FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made and entered into as of October 1, 1998 by and between
BUFFETS, INC., a Minnesota corporation (the "Borrower"), the Banks as defined in
the Credit Agreement (as hereinafter defined) and U.S. BANK NATIONAL
ASSOCIATION, a national banking association f/k/a First Bank National
Association, one of the Banks, as agent for the Banks (in such capacity, the
"Agent").
RECITALS
1. The Borrower, the Banks and the Agent are parties to that certain Second
Amended and Restated Credit Agreement, dated as of April 30, 1996, as amended by
that certain First Amendment thereto dated as of September 20, 1996, that
certain Second Amendment thereto dated as of May 28, 1997 and that certain Third
Amendment thereto dated as of September 12, 1997 (as so amended and as the same
may be amended, supplemented, restated, or otherwise modified, the "Credit
Agreement").
2. The Borrower has requested that the Banks amend certain provisions
contained in the Credit Agreement, and the Banks have agreed to do so, subject
to the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 2. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 3. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Unused Commitment" and by adding the following definitions in the
appropriate alphabetical order:
(i) "Aggregate Available Amount": As of any date, the sum of
the Available Amounts of all the Banks.
-1-
(ii) "Aggregate Base Commitment Amount": As of any date, the
sum of the Base Commitment Amounts of all the Banks.
(iii) "Aggregate Activated Amount": As of any date, the sum
of the Activated Amounts of all of the Banks.
(iv) "Aggregate Reserve Commitment Amount": As of any date,
the sum of the Reserve Commitment Amounts of all of the
Banks.
(v) "Available Amount": With respect to a Bank, the sum of
such Bank's Base Commitment Amount and such Bank's Activated
Amount.
(vi) "Base Commitment Amount" With respect to a Bank, the
amount set forth opposite such Bank's name as its "Base
Commitment Amount" in Schedule 1.1(a), as the same may be
reduced from time to time pursuant to Section 2.14.
(vii) "Activated Amount": With respect to a Bank, such
Bank's Pro Rata Share of the Aggregate Reserve Commitment
Amount activated by the Borrower pursuant to Section 2.28.
(viii)"Reserve Commitment Amount": With respect to a Bank,
the amount set forth opposite such Bank's name as its
"Reserve Commitment Amount" in Schedule 1.1(a), as the same
may be reduced from time to time pursuant to Section 2.14.
(viv) "Unused Base Commitment Amount": At any time of
determination, if positive, the Aggregate Base Commitment
Amount less the Total Outstandings.
(x) "Unused Available Amount": At any time of determination,
the Aggregate Available Amount less the greater of the
Aggregate Base Commitment Amount or the Total Outstandings.
(xi) "Unused Reserve Commitment Amount": At any time of
determination, the Aggregate Reserve Commitment Amount not
activated by the Borrower pursuant to Section 2.28.
(b) Section 1.1 of the Credit Agreement is further amended by amending
the definition of "Commitment Amount" in its entirety to read as follows:
-2-
"Commitment Amount": With respect to a Bank, initially the amount
set opposite such Bank's name as its "Total Commitment Amount" in
Schedule 1.1(a), as the same may be reduced from time to time pursuant
to Section 2.14.
(c) Section 2.1(a) of the Credit Agreement is hereby amended by
deleting the words "Aggregate Commitment Amounts" in the second sentence
thereof and inserting the words "Aggregate Available Amount" therefor.
(d) Section 2.8(a) of the Credit Agreement is hereby amended by
deleting the words "Aggregate Commitment Amounts" therein and inserting the
words "Aggregate Available Amount" therefor.
(e) Section 2.14 of the Credit Agreement is hereby amended in its
entirety to read as follows:
Section 2.14 Optional Reduction Of Commitment Amounts or
Termination of Commitments. The Borrower may, at any time during
the Revolving Period, upon not less than three Business Days
prior written notice to the Agent, reduce the Commitment Amounts,
ratably, with any such reduction in a minimum aggregate amount
for all the Banks of $1,000,000, or, if more, in an integral
multiple of $1,000,000; provided, however, that the Borrower may
not at any time reduce the Aggregate Commitment Amounts below the
Total Outstandings. Each such reduction in the Aggregate
Commitment Amounts shall be applied first, to the Aggregate
Reserve Commitment Amount, and second, to the Aggregate Base
Commitment Amount. The Borrower may, at any time when there are
no Letters of Credit outstanding, upon not less than three
Business Days prior written notice to the Agent, terminate the
Commitments in their entirety. Upon termination of the
Commitments pursuant to this Section, the Borrower shall pay to
the Agent for the account of the Banks the full amount of all
outstanding Loans, all accrued and unpaid interest thereon, all
unpaid Commitment Fees accrued to the date of such termination,
any indemnities payable with respect to Advances pursuant to
Section 2.25 and all other unpaid obligations of the Borrower to
the Agent and the Banks hereunder.
(f) Section 2.16 of the Credit Agreement is hereby amended in its
entirety to read as follows:
-3-
Section 2.16 Commitment Fee. The Borrower shall pay to the Agent,
for the account of the Banks, for the period from October 1, 1998
until the Termination Date, fees (the "Commitment Fees") in an amount
determined by applying a rate of (a) .1875% per annum to the sum of
the average daily Unused Base Commitment Amount and the daily average
Aggregate Activated Amount, and (b) .05% per annum to the average
daily Unused Reserve Commitment Amount. Such Commitment Fees are
payable in arrears on each Quarterly Payment Date and on the
Termination Date.
(g) A new Section 2.28 is hereby added to the Credit Agreement to read
as follows:
Section 2.28 Activation of Reserve Commitments. Not less than
five days prior to the beginning of any month, the Company may by
written notice to the Agent activate the Aggregate Reserve Commitment
Amount. Until such time that the Company makes the activation, the
Activated Amount of each Bank shall be zero. The Agent shall notify
each Bank in writing, within one Business Day after its receipt of a
notice of activation. Once the Aggregate Reserve Commitment Amount has
been activated pursuant to this Section, it shall remain activated
until the Termination Date.
On the effective date of the activation of the Aggregate Reserve
Commitment Amount, the Company shall pay to the Agent, for the account
of the Banks (based on their respective Pro Rata Shares, determined
pursuant to clause (a) of the definition thereof), a fee in an amount
equal to $10,000.
(h) Schedule 1.1(a) to the Credit Agreement is hereby amended to read
as set forth on Schedule 1.1(a) hereto.
Section 4. Effectiveness of Amendments. This Amendment shall be
effective, upon delivery to the Agent, with sufficient counterparts for the
Banks, this Amendment, executed by the Borrower and the Majority Banks.
Section 5. Representations; No Default. The Borrower hereby represents
that on and as of the date hereof and after giving effect to this Amendment
(a) all of the representations and warranties contained in the Credit
Agreement are true, correct and complete in all material respects as of the
date hereof as though made on and as of such date, except to the extent
such representations and warranties specifically relate to an earlier date,
in which case they are true and correct as of
-4-
such earlier date, and (b) there will exist no Default or Event of Default
on such date which has not been waived by the Banks. The Borrower
represents and warrants that the Borrower has the power and legal right and
authority to enter into the Amendment and has duly authorized as
appropriate the execution and delivery of the Amendment, and the Amendment
does not contravene or constitute a default under any agreement, instrument
or indenture to which the Borrower or any of its Subsidiaries is a party or
a signatory or a provision of the Borrower's or any such Subsidiary's
certificate of incorporation, bylaws or, to the best of the Borrower's
knowledge, any other agreement or requirement of law. The Borrower
represents and warrants that no consent, approval or authorization of or
registration or declaration with any Person, including but not limited to
any governmental authority, is required in connection with the execution
and delivery by the Borrower of the Amendment or the performance of
obligations of the Borrower herein described. The Borrower represents and
warrants that the Amendment is the legal, valid and binding obligation of
the Borrower enforceable in accordance with its terms. The Borrower
warrants that no events have taken place and no circumstance exists at the
date hereof which would give the Borrower or any of its Subsidiaries a
basis to assert a defense, offset or counterclaim to any claim of the Agent
or any Bank as to any obligations of the Borrower or any of its
Subsidiaries to the Agent or any Bank.
Section 6. Affirmation, Further References. The Banks, the Agent and
the Borrower each acknowledge and affirm that the Credit Agreement, as
hereby amended, is hereby ratified and confirmed in all respects and all
terms, conditions and provisions of the Credit Agreement, except as amended
by this Amendment, shall remain unmodified and in full force and effect.
All references in any document or instrument to the Credit Agreement are
hereby amended and shall refer to the Credit Agreement as amended by this
Amendment.
Section 7. Merger and Integration, Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes and has merged into it all prior oral and written
agreements on the same subjects by and between the parties hereto with the
effect that this Amendment shall control with respect to the specific
subjects hereof.
Section 8. Legal Expenses. As provided in Section 9.2 of the Credit
Agreement, the Borrower agrees to reimburse the Agent upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and legal
expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Agent) incurred in
connection with the
-5-
negotiation or preparation of this Amendment and all other documents
negotiated and prepared in connection with this Amendment, and the Borrower
agrees to reimburse the Agent upon demand for all other reasonable
expenses, including attorneys' fees incurred as a result of or in
connection with the enforcement of the Credit Agreement as amended hereby,
and including, without limitation, all expenses of collection of any loans
made or to be made under the Credit Agreement as amended hereby.
Section 9. Severability. Each provision of this Amendment and any
other statement, instrument or transactions contemplated hereby or relating
hereto shall be interpreted in such manner as to be effective, valid and
enforceable under the applicable law of any jurisdiction, but, if any
provision of this Amendment or relating hereto or thereto shall be held to
be prohibited, invalid or unenforceable under the applicable law, such
provision shall be ineffective in such jurisdiction only to the extent of
such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto in
such jurisdiction, or affecting the effectiveness, validity or
enforceability of such provision in any such jurisdiction.
Section 10. Successors. This Amendment shall be binding upon the
Borrower, the Banks and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Banks and the
Agent and the successors and assigns of the Borrower, the Banks and the
Agent.
Section 11. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to
be a part of this Amendment.
Section 12. Counterparts. This Amendment may be executed in several
counterparts, all or any of which shall be regarded as one and the same
document and either party to such agreements may execute any such agreement
by executing a counterpart of such agreement.
Section 13. Governing Law. This Amendment shall be governed by the
internal laws of the State of Minnesota, without giving effect to conflict
of law principles thereof, but giving effect to federal laws applicable to
national banks.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
BUFFETS, INC.
By __________________________
Its ______________________
Address for Borrower:
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
U.S. BANK NATIONAL ASSOCIATION
In its individual corporate
capacity and as Agent
By __________________________
Its ______________________
Address:
U.S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx MPFP0601
[SIGNATURE PAGE TO FOURTH AMENDMENT]
SCHEDULE 1.1(a)
TO FOURTH AMENDMENT
TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
SCHEDULE 1.1(a)
TO CREDIT AGREEMENT
Base Reserve Total
Commitment Commitment Commitment
Bank Amount Amount Amount
---- ---------- ---------- ----------
U.S. Bank $20,000,000 $30,000,000 $50,000,000
National
Association
