AMENDMENT AGREEMENT NO. 1
to that certain
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT AGREEMENT NO. 1 (this "Amendment") dated as of October 29,
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1999, is among (a) CHART HOUSE ENTERPRISES, INC. (the "Parent"), (b) CHART
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HOUSE, INC. (the"Borrower"), (c) BANKBOSTON, N.A. and the other lending
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institutions listed on Schedule 1 to the Credit Agreement (collectively, the
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"Banks"), and (d) 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 Definitions. Certain of the definitions contained in
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(S)1 of the Credit Agreement are hereby amended as follows:
(a) The definition of "Required Banks" is hereby deleted in its entirety
and replaced with the following:
"Required Banks. As of any date, (a) if there are less than three
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(3) Banks on such date, all Banks, and (b) if there are three (3) or
more Banks on such date, the Banks holding at least sixty-six and
two-thirds percent (66 2/3%) of the outstanding principal amount of
the Term Loans and the Total Revolving Credit Commitment."
(b) The following definition shall be inserted after the definition of
"Distribution":
"Documentation Agent. Paribas, acting in its capacity as
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documentation agent for itself and the other Banks."
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(S)3. Amendment to Events of Default. Section 15.1 of the Credit
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Agreement is hereby amended by inserting following subclause (r), the following
new subclause (s):
"(s) EGI-Chart House Investors, LLC , Samstock, L.L.C. and their
affiliates and the other members of their group for purposes of Rule
13d-1 of the Rules and Regulations of the Securities and Exchange
Commission shall at any time, legally or beneficially own, less than
twenty-five percent (25%) of the shares of the common stock of the
Parent, as adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of the Parent;"
(S)4. Amendment to Agency Provisions. Section 17.1 of the Credit
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Agreement is hereby amended by inserting at the end of subclause (b), the
sentence "The Documentation Agent shall have no duties or responsibilities under
this Credit Agreement."
(S)5. Affirmation and Acknowledgment of the Parent, the Borrower and their
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Subsidiaries. The Parent, the Borrower, and each of the Subsidiary Guarantors
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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 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 and each of the Subsidiary Guarantors 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 and the Guaranty. The
Parent and each of the Subsidiary Guarantors hereby confirms that its
obligations under the Parent Guaranty and the Guaranty are and remain secured
pursuant to the Security Documents to which it is a party.
(S)6. 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,
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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 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.
(S)7. Effectiveness. This Amendment shall become effective upon (i) the
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receipt by the Agent of a fully executed counterpart hereof signed by each of
the Parent, the Borrower, the Subsidiary Guarantors and the Required Banks, and
(ii) the receipt by the Agent of the fully executed Assignment, Acceptance and
Accession Agreement signed by Paribas and the Borrower.
(S)8. 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.
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(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.
(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).
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
CHART HOUSE ENTERPRISES, INC.
By:______________________________
Title:
CHART HOUSE, INC.
By:______________________________
Title:
BANKBOSTON, N.A., individually and as Agent
By:______________________________
Title:
CHART HOUSE ENTERPRISES OF IDAHO, INC., as
Subsidiary Guarantor
By:______________________________
Title:
CHART HOUSE ENTERPRISES OF PUERTO RICO, INC., as
Subsidiary Guarantor
By:______________________________
Title:
CHART HOUSE OF ANNAPOLIS, INC., as Subsidiary
Guarantor
By:______________________________
Title:
CHART HOUSE OF MARYLAND, INC., as Subsidiary
Guarantor
By:______________________________
Title:
CHART HOUSE ACQUISITION, INC., as Subsidiary
Guarantor
By:______________________________
Title:
BIG WAVE, INC., as Subsidiary Guarantor
By:______________________________
Title:
CORK `N XXXXXXX, INC., as Subsidiary Guarantor
By:______________________________
Title:
ANALOS COMPANY, as Subsidiary Guarantor
By:______________________________
Title:
