ex10-1.htm


    
      
        
          

        
Exhibit
10.1

    

     

    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.

     

    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 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

    CONSENT

     

              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

    AMENDMENTS

     

              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

    CONDITIONS
TO EFFECTIVENESS

     

              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.

            
	 
      	 
      
	 
      	
                       (b)          Default.
      No Default or Event of Default shall exist.

            
	 
      	 
      
	 
      	
                       (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.

            
	 
      	 
      
	 
      	
                       (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 Moore & Van Allen
  PLLC.

            


    

     


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

    ARTICLE
IV

    MISCELLANEOUS

     

              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.

            
	 
      	 
      
	 
      	
                        (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.

            


    


    
      
         


      

      
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                        (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.

            


    

     

              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.


    
      
         


      

      
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              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.

     

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    BENIHANA
INC.

    THIRD
AMENDMENT TO CREDIT AGREEMENT AND CONSENT

     

              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 corporation

                    	 
      
	 
      	 
      	 
      
	 
      	
                      By:

                    	/s/
      Richard C. Stockinger	 
      
	 	 	Richard
      C. Stockinger	 
	 	 	Chief
      Executive Officer	 


            

          

        

      

    

     

    
      
        	
                GUARANTORS:

              	 
      
	 
      	
                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.

    THIRD
AMENDMENT TO CREDIT AGREEMENT AND CONSENT

    
      
        	 
      	 
      
	 	 
	 
      	
                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.

              
	
                THIRD
      AMENDMENT TO CREDIT AGREEMENT AND
CONSENT

              


      

      


      
        
          	 
      	 
      
	 
      	
                  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.

              
	
                THIRD
      AMENDMENT TO CREDIT AGREEMENT AND
CONSENT

              


      

      


      
        
          	 
      	 
      	 
      	 
      
	 
      	
                  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 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/
      Juan C. Garcia	 
      
	 
      	
                  Name:
      Juan C. Garcia

                
	 
      	
                  Title:
      President

                


        

      


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

      


      
        
          	 
      	 
      
	
                  ADMINISTRATIVE
      AGENT

                	 
      
	
                  AND
      LENDER:

                	
                  WACHOVIA BANK, NATIONAL
      ASSOCIATION,

                
	 
      	
                  as
      a Lender and as Agent

                


        

      

      


      
        
          
            
              	 
      	 
      	 
      	 
      
	 
      	
                      By:

                    	/s/
      Margarita M. Alfonso	 
      
	 
      	
                      Name:
      Margarita M. Alfonso

                    
	 
      	
                      Title:
      Senior Vice President