EXECUTION COUNTERPART
FIRST AMENDMENT TO MASTER AGREEMENT
THIS FIRST AMENDMENT TO MASTER AGREEMENT (this "Amendment") dated as
of March 4, 1998, by and among RUBY TUESDAY, INC., a Georgia corporation
("Lessee"); ATLANTIC FINANCIAL GROUP, LTD., a Texas limited partnership
(the "Lessor"), AMSOUTH BANK OF ALABAMA, an Alabama banking corporation
("Amsouth"), XXXXXXX BANK, N.A., a national banking association
("Xxxxxxx"), FIRST AMERICAN NATIONAL BANK, a national banking association
("First American"), WACHOVIA BANK OF GEORGIA, N.A., a national banking
association ("Wachovia"), HIBERNIA NATIONAL BANK, a national banking
association ("Hibernia"), FIRST TENNESSEE BANK, a Tennessee banking
corporation ("First Tennessee") and SUNTRUST BANK, ATLANTA, a Georgia
banking corporation ("SunTrust"; Amsouth, Xxxxxxx, First American,
Wachovia, SunTrust, Hibernia and First Tennessee, together with any other
financial institution that becomes a party hereto as a lender,
collectively referred to as "Lenders" and individually as a "Lender"),
and SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as agent for
the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, in order to complete certain transactions whereby the
Lessee leases land from the Lessor and the Lessor finances Lessee's
construction of buildings thereon, the Lessee, the Lessor, the Lenders
and the Agent entered into that certain Master Agreement, dated as of May
30, 1997 (as amended or modified, the "Master Agreement");
WHEREAS, the Lessee has requested, and the Lessor, the Lenders and
the Agent have agreed to enter into certain amendments to the Master
Agreement;
WHEREAS, the Lessee, Lessor, the Lenders and the Agent wish to enter
into this Amendment to set forth their understandings regarding the
amendments.
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:
SECTION I. Definitions. All terms used herein without definition
shall have the meanings set forth for such terms in the Master Agreement.
SECTION II. Amendments.
1. Amendment to Section 5.1 of the Master Agreement. Section
5.1 of the Master Agreement is hereby amended by deleting Section
5.1(h)(iii) thereof and substituting the following in lieu thereof:
"(iii) Consolidated Net Worth. Maintain at all times
Consolidated Net Worth in an amount not less than the sum of (i)
$180,000,000, plus (ii) an amount equal to 100% of the Net Proceeds of
all issuances of stock, warrants, Subordinated Debt, or other equity of
the Lessee issued following the date hereof."
2. Amendment to Section 5.2 of the Master Agreement. Section
5.2 of the Master Agreement is hereby amended by deleting Section 5.2(c)
thereof and substituting the following in lieu thereof:
"(c) Mergers, Sales, Etc. (A) Merge or consolidate with any
other Person, except that this Section 5.2(c) shall not apply to (i) any
merger or consolidation of Lessee with any other Person provided that the
Lessee is the surviving corporation after such merger or consolidation,
(ii) any merger or consolidation of any of the Lessee's Subsidiaries with
any other Person provided that any such Subsidiary shall be the surviving
corporation after such merger or consolidation or (iii) any merger
between Subsidiaries of Lessee, and (B) sell, lease, transfer or
otherwise dispose of its accounts, property or other assets (including
capital stock of any Subsidiary of Lessee), except that this Section
5.2(c) shall not apply to (i) any sale, lease, transfer or other
disposition of assets of any Subsidiary of the Lessee to the Lessee or
any of its Material Subsidiaries, (ii) sales of inventory in the ordinary
course of business of the Lessee and its Subsidiaries, (iii) disposition
of equipment or inventory determined in good faith to be obsolete or
unusable by the Lessee or its Subsidiaries, or (iv) any other sale of the
Lessee's assets during the Lease Term (excluding the sale of any assets
pertaining to Mozzarella's or Tia's units or any Ruby Tuesday's units
pursuant to the Lessee's Franchise Partner Program) with an aggregate
book value, when aggregated with all other such sales since May 30, 1997,
not exceeding 7.5% of the aggregate book value of all of the Lessee's
assets on the date of such transfer; provided, however, that no
transaction pursuant to clause (A), clause (B)(i) or clause B(iv) above
shall be permitted if a Potential Event of Default or Event of Default
exists at the time of such transaction or would exist as a result of such
transaction."
3. Amendments to Appendix A of the Master Agreement. Appendix
A of the Master Agreement is hereby amended by adding the following new
definitions to such Appendix A in alphabetical order:
"Franchise Partner Program" shall mean the optional financing
and business structuring program offered by the Sponsor to a limited
number of qualified restaurant operators, such operators to be determined
by the Sponsor in its sole discretion, which provides such restaurant
operators a business structure for organizing, owning and funding the
establishment and operation of at least 8 to 10 restaurants doing
business under operating concepts owned by Sponsor.
"Mozzarella's" shall mean "Mozzarella's American Cafes," an
operating concept of the Sponsor.
"Ruby Tuesday" shall mean "Ruby Tuesday," an operating
concept of Sponsor.
"Tia's" shall mean "Tia's Mexican Restaurants," an operating
concept of Tias, Inc., a Texas corporation, a wholly owned subsidiary of
Sponsor.
SECTION III. Conditions of Effectiveness. This Amendment shall
become effective as of the date first above written (the "Effective
Date") when this Amendment shall have been executed and delivered by
Lessee and the Required Lenders to the Agent.
SECTION IV. Representations and Warranties of Lessee. Lessee,
without limiting the representations and warranties provided in the
Master Agreement, represents and warrants to the Lenders and the Agent as
follows:
(a) The execution, delivery and performance by Lessee of this
Amendment are within Lessee'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 Lessee
or any indenture, agreement or other instrument to which Lessee is a
party or by which Lessee 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 Amendment constitutes the legal, valid and binding
obligations of Lessee, enforceable against Lessee in accordance with
their respective terms.
(c) No Potential Event of Default or Event of Default has
occurred and is continuing as of the Effective Date.
SECTION V. Survival. Each of the foregoing representations and
warranties and each of the representations and warranties made in the
Master 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 Lessee under the Master Agreement, and it
shall be an Event of Default 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 Master Agreement (including those made herein) shall survive
and not be waived by the execution and delivery of this Amendment or any
investigation by the Lenders or the Agent.
SECTION VI. No Waiver, Etc. Lessee hereby agrees that nothing
herein shall constitute a waiver by the Lenders of any Event of Default,
whether known or unknown, which may exist under the Master Agreement.
Lessee hereby further agrees that no action, inaction or agreement by the
Lenders, including without limitation, any indulgence, waiver, consent or
agreement altering the provisions of the Master Agreement which may have
occurred with respect to the non-payment of any obligation during the
terms of the Master Agreement or any portion thereof, or any other matter
relating to the Master Agreement, shall require or imply any future
indulgence, waiver, or agreement by the Lenders. In addition, Lessee
acknowledges and agrees that it has no knowledge of any defenses,
counterclaims, offsets or objections in its favor against any Lender with
regard to any of the obligations due under the terms of the Master
Agreement as of the date of this Amendment.
SECTION VII. Ratification of Master Agreement. Except as expressly
amended herein, all terms, covenants and conditions of the Master
Agreement and the other Operative Documents shall remain in full force
and effect, and the parties hereto do expressly ratify and confirm the
Master Agreement as amended herein. All future references to the Master
Agreement shall be deemed to refer to the Master Agreement as amended
hereby.
SECTION VIII. Binding Nature. This Amendment shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
successors, successors-in-titles, and assigns.
SECTION IX. Costs, Expenses and Taxes. Lessee agrees to pay on
demand all reasonable costs and expenses of the Agent in connection with
the preparation, execution and delivery of this 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 Agent with respect thereto and with respect to advising the Agent as
to its rights and responsibilities hereunder and thereunder. In
addition, Lessee shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of
this Amendment and the other instruments and documents to be delivered
hereunder, and agrees to save the Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes.
SECTION X. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION XI. Entire Understanding. This 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.
SECTION XII. Counterparts. This 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
through their authorized officers as of the date first above written.
RUBY TUESDAY, INC., as Lessee
By: /s/ J. Xxxxxxx Xxxxxxxxxx
Title: C.F.O
Attest: /s/ Xxxxxx X. Xxxx
Secretary
[CORPORATE SEAL]
ATLANTIC FINANCIAL GROUP, LTD., as Lessor
By:
Title:
Attest:
Secretary
SUNTRUST BANK, ATLANTA, as Agent
By:
Title:
By:
Title:
SUNTRUST BANK, ATLANTA, as a Lender
By:
Title:
By:
Title:
AMSOUTH BANK OF ALABAMA, as a Lender
By:
Title:
FIRST AMERICAN NATIONAL BANK, as a Lender
By:
Title:
WACHOVIA BANK, N.A., as a Lender
By:
Title:
XXXXXXX BANK, N.A., as a Lender
By:
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:
Title:
FIRST TENNESSEE BANK, as a Lender
By:
Title:
