Exhibit 10.28




FIFTH AMENDMENT TO CREDIT AGREEMENT


AND AMENDMENT TO CREDIT DOCUMENTS






THIS FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO CREDIT DOCUMENTS(this “Amendment”), dated as of January 31, 2010 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.




W I T N E S S E T H




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 Lender has requested certain amendments to the Credit Documents and the Credit Parties are willing to make such amendments in accordance with the terms of the Fourth Amendment to Credit Agreement;




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


AMENDMENTS




1.1           Amendment to Section 6 of the Credit Agreement.Section 6 of the Credit Agreement is hereby amended by adding a new Section 6.30 to the end of such Article to read as follows:




6.30           Liability.




Each of the Credit Parties hereby represents and warrants thateach Credit Partyis personally obligated and fully liable for the amount due under this Credit Agreement, the Notes and the other Credit Documents. Each of the Lenders, in accordance with the terms of the Credit Documents, has the right to sue on the Credit Agreement, the Notes and the other Credit Documents and obtain a personal judgment againstany Credit Partyfor satisfaction of the amount due under the Credit Agreement, the Notes or the other Credit Documents either before or after a judicial foreclosure of any mortgage or deed of trust under AS09.45.170-09.45.220.




1.2           Amendment to Section 11 of the Credit Agreement.Section 11 of the Credit Agreement is hereby amended by adding a new Section 11.21 to the end of such Article to read as follows:









11.21           Lender Acknowledgment With Respect To Hedging Agreements.




Each of the Lenders acknowledges and agrees that they have been informed that the following language should be added to any Hedging Agreement in order to allow such Lender to bring suit directly on such Hedging Agreement (as opposed to first foreclosing on any mortgage or deed of trust governed by the laws of Alaska).




Benihana Inc., on behalf of each of the Credit Parties (as defined in that certain Credit Agreement, dated as of March 15, 2007, by and among Benihana Inc., certain subsidiaries of Benihana Inc. from time to time party thereto, the lenders from time to time party thereto and Wachovia Bank, National Association, in its capacity as administrative agent (the “Credit Agreement”)), hereby represents and warrants thateach Credit Partyis personally obligated and fully liable for the amount due under this hedging agreement. [Insert Lender Name], in accordance with the terms of this hedging agreement and the Credit Agreement, has the right to sue on this hedging agreement and obtain a personal judgment againstany Credit Partyfor satisfaction of the amount due under this hedging agreement either before or after a judicial foreclosure of any mortgage or deed of trust under AS09.45.170-09.45.220.




1.3           Amendment to Notes.  Each of the Notes is hereby amended by adding the following language to the end of such Notes to read as follows:




Benihana Inc., on behalf of each of the Credit Parties (as defined in that certain Credit Agreement, dated as of March 15, 2007, by and among Benihana Inc., certain subsidiaries of Benihana Inc. from time to time party thereto, the lenders from time to time party thereto and Wachovia Bank, National Association, in its capacity as administrative agent (the “Credit Agreement”)), hereby represents and warrants thateach Credit Partyis personally obligated and fully liable for the amount due under the Credit Agreement, this Note, the other Notes and the other Credit Documents.  Each of the Lenders, in accordance with the terms of the Credit Documents, has the right to sue on the Credit Agreement, the Notes and the other Credit Documents and obtain a personal judgment againstany Credit Partyfor satisfaction of the amount due under the Credit Agreement, the Notes or the other Credit Documents either before or after a judicial foreclosure of any mortgage or deed of trust under AS09.45.170-09.45.220.




1.4           Amendment to Wachovia Hedging Agreements.  Each of the Hedging Agreements owing from the Borrower to Wachovia is hereby amended by adding the following language to the end of such Hedging Agreements to reach as follows:




Benihana Inc., on behalf of each of the Credit Parties (as defined in that certain Credit Agreement, dated as of March 15, 2007, by and among Benihana Inc., certain subsidiaries of Benihana Inc. from time to time party thereto, the lenders from time to time party thereto and Wachovia Bank, National Association, in its capacity as administrative agent (the “Credit Agreement”)), hereby represents and warrants thateach Credit Partyis personally obligated and fully liable for the amount due under this hedging agreement. Wachovia Bank, National Association, in accordance with the terms of this hedging agreement and the Credit Agreement, has the right to sue on this hedging agreement and obtain a personal judgment againstany Credit Partyfor satisfaction of the amount due under this hedging agreement either before or after a judicial foreclosure of any mortgage or deed of trust under AS09.45.170-09.45.220.




ARTICLE II


CONDITIONS TO EFFECTIVENESS




2.1           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)           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 Moore & Van Allen PLLC.




ARTICLE III


MISCELLANEOUS




3.1           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 amendedpreviously 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.




3.2           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.




(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).




(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.




(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).




(e)           After giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.




(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.




(g)           The Credit Party Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.




3.3           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.




3.4           Credit Document.  This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.




3.5           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.




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3.6           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.




3.7           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.




3.8           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.




3.9           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.




3.10        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.




3.11        Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.




3.12        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.




3.13        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.




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BENIHANA INC.


FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO CREDIT DOCUMENTS




IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.


BORROWER:

BENIHANA INC.,a Delaware corporationBy:
/s/ Richard C. StockingerGUARANTORS:1501 BROADWAY RESTAURANT CORP.,

a New York corporation

BENIHANA BETHESDA CORP.,

a New York corporation

BENIHANA BRICKELL STATION CORP.,

a Delaware corporation

BENIHANA BROOMFIELD CORP.,

a Delaware corporation

BENIHANA CARLSBAD CORP.,

a Delaware corporation

BENIHANA CHANDLER CORP.,

a Delaware corporation

BENIHANA CHICAGO CORP.,

a Delaware corporation

BENIHANA ENCINO CORP.,

a California corporation

BENIHANA INTERNATIONAL, INC.,

a Delaware corporation

BENIHANA LINCOLN ROAD CORP.,

a Florida corporation

BENIHANA LOMBARD CORP.,

an Illinois corporation

BENIHANA MARINA CORP.,

a California corporation

BENIHANA MONTEREY CORPORATION,

a Delaware corporation

BENIHANA NATIONAL CORP.,

a Delaware corporation

BENIHANA NATIONAL OF FLORIDA CORP.,

a Delaware corporation

BENIHANA NEW YORK CORP.,

a Delaware corporation

BENIHANA ONTARIO CORP.,

a Delaware corporation

BENIHANA ORLANDO CORP.,

a Delaware corporation




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BENIHANA INC.
 FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO CREDIT DOCUMENTS




BENIHANA PLYMOUTH MEETING CORP.,

a Delaware corporation

BENIHANA OF PUENTE HILLS CORP.,

a Delaware corporation

BENIHANA SCHAUMBURG CORP.,

a Delaware corporation

BENIHANA SUNRISE CORPORATION,

a Delaware corporation

BENIHANA TUCSON CORP.,

a Delaware corporation

BENIHANA WESTBURY CORP.,

a Delaware corporation

BENIHANA WESTWOOD CORP.,

a Delaware corporation

BENIHANA WHEELING CORP.,

a Delaware corporation

BIG SPLASH KENDALL CORP.,

a Delaware corporation

HARU AMSTERDAM AVENUE CORP.,

a New York corporation

HARU FOOD CORP.,

a New York corporation

HARU GRAMERCY PARK CORP.,

a New York corporation

HARU HOLDING CORP.,

a Delaware corporation

HARU PARK AVENUE CORP.,

a Delaware corporation

HARU PHILADELPHIA CORP.,

a Delaware corporation

HARU PRUDENTIAL CORP.,

a Delaware corporation

HARU THIRD AVENUE CORP.,

a New York corporation

HARU TOO, INC.,

a New York corporation

HARU WALL STREET CORP.,

a Delaware corporation

MAXWELL’S INTERNATIONAL INC.,

a Delaware corporation

NOODLE TIME, INC.,

a Florida corporation

RA AHWATUKEE RESTAURANT CORP.,

a Delaware corporation

RA FASHION VALLEY CORP.,

a Delaware corporation

RA KIERLAND RESTAURANT CORP.,

a Delaware corporation

RA SCOTTSDALE CORP.,

a Delaware corporation
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BENIHANA INC.
 FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO CREDIT DOCUMENTS


RA TEMPE CORP.,

a Delaware corporation

RA SUSHI BALTIMORE CORP.,

a Delaware corporation

RA SUSHI CHICAGO CORP.,

a Delaware corporation

RA SUSHI CORONA CORP.,

a Delaware corporation

RA SUSHI DENVER CORP.,

a Delaware corporation

RA SUSHI GLENVIEW CORP.,

a Delaware corporation

RA SUSHI HUNTINGTON BEACH CORP.,

a Delaware corporation

RA SUSHI HOLDING CORP.,

a Delaware corporation

RA SUSHI LAS VEGAS CORP.,

a Nevada corporation

RA SUSHI LOMBARD CORP.,

a Delaware corporation

RA SUSHI MESA CORP.,

a Delaware corporation

RA SUSHI PALM BEACH GARDENS CORP.,

a Delaware corporation

RA SUSHI SAN DIEGO CORP.,

a Delaware corporation

RA SUSHI SOUTH MIAMI CORP.,

a Delaware corporation

RA SUSHI TORRANCE CORP.,

a Delaware corporation

RA SUSHI TUCSON CORP.,

a Delaware corporation

RA SUSHI TUSTIN CORP.,

a Delaware corporation

RA SUSHI WESTWOOD CORP.,

a Delaware corporation

RUDY’S RESTAURANT GROUP, INC.,

a Nevada corporation

TEPPAN RESTAURANTS LTD.,

an Oregon corporation

THE SAMURAI, INC.,

a New York corporation


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BENIHANA INC.
 FIFTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO CREDIT DOCUMENTS




BENIHANA LAS COLINAS CORP.,

a Texas corporation

BENIHANA OF TEXAS, INC.,

a Texas corporation

BENIHANA WOODLANDS CORP.,

a Texas corporation

RA HOUSTON CORP.,

a Texas corporation

RA SUSHI CITY CENTER CORP.,

a Texas corporation

RA SUSHI PLANO CORP.,

a Texas corporation

BENIHANA MEADOWLANDS CORP.,

a Delaware corporation

RA SUSHI PEMBROKE PINES CORP.,

a Delaware corporation

BENIHANA COLUMBUS CORP.,

a Delaware corporation

BENIHANA CORAL SPRINGS CORP.,

a Delaware corporation

RA SUSHI CHINO HILLS CORP.,

a Delaware corporation

RA SUSHI LEAWOOD CORP.,

a Delaware corporation

RA SUSHI LEAWOOD CORP.,

a Kansas corporation

RA SUSHI ORLANDO CORP.,

a Delaware corporation

BENIHANA PLANO CORP.,

a Texas corporation

RA SUSHI PITTSBURGH CORP.,

a Delaware corporation

RA SUSHI ATLANTA MIDTOWN CORP.,

a Delaware corporation

BENIHANA WINTER PARK CORP.,

a Delaware corporation

RA SUSHI FORT WORTH CORP.,

a Texas corporation


By:
/s/ Richard C. StockingerName:
Richard C. StockingerTitle:
Chief Executive Officer









ADMINISTRATIVE AGENTAND LENDER:

WACHOVIA BANK, NATIONAL ASSOCIATION,as a Lender and as AgentBy:
/s/ John CostaName:
John CostaTitle:Senior Vice President