FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIRST AMENDMENT
TO AMENDED AND RESTATED
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of November 30, 2007 (the “Amendment”) is entered into among Ruby Tuesday, Inc., a Georgia corporation (the “Borrower”), the Lenders party hereto and Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent entered into that certain Amended and Restated Revolving Credit Agreement dated as of February 28, 2007 (as amended or modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement as set forth below subject to the terms and conditions specified in this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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1. |
Amendments. The Credit Agreement is hereby amended as follows: |
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following definition in proper alphabetical order:
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“First Amendment Effective Date” shall mean November 30, 2007. |
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(b) |
Section 6.1 of the Credit Agreement is hereby amended to read as follows: |
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Section 6.1 |
Minimum Fixed Charge Coverage Ratio. |
The Consolidated Companies will maintain as of the last day of each Fiscal Quarter, a Fixed Charge Coverage Ratio of not less than (a) 1.85 to 1.0 from the First Amendment Effective Date through and including December 2, 2008, (b) 1.90 to 1.0 from December 3, 2008 through and including June 2, 2009 and (c) 2.0 to 1.0 thereafter.
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(c) |
Section 6.2 of the Credit Agreement is hereby amended to read as follows: |
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Section 6.2 |
Maximum Adjusted Total Debt to EBITDAR Ratio. |
The Consolidated Companies will maintain, as of the last day of each Fiscal Quarter, an Adjusted Total Debt to EBITDAR Ratio of not greater than (a) 3.75 to 1.0 from the First Amendment Effective Date through and including December 2, 2008, (b) 3.50 to 1.0 from December 3, 2008 through and including June 2, 2009 and (c) 3.25 to 1.0 thereafter.
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(d) Schedule 1.1(a) of the Credit Agreement is hereby amended in its entirety to read as follows:
PRICING GRID
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Pricing Level |
Adjusted Total Debt to EBITDAR Ratio |
Applicable Margin for Eurodollar Loans |
Applicable Margin for Base Rate Loans |
Applicable Commitment Fee Percentage |
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I |
< 2.0:1.00 |
0.50% per annum |
0.000% per annum |
0.10% per annum |
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II |
< 2.50:1.00 but > 2.0:1.00 |
0.625% per annum |
0.000% per annum |
0.125% per annum |
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III |
< 3.0:1.00 but > 2.50:1.00 |
0.75% per annum |
0.000% per annum |
0.15% per annum |
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IV |
< 3.5:1.00 but > 3.0:1.00 |
1.0% per annum |
0.000% per annum |
0.20% per annum |
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V |
> 3.50:1.00 |
1.25% per annun |
0.000% per annum |
0.25% per annun |
2. Conditions Precedent. This Amendment shall be effective as of the date hereof upon the following conditions precedent:
(a) the Administrative Agent shall have received counterparts of this Amendment, duly executed by the Borrower, the Administrative Agent and the Required Lenders;
(b) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower and each other Loan Party, in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel attaching resolutions of each Loan Party approving and adopting this Amendment, the transactions contemplated herein and authorizing the execution and delivery of this Amendment and any documents, agreements or certificates related thereto and certifying that such resolutions have not been amended, supplemented or otherwise modified and remain in full force and effect as of the First Amendment Effective Date;
(c) the Administrative Agent shall have received favorable opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the First Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received a fully executed Consent in the form attached to this Amendment (the “Consent”), duly signed and delivered by each Subsidiary Guarantor; and
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(e) the Administrative Agent shall have received, for the benefit of each Lender signing this Amendment on or before November 30, 2007, an amendment fee equal to 0.10% of such Lender’s Commitment.
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3. |
Miscellaneous. |
(a) Except as herein specifically agreed, the Credit Agreement, and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.
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(b) |
The Borrower hereby represents and warrants as follows: |
(i) Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Amendment and the Consent.
(ii) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(iii) 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 the Borrower of this Amendment.
(c) The Borrower represents and warrants to the Lenders that (i) the representations and warranties set forth in Article IV of the Credit Agreement and in each other Loan Document are true and correct in all material respects as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.
(d) 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 of this Amendment by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered.
(e) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
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Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
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BORROWER: |
RUBY TUESDAY, INC., |
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a Georgia corporation |
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Administrative Agent
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A.,
as a Lender, an Issuing Bank and
Swingline Lender
By /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
SUNTRUST BANK,
as a Lender and an Issuing Bank
By /s/ Xxxx-Xxxx Xxxxx
Name: Xxxx-Xxxx Xxxxx
Title: Director
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RUBY TUESDAY, INC.
FIRST AMENDMENT TO AMENDED AND RESTATED
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as a Lender
By /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
REGIONS BANK,
successor by merger to AmSouth Bank,
as a Lender
By /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Senior Vice President
BRANCH BANKING AND TRUST COMPANY,
as a Lender
By /s/ R. Xxxxxx Xxxx
Name: R. Xxxxxx Xxxx
Title: Senior Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CITIBANK, N.A.,
as a Lender
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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RUBY TUESDAY, INC.
FIRST AMENDMENT TO AMENDED AND RESTATED
XXXXX FARGO BANK, N.A.,
as a Lender
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
FIFTH THIRD BANK,
an Ohio banking corporation,
as a Lender
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
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RUBY TUESDAY, INC.
FIRST AMENDMENT TO AMENDED AND RESTATED
CONSENT
This Consent (this “Consent”), dated as of November 30, 2007, is delivered in connection with the First Amendment to Amended and Restated Revolving Credit Agreement, dated as of the date hereof (“First Amendment”), by and among RUBY TUESDAY, INC. a Georgia corporation (the “Borrower”), the various financial institutions from time to time parties thereto (the “Lenders”) and Bank of America, N.A., in its capacity as the administrative agent for the Lenders (in such capacity the “Administrative Agent”). Unless otherwise defined, terms used herein have the meanings provided in the Credit Agreement (as defined in the First Amendment) as amended by the First Amendment (such agreement, as so amended, being the “Amended Credit Agreement”).
Each of the undersigned, as a party to the Subsidiary Guaranty Agreement, hereby acknowledges and consents to the execution and delivery of the First Amendment, and hereby confirms and agrees that the Subsidiary Guaranty Agreement is, and shall continue to be, in full force and effect, and hereby ratifies and confirms in all respects its obligations thereunder, except that, upon the effectiveness of, and on and after the date of, the First Amendment, all references in the Subsidiary Guaranty Agreement to the “Credit Agreement,” “thereunder,” “thereof” or words of like import shall mean the Amended Credit Agreement.
This Consent may be executed by the parties hereto in counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same instrument.
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GUARANTORS: |
RTBD, INC. |
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: President |
RT FINANCE, INC.
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RUBY TUESDAY GC CARDS, INC.
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT TAMPA FRANCHISE, LP
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RUBY TUESDAY, INC.
CONSENT
RT ORLANDO FRANCHISE, LP
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT SOUTH FLORIDA FRANCHISE, LP
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT NEW YORK FRANCHISE, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT SOUTHWEST FRANCHISE, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT MICHIANA FRANCHISE, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT FRANCHISE ACQUISITION, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RT KENTUCKY RESTAURANT HOLDINGS, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RUBY TUESDAY, INC.
CONSENT
RT FLORIDA EQUITY, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
RTGC, LLC
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RT West Palm Beach Franchise, LP |
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RT Michigan Franchise, LLC |
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RT Detroit Franchise, LLC |
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By: /s/ Xxxxxxxxxx X. Xxxxx |
Name: Xxxxxxxxxx X. Xxxxx
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Title: Vice President |
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RUBY TUESDAY, INC.
CONSENT
