursements and other professional services) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing claim,
demand, action or cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct.
The relationship between Borrower and Lender is, and shall at all times
remain, solely that of a borrower and lender; Lender shall not under any
circumstance be construed to be a partner or a joint venturer of Borrower or its
Affiliates; Lender shall not under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary relationship with Borrower or
its Affiliates, or to owe any fiduciary duty to Borrower or its Affiliates;
Lender does not undertake or assume any responsibility or duty to Borrower or
its Affiliates to select, review, inspect, supervise, pass judgment upon or,
inform Borrower or its Affiliates of any matter in connection with their
property or the operations of Borrower or its Affiliates; Borrower and its
Affiliates shall rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise of judgment or supply
of information undertaken or assumed by Lender in connection with such matters
is solely for the protection of Lender and neither Borrower nor any other Person
is entitled to rely thereon; and
7.10 Integration. This Agreement, together with the Revolving Note,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof.
7.11 Governing Law. Except to the extent otherwise expressly provided
therein, this Agreement and the Revolving Note shall be governed by, and
construed and enforced in accordance with, the local laws of California.
7.12 Severability of Provisions. Any provision in this Agreement that
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of this Agreement are
declared to be severable.
7.13 Guaranty. This Agreement and the Revolving Note shall be
guaranteed by CBR.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
SEA VIEW RESTAURANTS, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Vice President, Finance
----------------------------------------
(Printed/Typed Name and Title)
By: /s/ Xxxx Redhead
------------------------------------
President
----------------------------------------
(Printed/Typed Name and Title)
Address:
00000 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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LENDER:
Outside, LLC, a California limited
liability company
By: /s/ J. Xxxxxxxxxxx Xxxxx
------------------------------------
General Partner
----------------------------------------
(Printed/Typed Name and Title)
Address:
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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EXHIBIT A
SEA VIEW RESTAURANTS, INC.
SENIOR PROMISSORY NOTE
$1,000,000 LOS ANGELES, CALIFORNIA
November 30, 1998
Sea View Restaurants, Inc. a California corporation (the "Company"),
the principal office of which is located at 00000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000, for value received hereby promises to pay
to Outside, LLC, a California limited liability company, or its registered
assigns, the sum of One Million Dollars ($1,000,000), or such lesser amount as
shall then equal the outstanding principal amount hereof and any unpaid accrued
interest hereon, as set forth below. The Company promises to pay interest on the
unpaid principal amount hereof from the date hereof until paid, at the rate of
ten percent (10%) per annum, payable on the first day of each month, with all
unpaid principal and accrued interest thereon due and payable February 28, 1999.
This Note is the "Revolving Note," in the aggregate principal amount of One
Million Dollars ($1,000,000), referenced in the Line of Credit Agreement dated
as November 30, 1998, among the Company and Lender ("Credit Agreement"), and is
issued pursuant to and is entitled to the benefits of the Credit Agreement.
Reference is hereby made to the Credit Agreement for a more complete statement
of the terms and conditions under which the loans evidenced hereby are made and
are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
office of Lender.
The interest set forth herein shall in no event exceed the maximum
lawful interest rate permitted by the laws of the State of California. If, for
any circumstances whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, then, ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity; and if, for any circumstance,
the holder hereof shall ever receive as interest an amount which would be
excessive interest, said amount shall be applied to the reduction of the unpaid
balance due hereunder and not to the payment of interest. This provision shall
control every other provision of all agreements between the Company and the
Holders.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of the
Company, which is absolutely unconditional, to pay the principal and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
If an Event of Default shall occur, the Holder of the Note may, so long
as such condition exists, declare the entire principal and unpaid accrued
interest hereon immediately due and payable, by notice in writing to the
Company.
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This Note may be prepaid at any time by the Company. The Company may at
any time prepay in whole or in part the principal sum, plus accrued interest to
date of payment, of this Note.
The rights and obligations of the Company and the Holder of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
Any provision of this Note may be amended, waived or modified upon the
written consent of the Company and Holder.
Any notice, request or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or if telegraphed or mailed by registered or certified
mail, postage prepaid, at the respective addresses of the parties as set forth
herein. Any party hereto may by notice so given change its address for future
notice hereunder. Notice shall conclusively be deemed to have been given when
personally delivered or when deposited in the mail or telegraphed in the manner
set forth above and shall be deemed to have been received when delivered.
This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
If this Note is not paid when due, the Company agrees to pay all costs
of collection and reasonable attorneys fees incurred by the Holder, whether or
not suit is filed.
IN WITNESS WHEREOF, the Company has caused this Note to be issued this
30th day of November, 1998.
SEA VIEW RESTAURANTS, INC.
By: /s/Xxxx Redhead
-------------------------------
Its: President
-------------------------------
Name of Holder: Outside, LLC
Address: 000 X. Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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