SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement"), made
effective this 17 day of December 2004 ("Effective Date"), is made by and
between St. Xxxx Fire and Marine Insurance Company and Xxxxxx'x Restaurant
Group, Inc.
RECITALS
WHEREAS, Xxxxxx'x Restaurant Group, Inc. sustained losses in connection
with the September 11, 2001 attack involving business and property located at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and
WHEREAS, Xxxxxx'x Restaurant Group, Inc. submitted a claim for these
losses to St. Xxxx Fire and Marine Insurance Company under a contract for
property insurance, numbered 144SP1157; and
WHEREAS, the Parties have been engaged in a good faith negotiation in
an attempt to resolve material differences regarding the nature and extent of
any coverage obligation that might exist for said losses under said contract for
insurance; and
WHEREAS, St. Xxxx Fire and Marine Insurance Company has already paid
Xxxxxx'x Restaurant Group, Inc. $6,745,612.00 (six million, seven hundred
forty-five thousand, six hundred twelve dollars and zero cents) net of the
deductible for these losses; and
WHEREAS, Xxxxxx'x Restaurant Group, Inc. contends that a further amount
is due, while St. Xxxx contends that no further amount is due; and
WHEREAS, the Parties desire to resolve finally and completely all
differences that are related in any way to said losses;
NOW THEREFORE, in consideration of the mutual promises of the Parties
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. DEFINITIONS.
Throughout this Agreement, including the preceding Recitals, the following
definitions will apply:
A. "St. Xxxx" means St. Xxxx Fire and Marine Insurance Company and its past,
present and future officers, directors, shareholders, principals, parents,
subsidiaries, affiliates, representatives, predecessors, successors, agents,
attorneys or assigns, and any and all Persons acting under its direction or
control or on their behalf.
B. "Morton's" means Xxxxxx'x Restaurant Group, Inc., and its past, present
and future officers, directors, shareholders, principals, affiliates,
representatives, predecessors, successors, agents, attorneys or assigns, and any
and all Persons acting under its direction or control or on its behalf.
C. "Insurance Contract" means the contract for property insurance numbered
144SP1157 between St. Xxxx and Morton's.
D. "Loss" means any and all losses to property, Person, or business,
including without limitation any property loss or business interruption loss,
sustained or allegedly sustained by Morton's as a result of, or in any way
caused by, the September 11, 2001 attack.
E. "Party" or "Parties" means individually or jointly, St. Xxxx or Morton's.
F. "Person" means any individual, corporation, partnership, unincorporated
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association, organization, governmental unit, sole proprietorship, trust or any
other entity (or estate, guardian or beneficiary thereof), recognized in law or
in fact to have rights or obligations.
II. PAYMENT.
No later than December 24, 2004, St. Xxxx Fire and Marine shall cause to be
delivered by overnite mail to Xxxxxx X. Xxxxxxx, Executive Vice President Chief
Financial Officer, Mortons Restaurant Group, 0000 Xxx Xxxx Xxxx Xxxx, Xxx Xxxx
Xxxx, Xxx Xxxx 00000 a check made payable to Xxxxxx'x Restaurant Group, Inc. in
an amount equal to $4,254,388.00 (four million, two hundred fifty-four thousand,
three hundred eighty-eight dollars and zero cents).
III. RELEASE.
The Parties hereby mutually release, remise and forever discharge each
other, their employees, agents, servants, principals, directors, officers,
shareholders, affiliates, parent and subsidiary companies, predecessors,
successors, assigns, designees, attorneys and insurers, whether past, present or
future from any and all claims, debts, demands, accountings, costs, attorneys'
fees:
1. with respect to the Loss, or
2. that arise out of or relate to St. Paul's performance (or lack of
performance) of any obligations existing or alleged to exist with respect to the
Insurance Contract, including but not limited to any claims relating to unfair
settlement practices, insurance statutory code violations, bad faith, deceptive
trade practices, breach of fiduciary duty, fraud, malice, or oppression.
IV. REPRESENTATION AND WARRANTIES.
Morton's represents and warrants that:
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1. it has not sold, assigned, or otherwise transferred any rights of
subrogation, indemnity or contribution arising out of or relating to the Loss;
and
2. it is fully authorized to act on behalf of the Persons described in the
definition of "Morton's" herein and that the individual signing this Agreement
on behalf of Morton's is duly authorized to enter into this Agreement, and to
execute and legally bind Morton's to it.
St. Xxxx represents and warrants that it is fully authorized to act on
behalf of the Persons described in the definition of "St. Xxxx" herein and that
the individual signing this Agreement on behalf of St. Xxxx is duly authorized
to enter into this Agreement, and to execute and legally bind St. Xxxx to it.
V. CONFIDENTIALITY.
The Parties shall maintain in strictest confidence the terms, conditions,
negotiation and implementation of this Agreement and shall not disclose or
characterize the terms, conditions, negotiation or implementation of this
Agreement except as provided in this Section V. The terms, conditions,
negotiation or implementation of this Agreement may only be disclosed or
characterized:
1. In any action by any Party to enforce the terms of this Agreement; or
2. Under any valid order of any court or administrative agency of competent
jurisdiction with the statutory power to compel such disclosure; or
3. By St. Xxxx, in response to any claim, demand, proceeding or cause of
action of whatsoever kind and nature asserted against St. Xxxx by any Person for
services or benefits under or related to the Insurance Contract; or
4. By St. Xxxx, if necessary to show any reduction or exhaustion of the
applicable
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limits of the Insurance Contract; or
5. By St. Xxxx, to its attorneys, reinsurers, reinsurance intermediaries,
lenders, accountants, regulators or auditors; or
6. By Morton's to its attorneys, auditors, accountants, lenders, investors,
brokers or assignees; or
7. By mutual written agreement of the Parties, which agreement shall not be
unreasonably withheld; or
8. By Morton's in its financial statements and its filings with the
Securities and Exchange Commission.
VI. NO ADMISSIONS.
A. Nothing contained in this Agreement or in any document exchanged by the
Parties in the negotiation or furtherance of this Agreement shall be construed
as an admission or concession by any Party that it has any liability to any
other Party.
B. Neither the terms of this Agreement nor its negotiation, its execution or
any action in performance of this Agreement shall be construed or asserted by
any Person as giving rise to or creating any waiver by any Party of any of the
terms, provisions, conditions or exclusions of any contract for insurance.
C. The Parties agree, as an essential and integral part of this Agreement,
that this Agreement and the maters contained in this Agreement are not, and
cannot be construed as, or asserted by any Person to be, an admission or
concession by St. Xxxx that any liability or duty of any kind exists with
respect to the Insurance Contract or otherwise, other than those obligations
expressly set forth in and arising under this Agreement.
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VII. MISCELLANEOUS.
A. SECTION HEADINGS. Section headings in this Agreement are provided solely
for the convenience of the Parties and shall not be construed as affecting the
rights or the obligations of the Parties under this Agreement.
B. This Agreement has been entered into in reliance upon provisions of Rule
408 of the of the Federal Rules of Evidence, and similar state rules of
evidence, which preclude the introduction of evidence regarding settlement
negotiation and/or agreements. Except as permitted pursuant to Section V above,
any evidence relating to the negotiation, terms, or facts of this Agreement
shall not be admissible in any future litigation by any Person or Party.
C. RECITALS. The Recitals set forth above are incorporated by reference
herein and are made a part of this Agreement.
D. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to its
conflict of laws provisions, and shall be binding upon, inure to the benefit of
and be enforceable by, the Parties and their respective former, present or
future officers, directors, shareholders, employees, successors, assigns,
agents, attorneys and representatives.
E. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the Parties with respect to the subject matter hereof. There are no
other agreements or understandings between the Parties with respect to, and
there have not been any contrary or additional representations (express or
implied) between the Parties concerning, the subject matter herein.
F. SEVERABILITY. If any provision of this Agreement, or any portion of any
provision of this Agreement, is declared or found to be null and void, such
provision or such portion of
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such provision shall be considered separate and apart from the remainder of this
Agreement, which shall remain in full force and effect.
G. AMENDMENT/WAIVER. This Agreement, or any part of it, may be amended,
waived or modified only be a written instrument duly executed by both Parties
prior to the effective date of such amendment, waiver or modification.
H. NOT TO BE CONSTRUED AGAINST DRAFTER. This Agreement is a negotiated
document initially prepared by one Party as a matter of convenience; therefore,
in the event of any dispute between the Parties, as a matter of law, the
provisions of this Agreement shall not be construed against or in favor of
either Party solely as a consequence of such Party's preparation, or lack of
preparation, of this Agreement or on the ground that either Party is or is not
an insurer.
I. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and both of which together shall be
deemed to be one and the same agreement.
J. FURTHER ACTS. Each party covenants and agrees to execute such instruments
and perform such acts as shall be reasonably necessary to carry out the terms of
this Agreement.
K. VOLUNTARY NATURE OF AGREEMENT. Each Party represents that it has read
this Agreement in its entirety, understands its terms and conditions, and has
signed this agreement after conferring with legal counsel.
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by
such Party or its duly authorized officer as of the dates indicated.
[SIGNATURE PAGE TO FOLLOW]
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XXXXXX'X RESTAURANT GROUP, INC.
Date: 12/17, 2004 By: /s/ Xxxxxx X. Xxxxxxx, EVP & CFO
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Name: Xxxxxx X. Xxxxxxx
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Its: EVP & CFO
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ST. XXXX FIRE AND MARINE INSURANCE COMPANY
Date: 12/23, 2004 By: /s/ Xxxxxxx X. Loud, AVP
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Name: Xxxxxxx X. Loud
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Its: Assistant Vice President
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St. Xxxx Travelers
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