Exhibit 10.40
SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT
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SECOND AMENDED AND RESTATED SUBORDINATION AGREEMENT (this "Agreement"),
dated as of February 20, 2001, among FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), a national banking association having its office at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, in its capacity as agent (the
"Agent") for the Banks (as hereinafter defined), EGI-FUND (00) INVESTORS,
L.L.C., a Delaware limited liability company having a principal of business at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (the
"Subordinating Creditor"), CHART HOUSE, INC., a Delaware corporation having its
office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 (the
"Borrower"), CHART HOUSE ENTERPRISES, INC. (the "Parent") and each of the
Subsidiaries of the Borrower set forth on the signature pages hereto as
Guarantors.
WHEREAS, pursuant to a Revolving Credit and Term Loan Agreement, dated as
of April 26, 1999 (as amended and in effect from time to time, including any
replacement agreement therefor, the "Credit Agreement"), among the lending
institutions party thereto (the "Banks"), the Agent, the Borrower and the
Parent, the Banks have agreed, upon the terms and subject to the conditions
contained therein, to make loans and otherwise to extend credit to the Borrower;
and
WHEREAS, the Subordinating Creditor has extended credit to the Borrower
pursuant to a Subordinated Promissory Note and Guaranty dated as of November 21,
2000 (as assigned to the Subordinating Creditor pursuant to the Assignment of
Loan and Loan Documents dated as of December 18, 2000 between the Subordinating
Creditor and Samstock, L.L.C.) (as amended with the consent of the Agent as
provided herein and in effect from time to time, the "Original Subordinated
Note"), executed by the Borrower and the Parent in favor of the Subordinating
Creditor; and
WHEREAS, the Agent, the Borrower, the Parent, the Guarantors and the
Subordinating Creditor entered into an Amended and Restated Subordination
Agreement, dated as of December 18, 2000 (the "Original Subordination
Agreement") pursuant to which all indebtedness of the Borrower to the
Subordinating Creditor was subordinated to indebtedness of the Borrower to the
Agent and the Banks on the terms and conditions contained therein;
WHEREAS, the Original Subordinated Note shall be amended and restated in
its entirety by the Amended and Restated Subordinated Promissory Note and
Guaranty dated as of February __, 2001 (the "Subordinated Note") executed by the
Borrower and the Parent in favor of the Subordinating Creditor, as set forth
therein and shall remain in full force and effect only as set forth therein;
WHEREAS, the parties hereto wish to amend and restate the Original
Subordination Agreement to amend certain provisions thereto;
WHEREAS, it is a condition precedent to the Banks' willingness to continue
to make loans and otherwise to extend credit to the Borrower pursuant to the
Credit
Agreement that the Borrower and the Subordinating Creditor enter into this
Agreement with the Agent; and
WHEREAS, in order to induce the Banks to continue to make loans and
otherwise extend credit to the Borrower pursuant to the Credit Agreement, the
Borrower and the Subordinating Creditor have agreed to enter into this Agreement
with the Agent;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. Terms not otherwise defined herein have the same
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respective meanings given to them in the Credit Agreement. In addition, the
following terms shall have the following meanings:
Senior Debt. All principal, interest, fees, costs, enforcement expenses
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(including legal fees and disbursements), collateral protection expenses and
other reimbursement or indemnity obligations created or evidenced by the Credit
Agreement or any of the other Loan Documents, or any prior, concurrent, or
subsequent notes, instruments or agreements of indebtedness, liabilities or
obligations of any type or form whatsoever relating thereto in favor of the
Agent or any of the Banks. Senior Debt shall expressly include any and all
interest accruing or out of pocket costs or expenses incurred after the date of
any filing by or against the Borrower of any petition under the federal
Bankruptcy Code or any other bankruptcy, insolvency or reorganization act
regardless of whether the Agent's or any Bank's claim therefor is allowed or
allowable in the case or proceeding relating thereto.
Subordinated Debt. All principal, interest (including interest accrued
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pursuant to the Subordinated Note), fees, costs, enforcement expenses (including
legal fees and disbursements), collateral protection expenses and other
reimbursement and indemnity obligations created or evidenced by the Subordinated
Note, the Subordinated Guaranty or any prior, concurrent or subsequent notes,
instruments or agreements of indebtedness, liabilities or obligations of any
type or form whatsoever relating thereto in favor of the Subordinating Creditor.
Subordinated Documents. Collectively, the Subordinated Note, the
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Subordinated Guaranty, any promissory notes executed in connection therewith and
any and all guaranties and security interests, mortgages and other liens
directly or indirectly guarantying or securing any of the Subordinated Debt, and
any and all other documents or instruments evidencing or further guarantying or
securing directly or indirectly any of the Subordinated Debt, whether now
existing or hereafter created.
Subordinated Guaranty. The Amended and Restated Guaranty, dated as of
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February __, 2001, made by each Subsidiary of the Borrower in favor of the
Subordinating Creditor.
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2. General. Except as expressly permitted by Section 11.16 of the Credit
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Agreement, the Subordinated Debt and any and all Subordinated Documents shall be
and hereby are subordinated and the payment thereof is deferred until the full
and final payment in cash of the Senior Debt, whether now or hereafter incurred
or owed by the Borrower. The Subordinating Creditor acknowledges and agrees
that, except as expressly permitted by Section 11.16 of the Credit Agreement,
the Subordinated Debt may not be prepaid without the consent of the Agent and
the Banks, such consent to be granted or withheld in the sole and absolute
discretion of the Agent and the Banks.
3. Enforcement. The Subordinating Creditor will not take or omit to take
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any action or assert any claim with respect to the Subordinated Debt or
otherwise which is inconsistent with the provisions of this Agreement. Without
limiting the foregoing, the Subordinating Creditor will not assert, collect or
enforce the Subordinated Debt or any part thereof or take any action to
foreclose or realize upon the Subordinated Debt or any part thereof or enforce
any of the Subordinated Documents except to the extent (but only to such extent)
that the commencement of a legal action may be required to toll the running of
any applicable statute of limitation, to defend any challenge to the validity of
the Subordinated Debt, or to file a proof of claim or to make a vote in a
proceeding described in (S)6.1. Until the Senior Debt has been finally paid in
full in cash, the Subordinating Creditor shall not have any right of
subrogation, reimbursement, restitution, contribution or indemnity whatsoever
from any assets of the Borrower or any guarantor of or provider of collateral
security for the Senior Debt. The Subordinating Creditor further waives any and
all rights with respect to marshalling.
4. Payments Held in Trust. Until the Senior Debt is paid in full in cash,
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the Subordinating Creditor will hold in trust and immediately pay over to the
Agent for the account of the Banks and the Agent, in the same form of payment
received, with appropriate endorsements, for application to the Senior Debt any
cash amount that the Borrower pays to the Subordinating Creditor with respect to
the Subordinated Debt, or as collateral for the Senior Debt any other assets of
the Borrower that the Subordinating Creditor may receive with respect to the
Subordinated Debt.
5. Defense to Enforcement. If the Subordinating Creditor, in contravention
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of the terms of this Agreement, shall commence, prosecute or participate in any
suit, action or proceeding against the Borrower, then the Borrower may interpose
as a defense or plea the making of this Agreement, and the Agent or any Bank may
intervene and interpose such defense or plea in its name or in the name of the
Borrower. If the Subordinating Creditor, in contravention of the terms of this
Agreement, shall attempt to collect any of the Subordinated Debt or enforce any
of the Subordinated Documents, then the Agent, any Bank or the Borrower may, by
virtue of this Agreement, restrain the enforcement thereof in the name of the
Agent or such Bank or in the name of the Borrower. If the Subordinating
Creditor, in contravention of the terms of this Agreement, obtains any cash or
other assets of the Borrower as a result of any administrative, legal or
equitable actions, or otherwise, the Subordinating Creditor agrees forthwith to
pay, deliver and assign to the Agent, for the account of the
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Banks and the Agent, with appropriate endorsements, any such cash for
application to the Senior Debt and any such other assets as collateral for the
Senior Debt.
6. Bankruptcy, etc.
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6.1. Payments relating to Subordinated Debt. At any meeting of
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creditors of the Borrower or in the event of any case or proceeding,
voluntary or involuntary, for the distribution, division or application of
all or part of the assets of the Borrower or the proceeds thereof, whether
such case or proceeding be for the liquidation, dissolution or winding up
of the Borrower or its business, a receivership, insolvency or bankruptcy
case or proceeding, an assignment for the benefit of creditors or a
proceeding by or against the Borrower for relief under the federal
Bankruptcy Code or any other bankruptcy, reorganization or insolvency law
or any other law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
marshalling of assets or otherwise, the Agent is hereby irrevocably
authorized at any such meeting or in any such proceeding to receive or
collect for the benefit of the Banks and the Agent any cash or other assets
of the Borrower distributed, divided or applied by way of dividend or
payment, or any securities issued on account of any Subordinated Debt, and
apply such cash to or to hold such other assets or securities as collateral
for the Senior Debt, and to apply to the Senior Debt any cash proceeds of
any realization upon such other assets or securities that the Agent in its
discretion elects to effect, until all of the Senior Debt shall have been
paid in full in cash, rendering to the Subordinating Creditor any surplus
to which the Subordinating Creditor is then entitled.
6.2. Securities by Plan of Reorganization or Readjustment.
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Notwithstanding the foregoing provisions of (S)6.1, the Subordinating
Creditor shall be entitled to receive and retain any securities of the
Borrower or any other corporation or other entity provided for by a plan of
reorganization or readjustment (a) the payment of which securities is
subordinate, at least to the extent provided in this Agreement with respect
to Subordinated Debt, to the payment of all Senior Debt under any such plan
of reorganization or readjustment and (b) all other terms of which are
acceptable to the Banks and the Agent.
6.3. Subordinated Debt Voting Rights. At any such meeting of
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creditors or in the event of any such case or proceeding, the Subordinating
Creditor shall retain the right to vote and otherwise act with respect to
the Subordinated Debt (including, without limitation, the right to vote to
accept or reject any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension), provided that the
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Subordinating Creditor shall not vote with respect to any such plan or take
any other action in any way so as to contest (a) the validity of any Senior
Debt or any collateral therefor or guaranties thereof, (b) the relative
rights and duties of any holders of any Senior Debt established in any
instruments or agreements creating or evidencing any of the Senior Debt
with
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respect to any of such collateral or guaranties or (c) the Subordinating
Creditor's obligations and agreements set forth in this Agreement.
7. Lien Subordination. The Senior Debt, the Credit Agreement and the other
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Loan Documents and any and all other documents and instruments evidencing or
creating the Senior Debt and all guaranties, mortgages, security agreements,
pledges and other collateral guarantying or securing the Senior Debt or any part
thereof shall be senior to the Subordinated Debt and all of the Subordinated
Documents irrespective of the time of the execution, delivery or issuance of any
thereof or the filing or recording for perfection of any thereof or the filing
of any financing statement or continuation statement relating to any thereof.
7.1. Further Assurances. The Subordinating Creditor hereby agrees,
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upon request of the Agent at any time and from time to time, to execute
such other documents or instruments as may be requested by the Agent
further to evidence of public record or otherwise the senior priority of
the Senior Debt as contemplated hereby.
7.2. Books and Records. The Subordinating Creditor further agrees to
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maintain on its books and records such notations as the Agent may
reasonably request to reflect the subordination contemplated hereby and to
perfect or preserve the rights of the Agent hereunder. A copy of this
Agreement may be filed as a financing statement in any Uniform Commercial
Code recording office.
8. Banks' Freedom of Dealing. The Subordinating Creditor agrees, with
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respect to the Senior Debt and any and all collateral therefor or guaranties
thereof, that the Borrower and the Banks may agree to increase the amount of the
Senior Debt or otherwise modify the terms of any of the Senior Debt, and the
Banks may grant extensions of the time of payment or performance to and make
compromises, including releases of collateral or guaranties, and settlements
with the Borrower and all other persons, in each case without the consent of the
Subordinating Creditor or the Borrower and without affecting the agreements of
the Subordinating Creditor or the Borrower contained in this Agreement;
provided, however, that nothing contained in this (S)8 shall constitute a waiver
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of the right of the Borrower itself to agree or consent to a settlement or
compromise of a claim which the Agent or any Bank may have against the Borrower.
9. Modification or Sale of the Subordinated Debt. The Subordinating
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Creditor will not, at any time while this Agreement is in effect, modify any of
the terms of any of the Subordinated Debt or any of the Subordinated Documents;
nor will the Subordinating Creditor sell, transfer, pledge, assign, hypothecate
or otherwise dispose of any or all of the Subordinated Debt to any person other
than a person who agrees in a writing, satisfactory in form and substance to the
Agent, to become a party hereto and to succeed to the rights and to bound by all
of the obligations of the Subordinating Creditor hereunder. In the case of any
such disposition by the Subordinating Creditor, the Subordinating Creditor will
notify the Agent at least 10 days prior to the date of any of such intended
disposition.
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10. Borrower's Obligations Absolute. Nothing contained in this Agreement
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shall impair, as between the Borrower and the Subordinating Creditor, the
obligation of the Borrower to pay to the Subordinating Creditor all amounts
payable in respect of the Subordinated Debt as and when the same shall become
due and payable in accordance with the terms thereof, or prevent the
Subordinating Creditor (except as expressly otherwise provided in (S)3 or (S)6)
from exercising all rights, powers and remedies otherwise permitted by
Subordinated Documents and by applicable law upon a default in the payment of
the Subordinated Debt or under any Subordinated Document, all, however, subject
to the rights of the Agent and the Banks as set forth in this Agreement. The
failure of the Borrower to make any payment with respect to the Subordinated
Debt in accordance with its terms by reason of the operation of this Agreement
shall not be construed as preventing the occurrence of a default under the
Subordinated Document s.
11. Termination of Subordination. This Agreement shall continue in full
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force and effect, and the obligations and agreements of the Subordinating
Creditor and the Borrower hereunder shall continue to be fully operative, until
all of the Senior Debt shall have been paid and satisfied in full in cash and
such full payment and satisfaction shall be final and not avoidable. To the
extent that the Borrower or any guarantor of or provider of collateral for the
Senior Debt makes any payment on the Senior Debt that is subsequently
invalidated, declared to be fraudulent or preferential or set aside or is
required to be repaid to a trustee, receiver or any other party under any
bankruptcy, insolvency or reorganization act, state or federal law, common law
or equitable cause (such payment being hereinafter referred to as a "Voided
Payment"), then to the extent of such Voided Payment, that portion of the Senior
Debt that had been previously satisfied by such Voided Payment shall be revived
and continue in full force and effect as if such Voided Payment had never been
made. In the event that a Voided Payment is recovered from the Agent or any
Bank, an Event of Default shall be deemed to have existed and to be continuing
under the Credit Agreement from the date of the Agent's or such Bank's initial
receipt of such Voided Payment until the full amount of such Voided Payment is
restored to the Agent or such Bank. During any continuance of any such Event of
Default, this Agreement shall be in full force and effect with respect to the
Subordinated Debt. To the extent that the Subordinating Creditor has received
any payments with respect to the Subordinated Debt subsequent to the date of the
Agent's or any Bank's initial receipt of such Voided Payment and such payments
have not been invalidated, declared to be fraudulent or preferential or set
aside or are required to be repaid to a trustee, receiver, or any other party
under any bankruptcy act, state or federal law, common law or equitable cause,
the Subordinating Creditor shall be obligated and hereby agrees that any such
payment so made or received shall be deemed to have been received in trust for
the benefit of the Agent or such Bank, and the Subordinating Creditor hereby
agrees to pay to the Agent for the benefit of the Agent or (as the case may be)
such Bank, upon demand, the full amount so received by the Subordinating
Creditor during such period of time to the extent necessary fully to restore to
the Agent or such Bank the amount of such Voided Payment. Upon the payment and
satisfaction in full in cash of all of the Senior Debt, which payment shall be
final and not avoidable, this Agreement will automatically terminate without any
additional action by any party hereto.
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12. Notices. All notices and other communications which are required and
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may be given pursuant to the terms of this Agreement shall be in writing and
shall be sufficient and effective in all respects if given in writing or
telecopied, delivered or mailed by registered or certified mail, postage
prepaid, as follows:
If to the Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X.X. Xxxxx
If to the Subordinating Creditor:
EGI-Fund (00) Investors, L.L.C.
c/o Equity Group Investments, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxxx
Xxxx Xxxxx
with a copy to:
Xxxx, Gerber & Xxxxxxxxx
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
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If to the Parent, the
Borrower or any Guarantor:
Chart House, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
or such other address or addresses as any party hereto shall have
designated by written notice to the other parties hereto. Notices shall be
deemed given and effective upon the earlier to occur of (i) the third day
following deposit thereof in the U.S. mail or (ii) receipt by the party to whom
such notice is directed.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
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ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL BE A
SEALED INSTRUMENT UNDER SUCH LAWS.
14. Waiver of Jury Trial. EACH OF THE SUBORDINATING CREDITOR AND THE
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BORROWER EACH HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE SUBORDINATING CREDITOR AND
THE BORROWER HEREBY WAIVES ANY RIGHT WHICH IT MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH OF THE SUBORDINATING CREDITOR AND THE BORROWER (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY BANK WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
15. Miscellaneous. This Agreement may be executed in several counterparts
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and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against which
enforcement is sought. The Agent, acting upon the instructions of the Required
Banks, may, in their sole and absolute discretion, waive any provisions of this
Agreement benefiting the Agent and the Banks; provided, however, that such
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waiver shall be effective only if in writing and signed by the Agent and shall
be limited to the specific provision or provisions expressly so waived. This
Agreement shall be binding upon the successors and assigns of the
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Subordinating Creditor and the Borrower and shall inure to the benefit of the
Agent and the Banks, the Agent's and the Banks' respective successors and
assigns, any lender or lenders refunding or refinancing any of the Senior Debt
and their respective successors and assigns, but shall not otherwise create any
rights or benefits for any third party. In the event that any lender or lenders
refund or refinance any of the Senior Debt, the terms "Credit Agreement", "Loan
Documents", "Event of Default" and the like shall refer mutatis mutandis to the
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agreements and instruments in favor of such lender or lenders and to the related
definitions contained therein. In the event of any inconsistency or conflict
between the Subordinated Documents and this Agreement, such inconsistency or
conflict will be governed by the terms of this Agreement and not the
Subordinated Documents. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations and understandings of the
parties with respect to the same, specifically including the Original
Subordination Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BANK: FLEET NATIONAL BANK, As Agent
By:_________________________
Name:
Title:
SUBORDINATING CREDITOR: EGI-FUND (00) INVESTORS, L.L.C.
By:_________________________
Name:
Title:
PARENT: CHART HOUSE ENTERPRISES, INC.
By:_________________________
Name:
Title:
BORROWER: CHART HOUSE, INC.
By:_________________________
Name:
Title:
GUARANTORS: CHART HOUSE ENTERPRISES OF
IDAHO, INC.
By:_________________________
Name:
Title:
CHART HOUSE ENTERPRISES OF
PUERTO RICO, INC.
By:______________________________
Title:
CHART HOUSE OF ANNAPOLIS, INC.
By:______________________________
Title:
CHART HOUSE OF MARYLAND, INC.
By:______________________________
Title:
CHART HOUSE ACQUISITION, INC.
By:______________________________
Title:
BIG WAVE, INC.
By:______________________________
Title:
CORK 'N XXXXXXX, INC.
By:______________________________
Title:
ANALOS COMPANY
By:______________________________
Title:
WEST 52/nd/ STREET, INC.
By:______________________________
Title:
CHART HOUSE ACQUISITION OF NEVADA, INC.
By:______________________________
Title:
CHART HOUSE ACQUISITION OF MARYLAND, INC.
By:______________________________
Title:
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF______________________________)
) ss.
COUNTY OF_____________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ____ day of February 2001, personally appeared ____________
to me known personally, and who, being by me duly sworn, deposes and says that
he is the ___________ of EGI-FUND (00) INVESTORS, L.L.C., and that said
instrument was signed and sealed on behalf of said limited liability company by
authority of its members, and said _________________ acknowledged said
instrument to be the free act and deed of said limited liability company.
______________________________
Notary Public
My commission expires:
