ex10-1.htm


    
      

    

    Exhibit 10.1

     

    
      SECOND
AMENDMENT TO CREDIT AGREEMENT

      


      


      THIS SECOND AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”), dated as
of November 19, 2008, 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; and

      


      WHEREAS, the Required Lenders
are willing to make such amendments to the Credit Agreement, 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

      AMENDMENTS
TO CREDIT AGREEMENT

      


      1.1    New
Definitions.  The following
definitions are hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order:

      


      “Engagement Letter”
shall mean the letter agreement dated November 19, 2008, addressed to the
Borrower from Wachovia, as amended, modified, extended, restated, replaced, or
supplemented from time to time.

      


      “Incremental Sweep Plus
Revolving Facility” shall have the meaning set forth in Section
2.4.

      


      “Second Amendment Effective
Date” shall mean November 19, 2008.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

         

      

      “Successful
Syndication” shall mean the date upon which Wachovia’s Revolving
Commitment Percentage multiplied by the Revolving Committed Amount is less than
or equal to $40,000,000.

      


      1.2    Amendment
to Definition of Applicable Margin.  The pricing grid
set forth in the definition of Applicable Margin in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:

      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	
                                            Pricing
      

                                            Level

                                          	
                                             

                                             

                                             

                                            Leverage
      Ratio

                                          	
                                            Applicable
      

                                            Margin
      for

                                            Eurodollar

                                            Loans

                                          	
                                            Applicable
      

                                            Margin
      for 

                                            Base
      Rate 

                                            Loans

                                          	
                                            Revolver
      

                                            Commitment
      

                                            Fee

                                          	
                                            Standby
      Letter of Credit Fee

                                          
	
                                            I

                                          	
                                            ≥
      3.50  to 1.0

                                          	
                                            3.50%

                                          	
                                            2.00%

                                          	
                                            0.30%

                                          	
                                            3.50%

                                          
	
                                            II

                                          	
                                            ≥ 2.25
      to 1.0 but 

                                            <
      3.50 to 1.0

                                          	
                                            1.75%

                                          	
                                            0.25%

                                          	
                                            0.30%

                                          	
                                            1.75%

                                          
	
                                            III

                                          	
                                            ≥
      1.00  to 1.0 but 

                                            <
      2.25 to 1.0

                                          	
                                            1.50%

                                          	
                                            0.00%

                                          	
                                            0.30%

                                          	
                                            1.50%

                                          
	
                                            IV

                                          	
                                            <1.00
      to 1.0

                                          	
                                            1.25%

                                          	
                                            0.00%

                                          	
                                            0.30%

                                          	
                                            1.25%

                                          


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      1.3    Amendment
to Definition of Base Rate.  The definition of
Base Rate set forth in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:

      


      “Base Rate” means, for
any day, the rate per annum equal to the highest of (a) the Federal Funds
Rate for such day plus one-half of one percent (.5%), (b) the Prime Rate
for such day and (c) the sum of (i) the Eurodollar Market Index Rate for such
day (as calculated pursuant to the definition of Eurodollar Market Index Rate)
plus (ii)
1.50%, in each instance as of such date of determination.  If for any
reason the Agent shall have determined (which determination shall be conclusive
in the absence of manifest error) (A) that it is unable to ascertain the Federal
Funds Rate, for any reason, including the inability or failure of the Agent to
obtain sufficient quotations in accordance with the terms above or (B) that the
Prime Rate or Eurodollar Market Index Rate no longer accurately reflects an
accurate determination of the prevailing Prime Rate or the Eurodollar Market
Index Rate, the Agent may select a reasonably comparable index or source to use
as the basis for the Base Rate, until the circumstances giving rise to such
inability no longer exist.  Any change in the Base Rate due to a
change in any of the foregoing will become effective on the effective date of
such change in the Federal Funds Rate, the Prime Rate or the Eurodollar Market
Index Rate.

      


      1.4    Amendment
to Definition of Fixed Charge Coverage Ratio.  The definition of
Fixed Charge Coverage Ratio set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:

      


      “Fixed Charge Coverage
Ratio” means, as of the end of each
fiscal quarter of the Consolidated Parties for the four fiscal quarter period
ending on such date, the ratio of (a) Consolidated EBIT for the applicable
period plus
non-cash impairment charges for such period (to the extent deducted in
calculating Consolidated Net Income) to (b) the sum of
(i) Consolidated Accrued Interest Expense for the applicable period plus
(ii) Consolidated Taxes for the applicable period plus
(iii) dividends paid during such period plus
(iv) Consolidated Scheduled Funded Debt Payments for the applicable period
plus
(v) any amounts paid for the repurchase of preferred stock for the
applicable period plus (vi) an amount
equal to the impact on Consolidated Taxes arising from any non-cash impairment
charges for such period (to the extent added to Consolidated EBIT pursuant to
clause (a) above).

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      1.5    Amendment
to Definition of Interest Payment Date.  The definition of
Interest Payment Date set forth in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:

      


      “Interest Payment
Date” means as to any Loan, the last day of each calendar month and the
Maturity Date.

      


      1.6    Amendment
to Definition of Revolving Committed Amount.  The definition of
Revolving Committed Amount set forth in Section 1.1 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:

      


      “Revolving Committed
Amount” shall mean $50,000,000;
provided that,
(a) so long as no Default or Event of Default has occurred and is continuing,
such amount shall be increased once during the term of this Agreement, after the
Second Amendment Effective Date, by an aggregate amount equal to $10,000,000 on
the earlier to occur of (i) the date upon which the Borrower shall have
delivered to the Agent the financial information required to be delivered to the
Agent pursuant to Section 7.1(b) for any two consecutive fiscal quarter periods
demonstrating a Leverage Ratio of less than 3.50 to 1.0 for such two consecutive
fiscal quarter periods or (ii) the Successful Syndication and (b) such amount
shall be subject to additional increases or decreases pursuant to the provisions
set forth in Sections 2.4, 3.3 and 3.4.

      


      1.7    Amendment
to Definition of Sweep Plus Revolving Committed Amount.  The definition of
Sweep Plus Revolving Committed Amount set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:

      


      “Sweep Plus Revolving
Committed Amount” shall mean the Revolving Committed Amount.

      


      1.8    Amendment
to Section 2.1(a)(ii).  Section
2.1(a)(ii) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:

      


      (ii)           In
the event the Net Cash Position calculated above is a deficit on any Business
Day, the Agent will extend a Sweep Plus Revolving Loan to the Borrower’s
Checking Account on such Business Day in the amount of such deficit; provided, however, that the sum
of the aggregate principal amount of outstanding Sweep Plus Revolving Loans
shall not exceed the Sweep Plus Revolving
Committed Amount; provided, further,
(A) with regard to each Lender individually, such Lender’s outstanding
Sweep Plus Revolving Loans shall not exceed such Lender’s Revolving Commitment
Percentage of the Sweep Plus Revolving Committed Amount, (B) the aggregate
principal amount of outstanding Revolving Loans plus LOC Obligations
outstanding shall not exceed the Revolving Committed Amount, and (C) with regard
to each Lender individually, such Lender’s outstanding Non-Sweep Revolving Loans
shall not exceed such Lender’s Revolving Commitment Percentage of the Non-Sweep
Revolving Committed Amount.  Sweep Plus Revolving Loans are hereby
authorized to be made automatically by the Agent on a daily basis, without
requiring the Borrower to provide a Notice of Borrowing.  No Sweep
Plus Revolving Loan shall be required to be made if the Borrower is in material
default under the Services Agreement or if a Default or Event of Default
hereunder has occurred and remains outstanding.

      


      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

         

      

      1.9    Amendment
to Section 2.2(a).  Section 2.2(a) of
the Credit Agreement is amended by deleting the phrase “FIFTEEN MILLION DOLLARS
($15,000,000)” and replacing it with “TWELVE MILLION DOLLARS
($12,000,000)”.

      


      1.10   Amendment
to Section 2.3(a).  Section 2.3(a) of
the Credit Agreement is amended by deleting the phrase “FIVE MILLION DOLLARS
($5,000,000)” and replacing it with “FOUR MILLION DOLLARS
($4,000,000)”.

      


      1.11   Amendment
to Section 2.  A new Section 2.4
is hereby added to Section 2 of the Credit Agreement to read as
follows:

      


      2.4           Additional Sweep Plus
Revolving Commitment.

      


      Subject
to the terms and conditions set forth herein, the Borrower shall have the right,
at any time and from time to time (but not to exceed one (1) increase in the
aggregate) prior to the Maturity Date, to incur additional Indebtedness under
this Credit Agreement in the form of an increase to the Revolving Committed
Amount (each an “Incremental Sweep Plus
Revolving Facility”) by an aggregate amount of up to
$15,000,000.  The following terms and conditions shall apply to each
Incremental Sweep Plus Revolving Facility:  (i) the loans made
under any such Incremental Sweep Plus Revolving Facility shall constitute Credit
Party Obligations and will be secured and guaranteed with the other Credit Party
Obligations on a pari passu basis, (ii) any such Incremental Sweep Plus
Revolving Facility shall mature on the Maturity Date, (iii) any such
Incremental Sweep Plus Revolving Facility shall have the same terms and
conditions as the Sweep Plus Revolving Loans, including without limitation,
shall (A) be entitled to the same voting rights as the existing Loans, (B) be
entitled to receive proceeds of prepayments on the same basis as the existing
Loans and (C) have the same Applicable Margin as the Sweep Plus Revolving Loans,
(iv) any such Incremental Sweep Plus Revolving Facility shall be obtained
from existing Lenders or from other banks, financial institutions or investment
funds, in each case in accordance with the terms set forth below, (v) any
such Incremental Sweep Plus Revolving Facility shall be in a minimum principal
amount of $15,000,000, (vi) the proceeds of any Incremental Sweep Plus
Revolving Facility will be used for the purposes set forth in Section 7.9,
(vii) the Borrower shall execute a Revolving Note in favor of any new
Lender or any existing Lender requesting a Revolving Note whose Sweep Plus
Revolving Commitment is increased, (viii) the conditions to Extensions of
Credit in Section 5.2 shall have been satisfied, (ix) the Agent shall have
received (A) an opinion or opinions (including, if reasonably requested by
the Agent, local counsel opinions) of counsel for the Credit Parties, addressed
to the Agent and the Lenders, in form and substance acceptable to the Agent,
(B) any authorizing corporate documents as the Agent may reasonably request
and (C) a duly executed Notice of Borrowing, (xi) the Borrower may only
exercise any such Incremental Sweep Plus Revolving Facility to the extent that
the Revolving Committed Amount has been increased prior to the date of such
exercise pursuant to clause (a) of the definition of Revolving Committed Amount
and (x) the Required Lenders shall have approved each Incremental Sweep Plus
Revolving Facility.  The Borrower may invite other banks, financial
institutions and investment funds reasonably acceptable to the Agent to join
this Credit Agreement as Lenders hereunder for any portion of such Incremental
Sweep Plus Revolving Facility, provided that such other banks, financial
institutions and investment funds shall enter into such joinder agreements to
give effect thereto as the Agent may reasonably request.  The Agent is
authorized to enter into, on behalf of the Lenders, any amendment to this Credit
Agreement or any other Credit Document as may be necessary to incorporate the
terms of any new Incremental Sweep Plus Revolving Facility
therein.  In connection with the closing of any Incremental Sweep Plus
Revolving Facility, the outstanding Sweep Plus Revolving Loans and Participation
Interests shall be reallocated by causing such fundings and repayments (which
shall not be subject to any processing and/or recordation fees) among the
Lenders (which the Borrower shall be responsible for any costs arising under
Section 3.12 resulting from such reallocation and repayments) of Sweep Plus
Revolving Loans as necessary such that, after giving effect to such Incremental
Sweep Plus Revolving Facility, each Lender will hold Sweep Plus Revolving Loans
and Participation Interests based on its Revolving Commitment Percentage (after
giving effect to such Incremental Sweep Plus Revolving Facility).

      


      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

         

      

      1.12   Amendment
to Section 3.5.  A new clause (c)
is hereby added to the end of Section 3.5 of the Credit Agreement to read as
follows:

      


      (c)           Agent
Fee.  The Borrower agrees to pay to the Agent the annual
administrative fee as described in the Engagement Letter.

      


      1.13   Amendment
to Section 6.9.  A new sentence is
hereby added to the end of Section 6.9 of the Credit Agreement to read as
follows:

      


      Schedule 6.9 may
be updated from time to time by the Borrower by giving written notice thereof to
the Agent.

      


      1.14   Amendment
to Section 6.13.  The first
sentence of Section 6.13 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:

      


      Set
forth on Schedule 6.13
is a complete and accurate list of all Subsidiaries of each Consolidated
Party as of the earlier of (a) the date such Schedule was most recently updated
by the Credit Parties or (b) the date the Credit Parties were most recently
required to join Additional Credit Parties, if any (whether or not any such
additional Credit Parties were joined hereto), pursuant to the requirements of
Section 7.12.

      


      1.15   Amendment
to Section 7.1(c).  Section 7.1(c)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:

      


      (c)           As
soon as available, and in any event within thirty (30) days after the close of
each four week fiscal period of the Consolidated Parties, a report of comparable
sales trends by four week fiscal period, in form and substance satisfactory to
the Agent.

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

         

      

      1.16   Amendment
to Section 7.11.  Section 7.11
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:

      


      7.11           Financial
Covenants.

      


      (a)           Fixed Charge Coverage
Ratio.  The Fixed Charge Coverage Ratio, as of the last day of
each fiscal quarter of the Consolidated Parties for each date of determination
occurring during each of the periods listed below, shall be greater than or
equal to the following:

      


      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	 	
                                                      Period

                                            	 	
                                                   Ratio

                                            
	 	
                                              Second
      Amendment Effective Date 

                                              through
      and including fiscal year 

                                              2010

                                            	 	
                                              1.70
      to 1.0

                                            
	 	
                                              Fiscal
      year 2011 and thereafter

                                            	 	
                                              1.80
      to
1.0

                                            


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      (b)           Leverage
Ratio.  The Leverage Ratio, as of the last day of each fiscal
quarter of the Consolidated Parties for each date of determination occurring
during each of the periods listed below, shall be less than or equal to the
following:

      
        


        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          	 	
                                                          Period

                                                	 	
                                                       Ratio

                                                
	 	
                                                  
                                                    Second
      Amendment Effective Date 

                                                    through
      and including the 

                                                    Borrower’s
      2010 second fiscal 

                                                    quarter
      end

                                                  

                                                	 	
                                                  
                                                    4.25
      to 1.0

                                                  

                                                
	 	
                                                  
                                                    The
      Borrower’s 2010 third fiscal quarter 

                                                    end
      through and including the Borrower’s

                                                    2010
      fourth fiscal quarter end

                                                  

                                                	 	
                                                  
                                                    4.00
      to 1.0

                                                  

                                                
	 	
                                                  Fiscal
      year 2011 and thereafter

                                                	 	
                                                  
                                                    3.50
      to 1.0

                                                  

                                                


                                        

                                      

                                    

                                     

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      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 (a) each of the Credit Parties, (b) the Agent and (c)
the Required Lenders.

      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

         

      

      (b)           Legal
Opinion.  The Agent shall have received an opinion of counsel
for the Credit Parties, dated as of the Amendment Effective Date and addressed
to the Agent and the Lenders, in form and substance satisfactory to the
Agent.

      


      (c)           Engagement
Letter.  The Agent shall have received a fully executed copy of
the Engagement Letter.

      


      (d)           Authority
Documents.  The Agent shall have received the following, each
in form and substance reasonably satisfactory to the Agent an officer’s
certificate (the “Officer’s
Certificate”) (A) certifying that the articles of incorporation or
other organizational documents (or the foreign equivalent, if any), as
applicable, of each Credit Party that were delivered on the Closing Date (or, if
applicable, on the date such Credit Party was joined to the Credit Agreement as
a Guarantor pursuant to Section 7.12) remain true and complete as of the
Amendment Effective Date, (B) certifying that the bylaws (or the foreign
equivalent, if any) of each Credit Party that were delivered on the Closing Date
(or, if applicable, on the date such Credit Party was joined to the Credit
Agreement as a Guarantor pursuant to Section 7.12) remain true and correct and
in force and effect as of the Amendment Effective Date, (C) certifying the
incumbency certificates of each Credit Party that were delivered on the Closing
Date (or, if applicable, on the date such Credit Party was joined to the Credit
Agreement as a Guarantor pursuant to Section 7.12) remains true and complete as
of the Amendment Effective Date and (D) attaching copies of the resolutions
of the board of directors (or the foreign equivalent) of each Credit Party
approving and adopting this Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, and certifying such resolutions to be
true and correct and in force and effect as of the Amendment Effective
Date.

      


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

      


      (f)           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, (i) the
reasonable fees and expenses of Moore & Van Allen PLLC and (ii) the fees and
expenses due and owing under the Engagement Letter.

      


      


      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 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 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 Default or Event of Default which may
now exist or otherwise, all such rights and remedies hereby being expressly
reserved.

      


      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

         

      

      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.

      


      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

         

      

      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.

      


      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.

      


      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

         

      

      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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          10

          
            

          

        

        
          
          

          BENIHANA
INC.

          AMENDMENT
TO CREDIT AGREEMENT

        

         

      

      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:                                                      

      


      


      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.

          AMENDMENT
TO CREDIT AGREEMENT

        

      

      


      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.

          AMENDMENT
TO CREDIT AGREEMENT

        

         

      

      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.

            AMENDMENT
TO CREDIT AGREEMENT

          

           

        

      

      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

      


      By:                                           

      Name:

      Title:

      


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

          BENIHANA
INC.

          AMENDMENT
TO CREDIT AGREEMENT

        

      

       

      ADMINISTRATIVE
AGENT

      AND
LENDER:                                                    WACHOVIA BANK, NATIONAL
ASSOCIATION,

      as a
Lender and as Agent

      


      


      By:                                                                           

      Name:

      Title: