EXHIBIT 10.18
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE
ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE
SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION
UNDER THE ACT CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE ACT AS
WELL AS ANY APPLICABLE "BLUE SKY" OR SIMILAR STATE SECURITIES LAWS
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE
PRIOR PAYMENT IN FULL OF ALL INDEBTEDNESS OF THE ISSUER (THE "SENIOR
DEBT") INCURRED PURSUANT TO THAT CERTAIN REVOLVING CREDIT AND TERM LOAN
AGREEMENT DATED AS OF APRIL 26, 1999 (AS AMENDED FROM TIME TO TIME, THE
"SENIOR CREDIT AGREEMENT") BY AND AMONG CHART HOUSE ENTERPRISES, INC., A
DELAWARE CORPORATION ("PARENT"), THE COMPANY (AS DEFINED BELOW), BANK
BOSTON, N.A. (n/k/a FLEET NATIONAL BANK), AS AGENT ("AGENT") AND THE FINANCIAL
INSTITUTIONS SIGNATORIES THERETO, PURSUANT TO THAT CERTAIN
SUBORDINATION AGREEMENT OF EVEN DATE HEREWITH (AS AMENDED FROM TIME
TO TIME, THE "SUBORDINATION AGREEMENT") EXECUTED BY AGENT, PARENT, THE
COMPANY, THE SUBSIDIARY GUARANTORS PARTY THERETO, AND XXXXXXXX, L.L.C.
Subordinated Promissory Note and Guaranty
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Chicago, Illinois
November ___, 2000 $2,000,000.00
FOR VALUE RECEIVED, CHART HOUSE, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Samstock, L.L.C., a Delaware limited
liability company, or its assigns ("Holder", which term shall include the
holder, from time to time, of this Note) the sum of Two Million and No/100ths
Dollars ($2,000,000.00), in legal tender of the United States, together with
interest (computed on the basis of a 360-day year of twelve 30-day months for
actual days elapsed) on the principal amount outstanding from time to time as
provided in Section 1 hereof.
1. Payments of Principal and Interest.
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(a) Interest shall accrue on the unpaid principal of this Note and
shall be computed at a rate per annum, for Interest Periods and in a manner
identical to the rate, Interest Periods and manner applicable to the portion of
the Term Loan in the aggregate principal amount of $5,000,000 (the "$5 Million
Portion") identified in Section 4.5.1(c) of the Senior Credit Agreement,
provided however that the rate per annum shall be equal to the Eurodollar Rate
plus sixteen percent (16%), instead of the Eurodollar Rate plus fourteen percent
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percent (14%). If, for any reason, the $5 Million Portion shall not be (or shall
not be deemed to be) outstanding, interest owing under this Note shall be
computed at the Eurodollar Rate plus sixteen percent (16%) per annum for the
----
Interest Periods and in the manner applicable to the Term Loan. To the extent
permitted by applicable law, accrued but unpaid interest owing on this Note
shall be added to the principal balance of this Note as of each Interest Payment
Date applicable to the $5 Million Portion, and shall accrue interest as if it
were additional principal hereunder. If not sooner paid, the total unpaid
principal balance, all accrued but unpaid interest, and all other amounts owing
hereunder shall be due and payable on the Maturity Date (as hereinafter
defined). All payments of principal and interest shall be made to the holder of
this Note not later than 1:00 p.m. (Chicago time) on the date and at the place
of payment designated by the holder hereof as aforesaid, and any payment
received on such date but after such hour shall be deemed to have been paid to
and received by the holder hereof on the next succeeding business day. If the
date on which any payment is required to be made pursuant to this Note is not a
business day, then such payment shall be due and payable on the next succeeding
date which is not a Saturday, Sunday or legal holiday, and such extension of
time shall be included in computing interest. All payments of principal and
interest made hereunder shall be applied first to accrued interest and then to
principal.
(b) As used in this Note, the term "Maturity Date" shall mean the
date which is the first to occur of (i) March 31, 2005, and (ii) the date on
which the right to accelerate payment of this Note accrues to the holder hereof
as provided in this Note.
(c) All payments hereunder shall be made without reduction, and shall
not be subject to any claim or offset of any kind or nature whatsoever. Without
limiting the foregoing, all payments made by the Company or Parent under this
Note shall be made free and clear of, and without deduction or withholding for
or on account of, any future income, stamp or other taxes, levies, imposts,
deductions, charges, or withholdings, excluding taxes imposed on net income of
Holder (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts so payable to Holder hereunder, the amounts so payable
to Holder shall be increased to the extent necessary to yield to Holder (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Note.
(d) The terms and provisions of Sections 6.5 - 6.7 of the Senior
Credit Agreement shall be applicable to the indebtedness owing under this Note,
to the extent applicable, and with the necessary conforming modifications.
(e) After all principal, accrued interest, and all other amounts at
any time owed on this Note have been paid in full in cash, this Note shall be
surrendered to the Company for cancellation.
2. Optional Prepayment by the Company. This Note may be prepaid in whole
----------------------------------
or in part without penalty or premium, together with all accrued interest on the
amount prepaid, and all other obligations then due and owing hereunder. Any
prepayment amount shall be first applied to collection costs and other amounts
(excluding principal and interest) due hereunder, then to accrued interest
hereunder, and then to principal.
3. Events of Default. Each of the following shall constitute an "Event
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of Default," whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Company, or be
effected by operation of law or pursuant to any judgment or order of any court
or any order, rule or regulation of any governmental or nongovernmental body:
(a) The Company or Parent defaults in payment of the outstanding
principal, any accrued and unpaid interest on this Note or any other payments
due hereunder when the same become due and payable in accordance with the terms
of this Note; or
(b) The Company or Parent fails to observe, perform or comply with
any covenant, condition or agreement to be observed, performed or complied with
under this Note,
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and if such failure can be cured, such failure continues unwaived and uncured
for thirty (30) days following the date the Company and Parent receives written
notice from Holder of such nonperformance; or
(c) Any representation or warranty made by the Company or Parent
herein shall prove to have been untrue or incorrect in any material respect on
or as of the date made; or
(d) The Company or any Guarantor shall (i) commence a voluntary case
under the Federal bankruptcy laws (as now or hereafter in effect), (ii) file a
petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, (iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case under
such bankruptcy laws or other laws, (iv) apply for, or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of a
substantial part of its assets domestic or foreign, (v) admit in writing its
inability to pay its debts as they become due, (vi) make a general assignment
for the benefit of creditors, or (vii) take any corporate action for the purpose
of effecting any of the foregoing; or
(e) A case or other proceeding shall be commenced against the Company
or any Guarantor in any court of competent jurisdiction seeking (i) relief under
the Federal bankruptcy laws (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like, of the Company or any Guarantor, or
of all or any substantial part of the assets, domestic or foreign, of the
Company or any Guarantor and such case or proceeding shall continue undismissed
or unstayed for a period of sixty (60) calendar days, or an order granting the
relief requested in such case or proceeding against the Company or any Guarantor
(including, but not limited to, an order for relief under such Federal
bankruptcy laws) shall be entered; or
(f) The holders of the Senior Debt shall accelerate the Senior Debt
or there shall occur an Event of Default under the Senior Credit Agreement; or
(g) The Guaranty of even date herewith (the "Guaranty"), or the
guaranty set forth in Section 4 hereof, in each case executed or given by the
Guarantors, shall cease, for any reason, to be in full force and effect, or any
Guarantor shall so assert or shall disavow liability thereunder.
Upon the occurrence of an Event of Default hereunder, the holder of
this Note may, upon written notice to the Company, (i) declare all obligations
owing hereunder immediately due and payable, provided however that upon an Event
of Default described in Sections 3(d) or (e) above, all such obligations shall
automatically become immediately due and payable without notice or demand of any
kind, and (ii) pursue its other rights and remedies under this Note, the
Guaranty and applicable law.
All powers and remedies given by this Section 3 to Holder shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to Holder by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Note, and no delay or omission of
Holder to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or an acquiescence therein
and every
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power and remedy given by this Section 3 or by law to Holder may be exercised
from time to time, and as often as shall be deemed expedient, by Xxxxxx.
In addition to those remedies set forth in this Section 3, if this
Note is not paid when due, whether at maturity or by acceleration, the Company
promises to pay all costs of collection, including without limitation reasonable
attorneys' fees and costs, whether or not suit is filed hereon. Such costs and
expenses shall include without limitation all costs, reasonable attorneys' fees
and expenses incurred by Holder in connection with any insolvency, bankruptcy,
reorganization, arrangement or other similar proceedings involving the Company
or any Guarantor.
4. Guaranty.
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(a) Guaranty of Payment and Performance. The Parent hereby guarantees
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to Holder the full and punctual payment when due (whether at stated maturity, by
required pre-payment, by acceleration or otherwise), as well as the performance,
of all of the indebtedness and other amounts owing under this Note
(collectively, the "Obligations"), including all such Obligations which would
become due but for the operation of the automatic stay pursuant to (S)362(a) of
the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the
Federal Bankruptcy Code. This guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of all of
the Obligations and not of their collectability only and is in no way
conditioned upon any requirement that Holder first attempt to collect any of the
Obligations from the Company or resort to any collateral security or other means
of obtaining payment. Should the Company default in the payment or performance
of any of the Obligations, the obligations of the Parent hereunder with respect
to such Obligations in default shall, upon demand by Holder, become immediately
due and payable to Holder, without demand or notice of any nature, all of which
are expressly waived by the Parent. Payments by the Parent hereunder may be
required by Xxxxxx on any number of occasions. All payments by the Parent
hereunder shall be made to the Holder, in the manner and at the place of payment
specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent
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further agrees, as the principal obligor and not as a guarantor only, to pay to
Holder, on demand, all reasonable costs and expenses (including court costs and
reasonable legal expenses, including the allocated cost of staff counsel)
incurred or expended by Holder in connection with the Obligations, this guaranty
and the enforcement thereof, together with interest on amounts recoverable
hereunder from the time when such amounts become due until payment, whether
before or after judgment, at the rate of interest set forth in (S)1 hereof,
provided that if such interest exceeds the maximum amount permitted to be paid
---------
under applicable law, then such interest shall be reduced to such maximum
permitted amount.
(c) Waivers by the Parent; Xxxxxx's Freedom to Act. The Parent agrees
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that the Obligations will be paid and performed strictly in accordance with
their respective terms, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of Holder with respect thereto. The Parent waives promptness, diligence,
presentment, demand, protest, notice of acceptance, notice of any Obligations
incurred and all other notices of any kind, all defenses which may be available
by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets of the
Company or any other entity or other Person primarily or secondarily liable with
respect to any of the Obligations, and all suretyship defenses generally.
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Without limiting the generality of the foregoing, the Parent agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of the Parent
hereunder shall not be released or discharged, in whole or in part, or otherwise
affected by (i) the failure of Holder to assert any claim or demand or to
enforce any right or remedy against the Company or any other entity or other
Person primarily or secondarily liable with respect to any of the Obligations;
(ii) any extensions, compromise, refinancing, consolidation or renewals of any
Obligation; (iii) any change in the time, place or manner of payment of any of
the Obligations or any rescissions, waivers, compromise, refinancing,
consolidation or other amendments or modifications of any of the terms or
provisions of this Note or any other agreement evidencing, securing or otherwise
executed in connection with any of the Obligations made in accordance with the
terms hereof; (iv) the addition, substitution or release of any entity or other
person primarily or secondarily liable for any Obligation; or (v) any other act
or omission which might in any manner or to any extent vary the risk of the
Parent or otherwise operate as a release or discharge of the Parent (other than
the indefeasible payment in full, in cash, of all of the Obligations), all of
which may be done without notice to the Parent.
(d) Unenforceability of Obligations Against the Company. If for any
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reason the Company has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Company by reason of the Company's insolvency, bankruptcy
or reorganization or by other operation of law or for any other reason (other
than the indefeasible payment in full, in cash, of all of the Obligations), to
the extent permitted by law, this guaranty shall nevertheless be binding on the
Parent to the same extent as if the Parent at all times had been the principal
obligor on all such Obligations. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Company, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of this Note or any other
agreement evidencing, securing or otherwise executed in connection with any
Obligation shall be immediately due and payable by the Parent.
(e) Subrogation; Subordination.
--------------------------
(i) Postponement of Rights Against the Company. Until the final
------------------------------------------
payment and performance in full in cash of all of the Obligations, the
Parent shall not exercise any rights against the Company arising as a
result of payment by the Parent hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove
any claim in competition with Holder in respect of any payment hereunder in
any bankruptcy, insolvency or reorganization case or proceedings of any
nature; the Parent will not claim any setoff, recoupment or counterclaim
against the Company in respect of any liability of the Parent to the
Company.
(ii) Subordination. The payment of any amounts due with respect
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to any indebtedness of the Company for money borrowed or credit received
now or hereafter owed to the Parent is hereby subordinated to the prior
payment in full in cash of all of the Obligations. The Parent agrees that,
after the occurrence of any default in the payment or performance of any of
the Obligations, the Parent will not demand, sue for or otherwise attempt
to collect any such indebtedness of the Company to such Parent until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Parent shall collect, enforce or receive any
amounts in respect of such indebtedness while any Obligations are still
outstanding, such amounts shall be collected, enforced and received by the
Parent as trustee for the Holder and be paid
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over to Xxxxxx, on account of the Obligations without affecting in any
manner the liability of the Parent under the other provisions of this
guaranty.
(iii) Provisions Supplemental. The provisions of this (S)4(e)
-----------------------
shall be supplemental to and not in derogation of any rights and remedies
of Holder under any separate subordination agreement which Holder may at
any time and from time to time enter into with the Parent.
(f) Setoff. Upon the occurrence and during the continuation of an
------
Event of Default, Holder is hereby authorized at any time and from time to time,
without notice to the Parent (any such notice being expressly waived by the
Parent) and to the fullest extent permitted by law, to set off and apply any and
all sums credited by or due from Holder to the Parent against the obligations of
the Parent under this guaranty, whether or not Holder shall have made any demand
under this guaranty and although such obligations may be contingent or
unmatured.
(g) Further Assurances. The Parent agrees that it will from time to
------------------
time, at the request of Xxxxxx, do all such things and execute all such
documents as Holder may reasonably consider necessary or desirable to give full
effect to this guaranty and to perfect and preserve the rights and powers of
Holder hereunder. The Parent acknowledges and confirms that it has established
its own adequate means of obtaining from the Company on a continuing basis all
information desired by it concerning the financial condition of the Company and
that it will look to the Company and not to Holder in order for it to keep
adequately informed of changes in any of the Company's financial condition.
(h) Termination; Reinstatement. This guaranty shall terminate upon
--------------------------
the final and indefeasible payment in full, in cash, of the Obligations.
Notwithstanding any termination of this guaranty upon the final and indefeasible
payment in full, in cash, of the Obligations, this guaranty shall continue to be
effective or be reinstated, if at any time any payment made or value received
with respect to any Obligation is rescinded or must otherwise be returned by
Holder upon the insolvency, bankruptcy or reorganization of the Company, or
otherwise, all as though such payment had not been made or value received.
(i) Successors and Assigns. This guaranty shall be binding upon the
----------------------
Parent, its successors and assigns, and shall inure to the benefit of Xxxxxx and
its respective successors, transferees and assigns. The Parent may not assign
any of its obligations hereunder.
5. Priority. The indebtedness evidenced by this Note is subordinate to
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the prior payment in full of the Senior Debt pursuant to the terms of the
Subordination Agreement.
6. Representations, Warranties and Covenants. Each of Parent and the
-----------------------------------------
Company represents and warrants to Holder as follows:
(a) Authorization. It has the corporate power and authority to
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execute, deliver and perform this Note and to incur the Obligations, and it has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Note.
(b) No Consents Required. Except for any filings under applicable
--------------------
federal or state securities laws, no consent, approval or authorization of, or
declaration or filing with, any federal, state or local governmental authority
and no consent of any other person, company,
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partnership or other organization or entity is required in connection with its
execution, delivery and performance of this Note.
(c) No Conflict. Its execution, delivery and performance of this Note
-----------
and payment of the Obligations does not and will not conflict with, or
constitute a violation or breach of, constitute a default under (i) any material
contract, mortgage, lien, lease, agreement or other instrument to which it is a
party or which is binding upon it, (ii) any requirement of law or regulation
applicable to it or (iii) its certificate of incorporation or bylaws.
(d) Enforceability. This Note has been duly executed and delivered by
--------------
it and constitutes its legal, valid and binding obligations, enforceable against
it in accordance with its terms.
(e) Covenants. From the time that (and for so long as) the Senior
---------
Debt shall be paid in full in cash, or the Senior Credit Agreement shall
otherwise be terminated or no longer in full force and effect, each and every
covenant contained in Sections 10-12 of the Senior Credit Agreement (as in
effect as of the date of such payment or termination) shall be deemed
incorporated in and a part of this Note as if they were set forth herein, with
all necessary conforming modifications, and the Company and Parent shall comply
with each and every such covenant.
7. Miscellaneous.
-------------
(a) This section headings contained in this Note are inserted for
convenience only and shall not affect, in any way, the meaning or
interpretations of this Note.
(b) This Note shall be governed by and construed in accordance with
the internal laws (and not the laws of conflicts) of the State of Illinois.
(c) To the maximum extent permitted by applicable law, the Company,
Parent and all endorsers and all persons liable or to become liable hereunder
hereby waive presentment, demand, protest, diligence of collection, notice of
protest, dishonor and nonpayment and all notices of every kind, and, the defense
of the statute of limitations.
(d) BY ACCEPTANCE OF THIS NOTE, XXXXXX REPRESENTS THAT IT IS AN
ACCREDITED INVESTOR, WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE
ACT, AND THAT IT IS PURCHASING THIS NOTE FOR ITS OWN ACCOUNT FOR INVESTMENT, AND
NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY PUBLIC DISTRIBUTION OF
SUCH NOTE.
(e) It is the intention of the parties to conform strictly to the
usury laws, whether state or federal, that are applicable to this Note. All
agreements between the Company and Holder, whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever, shall the amount paid or agreed to be paid to
Holder, or collected by Xxxxxx, for the use, forbearance or detention of the
money loaned or to be loaned hereunder or otherwise, or for the payment or
performance of any covenant or obligation contained herein or in any other
document evidencing, securing or pertaining to the indebtedness evidenced
hereby, exceed the maximum amount permissible under applicable federal or state
usury laws. If under any circumstances whatsoever fulfillment of any provision
hereof, at the time performance of such provision shall be due, shall involve
exceeding the limit of validity prescribed by law, then the obligation to be
fulfilled shall be
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reduced to the limit of such validity; and if under any circumstances Holder
shall ever receive an amount deemed interest by applicable law, which would
exceed the highest lawful rate, such amount that would be excessive interest
under applicable usury laws shall be applied to the reduction of the principal
amount owing hereunder and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal, the excess shall be deemed to
have been a payment made by mistake and shall be refunded to the Company or to
any other person making such payment on the Company's behalf. All sums paid or
agreed to be paid to the holder hereof for the use, forbearance or detention of
the indebtedness of the Company evidenced hereby outstanding from time to time
shall, to the extent permitted by applicable law, and to the extent necessary to
preclude exceeding the limit of validity prescribed by law, be amortized,
prorated, allocated and spread from the date of disbursement of the proceeds of
this Note until payment in full of the loan evidenced hereby so that the actual
rate of interest on account of such indebtedness is uniform throughout the term
hereof.
(f) Time is of the essence with respect to the performance of the
obligations of the Company and Parent under this Note.
(g) Any notice required or permitted to be given hereunder shall be
in writing, and shall be given in the manner set forth in the Senior Credit
Agreement and to the addresses set forth below.
(h) No modification, waiver, amendment, discharge or change of this
Note shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge
or change is sought.
(i) In the event any one or more of the provisions contained in this
Note should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall not in any way be affected or impaired thereby.
(j) This Note represents the agreement of the Company, Parent and
Holder with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by Holder relative to the subject
matter hereof not expressly set forth or referred to herein.
(k) This Note shall inure to the benefit of and shall be binding on
the parties hereto and their respective successors and assigns, provided that
neither the Company nor Parent may transfer its obligations under, or interest
in, this Note, or any portion hereof, without the prior written consent of
Holder.
(l) This Note is unsecured.
(m) The Company agrees to pay all costs and out-of-pocket expenses
(including but not limited to reasonable attorneys' fees) incurred by Holder in
connection with the negotiation, documentation and consummation of this Note,
but not in excess of $7,500 in the aggregate.
(n) Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Senior Credit Agreement; provided that it is
hereby agreed that all references to the Senior Credit Agreement, including
defined terms, procedures, and particular terms and provisions, shall be
references to the Senior Credit Agreement, as amended from
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time to time; provided further that if the Senior Debt shall be paid in full in
cash, or the Senior Credit Agreement shall otherwise be terminated or no longer
in full force and effect, such references to the Senior Credit Agreement shall
be references to the Senior Credit Agreement as in effect as of the date hereof.
(o) Each of the Company and Parent agrees that any suit for the
enforcement of this Note may be brought in the courts of the State of Illinois
or any federal court sitting therein and consents to the nonexclusive
jurisdiction of such court and to service of process in any such suit being made
upon the Company or Parent by mail at the address specified by reference in
Section 7(g). Each of the Company and Parent hereby waives any objection that
it may now or hereafter have to the venue of any such suit or any such court or
that such suit was brought in an inconvenient court.
(p) EACH OF THE COMPANY AND PARENT HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS NOTE, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
each of the Company and Parent 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 Company and Parent (i) certifies
that neither Holder nor any representative, agent or attorney of Xxxxxx has
represented, expressly or otherwise, that Holder would not, in the event of
litigation, seek to enforce the foregoing waivers, and (ii) acknowledges that,
in making the loan evidenced by this Note, Holder is relying upon, among other
things, the waivers and certifications contained in this Section 7(p).
(q) This Note may be executed (i) in counterparts, each of which
counterparts shall be an original, and all of which together shall constitute
one instrument, and (ii) by facsimile signature, and such facsimile signature
shall be deemed to be an original instrument.
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IN WITNESS WHEREOF, the Company and Parent have caused this Note to be
executed as of this ____ day of November, 2000.
CHART HOUSE, INC., a Delaware corporation
By: __________________________________________
Name: Xxxxxxx Xxxxxxxx
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Its: Executive Vice President & CFO
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CHART HOUSE ENTERPRISES, INC., a Delaware corporation
(solely for purpose of Sections 4 and 6 above)
By: __________________________________________
Name: Xxxxxxx Xxxxxxxx
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Its: Executive Vice President & CFO
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Address for notices to the Company and Parent:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax No.: 000-000-0000
Attn: General Counsel
Address for notices to Holder:
Xxxxxxxx, X.X.X.
c/o Equity Group Investments, L.L.C.
Two North Riverside Plaza
Xxxxx 000
Xxxxxxx, XX 00000
Fax No.: 000-000-0000
Attn: General Counsel
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