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”.
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
