SUPPLEMENT NO. 1
(this “ Supplement ”) dated as of
November 22, 2006, to the Guarantee and Collateral Agreement
dated as of November 1, 2006 (the “ Guarantee and
Collateral Agreement ”), among BUFFETS, INC., a
Minnesota corporation (the “ Borrower ”),
BUFFETS HOLDINGS, INC., a Delaware corporation (“
Holdings ”), each Subsidiary of the Borrower
from time to time party thereto (each such subsidiary individually
a “ Subsidiary Guarantor ” and
collectively, the “ Subsidiary Guarantors
”; the Subsidiary Guarantors, Holdings and the Borrower are
referred to collectively herein as the “
Grantors ”) and CREDIT SUISSE, (together with
its affiliates, “ Credit Suisse ”), as
collateral agent (in such capacity, the “ Collateral
Agent ”) for the Secured Parties (as defined
therein).
A.
Reference is made to the Credit Agreement dated as of
November 1, 2006 (as amended, supplemented or otherwise
modified from time to time, the “ Credit
Agreement ”), among the Borrower, Holdings, the
lenders from time to time party thereto (the “
Lenders ”) and Credit Suisse, as administrative
agent for the Lenders and as Collateral Agent.
B.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement or the Guarantee and Collateral Agreement referred to
therein, as applicable.
C.
The Grantors have entered into the Guarantee and Collateral
Agreement in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit. Section 7.16 of the
Guarantee and Collateral Agreement provides that additional
Domestic Subsidiaries of the Loan Parties may become Subsidiary
Guarantors and Grantors under the Guarantee and Collateral
Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the “ New
Subsidiary” ) is executing this Supplement in accordance
with the requirements of the Credit Agreement to become a
Subsidiary Guarantor and a Grantor under the Guarantee and
Collateral Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters
of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly,
the Collateral Agent and the New Subsidiary agree as
follows:
SECTION
1. In accordance with Section 7.16 of the Guarantee and
Collateral Agreement, the New Subsidiary by its signature below
becomes a Grantor and Subsidiary Guarantor under the Guarantee and
Collateral Agreement with the same force and effect as if
originally named therein as a Grantor and Subsidiary Guarantor and
the New Subsidiary hereby (a) agrees to all the terms and
provisions of the Guarantee and
Collateral
Agreement applicable to it as a Grantor and Subsidiary Guarantor
thereunder and (b) represents and warrants that the representations
and warranties made by it as a Grantor and Subsidiary Guarantor
thereunder are true and correct in all material respects on and as
of the date hereof. In furtherance of the foregoing, the New
Subsidiary, (a) unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely
as a surety, the due and punctual payment and performance of the
Obligations and (b) as security for the payment and
performance in full of the Obligations (as defined in the Guarantee
and Collateral Agreement), does hereby create and grant to the
Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Subsidiary’s
right, title and interest in and to the Collateral (as defined in
the Guarantee and Collateral Agreement) of the New Subsidiary. Each
reference to a “ Grantor ” or a “
Subsidiary Guarantor ” in the Guarantee and Collateral
Agreement shall be deemed to include the New Subsidiary. The
Guarantee and Collateral Agreement is hereby incorporated herein by
reference.
SECTION
2. The New Subsidiary represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION
3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which
shall constitu
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