EXHIBIT 10.60
THIS AMENDED AND RESTATED GUARANTY IS SUBORDINATED TO THE GUARANTY DATED AS OF
APRIL 26, 1999 EXECUTED BY EACH OF THE UNDERSIGNED IN FAVOR OF BANK BOSTON, N.A.
(n/k/a FLEET NATIONAL BANK), AS AGENT ("AGENT"), AND CERTAIN OTHER FINANCIAL
INSTITUTIONS PARTY TO THAT CERTAIN REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF APRIL 26, 1999 BY AND AMONG CHART HOUSE ENTERPRISES, INC., CHART
HOUSE, INC., AGENT, AND SUCH FINANCIAL INSTITUTIONS, PURSUANT TO THAT CERTAIN
AMENDED AND RESTATED SUBORDINATION AGREEMENT OF EVEN DATE HEREWITH EXECUTED BY
AGENT, CHART HOUSE INC., CHART HOUSE ENTERPRISES INC., THE UNDERSIGNED, AND
EGI-FUND (01) INVESTORS, L.L.C.
AMENDED AND RESTATED GUARANTY
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AMENDED AND RESTATED GUARANTY (this "Guaranty"), dated as of February 20,
2001, by CHART HOUSE ENTERPRISES OF IDAHO, INC., an Idaho corporation, CHART
HOUSE ENTERPRISES OF PUERTO RICO, INC., a Louisiana corporation, CHART HOUSE OF
ANNAPOLIS, INC., a Delaware corporation, CHART HOUSE OF MARYLAND, INC., a
Delaware corporation, CHART HOUSE ACQUISITION, INC., a Delaware corporation, BIG
WAVE, INC., a Delaware corporation, CORK `N XXXXXXX, INC., a Delaware
corporation, and ANALOS COMPANY, a Delaware corporation, WEST 52/ND/ STREET,
INC., a Delaware corporation, CHART HOUSE ACQUISITION OF NEVADA, INC., a
Delaware corporation, and CHART HOUSE ACQUISITION OF MARYLAND, INC., a Delaware
corporation (collectively the "Guarantors"), in favor of EGI-FUND (01)
INVESTORS, L.L.C., a Delaware limited liability company ("Lender").
WHEREAS, Chart House Enterprises, Inc. ("Parent") and Chart House, Inc.
(the "Company") and the Guarantors are members of a group of related
corporations, the success of any one of which is dependent in part on the
success of the other members of such group;
WHEREAS, each of the Guarantors expects to receive substantial direct and
indirect benefits from the extensions of credit to the Company by Lender
pursuant to that certain Amended and Restated Subordinated Promissory Note and
Guaranty of even date herewith (as amended from time to time, the "Note")
executed by Parent and the Company in favor of Lender, and pursuant to which
Lender may make available to the Company a loan (the "Loan") to the Company in
the maximum aggregate principal amount of $11,000,000 (which benefits are hereby
acknowledged);
WHEREAS, it is a condition precedent to Lender's accepting the Note from
the Company that each of the Guarantors execute and deliver to Lender this
guaranty; and
WHEREAS, each of the Guarantors wishes to guaranty the Company's
obligations to Lender under or in respect of the Loan and the Note as provided
herein;
NOW, THEREFORE, each of the Guarantors hereby agrees with Lender as
follows:
1. Definitions. The term "Obligations" and all other capitalized terms
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used herein without definition shall have the respective meanings provided
therefor in the Note.
2. Guaranty of Payment and Performance. Each of the Guarantors hereby
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guarantees to Lender 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 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 collectibility only and is in no way
conditioned upon any requirement that Lender 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 joint and several obligations of each of the
Guarantors hereunder with respect to such Obligations in default shall, upon
demand by Lender, become immediately due and payable, without demand or notice
of any nature, all of which are expressly waived by the Guarantors. Payments by
each of the Guarantors hereunder may be required by Lender on any number of
occasions. All payments by such Guarantors hereunder shall be made to Lender, in
the manner and at the place of payment specified therefor in the Note.
3. Guarantors' Agreement to Pay Enforcement Costs, etc. Each of the
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Guarantors further jointly and severally agrees, as the principal obligor and
not as a guarantor only, to pay to Lender, on demand, all costs and expenses
(including court costs and reasonable legal expenses) incurred or expended by
Lender in connection with the Obligations, this Guaranty and the enforcement
thereof, together with interest on amounts recoverable under this (S)3 from the
time when such amounts become due until payment, whether before or after
judgment, at the rate of interest set forth in the Note, provided that if such
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interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
4. Waivers by Guarantors; Lender's Freedom to Act. Each of the Guarantors
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agrees 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 Lender with respect thereto. Each of the Guarantors waives promptness,
diligences, 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. Without limiting the generality of the foregoing, each of the
Guarantors agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agrees that the
obligations of each of the Guarantors hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by (i) the failure of
Lender 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 the Note or any other
agreement evidencing, securing or otherwise executed in connection with any of
the Obligations made in accordance with the terms thereof; (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 such Guarantor or otherwise operate as
a release or discharge of such Guarantor, all of which may be done without
notice to the Guarantor.
5. Unenforceability of Obligations Against Company. If for any reason the
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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, this Guaranty shall
nevertheless be binding on each of the Guarantors to the same extent as if such
Guarantor 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
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for any other reason, all such amounts otherwise subject to acceleration under
the terms of the Note or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by such Guarantor.
6. Subrogation; Subordination.
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6.1. Waiver of Rights Against Company. Until the final payment and
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performance in full of all of the Obligations, none of the Guarantors shall
exercise and each of the Guarantors hereby waives any rights against the
Company arising as a result of payment by such Guarantor hereunder, by way
of subrogation, reimbursement, restitution, contribution or otherwise, and
will not prove any claim in competition with Lender in respect of any
payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; none of the Guarantors will claim any setoff,
recoupment or counterclaim against the Company in respect of any liability
of such Guarantor to the Company.
6.2. Subordination. The payment of any amounts due with respect to any
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indebtedness of the Company for money borrowed or credit received now or
hereafter owed to each of the Guarantors is hereby subordinated to the prior
payment in full of all of the Obligations. Each of the Guarantors agrees
that, after the occurrence of any default in the payment or performance of
any of the Obligations, such Guarantor will not demand, xxx for or otherwise
attempt to collect any such indebtedness of the Company to such Guarantor
until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, such Guarantor 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 such Guarantor as trustee for Lender and be paid over to
Lender on account of the Obligations without affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this (S)6 shall be
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supplemental to and not in derogation of any rights and remedies of Lender
under any separate subordination agreement which Lender may at any time and
from time to time enter into with any of the Guarantors.
7. Setoff. Upon the occurrence and during the continuance of an Event of
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Default, Lender is hereby authorized at any time and from time to time, without
notice to the Guarantors (any such notice being expressly waived by each of the
Guarantors) and to the fullest extent permitted by law, to set off and apply any
and all sums credited by or due from Lender to any Guarantor against the
obligations of such Guarantor under this Guaranty, whether or not Lender shall
have made any demand under this Guaranty and although such obligations may be
contingent or unmatured.
8. Further Assurances. Each of the Guarantors agrees that it will from
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time to time, at the request of Lender, do all such things and execute all such
documents as Lender may consider necessary or desirable to give full effect to
this Guaranty and to perfect and preserve the rights and powers of Lender
hereunder. Each of the Guarantors acknowledges and confirms that such Guarantor
itself has established its own adequate means of obtaining from the Company on a
continuing basis all information desired by such Guarantor concerning the
financial condition of the Company and that such Guarantor will look to the
Company and not to Lender in order for such Guarantor to keep adequately
informed of changes in the Company's financial condition.
9. Termination; Reinstatement. This Guaranty shall remain in full force
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and effect until Lender is given written notice of any of the Guarantors'
intention to discontinue this Guaranty, notwithstanding any intermediate or
temporary payment or settlement of the whole or any part of the Obligations. No
such
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notice shall be effective unless received and acknowledged by an officer of
Lender at the address of Lender for notices set forth in the Note. No such
notice shall affect any rights of Lender hereunder, including without limitation
the rights set forth in (S)(S)4 and 6, with respect to any Obligations incurred
or accrued prior to the receipt of such notice or any Obligations incurred or
accrued pursuant to any contract or commitment in existence prior to such
receipt. This Guaranty shall continue to be effective or be reinstated,
notwithstanding any such notice, if at any time any payment made or value
received with respect to any Obligation is rescinded or must otherwise be
returned by Lender upon the insolvency, bankruptcy or reorganization of the
Company, or otherwise, all as though such payment had not been made or value
received.
10. Successors and Assigns. This Guaranty shall be binding upon each of
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the Guarantors, its successors and assigns, and shall inure to the benefit of
Lender and its successors, transferees and assigns. Without limiting the
generality of the foregoing sentence, Lender may assign or otherwise transfer
the Note or any other agreement or note held by it evidencing, securing or
otherwise executed in connection with the Obligations, or sell participations in
any interest therein, to any other entity or other person, and such other entity
or other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to Lender herein. No Guarantor may assign any
of its obligations hereunder.
11. Amendments and Waivers. No amendment or waiver of any provision of
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this Guaranty nor consent to any departure by any of the Guarantors therefrom
shall be effective unless the same shall be in writing and signed by Lender. No
failure on the part of Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.
12. Notices. All notices and other communications called for hereunder
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shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to a Guarantor,
at the address set forth beneath its signature hereto, and if to Lender, at the
address for notices to Lender set forth in the Note, or at such address as
either party may designate in writing to the other.
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY SHALL BE
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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAWS
OF CONFLICTS) OF THE STATE OF ILLINOIS. Each of the Guarantors agrees that any
suit for the enforcement of this Guaranty 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 Guarantor by mail at the address specified by reference
in (S)12. Each of the Guarantors 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.
14. Waiver of Jury Trial. EACH OF THE GUARANTORS HEREBY WAIVES ITS RIGHT
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TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
each of the Guarantors 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 Guarantors (a) certifies that neither
Lender nor any representative, agent or attorney of Lender has represented,
expressly or otherwise, that Lender would not, in the event of litigation, seek
to enforce the foregoing waivers and (b) acknowledges that, in accepting the
Note from the Company and
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in making a loan evidenced by the Note, Lender is relying upon, among other
things, the waivers and certifications contained in this (S)14.
15. Miscellaneous. This Guaranty constitutes the entire agreement of each
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of the Guarantors with respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in addition
to any other guaranty of or collateral security for any of the Obligations. The
invalidity or unenforceability of any one or more sections of this Guaranty
shall not affect the validity or enforceability of its remaining provisions.
Captions are for the ease of reference only and shall not affect the meaning of
the relevant provisions. The meanings of all defined terms used in this Guaranty
shall be equally applicable to the singular and plural forms of the terms
defined. This Guaranty may be executed (a) in counterparts, each of which
counterparts shall be an original, and all of which together shall constitute
one instrument, and (b) by facsimile signature, and such facsimile signature
shall be deemed to be an original instrument. This Guaranty amends and restates
in its entirety that certain Guaranty dated as of January 30, 2001 executed by
the undersigned in favor of Lender.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
executed and delivered as of the date first above written.
CHART HOUSE ENTERPRISES OF IDAHO, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
CHART HOUSE ENTERPRISES OF PUERTO RICO, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
CHART HOUSE OF MARYLAND, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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CHART HOUSE OF ANNAPOLIS, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
CHART HOUSE ACQUISITION, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
BIG WAVE, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
CORK'N XXXXXXX, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
ANALOS COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
0
XXXX 00/XX/ XXXXXX, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
CHART HOUSE ACQUISITION OF NEVADA, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
CHART HOUSE ACQUISITION OF MARYLAND, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
Address:
000 X. XxXxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxxx
00000
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