THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIRD
AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS
THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this “Amendment”),
dated as of February 9, 2009, is by and among BENIHANA
INC., a Delaware corporation (the “Borrower”),
the Domestic Subsidiaries of the Borrower party hereto (collectively, the “Guarantors”),
the banks and certain financial institutions party hereto (the “Lenders”)
and WACHOVIA
BANK, NATIONAL ASSOCIATION, as administrative agent on behalf of the
Lenders under the Credit Agreement (as hereinafter defined) (in such capacity,
the “Agent”).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended
hereby.
WHEREAS,
the Borrower, the Guarantors, the Lenders and the Agent are parties to that
certain Credit Agreement dated as of March 15, 2007 (as amended, modified,
extended, restated, replaced, or supplemented from time to time, the “Credit
Agreement”);
WHEREAS,
the Credit Parties have requested the Required Lenders amend certain provisions
of the Credit Agreement;
WHEREAS,
the Credit Parties have requested the Required Lenders consent, pursuant to the
Credit Agreement, to the adoption by the Borrower of certain amendments to the
Borrower’s bylaws (the “By-laws
Amendment”);
WHEREAS,
the Required Lenders are willing to (a) make such amendments to the Credit
Agreement and (b) consent to the By-laws Amendment, in each case in accordance
with and subject to the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the agreements hereinafter set forth, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
1.1 Consent.
Notwithstanding the provisions of the Credit Agreement to the contrary, the
Required Lenders hereby consent, on a one-time basis, to the By-laws Amendment;
provided
that such amendments are in substantially the form of the proposed amendments
attached hereto as Exhibit
A.
1
1.2 Effectiveness
of Consent.
This consent 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
Borrower with all terms and conditions of the Credit Agreement, except as
specifically modified, consented or waived by this Amendment, (c) be deemed a
consent or waiver of any transaction or future action on the part of the
Borrower requiring the Lenders’ or the Required Lenders’ consent or approval
under the Credit Agreement, or (d) except as consented hereby, be deemed or
construed to be a consent, waiver, release, 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.
ARTICLE
II
2.1 Amendment
to Section 1.1.
The definition of the term “Maturity Date” in Section 1.1 of the Credit
Agreement is hereby amended to read as follows:
“Maturity
Date” means March 15, 2011.
2.2 Amendment
to Section 9.1.
Section 9.1(k) of the Credit Agreement is hereby deleted in its
entirety.
ARTICLE
III
3.1 Closing
Conditions.
This Amendment shall become effective as of the day and year set forth above
(the “Amendment
Effective Date”) upon satisfaction of the following conditions (in form
and substance reasonably acceptable to the Agent):
(a) Executed
Amendment. The Agent shall have received a copy of this Amendment
duly executed by (i) each of the Credit Parties, (ii) the Agent and (iii)
the Required Lenders.
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(b) Default.
No Default or Event of Default shall exist.
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(c) Amendment
Fee. The Agent shall have received from the Borrower for the
account of the Lenders an amendment fee in the amount of
$25,000.
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(d) Fees
and Expenses. The Agent shall have received from the Borrower such
fees and expenses that are payable in connection with the consummation of
the transactions contemplated hereby, including, without limitation, the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx
PLLC.
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ARTICLE
IV
4.1 Amended Terms. On and after the
Amendment Effective Date, all references to the Credit Agreement in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended previously
and as amended by this Amendment. Except as specifically amended hereby or
otherwise agreed, the Credit Agreement is hereby ratified and confirmed and
shall remain in full force and effect according to its terms. This Amendment
shall be effective only to the extent specifically set forth herein and shall
not, except as specifically consented to or waived by this Amendment, (a) be
construed as a waiver of any breach or default whether or not the Lenders have
been informed thereof, (b) affect the right of the Lenders to demand compliance
by the Credit Parties with all terms and conditions of the Credit 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) be deemed or construed to be a waiver or
release of, or a limitation upon, the 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 Default or Event of Default which may
now exist or otherwise, all such rights and remedies hereby being expressly
reserved.
4.2 Representations and Warranties of Credit
Parties. Each of the Credit Parties represents and warrants as
follows:
(a) It
has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
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(b) This
Amendment has been duly executed and delivered by such Person and
constitutes such Person’s legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforceability may be subject
to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally
and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
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(c) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such
Person of this Amendment.
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(d) The
representations and warranties set forth in Section 6 of the Credit
Agreement are true and correct as of the date hereof (except for those
which expressly relate to an earlier date).
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(e) After
giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or an Event of
Default.
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3
(f) The
Collateral Documents continue to create a valid security interest in, and
Lien upon, the Collateral, in favor of the Agent, for the benefit of the
Lenders, which security interests and Liens are perfected in accordance
with the terms of the Security Documents and prior to all Liens other than
Permitted Liens.
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(g) The
Credit Party Obligations are not reduced or modified by this Amendment and
are not subject to any offsets, defenses or
counterclaims.
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4.3 Reaffirmation
of Credit Party Obligations.
Each Credit Party hereby ratifies the Credit Agreement and acknowledges and
reaffirms (a) that it is bound by all terms of the Credit Agreement applicable
to it and (b) that it is responsible for the observance and full performance of
its respective Credit Party Obligations.
4.4 Credit
Document.
This Amendment shall constitute a Credit Document under the terms of the Credit
Agreement.
4.5 Expenses.
The Borrower agrees to pay all reasonable costs and expenses of the Agent in
connection with the preparation, execution and delivery of this Amendment,
including without limitation the reasonable fees and expenses of the Agent’s
legal counsel.
4.6 Further
Assurances.
The Credit Parties agree to promptly take such action, upon the request of the
Agent, as is necessary to carry out the intent of this
Amendment.
4.7 Entirety.
This Amendment and the other Credit Documents embody the entire agreement among
the parties hereto and supersede all prior agreements and understandings, oral
or written, if any, relating to the subject matter
hereof.
4.8 Counterparts;
Telecopy.
This Amendment may be executed in any number of counterparts, each of which when
so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. Delivery of an executed counterpart to
this Amendment by telecopy or other electronic means shall be effective as an
original and shall constitute a representation that an original will be
delivered.
4.9 No
Actions, Claims, Etc.
As of the date hereof, each of the Credit Parties hereby acknowledges and
confirms that it has no knowledge of any actions, causes of action, claims,
demands, damages and liabilities of whatever kind or nature, in law or in
equity, against the Agent, the Lenders, or the Agent’s or the Lenders’
respective officers, employees, representatives, agents, counsel or directors
arising from any action by such Persons, or failure of such Persons to act under
this Credit Agreement on or prior to the date hereof.
4.10 GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
4.11 Successors
and Assigns.
This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and
assigns.
4
4.12 General
Release.
In consideration of the Agent, on behalf of the Lenders, entering into this
Amendment, each Credit Party hereby releases the Agent, the Lenders, and the
Agent’s and the Lenders’ respective officers, employees, representatives,
agents, counsel and directors from any and all actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or
in equity, now known or unknown, suspected or unsuspected to the extent that any
of the foregoing arises from any action or failure to act under the Credit
Agreement on or prior to the date hereof.
4.13 Consent
to Jurisdiction; Service of Process; Waiver of Jury Trial.
The jurisdiction, services of process and waiver of jury trial provisions set
forth in Sections 11.10, 11.16 and 11.18 of the Credit Agreement are hereby
incorporated by reference, mutatis
mutandis.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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THIRD
AMENDMENT TO CREDIT AGREEMENT AND CONSENT
BORROWER:
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a
Delaware corporation
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By:
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/s/ Xxxxxxx X. Xxxxxxxxxx | ||
Xxxxxxx X. Xxxxxxxxxx | |||
Chief Executive Officer |
GUARANTORS:
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0000
XXXXXXXX RESTAURANT CORP.,
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a
New York corporation
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BENIHANA
BETHESDA CORP.,
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a
New York corporation
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BENIHANA
BRICKELL STATION CORP.,
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a
Delaware corporation
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BENIHANA
BROOMFIELD CORP.,
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a
Delaware corporation
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BENIHANA
CARLSBAD CORP.,
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a
Delaware corporation
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BENIHANA
XXXXXXXX CORP.,
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a
Delaware corporation
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BENIHANA
CHICAGO CORP.,
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a
Delaware corporation
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BENIHANA
ENCINO CORP.,
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a
California corporation
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BENIHANA
INTERNATIONAL, INC.,
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a
Delaware corporation
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BENIHANA
LINCOLN ROAD CORP.,
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a
Florida corporation
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BENIHANA
LOMBARD CORP.,
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an
Illinois corporation
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BENIHANA
MARINA CORP.,
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a
California corporation
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BENIHANA
MONTEREY CORPORATION,
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a
Delaware corporation
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BENIHANA
NATIONAL CORP.,
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a
Delaware corporation
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BENIHANA
NATIONAL OF FLORIDA CORP.,
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a
Delaware corporation
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BENIHANA
NEW YORK CORP.,
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a
Delaware corporation
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BENIHANA
ONTARIO CORP.,
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a
Delaware corporation
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BENIHANA
ORLANDO CORP.,
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a
Delaware corporation
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[signature
pages continue]
THIRD
AMENDMENT TO CREDIT AGREEMENT AND CONSENT
BENIHANA
PLYMOUTH MEETING CORP.,
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a
Delaware corporation
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BENIHANA
OF XXXXXX HILLS CORP.,
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a
Delaware corporation
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BENIHANA
SCHAUMBURG CORP.,
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a
Delaware corporation
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BENIHANA
SUNRISE CORPORATION,
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a
Delaware corporation
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BENIHANA
TUCSON CORP.,
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a
Delaware corporation
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BENIHANA
WESTBURY CORP.,
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a
Delaware corporation
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BENIHANA
WESTWOOD CORP.,
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a
Delaware corporation
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BENIHANA
WHEELING CORP.,
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a
Delaware corporation
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BIG
SPLASH XXXXXXX CORP.,
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a
Delaware corporation
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HARU
AMSTERDAM AVENUE CORP.,
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a
New York corporation
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HARU
FOOD CORP.,
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a
New York corporation
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HARU
GRAMERCY PARK CORP.,
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a
New York corporation
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HARU
HOLDING CORP.,
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a
Delaware corporation
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HARU
PARK AVENUE CORP.,
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a
Delaware corporation
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HARU
PHILADELPHIA CORP.,
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a
Delaware corporation
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HARU
PRUDENTIAL CORP.,
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a
Delaware corporation
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HARU
THIRD AVENUE CORP.,
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a
New York corporation
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HARU
TOO, INC.,
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a
New York corporation
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HARU
WALL STREET CORP.,
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a
Delaware corporation
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XXXXXXX’X
INTERNATIONAL INC.,
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a
Delaware corporation
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NOODLE
TIME, INC.,
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a
Florida corporation
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RA
AHWATUKEE RESTAURANT CORP.,
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a
Delaware corporation
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RA
FASHION VALLEY CORP.,
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a
Delaware corporation
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XX
XXXXXXXX RESTAURANT CORP.,
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a
Delaware corporation
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RA
SCOTTSDALE CORP.,
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a
Delaware corporation
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[signature
pages continue]
THIRD
AMENDMENT TO CREDIT AGREEMENT AND
CONSENT
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RA
TEMPE CORP.,
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a
Delaware corporation
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RA
SUSHI BALTIMORE CORP.,
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a
Delaware corporation
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RA
SUSHI CHICAGO CORP.,
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a
Delaware corporation
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RA
SUSHI CORONA CORP.,
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a
Delaware corporation
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RA
SUSHI DENVER CORP.,
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a
Delaware corporation
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RA
SUSHI GLENVIEW CORP.,
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a
Delaware corporation
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RA
SUSHI HUNTINGTON BEACH CORP.,
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a
Delaware corporation
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RA
SUSHI HOLDING CORP.,
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a
Delaware corporation
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RA
SUSHI LAS VEGAS CORP.,
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a
Nevada corporation
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RA
SUSHI LOMBARD CORP.,
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a
Delaware corporation
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RA
SUSHI MESA CORP.,
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a
Delaware corporation
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RA
SUSHI PALM BEACH GARDENS CORP.,
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a
Delaware corporation
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RA
SUSHI SAN DIEGO CORP.,
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a
Delaware corporation
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RA
SUSHI SOUTH MIAMI CORP.,
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a
Delaware corporation
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RA
SUSHI TORRANCE CORP.,
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a
Delaware corporation
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RA
SUSHI TUCSON CORP.,
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a
Delaware corporation
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RA
SUSHI TUSTIN CORP.,
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a
Delaware corporation
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RA
SUSHI WESTWOOD CORP.,
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a
Delaware corporation
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RUDY’S
RESTAURANT GROUP, INC.,
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a
Nevada corporation
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TEPPAN
RESTAURANTS LTD.,
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an
Oregon corporation
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THE
SAMURAI, INC.,
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a
New York corporation
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[signature
pages continue]
THIRD
AMENDMENT TO CREDIT AGREEMENT AND
CONSENT
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BENIHANA
LAS COLINAS CORP.,
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a
Texas corporation
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BENIHANA
OF TEXAS, INC.,
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a
Texas corporation
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BENIHANA
WOODLANDS CORP.,
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a
Texas corporation
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XX
XXXXXXX CORP.,
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a
Texas corporation
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RA
SUSHI CITY CENTER CORP.,
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a
Texas corporation
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RA
SUSHI PLANO CORP.,
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a
Texas corporation
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BENIHANA
MEADOWLANDS CORP.,
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a
Delaware corporation
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RA
SUSHI PEMBROKE PINES CORP.,
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a
Delaware corporation
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BENIHANA
COLUMBUS CORP.,
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a
Delaware corporation
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BENIHANA
CORAL SPRINGS CORP.,
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a
Delaware corporation
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RA
SUSHI CHINO HILLS CORP.,
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a
Delaware corporation
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RA
SUSHI LEAWOOD CORP.,
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a
Delaware corporation
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RA
SUSHI ORLANDO CORP.,
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a
Delaware corporation
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BENIHANA
PLANO CORP.,
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a
Texas corporation
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RA
SUSHI PITTSBURGH CORP.,
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a
Delaware corporation
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RA
SUSHI ATLANTA MIDTOWN CORP.,
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a
Delaware corporation
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BENIHANA
WINTER PARK CORP.,
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a
Delaware corporation
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RA
SUSHI FORT WORTH CORP.,
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a
Texas corporation
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By:
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/s/ Xxxx X. Xxxxxx | ||
Name:
Xxxx X. Xxxxxx
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Title:
President
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ADMINISTRATIVE
AGENT
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AND
LENDER:
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WACHOVIA BANK, NATIONAL
ASSOCIATION,
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as
a Lender and as Agent
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By:
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/s/ Xxxxxxxxx X. Xxxxxxx | ||
Name:
Xxxxxxxxx X. Xxxxxxx
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Title:
Senior Vice President
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