AMENDED AND RESTATED
CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AGREEMENT (the "Agreement")
is dated as of the 12th day of January, 1998, and is entered into as of
the 20th day of March, 1998, among RUBY TUESDAY, INC., a Georgia
corporation ("Parent"), RT COLORADO, INC., a Colorado corporation and
wholly owned subsidiary of Parent ("Subsidiary") and RT DENVER FRANCHISE,
L.P., a Delaware limited partnership of which Subsidiary is the general
partner ("Partnership").
1. Introduction
Parent is currently engaged in the business of operating restaurants
under the trade name, trademark and service mark "Ruby Tuesday" at each
of the locations listed on Exhibit A attached hereto (hereinafter, the
business of operating each such restaurant at each such location being
referred to individually, as the "Business" and collectively as the
"Businesses"). Parent wishes to contribute to Partnership certain assets
of Parent used exclusively in operating the Businesses, upon the terms
and conditions set out in this Agreement. As of the date of this
Agreement, Partnership executed a development agreement in the form of
Exhibit E attached hereto (the "Development Agreement"), as well as an
operating agreement, regarding the first new restaurant to be developed
pursuant to the Development Agreement, in the form of Exhibit F attached
hereto (the "Standard Operating Agreement"), and a support services
agreement in the form attached as Exhibit G hereto (the "Support Services
Agreement"), all collectively referred to herein as the "Franchise
Documents". Therefore, in consideration of the premises, the mutual
representations, warranties, covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
2. Contribution and Receipt of Assets; Assumption of Liabilities
The consummation of the transactions provided for herein (the
"Closing") shall take place at the offices of Parent at such time and
place as the parties may hereto agree in writing (the "Closing Date"),
provided, however, the Closing shall take place on the date that is the
later to occur of (i) the date that the temporary liquor licenses for the
Businesses have been issued to Partnership by the appropriate local
authority(ies) or (ii) the date that Partnership has received a firm
commitment for financing for the contribution of capital to Parent on
terms reasonably acceptable to Partnership. On the Closing Date:
(a) Contribution and Receipt of Assets. Subject to the terms and
conditions of this Agreement, Parent shall contribute to Partnership all
of Parent's right, title and interest in and to the following assets of
Parent used exclusively in the operation of the Businesses (the
"Assets"), which Assets shall be contributed AS-IS, WHERE-IS:
(i) all stock in trade and merchandise in Parent's inventory
used by Parent exclusively in the conduct of the Businesses as of the
Closing Date (the "Inventory");
(ii) all furniture, fixtures, furnishings, equipment and
leasehold improvements used by Parent exclusively in the conduct of the
Businesses as of the Closing Date (the "Personal Property");
(iii) all rights of Parent to the software used exclusively in
the conduct of the Businesses as of the Closing Date and located at the
premises where the Businesses are conducted, including, without
limitation, all rights of Parent to use such software and the
documentation related thereto (the "Software");
(iv) all rights of Parent pursuant to all contracts, leases
(except for any interest of Parent in any lease with any third party
regarding the premises at which the Businesses are conducted, other than
the interest(s), if any, to be subleased to Partnership pursuant to the
Sublease(s) defined below), warranties, commitments, agreements, purchase
and sale orders and other executory commitments of Parent related solely
to the Businesses as of the Closing Date (the "Contracts");
(v) all rights of Parent in and to the underlying land, if
any, described on Schedule III attached hereto, together with the
structure(s) building(s) and other improvements owned by Parent and
located on such land;
(vi) all rights of Parent (to the extent assignable) pursuant
to any governmental permits and licenses used exclusively in the
operation of the Businesses (the "Permits");
(vii) Parent's telephone numbers for the Businesses (the
"Telephone Numbers");
(viii) Parent's customary amount of petty cash on hand at the
Businesses as of the Closing Date (the "Petty Cash").
Notwithstanding the foregoing, the Assets do not include the
following assets of Parent:
(i) Parent's accounts or notes receivable;
(ii) Parent's cash on hand at or with respect to the
Businesses (other than the Petty Cash);
(iii) Parent's trade name, trademarks, service marks,
copyrights and all other intellectual property or intangible property of
Parent; and
(iv) to the extent that the Businesses are conducted on
premises leased by Parent from a third party (or third parties), all
rights of Parent in any leasehold or other interest in the premises at
which the Businesses are conducted (except for any interest(s) to be
subleased to Partnership pursuant to the Sublease(s), defined below).
(b) Assumption of Liabilities. Subject to the terms and conditions
of this Agreement, Parent shall assign, and Partnership shall assume and
agree to satisfy, pay, discharge, perform and fulfill, as applicable, as
they become due, without charge or cost to Parent except as provided for
in this Agreement, and agrees to hold Parent harmless with respect to,
the following liabilities and obligations of Parent (the "Assumed
Liabilities"):
(i) all liabilities and obligations of Parent related to
owning the Assets and operating the Businesses on and after the Closing
Date except for the Excluded Liabilities described below; and
(ii) all liabilities and obligations of Parent under the
Contracts, the Permits and the Telephone Numbers that arise or are
attributable to events or conditions occurring on or after the Closing
Date.
Notwithstanding the foregoing, the Assumed Liabilities shall
not include the following liabilities or obligations of Parent (the
"Excluded Liabilities"):
(i) except to the extent otherwise provided in this
Agreement, any liabilities or obligations, whether or not known, of
Parent to be performed prior to the Closing Date or arising out of or
relating to Parent's ownership of the Assets or operation of the
Businesses prior to the Closing Date; and
(ii) Parent's accounts payable, notes payable and other
obligations for or related to Parent's indebtedness to banks or financial
institutions.
3. Loan to Partnership.
At the Closing, Parent shall lend to Partnership, in consideration
of Partnership's promissory note, a sum in the amount of $4,709,000.
Partnership shall deliver to Parent Partnership's promissory note, dated
the Closing Date, in favor of Parent in such amount (the "Note") in the
form attached hereto as Exhibit B. As security for the payment of the
Note, Partnership shall deliver to Parent a second lien mortgage/deed of
trust, dated as of the Closing Date, with respect to any owned real
property described on Schedule III (collectively, the "Second Mortgages")
and such other documents as may be reasonably required by Parent to
perfect a security interest for the benefit of Parent in and to such real
property.
4. Delivery of Documents and Related Transactions.
(a) At the Closing, the following documents (the "Closing
Documents") shall be delivered as follows:
(i) Parent shall deliver to Partnership the following executed
documents (the "Parent's Documents"):
(A) a bill of sale, assignment and assumption agreement
for the Assets substantially in the form of Exhibit C attached hereto
(the "Bill of Sale"), evidencing the contribution to Partnership of all
of Parent's right, title and interest in and to said Assets, free and
clear of all encumbrances except as set forth on Schedule I, pursuant to
which Partnership will accept such Assets and assume the Assumed
Liabilities;
(B) to the extent that the Businesses are conducted on
premises leased by Parent from a third party (or third parties), the
following:
(1) a sublease or subleases between Parent, as
sublessor, and Partnership, as sublessee, of such premises, in the form
of Exhibit D attached hereto (the "Sublease(s)"); and
(2) the written consent of each landlord to the
Sublease(s), if required;
(C) to the extent that the Businesses are conducted on
premises owned by Parent, a deed conveying Parent's interest in and to
the underlying land, together with structure(s), building(s) and other
improvements at the premises described on Schedule III attached hereto
(the "Deed");
(D) the Franchise Documents; and
(E) other related documents that Partnership may have
reasonably requested on or prior to the Closing Date.
(ii) Partnership shall deliver to Parent the following
executed documents (the "Partnership's Documents"):
(A) the Note;
(B) the Bill of Sale;
(C) to the extent that the Businesses are conducted on
premises leased by Parent from a third party (or third parties), the
Sublease(s);
(D) the Second Mortgages and other security documents
referred to in Section 3 of this Agreement;
(E) the Franchise Documents; and
(F) other related documents that Parent may have
reasonably requested on or prior to the Closing Date.
(b) Further Assurances and Cooperation Post-Closing. Parent and
Partnership, from time to time after the Closing (but without obligation
separate from the obligations expressly provided by this Agreement),
hereby agree to execute, acknowledge and deliver to each other such
instruments of conveyance and transfer, and will take such other actions
and execute and deliver such other documents, certifications and further
assurances, as either party may reasonably request with respect to the
assignment, transfer and delivery of the Assets and the assumption of the
Assumed Liabilities and the perfection of Parent's security interest in
the Assets pursuant to Section 3(a)(ii), in order to consummate in full
the transactions provided for herein.
(c) Other Adjustments. At the Closing, or as soon as practicable
after the Closing, the parties shall make an appropriate adjustment, on a
dollar-for-dollar basis, to reflect the proration of all items of expense
or income directly relating to the Assets and the operation of the
Businesses as of the Closing Date, and the net adjustments for all such
items shall be paid in immediately available funds on or before the date
that occurs sixty (60) days after the Closing Date (the "Adjustment
Payment Date"). Prorated items shall include the following: rent, real
and personal property taxes, payroll and payroll taxes, insurance
premiums, utilities, security deposits, other prepaid items and other
items customarily prorated. To the extent possible, any prorations not
determinable as of the Closing Date shall be prorated on the basis of the
most current information available at Closing; provided, however, Parent
and Partnership agree that, upon presentation, on or before the
Adjustment Payment Date, of written confirmation of (i) a change in an
estimated amount, or (ii) a determination of the amount of any proration
that cannot be determined as of the Closing Date, such amount will be
reflected in the payment(s) to be made pursuant to this Section 3(b) on
or before the Adjustment Payment Date. To the extent any of the Existing
Restaurants are operated under leases that provide for payment of rent
based on a percentage of annual gross sales of such Existing Restaurant,
such rent shall be calculated in accordance with the terms of the
underlying lease and each of Parent and Partnership shall be responsible
for its respective pro rata share of such percentage rent amount based on
the amount of gross sales occurring during their respective period of
ownership. Such adjustment shall take place on the date such payments
are due under such underlying lease. Parent shall make such payments due
to landlord and Partnership shall reimburse Parent for Partnership's
share of such payments on receipt of invoice for such amounts due to
Parent.
(d) Employees. Partnership and Parent agree as follows:
(i) Partnership's Responsibilities. Partnership shall offer
employment, on substantially the same terms and conditions as currently
in effect, to commence on and as of the Closing Date, to each employee of
the Businesses as of the Closing Date (including, without limitation, any
employee who is absent from work on the Closing Date on paid vacation or
pursuant to any leave of absence authorized by Parent or required by law
(hereinafter, all employees accepting employment with Partnership being
referred to collectively as the "Transferred Employees")). Partnership
agrees to give the Transferred Employees credit for their years of
service with Parent for the purpose of determining any eligibility or
vesting provisions that may be contained in employee plans provided to
such Transferred Employees by Partnership in connection with their
employment with Partnership. Partnership also agrees to give the
Transferred Employees credit for all vacation and sick leave accrued
during their employment with Parent and to provide, for the fiscal year
ending June 6, 1998, the same vacation and sick leave benefits to all
Transferred Employees as they would have been eligible to receive under
the Parent's policies now in effect.
(ii) Parent's Responsibilities. Parent agrees that, except as
provided in Section 4(d)(i) above, Partnership shall not be subject to
any liability with respect to, or resulting from the termination by
Parent of any of its employees from, any profit sharing, 401(k), pension,
stock option, vacation pay, sick pay, personal leave, severance pay,
retirement, bonus, deferred compensation, group life and health insurance
or other employee benefit plan, agreement or commitment of Parent.
The foregoing Section 4(d) does not, and shall not be deemed or
construed to, create any right in, or confer any right on, any employee
or any other third party.
5. Conditions to Closing.
(a) Conditions to Obligations of Partnership. All obligations of
Partnership under this Agreement are subject to the fulfillment or
satisfaction, prior to or at the Closing, of each of the following
conditions precedent:
(i) The representations and warranties of Parent contained in
this Agreement shall have been true on the date hereof in all material
respects, and shall be true in all material respects as of the Closing as
if made at the Closing.
(ii) Parent shall have performed and complied in all material
respects with all agreements and conditions required by this Agreement to
be performed or complied with by or prior to or at the Closing.
(iii) As of the Closing, no suit, action or other proceeding,
or any injunction or final judgment relating thereto, shall be threatened
or be pending before any court or governmental or regulatory official,
body or authority in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby, and no
investigation that might result in any such suit, action or proceeding
shall be pending or threatened.
(iv) Each consent or approval listed on Schedule II as
required or necessary under contract or applicable law for the
consummation of the transactions contemplated hereby shall have been
obtained; provided, however, those certain consents or approvals
identified on such Schedule II as being subject to deferral need not have
been obtained on or before the Closing to the extent that Parent shall
have made appropriate arrangements to secure to Partnership the practical
and economic benefits of the agreements or other arrangements to which
such consents or approvals relate.
(v) The documents to be delivered by Parent at Closing
pursuant to Section 4(a) shall have been executed and delivered.
(vi) Partnership shall have received a certificate from
Parent, dated the Closing Date and certifying in such detail as
Partnership may reasonably request, that the conditions specified in
Sections 5(a) hereof have been fulfilled.
(b) Conditions to Obligations of Parent. All obligations of Parent
under this Agreement are subject to the fulfillment or satisfaction prior
to or at the Closing, of each of the following conditions precedent:
(i) The representations and warranties of Partnership
contained in this Agreement shall have been true on the date hereof in
all material respects, and shall be true in all material respects as of
the Closing if made at the Closing.
(ii) Partnership shall have performed and complied in all
material respects with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the
Closing.
(iii) As of the Closing, no suit, action or other proceedings,
or any injunction or final judgment relating thereto, shall be threatened
or be pending before any court or governmental or regulatory official,
body or authority in which it is sought to restrain or prohibit or to
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby, and no
investigation that might result in any such suit, action or proceeding
shall be pending or threatened.
(iv) Each consent or approval listed on Schedule II as
required or necessary under contract or applicable law of the
consummation of the transactions contemplated hereby shall have been
obtained; provided, however, those certain consents or approvals
identified on such Schedule II as being subject to deferral need not have
been obtained on or before the Closing, to the extent that Parent shall
have made appropriate arrangements to secure to Partnership the practical
and economic benefits of the agreements or other arrangements to which
such consents or approvals relate.
(v) The documents to be delivered by Partnership at Closing
pursuant to Section 5(a) shall have been executed and delivered.
(vi) Parent shall have received a certificate from Partnership
dated the Closing Date and certifying in such detail as Parent may
reasonably request, that the conditions specified in Sections 5(b) hereof
have been fulfilled and that all consents and approvals required or
necessary to transfer to Partnership all licenses or permits held by
Parent or the Businesses with respect to the sale or consumption of
alcoholic beverages on the premises at which the Businesses are conducted
have been obtained.
6. Term and Termination.
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing:
(a) by mutual consent of Parent, Subsidiary and Partnership;
(b) by Parent, Subsidiary or Partnership, if such terminating party
is not otherwise in default in this Agreement and if the Closing shall
not have occurred on or before March 31, 1998, or such other extended
date, if any, mutually agreed to by the parties in writing; and
(c) by either party if there has been a material breach of any
representation, warranty, covenant or agreement by the other party that
has not been cured or for which adequate assurance (reasonably acceptable
to such terminating party) of cure has not been given, in either case
within fifteen (15) business days following receipt of notice of such
breach.
If either party terminates this Agreement pursuant to the provisions
hereof, such termination shall be effected by notice to the other party
specifying the provision hereof pursuant to which such termination is
made. Except for any liability for the breach of this Agreement, upon
the termination of this Agreement pursuant to this Section 8, this
Agreement shall forthwith become null and void and there shall be no
further liability or the obligation on the part of Parent or Partnership
hereunder or with respect hereto.
7. Miscellaneous.
(a) Mail Addressed to Parent. After the Closing Date, Partnership
may open all mail addressed to Parent at the premises of the Businesses.
Partnership shall promptly forward to Parent any mail that does not
require Partnership's action.
(b) Expenses. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring
such expenses.
(c) Transfer, Documentary and Other Taxes. Notwithstanding any
other provision in this Agreement (including, without limitation, Section
2(b)), in addition to any taxes due in connection with the contribution
of the Assets and the assumption of the Assumed Liabilities contemplated
by this Agreement, Partnership shall pay all federal, state and local
sales, use, documentary, transfer or other taxes or recording fees, if
any, due as a result of the contribution of the Assets hereunder, whether
imposed by law on Parent or Partnership, and Partnership shall indemnify,
reimburse and hold harmless Parent in respect of the liability for
payment of or failure to pay any such taxes or the filing of or failure
to file any reports required to be filed in connection therewith.
(d) Entire Agreement. This Agreement, together with the Closing
Documents, sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and shall not be amended
or modified except by written instrument duly executed by each of the
parties hereto. Any and all previous agreements and understandings
between or among the parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement, together with the
Closing Documents.
(e) Assignment and Binding Effect. This Agreement may not be
assigned by either party hereto without the prior written consent of the
other party. Subject to the foregoing, all of the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of and
be enforceable by the successors and assigns of Parent, Subsidiary and
Partnership, but shall not be construed as conferring any other rights on
any other person.
(f) Waiver. Any term or provision of this Agreement may be waived
at any time by the party entitled to the benefit thereof by a written
instrument duly executed by such party.
(g) Construction. All headings contained in this Agreement are for
convenience of reference only, and do not form a part of this Agreement
and shall not affect in any way the meaning or interpretation of this
Agreement.
(h) Exhibits and Schedules. All Exhibits and Schedules referred to
herein are intended to and hereby are specifically made part of this
Agreement.
(i) Severability. Any provision of this Agreement that is invalid
or enforceable in any jurisdiction shall be ineffective to the extent of
such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
(j) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed
to be an original, and all of which counterparts taken together shall
constitute one and the same instrument.
(k) Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Georgia.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have duly executed and delivered
this Agreement as of the date first above written.
PARENT:
RUBY TUESDAY, INC.
By: /s/ Daniel T. Cronk
Name: Daniel T. Cronk
Title: Senior Vice President
SUBSIDIARY:
RT COLORADO, INC.
By: /s/ Timothy P. Kaliher
Name: Timothy P. Kaliher
Title: Vice President
PARTNERSHIP:
RT DENVER FRANCHISE, L.P.
By: RT Colorado, Inc., General Partner
By: /s/ Timothy P. Kaliher
Name: Timothy P. Kaliher
Title: Vice President
LIST OF SCHEDULES AND EXHIBITS
Schedules
Schedule I Permitted Encumbrances
Schedule II Required Consents and Approvals
Schedule III Legal Description of Owned Real Property
Exhibits
Exhibit A List of Restaurant Locations
Exhibit B Form of Note
Exhibit C Form of Bill of Sale
Exhibit D Form of Sublease
Exhibit E Form of Development Agreement
Exhibit F Form of Standard Operating Agreement
Exhibit G Form of Support Services Agreement
Schedule I
PERMITTED ENCUMBRANCES
1. Liens that are immaterial in character, amount or extent, and that do
not materially affect the value, or do not materially interfere with the
present use, of the Assets.
2. UCC-1 Financing Statement:
[LIST APPLICABLE FINANCING STATEMENTS]
3. The Second Mortgages
Schedule II
REQUIRED CONSENTS AND APPROVALS
1. All consents and approvals required or necessary to transfer to
Partnership all licenses or permits currently held by Parent or the
Businesses with respect to the sale or consumption of alcoholic beverages
on the premises at which the Businesses are conducted.
2. All consents required or necessary from any third party (or third
parties) with respect to the Sublease(s).
3. All consents required by Parent's current lender(s).
4. Approval by the Board of Directors of Parent.
Schedule III
LEGAL DESCRIPTION OF OWNED REAL PROPERTY
EXHIBIT A
(Contribution Agreement)
Existing Restaurants Owned or Leased
1. Ruby Tuesday Owned
5525 Wadsworth Bypass
Arvada, CO 80002
2. Ruby Tuesday Owned
14100 East Iliff Avenue
Aurora, CO 80014
3. Ruby Tuesday Leased
Crossroads Mall
1600 28th Street, Space 245
Boulder, CO 80301
4. Ruby Tuesday Owned
8880 East Arapahoe Crossing
Englewood, CO 80112
5. Ruby Tuesday Owned
110 Boardwalk Drive
Ft. Collins, CO 80525
6. Ruby Tuesday Owned
35 Springer Drive
Highlands Ranch, CO 80126
7. Ruby Tuesday Leased
8025 West Bowles Avenue
Littleton, CO 80123
8. Ruby Tuesday Owned
Centennial
994 Dillon Road
Louisville, CO 80027
9. Ruby Tuesday Leased
4150 N. Freeway
Pueblo, CO 81008
10. Ruby Tuesday Leased
Westminster Centre
9280 Sheridan Boulevard
Westminster, CO 80031