EXHIBIT 10.1(4)
AMENDMENT NO. 3
DATED AS OF JUNE 14, 1995 TO
AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 17, 1993
AMENDMENT NO. 3 (this "Amendment") dated as of June 14, 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, Amendment
No. 2 dated as of April 26, 1995 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"), The Sumitomo Bank of California, a
California state chartered bank ("Sumitomo", and collectively with Sanwa and
FNBB, the "Banks") and (d) Sanwa as agent for itself, FNBB and Sumitomo (in such
capacity, 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 extend the Conversion Date to January 1,
1997 and the term loan maturity date to December 31, 2001;
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 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;
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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. (a) Section 1 of the Credit
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Agreement is hereby amended by deleting the text "January 1, 1996" appearing in
the definition of "Conversion Date" and inserting in lieu thereof the text
"January 1, 1997". (b) Section 3.2 of the Credit Agreement is hereby amended by
deleting the text "the final payment due on December 31, 1999 rather than
January 1, 2000" and inserting in lieu thereof the text "the final payment due
on December 31, 2001 rather than January 1, 2002"
(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 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 those actions which have been taken or will be
taken prior to the date of execution of this Amendment.
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(c) Enforceability of Obligations. This Amendment, the Credit Agreement as
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amended hereby 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 will not cause any such Default or Event of Default to occur.
(S)4. 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.
(S)5. 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 are Guaranteed
Obligations.
(S)6. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
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shall be conditioned upon receipt by the Agent of (i) this Amendment duly
executed by each of the Company, the Guarantors, the Banks and the Agent and
(ii) 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.
(S)7. 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)8. GOVERNING LAW. This Amendment shall be construed according to and
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governed by the laws of the Commonwealth of Massachusetts (without reference to
conflicts or choice of law provisions).
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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:__________________________________
Xxxxx X. Xxxxx, Vice President
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SANWA BANK CALIFORNIA
By__________________________________
Xxxxx X. Xxxxx, Vice President
THE SUMITOMO BANK
OF CALIFORNIA
By__________________________________
Xxxxxxx X. Xxx Xxxxxxxxxx,
Vice President
The Agent:
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SANWA BANK CALIFORNIA
By__________________________________
Xxxxx X. Xxxxx, Vice President
