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EXHIBIT 10.73
LINE OF CREDIT AGREEMENT
This Line of Credit Agreement, dated as of March 22, 2000 (the
"Agreement"), is entered into by and between Sea View Restaurants, Inc., a
California corporation ("Borrower"), and Space Partners, a California general
partnership ("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
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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 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.
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"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 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,
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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
2.1 Revolving Line of Credit. Lender hereby agrees to make loans in an
aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000) on a revolving
credit basis to Borrower ("Revolving Commitment"). The Lender's Revolving
Commitment shall terminate on July 20, 2000, 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 July 20, 2000, reborrowed.
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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 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 $2,500, 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:
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(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;
(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.
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.
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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 Continent 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.
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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 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
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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
(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 its 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
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 bylaw 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,
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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.
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,
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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 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.
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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 is guaranteed by
CBR as provided in the Guaranty agreement, dated March 22, 2000, made by CBR, in
favor of Lender, attached hereto and incorporated herein by this reference.
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/ SAMUEL E. CHILAKOS
----------------------------------
Samuel E. Chilakos
Vice President, Finance
By: /s/ ALAN REDHEAD
----------------------------------
Alan Redhead
President
Address:
17383 Sunset Blvd., Suite 140
Pacific Palisades, California 90272
Telecopier: (310) 459-9356
Telephone: (310) 459-9676
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LENDER:
Space Partners, a California general
partnership
By: /s/ J. CHRISTOPHER LEWIS
----------------------------------
J. Christopher Lewis
General Partner
Address:
300 S. Grand Avenue
Los Angeles, California 90071
Telecopier: (213) 229-8597
Telephone: (213) 229-8453
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EXHIBIT A
SEA VIEW RESTAURANTS, INC.
SENIOR PROMISSORY NOTE
$250,000 LOS ANGELES, CALIFORNIA
March 22, 2000
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 Space Partners, a California general partnership, or its registered assigns,
the sum of two hundred fifty thousand Dollars ($250,000), 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
July 20, 2000. This Note is the "Revolving Note," in the aggregate principal
amount of Two Hundred Fifty Thousand Dollars ($250,000), referenced in the Line
of Credit Agreement dated as March 22, 2000, 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, the, 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.
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<PAGE> 16
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.
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
17th day of March, 2000.
SEA VIEW RESTAURANTS, INC.
By: /s/ ALAN REDHEAD
-------------------------------------
Alan Redhead
President
Name of Holder: Space Partners, a California general partnership
Address: 300 S. Grand Ave., 29th Floor
Los Angeles, California 90071
16
