Re: CREDIT AGREEMENT, dated as of March 15, 2007, by and among Benihana Inc. (the “Borrower”), certain subsidiaries of the Borrower from time to time party thereto (collectively, the “Guarantors”), the lenders from time to time party thereto (the...
Exhibit 10.2
November
6, 2008
TO THE
BORROWER PARTY TO THE CREDIT
AGREEMENT
DESCRIBED BELOW
AND
TO EACH
OF THE LENDERS PARTY TO THE
CREDIT
AGREEMENT DESCRIBED BELOW
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Re:
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CREDIT
AGREEMENT, dated as of March 15, 2007, by and among Benihana Inc. (the
“Borrower”),
certain subsidiaries of the Borrower from time to time party thereto
(collectively, the “Guarantors”),
the lenders from time to time party thereto (the “Lenders”) and
Wachovia Bank, National Association, as administrative agent (the “Agent”)
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Ladies
and Gentlemen:
Reference
is made to the Credit Agreement described above. Capitalized terms
used herein and not otherwise defined shall have the meanings set forth in the
Credit Agreement.
The
Borrower has requested that the Lenders amend the definition of Consolidated
EBIT to read as follows:
“Consolidated EBIT”
means, for any period, the sum of (a) Consolidated Net Income for such period,
plus (b) an
amount which, in the determination of Consolidated Net income for such period,
has been deducted for (i) Consolidated Accrued Interest Expense for such period,
(ii) Consolidated Taxes and (iii) non-cash stock-based compensation, all as
determined in accordance with GAAP.
For good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Lenders hereby agree to amend the definition of Consolidated
EBIT as set forth above and further agree that such amendment shall be effective
as of July 21, 2008.
This
Agreement shall be effective only to the extent specifically set forth herein
and shall not (a) be construed as a waiver of any breach or default nor as a
waiver of any breach or default of which the Lenders have not been informed by
the Borrower, (b) affect the right of the Lenders to demand compliance by the
Credit Parties with all terms and conditions of the Credit Agreement, except as
specifically modified or waived by this Agreement, (c) be deemed a waiver of any
transaction or future action on the part of the Credit Parties requiring the
Lenders’ or the Required Lenders’ consent or approval under the Credit
Agreement, or (d) except as waived hereby, be deemed or construed to be a waiver
or release of, or a limitation upon, the Administrative Agent’s or the Lenders’
exercise of any rights or remedies under the Credit Agreement or any other
Credit Document, whether arising as a consequence of any Event of Default which
may now exist or otherwise, all such rights and remedies hereby being expressly
reserved.
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on the date first above written.
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Acknowledged and Agreed:
By:
Name:
Title:
