EXECUTION COUNTERPART
THIRD AMENDMENT TO LOAN FACILITY AGREEMENT
AND GUARANTY
THIS THIRD AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this
"Third Amendment") dated as of June 18, 1998, by and between RUBY
TUESDAY, INC., a Georgia corporation ("Sponsor"), each of the financial
institutions listed on the signature pages hereof (the "Participants")
and SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as servicer
(in such capacity, the "Servicer");
W I T N E S S E T H:
WHEREAS, the Sponsor, Participants and Servicer, in order to make
available a loan facility to certain franchisees of Sponsor, entered into
that certain Loan Facility Agreement and Guaranty dated as of May 30,
1997, as amended by that certain First Amendment to Loan Facility
Agreement and Guaranty, dated as of October 30, 1997, as amended by that
certain Second Amendment to Loan Facility Agreement and Guaranty, dated
as of March 4, 1998 (as hereafter amended or modified, the "Loan Facility
Agreement") by and among Sponsor, Servicer and the Participants;
WHEREAS, in order to expedite the ongoing operations of the loan
facility, Sponsor and Servicer entered into that certain Servicing
Agreement, dated as of May 30, 1997 (as amended or modified from time to
time, the "Servicing Agreement") to set forth certain agreements
regarding fees and operations;
WHEREAS, the Sponsor has requested (i) that the Commitment be
increased to $52,500,000.00 (by increase of the Participating Commitments
of the existing Participants), and (ii) that the Commitment Termination
Date be extended to May 28, 1999;
WHEREAS, the Participants and Servicer are willing to agree to the
foregoing upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual premises
contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
I. Definitions. All terms used herein without definition shall
have the meanings set forth for such terms in the Loan Facility
Agreement.
II. Amendments.
A. Amendment to Section 2.1 of the Loan Facility Agreement.
Section 2.1 of the Loan Facility Agreement is hereby amended by deleting
Section 2.1(a) in its entirety and substituting in lieu thereof the
following Section 2.1(a):
(1) Commitment. Subject to and upon the terms and
conditions set forth in this Agreement and the other Operative
Documents, and in reliance upon the guaranty of the Sponsor set
forth herein, the Servicer hereby establishes a Commitment to the
Sponsor to establish Loan Commitments and make Advances to such
Franchisees as may be designated by the Sponsor in its Funding
Approval Notices during a period commencing on the date hereof and
ending on May 28, 1999 (as such period may be extended for one or
more subsequent 364-day periods pursuant to Section 2.8 hereof, the
"Commitment Termination Date") in an aggregate committed amount at
any one time outstanding not to exceed FIFTY TWO MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($52,500,000.00) (the
"Commitment").
b. Notices. The address for notices, requests and other
communications to the Sponsor shall be changed to the address and
teletransmission number set forth on the signature page hereof.
III. Waiver. The Servicer and each of the Participants hereby
waive any (i) Default or Event of Default or (ii) violation of any
requirements, under Section 2.8 of the Loan Facility Agreement, resulting
from the extension of the Commitment by this Third Amendment. Except as
expressly set forth herein, this Section 4 shall not be deemed to be a
waiver of any provisions of the Loan Facility Agreement and shall not
preclude the future exercise of any right, power or privilege available
to the Servicer or any Participant whether under the Loan Facility
Agreement or otherwise
IV. Conditions of Effectiveness. The effectiveness of this Third
Amendment and the obligation of Servicer to make lines of credit
available to franchisees of Sponsor under the Loan Facility Agreement, as
amended hereby, and the obligation of each Participant to purchase its
participation therein, is subject to receipt by Servicer of each of the
following in form and substance satisfactory to Servicer and each of the
Participants:
A. from each of the parties hereto a duly executed counterpart
of this Third Amendment;
B. a certificate of Sponsor, dated as of the date hereof,
signed by the Secretary or Assistant Secretary of Sponsor, (i) certifying
as to names and true signatures of the officers of Sponsor authorized to
execute and deliver this Third Amendment, (ii) certifying that Sponsor's
articles of incorporation and bylaws delivered to Servicer on June 18,
1998 have not been amended or modified and are in full force and effect
as of the date hereof, and (iii) certifying a true and correct copy of
the action taken by the Board of Directors or the Sponsor authorizing the
Sponsor's execution, delivery and performance of this Amendment and the
certificates referred to herein;
C. a certificate of the Secretary of State of the State of
Georgia as to the existence of the Sponsor as a Georgia corporation; and
D. a favorable written opinion of Powell, Goldstein, Xxxxxx &
Xxxxxx, counsel for Sponsor and Guarantors, in form satisfactory to
Servicer and each Participant and covering such matters relating to the
transactions contemplated by this Third Amendment as Servicer may
reasonably request;
E. in addition, each of the Participants shall have received a
duly executed Participation Certificate from the Servicer.
V. Representations and Warranties of Sponsor. Sponsor, without
limiting the representations and warranties provided in the Loan Facility
Agreement, represents and warrants to the Participants and Servicer as
follows:
A. The execution, delivery and performance by Sponsor of this
Third Amendment are within Sponsor's corporate powers, have been duly
authorized by all necessary corporate action (including any necessary
shareholder action) and do not and will not (a) violate any provision of
any law, rule or regulation, any judgment, order or ruling of any court
or governmental agency, the articles of incorporation or by-laws of
Sponsor or any indenture, agreement or other instrument to which Sponsor
is a party or by which Sponsor or any of its properties is bound or (b)
be in conflict with, result in a breach of, or constitute with notice or
lapse of time or both a default under any such indenture, agreement or
other instrument.
B. This Third Amendment constitutes the legal, valid and
binding obligations of Sponsor, enforceable against Sponsor in accordance
with their respective terms.
C. No Unmatured Credit Event or Credit Event has occurred and
is continuing as of the Effective Date.
VI. Survival. Each of the foregoing representations and warranties
and each of the representations and warranties made in the Loan Facility
Agreement shall be made at and as of the Effective Date. Each of the
foregoing representations and warranties shall constitute a
representation and warranty of Sponsor under the Loan Facility Agreement,
and it shall be a Credit Event if any such representation and warranty
shall prove to have been incorrect or false in any material respect at
the time when made. Each of the representations and warranties made
under the Loan Facility Agreement (including those made herein) shall
survive and not be waived by the execution and delivery of this Third
Amendment or any investigation by the Participants or the Servicer.
VII. No Waiver, Etc. Sponsor hereby agrees that nothing herein
shall constitute a waiver by the Participants of any Unmatured Credit
Event or Credit Event, whether known or unknown, which may exist under
the Loan Facility Agreement. Sponsor hereby further agrees that no
action, inaction or agreement by the Participants, including without
limitation, any indulgence, waiver, consent or agreement altering the
provisions of the Loan Facility Agreement which may have occurred with
respect to the non-payment of any obligation during the terms of the Loan
Facility Agreement or any portion thereof, or any other matter relating
to the Loan Facility Agreement, shall require or imply any future
indulgence, waiver, or agreement by the Participants. In addition,
Sponsor acknowledges and agrees that it has no knowledge of any defenses,
counterclaims, offsets or objections in its favor against any Participant
with regard to any of the obligations due under the terms of the Loan
Facility Agreement as of the date of this Third Amendment.
VIII. Ratification of Loan Facility Agreement. Except as expressly
amended herein, all terms, covenants and conditions of the Loan Facility
Agreement and the other Operative Documents shall remain in full force
and effect, and the parties hereto do expressly ratify and confirm the
Loan Facility Agreement as amended herein. All future references to the
Loan Facility Agreement shall be deemed to refer to the Loan Facility
Agreement as amended hereby.
IX. Ratification of Guaranty Agreement. The Guarantor hereby
ratifies and confirms that the Guaranty Agreement remains in full force
and effect and is hereby affirmed by the Guarantor.
X. Binding Nature. This Third Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs,
successors, successors-in-titles, and assigns.
XI. Costs, Expenses and Taxes. Sponsor agrees to pay on demand all
reasonable costs and expenses of the Servicer in connection with the
preparation, execution and delivery of this Third Amendment and the other
instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for
the Servicer with respect thereto and with respect to advising the
Servicer as to its rights and responsibilities hereunder and thereunder.
In addition, Sponsor shall pay any and all stamp and other taxes payable
or determined to be payable in connection with the execution and delivery
of this Third Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Servicer and each Participant
harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
XII. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
XIII. Entire Understanding. This Third Amendment sets forth the
entire understanding of the parties with respect to the matters set forth
herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.
XIV. Counterparts. This Third Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts and may be delivered by telecopier. Each counterpart so
executed and delivered shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
Address for Notices:
RUBY TUESDAY, INC.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 By: /s/ J. Xxxxxxx Xxxxxxxxxx
Attention: Mr. J. Xxxxxxx Xxxxxxxxxx Title: C. F. O.
Telecopy: (000) 000-0000
[CORPORATE SEAL]
Address for Notices:
SUNTRUST BANK, ATLANTA, as Servicer
00 Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Center No. 113 By:
Telecopy No. (000) 000-0000 Title:
with a copy to:
By:
F. M. Xxxxx Xxxxxx, III Title:
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Center No. 113 By:
Telecopy No.: (000) 000-0000 Name:
Title:
with a copy to:
F. M. Xxxxx Xxxxxx, III By:
00 Xxxx Xxxxx Name:
24th Floor Title:
Xxxxxxx, Xxxxxxx 00000
Participating Commitment: $10,000,000.00
Pro Rata Share: 19.0476%
Address for Notices: AMSOUTH BANK
0000 0xx Xxxxxx Xxxxx By:
Xxxxxxxxxx, Xxxxxxx 00000 Title:
Attention: Xx. Xxxx Xxxx
Telecopy: (000) 000-0000
Participating Commitment: $7,500,000.00
Pro Rata Share: 14.2857%
Address for Notices: WACHOVIA BANK, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Telecopy: (000) 000-0000 By:
Title:
Participating Commitment: $7,500,000.00
Pro Rata Share: 14.2857%
Address for Notices: FIRST AMERICAN NATIONAL BANK
First American Center
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000 By:
Attention: Xx. Xxxx Xxxxxx Title:
Telecopy: (000) 000-0000
Participating Commitment: $7,500,000.00
Pro Rata Share: 14.2857%
Address for Notices: NATIONSBANK, N.A.,
successor to Xxxxxxx Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By:
Attention: Xx. Xxxxx Xxxxxxxxx Title:
location code: NC-1-007-08-08
Telecopy: (000) 000-0000
Participating Commitment: $7,500,000.00
Pro Rata Share: 14.2857%
Address for Notices: HIBERNIA NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxx Villaffara By:
Telecopy: (000) 000-0000 Title:
Participating Commitment: $7,500,000.00
Pro Rata Share: 14.2857%
Address for Notices: FIRST TENNESSEE BANK, N.A.
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxxx By:
Telecopy: (000) 000-0000 Title:
Participating Commitment: $5,000,000.00
Pro Rata Share: 9.5238%
ACKNOWLEDGMENT OF GUARANTORS
Each of the Guarantors acknowledges and agrees to the terms of the
foregoing Third Amendment, and further acknowledges and agrees that (i)
all of the obligations of the Sponsor shall continue to constitute
"Guaranteed Obligations" covered by Subsidiary Guaranty Agreement
executed by the undersigned, and (ii) the Subsidiary Guaranty Agreement
is and shall remain in full force and effect on and after the date
hereof, and (iii) the foregoing agreement shall in no way release,
discharge, or otherwise limit the obligations of such Guarantor under the
Subsidiary Guaranty Agreement.
This Acknowledgment of Guarantors made and delivered as of June 18,
1998.
TIAS, INC.
By:
Title:
[CORPORATE SEAL]
