EXHIBIT 10.1(5)
AMENDMENT NO. 4
DATED AS OF AUGUST 25, 1995 TO
AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 17, 1993
AMENDMENT NO. 4 (this "Amendment") dated as of August 25, 1995 to the
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 17, 1993 (as amended by Amendment No. 1 dated as of September 30, 1994,
Amendment No. 2 dated as of April 26, 1995, Amendment No. 3 dated as of June 14,
1995 and as may be further amended and in effect from time to time, the "Credit
Agreement"), by and among (a) Chart House, Inc., a Delaware corporation (the
"Company"), (b) Chart House Enterprises, Inc., a Delaware corporation (the
"Parent"), Paradise Bakery, Inc., a Delaware corporation ("Paradise"), and
Islands Restaurants, Inc., a Delaware corporation ("Islands", and together with
the Parent and Paradise, the "Existing Guarantors", and Islands and the Parent,
together the "Remaining Guarantors"), (c) The First National Bank of Boston, a
national banking association ("FNBB"), Sanwa Bank California, a California state
chartered bank ("Sanwa"), The Sumitomo Bank of California, a California state
chartered bank ("Sumitomo", and collectively with Sanwa and FNBB, the "Banks")
and (d) Sanwa as agent for itself, FNBB and Sumitomo (in such capacity, the
"Agent"). Capitalized terms which are used herein without definition and which
are defined in the Credit Agreement shall have the same meaning herein as in the
Credit Agreement, as amended hereby. As used herein the term "Omnibus
Amendment" shall mean Omnibus Amendment No. 2 dated as of the date hereof by and
among the Company, the Existing Guarantors, the Banks, Metropolitan Life
Insurance Company ("Metropolitan") and Sanwa as pledgee for the Banks and
Metropolitan.
WITNESSETH:
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WHEREAS, the Parent has informed the Banks and the Agent that the Parent
intends to sell all of its rights and interest in Paradise to Clucker's Wood
Roasted Chicken, Inc. substantially in accordance with the terms set forth on
Exhibit A attached hereto and made a part hereof (the "Sale");
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WHEREAS, the Company and the Existing Guarantors have requested that the
Banks and the Agent consent to the Sale and amend the Credit Agreement and the
other Loan Documents to reflect the Sale;
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WHEREAS, the Company and the Existing Guarantors have requested that the
Banks and the Agent amend certain other terms and conditions of the Credit
Agreement and Loan Documents; and
WHEREAS, the Banks and the Agent, subject to the terms and conditions set
forth below, have agreed to consent to the Sale and to amend the Credit
Agreement and the other Loan Documents in accordance with the above-listed
requests;
NOW, THEREFORE, in consideration of the foregoing premises, on the terms
and subject to the conditions set forth herein, the parties hereto hereby agree
as follows:
(S)1. AMENDMENTS TO CREDIT AGREEMENT. (a) The preamble of the Credit
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Agreement is hereby amended by deleting the text "Paradise Bakery, Inc.
("Paradise"), a Delaware corporation" appearing in the first paragraph thereof;
(b) The preamble is further amended by deleting the word "Paradise" each time
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such word appears therein; (c) Section 1 of the Credit Agreement is hereby
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amended by deleting the definition of "Paradise" in its entirety; (d) Section
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8.2 of the Credit Agreement is hereby amended by deleting the word "Paradise"
each time such word appears therein; (e) Section 11.5(i) of the Credit
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Agreement is amended by deleting the text "(except Paradise)" each time such
text appears therein; (f) Section 11.24 of the Credit Agreement is amended by
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deleting the text "(except Paradise)" each time such text appears therein.
(S)2. CONSENT TO SALE. The Banks and the Agent hereby consent to the
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Sale. This consent operates solely with respect to the Sale and shall not be
construed as a consent to any other matters.
(S)3. SCOPE OF AMENDMENT. Except as specifically amended by this
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Amendment and the Omnibus Amendment, the Credit Agreement and each of the Loan
Documents shall remain unchanged and in full force and effect.
(S)4. REPRESENTATIONS AND WARRANTIES. The Company and each of the
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Remaining Guarantors represents and warrants (to the extent such representation
or warranty relates to such Guarantor or a Subsidiary of such Guarantor) as
follows:
(a) Representations and Warranties in Credit Agreement. The
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representations and warranties of the Company and the Remaining Guarantors
contained in the Credit Agreement (i) were true and correct in all material
respects when made, and (ii) except to the extent such representations and
warranties by their terms were made solely as of a prior date, continue to be
true and correct in all material respects on the date hereof except for changes
resulting from the Sale.
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(b) Authority, etc. The execution and delivery by the Company and the
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Remaining Guarantors of this Amendment and the performance by the Company and
the Remaining Guarantors of all of their agreements and obligations under this
Amendment are within the corporate authority of each of the Company and the
Remaining Guarantors, have been duly authorized by all necessary corporate
action on the part of each of the Company and the Remaining Guarantors, and do
not and will not (i) contravene any provision of the Company or any of the
Remaining Guarantor's charter, other incorporation papers, by-laws or any stock
provision, or any amendment thereof, (ii) conflict with, or result in a breach
of any material term, condition or provision of, or constitute a default under
or result in the creation of any mortgage, lien, pledge, charge, security
interest or other encumbrance upon any of the property of the Company or any
Remaining Guarantor under any agreement, deed of trust, indenture, mortgage or
other instrument to which the Company or such Remaining Guarantor is a party or
by which any of the Company or such Remaining Guarantor's properties are bound,
(iii) violate or contravene any provision of any law, regulation, order, ruling
or interpretation thereunder or any decree, order or judgment of any court or
governmental or regulatory authority, bureau, agency or official, (iv) require
any waiver, consent or approval by any creditor of the Company or any Remaining
Guarantor which has not been obtained or (v) require any approval, consent,
order, authorization or license by, or giving notice to, or taking any other
action with respect to, any governmental or regulatory authority or agency under
any provision of any law, except those actions which have been taken or will be
taken prior to the date of execution of this Amendment.
(c) Enforceability of Obligations. This Amendment, the Credit Agreement,
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as amended hereby, and the other Loan Documents, as amended by the Omnibus
Amendment, constitute the legal, valid and binding obligations of the Company
and the Remaining Guarantors enforceable against the Company and the Remaining
Guarantors in accordance with their respective terms.
(d) No Default or Event of Default. No Default or Event of Default has
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occurred or is continuing and the execution, delivery and effectiveness of this
Amendment will not cause any such Default or Event of Default to occur.
(S)5. CONFIRMATION OF SECURITY DOCUMENTS. Each of the Company and the
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Remaining Guarantors hereby ratifies and confirms each of its respective
Security Documents, as amended by the Omnibus Amendment, and the pledges and
security interests created thereby. Each of the Company and the Remaining
Guarantors hereby further ratifies and confirms that the Security Documents, as
amended by the Omnibus Amendment, and the pledges and security interest created
thereby secure the Obligations of the Company and the Remaining Guarantors under
the Credit Agreement, as amended hereby.
(S)6. CONFIRMATION OF GUARANTIES. Each of the Remaining Guarantors hereby
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ratifies and confirms its respective Guaranty and acknowledges and agrees that
the Obligations under the Credit Agreement, as amended hereby are Guaranteed
Obligations.
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(S)7. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
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shall be conditioned upon receipt by the Agent of the following, in form and
substance satisfactory to the Agent and the Banks:
(a) this Amendment duly executed by each of the Company, the Existing
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Guarantors, the Banks and the Agent;
(b) copies, certified by the Secretary of each of the Company and the
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Remaining Guarantors to be true and complete on the date of execution of this
Amendment, of the records of all actions taken by the Company and each such
Remaining Guarantor as may be required according to the terms of the Company or
each such Remaining Guarantor's charter, other incorporation documents and by-
laws to authorize (i) the execution and delivery of this Amendment by the
Company and each such Remaining Guarantor, and (ii) the performance by the
Company and each of the Guarantors of all of each such Person's agreements and
obligations under this Amendment, the Credit Agreement, as amended hereby and
the other Loan Documents, as amended by the Omnibus Amendment;
(c) a certificate of the Secretary of each of the Company and the Parent
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(i) setting forth the names, incumbency and specimen signatures of those
officers authorized to execute and deliver this Amendment; (ii) stating that
there have been no amendments to the charter documents and by-laws of each such
Person delivered to the Agent and the Banks on December 17, 1993; and (iii)
certifying the collateral list for the Company Security Agreement and the stock
list for the Parent Pledge Agreement;
(d) a certificate of the Secretary of Islands setting forth (i) the names,
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incumbency and specimen signatures of those officers authorized to execute and
deliver this Amendment; (ii) stating that there have been no amendments to the
charter documents and by-laws of Islands delivered to the Agent and the Banks on
September 30, 1994; and (iii) certifying the collateral list for the Islands
Security Agreement;
(e) the written consent of Metropolitan, as holder of the 6.69% Notes and
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the 10.40% Notes, to the execution and delivery by the Company and the Existing
Guarantors of this Amendment and the other documents and instruments described
herein;
(f) an opinion of counsel to the Company and the Remaining Guarantors in
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form and substance satisfactory to the Agent;
(g) Omnibus Amendment No. 2 duly executed by each of the Company, the
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Existing Guarantors, the Banks, the Agent and Metropolitan;
(h) receipt of satisfactory evidence that the Sale has been duly
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consummated; and
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(i) payment by the Company of all fees and expenses incurred as of the date
hereof by the Agent and the Agent's special counsel, Xxxxxxx, Xxxx & Xxxxx, in
connection with the preparation and execution of this Amendment.
(S)8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
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number of counterparts, but all such counterparts shall together constitute but
one instrument. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart signed by each party hereto by
and against which enforcement hereof is sought.
(S)9. GOVERNING LAW. This Amendment shall be construed according to and
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governed by the laws of the Commonwealth of Massachusetts (without reference to
conflicts or choice of law provisions).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an agreement under seal as of the date set forth at the
beginning of this Amendment.
The Company:
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CHART HOUSE, INC.
By:_____________________________________
Xxxxxx X. Xxxxxxx, Xx.,
Vice President
The Existing Guarantors:
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CHART HOUSE ENTERPRISES, INC.
By:_____________________________________
Xxxxxx X. Xxxxxxx, Xx.
Vice President
PARADISE BAKERY, INC.
By:_____________________________________
Xxxxxx X. Xxxxxxx, Xx.
Vice President
ISLANDS RESTAURANTS, INC.
By:_____________________________________
Xxxxxx X. Xxxxxxx, Xx.
Vice President
The Banks:
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THE FIRST NATIONAL BANK
OF BOSTON
By:_____________________________________
Xxxxx X. Xxxxx, Vice President
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SANWA BANK CALIFORNIA
By_____________________________________
Xxxxx X. Xxxxx, Vice President
THE SUMITOMO BANK
OF CALIFORNIA
By_____________________________________
Xxxxxxx X. Xxx Xxxxxxxxxx,
Vice President
The Agent:
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SANWA BANK CALIFORNIA
By_____________________________________
Xxxxx X. Xxxxx, Vice President
