FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (the "Amendment") is made and entered into as of June 30, 1999 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
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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, that
certain Third Amendment thereto dated as of September 12, 1997, and that certain
Fourth Amendment thereto dated October 1, 1998 (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
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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 1. 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 2. AMENDMENT. Section 1.1 of the Credit Agreement is hereby amended
by amending the definition of "Termination Date" in its entirety to read as
follows:
"Termination Date": The earliest of (a) July 14, 1999, (b) the
date on which the Commitments are terminated pursuant to Section
7.2 hereof, or (c) the date on which the Commitment Amounts are
reduced to zero pursuant to Section 2.14 hereof.
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SECTION 3. 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 4. 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 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 5. 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.
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SECTION 6. 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 7. 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
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 8. 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 9. 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.
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SECTION 10. 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 11. 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 12. 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.
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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 /s/ Xxxxx X. Xxxxx
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Its Sr. Vice President of Finance
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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 /s/ Xxxxx X. Xxxxxxxx
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Its Vice President
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Address:
U.S. Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx MPFP0601
