EXHIBIT 10.1(3)
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AMENDMENT NO. 2
DATED AS OF APRIL 26, 1995 TO
AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 17, 1993
AMENDMENT NO. 2 (this "Amendment") dated as of April 26, 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
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
"Guarantors"), (c) The First National Bank of Boston, a national banking
association ("FNBB"), Sanwa Bank California, a California state chartered bank
("Sanwa") and (d) FNBB as agent for itself and Sanwa (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.
WITNESSETH:
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WHEREAS, the Company and the Guarantors have requested that the Banks and
the Agent amend the Credit Agreement to add The Sumitomo Bank of California, a
California state chartered bank, as a lender and to increase the total lending
commitment of the Banks;
WHEREAS, the Company and the Guarantors have requested that FNBB resign as
agent for the Banks and that Sanwa be appointed as agent for the Banks;
WHEREAS, the Company and the Guarantors have requested that the Banks and
the Agent amend certain other terms and conditions of the Credit Agreement and
Loan
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Documents; and
WHEREAS, the Banks and the Agent, subject to the terms and conditions set
forth below, have agreed 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.
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(S)1.1 THE AGENT. (a) The Credit Agreement is hereby amended to provide
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that any and all references to "FNBB as agent for the Banks" shall be deemed to
be references to "Sanwa as agent for the Banks". The Credit Agreement and each
of the Loan Documents are hereby amended mutatis mutandis as appropriate to
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reflect the fact that Sanwa and not FNBB is the agent for the Banks or, as
applicable, the security agent for the Banks and Metropolitan. (b) Other than
a counterpart original of the Credit Agreement and each of the amendments
thereto, FNBB will deliver to Sanwa on or before May 31, 1995 all originals of
Loan Documents currently held by FNBB in its capacity as agent under the Credit
Agreement or in its capacity as security agent under the Security Documents.
(S)1.2 PREAMBLE. The first paragraph of the preamble to the Credit
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Agreement is hereby amended by deleting it in its entirety and inserting in lieu
thereof the following:
"This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
is made as of December 17, 1993, by and among (a) Chart House, Inc. (the
"Company"), a Delaware corporation having its principal place of business
in Solana Beach, California, (b) Chart House Enterprises, Inc. (the
"Parent"), a Delaware corporation, Paradise Bakery, Inc. ("Paradise"), a
Delaware corporation, and Islands Restaurants, Inc., a Delaware corporation
(formerly known as Big Wave, Inc.) ("Islands"), (the Parent, Paradise and
Islands are referred to herein, collectively, as the "Guarantors"), (c) The
First National Bank of Boston, a national banking association having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("FNBB"), Sanwa Bank California, a California state chartered bank
having its principal place of business in the United States at 000 Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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("Sanwa"), The Sumitomo Bank of California, a California state chartered
bank, having its principal place of business at 000 Xxxx 0xx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Sumitomo") and such other banks who
may become parties hereto (collectively, the "Banks"), and (d) Sanwa as
agent for the Banks (the "Agent")."
(S)1.3 AMENDMENTS TO CERTAIN DEFINITIONS. Section 1 of the Credit
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Agreement is hereby amended by amending certain definitions.
(a) The definition of Revolving Credit Commitment Amount is hereby
amended by deleting it in its entirety and inserting in lieu thereof the
following: "Revolving Credit Commitment Amount. At any date of
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determination, $40,000,000, as such amount is reduced pursuant to (S)2.2
and (S)6.4 hereof."
(b) The definition of Majority Banks is hereby amended by deleting
it in its entirety and inserting in lieu thereof the following: "Majority
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Banks. Any combination of Banks holding Notes evidencing in the aggregate
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66-2/3% of the Loans Outstanding at the time of determination, or, if no
Loans are Outstanding, any combination of Banks whose Commitment
Percentages aggregate 66-2/3%."
(c) The definition of Commitment Percentages is hereby amended by
deleting it in its entirety and inserting in lieu thereof the following:
"Commitment Percentage. For FNBB, 39.13043479%, for Sanwa, 50%, and for
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Sumitomo, 10.86956521%, in each case subject to adjustment upon assignments
permitted by (S)18 hereof.
(d) The definition of Base Rate is hereby amended by deleting it in
its entirety and inserting the following new definition in the appropriate
place in the alphabetical sequence of definitions: "Reference Rate. A
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variable interest rate which is quoted, published or announced from time to
time by Sanwa as its reference rate."
(e) The definition of Eurodollar Rate is hereby amended by deleting
it in its entirety and inserting in lieu thereof the following: "Eurodollar
Rate. With respect to any Interest Period, in the case of any Euroloan Rate
Amount, the annual rate of interest determined by the Agent's Treasury
Desk, at or before 10:30 a.m. (San Diego time) (or as soon thereafter as
practicable) on the second Business Day prior to the first day of such
Interest Period, as being the approximate rate at which the Agent could
purchase offshore U.S. dollar
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deposits in an amount approximately equal to the amount of the relevant
Euroloan Rate Amount and for a period of time approximately equal to the
relevant Interest Period."
(S)1.4. REQUESTS FOR REVOLVING CREDIT LOANS. Section 2.4 of the Credit
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Agreement is hereby amended by:
(a) deleting the address "100 Xxxxxxx Xxxxxx, 00-00-00, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: J. Xxxxx Xxxxxxxx, Director" appearing in
subsection (a) and inserting in lieu thereof the address "San Diego
Corporate Banking Center, 0000 Xxxxxx Xxxxxx Xxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxx, Vice President & Manager".
(b) deleting the text "1:30 P.M., Boston time, (10:30 A.M. San
Diego time)" appearing in subsection (b) and inserting in lieu thereof the
following text: "10:30 A.M. San Diego time, (1:30 P.M. Boston time)".
(c) deleting the text "Boston, Massachusetts" appearing in the
third subsection of subsection (b) and inserting in lieu thereof the text
"San Diego, California".
(S)1.5 INTEREST ON REVOLVING CREDIT LOANS. The Credit Agreement and each
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of the Loan Documents are hereby amended to provide that any and all references
to "Base Rate" shall be deemed to be references to "Reference Rate".
(S)1.6 LETTERS OF CREDIT. Section 4.1 of the Credit Agreement is hereby
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amended by deleting the final sentence of subsection (b) and inserting in lieu
thereof the following sentence: "To the extent FNBB is the issuing bank of an
Existing Letter of Credit, FNBB shall be deemed a L/C Bank for the purposes
hereof. FNBB shall not issue any Letters of Credit after April 26, 1995."
(S)1.7. CERTAIN COMMON PROVISIONS. Section 6.2 of the Credit Agreement is
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hereby amended by:
(a) deleting the address "100 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000" appearing in the first sentence and inserting in lieu thereof the
address "San Diego Corporate Banking Center, 0000 Xxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000".
(b) deleting the text "(Boston time)" each time it appears therein
and inserting in lieu thereof the text "(San Diego time)".
(S)1.8 AGENT'S FEE. Section 6.8 of the Credit Agreement is hereby amended
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by
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deleting it in its entirety and inserting in lieu thereof the following:
"(S)6.8. Agent's Fee. In addition to the Commitment Fees payable hereunder,
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the Company agrees to pay to Sanwa, for its own account, an agent's fee
("Agent's Fee") in the amount and at the times specified in the letter
agreement, dated April 26, 1995 between the Company and Sanwa."
(S)1.9 APPOINTMENT OF AGENT, POWERS AND IMMUNITIES. Section 14.1 of the
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Credit Agreement is hereby amended by inserting the words "or Sanwa" after the
word "FNBB" appearing in the second sentence thereof.
(S)1.10 NOTICES, ETC. Section 19 of the Credit Agreement is hereby
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amended by re-lettering subsection (d) as subsection (f) and by deleting section
(c) in its entirety and inserting in lieu thereof the following:
"(c) if to the Agent, at Corporate Banking Center, 0000 Xxxxxx
Xxxxxx, Xxx Xxxxx, XX 00000 Attention: Xxxxx X. Xxxxx, Vice President &
Manager, or such other address for notice as the Agent shall last have
furnished in writing to the Person giving the notice; or
(d) if to FNBB, at 000 Xxxxxxx Xxxxxx, Mail Stop 01-09-05, Xxxxxx,
Xxxxxxxxxxxxx 00000 Attention: Xxxxx X. Xxxxx, Vice President, or such
other address for notice as FNBB shall have last furnished in writing to
the Person giving the notice; or
(e) if to Sumitomo, at 000 Xxxx 0xx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxx Xxxxxxxxxx, Vice
President, or such other address for notice as Sumitomo shall have last
furnished in writing to the Person giving the notice; or"
(S)1.11 CONCERNING EXHIBITS AND SCHEDULES.
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(a) Schedule 1. Schedule 1 to the Credit Agreement is hereby amended by
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deleting Schedule 1 attached to the Credit Agreement and substituting therefor
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Schedule 1 attached to this Amendment, with the effect that from and after the
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date hereof, all references in the Credit Agreement to Schedule 1 shall be
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deemed to be references to Schedule 1 attached hereto.
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(b) Exhibit A. Exhibit A to the Credit Agreement is hereby amended by
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deleting Exhibit A attached to the Credit Agreement and substituting therefor
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Exhibit A attached to this Amendment, with the effect that from and after the
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date hereof, all references in the
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Credit Agreement to Exhibit A shall be deemed to be references to Exhibit A
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attached hereto.
(S)2. SCOPE OF AMENDMENT. Except as specifically amended by this
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Amendment, the Credit Agreement shall remain unchanged and in full force and
effect.
(S)3. REPRESENTATIONS AND WARRANTIES. The Company and each of the
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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 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.
(b) Authority, etc. The execution and delivery by the Company and the
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Guarantors of this Amendment and, in the case of the Company, the Restated
Revolving Credit Note, dated as of the date hereof, from the Company to Sanwa in
the principal amount of $20,000,000 (the "Sanwa Note"), the Restated Revolving
Credit Note, dated as of the date hereof, from the Company to FNBB in the
principal amount of $15,652,173.91 (the "FNBB Note") and the Revolving Credit
Note, dated as of the date hereof, from the Company to Sumitomo in the principal
amount of $4,347,826.09 (the "Sumitomo Note", and collectively, the "New
Notes"), and the performance by the Company and the Guarantors of all of their
agreements and obligations under this Amendment are within the corporate
authority of each of the Company and the Guarantors, have been duly authorized
by all necessary corporate action on the part of each of the Company and the
Guarantors, and do not and will not (i) contravene any provision of the Company
or any of the Guarantors' 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
Guarantor under any agreement, deed of trust, indenture, mortgage or other
instrument to which the Company or such Guarantor is a party or by which any of
the Company or such 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 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
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those actions which have been taken or will be taken prior to the date of
execution of this Amendment and the New Notes.
(c) Enforceability of Obligations. This Amendment, the Credit Agreement as
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amended hereby, the New Notes and the Loan Documents constitute the legal, valid
and binding obligations of the Company and the Guarantors enforceable against
the Company and the 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 and the New Notes will not cause any such Default or Event of Default
to occur.
(S)4. REVOLVING CREDIT NOTES. Each of the parties hereto acknowledges and
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agrees that the New Notes are "Revolving Credit Notes" as such term is used in
the Credit Agreement and the other Loan Documents.
(S)5. CONFIRMATION OF SECURITY DOCUMENTS. Each of the Company and the
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Guarantors hereby ratifies and confirms each of its respective Security
Documents and the pledges and security interests created thereby. Each of the
Company and the Guarantors hereby further ratifies and confirms that the
Security Documents and the pledges and security interest created thereby secure
the Obligations of the Company and the Guarantors under the Credit Agreement, as
amended hereby, and the New Notes.
(S)6. CONFIRMATION OF GUARANTIES. Each of the Guarantors hereby ratifies
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and confirms its respective Guaranty and acknowledges and agrees that the
Obligations under the Credit Agreement, as amended hereby, and the New Notes are
Guaranteed Obligations.
(S)7. RESIGNATION OF AGENT. Pursuant to (S)14.7 of the Credit Agreement,
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FNBB resigns as agent for the Banks and each of the Banks appoints Sanwa to act
as agent for the Banks. Each of the Banks and the Company waive the 60-day
notice requirement set forth in (S)14.7 of the Credit Agreement. Sanwa
represents and warrants to each of the Banks that it has a combined capital
surplus in excess of $250,000,000. FNBB and the Company acknowledge and agree
that the letter agreement, dated December 17, 1993 by and between FNBB and the
Company is terminated as of the date hereof.
(S)8. 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 Guarantors,
the
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Banks and the Agent;
(b) each of the New Notes duly executed by the Company;
(c) confirmation that Sumitomo and Sanwa have made additional Loans to the
Company in an amount equal to the amount of Loans which the Company is required
to pay to FNBB in order to cause each Bank's Loans as of the date of this
Amendment to equal such Bank's Commitment Percentage of the Loans outstanding as
of the date hereof;
(d) copies, certified by the Secretary of each of the Company and the
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 Guarantor as
may be required according to the terms of the Company or each such 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 Guarantor,
(ii) the execution and delivery of each of the New Notes by the Company and
(iii) the performance by the Company and each of the Guarantors of all of each
such Person's agreements and obligations under this Amendment and the Credit
Agreement as amended hereby;
(e) a certificate of the Secretary of each of the Company and the
Guarantors (other than Islands) (i) setting forth the names, incumbency and
specimen signatures of those officers authorized to execute and deliver this
Amendment and, in the case of the Company, the New Notes and (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;
(f) a certificate of the Secretary of Islands setting forth (i) the names,
incumbency and specimen signatures of those officers authorized to execute and
deliver this Amendment and (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 September 30, 1994;
(g) a certificate from the Secretary of State of the State of Delaware as
to each of the Company and the Guarantors' legal existence and corporate good
standing;
(h) the written consent of Metropolitan, as holder of the 6.69% Notes and
the 10.40% Notes, to the execution and delivery by the Company and the
Guarantors of this Amendment, each of the New Notes, the Instrument of Adherence
and the other documents and instruments described herein;
(i) an opinion of counsel to the Company and the Guarantors in form and
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satisfactory to the Agent;
(j) Assignment of Notice of Security Interest in Trademarks duly executed
by FNBB;
(k) such Uniform Commercial Code financing statements executed by the
Company or the applicable Guarantor, as appropriate, as the Agent or Sanwa may
reasonably require;
(l) amendments to Mortgages, as required;
(m) 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, including,
without limitation, all recording fees and fees for endorsements to policies of
title insurance and all filing fees relating to any Uniform Commercial Code
financing statement filings; and
(o) the Instrument of Adherence duly executed by Sumitomo, the Company,
each of the Guarantors, the Banks and the Agent.
(S)9. 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)10. GOVERNING LAW. This Amendment shall be construed according to and
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governed by the laws of the Commonwealth of Massachusetts.
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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 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:____________________________________
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Xxxxx X. Xxxxx, Vice President
SANWA BANK CALIFORNIA
By____________________________________
Xxxxx X. Xxxxx, Vice President
The Agent:
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THE FIRST NATIONAL BANK OF
BOSTON, as Agent
By:____________________________________
Xxxxx X. Xxxxx, Vice President
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INSTRUMENT OF ADHERENCE
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April 26, 1995
The First National Bank
of Boston, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Revolving
Credit and Term Loan Agreement dated as of December 17, 1993 among Chart House,
Inc., a Delaware corporation (the "Company"), Chart House Enterprises, Inc., a
Delaware corporation (the "Parent"), Paradise Bakery, Inc., a Delaware
corporation ("Paradise"), Islands Restaurants, Inc., a Delaware corporation
("Islands"), Sanwa Bank California, a California state chartered bank ("Sanwa"),
The First National Bank of Boston, a national baking association ("FNBB, and
together with Sanwa, the "Banks") and FNBB as agent for the Banks (the "Agent")
(as amended by Amendment No. 1 dated as of September 30, 1994 and in effect from
time to time, the "Credit Agreement"). Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
The undersigned, The Sumitomo Bank of California, a California state
chartered bank, hereby agrees to (i) provide additional Loans to the Borrower in
accordance with the terms of the Credit Agreement up to a maximum amount of
$5,000,000 (its "Commitment") and (ii) become a Bank under and as defined in the
Credit Agreement and to perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement as required to be
performed by it as a Bank.
This Instrument of Adherence shall be effective on the date (the "Effective
Date") it has been executed by and delivered to each of the undersigned, the
Borrower and the Agent, and upon the satisfaction of the conditions set forth in
Section 18 of the Credit Agreement and Section 8 of Amendment No. 2 to the
Credit Agreement dated as of April 26, 1995.
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The undersigned confirms, represents and warrants to, and agrees with the
Agent and the Banks that:
(i) the Agent and the Banks have made no representation or warranty and
shall have no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency,
collectibility or value of the Credit Agreement, the other Loan
Documents, any Collateral, or any other instrument or document
furnished pursuant hereto;
(ii) the Agent and the Banks have made no representation or warranty and
shall have no responsibility with respect to the financial condition
of the Company, the Parent, Paradise or Islands or any of their
Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance
by the Company, the Parent, Paradise or Islands or any of their
Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under
the Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant thereto;
(iii) it has received a copy of the Credit Agreement, and the other Loan
Documents, together with copies of the financial statements referred
to in (S)(S)8.7 and 11.9 of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Instrument of
Adherence;
(iv) it will, independently and without reliance on the other Banks or
the Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement;
(v) it appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Agent by the
terms of the Credit Agreement and the other Loan Documents, together
with such powers as are reasonably incidental thereto; and
(vi) it is legally authorized to enter into this Instrument of Adherence.
Notwithstanding the foregoing, the Company, the Parent, Paradise, Islands
and the
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Agent represent and warrant to the undersigned that as of the Effective Date of
this Instrument of Adherence, to the actual knowledge of the Company, the
Parent, Paradise, Islands and the Agent, there exists no Default or Event of
Default which has not been cured or waived, on the part of the Company, the
Parent, Paradise, Island, any Bank or the Agent.
Notices and other communications made or required to be given to the
undersigned pursuant to the Credit Agreement, shall be addressed as follows: The
Sumitomo Bank of California, 000 Xxxx 0xx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxx Xxxxxxxxxx, Vice President.
This Instrument of Adherence is intended to be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts. This Instrument
of Adherence may be executed in several counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute but 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 whom enforcement is sought.
IN WITNESS WHEREOF, the undersigned have duly executed this Instrument of
Adherence as a sealed instrument as of the date first set forth above.
Very truly yours,
THE SUMITOMO BANK
OF CALIFORNIA
By:_________________________________
Title:
Accepted and Agreed:
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The Company:
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CHART HOUSE, INC.
By:________________________________
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Xxxxxx X. Xxxxxxx, Xx.,
Vice President
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The 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
SANWA BANK CALIFORNIA
By________________________________
Xxxxx Xxxxx, Vice President
The Agent:
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THE FIRST NATIONAL BANK OF BOSTON,
as Agent
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By:________________________________
Xxxxx X. Xxxxx, Vice President
OMNIBUS AMENDMENT NO. 1
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OMNIBUS AMENDMENT (this "Amendment") dated as of April 26, 1995, by and among by
and among CHART HOUSE, INC. a Delaware corporation (the "Company"), ISLANDS
RESTAURANTS, INC., a Delaware corporation (formerly known as Big Wave, Inc.)
("Islands"), CHART HOUSE ENTERPRISES, INC., a Delaware corporation (the
"Parent"), and THE FIRST NATIONAL BANK OF BOSTON ("FNBB"), as security agent
(the "Security Agent") for (i) itself, SANWA BANK CALIFORNIA ("Sanwa") (together
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with FNBB and Sanwa, the "Banks") and (ii) METROPOLITAN LIFE INSURANCE COMPANY,
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a New York corporation ("Metropolitan") (the Banks and Metropolitan are
individually referred to herein as a "Secured Party" and collectively referred
to herein as the "Secured Parties"), and the SECURED PARTIES.
WHEREAS, (a) the Company, (b) the Parent, Paradise Bakery, Inc., a Delaware
corporation ("Paradise"), and Islands (Islands together with the Parent and
Paradise, the "Guarantors"), (c) the Banks and (d) FNBB as agent for itself and
Sanwa are parties to the Amended and Restated Revolving Credit Agreement dated
as of December 17, 1993 (as amended and in effect from time to time, the "Credit
Agreement");
WHEREAS, the Company, the Secured Parties and the Security Agent are parties to
that certain Security and Intercreditor Agreement dated as of December 17, 1993
(as amended and in effect from time to time, the "Company Security Agreement");
WHEREAS, Islands, the Secured Parties and the Security Agent are parties to that
certain Amended and Restated Security and Intercreditor Agreement dated as of
December 17, 1993 (as amended and in effect from time to time, the "Big Wave
Security Agreement");
WHEREAS, the Company, the Secured Parties and the Security Agent are parties to
that certain Amended and Restated Pledge Agreement dated as of December 17, 1993
(as amended and in effect from time to time, the "Company Pledge Agreement");
WHEREAS, the Parent, the Secured Parties and the Security Agent are parties to
that certain Amended and Restated Pledge Agreement (as amended and in effect
from time to time, the "Parent Pledge Agreement");
WHEREAS, the Security Agent and the Company are parties to the mortgages (the
"Mortgages") listed on Exhibit A attached hereto and made a part hereof;
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WHEREAS, the Company is party to that certain Amended and Restated Notice of
Security Interest in Trademarks dated as of December 17, 1993 (as amended and in
effect from time to time, the "Trademark Notice") which was recorded with the
United States Patent and Trademark Office on or about January 18, 1994 at Reel
1085, Frame 234 (the Company Security Agreement; the Big Wave Security
Agreement, the Company Pledge Agreement, the Parent Pledge Agreement, the
Mortgages, the Deeds of Trust, and the Trademark Notice are referred to
collectively herein as the "Security Documents"),
WHEREAS, the Company, the Gurantors and Metropolitan are parties to (i) the
Amended and Restated Note Purchase and Gaurantee Agreement dated as of December
30, 1993 with respect to the Company's 10.40 % Senior Secured Notes due 2000
(the "10.40% Note Agreement"), and (ii) the Note Purchase and Guarantee
Agreement dated as of December 30, 1993 with respect to the Company's 6.69%
Senior Secured Notes due 2001 (the "6.69% Note Agreement");
WHEREAS, the Company and the Guarantors have requested that the Banks and FNBB
as agent amend the Credit Agreement to add The Sumitomo Bank of California, a
California state chartered bank, as a lender and to increase the total lending
commitment of the Banks;
WHEREAS, the Company and the Guarantors have requested that FNBB resign as
agent for the Banks under the Credit Agreement and as security agent for the
Secured Parties under the Security Documents and that Sanwa be appointed as
agent for the Banks under the Credit Agreement and as security agent for the
Secured Parties under the Security Documents;
WHEREAS, Sanwa is willing to accept such appointment;
WHEREAS, the Company and Metropolitan desire to amend each of the 10.40% Note
Agreement and the 6.69% Note Agreement and the Company, the Guarantors, Big Wave
and Metropolitan desire to amend the Security Documents;
NOW, THEREFORE, in consideration of the premises contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENT TO THE SECURITY DOCUMENTS. Each of the Security Documents is
hereby amended mutatis mutandis as appropriate to reflect the fact that FNBB has
------- --------
resigned as security agent and Sanwa has been appointed as security agent for
the Secured Parties.
2. AMENDMENT TO THE METROPILITAN AGREEMENTS. The Definition of "Security
Agent" in each of the 10.40% Note Agreement and the 6.69% Note Agreement is
hereby deleted in its entirety and the following substituted therefor:
"'Security Agent' shall mean Sanwa Bank California, in its capacity as Security
Agent under the Security Documents."
3. ADDRESS FOR NOTICES. From and after the date hereof all notices and
other communications made or required to be given to the Security Agent under
the Security Documents shall be addressed as follows: Sanwa Bank of California,
0000 0xx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Vice
President or such other address for notice as Sanwa as security agent shall have
last furnished in writing to the to the party giving notice.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become effective
unless and until the Agent receives counterparts of this Amendment and each of
the conditions set forth in (S)8 of Amendment No. 2 to the Credit Agreement
dated as of the date hereof by and among FNBB, Sanwa, the Parent, the Guarantors
and the Company have been met.
5. EXECUTION IN COUNTERPARTS. 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.
6. GOVERNING LAW. This Amendment shall be construed according to and
governed by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed as an instrument under seal by their authorized representatives as of
the date first written above.
CHART HOUSE ENTERPRISES, INC.
By:_______________________________
Title:
CHART HOUSE, INC.
By:_______________________________
Title:
THE FIRST NATIONAL BANK OF
BOSTON, as Security Agent
By:_______________________________
Title:
THE FIRST NATIONAL BANK OF
BOSTON, as a Secured Party
By:_______________________________
Title:
SANWA BANK CALIFORNIA,
as a Secured Party
By:_______________________________
Title:
METROPOLITAN LIFE INSURANCE
COMPANY, as a Secured Party
By:_________________________________
Title:
ISLANDS RESTAURANTS, INC.
By:_________________________________
Title:
-1-
Schedule 1
----------
Existing Mortgages [1]
-------- ---------
Date of
Location of Real Property Original Mortgage Date of Amendment(s)
------------------------- ----------------- ---------------------
Scottsdale, AZ (Fee) 09/30/90 12/30/93
Idyllwild, CA (Fee) 11/27/85 09/30/90, 12/30/93
Los Gatos, CA (Fee) 11/27/85 09/30/90, 12/30/93
Montara, CA (Leasehold) 04/14/86 09/30/90, 12/30/93
Sausalito, CA (Fee) 11/27/85 09/30/90, 12/30/93
Solana Beach, CA (Fee) 11/27/85 12/30/93
Genesee, CO (Fee) 02/25/86 09/30/90, 12/30/93
Chester, CT (Fee) 02/25/86 09/30/90, 11/12/92,
12/30/93
New Haven, CT (Fee) 02/25/86 09/30/90, 11/12/92,
12/30/93
St. Augustine, FL (Fee) 02/25/86 09/30/90, 12/30/93
Lahaina, HI (Fee-Parking Lot) 02/25/86 09/30/90, 12/30/93
Cohasset, MA (Fee) 09/30/90 12/30/93
-2-
Date of
Location of Real Property Original Mortgage Date of Amendment(s)
------------------------- ----------------- ---------------------
Portland, OR (Fee) 02/25/86 09/30/90, 12/30/93
Warwick, RI (Fee) 09/30/90 12/30/93
-------------------------
[1] The following is a list of leasehold mortgages/deeds of trust that the Banks
believe were previously executed and delivered by the Company to the
Security Agent. However, their recordation has not been confirmed and the
Company believes such leasehold mortgages/deeds of trust were in fact not
recorded due to the absence of necessary consents by the respective
landlords under the subject leases. Therefore, these mortgages/deeds of
trust may not constitute a valid mortgage lien of first priority with
respect to the current secured obligations.
La Jolla, CA (Leasehold) Jacksonville, FL (Leasehold)
Vail, CO (Leasehold) Melbourne, FL (Leasehold)
Fort Xxxxx, FL (Leasehold) New Orleans, LA (Leasehold)
Philadelphia, PA (Leasehold)
-3-
Exihibit A
----------
Existing Mortgages [1]
------------------
Date of
Location of Real Property Original Mortgage Date of Amendment(s)
------------------------- ----------------- ---------------------
Scottsdale, AZ (Fee) 09/30/90 12/30/93
Idyllwild, CA (Fee) 11/27/85 09/30/90, 12/30/93
Los Gatos, CA (Fee) 11/27/85 09/30/90, 12/30/93
Montara, CA (Leasehold) 04/14/86 09/30/90, 12/30/93
Sausalito, CA (Fee) 11/27/85 09/30/90, 12/30/93
Solana Beach, CA (Fee) 11/27/85 12/30/93
Genesee, CO (Fee) 02/25/86 09/30/90, 12/30/93
Chester, CT (Fee) 02/25/86 09/30/90, 11/12/92,
12/30/93
New Haven, CT (Fee) 02/25/86 09/30/90, 11/12/92,
12/30/93
St. Augustine, FL (Fee) 02/25/86 09/30/90, 12/30/93
Lahaina, HI (Fee-Parking Lot) 02/25/86 09/30/90, 12/30/93
Cohasset, MA (Fee) 09/30/90 12/30/93
-4-
Date of
Location of Real Property Original Mortgage Date of Amendment(s)
------------------------- ----------------- ---------------------
Portland, OR (Fee) 02/25/86 09/30/90, 12/30/93
Warwick, RI (Fee) 09/30/90 12/30/93
-------------------------
[1] The following is a list of leasehold mortgages/deeds of trust that the Banks
believe were previously executed and delivered by the Company to the
Security Agent. However, their recordation has not been confirmed and the
Company believes such leasehold mortgages/deeds of trust were in fact not
recorded due to the absence of necessary consents by the respective
landlords under the subject leases. Therefore, these mortgages/deeds of
trust may not constitute a valid mortgage lien of first priority with
respect to the current secured obligations.
La Jolla, CA (Leasehold) Jacksonville, FL (Leasehold)
Vail, CO (Leasehold) Melbourne, FL (Leasehold)
Fort Xxxxx, FL (Leasehold) New Orleans, LA (Leasehold)
Philadelphia, PA (Leasehold)
-1-
RESTATED REVOLVING CREDIT NOTE
$15,652,173.91 April ___, 1995
FOR VALUE RECEIVED, the undersigned Chart House, Inc., a Delaware
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of The First National Bank of Boston (the "Bank") at the head
office of Sanwa Bank California at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000:
(a) on the Conversion Date (as defined in the Credit Agreement referred
to below), the principal amount of FIFTEEN MILLION SIX HUNDRED FIFTY-TWO
THOUSAND ONE HUNDRED SEVENTY-THREE DOLLARS AND NINETY-ONE CENTS
($15,652,173.91), or, if less, the aggregate unpaid principal amount of
Revolving Credit Loans advanced by the Bank to the Company pursuant to the
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 17, 1993 (as amended and in effect from time to time, the "Credit
Agreement"), among the Company, the Bank, the other "Banks" named therein
and The First National Bank of Boston, as agent for the Banks; and
(b) interest on the Existing Note (as hereinafter defined) and on the
principal balance hereof from time to time outstanding from the date hereof
through and including the date on which such principal amount is paid in
full, at the times and at the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by the Company in
accordance with the terms of the Credit Agreement in order to amend, restate or
be substitute for, but not in payment or satisfaction of, the Restated Revolving
Credit Note of the Company dated September 30, 1994 payable to the order of the
Bank in the original principal amount of $15,000,000 (the "Existing Note"). The
Bank and any holder hereof is entitled to the benefits of the Credit Agreement
and may enforce the agreements of the Company contained therein, and any holder
may exercise the respective remedies provided for thereby or otherwise available
in respect thereof, all in accordance with the respective terms thereof. All
capitalized terms used in this Note and not otherwise defined herein shall have
the same meanings herein as in the Credit Agreement.
-2-
The Bank may, and is hereby irrevocably authorized by the Company to,
endorse on the schedule attached to this Note or a continuation of such schedule
attached hereto and made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided that failure by the
--------
Bank to make any such notations shall not affect any of the Company's
obligations in respect of this Note.
The Company has the right in certain circumstances and the obligation under
certain other circumstances to prepay the whole or part of the principal of this
Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
The Company and every endorser and guarantor of this Note or the obligation
represented hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of collateral and to the addition or release of any other party or
person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Chart House, Inc. has caused this Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal] CHART HOUSE, INC.
Attest:
By:_______________________________
Title:____________________________
-3-
Amount of
Amount of Principal Paid Balance of Notation
Date Loan or Prepaid Principal Unpaid Made By
------- --------- -------------- ---------------- --------
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
-4-
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
-1-
RESTATED REVOLVING CREDIT NOTE
$20,000,000 April ___ 1995
FOR VALUE RECEIVED, the undersigned Chart House, Inc., a Delaware
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of Sanwa Bank California (the "Bank") at the head office of the
Sanwa Bank California at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
(a) on the Conversion Date (as defined in the Credit Agreement referred
to below), the principal amount of TWENTY MILLION DOLLARS ($20,000,000),
or, if less, the aggregate unpaid principal amount of Revolving Credit
Loans advanced by the Bank to the Company pursuant to the Amended and
Restated Revolving Credit and Term Loan Agreement dated as of December 17,
1993 (as amended and in effect from time to time, the "Credit Agreement"),
among the Company, the Bank, the other "Banks" named therein and The First
National Bank of Boston, as agent for the Banks; and
(b) interest on the Existing Note (as hereinafter defined) and on the
principal balance hereof from time to time outstanding from the date hereof
through and including the date on which such principal amount is paid in
full, at the times and at the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by the Company in
accordance with the terms of the Credit Agreement in order to amend, restate or
be substitute for, but not in payment or satisfaction of, the Restated Revolving
Credit Note of the Company dated September 30, 1994, payable to the order of the
Bank in the original principal amount of $20,000,000 (the "Existing Note"). The
Bank and any holder hereof is entitled to the benefits of the Credit Agreement
and may enforce the agreements of the Company contained therein, and any holder
may exercise the respective remedies provided for thereby or otherwise available
in respect thereof, all in accordance with the respective terms thereof. All
capitalized terms used in this Note and not otherwise defined herein shall have
the same meanings herein as in the Credit Agreement.
-2-
The Bank may, and is hereby irrevocably authorized by the Company to,
endorse on the schedule attached to this Note or a continuation of such schedule
attached hereto and made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided that failure by the
--------
Bank to make any such notations shall not affect any of the Company's
obligations in respect of this Note.
The Company has the right in certain circumstances and the obligation under
certain other circumstances to prepay the whole or part of the principal of this
Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
The Company and every endorser and guarantor of this Note or the obligation
represented hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of collateral and to the addition or release of any other party or
person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Chart House, Inc. has caused this Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal] CHART HOUSE, INC.
Attest:
By:_______________________________
Title:____________________________
-3-
Amount of
Amount of Principal Paid Balance of Notation
Date Loan or Prepaid Principal Unpaid Made By
------- --------- -------------- ---------------- --------
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
-4-
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
-1-
REVOLVING CREDIT NOTE
$4,347,826.09 April ___, 1995
FOR VALUE RECEIVED, the undersigned Chart House, Inc., a Delaware
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of The Sumitomo Bank of California, a California state
chartered bank (the "Bank") at the head office of Sanwa Bank California at 0000
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000:
(a) on the Conversion Date (as defined in the Credit Agreement referred
to below), the principal amount of FOUR MILLION THREE HUNDRED FORTY-SEVEN
THOUSAND EIGHT HUNDRED TWENTY-SIX DOLLARS AND NINE CENTS ($4,347,826.09),
or, if less, the aggregate unpaid principal amount of Revolving Credit
Loans advanced by the Bank to the Company pursuant to the Amended and
Restated Revolving Credit and Term Loan Agreement dated as of December 17,
1993 (as amended and in effect from time to time, the "Credit Agreement"),
among the Company, the Bank, the other "Banks" named therein and The First
National Bank of Boston, as agent for the Banks; and
(b) interest on the Existing Note (as hereinafter defined) and on the
principal balance hereof from time to time outstanding from the date hereof
through and including the date on which such principal amount is paid in
full, at the times and at the rates provided in the Credit Agreement.
The Bank and any holder hereof is entitled to the benefits of the Credit
Agreement and may enforce the agreements of the Company contained therein, and
any holder may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. All capitalized terms used in this Note and not otherwise
defined herein shall have the same meanings herein as in the Credit Agreement.
The Bank may, and is hereby irrevocably authorized by the Company to,
endorse on the schedule attached to this Note or a continuation of such schedule
attached hereto and
-2-
made a part hereof, an appropriate notation evidencing advances and repayments
of principal of this Note, provided that failure by the Bank to make any such
--------
notations shall not affect any of the Company's obligations in respect of this
Note.
The Company has the right in certain circumstances and the obligation under
certain other circumstances to prepay the whole or part of the principal of this
Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
The Company and every endorser and guarantor of this Note or the obligation
represented hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of collateral and to the addition or release of any other party or
person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Chart House, Inc. has caused this Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal] CHART HOUSE, INC.
Attest:
By:_______________________________
Title:____________________________
-3-
Amount of
Amount of Principal Paid Balance of Notation
Date Loan or Prepaid Principal Unpaid Made By
------- --------- -------------- ---------------- --------
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
-4-
_________________________ _________________________________________________
_________________________ _________________________________________________
_________________________ _________________________________________________
