Execution Copy
SECOND AMENDMENT TO AMENDED AND RESTATED
LOAN FACILITY AGREEMENT AND GUARANTY
THIS SECOND AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this "Second
Amendment"), dated as of October 10, 2001, by and among RUBY TUESDAY, INC., a
Georgia corporation ("Sponsor"), each of the financial institutions listed on
the signature pages hereto (the "Participants") and SUNTRUST BANK, 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
Amended and Restated Loan Facility Agreement and Guaranty, dated as of October
11, 2000, as amended by the First Amendment to Amended and Restated Loan
Facility Agreement and Guaranty, dated as of February 28, 2001 (as amended or
modified, the "Loan Facility Agreement"), by and among Sponsor, Servicer and the
Participants;
WHEREAS, Sponsor has requested that the Commencement Termination Date be
extended to January 8, 2002, (the "Extension Date") and Sponsor, Servicer and
Participants executing this Amendment (the "Continuing Participants"), have
agreed to extend their respective Participating Commitments subject to the terms
and conditions hereof;
WHEREAS, The Fuji Bank, Limited has not agreed to extend its respective
Participating Commitment prior to the Commitment Termination Date, and Sponsor
has also requested that (i) the Commitment be reduced to $48,000,000 as of the
date hereof to reflect the failure of The Fuji Bank, Limited to renew its
Participating Commitment and (ii) the outstanding Loan Commitments and Loans to
Borrower be reallocated among the Continuing Participants and their
Participating Commitments, and the Continuing Participants are willing to do so
on the terms and conditions hereof;
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:
1. Amendment to Section 1.1 of the Loan Facility Agreement. Section 1.1 of the
Loan Facility Agreement is hereby amended by adding the following as a new
definition in proper alphabetical order:
"Second Amendment Date" shall mean October 10, 2001.
2. Amendment to Section 2.1 of the Loan Facility Agreement. Section 2.1 of the
Loan Facility Agreement is hereby amended by replacing the subsection (a) there-
of in its entirety with the following:
(a) 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 October 10, 2001 and ending on January 8, 2002 (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 FORTY-EIGHT MILLION AND NO/100
DOLLARS ($48,000,000.00) (the "Commitment").
3. Amendment to Section 2.8 of the Loan Facility Agreement. Section 2.8 of the
Loan Facility Agreement is hereby amended by the addition of subsection
(d) thereof in its entirety with the following:
(d) Increase in Commitment. So long as no Credit Event has occurred and is
continuing, the Sponsor may, at any time after the Second Amendment Date, by
written notice to the Servicer, who shall promptly notify the Participants,
request that the Commitment and the aggregate principal amount of the
Participating Commitments be increased to $52,500,000. No Participant (or any
successor thereto) shall have any obligation to increase its Participating
Commitment or its other obligations under the Agreement and the other Operative
Documents, and any decision by a Participant to increase its Participating
Commitment shall be made in its sole discretion independently from any other
Participant. The Sponsor shall have the right to obtain commitments from
existing Participants or new banks or financial institutions in an aggregate
principal amount such that the existing Participant Commitments, plus the
aggregate principal amount of the new commitments by the Participants or new
banks or financial institutions do not exceed $52,500,000; provided, however,
that (1) the new banks or financial institutions must be acceptable to the
Servicer, (2) the new banks or financial institutions must become parties to
this Agreement pursuant to joinder agreements in form and substance reasonably
satisfactory to the Servicer, pursuant to which they shall become Participants,
shall be granted all of the rights of a Participant under this Agreement and
the other Credit Documents and shall assume all liabilities and obligations of
a Participant under this Agreement and (3) if an existing Participant agrees to
increase its Participating Commitment, such Participant shall execute an
agreement evidencing its increase in its Participating Commitment in form and
substance satisfactory to the Servicer. Upon the execution and delivery by such
existing Participant or new bank or financial institution of such agreement or
joinder, the aggregate principal amount of the Participating Commitments shall
be deemed amended to include the additional Participating Commitment of such
existing Lender or the new Participating Commitment of such new bank or
financial institution and the Commitment shall be increased by a corresponding
amount.
4. Amendment to Section 5.14 of the Loan Facility Agreement. Section 5.14 of
the Loan Facility Agreement is hereby amended by replacing such Section in its
entirety with the following:
Section 5.14. Subsidiaries. As of the date of this Agreement, Schedule 5.14 sets
forth the name of, the ownership interest of the Sponsor in, the jurisdiction of
incorporation or organization of, and the type of, each Subsidiary and
identifies each Material Subsidiary that is a Subsidiary Loan Party.
5. Amendment to Article 12 of the Loan Facility Agreement. Article 12 of
the Loan Facility Agreement is hereby amended by the addition of Section 12.9
thereof in its entirety with the following:
12.9. Appointment of Documentation Agent and Co-
Syndication Agents. The Participants hereby appoint AmSouth Bank as
Documentation Agent and Bank of America N.A. and Wachovia Bank N.A. as
Co-Syndication Agents. Each Lender agrees that the Documentation Agent and
Co-Syndication Agents shall have no duties or obligations under any Loan
Documents to any Participant or to any Loan Party.
6. Amendment to Title Page of the Loan Facility Agreement. The Title Page of the
Loan Facility Agreement is hereby amended by deleting the Front Page in its
entirety and substituting in lieu thereof Exhibit A attached hereto.
7. Effectiveness. This Second Amendment shall become effective as of the Second
Amendment Date when this Second Amendment shall have been executed and delivered
by Sponsor, the Servicer and all Participants to the Servicer. When the Second
Amendment becomes effective, (i) the Participating Commitment of The Fuji Bank,
Limited shall be deemed terminated, (ii) The Fuji Bank, Limited shall no longer
be deemed a Participant under the Loan Facility Agreement and shall be released
from all of its obligations under the Loan Facility Agreement and (iii) all
amounts owed to The Fuji Bank, Limited shall become due and payable by the
Sponsor.
8. 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:
1. The execution, delivery and performance by Sponsor of this Second 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.
2. This Second Amendment constitutes the legal, valid and binding obligations of
Sponsor, enforceable against Sponsor in accordance with their respective terms.
3. After giving effect to this Amendment, all of the representations and
warranties set forth in Article V of the Loan Facility Agreement are true and
correct in all material respects.
4. No Unmatured Credit Event or Credit Event has occurred and is continuing
as of the Second Amendment Date.
9. 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 Second Amendment 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 Second Amendment or any investigation by the Participants
or the Servicer.
10. 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 Second Amendment.
11. 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.
12. Binding Nature. This Second Amendment shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, successors,
successors-in-titles, and assigns.
13. 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 Second 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 Second 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.
14. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
15. Entire Understanding. This Second 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.
16. Counterparts. This Second 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.
[Signatures appear on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
duly executed as of the day and year first above written.
RUBY TUESDAY, INC.
By:/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title:Chief Financial Officer
SUNTRUST BANK
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Participating Commitment: $9,000,000.00
Pro Rata Share: 18.75%
AMSOUTH BANK, as a Participant and
as a Documentation Agent
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Participating Commitment: $12,750,000
Pro Rata Share: 26.5625%
BANK OF AMERICA N.A., as a Participant and as a Co-Syndication Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Participating Commitment: $8,250,000.00
Pro Rata Share: 17.1875%
FIRST UNION NATIONAL BANK
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Participating Commitment: $6,750,000.00
Pro Rata Share: 14.0625%
HIBERNIA NATIONAL BANK
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Banking Officer
Participating Commitment: $6,750,000.00
Pro Rata Share: 14.0625%
WACHOVIA BANK N.A., as a Participant and as a Co-Syndication Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Participating Commitment: $4,500,000.00
Pro Rata Share: 9.375%
EXHIBIT A
AMENDED AND RESTATED LOAN FACILITY AGREEMENT
AND GUARANTY
by and among
RUBY TUESDAY, INC.,
SUNTRUST BANK, as Servicer,
AMSOUTH BANK, as Documentation Agent,
BANK OF AMERICA N.A, as Co-Syndication Agent,
WACHOVIA BANK N.A., as Co-Syndication Agent,
and
EACH OF THE PARTICIPANTS PARTY HERETO
Dated as of October 11, 2000
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SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger
