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EXHIBIT 10.60
LINE OF CREDIT AGREEMENT
This Line of Credit Agreement, dated as of November 24, 1997 (the
"Agreement"), is entered into by and between Sea View Restaurants, Inc., a
California corporation ("Borrower"), 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,
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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.
"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
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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 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
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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.
"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
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2.1 Revolving Line of Credit. Lender hereby agrees to make loans in
an aggregate amount of One Million Dollard($1,000,000) on a revolving credit
basis to Borrower ("Revolving Commitment"). The Lender's Revolving Commitment
shall terminate on November 30, 1998, 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 November 30, 1998, 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).
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
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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 1-1/4% of the amount of the Revolving Commitment,
payable quarterly, with the first payment of $3,125 due on the date hereof, and
the remaining three payments of $3,125 due March 1, 1998, June 1, 1998 and
September 1, 1998, even if the Revolving Commitment is sooner terminated.
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.
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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 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.
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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:
(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.
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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
(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
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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,
1997 (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 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
71. 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
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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 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.
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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 without 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
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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 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.
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7.13 Guaranty. This Agreement and the Revolving Note shall be
guaranteed by CBR.
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: ____________________________________
________________________________________
(Printed/Typed Name and Title)
By: ____________________________________
________________________________________
(Printed/Typed Name and Title)
Address:
17383 Sunset Blvd., Suite 140
Pacific Palisades, California 90272
Telecopier: (310) 459-9356
Telephone: (310) 459-9676
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LENDER:
Outside, LLC, a California limited
liability company
By: ____________________________________
________________________________________
(Printed/Typed Name and Title)
Address:
________________________________________
________________________________________
________________________________________
Telecopier: ____________________________
Telephone: _____________________________
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EXHIBIT A
SEA VIEW RESTAURANTS, INC.
SENIOR PROMISSORY NOTE
$1,000,000 LOS ANGELES, CALIFORNIA
November 24, 1997
Sea View Restaurants, Inc., a California corporation (the "Company"),
the principal office of which is located at 17383 Sunset Boulevard, Suite 140,
Pacific Palisades, California 90272, 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 November 24, 1998.
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 of November 24, 1997, 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.
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.
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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 attorney fees incurred by the Holder, whether or
not suit is filed.
IN WITNESS WHEREOF, the Company has caused this Note to be issued this
24th day of November, 1997.
SEA VIEW RESTAURANTS, INC.
By:
------------------------------------
Its: President
-----------------------------------
Name of Holder: Outside, LLC
Address: _________________________
__________________________________
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TRANSACTIONS
ON
REVOLVING NOTE
Amount of Outstanding
Amount of Loan Principal Paid Principal Balance Notation
Date Made This Date This Date This Date Made By
- ---- -------------- --------- --------- -------
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GUARANTY
This Guaranty ("Guaranty"), dated as of November 24, 1997, is
made by California Beach Restaurants, Inc., a California corporation
("Guarantor"), in favor of Outside, LLC, a California limited liability company
("Lender"), with reference to the following facts:
RECITALS
A. Pursuant to the Line of Credit Agreement of even date
herewith, entered into by and between Sea View Restaurants, Inc., a California
corporation ("Borrower"), and Lender (the "Line of Credit Agreement"), Lender
has agreed to extend to Borrower credit facilities in an aggregate amount up to
One Million Dollars ($1,000,000).
B. As a condition of the availability of such credit
facilities, Guarantor is required to enter into this Guaranty and to guaranty
the Guarantied Obligations as hereinafter provided.
C. Borrower is a Subsidiary of Guarantor.
D. Guarantor expects to realize direct and indirect benefits
as the result of the availability of the aforementioned credit facilities, and
as the result of the execution of this Guaranty.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to extend the
aforementioned credit facilities, and for other good and valuable consideration,
the receipt and adequacy of which hereby is acknowledged, Guarantor hereby
represents, warrants, covenants, agrees and guarantees as follows:
1. Definitions. This Guaranty is the Guaranty to be executed
by Guarantor or referred to in the Line of Credit Agreement. Terms defined in
the Line of Credit Agreement and not otherwise defined herein shall have the
meanings given those terms in the Line of Credit Agreement. The following terms
shall have the meanings respectively met forth after each:
"Event of Default" means any Event of Default under, or as defined in
the Line of Credit Agreement; or any failure by Guarantor to perform any
agreement contained herein or in any related agreement, subject to any
applicable notice and cure period contained herein or therein; if, at
the time of any failure by Guarantor to perform any agreement contained
herein, there has not occurred and is not then continuing any other
Event of Default under or as defined in the Line of Credit Agreement,
such failure shall not constitute an "Event of Default" hereunder unless
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it continues uncured for ten (10) days after the giving of notice by
Lender to Guarantor of such failure.
"Guarantied obligations" means any and all present and future
obligations of any type or nature of borrower to Lender arising under or
related to the Loan Documents whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as obligations of payment,
and including interest that accrues after the commencement of any
bankruptcy or insolvency proceeding by or against Borrower.
2. Guaranty of Guarantied Obligations For valuable
consideration, Guarantor hereby unconditionally guarantees and promises to pay
and perform promptly on demand the Guarantied obligations and each and every one
of them, including, all amendments, modifications, supplements, renewals or
extensions of any of them whether such amendments, modifications, supplements,
renewals or extensions are evidenced by new or additional instruments, documents
or agreements or change the rate of interest on any Guarantied Obligation or the
security therefor, or otherwise.
3. Nature of Guaranty. This Guaranty is irrevocable and
continuing in nature and relates to any Guarantied obligations now existing or
hereafter arising . This Guaranty is a guaranty of prompt and punctual payment
and performance and is not merely a guaranty of collection.
4. Relationship to Other Agreements.. Nothing herein shall in
any way modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor or in connection with
the Guarantied Obligations, but each and every term and condition hereof shall
be in addition thereto.
5. Subordination of Indebtedness. Guarantor agrees that:
(a) Any indebtedness of Borrower now or hereafter owed
to Guarantor hereby is subordinated to the Guarantied Obligations.
(b) Upon the occurrence and during the continuance of
an Event of Default, if Lender so requests, any such indebtedness of
Borrower now or hereafter owed to Guarantor shall be collected, enforced
and received by Guarantor as trustee for Lender an account of the
Guarantied Obligations, but without reducing or affecting in any manner
the obligations of Guarantor under the other provisions of this
Guaranty.
(c) Upon the occurrence and during the continuance of
an Event of Default, should Guarantor fail to collect or enforce any
such indebtedness of
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Borrower now or hereafter owed to Guarantor and pay the proceeds thereof
to Lender, Lender as Guarantor's attorney-in-fact may do such acts and
sign such documents in Guarantor's name as Lender considers necessary or
desirable to effect such collection, enforcement and/or payment.
6. Statute of Limitations and Other Laws. Until the
Guarantied Obligations shall have been irrevocably paid and performed in full,
all of the rights, privileges, powers and remedies granted to Lender hereunder
shall continue to exist and may be exercised by Lender at any time and from time
to time, irrespective of the fact that any of the Guarantied Obligations may
have become barred by any statute of limitations. Guarantor expressly waives the
benefit of any and all statutes of limitation, and any and all laws providing
for exemption of property from execution or for valuation and appraisal upon
foreclosure.
7. Rights Upon Event Default. Upon the occurrence and during
the continuance of any Event of Default, Lender may enforce this Guaranty
independently of any other remedy or security Lender at any time may have or
hold in connection with the Guarantied Obligations, and it shall not be
necessary for Lender to marshal assets in favor of Borrower, Guarantor or any
other Person or to proceed upon or against and/or exhaust any security or remedy
before proceeding to enforce this Guaranty. Lender may file a separate action or
actions against Guarantor, whether action is brought-or prosecuted with respect
to any security or against any other Person, or whether any other Person is
joined in any such action or actions. Guarantor agrees that Lender and Borrower
may deal with each other in connection with the Guarantied obligations or
otherwise, or alter any contracts or agreements now or hereafter existing
between them, in any manner whatsoever, all without in any way altering or
affecting the security of this Guaranty. Lender's rights hereunder shall be
reinstated and revived, and the enforceability of this Guaranty shall continue,
with respect to any amount at any time paid on account of the Guarantied
obligations which thereafter shall be required to be restored or returned by
Lender upon the bankruptcy, insolvency or reorganization of Guarantor or
otherwise, all as though such amount had not been paid. The rights of Lender
created or granted herein and the enforceability of this Guaranty at all times
shall remain effective to guaranty the full amount of all the Guarantied
Obligations even though the Guarantied obligations, including any part thereof
or any other security or guaranty therefor, may be or hereafter may become
invalid or otherwise unenforceable as against Borrower and whether or not
Borrower shall have any personal liability with respect thereto. Guarantor
expressly waives any and all defenses now or hereafter arising or asserted by
reason of (a) any disability or other defense of Borrower with respect to the
Guarantied Obligations, (b) the unenforceability or invalidity of any security
or guaranty for the Guarantied Obligations or the lack of perfection or
continuing perfection or failure of priority of any security for the Guarantied
Obligations, (c) the cessation for any cause whatsoever of the liability of
Borrower (other than by reason of the full payment and performance of all
Guarantied Obligations), (d) any failure of Lender to marshal assets in favor of
Borrower or any other Person, (e) any act or omission of Lender or others that
directly or indirectly results in or aids the discharge or release of Borrower
or the Guarantied Obligations or any security or guaranty therefor by operation
of Law or otherwise (other than by reason of the full payment and
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performance of all Guarantied Obligations), (f) any Law which provides that the
obligation of a surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or which reduces a
surety's or guarantor's obligation in proportion to the principal obligation,
(g) any failure of Lender to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person, (h) any extension of credit or the grant
of any lien under Section 364 of the United States Bankruptcy Code, or (i) any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against any Person,
including any discharge of, or bar or stay against collecting, all or any of the
Guaranteed Obligations (or any interest thereon) in or as a result of any such
proceedings. Guarantor expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guarantied Obligations, and all notices of acceptance of this Guaranty or of the
existence, creation or incurring of new or additional Guarantied Obligations.
Notwithstanding the foregoing, as a courtesy, Lender agrees to send to Guarantor
a copy of any notice of a Default or Event of Default under the Line of Credit
Agreement that Lender sends to Borrower, provided that Guarantor hereby waives
any and all claims and defenses Guarantor otherwise might assert in connection
with the content of such notice, the timing of such notice, the failure to
provide such notice or otherwise related to Lender's agreement to provide such
courtesy notice.
8. Waivers and Consents. Guarantor acknowledges that the
obligations of Guarantor undertaken herein involve the guaranty of obligations
of Persons other than Guarantor and, in full recognition of that fact, Guarantor
consents and agrees that Lender may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or continuing
effectiveness hereof: (a) supplement, modify, amend, extend, renew, accelerate
or otherwise change the time for payment or the terms of the Guarantied
Obligations or any part thereof, including any increase or decrease of the
rate(s) of interest thereon; (b) supplement, modify, amend or waive, or enter
into or give any agreement, approval or consent with respect to, the Guarantied
Obligations or any part thereof or any additional security or guaranties, or any
condition, covenant, default, remedy, right, representation or term thereof or
thereunder; (c) accept now or additional instruments, documents or agreements in
exchange for or relative to any of the Guarantied Obligations or any part
thereof; (d) accept partial payments on the Guarantied Obligations; (e) receive
and hold additional security or guaranties for the Guarantied Obligations or any
part thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner of sale
thereof as Lender in its sole and absolute discretion may determine (g) release
any other Person from any personal liability with respect to the Guarantied
obligations or any part thereof; (h) settle, release on terms satisfactory to
Lender or by operation of applicable Laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty in any manner, consent to
the transfer of any security and bid and purchase at any sale (other than by
reason of the full payment and performance of all Guarantied obligations);
and/or (i) consent to the merger, change or any other restructuring or
termination of the corporate
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existence of Borrower or Guarantor, and correspondingly restructure the
Guarantied Obligations, and any such merger, change, restructuring or
termination shall not affect the liability of Guarantor or the continuing
effectiveness hereof, or the enforceability hereof with respect to all or any
part of the Guarantied Obligations.
9. Waiver of Rights of Subrogation. Notwithstanding anything
to the contrary elsewhere contained herein, Guarantor hereby expressly waives
with respect to Borrower and its successors and assigns and any other Person,
any and all rights at Law or in equity to subrogation, reimbursement,
exoneration, contribution, setoff, or any other rights that could accrue to a
surety against a principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a holder or transferee
against a maker, and which Guarantor may have or hereafter acquire against
Borrower, any constituent entities, or any other Person in connection with or as
a result of Guarantor's execution, delivery and/or performance of this Guaranty.
In furtherance of the foregoing, Guarantor agrees that any payment by Guarantor
to Lender pursuant to this Guaranty shall be deemed a contribution to the
capital of Borrower and no such payment shall constitute Guarantor a creditor of
Borrower. Guarantor hereby acknowledges and agrees that the foregoing waivers
are intended to benefit Borrower and Lender and shall not limit or otherwise
affect Guarantor's liability hereunder or the enforceability hereof.
10. Understandings With Respect to Waivers and Consents.
Guarantor warrants and agrees that each of the waivers and consents set forth
herein are made after consultation with legal counsel and with full knowledge of
their significance and consequences with the understanding that events giving
rise to any defense or right waived may diminish, destroy or otherwise adversely
affect rights which Guarantor otherwise may have against Borrower, Lender or
others, if any of the waivers or consents herein are determined to be contrary
to any applicable Law or public policy, such waivers and consent shall be
effective to the maximum extent permitted by Law.
11. Authorization; No Conflict. The execution and delivery of
this Guaranty, and the performance by Guarantor hereunder, are within
Guarantor's power, and do not and will not conflict with any provision of any
Law, or any other agreement to which Guarantor is a party.
12. Validity and Binding Nature. This Guaranty constitutes a
legal, binding and valid obligation of Guarantor, enforceable against Guarantor
in accordance with its terms.
13. Cost and Expenses. Guarantor agrees to pay to Lender all
costs and expenses (including reasonable attorneys' fees and disbursements)
incurred by Lender in the enforcement or attempted enforcement of this Guaranty,
whether or not an action is filed in connection therewith, and in connection
with any waiver or amendment of any term or provision hereof. All advances,
charges, costs and expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by Lender in exercising any right, privilege
power or remedy conferred by this Guaranty, or in the enforcement or attempted
enforcement thereof shall be subject hereto and shall become a part of the
Guarantied Obligations and shall be paid to Lender
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by Guarantor, immediately upon demand, together with interest thereon at the
rate(s) provided for under the Line of Credit Agreement.
IN WITNESS WHEREOF, Guarantor, as a continuing guarantor, has
executed this Guaranty an of the date first written above.
"Guarantor"
CALIFORNIA BEACH RESTAURANTS, INC.
a California corporation
By: ____________________________________
Title: _________________________________
ACCEPTED AND AGREED AS OF THE
DATE FIRST SET FORTH ABOVE
"Lender"
Outside, LLC
By: _____________________________
Title: __________________________
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