Settlement Agreement - Bruegger's Corp., Lethe LLC, Nordahl L. Brue, Michael J. Dressell, Bruegger's Franchise Corp., Champlain Management Services Inc., Edward Davis, Quality Dining Inc., Grady's American Grill LP, Grady's American Grill Restaurant Corp., Daniel B. Fitzpatrick and David Findlay
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made this 28th day of February 2001,
by and among Bruegger's Corporation, a Delaware corporation ("BC"), Lethe LLC, a
Delaware limited liability company ("Lethe"), Nordahl L. Brue of Burlington,
Vermont ("Brue"), Michael J. Dressell of Shelburne, Vermont ("Dressell"),
Bruegger's Franchise Corporation, a Delaware corporation ("BFC"), Champlain
Management Services, Inc., a Delaware corporation ("CMS") and Edward Davis of
Raleigh, North Carolina ("Davis") (BC, Lethe, Brue, Dressell, BFC, CMS and Davis
shall be sometimes collectively referred to as the "BC Parties") and Quality
Dining, Inc., an Indiana corporation ("QDI"), Grady's American Grill, LP, a
Texas limited partnership ("Grady's LP"), Grady's American Grill Restaurant
Corporation, an Indiana corporation ("Grady's Corporation"), Daniel B.
Fitzpatrick of Mishawaka, Indiana ("Fitzpatrick") and David Findlay of Mishawaka
("Findlay") (QDI, Grady's LP, Grady's Corporation, Fitzpatrick and Findlay shall
be sometimes collectively referred to as the "QDI Parties").
RECITALS
WHEREAS, on September 3, 1997, BC, Brue, Dressell and QDI executed an Agreement
denoted as a Share Exchange Agreement ("SEA"), pursuant to which Brue and
Dressell acquired and QDI relinquished all of the outstanding common stock of BC
and certain other bagel related assets;
WHEREAS, on September 3, 1997, in connection with the SEA, Bagel Disposition
Corporation, QDI's wholly owned subsidiary and the owner of numerous bagel
bakeries operating under the names of "Bruegger's" or "Moe's," Lethe and QDI
entered into the Agreement and Plan of Merger whereby certain affiliates of QDI
operating bagel bakeries were merged into Bagel Disposition Corporation and
Bagel Disposition Corporation was then merged into Lethe (the "Plan of Merger");
WHEREAS, in connection with the SEA, BC issued a Junior Subordinated Note, dated
October 20, 1997, to QDI in the principal amount of $10 million dollars (the
"Subordinated Note");
WHEREAS, the obligations of BC under the Subordinated Note are guaranteed by
certain affiliates of BC pursuant to the Junior Subordinated Guarantee dated
October 20, 1997 (the "Subordinated Guarantee");
WHEREAS, the Plaintiffs, as hereinafter defined, and QDI are parties to a
lawsuit in United States District Court for the District of Vermont
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entitled "Bruegger's Corporation, Lethe LLC, Nordahl Brue and Michael Dressell
v. Quality Dining, Inc.," Docket No. 2:99-cv-00262 (the "Lawsuit");
WHEREAS, the Lawsuit alleges that QDI has breached certain of its obligations
and duties under various provisions of the SEA and the Plan of Merger;
WHEREAS, QDI has filed an Answer in the Lawsuit denying any liability and
asserting various counterclaims against the Plaintiffs;
WHEREAS, certain of the BC Parties and QDI Parties are defendants in a lawsuit
pending in the United States District Court for the District of Maryland
entitled, "D&K Foods, Inc., Ken Wagnon, Dan Carney, Pacific Capital Ventures,
Inc., Jay Wagnon, PLB Enterprises, Inc. and Patrick Beatty v. Bruegger's
Corporation, Bruegger's Franchise Corporation, Quality Dining, Inc., Daniel B.
Fitzpatrick, Michael J. Dressell and Nordahl L. Brue," Docket No. L-97-2304 (the
"D&K Lawsuit");
WHEREAS, certain of the BC Parties and QDI Parties are either the plaintiff or
third-party defendants in a lawsuit pending in the United States District Court
for the Southern District of Texas entitled, "Grady's American Grill, LP v.
Michael K. Reilly and MKR Investments, L.P. v. Bruegger's Corporation,
Bruegger's Franchise Corporation, Quality Dining, Inc., Champlain Management
Services, Inc., Grady's American Grill Restaurant Corporation, Nordahl L. Brue,
Michael J. Dressell, David Findlay, Ed Davis and Daniel Fitzpatrick." Docket
H-98- 4015 (the "Reilly Lawsuit");
WHEREAS, BFBC, Ltd., BFBC Company, Richard B. Worth, Thomas J. Burkhard, Bohdan
W. Stone and Arthur J. Lavallie, as intervenors/plaintiffs, have filed a
Complaint in Intervention in the Reilly Lawsuit in which they allege various
claims against BC, Bruegger's Franchise Corporation, Quality Dining, Inc.,
Champlain Management Services, Inc., Grady's American Grill, LP, Grady's
American Grill Restaurant Corporation, Brue, Dressell, David Findlay, Ed Davis
and Daniel Fitzpatrick, as defendants in intervention (the "BFBC Lawsuit") (The
Reilly Lawsuit and the BFBC Lawsuit hereinafter shall be collectively referred
to as the "Reilly/BFBC Lawsuit");
WHEREAS, pursuant to and subject to the terms of this Agreement, the Plaintiffs
and QDI desire to settle all disputes concerning the SEA and Plan of Merger and
to terminate all continuing obligations thereunder;
WHEREAS, pursuant and subject to the terms of this Agreement, the Plaintiffs and
QDI desire to settle fully and finally the Lawsuit; and
WHEREAS, pursuant to the terms of this Agreement, the BC Parties and QDI Parties
desire to modify certain provisions formerly addressed in the SEA and Plan of
Merger related to indemnification, sharing of costs and litigation management in
connection with the D&K Lawsuit and the Reilly/BFBC Lawsuit as well as certain
other matters.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged by each party hereto, it is
agreed as follows:
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1. Certain Definitions.
The following terms, as used herein, shall have the following meanings:
"Affiliate" shall mean, as to any Person, any of the following other Persons:
(i) any Person directly or indirectly controlling, controlled by or under common
control with such Person; (ii) any Person owning or controlling ten percent
(10%) or more of the outstanding voting interest of such Person; (iii) any
former or current officer, director, manager, general partner or trustee of such
Person; or (iv) any Person who was or is an officer, director, manager or
general partner, trustee or holder of ten percent (10%) or more of the voting
interest of any Person described in clauses (i) through (iii) of this sentence.
For the purposes of this definition and of the definition of Subsidiary,
"control," "controlled by" or "under common control" shall mean the possession,
direct or indirect, of the power to direct or cause the direction of management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. "Affiliates" shall mean more than one (1) Affiliate.
"Apollo Investment Agreement" shall mean that certain Investment agreement dated
as of February 14, 1997 by and among Apollo Investment Fund III, L.P., Apollo
Overseas Partners III, L.P., Apollo (UK) Partners III, L.P. (collectively
"Apollo"), Quality Dining, Inc. and certain then- Affiliates of QDI.
"Bagel Business" shall mean the business of franchising, owning and operating
bagel bakeries throughout the United States under the names "Bruegger's" or
"Moe's," or any derivations thereof.
"Bagel Companies" shall mean Bagel Acquisition Corporation, Bagel Disposition
Corporation, Best Bagels, Inc., Lethe, BC, BF Holding, Inc., Bruegger's
Franchise Corporation, Mohold Franchise Corporation, Mohold, Inc. and Odyssey
Bagels, Inc.
"Damages" shall mean any and all damage, loss, judgment, obligation, liability
(whether fixed or contingent, known or unknown) and expense (including
reasonable expenses of investigation and reasonable attorneys' and accountants
fees and expenses).
"Excluded Liabilities" shall mean all liabilities and other obligations, whether
known or unknown, fixed or contingent, liquidated or unliquidated, accrued or
unaccrued, relating to (i) all leases and other assets in respect of the
Excluded Stores and the former Burlington, Vermont regional office of BC located
on Kimball Avenue, in South Burlington, Vermont, (ii) obligations, if any,
directly to Apollo pursuant to the Apollo Investment Agreement, (iii) workers
compensation arising under or in connection with any Person's employment with
any of the Bagel Companies for incidents occurring on or prior to October 20,
1997, (iv) health insurance coverage of any Person employed by the Bagel
Companies for covered expenses incurred on or prior to October 20, 1997, and (v)
the Finn Employment Agreement.
"Excluded Stores" shall mean all stores or commissaries that (i) (A) were
intended to be used in the Bagel Business or (B) were used in the Bagel Business
and (ii) were not open and operating on October 20, 1997, which stores are
listed on Schedule II, attached hereto, provided, however, that all stores and
commissaries that are or were located in the state of Nevada shall not be
considered "Excluded Stores."
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"Finn Employment Agreement" shall mean any contract between Stephen Finn and QDI
or any of its Subsidiaries or Affiliates.
"Franchisee Claims" shall mean any claim, threatened or asserted, or any action,
suit or proceeding (at law or in equity, in any court of competent jurisdiction)
which is commenced against QDI or any of its Affiliates by a current or former
franchisee, or its Affiliates, of the Bagel Business which arises out of or
relates to any of the following: (i) the operation of the Bagel Business (ii)
alleged violation of franchise or securities laws in connection with the
purchase and sale of franchises, (iii) breach of promise to purchase the
franchisee's business or lend money to the franchisee or (iv) common law fraud.
"Governmental Body" shall mean any government or governmental or regulatory body
of any country or any political subdivision thereof (whether federal, state,
local or foreign), any agency, instrumentality or authority of any such
government or governmental or regulatory body, any court of competent
jurisdiction or any arbitrator.
"Person" shall mean any individual, corporation, company, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Body or other entity.
"Plaintiffs" shall mean BC, Lethe, Brue and Dressell.
"Subsidiary" means, with respect to any Person, any other Person which is,
directly or indirectly, controlled by such Person.
"Taxes" means all taxes, charges, fees, levies, or other similar assessments,
including without limitation: (a) income, gross receipts, ad valorem, premium,
excise, real property, personal property, windfall profit, sales, use, transfer,
licensing, withholding, employment, payroll, alternative or add-on minimum tax,
estimated and franchise taxes imposed by the United States of America, any
state, local or foreign government, or any subdivision, agency or other similar
Person of the United States or any such government; and (b) any interest, fines,
penalties, assessments or additions resulting from, attributable to or incurred
in connection with any such taxes, charges, fees, levies or other similar
assessments or any contest or dispute thereof.
2. Disclaimer of Liability or Wrong-doing.
This Agreement and the Release, as hereinafter defined, shall not in any way be
construed as an admission by the Plaintiffs, QDI or others released by the
Release of any liability or any wrong-doing whatsoever or as an admission by the
Plaintiffs, QDI or others released by the Release that they have acted
wrongfully with respect to each other or any other entity, or an admission by
the Plaintiffs, QDI or others released by the Release that, except as expressly
provided in this Agreement and the Release, Plaintiffs or QDI have any rights
against one another or any others released by the Release. The Plaintiffs, QDI
and others released by the Release specifically deny and disclaim any liability
to or wrongful acts against the other or any other entity.
3. Dismissal with Prejudice of Claims.
(a) Dismissal with Prejudice of the Lawsuit. The Plaintiffs and QDI agree to
stipulate to dismissal with prejudice of the Lawsuit pursuant to a Stipulation
of Dismissal with Prejudice of the Lawsuit in the form
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attached hereto as Exhibit A and which shall be executed simultaneously with
this Agreement. On the date that this Agreement is executed, the executed
Stipulation of Dismissal with Prejudice shall be filed with the United States
District Court for the District of Vermont.
(b) No other Claims, Filings, or Reports. The Plaintiffs and QDI each represent,
covenant and agree that, except for the Lawsuit, they have not filed any
complaint, other lawsuit, or claim against the other or against any others
released by the Release with any federal, state, or local governmental agency or
court.
4. Release.
The BC Parties, certain Affiliates of the BC Parties and the QDI Parties shall
execute and deliver the Release attached hereto as Exhibit B (the "Release") as
a condition to the effectiveness of this Agreement; provided, however, that no
breach or default of the terms of this Agreement shall affect the scope or
validity of the releases given in the Release and no breach or default of the
Release shall affect the obligations under this Agreement.
5. Consideration/Covenants/Acknowledgments.
(a) Subordinated Note. Upon the signing of this Agreement and all documents to
be executed in connection herewith, the Subordinated Note shall be amended by BC
executing and delivering an Amended and Restated Junior Subordinated Note which
shall be in the principal amount of Ten Million Seven Hundred Six Thousand Six
Hundred Sixty-Seven and No/100 Dollars ($10,706,667.00), such note to be in the
same form and substance of Exhibit C attached hereto and incorporated herein by
this reference (the "Amended and Restated Subordinated Note").
(b) Subordinated Guarantee. Upon the signing of this Agreement and all documents
to be executed in connection herewith, the Subordinated Guarantee shall be
amended by the Guarantors (as defined therein) executing and delivering an
Amended and Restated Junior Subordinated Guarantee in the same form and
substance as Exhibit D attached hereto and incorporated herein by this reference
(the "Amended and Restated Subordinated Guarantee").
(c) Reilly/BFBC Lawsuit
(1) In the event the BC Parties, the QDI Parties, or, with respect to each of
the foregoing parties, their Affiliates become obligated to pay any sums of
money to satisfy a judgment rendered in the Reilly/BFBC Lawsuit or for purposes
of settling the Reilly/BFBC Lawsuit, including without limitation any award of
attorneys' fees and costs of litigation (the "Reilly/BFBC Obligations"), then
the Reilly/BFBC Obligations shall be paid and satisfied from the following
sources and in the following order until fully paid and satisfied: (i) First,
from any Reilly/BFBC Recovery, as hereinafter defined; and (ii) Second, from BC
and QDI, with BC paying fifty percent (50%) of the then remaining Reilly/BFBC
Obligations and QDI paying the remaining fifty percent (50%) of the then
remaining Reilly/BFBC Obligations.
(2) In the event any sums of money are recovered and collected by the BC
Parties, the QDI Parties or, with respect to each of the foregoing parties,
their Affiliates as a result of a judgment rendered in the Reilly/BFBC Lawsuit
or as a result of settlement of the Reilly/BFBC Lawsuit, including without
limitation any payments made with respect to
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certain obligations of BFBC Ltd or BFBC Company that were guaranteed by Michael
K. Reilly and/or MKR Investments, L.P., under that certain guarantee dated April
15, 1997 (the "Reilly Guarantee") for purposes of guaranteeing the obligations
of BFBC Ltd. and/or BFBC Company under that certain promissory note, dated April
15, 1997, payable to Grady's LP, as successor in interest to Texas Commerce
Bank, (the "BFBC Note"), any payments made on the BFBC Note, Reilly Guarantee or
any other guarantee made in connection with the aforementioned obligations of
BFBC Ltd and/or BFBC Company, or any award of attorneys' fees and costs of
litigation (the "Reilly/BFBC Recovery"), then the Reilly/BFBC Recovery shall be
distributed to the following parties and in the following order until fully
distributed: (i) First, to those parties necessary to pay and satisfy any
Reilly/BFBC Obligations; (ii) Second, to BC or QDI, as the case may be, in an
amount equal to any unpaid Excess Future Litigation Costs/Expenses (as
hereinafter defined) relating to the Reilly/BFBC Costs and Expenses, as
hereinafter defined; (iii) Third, to BC and QDI, equally, up to the amounts
necessary to reimburse BC and QDI for their respective shares of the Reilly/BFBC
Costs and Expenses; and (iv) Fourth, to BC and QDI, with BC to receive
twenty-five percent (25%) of the then remaining Reilly/BFBC Recovery and QDI to
receive seventy-five percent (75%) of the then remaining Reilly/BFBC Recovery.
Notwithstanding the foregoing, should there still be an amount due and owing
under the Amended and Restated Subordinated Note at the time any Reilly/BFBC
Recovery is recovered and collected, then any portion of the Reilly/BFBC
Recovery payable to BC pursuant to clause (iv) of the preceding sentence shall
be immediately credited first to accrued interest and then to principal then due
and owing under the Amended and Restated Subordinated Note (the "Reilly/BFBC
Credit"). QDI and BC understand, acknowledge and agree that for all purposes
under this Agreement and the Amended and Restated Subordinated Note, the full
amount of any Reilly/BFBC Credit, irrespective as to whether the Reilly/BFBC
Credit is credited toward interest or principal due under the Amended and
Restated Subordinated Note, shall be credited against BC's obligations under the
Amended and Restated Subordinated Note in accordance with the provisions
thereof.
(d) D&K Lawsuit.
(1) In the event the BC Parties, the QDI Parties, or, with respect to each of
the foregoing parties, their Affiliates become obligated to pay any sums of
money to satisfy a judgment rendered in the D&K Lawsuit or for purposes of
settling the D&K Lawsuit, including without limitation any award of attorneys'
fees and costs of litigation (the "D&K Obligations"), then the D&K Obligations
shall be paid and satisfied from the following sources and in the following
order until fully paid and satisfied: (i) First, from any D&K Recovery, as
hereinafter defined; and (ii) Second, from BC and QDI, with BC paying fifty
percent (50%) of the then remaining D&K Obligations and QDI paying the remaining
fifty percent (50%) of the then remaining D&K Obligations.
(2) In the event any sums of money are recovered and collected by the BC
Parties, QDI Parties or, with respect to each of the foregoing parties, their
Affiliates as a result of a judgment rendered in the D&K Lawsuit or as a result
of settlement of the D&K Lawsuit, including without limitation any award of
attorneys' fees and costs of litigation (the "D&K Recovery"), then the D&K
Recovery shall be distributed to the following parties and in the following
order until fully distributed: (i) First, to those parties necessary to pay and
satisfy any D&K Obligations; (ii) Second, to BC or QDI, as the case may be, in
an amount
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equal to any unpaid Excess Future Litigation Costs/Expenses relating to the D&K
Costs and Expenses, as hereinafter defined; (iii) Third, to BC and QDI, equally,
up to the amounts necessary to reimburse BC and QDI for their respective shares
of the D & K Costs and Expenses; and (iv) Fourth, to BC and QDI, with BC to
receive seventy-five percent (75%) of the then remaining D&K Recovery and QDI to
receive twenty-five percent (25%) of the then remaining D&K Recovery.
(e) Affiliate Subordination Agreement.
Simultaneously with signing this Agreement, Plaintiffs, QDI and certain other
parties shall execute and deliver the Affiliate Subordination Agreement in the
same form and substance as Exhibit E attached hereto and incorporated herein by
this reference.
(f) Future Legal Representation and Costs/Expenses.
(1) The parties hereto acknowledge that BC is indemnifying and holding harmless
its officers, directors and agents from defense costs and potential damages in
the Third Party Suits, as hereinafter defined, and that QDI is indemnifying and
holding harmless its officers, directors and agents from defense costs and
potential damages in the Third Party Suits. BC and QDI hereby agree that the
costs of such indemnification of said parties incurred after the date of this
Agreement shall be included as a part of the Future Litigation Costs/Expenses,
as hereinafter defined.
(2) With respect to the D&K Lawsuit and the Reilly/BFBC Lawsuit (collectively,
the "Third Party Suits"), the fees and disbursements charged by the outside
attorneys and experts representing the applicable BC Parties and the QDI Parties
for those services performed and disbursements made after the date of this
Agreement in defending and/or prosecuting the Third Party Suits, including
without limitation such fees and disbursements incurred in connection with
collecting any judgment (the "Future Litigation Costs/Expenses"), shall be
shared equally by BC and QDI. For all purposes of this Agreement, those Future
Litigation Costs/Expenses incurred in connection with the Reilly/BFBC Lawsuit
sometimes shall be referred to herein separately as the "Reilly/BFBC Costs and
Expenses" and those Future Litigation Costs/Expenses incurred in connection with
the D&K Lawsuit sometimes shall be referred to herein separately as the D&K
Lawsuit Costs and Expenses." BC and QDI shall cooperate in coordinating the
defense and/or the prosecution of the Third Party Suits so as to reasonably
minimize the amount of Future Litigation Costs/Expenses. In this regard, the
applicable BC Parties and the QDI Parties each shall seek joint representation
for the Third Party Suits and shall instruct the attorneys providing such joint
representation accordingly.
(3) The applicable BC Parties and the QDI Parties shall instruct the outside
attorneys providing the joint representation for the Third Party Suits to
prepare joint bills for the Future Litigation Costs/Expenses, such that each
such bill is addressed to BC and QDI. BC and QDI each shall then pay promptly,
but in any event within sixty (60) days, one-half of each such bill. Should,
for whatever reason, the Future Litigation Costs/Expenses be billed to BC and
QDI separately, then BC and QDI shall each submit to the other party, on a
monthly basis, an itemized statement of the Future Litigation Costs/Expenses
incurred by such party during the previous month. On a quarterly basis, BC and
QDI shall determine whether, based on such joint bills or itemized statements,
as the case may be, BC or QDI has incurred Future Litigation
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Costs/Expenses in excess of the amount of the Future Litigation Costs/Expenses
incurred by the other party for the quarter then ended (the "Excess Future
Litigation Costs/Expenses"). In the event that either BC or QDI incur Excess
Future Litigation Costs/Expenses for such quarter, then the other party shall,
within thirty (30) days from the date of determination of the Excess Future
Litigation Costs/Expenses, reimburse BC or QDI, as the case may be, an amount
equal to one half of the Excess Future Litigation Costs/Expenses for such
quarter.
(4) The applicable QDI Parties hereby authorize BC to direct, through counsel,
all aspects of the prosecution and defense of the D&K Lawsuit. BC's discretion
shall include the decision to prosecute all claims through trial and appeal, if
deemed necessary or appropriate by BC. BC shall use commercially reasonable
judgment in exercising this discretion. BC shall consult with QDI whenever
practical about material matters prior to rendering such direction. The
applicable BC Parties and QDI Parties shall seek the appointment of Piper,
Marbury, Rudnick & Wolfe ("PMRW") as lead counsel in the D&K Lawsuit, so long as
Steve Fedder, an attorney with PMRW, is willing and able to serve in this
capacity. The parties shall retain Bryan Cave to support, as deemed appropriate
by BC.
The applicable QDI Parties hereby agree with the applicable BC Parties that BC
shall be authorized to determine the terms of any settlement of the D&K Lawsuit;
provided that (i) such terms include an unconditional release of the applicable
QDI Parties from the opposing parties in the D&K Lawsuit, and (ii) the QDI
Parties are not obligated to contribute any cash or other assets in
consideration of such settlement, other than release of its counterclaims in the
D&K Lawsuit. In contrast, both QDI and BC must agree upon any resolution of the
D&K Lawsuit reached through settlement that requires the payment of money or
other property to, for the benefit of, or at the discretion of the opposing
parties to the D&K Lawsuit or any of their respective Affiliates.
(5) The applicable BC Parties hereby authorize QDI to direct, through counsel,
all aspects of the prosecution and defense of the Reilly/BFBC Lawsuit. QDI's
discretion shall include the decision to prosecute all claims through trial and
appeal, if deemed necessary or appropriate by QDI. QDI shall use commercially
reasonable judgment in exercising this discretion. QDI shall consult with BC
whenever practical about material matters prior to rendering such direction. The
applicable BC Parties and QDI Parties shall seek the appointment of Bryan Cave
as lead counsel in the Reilly/BFBC Lawsuit, so long as Ellen Bonacorsi or
William Edgar, attorneys with Bryan Cave, are willing and able to serve in this
capacity. The parties shall retain PMRW to support, as deemed appropriate by
QDI.
The applicable BC Parties hereby agree with the applicable QDI Parties that QDI
shall be authorized to determine the terms of any settlement of the Reilly/BFBC
Lawsuit; provided that (i) such terms include an unconditional release of the
applicable BC Parties from the opposing parties in the Reilly/BFBC Lawsuit, and
(ii) the BC Parties are not obligated to contribute any cash or other assets in
consideration of such settlement, other than release of its counterclaims in the
Reilly/BFBC Lawsuit. In contrast, both QDI and BC must agree upon any resolution
of the Reilly/BFBC Lawsuit reached through settlement that requires the payment
of money or other property to, for the benefit of, or at the discretion of the
opposing parties to the Reilly/BFBC Lawsuit or any of their respective
Affiliates.
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(g) Vendor Claims. QDI shall indemnify, defend and hold harmless the BC Parties,
the other BC Releasees, as defined in the Release, and any of the BC Parties' or
BC Releasees' respective Affiliates from any and all Damages arising out of
claims made by those vendors for obligations under those contracts listed under
the heading "QDI Vendor Claims" on Exhibit F, attached hereto and incorporated
herein by this reference. BC shall indemnify, defend and hold harmless the QDI
Parties, the other QDI Releasees, as defined in the Release, and the QDI
Parties' and the QDI Releasees' respective Affiliates from any and all Damages
arising out of claims made by those vendors for obligations under those
contracts listed under the heading "BC Vendor Claims" on Exhibit E.
(h) Tax Claims. QDI shall indemnify, defend and hold harmless the BC Parties,
other BC Releasees and the BC Parties' and BC Releasees' respective Affiliates
from: (i) the full amount of any and all Damages for or in respect of those
Taxes owed by the Bagel Companies, or their successors and assigns, and
described on Exhibit G, attached hereto and incorporated herein by this
reference; and (ii) fifty percent (50%) of any and all Damages for or in respect
of those Taxes relating to sales and use taxes owed by the Bagel Companies, or
their successors and assigns, in any state, other than Michigan and Ohio, for
tax years ending in 1997 and earlier. QDI shall promptly cause any and all such
Taxes set forth on Exhibit G to be paid, settled or otherwise resolved. BC and
QDI hereby agree that each will use good faith efforts to cooperate with each
other and work together to respond to any and all audits, investigations,
proceedings, suits and other matters relating to the Taxes referenced in clauses
(i) and (ii), above, which may be brought by any Governmental Body.
(i) PLB Lawsuit.
(1) With respect to the lawsuit in the United States District Court for the
District of New Mexico entitled "Beth Hunter and Monique Pratto v. PLB
Enterprises, Inc., Quality Dining, Inc., Bruegger's Fresh Bagel Bakery, and
Patrick Beatty," Docket No. CIV98-0077 JP/JHG (the "PLB Lawsuit"), BC and QDI
each acknowledges that it is represented by the law firm of Riley, Shane and
Hale in the PLB Lawsuit and each agrees that it will continue to be jointly
represented by said firm in such matter until such time as it notifies the other
party in writing that it wishes to cease such representation. All fees and
disbursements charged by the outside attorneys and experts representing BC and
QDI for services and disbursements made after the date of this Agreement in
defending and/or prosecuting the PLB Lawsuit (the "PLB Litigation
Costs/Expenses") shall continue to be shared equally by BC and QDI. BC and QDI,
for themselves and for their respective Affiliates hereby agree that for so long
as BC and QDI are jointly represented in the PLB Suit that all aspects of the
defense, any prosecution or the terms of any settlement shall be jointly managed
and agreed upon by BC and QDI. Should either or both of BC and QDI elect to not
be jointly represented by Riley, Shane and Hale or any other law firm, then BC
and QDI shall cooperate in coordinating the defense and/or the prosecution of
the PLB Lawsuit so as to reasonably minimize the amount of the PLB Litigation
Costs/Expenses. In this regard, BC and QDI each shall instruct their counsel to
coordinate and consult with the other party's counsel before taking any material
action in connection with the PLB Lawsuit and the parties shall agree on all
material actions to be taken in connection with the PLB Lawsuit.
BC and QDI shall instruct the outside attorneys providing the joint
representation for the PLB Lawsuit to prepare joint bills for the PLB
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Litigation Costs/Expenses, such that each bill is addressed to BC and QDI. BC
and QDI each shall then pay promptly, but in any event within sixty (60) days,
one-half of each such bill. Should, for whatever reason, the PLB Litigation
Costs and Expenses be billed to BC and QDI separately, then BC and QDI shall
each submit to the other party, on a monthly basis, an itemized statement of PLB
Litigation Costs/Expenses incurred by such party during the previous month. On a
quarterly basis, BC and QDI shall determine whether, based on such joint bills
or itemized statements, as the case may be, BC or QDI have incurred PLB
Litigation Costs/Expenses in excess of the amount of PLB Litigation
Costs/Expenses incurred by the other party for the quarter then ended (the "PLB
Excess Litigation Costs/Expenses"). In the event that either BC or QDI incur PLB
Excess Litigation Costs/Expenses for such quarter, then the other party shall,
within thirty (30) days from the date of determination of the PLB Excess
Litigation Costs/Expenses, reimburse BC or QDI, as the case may be, an amount
equal to one half of the PLB Excess Litigation Costs/Expenses for such quarter.
(2) In the event BC, QDI or their respective Affiliates become obligated to pay
any sums of money to satisfy a judgment rendered in the PLB Lawsuit or for
purposes of settling the PLB Lawsuit, including without limitation any award of
attorneys' fees and costs of litigation (the "PLB Obligations"), then the PLB
Obligations shall be paid and satisfied from the following sources and in the
following order until fully paid and satisfied: (i) First, from any PLB
Recovery, as hereinafter defined; and (ii) Second, from BC and QDI, with BC
paying fifty percent (50%) of the then remaining PLB Obligations and QDI paying
the remaining fifty percent (50%) of the then remaining PLB Obligations.
(3) In the event any sums of money are recovered and collected by BC, QDI or
their respective Affiliates as a result of a judgment rendered in the PLB
Lawsuit or as a result of settlement of the PLB Lawsuit, including without
limitation any award of attorneys' fees and costs of litigation (the "PLB
Recovery"), then the PLB Recovery shall be distributed to the following parties
and in the following order until fully distributed: (i) First, to those parties
necessary to pay and satisfy any PLB Obligations; (ii) Second, to BC or QDI, as
the case may be, in an amount equal to any unpaid PLB Excess Litigation
Costs/Expenses; (iii) Third, to BC and QDI, equally, up to the amounts necessary
to reimburse BC and QDI for their respective shares of the PLB Litigation
Costs/Expenses; and (iv) Fourth, to BC and QDI, equally.
(j) Limitation on QDI Liability Concerning Third Party Suits. Notwithstanding
anything to the contrary contained in this Agreement, the maximum aggregate
dollar amount of QDI's liability for the Reilly/BFBC Obligations, the D&K
Obligations and the Future Litigation Costs/Expenses shall not exceed an amount
equal to the following sum: (i) any distributions of the portion of any D&K
Recovery remaining after any D&K Obligations, that QDI actually receives
pursuant to the terms of this Agreement; plus (ii) any distributions of that
portion of any Reilly/BFBC Recovery, remaining after any Reilly/BFBC
Obligations, that QDI actually receives pursuant to the terms of this Agreement
(including, without limitation but without duplication, the Reilly/BFBC Credit)
which exceeds Four Million Two Hundred Thousand and No/100 Dollars
($4,200,000.00), plus (iii) any insurance proceeds paid after August 1, 2000,
under policies insuring QDI or its Affiliates from claims under the Reilly/BFBC
Lawsuit and/or D&K Lawsuit with respect to such Lawsuits; plus (iv) Four Million
and No/100 Dollars ($4,000,000.00) (the "QDI Liability Cap"). BC shall
indemnify, defend and hold harmless QDI, the QDI Releasees and each of their
Affiliates from any and all
<PAGE> 11
Damages in excess of the QDI Liability Cap which arise out of or are related to
the Reilly/BFBC Lawsuit and/or D & K Lawsuit.
(k) Excluded Liabilities. QDI shall indemnify, defend and hold harmless the BC
Parties, other BC Releasees and the BC Parties' and BC Releasees' respective
Affiliates from any and all Damages relating to the Excluded Liabilities.
(l) Benefit Plans. QDI shall indemnify, defend and hold harmless the BC Parties,
other BC Releasees and the BC Parties' and BC Releasees' respective Affiliates
from any and all Damages relating to liabilities or obligations under any
so-called 401k retirement plans maintained by QDI or the Bagel Companies for any
acts or omissions prior to October 20, 1997. In connection with this paragraph
5(l) of this Agreement, QDI, for itself and on behalf of its Affiliates, hereby
represents and warrants that neither QDI nor its Affiliates, either current or
former, had any retirement plans in place for the benefit of employees of the
Bagel Companies, prior to October 20, 1997, except for the aforementioned 401k
retirement plans.
(m) Bagel Business. QDI shall indemnify, defend and hold harmless the BC
Parties, the other BC Releasees and the BC Parties' and BC Releasees' respective
Affiliates from any and all Damages arising from tort claims (other than tort
claims related to or arising out of any Franchisee Claim) based upon acts,
omissions or occurrences that occurred in the operation of the bagel bakeries
comprising the Bagel Business prior to or on October 20, 1997. BC shall
indemnify, defend and hold harmless the QDI Parties, the other QDI Releasees and
the QDI Parties' and the QDI Releasees' respective Affiliates from any and all
Damages arising from tort claims based upon acts, omissions or occurrences that
occurred in the operation of the bagel bakeries comprising the Bagel Business
after October 20, 1997.
(n) Franchisee Claims. Except for the Reilly/BFBC Lawsuit and the D&K Lawsuit,
which shall be treated as expressly provided herein, BC shall indemnify, defend
and hold harmless the QDI Parties, the other QDI Releasees and their respective
Affiliates from any and all Damages arising from or related to any Franchisee
Claims.
(o) Lease Guarantees. BC shall indemnify, defend and hold harmless the QDI
Parties, the other QDI Releasees and the QDI Parties' and the QDI Releasees'
respective Affiliates from any and all Damages incurred by QDI under any
guarantee of any lease to which any of the Bagel Companies was a party as of
October 20, 1997, except to the extent such guarantee relates to an Excluded
Store.
(p) Directors' and Officers' Indemnification and Liability Insurance. QDI shall
continue to indemnify, defend and hold harmless Brue, Dressell and David Austin
("Austin") in their capacities as former directors of QDI. QDI also shall
continue to cover Brue, Dressell and Austin, in their capacity as former
directors of QDI, under QDI's directors' and officers' liability insurance
policy until October 20, 2003, for events occurring prior to October 20, 1997;
provided, however, that should QDI renew or replace its existing directors' and
officers' liability insurance policy and providing such coverage to Brue,
Dressell and Austin would cause QDI's premiums for such replacement or renewal
policy to be 125% higher than the premiums that QDI would otherwise have to pay
without covering Brue, Dressell and Austin, then QDI shall not be required to
provide such coverage. QDI also agrees that any settlement of an action or
proceeding including claims against Brue, Dressell or
<PAGE> 12
Austin, in their capacities as directors of QDI, shall include a release in the
form and substance reasonably satisfactory to Brue, Dressell and Austin.
(q) Worker's Compensation. BC shall indemnify, defend and hold harmless the QDI
Parties, the QDI Releasees and each of their Affiliates from any and all Damages
relating to worker's compensation arising under or in connection with any
person's employment with any of the Bagel Companies for incidents occurring
after October 20, 1997.
(r) Individuals. The QDI Parties and the BC Parties, each for themselves and
their respective Affiliates, acknowledge, understand and agree that none of
Brue, Dressell, Fitzpatrick, Davis nor Findlay are undertaking any obligations
under nor have any liabilities with respect to this Agreement or the matters
referenced herein, other than to enter into the Release and to cooperate in the
defense and prosecution of the Reilly/BFBC Lawsuit and the D&K Lawsuit.
6. Termination of SEA and Plan of Merger.
(a) QDI, BC, Lethe, Brue and Dressell hereby agree that all continuing
obligations under the SEA and the Plan of Merger are terminated.
(b) Notwithstanding anything to the contrary contained in this Agreement or the
Release, nothing contained in this Agreement or the Release is intended to, nor
shall it be construed to release, the QDI Releasees or the BC Releasees from
their respective obligations, covenants, duties, agreements or representations
and warranties under this Agreement or, to the extent applicable, the Amended
and Restated Subordinated Note or Amended and Restated Subordinated Guarantee or
the Affiliate Subordination Agreement
7. Representations and Warranties.
(a) Representations and Warranties of QDI. The QDI Parties represent and warrant
that (i) the QDI Parties or their Affiliates have not heretofore assigned or
transferred, or purported to have assigned or transferred, to any person or
entity, any claim or portion thereof or interest therein that is the subject of
this Agreement; (ii) QDI or its Affiliates have not heretofore assigned,
transferred or encumbered, or purported to have assigned, transferred or
encumbered, to any person or entity, the Subordinated Note, Subordinated
Guarantee or any interests therein, except to its lender; (iii) the QDI Parties
have full power and authority to enter into this Agreement, the Release and all
other agreements to be entered in connection with this Agreement; (iv) this
Agreement does not require the consent of (x) any lender or, if required, such
consent already has been obtained or (y) any party claiming by, through or under
the QDI Parties and/or their Affiliates and (v) the persons executing this
Agreement on behalf of the QDI Parties that are entities are duly authorized to
do so.
(b) Representations and Warranties of the BC Parties. The BC Parties represent
and warrant that (i) the BC Parties or their Affiliates have not heretofore
assigned or transferred, or purported to have assigned or transferred, to any
person or entity, any claim or portion thereof or interest therein that is the
subject of this Agreement; (ii) the BC Parties have full power and authority to
enter into this Agreement, the Release and all other agreements to be entered in
connection with this Agreement; (iii) this Agreement does not require the
consent of (x) any lender or, if required, such consent already has been
obtained or (y)
<PAGE> 13
any party claiming by, through or under the BC Parties and/or their Affiliates;
and (iv) the persons executing this Agreement on behalf of the BC Parties that
are entities are duly authorized to do so.
8. Entire Agreement.
This is the entire Agreement between the parties hereto and it may not be
modified or canceled in any manner except in writing signed by said parties. The
parties hereto make no promises to each other concerning the subject matter
hereof, other than those in this Agreement, the Release or the other agreements
to be entered in connection with this Agreement.
9. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the QDI Parties and the BC
Parties and to their respective heirs, executors, administrators,
representatives, predecessors, successors, assigns, Affiliates, Subsidiaries,
officers, directors, members, managers, governors, stockholders, owners,
representatives or agents.
10. No Third Party Rights.
Other than the Persons identified in Section 9 above and Affiliates of the BC
Parties or QDI Parties as to whom rights are expressly conferred hereunder (each
of whom is an "Included Third Party"), no Person who is not a party to this
Agreement (a "Non-Party") (other than each Included Third Party) is intended by
the parties to be a beneficiary of this Agreement and no such other Person may
enforce or assert any right, remedy, or obligation of any Person hereunder.
Without limiting the foregoing, no Non-Party (other than an Included Third
Party) may enforce any obligation of QDI to indemnify or hold harmless any of
the BC Parties or any of their Affiliates or of BC to indemnify or hold harmless
the QDI Parties or any of their Affiliates. Nothing set forth in this paragraph
is intended to nor shall be construed to impair in any way any rights that the
QDI Parties, the QDI Releasees, the BC Parties and BC Releasees may have with
respect to insurance coverage that would be available to respond to the tort
claims referred to in Section 5 (m) above.
11. Interpretation.
This Agreement shall be construed as a whole according to its fair meaning, and
not strictly for or against any of the parties. Paragraph headings used in this
Agreement are intended solely for convenience or reference and shall not be used
in the interpretation of this Agreement. As used in this Agreement, the
masculine, feminine or neutered gender shall be deemed to include the others
whenever the context so indicates or requires.
12. Full and Independent Knowledge; Understanding.
(a) QDI Understanding. The QDI Parties represent and agree that they have
discussed any and all aspects of this Agreement with their attorney, and that
they have carefully read and fully understand all of the provisions in this
Agreement, and that they have had a reasonable time in which to review the
Agreement and that they freely and voluntarily consent to all the terms and
conditions of this Agreement, and that they understand the final and binding
effect of this Agreement
<PAGE> 14
and that they sign the same freely and voluntarily.
(b) Plaintiffs Understanding. The BC Parties represent and agree that they have
discussed any and all aspects of this Agreement with their attorney, and that
they have carefully read and fully understand all of the provisions in this
Agreement, and that they have had a reasonable time in which to review the
Agreement and that they freely and voluntarily consent to all the terms and
conditions of this Agreement, and that they understand the final and binding
effect of this Agreement and that they sign the same freely and voluntarily.
13. Choice of Law.
This Agreement and all questions relating to its validity, interpretation,
performance and enforcement shall be governed by and construed in accordance
with the laws of the State of Indiana, without reference to principles of
conflicts of laws.
14. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the same
instrument. All such counterparts may be evidenced by facsimile and each such
facsimile shall be deemed an original, shall be binding upon the parties for all
purposes herein, and, together with any other counterpart, shall constitute one
and the same instrument.
15. Further Assurances
The parties hereto agree to do such further acts and things and to execute and
deliver such additional agreements and instruments as the other parties may
reasonably require to consummate, evidence or confirm the agreements contained
in this Agreement, the Release and the other documents to be entered into in
connection with this Agreement in the manner contemplated hereby. Without
limiting the foregoing, the BC Parties, QDI Parties and their respective
Affiliates agree, upon request, to promptly provide, or cause the applicable BC
Parties or QDI Parties, as the case may be, to promptly provide a full
accounting of any Reilly/BFBC Recovery, D & K Recovery or PLB Recovery and shall
enter into such documentation as is reasonably requested to reflect any
Reilly/BFBC Credit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
QUALITY DINING, INC. BRUEGGER'S CORPORATION
By: /s/ John C. Firth By: /s/ Steven P. Schonberg
------------------------------ --------------------------------
Its: Exec. Vice President Its: Chief Financial Officer
GRADY'S AMERICAN GRILL, LP LETHE LLC
By: Grady's American Grill
Restaurant Corporation
Its: General Partner
By: /s/ John C. Firth By: /s/ Steven P. Schonberg
------------------------------ --------------------------------
Its: President Its: President
<PAGE> 15
GRADY'S AMERICAN BRUEGGER'S FRANCHISE CORPORATION
GRILL RESTAURANT CORPORATION
By: /s/ John C. Firth By: /s/ Steven P. Schonberg
------------------------------ --------------------------------
Its: President Its: Chief Financial Officer
CHAMPLAIN MANAGEMENT SERVICES, INC.
/s/ Daniel B. Fitzpatrick By: /s/ Steven P. Schonberg
--------------------------------- --------------------------------
Daniel B. Fitzpatrick Its: President
/s/ Michael J. Dressell
-----------------------------------
Michael J. Dressell
/s/ David M. Findlay /s/ Edward Davis
--------------------------------- -----------------------------------
David Findlay Edward Davis
/s/ Nordahl L. Brue
-----------------------------------
Nordahl L. Brue
STATE OF INDIANA
ST. JOSEPH COUNTY, SS.
At Mishawaka, IN, on this 28th day of February, 2001, before me personally
appeared John C. Firth, the Exec. Vice President and duly authorized agent of
QUALITY DINING, INC. who acknowledged the foregoing by him subscribed to be his
free act and deed and the free act and deed of QUALITY DINING, INC.
/s/ Jill M. Condon
---------------------------------
Notary Public
My Commission Expires: February 18, 2008
I am a resident of St. Joseph, County
<PAGE> 16
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT, on this 27th day of February, 2001, before me personally
appeared Steven P. Schonberg, the Chief Financial Officer and duly authorized
agent of BRUEGGER'S CORPORATION who acknowledged the foregoing by him subscribed
to be his free act and deed and the free act and deed of BRUEGGER'S CORPORATION.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
STATE OF INDIANA
ST.JOSEPH COUNTY, SS.
At Mishawaka, IN, on this 28th day of February, 2001, before me personally
appeared John C. Firth, the President and duly authorized agent of Grady's
American Grill Restaurant Corporation, the general partner of GRADY'S AMERICAN
GRILL, LP who acknowledged the foregoing by him subscribed to be his free act
and deed and the free act and deed of GRADY'S AMERICAN GRILL, LP.
/s/ Jill M. Condon
---------------------------------
Notary Public
My Commission Expires: February 18, 2008
I am a resident of St. Joseph, County IN
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT, on this 27th day of February, 2001, before me personally
appeared Steven P. Schonberg, the President and duly authorized agent of LETHE
LLC who acknowledged the foregoing by him subscribed to be his free act and deed
and the free act and deed of LETHE LLC.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
STATE OF INDIANA
ST. JOSEPH COUNTY, SS.
At Mishawaka, IN, on this 28th day of February, 2001, before me personally
appeared John C. Firth, the President and duly authorized agent of GRADY'S
AMERICAN GRILL RESTAURANT CORPORATION who acknowledged the foregoing by him
subscribed to be his free act and deed and the free act and deed of GRADY'S
AMERICAN GRILL RESTAURANT CORPORATION.
/s/ Jill M. Condon
---------------------------------
Notary Public
My Commission Expires: February 18, 2008
I am a resident of St. Joseph, County IN
<PAGE> 17
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT, on this 27th day of February, 2001, before me personally
appeared Steven P. Schonberg, the President and duly authorized agent of
BRUEGGER'S FRANCHISE CORPORATION who acknowledged the foregoing by him
subscribed to be his free act and deed and the free act and deed of BRUEGGER'S
FRANCHISE CORPORATION.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
STATE OF INDIANA
ST. JOSEPH COUNTY, SS.
At Mishawaka, IN this 28th day of February, 2001, DANIEL B. FITZPATRICK
personally appeared, and he acknowledged the foregoing by him sealed and
subscribed, to be his free act and deed.
/s/ Jill M. Condon
---------------------------------
Notary Public
My Commission Expires: February 18, 2008
I am a resident of St. Joseph, County IN
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT, on this 27th day of February, 2001, before me personally
appeared Steven P. Schonberg, the President and duly authorized agent of
CHAMPLAIN MANAGEMENT SERVICES, INC. who acknowledged the foregoing by him
subscribed to be his free act and deed and the free act and deed of CHAMPLAIN
MANAGEMENT SERVICES, INC.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
<PAGE> 18
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT this 27th day of February, 2001, NORDAHL L. BRUE personally
appeared, and he acknowledged the foregoing by him sealed and subscribed, to be
his free act and deed.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
STATE OF VERMONT
CHITTENDEN COUNTY, SS.
At Burlington, VT this 27th day of February, 2001, MICHAEL J. DRESSELL
personally appeared, and he acknowledged the foregoing by him sealed and
subscribed, to be his free act and deed.
/s/ Kelly J. Reagan
---------------------------------
Notary Public
My Commission Expires: 02/10/03
STATE OF INDIANA
ST. JOSEPH COUNTY, SS.
At Mishawaka, IN this 28th day of February, 2001, DAVID FINDLAY personally
appeared, and he acknowledged the foregoing by him sealed and subscribed, to be
his free act and deed.
/s/ Jill M. Condon
---------------------------------
Notary Public
My Commission Expires: February 18, 2001
I am a resident of St. Joseph, County IN
STATE OF NORTH CAROLINA
WAKE COUNTY, SS.
At Raleigh, North Carolina this 27th day of February, 2001, EDWARD DAVIS
personally appeared, and he acknowledged the foregoing by him sealed and
subscribed, to be his free act and deed.
/s/
---------------------------------
Notary Public
My Commission Expires: 4/23/02