SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
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EX-10.1 2 ex_10-1.htm SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER ex_10-1.htm
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER, dated as of February 7, 2014 (the “Agreement”), is entered into among Ruby Tuesday, Inc., a Georgia corporation (the “Borrower”), the Guarantors, 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 Guarantors, the Lenders and the Administrative Agent entered into that certain Revolving Credit Agreement dated as of December 3, 2013 (as amended by that certain First Amendment to Revolving Credit Agreement and Waiver dated as of January 10, 2014 and as further amended or modified from time to time, the “Credit Agreement”);
WHEREAS, in November of 2013, three employees of the Borrower were terminated, which termination led to the Borrower’s repurchase of Equity Interests of the Borrower held by such employees in an amount equal to approximately $35,000 (the “Share Repurchase”);
WHEREAS, such Share Repurchase may have violated the terms of Section 8.4 of the Credit Agreement (the “Existing Event of Default”);
WHEREAS, the Borrower has requested that the Lenders waive the Existing Event of Default and amend the Credit Agreement as set forth below, in each case subject to the terms and conditions specified in this Agreement;
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:
1. Incorporation of Recitals. The recitals to this Agreement are incorporated fully and made a part of this Agreement.
2. Reaffirmation. Each of the Loan Parties acknowledges and reaffirms (a) that it is bound by all of the terms of the Credit Agreement and the other Loan Documents to which it is a party and (b) that it is responsible for the observance and full performance of all Obligations, including without limitation, the repayment of the Loans and reimbursement of any drawings on a Letter of Credit. Without limiting the generality of the preceding sentence, each of the Guarantors restates and reaffirms that it guarantees the prompt payment when due of all Obligations, in accordance with, and pursuant to the terms of the Credit Agreement. Furthermore, the Loan Parties acknowledge and confirm (i) that the Administrative Agent and the Lenders have performed fully all of their respective obligations under the Credit Agreement and the other Loan Documents and (ii) by entering into this Agreement, the Lenders do not waive (except as specifically provided in Section 3 hereof) or release any term or condition of the Credit Agreement or any of the other Loan Documents or any of their rights or remedies under such Loan Documents or applicable law or any of the obligations of the Loan Parties thereunder.
3. Waiver. Subject to the other terms and conditions of this Agreement, to the extent it constituted an Event of Default, the Administrative Agent and the Lenders agree to waive the Existing Event of Default. The waiver set forth herein shall be effective only in this specific instance and shall not obligate the Lenders or the Administrative Agent to waive any other Default or Event of Default, now
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existing or hereafter arising. This waiver is limited solely to the matters described in the first sentence of this Section 3 as of the date hereof, and nothing contained in this Agreement shall (a) modify the Loan Parties’ obligations to comply fully with all duties, terms, conditions or covenants contained in the Credit Agreement and the other Loan Documents or (b) be deemed to constitute a waiver of any other rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Loan Documents or under applicable law. This is a one-time waiver, and the Administrative Agent and the Lenders shall have no obligation to amend, modify or waive any provision of the Credit Agreement or any other Loan Document in the future. The provisions and agreements set forth in this Agreement shall not establish a custom or course of dealing or conduct between the Administrative Agent, the Issuing Bank, any Lender, the Borrower or any other Loan Party.
4. Amendment. Section 8.4 of the Credit Agreement is hereby amended by adding the following as a new clause (c) and renumbering the existing clause (c) as clause (d):
(c) the Borrower may repurchase its Equity Interests or options, warrants or other rights to acquire its Equity Interests owned by former directors, officers and employees following the termination of service or employment of such directors, officers or employees or in connection with the death or disability of any such director, officer or employee; provided, however, that (i) the aggregate amount of any such repurchases shall not exceed $125,000 in any fiscal year and (ii) no Default or Event of Default has occurred or is continuing after giving effect to such repurchase; and
5. Conditions Precedent. This Agreement shall be effective upon satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of counterparts of this Agreement, duly executed by the Borrower, the Guarantors, the Administrative Agent and the Required Lenders; and
(b) receipt by Moore & Van Allen PLLC, counsel to the Administrative Agent, of its fees and expenses incurred in connection with this Agreement.
6. Miscellaneous.
| (a) | 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. |
| (b) | Each Loan Party hereby represents and warrants as follows: |
(i) Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by each Loan Party and constitutes the legal, valid and binding obligations of each Loan Party, 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).
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(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 any Loan Party of this Agreement.
| (c) | Each Loan Party represents and warrants to the Lenders that (i) the representations and warranties set forth in Article V of the Credit Agreement and in each other Loan Document are true and correct in all material respects (before and after giving effect to this Agreement) 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 unwaived event has occurred and is continuing which constitutes a Default or an Event of Default. |
| (d) | This Agreement 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 Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered. |
(e) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
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Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
BORROWER: RUBY TUESDAY, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Senior Vice President, Chief Legal Officer
and Secretary
GUARANTORS: RTBD, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT FINANCE, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RUBY TUESDAY GC CARDS, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT TAMPA FRANCHISE, L.P.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT ORLANDO FRANCHISE, L.P.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT SOUTH FLORIDA FRANCHISE, L.P.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT NEW YORK FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT SOUTHWEST FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT MICHIANA FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT FRANCHISE ACQUISITION, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT KENTUCKY RESTAURANT HOLDINGS, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT FLORIDA EQUITY, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RTGC, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT DETROIT FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT MICHIGAN FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT WEST PALM BEACH FRANCHISE, L.P.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT NEW ENGLAND FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT LONG ISLAND FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RUBY TUESDAY, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT LAS VEGAS FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT MINNEAPOLIS FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT INDIANAPOLIS FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT DENVER FRANCHISE, L.P.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT OMAHA FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT KCMO FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT PORTLAND FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT ST. LOUIS FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT WESTERN MISSOURI FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
QUALITY OUTDOOR SERVICES, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT AIRPORT, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT LOUISVILLE FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT MCGHEE-TYSON, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT ONE PERCENT HOLDINGS, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT ONE PERCENT HOLDINGS, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT MINNEAPOLIS HOLDINGS, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT OMAHA HOLDINGS, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT DENVER, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT LOUISVILLE, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT ORLANDO, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT SOUTH FLORIDA, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT TAMPA, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT WEST PALM BEACH, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT NEW HAMPSHIRE RESTAURANT HOLDINGS, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT RESTAURANT SERVICES, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT NORTHERN CALIFORNIA FRANCHISE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RTTA, LP
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President
WOK HAY 2, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT DISTRIBUTING, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT O’TOOLE, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT SMITH, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RT MILLINGTON, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
4721 RT OF PENNSYLVANIA, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RTTT, LLC
By: s/ Scarlett May
Name: Scarlett May
Title: Manager
RTT TEXAS, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Treasurer
RT JONESBORO CLUB
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Treasurer
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
RT ARKANSAS CLUB, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Secretary and Treasurer
RUBY TUESDAY OF RUSSELLVILLE, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Secretary and Treasurer
RUBY TUESDAY OF CONWAY, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Secretary and Treasurer
RT KCMO KANSAS, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Vice President and Secretary
RUBY TUESDAY OF BRYANT, INC.
By: s/ Scarlett May
Name: Scarlett May
Title: Secretary and Treasurer
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By s/ Erik M. Truette
Name: Erik M. Truette
Title: Assistant Vice President
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
LENDERS: BANK OF AMERICA, N.A.,
as a Lender and an Issuing Bank
By s/ John Schmidt
Name: John Schmidt
Title: Senior Vice President
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By s/ Maureen S. Malphus
Name: Maureen S. Malphus
Title: Vice President
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
REGIONS BANK,
as a Lender
By s/ Jay Sim
Name: Jay Sim
Title: Vice President
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
RUBY TUESDAY, INC.
