EXHIBIT 10.24
AMENDED AND RESTATED
TAX ALLOCATION AND INDEMNIFICATION AGREEMENT
This Amended and Restated Tax Allocation and Indemnification Agreement
dated as of March 2, 1996, is entered into by and among Xxxxxxxx Restaurants,
Inc., a Delaware corporation ("Xxxxxxxx") and each of
Custom Management Corporation of Ruby Tuesday, Inc.
Pennsylvania
Ruby Tuesday (Georgia), Inc.,
Custom Management Corporation
Xxxxxxxx Fresh Cooking, Inc.
Xxxx X. Xxxx & Associates, Inc.
Xxxxxxxx Health Care, Inc.
Xxxxxxxx International, Inc.
Tias, Inc.
Xxxxxxxx Custom Management Corporation of Pennsylvania
(individually, a "Subsidiary" and, collectively, the "Subsidiaries").
WITNESSETH:
WHEREAS Xxxxxxxx adopted a Plan of Distribution Agreement dated
September 26, 1995 (the "Plan of Distribution") by which it contemplated a
distribution to its shareholders of its Family Dining Restaurant Business and
Health Care Food Service Business;
WHEREAS, Xxxxxxxx Fresh Cooking, Inc., a Georgia corporation ("MFCI")
and Xxxxxxxx Health Care, Inc., a Georgia corporation ("MHCI") are newly-
created, wholly-owned subsidiaries of RTI that as of January 1, 1996 acquired
the assets and liabilities of Morrison's Family Dining Restaurant Business and
the Health Care Food Service Management Business, respectively;
WHEREAS, pursuant to the Plan of Distribution, Xxxxxxxx will be merged
into Ruby Tuesday (Georgia), Inc., a Georgia corporation ("RTI"), and RTI will
be the successor and Ruby Tuesday, Inc., a Delaware corporation will be merged
into RTI, and RTI will be the successor;
WHEREAS, Xxxxxxxx, as the common parent, and the Subsidiaries, other
than MFCI, MHCI and RTI, were members of an "affiliated group", as that term is
defined in Section 1504 of the Code, which filed consolidated federal income tax
returns and have entered into the Federal Tax Allocation Agreement dated January
1, 1995, under which the parties have agreed as to the allocation of any income
tax liability related to such consolidated federal income tax returns;
WHEREAS, Xxxxxxxx, pursuant to the Plan of Distribution, has agreed
to the distribution to the holders of its common stock of all of the outstanding
shares of the common stock of each of MHCI and MFCI (the "Distribution"), and
Xxxxxxxx, MFCI, and MHCI have agreed to enter into certain agreements, including
a Distribution Agreement dated as of March 2, 1996 among Xxxxxxxx, RTI, MHCI,
and MFCI (the "Distribution Agreement") and this Amended and Restated Tax
Allocation and Indemnification Agreement, setting forth their respective rights,
duties, and obligations with respect to liabilities of the parties, including
Tax liabilities, attributable to events that occurred in periods prior to the
Distribution;
WHEREAS, as a consequence of the Distribution, MFCI and MHCI will no
longer be subsidiaries of Xxxxxxxx, or RTI after the merger and, thus, will no
longer be members of Morrison's or RTI's Affiliated Group;
WHEREAS, pursuant to Treas. Reg. Section 1.1502-6, Xxxxxxxx, RTI, and
each Subsidiary will be severally liable for the consolidated federal income tax
liability of the Xxxxxxxx Group or the RTI Group for any period during which the
Subsidiary was a member of the Xxxxxxxx Group or the RTI Group during any part
of a consolidated return year; and
WHEREAS, RTI, as the successor by merger to Xxxxxxxx, MFCI, or MHCI
might be liable for certain Taxes as a result of the transfer of assets and
liabilities to MFCI and MHCI, and the Distribution; and
WHEREAS, Xxxxxxxx, RTI, MFCI, and MHCI desire to set forth their
rights and obligations with respect to foreign, federal, state and local taxes
due for periods both before and after the Distribution and with respect to
certain tax liabilities that may be asserted in connection with the
Distribution.
NOW THEREFORE, RTI, as successor by merger to Xxxxxxxx, on behalf of
itself and Members of the RTI Affiliated Group (other than MFCI and MHCI, their
respective subsidiaries), and MFCI, on behalf of itself and members of the MFCI
Group, and MHCI, on behalf of itself and members of the MHCI Group, in
consideration of the mutual covenants contained herein, agree as follows:
ARTICLE I.
Definitions
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For purposes of this Agreement, the following definitions shall apply:
1.1 "Affiliated Group" means an affiliated group of corporations
eligible to file a Consolidated Return within the meaning of Section 1504(a)
(determined without regard to the
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exceptions contained in Section 1504(b)) of the Code, or under any comparable
provision of foreign, state, or local law, for the taxable period in question.
1.2 "Business of MFCI" means the assets, including stock of
subsidiaries, liabilities, and business attributable to the Family Dining
Restaurant Business as described in the Distribution Agreement.
1.3 "Business of MHCI" means the assets, including stock of
subsidiaries, liabilities, and business attributable to the Health Care Food
Service Management Business as described in the Distribution Agreement.
1.4 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.5 "Consolidated Return" means a consolidated United States federal
income tax return of the Xxxxxxxx Group for any consolidated return year
beginning before the Date of Distribution and any consolidated or combined
state, county, or local income tax return of any Members of the Xxxxxxxx Group
for a taxable year beginning before the Date of Distribution.
1.6 "Date of Distribution" or "Distribution Date" means 12:00
midnight EST on March 9, 1996, at which time the Xxxxxxxx Group ceases to own
80% of the vote and value of the stock of each of MFCI and MHCI within the
meaning of Section 1504 of the Code and thus the date on which both MFCI and
MHCI cease to be members of the Xxxxxxxx Group, or the RTI Group as successor to
the Xxxxxxxx Group.
1.7 "Expenses" means out-of-pocket expenses paid to third party
providers and shall not include any overhead or indirect costs.
1.8 "Final Determination" means the final resolution of liability for
any Tax for a taxable period (i) by IRS Form 870 or 870-AD (or any successor
forms thereto), on the date of acceptance by or on behalf of the IRS, or by a
comparable agreement form under the laws of other jurisdictions, except that a
Form 870 or 870-AD or comparable form that reserves the right of the taxpayer to
file a claim for refund and/or the right of the taxing authority to assert a
further deficiency shall not constitute a Final Determination; (ii) by a
decision, judgment, decree, or other order by a court of competent jurisdiction
which has become final and unappealable; (iii) by a closing agreement or offer
in compromise under Section 7121 or 7122 of the Code or any subsequently enacted
corresponding provisions of the Code, or comparable agreements under the laws of
other jurisdictions; (iv) by an allowance of a refund or credit in respect of an
overpayment of Tax, but only after the expiration of all periods during which
such refund may be recovered (including by way of offset) by the Tax imposing
jurisdiction; or (v) by any other final disposition by reason of the expiration
of the applicable statutes of limitations.
1.9 "IRS" means the Internal Revenue Service.
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1.10 "Letter Ruling" means that letter to be received from the IRS
pursuant to the request for ruling dated October 18, 1995 (as supplemented
thereafter), submitted by Xxxxxxxx to the IRS with respect to the tax
consequences of the Distribution.
1.11 "Member" or "Members" means the Parties to this agreement that
join in the filing of a Consolidated Return for a particular period.
1.12 "MFCI Contribution" shall mean the transfer to MFCI by Xxxxxxxx
of the Business of MFCI pursuant to the Distribution Agreement.
1.13 "MFCI Distribution" shall mean the distribution by Xxxxxxxx of
the stock of MFCI to Xxxxxxxx shareholders pursuant to the Distribution
Agreement.
1.14 "MFCI Group" means (i) with respect to periods prior to the Date
of Distribution, MFCI and/or any one or more of its directly or indirectly
wholly-owned subsidiaries and, (ii) with respect to periods after the Date of
Distribution, the Affiliated Group of which MFCI or any successor of MFCI is the
common parent.
1.15 "MFCI Tainting Act" means any breach of a representation or
covenant by any Member of the MFCI Group relating to the qualification of the
Distribution as a distribution described in Section 355 of the Code which is
given solely by MFCI in connection with the Tax Certificate dated March 8, 1996
or the Letter Ruling obtained by Xxxxxxxx or RTI as the successor to Xxxxxxxx,
unless either (a) RTI, as the successor to Xxxxxxxx, consents in writing to such
transaction, or (b) RTI is provided (at MFCI's expense) with either an IRS
ruling or an opinion of tax counsel (acceptable to RTI) which is in substance
reasonably satisfactory to RTI that such transaction will not cause the
Distribution to fail to qualify as a distribution described in Section 355 of
the Code.
1.16 "MHCI Contribution" shall mean the transfer to MHCI by Xxxxxxxx
of the Business of MHCI pursuant to the Distribution Agreement.
1.17 "MHCI Distribution" shall mean the distribution by Xxxxxxxx of
the stock of MHCI to Xxxxxxxx shareholders pursuant to the Distribution
Agreement.
1.18 "MHCI Group" means (i) with respect to periods prior to the Date
of Distribution, MHCI and/or any one or more of its directly or indirectly
wholly owned subsidiaries and, (ii) with respect to periods after the Date of
Distribution, the Affiliated Group of which MHCI or any successor of MHCI is the
common parent.
1.19 "MHCI Tainting Act" means any breach of a representation or
covenant by any Member of the MHCI Group relating to the qualification of the
Distribution as a distribution described in Section 355 of the Code which is
given solely by MHCI in connection with the Tax Certificate dated March 8, 1996,
or the Letter Ruling obtained by Xxxxxxxx, or RTI as the
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successor to Xxxxxxxx, unless either (a) RTI, as the successor to Xxxxxxxx,
consents in writing to such transaction or (b) RTI is provided (at MHCI's
expense) with either an IRS ruling or an opinion of tax counsel (acceptable to
RTI), which is in substance reasonably satisfactory to RTI that such transaction
will not cause the Distribution to fail to qualify as a distribution described
in Section 355 of the Code.
1.20 "Xxxxxxxx Group" means, for each taxable period, the Affiliated
Group of which Xxxxxxxx is the common parent.
1.21 "Party" means any of the parties to this Agreement.
1.22 "Personal and Real Property Taxes" mean all Taxes which are
assessed upon the value of real or personal property owned, leased, rented or
used by any member of the Xxxxxxxx Group, the RTI Group, the MFCI Group, or the
MHCI Group, including, but not limited to, real and personal property taxes, use
taxes, value added taxes or other ad valorem taxes.
1.23 "Restructuring Taxes" means any Taxes resulting from either the
transfer of the Business of MFCI or the transfer of the Business of MHCI, or
both, pursuant to the Distribution Agreement and the Distribution of either the
stock of MFCI or the stock of MHCI, or both, pursuant to the Distribution
Agreement, including, without limitation, any sales, use or other transfer Taxes
or any Tax imposed pursuant to or as a result of Section 311 of the Code.
1.24 "RTI Group" means, for each taxable period, the Affiliated Group
of which RTI or any successor of RTI is the common parent.
1.25 "RTI Tainting Act" means any breach of a representation or
covenant by any Member of the RTI Group or the Xxxxxxxx Group (other than MFCI
or a Member of the MFCI Group and MHCI or a Member of the MHCI Group) relating
to the qualification of the Distribution as a distribution described in Section
355 of the Code which is given solely by Xxxxxxxx or RTI in connection with the
IRS ruling obtained by Xxxxxxxx, as the predecessor to RTI.
1.26 "Tax Benefit" means any Tax Item which decreases Taxes paid or
payable.
1.27 "Tax or Taxes" means all forms of taxation, whenever created or
imposed, whether domestic or foreign, and whether imposed by a nation, locality,
municipality, government, state, federation, or other body (a "Taxing
Authority"), and without limiting the generality of the foregoing, shall include
net income, alternative or add-on minimum tax, gross income, sales, use,
franchise, gross receipts, value added, ad valorem, profits, license, payroll,
withholding, social security, unemployment insurance, employment, property,
transfer, recording, excise, severance, stamp, occupation, premium, windfall
profit, custom duty, or other tax, governmental fee or other like assessment or
charge of any kind whatsoever, together with
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any related interest, penalties or other additions to tax, or additional amounts
imposed by any such Taxing Authority.
1.28 "Tax Controversy" means any audit, examination, dispute, suit,
action, litigation or other judicial or administrative proceeding by or against
the IRS or any other Taxing Authority.
1.29 "Tax Item" means any item of income, gain, loss, deduction,
credit, recapture of credit or any other item, including, but not limited to, an
adjustment under Code Section 481 resulting from a change in accounting method,
which increases or decreases Taxes paid or payable.
1.30 "Tax Returns" means all reports, estimates, declarations of
estimated tax, information statements, returns or other documents required to be
filed in connection with any Taxes, including but not limited to requests for
extensions of time, information statements and reports, claims for refund, and
amended returns.
ARTICLE II.
Representations and Covenants
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2.1 Xxxxxxxx and RTI. In connection with that certain Tax
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Certificate dated, March 8, 1996, Xxxxxxxx and RTI make the following
representations and covenants:
(a) The Board of Directors of Xxxxxxxx (RTI, after the Distribution)
will not take any steps in furtherance of a plan to sell the stock of
or liquidate Xxxxxxxx (RTI, after the Distribution), to participate in
a merger with any other corporation, or to sell or otherwise dispose
of any of Morrison's (RTI's, after the Distribution) assets, following
the Distribution in a transaction that would be considered to be
evidence of a device as defined in Treas. Reg. Section 1.355-
2(d)(2)(iii).
(b) The Board of Directors of Xxxxxxxx (RTI, after the Distribution)
will not take any steps in furtherance of a plan to sell the stock of
or liquidate Xxxxxxxx (RTI, after the Distribution), to participate in
a merger with any other corporation, or to sell or otherwise dispose
of any of Morrison's (RTI's, after the Distribution) assets, following
the Distribution in a transaction that would result in those Xxxxxxxx
(RTI, after the Distribution) shareholders who were shareholders as of
the Distribution Date to not continue to own more than 50% by value of
the stock of Xxxxxxxx (RTI, after the Distribution) that was owned by
such shareholders immediately before the Distribution.
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2.2 MFCI and the MFCI Group. In connection with that certain Tax
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Certificate dated, March 8, 1996, MFCI and the MFCI Group make the following
representations and covenants:
(a) Not later than three (3) months following the Distribution, MFCI
will be establish an employer stock ownership plan ("ESOP"), within
the meaning of Sections 409(l) and 4975 of the Internal Revenue Code
(the "Code"), which will be funded with the stock of MFCI. MFCI will
sell newly issued voting common stock that, when added to the shares
of MFCI stock transferred to the MFCI ESOP by the Xxxxxxxx Restaurants
Inc. Salary Deferral Plan, represents not less than 3% of the then
outstanding MFCI common stock. The MFCI ESOP will issue a note to
MFCI in exchange for the newly issued MFCI common stock. The MFCI ESOP
note will be amortized over a period of not more than 10 years.
(b) MFCI also will be establish other compensatory stock ownership
programs for its management and employees which will provide MFCI's
work force with the opportunity to acquire additional MFCI stock
representing not less than 10% of the then outstanding MFCI common
stock.
(c) The Board of Directors of MFCI will not take any steps in
furtherance of a plan to sell the stock of or liquidate MFCI, to
participate in a merger with any other corporation, or to sell or
otherwise dispose of any of MFCI's assets, following the Distribution
in a transaction that would be considered to be evidence of a device
as defined in Treas. Reg. Section 1.355-2(d)(2)(iii).
(d) The Board of Directors of MFCI will not take any steps in
furtherance of a plan to sell the stock of or liquidate MFCI, to
participate in a merger with any other corporation, or to sell or
otherwise dispose of any of MFCI's assets, following the Distribution
in a transaction that would result in those MFCI shareholders who were
shareholders as of the Distribution Date to not continue to own more
than 80% by value of the stock of MFCI that was owned by such
shareholders immediately before the Distribution.
2.3 MHCI and the MHCI Group. In connection with that certain Tax
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Certificate dated, March 8, 1996, MHCI and the MHCI Group make the following
representations and covenants:
(a) Not later than three (3) months following the Distribution, MHCI
will be establish an employer stock ownership plan ("ESOP"), within
the meaning of Sections 409(l) and 4975 of the Internal Revenue Code
(the "Code"), which will be funded with the stock of MHCI. MHCI will
sell newly issued voting common stock that, when added to the shares
of MHCI stock transferred to the MHCI ESOP by the Xxxxxxxx Restaurants
Inc. Salary Deferral Plan, represents not less
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than 3% of the then outstanding MHCI common stock. The MHCI ESOP will
issue a note to MHCI in exchange for the newly issued MHCI common
stock. The MHCI ESOP note will be amortized over a period of not more
than 10 years.
(b) MHCI also will be establish other compensatory stock ownership
programs for its management and employees which will provide MHCI's
work force with the opportunity to acquire additional MHCI stock
representing not less than 10% of the then outstanding MHCI common
stock.
(c) The Board of Directors of MHCI will not take any steps in
furtherance of a plan to sell the stock of or liquidate MHCI, to
participate in a merger with any other corporation, or to sell or
otherwise dispose of any of MHCI's assets, following the Distribution
in a transaction that would be considered to be evidence of a device
as defined in Treas. Reg. Section 1.355-2(d)(2)(iii).
(d) The Board of Directors of MHCI will not take any steps in
furtherance of a plan to sell the stock of or liquidate MHCI, to
participate in a merger with any other corporation, or to sell or
otherwise dispose of any of MHCI's assets, following the Distribution
in a transaction that would result in those MHCI shareholders who were
shareholders as of the Distribution Date to not continue to own more
than 80% by value of the stock of MHCI that was owned by such
shareholders immediately before the Distribution.
2.4 Letter Ruling. Xxxxxxxx, RTI, MFCI, and MHCI acknowledge that
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Xxxxxxxx has submitted a request for ruling to the IRS as to the tax
consequences of the Distribution and that, as of the date of this Agreement,
such request is still under consideration by the IRS. In connection with such
request, Xxxxxxxx, RTI, MFCI, and/or MHCI will be called upon to make certain
representations and covenants, as a condition to the receipt of the Letter
Ruling, in addition to those set forth in this Article II. Xxxxxxxx, RTI, MFCI,
and MHCI, acknowledge and agree that, notwithstanding the provisions of Section
9.2, the representations and covenants set forth in Sections 2.1, 2.2, and/or
2.3, as the case may be, shall be supplemented, and such supplement shall be
considered as if it were a part of this original Amended and Restated Tax
Allocation and Indemnification Agreement, by including those representations and
covenants required to be made in connection with the Letter Ruling.
ARTICLE III.
Consolidated Return Tax Liabilities
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3.1 Agent. Xxxxxxxx or RTI, as the successor to Xxxxxxxx, shall be the
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agent for all Subsidiaries that are required or otherwise joining in the filing
of any Consolidated Return filed by the Xxxxxxxx Group or the RTI Group, and
shall be duly authorized to act on behalf of the
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Subsidiaries in connection with the determination of that Affiliated Group's Tax
liability with respect to such Consolidated Return, such agency shall include,
but not be limited to, the preparation and filing of such Consolidated Return,
the payment of the Tax liability with respect to such Consolidated Return
(including the payment of estimated taxes relating to such liability), and,
subject to the provision of Article VI below, the negotiation, compromise,
settlement, and/or appeal or contesting of any Tax assessment relating to a
taxable year for which a Consolidated Return has been filed by the Affiliated
Group, but such agency shall not include any election, consent, or other
document relating to the filing of a Consolidated Return which is specifically
required by the Code or Treasury Regulations thereunder, or comparable provision
of foreign, state, or local law, to be executed by the individual Members.
3.2 Consents, Elections, Etc. Xxxxxxxx, RTI, and each Subsidiary shall
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execute and file such consents, elections, and other documents that may be
required or appropriate for the proper filing of a Consolidated Return for
federal income tax purposes and may execute and file consents, elections, and
other documents that may be required or appropriate for the proper filing of a
Consolidated Return for foreign, state, or local Tax purposes (but only for
those foreign, state, or local Consolidated Returns for which Xxxxxxxx or RTI
would be considered to be the common parent, or equivalent thereof, of the
Affiliated Group).
3.3 Allocation Method. In order to determine the portion of the Tax
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liability (other than Restructuring Taxes) due with respect to any Consolidated
Return filed by an Affiliated Group under this Agreement which is allocable to
an individual Member and/or to determine the amount to which a Member of such
Affiliated Group is entitled as compensation for the use of deductions, a net
operating loss, or tax credits that have been utilized in arriving at the
Consolidated Return Tax liability of such Affiliated Group, the Members agree to
determine and allocate the tax liability of the Affiliated Group among
themselves in the following manner:
(a) The separate return Tax liability or Tax Benefit of each Member
shall be computed by first determining the separate taxable income or
loss, tax credits, alternative minimum taxable income and such other
tax items of such Member that otherwise are taken into account in
determining the Consolidated Return Tax liability or Tax Benefit of
the Affiliated Group, except that, in determining such separate
taxable income, loss or other tax item of a Member, gains, losses,
deductions, tax credits, and all other items taken into account in the
determination of such Tax liability or Tax Benefit that are deferred,
limited, eliminated, or otherwise adjusted under any rule or
regulation relating to the filing of such Consolidated Return shall be
computed in accordance with such Consolidated Return rule or
regulation. Thus, for example, a net operating loss of a Member shall
not be carried forward and utilized in the calculation of separate
company taxable income or loss of the Member unless such net operating
loss has not been utilized in a prior Consolidated Return of the
Affiliated Group and is otherwise available for carryover to the
Consolidated Return of the Affiliated Group for which the Tax
liability is being allocated. Likewise, for example, depreciation
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for each of the Members shall be calculated using the conventions, if
any, adopted under or otherwise required by the Consolidated Return
rules or regulations.
(b) The separate return Tax liability or Tax Benefit of each Member
shall than be computed by multiplying the Member's separate return
taxable income or loss, alternative minimum taxable income or loss, or
such other item (determined in accordance with 2.3(a) above) by the
highest marginal tax rate applicable to the Affiliated Group's
Consolidated Return taxable income, Consolidated Return alternative
minimum taxable income, or such other determination, as the case may
be, and then subtracting or adding, as the case may be, such Member's
separate tax credits or other separate items (again, determined in
accordance with 2.3(a) above) which are taken into account in
determining the Affiliated Group's Consolidated Return Tax liability
or Tax Benefit.
(c) In the event that any item (whether gain, loss, income,
deduction, credit, or otherwise) used in the determination of the
Affiliated Group's Consolidated Return Tax liability or Tax Benefit is
limited and such limitation affects the computation of more than one
Member's separate return Tax liability or Tax Benefit, the limitation
shall be allocated among the affected Members based upon ratios of the
amount of each affected Member's item subject to limitation to the
total of all affected Members' items subject to limitation or, in the
event it is not possible to make an allocation in such manner, the
limitation shall be allocated among the affected Member's in an
equitable manner as determined by Xxxxxxxx or RTI.
(d) In the event that, after making the computations in accordance
with 2.3(a)-(c) above, the Affiliated Group's Consolidated Return Tax
liability is greater than the total of all Members' separate return
Tax liabilities and Tax Benefits, then the excess of such Consolidated
Return Tax liability over the total of all Members' separate return
Tax liabilities and Tax Benefits shall be allocated to the Members
possessing separate return Tax liabilities based upon a ratio of such
separate return Tax liabilities.
(e) In the event that, after making the computations in accordance
with 2.3(a)-(c) above, the Affiliated Group's Consolidated Return Tax
liability is less than the total of all Members' separate return Tax
liabilities and Tax Benefits, then the excess of the total of all
Members' separate return Tax liabilities and Tax Benefits over such
Consolidated Return Tax liability shall be allocated (as a Tax
Benefit) to the Members possessing separate return Tax liabilities
based upon a ratio of such separate return Tax liabilities.
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(f) Xxxxxxxx or RTI shall provide the Members with a computation
(and such other workpapers and documentation supporting such
computation) of the Affiliated Group's consolidated federal income tax
liability and each Member's allocable share of such liability no later
than 10 days after the filing of the consolidated federal income tax
return for such taxable year. A Member may object to such computation
or allocation by presenting Xxxxxxxx with a written explanation of
such objection(s) (which contains specific explanation of the reasons
and support for their objections) within 5 days after receiving the
computation and allocation from Xxxxxxxx. Xxxxxxxx shall revise the
computation and allocation in response to an objection when
appropriate.
3.4 Tax Payments or Benefits. Each Member shall pay to Xxxxxxxx or RTI
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its allocable share of the Affiliated Group's Consolidated Return Tax liability
determined in accordance with Section 3.3 of this Agreement. Xxxxxxxx or RTI
shall pay to each Member who has been allocated a Tax Benefit under Section 3.3
the amount of such Tax Benefit. Payments under this Section 3.4 are to be made
no later than 10 days after Xxxxxxxx or RTI has provided the Members with the
computation provided in Section 3.5 and all objections to such computation have
been resolved provided that in the event of objections, the undisputed portion
shall be paid within such ten day period. Payments due under this Section 3.4
shall be adjusted to take into account any estimated tax payments or benefits
made pursuant to Section 3.5 of this Agreement.
3.5 Estimated Tax Payments. Xxxxxxxx or RTI shall have the right to
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assess Members their share of estimated tax payments to be made on the projected
Consolidated Return Tax liability for any year. Payment to Xxxxxxxx shall be
made not later than 10 days after such assessment. Such Member will receive
credit for such prepayments in the year-end computation under Section 3.4 of
this Agreement.
3.6 Carrybacks and Carry Forwards. If part or all of an unused
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consolidated net operating loss or tax credit is allocated to a Member of an
Affiliated Group pursuant to Treasury Regulations Section 1.1502-79, (or
comparable provision under foreign, state, or local law) and is carried back or
forward to a year in which such Member filed a separate tax return or a
Consolidated Return with another affiliated group, any refund or reduction in
Tax liability arising from the carryback or carryover shall be retained by such
Member (if such refund or reduction goes to a Party other than the Member, then
such Party shall pay over such amount to the Member). Notwithstanding the
foregoing, Xxxxxxxx or RTI shall determine whether an election shall be made not
to carryback any consolidated net operating loss arising in a Consolidated
Return year in accordance with Section 172(b)(3)(C) (or comparable provision
under foreign, state, or local law).
If a former Member of the Xxxxxxxx Affiliated Group incurs a net operating
loss or has excess tax credits for a taxable year subsequent to the period in
which such former Member was a Member of the Xxxxxxxx Affiliated Group, and such
net operating loss or tax credits may be
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carried back to a consolidated federal income tax return for a taxable year in
which such former Member was a Member of the Xxxxxxxx Affiliated Group, then
such former Member may request that Xxxxxxxx file a claim for refund relating to
such net operating loss or tax credit carryback. By Xxxxxxxx agreeing to file a
claim for refund relating to such carryback, and as a condition to Xxxxxxxx
agreeing to file such carryback claim, Xxxxxxxx and the former Member agree that
any refund (including interest) received as a result of the carryback of such
net operating loss and/or tax credit shall be split equally by Xxxxxxxx and such
former Member.
3.7 Recomputed Liability, Refunds. If the Consolidated Return Tax
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liability is adjusted for any taxable period, whether by means of an amended
return, claim for refund, or assessment by a taxing authority, the liability of
each Member shall be recomputed under Section 3.3 of this Agreement to give
effect to such adjustment. Payments of the Members allocable share of such
refund or additional Tax liability shall be made in accordance with Section 3.4
of this Agreement. If any interest is to be paid or received as a result of a
Consolidated Return Tax deficiency or Tax refund, such interest shall be
allocated to the Members in the ratio each Member's change in its share of
Consolidated Return Tax liability bears to the total change in such liability.
Any penalty shall be allocated in the same manner as the (and to the same Party
whose) Tax Item resulted in the imposition of such penalty, or upon such basis
as is reasonable and appropriate in view of all applicable circumstances.
3.8 Restructuring Taxes. Notwithstanding any other provision of this
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Agreement to the contrary, any liability with respect to Restructuring Taxes
shall be allocated as follows:
(a) Liability Resulting from a MFCI Tainting Act. In the event that
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Xxxxxxxx or RTI is liable for Restructuring Taxes because the Distribution
failed to meet the requirements of Section 355 of the Code for nonrecognition of
gain or loss due solely to a MFCI Tainting Act, then MFCI shall be allocated all
liability for: (a) the Restructuring Taxes; (b) any claim against Xxxxxxxx or
RTI for liability to its shareholders arising out of the determination that the
Distribution failed to meet the requirements of Section 355 of the Code for
nonrecognition of gain or loss; and (3) any and all other liability that arises
as a direct consequence of, or would not have otherwise arisen but for, the
determination that Xxxxxxxx or RTI is liable for the Restructuring Taxes as a
result of the MFCI Tainting Act.
(b) Liability Resulting from a MHCI Tainting Act. In the event that
--------------------------------------------
Xxxxxxxx or RTI is liable for Restructuring Taxes because the Distribution
failed to meet the requirements of Section 355 of the Code for nonrecognition of
gain or loss due solely to a MHCI Tainting Act, then MHCI shall be allocated all
liability for: (i) the Restructuring Taxes; (ii) any claim against Xxxxxxxx or
RTI for liability to its shareholders arising out of the determination that the
Distribution failed to meet the requirements of Section 355 of the Code for
nonrecognition of gain or loss; and (iii) any and all other liability that
arises as a direct consequence of, or would not have otherwise arisen but for,
the determination that Xxxxxxxx or RTI is liable for the Restructuring Taxes as
a result of the MHCI Tainting Act.
-12-
(c) Liability Resulting from Both a MFCI Tainting Act and a MHCI Tainting
---------------------------------------------------------------------
Act. In the event that Xxxxxxxx or RTI is liable for Restructuring Taxes
---
because the Distribution failed to meet the requirements of Section 355 of the
Code for nonrecognition of gain or loss due to both a MFCI Tainting Act and a
MHCI Tainting Act, but not a RTI Tainting Act, then MFCI and MHCI shall each be
allocated one-half of all liability for: (i) the Restructuring Taxes; (ii) any
claim against Xxxxxxxx or RTI for liability to its shareholders arising out of
the determination that the Distribution failed to meet the requirements of
Section 355 of the Code for nonrecognition of gain or loss; and (iii) any and
all other liability that arises as a direct consequence of, or would not have
otherwise arisen, but for the determination that Xxxxxxxx or RTI is liable for
the Restructuring Taxes.
(d) Multiple Tainting Acts or an Absence of Tainting Acts. In the event of
-----------------------------------------------------
a determination that the Distribution failed to meet the requirements of Section
355 of the Code for nonrecognition of gain or loss due to (1) any combination of
a MFCI Tainting Act, a MHCI Tainting Act, and a RTI Tainting Act, or (2) a
complete absence of a MFCI Tainting Act, a MHCI Tainting Act, and a RTI Tainting
Act, then all liability for: (i) the Restructuring Taxes; (ii) any claim against
Xxxxxxxx or RTI for liability to its shareholders arising out of the
determination that the Distribution failed to meet the requirements of Section
355 of the Code for nonrecognition of gain or loss; and (iii) any and all other
liability that arises as a direct consequence of, or would not have otherwise
arisen, but for the determination that Xxxxxxxx or RTI is liable for the
Restructuring Taxes; shall be borne one-third (1/3) by RTI, one-third (1/3) by
MFCI, and one-third (1/3) by MHCI, unless such liability is the result of a
combination of at least two, but not three, of a MFCI Tainting Act, a MHCI
Tainting Act, and a RTI Tainting Act, in which case such liability shall be
borne one-half (1/2) each by the two Parties committing such Tainting Acts.
3.9 Indemnification for Taxes. Each Party agrees to pay and to indemnify
-------------------------
and hold any other Party to this Agreement harmless from and against the amount
of Taxes, including (but not limited to) Restructuring Taxes, and all other
liabilities allocated to such Party under this Article III.
ARTICLE IV.
All Other Tax Liabilities
-------------------------
4.1 MFCI Property Taxes. Personal and Real Property Taxes for any period
-------------------
on property of the Business of MFCI shall be the liability of MFCI. MFCI shall
indemnify and hold harmless RTI and any member of the RTI Group from and against
all Personal and Real Property Taxes on property of the Business of MFCI.
4.2 MHCI Property Taxes. Personal and Real Property Taxes for any period
-------------------
on property of the Business of MHCI shall be the liability of MHCI. MHCI shall
indemnify and
-13-
hold harmless RTI and any member of the RTI Group from and against all Personal
and Real Property Taxes on property of the Business of MFCI.
4.3 Other MFCI Taxes. Notwithstanding any other provision of this
----------------
Agreement to the contrary, MFCI shall pay, and shall indemnify and hold harmless
RTI and any Member of the RTI Group from and against:
(a) MFCI's allocable share of Tax liability attributable to any
Consolidated Return to the extent that such liability relates to a period prior
to the existence of MFCI, but is attributable to the Business of MFCI (such
allocable share shall be determined as if MFCI was in existence for and carried
on the Business of MFCI during such period).
(b) Any Tax liability with respect to separate returns for foreign, state
or local taxes on or measured by income of MFCI or a subsidiary of MFCI, or
franchise taxes of MFCI or a subsidiary of MFCI not measured by income, whether
filed by Xxxxxxxx, RTI, MFCI or a subsidiary of MFCI;
(c) Any Tax liability with respect to separate returns for foreign, state
or local taxes on or measured by income filed by Xxxxxxxx with respect to the
Business of MFCI to the extent it results in a Tax Benefit to the MFCI Group
(such as the disallowance of a deduction claimed by Xxxxxxxx in a year beginning
before the date of Distribution that is available to MFCI or a subsidiary of
MFCI in a period after Distribution);
(d) any sales, use, property, transfer, valued added, recordation, excise
and similar Taxes with respect to the Business of MFCI which are not
Restructuring Taxes; and
(e) any payroll Taxes with respect to employees of MFCI or an MFCI
subsidiary or of the Business of MFCI.
4.4 Other MHCI Taxes. Notwithstanding any other provision of this
----------------
Agreement to the contrary, MHCI shall pay, and shall indemnify and hold harmless
RTI and any Member of the RTI Group from and against:
(a) MHCI's allocable share of Tax liability attributable to any
Consolidated Return to the extent that such liability relates to a period prior
to the existence of MHCI, but is attributable to the Business of MHCI (such
allocable share shall be determined as if MHCI was in existence for and carried
on the Business of MHCI during such period).
(b) Any Tax liability with respect to separate returns for foreign, state
or local taxes on or measured by income of MHCI or a subsidiary of MHCI, or
franchise taxes of MHCI or a subsidiary of MHCI not measured by income, whether
filed by Xxxxxxxx, RTI, MHCI or a subsidiary of MHCI;
-14-
(c) Any Tax liability with respect to separate returns for foreign, state
or local taxes on or measured by income filed by Xxxxxxxx with respect to the
Business of MHCI to the extent it results in a Tax Benefit to the MHCI Group
(such as the disallowance of a deduction claimed by Xxxxxxxx in a year beginning
before the date of Distribution that is available to MHCI or a subsidiary of
MHCI in a period after Distribution);
(d) any sales, use, property, transfer, valued added, recordation, excise
and similar Taxes with respect to the Business of MHCI which are not
Restructuring Taxes; and
(e) any payroll Taxes with respect to employees of MHCI or an MHCI
subsidiary or of the Business of MHCI.
ARTICLE V.
Tax Return Preparation
----------------------
5.1 Consolidated Returns. (a) Xxxxxxxx or RTI shall prepare and timely
--------------------
file all Consolidated Returns. The Consolidated Returns shall be prepared and
filed by Xxxxxxxx or RTI in compliance with applicable tax laws and on a basis
that is consistent with any IRS ruling or opinion of tax counsel obtained by
Xxxxxxxx or RTI and with prior Consolidated Returns (to the extent applicable).
(b) MFCI and MHCI shall each be responsible for preparing all information
relating to the MFCI Group or the MHCI Group (as the case may be) that is
necessary for Xxxxxxxx or RTI to prepare and file any Consolidated Return of
which MFCI (or one of its subsidiaries) or MHCI (or one of its subsidiaries) is
a Member of the Affiliated Group filing such Consolidated Return. In the case
of information necessary to file the Consolidated Return for federal income tax
purposes for the period which includes the Distribution, such information shall
be provided to Xxxxxxxx or RTI by June 15, 1996. Information with respect to
any other return shall be provided, at Morrison's or RTI's request, within 120
days after the end of the taxable period to which the return relates. Such
information shall be used as the basis for Morrison's or RTI's preparation of
the Consolidated Return and other Tax Return.
(c) MFCI and its Subsidiaries agree to cooperate with Xxxxxxxx or RTI in
the preparation of any valuation studies or other reports which are appropriate
or necessary for the preparation of Xxxxxxxx or RTI's Consolidated Returns.
(d) MHCI and its Subsidiaries agree to cooperate with Xxxxxxxx or RTI in
the preparation of any valuation studies or other reports which are appropriate
or necessary for the preparation of Xxxxxxxx or RTI's Consolidated Returns.
-15-
5.2 Pre-Distribution Separate Returns. All Tax Returns required to be
---------------------------------
filed for periods beginning before, or beginning and ending on the Distribution
Date, shall be filed by Xxxxxxxx or RTI, except that any Tax Returns pertaining
exclusively to property or operations of the MFCI Group or the Business of MFCI,
or the MHCI Group or the Business of MHCI, shall be filed by MFCI or MHCI (as
the case may be) to the extent that MFCI or MHCI, respectively, has been
responsible for filing such Tax Returns for prior periods in accordance with
established practice.
5.3 Post-Distribution Returns. All Tax Returns of the MFCI Group for
-------------------------
periods beginning after the Distribution Date shall be filed by MFCI, all Tax
Returns of the MHCI Group for periods beginning after the Distribution Date
shall be filed by MHCI, and all Tax returns of the RTI Group for periods
beginning after the Distribution Date shall be filed by RTI. RTI shall be
responsible for filing all Forms 1099 due with respect to the receipt by
shareholders of any cash in lieu of fractional shares in the Distribution.
5.4 Cooperation Exchange of Information. Each Party shall be responsible
-----------------------------------
for the timely submission to the other Party of information of which it has
knowledge regarding any Tax Item which may properly be included in any Tax
Return to be filed by the other Party, and shall provide any and all other
information and documentation (including, but not by way of limitation, working
papers and schedules) reasonably requested the other Party for use in connection
with the preparation and filing of any Tax Returns.
5.5 Employer Stock Ownership Plan Data. With respect to each of the five
----------------------------------
years following the Date of Distribution, MFCI and MHCI shall provide RTI with a
calculation of the amount of employee wages contributed to MFCI's Stock
Ownership Plan and MHCI's Stock Ownership Plan, respectively, in order to
adequately advise RTI that MFCI and MHCI has each complied with its commitments
under the Letter Ruling.
ARTICLE VI.
Tax Audits
----------
6.1 Tax Controversies. (a) Except as otherwise provided in this Article
-----------------
VI, Xxxxxxxx or RTI shall have full responsibility and discretion in handling,
settling, or contesting any Tax Controversy involving a Tax Return for which it
has filing responsibility, MFCI shall have full responsibility and discretion in
handling, settling, or contesting any Tax Controversy involving a Tax Return for
which it has filing responsibility, and MHCI shall have full responsibility and
discretion in handling, settling, or contesting any Tax Controversy involving a
Tax Return for which it has filing responsibility, and any costs incurred in
handling, settling or contesting any Tax Controversy shall be borne by the Party
having full responsibility and discretion therefor.
-16-
(b) The Party responsible for any Tax Controversy shall use all reasonable
efforts to resist any deficiency assertions by any Taxing Authority regardless
of which Party is ultimately responsible for any such Tax under this Agreement.
(c) Each Party shall give prompt notice to the other of any communication
(including, but not limited to, requests for information that might affect the
treatment of any Tax Item and notices of proposed adjustments affecting the
treatment of any Tax Item) with the IRS or other Taxing Authority which may
affect any Tax Item of the other Party. Such other Party shall have the right
to provide the Party having responsibility for the audit with information and
input as to the response to such communication as may be appropriate under the
circumstances. The Party having responsibility for the audit shall notify all
affected Parties promptly if any Taxing Authority proposes an assessment of
Taxes for which any other Party to this Agreement could be liable to indemnify
and hold another Party to this Agreement harmless from and against the amount of
such Taxes pursuant to this Agreement.
(d) MFCI and/or MHCI (as the case may be) shall have 30 days after receipt
of the notice required under Section 6.1(c) within which to object in writing to
the proposed adjustment. If MFCI and/or MHCI (as the case may be) does not
notify RTI within such 30 day period that it objects to the proposed adjustment,
then RTI shall have exclusive control over all stages of the Tax Controversy,
including full authority to determine whether and in what manner to contest or
compromise the issue.
(e) If MFCI and/or MHCI (as the case may be) notifies RTI that it objects
to the proposed adjustment, then RTI shall not consent to the adjustment or
compromise of the proposed adjustment without the consent of MFCI and/or MHCI
(as the case may be) which shall not be unreasonably withheld or delayed, but
shall cooperate with MFCI and/or MHCI (as the case may be) to resolve the issue
on a basis acceptable to MFCI and/or MHCI (as the case may be). Prior to the
issuance of a notice of proposed adjustment or similar stage in the proceedings,
RTI shall be responsible for the conduct of the audit, and shall notify MFCI
and/or MHCI (as the case may be) of any major developments in the audit
proceedings pertaining to an issue for which MFCI and/or MHCI may have
obligation under this Agreement with respect to any Taxes that may arise as a
result of an adverse determination with respect to such issue.
(f) Upon the issuance of a notice of proposed adjustment or similar stage
in the proceedings for which MFCI and/or MHCI (as the case may be) has provided
RTI with a notice of objection pursuant to Section 6.1(d), MFCI and/or MHCI (as
the case may be) shall assume the conduct of all further proceedings, with
counsel selected by it (with the reasonable approval of RTI), at its sole
expense, insofar as the expense relates to an issue that MFCI and/or MHCI (as
the case may be) is (are) contesting, and thereafter RTI, MFCI, and/or MHCI
shall jointly be responsible for conduct of proceedings to contest such
issue(s).
-17-
(g) In the event that RTI receives a notice of deficiency from the IRS, or
a similar notice from any other Taxing Authority, and such notice relates in
whole or in part to an issue that MFCI and/or MHCI (as the case may be) is (are)
contesting, then:
(i) Upon receiving a written request from MFCI and/or MHCI (as the
case may be), given no later than a date reasonably necessary to permit
preparation and timely filing of a petition in the United States Tax Court for
redetermination of the deficiency, or a court of similar jurisdiction with
respect to Taxes imposed by any other Taxing Authority, RTI shall timely file
such petition; provided, however, that notwithstanding such request, RTI shall
have the option to pay the amount of the deficiency and not seek or make any
claim under this Agreement for indemnification for such Taxes from MFCI and/or
MHCI (as the case may be); or
(ii) If (1) MFCI and/or MHCI (as the case may be) does not request RTI
to file a petition for redetermination of the deficiency pursuant to Section
6.01(g)(i) hereof, and (2) RTI does not, on its own initiative, timely file a
petition, and (3) MFCI and/or MHCI (as the case may be) requests that RTI file a
claim for refund, then RTI shall either pay the deficiency or use the proceeds
of a loan from MFCI and/or MHCI, in the amount described in Section 6.01(g)(i),
to pay the deficiency, file a claim for refund thereof, and, if the claim is
denied, bring an action in a court of competent jurisdiction seeking such
refund.
(iii) In the event that a judgment of the United States Tax Court or
other court of competent jurisdiction results in an adverse determination with
respect to the issue, and RTI notifies MFCI and/or MHCI (as the case may be)
that it does not intend to appeal such determination, then MFCI and/or MHCI (as
the case may be) shall have the right to cause RTI to appeal from such adverse
determination at MFCI's and/or MHCI's (as the case may be) expense.
(iv) MFCI and/or MHCI, and its (or their) representatives, (as the
case may be) at its (their) expense, shall be entitled to participate in (1) all
conferences, meetings, or proceedings with any Taxing Authority, the subject
matter of which is or includes an issue for which MFCI and/or MHCI (as the case
may be) may have obligation under this Agreement with respect to any Taxes that
may arise as a result of an adverse determination with respect to such issue,
and (2) all appearances before any court, the subject matter of which includes
such issue.
(h) The right to participate referred to in Section 6.01(g)(iv) hereof
shall include the submission and content of documentation, memoranda of fact and
law and briefs, the conduct of oral arguments or presentations, the selection of
witnesses, and the negotiation of stipulations of fact with respect to the
issue.
6.2 Cooperation. Xxxxxxxx, RTI, MFCI, and MHCI agree to afford full
-----------
cooperation to one another and to their respective representatives, if any, in
any Tax Controversy involving:
-18-
a) any Tax Return filed or required to be filed by or for any member
of the Xxxxxxxx Group, the RTI Group, the MFCI Group, or the MHCI
Group for any period, or
b) any item or issue affecting Morrison's, RTI's, MFCI's, or MHCI's
potential liability hereunder or to any governmental authority.
Such cooperation shall include, but not by way of limitation:
i) the timely filing of appropriate claims for any refund which may
be available to any member of the Xxxxxxxx Group or the RTI
Group on account of an item of loss, deduction or credit of the
MFCI Group or the MHCI Group (as the case may be) which the MFCI
Group or the MHCI Group desires to carryback from a separate
return year (i.e., any taxable year of the MFCI Group or the
MHCI Group ending after the Date of Distribution) to a
Consolidated Return of the Xxxxxxxx Group or the RTI Group which
includes MFCI or an MFCI subsidiary, or MHCI or an MHCI
Subsidiary, (as the case may be) in accordance with the
provisions of Section 3.6 hereof;
ii) preparing responses to information requests by any Taxing
Authority;
iii) making available books, records and other documentation
(including, but not by way of limitation, working papers and
schedules) relevant to such proceeding, and systems support for
documentation furnished in electronic form;
iv) making directors, officers or employees available to appear in
person for interview or for testimony;
v) making employees available on a mutually convenient basis to
provide additional information and explanation of materials
provided hereunder;
vi) executing powers of attorney, tax information authorizations and
any other necessary or appropriate authorizations; and
vii) executing agreements with the Taxing Authority reasonably
necessary or appropriate for the settlement or pursuit of the
contest of such issue.
6.3 Record Retention. The parties agree to retain all books, records,
----------------
returns, schedules, documents and all material papers or relevant items of
information for periods prior to the Date of Distribution for the later of (i)
seven (7) years or (ii) the full period of the applicable statute of
limitations, including any extensions thereof.
-19-
ARTICLE VII.
Payments
--------
7.1 Payments in General. Except as otherwise provided in this Agreement,
-------------------
any amount required to be paid by one Party pursuant to this Agreement shall be
paid in immediately available funds within thirty (30) days after written demand
therefor from the other Party given after a Final Determination of the amount
thereof.
7.2 Interest on Late Payments. Any amount payable under this Agreement by
-------------------------
one Party to another Party shall, if not paid within ten (10) business days
after the due date specified in this Agreement, bear interest from such due date
until the date paid at the applicable Federal short term rate as defined in
Section 6621 of the Code in effect on the due date.
7.3 Character and Effect of Payments. The parties agree that for income
--------------------------------
and other Tax purposes all amounts paid pursuant to this Agreement by one Party
to the other Party (other than interest payments pursuant to Section 6.2) shall
be treated by the Parties as made directly to the third parties to which such
payment is due. If, notwithstanding such treatment by the Parties, any payment
by either Party is determined to be taxable to the other Party by any Taxing
Authority, the payor shall also indemnify the other Party for fifty percent
(50%) of the amount of any Taxes and related Expenses payable by the other Party
by reason of the receipt of such payment. In addition, the amount of any
indemnity payment due under this Agreement shall be computed by properly taking
into account any Tax Benefit actually realized by the recipient from the payment
of the item at issue.
7.4 Notice. The Parties shall give each other prompt notice of any payment
------
that may be due under this Agreement.
ARTICLE VIII.
Administrative Provisions
-------------------------
8.1 Interest. Except as expressly provided herein, no obligation to pay or
--------
right to collect interest or other amounts shall arise by virtue of this
Agreement.
8.2 Expenses. Each party to this Agreement hereby agrees to be responsible
--------
for all of the expenses which it may incur in carrying out its duties hereunder.
-20-
ARTICLE IX.
Miscellaneous
-------------
9.1 Enforceability. In case any one or more of the provisions
--------------
contained in this Agreement should be invalid, illegal or unenforceable, the
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
9.2 Modification of Agreement. Except as provided in Section 2.4, no
-------------------------
modification, amendment or waiver or any provision of this Agreement shall be
effective unless the same shall be in writing, and signed by each of the Parties
hereto and then such modification, amendment or waiver shall be effective only
in the specific instance and for the purpose for which given.
9.3 Successors and Assigns. Except as hereinafter provided, neither
----------------------
this Agreement nor any rights hereunder shall be assignable or transferable by
either Party hereto, without the prior written consent of the other Party
hereto, except by operation of law. Each Party hereby guarantees the performance
of all actions, agreements and obligations provided for under this Agreement of
each of its Subsidiaries. Each Party shall, upon the written request of the
other Party, cause any of its Subsidiaries formally to execute this Agreement.
This Agreement shall be binding upon, and shall inure to the benefit of, the
successors, assigns and persons controlling any of the corporations bound hereby
for so long as such successors, assigns or controlling persons are a Subsidiary
of a Party or its successors and assigns by operation of law.
9.4 Term. This Agreement shall commence on the date of execution
----
indicated below and shall continue in effect until otherwise agreed to in
writing by the Parties or their successors. Notwithstanding any other provision
in this Agreement, this Agreement shall remain in effect and its provisions
shall survive for the full period of all applicable statutes of limitation
(giving effect to any extension, waiver, or mitigation thereof).
9.5 Rights Confined to Parties. Nothing expressed or implied herein
--------------------------
is intended or shall be constructed to confer upon or to give to any person firm
or corporation (other than the Parties hereto, members of their Affiliated
Groups, and their successors and assigns) any right, remedy or claim under or by
reason of this Agreement or of any term, covenant or condition hereof. All
terms, covenants, conditions, promises and agreements contained herein shall be
for the sole and exclusive benefit of the Parties hereto, the members of their
Affiliated Groups, and their successors and assigns.
9.6 Notices. All demands, notices, and communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given on the
date on which such demand, notice, or communication is personally delivered or
sent by certified or registered United States Mail, postage prepaid, to:
-21-
a) in the case of Xxxxxxxx and all Subsidiaries hereto except
MFCI, MHCI, RTI and their subsidiaries:
Ruby Tuesday, Inc.
x/x Xxxxxx X. Xxxx, Xxx.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000-0000
b) in the case of MFCI or one of its subsidiaries:
Xxxxxxxx Fresh Cooking, Inc.
x/x Xxxxxxxx X. Xxxxx, Xxx.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
c) in the case of MHCI or one of its subsidiaries:
Xxxxxxxx Health Care, Inc.
c/o Xxxx X. Xxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
9.7 Effect of Headings. The paragraph headings herein are for convenience
------------------
only and shall not affect the construction hereof.
9.8 Governing Law. The provisions of this Agreement, and all rights and
-------------
obligations of the parties hereunder shall be governed by the laws of the State
of Georgia.
9.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall, when so executed, be considered an original
and all of which, taken together, shall be considered one document.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
subscribed and executed by their respective authorized officers on the dates
indicated, effective as of the day first written above.
XXXXXXXX RESTAURANTS INC.
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
-22-
RUBY TUESDAY (GEORGIA), INC.
By: /s/ J. Xxxxxxx Xxxxxxxxxx Date: 3/2/96
------------------------------ ---------------------
RUBY TUESDAY, INC.
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
XXXXXXXX FRESH COOKING, INC.
By: /s/ J. Xxxxxxx Xxxxxxxxxx Date: 3/2/96
------------------------------ ---------------------
XXXXXXXX HEALTH CARE, INC.
By: /s/ J. Xxxxxxx Xxxxxxxxxx Date: 3/2/96
------------------------------ ---------------------
CUSTOM MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
CUSTOM MANAGEMENT CORPORATION OF PENNSYLVANIA
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
XXXXXXXX CUSTOM MANAGEMENT CORPORATION OF PENNSYLVANIA
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
XXXX X. XXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
XXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
------------------------------ ---------------------
-23-
TIAS, INC.
By: /s/ Xxxxxx X. Xxxx Date: 3/2/96
----------------------------- --------------------
-24-
