Execution Copy
THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN FACILITY AGREEMENT AND GUARANTY
THIS THIRD AMENDMENT TO LOAN FACILITY AGREEMENT AND GUARANTY (this "Third
Amendment"), dated as of October 17, 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 by
the Second Amendment to Amended and Restated Loan Facility Agreement and
Guaranty, dated as of October 10, 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 October 9, 2002, (the "Extension Date") and Sponsor, Servicer and
Participants executing this Amendment (the "Continuing Participants"), including
without limitation SunTrust Bank as assignee of the Participating Commitment of
Hibernia National Bank, have agreed to extend their respective Participating
Commitments subject to 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 2.1 of the Loan Facility Agreement. Section 2.1 of the
Loan Facility Agreement is hereby amended by replacing the subsection (a) .
thereof 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 1, 2001 and ending on October 9,
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").
2. Effectiveness. This Third Amendment shall become effective as of the date
first above written (the "Third Amendment Date") when this Third Amendment shall
have been executed and delivered by Sponsor, the Servicer and all Participants
to the Servicer.
3. 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. 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.
d. No Unmatured Credit Event or Credit Event has occurred and is continuing
as of the Third Amendment Date.
4. 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 Third 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 Third
Amendment or any investigation by the Participants or the Servicer.
5. 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.
6. 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.
7. 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.
8. 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.
9. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
10. Entire Understanding. This Third Amendment sets forth the entire under-
standing 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.
11. Counterparts. This Third Amendment may be executed in any number of counter
parts 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 Third Amendment to be
duly executed as of the day and year first above written.
RUBY TUESDAY, INC.
By:/s/ Xxxxxxxxxx Xxxxx Xxxxx
Name: Xxxxxxxxxx Xxxxx Xxxxx
Title: Senior Vice President
SUNTRUST BANK
By:/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Director
Participating Commitment: $15,750,000.00
Pro Rata Share: 32.8125%
AMSOUTH BANK
By:/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Participating Commitment: $12,750,000
Pro Rata Share: 26.5625%
BANK OF AMERICA N.A.
By:/s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Senior Vice President
Participating Commitment: $8,250,000.00
Pro Rata Share: 17.1875%
FIRST UNION NATIONAL BANK
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Participating Commitment: $6,750,000.00
Pro Rata Share: 14.0625%
WACHOVIA BANK N.A.
By:/s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
Participating Commitment: $4,500,000.00
Pro Rata Share: 9.375%
