Common use of Settlement and Release Clause in Contracts

Settlement and Release. (a) Effective upon the Closing, in exchange for the payment by Buyer of the Credit Bid Release Consideration and other good and valuable consideration provided to the Debtors and their estates by ESL in connection with the Transactions, each Debtor, for itself and its estate, and on behalf of each of its Subsidiaries and controlled Affiliates (each of the foregoing, a “Seller Releasing Party”), hereby absolutely, unconditionally and irrevocably (i) releases and forever discharges ESL from any and all Released Estate Claims, whether foreseen or unforeseen, contingent or actual, and whether now known or hereafter discovered, which any of the Seller Releasing Parties ever had or now may have, and (ii) covenants that it shall not seek to disallow, subordinate, recharacterize, avoid, challenge, dispute or collaterally attack the ESL Claims, provided however that the assertion of any Claim other than a Released Estate Claim shall not be deemed to violate this Section 9.13(a)(ii). (b) Effective upon the Closing, ESL’s Claims against the Debtors arising under (i) the IP/Ground Lease Term Loan Facility; (ii) the FILO Facility; (iii) the Real Estate Loan 2020; (iv) the Second Lien Term Loan; (v) the Second Lien Line of Credit Facility; (vi) the Second Lien PIK Notes and (vii) the Citi L/C Facility (together with the any security interests securing any of the Claims described in the preceding sub-clauses (c)(i)-(vi), collectively, the “ESL Claims”) shall each be deemed allowed for all purposes in the Bankruptcy Cases and under the Bankruptcy Code in the amounts set forth on Exhibit G, as reduced by the credit bid set forth in Section 3.1(b). (c) After giving effect to the credit bid set forth in Section 3.1(b), ESL shall be entitled to assert any deficiency Claims, Claims arising under Section 507(b) of the Bankruptcy Code, or other Claims and causes of action that it may have against the Debtors and their estates in the Chapter 11 Cases, provided that (i) no Claims or causes of action of ESL shall have recourse to, or any other right of recovery from, any Claims or causes of action of the Debtors or their estates related to Lands’ End, Inc., the “spin-off” (as such term is defined in the Information Statement of Lands’ End, Inc. dated March 18, 2014), Seritage Growth Properties, Inc., Seritage Growth Properties, L.P, the “Transaction” (as that term is defined in the registration statement on Form S-11 filed by Seritage Growth Properties, which registration statement became effective on June 9, 2015), any Claim or cause of action involving any intentional misconduct by ESL, or the proceeds of any of the foregoing, (ii) any ESL Claims arising under Section 507(b) of the Bankruptcy Code shall be entitled to distributions of not more than $50 million from the proceeds of any Claims or causes of action of the Debtors or their estates other than the Claims and causes of action described in the preceding clause (c)(i); provided that, in the event that, in the absence of this clause (c)(ii), any such proceeds to the Debtors or their estates would have resulted in distributions in respect of such ESL Claims in excess of $50 million, the right to receive such distributions in excess of $50 million shall be treated as an unsecured claim and receive pro rata recoveries with general unsecured claims other than the Claims and causes of action described in the preceding clause (c)(i), and (iii) notwithstanding any order of the Bankruptcy Court to the contrary or section 1129 of the Bankruptcy Code, it shall not be a condition to confirmation of any chapter 11 plan filed in the Bankruptcy Cases that any ESL Claims arising under Section 507(b) of the Bankruptcy Code be paid in full or in part. (d) This Section 9.13, and all statements or negotiations relating hereto, shall be governed by Federal Rule of Evidence 408 and any corresponding state rules of evidence. Without limiting the foregoing, neither this Section 9.13 nor any statements or negotiations relating hereto shall be offered or received in evidence in any proceeding for any purpose other than to enforce the terms of this Section 9.13. (e) For the purposes of this Section 9.13, the terms set out below shall be defined as follows:

Settlement and Release. The parties hereto hereby agree as follows: In full settlement of all amounts owed by Triarc to the RTM Representatives for distribution by them pro rata to the RTMRG Shareholders pursuant to Section 2.09 of the Merger Agreement (aincluding any and all interest thereon), simultaneously with the execution and delivery of this Agreement, Triarc shall cause ARG to deliver to the RTM Representatives, for distribution by them pro rata to the RTMRG Shareholders, as an increase to the Aggregate Cash Consideration, cash (by wire transfer of immediately available funds) in an amount equal to $1,600,000 (the "Adjustment Amount"). Effective upon the ClosingRTM Representatives' receipt of the Adjustment Amount, each of Triarc and ARG, on the one hand, and the RTM Representatives, in exchange for the payment by Buyer of the Credit Bid Release Consideration their capacities as such and other good and valuable consideration provided to the Debtors and in their estates by ESL in connection with the Transactions, each Debtor, for itself and its estate, capacities as RTMRG Shareholders and on behalf of all other RTMRG Shareholders, on the other hand, do hereby release and forever discharge each other of its Subsidiaries and controlled Affiliates (each from all manner of actions, causes of action, suits, debts, interest, expenses, liabilities, obligations, damages, judgments, claims and demands of any kind or nature, in law or in equity, known or unknown, existing or arising in the future, whether or not damages are now accrued or ascertainable which either ever had, now has or may have in the future against the other, for, upon, or by reason of any matter or cause whatsoever relating to or arising out of Section 2.09 of the foregoingMerger Agreement. This Agreement is binding upon and inures to the benefit of all parties hereto, a “Seller Releasing Party”)their successors and assigns. This Agreement shall be construed and interpreted in accordance with the laws of New York. This Agreement sets forth the entire agreement among the parties with respect to the specific subject matter hereof, hereby absolutely, unconditionally and irrevocably (i) releases supersedes all prior agreements and forever discharges ESL from any and all Released Estate Claimsrepresentations between them with respect to the specific subject matter hereof, whether foreseen written or unforeseenoral. This Agreement may be changed only in writing, contingent or actual, and whether now known or hereafter discovered, which any signed by authorized representatives of the Seller Releasing Parties ever had or now may have, parties hereto. This Agreement is executed and (ii) covenants that it shall not seek delivered by the RTM Representatives pursuant to disallow, subordinate, recharacterize, avoid, challenge, dispute or collaterally attack the ESL Claims, provided however that the assertion of any Claim other than a Released Estate Claim shall not be deemed to violate this Section 9.13(a)(ii). (b) Effective upon the Closing, ESL’s Claims against the Debtors arising under (i) the IP/Ground Lease Term Loan Facility; (ii) the FILO Facility; (iii) the Real Estate Loan 2020; (iv) the Second Lien Term Loan; (v) the Second Lien Line of Credit Facility; (vi) the Second Lien PIK Notes and (vii) the Citi L/C Facility (together with the any security interests securing any 12.17 of the Claims described in Merger Agreement. [Signatures appear on the preceding sub-clauses (c)(i)-(vi), collectively, the “ESL Claims”) shall each be deemed allowed for all purposes in the Bankruptcy Cases and under the Bankruptcy Code in the amounts set forth on Exhibit G, as reduced by the credit bid set forth in Section 3.1(b)following page. (c) After giving effect to the credit bid set forth in Section 3.1(b), ESL shall be entitled to assert any deficiency Claims, Claims arising under Section 507(b) of the Bankruptcy Code, or other Claims and causes of action that it may have against the Debtors and their estates in the Chapter 11 Cases, provided that (i) no Claims or causes of action of ESL shall have recourse to, or any other right of recovery from, any Claims or causes of action of the Debtors or their estates related to Lands’ End, Inc., the “spin-off” (as such term is defined in the Information Statement of Lands’ End, Inc. dated March 18, 2014), Seritage Growth Properties, Inc., Seritage Growth Properties, L.P, the “Transaction” (as that term is defined in the registration statement on Form S-11 filed by Seritage Growth Properties, which registration statement became effective on June 9, 2015), any Claim or cause of action involving any intentional misconduct by ESL, or the proceeds of any of the foregoing, (ii) any ESL Claims arising under Section 507(b) of the Bankruptcy Code shall be entitled to distributions of not more than $50 million from the proceeds of any Claims or causes of action of the Debtors or their estates other than the Claims and causes of action described in the preceding clause (c)(i); provided that, in the event that, in the absence of this clause (c)(ii), any such proceeds to the Debtors or their estates would have resulted in distributions in respect of such ESL Claims in excess of $50 million, the right to receive such distributions in excess of $50 million shall be treated as an unsecured claim and receive pro rata recoveries with general unsecured claims other than the Claims and causes of action described in the preceding clause (c)(i), and (iii) notwithstanding any order of the Bankruptcy Court to the contrary or section 1129 of the Bankruptcy Code, it shall not be a condition to confirmation of any chapter 11 plan filed in the Bankruptcy Cases that any ESL Claims arising under Section 507(b) of the Bankruptcy Code be paid in full or in part. (d) This Section 9.13, and all statements or negotiations relating hereto, shall be governed by Federal Rule of Evidence 408 and any corresponding state rules of evidence. Without limiting the foregoing, neither this Section 9.13 nor any statements or negotiations relating hereto shall be offered or received in evidence in any proceeding for any purpose other than to enforce the terms of this Section 9.13. (e) For the purposes of this Section 9.13, the terms set out below shall be defined as follows:]

Settlement and Release. (a) Effective upon the Closing, in exchange for the payment by Buyer In consideration of the Credit Bid Release Consideration and other good and valuable consideration provided release of the Escrow Fund to the Debtors Buyer pursuant to Section 1 above and their estates by ESL the amendment to the Merger Agreement set forth in connection Section 2 above, the parties agree that the Dispute has been resolved and settled and no further payments are or could be due with the Transactions, each Debtor, for itself and its estaterespect thereto, and on behalf that no party to this Agreement will assert after the Effective Date of each this Agreement any claim or cause of its Subsidiaries and controlled Affiliates action against the other party with respect to the Dispute, consistent with subsections (each of the foregoing, a “Seller Releasing Party”), hereby absolutely, unconditionally and irrevocably (ib) releases and forever discharges ESL from any and all Released Estate Claims, whether foreseen or unforeseen, contingent or actual, and whether now known or hereafter discovered, which any of the Seller Releasing Parties ever had or now may have, and (iic) covenants that it shall not seek to disallow, subordinate, recharacterize, avoid, challenge, dispute or collaterally attack the ESL Claims, provided however that the assertion of any Claim other than a Released Estate Claim shall not be deemed to violate this Section 9.13(a)(ii)below. (b) Effective upon The Buyer hereby generally, irrevocably, unconditionally and completely releases and forever discharges the ClosingRepresentative, ESL’s Claims against the Debtors arising under Company Equityholders and their respective directors, officers and employees and past, present and future shareholders, affiliates, representatives, successors and assigns (i) the IP/Ground Lease Term Loan Facility; (ii) the FILO Facility; (iii) the Real Estate Loan 2020; (iv) the Second Lien Term Loan; (v) the Second Lien Line of Credit Facility; (vi) the Second Lien PIK Notes herein separately and (vii) the Citi L/C Facility (together with the any security interests securing any of the Claims described in the preceding sub-clauses (c)(i)-(vi), collectively, the “ESL ClaimsCompany Equityholder Releasees”) shall each be deemed allowed for from, and hereby irrevocably, unconditionally and completely waives and relinquishes, any obligations and liabilities of the Company Equityholder Releasees, and any and all purposes claims, demands, actions, Damages, causes of actions of whatever kind that the Buyer may have had in the Bankruptcy Cases and under the Bankruptcy Code past, may now have or may have in the amounts set forth on Exhibit Gfuture against the Company Equityholder Releasees, as reduced known or unknown, for, upon or by reason of any matter, cause or thing whatsoever, arising out of or relating to the credit bid set forth in Section 3.1(b)Dispute. (c) After giving effect to the credit bid set forth in Section 3.1(b)The Representative, ESL shall be entitled to assert any deficiency Claims, Claims arising under Section 507(b) on behalf of the Bankruptcy CodeCompany Equityholders, or other Claims hereby generally, irrevocably, unconditionally and causes of action that it may have against completely releases and forever discharges the Debtors Buyer and their estates in the Chapter 11 Casesits directors, provided that officers and employees and past, present and future shareholders, affiliates, representatives, successors and assigns (i) no Claims or causes of action of ESL shall have recourse to, or any other right of recovery from, any Claims or causes of action of the Debtors or their estates related to Lands’ End, Inc.herein separately and collectively, the “spin-off” (as such term is defined in the Information Statement of Lands’ EndBuyer Releasees”) from, Inc. dated March 18and hereby irrevocably, 2014), Seritage Growth Properties, Inc., Seritage Growth Properties, L.P, the “Transaction” (as that term is defined in the registration statement on Form S-11 filed by Seritage Growth Properties, which registration statement became effective on June 9, 2015)unconditionally and completely waives and relinquishes, any Claim or cause obligations and liabilities of action involving the Buyer Releasees, and any intentional misconduct by ESLand all claims, or the proceeds demands, actions, Damages, causes of actions of whatever kind that any of the foregoingCompany Equityholders may have had in the past, (ii) any ESL Claims arising under Section 507(b) of may now have or may have in the Bankruptcy Code shall be entitled to distributions of not more than $50 million from future against the proceeds Buyer Releasees, known or unknown, for, upon or by reason of any Claims matter, cause or causes thing whatsoever, arising out of action of the Debtors or their estates other than the Claims and causes of action described in the preceding clause (c)(i); provided that, in the event that, in the absence of this clause (c)(ii), any such proceeds relating to the Debtors or their estates would have resulted in distributions in respect of such ESL Claims in excess of $50 million, the right to receive such distributions in excess of $50 million shall be treated as an unsecured claim and receive pro rata recoveries with general unsecured claims other than the Claims and causes of action described in the preceding clause (c)(i), and (iii) notwithstanding any order of the Bankruptcy Court to the contrary or section 1129 of the Bankruptcy Code, it shall not be a condition to confirmation of any chapter 11 plan filed in the Bankruptcy Cases that any ESL Claims arising under Section 507(b) of the Bankruptcy Code be paid in full or in partDispute. (d) This The Buyer acknowledges that it may have claims against the Company Equityholder Releasees falling within Section 9.134(b) hereinabove of which the Buyer is currently unaware; and the Company Equityholder and Representative acknowledge that they may have claims against the Buyer Releasees falling within Section 4(c) hereinabove of which the Representative and Company Equityholder are currently unaware. The Buyer, the Representative, the Company Equityholders, and all statements each of them, further acknowledge that they may have sustained damages, losses, costs or negotiations relating heretoexpenses that are currently unknown or unsuspected, shall be governed by Federal Rule of Evidence 408 and any corresponding state rules of evidencethat such damages, losses, costs or expenses as may have been sustained may give rise to additional damages, losses, costs or expenses in the future. Without limiting the foregoingThe Parties acknowledge, neither however, that this Section 9.13 nor any statements or negotiations relating hereto shall be offered or received Agreement has been negotiated and agreed upon in evidence in any proceeding for any purpose other than to enforce the terms light of this Section 9.13situation, and that each of the Parties hereby expressly waive any and all rights they may have under statutory or common law or equity, which provide that a general release does not extend to claims which the releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the other party. (e) For the purposes of this Section 9.13, the terms set out below shall be defined as follows: