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EXHIBIT 10.71
II. STANDBY LETTER OF CREDIT AGREEMENT
In consideration of Santa Xxxxxx Bank issuing for the account of Applicant
the Letter of Credit, Applicant agrees to the following:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings set
forth after each term:
"STANDBY LETTER OF CREDIT AGREEMENT" OR "AGREEMENT" - shall mean this Standby
Letter of Credit Agreement as it may be revised or amended from time to time
pursuant to its terms.
"APPLICANT" - shall mean each xxxxxx of the Application and Agreement.
"APPLICATION" - shall mean the Application for Standby Letter of Credit on the
front of this Agreement and/or an application for amendment of the Letter of
Credit or any combination of such applications as the context may require.
"BENEFICIARY" - shall mean the person or entity named on the Application as the
beneficiary or, in the event the Application and Agreement is for a transferable
Letter of Credit, any person or entity who is the transferee of such
beneficiary.
"EXPIRATION DATE" - shall mean the date the Letter of Credit expires.
"LETTER OF CREDIT" - shall mean an instrument or document entitled irrevocable
Letter of Credit or any instrument or document whatever it is entitled or
whether or not it was titled functioning as a standby letter of credit issued
under or pursuant to the Application and all renewals, extensions and
amendments of such instrument or document.
"LOAN DOCUMENT" - shall mean each and any promissory note, credit agreement,
loan agreement, security agreement, pledge agreement, guaranty or other
agreement or writing signed by Santa Xxxxxx Bank and/or Applicant and/or
guarantor relating to, evidencing or guaranteeing any loan or other extension of
credit made by Santa Xxxxxx Bank to Applicant under or in connection with any
letter of credit document.
"SANTA XXXXXX BANK" - shall mean Santa Xxxxxx Bank, a California banking
corporation.
"UCP" - shall mean the Uniform Customs and Practice for Documentary Credits, an
International Chamber of Commerce publication, or any substitution therefor or
replacement thereof.
Section 2. Reimbursement Obligations.
Applicant shall pay Santa Xxxxxx Bank, on demand, all amounts paid by Santa
Xxxxxx Bank under or in respect of the Letter of Credit.
Section 3. Fees and Charges.
a. On each fee payment date, so long as any undrawn amount of the Letter of
Credit remains available, Applicant shall pay Santa Xxxxxx Bank a Letter of
Credit fee. The fee payment dates shall be the dates as Applicant and Santa
Xxxxxx Bank may agree, or in the absence of such agreement, the fee payment date
shall be the date on which the Santa Xxxxxx Bank issues such Letter of Credit.
The fee shall be at such rate per annum as Applicant and Santa Xxxxxx Bank may
agree, or in the absence of such agreement, at the rate customarily charged by
Santa Xxxxxx Bank at the time such fee is payable. The applicable Letter of
Credit fee shall be calculated and payable on the undrawn amount of the Letter
of Credit as of such fee payment date, and shall be for the period commencing on
such fee payment date and ending on the day preceding the next fee payment date
(or the expiration date of the Letter of Credit, as the case may be), both dates
inclusive. The Letter of Credit fee will be computed on the basis of a 360 day
year and actual days elapsed. Santa Xxxxxx Bank shall not be required to refund
any portion of the Letter of Credit fee paid for any period during which (a) the
Letter of Credit expires or otherwise terminates, or (b) the undrawn amount of
the Letter of Credit is reduced by drawings or by amendment.
b. Applicant shall pay Santa Xxxxxx Bank, on demand, commissions and fees for
amendments to the Letter of Credit, payments under the Letter of Credit,
extensions of the Letter of Credit, cancellation of the Letter of Credit, and
other services in the amounts Applicant and Santa Xxxxxx Bank may agree, or, in
the absence of such agreement, in the amounts customarily charged by Santa
Xxxxxx Bank on the date of the bank's demand.
c. All payments and deposits by Applicant under this Application and Agreement
shall be made at the Santa Xxxxxx Bank's main office at 0000 0xx Xxxxxx, Xxxxx
Xxxxxx, Xxxxxxxxxx 00000. Santa Xxxxxx Bank shall have no obligation to pay
Applicant interest on any deposit made by Applicant under this Application and
Agreement. All payments and deposits by Applicant under this Application and
Agreement shall be United States Dollars.
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Section 4. Extensions.
If the Credit has a provision concerning the automatic extension of the
Expiration Date of the Credit, Santa Xxxxxx Bank may, at its sole option, give
notice of nonrenewal of the Credit; and if Applicant does not at any time want
the Credit to be renewed, Applicant will so notify Santa Xxxxxx Bank fifteen
(15) calendar days before Santa Xxxxxx Bank is to notify the Beneficiary of the
Credit or any advising bank of such nonrenewal pursuant to the terms of the
Credit.
Section 5. Events of Default.
Upon the occurrence of any of the following events, Applicant shall deposit with
Santa Xxxxxx Bank, on demand and as cash security for Applicant's obligations to
Santa Xxxxxx Bank under this Application and Agreement, an amount equal to the
undrawn amount of the Letter of Credit:
a. Applicant defaults under any provision of this Application and Agreement;
b. Any bankruptcy or similar proceeding is commenced with respect to
Applicant;
c. Any default occurs under any other agreement involving the borrowing of
money or the extension of credit under which Applicant may be obligated as
borrower, installment purchaser or guarantor, if such default consists of
the failure to pay any indebtedness when due or if such default permits or
causes the acceleration of any indebtedness or the termination of any
commitment to lend or to extend credit;
d. Applicant defaults on any other obligation to the Santa Xxxxxx Bank;
e. In the opinion of Santa Xxxxxx Bank, any material adverse change occurs in
Applicant's business, operations, financial condition or ability to perform
its obligations under this Application and Agreement;
f. Any court order, injunction or other legal process is issued restraining or
seeking restrain drawing or payment under the Letter of Credit.
g. Any person other than Beneficiary attempts, or in any way claims any right,
to draw under the Letter of Credit, including, without limitation, any
debtor in possession, custodian, receiver, trustee, assignee for the
benefit of creditors, personal representatives or other successor.
h. The death of the undersigned or any guarantor hereunder.
Section 6. Interest.
Applicant shall pay interest, on demand, on any amount not paid when due under
this Application and Agreement from the due date until payment in full at a rate
per annum equal to the reference rate of the Wall Street Journal prime rate,
plus five percentage points. Interest will be computed on the basis of a 360-day
year and actual days elapsed.
Section 7. Additional Agreements of Applicant.
Applicant authorizes Santa Xxxxxx Bank to charge any of Applicant's accounts
with Santa Xxxxxx Bank for all amounts then due and payable to Santa Xxxxxx Bank
under this Application and Agreement. Applicant additionally agrees that:
a. Unless otherwise specifically provided in any Loan Document, Santa Xxxxxx
Bank shall not be obligated at any time to issue any credit for the account
of Applicant;
b. Unless otherwise specifically provided in any Loan Document, if any credit
is issued by Santa Xxxxxx Bank for the account of Applicant, Bank shall not
be obligated to issue any further credit for the account of Applicant or to
make outer extensions of credit to Applicant or in any other manner to
extend any financial consideration to Applicant;
c. Santa Xxxxxx Bank has not give Applicant any legal or other advice with
regard to any Letter of Credit;
d. If Santa Xxxxxx Bank at any time discusses with Applicant the wording for
any Letter of Credit or document pertaining thereto, any such discussion
will not constitute legal or other advice by Santa Xxxxxx Bank or any
representation or warranty of Santa Xxxxxx Bank that any wording or credit
will satisfy Applicant's needs;
e. Applicant accepts all of the language contained in the Application.
Applicant is responsible for the wording of any drawing conditions of the
Letter of Credit and will not rely on Santa Xxxxxx Bank in any way in
connection with the wording of the drawing conditions of the Letter of
Credit or the structuring of any transaction related to the Letter of
Credit;
f. Santa Xxxxxx Bank shall not be deemed the agent of Applicant, any
Beneficiary or any other user of the Letter of Credit, and neither
Applicant nor any Beneficiary nor any other user of the Letter of Credit
will be deemed an agent of Santa Xxxxxx Bank.
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g. All directions and correspondence relating to the Letter of Credit on any
document pertaining thereto are to be sent at the risk of Applicant;
h. Applicant will not seek to obtain, apply for, or acquiesce in any temporary
restraining order, restraining order, preliminary injunction, permanent
injunction or any type of pretrial or permanent injunctive relief or any
similar relief, however named, restraining, prohibiting or enjoining the Santa
Xxxxxx Bank, any of Santa Xxxxxx Bank's correspondents or any advising,
confirming, negotiating, paying, accepting or other bank from paying or
honoring any obligation under or in connection with the Letter of Credit.
Section 8. Security Agreement.
Applicant acknowledges that Applicant's obligations under this Standby Letter of
Credit Agreement are secured by that collateral described in that Security
Agreement executed by [ ] as Grantor on or
about even date herewith. Applicant agrees to immediately reimburse Santa Xxxxxx
Bank for all expenditures incurred by Santa Xxxxxx Bank pertaining to that
collateral or that Security Agreement. In the event of a default under that
Security Agreement, Applicant agrees to deposit on demand as cash security for
the Applicant's obligations to Santa Xxxxxx Bank under this Standby Letter of
Credit Agreement an amount equal to the undrawn amount of the Letter of Credit.
Section 9. Limitation of Liability.
Notwithstanding any other provision of this Agreement, neither Santa Xxxxxx
Bank nor any of its agents or correspondents will have any liability to
Applicant for any action, neglect or omission, if done in good faith, under or
in connection with the Letter of Credit or any document pertaining thereto,
including but not limited to the issuance of any amendment to the Letter of
Credit, the failure to issue or amend any Credit or the honoring or dishonoring
of any Demand under the Letter of Credit. Notwithstanding any other provision in
the Letter of Credit or any document pertaining thereto, in no event shall
Santa Xxxxxx Bank or its officers or directors be liable or responsible
regardless of whether any claim is based on contract or tort, or any other
legal theory, for:
a. any special, consequential, indirect or incidental damages, including but not
limited to lost profits arising out of or in connection with the issuance of
the Letter of Credit or any action taken or not taken by Santa Xxxxxx Bank in
connection with the Letter of Credit, any amendment thereto, or any document
pertaining thereto;
b. the honoring of any draft with any order or directive of any court or
government or regulatory body or entity requiring such honor despite any
temporary restraining order, restraining order, preliminary injunction,
permanent injunction or any type of pretrial or permanent injunctive relief or
any similar relief, however, named, restraining, prohibiting or enjoining such
honor;
c. the dishonoring of any draft in accordance with any legal or other
restriction in force at the time and in the place of presentment, payment or
acceptance;
d. verifying the existence or reasonableness of any act or condition referenced,
or any statement made, in connection with any drawing or presentment under the
Letter of Credit;
e. the use which may be made of the Letter of Credit;
f. any acts or omissions of any Beneficiary or any other user of the Letter of
Credit;
g. any errors, inaccuracies, omissions, interruptions, or delays in
transmission or delivery of any messages, directions or correspondence by mail,
cable, telegraph, wireless or otherwise, whether or not they are in encrypted.
Section 10. Attorney's Fees.
Applicant shall pay, on demand, all costs, expenses and attorney's fees
incurred by Santa Xxxxxx Bank in connection with (a) any dispute concerning the
Letter of Credit or this Application and Agreement, or (b) the enforcement of
this Application and Agreement.
Section 11. Joint and Several Liability.
The word "Applicant" in this Application and Agreement refers to each signer
(other than Santa Xxxxxx Bank) of this Application and Agreement. If this
Application and Agreement is signed by more than one Applicant, their
obligations under this Application and Agreement shall be joint and several.
Section 12. Set-off.
Upon the occurrence of any Event of Default, you may to the fullest extent
permitted by law set off and apply all deposits of the undersigned to you under
this Agreement, irrespective of whether you have made demand for payment of
such obligations and although such obligations may be contingent or unmatured.
Section 13. Obligations Absolute.
The payment of obligations of the undersigned under this agreement shall be
unconditional and irrevocable, and shall not be affected by any lack of
validity or enforceability of the Letter of Credit; the existence of any claim,
set-off or defense that the undersigned may have against the beneficiary, you
or any other person; any statement or other document presented under the Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect; or payment by you under the Letter of Credit against presentation of a
draft or certificate that does not comply with the Letter of Credit.
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Section 14. The UCP.
Subject to the laws, customs and practices of the trade in the area where
Beneficiary is located, the Letter of Credit will be subject to, and
performance under the Letter of Credit by Santa Xxxxxx Bank, and Beneficiary
will be governed by, the "Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce, Publication No. 500," or by
later Uniform Customs and Practice fixed by later Congresses of the
International Chamber of Commerce as in effect on the date the Letter of Credit
is issued.
Section 15. Choice of Law.
This Application and Agreement shall be governed by and construed under the
laws of the State of California, to the jurisdiction of which the parties
hereto submit.
Section 16. Binding Effect; Waiver of Trial by Jury.
This Agreement shall be binding on the undersigned, the heirs, executors,
administrators, successors and assigns of the undersigned and shall inure to
the benefit of, and be enforceable by you, your successors, transferees and
assigns. The undersigned hereby waives the right to trial by jury in any action
or proceeding between us and further waives the right to assert in any such
action or proceeding any defenses, offsets or counterclaims which the
undersigned may have.
Section 17. Date of the Agreement.
This Application and Agreement is executed by Applicant on: July 9 (Month/Day),
1999 (Year) and the undersigned Applicant has read the Agreement and agrees to
its terms and conditions.
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Name of Applicant Signed by: Title
California Beach Restaurants, Inc. /s/ XXXX REDHEAD President
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Signed by: Title
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Direct inquiries to: Debit Drawing to:
Xxxxxx X. Xxxxxxxx, V.P. Finance Telephone (000) 000-0000 Account No. 00000000
FAX (000) 000-0000 Bank Office No. Encino #14
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Are additional sheets attached? [X] Yes [ ] No
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FOR BANK USE ONLY
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Accepted and agreed to by an authorized officer of the Bank:
Approving Officer's Signature: ___________________________, Title ________________, Date ______________
Applicant's Total Liability: $ ___________________________
Original to: Loan Servicing Center - Copy to: Credit Administration
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N-365 (rev 6-24-99) Page 5
