OMNIBUS AMENDMENT
This OMNIBUS AMENDMENT, dated as of October 2, 1998 (this
"Amendment"), is among RUBY TUESDAY, INC., a Georgia corporation
("Lessee"), the financial institutions parties hereto as lenders (the
"Lenders"), ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership
("Lessor"), and SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as
agent for the Lenders (in such capacity, the "Agent").
BACKGROUND
1. Lessee, Lessor, certain of the Lenders and the Agent are
parties to that certain Master Agreement, dated as of May 30, 1997 (the
"Master Agreement").
2. The parties hereto desire to amend the Master Agreement and
certain other Operative Documents (as defined below) in certain respects
as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment
and not otherwise defined herein shall have the meanings assigned thereto
in the Master Agreement.
Section 2. Aggregate Limit on Funded Amounts. Section 2.1 of the
Master Agreement is hereby amended by deleting the number "$40,000,000"
where it appears in clause (y) of the first sentence thereof and
substituting therefor the number "$80,000,000".
Section 3. Commitments. Schedule 2.2 to the Master Agreement is
hereby amended by deleting it in its entirety and substituting therefor
Schedule 2.2 to this Amendment. Each of The Fuji Bank, Limited and First
Union National Bank (the "New Lenders") is hereby made a party to the
Master Agreement and the Loan Agreement, and shall have all the rights
and obligations of a "Lender" under the Master Agreement, the Loan
Agreement and the other Operative Documents as if it were an original
signatory thereto to the extent of its Commitment. Each of the New
Lenders agrees to be bound by the terms and conditions applicable to a
"Lender" set forth in the Master Agreement, the Loan Agreement and the
other Operative Documents as if it were an original signatory thereto.
Each of the New Lenders hereby acknowledges and confirms that it is
received a copy of each of the Operative Documents and that in becoming a
Lender and in making its Commitment and Loans under the Loan Agreement,
such actions have and will be made without recourse to, or representation
or warranty by, the Agent, any other Lender or the Lessor. The Lessee
and the Agent hereby consent to the addition of the New Lenders. On the
date hereof, certain of the Lenders, including the New Lenders, shall
make payments to the Agent, who shall distribute such payments to the
other Lenders, such that, after giving effect to such payment and
distributions, each Lender's outstanding Loans shall be equal to the
product of (i) the aggregate outstanding Funded Amounts on such date
times (ii) such Lender's Commitment Percentage. Such payment shall be
made in immediately available funds to such account as the Agent shall
specify to the Lenders.
Section 4. Base Term; Funding Termination Date. Each of the
definition of "Base Term" and "Funding Termination Date" that appears in
Appendix A is hereby amended by deleting the date "May 30, 2002" where it
appears therein and substituting therefor the date "October 1, 2003".
Section 5. Certain Added Definitions. Appendix A is hereby
amended by adding the following definitions thereto in appropriate
alphabetical order:
"Construction Budget" is defined in Section 2.4 of the Construction
Agency Agreement.
"Construction Failure Payment" with respect to any Second Group
Property means the amount equal to the sum of (i) 89.9% of the
acquisition cost of the related Land, if the cost of the related Land is
less than 25% of the total expected cost of such Second Group Property or
100% of the acquisition cost of the related Land, if the cost of the
related Land is equal to or more than 25% of the total expected cost of
such Second Group Property, plus (ii) 89.9% of the Construction costs
(including development and transaction costs) related to such Second
Group Property that have been incurred through the date of payment, plus
(iii) any amounts owed with respect to such Second Group Property
pursuant to Section 3.3 of the Construction Agency Agreement or Section
7.2 of the Master Agreement, plus (iv) the cost of tenant improvements
not paid by the Construction Agent that were not part of the Construction
Budget for such Second Group Property.
"Second Group Property" means each Leased Property the Land related
to which was acquired by the Lessor after October 1, 1998.
Section 6. Fundings. Section 2.2(e) of the Master Agreement is
hereby amended by deleting the phrase "the Lessee reasonably believes
will be due in the 90 days following such Funding from the Lessee" where
it appears in the first sentence thereof and substituting therefor the
phrase "are then due".
Section 7. Indemnity. Section 7.1 of the Master Agreement is
hereby amended by adding the following phrase at the end of the first
sentence thereof: "; and, provided, further, that with respect to each
Construction Land Interest that is also a Second Group Property, the
Lessee's indemnity obligations with respect to such Second Group Property
shall be governed by Section 3.4 of the Construction Agency Agreement
during the Construction Term therefor." Section 7.2 of the Master
Agreement is hereby amended by adding the phrase "or Section 3.3 of the
Construction Agency Agreement" after the phrase "without limitation of
Section 7.1" where it appears in the second line thereof.
Section 8. Construction Agency Agreement. The Construction Agency
Agreement is hereby amended as follows:
(i) Section 2.4 is hereby amended by adding a new sentence at
the end thereof as follows: "on or prior to the Closing Date of each
parcel of Land related to a Second Group Property, the Construction Agent
shall prepare and deliver to the Lessor and the Agent a construction
budget (the "Construction Budget") for the related Second Group Property,
setting forth in reasonable detail the budget for the Construction of the
proposed Building on such Land in accordance with the Plans and
Specifications therefor, and all related costs including the capitalized
interest and Yield expected to accrue during the related Construction
Term.";
(ii) Section 2.5 is hereby amended by (i) deleting the word
"and" at the end of clause (b) thereof, (ii) deleting the period at the
end of clause (c) thereof and substituting therefor a semicolon and (iii)
adding the following at the end
hereof:
"(d) the Completion Date for such Leased Property; and
(e) the payment by the Construction Agent of the Leased
Property Balance or, if such Leased Property is a Second Group
Property, the Construction Failure Payment with respect to such
Leased Property pursuant to this Agreement.";
(iii) Section 2.6 is hereby amended by adding the following
sentence at the end thereof: "Each construction contract for a Second
Group Property with a general contractor shall be with a reputable
general contractor with experience in constructing projects that are
similar in scope and type to the proposed Building, and shall provide for
a guarantee maximum project cost and at least 10% retainage.";
(iv) Section 2.8(a) is hereby amended by inserting after the
phrase "Plans and Specifications for such Land" where it appears therein
the phrase ", in accordance with the "Construction Budget for such Leased
Property (if such Leased Property is a Second Group Property)";
(v) Section 3.2 is hereby amended by inserting the phrase "or,
in the case of a Second Group Property increase the Construction Budget
therefor" after the phrase "then remaining Commitments" where it appears
in clause (y) of the proviso therein;
(vi) A new Section 3.4 shall be added at the end of Article III
as follows:
3.4 Indemnity. During the Construction Term for each
Leased Property, the Construction Agent agrees to assume liability
for, and to indemnify, protect, defend, save and hold harmless the
Lessor on an After-Tax Basis, from and against, any and all Claims
that may be imposed on, incurred by or asserted or threatened to be
asserted, against the Lessor, whether or not the Lessor shall also
be indemnified as to any such Claim by any other Person, in any way
relating to or arising out of (i) the Construction Agent's (or any
subcontractor's) own actions or failures to act while in possession
or control of any Leased Property, (ii) fraud, misapplication of
funds, illegal acts or willful misconduct on the part of the
Construction Agent, (iii) any event described in paragraph (f) or
(g) of Article XII of the Lease with respect to the Construction
Agent or (iv) the inaccuracy of any representation or warranty made
by the Construction Agent. The foregoing indemnities are in
addition to, and not in limitation of, the indemnities with respect
to environmental claims set forth in Section 7.2 of the Master
Agreement. The provisions of Section 7.3 of the Master Agreement
shall apply to any amounts that the Construction Agent is requested
to pay pursuant to this Section 3.4.
(vii) Section 5.1 is hereby amended by adding the phrase
"provided, however, that this sentence shall not apply to any Second
Group Property" at the end of the last sentence in such section; and
(viii) Section 5.3(a) is hereby amended by adding the following
at the end thereof:
"In the event that the Construction Agent does not exercise
its option to purchase such Leased Property or Properties, if such
Leased Property is a Second Group Property, the Construction Agent
shall pay to the Lessor the Construction Failure Payment(s)
therefor within five (5) Business Days of the demand therefor by
the Lessor, and shall surrender and return such Leased Property or
Properties to the Lessor or its designee in accordance with the
terms of Section 14.8 of the Lease. In the event that the
Construction Agent returns any Leased Property to the Lessor
pursuant to the previous sentence, the Construction Agent shall
take such action as the Lessor may reasonably request in order to
transfer to the Lessor (or its designee) all of the Construction
Agent's rights and claims in, to and under the related Construction
Contract(s), Architect's Agreement(s), all agreements, security
deposits, guaranties and surety bonds related thereto and all
governmental permits related to such Construction, and the
Construction Agent shall provide to the Lessor copies of all books,
records and documentation with respect to the foregoing."
Section 9. Loan Agreement. The Loan Agreement is hereby amended
as follows:
(i) Section 3.2(a) is hereby amended by adding the phrase "or
the Lessee exercise of its option to purchase such Leased Property under
Section 5.3 of the Construction Agency Agreement" at the end of such
paragraph;
(ii) Section 3.3 is hereby amended by adding the following
sentence at the end thereof: "With respect to any Second Group Property,
the payment by the Lessee of the Construction Failure Payment with
respect thereto pursuant to the Construction Agency Agreement shall be
applied by the Agent first, to the accrued and unpaid interest on, and
the outstanding principal of, the A Loans in respect of such Second Group
Property, second, to the accrued and unpaid interest on, and outstanding
principal of, the B Loans related to such Second Group Property and
third, to the accrued and unpaid Yield on, and outstanding Lessor
Invested Amount related to such Second Group Property.";
(iii) Section 3.4 is hereby amended by inserting the phrase "or
sold after a return to the Lessor pursuant to the Construction Agency
Agreement," after the phrase "Section 14.6 or 14.7 of the Lease," where
it appears in the fifth line thereof;
(iv) Section 4.2 is hereby amended by adding the phrase ", the
Construction Agency Agreement" after the phrase "received under the
Lease" where it appears in the first and third sentences thereof; and
(v) Section 4 is hereby amended by adding a new Section at the
end thereof as follows:
SECTION 4.4 Indemnity by Lessor. During the
Construction Term for any Second Group Property, Lessor
hereby indemnifies each Lender and its Affiliates,
successors, permitted assigns, permitted transferees,
employees, officers, directors and agents from and against
any and all Claims that may be imposed on, incurred by or
asserted or threatened to be asserted against, any such
Person, arising out of or related to such Second Group
Property, or the leasing or financing thereof; it being
understood that the foregoing provision is subject to Section
4.2.
Section 10. Notes. The Notes issued by the Lessor on the Initial
Closing Date shall be replaced with an A Note and a B Note issued by the
Lessor to the Agent, for the ratable benefit of the Lenders, in
substantially the form of Exhibits A and B hereto, respectively; upon
such replacement, such original Notes shall be deemed to be cancelled.
Any reference to the Notes in the Operative Documents shall be deemed to
refer to such replacement Notes.
Section 11. Guaranty; Representations. The Lessee hereby affirms
its obligations under the Guaranty Agreement after giving effect to this
Amendment. The Lessee hereby represents and warrants that, after giving
effect to this Amendment, (i) no Event of Default or Potential Event
Default has occurred and is continuing or will result from this
Amendment, (ii) there shall not have occurred any event that could
reasonably be expected to have a Material Adverse Effect since June 1,
1996 and (iii) each representation and warranty of the Lessee contained
in the Master Agreement and the other Operative Documents is true and
correct in all material respects on the date hereof as though made on and
as of the date hereof, except to the extent such representations or
warranties relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
Section 12. Conditions. The effectiveness of this Amendment shall
be conditioned upon the receipt by the Agent of the following documents,
each of which shall be satisfactory in form and substance to the Agent:
(i) the replacement Notes referred to in Section 10 of this Amendment
executed by the Lessor; (ii) a certificate of the Secretary or an
Assistant Secretary of the Lessee attaching to it and certifying as to
(A) the Board of Directors' (or appropriate committee's) resolution duly
authorizing the execution, delivery and performance by it of this
Amendment,(B) the incumbency and signatures of persons authorized to
execute and deliver this Amendment on its behalf and (C) the continued
accuracy and completeness of its articles of incorporation and bylaws
previously delivered on the Initial Closing Date; and (iii) the opinion
of Powell, Goldstein, Xxxxxxx and Xxxxxx LLP, substantial in the form set
forth in Exhibit C hereto.
Section 13. Miscellaneous. This Amendment shall be governed by,
and construed in accordance with, the laws of the state of Georgia. This
Amendment may be executed by the parties hereto and separate
counterparts, (including by facsimile), each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one in the same agreement. The Operative Documents,
as amended hereby, remain in full force and effect. Any reference to any
Operative Document from and after the date hereof shall be deemed or
referred to such Operative Documents and amended hereby, unless otherwise
expressly stated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective duly authorized officers as of the
year first above written.
RUBY TUESDAY, INC.
By:
Title:
ATLANTIC FINANCIAL GROUP, LTD.
By: Atlantic Financial Managers, Inc.,
its General Partner
By:
Title:
SUNTRUST BANK, ATLANTA, as the Agent and
as a Lender
By:
Title:
By:
Title:
FIRST AMERICAN NATIONAL BANK, as a
Lender
By:
Title:
NATIONSBANK, N.A. (as successor to
Xxxxxxx Bank, N.A.), as a Lender
By:
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:
Title:
FIRST UNION NATIONAL BANK, as a Lender
By:
Title:
WACHOVIA BANK, N.A. (as successor to
Wachovia Bank of Georgia, N.A.), as
a Lender
By:
Title:
AMSOUTH BANK, as a Lender
By:
Title:
THE FUJI BANK, LIMITED, as a Lender
By:
Title:
SCHEDULE 2.2
AMOUNT OF EACH FUNDING PARTY'S COMMITMENT
Lessor Commitment Percentage: 3%
Lessor Commitment: $2,400,000
Lender Commitment Percentages:
SunTrust Bank, Atlanta 14.5%
AmSouth Bank 8.4375%
Nationsbank, N.A. 14.6875%
First American National Bank 15.625%
Wachovia Bank, N.A. 11.25%
Hibernia National Bank 13.75%
First Union National Bank 13.75%
The Fuji Bank, Limited 5.0%
Lender Commitments: A Loans B Loans
SunTrust Bank, Atlanta $10,164,948.45 $1,435,051.55
AmSouth Bank 5,914,948.45 835,051.55
Nationsbank, N.A. 10,296,391.75 1,453,608.25
First American National
Bank 10,953,608.25 1,546,381.75
Wachovia Bank, N.A. 7,886,597.94 1,113,402.06
Hibernia National Bank 9,639,175.26 1,360,824.74
First Union National Bank 9,639,175.26 1,360,824.74
The Fuji Bank, Limited 3,505,154.64 494,845.36
Total $68,000,000.00 $9,600,000.00
