AMENDMENT NO. 1 TO SECOND FORBEARANCE AGREEMENT TO CREDIT AGREEMENT
AMENDMENT
NO. 1 TO
SECOND
FORBEARANCE AGREEMENT TO CREDIT AGREEMENT
This
AMENDMENT NO. 1 TO SECOND FORBEARANCE AGREEMENT TO CREDIT AGREEMENT (this “Agreement”) is
entered into as of December 5, 2008, by and among Buffets, Inc., a Minnesota
corporation, as a debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code (“Borrower”), Buffets
Holdings, Inc., a Delaware corporation, as a debtor and debtor-in-possession
under Chapter 11 of the Bankruptcy Code (“Holdings”), the
Subsidiaries of Borrower and Holdings, as Guarantors (together with Borrower and
Holdings, the “Loan
Parties”), the financial institutions party hereto as Lenders
(collectively, the “Lenders”). Capitalized
terms used but not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Forbearance Agreement (as hereinafter
defined).
RECITALS
A. Borrower,
Holdings, the other Loan Parties and the Lenders are parties to that certain
Second Forbearance Agreement to Credit Agreement, dated as of December 1, 2008
(the “Forbearance
Agreement”) pursuant to which the Lenders agreed to forbear from
exercising certain of their default-related rights and remedies against Borrower
and the other Loan Parties with respect to the Specified Default under that
certain Secured Super-Priority Debtor in Possession Credit Agreement, dated as
of January 22, 2008 (as has been or may upon Lenders’ consent as provided
therein be further amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”),
all as more particularly set forth in the Forbearance Agreement.
B. The
Specified Default occurred on November 21, 2008 and the Loan Parties agree that
such Specified Default has occurred and is continuing.
C. The
Loan Parties have requested an extension of the Forbearance Period.
NOW, THEREFORE, in consideration of the
foregoing, the terms, covenants and conditions contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1. Amendments
to Forbearance Agreement.
(a) Effective
as of the Forbearance Amendment Effective Date, clause (ii) of Section 2(a) of
the Forbearance Agreement is amended by deleting the reference to “December 5,
2008” before the first proviso in said clause and substituting therefor a
reference to “December 8, 2008”.
(b)
Effective as of the Forbearance Amendment Effective Date, clause (x) of Section
2(a) of the Forbearance Agreement is amended by deleting the reference to
“December 5, 2008” and substituting therefore a reference to “December 8,
2008”.
(c)
Effective as of the Forbearance Amendment Effective Date, clause (y) of Section
2(a) of the Forbearance Agreement is amended by deleting the reference to
“December 8, 2008” and substituting therefore a reference to “December 9,
2008”.
1
SECTION
2. Representations, Warranties
And Covenants. To induce
the Lenders to execute and deliver this Agreement, each of Borrower and the
other Loan Parties represents, warrants and covenants that each of the
representations and warranties contained in the Forbearance Agreement is true
and correct on and as of the date hereof as if made on the date hereof, except
to the extent that such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date.
SECTION 3.
Reference To And Effect Upon
The Forbearance Agreement.
(a) Except
as expressly set forth herein, this Amendment shall not alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Forbearance Agreement, all of which are ratified and
confirmed in all respects and shall continue in full force and
effect.
(b) The
execution, delivery and effectiveness of this Amendment shall not directly or
indirectly amend, modify or operate as a waiver of any provision of the
Forbearance Agreement nor any right, power or remedy of the Lenders
thereunder.
(c) On
and after the Forbearance Amendment Effective Date, each reference in the
Forbearance Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or
words of like import referring to the Forbearance Agreement shall mean and be a
reference to the Forbearance Agreement as amended hereby, and this Amendment and
the Forbearance Agreement shall be read together and construed as a single
instrument.
SECTION
4. Counterparts. This Amendment
may be executed in any number of counterparts, each of which when so executed
shall be deemed an original, but all such counterparts shall constitute one and
the same instrument, and all signatures need not appear on any one
counterpart. Any party hereto may execute and deliver a counterpart
of this Amendment by delivering by facsimile or other electronic transmission a
signature page of this Amendment signed by such party, and any such facsimile or
other electronic signature shall be treated in all respects as having the same
effect as an original signature.
SECTION
5. Effectiveness. This Amendment
shall become effective at the time (the “Forbearance Amendment
Effective Date”) that all of the following conditions precedent have been
met (or waived) as determined by the Required Lenders in their sole
discretion:
(a) Execution. The
Required Lenders shall have received duly executed signature pages for this
Amendment signed by the Required Lenders, Borrower and the other Loan
Parties.
(b) No
Default. Except for the Specified Default, no event shall have
occurred and be continuing that would constitute a Default or a Forbearance
Default.
[Signature pages
follow.]
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IN
WITNESS WHEREOF, this Amendment has been executed by the parties hereto as of
the date first written above.
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BUFFETS, INC.,
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as Borrower
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as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Its:
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EVP, Chief Financial Officer
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Its:
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EVP, Chief Financial Officer
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HOMETOWN BUFFET, INC.,
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OCB PURCHASING CO.,
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as Loan Party
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as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Its:
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EVP, Chief Financial Officer
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Its:
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EVP, Chief Financial Officer
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OCB RESTAURANT COMPANY, LLC,
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BUFFETS FRANCHISE HOLDINGS, LLC,
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as Loan Party
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as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief Finance Manager
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Its:
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Chief Finance Manager
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BUFFETS LEASING COMPANY, LLC,
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RYAN’S RESTAURANT GROUP, INC.,
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as Loan Party
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as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Its:
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Chief Finance Manager
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Its:
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EVP, Chief Financial Officer
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RYAN’S RESTAURANT LEASING
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RYAN’S RESTAURANT MANAGEMENT
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COMPANY, LLC, as Loan Party
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GROUP, LLC, as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief Finance Manager
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Its:
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Chief Finance Manager
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[Signature Page to Amendment No.1 to
Second Forbearance Agreement]
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HOMETOWN LEASING COMPANY,
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OCB LEASING COMPANY, LLC,
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LLC, as Loan Party
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as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief Finance Manager
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Its:
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Chief Finance Manager
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FIRE MOUNTAIN RESTAURANTS, LLC,
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FIRE MOUNTAIN LEASING COMPANY,
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as Loan Party
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LLC, as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief Finance Manager
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Its:
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Chief Finance Manager
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FIRE MOUNTAIN MANAGEMENT
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BIG R PROCUREMENT COMPANY,
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GROUP, LLC, as Loan Party
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LLC, as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief Finance Manager
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Its:
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Chief Finance Manager
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TAHOE JOE’S, INC.,
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TAHOE JOE’S LEASING COMPANY,
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as Loan Party
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LLC, as Loan Party
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/ A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A. ▇▇▇▇▇ ▇▇▇▇ .
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Its:
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EVP, Chief Financial Officer
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Its:
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Chief Finance Manager
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[Signature Page to Amendment No.1 to
Second Forbearance Agreement]
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WATERSHED CAPITAL PARTNERS,
L.P.,
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as a Lender
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By:
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WS Partners, L.L.C., its General Partner
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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Senior Managing Member
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WATERSHED CAPITAL
INSTITUTIONAL PARTNERS, L.P.
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as a Lender
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By:
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WS Partners, L.L.C., its General Partner
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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Senior Managing Member
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ANCHORAGE CROSSOVER CREDIT
FINANCE, LTD.
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as a Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
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Executive Vice President
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KING’S CROSS ASSET FUNDING 27
SARL
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as a Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
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Title:
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Authorized Signatory
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KING’S CROSS ASSET FUNDING 27
SARL
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as a Lender
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Title:
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Authorized Signatory
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[Signature
Page to Amendment No.1 to Second Forbearance Agreement]