SUPPLEMENT NO. 1 (this “Supplement”) dated as of November 22, 2006, to the Guarantee and Collateral Agreement dated as of November 1, 2006 (the “Guarantee and Collateral Agreement”), among BUFFETS, INC., a Minnesota corporation (the “Borrower”),...
Exhibit 10.11
EXECUTION COPY
SUPPLEMENT NO. 1 (this “Supplement”) dated as of
November 22, 2006, to the Guarantee and Collateral Agreement dated
as of November 1, 2006 (the “Guarantee and Collateral Agreement”),
among BUFFETS, INC., a Minnesota corporation (the “Borrower”),
BUFFETS HOLDINGS, INC., a Delaware corporation (“Holdings”), each
Subsidiary of the Borrower from time to time party thereto (each
such subsidiary individually a “Subsidiary Guarantor” and
collectively, the “Subsidiary Guarantors”; the Subsidiary
Guarantors, Holdings and the Borrower are referred to collectively
herein as the “Grantors”) and CREDIT SUISSE, (together with its
affiliates, “Credit Suisse”), as collateral agent (in such
capacity, the “Collateral Agent”) for the Secured Parties (as
defined therein).
A. Reference is made to the Credit Agreement dated as of November 1, 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower,
Holdings, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse, as
administrative agent for the Lenders and as Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement or the Guarantee and Collateral Agreement referred
to therein, as applicable.
C. The Grantors have entered into the Guarantee and Collateral Agreement in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit. Section 7.16 of the
Guarantee and Collateral Agreement provides that additional Domestic Subsidiaries of the Loan
Parties may become Subsidiary Guarantors and Grantors under the Guarantee and Collateral Agreement
by execution and delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements
of the Credit Agreement to become a Subsidiary Guarantor and a Grantor under the Guarantee and
Collateral Agreement in order to induce the Lenders to make additional Loans and the Issuing Bank
to issue additional Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Collateral Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and Collateral Agreement, the New
Subsidiary by its signature below becomes a Grantor and Subsidiary Guarantor under the Guarantee
and Collateral Agreement with the same force and effect as if originally named therein as a Grantor
and Subsidiary Guarantor and the New Subsidiary hereby (a) agrees to all the terms and provisions
of the Guarantee and
Collateral Agreement applicable to it as a Grantor and Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a Grantor and
Subsidiary Guarantor thereunder are true and correct in all material respects on and as of the date
hereof. In furtherance of the foregoing, the New Subsidiary, (a) unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety,
the due and punctual payment and performance of the Obligations and (b) as security for the payment
and performance in full of the Obligations (as defined in the Guarantee and Collateral Agreement),
does hereby create and grant to the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, their successors and assigns, a security interest in and lien on
all of the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the
Guarantee and Collateral Agreement) of the New Subsidiary. Each reference to a “Grantor” or a
“Subsidiary Guarantor” in the Guarantee and Collateral Agreement shall be deemed to include the New
Subsidiary. The Guarantee and Collateral Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the Collateral Agent and the other
Secured Parties that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Subsidiary and the Collateral Agent. Delivery of an executed
signature page to this Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I
attached hereto is a true and correct schedule of the information, with respect to such New
Subsidiary, required by the Perfection Certificate attached as Exhibit B to the Guarantee and
Collateral Agreement and (b) set forth under its signature hereto, is the true and correct legal
name of the New Subsidiary and its jurisdiction of organization.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and Collateral Agreement
shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and in the
Guarantee and Collateral Agreement shall not in any way be affected or impaired thereby (it
being understood that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall (except as otherwise expressly
permitted by the Guarantee and Collateral Agreement) be in writing and given as provided in Section
7.01 of the Guarantee and Collateral Agreement. All communications and notices hereunder to the New
Subsidiary shall be given to it in care of the Borrower as provided in Section 9.01 of the Credit
Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other
charges and disbursements of counsel for the Collateral Agent.
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IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly executed this
Supplement to the Guarantee and Collateral Agreement as of the day and year first above written.
FIRE MOUNTAIN LEASING COMPANY, | ||||||||
LLC, | ||||||||
by | /s/ A. Xxxxx Xxxx | |||||||
Name: A. Xxxxx Xxxx | ||||||||
Title: Chief Finance Manager | ||||||||
Address: 0000 Xxxxxx Xxx | ||||||||
Xxxxx, XX 00000 | ||||||||
Legal Name: Fire Mountain Leasing | ||||||||
Company, LLC | ||||||||
Jurisdiction of Formation: Minnesota | ||||||||
RYAN’S RESTAURANT LEASING | ||||||||
COMPANY, LLC, | ||||||||
by | /s/ H. Xxxxxx Xxxxxxxx | |||||||
Name: H. Xxxxxx Xxxxxxxx | ||||||||
Title: Manager/Secretary | ||||||||
Address: 0000 Xxxxxx Xxx | ||||||||
Xxxxx, XX 00000 | ||||||||
Legal Name: Ryan’s Restaurant Leasing | ||||||||
Company, LLC | ||||||||
Jurisdiction of Formation: Minnesota | ||||||||
FIRE MOUNTAIN MANAGEMENT | ||||||||
GROUP, LLC, | ||||||||
by | /s/ H. Xxxxxx Xxxxxxxx | |||||||
Name: H. Xxxxxx Xxxxxxxx | ||||||||
Title: Manager/Secretary | ||||||||
Address: 0000 Xxxxxx Xxx | ||||||||
Xxxxx, XX 00000 | ||||||||
Legal Name: Fire Mountain | ||||||||
Management Group, LLC | ||||||||
Jurisdiction of Formation: Minnesota |
RYAN’S RESTAURANT MANAGEMENT | ||||||||
GROUP, LLC, | ||||||||
by | /s/ H. Xxxxxx Xxxxxxxx | |||||||
Name: H. Xxxxxx Xxxxxxxx | ||||||||
Title: Manager/Secretary | ||||||||
Address: 0000 Xxxxxx Xxx | ||||||||
Xxxxx, XX 00000 | ||||||||
Legal Name: Ryan’s Restaurant | ||||||||
Management Group, LLC | ||||||||
Jurisdiction of Formation: Minnesota | ||||||||
CREDIT SUISSE, CAYMAN ISLANDS | ||||||||
BRANCH, as Collateral Agent, | ||||||||
by | /s/ Xxxxxx Xxxx | |||||||
Name: Xxxxxx Xxxx | ||||||||
Title: Managing Director | ||||||||
by | /s/ Xxxxxx X. Xxxxxxx | |||||||
Name: Xxxxxx X. Xxxxxxx | ||||||||
Title: Associate |
Schedule I to
Supplement No. 1 to the
Guarantee and
Collateral Agreement
Supplement No. 1 to the
Guarantee and
Collateral Agreement
Collateral of the New Subsidiaries
1. Names.
(a) Exact Legal Name.
Exact Legal Name of Each Grantor
Fire Mountain Leasing Company, LLC
Ryan’s Restaurant Leasing Company, LLC
Fire Mountain Management Group, LLC
Ryan’s Restaurant Management Group, LLC
(b) Other Legal Name. None
(c) Former Identity. None.
(d) Organizational Identification Number.
Grantor | Organizational Identification Number | |
Fire Mountain Leasing Company, LLC |
2093186-2 | |
Ryan’s Restaurant Leasing Company, LLC |
2093186-5 | |
Fire Mountain Management Group, LLC |
2093186-3 | |
Ryan’s Restaurant Management Group,
LLC |
2093186-4 |
2. Current Locations.
(a) Chief Executive Office.
Grantor | Mailing Address | County | State | |||
Fire Mountain Leasing Company, LLC |
0000 Xxxxxx Xxx Xxxxx, XX 00000 | Dakota | Minnesota | |||
Ryan’s Restaurant Leasing Company, LLC |
0000 Xxxxxx Xxx Xxxxx, XX 00000 | Dakota | Minnesota | |||
Fire Mountain Management Group, LLC |
0000 Xxxxxx Xxx Xxxxx, XX 00000 | Dakota | Minnesota | |||
Ryan’s Restaurant Management Group, LLC |
0000 Xxxxxx Xxx Xxxxx, XX 00000 | Dakota | Minnesota |
(b) Location of Books and Records. Same as above.
(c) Jurisdiction of Formation.
Grantor | Jurisdiction | |
Fire Mountain Leasing Company, LLC |
Minnesota | |
Ryan’s Restaurant Leasing Company, LLC |
Minnesota | |
Fire Mountain Management Group, LLC |
Minnesota | |
Ryan’s Restaurant Management Group, LLC |
Minnesota |
(d) Real Property Held. None
(e) Persons Holding Collateral of Grantor. None
(3) Schedules to the Perfection Certificate.
(a) UCC Financing Statements (Schedule 5). Attached
(b) UCC Filings and Filing Offices (Schedule 6).
Grantor | Filing Office | |
Fire Mountain Leasing Company, LLC |
Minnesota | |
Ryan’s Restaurant Leasing Company, LLC |
Minnesota | |
Fire Mountain Management Group, LLC |
Minnesota | |
Ryan’s Restaurant Management Group, LLC |
Minnesota |
(c) Stock Ownership and Other Equity Interests (Schedule 7)
Stock | ||||||||
Certificate | ||||||||
No. (if | No. of | Percentage | ||||||
Pledgor | Issuer | applicable) | Units | Ownership | ||||
Ryan’s Restaurant Group, Inc. |
Ryan’s Restaurant Leasing Company, LLC | N/A | N/A | 100% | ||||
Ryan’s Restaurant, Group, Inc. |
Ryan’s Restaurant Management Group, LLC | N/A | N/A | 100% | ||||
Fire Mountain Restaurants, LLC |
Fire Mountain Management Group, LLC | N/A | N/A | 100% | ||||
Fire Mountain Restaurants, LLC |
Fire Mountain Leasing Company, LLC | N/A | N/A | 100% |
(d) | Debt Instruments (Schedule 8). None | ||
(e) | Deposit Accounts (Schedule 9). None | ||
(f) | Security Accounts (Schedule 10). None | ||
(g) | Advances (Schedule 11). None | ||
(h) | Mortgage Filings (Schedule 12). None | ||
(i) | Patents and Trademarks (Schedule 13A) and Copyrights (Schedule 13B). None | ||
(j) | Commercial Tort Claims (Schedule 14). None |
Exhibit B to the Guarantee
and Collateral Agreement
and Collateral Agreement
FORM OF PERFECTION CERTIFICATE
[On file with Cravath, Swaine & Xxxxx LLP]