SECOND FORBEARANCE AGREEMENT TO CREDIT AGREEMENT
SECOND
FORBEARANCE
AGREEMENT TO CREDIT AGREEMENT
This
SECOND FORBEARANCE AGREEMENT TO CREDIT AGREEMENT (this “Agreement”)
is
entered into as of December 1, 2008, by and among Buffets, Inc., a Minnesota
corporation, as a debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code (“Borrower”),
Buffets Holdings, Inc., a Delaware corporation, as a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code (“Holdings”),
the
Subsidiaries of Borrower and Holdings, as Guarantors (together with Borrower
and
Holdings, the “Loan
Parties”),
the
financial institutions party hereto as Lenders (collectively, the “Lenders”)
and
Credit Suisse, Cayman Islands Branch, as administrative agent for the Lenders
(in such capacity, the “Administrative
Agent”).
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Credit Agreement (as
hereinafter defined).
RECITALS
A. On
January 22, 2008, Borrower and Holdings and certain of their Subsidiaries each
filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code
with the United States Bankruptcy Court for the District of Delaware (the
“Bankruptcy
Court”).
On
February 22, 2008, the Bankruptcy Court entered a final order (as has been
or
may upon Lender's consent as provided therein be further amended, restated,
supplemented or otherwise modified from time to time, the “Final
Order”)
authorizing Borrower to obtain post-petition debtor-in-possession financing
pursuant to the terms and conditions set forth in that certain Secured
Super-Priority Debtor in Possession Credit Agreement, dated as of January 22,
2008 (as has been or may upon Lenders’ consent as provided therein be further
amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”).
B. Pursuant
to the Credit Agreement, the Lenders have agreed, subject to the terms and
conditions set forth in the Credit Agreement, to make certain loans and other
financial accommodations to Borrower.
C. As
of the
date hereof, the Event of Default listed on Exhibit
A
hereto
has occurred on November 21, 2008 and is continuing as of the date hereof (the
“Specified
Default(s)”)
and
the Loan Parties agree that such Specified Default has occurred and is
continuing.
D. Upon
Borrower’s request, the undersigned Lenders have agreed, subject to the terms
and conditions set forth herein, not to waive the Specified Default or any
rights or remedies they have but to forbear from exercising certain of their
default-related rights and remedies against Borrower and the other Loan Parties
with respect to the Specified Default in accordance with the following.
NOW,
THEREFORE, in consideration of the foregoing, the terms, covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION
1. Confirmation
by Borrower of Obligations and Specified Default.
(a)
Borrower and each other Loan Party acknowledges and agrees that as of November
21, 2008, the aggregate principal balance of the outstanding Obligations under
the Credit Agreement is at least $279,580,667.44, and that the respective
principal balances of the various Loans as of such date were not less than
the
following:
1
|
New
Money Loans
|
$
79,950,000.00
|
|
Rollover
Loans
|
$199,630,667.44
|
The
foregoing amounts do not include interest, fees (including the fee Borrower
is
required to pay pursuant to Section 13(b) of this Agreement upon execution
of
this Agreement), expenses and other amounts which are chargeable or otherwise
reimbursable under the Credit Agreement and the other Loan
Documents. All
of
the Obligations, including those set forth above, are valid and outstanding,
and
none of Borrower and the other Loan Parties has any rights of offset, defenses,
claims or counterclaims with respect to any of the Obligations or in respect
of
or against any of the Loan Parties.
(b)
Borrower and each other Loan Party acknowledges and agrees that the Specified
Default constitutes a material Event of Default that has occurred and is
continuing as of the date hereof. Prior to the effectiveness of this Agreement,
the existence of the Specified Default (i) relieved the Lenders from any
obligation to provide any financial accommodations under the Credit Agreement
or
other Loan Documents and (ii) permitted the Lenders to, among other things,
(A)
suspend or terminate any commitment to provide Loans or make other extensions
of
credit under any or all of the Credit Agreement and the other Loan Documents,
(B) accelerate all or any portion of the New Money Loans, (C) charge the default
interest rate applicable pursuant to Section 2.07 of the Credit Agreement with
respect to the New Money Loans, (D) if necessary, commence any legal or other
action to collect any or all of the Obligations from Borrower, any other Loan
Party and/or any Collateral or any other property as to which any other Person
granted the Lenders a security interest therein as security for the Obligations
or any guaranty thereof (collectively, the “Other
Collateral”),
(E)
foreclose or otherwise realize on any or all of the Collateral and Other
Collateral, and/or appropriate, set-off and apply to the payment of any or
all
of the Obligations, any or all of the Collateral and Other Collateral, (F)
take
any other enforcement action or otherwise exercise any or all rights and
remedies provided for by any or all of the Credit Agreement, the other Loan
Documents or applicable law, and/or (G) exercise any other and further right
provided for in the Final Order.
SECTION
2. Forbearance;
Forbearance Default Rights and Remedies.
(a) Effective
as of the Forbearance Effective Date, the Lenders agree that until the
expiration or termination of the Forbearance Period (as hereinafter defined),
they will temporarily forbear from exercising their respective default-related
rights and remedies against Borrower or any other Loan Party solely with respect
to the Specified Default. As used herein, the term “Forbearance
Period”
shall
mean the period beginning on the Forbearance Effective Date and ending on the
earlier to occur of: (i) any Forbearance Default (as hereinafter defined),
and
(ii) December 5, 2008; provided, however that if (x) the Borrower and the
Lenders negotiate and successfully conclude an amendment to the Credit Agreement
on or before December 5, 2008, and (y) the Borrower files an emergency motion
with the Bankruptcy Court for approval of said amendment on or before December
8, 2008 with such hearing to be held no later than December 16, 2008, then
the
Forbearance Period shall be automatically extended to the date of the hearing
in
the Bankruptcy Court in respect of such motion but in no event later than
December 16, 2008; provided further however, that if the Lenders have not
provided the Borrower with a draft amendment to the Credit Agreement by 5:00
p.m. (EST) on December 1, 2008, then the December 5, 2008 termination date
for
the Forbearance Period shall be automatically extended to December 10, 2008
and
the other dates in the foregoing provision shall be extended accordingly. As
used herein, the term “Forbearance
Default”
shall
mean (A) the occurrence of any Event of Default other than the Specified
Default, (B) the failure of Borrower or any other Loan Party to timely comply
with any term, condition, or covenant set forth in this Agreement or (C) the
failure of any representation or warranty made by Borrower or any other Loan
Party under or in connection with this Agreement to be true and complete as
of
the date when made or any other breach of any such representation or warranty.
Any Forbearance Default shall constitute an immediate Event of Default under
the
Credit Agreement and other Loan Documents.
2
(b) Upon
the
termination or expiration of the Forbearance Period, the agreement of the
Lenders hereunder to forbear from exercising their respective default-related
rights and remedies shall immediately terminate without the requirement of
any
demand, presentment, protest, or notice of any kind, all of which Borrower
and
the other Loan Parties each waives. Borrower and the other Loan Parties each
agrees that the Lenders may at any time after the expiration or termination
of
the Forbearance Period proceed to exercise any and all of their respective
rights and remedies under any or all of the Credit Agreement, any other Loan
Document and/or applicable law, all of which rights and remedies are fully
reserved by the Lenders.
(c) Any
agreement by the Lenders to extend the Forbearance Period, if any, must be
set
forth in writing and signed by a duly authorized signatory of each Lender
(constituting Required Lenders with respect hereto). Each of Borrower and the
other Loan Parties acknowledges that no Lender has made any assurances
concerning any possibility of an extension of the Forbearance
Period.
(d) Each
of
Borrower and the other Loan Parties acknowledges and agrees that any financial
accommodation which the Lenders make on or after the Forbearance Effective
Date
has been made by such party in reliance upon, and is consideration for, among
other things, the covenants, agreements, representations and warranties of
Borrower and the other Loan Parties hereunder.
(e) From
the
date of the occurrence of the Specified Default, Borrower shall pay interest
on
the New Money Loans at the default rate (i.e.,
the
rate otherwise applicable to the New Money Loans pursuant to Section 2.06 of
the
Credit Agreement plus 2.00% per annum) pursuant to Section 2.07 of the Credit
Agreement as a result of the existence of the Specified Default.
SECTION
3. Representations,
Warranties And Covenants Of Borrower and Other Loan Parties.
To
induce the Lenders to execute and deliver this Agreement, each of Borrower
and
the other Loan Parties represents, warrants and covenants that:
(a) The
individual executing this Agreement on behalf of Borrower and each other Loan
Party is authorized to so act and the execution of this Agreement by such
individual makes the obligations set forth herein legal, valid, binding and
enforceable against Borrower or such other Loan Party in accordance with their
respective terms, except as the enforcement thereof may be subject to the Final
Order;
3
(b) Except
with respect to the Specified Default, each of the representations and
warranties contained in the Credit Agreement and the other Loan Documents is
true and correct on and as of the date hereof as if made on the date hereof,
except to the extent that such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall
be
true and correct as of such earlier date, and each of the agreements and
covenants in the Credit Agreement and the other Loan Documents is hereby
reaffirmed with the same force and effect as if each were separately stated
herein and made as of the date hereof;
(c) Neither
the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby does or shall contravene, result in
a
breach of, or violate the Final Order;
(d) As
of the
date hereof, no Forbearance Default has occurred or is continuing. Lenders’
security interests in the Collateral and Other Collateral continue to be valid,
binding, and enforceable first-priority security interests which secure the
Obligations and no tax or judgment liens are currently of record against
Borrower or any other Loan Party.
(e) In
accordance with the Final Order, no payments of interest shall be made on the
Rollover Loans for so long as the Specified Default is continuing and has not
been waived.
(f) The
Borrower and Holdings will continue to operate their respective businesses
and
manage their respective properties in the ordinary course of
business.
(g) In
accordance with the Credit Agreement, the Borrower shall provide the New Money
Lenders with access to the Debtors’ real estate advisor, Huntley, Mulaney,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLC, regarding real estate analyses it has performed for
the Debtors.
(h) Each
of
Borrower and Holdings, on behalf of itself and its successors, assigns and
other
legal representatives, hereby agrees that, during the Forbearance Period, it
will not ▇▇▇ any of the Lenders in their capacity as Lenders and their
respective successors and assigns and each and all of the officers, directors,
employees, agents, attorneys and other representatives of each of the foregoing
(collectively, the “Releasees”)
on the
basis of any liens, claims, interests and causes of action of any nature
(collectively, “Claims”),
that
any of Borrower or Holdings or their respective agents, representatives,
officers, directors, advisors, employees, subsidiaries, affiliates, successors
or assigns now has or hereafter may have against the Releasees, based on facts
existing on or before the Forbearance Effective Date that relate to: (i) any
Loan Document, (ii) any transaction, action, or omission contemplated thereby,
or (iii) any aspect of the dealings or relationships between or among Borrower
and the other Loan Parties, on the one hand, and the Lenders, on the other
hand,
relating to any Loan Document or transaction, action or omission contemplated
thereby.
SECTION
4. Ratification
of Liability.
Each of
Borrower and the other Loan Parties hereby ratifies and reaffirms all of its
payment and performance obligations and obligations to indemnify, contingent
or
otherwise, under the Credit Agreement and each other Loan Document to which
such
party is a party, and each such party hereby ratifies and reaffirms its grant
of
liens on or security interests in its properties pursuant to such Loan Documents
to which it is a party as security for the Obligations under or with respect
to
the Credit Agreement, and confirms and agrees that such liens and security
interests hereafter secure all of the Obligations. Each of Borrower and the
other Loan Parties (i) acknowledges receipt of a copy of this Agreement and
all
other agreements, documents, and instruments executed and/or delivered in
connection herewith, (ii) consents to the terms and conditions of same, and
(iii) agrees and acknowledges that each of the Loan Documents remains in full
force and effect and is hereby ratified and confirmed.
4
SECTION
5. Reference
To And Effect Upon The Credit Agreement.
(a) Except
as
expressly modified hereby, all terms, conditions, covenants, representations
and
warranties contained in the Credit Agreement and other Loan Documents, and
all
rights of the Lenders and all of the Obligations, shall remain in full force
and
effect. Each of Borrower and the other Loan Parties hereby confirms that no
such
party has any right of set-off, recoupment or other offset or any defense,
claim
or counterclaim with respect to any of the Obligations, the Credit Agreement
or
any other Loan Document.
(b) Except
as
expressly set forth herein, the execution, delivery and effectiveness of this
Agreement shall not directly or indirectly (i) create any obligation to make
any
further Loans or to continue to defer any enforcement action after the
occurrence of any Default or Forbearance Default, (ii) constitute a consent
to
or waiver of any past, present or future violations of any provisions of the
Credit Agreement or any other Loan Documents, (iii) amend, modify or operate
as
a waiver of any provision of the Credit Agreement or any other Loan Documents
or
any right, power or remedy of the Lenders, (iv) constitute a consent to any
merger or other transaction or to any sale, restructuring or refinancing
transaction, or (v) constitute a course of dealing or other basis for
altering any Obligations or any other contract or instrument. Except as
expressly set forth herein, the Lenders reserve all of their rights, powers,
and
remedies under the Credit Agreement, the other Loan Documents and applicable
law. All of the provisions of the Credit Agreement and the other Loan Documents
are hereby reiterated.
(c) From
and
after the Forbearance Effective Date, (i) the term “Agreement” in the Credit
Agreement, and all references to the Credit Agreement in any Loan Document
shall
mean the Credit Agreement, and (ii) the term “Loan Documents” in the Credit
Agreement and the other Loan Documents shall include, without limitation, this
Agreement and any agreements, instruments and other documents executed and/or
delivered in connection herewith.
(d) This
Agreement shall not be deemed or construed to be a satisfaction, reinstatement,
novation or release of the Credit Agreement or any other Loan Document.
SECTION
6. Construction.
This
Agreement and all other agreements and documents executed and/or delivered
in
connection herewith have been prepared through the joint efforts of all of
the
parties hereto. Neither the provisions of this Agreement or any such other
agreements and documents nor any alleged ambiguity therein shall be interpreted
or resolved against any party on the ground that such party or its counsel
drafted this Agreement or such other agreements and documents, or based on
any
other rule of strict construction. Each of the parties hereto represents and
declares that such party has carefully read this Agreement and all other
agreements and documents executed in connection therewith, and that such party
knows the contents thereof and signs the same freely and voluntarily. The
parties hereto acknowledge that they have been represented by legal counsel
of
their own choosing in negotiations for and preparation of this Agreement and
all
other agreements and documents executed in connection herewith and that each
of
them has read the same and had their contents fully explained by such counsel
and is fully aware of their contents and legal effect.
5
SECTION
7. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed an original, but all such counterparts shall constitute
one and the same instrument, and all signatures need not appear on any one
counterpart. Any party hereto may execute and deliver a counterpart of this
Agreement by delivering by facsimile or other electronic transmission a
signature page of this Agreement signed by such party, and any such facsimile
or
other electronic signature shall be treated in all respects as having the same
effect as an original signature.
SECTION
8. Severability.
The
invalidity, illegality, or unenforceability of any provision in or obligation
under this Agreement in any jurisdiction shall not affect or impair the
validity, legality, or enforceability of the remaining provisions or obligations
under this Agreement or of such provision or obligation in any other
jurisdiction.
SECTION
9. Further
Assurances.
Borrower
and each other Loan Party agrees to, and to cause any other Loan Party to,
take
all further actions and execute all further documents as the Administrative
Agent may from time to time reasonably request to carry out the transactions
contemplated by this Agreement and all other agreements executed and delivered
in connection herewith.
SECTION
10. Section
Headings.
Section
headings in this Agreement are included herein for convenience of reference
only
and shall not constitute part of this Agreement for any other
purpose.
SECTION
11. Notices.
All
notices, requests, and demands to or upon the respective parties hereto shall
be
given in accordance with the Credit Agreement.
SECTION
12. Effectiveness.
This
Agreement shall become effective at the time (the “Forbearance
Effective Date”)
that
all of the following conditions precedent have been met (or waived) as
determined by the Required Lenders in their sole discretion:
(a) Execution.
The
Administrative Agent shall have received duly executed signature pages for
this
Agreement signed by the Required Lenders, Borrower and the other Loan Parties.
(b) Representations
and Warranties.
As of
the Forbearance Effective Date, each representation and warranty of each Loan
Party set forth in Section 3 shall be true and correct in all material
respects.
(c) No
Default.
Except
for the Specified Default, no event shall have occurred and be continuing that
would constitute a Default or a Forbearance Default.
6
(d) Fees
and Expenses.
Borrower and each other Loan Party shall have paid the fees, costs and expenses
described in Section 13(a) and Section 13(b) of this Agreement.
SECTION
13. Costs
and Expenses.
(a) Costs
and Expenses.
Borrower
and Holdings agree, jointly and severally,
in the
manner and subject to the restrictions provided in the Credit Agreement and
the
Final Order, to pay all
fees,
costs, charges and expenses incurred by Anchorage
Crossover Credit Finance, Ltd., King’s
Cross Asset Funding 27 SARL, Watershed Capital Partners, L.P., Watershed Capital
Institutional Partners, L.P., Watershed Capital Partners (Offshore), Ltd.,
and
their respective affiliates in connection with the Bankruptcy Cases, including
but not limited to this Agreement, the Credit Agreement and the other Loan
Documents (including the reasonable fees, charges and disbursements of Kasowitz,
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“KBTF”),
counsel to such Lenders). On or before December 1, 2008 at 5:00p.m., Borrower
shall deposit with KBTF the sum of $250,000 as a retainer (the “KBTF
Retainer”)
to be
applied by KBTF towards fees for services rendered to such Lenders in respect
of
the Bankruptcy Cases. Borrower and Holdings agree, jointly and severally, to
replenish the KBTF Retainer from time to time upon written request from KBTF,
so
that at all times the remaining amount of the KBTF Retainer that has not been
applied to fees for services of KBTF shall be not less than $250,000.
(b) Forbearance
Fee.
Borrower
and Holdings agree, jointly and severally, on or before 5:00 p.m. on December
1,
2008 to pay to the Administrative Agent, for the benefit of those Lenders with
outstanding New Money Loans, a forbearance fee in the amount of 0.25% of the
aggregate amount of outstanding New Money Loans.
SECTION
14. Assignments;
No Third Party Beneficiaries.
This
Agreement shall be binding upon and inure to the benefit of the Loan Parties,
the Lenders and their respective successors and assigns; provided, that no
Loan
Party shall be entitled to delegate any of its duties hereunder and shall not
assign any of its rights or remedies set forth in this Agreement without the
prior written consent of the Administrative Agent in its sole discretion. No
Person other than the parties hereto shall have any rights hereunder or be
entitled to rely on this Agreement and all third-party beneficiary rights are
hereby expressly disclaimed.
SECTION
15. Final
Agreement.
This
Agreement, the Credit Agreement, the other Loan Documents, and the other written
agreements, instruments, and documents entered into in connection therewith
(collectively, the “Borrower/Lenders
Documents”)
set
forth in full the terms of agreement between the parties hereto and thereto
and
are intended as the full, complete, and exclusive contracts governing the
relationship among such parties, superseding all other discussions, promises,
representations, warranties, agreements, and understandings between the parties
with respect thereto. No term of the Borrower/Lenders Documents may be amended,
restated, waived or otherwise modified except in a writing signed by the party
against whom enforcement of the modification, amendment, or waiver is sought.
Any waiver of any condition in, or breach of, any of the foregoing in a
particular instance shall not operate as a waiver of other or subsequent
conditions or breaches of the same or a different kind. The Lenders’ exercise or
failure to exercise any rights or remedies under any of the foregoing in a
particular instance shall not operate as a waiver of its right to exercise
the
same or different rights and remedies in any other instances. There are no
oral
agreements among the parties hereto that are inconsistent with the terms of
this
Agreement.
7
SECTION
16. Rights
of the Official Committee of Unsecured Creditors Unaffected.
Notwithstanding
the foregoing, nothing in this Agreement shall affect the rights of the Official
Committee of Unsecured Creditors under paragraph 19 of the Final Order to assert
a Challenge or Excepted Challenge.
SECTION
17. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE
STATE OF NEW YORK.
[Signature
pages follow.]
8
IN
WITNESS WHEREOF, this Second Forbearance
Agreement to Credit Agreement has been executed by the parties hereto as of
the
date first written above.
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BUFFETS,
INC.,
as
Borrower
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BUFFETS
HOLDINGS, INC.,
as
Loan Party
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|||
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
|
A.
▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇
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Its:
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EVP,
Chief Financial Officer
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Its:
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EVP,
Chief Financial Officer
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HOMETOWN
BUFFET, INC.,
as
Loan Party
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OCB
PURCHASING CO.,
as
Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇
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Its:
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EVP,
Chief Financial Officer
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Its:
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EVP,
Chief Financial Officer
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OCB
RESTAURANT COMPANY, LLC,
as
Loan Party
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BUFFETS
FRANCHISE HOLDINGS, LLC,
as Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief
Finance Manager
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Its:
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Chief
Finance Manager
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BUFFETS
LEASING COMPANY, LLC,
as
Loan Party
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RYAN’S
RESTAURANT GROUP, INC.,
as
Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇
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Its:
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Chief
Finance Manager
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Its:
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EVP,
Chief Financial Officer
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RYAN’S
RESTAURANT LEASING COMPANY, LLC,
as Loan Party
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RYAN’S
RESTAURANT MANAGEMENT GROUP, LLC,
as Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief
Finance Manager
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Its:
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Chief
Finance Manager
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HOMETOWN
LEASING COMPANY, LLC,
as Loan Party
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OCB
LEASING COMPANY, LLC,
as
Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Its:
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Chief
Finance Manager
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Its:
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Chief
Finance Manager
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FIRE
MOUNTAIN RESTAURANTS, LLC,
as
Loan Party
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FIRE
MOUNTAIN LEASING COMPANY, LLC,
as Loan Party
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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By:
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/s/
A. ▇▇▇▇▇ ▇▇▇▇
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Name:
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A.
▇▇▇▇▇ ▇▇▇▇ .
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Name:
|
A.
▇▇▇▇▇ ▇▇▇▇ .
|
|
|
Its:
|
Chief
Finance Manager
|
Its:
|
Chief
Finance Manager
|
|
|
FIRE
MOUNTAIN MANAGEMENT GROUP, LLC,
as Loan Party
|
BIG
R PROCUREMENT COMPANY, LLC,
as Loan Party
|
|||
|
By:
|
/s/
A. ▇▇▇▇▇ ▇▇▇▇
|
By:
|
/s/
A. ▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
|
A.
▇▇▇▇▇ ▇▇▇▇ .
|
Name:
|
A.
▇▇▇▇▇ ▇▇▇▇ .
|
|
|
Its:
|
Chief
Finance Manager
|
Its:
|
Chief
Finance Manager
|
|
|
TAHOE
JOE’S, INC.,
as
Loan Party
|
TAHOE
JOE’S LEASING COMPANY, LLC,
as Loan Party
|
|||
|
By:
|
/s/
A. ▇▇▇▇▇ ▇▇▇▇
|
By:
|
/s/
A. ▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
|
A.
▇▇▇▇▇ ▇▇▇▇ .
|
Name:
|
A.
▇▇▇▇▇ ▇▇▇▇ .
|
|
|
Its:
|
EVP,
Chief Financial Officer
|
Its:
|
Chief
Finance Manager
|
|
|
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH,
as Administrative Agent
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
WATERSHED
CAPITAL PARTNERS, L.P.,
as
a Lender
|
||
|
By:
|
WS
Partners, L.L.C., its General Partner
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Title:
|
Senior
Managing Member
|
|
|
WATERSHED
CAPITAL INSTITUTIONAL PARTNERS, L.P.
as
a Lender
|
||
|
By:
|
WS
Partners, L.L.C., its General Partner
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
Title:
|
Senior
Managing Member
|
|
|
ANCHORAGE
CROSSOVER CREDIT FINANCE, LTD.
as
a Lender
|
||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Executive
Vice President
|
|
|
King’s
Cross Asset Funding 27 sarl
as
a Lender
|
||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Authorized
Signatory
|
|
|
King’s
Cross Asset Funding 27 sarl
as
a Lender
|
||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Title:
|
Authorized
Signatory
|
|
EXHIBIT
A (Specified Default)
|
1.
|
Event
of Default under Section 7(d) of the Credit Agreement, as a result
of the
Borrower’s failure to meet the Minimum Consolidated EBITDA covenant set
forth in Section 6.13 of the Credit Agreement for the fiscal accounting
period ending on October 22, 2008.
|