(d) Sellers shall indemnify and hold harmless Purchaser and its Affiliates, representatives and agents for any and all costs, claims, expenses, losses and damages caused by any litigation or dispute relating to the FC Franchise Agreement or the assumption or rejection thereof (including any appeals) and the collection of franchise fees (collectively, “FC Costs”). As security for such indemnity, Purchaser shall withhold on the Closing Date a portion of the cash component of the Purchase Price in an amount to be mutually agreed (based upon a reasonable estimate of the FC Costs to be incurred in connection with any litigation or mediation) by Sellers and Purchaser on or before the Closing Date. On the one year anniversary of the Closing Date, any remaining amount of such security less a reasonable reserve for outstanding claims or expenses shall be paid to the Sellers.” Any disputes as to the reasonableness of FC Costs shall be determined by the Bankruptcy Court.
(e) Purchaser shall consult with and keep Sellers (or a representative of Sellers’ bankruptcy estate) informed of Purchaser’s negotiations with Fast Casual and Al Tayer. It is the intent of Purchaser and Sellers that in its dealings with Fast Casual and Al Tayer, Purchaser shall work in good faith toward the objective of Fast Casual paying franchise fees in accordance with the FC Franchise Agreement and of Al Tayer extending the Dubai Franchise Agreement on a long term basis.
(f) If, prior to the Closing Date, Seller resolves the disputes related to the assignment of the FC Franchise Agreement on terms acceptable to Seller and Purchaser, then Purchaser shall direct and facilitate the immediate release of the FC Franchise Reserve to Seller, inclusive of a release of the remaining security for the FC Costs indemnity. ”
19. Section 10.01 of the Purchase Agreement is amended to insert “Section 5.18(b)” immediately following “5.16(c)” in the first sentence.
20. Section 10.02 of the Purchase Agreement is amended to add “, email” after “facsimile”.
21. Section 10.02(a) of the Purchase Agreement is restated in its entirety as follows”
“(a) if to the Sellers:
294 Washington Street
Boston, Massachusetts 02108
Attention: Mark Demilio
with a copy to:
Mirick, O’Connell, DeMallie & Lougee, LLP
1800 West Park Drive, Suite 400
Westborough, MA 01581
Attention: Joseph H. Baldiga
Facsimile: (508) 983-6232