AMENDMENT AGREEMENT NO. 2
to that certain
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT AGREEMENT NO. 2 (this "Amendment") dated as of December 24,
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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. Amendment to Definitions. The definition of Consolidated EBITDA is
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amended by deleting the words "and (e)" in the last line thereof replacing them
with the words "(e) solely for the Reference Period ending on December 27, 1999,
the non-recurring non-cash charges for such period relating to the sale of each
of the properties set forth on Schedule 1A attached hereto in an amount not to
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exceed $5,000,000 in the aggregate, and (f)".
(S)3. Amendment to Revolving Credit Facility. Section 2.1 of the Credit
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Agreement is hereby amended by inserting after the first sentence thereto, the
following new sentence.
"Notwithstanding the foregoing, the sum of the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested) plus
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the Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall
not at any time on or prior to March 31, 2000, exceed $15,000,000."
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(S)4. Amendments to Financial Covenants.
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(a) Section 12.2 of the Credit Agreement is hereby amended by inserting
after the last sentence thereof, the sentence "Notwithstanding the foregoing,
for the fiscal year ended December 27, 1999, the Borrower will not permit
Consolidated Net Worth to be less than $50,000,000."
(b) Section 12.4 of the Credit Agreement is hereby amended by inserting
in the second line thereof following the words "in the table set forth below",
the words", permit the Interest Coverage Ratio for such Reference Period".
(S)5. Amendments to Schedules. The Schedules to the Credit Agreement are
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hereby amended by inserting immediately following Schedule 1 to the Credit
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Agreement, the schedule attached hereto as Schedule 1A to the Credit Agreement.
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(S)6. Limited Waiver and Consent. The Borrower has advised the Agent that
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it intends to sell each of the properties set forth on Schedule 1A attached
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hereto (the "Property Sales"). Under the provisions of the Credit Agreement,
the Property Sales constitute transactions not permitted by (S)11.5.2 of the
Credit Agreement.
The Borrower has requested that the Banks provide written consent to the
Property Sales, and, to the extent necessary, waive the provisions of (S)11.5.2
of the Credit Agreement to permit the Property Sales.
In response to such request, the Banks hereby consent to the Property Sales
and waive the provisions of (S)11.5.2 of the Credit Agreement to permit the
Property Sales, provided that the net proceeds received by the Borrower or any
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Subsidiary from the Property Sales shall be applied against the outstanding
amount of the Revolving Credit Loans. The Banks further agree to provide any
necessary mortgage releases for the properties sold in connection with the
Property Sales. The consent and waiver given herein is limited strictly to its
terms and shall apply only to the specific provisions described herein. The
consent and waiver contained herein shall not extend to or affect any other
obligations of the Parent, the Borrower or their Subsidiaries contained in the
Credit Agreement or any other Loan Documents and shall not impair or prejudice
any rights consequent thereon.
(S)7. Affirmation and Acknowledgment of the Parent and the Borrower. Each
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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 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.
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(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)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, 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.
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(S)7. Effectiveness. This Amendment shall become effective as of December
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24, 1999, upon the 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.
(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.
(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:
PARIBAS
By:______________________________
Title:
By:______________________________
Title:
RATIFICATION OF GUARANTY
Each of the undersigned guarantors (each, a "Subsidiary Guarantor")
hereby acknowledges and consents to the foregoing Amendment as of December 24,
1999, 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:
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:
Schedule 1A
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Consolidated EBITDA
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Non-recurring non-cash charges relating to the sale of the following properties:
Vail, Colorado
Xxxxxxx, Connecticut
Greenwich, Connecticut
New Haven, Connecticut
Atlanta, Georgia
Kona, Hawaii
Haiku, Hawaii
Lahania, Hawaii
Wailea, Hawaii
Newport, Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx
