THIRD AMENDMENT TO AMENDED AND
RESTATED
CREDIT AGREEMENT AND
WAIVER
THIS THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT AND WAIVER , dated as of August 19, 2005 (this “
Amendment ”), is by and among RED ROBIN
INTERNATIONAL, INC. , a Nevada corporation (the “
Borrower ”), RED ROBIN GOURMET BURGERS, INC.
(the “ Parent ”), those Domestic Subsidiaries of
the Borrower identified as a “Guarantor” on the
signature pages hereto and such other Domestic Subsidiaries of the
Borrower as may from time to time become a party hereto (together
with the Parent, each individually a “ Guarantor
” and collectively the “ Guarantors ”),
the Lenders party hereto and WACHOVIA BANK, NATIONAL
ASSOCIATION , as administrative agent for the Lenders (in such
capacity, the “ Administrative Agent
”).
W I T N E S S E T
H
WHEREAS , the Borrower, the Guarantors, the lenders from
time to time party thereto (the “ Lenders ”) and
the Administrative Agent are parties to that certain Amended and
Restated Credit Agreement dated as of May 20, 2003 (as
previously amended and modified and as further amended, modified,
supplemented or restated from time to time, the “ Credit
Agreement ”; capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement unless otherwise
defined herein);
WHEREAS , the Borrower has requested that the Required
Lenders (on behalf of the Lenders) agree to amend the Consolidated
Capital Expenditures covenant set forth in Section 5.9(e) of
the Credit Agreement as set forth below;
WHEREAS , the Borrower has notified the Administrative
Agent and the Lenders that Events of Default exist under the Credit
Agreement as a result of (a) the Credit Parties’ failure
to provide notice to the Administrative Agent of a new Domestic
Subsidiary and failing to promptly join such Domestic Subsidiary
(the “ Non-Joined Subsidiary ”) to the Credit
Agreement as an Additional Credit Party as required pursuant to
Section 5.10 of the Credit Agreement (the “
Acknowledged Joinder Events of Default ”),
(b) the failure of certain financial statements and other
information previously provided by the Borrower to the
Administrative Agent and the Lenders to be prepared in accordance
with GAAP, to be true and accurate in all material respects and to
otherwise comply with the terms of Sections 3.1, 3.24 and 5.1, as
more specifically described on Schedule A hereto (the
“ Acknowledged Financial Statement Events of Default
”), (c) the default under the Borrower’s Ft.
Collins Capital Lease with Captec (the “ Captec
Default ”) resulting from the financial statement
deficiencies described in clause (b) above and the Event of
Default pursuant to Section 7.2(c) of the Credit Agreement
resulting from the Captec Default (the “ Acknowledged
Cross-Default ”) and (d) the Credit Parties’
failure to promptly notify the Administrative Agent of the Events
of Default described in clauses (a), (b) and (c) above in
accordance with the terms of Section 5.7(a) (such Event of
Default, together with the Acknowledged Joinder Events of Default,
the Acknowledged Financial Statement Events of
Default and the Acknowledged Cross-Default,
collectively the “ Acknowledged Events of Default
”);
WHEREAS , the Borrower has requested that the Required
Lenders agree to waive the Acknowledged Events of Default on a
one-time basis; and
WHEREAS , the Required Lenders have agreed to such
amendment and waiver, 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:
SECTION 1
AMENDMENT
1.1 Amendment to
Section 5.9(e) . The Consolidated Capital Expenditure limit for
fiscal year 2005 set forth in Section 5.9(e) of the Credit
Agreement is hereby increased to $100,000,000.
SECTION 2
WAIVER
2.1 Waiver of Events of
Default .
Notwithstanding the provisions of
the Credit Agreement to the contrary, the Lenders hereby waive, on
a limited, one-time basis, the Acknowledged Events of Default;
provided that, (a) with respect the Acknowledged
Joinder Events of Default, the Non-Joined Subsidiary shall be
joined to the Credit Agreement as an Additional Credit Party
pursuant to the terms of Section 5.10 of the Credit Agreement
within 30 days of the date of this Amendment and (b) with
respect to the Acknowledged Cross-Default, the Borrower shall
deliver to the Administrative Agent within 30 days of the date of
this Amendment (or such extended period of time as the
Administrative Agent may agree) an executed waiver with respect to
the Captec Default, which waiver shall be in form and substance
reasonably satisfactory to the Administrative Agent.
This Amendment shall be effective
only to the extent specifically set forth herein and shall not
(i) be construed as a waiver of any breach or default other
than as specifically waived herein nor as a waiver of any breach or
default of which the Lenders have not been informed by the
Borrower, (ii) affect the right of the Lenders to demand
compliance by the Borrower with all terms and conditions of the
Credit Agreement in all other instances, (iii) be deemed a
waiver of any transaction or future action on the part of the
Borrower requiring the Lenders’ or the Required
Lenders’ consent or approval under the Credit Agreement, or
(iv) except as waived hereby with respect to the Acknowledged
Events of Default, be deemed or construed to be a
2
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 Event of Default
which may now exist or otherwise, all such rights and remedies
hereby being expressly reserved.
SECTION 3
CLOSING
CONDITIONS
3.1 Conditions Precedent
. This Amendment shall
become effective as of the date first above written upon
satisfaction of the following conditions (in form and substance
reasonably acceptable to the Administrative Agent):
(a) Executed Amendment .
Receipt by the Administrative Agent of a copy of this Amendment
duly executed by each of the Borrowers, the Guarantors and the
Required Lenders.
(b) Expenses . Receipt by the
Administrative Agent of all expenses of the Administrative Agent in
connection with the arrangement, preparation, execution and
delivery of this Amendment and all other outstanding expenses of
the Administrative Agent, including, without limitation, the fees
and expenses of Moore & Van Allen PLLC.
SECTION 4
MISCELLANEOUS
4.1 Amended
Terms . The term
“Credit Agreement” as used in each of the Credit
Documents shall hereafter mean the Credit Agreement 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 an
