Exhibit 10.17.1
AMENDMENT AGREEMENT NO. 9
to that certain
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT AGREEMENT NO. 9 (this "Amendment") dated as of December 24,
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2000, is among (a) CHART HOUSE ENTERPRISES, INC. (the "Parent"), (b) CHART
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HOUSE, INC. (the "Borrower"), (c) FLEET NATIONAL BANK (formerly known as
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BankBoston, N.A.) and the other lending institutions listed on Schedule 1 to the
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Credit Agreement (collectively, the "Banks"), and (d) FLEET NATIONAL BANK
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(formerly known as BankBoston, N.A.) as agent (the " Agent") for itself and the
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other Banks.
WHEREAS, the Parent, the Borrower, the Banks and the Agent are parties to
that certain Revolving Credit Agreement and Term Loan Agreement, dated as of
April 26, 1999 (as amended and in effect from time to time, the "Credit
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Agreement"), pursuant to which the Banks, upon certain terms and conditions,
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have agreed to make loans to, and to issue letters of credit for the benefit of,
the Borrower; and
WHEREAS, the Borrower has requested that the Agent and the Banks agree, and
the Agent and the Banks have agreed, on the terms and subject to the conditions
set forth herein, to amend certain of the terms and provisions of the Credit
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(S)1. Defined Terms. Capitalized terms which are used herein without
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definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
(S)2. Amendments to Section 1 of the Credit Agreement.
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Section 1.1 of the Credit Agreement is hereby amended by
(a) deleting the definition of "Additional Samstock Subordinated
--------------------------------
Debt" in its entirety and replacing it with the following:
"Additional Samstock Subordinated Debt. Unsecured subordinated
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Indebtedness of the Borrower in an amount not more than $11,000,000 in
the aggregate and the guaranty of such indebtedness by the Parent
incurred pursuant to the Amended and Restated Subordinated Promissory
Note and Guaranty dated as of February 20, 2001 (the "Additional
Subordinated Note") made by the Borrower and the Parent in favor of
EGI-Fund (01) Investors, L.L.C. and unsecured subordinated
Indebtedness of the Subsidiaries of the Borrower evidenced by an
amended and restated guaranty dated as of February 20, 2001 (the
"Additional Subsidiary Guaranty"), made by
each subsidiary of the Borrower in favor of EGI-Fund (01) Investors,
L.L.C., provided that, (a) each of the Additional Subordinated Note
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and the Additional Subsidiary Guaranty will be expressly subordinated
and made junior to the payment and performance in full of all of the
Obligations pursuant to the provisions of the Amended and Restated
Subordination Agreement, dated as of February 20, 2001 (the
"Additional Subordination Agreement"), among the Parent, the Borrower,
each of the Subsidiaries of the Borrower, the Agent and EGI-Fund (01)
Investors, L.L.C., (b) the proceeds of the Additional Samstock
Subordinated Debt shall be used for the purpose of making payments in
respect of the Contractor Liabilities, the 2001 Pre-Opening Costs and
for working capital purposes, and (c) the terms of the Additional
Subordinated Note, the Additional Subordinated Guaranty and any
subordination agreement relating thereto shall not be amended or
otherwise modified without the written consent of the Agent and the
Banks."
(b) deleting the definition of "Adjusted Leverage Ratio" in its
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entirety and replacing it with the following:
"Adjusted Leverage Ratio. As at any date of determination, the
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ratio of (a) the sum of (i) Consolidated Rental Expense of the Parent
and its Subsidiaries for the Reference Period ending on such date
multiplied by eight (8) plus (ii) Consolidated Senior Funded
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Indebtedness of the Parent and its Subsidiaries outstanding on such
date, over (b) Consolidated EBITDAR of the Parent and its Subsidiaries
for such Reference Period."
(c) deleting the definition of "Consolidated EBITDA" in its entirety
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and replacing it with the following:
"Consolidated EBITDA. With respect to the Parent and its
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Subsidiaries for any fiscal period, an amount equal to Consolidated
Net Income for such period, plus, to the extent deducted in the
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calculation of Consolidated Net Income and without duplication, (a)
depreciation and amortization for such period, (b) other noncash
charges for such period, (c) income tax expense for such period, (d)
Consolidated Interest Charges paid or accrued during such period, (e)
the non-recurring charges for such period relating to the sale of each
of the properties set forth on Schedule 1A attached hereto in an
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amount not to exceed $5,000,000 in the aggregate, (f) Minority
Interest for such period, (g) restaurant pre-opening costs for such
period, (h) severance expenses in an amount not to exceed $400,000 in
respect of fiscal year 2000, and (i) expenses associated with the
Rights Offering in an amount not to exceed $750,000 in the aggregate,
minus, without duplication, all Pro Forma Rents for such period."
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(d) deleting the definition of "Consolidated Financial Obligations"
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in its entirety and replacing it with the following:
"Consolidated Financial Obligations. For any period, the sum of
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all scheduled payments of principal on Consolidated Senior Funded
Indebtedness of the Parent and its Subsidiaries made or required to be
made in such period, plus Consolidated Interest Charges of the Parent
and its Subsidiaries for such Period."
(e) deleting the definition of "Initial Samstock Subordinated Debt"
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in its entirety and replacing it with the following:
"Initial Samstock Subordinated Debt. Unsecured subordinated
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Indebtedness of the Borrower and the guaranty of such indebtedness by
the Parent incurred pursuant to the Amended and Restated Subordinated
Promissory Note and Guaranty dated as of February 20, 2001 (the
"Initial Subordinated Note") made by the Borrower and the Parent in
favor of Samstock, L.L.C. and subsequently assigned to EGI-Fund (00)
Investors, L.L.C. and unsecured subordinated Indebtedness of the
Subsidiaries of the Borrower evidenced by the amended and restated
guaranty dated as of February 20, 2001 (the "Initial Subsidiary
Guaranty"), made by each subsidiary of the Borrower in favor of
Samstock, L.L.C. and subsequently assigned to EGI-Fund (00) Investors,
L.L.C., such Indebtedness being expressly subordinated and made junior
to the payment and performance in full of all of the Obligations
pursuant to the provisions of the Second Amended and Restated
Subordination Agreement, dated as of February 20, 2001 (the "Initial
Subordination Agreement"), among the Parent, the Borrower, each of the
Subsidiaries of the Borrower, the Agent and EGI-Fund (00) Investors,
L.L.C., provided that, the terms of the Initial Subordinated Note, the
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Initial Subordinated Guaranty and the Initial Subordination Agreement
shall not be amended or otherwise modified without the written consent
of the Agent and the Banks.
(f) deleting the definition of "Leverage Ratio" in its entirety and
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replacing it with the following:
"Leverage Ratio. As at any date of determination, the ratio of
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(a) Consolidated Senior Funded Indebtedness of the Parent and its
Subsidiaries outstanding on such date, over (b) Consolidated EBITDA of
the Parent and its Subsidiaries for such Reference Period."
(g) inserting the following new definitions in the appropriate
alphabetical order:
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"2001 Pre-Opening Costs. The pre-opening costs associated with
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the new units located in West Palm Beach, Florida and Reston,
Virginia, in an amount not to exceed $600,000 in the aggregate."
"Consolidated Senior Funded Indebtedness. With respect to the
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Parent and its Subsidiaries for any fiscal period, Consolidated Funded
Indebtedness minus the aggregate amount of Samstock Subordinated
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Debt."
"Contractor Liabilities. Collectively, (i) the principal amount
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of $5,543,523.60 (together with all interest and fees thereon) owed to
Shawmut and described in the Shawmut Payment Agreement, (ii)
$1,900,000 in the aggregate on account of Capital Expenditures or New
Restaurant Capital Expenditures contracted to be made at the
Borrower's Jacksonville, West 52nd Street, Atlanta, Washington,
Phoenix, West Palm Beach and Reston locations, (iii) $670,000 owed to
Xxxxx Construction, and (iv) $50,000 of development expenses,
including preliminary design and site investigation expenses, related
to the Chicago, Illinois and the Lincolnshire, Illinois locations."
"Rights Offering. That certain offering of nontransferable
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rights to stockholders of the Parent to purchase an aggregate of up to
$8,000,000 newly issued shares of Series A senior convertible
redeemable preferred stock of the Parent, par value $1.00 per share
(the "Preferred Stock")."
"Shawmut. Shawmut Woodworking & Supply Co., Inc. (d/b/a Shawmut
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Design and Construction)."
"Shawmut Payment Agreement. The Agreement dated as of February
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2, 2001 between the Parent and Shawmut pursuant to which the Parent
agreed to a payment schedule for all outstanding amounts owed to
Shawmut."
"Subordinated Debt Documents. Collectively, the Initial
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Subordinated Note, the Initial Subsidiary Guaranty, the Initial
Subordination Agreement, the Additional Subordinated Note, the
Additional Subsidiary Guaranty and the Additional Subordination
Agreement."
(S)3. Amendment to Section 2 of the Credit Agreement. Section 2.1 of the
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Credit Agreement is hereby amended by deleting the last two sentences thereof in
their entirety.
(S)4. Amendments to Section 4 of the Credit Agreement.
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(a) Section 4.3.2 of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
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"4.3.2. Annual Excess Operating Cash Flow Recapture.
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For each fiscal year of the Parent ending on or after December
31, 2001, the Borrower shall make a prepayment of principal on the
Term Loan in an amount equal to seventy-five percent (75%) of Excess
Operating Cash Flow for such fiscal year, such mandatory prepayment to
be due one hundred five (105) days after the end of each applicable
fiscal year and to be applied against the remaining scheduled
installments of principal due on the Term Loan pro rata, with any
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remaining amounts to be applied against the outstanding amount of the
Revolving Credit Loans."
(b) Section 4.3.3 of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Notwithstanding the foregoing, and whether or not a Default or Event
of Default then exists or would result therefrom, the gross cash
proceeds from the Rights Offering (together with the $5,000,000 of
Samstock Subordinated Debt to remain outstanding following the
consummation of the Rights Offering) shall be used to repay the
Contractor Liabilities, the 2001 Pre-Opening Costs, the Samstock
Subordinated Debt, accrued interest and fees in respect of the
Samstock Subordinated Debt and expenses relating to the Rights
Offering."
(S)5. Amendment to Section 10 of the Credit Agreement. Section 10.4(i) of
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the Credit Agreement is hereby amended by (a) inserting after the words "each
fiscal month of the Parent," the words "(a)", and (b) inserting after the words
"satisfactory to the Banks" the words ", and (b) the monthly management report
of the Parent and its Subsidiaries for the next fiscal month, such monthly
management report to be substantially in the form of the monthly management
report previously delivered to the Banks and otherwise in form satisfactory to
the Banks."
(S)6. Amendments to Section 11 of the Credit Agreement.
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(a) Section 11.5.2 of the Credit Agreement is hereby amended by inserting
the following new sentence at the end thereof:
"Notwithstanding the foregoing and the provisions of (S)4.3.3, the Borrower
shall be permitted to assign the ground lease for its Inner Harbor,
Baltimore, Maryland location for an aggregate gross amount of not less than
$900,000, such proceeds to be applied against the outstanding amount of the
Revolving Credit Loans."
(b) Section 11.11 of the Credit Agreement is hereby amended by deleting the
words "Other than the Samstock Subordinated Debt and, except" and replacing them
with the words "Other than the Samstock Subordinated Debt and the Rights
Offering (including the standby purchase arrangement contemplated thereunder),
and except".
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(c) Section 11 of the Credit Agreement is hereby amended by inserting the
following new Section 11.16 at the end thereof:
"11.16. Subordinated Debt. The Borrower will not, and will not
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permit any of its Subsidiaries to, prepay, redeem or repurchase any of the
Samstock Subordinated Debt, provided that:
(a) The Borrower may pay regularly scheduled accrued and unpaid interest
pursuant to the terms of the Samstock Subordinated Debt, so long as (i) no
Default or Event of Default then exists and none would exist after giving
effect to any such payment of interest, (ii) the outstanding principal
amount of the Samstock Subordinated Debt is (x) less than or equal to
$5,000,000 and the Leverage Ratio is less than 2.50:1.00 as at the end of
the most recently ended fiscal quarter of the Borrower ,or (y) greater than
$5,000,000 and the Leverage Ratio is less than 2.00:1.00, and (iii) the
Borrower has provided to the Agent a pro forma compliance certificate
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evidencing compliance (after giving effect to the payment of such interest)
with the financial covenants set forth in (S)12 hereof and with clause (ii)
of this paragraph (a); and
(b) Whether or not a Default or Event of Default then exists or would result
therefrom, the Samstock Subordinated Debt (including accrued interest and
fees thereon) may be prepaid with the proceeds of the Rights Offering, so
long as (i) the Rights Offering yields gross cash proceeds to the Borrower
of not less than $8,000,000, and (ii) such payment is made prior to July
31, 2001.
(S)7. Amendments to Section 12 of the Credit Agreement. Section 12 of the
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Credit Agreement is hereby amended by deleting it in its entirety and replacing
it with the following:
"12. FINANCIAL COVENANTS OF THE BORROWER.
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The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligation
to issue, extend or renew any Letters of Credit:
12.1. Leverage.
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The Borrower will not, as of the end of any Reference Period ending on
a date at any time during any period described in the table set forth
below, permit the Leverage Ratio for such Reference Period to exceed the
ratio set forth opposite such period in such table:
Period Ratio
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December 25, 2000 through March 26, 2001 4.20:1.00
March 27, 2001 through June 25, 2001 3.70:1.00
June 26, 2001 through September 24, 2001 3.30:1.00
September 25, 2001 through December 31, 2001 3.30:1.00
January 1, 2002 through April 1, 2002 3.25:1.00
April 2, 2002 through July 1, 2002 3.00:1.00
July 2, 2002 through September 30, 2002 2.75:1.00
October 1, 2002 through December 30, 2002 2.50:1.00
Thereafter 2.00:1.00
12.2. Intentionally omitted.
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12.3. Debt Service. The Borrower will not, as of the end of any
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Reference Period ending on any date at any time during any period described
in the table set forth below, permit the Debt Service Coverage Ratio for
such Reference Period to be less than the ratio set forth opposite such
period in such table.
Period Ratio
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December 25, 2000 through September 24, 2001 1.075:1.00
September 25, 2001 through December 31, 2001 1.10:1.00
January 1, 2002 through July 1, 2002 1.20:1.00
July 2, 2002 through June 30, 2003 1.25:1.00
Thereafter 1.30:1.00
12.4. Interest Coverage. The Borrower will not, as of the end of any
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Reference Period ending on any date at any time during any period described
in the table set forth below, permit the Interest Coverage Ratio for such
Reference Period to be less than the ratio set forth opposite such period
in such table:
Period Ratio
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December 25, 2000 through March 26, 2001 1.25:1.00
March 27, 2001 through September 24, 2001 1.30:1.00
September 25, 2001 through July 1, 2002 1.35:1.00
July 2, 2002 through December 30, 2002 1.50:1.00
December 31, 2002 through June 30, 2003 1.60:1.00
Thereafter 1.80:1.00
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12.5. Capital Expenditures.
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(a) The Borrower will not make, or permit any Subsidiary of the
Borrower to make, Capital Expenditures in any fiscal year that exceed
$35,000,000 in the aggregate in fiscal year 2000, $11,750,000 (of which
$8,863,523.60 constitutes Contractor Liabilities) in the aggregate in
fiscal year 2001, $3,500,000 in the aggregate in fiscal year 2002,
$4,000,000 in the aggregate in fiscal year 2003 and $5,000,000 in the
aggregate in fiscal year 2004; provided, however, that, if during any
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fiscal year the amount of Capital Expenditures permitted for such fiscal
year is not so utilized, fifty percent (50%) of such unutilized amount may
be utilized in the next succeeding fiscal year but not in any subsequent
fiscal year. Notwithstanding the foregoing, any Capital Expenditures made
in connection with the Acquisition shall not be Capital Expenditures for
purposes of this (S)12.5(a).
(b) The Borrower will not enter into, or permit any Subsidiary of the
Borrower to enter into, any agreement to fund any New Restaurant Capital
Expenditures. Notwithstanding the foregoing, the Borrower shall be
permitted to make payments in respect of the Contractor Liabilities and the
2001 Pre-Opening Costs provided, that such payments shall be made solely
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with the proceeds from the Samstock Subordinated Debt, and that the
Borrower provides the Agent with invoices and such other supporting
documentation as the Agent may reasonably request in connection with such
payments.
12.6. Adjusted Leverage Ratio. The Borrower will not, as of the end
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of any Reference Period ending on a date at any time during any period
described in the table set forth below, permit the Adjusted Leverage Ratio
for such Reference Period to exceed the ratio set forth opposite such
period in such table:
Period Ratio
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December 25, 2000 through March 26, 2001 6.50:1.00
March 27, 2001 through June 25, 2001 6.20:1.00
June 26, 2001 through December 31, 2001 6.00:1.00
January 1, 2001 through July 1, 2002 5.50:1.00
July 2, 2002 through March 31, 2003 5.25:1.00
April 1, 2003 through June 30, 2003 5.00:1.00
July 1, 2003 through September 29, 2003 4.75:1.00
Thereafter 4.50:1.00
12.7. Minimum EBITDA.
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(a) The Borrower will not, as of the end of any quarter ending during
any period described in the table set forth below, permit Consolidated
EBITDA for such fiscal quarter to be less than the amount set forth
opposite such period in such table:
Period Amount
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December 25, 2000 through March 26, 2001 $2,000,000
March 27, 2001 through June 25, 2001 $2,500,000
June 26, 2001 through September 24, 2001 $2,200,000
September 25, 2001 through December 31, 2001 $1,800,000
January 1, 2002 through April 1, 2002 $2,000,000
April 2, 2002 through July 1, 2002 $3,100,000
July 2, 2002 through September 30, 2002 $2,500,000
October 1, 2002 through December 30, 2002 $1,800,000
(b) The Borrower will not, as of the end of any Reference Period
ending on a date at any time during any period described in the table set
forth below, permit Consolidated EBITDA for such Reference Period to exceed
the ratio set forth opposite such period in such table:
December 31, 2002 through March 31, 2003 $10,450,000
April 1, 2003 through June 30, 2003 $10,700,000
July 1, 2003 through September 29, 2003 $10,800,000
September 30, 2003 through December 29, 2003 $10,900,000
(S)8. Amendment to Section 15 of the Credit Agreement. Section 15.1(r) of
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the Credit Agreement is hereby amended by inserting the words "(other than by
virtue of operation of the Third Amended and Restated Standstill Agreement,
dated as of February __, 2001, among the Parent, EGI-Chart House Investors, LLC,
Samstock, L.L.C. and the other parties named therein or the exercise of voting
rights of the holders of the Preferred Stock)" at the end thereof.
(S)9. Amendment to Schedules to Credit Agreement. Schedule 1 to the
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Credit Agreement is hereby deleted in its entirety and replaced with the new
Schedule 1 attached hereto.
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(S)10. Affirmation and Acknowledgement of the Banks. The Agent and the
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Banks hereby affirm and acknowledge to the Parent, the Borrower and the
Subsidiary Guarantors that, on the Effective Date, the Events of Default in
respect of the financial covenants set forth in (S)12 of the Credit Agreement
for the fiscal quarter ended December 25, 2000 have been cured or waived.
(S)11. Affirmation and Acknowledgment of the Parent and the Borrower.
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Each of the Parent and the Borrower hereby affirm and acknowledge to the Banks
as follows:
(a) The Borrower hereby ratifies and confirms all of its Obligations to the
Banks, including, without limitation, the Loans, and the Borrower hereby affirms
its absolute and
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unconditional promise to pay to the Banks all indebtedness, obligations and
liabilities in respect of the Loans, the Letters of Credit, and all other
amounts due under the Credit Agreement as amended hereby. The Borrower hereby
confirms that the Obligations are and remain secured pursuant to the Security
Documents and pursuant to all other instruments and documents executed and
delivered by the Borrower as security for the Obligations.
(b) The Parent hereby acknowledges the provisions of this Amendment and
hereby reaffirms its absolute and unconditional guaranty of the Borrower's
payment and performance of the Obligations as more fully described in the Parent
Guaranty. The Parent hereby confirms that its obligations under the Parent
Guaranty are and remain secured pursuant to the Security Documents to which it
is a party.
(S)12. Representations and Warranties. The Parent and the Borrower hereby
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represent and warrant to the Banks as follows:
(a) The execution and delivery by the Parent, the Borrower and each
Subsidiary Guarantor of this Amendment, and the performance by the Parent, the
Borrower and each Subsidiary Guarantor of its obligations and agreements under
this Amendment and the Credit Agreement as amended hereby, are within the
corporate authority of the Parent, the Borrower, and each Subsidiary Guarantor,
have been duly authorized by all necessary corporate proceedings on behalf of
the Parent, the Borrower and each Subsidiary Guarantor and do not and will not
contravene any provision of law, statute, rule or regulation to which the
Parent, the Borrower or any Subsidiary Guarantor is subject or any of the
Parent's, the Borrower's, or any Subsidiary Guarantor's charter, other
incorporation papers, by-laws or any stock provision or any amendment thereof or
of any agreement or other instrument binding upon the Parent, the Borrower or
any Subsidiary Guarantor, the contravention of which would materially adversely
affect the business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole, or of the Borrower, considered
individually.
(b) This Amendment and the Credit Agreement as amended hereby constitute
legal, valid and binding obligations of the Parent, the Borrower and each
Subsidiary Guarantor, enforceable in accordance with their respective terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors' rights in
general, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) No approval or consent of, or filing with, any governmental agency or
authority is required to make valid and legally binding the execution, delivery
or performance by the Parent, the Borrower or any Subsidiary Guarantor of this
Amendment or the Credit Agreement as amended hereby.
(d) The representations and warranties contained in (S)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 the
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aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date.
(e) 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 Event of Default or Default.
(f) Except for the Contractor Liabilities, none of the Parent, the
Borrower or any Subsidiary Guarantor has any liability for, or on account of,
New Restaurant Capital Expenditures as of the Effective Date.
(S)13. Effectiveness. This Amendment shall become effective as of
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December 24, 2000 upon the date (the "Effective Date") on which the Agent
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receives each of the following:
(a) a fully executed counterpart hereof signed by each of the Parent,
the Borrower, the Subsidiary Guarantors and the Banks;
(b) a guaranty granted by Samstock, L.L.C. in favor of the Agent, for
the benefit of the Banks, of the obligations incurred pursuant to the Additional
Subordinated Note;
(c) an amendment fee in the amount of $77,500 for the pro rata
accounts of the Banks;
(d) evidence that the Subordinated Debt Documents have been duly
executed and delivered by the respective parties thereto and shall be in full
force and effect; and
(e) board resolutions authorizing the Parent and the Borrower to
enter into and carry out the terms of the Subordinated Debt Documents, all in
form and substance satisfactory to the Agent and the Banks.
(S)14. Miscellaneous Provisions.
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(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment and the Credit Agreement shall be read and construed as one
instrument.
(b) This Amendment is intended to take effect as an agreement under
seal and shall be construed according to and governed by the laws of The
Commonwealth of Massachusetts.
(c) This Amendment may be executed in any 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.
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(d) The Borrower hereby agrees to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including
reasonable legal fees).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
CHART HOUSE ENTERPRISES, INC.
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE, INC.
By:______________________________
Title: President & Chief Executive Officer
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
individually and as Agent
By:______________________________
Title:
BNP PARIBAS
By:______________________________
Title:
By:______________________________
Title:
ING (U.S.) CAPITAL LLC
By:______________________________
Name:
Title:
RATIFICATION OF GUARANTY
Each of the undersigned guarantors (each, a "Subsidiary Guarantor")
hereby acknowledges and consents to the foregoing Amendment as of December __,
2000, and agrees that the Subsidiary Guaranty (as defined in the Credit
Agreement, and each other guaranty executed by a Subsidiary Guarantor after the
Closing Date pursuant to the terms of the Credit Agreement) from each Subsidiary
Guarantor in favor of the Agent and each of the Banks remains in full force and
effect, and each of the Subsidiary Guarantors confirms and ratifies all of its
obligations thereunder.
CHART HOUSE ENTERPRISES OF IDAHO, INC., as
Subsidiary Guarantor
By:______________________________
Title: Assistant Secretary
CHART HOUSE ENTERPRISES OF PUERTO RICO, INC., as
Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE OF ANNAPOLIS, INC., as Subsidiary
Guarantor
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE OF MARYLAND, INC., as Subsidiary
Guarantor
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE ACQUISITION, INC., as Subsidiary
Guarantor
By:______________________________
Title: President & Chief Executive Officer
BIG WAVE, INC., as Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
CORK 'N XXXXXXX, INC., as Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
ANALOS COMPANY, as Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
WEST 52/nd/ STREET, INC., as Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE ACQUISITION OF NEVADA, INC., as
Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
CHART HOUSE ACQUISITION OF MARYLAND, INC., as
Subsidiary Guarantor
By:______________________________
Title: President & Chief Executive Officer
Schedule 1
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(as of December 24, 2000)
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Revolving
Credit Commitment Term Commitment
Banks Commitment Percentage Commitment Percentage
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Fleet National Bank (f/k/a
BankBoston, N.A.) $ 8,750,000 50% $ 6,750,000 50%
Domestic and Eurodollar
Lending Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Vice President
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Paribas
Domestic and Eurodollar $ 4,375,000 25% $ 3,375,000 25%
Lending Office
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
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ING (US) LLC
Domestic and Eurodollar $ 4,375,000 25% $ 3,375,000 25%
Lending Office:
000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxx
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Totals: $17,500,000 100% $13,500,000 100%
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