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:
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Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
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:]
Appears in 1 contract
Settlement and Release. (a) Effective upon The parties hereto agree and acknowledge that (1) the provisions of the Contribution Agreement listed in Schedule 2.1(a) and (2) the Related Agreements and other agreements listed in Schedule 2.1
(a) (collectively, the "Non-Terminated Provisions and Agreements") remain in full force and effect.
(b) The parties hereto agree and acknowledge that subject to subparagraph (d) of this Section 2.1, (1) all provisions of the Contribution Agreement other than those listed in Schedule 2.1(a) and (2) each of the Related Agreements listed in Schedule 2.1(b) (collectively, the "Terminated Provisions and Agreements") either have been, or hereby are, terminated (including any provision in such a Related Agreement which, by its terms, would otherwise survive such termination), without any further obligation thereunder on the part of any party thereto.
(1) The Crown Vantage Entities represent and warrant to the Fort ▇▇▇▇▇ Entities that, as of the date hereof, the Crown Vantage Entities know of (A) no breaches or potential breaches by the Fort ▇▇▇▇▇ Entities, (B) no claims or potential claims by the Crown Vantage Entities against the Fort ▇▇▇▇▇ Entities, and (C) no facts, circumstances or events which would give rise to the assertion of any such breach or any such claims, in each case under the Non- Terminated Provisions and Agreements.
(2) The Fort ▇▇▇▇▇ Entities represent and warrant to the Crown Vantage Entities that, as of the date hereof, the Fort ▇▇▇▇▇ Entities know of (A) no breaches or potential breaches by the Crown Vantage Entities, (B) no claims or potential claims by the Fort ▇▇▇▇▇ Entities against the Crown Vantage Entities, and (C) no facts, circumstances or events which would give rise to the assertion of any such breach or any such claims, in each case under the Non- Terminated Provisions and Agreements.
(d) The parties agree and acknowledge that (1) their respective obligations set forth in the 11.45% Notes, the Purchase Agreement and the Registration Rights Agreement, remain in full force and effect and shall be unaffected by the other provisions of this Article II and (2) no releases of any such obligations are being granted under this Article II or otherwise.
2.2. In consideration for, subject to and effective upon, the effectiveness of the releases granted under Section 2.3, at the Settlement Closing (as defined in Section 2.6), the Fort ▇▇▇▇▇ Subsidiaries agree to sell, transfer and deliver to Holdings an aggregate of $25,000,000 in principal amount together with $143,114 in interest, and to the Company an aggregate of $8,000,000 in principal amount together with $45,796 in interest, of the Settlement Notes, respectively, free and clear of all Encumbrances.
2.3. At the Settlement Closing, in exchange consideration for, subject to, and effective upon, such sale, transfer and delivery by the Fort ▇▇▇▇▇ Subsidiaries of the Settlement Notes to Holdings and the Company, and also in consideration for the payment releases by Buyer the Fort ▇▇▇▇▇ Entities set forth in Section 2.4, the granting of the Credit Bid Release Consideration Option and the other good and valuable consideration agreements provided herein:
(a) Except to the Debtors extent specifically set forth in the Insurance Agreement, each of Holdings and the Company for themselves, and each of their respective officers, directors, agents, attorneys, employees, predecessors, parents, subsidiaries, affiliates, and their estates by ESL in connection respective heirs, executors, administrators, successors and assigns (collectively, the "Crown Vantage Affiliates"), and any person or entity acting for or on behalf of, or claiming under, any of the foregoing (collectively with the TransactionsCrown Vantage Affiliates, the "Crown Vantage Releasors"), fully, finally and forever releases and discharges each Debtorof the Fort ▇▇▇▇▇ Entities, and each of their past, present and future officers, directors, agents, attorneys, employees, predecessors, parents, subsidiaries, affiliates and their respective heirs, executors, administrators, successors and assigns and any person or entity acting for itself or on behalf of, or claiming under, any of the foregoing (collectively, the "Fort ▇▇▇▇▇ Released Parties"), from all actions, causes, and its estaterights of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, losses, claims, liabilities and demands of any kind or nature whatsoever, whether at law or in equity, (1) whether known (including known contingent claims) or which should or could have been known, which any of the Crown Vantage Releasors ever had or may have had, now have, or (based on events that have already occurred and which currently are known or should or could have been known by the Crown Vantage Releasors) hereafter can, shall or may have, against any of the Fort ▇▇▇▇▇ Released Parties for, upon or by reason of any act, omission or other matter, cause or thing whatsoever from the beginning of the world, arising out of, or in any way connected to, the Non-Terminated Provisions and Agreements, and the transactions effected pursuant thereto or contemplated thereby, and (2) whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, which any of the Crown Vantage Releasors ever had or may have had, now have, or hereafter can, shall or may have, against any of the Fort ▇▇▇▇▇ Released Parties for, upon or by reason of any act, omission or other matter, cause or thing whatsoever from the beginning of the world, arising out of, or in any way connected to, the Terminated Provisions and Agreements, the transactions effected pursuant thereto or contemplated thereby, or any other matter in any way related thereto; provided that in no event under this subparagraph (a) are any releases granted with respect to, and the Crown Vantage Released Matters (as defined herein) shall not include, claims relating to (A) any latent product defects, unknown as of the date hereof, in products shipped to the Crown Vantage Entities by the Fort ▇▇▇▇▇ Entities or (B) trade payables owed to the Crown Vantage Entities and incurred by the Fort ▇▇▇▇▇ Entities in the ordinary course under Non-Terminated Provisions and Agreements. The releases by the Crown Vantage Releasors specified in this Section 2.3(a) are referred to herein as the "Crown Vantage Released Matters."
(b) Each of Holdings and the Company on their own behalf, and on behalf of each the other Crown Vantage Affiliates, further agrees never to file or institute against Fort ▇▇▇▇▇, or any other of its Subsidiaries the Fort ▇▇▇▇▇ Released Parties, any suit, charge, proceeding or action of any kind or nature whatsoever, whether at law, in equity or otherwise, in or before any court, administra- tive agency, arbitral panel or other tribunal wherever situated asserting, directly or indirectly, any claim, demand, cause or right of action of any kind or nature whatsoever, arising out of, or in any way connected to, any matter which is a Crown Vantage Released Matter. In the event that any litigation of any kind or nature whatsoever is initiated by any of the Crown Vantage Affiliates against any of the Fort ▇▇▇▇▇ Released Parties, or in the event any of the Crown Vantage Affiliates provides financial support in connection with any such litigation by a Crown Vantage Releasor which is not a Crown Vantage Affiliate, which litigation asserts a claim, demand, cause or right of action, or other matter released as a Crown Vantage Released Matter, the Fort ▇▇▇▇▇ Released Parties sued in such litigation shall be entitled to recover from the Crown Vantage Entities their reasonable attorneys' fees incurred as a result of such litigation. This covenant not to ▇▇▇ shall not apply to any action by either Holdings or the Company to enforce this Agreement.
(c) Each of Holdings and controlled Affiliates (the Company agrees to indemnify and hold harmless each of the foregoingFort ▇▇▇▇▇ Released Parties against the full amount of any liability, loss, damage, judgment or expense (including costs and reasonable attorneys' fees incurred by the Fort ▇▇▇▇▇ Released Parties) incurred in connection with any claim, demand, cause or right of action, or any other matter whatsoever: (1) brought by any Crown Vantage Affiliate against any Fort ▇▇▇▇▇ Released Party with respect to any Crown Vantage Released Matter, (2) brought as a “Seller Releasing Party”claim-over arising from any claim brought by a Crown Vantage Affiliate against any third-party, who then asserts a claim against a Fort ▇▇▇▇▇ Released Party with respect to a Crown Vantage Released Matter, (3) brought by any person or entity under any assignment or other transfer of any kind from any Crown Vantage Affiliate with respect to any Crown Vantage Released Matter, or (4) arising out of any breach of the representations and warranties made in this Agreement by Holdings and the Company. Each of Holdings and the Company agrees to pay to the Fort ▇▇▇▇▇ Entities the amount of any recovery by such Crown Vantage Entity in any litigation brought by a Crown Vantage Affiliate or shareholder on behalf of such Crown Vantage Entity with respect to a Crown Vantage Released Matter.
2.4. At the Settlement Closing, in consideration for, subject to, and effective upon, the effectiveness of the releases granted under Section 2.3 and in consideration for the other agreements provided herein:
(a) Except to the extent specifically set forth in the Insurance Agreement, each of the Fort ▇▇▇▇▇ Entities for themselves, and each of their respective officers, directors, agents, attorneys, employees, predecessors, parents, subsidiaries, affiliates, and their respective heirs, executors, administrators, successors and assigns (collectively, the "Fort ▇▇▇▇▇ Affiliates"), hereby absolutelyand any person or entity acting for or on behalf of, unconditionally or claiming under, any of the foregoing (collectively with the Fort ▇▇▇▇▇ Affiliates, the "Fort ▇▇▇▇▇ Releasors"), fully, finally and irrevocably (i) forever releases and forever discharges ESL each of the Crown Vantage Entities, and each of their past, present and future officers, directors, agents, attorneys, employees, predecessors, parents, subsidiaries, affiliates and their respective heirs, executors, administrators, successors and assigns and any person or entity acting for or on behalf of, or claiming under, any of the foregoing (collectively, the "Crown Vantage Released Parties"), from all actions, causes, and rights of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, losses, claims, liabilities and demands of any and all Released Estate Claimskind or nature whatsoever, whether foreseen at law or unforeseenin equity, (1) whether known (including known contingent claims) or actual, and whether now known which should or hereafter discoveredcould have been known, which any of the Seller Releasing Parties Fort ▇▇▇▇▇ Releasors ever had or may have had, now have, or (based on events that have already occurred and which currently are known or should or could have been known by the Fort ▇▇▇▇▇ Releasors) hereafter can, shall or may have, against any of the Crown Vantage Released Parties for, upon or by reason of any act, omission or other matter, cause or thing whatsoever from the beginning of the world, arising out of, or in any way connected to, the Non-Terminated Provisions and Agreements, and the transactions effected pursuant thereto or contemplated thereby, and (ii2) covenants whether known or unknown, contingent or absolute, suspected or unsuspected, disclosed or undisclosed, hidden or concealed, which any of the Fort ▇▇▇▇▇ Releasors ever had or may have had, now have, or hereafter can, shall or may have, against any of the Crown Vantage Released Parties for, upon or by reason of any act, omission or other matter, cause or thing whatsoever from the beginning of the world, arising out of, or in any way connected to, the Terminated Provisions and Agreements, the transactions effected pursuant thereto or contemplated thereby, or any other matter in any way related thereto; provided that it in no event under this subparagraph (a) are any releases granted with respect to, and the Fort ▇▇▇▇▇ Released Matters (as defined herein) shall not seek include, claims relating to disallowany (A) latent defects, subordinateunknown as of the date hereof, recharacterize, avoid, challenge, dispute in products shipped to the Fort ▇▇▇▇▇ Entities by the Crown Vantage Entities or collaterally attack (B) trade payables owed to the ESL Claims, provided however that Fort ▇▇▇▇▇ Entities and incurred by the assertion of any Claim other than a Released Estate Claim shall not be deemed to violate Crown Vantage Entities in the ordinary course under Non-Terminated Provisions and Agreements. The releases by the Fort ▇▇▇▇▇ Releasors specified in this Section 9.13(a)(ii)2.4(a) are referred to herein as the "Fort ▇▇▇▇▇ Released Matters."
(b) Effective upon Each of the ClosingFort ▇▇▇▇▇ Entities on their own behalf, ESL’s Claims and on behalf of the other Fort ▇▇▇▇▇ Affiliates, further agrees never to file or institute 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 Crown Vantage Entities, or any other of the Crown Vantage Released Parties, any suit, charge, proceeding or action of any kind or nature whatsoever, whether at law, in equity or otherwise, in or before any court, administrative agency, arbitral panel or other tribunal wherever situated asserting, directly or indirectly, any claim, demand, cause or right of action of any kind or nature whatsoever, arising out of, or in any way connected to, any matter which is a Fort ▇▇▇▇▇ Released Matter. In the event that any litigation of any kind or nature whatsoever is initiated by any of the Fort ▇▇▇▇▇ Affiliates against any of the Crown Vantage Released Parties, or in the preceding sub-clauses (c)(i)-(vi)event any of the Fort ▇▇▇▇▇ Affiliates provides financial support in connection with any such litigation by a Fort ▇▇▇▇▇ Releasor which is not a Fort ▇▇▇▇▇ Affiliate, collectivelywhich litigation asserts a claim, demand, cause or right of action, or other matter released as a Fort ▇▇▇▇▇ Released Matter, the “ESL Claims”) Crown Vantage Released Parties sued in such litigation shall each be deemed allowed for all purposes in entitled to recover from the Bankruptcy Cases and under the Bankruptcy Code in the amounts set forth on Exhibit G, Fort ▇▇▇▇▇ Entities their reasonable attorneys' fees incurred as reduced a result of such litigation. This covenant not to ▇▇▇ shall not apply to any action by the credit bid set forth in Section 3.1(b)any Fort ▇▇▇▇▇ Entity to enforce this Agreement.
(c) After giving effect Each Fort ▇▇▇▇▇ Entity agrees 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) indemnify and hold harmless each of the Bankruptcy Code, or other Claims and causes of action that it may have Crown Vantage Released Parties against the Debtors full amount of any liability, loss, damage, judgment or expense (including costs and their estates reasonable attorneys' fees incurred by the Crown Vantage Released Parties) incurred in the Chapter 11 Casesconnection with any claim, provided that (i) no Claims demand, cause or causes right of action of ESL shall have recourse toaction, or any other right matter whatsoever: (1) brought by any Fort ▇▇▇▇▇ Affiliate against any Crown Vantage Released Party with respect to any Fort ▇▇▇▇▇ Released Matter, (2) brought as a claim-over aris- ing from any claim brought by a Fort ▇▇▇▇▇ Affiliate against any third-party, who then asserts a claim against a Crown Vantage Released Party with respect to a Fort ▇▇▇▇▇ Released Matter, (3) brought by any person or entity under any assignment or other transfer of recovery fromany kind from any Fort ▇▇▇▇▇ Affiliate with respect to any Fort ▇▇▇▇▇ Released Matter, or (4) arising out of any Claims or causes of action breach of the Debtors representations and warranties made in this Agreement by the Fort ▇▇▇▇▇ Entities. Each Fort ▇▇▇▇▇ Entity agrees to pay to the Crown Vantage Entities the amount of any recovery received by such Fort ▇▇▇▇▇ Entity in any litigation brought by a Fort ▇▇▇▇▇ Affiliate or their estates related shareholder on behalf of such Fort ▇▇▇▇▇ Entity with respect to Lands’ Enda Fort ▇▇▇▇▇ Released Matter.
2.5. It is understood and agreed that the settlement and releases provided in this Agreement, Inc.when they become effective, will express the “spin-off” (as such term is defined full and complete settlement of the Crown Vantage Released Matters and the Fort ▇▇▇▇▇ Released Matters, respectively. Neither the execution and acceptance of this Agreement nor the transfer of any 11.45% Notes or the payment of any sums hereunder, constitutes 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 ESLmanner, or the proceeds is to be presumed, construed or deemed to be an admission of liability, fault, wrongdoing, or misconduct, of any kind, by any party, or as to the potential value of the foregoingCrown Vantage Released Matters or the Fort ▇▇▇▇▇ Released Matters, (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)respectively, and (iii) notwithstanding any order of the Bankruptcy Court to the contrary or section 1129 of the Bankruptcy Code, it shall may 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 used in evidence in any proceeding for any purpose other than in any litigation except to enforce the terms of this Section 9.13.
(e) For Agreement. The parties hereto agree that in the purposes event any of this Section 9.13, them commences an action against the other in violation of the terms set out below hereof, this Agreement may be pleaded in bar of any such action, and the party against whom such action is commenced shall be defined as follows:entitled to injunctive
Appears in 1 contract