EXHIBIT 10.2
THIRTEENTH AMENDMENT AND CONSENT
THIRTEENTH AMENDMENT AND CONSENT dated as of May 1, 2002 (the "THIRTEENTH
AMENDMENT") with respect to the Revolving Credit and Term Loan Agreement dated
as of April 26, 1999 (as amended, the "CREDIT AGREEMENT") by and among Chart
House Enterprises, Inc. (the "PARENT"), Chart House, Inc. (the "BORROWER"), the
lending Institutions from time to time party thereto (collectively, the "BANKS")
and Fleet National Bank (formerly known as BankBoston, N.A.), as Agent (the
"AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have made Loans and
other financial accommodations to the Borrower which remain outstanding; and
WHEREAS, the Borrower has requested that the Agent and the Banks, and the
Agent and the Banks are willing to, amend the Credit Agreement and consent to
the Arizona Lease Modification (as defined below), but only on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINED TERMS. Unless otherwise defined herein, capitalized
terms used herein have the meanings assigned in the Credit Agreement and the
following terms shall have the following meanings:
"ARIZONA XXXXXX & MAXIES RESTAURANT" means that certain Xxxxxx & Maxies
restaurant located on the southwest corner of 24th Street and Camelback Road in
Phoenix, Arizona.
"ARIZONA LEASE MODIFICATION" means the modification of that certain Retail
Space Lease Agreement dated as of April 28, 2000 relating to the Arizona Xxxxxx
& Maxies Restaurant pursuant to that certain Lease Modification Agreement by and
among 24th and Camelback LLC, as landlord, Chart House Acquisition, Inc., as
tenant, and Parent, as guarantor, substantially in the form attached hereto as
Annex A.
"EFFECTIVE DATE" shall have the meaning ascribed thereto in Article VI of
this Thirteenth Amendment.
"EGI (01)" means EGI-Fund (01) Investors, L.L.C.
"EXCESS AP" shall have the meaning ascribed thereto in the Participation
Agreement.
"ACTUAL NET AVAILABILITY" shall have the meaning ascribed thereto in the
Participation Agreement.
"PARTICIPATION AGREEMENT" means that certain Participation Agreement dated
as of October 22, 2001 (as amended, modified or restated from time to time) by
and among EGI (01), the Agent and the Banks.
"REPORTING DATE" means every Tuesday during the Reporting Period.
"REPORTING PERIOD" means the period from Tuesday, October 23, 2001 through
and including Tuesday, August 30, 2002.
"SUBSEQUENT PARTICIPATING AMOUNT" shall have the meaning ascribed thereto
in the Participation Agreement.
"TWELFTH AMENDMENT" means the Twelfth Amendment and Waiver dated as of
October 22, 2001 among the parties hereto.
"UNFUNDED EGI COMMITMENTS" means an amount equal to $500,000 MINUS the
aggregate of all Subsequent Participating Amounts purchased by EGI pursuant to
the Participation Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Section 2.1 AMENDMENTS TO SECTION 1.1 (DEFINITIONS). (a) Section 1.1 of the
Credit Agreement is hereby amended by (i) deleting the definitions of "Revolving
Credit Loan Maturity Date" and "Term Loan Maturity Date" and (ii) inserting the
following definitions in their proper alphabetical order:
"REVOLVING CREDIT LOAN MATURITY DATE" August 30, 2002.
"TERM LOAN MATURITY DATE" August 30, 2002.
Section 2.2 AMENDMENT TO SECTION 4.3.1 (TERM LOAN). Section 4.3.1 of the
Credit Agreement is hereby amended by deleting said section in its entirety and
inserting in lieu thereof the following:
"The Borrower promises to pay to the Agent, for the ratable
benefit of the Banks, the principal amount of the Term Loan in
two (2) installments payable on the dates and in the amounts set
forth below, with a final payment on the Term Loan Maturity Date
in an amount equal to the unpaid balance of the Term Loan.
Date Amount
-------------------------------
June 28, 2002 $400,000
July 31, 2002 $500,000"
ARTICLE III
AGREEMENTS
Section 3.1 INTEREST. Anything to the contrary contained in the Credit
Agreement or the Twelfth Amendment notwithstanding, during the period beginning
on the Effective Date through and including the earlier of (a) Xxxxxx 00, 0000,
(x) the day prior to the date of the occurrence of an Event of Default or
(c) the date when all Obligations are paid in full in cash (the "THIRTEENTH
AMENDMENT PERIOD"), the Loans shall bear interest at a rate PER ANNUM equal to
the Base Rate plus 2.75%; it being understood that Eurodollar Rate Loans shall
not be available during the Thirteenth Amendment Period.
Section 3.2 LIMITATION ON REVOLVING CREDIT COMMITMENTS. The Borrower hereby
acknowledges and agrees that, anything to the contrary contained in the Credit
Agreement notwithstanding, to the extent the aggregate principal amount of
outstanding Revolving Credit Loans is equal to or exceeds $19,000,000, the Agent
and the Banks shall not be required to make Revolving Credit Loans unless and
until (a) EGI (01) pays to the Agent, for the ratable benefit of the Banks, a
Subsequent Participating
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Amount and (b) such Subsequent Participating Amount equals or exceeds the amount
of Revolving Credit Loans to be made.
Section 3.3 FINANCIAL COVENANT. The Borrower shall not permit, measured as
at any Reporting Date, the sum of (i) Actual Net Availability PLUS (ii) the
Unfunded EGI Commitments MINUS Excess AP to be less than $300,000; it being
understood that a breach of this financial covenant shall, without the necessity
of any further action by any party, automatically constitute an Event of Default
under the Credit Agreement.
Section 3.4 RESTRICTION ON CAPITAL EXPENDITURES. During the Thirteenth
Amendment Period, the Borrower and the Parent shall not make and shall not
permit any Subsidiary of the Borrower or the Parent to make Capital Expenditures
that exceed $425,000 in the aggregate.
Section 3.5 RESTRICTIONS ON ACH TRANSFERS AND ISSUANCE OF CHECKS. The
Borrower and the Parent shall not and shall not permit any Subsidiary of the
Borrower or the Parent to conduct an ACH transfer or issue any check unless
there are sufficient funds in the general ledger, there is sufficient
availability under the Credit Agreement or there is otherwise a reasonable
anticipation that such availability will exist when presented for payment.
Section 3.6 FINANCIAL REPORTING REQUIREMENTS. The Borrower hereby agrees to
provide to the Agent and the Banks on each Reporting Date during the Reporting
Period a 13-week cash flow forecast and the following information: (a) Actual
Net Availability, (b) Excess AP, (c) the dollar amount of accounts payable,
(d) the amount of Unfunded EGI Commitments, (e) Capital Expenditures made during
the Reporting Period, (f) the weighted average days outstanding of accounts
payable and (g) such other information as the Agent may request. Each 13-week
cash flow forecast and all other information required to be provided pursuant to
this Section 3.6 shall be certified by the Borrower's Chief Financial Officer.
Section 3.7 EXTENSION FEE. The Borrower hereby agrees that on August 1,
2002, it shall pay to the Agent, for the ratable benefit of the Banks (and the
Guarantors guarantee the payment of), an extension fee in an amount equal to
$200,000 (the "EXTENSION FEE"), PROVIDED, HOWEVER, in the event the Obligations
are paid in full in cash on or before August 1, 2002 the Extension Fee shall be
waived. The Extension Fee shall be deemed earned in full on the Effective Date.
Section 3.8 WAIVER OF DEFAULT INTEREST AND PORTION OF AMENDMENT FEE. The
Agent and the Banks hereby agree to waive Default Interest (as such term was
defined in the Twelfth Amendment) and a portion of the Amendment Fee in an
amount equal to $175,000. Accordingly, the Borrower remains obligated to pay, on
May 1, 2002, a portion of the Amendment Fee in an amount equal to $400,000 (the
"MODIFIED AMENDMENT FEE").
Section 3.9 PAYMENT OF AMENDMENT FEE, INTEREST, AGENT FEE AND COMMITMENT
FEE. The Borrower hereby agrees that, in connection with its Loan Request made
on April 30, 2002 in an amount equal to $3,600,000, the Agent may retain an
amount equal to $1,398,055.76 for payment in full of (i) accrued and unpaid
interest through and including April 30, 2002 in an amount equal to $967,164.53,
(ii) the Agent fee due and owing pursuant to Section 6.2 of the Credit Agreement
in an amount equal to $25,000, (iii) the accrued but unpaid Commitment Fee
through and including April 30, 2002 in an amount equal to $5,891.23 and (iv)
the Modified Amendment Fee in an amount equal to $400,000.
Section 3.10 CROSS-DEFAULT. To the extent that EGI (01) defaults in any of
its obligations under the Participation Agreement, including, without
limitation, Section 3 thereof, such default shall, without
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the necessity of any further action by any party, automatically constitute an
Event of Default under the Credit Agreement.
Section 3.11 AGREEMENTS DEEMED AGREEMENTS UNDER THE CREDIT AGREEMENT. For
purposes of the Credit Agreement, the agreements of the Borrower contained in
this Thirteenth Amendment shall be deemed to be, and shall be, agreements under
the Credit Agreement. Without limiting the foregoing sentence, if the Borrower
breaches any provision contained in this Article IV or in Section 8.2 hereof, or
should any representation or warranty set forth in Section 7.1 be untrue, then
such event shall, without the necessity of any further action by any party,
automatically constitute an Event of Default.
ARTICLE IV
CONSENT
Notwithstanding anything to the contrary contained in Section 11.5.2 of the
Credit Agreement, subject to the terms and conditions set forth herein, the
Agent and the Banks hereby consent to the Arizona Lease Modification, and, in
connection therewith, the Agent and the Banks hereby agree to release of all
their security interests in the assets located in the Arizona Xxxxxx & Maxies
Restaurant.
ARTICLE V
EFFECTIVE DATE
This Thirteenth Amendment shall become effective as of the date on which
(i) the Agent has received (a) counterparts to this Thirteenth Amendment, duly
executed and delivered by the Borrower, the Parent, the Subsidiary Guarantors,
the Agent and each of the Banks and (b) payment in full in cash of the invoiced
and unpaid fees and expenses of the Agent's professionals and (ii) EGI
acknowledges and agrees, in writing, in a form substantially similar to Annex B
attached hereto, that its obligation to purchase junior and subordinated
participating interests in Revolving Credit Loans under the terms of the
Participation Agreement has been extended to and including August 30, 2002.
ARTICLE VI
INTERPRETATION
Section 6.1 CONTINUING EFFECT OF THE CREDIT AGREEMENT. The Borrower, each
Subsidiary Guarantor, the Agent and each Bank hereby acknowledges and agrees
that the Credit Agreement shall continue to be and shall remain unchanged and in
full force and effect in accordance with its terms, except as expressly modified
hereby.
Section 6.2 NO WAIVER. Nothing contained in this Thirteenth Amendment shall
be construed or interpreted or is intended as a waiver of any Default or Event
of Default, or of any rights, powers, privileges or remedies that the Agent or
the Banks have or may have under the Credit Agreement, the Security Documents,
any other Loan Document or related document or applicable law on account of such
Default or Event of Default, except as expressly provided herein.
ARTICLE VII
MISCELLANEOUS
Section 7.1 REPRESENTATION AND WARRANTIES. (a) The representations and
warranties contained in Section 9 of the Credit Agreement are true and correct
at and as of the date made and as of the date hereof, except to the extent of
changes resulting from transactions contemplated or permitted by this Amendment
and the other Loan Documents, changes which have been disclosed to the Agent and
the Banks prior to the date hereof and changes occurring in the ordinary course
of business that singly or in
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the aggregate are not materially adverse, and to the extent that such
representations and warranties related expressly to an earlier date.
(b) Each of the Parent, the Borrower and each Subsidiary Guarantor has
performed and complied in all material respects with all terms and conditions
herein required to be performed or complied with by it prior to or at the time
hereof, and as of the date hereof, after giving effect to the provisions hereof,
there exists no Default or Event of Default.
Section 7.2 PAYMENT OF FEES AND EXPENSES. The Borrower hereby agrees to pay
or reimburse the Agent on demand for all its reasonable out-of-pocket costs and
expenses incurred in connection with the preparation and execution of this
Thirteenth Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent. In furtherance of the provisions of this
Section 7.2 and Section 18.1 of the Credit Agreement, the Borrower hereby agrees
that the Agent shall be entitled, upon one Business Day's written notice to the
Borrower, to debit any account of the Borrower to collect costs and expenses to
which the Agent is entitled pursuant to Sections 7.2 and 18.1 of the Credit
Agreement.
Section 7.3 COUNTERPARTS. This Thirteenth Amendment may be executed by the
parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 7.4 THIRTEENTH AMENDMENT AS LOAN DOCUMENT. For purposes of the
Credit Agreement, this Thirteenth Amendment shall be deemed to be, and shall
constitute a Loan Document.
Section 7.5 INTEGRATION. The Loan Documents, including the Credit Agreement
as amended hereby, and any other documents executed in connection herewith or
therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby.
Section 7.6 GOVERNING LAW. THIS THIRTEENTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS THIRTEENTH AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
COMMONWEALTH OF
MASSACHUSETTS.
Section 7.7 CONFIRMATION OF INDEBTEDNESS. The Borrower hereby confirms and
acknowledges that, as of the Effective Date, the Borrower is truly and justly
indebted to the Banks, without defense, counterclaim or offset of any kind, in
respect of Loans and Letters of Credit in the aggregate principal amount of
$30,214,500.
Section 7.8 RATIFICATION OF GUARANTY. By its signature below, the Parent
and each Subsidiary Guarantor hereby acknowledges this Thirteenth Amendment and
agrees that the applicable Guarantee from such Guarantor in favor of the Agent
for the benefit of the Agent and the Banks and all other Loan Documents to which
such Guarantor is a party remains in full force and effect, and each such
Guarantor hereby confirms and ratifies all of its obligations thereunder.
Section 7.9 WAIVER AND RELEASE. The Parent, the Borrower and each
Subsidiary Guarantor hereby releases, waives, and forever relinquishes all
claims, demands, obligations, liabilities and causes of action of whatever kind
or nature, whether known or unknown, which any of them have, may have, or might
assert at the time of execution of this Thirteenth Amendment or in the future
against the Agent, the Banks and/or their respective parents, affiliates, and
each of the participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns of any of the foregoing,
directly or indirectly, which occurred, existed, was taken, permitted or begun
prior to the Effective Date, arising out of, based upon, or in any manner
connected with (a) any transaction, event, circumstance,
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action, failure to act or occurrence of any sort or type, whether known or
unknown, with respect to the Credit Agreement, the Security Documents, any other
related documents and/or the administration thereof or the obligations created
thereby; (b) any discussions, commitments, negotiations, conversations or
communications with respect to the refinancing, restructuring or collection of
any obligations related to the Credit Agreement, the Security Documents, any
other related document and/or the administration thereof or the obligations
created thereby, or (c) any matter related to the foregoing.
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IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
CHART HOUSE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
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FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
as Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Title: S.V.P.
BNP PARIBAS, as a Lender
By: /s/ Xxx Xxxxxxxxx
--------------------------------
Title: Director
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Title: Director
ING (U.S.) CAPITAL LLC, as a Lender
By: /s/ Xxxxxxx Xxxxxx - Xxxxxx
--------------------------------
Title: Director
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ACKNOWLEDGED AND AGREED:
CHART HOUSE ENTERPRISES, INC.
as Parent
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
CHART HOUSE ENTERPRISES OF IDAHO,
INC., as a Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title:
CHART HOUSE ENTERPRISES OF PUERTO
RICO, INC., as a Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
CHART HOUSE OF ANNAPOLIS, INC., as a
Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
CHART HOUSE OF MARYLAND, INC., as a
Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
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CHART HOUSE ACQUISITION, INC., as a
Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
BIG WAVE, INC., as a Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
CORK 'N XXXXXXX, INC., as a Subsidiary
Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
ANALOS COMPANY, as a Subsidiary
Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
WEST 52nd STREET, INC., as a Subsidiary
Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
CHART HOUSE ACQUISITION OF
NEVADA, INC., as a Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
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CHART HOUSE ACQUISITION OF
MARYLAND, INC., as a Subsidiary Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
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