8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 25, 2012

DIVERSIFIED RESTAURANT HOLDINGS, INC.

(Name of registrant in its charter)

Nevada	000-53577	03-0606420
(State or other jurisdiction of  incorporation)	(Commission File Number)	(IRS Employer Identification No.)
	27680 Franklin Road Southfield, MI  48034
(Address of principal executive offices)

Registrant's telephone number:  (248) 223-9160

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

[   ]

Written communications pursuant to Rule 425 under the Securities Act

[   ]

Soliciting material pursuant to Rule 14a-12 under the Exchange Act

[   ]

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

[   ]

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

Item 1.01 Entry into a Material Definitive Agreement

On September 25, 2012, Diversified Restaurant Holdings, Inc. together with its wholly-owned subsidiaries (the “Company”), entered into a Senior Secured Credit Facility (the “Senior Secured Credit Facility”) with RBS Citizens, N.A., a national banking association (“RBS”).  The Senior Secured Credit Facility consists of a $37,000,000 term loan (“Term Loan”), a $10,000,000 development line of credit (“DLOC”), and a $1,000,000 revolving line of credit (“Revolving Line of Credit”).

The Company immediately used approximately $15,200,000 of the Term Loan to refinance existing outstanding debt with RBS and used approximately $3,300,000 of the Term Loan to refinance and term out the outstanding balance of the existing development line of credit loan between the Company and RBS.  Additionally, on September 25, 2012, approximately $14,700,000 of the Term Loan was used to complete the acquisition of the Krygier entities (described below) and approximately $2,500,000 of the Term Loan was used to purchase 100% of the membership interests in the Ansley Group, L.L.C. (the “Ansley Group”), a Michigan limited liability company and the owner of a parcel of real estate located at 15745 15 Mile Road, Clinton Township, Michigan 48035 (the “Clinton Township Property”).  The remaining balance of the Term Loan, approximately $1,300,000, was used to pay the fees, costs and expenses associated with the above acquisitions and arising in connection with the closing of the loans constituting the Senior Secured Credit Facility.

The Term Loan is for a term of five years.  Payments of principal shall be based upon an 84-month straight-line amortization schedule, with monthly principal payments of $440,476 plus accrued interest.  The interest rate for the Term Loan is LIBOR plus an applicable margin.  The entire remaining outstanding principal and accrued interest on the Term Loan is due and payable on the Term Loan maturity date of September 25, 2017.

Item 2.01 Completion of Acquisition of Assets

The information included in Item 1.01 above is incorporated by reference herein.

On September 25, 2012, the Company completed the acquisition of substantially all of the assets of Crown Wings, Inc., Brewsters, Inc., Valpo Wings, Inc., Buffaloville Wings, Inc., and Hammond Wings, Inc., each an Indiana corporation, and Homewood Wings, Inc., Cal City Wings, Inc., Lansing Wings, Inc., and Lincoln Park Wings, Inc., each an Illinois corporation (collectively, the “Krygier Entities”). The acquired assets consist of eight Buffalo Wild Wings restaurants operating in Indiana and Illinois and the right to develop a ninth Buffalo Wild Wings restaurant.  A copy of the press release announcing the acquisition is included as Exhibit 99.1

On September 25, 2012, the Company also acquired 100% of the membership interests in the Ansley Group for approximately $2,500,000.  As a result of this acquisition, the Company has acquired full ownership rights in the Clinton Township Property.  The Ansley Group was owned by T. Michael Ansley and Thomas D. Ansley.  T. Michael Ansley is the Chairman of the Board of Directors, President and CEO and a principal shareholder of the Company.

Item 9.01 Financial Statement and Exhibits

(d) The follow exhibits are included with this Report.

Exhibit 2.1                                Purchase Agreement, dated July 13, 2012

Exhibit 10.1                              Credit Agreement, dated September 25, 2012

Exhibit 99.1                              Press Release dated September 26, 2012

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SIGNATURES

In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

	DIVERSIFIED RESTAURANT HOLDINGS, INC.
Dated:  September 28, 2012	By:	/s/ David G. Burke
	Name:	David G. Burke
	Title:	Chief Financial Officer (Principal    Financial and Accounting Officer)

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EX-2.1

Exhibit 2.1

ASSET PURCHASE AGREEMENT

among

Krygier Entities

(as Sellers)

and

Al Krygier

(as Principal Stakeholder)

and

AMC Wings, Inc.

(as Buyer)

and

Diversified Restaurant Holdings, Inc.

(as “DRH”)

dated as of

July 13, 2012

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	6
ARTICLE II PURCHASE AND SALE	16
Section 2.01 Purchase and Sale of Assets.	16
Section 2.02 Excluded Assets.	18
Section 2.03 Assumed Liabilities.	18
Section 2.04 Excluded Liabilities.	18
Section 2.05 Purchase Price.	19
Section 2.06 Purchase Price Adjustment.	20
Section 2.07 Allocation of Purchase Price.	23
Section 2.09 Third Party Consents.	23
ARTICLE III CLOSING	24
Section 3.01 Closing.	24
Section 3.02 Closing Deliverables.	24
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS AND PRINCIPAL STAKEHOLDER	25
Section 4.01 Organization and Qualification of Sellers.	25
Section 4.02 Authority of Sellers.	26
Section 4.03 No Conflicts; Consents.	26
Section 4.04 Financial Statements.	27
Section 4.05 Undisclosed Liabilities.	27
Section 4.06 Absence of Certain Changes, Events and Conditions.	27
Section 4.07 Material Contracts.	29
Section 4.08 Title to Purchased Assets.	30
Section 4.09 Condition and Sufficiency of Assets.	31
Section 4.10 Real Property	31
Section 4.11 Intellectual Property.	32
Section 4.12 Suppliers.	33
Section 4.13 Insurance.	33

Section 4.14 Legal Proceedings; Governmental Orders.	33
Section 4.15 Compliance With Laws; Permits.	34
Section 4.16 Environmental Matters.	34
Section 4.17 Employee Benefit Matters.	35
Section 4.18 Employment Matters.	36
Section 4.19 Taxes.	37
Section 4.20 Brokers.	38
Section 4.21 Full Disclosure.	38
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER AND DRH	38
Section 5.01 Organization of Buyer.	38
Section 5.02 Authority of Buyer.	38
Section 5.03 No Conflicts; Consents.	39
Section 5.04 Brokers.	39
Section 5.05 Legal Proceedings.	39
ARTICLE VI COVENANTS	39
Section 6.01 Conduct of Business Prior to the Closing.	39
Section 6.02 Access to Information.	40
Section 6.03 No Solicitation of Other Bids.	40
Section 6.04 Notice of Certain Events.	41
Section 6.05 Employees and Employee Benefits.	42
Section 6.06 Confidentiality.	43
Section 6.07 Non-competition; Non-solicitation	43
Section 6.08 Governmental Approvals and Consents	44
Section 6.09 Books and Records.	46
Section 6.10 Closing Conditions	46
Section 6.11 Public Announcements.	46
Section 6.12 Bulk Sales Laws.	46
Section 6.13 Receivables.	47
Section 6.14 Transfer Taxes.	47
Section 6.15 Tax Clearance Certificates.	47

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Section 6.16 Further Assurances.	47
Section 6.17 Restrictions on Seller Dissolution and Distribution.	47
Section 6.18 Management Agreement.	47
ARTICLE VII CONDITIONS TO CLOSING	48
Section 7.01 Conditions to Obligations of All Parties.	48
Section 7.02 Conditions to Obligations of Buyer.	48
Section 7.03 Conditions to Obligations of Sellers.	50
ARTICLE VIII INDEMNIFICATION	52
Section 8.01 Survival.	52
Section 8.02 Indemnification By Sellers.	53
Section 8.03 Indemnification By Buyer.	53
Section 8.04 Certain Limitations.	54
Section 8.05 Indemnification Procedures.	55
Section 8.06 Payments.	57
Section 8.07 Tax Treatment of Indemnification Payments.	57
Section 8.08 Effect of Investigation.	57
Section 8.09 Exclusive Remedies.	57
ARTICLE IX TERMINATION	58
Section 9.01 Termination.	58
Section 9.02 Effect of Termination.	59
ARTICLE X MISCELLANEOUS	60
Section 10.01 Expenses.	60
Section 10.02 Notices.	60
Section 10.03 Interpretation.	61
Section 10.04 Headings.	61
Section 10.05 Severability.	61
Section 10.06 Entire Agreement.	62
Section 10.07 Successors and Assigns.	62
Section 10.08 No Third-party Beneficiaries.	62
Section 10.09 Amendment and Modification; Waiver.	62

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Section 10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.	63
Section 10.11 Specific Performance.	64
Section 10.12 Counterparts.	64

Mutual Disclosure Schedules:
Section 2.01(c)	-	Assigned Contracts
Section 2.02	-	Excluded Assets
Section 2.03	-	Assumed Liabilities
Section 2.07	-	Allocation Schedule

Sellers’ Disclosure Schedules:
Section 4.01	-	Organization and Qualification
Section 4.03	-	Non Conflicts; Consents
Section 4.04	-	Financial Statements
Section 4.05	-	Undisclosed Liabilities
Section 4.06	-	Absence of Certain Changes, Events and Conditions
Section 4.07(a)	-	Material Contracts
Section 4.08	-	Title or Licenses to Purchased Assets
Section 4.09	-	Condition and Sufficiency of Assets
Section 4.10(b)	-	Leased Real Property
Section 4.11(a)	-	Intellectual Property Assets
Section 4.11(b)	-	Intellectual Property Assets
Section 4.11(c)	-	Intellectual Property Licenses
Section 4.12	-	Supplies
Section 4.13	-	Insurance
Section 4.14(a)	-	Legal Proceedings; Governmental Orders
Section 4.14(b)	-	Legal Proceedings; Governmental Orders
Section 4.15(a)	-	Compliance with Laws
Section 4.15(b)	-	Permits
Section 4.16(b)	-	Environmental Permits
Section 4.16(e)	-	Environmental Reports
Section 4.17(a)	-	Benefit Plans
Section 4.17(c)	-	ERISA Compliance

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Section 4.18(a)	-	Employment Matters
Section 4.18(b)	-	Employment Matters
Section 4.18(b)	-	Employment Matters
Section 4.19	-	Taxes
Section 7.04	-	Termination Payment

Exhibits:
A	-	Restaurants
B	-	Escrow Agreement
C	-	Estimated Working Capital Statement
D	-	Assignment and Assumption of Lease
E	-	Bill of Sale
F	-	Assignment and Assumption Agreement
G	-	Management Agreement
H	-	Cash Flow Payment

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement”), dated as of July 13, 2012, is entered into among the Krygier Entities listed on Exhibit A attached hereto (hereinafter collectively referred to as “Sellers” and each individually as “Seller”), the Principal Stakeholder (as defined herein), AMC Wings, Inc., a Michigan corporation (“Buyer”), and Diversified Restaurant Holdings, Inc., a Nevada corporation (“DRH”).

RECITALS

WHEREAS, Sellers are engaged in the business (the “Business”) of owning, developing and operating multiple Buffalo Wild Wings franchise restaurants in Indiana and Illinois, more specifically identified on Exhibit A attached hereto (the “Restaurants”); and

WHEREAS, Sellers wish to sell and assign to Buyer, and Buyer wishes to purchase and assume from Sellers, the Business, the Restaurants and substantially all the assets used or usable by Sellers in the Business, and certain specified liabilities of the Business, subject to the terms and conditions set forth herein.

WHEREAS, DRH owns all of the issued and outstanding stock of Buyer and joins this Agreement for the limited purposes set forth herein.

WHEREAS, the Principal Stakeholder is the beneficial owner of a majority of the issued and outstanding securities of Sellers and joins this Agreement for the limited purposes set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

Definitions

The following terms have the meanings specified or referred to in this Article I:

“Accounts Receivable” has the meaning set forth in Section 2.01(a).

“Acquisition Proposal” has the meaning set forth in Section 6.03(a).

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation by a Governmental Authority of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract (excluding the Franchise Agreements with Buffalo Wild Wings International, Inc.), or otherwise.

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“Agreement” has the meaning set forth in the preamble.

“Allocation Schedule” has the meaning set forth in Section 2.07.

“Assigned Contracts” has the meaning set forth in Section 2.01(c).

“Assignment and Assumption Agreement” has the meaning set forth in Section 3.02(a)(iii).

“Assignment and Assumption of Lease” has the meaning set forth in Section 2.05(c)(i).

“Assumed Liabilities” has the meaning set forth in Section 2.03.

“Balance Sheets” has the meaning set forth in Section 4.04.

“Balance Sheet Date” has the meaning set forth in Section 4.04.

“Benefit Plan” has the meaning set forth in Section 4.17(a).

“Bill of Sale” has the meaning set forth in Section 3.02(a)(ii).

“Books and Records” has the meaning set forth in Section 2.01(j).

“Business” has the meaning set forth in the recitals.

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Detroit, Michigan, are authorized or required by Law to be closed for business.

“Buyer” has the meaning set forth in the preamble.

“Buyer Basket Exclusions” has the meaning set forth in Section 8.04(a).

“Buyer Closing Certificate” has the meaning set forth in Section 7.03(e).

“Buyer Indemnitees” has the meaning set forth in Section 8.02.

“Buyer’s Accountants” means Oakwood Business Services, LLC.

“BWW” means Buffalo Wild Wings International, Inc.

“BWW Transfer Fees” means all fees, costs and expenses payable to BWW, associated with or arising from the request for consent to transfer the Franchise Agreements, and the actual transfer of store franchises, pursuant to this Agreement, including, all transfer fees (not to exceed $12,500 per store) and review and approval costs and fees.

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 “Cashflow Payment” has the meaning set forth in Section 7.04(d).

“Casualty Holdback” has the meaning set forth in Section 7.04(d).

“Closing” has the meaning set forth in Section 3.01.

“Closing Date” has the meaning set forth in Section 3.01.

“Closing Payment” has the meaning set forth in Section 2.05(b)(i).

“Closing Working Capital” means: (a) Current Assets, less (b) Current Liabilities, determined as of the Effective Time.

“Closing Working Capital Statement” means a statement of working capital setting forth the Closing Working Capital, determined as of the Effective Time and prepared using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Estimated Working Capital Statement; provided, however, in no event shall the Closing Working Capital Statement reflect any adjustment to any current asset or current liability of Sellers attributable to any purchase accounting adjustments under Statement of Financial Accounting Standards 141 or 142 on account of the transactions provided for in this Agreement, or, other than to specifically limit the current assets and current liabilities of Sellers to those actually acquired or assumed by Buyer pursuant to this Agreement, to otherwise give any effect to the transactions or other extraordinary items associated with the transactions provided for in this Agreement, including, items such as the BWW Fees, prepayment penalties or breakage fees otherwise due any lender of Sellers, transaction costs and fees, brokers fees, remodeling or modernization costs, severance or termination pay due any employee of Sellers, or other similar obligations of Sellers due as a consequence of the consummation of the transactions provided for in this Agreement; provided further, that excluded from current assets and current liabilities for purposes hereof shall be any item prorated between Buyer and Sellers at Closing pursuant to Section 2.05(e).

“Code” means the Internal Revenue Code of 1986, as amended.

“Commitment Letter” has the meaning set forth in Section 2.06(b)(i).

“Compiled Financial Statements” has the meaning set forth in Section 4.04.

“Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, promissory notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.

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“Current Assets” means the current assets of the Business as of the Effective Time, provided, however, that such current assets shall be limited to those current assets acquired by Buyer pursuant to the terms of this Agreement and otherwise shall be determined in accordance with the standards set forth in the definition of the Closing Working Capital Statement.

“Current Liabilities” means the current liabilities of the Business as of the Effective Time, provided, however, that such current liabilities shall be limited to those current liabilities assumed by Buyer pursuant to the terms of this Agreement and otherwise shall be determined in accordance with the standards set forth in the definition of the Closing Working Capital Statement.

 “Direct Claim” has the meaning set forth in Section 8.05(c).

“Disclosure Schedules” means the Disclosure Schedules delivered by Sellers and Buyer concurrently with the execution and delivery of this Agreement.

“Disputed Amounts” has the meaning set forth in Section 2.06(b)(iv).

“Dollars” or “$” means the lawful currency of the United States.

“DRH” has the meaning set forth in the preamble to this Agreement.

“EBITDA” has the meaning set forth in Section 7.04(d).

“Effective Time” means the opening of business on the Closing Date.

 “Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Environmental Claim” means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings, investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or condition of any Environmental Permit.

“Environmental Law” means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any Hazardous Materials. The term “Environmental Law” includes, without limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

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“Environmental Notice” means any written directive, written notice of violation or infraction, or written notice respecting any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any term or condition of any Environmental Permit.

“Environmental Permit” means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Environmental Law.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, any other Person that, together with such first Person, would be treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“Escrow Agent” means the entity designated to serve as escrow agent under the Escrow Agreement.

“Escrow Agreement” means the Escrow Agreement among Buyer, Sellers and the Escrow Agent, to be executed and delivered at the Closing in the form attached hereto as Exhibit B.

“Escrow Amount” means the sum of $1,000,000 to be deposited with the Escrow Agent and held in escrow pursuant to the Escrow Agreement.

“Estimated Working Capital Statement” means a pro-forma statement of working capital setting forth a reasonable estimate by Sellers of the Estimated Working Capital and the Working Capital Adjustment Amount, which statement shall be substantially in the form of Exhibit C attached hereto, determined as of the Effective Time and prepared using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Complied Financial Statements for Sellers’ most recent fiscal year end; provided, however, in no event shall the Estimated Working Capital Statement reflect any adjustments to any current asset or current liability of Sellers attributable to any purchase accounting adjustments under Statement of Financial Accounting Standards 141 or 142 on account of the transactions provided for in this Agreement, or, other than to specifically limit the current assets and current liabilities to those actually acquired or assumed by Buyer pursuant to this Agreement, to otherwise give any effect to the transactions or other extraordinary items associated with the transactions provided for in this Agreement, including, items such as the BWW Fees, prepayment penalties or breakage fees otherwise due any lender of Sellers, transaction costs and fees, brokers fees, remodelling or modernization costs, severance or termination pay due any employee of Sellers, or other similar obligations of Sellers due as a consequence of the consummation of the transactions provided for in this Agreement; provided further, that excluded from current assets and current liabilities for purposes hereof shall be any item to be prorated between Buyer and Sellers at Closing pursuant to Section 2.05(e).

“Estimated Current Assets” means a reasonable estimate by Sellers of the current assets of the Business as of the Effective Time, provided, however, that such current assets shall be limited to those current assets being acquired by Buyer pursuant to the terms of this Agreement and otherwise shall be determined in accordance with the standards set forth in the definition of the Estimated Working Capital Statement.

“Estimated Current Liabilities” means a reasonable estimate by Sellers of the current liabilities of the Business as of the Effective Time, provided, however, that such current liabilities shall be limited to those current liabilities being assumed by Buyer pursuant to the terms of this Agreement and otherwise shall be determined in accordance with the standards set forth in the definition of the Estimated Working Capital Statement.

“Estimated Working Capital” means:  (a) Estimated Current Assets, less (b) Estimated Current Liabilities, determined as of the Effective Time.

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“Excluded Assets” has the meaning set forth in Section 2.02.

“Excluded Liabilities” has the meaning set forth in Section 2.04.

“Financial Statements” has the meaning set forth in Section 4.04.

“Franchise Agreement(s)” means those various franchise agreements entered into between Sellers, or Affiliates of Sellers, and BWW in connection with the Business.

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

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“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, assessment, decision or award entered by or with any Governmental Authority.

“Hazardous Materials” means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.

“Indemnified Party” has the meaning set forth in Section 8.05.

“Indemnifying Party” has the meaning set forth in Section 8.05.

“Independent Accountants” has the meaning set forth in Section 2.06(b)(iv).

“Insurance Policies” has the meaning set forth in Section 4.13.

“Intellectual Property” means all of the following and similar intangible property and related proprietary rights, interests and protections, however arising, pursuant to Laws: (a) trademarks, service marks, trade names, brand names, logos, trade dress and other proprietary indicia of goods and services, whether registered, unregistered or arising by Law, and all registrations and applications for registration of such trademarks, including intent-to-use applications, and all issuances, extensions and renewals of such registrations and applications; (b) internet domain names, whether or not trademarks, registered in any generic top level domain by any authorized private registrar or Governmental Authority; (c) original works of authorship in any medium of expression, whether or not published, all copyrights (whether registered, unregistered or arising by Law), all registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications; (d) confidential information, formulas, designs, devices, technology, know-how, research and development, inventions, methods, processes, compositions and other trade secrets, whether or not patentable; and (e) patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, re-examinations and renewals of such patents and applications.

“Intellectual Property Assets” means all Intellectual Property that is owned by Sellers and used in or necessary for the conduct of the Business as currently conducted.

“Intellectual Property Licenses” means all licenses, sublicenses and other agreements by or through which other Persons, including Sellers’ Affiliates, grant Sellers exclusive or non-exclusive rights or interests in or to any Intellectual Property that is used in or necessary for the conduct of the Business as currently conducted.

“Intellectual Property Registrations” means all Intellectual Property Assets that are subject to any issuance, registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain names and copyrights, issued and reissued patents and pending applications for any of the foregoing.

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“Interim Balance Sheets” has the meaning set forth in Section 4.04.

“Interim Balance Sheet Date” has the meaning set forth in Section 4.04.

“Interim Financial Statements” has the meaning set forth in Section 4.04.

“Inventory” has the meaning set forth in Section 2.01(b).

“Knowledge of Sellers or Sellers’ Knowledge” or any other similar knowledge qualification, means the actual or constructive knowledge of any director or officer of any Seller, after due inquiry.

“Krygier Entities” means those entities listed on Exhibit A attached hereto.

 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

“Leased Real Property” has the meaning set forth in Section 4.10(b).

“Leases” has the meaning set forth in Section 4.10(b).

“Liabilities” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.

“Losses” means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include punitive damages, except in the case of fraud or to the extent actually awarded to a Governmental Authority or other third party.

“Management Agreement” has the meaning set forth in Section 6.18.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to, (a) the business, results of operations, prospects, condition (financial or otherwise) or assets of the Business, (b) the value of the Purchased Assets, or (c) the ability of Sellers to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any such event, occurrence, fact, condition, or change, directly or indirectly, arising out of or attributable to: (i) any changes, conditions or effects in the United States economy or securities or financial markets in general; (ii) changes, conditions or effects that generally affect the industries in which the Business operates; (iii) any change, effect or circumstance resulting from an action required or permitted by this Agreement; (iv) conditions caused by acts of terrorism or war (whether or not declared); (v) the announcement of this Agreement; and (vii) any casualty or condemnation or eminent domain Action affecting one or more Restaurants that do not constitute or cause “Material Damage” under the standards set forth in Section 7.04; provided that any event, occurrence, fact, condition, or change referred to in clauses (i), (ii) or (iv) above shall not have a disproportionate effect on the Business compared to other participants in the industries in which the Business operates.

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“Material Contracts” has the meaning set forth in Section 4.07(a).

“Material Damage” has the meaning set forth in Section 7.04(c).

“Material Suppliers” has the meaning set forth in Section 4.12.

“Multi-employer Plan” has the meaning set forth in Section 4.17(c).

 “Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.

“Permitted Encumbrances” has the meaning set forth in Section 4.08(a).

“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

 “Post-Closing Adjustment” has the meaning set forth in Section 2.06(b)(vii).

“Pre-Closing Tax Period” means any taxable period ending before the Effective Time and, with respect to any taxable period beginning before and ending after the Effective Time, the portion of such taxable period ending immediately prior to the Effective Time.

“Preliminary Purchase Price” has the meaning set forth in Section 2.05(a).

“Principal Stakeholder” means Al Krygier.

“Proposed Working Capital Statement” has the meaning set forth in Section 2.06(b)(i).

“Purchase Price” has the meaning set forth in Section 2.05(a).

“Purchased Assets” has the meaning set forth in Section 2.01.

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“Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).

“Reopening Requirements” has the meaning set forth in Section 7.04(d).

“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

“Resolution Period” has the meaning set forth in Section 2.06(b)(iii).

“Restricted Business” means the operation of a casual or fast casual restaurant that sells or offers to dispense prepared food products that are the same as, or similar to, the type sold in Buffalo Wild Wings Restaurants or Bagger Dave’s restaurants.   

“Restricted Period” has the meaning set forth in Section 6.07(a).

“Review Period” has the meaning set forth in Section 2.06(b)(i).

“Restaurants” has the meaning set forth in the preambles.

 “Seller” or “Sellers” has the meaning set forth in the preamble.

“Seller Basket Exclusions” has the meaning set forth in Section 8.04(b)

“Seller Closing Certificate” has the meaning set forth in Section 7.02(h).

“Seller Indemnitees” has the meaning set forth in Section 8.03.

“Sellers’ Accountants” means Matthew Hunniford & Co., P.C.

 “Statement of Objections” has the meaning set forth in Section 2.06(b)(iii).

“Survival Period” has the meaning set forth in Section 8.01.

“Surviving Obligations” has the meaning set forth in Section 9.02(b).

 “Tangible Personal Property” has the meaning set forth in Section 2.01(e).

“Target Working Capital” means $240,000.

“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties imposed, assessed or collected by or under the authority of any Governmental Authority.

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“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof filed with or submitted to or required to be filed with or submitted to any Governmental Authority.

“Termination Date” has the meaning set forth in Section 9.01(b)(ii).

“Termination Payment” has the meaning set forth in Section 7.04(d).

“Territory” means Illinois, Indiana Maryland, Michigan, Ohio, Illinois, Wisconsin, Missouri, Kentucky and Tennessee.

“Third Party Claim” has the meaning set forth in Section 8.05(a).

“Third Party Landlord Consents” has the meaning set forth in Section 2.05(c)(i).

“Transaction Documents” means this Agreement, the Escrow Agreement, the Bill of Sale, the Assignment and Assumption Agreement, the Assignment and Assumption of Leases, the Management Agreement, and the other agreements, instruments and documents required to be delivered at the Closing.

 “Undisputed Amounts” has the meaning set forth in Section 2.06(b)(iv).

“Union” has the meaning set forth in Section 4.18(b).

“WARN Act” means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign laws related to plant closings, relocations, mass layoffs and employment losses.

“Working Capital Adjustment Amount” means: (a) Estimated Working Capital, less (b) Target Working Capital.

ARTICLE II

Purchase and Sale

Section 2.01     Purchase and Sale of Assets. Subject to the terms and conditions set forth herein, at the Closing, and upon the terms and subject to the conditions set forth in this Agreement, Sellers shall, or shall cause their Affiliates to, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Sellers or Sellers’ Affiliates, free and clear of any Encumbrances other than Permitted Encumbrances, the Business and all right, title and interest of Sellers or Affiliates of Sellers in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired, but specifically excluding the Excluded Assets, which are used or held for use by Sellers or their Affiliates in connection with, the Business (collectively, the “Purchased Assets”), including, the following:

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(a)           all accounts or notes receivable held by Sellers and due from Persons other than Affiliates or related Persons, and any security, claim, remedy or other right related to any of such accounts or notes receivable (“Accounts Receivable”);

(b)           all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“Inventory”);

(c)           all Contracts set forth on Section 2.01(c) of the Disclosure Schedules, including Franchise Agreements, Leases and Intellectual Property Licenses (the “Assigned Contracts”);

(d)           all Intellectual Property Assets;

(e)           all furniture, fixtures, equipment, vehicles, office equipment, supplies, computers, telephones and other tangible personal property (the “Tangible Personal Property”);

(f)           all Permits, including liquor licenses and Environmental Permits, which are held by any Seller or any Affiliate of Sellers and required for the conduct of the Business as currently conducted or for the ownership or use of the Purchased Assets, including, those listed on Section 4.15(b) and Section 4.16(b) of the Disclosure Schedules (the “Assigned Permits”);

(g)           all rights to any Actions of any nature available to or being pursued by Sellers to the extent related to the Business, the Purchased Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;

(h)           all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees associated with the Assigned Contracts or Assigned Permits, prorated in all cases as provided in Section 2.05(e) of this Agreement; provided, however, the NIPSCO deposit for Buffaloville, Inc. In the approximate sum of $17,000.00 shall not be included as a Purchased Asset;

(i)            all of Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;

(j)           originals, or where not available, authentic copies, of all books and records, including, books of account, ledgers and general, financial and accounting records, equipment maintenance files, price lists, supplier lists, customer complaints and inquiry files, records and data (including all correspondence with any Governmental Authority), sales material and records, marketing and promotional surveys, and files relating to the Intellectual Property Assets and the Intellectual Property Licenses (“Books and Records”); and

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(k)           all goodwill and the going concern value of the Business.

Section 2.02     Excluded Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”):

(a)          cash and cash equivalents;

(b)          the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Sellers;

(c)           all Benefit Plans and assets attributable thereto;

(d)          the other assets, properties and rights specifically set forth on Section 2.02 of the Disclosure Schedules; and

(e)          the rights which accrue or will accrue to Sellers and any Affiliates of Sellers under the Transaction Documents.

(f)           Buffaloville, Inc.’s deposit with NIPSCO in the approximate sum of $17,000.00.

Section 2.03     Assumed Liabilities. Subject to the terms and conditions set forth in this Agreement, as of the Effective Time, Buyer shall assume and agree to pay, perform and discharge only the following Liabilities of Sellers or their Affiliates, respectively (collectively, the “Assumed Liabilities”), and no other Liabilities:

(a)           all trade accounts payable of Sellers to third parties in connection with the Business that remain unpaid as of the Effective Time that: (i) are reflected on the Interim Balance Sheet Date; or (ii) arose in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date.

(b)           all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are required to be performed at or after the Effective Time and do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Sellers prior to the Effective Time;

(c)           all Liabilities in respect of the Assigned Permits but only to the extent that such Liabilities thereunder are required to be performed at or after the Effective Time; and

(d)           those Liabilities of Sellers or their Affiliates set forth on Section 2.03(d) of the Disclosure Schedules;

Section 2.04     Excluded Liabilities. Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Sellers or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). Sellers shall, and shall cause each of their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy.

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Section 2.05     Purchase Price.

(a)         Purchase Price. The aggregate purchase price (the "Purchase Price") for the Purchased Assets shall be the Preliminary Purchase Price (defined below), as adjusted for Post-Closing Adjustment determined in accordance with the procedures set forth in Section 2.06(b) below.  For purposes hereof, the “Preliminary Purchase Price” for the Purchased Assets, shall be an amount comprised of the following:

(i)           $14,700,000; plus or minus

(ii)         the Working Capital Adjustment Amount; plus

(iii)        an amount equal to $40,000, which represents franchise fees paid by Sellers to Buffalo Wild Wings International, Inc. associated with the Sellers’ ninth Restaurant; plus

(iv)        an amount equal to one-half (1/2) of the BWW Transfer Fees.

(b)         Payment of Preliminary Purchase Price.  Subject to applicable reimbursement credits to Buyer and Sellers for pro-rations identified in Section 2.05(e) below, Buyer agrees to pay or deliver the Preliminary Purchase Price at Closing as follows:

(i)           The sum of: (A) $14,700,000, plus or minus (B) the Working Capital Adjustment Amount, minus (C) the Escrow Amount, shall be paid by wire transfer of immediately available funds into the account(s) designated in writing by Sellers; plus (D) $40,000, which represents franchise fees paid by Sellers to Buffalo Wild Wings International, Inc. associated with the Sellers’ ninth Restaurant; plus (E) an amount equal to one-half (1/2) of the BWW Transfer Fees (the “Closing Payment”); and

(ii)         The Escrow Amount shall be deposited by wire transfer of immediately available funds into an account designated by the Escrow Agent and shall be held for a period up to twelve (12) months and distributed in accordance with the terms of the Escrow Agreement to satisfy (i) any adjustments to the Preliminary Purchase Price in favor of Buyer pursuant to Section 2.06(b); and (ii) any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees that are recoverable by the Buyer Indemnitees against Sellers pursuant to Article VIII.

(c)         Additional Agreements.  As a material inducement to Sellers and Buyer to enter into this Agreement and to consummate the transactions provided for in this Agreement, the parties agree to the following with respect to agreements and instruments to be entered into in connection with the transactions provided for under the terms of this Agreement:

(i)          At the Closing, Sellers and Buyer agree, with respect to each Lease for a Restaurant, to enter into, or to cause their applicable Affiliates to enter into, an Assignment and Assumption of Lease in substantially the form of Exhibit D hereto (each, an “Assignment and Assumption of Lease”), and Sellers will use their reasonable best efforts to cause each of the landlords to execute and deliver a consent to such assignment.

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(e)         Pro-rations.  At the Closing, Buyer and Sellers shall reimburse each other, as appropriate, for the following expenses applicable to the Business, all of which shall be prorated such that Sellers are responsible for their pro-rata share (determined on a per diem basis) of the expenses accrued prior to the Effective Time except as provided below, and Buyer is responsible for its pro-rata share (determined on a per diem basis) of the expenses accrued on and after the Effective Time except as provided below:

(i)           real estate taxes and personal property taxes accrued in connection with the Leases assigned to Buyer (or its Affiliate) or otherwise accrued with respect to the Purchased Assets; provided, that the method of proration shall be consistent with customs in the county where the property is located;

(ii)          utility expenses associated with operation of the Restaurants, based upon actual amounts billed by the utilities;

(iii)         rent payments and any common area charges or other similarly pro-rated charges due under the Leases assigned to Buyer (or its Affiliate) (including any percentage rent on an annualized basis, as may be adjusted for recaptured landlord allowances);

(iv)         all payments (if any) due to BWW or to any cooperative marketing group under the Franchise Agreements assigned to Buyer (or its Affiliate) (excluding any BWW Transfer Fees) which accrue during the month of the Closing; provided, however, that to the extent such payments can be calculated as a percentage of gross sales or other operating accounts that can be segregated between Sellers and Buyer under their respective accounting systems, such payments shall be excluded from the pro-rations required by this Section 2.05(e)(iv) and be paid directly by Sellers and Buyer, as the case may be;

(v)          liquor license fees paid by any Seller or any Affiliate of Sellers prior to the Effective Time to the extent that all or any portion of such fees related to a liquor Permit assigned to Buyer (or its Affiliate) or subject to the Management Agreement with a post-Closing expiration date and are not refunded by the applicable Governmental Authority to Sellers or any Affiliate of Sellers; and

(vi)         any other items customarily prorated, as mutually agreed upon by the parties.

Section 2.06     Purchase Price Adjustments.

(a)        At-Closing Purchase Price Adjustment.

(i)           Estimate of Working Capital Adjustment Amount.  No less than three (3) Business Days prior to the Closing Date, Sellers shall deliver to Buyer a certificate, signed by a duly authorized representative of the Sellers, setting forth a reasonable estimate of the Working Capital Adjustment Amount.  The certificate shall be accompanied by the Estimated Working Capital Statement, together with financial information and other documentation that supports Sellers’ estimation of the Working Capital Adjustment Amount.

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(b)        Post-Closing Purchase Price Adjustment.

(i)           Delivery of Closing Working Capital Statement.  Within 60 days after the Closing Date, Buyer shall prepare and deliver to Sellers a certificate, signed by a duly authorized officer of Buyer, setting forth its calculation of Closing Working Capital.  The certificate shall be accompanied by the Closing Working Capital Statement as prepared by Buyer (the “Proposed Closing Working Capital Statement”), together with financial information and other documentation that supports Buyer’s determination of Closing Working Capital in the Proposed Closing Working Capital Statement.

(ii)          Examination. After receipt of the Proposed Closing Working Capital Statement, Sellers shall have 30 days (the “Review Period”) to review the Proposed Closing Working Capital Statement. During the Review Period, Sellers and Sellers’ Accountants shall have reasonable access to the relevant Books and Records of Buyer, the personnel of, and work papers prepared by, Buyer and/or Buyer’s Accountants to the extent that they relate to the Proposed Closing Working Capital Statement and to such historical financial information (to the extent in Buyer’s possession) relating to the Proposed Closing Working Capital Statement as Sellers may reasonably request for the purpose of reviewing the Proposed Closing Working Capital Statement and to prepare a Statement of Objections (defined below), provided, that such access shall be in a manner that does not interfere, unreasonably, with the normal business operations of Buyer.

(iii)         Objection. On or prior to the last day of the Review Period, Sellers may object to the Proposed Closing Working Capital Statement by delivering to Buyer a written statement setting forth Sellers’ objections in reasonable detail, indicating each disputed item or amount and the basis for Sellers’ disagreement therewith (the “Statement of Objections”). If Sellers fail to deliver the Statement of Objections before the expiration of the Review Period, the Proposed Closing Working Capital Statement shall be deemed to have been accepted by Sellers as the Closing Working Capital Statement and Buyer’s determination of Closing Working Capital reflected therein shall be deemed to have been accepted by Sellers. If Sellers deliver the Statement of Objections before the expiration of the Review Period, Buyer and Sellers shall negotiate in good faith to resolve such objections within 30 days after the delivery of the Statement of Objections (the “Resolution Period”), and, if the same are so resolved within the Resolution Period, the Proposed Closing Working Capital Statement and the Closing Working Capital, with such changes as may have been previously agreed in writing by Buyer and Sellers, shall be and become final and binding on the parties and shall constitute the Closing Working Capital Statement and Closing Working Capital for all purposes of this Agreement.

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(iv)          Resolution of Disputes. If Sellers and Buyer fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (“Disputed Amounts” and any amounts not so disputed, the “Undisputed Amounts”) shall be submitted for resolution to the office of Grant Thornton, LLP or, if Grant Thornton, LLP is unable to serve, Buyer and Sellers shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants other than Sellers’ Accountants or Buyer’s Accountants (the “Independent Accountants”) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only and make any adjustments to such Disputed Amounts and, as a consequence thereof, make adjustments to the Proposed Closing Working Capital Statement and the Closing Working Capital to reflect any agreements reached by the parties within the Resolution Period (which were not submitted to the Independent Accountants) and their resolution of the Disputed Amounts, as the case may be. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountants shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Proposed Closing Working Capital Statement and the Statement of Objections, respectively.

(v)           Fees of the Independent Accountants. Sellers shall pay a portion of the fees and expenses of the Independent Accountants equal to 100% multiplied by a fraction, the numerator of which is the amount of Disputed Amounts submitted to the Independent Accountants that are resolved in favor of Buyer (that being the difference between the Independent Accountants’ determination and Sellers’ determination) and the denominator of which is the total amount of Disputed Amounts submitted to the Independent Accountants (that being the sum total by which Buyer’s determination and Sellers’ determination differ from the determination of the Independent Accountants). Buyer shall pay that portion of the fees and expenses of the Independent Accountants that Sellers are not required to pay hereunder.

(vi)          Determination by Independent Accountants. The Independent Accountants shall make a determination as soon as practicable within 30 days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Disputed Amounts and their adjustments to the Closing Working Capital Statement and/or the Post-Closing Adjustment shall be conclusive and binding upon the parties hereto.  The Proposed Closing Working Capital Statement and the Closing Working Capital, as adjusted by the Independent Accountants in accordance with this Section 2.06(b), shall constitute the Closing Working Capital Statement and Closing Working Capital for purposes of this Agreement.

(vii)          Determination of Post-Closing Adjustment.  The “Post-Closing Adjustment” shall be an amount equal to the difference between Estimated Working Capital minus Closing Working Capital. If the Post-Closing Adjustment is a negative number, Buyer shall pay to Sellers an amount equal to the Post-Closing Adjustment, and if the Post-Closing Adjustment is a positive number, Sellers shall pay to Buyer an amount equal to the Post-Closing Adjustment, in each case, in accordance with Section 2.06(b)(vii).

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(viii)         Payments of Post-Closing Adjustment. Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due (x) within five Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five Business Days of the resolution described above; and (B) be paid by wire transfer of immediately available funds to such account(s) as are directed by Buyer or Sellers, as the case may be. Any payment of the Post-Closing Adjustment owed by Sellers to Buyer shall be paid by the Escrow Agent from the Escrow Amount pursuant to the terms of the Escrow Agreement.

(c)        Adjustments for Tax Purposes. Any payments made pursuant to Section 2.06 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.

Section 2.07     Allocation of Purchase Price. Sellers and Buyer agree that the Purchase Price (and all other capitalized costs) shall be allocated among the Sellers and among the Purchased Assets for all purposes (including Tax and financial accounting) as shown on Section 2.07 of the Disclosure Schedules (the “Allocation Schedule”). Any adjustments to the Purchase Price pursuant to Section 2.06 herein shall be allocated in a manner consistent with the Allocation Schedule.  None of the parties shall take any position whether in Actions, Tax Returns, or otherwise that is inconsistent with the allocations in the Allocation Schedule unless required to do so by applicably Law.  If any Governmental Authority shall challenge such allocations, Buyer and Sellers shall cooperate in good faith in responding to such challenge.  Sellers and Buyer shall give prompt written notice to the other upon their receipt of any such challenge.

Section 2.08     Third Party Consents. To the extent that Sellers’ rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained as of the Closing, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Sellers, at their expense, shall use their reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights at the Closing, Sellers, to the maximum extent permitted by Law and the Purchased Asset, shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer.    Notwithstanding any provision in this Section 2.08 to the contrary, Buyer shall not be deemed to have waived its rights under Section 7.02(d) hereof unless and until Buyer provides written waivers thereof.  Notwithstanding the foregoing provisions of this Section 2.08, the provisions of Section 6.18 shall govern the respective rights and obligations of the parties related to approvals or consents of Governmental Authorities to the transfer or issuance of Permits.

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ARTICLE III

Closing

Section 3.01     Closing. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Tauber Law Offices, 1415 Eagle Ridge Drive, Schererville, Indiana 46375 at 10:00 a.m., Central time, on the second Business Day after all of the conditions to Closing set forth in Article VII are either satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time, date or place as Sellers and Buyer may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the “Closing Date” and for all purposes the Closing will be deemed effective as of the Effective Time.

Section 3.02     Closing Deliverables.

(a)        At the Closing, Sellers shall deliver to Buyer the following:

(i)           the Escrow Agreement duly executed by Sellers;

(ii)          a bill of sale in the form of Exhibit E hereto (the “Bill of Sale”) and duly executed by Sellers, and Affiliates of Sellers, as applicable, transferring the tangible personal property included in the Purchased Assets to Buyer (or designated Affiliate of Buyer);

(iii)        an assignment and assumption agreement in the form of Exhibit F hereto (the “Assignment and Assumption Agreement”) and duly executed by Sellers and the Affiliates of Sellers, as applicable, effecting the assignment to and assumption by Buyer (or designated Affiliate of Buyer) of the Purchased Assets and the Assumed Liabilities;

(iv)         with respect to each Lease, an Assignment and Assumption of Lease, duly executed by a Seller or an Affiliate of Sellers, as applicable;

(v)          the Third Party Landlord Consents;

(vi)          the Seller Closing Certificate;

(vii)       the Management Agreement(s) associated with Permits to the extent applicable under the terms of Section 6.18, duly executed by a Seller or Affiliate of Seller, as applicable;

(viii)       the certificates required by Section 7.02(i) and Section 7.02(j); and

(ix)        such other customary instruments, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to the transactions, the Closing and any post-closing obligations of Sellers in accordance with the terms of this Agreement.

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(b)        At the Closing, Buyer shall deliver, or cause its designated Affiliate to deliver, to Sellers the following:

(i)           the Closing Payment;

(ii)          the Escrow Agreement duly executed by Buyer;

(iii)         the Assignment and Assumption Agreement duly executed by Buyer or a designated Affiliate of Buyer;

(iv)         with respect to each Lease, an Assignment and Assumption of Lease, duly executed by Buyer or a designated Affiliate of Buyer;

(v)          the Buyer Closing Certificate;

(vi)         the certificates required by Section 7.03(f) and Section 7.03(g);

(vii)        the Management Agreement, to the extent applicable under the terms of Section 6.18, duly executed by Buyer or a designated Affiliate of Buyer; and

(viii)       such other customary instruments, filings or documents, in form and substance reasonably acceptable to Sellers, as may be required to give effect to the transactions, and the Closing, and any post-closing obligations of Buyer in accordance with the terms of this Agreement.

(c)        At the Closing, Buyer shall deliver the Escrow Amount to the Escrow Agent pursuant to the Escrow Agreement, duly executed by Buyer, Sellers and the Escrow Agent.

(d)        Notwithstanding the order of the deliveries by the parties set forth above, all actions and deliveries are deemed to have occurred simultaneously, and none shall be deemed to have been completed until each of the Actions and deliveries set forth in this Section 3.02 has been completed or has been waived by the party entitled to make such waiver.

ARTICLE IV

Representations and warranties of Sellers and Principal Stakeholder

Except as set forth in the correspondingly numbered Sections of the Disclosure Schedules, Sellers and the Principal Stakeholder jointly and severally represent and warrant to Buyer that the statements contained in this Article IV are true and correct as of the date hereof.

Section 4.01     Organization and Qualification of Sellers. Each Seller is duly organized, validly existing and in good standing under the Laws of the state of its organization or incorporation and has full corporate or limited liability company power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on its portion of the Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth each jurisdiction in which Sellers are licensed or qualified to do business, and each Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of the Purchased Assets or the operation of its portion of the Business as currently conducted makes such licensing or qualification necessary.

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Section 4.02     Authority of Sellers. Each Seller has full corporate or limited liability company power and authority to enter into this Agreement and the other Transaction Documents to which such Seller is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by a Seller of this Agreement and any other Transaction Document to which such Seller is a party, the performance by a Seller of its obligations hereunder and thereunder and the consummation by a Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate or limited liability company action on the part of such Seller. This Agreement has been duly executed and delivered by each Seller, and (assuming due authorization, execution and delivery by Buyer and DRH) this Agreement constitutes a legal, valid and binding obligation of Sellers enforceable against Sellers in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general appreciation affecting enforcement of creditors’ rights generally and by general equitable principles. When each other Transaction Document to which a Seller is or will be party has been duly executed and delivered by such Seller (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of such Seller enforceable against it in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general appreciation affecting enforcement of creditors’ rights generally and by general equitable principles.

Section 4.03     No Conflicts; Consents. The execution, delivery and performance by Sellers of this Agreement and the other Transaction Documents to which any Seller is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of any Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to any Seller or Affiliate of Sellers, the Business or the Purchased Assets; (c) except as set forth in Section 4.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Sellers are, or any Seller is, a party or by which Sellers are, or any Seller or the Business is bound, or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. Except with respect to the transfer of the Assigned Permits, no consent, approval, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Sellers in connection with the execution and delivery of this Agreement or any of the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

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Section 4.04     Financial Statements. Complete copies of the unaudited, compiled financial statements of Sellers, consisting of the Balance Sheets of each Seller at December 31st in the years 2009 and 2010, and the related statements of income and retained earnings, stockholders’ equity and cash flow for each Seller for the years then ended (the “Compiled Financial Statements”), and unaudited financial statements of Sellers, consisting of Balance Sheets for each Seller as at December 31, 2011, and the related statements of income and retained earnings, stockholders’/members’ equity and cash flow for each Seller the three month period then ended (the “Interim Financial Statements” and together with the Compiled Financial Statements, the “Financial Statements”) have been delivered to Buyer.  Except as set forth in Section 4.04 of the Disclosure Schedules, the Financial Statements have been prepared on a tax basis, applied on a consistent basis throughout the period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the Compiled Financial Statements). The Financial Statements are based on the Books and Records of the Business, operated by Sellers, and fairly present in all material respects the financial condition of Sellers as of the respective dates they were prepared and the results of operations of Sellers for the periods indicated.  The Balance Sheets of Sellers, as of May 31, 2012 are referred to herein as the “Interim Balance Sheets” and the date thereof as the “Interim Balance Sheet Date”.

Section 4.05    Undisclosed Liabilities.  Except as set forth on Section 4.05 of the Disclosure Schedules, Sellers have no Liabilities with respect to the Business, except: (a) those which are adequately reflected or reserved against in the Interim Balance Sheets as of the Interim Balance Sheet Date;  and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date and which are not, individually or in the aggregate, material in amount.

Section 4.06     Absence of Certain Changes, Events and Conditions.  Except for the transactions contemplated by this Agreement, and except as set forth on Section 4.06 of the Disclosure Schedules, since January 1, 2012 there has not been any:

(a)           event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(b)           declaration or payment of any dividends or distributions on or in respect of any of Sellers’ capital stock or membership interests or redemption, purchase or acquisition of Sellers’ capital stock or membership interests;

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(c)           material change in any method of accounting or accounting practice for the Business;

(d)          material change in cash management practices and policies, practices and procedures with respect to inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, and deferral of revenue;

(e)           entry into any Contract that would constitute a Material Contract;

(f)            incurrence, assumption or guarantee of any indebtedness for borrowed money in connection with the Business except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;

(g)           transfer, assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Compiled Financial Statements, except for the sale of Inventory in the ordinary course of business;

(h)           cancellation of any debts or claims or amendment, termination or waiver of any rights, constituting Purchased Assets;

(i)            transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Intellectual Property Assets or Intellectual Property Licenses;

(j)             material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;

(k)            acceleration, termination, material modification to or cancellation of any Assigned Contract or Assigned Permit;

(l)             material capital expenditures which would constitute an Assumed Liability;

(m)           imposition of any Encumbrance (other than Permitted Encumbrances) upon any of the Purchased Assets;

(n)           (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements, or required by applicable Law, (ii) change in the terms of employment for any employee of the Business or any termination of any employees for which the aggregate costs and expenses related to such change or termination exceed $10,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director, consultant or independent contractor of the Business;

(o)           adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;

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(p)           any loan to (or forgiveness of any loan to), or entry into any other transaction with, any directors, officers or employees of the Business;

(q)           adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;

(r)           purchase, lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess of $50,000, individually (in the case of a lease, per annum) or $75,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the ordinary course of business consistent with past practice; or

(s)           any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.

Section 4.07     Material Contracts.

(a)           Section 4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which any Seller or Affiliate of Sellers’ is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts, together with all Leases and Intellectual Property Licenses, being “Material Contracts”):

(i)           all Contracts involving aggregate consideration in excess of $50,000 and which, in each case, cannot be cancelled without penalty or without more than 90 days’ notice;

(ii)          all Contracts that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;

(iii)         all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);

(iv)         all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than 90 days’ notice;

(v)          all Contracts relating to indebtedness (including, guarantees);

(vi)         all Contracts with any Governmental Authority;

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(vii)        all Contracts that limit or purport to limit the ability of Sellers, or any Seller, to compete in any line of business or with any Person or in any geographic area or during any period of time;

(viii)       all joint venture, partnership or similar Contracts;

(ix)         all Contracts for the sale of any of the Purchased Assets (other than Inventory in the ordinary course of business) or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;

(x)          all powers of attorney with respect to the Business or any Purchased Asset; and

(xi)         all other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this Section 4.07.

(b)           Each Material Contract is valid and binding on the applicable Seller, or its applicable Affiliate in accordance with its terms and is in full force and effect. No Seller, nor its applicable Affiliate nor, to Sellers’ Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer. There are no material disputes pending or threatened under any Assigned Contract.

Section 4.08     Title or License to Purchased Assets. Sellers or their Applicable Affiliates have good and valid title to, or a valid leasehold interest in, all of the Purchased Assets. All such Purchased Assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively referred to as “Permitted Encumbrances”):

(a)        those items set forth in Section 4.08 of the Disclosure Schedules;

(b)       liens for Taxes not yet due and payable or liens for Taxes being contested in good faith by appropriate procedures and for which there are adequate accruals or reserves on the Financial Statements;

(c)        mechanics’, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or the Purchased Assets;

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(d)         easements, rights of way, zoning ordinances and other similar encumbrances affecting Leased Real Property which are not, individually or in the aggregate, material to the Business or the Purchased Assets, or which do not prohibit or interfere with the current operation of any Leased Real Property;

(e)         liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business consistent with past practice which are not, individually or in the aggregate, material to the Business or the Purchased Assets; or

(f)          restrictions arising under the Franchise Agreements or restrictions on use of Leased Real Property contained in the Leases.

Section 4.09     Condition and Sufficiency of Assets. Except as set forth in Section 4.09 of the Disclosure Schedules, the buildings, furniture, fixtures, equipment, vehicles and other items of tangible personal property included in the Purchased Assets are in good operating condition and repair, normal wear and tear excepted. Except as set forth in Section 4.09 of the Disclosure Schedules, the Purchased Assets are sufficient for the continued conduct of the Business after the Closing substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business.

Section 4.10     Real Property

(a)          Sellers do not own any real property used in connection with the Business.

(b)           Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by any Seller or its applicable Affiliate and used in or necessary for the conduct of the Business as currently conducted (together with all rights, title and interest of Sellers or their applicable Affiliates in and to leasehold improvements relating thereto, collectively, the “Leased Real Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Sellers or their Affiliates hold any Leased Real Property (collectively, the “Leases”). Sellers or their applicable Affiliate have delivered to Buyer a true and complete copy of each Lease. With respect to each Lease, except as set forth on Section 4.10(b) of the Disclosure Schedules:

(i)           such Lease is valid, binding, enforceable and in full force and effect, and such Seller or its applicable Affiliates enjoys peaceful and undisturbed possession of the Leased Real Property;

(ii)          Such Seller or its applicable Affiliate is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and such Seller or its applicable Affiliate has paid all rent due and payable under such Lease;

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(iii)         Seller or their applicable Affiliate have not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by any Seller or its applicable Affiliate under any of the Leases and, to the Knowledge of Sellers or their applicable Affiliate, no other party is in default thereof, and no party to any Lease has exercised any termination rights with respect thereto;

(iv)         Neither Sellers nor their applicable Affiliates have subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and

(v)          Neither Sellers nor their applicable Affiliates have pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.

(c)           Neither Sellers nor their applicable Affiliates have received any written notice of (i) material violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the Leased Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Leased Real Property, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to materially and adversely affect the ability to operate the Leased Real Property as currently operated. Neither the whole nor any material portion of any Leased Real Property has been damaged or destroyed by fire or other casualty.

(d)           The Leased Real Property is sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.

Section 4.11     Intellectual Property.

(a)           Except as set forth in Section 4.11(a) of the Disclosure Schedules, Sellers have no Intellectual Property Registrations and do not own Intellectual Property Assets that are material to the operation of the Business that are not registered.

(b)           Except as set forth in Section 4.11(b) of the Disclosure Schedules, Sellers or their applicable Affiliates own, exclusively or jointly with other Persons, all right, title and interest in and to the Intellectual Property Assets, free and clear of Encumbrances except Permitted Encumbrances.

(c)           Except for Intellectual Property Licenses given to Sellers or their applicable Affiliate by BWW and affiliates of BWW pursuant to the Franchise Agreements, Section 4.11(c) of the Disclosure Schedules lists all other Intellectual Property Licenses material to the operation of the Business. Sellers or their applicable Affiliates have provided Buyer with true and complete copies of all such Intellectual Property Licenses. All such Intellectual Property Licenses are valid, binding and enforceable between Sellers or their applicable Affiliates and the other parties thereto, and Sellers or their applicable Affiliates and to Sellers’ Knowledge, such other parties, are in compliance in all material respects with the terms and conditions of such Intellectual Property Licenses.

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Section 4.12     Suppliers. Section 4.12 of the Disclosure Schedules sets forth with respect to the Business the material distributors and suppliers to whom Sellers or their applicable Affiliates have paid consideration for goods or services (collectively, the “Material Suppliers”) and the amount of purchases from each Material Supplier during such periods. Except as set forth in Section 4.12 of the Disclosure Schedules, Sellers have not received any notice, and have no reason to believe, that any of the Material Suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise terminate or materially reduce its relationship with the Business.

Section 4.13     Insurance. Section 4.13 of the Disclosure Schedules sets forth (a) a true and complete list of all current policies or binders of fire, liability, “dramshop” and similar liability, umbrella liability, real and personal property, workers’ compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Sellers or their Affiliates and relating to the Business, the Purchased Assets or the Assumed Liabilities (collectively, the “Insurance Policies”); and (b) with respect to the Business, the Purchased Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Sellers since January 1, 2011. Except as set forth on Section 4.13 of the Disclosure Schedules, there are no claims related to the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Neither Sellers nor any of their Affiliates have received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due, accrued. All such Insurance Policies (a) are in full force and effect and enforceable in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. Neither Sellers nor any of their Affiliates is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Business and are sufficient for compliance with all applicable Laws and Contracts to which any Seller is a party or by which any Seller is bound. True and complete copies of the Insurance Policies have been made available to Buyer.

Section 4.14     Legal Proceedings; Governmental Orders.

(a)           Except as set forth in Section 4.14(a) of the Disclosure Schedules, there are no Actions pending or, to Sellers’ Knowledge, threatened against or by Sellers (a) relating to or affecting the Business, the Purchased Assets or the Assumed Liabilities; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or, to Sellers’ Knowledge, circumstances exist, that may give rise to, or serve as a basis for, any such Action.

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(b)           Except as set forth in Section 4.14(b) of the Disclosure Schedules, there are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business. Sellers are in compliance with the terms of each Governmental Order set forth in Section 4.14(b) of the Disclosure Schedules. No event has occurred or, circumstances exist, that may constitute or result in (with or without notice or lapse of time) a violation of any such Governmental Order.

Section 4.15     Compliance With Laws; Permits.

(a)           Except as set forth in Section 4.15(a) of the Disclosure Schedules, Sellers have been and are in compliance with all Laws applicable to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets.

(b)          All Permits required for Sellers to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been obtained by Sellers or their applicable Affiliates and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof have been paid in full. Section 4.15(b) of the Disclosure Schedules lists all current Permits issued to Sellers or their applicable Affiliates which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets, including the names of the Permits and their respective dates of issuance and expiration.  No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.15(b) of the Disclosure Schedules.

Section 4.16     Environmental Matters.

(a)           The operations of Sellers with respect to the Business and the Purchased Assets are and have been in compliance with all Environmental Laws. Sellers have not received from any Person, with respect to the Business or the Purchased Assets, any: (i) Environmental Notice or Environmental Claim; or (ii) written request for information pursuant to Environmental Law, which, in each case, either remains pending or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.

(b)           Sellers or their applicable Affiliates have obtained and are in material compliance with all Environmental Permits (each of which is disclosed in Section 4.16(b) of the Disclosure Schedules) necessary for the conduct of the Business as currently conducted or the ownership, lease, operation or use of the Purchased Assets and all such Environmental Permits are in full force and effect and shall be maintained in full force and effect by Sellers or their applicable Affiliates through the Closing Date in accordance with Environmental Law, and Sellers are not aware of any condition, event or circumstance that might prevent or impede, after the Effective Time, the conduct of the Business as currently conducted or the ownership, lease, operation or use of the Purchased Assets.  With respect to any such Environmental Permits, Sellers or their applicable Affiliates have undertaken, or will undertake prior to the Closing Date, all measures necessary to facilitate transferability of the same, and Sellers are not aware of any condition, event or circumstance that might prevent or impede the transferability of the same, and have not received any Environmental Notice or written communication regarding any material adverse change in the status or terms and conditions of the same.

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(c)           There has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by Sellers in connection with the Business, and Sellers has not received an Environmental Notice that any of the Business or the Purchased Assets or real property currently or formerly owned, leased or operated by Sellers in connection with the Business (including soils, groundwater, surface water, buildings and other structure located thereon) has been contaminated with any Hazardous Material which could reasonably be expected to result in an Environmental Claim against, or a violation of Environmental Law or term of any Environmental Permit by, Sellers.

(d)           Sellers have not retained or assumed, by contract or operation of law, any liabilities or obligations of third parties under Environmental Law.

(e)           Sellers have provided or otherwise made available to Buyer and listed in Section 4.16(e) of the Disclosure Schedules: (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar documents with respect to the Business or the Purchased Assets or any real property currently or formerly owned, leased or operated by Sellers in connection with the Business which are in the possession or control of Sellers related to compliance with Environmental Laws, Environmental Claims or an Environmental Notice.

Section 4.17     Employee Benefit Matters.

(a)            Section 4.17(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, profit-sharing, deferred compensation, incentive, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Sellers for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Sellers have or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise (as listed on Section 4.17(a) of the Disclosure Schedules, each, a “Benefit Plan”).

(b)           With respect to each Benefit Plan, Sellers have made available to Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, employee handbooks and any other written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service; (vi) in the case of any Benefit Plan for which a Form 5500 is required to be filed, a copy of the most recently filed Form 5500, with schedules attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; and (viii) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor or Pension Benefit Guaranty Corporation relating to the Benefit Plan.

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(c)           Except as set forth in Section 4.17(c) of the Disclosure Schedules, each Benefit Plan (other than any multi-employer plan within the meaning of Section 3(37) of ERISA (each a “Multi-employer Plan”)) has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code).

Section 4.18     Employment Matters.

(a)           Section 4.18(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Business as of the date hereof, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate; (v) commission, bonus or other incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section 4.18(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions and bonuses payable to employees, independent contractors or consultants of the Business for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any compensation, commissions or bonuses.

(b)          Sellers are not, and have not been for the past five (5) years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “Union”), and there is not, and has not been for the past five (5) years, any Union representing or purporting to represent any employee of Sellers, and, to Sellers’ Knowledge, no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. Except as set forth in Section 4.18(b) of the Disclosure Schedules, there has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Sellers or any employees of the Business. Sellers have no duty to bargain with any Union.

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(c)           Except as set forth in Section 4.18(c) of the Disclosure Schedules, Sellers are and have been in compliance in all material respects with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence and unemployment insurance. All individuals characterized and treated by Sellers as consultants or independent contractors of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified in all material respects. Except as set forth in Section 4.18(c), there are no Actions against Sellers pending, or to the Sellers’ Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant, volunteer, intern or independent contractor of the Business, including, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay, wages and hours or any other employment related matter arising under applicable Laws.

(d)           Sellers have complied in all material respects with the WARN Act, if applicable.

Section 4.19     Taxes. Except as set forth in Section 4.19 of the Disclosure Schedules:

(a)           All Tax Returns with respect to the Business required to be filed by Sellers for any Pre-Closing Tax Period have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by Sellers (whether or not shown on any Tax Return) have been, or will be, timely paid.

(b)          Sellers have withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law.

(c)           No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Sellers.

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(d)           All deficiencies asserted, or assessments made, against Sellers as a result of any examinations by any taxing authority have been fully paid.

(e)           No Seller is a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority against Sellers.

(f)           There are no Encumbrances for Taxes upon any of the Purchased Assets nor, to Sellers’ Knowledge, is any taxing authority in the process of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current Taxes not yet due and payable).

Section 4.20     Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Sellers.

Section 4.21     Full Disclosure. No representation or warranty by Sellers in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

ARTICLE V

Representations and warranties of Buyer and DRH

Buyer and DRH, jointly and severally, represent and warrant to Sellers that the statements contained in this Article V are true and correct as of the date hereof.

Section 5.01     Organization of Buyer. Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the State of Michigan. DRH is a corporation duly organized, validly existing and in good standing under the Laws of the State of Nevada.

Section 5.02     Authority of Buyer. Buyer and DRH have full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Buyer and DRH are a party, to carry out their obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer and DRH of this Agreement and any other Transaction Document to which Buyer or DRH is a party, the performance by Buyer and DRH of their obligations hereunder and thereunder and the consummation by Buyer and DRH of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer and DRH. This Agreement has been duly executed and delivered by Buyer and DRH, and (assuming due authorization, execution and delivery by Sellers) this Agreement constitutes a legal, valid and binding obligation of Buyer and DRH enforceable against Buyer and DRH in accordance with its terms. When each other Transaction Document to which Buyer, DRH,  or their applicable Affiliates, is or will be a party has been duly executed and delivered by Buyer, DRH,  or their applicable Affiliates, (assuming due authorization, execution and delivery by each other party thereto), such Transaction Document will constitute a legal and binding obligation of Buyer, DRH,  or their applicable Affiliates, enforceable against them in accordance with their terms.

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Section 5.03     No Conflicts; Consents. The execution, delivery and performance by Buyer, DRH and their applicable Affiliates of this Agreement and the other Transaction Documents to which each is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Buyer, DRH or their applicable Affiliates; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer, DRH or their applicable Affiliates; or (c) require the consent, notice or other action by any Person under any Contract to which Buyer, DRH or their applicable Affiliates are a party.  No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer, DRH or their applicable Affiliates in connection with the execution and delivery of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.

Section 5.04     Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer, DRH or their applicable Affiliates.

Section 5.05     Legal Proceedings. There are no Actions pending or, to Buyer’s or DRH’s knowledge, threatened against or by Buyer, DRH or any Affiliate of Buyer or DRH that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.

ARTICLE VI

Covenants

Section 6.01     Conduct of Business Prior to the Closing. From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Sellers shall (x) conduct the Business in the ordinary course of business consistent with past practice; and (y) use reasonable best efforts to maintain and preserve intact their current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships of their employees, customers, lenders, suppliers, regulators and others having relationships with the Business. Without limiting the foregoing, from the date hereof until the Closing Date (or the earlier termination of this Agreement in accordance with its terms), Sellers shall:

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(a)           preserve and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;

(b)           pay the debts, Taxes and other obligations of the Business when due;

(c)           continue to collect Accounts Receivable in a manner consistent with past practice, without discounting such Accounts Receivable;

(d)           continue repair and maintenance schedules in the ordinary course of Sellers’ Business and take such additional action as necessary to maintain the properties and assets included in good operating condition and repair, subject to reasonable wear and tear;

(e)           continue in full force and effect without modification all Insurance Policies, except as required by applicable Law;

(f)            perform all of their obligations under all Assigned Contracts;

(g)           maintain the Books and Records in accordance with past practice;

(h)           comply in all material respects with all Laws applicable to the conduct of the Business or the ownership and use of the Purchased Assets; and

(i)           not take or permit any action that would cause any of the changes, events or conditions described in Section 4.06 to occur.

Section 6.02     Access to Information. From the date hereof until the Closing (or the earlier termination of this Agreement in accordance with its terms), Sellers shall (a) afford Buyer and its Representatives full and free access to and the right to inspect all of the Leased Real Property, properties, assets, premises, Books and Records, Contracts and other documents and data related to the Business; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c)  instruct Representatives of Sellers to cooperate with Buyer in its investigation of the Business.  Any investigation pursuant to this Section 6.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business or any other businesses of Sellers.  No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Sellers in this Agreement.

Section 6.03     No Solicitation of Other Bids.

(a)           Sellers shall not, and shall not authorize or permit any of their Affiliates or any of their respective Representatives to, directly or indirectly, (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Sellers shall immediately cease and cause to be terminated, and shall cause their Affiliates and all of their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” means any inquiry, proposal or offer from any Person (other than BWW or Affiliates of BWW, or Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased Assets; provided, Sellers should not be limited by anything in this Section, or any other term in this Agreement, from fulfilling its obligations under the Franchise Agreements to BWW, including its obligations to afford BWW a right of first refusal to acquire the Purchased Assets and Business thereunder.

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(b)           In addition to the other obligations under this Section 6.03, Sellers shall promptly (and in any event within three Business Days after receipt thereof by Sellers or their Representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the same.

(c)           Sellers agree that the rights and remedies for noncompliance with this Section 6.03 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer.

Section 6.04     Notice of Certain Events. From the date hereof until the Closing (or the earlier termination of this Agreement in accordance with its terms), each party shall promptly notify the other party in writing of:

(a)           any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on such party, (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by such party hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.02 or Section 7.03, as applicable, to be satisfied;

(b)           any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(c)           any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and

(d)           any Actions commenced or, to the applicable party’s Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the Purchased Assets or the Assumed Liabilities that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to the terms of this Agreement or that relates to the consummation of the transactions contemplated by this Agreement.

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(e)           Buyer’s receipt of information pursuant to this Section 6.04 shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Sellers in this Agreement, and shall not be deemed to amend or supplement the Disclosure Schedules.

Section 6.05     Employees and Employee Benefits.

(a)           Commencing on the Closing Date, Sellers shall effectively terminate all employees of the Business who are actively at work at the Effective Time, and, at Buyer's sole discretion, Buyer may (directly or through its applicable Affiliate) offer employment, on an "at will" basis, to any of such employees. Sellers shall bear any and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section 6.05.

(b)           Sellers shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Sellers or their applicable Affiliates at any time on or prior to the Effective Time and Sellers shall pay all such amounts to all entitled persons on or prior to the Effective Time.

(c)           Sellers shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Effective Time. Sellers also shall remain solely responsible for all worker's compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Effective Time. Sellers shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.

(d)           Each employee of the Business who becomes employed by Buyer (or its applicable Affiliate) in connection with the transactions contemplated by this Agreement shall be eligible to receive the salary and benefits maintained for employees of Buyer on substantially similar terms and conditions in the aggregate as are provided to similarly situated employees of Buyer.

(e)           Each employee of the Business who becomes employed by Buyer (or its applicable Affiliate) in connection with the transaction shall be given service credit for the purpose of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or her period of service with the Sellers prior to the Closing Date; provided, however, that (i) such credit shall be given pursuant to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall be permitted and consistent with Buyer's defined contribution retirement plan.

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Section 6.06     Confidentiality. From and after the Closing, Sellers shall, and shall cause their Affiliates to, hold, and shall use their reasonable best efforts to cause their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business, except to the extent that Sellers can show that such information (a) is generally available to and known by the public through no fault of Sellers, any of their Affiliates or their respective Representatives; or (b) is lawfully acquired by Sellers, any of their Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Sellers or any of their Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Sellers shall promptly notify Buyer in writing and shall disclose only that portion of such information which Sellers are advised by its counsel in writing is legally required to be disclosed, provided that Sellers shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

Section 6.07     Non-competition; Non-solicitation

(a)           For a period of three (3) years commencing on the Closing Date (the “Restricted Period”), Sellers shall not, and shall not permit any of their Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Sellers and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Sellers may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Sellers are not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person.

(b)           During the Restricted Period, Sellers shall not, and shall not permit any of their Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 6.05, or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall prevent Sellers or any of their Affiliates from retaining the services of (i) any employee whose employment has been terminated by Buyer (or its applicable Affiliate) or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.

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(c)           Sellers acknowledge that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Sellers of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

(d)           Sellers acknowledge that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Section 6.08     Governmental Approvals and Consents

(a)           Each party hereto shall, as promptly as possible, (i) make, or cause or be made, all filings and submissions required under any Law applicable to such party or any of its Affiliates; and (ii) use reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the other Transaction Documents. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.

(b)           Sellers and Buyer shall use reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are described in Section 4.03 of the Disclosure Schedules.

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(c)        Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties hereto shall use all reasonable best efforts to:

(i)           respond to any inquiries by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated by this Agreement or any other Transaction Document;

(ii)          avoid the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement or any other Transaction Document; and

(iii)         in the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any other Transaction Document has been issued, to have such Governmental Order vacated or lifted.

(d)           All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Sellers or Buyer with Governmental Authorities in the ordinary course of business), shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.

(e)           Notwithstanding the foregoing, nothing in this Section 6.08 shall require, or be construed to require, Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Buyer or any of its Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement and the other Transaction Documents; or (iii) any material modification or waiver of the terms and conditions of this Agreement.

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Section 6.09     Books and Records.

(a)           In order to facilitate the resolution of any claims made against or incurred by Sellers prior to the Effective Time, or for any other reasonable purpose, for a period of four (4) years after the Effective Time, Buyer shall:

(i)           retain the Books and Records (including personnel files) relating to periods prior to the Effective Time in a manner reasonably consistent with the prior practices of Sellers; and

(ii)          upon reasonable notice, afford the Sellers’ Representatives reasonable access (including the right to make, at Sellers’ expense, photocopies), during normal business hours, to such Books and Records.

(b)           In order to facilitate the resolution of any claims made by or against or incurred by Buyer after the Effective Time, or for any other reasonable purpose, for a period of two (2) years following the Effective Time, Sellers shall:

(i)           retain the Books and Records (including personnel files) of Sellers which relate to the Business and their operations for periods prior to the Effective Time; and

(ii)          upon reasonable notice, afford the Buyer’s Representatives reasonable access (including the right to make, at Buyer’s expense, photocopies), during normal business hours, to such Books and Records.

(c)           Neither Buyer nor Sellers shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant to this Section 6.09 where such access would violate any Law or be protected by attorney-client privilege.

Section 6.10     Closing Conditions From the date hereof until the Closing (or the earlier termination of the Agreement in accordance with its terms), each party hereto shall use reasonable best efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in Article VII hereof.

Section 6.11     Public Announcements. Unless otherwise required by applicable Law or Securities and Exchange Commission requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.

Section 6.12     Bulk Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; it being understood that any Liabilities arising out of the failure of Sellers to comply with the requirements and provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as Excluded Liabilities.

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Section 6.13     Receivables. From and after the Effective Time, if Sellers or any of their Affiliates receives or collects any funds relating to any Accounts Receivable or any other Purchased Asset, Sellers or their Affiliates shall remit such funds to Buyer within five (5) Business Days after its receipt thereof. From and after the Effective Time, if Buyer or its Affiliate receives or collects any funds relating to any Excluded Asset, Buyer or its Affiliate shall remit any such funds to Sellers within (5) five Business Days after its receipt thereof.

Section 6.14     Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees (including any penalties and interest) incurred in connection with the operation of the Business or this Agreement and the other Transaction Documents shall be borne and paid by Sellers when due, and Sellers shall, at their own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).

Section 6.15     Tax Clearance Certificates. If requested by Buyer, Sellers shall notify all of the taxing authorities in the jurisdictions that impose Taxes on Sellers or where Sellers have a duty to file Tax Returns of the transactions contemplated by this Agreement in the form and manner required by such taxing authorities, if the failure to make such notifications or receive any available tax clearance certificate (a “Tax Clearance Certificate”) could subject the Buyer to any Taxes of Sellers. If any taxing authority asserts that Sellers are liable for any Tax related to a Pre-Closing Tax Period, Sellers shall promptly pay any and all such amounts and shall provide evidence to the Buyer that such liabilities have been paid in full or otherwise satisfied.

Section 6.16     Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the other Transaction Documents.

Section 6.17     Restrictions on Dissolution and Distribution of Sellers. Sellers shall not dissolve or make any liquidating distributions of the proceeds from this transaction that would result in each of Sellers retaining less than $30,000 of such proceeds (or $240,000 for all Sellers), unless and until Sellers have paid or made adequate provisions for the payment of all of their obligations pursuant to Section 2.06(b).

Section 6.18     Management Agreement.  If, as of the Closing Date, all of the conditions set forth in Article VII have been satisfied or waived by the parties except for the requirement that Buyer receive all Permits necessary to conduct the Business, as indicated by Sellers prior to the Closing, Buyer and Sellers shall execute, or shall cause their designated Affiliates to execute, a Management Agreement in the form attached hereto as Exhibit G (“Management Agreement”), pursuant to which Buyer shall operate the Business under Sellers’ existing Permits until such time as the applicable Governmental Authorities approve the transfer of such Permits to Buyer or issue new Permits to Buyer, as applicable.

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ARTICLE VII

Conditions to closing

Section 7.01     Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or the parties’ waiver, at or prior to the Closing, of each of the following conditions:

(a)           No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.

(b)           Subject in each case to Section 6.18 above, Sellers shall have received any consents, authorizations, orders and approvals from the Governmental Authorities referred to in Section 4.03 in form and substance reasonably satisfactory to Buyer and no such consent, authorization, order and approval shall have been revoked.

Section 7.02     Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:

(a)           Other than the representations and warranties of Sellers contained in Section 4.01, Section 4.02, and Section 4.20, the representations and warranties of Sellers contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and as of the Effective Time with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Sellers contained in Section 4.01, Section 4.02, and Section 4.20 shall be true and correct in all respects on and as of the date hereof and on and as of the Effective Time with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).

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(b)           Sellers shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by them prior to the Effective Time; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Sellers shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

(c)           No Action shall have been commenced by any Person not a party to this Agreement against Buyer or Sellers, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.

(d)           All approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.

(e)           From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.

(f)           Subject to Section 6.18, Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Sellers as of the Closing Date.

(g)           All Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Sellers shall have delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.

(h)           Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized representative of Sellers, that each of the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied (the “Seller Closing Certificate”).

(i)           Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors or managers, of each authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by the Sellers, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.

(j)           Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Sellers certifying the names and signatures of the officers of Sellers authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

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(k)           Buyer shall have obtained on terms and conditions satisfactory to it all of the financing it needs in order to consummate the transactions contemplated by this Agreement.  

(l)           Sellers shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.

Section 7.03     Conditions to Obligations of Sellers. The obligations of Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Sellers’ waiver, at or prior to the Closing, of each of the following conditions:

(a)           Other than the representations and warranties of Buyer and DRH contained in Section 5.01, Section 5.02, and Section 5.04, the representations and warranties of Buyer and DRH contained in this Agreement, the other Transaction Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and as of the Effective Time with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). The representations and warranties of Buyer and DRH contained in Section 5.01, Section 5.02, and Section 5.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Effective Time with the same effect as though made at and as of such date.

(b)           Buyer and DRH shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it prior to or on the Closing Date; provided, that, with respect to agreements, covenants and conditions that are qualified by materiality, Buyer and DRH shall have performed such agreements, covenants and conditions, as so qualified, in all respects.

(c)           No Action shall have been commenced by any Person not a party to this Agreement against Buyer or Sellers, which would prevent the Closing.  No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any material transaction contemplated hereby.

(d)           Buyer shall have delivered the Escrow Amount to the Escrow Agent pursuant to Section 3.02(c).

(e)           Sellers shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Buyer, that each of the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied (the “Buyer Closing Certificate”).

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(f)           Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of DRH certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of DRH authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by Buyer, DRH and their applicable Affiliates, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby.

(g)           Sellers shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of DRH certifying the names and signatures of the officers of DRH and Buyer authorized to sign this Agreement, the Transaction Documents and the other documents to be delivered hereunder and thereunder.

(h)           Buyer and DRH shall have delivered to Sellers such other documents or instruments as Sellers reasonably request and are reasonably necessary to consummate the transactions contemplated by this Agreement.

Section 7.04     Casualty or Condemnation.  In the event at any time from and after the date hereof and prior to the Effective Time:

(a)           With respect to any Restaurant or any parcel of real property on which a Restaurant is located, a fire or other casualty shall occur and the same shall cause Material Damage (defined below) or condemnation or eminent domain proceedings shall commence which are reasonably expected to cause Material Damage, then Buyer may, at its election exercised by written notice to Sellers within ten (10) days after Buyer’s receipt of notice of any such occurrence, either (i) terminate this Agreement and neither party shall thereafter have any further obligations to the other hereunder, except for the Surviving Obligations, or (ii) proceed with the Closing as provided below.

(b)           In the event Buyer fails to elect to terminate under Section 7.04(a) above, Buyer shall be deemed to have elected to proceed with the Closing as provided below.

(c)           For purposes hereof, “Material Damage” shall mean: (i) fire or other casualty at two or more of the Restaurants causing damage, as reasonably estimated by Sellers’ insurance appraiser, that would cost for each affected Restaurant more than $300,000 or take longer than 120 days to fully repair in the case of an in-line Restaurant, or 180 days in the case of a free-standing Restaurant; and (ii) or an eminent domain or condemnation proceeding at two or more of the Restaurants, which would likely result in an award to Sellers for each Restaurant in an amount in excess of $300,000.

(d)           In the event Buyer elects under subsection (a)(ii), or is deemed to have elected under subsection (b), to proceed with the Closing, Sellers shall retain all insurance proceeds and condemnation awards received by Sellers prior to Closing, and all of its right, title and interest in and to any claims for future insurance proceeds or condemnation awards, which claims may, at Sellers’ election and sole cost, be pursued by Sellers after the Closing.  In addition, with respect to a fire or casualty which prevents a Restaurant from operating in the ordinary course of business, at the time of Closing an amount equal to the reasonably estimated cost of repair, replacement and re-opening the Restaurant for business (including, pre-opening costs, permitting and rehiring of employees) (the “Reopening Requirements”), plus the reasonably estimated Cash Flow Payments (defined below) to be made by Sellers to Buyer until such repair and replacement is completed (the “Casualty Holdback”) shall be withheld from the Closing Payment payable to Sellers and placed and held in escrow with Escrow Agent pursuant to joint escrow instructions consistent with this provision.  If a Restaurant can reasonably be repaired or reconstructed within twelve (12) months from Closing, Sellers shall undertake and complete the Reopening Requirements at its expense as soon as practicable.  Between the Closing Date and until the date such Restaurant satisfies the Reopening Requirements and is open for business, Buyer shall be entitled to receive a monthly payment from the Casualty Holdback equal to one-twelfth (1/12th) of such Restaurant’s pro forma store level EBITDA as set forth in Exhibit H (the “Cash Flow Payment”).  Upon satisfaction of the Reopening Requirements and opening of such Restaurant, the balance of funds escrowed in the Casualty Holdback with respect to such Restaurant shall be released to Sellers.  If a Restaurant is not repaired or reconstructed within twelve (12) months from Closing, then Buyer may elect to terminate this Agreement with respect to such Restaurant, in which event Sellers shall retain title thereto (without any rights from BWW), Sellers shall pay to Buyer a termination payment in the amount set forth opposite such Restaurant on Schedule 7.04 (which may include a release of funds by Escrow Agent to Buyer from the Casualty Holdback) and all remaining funds escrowed in the Casualty Holdback with respect to such Restaurant shall be released to Sellers (the “Termination Payment”).  As used herein, the term “EBITDA” means earnings before interest, taxes, depreciation and amortization.

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(e)           In the event of an eminent domain or condemnation proceeding which prevents a Restaurant from operating in the ordinary course of business, at Buyer’s election (a) Buyer may terminate this Agreement with respect to such Restaurant, as applicable, and the applicable Seller shall retain title thereto (without any rights from BWW) and the Termination Payment for such Restaurant, as applicable, shall be deducted from the Purchase Price; or (b) Buyer may proceed to close and assume the rights of the applicable Seller as tenant with regard to such Restaurant.

ARTICLE VIII

Indemnification

Section 8.01     Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is twelve (12) months from the Closing Date; provided, that the representations and warranties in Section 4.01, Section 4.02, Section 4.08, Section 4.20, Section 5.01, Section 5.02 and Section 5.04 shall survive indefinitely and the representations and warranties in Section 4.16, Section 4.17 and Section 4.19 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof). No party shall be subject to any indemnification or hold harmless obligations pursuant to this Article VIII unless a claim for Losses is made by the Indemnified Party in a detailed written notice to the Indemnifying Party setting forth the estimated amount of (if reasonably practicable) and the basis for the claim delivered to the Indemnifying Party within twelve (12) months following the Closing Date (the “Survival Period”); provided, that the Survival Period shall be extended for those representations and warranties set forth above in this Section 8.01 for the periods of survival set forth herein above corresponding to such representations and warranties; provided further, that the Survival Period for any claim for breach of a covenant required to be performed subsequent to the Effective Time shall be indefinite.  Notwithstanding the foregoing, any claims for indemnification or to be held harmless hereunder that are asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable Survival Period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

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Section 8.02     Indemnification By Sellers. Subject to the other terms and conditions of this Article VIII, Sellers and the Principal Stakeholder, jointly and severally, shall indemnify and defend each of Buyer, DRH and their Affiliates and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:

(a)           any inaccuracy in or breach of any of the representations or warranties of Sellers contained in this Agreement, the other Transaction Documents or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement;

(b)           any breach or non-fulfilment of any covenant, agreement or obligation to be performed by Sellers or their applicable Affiliates pursuant to this Agreement, the other Transaction Documents or any certificate or instrument delivered by or on behalf of Sellers or their applicable Affiliates pursuant to this Agreement or the other Transaction Documents;

(c)           any Excluded Asset or any Excluded Liability; or

(d)           any Third Party Claim based upon, resulting from or arising out of the business, operations or obligations of Sellers or any of their Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date.

Section 8.03     Indemnification By Buyer. Subject to the other terms and conditions of this Article VIII, Buyer and DRH, jointly and severally, shall indemnify and defend each of Sellers and their Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:

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(a)           any inaccuracy in or breach of any of the representations or warranties of Buyer or DRH contained in this Agreement, the other Transaction Documents or in any certificate or instrument delivered by or on behalf of Buyer or DRH pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

(b)           any breach or non-fulfilment of any covenant, agreement or obligation to be performed by Buyer, DRH or their applicable Affiliates pursuant to this Agreement, the other Transaction Documents or any certificate or instrument delivered by or on behalf of Buyer, DRH or their applicable Affiliates pursuant to this Agreement or the other Transaction Documents;

(c)           the operations of Buyer (or its applicable Affiliate) under Sellers’ Permits pursuant to the Management Agreement; or

(d)           any Assumed Liability.

Section 8.04     Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:

(a)           Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.17, Section 4.19 and Section 4.20 (the “Buyer Basket Exclusions”)), until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) (other than those based upon, arising out of, with respect to or by reason of the Buyer Basket Exclusions) exceeds $75,000, in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar.

(b)           Buyer and DRH shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.01, Section 5.02, and Section 5.04 (the “Seller Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the Seller Basket Exclusions) exceeds $75,000, in which event Buyer and DRH shall be required to pay or be liable for all such Losses from the first dollar.

(c)           Sellers’ maximum liability to the Buyer Indemnitees for indemnification under Section 8.02 shall not exceed $2,100,000.

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(d)           Buyer and DRH’s liability to the Seller Indemnitees for indemnification under Section 8.03 shall not exceed $2,100,000.

(e)           For purposes of this Article VIII, the amount of any Losses related to any inaccuracy in or breach of any representation or warranty shall be determined without regard to any standard of materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

Section 8.05     Indemnification Procedures. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”.

(a)           Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense.  In the event that the Indemnifying Party assumes the defense of any Third Party Claim, subject to Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the Indemnified Party.  If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Sellers and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.06) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim.

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(b)           Settlement of Third Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), except as provided in this Section 8.05(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within three days after its receipt of such notice, the Indemnified Party may elect to thereafter defend or, as applicable, may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

(c)           Direct Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including reasonable access to the Indemnified Party’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party shall be deemed to have rejected such claim.  In the event any Direct Claim is rejected or deemed to be rejected, or the parties are not otherwise able to settle such Direct Claim, each of the parties shall be free to pursue such rights and remedies available to them at law or in equity.

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(d)           Cooperation. Upon a reasonable request by the Indemnifying Party, each Indemnified Party seeking indemnification hereunder in respect of any Direct Claim, hereby agrees to consult with the Indemnifying Party and act reasonably to take actions not adverse to the Indemnified Party’s financial or business interests and otherwise reasonably requested by the Indemnifying Party in order to attempt to reduce the amount of Losses in respect of such Direct Claim. Any costs or expenses associated with taking such actions shall be included as Losses hereunder.

Section 8.06     Payments. Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VIII, the Indemnifying Party shall satisfy its obligations within twenty (20) Business Days of such agreement or final, non-appealable adjudication by wire transfer of immediately available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such twenty (20) Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to and including the date such payment has been made at a rate per annum equal to 30-day LIBOR plus 4.00%. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed, without compounding.

Section 8.07     Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

Section 8.08     Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 7.02 or Section 7.03, as the case may be.

Section 8.09     Exclusive Remedies. Subject to Section 6.07 and Section 10.11, the parties acknowledge and agree that their sole and exclusive remedy after the Closing with respect to any and all claims (other than claims arising from fraud, criminal activity or wilful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VIII. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law following the Closing, except pursuant to the indemnification provisions set forth in this Article VIII. Nothing in this Section 8.09 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any Person’s fraudulent, criminal or intentional misconduct.

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Section 8.10     Assignment of Claims.  If any Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to this Article VIII and such Indemnified Party could have recovered all or a part of such Losses from a third party (“Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, such Indemnified Party shall assign, on a non-recourse basis and without any representation or warranty, all of its rights to proceed against the Potential Contributor as are necessary or appropriate to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment.  Any payment received in respect of such claim shall be distributed, (i) first to Indemnifying Party in an amount equal to the aggregate payments made by such Indemnifying Party to the Indemnified Party in respect of such claim, plus costs and expenses incurred in investigating, defending or otherwise incurred in connection with addressing such claim or in pursuing a recovery from the Potential Contributor, and (ii) the balance, if any, to the Indemnified Party.

Section 8.11     Insurance and Tax Benefits.  Notwithstanding anything herein to the contrary, an Indemnifying Party shall have no liability under this Article VIII to any Indemnified Party with respect to any claim to the extent Indemnified Party (i) receives any insurance proceeds relating to such claim, (ii) receives payment or indemnification from any third party respecting the matter covered by such claim, or (iii) receives any Tax benefit in respect of the subject matter of such claim.

Section 8.12     Recovery from Escrow.  Notwithstanding anything to the contrary contained in this Agreement, Buyer Indemnitees shall recover any Losses pursuant to this Article VIII first from the Escrow Fund, and second, to the extent the Escrow Fund is insufficient, from Sellers (subject to the other limitations set forth in this Article VIII).

ARTICLE IX

Termination

Section 9.01     Termination. This Agreement may be terminated at any time prior to the Closing:

(a)        by the mutual written consent of Sellers, Buyer and DRH;

(b)        by Buyer and DRH by written notice to Sellers if:

(i)           Buyer and DRH are not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Sellers pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure has not been cured by Sellers within thirty (30) days of Sellers’ receipt of written notice of such breach from Buyer; or

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(ii)          any of the conditions set forth in Section 7.02 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by October 31, 2012 (the “Termination Date”), unless such failure of any such condition shall be due to the failure of Buyer or DRH to perform or comply with any material covenant, agreement or other obligations of Buyer or DRH in this Agreement to be performed or complied with by it prior to the Closing;

(c)        by Sellers by written notice to Buyer and DRH if:

(i)           Sellers are not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer or DRH pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure has not been cured by Buyer within thirty (30) days of Buyer’s receipt of written notice of such breach from Sellers; or

(ii)           any of the conditions set forth in Section 7.03 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by the Termination Date, unless such failure of any such conditions shall be due to the failure of Sellers to perform or comply with any material covenant, agreement or other obligations of Sellers in this Agreement to be performed or complied with by Sellers prior to the Closing; or

(d)        by Buyer and DRH, on the one hand, or Sellers on the other hand, by written notice to the other party if:

(i)           there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited and remains in effect through the Termination Date; or

(ii)          any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable or shall remain in effect through the Termination Date.

(e)        this Agreement shall terminate automatically upon BWW’s notice to Sellers of its election to exercise its right of first refusal to acquire the Restaurants in accordance with the terms of the Franchise Agreements.  In connection with the foregoing, Sellers shall promptly inform Buyer in writing upon receipt of any notice or communication (whether written or otherwise) from BWW to Sellers indicating BWW’s intention to exercise its right of first refusal to acquire the Restaurants.

Section 9.02     Effect of Termination. In the event of the termination of this Agreement in accordance with this Article IX, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

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(a)           Sellers shall pay $700,000 to Buyer as liquidated damages in the event of (i) termination of this Agreement pursuant to Section 9.01(e) by reason of the fact BWW shall have exercised its right of first refusal pursuant to the Franchise Agreements to acquire the Business and the Purchased Assets.  Sellers shall make such payment to Buyer upon the earlier to occur of (i) the closing of the transaction(s) occasioned by exercise of the right of first refusal; or (ii) by December 30, 2012; and

(b)           The provisions of Section 6.06 and Article X which are by their express terms to survive termination of this Agreement, and this Article X, shall survive termination of this Agreement (the “Surviving Obligations”).

Each of the parties acknowledges and agrees that liquidated damages due under this Agreement shall be in lieu of proving actual damages, as the actual damages from any breach or other event resulting in the payment of liquidated damages under this Agreement would be difficult to ascertain.  Further, each of the parties acknowledge and agree that the amount of the liquidated damages provided for herein represents their good faith estimate of the actual damages resulting from any such breach or event.

ARTICLE X

Miscellaneous

Section 10.01     Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.

Section 10.02     Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 10.02):

If to Sellers: Krygier Entities 2342 Cline Avenue Schererville, IN 46375 Facsimile:                (219) 864-4050 E-mail:                      bw3ak@yahoo.com Attention:                Alan D. Krygier  

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with a copy to:	Tauber Law Offices 1415 Eagle Ridge Drive Schererville, IN 46375 Facsimile:                      (219) 865-6669 E-mail:  rtauber@tauberlaw.com Attention:                     Rhett L. Tauber
If to Buyer or DRH:	AMC Wing, Inc. Diversified Restaurant Holdings, Inc. 27680 Franklin Road Southfield, Michigan 48034 Facsimile:                      (248) 223-9165 E-mail: ansley@baggerdaves.com Attention:  T. Michael Ansley, President
with a copy to:	Dickinson Wright, PLLC 2600 W. Big Beaver Road, Suite 300 Troy, MI 48084-3312 Facsimile:                      (248) 433-7274 E-mail: mraymond@dickinsonwright.com Attention:                      Michael T. Raymond

Section 10.03     Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

Section 10.04     Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 10.05     Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as provided in Section 6.07(d), upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

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Section 10.06     Entire Agreement. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

Section 10.07     Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign its rights or obligations hereunder without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed; provided, however, that prior to the Closing Date, Buyer may, without the prior written consent of Sellers, assign all or any portion of its rights under this Agreement to one or more of its direct or indirect wholly-owned subsidiaries. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 10.08     No Third-party Beneficiaries. Except as provided in Section 6.05 (Employees and Employer Benefits) and Article VIII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 10.09     Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.  The failure of any party at any time to require performance of any provisions hereof shall, in no manner, affect the right at a later date to enforce the same.  No waiver by any party of any condition, or breach of any provision, term, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.

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Section 10.10     Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

(a)           This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Michigan.

(b)           ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF MICHIGAN IN EACH CASE LOCATED IN THE COUNTY OF OAKLAND, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)           EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c).

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Section 10.11     Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Section 10.12     Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

“SELLERS”

Crown Wings, Inc., an Indiana corporation		Brewsters, Inc., an Indiana corporation
By	/s/ Alan D. Krygier	By	/s/ Alan D. Krygier
Name:	Alan D. Krygier	Name:	Alan D. Krygier
Title:	President	Title:	President

Homewood Wings, Inc., an Illinois corporation		Valpo Wings, Inc., an Indiana corporation
By	/s/ Alan D. Krygier	By	/s/ Alan D. Krygier
Name:	Alan D. Krygier	Name:	Alan D. Krygier
Title:	President	Title:	President

Cal City Wings, Inc., an Illinois corporation		Lansing Wings, Inc., an Illinois corporation
By	/s/ Alan D. Krygier	By	/s/ Alan D. Krygier
Name:	Alan D. Krygier	Name:	Alan D. Krygier
Title:	President	Title:	President

Lincoln Park Wings, Inc., an Illinois corporation		Buffaloville Wings, Inc., an Indiana corporation
By	/s/ Alan D. Krygier	By	/s/ Alan D. Krygier
Name:	Alan D. Krygier	Name:	Alan D. Krygier
Title:	President	Title:	President

Hammond Wings, Inc., an Indiana corporation
By	/s/ Alan D. Krygier
Name:	Alan D. Krygier
Title:	President

"PRINCIPAL STAKEHOLDER"
By	/s/ Alan D. Krygier
Name:	Alan D. Krygier

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“BUYER”		“DRH”
AMC Wings, Inc.		Diversified Restaurant Holdings, Inc.
By	/s/ T. Michael Ansley	By	/s/ T. Michael Ansley
Name:	T. Michael Ansley	Name:	T. Michael Ansley
Title:	President	Title:	President

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EX-10.1

Exhibit 10.1

CREDIT AGREEMENT

by and among

FLYER ENTERPRISES, INC. ANKER, INC. TMA ENTERPRISES OF NOVI, INC. AMC GRAND BLANC, INC. AMC PETOSKEY, INC. AMC TROY, INC. AMC FLINT, INC. AMC PORT HURON, INC. AMC CHESTERFIELD, INC. AMC MARQUETTE, INC. MCA ENTERPRISES BRANDON, INC. AMC NORTH PORT, INC. AMC RIVERVIEW, INC. BERKLEY BURGERS, INC. TROY BURGERS, INC. ANN ARBOR BURGERS, INC. AMC TRAVERSE CITY, INC. BRIGHTON BURGERS, INC. CASCADE BURGERS REAL ESTATE, INC. CASCADE BURGERS, INC. EAST LANSING BURGERS, INC. BEARCAT ENTERPRISES, INC. SHELBY TOWNSHIP BURGERS, INC. AMC DETROIT, INC. BLOOMFIELD BURGERS, INC. HOLLAND BURGERS, INC. GRANDVILLE BURGERS, INC. AMC SARASOTA, INC. AMC FT. MYERS, INC. AMC LARGO, INC. AMC CALUMET CITY, INC. AMC HOMEWOOD, INC. AMC LANSING, INC. AMC LINCOLN PARK, INC. TMA ENTERPRISES OF FERNDALE, LLC ANSLEY GROUP, L.L.C. AMC WARREN, LLC BUCKEYE GROUP, LLC BUCKEYE GROUP II, LLC AMC CROWN POINT, INC. AMC HOBART, INC. AMC SCHERERVILLE, INC. AMC VALPARAISO, INC. CHESTERFIELD TOWNSHIP BURGERS, INC. DETROIT BURGERS, INC. GRAND RAPIDS BURGERS, INC. AMC SAULT STE. MARIE, INC. AMC LAPEER, INC. INDY/MICHIGAN ROAD INC. AVON BURGERS, INC. WESTFIELD BURGERS, INC. AMC YBOR, INC. AMC LAKELAND, INC.    

and

RBS CITIZENS, NATIONAL ASSOCIATION

September 25, 2012

TABLE OF CONTENTS

SECTION 1.	Definitions.	1
SECTION 2.	$37,000,000 Term Loan Facility (the “Term Loan”).	1
2.1	Term Loan	1
2.2	Purpose of the Term Loan	1
2.3	Funding of the Term Loan	2
2.4	Payments	2
SECTION 3.	$10,000,000 Development Line of Credit Loan (“Development Line of Credit Loan”).	2
3.1	Development Line of Credit Loan	2
3.2	Purpose of the Development Line of Credit Loan	3
3.3	Funding of Advances under the Development Line of Credit Loan	3
3.4	Development Line of Credit Note	4
3.5	Repayment of Principal on the Development Line of Credit Loan	4
3.6	Commitment Fee	5
SECTION 4.	$1,000,000 Revolving Line of Credit Loan (“Revolving Line of Credit  Loan”)	5
4.1	Revolving Line of Credit Loan	5
4.2	Purpose of the Revolving Line of Credit Loan	5
4.3	Fundings of Advances Under the Revolving Line of Credit Loan	5
4.4	Revolving Line of Credit Note and Payments	6
4.5	Revolver Commitment Fee	6
SECTION 5.	Interest Rate Provisions.	6
5.1	Interest Rate Applicable to the Term Loan and the Revolving Line of Credit Loan.	6
5.2	Development Line of Credit Interest Rate	7
5.3	Hedging Contracts	8
5.4	Excessive Interest	8
5.5	Unavailability of LIBOR Rate	9
5.6	LIBOR Rate Lending Unlawful	9
SECTION 6.	Payments.	9
6.1	Method of Payment	9
6.2	Additional Costs	10
6.3	Voluntary Prepayments	12
6.4	LIBOR Breakage Fee	12
6.5	Application of Prepayments	13
6.6	Mandatory Prepayments	13
6.7	Up-Front Fee	13
SECTION 7.	Conditions Precedent to Effectiveness of Agreement.	13
7.1	Conditions Precedent to Line Advances and Revolver Advances	15
7.2	Requisition Procedures/Line Advances.	17

SECTION 8.	Borrowers’ Representations and Warranties	18
8.1	Existence and Rights	18
8.2	Agreement and Notes Authorized	19
8.3	No Conflict	19
8.4	Litigation	20
8.5	Financial Condition	20
8.6	Title to Assets	20
8.7	Tax Status	20
8.8	Compliance with Law	20
8.9	Other Regulations	21
8.10	Security Interest	21
8.11	Collateral	21
8.12	Other Obligations	21
8.13	Insurance	21
8.14	ERISA	21
8.15	Environmental Matters	22
SECTION 9.	Borrowers’ Affirmative Covenants	22
9.1	Legal Existence, Franchisee Standing, Etc	22
9.2	Insurance	22
9.3	Use of Collateral; Taxes and Other Liabilities	23
9.4	Records and Reports	23
9.5	Inspection	24
9.6	Use of Loan Proceeds	25
9.7	Notice of Certain Events	25
9.8	Compliance with Laws	25
9.9	Compliance with Franchise Documents	25
9.10	Locations of Collateral	25
9.11	Further Assurances	26
9.12	Deposit Account	26
9.13	Annual Clean-up Requirement for Revolving Line of Credit Loan	26
SECTION 10.	Borrower’s Negative Covenants	26
10.1	Additional Indebtedness	26
10.2	Liens and Encumbrances	26
10.3	Merger or Consolidation	27
10.4	Change in Control	27
10.5	Debt Service Coverage Ratio	27
10.6	Lease Adjusted Leverage Ratio (tested on a quarterly basis)	27
10.7	Loans and Investments	28
10.8	Restaurant Closures	28
10.9	Distributions	28
10.10	Lien Amounts	28

SECTION 11.	Security Interest	28
11.1	Creation of Security Interest	28
11.2	Rights in Collateral	28
SECTION 12.	Events of Default	28
12.1	Failure to Pay Obligations	29
12.2	Failure to Maintain Legal Existence, Franchisee Standing, Etc	29
12.3	Failure to Comply with Franchise Documents	29
12.4	Breach of Certain Covenants	29
12.5	Breach of Covenant	29
12.6	Breach of Representation or Warranty/Fraud	29
12.7	Default Under Other Agreements	29
12.8	Bankruptcy, Etc	30
12.9	Litigation; Judgments or Attachments	30
12.10	Termination of Franchise	30
12.11	Dissolution; Death	30
12.12	Material Adverse Change; Lien Priority; Governmental Action	30
12.13	Insurance or Condemnation Proceeds	31
SECTION 13.	Lender's Rights and Remedies	31
13.1	Pre- and Post-Default	31
13.2	Post-Default	31
SECTION 14.	Miscellaneous	31
14.1	Survival of Warranties	31
14.2	Expenses	31
14.3	Final Agreement; Amendments; Waivers	32
14.4	Severability	33
14.5	Applicable Law	33
14.6	Successors and Assigns; Assignability	33
14.7	Counterparts	33
14.8	Section Headings	34
14.9	Waivers	34
14.10	Authorization To Conduct Due Diligence With Third Parties	34
14.11	Agency	34
14.12	Notice	34
14.13	Indemnity	36
14.14	Jury Waiver	36
14.15	Lien and Setoff	37

Appendix I	40
Wiring Instructions	52
Endorsement of Insurance Policy	53
Exhibit 2.1	54
Exhibit 2.4	58
Exhibit 3.1	59
Exhibit 3.3	63
Exhibit 4.1	67

Exhibit 4.3	71
Exhibit 6.1	75
Exhibit 7.1(vi)	76
Exhibit 9.4	79
Definitions	80
Calculations	80
Maximum Lease Adjusted Leverage Ratio	81
Exhibit 10.1	82
Schedule A	83

THIS CREDIT AGREEMENT is entered into as of September 25, 2012 by and among FLYER ENTERPRISES, INC., ANKER, INC., TMA ENTERPRISES OF NOVI, INC., AMC GRAND BLANC, INC., AMC PETOSKEY, INC., AMC TROY, INC., AMC FLINT, INC., AMC PORT HURON, INC., AMC CHESTERFIELD, INC., AMC MARQUETTE, INC., MCA ENTERPRISES BRANDON, INC., AMC NORTH PORT, INC., AMC RIVERVIEW, INC., BERKLEY BURGERS, INC., TROY BURGERS, INC., ANN ARBOR BURGERS, INC., AMC TRAVERSE CITY, INC., BRIGHTON BURGERS, INC., CASCADE BURGERS REAL ESTATE, INC., CASCADE BURGERS, INC., EAST LANSING BURGERS, INC., BEARCAT ENTERPRISES, INC., SHELBY TOWNSHIP BURGERS, INC., AMC DETROIT, INC., BLOOMFIELD BURGERS, INC., HOLLAND BURGERS, INC., GRANDVILLE BURGERS, INC., AMC LAKELAND, INC., AMC SARASOTA, INC., AMC FT. MYERS, INC., AMC LARGO, INC., AMC CALUMET CITY, INC., AMC HOMEWOOD, INC., AMC LANSING, INC., AMC LINCOLN PARK, INC., TMA ENTERPRISES OF FERNDALE, LLC, ANSLEY GROUP, L.L.C., AMC WARREN, LLC, BUCKEYE GROUP, LLC, BUCKEYE GROUP II, LLC, AMC CROWN POINT, INC., AMC HOBART, INC., AMC SCHERERVILLE, INC., AMC VALPARAISO, INC., CHESTERFIELD TOWNSHIP BURGERS, INC., DETROIT BURGERS, INC., GRAND RAPIDS BURGERS, INC., AMC SAULT STE. MARIE, INC., AMC LAPEER, INC., INDY/MICHIGAN ROAD INC., AVON BURGERS, INC., WESTFIELD BURGERS, INC., AMC YBOR, INC. having a mailing address at 27680 Franklin Road Southfield, MI 48034 (each, a “Borrower” and collectively, the “Borrowers”), and RBS Citizens, National Association, with offices at 28 State Street, Boston, Massachusetts 02109 (the "Lender").  In consideration of the mutual covenants and agreements contained herein, the Borrowers and the Lender agree as follows with regard to the loans described herein (together the “Loans”):

SECTION 1.          Definitions.

The terms used in this Agreement are defined in Appendix I hereto.

SECTION 2.          $37,000,000 Term Loan Facility (the “Term Loan”).

2.1           Term Loan.  Subject to the terms and conditions of this Agreement and any other conditions which the Lender may have specified in writing to the Borrowers, the Lender agrees to make a loan to the Borrowers in the principal amount of up to $37,000,000.00 (the “Term Loan”).  The Term Loan shall be evidenced by a promissory note substantially in the form of Exhibit 2.1 attached hereto (as the same may be amended or replaced, the “Term Note”).

2.2           Purpose of the Term Loan.  The proceeds of the Term Loan shall be used to (i) refinance existing outstanding debt of the Borrowers with the Lender (in the approximate amount of $15,200,000), (ii) refinance and term out the outstanding balance of the existing development line of credit loan between the Borrowers and the Lender (in the approximate amount of $3,300,000), (iii) fund the acquisition by AMC Wings, Inc. of 100% of the membership interests in Ansley Group, L.L.C., the owner of the Clinton Township Property (in the approximate amount of $2,500,000), (iv) fund the acquisition by the Acquisition Entities from the Krygier Entities of the assets of eight (8) Buffalo Wild Wings Restaurants located at the Acquisition Locations pursuant to the terms of the Krygier APA (in the approximate amount of $14,700,000), and (v) pay the fees, costs and expenses associated with the acquisition of the assets listed in (iii) and (iv) above and in connection with the closing of the Loans.

1

2.3           Funding of the Term Loan.  On the Funding Date, subject to the terms and conditions of this Agreement, the proceeds of the Term Loan shall be disbursed by the Lender (or its counsel) to (i) the Lender to refinance the existing outstanding obligations of the Borrowers to the Lender under a term loan and development line of credit; (ii) T. Michael Ansley and James D. Ansley as the sellers of 100% of the membership interests in the Ansley Group, L.L.C., a Michigan limited liability company (being acquired by AMC Wings, Inc.), the owner of the Clinton Township Property in accordance with the Membership Purchase Agreement and in accordance with a settlement statement in form and substance satisfactory to the Lender; and (iii) to the Krygier Entities in connection with the purchase of the assets of 9 Buffalo Wild Wings Restaurants in accordance with the terms of the Krygier APA, and in accordance with a settlement statement satisfactory to the Lender.  Unless otherwise prohibited by this Agreement, the Term Loan shall initially be classified as a LIBOR Rate Loan.

2.4           Payments.  The Borrowers shall pay interest on the aggregate unpaid principal amount of the Term Loan in accordance with the terms of this Agreement and the Term Note.  Payments of principal shall be based upon an 84-month straight-line amortization schedule, provided that the final installment shall be in the amount of all principal and interest outstanding under the Term Loan, and that the final installment, if not earlier due hereunder, shall be payable on the Term Loan Maturity Date.  Principal shall be repaid in the amounts and at the times set forth in Term Loan repayment schedule set forth in Exhibit 2.4 attached hereto.

SECTION 3.          $10,000,000 Development Line of Credit Loan (“Development Line of Credit Loan”).

3.1           Development Line of Credit Loan.  Lender agrees, on the terms and conditions hereinafter set forth, to make advances (“Line Advances”) to the Borrowers from time to time during the period from the date hereof to and including September 25, 2014 (the “Development Line Termination Date”) in an aggregate amount not to exceed at any time outstanding $10,000,000.00 (the “Development Line of Credit Loan”).  Each Line Advance under this Section 3.1 shall be in an amount of not less than $10,000.00.  Borrowers may not borrow, repay and reborrow under this Section 3.1.  No Line Advance will be made at any time after the Development Line Termination Date, or at any time that an Event of Default has occurred and is continuing hereunder, or an event has occurred which, with the passage of time or the giving of notice, or both, would constitute an Event of Default. The Development Line of Credit Loan shall be evidenced by a promissory note substantially in the form of Exhibit 3.1 attached hereto (as the same may be amended or replaced, the “Development Line of Credit Note”).

2

3.2           Purpose of the Development Line of Credit Loan.  Subject to the terms and conditions contained herein, the proceeds of the Development Line of Credit Loan shall be used to (i) finance up to 80% of the cost of leasehold improvements and equipment associated with the development of new Buffalo Wild Wings Restaurants (each a “BWW Development Advance”), (ii) finance up to 70% of the cost of leasehold improvements and equipment associated with new Bagger Dave’s Legendary Burger Tavern Restaurants (each a “BD Development Advance”) (provided however that under no circumstances shall the aggregate amount of all BD Development Advances exceed 50% of the entire amounts available under the Development Line of Credit Loan (or $5,000,000)), (iii) finance up to 80% of the lesser of (a) the appraised value of (as determined by the Lender), or (b) the actual cost or the acquisition of, fee real estate acquired by the Borrowers or an Affiliate of the Borrowers approved by the Lender on which the Borrowers or Affiliate of the Borrowers will operate a Buffalo Wild Wings Restaurant or a Bagger Dave’s Legendary Burger Tavern Restaurant (each a “Real Estate Advance”), (iv) pay the fees, costs and expenses associated with the transactions listed in (i), (ii), and (iii) above and in connection with the closing of the Loans.  All Line Advances shall be conditioned on the satisfaction of the Incurrence Test defined in Section 7.1 (viii) herein.

3.3           Funding of Advances under the Development Line of Credit Loan.  Subject to the terms and conditions contained herein, any Borrower may, from time to time, irrevocably request a Line Advance by delivering to the Lender a borrowing request substantially in the form of Exhibit 3.3 on or before 10:00 a.m., Boston time, on a Business Day.  Each Line Advance shall initially be treated as a LIBOR Advantage Loan. Subject to the satisfaction of all of the conditions contained in this Agreement to the making a Line Advance, and provided the borrowing request is delivered on not less than two nor more than five Business Days notice, the Lender will make a Line Advance as a LIBOR Advantage Loan which will be made in a minimum amount of $10,000.00 and in integral multiples of $10,000.00, provided that after giving effect to such Line Advance the aggregate amount of all Line Advances shall not exceed $10,000,000.00, and provided further that the aggregate of all BD Development Advances shall not at any time exceed $5,000,000.  On the terms and subject to the conditions of this Agreement, the proceeds of each Line Advance shall either be paid to a third party for rebuilding, remodeling and related costs approved by the Lender or be made available to the Borrowers by deposit to the Account of the Borrowers as shall have been specified in the borrowing request no later than 11:00 a.m. Boston time on the second Business Day following receipt of a proper request.  Conditions to making Line Advances are contained in Sections 7.1 and 7.2 hereof.

3

3.4           Development Line of Credit Note.  Until converted to a Term Out Note (as defined in Section 3.5), the Borrowers shall pay interest on the aggregate unpaid principal amount of all Line Advances made by Lender in accordance with the terms of this Agreement and with the Development Line of Credit Note evidencing the indebtedness resulting from such Line Advances.

3.5           Repayment of Principal on the Development Line of Credit Loan.  On the date which is the earlier of (i) the Development Line Termination Date, or (ii) the date on which the Development Line of Credit Loan has been fully advanced (the “Conversion Date”), the Borrowers will execute three new promissory notes in favor of the Lender, in form and substance satisfactory to the Lender, representing the aggregate unpaid principal balance of all Line Advances made under the Development Line of Credit Loan as of such date: (i) a term note in an original principal amount equal to the aggregate unpaid principal balances of all Line Advances used to finance or refinance (or is otherwise based on) equipment costs or improvements on sites leased by any Borrower (or New Affiliate) with respect to Space Leases, which shall be payable as to principal based on an eighty-four (84) month amortization schedule, (ii) a term note in an original principal amount equal to the aggregate unpaid principal balance of all Line Advances used to finance or refinance (or is otherwise based on) equipment costs or improvements on sites leased by any Borrower (or New Affiliate) with respect to Ground Leases, which shall be payable as to principal based on a one hundred and forty-four (144) month amortization schedule, and, (iii) a term note in an original principal amount equal to the aggregate unpaid principal balances of all Line Advances used to finance (or is otherwise based on) the acquisition and development costs of fee simple real estate by any of the Borrowers (or New Affiliate), which shall be payable as to principal based on a one hundred and eighty (180) month amortization schedule.  Together these notes shall be known as the “Term Out Notes”.  Each of the Term Out Notes shall mature contemporaneously on the Term Loan Maturity Date.  All unpaid balances and accrued interest outstanding on the Term Loan Maturity Date shall be due and payable on the Term Loan Maturity Date.  Unless otherwise prohibited by this Agreement, each of the Term Out Notes shall initially be classified as a LIBOR Rate Loan.  The Term Out Notes will not be issued if on the Conversion Date, there exists an Event of Default, or an event has occurred which, with the passage of time or the giving of notice, or both, would constitute an Event of Default, in which case the aggregate unpaid principal balance of all Line Advances made under the Development Line of Credit Loan and all accrued interest thereon shall be due and payable on the Development Line Termination Date (unless earlier accelerated).

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3.6           Commitment Fee. Accruing from the date hereof until the Development Line Termination Date, Borrowers agree to pay to the Lender, as consideration for the Lender’s commitment to make Line Advances hereunder, a nonrefundable commitment fee (the "Commitment Fee") equal to 0.25% per annum (computed on the basis of a year of 360 days and actual days elapsed) on the average daily difference between the amount of: (a) $10,000,000.00, and (b) all Line Advances outstanding for the quarterly period then ended. All Commitment Fees shall be payable quarterly in arrears on the first day of each October, January, April, and July after the date hereof and on the Development Line Termination Date or upon acceleration of the Development Line of Credit Note, if earlier.  The Commitment Fee shall be prorated for the period from the Closing Date to October 1, 2012.

SECTION 4.          $1,000,000 Revolving Line of Credit Loan (“Revolving Line of Credit  Loan”)

4.1           Revolving Line of Credit Loan.  Lender agrees on the terms and conditions hereinafter set forth, to made advances (“Revolver Advances”) to the Borrowers from time to time during the period from the date hereof to and including September 25, 2014 (the “Revolving Line Termination Date”) provided that after giving effect to such Revolver Advances the aggregate amount of Revolver Advances shall not exceed $1,000,000.00.  Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this Section 4.1.  Each Revolver Advance under this Section 4.1 shall be in an amount of not less than $10,000.00.  No Revolver Advance will be made at any time after the Revolving Line Termination Date, or at any time that an Event of Default has occurred and is continuing hereunder, or an event has occurred which, with the passage of time or the giving of notice, or both, would constitute an Event of Default.  The Revolving Line of Credit Loan shall be evidenced by a promissory note substantially in the form of Exhibit 4.1 attached hereto (as the same may be amended or replaced, the “Revolving Line of Credit Note”).

4.2           Purpose of the Revolving Line of Credit Loan.  Subject to the terms and conditions contained herein, the proceeds of the Revolving Line of Credit Loan shall be used for working capital and general corporate purposes of the Borrowers.

4.3           Fundings of Advances Under the Revolving Line of Credit Loan.  Subject to the terms and conditions contained herein, any Borrower may, from time to time, irrevocably request a Revolver Advance by delivering to the Lender a borrowing request substantially in the form of Exhibit 4.3 on or before 10:00 a.m., Boston time, on a Business Day.  Unless otherwise prohibited by this Agreement, each Revolver Advance shall initially be classified as a LIBOR Rate Loan.  Subject to the satisfaction of all of the conditions contained in this Agreement to the making a Revolver Advance, and provided the borrowing request is delivered on not less than two nor more than five Business Days notice, the Lender will make a Revolver Advance as a LIBOR Rate Loan which will be made in a minimum amount of $10,000.00 and in integral multiples of $10,000.00, provided that after giving effect to such Revolver Advance the aggregate amount of all Revolver Advances shall not exceed $1,000,000.00.  On the terms and subject to the conditions of this Agreement, the proceeds of each Revolver Advance shall be made available to the Borrowers by deposit to the Account of the Borrowers as shall have been specified in the borrowing request no later than 11:00 a.m. Boston time on the second Business Day following receipt of a proper request.  Conditions to making Revolver Advances are contained in Sections 7.1 and 7.2 hereof.

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4.4           Revolving Line of Credit Note and Payments

.  The Borrowers shall pay interest on the aggregate unpaid principal amount of all Revolver Advances made by the Lender in accordance with the terms of this Agreement and the Revolving Line of Credit Note evidencing the indebtedness resulting from such Revolver Advances.  The outstanding principal amount of all Revolver Advances and all accrued interest shall be due and payable in full on the Revolving Line Termination Date.

4.5           Revolver Commitment Fee.  Accruing from the date hereof until the Revolving Line Termination Date, Borrowers agree to pay to the Lender, as consideration for the Lender’s commitment to make Revolver Advances hereunder, a nonrefundable commitment fee (the “Revolver Commitment Fee”) equal to 0.25% per annum (computed on the basis of a year of 360 days and actual days elapsed) on the average daily difference between the amount of: (a) $1,000,000, and (b) all Revolver Advances outstanding for the quarterly period then ended.  All Revolver Commitment Fees shall be payable quarterly in arrears on the first day of each October, January, April, and July after the date hereof and on the Revolving Line Termination Date or upon acceleration of the Revolving Line of Credit Note, if earlier.  The Revolver Commitment Fee shall be prorated for the period from the Closing Date to October 1, 2012.

SECTION 5.          Interest Rate Provisions.

5.1           Interest Rate Applicable to the Term Loan and the Revolving Line of Credit Loan.

(a)           Interest Rate Applicable to Term Loan, the Term Out Notes and the Revolving Line of Credit Loan (together, the “Term/Revolver Loans”).  Interest on the outstanding principal amount of each of the Term/Revolver Loans, when classified as a: (i) LIBOR Rate Loan, shall accrue during each LIBOR Interest Period at a rate per annum equal to the sum of the Adjusted LIBOR Rate for such LIBOR Interest Period plus the LIBOR Rate Margin and shall be due and payable on each Interest Payment Date and on the applicable Term Loan Maturity Date and Revolving Line Termination Date; and (ii) Prime Rate Loan, shall accrue at a rate per annum equal to the sum of the Prime Rate plus the Prime Rate Margin, and shall be due and payable on each Interest Payment Date and on the applicable Term Loan Maturity Date and Revolving Line Termination Date.  Interest shall be calculated for the actual number of days elapsed on the basis of a 360-day year, including the first date of the applicable period to, but not including, the date of repayment.

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(b)           Automatic Rollover of LIBOR Rate Loan.  Upon the expiration of a LIBOR Interest Period with respect to any Term Loan or Revolving Line of Credit Loan, each shall automatically be continued as a LIBOR Rate Loan at the then applicable Adjusted LIBOR Rate and in an amount equal to the principal amount of the expiring LIBOR Rate Loan less any Principal Repayment Amount made by the Borrowers; provided, however, that no portion of the outstanding principal amount of a LIBOR Rate Loan may be continued as a LIBOR Rate Loan when any Event of Default has occurred and is continuing.  If any Event of Default has occurred and is continuing (if the Lender does not otherwise elect to exercise any right to accelerate such Term/Revolver Loan hereunder), such Loan shall automatically be continued as a Prime Rate Loan on the first day of the next Interest Period.

(c)           The Prime Rate shall only be used in connection with the Term/Revolver Loans if an Event of Default has occurred and is continuing or if the LIBOR Rate is unavailable or unlawful pursuant to provisions of Section 5.5 and 5.6 hereof.

5.2           Development Line of Credit Interest Rate.  The outstanding principal amount of the Development Line of Credit Loan (until converted to a Term Out Note) through the Development Line Termination Date shall accrue interest at the LIBOR Advantage Rate plus the applicable LA Margin.  For each of the Term Out Notes, from the respective Conversion Date until paid in full, the outstanding principal balance of each Term Out Note shall be treated as a LIBOR Rate Loan and shall accrue interest at the Adjusted LIBOR Rate plus the applicable LIBOR Rate Margin.  The outstanding balance of the Development Line of Credit Loan (except to the extent converted to a Term Out Note) shall be payable as to interest only from the date of this Agreement until the Line Termination Date, unless accelerated sooner pursuant to the terms of this Agreement.

The outstanding principal amount of the Development Line of Credit Loan (until converted to a Term Out Note), when classified as a:

(i)           LIBOR Advantage Loan, shall bear interest during the LA Interest Period at a rate per annum equal to the sum of the LIBOR Advantage Rate for such LA Interest Period plus the LA Margin, and be due and payable on each LA Interest Payment Date and on the Development Line Termination Date, with interest calculated for the actual number of days elapsed on the basis of a 360-day year, including the first date of the applicable period to, but not including, the date of repayment; and

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(ii)           LIBOR Rate Loan, shall bear interest during each LIBOR Interest Period at a rate per annum equal to the sum of the Adjusted LIBOR Rate for such LIBOR Interest Period plus the LIBOR Rate Margin, and be due and payable on each LIBOR Interest Payment Date and on the applicable Development Line Termination Date, with interest calculated for the actual number of days elapsed on the basis of a 360-day year, including the first date of the applicable period to, but not including, the date of repayment; and

(iii)           Upon the expiration of a LIBOR Interest Period with respect to any LIBOR Rate Loan, each shall automatically be continued as a LIBOR Rate Loan at the then applicable Adjusted LIBOR Rate and in an amount equal to the principal amount of the expiring LIBOR Rate Loan less any Principal Repayment Amount made by Borrowers; provided, however, that no portion of the outstanding principal amount of a LIBOR Rate Loan may be continued as a LIBOR Rate Loan when any Event of Default has occurred and is continuing.  If any Event of Default has occurred and is continuing (if the Lender does not otherwise elect to exercise any right to accelerate the Development Line of Credit Loan hereunder), such Loan shall automatically be continued as a Prime Rate Loan on the first day of the next Interest Period; and

(iv)           Prime Rate Loan, shall bear interest at a rate per annum equal to the sum of the Prime Rate plus the Prime Rate Margin, and be due and payable on each Interest Payment Date and on the applicable Development Line Termination Date, with interest calculated for the actual number of days elapsed on the basis of a 360-day year, including the first date of the applicable period to, but not including, the date of repayment; and

(v)           The Prime Rate shall only be used in connection with the Development Line of Credit Loan if an Event of Default has occurred and is continuing or if the LIBOR Rate is unavailable or unlawful pursuant to provisions of Section 5.5 and 5.6 hereof.

5.3           Hedging Contracts.  Within one (1) month of the date hereof, the Borrowers shall enter into Hedging Contracts in form and substance satisfactory to Lender with respect to at least one half of the aggregate maximum principal amount of proceeds advanced and available to be advanced to the Borrowers under the Term Loan.

5.4           Excessive Interest.  Notwithstanding anything to the contrary contained herein or in any of the Notes, or any other agreement between any Borrowers and the Lender, if, at any time, the rate of interest, together with all amounts which constitute interest and which are reserved, charged or taken by the Lender as compensation for fees, services or expenses incidental to the making, negotiating or collection of the Loans evidenced hereby, shall be deemed by any competent court of law, governmental agency or tribunal to exceed the maximum rate of interest permitted to be charged by the Lender to the Borrowers under applicable law, or shall subject the Lender to penalty or give rise to avoidance of amounts due under any Note, then, during such time as such rate of interest would be deemed excessive, that portion of each sum paid attributable to that portion of such interest rate that exceeds the maximum rate of interest so permitted shall be deemed a voluntary prepayment of principal without charge to the Borrowers.  As used herein, the term "applicable law" shall mean the law in effect as of the date of this Agreement, provided however that in the event there is a change in the applicable law which results in a higher permissible rate of interest, then this Agreement shall be governed by such new law as of its effective date.

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5.5           Unavailability of LIBOR Rate.  In the event that Borrowers shall have requested a LIBOR Rate Loan pursuant to the terms of this Agreement and Lender, in its sole discretion, shall have determined that U.S. dollar deposits in the relevant amount and for the relevant LIBOR Interest Period are not available to the Lender in the London interbank market; or by reason of circumstances affecting the Lender in the London interbank market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate applicable to the relevant LIBOR Interest Period; or the LIBOR Rate no longer adequately and fairly reflects the Lender’s cost of funding loans; upon notice from the Lender to the Borrowers, the obligations of the Lender to make such LIBOR Rate Loan or to make or continue any loans as, or to convert any loans into, LIBOR Rate Loans of such duration shall forthwith be suspended until the Lender shall notify the Borrowers that the circumstances causing such suspension no longer exist.

5.6           LIBOR Rate Lending Unlawful.  If the Lender shall determine (which determination shall, upon notice thereof to the Borrowers be conclusive and binding on the Borrowers) that the introduction of or any change in or in the interpretation of any law, rule, regulation or guideline, (whether or not having the force of law) makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for the Lender to make, continue or maintain any LIBOR Rate Loan as, or to convert any Loan into, a LIBOR Rate Loan of a certain duration, the obligations of the Lender to make, continue, maintain or convert into any such LIBOR Rate Loans shall, upon such determination, forthwith be suspended until the Lender shall notify the Borrowers that the circumstances causing such suspension no longer exist, and all LIBOR Rate Loans of such type shall automatically convert into Prime Rate Loans at the end of the then current LIBOR Interest Periods with respect thereto or sooner, if required by such law or assertion.

SECTION 6.          Payments.

6.1           Method of Payment.  Unless otherwise directed by the Lender, except as set forth below, all payments due under each Note and all payments of any other amounts due hereunder shall be made by debits by the Lender, or an agent of the Lender designated pursuant to Section 14.11 and acting on behalf of the Lender, through the Automated Clearing House system to an operating account maintained by the Lender in the name of the Borrowers which the Borrowers have designated in writing (the “Account”).  The Borrowers agree that the Account will have sufficient funds to cover such charges and that any disputes over the sufficiency of such funds will be resolved strictly between the Borrowers and the depository institution maintaining such Account.  Unless otherwise directed by the Lender, the final installment due under any Note shall be due and payable by the Borrowers in immediately available funds and shall not be made by debit through the Automated Clearing House System.  On the date hereof, the Borrowers shall execute and deliver to the Lender an Automated Clearing House (“ACH”) Authorization form in the form attached hereto as Exhibit 6.1 printed on the Borrowers’ letterhead.

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6.2           Additional Costs.

(a)           Increased Costs.  If, on or after the date hereof, the adoption of any applicable law, rule or regulation or guideline (whether or not having the force of law), or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Lender with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency:

(i)           shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System of the United States) against assets of, deposits with or for the account of, or credit extended by, the Lender or shall impose on the Lender or on the London interbank market any other condition affecting the Loans or its obligation to make any Loan; or

(ii)           shall impose on Lender any other condition affecting the Loans or its obligation to make any  Loan,

and the result of any of the foregoing is to increase the cost to the Lender of making or maintaining the Loans, or to reduce the amount of any sum received or receivable by the Lender under this Agreement with respect thereto, by an amount reasonably deemed by the Lender to be material, then, within 30 days after demand by the Lender, the Borrowers shall pay to the Lender such additional amount or amounts as will compensate the Lender for such increased cost or reduction.

(b)           Increased Capital Costs.  If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other governmental authority affects or would affect the amount of capital required or expected to be maintained by the Lender, or person controlling the Lender, and the Lender determines (in its sole and absolute discretion) that the rate of return on its or such controlling person’s capital as a consequence of its commitments or the Loans made by the Lender is reduced to a level below that which the Lender or such controlling person could have achieved but for the occurrence of any such circumstance, then, in any such case upon notice from time to time by the Lender to the Borrowers, the Borrowers shall immediately pay directly to the Lender additional amounts sufficient to compensate the Lender or such controlling person for such reduction in rate of return.  A statement of the Lender as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on the Borrowers.  In determining such amount, the Lender may use any method of averaging and attribution that it (in its sole and absolute discretion) shall deem applicable.

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(c)           Liquidity and Credit Enhancement.  If, under the terms of any agreement pursuant to which the Lender obtains liquidity commitments or credit enhancement relating to any Loan made hereunder, the Lender is required to compensate any such provider of liquidity or credit enhancement in respect of taxes, insurance, reserves, costs, expenses or capital requirements under circumstances similar to those described in this Section 6.2, then within thirty (30) days of presentation by the Lender of a statement in the relevant amount and setting forth the calculation of such amount, which statement shall be deemed true and correct absent manifest error, the Borrowers shall pay to the Lender such additional amount or amounts as may be necessary to pay such provider of liquidity or credit enhancement the amounts so due, or otherwise reimburse the Lender for any such amounts so paid by the Lender.

(d)           Taxes.  All payments by any Borrower of principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for any present or future income, excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or other charges of any nature whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes imposed on or measured by the Lender’s net income or receipts (such non-excluded items being called “Taxes”).  In the event that any withholding or deduction from any payment to be made by Borrowers hereunder is required in respect of any Taxes pursuant to any applicable law, rule or regulation, then the Borrowers will:

(i)           pay directly to the relevant authority the full amount required to be so withheld or deducted;

(ii)           promptly forward to the Lender an official receipt or other documentation satisfactory to the Lender evidencing such payment to such authority; and

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(iii)           pay to the Lender such additional amount or amounts as is necessary to ensure that the net amount actually received by the Lender will equal the full amount the Lender would have received had no such withholding or deduction been required.

Moreover, if any Taxes are directly asserted against the Lender with respect to any payment received by the Lender hereunder, the Lender may pay such Taxes and the Borrowers will promptly pay such additional amount (including any penalties, interest or expenses) as is necessary in order that the net amount received by the Lender after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount the Lender would have received had not such Taxes been asserted.

If the Borrowers fail to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Lender the required receipts or other required documentary evidence, the Borrowers shall indemnify the Lender for any incremental Taxes, interest or penalties that may become payable by the Lender as a result of any such failure

6.3           Voluntary Prepayments.  (a) LIBOR Rate Loans may be prepaid upon the terms and conditions set forth herein.  For LIBOR Rate Loans in connection with which Borrowers have or may incur Hedging Obligations, additional obligations may be associated with prepayment, in accordance with the terms and conditions of the applicable Hedging Contracts.   The Borrowers shall give the Lender, no later than 10:00 a.m., Boston time, at least four (4) Business Days notice of any proposed prepayment of any LIBOR Rate Loan, specifying the proposed date of payment of such LIBOR Rate Loan, and the principal amount to be paid.  Each partial prepayment of the principal amount of a LIBOR Rate Loan shall be in an integral multiple of $250,000.00 and accompanied by the payment of all charges outstanding on such LIBOR Rate Loan (including the LIBOR Breakage Fee) and of all accrued interest on the principal repaid to the date of payment.

(b)          Borrowers may prepay any Prime Rate Loan or LIBOR Advantage Loan, on notice to the Lender delivered not less than five (5) Business Days in advance of any such prepayment, in whole or in part, plus the sum of  all interest accrued thereon.

6.4           LIBOR Breakage Fee.  Upon: (i) any default by Borrowers in making any borrowing of, conversion into or continuation of any LIBOR Rate Loan following Borrowers’ delivery of a borrowing request or continuation/conversion notice hereunder or (ii) any prepayment of a LIBOR Rate Loan on any day that is not the last day of the relevant LIBOR Interest Period (regardless of the source of such prepayment and whether voluntary, by acceleration or otherwise), the Borrowers shall pay an amount (“LIBOR Breakage Fee”), as calculated by the Lender, equal to the amount of any losses, expenses and liabilities (including without limitation any loss of margin and anticipated profits) that Lender may sustain as a result of such default or payment.  Borrowers understand, agree and acknowledge that: (i) the Lender does not have any obligation to purchase, sell and/or match funds in connection with the use of the LIBOR Rate as a basis for calculating the rate of interest on a LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a reference in determining such rate, and (iii) the Borrowers have accepted the LIBOR Rate as a reasonable and fair basis for calculating the LIBOR Breakage Fee and other funding losses incurred by the Lender.  Borrowers further agree to pay the LIBOR Breakage Fee and other funding losses, if any, whether or not the Lender elects to purchase, sell and/or match funds.

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6.5           Application of Prepayments.  All partial prepayments shall be applied to the installments of principal due under the Notes in the inverse order of their maturity.

6.6           Mandatory Prepayments.  The Borrowers shall prepay the Loans in an amount equal to 100% of all net cash proceeds (a) from sales of property and assets of any of the Borrowers or their or its subsidiaries or Affiliates (excluding sales of inventory in the ordinary course of business), (b) from equity issued by any of the Borrowers or their or its subsidiaries or Affiliates, (c) of extraordinary receipts of any of the Borrowers or their or its subsidiaries or Affiliates, and (d) from the issuance or incurrence after the Closing Date of additional debt of any of the Borrowers, which shall be applied in the following manner (a) if made prior to the Development Line Termination Date, first, to the principal repayment installments of the Term Loan on a pro rata basis, and, second, to the Development Line of Credit Loan on a pro rata basis, and (b) if made on and after the Development Line Termination Date, first, ratably to the principal repayment installments of the Term Loan and the Term Out Notes, on a pro rata basis.

6.7           Up-Front Fee.  Borrowers agree to pay to the Lender, as consideration for the Lender’s commitment to make Loans, a nonrefundable commitment fee (the “Up-Front Fee”) equal to $86,500.00 payable on the Closing Date.

SECTION 7.          Conditions Precedent to Effectiveness of Agreement.

The effectiveness of this Agreement shall be subject to the condition precedent that the Lender shall have received, in form and substance satisfactory to the Lender and its counsel, each of the following:

(a)          executed originals of this Agreement and the Notes;

(b)          executed originals of the Guaranties, the Security Agreements, the [Hedging Contracts], the IP Security Agreements, the Mortgage Documents and any other agreement and documents required by Lender;

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(c)           certificates executed by such person(s) or entity(ies) as the Lender may require, in the form presented to the Borrowers by the Lender;

(d)           evidence that the Collateral is free and clear of all encumbrances and rights of others (except as otherwise permitted herein) and that the security interests and liens in favor of the Lender are valid, enforceable, properly perfected in a manner acceptable to the Lender and prior to all others’ rights and interests, other than those expressly consented to in writing by the Lender;

(e)           (i) a copy of each Borrower’s formation documents (e.g. Articles of Organization, Certificate of Formation) certified by the Secretary of State of such entity’s jurisdiction of organization of reasonably recent date, if requested by the Lender, and (ii) a certificate of good standing for each from its state of formation and from any other state in which any such entity is required to qualify to conduct its business, if requested by the Lender;

(f)           a Secretary/Manager’s certificate with respect to each Borrower and each Entity Guarantor with respect to its form of organization, all corporate or other appropriate action taken by each of the Borrowers and Entity Guarantors authorizing the execution and delivery of this Agreement, the Notes, the Hedging Contracts (to be executed within one month of the date hereof), the Collateral Documents, all other documents executed and delivered in connection with the Loans,  and the transactions contemplated hereby and thereby, confirming the authority and providing specimen signatures of the representatives of the executing such documents;

(g)           a certificate of insurance endorsement reflecting a lender’s loss payable endorsement in favor of the Lender or naming the Lender as an additional insured executed by the Borrowers’ insurer of the Collateral, or its agent, and indicating compliance with the insurance requirements set forth in Section 9.2 of this Agreement;

(h)           a certificate for each Borrower dated the date of this Agreement signed by an appropriate representative of such entity (i) certifying that the Buffalo Wild Wings Documents and Bagger Dave’s Documents (as appropriate) are in full force and effect, (ii) certifying that the Borrower is a Buffalo Wild Wings franchisee or Bagger Dave’s franchisee (as appropriate) in good standing; (iii) identifying all locations of the Collateral, and (iv) certifying that no material default has occurred and is continuing under the Franchise Documents, all as of the date of this Agreement;

(i)           evidence that any existing Indebtedness required by the Lender to be repaid in full has been, or will be, repaid and any related credit facility terminated or cancelled, as the case may be, on or before the date of the initial Loans made pursuant to this Agreement;

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(j)           a signed copy of an opinion of counsel for the Borrowers and Entity Guarantors reasonably satisfactory to Lender;

(k)           A certification from an officer of the Borrowers as to the financial condition and solvency of  (i) each entity constituting the Borrowers, and (ii) all entities constituting the Borrowers and their subsidiaries, taken as a whole (in each case, after giving effect to the transactions contemplated hereby and the incurrence of indebtedness related thereto);

(l)           title insurance policies and endorsements covering the Fee Mortgages, in form and substance satisfactory to the Lender;

(m)           a signed copy of the Development Agreement from Buffalo Wild Wings in form and substance satisfactory to the Lender;

(n)           a Proforma Compliance Certificate dated as of the Closing Date demonstrating compliance with all of the financial covenants contained herein;

(o)           payoff letters related to the Borrowers’ outstanding indebtedness thereto in form and substance satisfactory to Lender;

(p)           Landlord Estoppel and Consent Agreements or Acknowledgement/Consent of Landlord Estoppel and Consent Agreements (as applicable) for each of the Leased Properties; and

(q)           such other documents as Lender may reasonably request in order to effect fully the purposes and intent of the parties to this Agreement.

7.1           Conditions Precedent to Line Advances and Revolver Advances.  Lender’s obligation to make the any Line Advance or Revolver Advance is subject to the conditions precedent that (a) Lender shall have received on or before the date of each Line Advance or Revolver Advance (as applicable), in form and substance reasonably satisfactory to Lender and its special counsel, Partridge Snow & Hahn LLP, the following documents, and (b) the following conditions have been satisfied to the reasonable satisfaction of the Lender:

(i)           With respect to each Line Advance, a written plan describing the property to be acquired or the improvements to be funded, a detailed itemized budget listing each discipline by line items detailing all costs of construction and equipping such project for its intended use, all plans and specifications for the project, and evidence of the capital contributions made or to be made by the Borrowers to fund such acquisition or improvement.  Under no circumstances shall the Lender be obligated to make any Line Advances in excess of the percentages of costs specified in Section 3.2 hereof;

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(ii)           The representations and warranties contained in Section 8 are correct on and as of the date of such Line Advance or Revolver Advance (as applicable) as though made on and as of such date;

(iii)           No event has occurred and is continuing under this Agreement, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;

(iv)           There shall be no liens filed against the Collateral other than those approved by the Lender in writing as of the date of this Agreement or any date thereafter;

(v)           No Line Advance or Revolver Advance shall be made after the second anniversary of the date hereof.

(vi)           With respect to any Line Advance involving a restaurant or fee property to be operated or owned by a New Affiliate (which is not at the time of this Agreement a Borrower hereunder), the execution by such new entity of a joinder agreement in the form attached hereto as Exhibit 7.1(vi) (a “Joinder Agreement”) pursuant to which the New Affiliate will become obligated for all obligations of the Borrowers to the Lenders;

(vii)          With respect to any Line Advance, the execution by the New Affiliate of such documents as the Lender shall require, including without limitation, an all asset security agreement covering all assets of the New Affiliate, and if applicable, a fee mortgage or leasehold mortgage, and such other documents related thereto as shall be required by Lender;

(viii)          With respect to any Line Advance, the maximum Lease Adjusted Leverage Ratio as of the date of such Line Advance, after giving effect to the Line Advance to be made, shall be .50x less than the ratio that the Borrowers are required to be in compliance with pursuant to Section 10.6 hereof (this condition shall be referred to as the “Incurrence Test”);

(ix)           As to any Line Advance to be used to acquire real estate, a satisfactory environmental assessment, a lender’s title insurance policy in form and substance satisfactory to the Lender, and a satisfactory appraisal prepared by a Lender-approved appraiser directed to the Lender;

(x)           With respect to any Line Advance Lender shall have received from qualified attorneys, engineers, and surveyors such opinions, certificates, surveys as the Lender may reasonably require in connection with the development of a project;

(xi)           With respect to any Line Advance all construction contracts, all design, engineering and consulting contracts, and all major construction subcontracts of the performance of work in connection with the project; and the Borrowers, with the written consent of each other party thereto, shall have assigned to the Lender such of those contracts as the Lender from time to time requests by the instrument in form and content required by Lender and providing that the Lender shall have the right in the event of the Lender’s exercise of its rights to complete any such project to use the services rendered after the Lender elects to complete such project;

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(xii)           With respect to any Line Advance Lender shall have been granted a valid first priority mortgage or leasehold mortgage (as the case may be) covering the property on which the project is located, in form and substance satisfactory to the Lender; and

(xiii)           A certificate substantially in the form attached hereto as Exhibit 3.3 or 4.3 (as applicable), signed by a duly authorized officer of the Borrowers dated the date of such Advance, stating that:

(a)           the conditions set forth in this Section 7.1 have been satisfied as of the date of such Advance,

(b)           all documents required by this Section 7.1 have been delivered to the Lender as of the date of such Advance, and

(c)           no event has occurred and is continuing, or would result from such Advance, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

7.2           Requisition Procedures/Line Advances.

(a)           Line Advances shall be made on the basis of written requisitions signed by the Borrowers with respect to each project which shall be irrevocable when delivered by the Borrowers to the Lender.  Written requisitions shall be in form and substance reasonably acceptable to Lender.  Requisitions will be made no more frequently than monthly and Lender will use good faith efforts to make the advances within five (5) Business Days of the submission of all required items.  The Lender will with reasonable promptness notify the Borrowers as to any incomplete, missing or deficient items, but the failure of the Lender to so notify the Borrowers shall not affect the conditions to a Line Advance contained herein.

(b)           Each requisition for a Line Advance must be satisfactorily reviewed by the Lender or a Lender’s representative prior to the advance being made.

(c)           Each Line Advance shall be in an amount no greater than the percentages set forth in Section 3.2 hereof with respect to the acquisition cost of fee property or the value of the cost of construction work and materials (i.e., so-called “hard” costs) and so-called "soft" costs completed, requested by Borrowers and actually then due and payable certified by the Borrowers (and evidenced by invoices), with respect to that particular requisition.  This Agreement is solely for the benefit of the Lender and the Borrowers, and nothing contained herein shall confer upon anyone other than the Borrowers or the Lender, any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or be a beneficiary of any such obligations.

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(d)           Advances under this Agreement shall be made by credit to the Borrowers’ Account maintained with the Lender.  The Lender may also make advances in the form of two party checks, or directly to the applicable contractor or any other person providing materials, labor or services to the projects.

(e)           Funds advanced to the Borrowers shall be applied only to the costs of the project as set forth in the corresponding project budget and to the Borrowers’ other obligations under this Agreement.

(f)           Lien waivers from the contractors and all major subcontractors associated with the project for all prior advances, in form and substance acceptable to Lender.  Lien waivers must be for the aggregate amount of all amounts received by the party executing such waiver as of the date of each waiver.

(g)           Each requisition for an advance must be satisfactorily reviewed by the Lender or a Lender’s representative prior to the Advance being made.

(h)           The Lender shall make Line Advances for materials stored on site or at other suitable locations in the Lender’s reasonable judgment, subject to the Lender’s receipt of adequate proof that the Borrowers (or its applicable subsidiary or Affiliate) have absolute title thereto and sufficient insurance thereon.

(i)            The final advance for each project shall not be made prior to issuance of all permits and licenses and approvals necessary for use of the respective projects for their intended purposes, nor prior to the issuance of a final endorsement of the Lender’s title insurance policy insuring the priority of all advances, nor prior to all construction having been completed in a good and workmanlike manner (in accordance with the applicable budgets, plans and specifications, as the case may be).

SECTION 8.           Borrowers’ Representations and Warranties

To induce the Lender to enter into this Agreement and to make the Loans hereunder, each Borrower makes the following representations and warranties which shall survive the execution and delivery of this Agreement and the Notes:

8.1            Existence and Rights.  (a)  Borrower is duly organized, validly existing and in good standing under the laws of its state of organization, has full power and authority, rights and franchises to own its properties and assets and to carry on its business as now conducted, and is duly qualified to do business and in good standing in each jurisdiction in which the character of the properties and assets owned by it or the business transacted by it makes such qualification necessary;

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(b)           Borrower has all necessary power and authority to enter into and perform its obligations under this Agreement, the Notes, the [Hedging Contracts] and the Collateral Documents, to borrow money and to grant security interests in the Collateral;

(c)           Except as specifically set forth herein, Borrower possesses all permits, memberships, franchises, contracts and licenses required and all trademark rights, trade name rights, patent rights, copyrights, and fictitious name rights necessary to enable it to conduct the business in which it is now engaged. The Franchise Documents and all documents executed in connection therewith are in full force and effect, no material defaults thereunder have occurred and are continuing, and no notice of intent to either terminate or not renew the Franchise Documents has been received by the Borrower.

8.2            Agreement and Notes Authorized.  The execution, delivery, and performance of this Agreement, the Notes, the Hedging Contracts and each of the Collateral Documents are duly authorized and do not require the consent or approval of Buffalo Wild Wings or Bagger Dave’s or the consent, approval or authorization of or filing or registration with any governmental body or regulatory authority, other than such consents or approvals as have been obtained and the filing of Uniform Commercial Code financing statements with respect to the Collateral; and this Agreement is, and the Notes, the Hedging Contracts and the Collateral Documents when executed will be, legal, valid and binding obligations of each signor thereof, enforceable against each person as may be a party thereto in accordance with their respective terms.

8.3            No Conflict.  The execution, delivery, and performance of this Agreement, the Notes, the Hedging Contracts and the Collateral Documents will not breach or constitute a default under any of the Franchise Documents or any other agreement, indenture, undertaking, or other instrument to which the Borrowers are a party or by which they or any of their property may be bound or affected, and will not contravene or conflict with any law, regulation, writ, judgment, decree or order of any court or governmental or regulatory authority applicable to it, or, if it is not a sole proprietorship, any term or provision of its organizational documents; and other than in favor of the Lender, such execution, delivery, and performance will not result in the creation or imposition of (or the obligation to create or impose) any Lien on, any of its property pursuant to the provisions of any of the foregoing.

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8.4           Litigation.  To the best of the knowledge of each Borrower, there are no suits, actions or other proceedings pending or, to its knowledge, threatened against or affecting any of the Borrowers or any of their respective properties, and, other than as disclosed in writing to the Lender, no other suits, actions, tax claims or proceedings are pending or threatened which, if determined adversely, would impair its financial condition or ability to repay the Obligations or otherwise have a materially adverse effect on the assets, business or prospects of any of the Borrowers.

8.5           Financial Condition.  The financial statements and all other statements and data submitted by the Borrowers in connection with this Agreement are true and correct in all material respects and sufficiently complete to give the Lender accurate knowledge of the financial condition of each Borrower, including all material contingent liabilities, and said financial statements fairly present the financial condition  of each of the Borrowers at the date thereof and the results of the periods covered thereby, and have been prepared in accordance with the financial reporting requirements specified in Appendix to this Agreement.  Since the date of the most recent financial statements referred to above, there have been no material changes in the financial condition, business or prospects of any of the Borrowers other than changes in the ordinary course of business, and no such changes have been materially adverse changes.  None of the Borrowers have any knowledge of any liabilities, contingent or otherwise, not reflected in said financial statements.

8.6           Title to Assets.  Each of the Borrowers has good and marketable title to their assets, including without limitation all assets shown on the financial statements from time to time delivered or pledged to the Lender; and except as permitted under this Agreement, such assets are not subject to any Liens.

8.7           Tax Status.  Each of the Borrowers has filed all federal, state, city and other tax returns required to be filed.  All taxes, assessments and other governmental charges shown to be due on said returns or in any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any governmental authority have been paid.  None of the Borrowers has any knowledge of any pending assessments or adjustments of their income tax for any year.

8.8           Compliance with Law.  Each of the Borrowers has duly observed, conformed and complied in all material respects with all laws, decisions, judgments, rules, regulations and orders of all courts, governmental and regulatory authorities relating to the conduct of its business, or its properties and assets, except those being contested in good faith by appropriate proceedings diligently pursued with adequate reserves established.

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8.9            Other Regulations.  None of the Borrowers are subject to any statute or regulation restricting its ability to incur indebtedness or encumber its properties.

8.10           Security Interest.  The Notes and all other Obligations of the Borrowers hereunder will be secured by, and the security interests created by the Security Agreements, the Mortgage Documents and the other Loan Documents will create, a valid, first priority security interest in favor of the Lender in the Collateral, enforceable against the creditors of the Borrowers, any person with an interest in the real property where any Collateral is located and any present or future creditor obtaining a Lien on such property.  All Collateral owned by the Borrowers, or any of them, shall also secure all other present and future Obligations of the Borrowers to the Lender (excluding any consumer credit covered by the federal Truth in Lending law, unless the Borrower has otherwise agreed in writing or received written notice thereof).  All personal property collateral securing any other present or future obligations of the Borrowers to the Lender shall also secure the Obligations.

8.11           Collateral.  All Collateral is owned by the grantor of the security interest therein free and clear of any title defects or any Liens or interests of others, except those approved in writing by the Lender.  Without limiting the generality of the foregoing, each of the Borrowers expressly represents that they are the legal and equitable owners of the Collateral represented by them to be owned by them and hold the same free and clear of all Liens and rights of others of every kind and nature whatsoever, except for any security interest permitted by Section 10.2 of this Agreement, and each has good right and legal authority to assign, deliver, and/or create a security interest in such Collateral in the manner hereby provided or contemplated.

8.12           Other Obligations.  None of the Borrowers are in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligations.  There is no event which is, or with notice or lapse of time, or both, would be a default under this Agreement.

8.13           Insurance.  The Borrowers have obtained, and maintained in effect, the insurance coverage required by Section 9.2 of this Agreement.

8.14           ERISA.  That the most recent annual report filed by each Borrower pursuant to Section 104 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (including without limitation, all related financial and actuarial statements) is complete and correct, and no event has occurred and is continuing which would permit the Pension Benefit Guaranty Corporation (“PBGC”) established under ERISA to institute proceedings to terminate any pension plan, or other class of employee benefit which the PBGC has elected to insure (“Pension Plan”), established or maintained by each Borrower or any Affiliate.

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8.15           Environmental Matters.  That there has not been a known release, or exists a known threat of release of, hazardous materials, hazardous waste, hazardous or toxic substance or oil from any site operated by any Borrower or any of its Affiliates or any Borrower has not incurred any expense or loss in connection therewith or with any Borrower’s obtaining knowledge of any investigation, action or the incurrence of any expense or loss by any governmental authority in connection with the assessment, containment or removal of any hazardous material or oil for which expense or loss any Borrower or any of its Affiliates may be liable or the violation of any Environmental Law.  As used herein, the terms “hazardous waste,” “hazardous or toxic substance,” “hazardous material” or “oil” shall have the same meanings as defined and used in any of the following (the “Acts”):  the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; and/or the regulations adopted and publications promulgated pursuant to any of the Acts, or any similar applicable state laws as the same may be amended from time to time.

SECTION 9.          Borrowers’ Affirmative Covenants

Each Borrower covenants and agrees that until payment in full of all amounts outstanding hereunder and under the Notes, each shall do all of the following:

9.1           Legal Existence, Franchisee Standing, Etc.  Maintain and preserve its legal existence in the form of organization identified in the certificates delivered to the Lender pursuant to Section 7(e) of this Agreement; continue to be a franchisee of Buffalo Wild Wings or Bagger Dave’s (as applicable) in good standing and maintain all rights, privileges, franchises, and other authority adequate for the conduct of its business; maintain the Collateral and its other properties, equipment, and facilities in good order and repair; and conduct its business in an orderly manner without voluntary interruption.

9.2           Insurance.  Maintain insurance for the Collateral and its other properties in such amounts and in such form as is customary for similarly situated businesses in accordance with the requirements of the Franchise Documents, providing for not less than thirty (30) days notice of cancellation or change in form or nonrenewal to the Lender or the Lender’s assignee, as the case may be, and with losses with respect to the Collateral payable to the Lender or to the Lender’s assignee, as the case may be, under a lender’s loss payable endorsement with respect to personal property, an additional insured with respect to liability insurance, and as mortgagee with respect to the Fee Premises and the Leasehold Premises.  Upon the request of the Lender, to deliver to the Lender a copy of each insurance policy, or if permitted by the Lender, a certificate or other evidence of insurance listing all insurance in force.

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9.3           Use of Collateral; Taxes and Other Liabilities.  Keep the Collateral in good order and repair, and use the same in compliance with all applicable laws and policies of insurance thereon, and pay and discharge, before the same become delinquent and before penalties accrue thereon, all taxes, assessments, and governmental charges upon or against it or the Collateral, or for its use or operation, or any of its other properties, and all its other liabilities at any time existing.  Upon an Event of Default, the Lender may discharge taxes and other encumbrances at any time levied or placed on the Collateral, make reasonably necessary repairs thereon, or provide reasonably necessary maintenance with respect to it, and place and pay for appropriate insurance thereon and pay any necessary filing fees, and the Borrowers will reimburse the Lender on demand for any and all expenditures so made, and, until paid, the amount thereof shall be an obligation secured by the Collateral and shall bear interest at a rate equal to the Prime Rate plus five percent (5%) per annum until paid, provided that the Lender shall have no obligation to make any such expenditures nor shall the making thereof relieve Borrower of any default;

9.4           Records and Reports.  Maintain a system of accounting in accordance with GAAP and furnish to the Lender:

(a)           as soon as available, and in any event within one hundred and twenty (120) days after the close of each fiscal year of each of the Borrowers, annual financial statements of each such Borrower on a consolidated and consolidating basis, including balance sheets, income statements, profit and loss statement, and statements of cash flow, and store-by-store operating performance (profit and loss statement), including a comparison of each store’s performance for the prior fiscal year prepared by each Borrower's independent certified public accountant reasonably satisfactory to the Lender (such certificate to be in such form as generally recognized as unqualified and to be accompanied by an opinion of such certified public accountants that, to their knowledge, there had occurred no event which is, or with the lapse of time or the giving of notice or both would be, an Event of Default hereunder or, if the contrary had appeared from their examination, to state facts found by them);

(b)           as soon as available, and in any event within one hundred twenty (120) days after the close of each fiscal year of each of the Borrowers, a covenant compliance certificate substantially in the form attached hereto as Exhibit 9.4 signed by a duly authorized officer of each such Borrower or other duly authorized agent for each Borrower together with each Borrower’s calculations evidencing compliance with the financial covenants contained in Sections 10.5 and 10.6 of this Agreement;

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(c)           as soon as available, and in any event within sixty (60) days after the close of each fiscal quarter each of the Borrowers, internally prepared quarterly balance sheets and income statements of each such Borrower on a consolidated and consolidating basis with store-by-store operating performance (profit and loss statement), and, at any time that an Event of Default has occurred and is continuing hereunder, if requested by Lender, quarterly balance sheets and income statements of each such Borrower on a consolidating and consolidated basis prepared by each Borrower’s independent accountants;

(d)           Within twenty (20) days after the end of each calendar month individual store sales reports in form and substance satisfactory to the Lender, for the immediately preceding month;

(e)           as soon as available, and in any event within forty-five (45) days after the close of each fiscal quarter of each of the Borrowers, a covenant compliance certificate substantially in the form attached hereto as Exhibit 9.4 signed by a duly authorized officer of each such Borrower or other duly authorized agent for each such Borrower;

(f)           as soon as available, and in any event within ninety (90) days after the close of each fiscal year of each of the Borrowers, commencing with the year ending December 31, 2012, annual management prepared projections/forecasts and business plans for each such Borrower for each of the stores operated by the Borrowers, in form and substance satisfactory to the Lender;

(g)           within thirty (30) days after filing but no later than October 31 of any year, copies of federal tax returns filed by the Personal Guarantor, along with a personal financial statement in form and substance reasonably acceptable to Lender for such Personal Guarantor;

(h)           when received notices of material litigation and proceedings, material environmental actions and liabilities and material ERISA and tax events and liabilities; and

(i)           such other information relating to the affairs of the Borrowers and the Guarantor as the Lender reasonably may request from time to time, including, without limitation, financial statements, in form and substance satisfactory to the Lender, certificates of good standing issued by the governmental authorities of the relevant jurisdiction of formation, and copies of federal, state and local tax returns.

9.5           Inspection.  Permit the Lender or its designees, at any time and from time to time, and at Lender’s sole cost and expense (absent an Event of Default), to discuss the affairs, finances and accounts of the Borrowers with their officers, representatives, accountants, and with any employee, agent or representative of Buffalo Wild Wings or Bagger Dave’s, to visit and inspect the Collateral and other properties of the Borrowers, provided that any such visit shall be conducted in a manner so as not to unreasonably interfere with the business of the store where the Collateral is located and shall require prior notice to the Borrowers, and to examine and make copies of and take abstracts from the books and records of the Borrowers.  If any of the properties, books or records are in the possession of a third party, the Borrowers authorize that third party to permit the Lender or its agents to have access to perform inspections or audits and to respond to the Lender’s requests for information concerning such properties, books and records, following prior notice to Borrowers by Lender.

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9.6           Use of Loan Proceeds.  No portion of any proceeds of any Loan will be used for personal, family, or household purposes.  No portion of any proceeds of any Loan will be used directly or indirectly to purchase or carry any “margin stock” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or to extend credit to, or invest in, other parties for the purpose of purchasing or carrying any such “margin stock,” or to reduce or retire any Indebtedness incurred for such purpose.

9.7           Notice of Certain Events.  Promptly notify the Lender of the occurrence of (i) any Default or Event of Default; (ii) any change in the name, address(es), identity, place of business, chief executive office (if any), or organizational structure of any of the Borrowers from that shown on the certificate delivered to the Lender pursuant to Section 7(e) hereof or in any subsequent notice delivered pursuant to this Section, (which notice shall be given no later than one month prior to the effective date of any such change); (iii) any litigation with Buffalo Wild Wings or Bagger Dave’s and any other litigation which, if adversely determined, might have a material adverse effect on the assets, business or prospects of any of the Borrowers; (iv) any attachment, levy, execution or other legal process levied against any of the Collateral.

9.8           Compliance with Laws.  Duly observe, conform and comply in all material respects with all laws (including any fictitious or tradename statute), decisions, judgments, rules, regulations and orders of all governmental and regulatory authorities relating to the conduct of its business or its properties and assets, except those being contested in good faith by appropriate proceedings diligently pursued.

9.9           Compliance with Franchise Documents. Duly observe, conform and comply in all material respects with each of the obligations imposed on it in each of the Franchise Documents.

9.10         Locations of Collateral.  Except for those locations disclosed to the Lender in the certificate delivered to the Lender as of the date of this Agreement, all Collateral, will be kept at the locations disclosed to the Lender as of the date of this Agreement; provided, however, that inventory may be moved to any Buffalo Wild Wings or Bagger Dave’s store operated by any of the Borrowers without prior written notice to the Lender in order to maintain the normal business operations of such store.

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9.11           Further Assurances.  At all times, and from time to time, execute and deliver such further documents and agreements and perform such acts as may reasonably be requested by the Lender to effect the purposes and intent of the parties to this Agreement, including without limitation, performing any act and providing the Lender with any documentation necessary to perfect the Lender's security interest in the Collateral.

9.12           Deposit Account.  Maintain the Account with the Lender.

9.13           Annual Clean-up Requirement for Revolving Line of Credit Loan.  The Borrowers shall cause the outstanding principal balance of the Revolving Line of Credit Loan to be $0 for at least 90 consecutive days during each twelve (12) month period while the Revolving Line of Credit Loan is outstanding, commencing with the first twelve (12) month period measured from the Closing Date.

SECTION 10.         Borrower’s Negative Covenants

Each Borrower covenants and agrees that until payment in full of all amounts outstanding hereunder and under the Notes, each Borrower shall not do any of the following:

10.1         Additional Indebtedness. Create, incur, assume or permit to continue any Indebtedness, except (i) indebtedness to the Lender, (ii) indebtedness related to the purchase money security interests referred to in Section 10.2(e) below, (iii) indebtedness listed on the attached Exhibit 10.1, and (iv) indebtedness to any shareholders or members of the Borrower, provided that any indebtedness to any shareholders or members of the Borrower shall be subordinated to all Indebtedness of the Borrower to the Lender, and provided further that no payment on any such shareholder or member indebtedness may be made at any time that an Event of Default has occurred and is continuing hereunder or when such payment on any such shareholder indebtedness would result or would be reasonably expected to result in an Event of Default immediately upon such payment or with the passage of time.

10.2         Liens and Encumbrances.  Create, incur, assume, or permit to exist any Lien on, or sell or transfer, either with or without recourse, any interest in, the Collateral other than the following:

(a)           Liens in favor of the Lender or any of its affiliates;

(b)          Liens for taxes not delinquent or being contested in good faith and in appropriate proceedings for which adequate reserves have been established, provided that no notice of lien has been filed or other action taken to perfect or foreclose on such Lien;

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(c)         Liens in connection with workers' compensation, unemployment insurance, or social security obligations;

(d)         Mechanics', workmen's, materialmen's, landlords', carriers', or other like Liens arising in the ordinary and normal course of business with respect to obligations which are not due or which are being contested diligently in good faith with adequate reserves established;

(e)         Purchase money security interests securing Indebtedness not to exceed $100,000 in the aggregate  for all of the Borrowers outstanding at any time incurred in purchasing fixed assets in the ordinary course of business (which Indebtedness does not, when incurred, exceed the lesser of the purchase price or fair market value of the property being acquired) or in leasing fixed assets pursuant to capital leases, provided that no such purchase money security interest shall cover property other than property acquired with the proceeds of such Indebtedness and provided further that the Lender shall have been given prior written notice thereof; and

(f)          Liens granted to Buffalo Wild Wings or Bagger Dave’s in connection with the business relationships with each, provided that all such Liens shall be subordinated to the Lender on terms and conditions satisfactory to the Lender.

10.3        Merger or Consolidation.  Liquidate, dissolve, merge or consolidate, or sell or lease all or substantially all of its business or assets.

10.4        Change in Control. Permit any change in the ownership, management or control without the prior written consent of the Lender.

10.5        Debt Service Coverage Ratio.  Permit the Debt Service Coverage Ratio of the Borrowers on a consolidated basis to be less than 1.20 to 1.0, on the last day of each fiscal quarter of the Borrowers, measured on the basis of the twelve (12) month period immediately preceding the date of such computation, commencing with the fiscal period ending on December 31, 2012.

10.6        Lease Adjusted Leverage Ratio (tested on a quarterly basis).  Permit the Lease Adjusted Leverage Ratio of Borrowers on a consolidated basis to be greater than the Applicable Ratio, said ratio to be tested on a quarterly basis for the trailing twelve (12) month period.  “Applicable Ratio” shall mean 5.50:1.00 for calculations made on or before December 31, 2013: 5.00:1.00 for calculations made on or before December 31, 2014; and 4.50 to 1.00 for calculations made on December 31, 2015 and thereafter.

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10.7        Loans and Investments.  Make investments in, or loans or advances to, any individual, partnership, corporation, trust or other organization or person, except that the Borrowers may invest its excess funds in readily marketable securities issued by the United States of America maturing within one (1) year from the date of acquisition, in prime commercial paper and in certificates of deposit maturing within one (1) year issued by commercial banks having capital, surplus and undivided profits aggregating not less than $20,000,000.

10.8         Restaurant Closures.  Close any Restaurant operated by Borrowers without prior written consent of the Lender.

10.9         Distributions.  Make any Distribution, other than to a Borrower, without the Lender’s prior written consent.

10.10       Lien Amounts.  Permit any lien or encumbrance (other than liens for unpaid real estate taxes being contested in good faith).

SECTION 11.         Security Interest

11.1         Creation of Security Interest.  As collateral security for the payment and performance in full of all Obligations, each of the Borrowers shall execute and deliver to the Lender on the date hereof a Security Agreement and the Mortgage Documents.

11.2          Rights in Collateral.  In addition to and not in limitation of its rights under the Security Agreements and the Mortgage Documents, the Lender may, except to the extent limited in Section 9.3, at its option, at any time, whether or not obligations of Borrowers to the Lender are due, without notice or demand on Borrowers, with respect to any Collateral (i) make, adjust and settle claims under any insurance policy related thereto; and (ii) take such other action, including, without limitation, the execution and delivery of any instruments, documents and agreements in the name of Borrowers, or any of them, as the Lender deems necessary or desirable to protect its interests therein and to carry out the purposes of this Agreement.  The Lender shall have no duty as to the collection or protection of the Collateral or as to the preservation of any rights pertaining thereto.

SECTION 12.         Events of Default

Upon the occurrence of any of the following events (each an “Event of Default”), at the option of the Lender, or automatically without notice or any other action upon the occurrence of any event specified in Section 12.8, the unpaid principal amount of all Loans together with accrued interest and all other obligations owing by the Borrowers to the Lender shall become immediately due and payable without presentment, demand, protest, or further notice of any kind, all of which are hereby expressly waived:

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12.1           Failure to Pay Obligations.  Failure to provide sufficient funds in the Account to enable payment, or otherwise fail to make payment, of any principal amount owing under the Notes within ten (10) days of when due, or any interest thereon, or any fees or any other amount required hereunder, which failure shall continue beyond any applicable grace or cure period.

12.2           Failure to Maintain Legal Existence, Franchisee Standing, Etc.  Failure of Borrowers, or any of them, to perform any covenant contained in Section 10.1, provided that Borrowers shall have thirty (30) days to remedy the condition giving rise to such failure unless such condition gives Buffalo Wild Wings or Bagger Dave’s (as applicable) the right to terminate any franchise agreement between such entity and any of the Borrowers.

12.3           Failure to Comply with Franchise Documents.  Failure of Borrowers, or any of them, to perform any covenant contained in Section 9.9 after giving effect to any applicable cure periods contained in the Franchise Documents.

12.4           Breach of Certain Covenants.  Failure of Borrowers, or any of them, to perform any covenant contained in Sections 9.2, 9.7 and 10.1 through 10.10 of this Agreement.

12.5           Breach of Covenant.  Failure of Borrowers, or any of them, to perform any term, covenant or condition of this Agreement, the Notes, the Hedging Contracts or the Collateral Documents (other than those specified in Sections 12.1, 12.2, 12.3 and 12.4 above), which failure shall continue beyond any applicable grace or cure period.

12.6           Breach of Representation or Warranty/Fraud.  Any fraud committed or permitted by Borrowers, or any of them, or any Guarantor, or any representation or warranty of Borrowers, or any of them, or any Guarantor made herein, in any or in connection with any of the Collateral Documents or in any statement or certificate at any time given in writing pursuant hereto or in connection herewith shall be false or misleading in any material respect when made.

12.7           Default Under Other Agreements.  Default by Borrowers, or any of them, (as principal or guarantor or other surety) in the payment of any obligation for borrowed money or other credit accommodation (including obligations under leases), or in the performance of any agreement evidencing or securing such obligations, which alone or in the aggregate exceed $100,000.00, for such period of time which permit or as would have permitted the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, assuming the delivery of any required notices, or would have constituted an event of default thereunder.

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12.8           Bankruptcy, Etc.  The occurrence of any of following by, against or with respect to Borrowers, or any of them, or any endorser, guarantor or surety for any obligation of Borrowers to the Lender, or any general partner of any Borrower or any such endorser, guarantor or surety:  Dissolution, termination of existence or insolvency; or appointment of a receiver of any property of substantial value; or a common law assignment or trust mortgage for the benefit of creditors; or the filing of a petition in bankruptcy or the commencement of any proceedings under any bankruptcy or insolvency laws or any law relating to the relief of debtors, readjustment of indebtedness, reorganization, composition or extension; provided however, in the case of the filing of a petition in bankruptcy or the commencement of any such proceedings against any such party, such party shall have sixty (60) days from the date of such filing or the commencement of such proceedings to dismiss such proceedings.

12.9           Litigation; Judgments or Attachments.  Any material litigation against Borrowers, or any of them, shall be initiated by Buffalo Wild Wings or Bagger Dave’s and not dismissed within thirty (30) days; or any money judgment or judgments in the aggregate sum of $100,000.00 or more shall be rendered against Borrowers, or any of them, or any of their respective assets and shall remain unsettled or unsatisfied for a period of thirty (30) days unless the effectiveness or finality of such judgment shall have been stayed within such thirty-day period; or any writ or warrant of attachment or similar process involving the aggregate sum of $100,000.00 or more shall be entered or filed or levied against Borrowers, or any of them, or any of their respective assets and shall not be discharged, released, stayed or bonded within thirty (30) days after its entry, filing or levy, or in any event by five (5) days prior to the date of any proposed sale thereunder.

12.10         Termination of Franchise.  Any franchise agreement in which the Borrowers, or any of them, are a party shall have been terminated or not renewed for any reason without the prior written consent of the Lender or Borrowers, or any of them, shall have been notified that Buffalo Wild Wings or Bagger Dave’s intends either to terminate or not renew its franchise.

12.11         Dissolution; Death.  (i) A receiver or similar official is appointed for a substantial portion of any Borrower’s business or the business of any guarantor of the Obligations, or such business is terminated, or Borrowers, or any of them, or any such guarantor is liquidated or dissolved, (ii) any order, judgment or decree shall be entered against Borrowers, or any of them, or any guarantor of the Notes decreeing its dissolution or division or the expropriation or confiscation of its assets; or (iii) the death or permanent incapacity of the Personal Guarantor shall have occurred.

12.12         Material Adverse Change; Lien Priority; Governmental Action.  A materially adverse change in the business, operations, properties, assets or condition (financial or otherwise) of any of the Borrowers or the ability to repay the Loans, occurs, or in the reasonable determination of the Lender, is reasonably likely to occur; the Lender shall have reasonably determined that it is insecure for any reason; the Lender shall fail to have an enforceable first priority Lien in the Collateral, or any governmental authority shall take any action that the Lender reasonably believes materially adversely affects Borrower’s ability, or the ability of any guarantor of the Obligations, to repay the Loans.

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12.13        Insurance or Condemnation Proceeds.  The Borrowers, or any of them, or any Guarantor uses or applies (i) any insurance proceeds paid by reason of any loss, damage or destruction to the Collateral or (ii) any awards or other amounts received in connection with the condemnation of all or a portion of the Collateral, in violation of the terms of the Loan Documents.

SECTION 13.          Lender's Rights and Remedies

13.1           Pre- and Post-Default.  Regardless of whether or not an Event of Default has occurred, in any jurisdiction where enforcement of its rights hereunder is sought, the Lender shall have, in addition to all other rights and remedies, the rights and remedies of a secured party under the Uniform Commercial Code of Massachusetts or such other law as may be applicable and the Lender may exercise any and all rights it has under this Agreement, the Notes, or any other documents or agreements executed in connection herewith or therewith, or at law or in equity and proceed to protect and enforce the Lender's rights by any action at law, in equity or other appropriate proceeding.

13.2           Post-Default.  Upon the occurrence of an Event of Default, the Lender shall have the rights with respect to the Collateral provided for in the Security Agreement and the Mortgage Documents.

SECTION 14.          Miscellaneous

14.1           Survival of Warranties.  All agreements, representations, and warranties made herein shall survive the execution and delivery of this Agreement, the making of the Loans hereunder.

14.2           Expenses.  The Borrowers agree, on a joint and several basis, to pay on demand all reasonable costs and expenses of the Lender in connection with the preparation, administration, and enforcement of this Agreement, the Notes and any other agreement or instrument required by this Agreement, and the realization on the Collateral, and any waiver or amendment of any provision hereof or thereof, any “workout” or restructuring under this Agreement including, without limitation, stamp or other documentary taxes and charges, intangible taxes and other state and local taxes and charges, filing and recording fees and costs and fees associated with search reports with respect to the Lender's lien priorities on the Collateral and the reasonable attorneys' fees including any allocated costs of in-house counsel to the extent permitted by applicable law.  The amount of such costs and expenses, until paid, shall be an obligation secured by the Collateral. The Borrower agrees to indemnify the Lender from and hold it harmless against any such taxes, charges, fees and costs which the Lender, in its sole discretion, undertakes to pay on behalf of Borrowers, or any of them.  If an Event of Default shall have occurred and is then continuing, the Borrowers further agree, on a joint and several basis, to pay on demand the costs of periodic field examinations and inspections of Borrowers’ books, records and Collateral, and appraisals of the Collateral, at such intervals as the Lender may reasonably require, provided that, unless an Event of Default has occurred, Borrowers shall not be required to pay for more than one of any such examination, inspection or appraisal in any calendar year.  Such examinations, inspections and appraisals may be performed by employees of the Lender or by independent examiners and appraisers.  In the event of litigation or an arbitration proceeding between the parties hereto, the prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in connection therewith, as determined by the court or arbitrator.  In the event that any case is commenced by or against any of the Borrowers under the Bankruptcy Code (Title 11, United States Code) or any similar or successor statute, the Lender shall be entitled to recover costs and reasonable attorneys’ fees incurred by the Lender in the preservation, protection, or enforcement of any rights of the Lender in such a case.  As used in this Agreement, “attorneys’ fees” includes the allocated costs of in-house counsel.  The obligations of the Borrowers under this Section 14.2 shall survive payment of the Loans and assignment of any rights hereunder.

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14.3           Final Agreement; Amendments; Waivers.  This Agreement, the Notes, the Hedging Contracts and the Collateral Documents (i) represent the sum of the understandings and agreements between the Lender and the Borrowers concerning this credit, (ii) replace any prior oral or written agreements between the Lender and any such parties concerning this credit, and (iii) are intended by the Lender and the Borrowers as the final, complete and exclusive statement of the terms agreed to by them.  No amendment of any provision of this Agreement, the Collateral Documents, the Hedging Contracts or any Note shall be effective unless in writing signed by the Borrowers and the Lender, and no waiver of compliance with any of the terms and conditions of this Agreement, the Collateral Documents or the Notes shall be effective unless in writing signed by the Lender. No failure or delay on the part of the Lender in the exercise of any power, right, or privilege hereunder or under the Collateral Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right, or privilege preclude other or further exercise thereof or of any other right, power, or privilege.  All rights and remedies existing under this Agreement, the Notes, the Hedging Contracts or under the Collateral Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available.  The Lender retains all rights hereunder notwithstanding any course of conduct to the contrary, including the making of any Loan after and during the continuance of a default or an Event of Default.

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14.4           Severability.  In case any provision in this Agreement shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of such contract and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

14.5           Applicable Law.  This Agreement, the Note, and the Collateral Documents and all documents provided for herein and therein and the rights and obligations of the parties thereto shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to its conflicts of law rules; provided, however, that any leasehold mortgage or mortgage provided for herein which covers a property located in Indiana shall be governed and construed in accordance with the laws of the State of Indiana without regard to it conflict of law rules; and provided further that any leasehold mortgage or mortgage provided for herein which covers a property located in Michigan shall be governed and construed in accordance with the laws of the State of Michigan without regard to its conflict of law rules; and provided further that any leasehold mortgage or mortgage provided for herein which covers a property located in Illinois shall be governed and construed in accordance with the laws of the State of Illinois without regard to its conflict of law rules.  Borrower agrees that any suit for the enforcement of this Agreement, any Note or the Collateral Documents may be brought in the courts of the Commonwealth of Massachusetts or any Federal Court sitting therein and consents to the non-exclusive jurisdiction of such court and to service of process in any such suit being made upon the Borrower by mail at the address specified herein for notices.  Borrower hereby waives any objection that it may now or hereafter have to the venue of any such suit or any such court or that such suit was brought in an inconvenient court.

14.6           Successors and Assigns; Assignability.  This Agreement may not be assigned by any of the Borrowers and shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns at law.  The Lender may sell, assign, transfer, or grant participations, in whole or in part, in any Note without the prior written consent of any of the Borrowers, and the Borrowers agree that (i) any such purchaser, assignee, or transferee shall be entitled to all rights, remedies and benefits of the Lender in, to, and under this Agreement, the Notes and Collateral Documents, and such purchaser, assignee, or transferee shall be and become the “Lender” hereunder for all purposes of this Agreement, the Notes, and the Collateral Documents, and (ii) any such purchaser, assignee, transferee, or participant shall be entitled to the benefits of Sections 6.2(b) and 14.15 of this Agreement to the same extent as if such transferee or participant were the Lender hereunder.

14.7           Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

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14.8           Section Headings.  The various headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretations of this Agreement or any provision hereof.

14.9           Waivers.  Borrowers waive presentment, demand, notice, protest, notice of acceptance of this Agreement, notice of any loan made, credit or other extensions granted, collateral received or delivered or any other action taken in reliance hereon, all demands and notices in connection with the delivery, acceptance, performance, default, or enforcement of any Note or other evidence of Indebtedness secured by the Collateral and all other demands and notice of any description, except for any notices to be provided to Borrowers pursuant to the terms of this Agreement and/or the other Loan Documents.  With respect to both the obligations and the Collateral, Borrowers assent to any extension or postponement of the time of payment or any other forgiveness or indulgence, to any substitution, exchange or release of Collateral, to the addition or release of any party or person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner and at such time or times as the Lender may deem advisable.  The Lender may exercise its rights with respect to the Collateral without resorting, or regard, to other collateral or sources of reimbursement for obligations.

14.10           Authorization To Conduct Due Diligence With Third Parties.  Borrowers hereby authorize the Lender and any of the Lender's representatives, agents or assigns, to contact Buffalo Wild Wings or Bagger Dave’s, the Borrowers’ respective accountants, insurance agents, attorneys and other representatives and agents of Buffalo Wild Wings or Bagger Dave’s and the Borrowers for the purpose of discussing the Borrowers’ affairs and financial condition and to obtain such information from, and conduct such other due diligence with, such third parties from time to time as the Lender deems necessary or desirable.  Borrowers hereby authorize and direct all such third parties to provide such information to the Lender, the Lender's representatives, agents and assigns, and to cooperate fully in all respects in connection with any requests for information regarding the Borrowers.

14.11           Agency.  Borrowers acknowledge and agree that all of the rights and remedies which may be exercised by the Lender under this Agreement, the Notes, the Hedging Contracts and all Collateral Documents, and all demands and notices which may be given by the Lender under this Agreement, may be exercised and/or given (as the case may be) by an agent appointed by the Lender for such purposes and identified to the Borrowers in writing by the Lender from time to time.

14.12           Notice.  All notices and other communications shall have been duly given and shall be effective (i) when delivered, (ii) when transmitted via telecopy (or other facsimile device) to the number set forth below, (iii) on the day following the day on which the same has been delivered prepaid to a reputable national overnight air courier service, (iv) if hand-delivered, by courier or otherwise (including telegram, lettergram or mailgram), when delivered, or (v) on the third business day following the day on which the same is sent by certified or registered mail, postage prepaid, in each case to the respective parties at the address set forth below, or at such other address as such party may specify by written notice to the other party hereto.  No notice of change of address shall be effective except upon actual receipt.  This Section shall not be construed in any way to affect or impair any waiver of notice or demand provided in any Loan Document or to require giving of notice or demand to or upon any person in any situation or for any reason.

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to the Borrowers: Diversified Restaurant Holdings, Inc.

27680 Franklin Road

Southfield, MI 48034

Attn:  President

With a copy to: Michael T. Raymond, Esq.

Dickinson Wright PLLC

2600 W. Beaver Road, Suite 300

Troy, MI 48084

Telephone: (248) 433-7273

Telecopy: (248) 433-7274

to the Lender: RBS Citizens, National Association

28 State Street

14th Floor, MS1420

Boston, Massachusetts  02109

Attn: Christopher Wickles, Senior Vice President

Telephone: (617) 994-7029

Telecopy: (617) 725-5693

With a copy to:  Christopher J. Currier, Esq.

Partridge Snow & Hahn LLP

1700 West Park Drive, Suite 200

Westborough, Massachusetts 01581

Telephone: (508) 599-3000

Telecopy: (508) 599-3010

Personal delivery to a party or to any officer, partner, agent or employee of such party at its address herein shall constitute receipt.  Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been received shall also constitute receipt.

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14.13           Indemnity.  The Borrowers, and each of them, will indemnify and hold the Lender harmless from any loss, liability, damages, judgments, and costs of any kind relating to or arising directly or indirectly out of (a) this Agreement or any document required hereunder, (b) any credit extended or committed by the Lender to the Borrowers hereunder, and (c) any litigation or proceeding related to or arising out of this Agreement, any such document, or any such credit.  This indemnity includes but is not limited to attorneys' fees (including the allocated cost of in-house counsel).  This indemnity extends to the Lender, its parent, subsidiaries and all of their directors, officers, employees, agents, successors, attorneys, and assigns.  This indemnity will survive repayment of the Borrowers’ obligations to the Lender.  All sums due to the Lender hereunder shall be obligations of the Borrower, due and payable immediately without demand.

14.14           Jury Waiver.

THE PARTIES HERETO IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM.  EACH OF THE BORROWERS AND THE LENDER HEREBY IRREVOCABLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY AND AGREES THAT NEITHER, INCLUDING ANY ASSIGNEE OR SUCCESSOR, SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT, ANY NOTE, ANY COLLATERAL DOCUMENTS AND OTHER RELATED AGREEMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF THEM.  NEITHER THE BORROWERS, NOR ANY OF THEM, NOR THE LENDER WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE PARTIES AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.  NEITHER THE UNDERSIGNED NOR THE LENDER HAS IN ANY WAY AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.

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14.15           Lien and Setoff.  Borrowers, and each of them, hereby grant to the Lender a continuing lien, security interest, and right of setoff as security for all of its liabilities and obligations to the Lender, whether now existing or hereafter arising, upon and against all the deposits, credits, collateral and property of each of the Borrowers (other than clients’ trust and other fiduciary accounts or escrows) now or hereafter in the possession, custody, or control of, or in transit to, the Lender. Upon an Event of Default or upon receipt by Lender of any legal process, including summons to trustee, relating to any deposits, credits, collateral or property of the Borrowers, or any of them, in the possession, custody or control of, or in transit to, the Lender, without further demand or notice (any such notice being expressly waived by Borrowers), the Lender may setoff the same or any part thereof and apply the same to any liability or obligation of Borrowers, or any of them, even though unmatured and regardless of the adequacy of any other collateral securing the Loan evidenced hereby.  TO THE EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO REQUIRE THE LENDER TO EXERCISE ITS REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY OF THE BORROWERS, ARE HEREBY VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVED.

[SIGNATURE PAGE FOLLOWS]

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~ Signature page to Credit Agreement ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities     By:   /s/Jason T. Curtis         Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By: /s/Jason T. Curtis       Jason T. Curtis, Secretary       of each of the above listed entities

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~ Signature page to Credit Agreement ~

STATE OF MICHIGAN

COUNTY OF MACOMB                                                               

On this 24 day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

/s/ Brett Bilicki

Print Name:

Notary Public, Macomb County, MI

Acting in Macomb County

My commission expires:   7/19/2017

STATE OF MICHIGAN

COUNTY OF MACOMB                                                              

On this 24 day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

/s/ Brett Bilicki

Print Name:

Notary Public, Macomb County, MI

Acting in Macomb County

My commission expires:  7/19/2017

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~ Signature page to Credit Agreement ~

RBS CITIZENS, NATIONAL ASSOCIATION
By:	/s/ Christopher J. Wickles
	Christopher J. Wickles, Senior Vice President

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APPENDIX I

DEFINITIONS

Definitions and Accounting Terms.  Unless otherwise specified in this Agreement, all accounting terms used in this Agreement shall be interpreted, all financial information required under this Agreement shall be prepared and all financial computations required under this Agreement shall be made in accordance with generally accepted accounting principles consistently applied, or on an income tax basis in accordance with standards established by the American Institute of Certified Public Accountants consistently applied.  All capitalized terms used in this Agreement, the Notes or in any certificate, report or other document made or delivered in connection with this Agreement, unless otherwise defined therein, shall have the following meanings:

Account. As defined in Section 6.1 of this Agreement.

Acquisition Locations.  The premises listed in the attached Schedule A and identified as the “Acquisition Locations”.

Adjusted LIBOR Rate.  Relative to any loan to be made, continued or maintained as, or converted into, a LIBOR Rate Loan for any LIBOR Interest Period, a rate per annum determined by dividing (x) the LIBOR Rate for such LIBOR Interest Period by (y) a percentage equal to one hundred percent (100%) minus the LIBOR Reserve Percentage.

Advance.  A Line Advance or a Revolver Advance, as applicable.

Affiliate.  As applied to any Person, a spouse or relative of such Person, any member, director, partner or officer of such Person, any corporation, partnership, association, firm or other entity of which such Person is a member, director, partner or officer, and any other Person directly or indirectly controlling, controlled or under direct or indirect common control with such Person, including, without limitation, any subsidiary.

Agreement.  This Agreement, as amended or supplemented from time to time.

Acquisition Entities.  Together, AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Pointe, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc.

Bagger Dave’s.  Bagger Dave’s Franchising Corporation.

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BWW Development Advance.  As defined in Section 3.2 hereof.

Bagger Dave’s Documents. All franchise documents issued by Bagger Dave’s to any of the Borrowers.

Bagger Dave’s Legendary Burger Tavern Restaurant.  Any Restaurant operated as a Bagger Dave’s Legendary Burger Tavern Restaurant.

BD Development Advance.  As defined in Section 3.2 hereof.

Buffalo Wild Wings. ­­­­­­­­­­­­Buffalo Wild Wings International, Inc., an Ohio corporation, and its subsidiaries.

BWW Development Advance.  As defined in Section 3.2 hereof.

Buffalo Wild Wings Documents. All franchise documents issued by Buffalo Wild Wings to any of the Borrowers.

Buffalo Wild Wings Restaurant.  Any Restaurant operated as a Buffalo Wild Wings restaurant.

Business Day.

(a)           With respect to any LIBOR Advantage Loan or Prime Rate Loan, any day which is neither a Saturday, Sunday nor a legal holiday on which commercial banks are authorized or required to be closed in Boston.

(b)           With respect to any LIBOR Rate Loan:

(i)           Any day which is neither a Saturday nor Sunday nor a legal holiday on which commercial banks are authorized or required to be closed in Boston, Massachusetts;

(ii)          When such term is used to describe a day on which a borrowing, payment, prepayment or repayment is to be made in respect of a LIBOR Rate Loan, any day which is (i) neither a Saturday nor Sunday nor a legal holiday on which commercial banks are authorized or required to be closed in New York City; and (ii) a London Banking Day; and

(iii)         When such term is used to describe a day on which an interest rate determination is to be made in respect of a LIBOR Rate Loan, any day which is a London Banking Day.

Clinton Township Property.  The property located at 15745 15 Mile Road, Clinton Township, Michigan.

Closing Date.  September 25, 2012.

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CMLTD.  The current maturities of long term debt, as defined in accordance with GAAP.

Collateral.  Any property (real or personal) on which a Lien exists in favor of the Lender securing the obligations of the Borrowers hereunder and under the Notes or other documents.

Collateral Documents.  All Uniform Commercial Code financing statements, Mortgage Documents, the Security Agreement, IP Security Agreements, and any other documents executed and delivered by any of the Borrowers, as the same may be from time to time modified, supplemented, renewed, continued or amended.

Commitment Fee.  As defined in Section 3.6 of this Agreement.

Conversion Date.  As defined in Section 3.5 of this Agreement.

Debt Service Coverage Ratio.  For the period in question, on a consolidated basis for Borrowers and all Affiliates, the calculation described as a ratio of (i) (a) EBITDA, plus (b) pre-opening costs, less (c) cash taxes, less (d) maintenance capital expenditures ($10,000 per store), less (e) Distributions, plus or minus (as the case may be) (f) the net change of the amount of stockholder/member/intercompany notes due to or due from the Borrowers and Affiliates of the Borrowers divided by principal and interest on CMLTD.  For purposes of calculating the net increase or decrease in the amount of stockholder/member/intercompany notes, the aggregate amount of such intercompany obligations of the Borrowers and Affiliates for the period being measured shall be compared with the aggregate amount of intercompany obligations of the Borrowers and Affiliates for the 12-month period immediately preceding the period being measured.  Any net increase due to Borrowers or Affiliates or net decrease due from Borrowers or Affiliates shall be added to the numerator in the above ratio; and any net increase due from Borrowers or Affiliates or net decrease due to Borrowers or Affiliates shall be subtracted from the numerator in the above ratio.

Default.  An Event of Default or event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute an Event of Default.

Development Line of Credit Loan.  As defined in Section 3.1 of this Agreement.

Development Line of Credit Note.  As defined in Section 3.1 of this Agreement.

Development Line Termination Date.  As defined in Section 3.1 of this Agreement.

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Distributions.  For the period in question, the aggregate of all amounts paid or payable (without duplication) by any Borrower as dividends, distributions or owner withdrawals and/or compensation, and includes any purchase, redemption or other retirement of any ownership interests directly or indirectly through a subsidiary or otherwise and includes return of capital to members.

EBITDA.  With respect to any specified period, earnings for the Borrowers from the operations of the businesses on a consolidated basis before interest expense, income taxes, depreciation and amortization determined in accordance with GAAP, excluding gains or losses on the sale, disposition or abandonment of assets and excluding all other non-recurring gains and losses.

Entity Guarantors.  Together, Diversified Restaurant Holdings, Inc., AMC Group, Inc., AMC Wings, Inc., AMC Burgers, Inc., and Bagger Dave’s Franchising Corporation.

Event of Default.  Any event listed in Section 12 hereof.

Fee Mortgages.  The Mortgage, Security Agreements and Financing Statements recorded against the Fee Premises.

Fee Premises.  Collectively, the premises listed in the attached Schedule A and identified as a “Fee Premises”.

Franchise Agreement.  Any franchise agreement in effect between any Borrower and either Buffalo Wild Wings or Bagger Dave’s.

Franchise Documents.  All documents entered into by either Buffalo Wild Wings or Bagger Dave’s and any Borrower or the owner/operator of the Restaurants in connection with any lease, license, or franchise given by either Buffalo Wild Wings or Bagger Dave’s for the operation of the Restaurants, as the same may be amended or otherwise modified from time to time and including all renewals and extensions thereof.

Funded Debt.  The sum of all current and long-term obligations (including all current and long-term obligations with respect to capital leases) of any Person as of any date as of such date.

Funding Date.  With respect to the Term Loan, the 25th day of September, 2012.

GAAP.  Generally accepted accounting principles consistently applied.

Ground Lease.  Any lease of a facility by a Borrower or an Affiliate which includes the land on which the facility is located.

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Guaranties/Guaranty.  The unlimited guaranties executed by the Personal Guarantor and the Entity Guarantors.  Each such guaranty shall be referred to as a “Guaranty” and all together as the “Guaranties”.

Hedging Contracts.  Any and all rate swap transactions, foreign exchange transactions, credit derivative transactions and commodity transactions, including, but not limited to, basis swaps, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transaction, collar transactions, currency swap transactions, cross-currency rate swap transactions, current options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.

Hedging Obligations.  With respect to Borrowers, all liabilities of the Borrowers to the Lender under Hedging Contracts.

Incurrence Test.  The requirement contained in Section 7.1 (viii) of this Agreement.

Indebtedness.  As applied to each Borrower, (i) all obligations for borrowed money (excluding subordinated shareholder notes) or other extensions of credit, whether or not secured, including all obligations representing the deferred purchase price of property, other than accrued expenses and accounts payable on open account arising in connection with the purchase of inventory on terms customary in the trade, whether or not secured, (ii) all obligations evidenced by bonds, the Notes, debentures or other similar instruments, (iii)  all reimbursement obligations (contingent or otherwise) under any letter of credit, (iv) all obligations secured by any mortgage, pledge, security interest or other lien on property owned or acquired whether or not the obligations secured thereby shall have been assumed, (v) the capitalized amount, as determined by accountants, of all obligations as lessee under capital leases, (vi) all guarantees and other contingent liabilities, and (vii) all obligations which are immediately due and payable out of the proceeds of or production from property now or hereafter owned or acquired.

Interest Payment Date.  The last Business Day of each LIBOR Interest Period or, in the case of Prime Rate Loans the 2nd day of each calendar month.

IP Security Agreements.  The security agreements covering Copyrights and Trademarks granted to the Lender as confirmed and amended.

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Joinder Agreement.  As defined in Section 7.1(vi) of this Agreement, a form of which is attached hereto as Exhibit 7.1(vi).

Krygier APA.  The Asset Purchase Agreement dated July 13, 2012 by and among the Krygier Entities, Al Krygier, AMC Wings, Inc. and Diversified Restaurant Holdings, Inc.

Krygier Entities.  Such term as is “defined in” the Krygier APA.

LA Interest Payment Date.  Initially, October 2, 2012, thereafter the day of each succeeding month which numerically corresponds to such date or, if a month does not contain a day that numerically corresponds to such date, the LA Interest Payment Date shall be the last day of such month.

LA Interest Period.  With respect to any LIBOR Advantage Loan, the period commencing on (and including) the date hereof (the “Start Date”) and ending on (but excluding) the date which numerically corresponds to such date one month later, and thereafter, each one month period ending on the day of such month that numerically corresponds to the Start Date.  If an LA Interest Period is to end in a month for which there is no day which numerically corresponds to the Start Date, the LA Interest Period will end on the last day of such month.  Notwithstanding the date of commencement of any LA Interest Period, interest shall only begin to accrue as of the date the initial LIBOR Advantage Loan is made hereunder.

LA Margin means:

If the Lease Adjusted Leverage Ratio is greater than or equal to 5.50 to 1.00	3.7%
If the Lease Adjusted Leverage Ratio is greater than or equal to 5.00 to 1.00 but less than 5.50 to 1.00	3.4%
If the Lease Adjusted Leverage Ratio is greater than or equal to 4.50 to 1.00 but less than 5.00	3.10%
If the Lease Adjusted Leverage Ratio is greater than or equal to 4.00 to 1.00 but less than 4.50 to 1.00	2.75%
If the Lease Adjusted Leverage Ratio is less than 4.00 to 1.00	2.5%

Lease Adjusted Leverage Ratio.  As of any date means the ratio of (a) the sum of (i) Funded Debt, adjusted for New Unit Development and (ii) Third Party Rent for the twelve (12) month period ending on such date multiplied by eight (8), divided by (b) the sum of (i) EBITDA, plus (ii) pre-opening costs, plus (iii) Third Party Rent for the twelve (12) month period ending on such date.

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Leasehold Premises.  Collectively, the premises listed in the attached Schedule A and identified as a “Leasehold Premises”.

Leasehold Mortgages.  The Leasehold Mortgages recorded against the Leasehold Premises.

Leased Properties.  Collectively, the premises listed on the attached Schedule A and identified as a “Leased Property”.

LIBOR Advantage Loan.  Any loan or advance for which the applicable rate of interest is based upon the LIBOR Advantage Rate.

LIBOR Advantage Rate.  Relative to any LA Interest Period, the offered rate for delivery in two London Banking Days of deposits of U.S. Dollars for a term coextensive with the designated LA Interest Period which the British Bankers’ Association fixes as its LIBOR rate as of 11:00 a.m. London time on the day on which such LA Interest Period commences.  If the first day of any LA Interest Period is not a day which is both a (i) Business Day, and (ii) a London Banking Day, the LIBOR Advantage Rate shall be determined by reference to the next preceding day which is both a Business Day and a London Banking Day. Interest accruing by reference to the LIBOR Advantage Rate shall be calculated for the actual number of days elapsed on the basis of a 360-day year, including the first date of the applicable period to, but not including, the date of repayment.  If for any reason the LIBOR Advantage Rate is unavailable and/or the Lender is unable to determine the LIBOR Advantage Rate for any LA Interest Period, the Lender may, at its discretion, either: (a) select a replacement index based on the arithmetic mean of the quotations, if any, of the interbank offered rate by first class banks in London or New York for deposits with comparable maturities or (b)  accrue interest at a rate per annum equal to the Lender’s Prime Rate as of the first day of any Interest Period for which the LIBOR Advantage Rate is unavailable or cannot be determined.

LIBOR Breakage Fee.  As defined in Section 6.4 of this Agreement.

LIBOR Interest Period.  In the case of LIBOR Rate Loans:

(i)           Initially, the period beginning on (and including) the Funding Date and ending on (but excluding) October 2, 2012 (the “Stub Period”);

(ii)          then, each period commencing on (and including) the last day of the Stub Period and ending on (but excluding) the day which numerically corresponds to such date one month thereafter (or, if such month has no numerically corresponding day, on the last Business Day of such month);

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(iii)         thereafter, each period commencing on the last day of the next preceding LIBOR Interest Period applicable to such LIBOR Rate Loan and ending one month thereafter;

(iv)          for the Development Line of Credit Loan, the period beginning on (the next day following the Development Line Termination Date and ending on (but excluding) the day which numerically corresponds to such date one month after the Development Line Termination Date (or, if such month has no numerically corresponding day, on the last Business Day of such month); and

(v)           thereafter, each period commencing on the last day of the next preceding LIBOR Interest Period applicable to such LIBOR Rate Loan and ending one month thereafter;

provided, however, that

(a)           if the Borrowers have or may incur Hedging Obligations with the Lender in connection with the Loan, the LIBOR Interest Period shall be of the same duration as the relevant period set under the applicable Hedging Contract;

(b)           if such LIBOR Interest Period would otherwise end on a day which is not a Business Day, such LIBOR Interest Period shall end on the next following Business Day unless such day falls in the next calendar month, in which case such LIBOR Interest Period shall end on the first preceding Business Day; and

(c)           no LIBOR Interest Period may end later than the termination of this Agreement.

LIBOR Rate.  Relative to any LIBOR Interest Period for a LIBOR Rate Loan, the offered rate for deposits of U.S. Dollars in an amount approximately equal to the amount of the LIBOR Rate Loan for a one month period which the British Bankers’ Association fixes as its LIBOR rate as of 11:00 a.m. London time on the day which is two London Banking Days prior to the beginning of such Interest Period.  If such day is not a London Banking Day, the LIBOR Rate shall be determined on the next preceding day which is a London Banking day. If for any reason the Lender cannot determine such offered rate by the British Bankers’ Association, the Lender may, in its discretion, select a replacement index based on the arithmetic mean of the quotations, if any, of the interbank offered rate by first class banks in London or New York for deposits in comparable amounts and maturities.

LIBOR Rate Loan.  Any loan or advance made pursuant to this Agreement the rate of interest applicable to which is based upon the LIBOR Rate.

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LIBOR Rate Margin means:

If the Lease Adjusted Leverage Ratio is greater than or equal to 5.50 to 1.00	3.7%
If the Lease Adjusted Leverage Ratio is greater than or equal to 5.00 to 1.00 but less than 5.50 to 1.00	3.4%
If the Lease Adjusted Leverage Ratio is greater than or equal to 4.50 to 1.00 but less than 5.00	3.10%
If the Lease Adjusted Leverage Ratio is greater than or equal to 4.00 to 1.00 but less than 4.50 to 1.00	2.75%
If the Lease Adjusted Leverage Ratio is less than 4.00 to 1.00	2.5%

LIBOR Reserve Percentage.  Relative to any day of any LIBOR Interest Period, the maximum aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve requirements (including all basic, emergency, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) under any regulations of the Board of Governors of the Federal Reserve System (the “Board”) or other governmental authority having jurisdiction with respect thereto as issued from time to time and then applicable to assets or liabilities consisting of “Eurocurrency Liabilities”, as currently defined in Regulation D of the Board, having a term approximately equal or comparable to such Interest Period.

Lien.  Any mortgage, pledge, security interest, lien or other charge or encumbrance on any of the property or assets of any of the Borrowers, now owned or hereafter acquired.

Line Advances.  As defined in Section 3.1 of this Agreement.

Loans.  Collectively, the Term Loan (as such may be converted into the Term Out Notes), the Development Line of Credit Loan, and the Revolving Line of Credit Loan (each, individually, a “Loan”).

Loan Documents.  Collectively, this Agreement, the Notes, the Security Agreement, the IP Security Agreements, the Mortgage Documents, the Hedging Contracts and each and all documents executed and/or delivered to the Lender as of this date and hereafter in connection with the Loans, all as may be modified, amended, restated and/or substituted.

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London Banking Day.  A day on which dealings in US dollar deposits are transacted in the London interbank market.

Membership Purchase Agreement.  T. Michael Ansley, James D. Ansley and AMC Wings, Inc. covering the sale of 100% of the membership interests of Ansley Group, L.L.C.

Mortgage Documents.  Those certain Fee Mortgages and Leasehold Mortgages covering the Fee Premises and the Leasehold Premises of even date herewith, and all other documents executed in connection with the foregoing, given by a Borrower to the Lender covering the Fee Premises and/or the Leasehold Premises, as any and/or all may be amended, restated and/or substituted.

New Affiliate.  Any Affiliate of any of the Borrowers formed/established hereafter which becomes the owner or operator of Buffalo Wild Wings Restaurant or a Bagger Dave’s Legendary Burger Tavern Restaurant and as defined in Section 7.1(vi) of this Agreement.

New Unit Development.  With respect to a new unit (new Restaurant location open for less than 12 months), an amount equal to the product of (a) 1.00 minus a fraction, the numerator of which is the number of months such new unit has been in operation and the denominator of which is 12, times (b) the amount of the Funded Debt for such new unit.

Notes.  The Term Note, the Development Line of Credit Note, the Revolving Line of Credit Note and the Term Out Notes (each, individually, a “Note”).

Obligation(s).  All loans, advances, indebtedness, notes, liabilities and other extensions of credit and amounts, liquidated or unliquidated, owing by Borrowers, or any of them, to the Lender at any time, each of every kind, nature and description, whether arising under this Agreement or otherwise, direct or indirect (that is, whether the same are due directly or indirectly to the Lender as endorser or guarantor, or as obligor of obligations due to third persons which have been endorsed or assigned to the Lender, or otherwise), primary or secondary, absolute or contingent, due or to become due, now existing or hereafter arising or acquired, including, but not limited to all obligations of Borrowers, or any of them, under the Notes and under any guaranty executed by the Borrowers, or any of them, in favor of the Lender for obligations of another.  Obligation(s) shall also include any swap transaction or other interest rate protection transaction, including Hedging Obligations involving Lender and the Borrowers, or any of them, whether under the Hedging Contracts or otherwise, and all obligations of the Borrowers, or any of them, under any credit card line of credit or facility made available to the Borrowers and their employees and agents by Lender and all interest and other charges due from the Borrowers, or any of them, to the Lender and all costs and expenses referred to in this Agreement.

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Person.  A corporation, an association, a partnership, business, an individual, a joint venture, an organization, a government or political subdivision agency.

Personal Guarantor.  T. Michael Ansley.

Premises.  Each property constituting the Fee Premises and the Leasehold Premises.

Prime Rate.  A rate per annum equal to the rate of interest announced by Lender in Boston, Massachusetts from time to time as its “Prime Rate”.  Any change in the Prime Rate shall be effective immediately from and after such change in the Prime Rate.  Interest accruing by reference to the Prime Rate shall be calculated on the basis of actual days elapsed and a 360-day year.  The Borrowers acknowledge that the Lender may make loans to its customers above, at or below the Prime Rate.

Prime Rate Loan.  Any loan made pursuant to this Agreement for the period(s) when the rate of interest applicable to such loan is calculated by reference to the Prime Rate.

Prime Rate Margin.  2.0% per annum.

Principal Repayment Amount.  Any principal payments made pursuant to the schedule to be provided under Section 2.4 of this Agreement with respect to the Term Loan, and the regularly scheduled reductions in the outstanding principal of the Term Out Notes.

Restaurant.  Any Buffalo Wild Wings or Bagger Dave’s Restaurant operated by any of the Borrowers or their Affiliates.

Revolver Advances.  As defined in Section 4.1 hereof.

Revolver Commitment Fee.  As defined in Section 4.5 hereof.

Revolving Line of Credit Loan.  As defined in Section ­4 hereof.

Revolving Line of Credit Note.  As defined in Section 4.1 hereof.

Revolving Line Termination Date.  As defined in Section 4.1 of this Agreement.

Security Agreements.  Those certain Security Agreements dated the date hereof pursuant to which each Borrower has granted to the Lender a continuing security interest in all of its personal property and fixtures to secure the Borrowers’ obligations to the Lender.

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Space Lease.  Any facility leased by a Borrower or an Affiliate which does not include a lease of the land on which the facility is located.

Taxes.  As defined in Section 6.2 (d) of this Agreement

Term Loan.  As defined in Section 2.1 of this Agreement.

Term Loan Maturity Date.  September 25, 2017.

Term Note.  As defined in Section 2.1 of this Agreement.

Term/Revolver Loans.  As defined in Section 5.1(a) of this Agreement.

Term Out Note and Term Out Notes.  As defined in Section 3.5 hereof.

Term/Revolver Loan.  As defined in Section 5.1 hereof.

Third Party Rent.  All operating lease expense of any Person for any period paid to third parties which are not Affiliates of such Person.

Up-Front Fee.  As defined in Section 6.7 hereof.

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WIRING INSTRUCTIONS

  authorizes RBS Citizens, National Association, to wire transfer advances made under the Promissory Note dated September  , 2012 to the following account:

Bank Name: 

ABA/ROUTING NUMBER: 

Account Number: 

Name on Account:   

Reference:  

Amount to be Wired:   

FOR INTERNAL USE ONLY:

Shaw Customer Name:

Shaw Customer Number:

Callback Name:

Callback Number:

Date of Wire Transfer:

53

Re:           Endorsement To Insurance Policy

Ladies and Gentlemen:

Please accept this letter as your authorization and direction to issue an endorsement to our insurance policy naming RBS Citizens, National Association (the "Lender") as additional insured and as lender’s loss payee under a standard lenders loss payable clause, loss payee, and mortgagee, with loss, if any, payable as their respective interest may appear.  The certificate must include the following information:

Bank Name:                                                                                         RBS Citizens, N.A.,

ATIMA / ISAOA

RBS Citizens N.A., should be listed as LENDER’S LOSS PAYABLE.

Please also add to the policy the further provision that the insurance may not be altered as to form or canceled or not renewed except with the written consent of, or upon thirty (30) days prior written notice to the Lender.

Upon receipt of this letter, please forward to RBS Citizens, National Association, 28 State Street, MS1450, Boston, Massachusetts 02109, Attn.:   , the ACORD Form 27 "Evidence of Insurance" reflecting satisfaction of the above requirements.

Sincerely,

54

EXHIBIT 2.1

$37,000,000.00  Boston, Massachusetts September 25, 2012

FOR VALUE RECEIVED, the undersigned, FLYER ENTERPRISES, INC., ANKER, INC., TMA ENTERPRISES OF NOVI, INC., AMC GRAND BLANC, INC., AMC PETOSKEY, INC., AMC TROY, INC., AMC FLINT, INC., AMC PORT HURON, INC., AMC CHESTERFIELD, INC., AMC MARQUETTE, INC., MCA ENTERPRISES BRANDON, INC., AMC NORTH PORT, INC., AMC RIVERVIEW, INC., BERKLEY BURGERS, INC., TROY BURGERS, INC., ANN ARBOR BURGERS, INC., AMC TRAVERSE CITY, INC., BRIGHTON BURGERS, INC., CASCADE BURGERS REAL ESTATE, INC., CASCADE BURGERS, INC., EAST LANSING BURGERS, INC., BEARCAT ENTERPRISES, INC., SHELBY TOWNSHIP BURGERS, INC., AMC DETROIT, INC., BLOOMFIELD BURGERS, INC., HOLLAND BURGERS, INC., GRANDVILLE BURGERS, INC., AMC LAKELAND, INC., AMC SARASOTA, INC., AMC FT. MYERS, INC., AMC LARGO, INC., AMC CALUMET CITY, INC., AMC HOMEWOOD, INC., AMC LANSING, INC., AMC LINCOLN PARK, INC., TMA ENTERPRISES OF FERNDALE, LLC, ANSLEY GROUP, L.L.C., AMC WARREN, LLC, BUCKEYE GROUP, LLC, BUCKEYE GROUP II, LLC, AMC CROWN POINT, INC., AMC HOBART, INC., AMC SCHERERVILLE, INC., AMC VALPARAISO, INC., CHESTERFIELD TOWNSHIP BURGERS, INC., DETROIT BURGERS, INC., GRAND RAPIDS BURGERS, INC., AMC SAULT STE. MARIE, INC., AMC LAPEER, INC., INDY/MICHIGAN ROAD INC., AVON BURGERS, INC., WESTFIELD BURGERS, INC., AMC YBOR, INC. having a mailing address at 27680 Franklin Road Southfield, MI 48034 (each, a “Borrower” and collectively, the “Borrower”), hereby jointly and severally promise to pay to the order of RBS CITIZENS, National Association ("Lender") the principal sum of Thirty-Seven Million US Dollars (US $37,000,000.00), which shall be payable to Lender as provided herein and in the Credit Agreement dated as of the date hereof ("Credit Agreement"), by and between Borrower and Lender.  All principal and accrued interest hereunder unless earlier due and payable shall be due and payable in full on the Term Loan Maturity Date.  All capitalized terms used in this Note shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.

Principal shall be payable in the amounts and at the times set forth in the schedule attached as Exhibit 2.4 to the Credit Agreement.  Borrower shall pay interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum and at the times provided in the Credit Agreement. Upon the occurrence and during the continuation of an Event of Default, Borrower shall pay interest on the unpaid principal balance hereof at the rate or rates set forth in the Credit Agreement plus 5.0% per annum. Such interest rate will accrue before and after any judgment has been entered.

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Subject to the provisions of the Credit Agreement, payments of principal and interest shall be made without setoff, counterclaim or other deduction of any nature at the office of Lender located at 28 State Street, Boston, Massachusetts 02109, unless otherwise directed in writing by the holder hereof, in lawful money of the United States of America in immediately available funds.

This Note is the Term Note referred to in, and is entitled to the benefits of, the Loan Documents, including the representations, warranties, covenants, conditions and Liens contained or granted therein. The Credit Agreement among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayment, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified.

Except as otherwise provided in the Credit Agreement, Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.

This Note shall bind Borrower and its successors and permitted assigns, and the benefits hereof shall inure to the benefit of Lender and its successors and assigns. All references herein to "Borrower" and "Lender" shall be deemed to apply to Borrower and Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.

This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall, for all purposes be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws provisions.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned has caused this Note to be executed by its duly authorized officer with the intention that it constitutes a sealed instrument.

[SIGNATURE PAGE FOLLOWS]

56

~ Signature page to $37,000,000 Note ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities   By:   /s/Jason T. Curtis         Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By:  /s/Jason T. Curtis       Jason T. Curtis, Secretary       of each of the above listed entities

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~ Signature page to $37,000,000 Note ~

STATE OF MICHIGAN

COUNTY OF OAKLAND                                                               

On this  day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

 /s/ Kathleen Marie Howe

Print Name: Kathleen Marie Howe 

Notary Public,  Wayne County, MI

Acting in Oakland County

My commission expires:   5-22-2017

STATE OF MICHIGAN

COUNTY OF OAKLAND                                                               

On this  day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

 /s/ Kathleen Marie Howe

Print Name: Kathleen Marie Howe 

Notary Public,  Wayne  County, MI

Acting in  Oakland County

My commission expires:   5-22-2017

58

EXHIBIT 2.4

Term Loan $37,000,000

PRINCIPAL REPAYMENT SCHEDULE

Principal Payment Date	Principal Payment Amount
Commencing October 2, 2012 and continuing on the 2nd day of each succeeding calendar month up to and including September 2, 2017.	$440,476.00
September 25, 2017 (Term Loan Maturity Date).	All principal and interest outstanding under the Term Loan on such Date.

59

EXHIBIT 3.1

$10,000,000.00 Boston, Massachusetts September 25, 2012

FOR VALUE RECEIVED, the undersigned, FLYER ENTERPRISES, INC., ANKER, INC., TMA ENTERPRISES OF NOVI, INC., AMC GRAND BLANC, INC., AMC PETOSKEY, INC., AMC TROY, INC., AMC FLINT, INC., AMC PORT HURON, INC., AMC CHESTERFIELD, INC., AMC MARQUETTE, INC., MCA ENTERPRISES BRANDON, INC., AMC NORTH PORT, INC., AMC RIVERVIEW, INC., BERKLEY BURGERS, INC., TROY BURGERS, INC., ANN ARBOR BURGERS, INC., AMC TRAVERSE CITY, INC., BRIGHTON BURGERS, INC., CASCADE BURGERS REAL ESTATE, INC., CASCADE BURGERS, INC., EAST LANSING BURGERS, INC., BEARCAT ENTERPRISES, INC., SHELBY TOWNSHIP BURGERS, INC., AMC DETROIT, INC., BLOOMFIELD BURGERS, INC., HOLLAND BURGERS, INC., GRANDVILLE BURGERS, INC., AMC LAKELAND, INC., AMC SARASOTA, INC., AMC FT. MYERS, INC., AMC LARGO, INC., AMC CALUMET CITY, INC., AMC HOMEWOOD, INC., AMC LANSING, INC., AMC LINCOLN PARK, INC., TMA ENTERPRISES OF FERNDALE, LLC, ANSLEY GROUP, L.L.C., AMC WARREN, LLC, BUCKEYE GROUP, LLC, BUCKEYE GROUP II, LLC, AMC CROWN POINT, INC., AMC HOBART, INC., AMC SCHERERVILLE, INC., AMC VALPARAISO, INC., CHESTERFIELD TOWNSHIP BURGERS, INC., DETROIT BURGERS, INC., GRAND RAPIDS BURGERS, INC., AMC SAULT STE. MARIE, INC., AMC LAPEER, INC., INDY/MICHIGAN ROAD INC., AVON BURGERS, INC., WESTFIELD BURGERS, INC., AMC YBOR, INC. having a mailing address at 27680 Franklin Road Southfield, MI 48034 (each, a “Borrower” and collectively, the “Borrower”), hereby jointly and severally promise to pay to the order of RBS CITIZENS, National Association ("Lender"), the lesser of: (a) the principal sum of Ten Million US Dollars (US $10,000,000.00), or (b) the aggregate unpaid principal balance of all Line Advances made by Lender to Borrower pursuant to the Credit Agreement dated as of the date hereof ("Credit Agreement"), by and between Borrower and Lender. All principal and accrued interest hereunder unless earlier due and payable shall be due and payable in full on the Development Line Termination Date.  All capitalized terms used in this Note shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.

Borrower shall pay interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum and at the times provided in the Credit Agreement.  Upon the occurrence and during the continuation of an Event of Default, Borrower shall pay interest on the unpaid principal balance hereof at the rate or rates set forth in the Credit Agreement plus 5.0% per annum. Such interest rate will accrue before and after any judgment has been entered.

60

Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without setoff, counterclaim or other deduction of any nature at the office of the Lender located at 28 State Street, Boston, Massachusetts 02109, unless otherwise directed in writing by the holder hereof, in lawful money of the United States of America in immediately available funds.

This Note is the Development Line of Credit Note referred to in, and is entitled to the benefits of, the Loan Documents, including the representations, warranties, covenants, conditions and Liens contained or granted therein. The Credit Agreement among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayment, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified.

Except as otherwise provided in the Credit Agreement, Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.

This Note shall bind Borrower and its successors and permitted assigns, and the benefits hereof shall inure to the benefit of Lender and its successors and assigns. All references herein to "Borrower" and "Lender" shall be deemed to apply to Borrower and Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.

This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall, for all purposes be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws provisions.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned has caused this Note to be executed by its duly authorized officer with the intention that it constitutes a sealed instrument.

[SIGNATURE PAGE FOLLOWS]

61

~ Signature page to $10,000,000 Note ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities   By:   /s/Jason T. Curtis         Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By: /s/Jason T. Curtis       Jason T. Curtis, Secretary       of each of the above listed entities

62

~ Signature page to $10,000,000 Note ~

STATE OF MICHIGAN

COUNTY OF OAKLAND                                                              

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

 /s/ Kathleen Marie Howe

Print Name: Kathleen Marie Howe 

Notary Public,  Wayne  County, MI

Acting in  Oakland County

My commission expires:   5-22-2017

STATE OF MICHIGAN

COUNTY OF OAKLAND                                                               

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

 /s/ Kathleen Marie Howe

Print Name: Kathleen Marie Howe 

Notary Public,  Wayne  County, MI

Acting in  Oakland County

My commission expires:   5-22-2017

63

EXHIBIT 3.3

REQUEST FOR ADVANCE AND COMPLIANCE CERTIFICATE

RBS Citizens, NA

28 State Street

Boston, MA 02109

Re: Request for an Advance in connection with that certain [Revolving Line of Credit Loan] [Development Line of Credit Loan] pursuant to the Credit Agreement dated September 25, 2012 (the "Agreement"), between the undersigned (jointly and severally, the "Borrower'') and RBS Citizens, N.A., a national banking association ("Lender"), as the same may be amended or restated from time to time.

1 . Borrower hereby requests a [Revolver Advance] [Line Advance] [circle one] under the Agreement in the amount of  and /100 Dollars ($), and requests that the disbursement of funds be deposited into Borrower's account # in accordance with the Draw Authorization and Distribution on file with Lender.

2. Borrower acknowledges that the Advance by Lender is subject to satisfaction of all conditions to the disbursement of funds and availability of Advances in the Agreement.

3.           Borrower hereby represents, warrants and certifies to Lender as follows:

(a) All representations and warranties of Borrower in the Loan Documents are true and correct in all material respects as of the date hereof and will be true and correct in all material respects as of the making of the requested Advance.

(b)           Borrower is in compliance in all material respects with all of its

obligations, duties and covenants under the Loan Documents, including but not limited to the Financial Covenants set forth in Section 10 of the Agreement.

(c) No event has occurred which, with the passage of time and/or the giving of notice, would constitute an Event of Default under the Loan Documents.

(d) All conditions to the disbursement of funds requested herein, as set forth in Section 7 of the Agreement, have been fulfilled.

(e) Since the Closing Date, no event has occurred that has had or could reasonably be expected to have a material adverse effect on any of the Borrowers or the Collateral.

(f) Disbursement of the funds requested herein will not result in a violation of any of Borrower's financial covenants in any of the Loan Documents.

4. Borrower certifies that the statements made herein are, and the information in any documents submitted herewith is, true and has duly caused this Request for Advance and Compliance Certificate to be signed on its behalf by an authorized officer.

5. Capitalized terms used herein and not otherwise defined shall have the meaning given to such term in the Agreement.

[SIGNATURE PAGE FOLLOWS]

64

~ Signature page to Request for Advance ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities     By:   /s/Jason T. Curtis         Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By: /s/Jason T. Curtis       Jason T. Curtis, Secretary       of each of the above listed entities

65

 Signature page to Request for Advance ~

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

66

EXHIBIT 4.1

$1,000,000.00   Boston, Massachusetts September 25, 2012

FOR VALUE RECEIVED, the undersigned, FLYER ENTERPRISES, INC., ANKER, INC., TMA ENTERPRISES OF NOVI, INC., AMC GRAND BLANC, INC., AMC PETOSKEY, INC., AMC TROY, INC., AMC FLINT, INC., AMC PORT HURON, INC., AMC CHESTERFIELD, INC., AMC MARQUETTE, INC., MCA ENTERPRISES BRANDON, INC., AMC NORTH PORT, INC., AMC RIVERVIEW, INC., BERKLEY BURGERS, INC., TROY BURGERS, INC., ANN ARBOR BURGERS, INC., AMC TRAVERSE CITY, INC., BRIGHTON BURGERS, INC., CASCADE BURGERS REAL ESTATE, INC., CASCADE BURGERS, INC., EAST LANSING BURGERS, INC., BEARCAT ENTERPRISES, INC., SHELBY TOWNSHIP BURGERS, INC., AMC DETROIT, INC., BLOOMFIELD BURGERS, INC., HOLLAND BURGERS, INC., GRANDVILLE BURGERS, INC., AMC LAKELAND, INC., AMC SARASOTA, INC., AMC FT. MYERS, INC., AMC LARGO, INC., AMC CALUMET CITY, INC., AMC HOMEWOOD, INC., AMC LANSING, INC., AMC LINCOLN PARK, INC., TMA ENTERPRISES OF FERNDALE, LLC, ANSLEY GROUP, L.L.C., AMC WARREN, LLC, BUCKEYE GROUP, LLC, BUCKEYE GROUP II, LLC, AMC CROWN POINT, INC., AMC HOBART, INC., AMC SCHERERVILLE, INC., AMC VALPARAISO, INC., CHESTERFIELD TOWNSHIP BURGERS, INC., DETROIT BURGERS, INC., GRAND RAPIDS BURGERS, INC., AMC SAULT STE. MARIE, INC., AMC LAPEER, INC., INDY/MICHIGAN ROAD INC., AVON BURGERS, INC., WESTFIELD BURGERS, INC., AMC YBOR, INC. having a mailing address at 27680 Franklin Road Southfield, MI 48034 (each, a “Borrower” and collectively, the “Borrower”), hereby jointly and severally promise to pay to the order of RBS CITIZENS, National Association ("Lender"), the lesser of: (a) the principal sum of One Million US Dollars (US $1,000,000.00), or (b) the aggregate unpaid principal balance of all Revolver Advances made by Lender to Borrower pursuant to the Credit Agreement dated as of the date hereof ("Credit Agreement"), by and between Borrower and Lender. All principal and accrued interest hereunder unless earlier due and payable shall be due and payable in full on the Revolving Line Termination Date.  All capitalized terms used in this Note shall, unless otherwise defined herein, have the same meanings given to such terms in the Credit Agreement.

Borrower shall pay interest on the unpaid principal balance hereof from time to time outstanding from the date hereof at the rate or rates per annum and at the times provided in the Credit Agreement.  Upon the occurrence and during the continuation of an Event of Default, Borrower shall pay interest on the unpaid principal balance hereof at the rate or rates set forth in the Credit Agreement plus 5.0% per annum. Such interest rate will accrue before and after any judgment has been entered.

67

Subject to the provisions of the Credit Agreement, payments of both principal and interest shall be made without setoff, counterclaim or other deduction of any nature at the office of the Lender located at 28 State Street, Boston, Massachusetts 02109, unless otherwise directed in writing by the holder hereof, in lawful money of the United States of America in immediately available funds.

This Note is the Revolving Line of Credit Note referred to in, and is entitled to the benefits of, the Loan Documents, including the representations, warranties, covenants, conditions and Liens contained or granted therein. The Credit Agreement among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayment, in certain circumstances, on account of principal hereof prior to maturity upon the terms and conditions therein specified.

Except as otherwise provided in the Credit Agreement, Borrower waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Credit Agreement.

This Note shall bind Borrower and its successors and permitted assigns, and the benefits hereof shall inure to the benefit of Lender and its successors and assigns. All references herein to "Borrower" and "Lender" shall be deemed to apply to Borrower and Lender, respectively, and their respective successors and assigns as permitted under the Credit Agreement.

This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall, for all purposes be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws provisions.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned has caused this Note to be executed by its duly authorized officer with the intention that it constitutes a sealed instrument.

[SIGNATURE PAGE FOLLOWS]

68

~ Signature page to $1,000,000 Note ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities     By:  /s/Jason T. Curtis         Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By:  /s/Jason T. Curtis       Jason T. Curtis, Secretary       of each of the above listed entities

69

~ Signature page to $1,000,000 Note ~

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

70

EXHIBIT 4.3

REQUEST FOR ADVANCE AND COMPLIANCE CERTIFICATE

RBS Citizens, NA

28 State Street

Boston, MA 02109

Re: Request for an Advance in connection with that certain [Revolving Line of Credit Loan] [Development Line of Credit Loan] pursuant to the Credit Agreement dated September 25, 2012 (the "Agreement"), between the undersigned (jointly and severally, the "Borrower'') and RBS Citizens, N.A., a national banking association ("Lender"), as the same may be amended or restated from time to time.

1 . Borrower hereby requests a [Revolver Advance] [Line Advance] [circle one] under the Agreement in the amount of ______________ and _________/100 Dollars ($_________), and requests that the disbursement of funds be deposited into Borrower's account #___________________ in accordance with the Draw Authorization and Distribution on file with Lender.

2. Borrower acknowledges that the Advance by Lender is subject to satisfaction of all conditions to the disbursement of funds and availability of Advances in the Agreement.

3.  Borrower hereby represents, warrants and certifies to Lender as follows:

(a) All representations and warranties of Borrower in the Loan Documents are true and correct in all material respects as of the date hereof and will be true and correct in all material respects as of the making of the requested Advance.

(b)  Borrower is in compliance in all material respects with all of itsobligations, duties and covenants under the Loan Documents, including but not limited to the Financial Covenants set forth in Section 10 of the Agreement.

(c) No event has occurred which, with the passage of time and/or the giving of notice, would constitute an Event of Default under the Loan Documents.

(d) All conditions to the disbursement of funds requested herein, as set forth in Section 7 of the Agreement, have been fulfilled.

(e) Since the Closing Date, no event has occurred that has had or could reasonably be expected to have a material adverse effect on any of the Borrowers or the Collateral.

(f) Disbursement of the funds requested herein will not result in a violation of any of Borrower's financial covenants in any of the Loan Documents.

4. Borrower certifies that the statements made herein are, and the information in any documents submitted herewith is, true and has duly caused this Request for Advance and Compliance Certificate to be signed on its behalf by an authorized officer.

5. Capitalized terms used herein and not otherwise defined shall have the meaning given to such term in the Agreement.

[SIGNATURE PAGE FOLLOWS]

71

~ Signature page to Request for Advance ~

Executed by each of the parties below as a document under seal as of the date first written above:

  TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC, Each a Michigan Limited Liability Company   By: AMC Wings, Inc., sole member of each of the above listed entities     By:           Jason T. Curtis, Secretary     AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation   Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation       By:        Jason T. Curtis, Secretary       of each of the above listed entities

72

~ Signature page to Request for Advance ~

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of AMC Wings, Inc., the sole member of each of TMA Enterprises of Ferndale, LLC, Ansley Group, L.L.C., AMC Warren, LLC, Buckeye Group, LLC and Buckeye Group II, LLC, proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.\

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

STATE OF MICHIGAN

COUNTY OF 

On this ___ day of September, 2012, before me, the undersigned notary public, personally appeared Jason T. Curtis, as Secretary of each of Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc., proved to me through satisfactory evidence of identification, which was State of Michigan driver’s license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it as such Secretary, voluntarily for its stated purpose.

Print Name:

Notary Public,   County, MI

Acting in   County

My commission expires:   

73

EXHIBIT 6.1

RBS Citizens, National Association

28 State Street, 14th Floor

Boston, MA 02109

Telephone: 

Fax:

RE:         Name of Depository: 

Depository Address: 

ABA Routing/Transit #: 

Account Name: 

Account Number: 
 

Automated Clearing House (“ACH”) Authorization

The undersigned obligor hereby authorizes RBS Citizens, National Association, or its affiliates and successors and assigns (“Lender”) to initiate debit entries to the account indicated below, at the financial organization named below (“Depository”) for regularly scheduled payments due to Lender under those certain agreements by the undersigned obligor in favor of Lender (“Payment Obligations”).  This Authorization is effective immediately from the date hereof and will remain in full force and effect on each current and subsequently established account until all Payment Obligations are paid in full or until Lender has received written notification from the undersigned of its termination in such time and manner as to afford Lender and the Depository a   reasonable opportunity to act upon it.

OBLIGORS:

Flyer Enterprises, Inc., Anker, Inc., TMA Enterprises of Novi, Inc., AMC Grand Blanc, Inc., AMC Petoskey, Inc., AMC Troy, Inc., AMC Flint, Inc., AMC Port Huron, Inc., AMC Chesterfield, Inc., AMC Marquette, Inc., MCA Enterprises Brandon, Inc., AMC North Port, Inc., AMC Riverview, Inc., Berkley Burgers, Inc., Troy Burgers, Inc., Ann Arbor Burgers, Inc., AMC Traverse City, Inc., Brighton Burgers, Inc., Cascade Burgers Real Estate, Inc., Cascade Burgers, Inc., East Lansing Burgers, Inc., Bearcat Enterprises, Inc., Chesterfield Township Burgers, Inc., Detroit Burgers, Inc., Grand Rapids Burgers, Inc., AMC Sault Ste. Marie, Inc., AMC Lapeer, Inc., TMA Enterprises of Ferndale, LLC, AMC Warren, LLC, Buckeye Group, LLC, Buckeye Group II, LLC, AMC Lakeland, Inc., AMC Sarasota, Inc., AMC Ft. Myers, Inc., AMC Ybor, Inc., Shelby Township Burgers, Inc., AMC Detroit, Inc., AMC Largo, Inc., Bloomfield Burgers, Inc., Holland Burgers, Inc., Grandville Burgers, Inc., Ansley Group, L.L.C., Indy/Michigan Road Inc., Avon Burgers, Inc., Westfield Burgers, Inc., AMC Calumet City, Inc., AMC Homewood, Inc., AMC Lansing, Inc., AMC Lincoln Park, Inc., AMC Crown Point, Inc., AMC Hobart, Inc., AMC Schererville, Inc., and AMC Valparaiso, Inc.

74

Authorized Signature	Date
Authorized Signature (if two signatures required)	Date

75

EXHIBIT 7.1(vi)

JOINDER AGREEMENT

THISJOINDERAGREEMENT("Agreement") is made effective as of _________ __, 20__, by and among the borrowing entities identified on ExhibitA attached hereto (jointly and severally, "Borrower"), and RBS Citizens,  N.A., a national banking association (together with its successors and assigns, "Lender").  Capitalized terms used but not defined in this Agreement shall have the meanings assigned to such terms in the Credit Agreement and the Loan Documents identified in the Credit Agreement, as each may be amended from time to time.

Reference is made to: Credit  Agreement  (the  "Credit  Agreement")  dated  as  of September 25, 2012 as the same may be amended from time to time, by and among Borrower and Lender, and the Loan Documents identified in such Credit Agreement  ("Credit  Documents"),  including,  without  limitation,  the Term Note in the original principal amount of $37,000,000, the Development Line of Credit Note in the original principal amount of $10,000,000, the Revolving Line of Credit Note in the original principal amount of $1,000,000, and the Term Out Notes (each as defined in the Credit Agreement) as each of the same may be amended from time to time.

Each of the loans or lines of credit identified in the Credit Documents are herein individually or collectively referred to as the "Loan".

In connection with any Loan made pursuant to the Credit Documents, new borrowers may be added to the borrowing group and such new borrowers need to be bound by the terms of the Credit Documents.

The undersigned has had opportunity to review the Credit Documents and understands the contents thereof.

NOW, THEREFORE, by executing this Joinder Agreement, the undersigned hereby agrees to be bound by the terms of the Credit Documents as if it was an original signatory  to  the  Credit Documents, and  shall  be  deemed  to  be  a  Borrower  under the Credit Documents and a Borrower under the Credit Agreement.  Not in limitation of the foregoing, the undersigned hereby grants Lender, as secured party, a first priority security interest in all Collateral owned or possessed by the undersigned.  The undersigned agrees to take any and all necessary or advisable actions to perfect the security interests granted under the Security Agreement and to protect the Collateral.

[No further text on this page.]

76

IN  WITNESS  WHEREOF,  the   undersigned  has  executed  this   Joinder Agreement as of the date first abovewritten.

(Company Name) a (State) corporation
By:
	Name:
	Its:

Each  of the  undersigned guarantors (each, a "Guarantor'') under the Loan hereby acknowledges and agrees to the addition of the above-identified entity as a Borrower under the Credit Documents and a Borrower under the Credit Agreement and further agrees to guaranty the obligations of such Borrower.

DIVERSIFIED RESTAURANT HOLDINGS, INC.,

a Nevada corporation

AMC GROUP, INC. AMC WINGS, INC. AMC BURGERS, INC.

BAGGER DAVE'S FRANCHISING CORPORATION

each, a Michigan

By:

Name:

Title:

77

EXHIBITA

Flyer Enterprises, Inc. Anker, Inc. TMA Enterprises of NOVI, Inc. AMC Grand Blanc, Inc. AMC Petoskey, Inc. AMC Troy, Inc. AMC Flint, Inc. AMC Port Huron, Inc. AMC Chesterfield, Inc. AMC Marquette, Inc. MCA Enterprises Brandon, Inc. AMC North Port, Inc. AMC Riverview, Inc. Berkley Burgers, Inc. Troy Burgers, Inc. Ann Arbor Burgers, Inc. AMC Traverse City, Inc. Brighton Burgers, Inc. Cascade Burgers Real Estate, Inc. Cascade Burgers, Inc. East Lansing Burgers, Inc. Bearcat Enterprises, Inc. Shelby Township Burgers, Inc. AMC Detroit, Inc. Bloomfield Burgers, Inc. Holland Burgers, Inc. Grandville Burgers, Inc. Chesterfield Township Burgers, Inc. Detroit Burgers, Inc. Grand Rapids Burgers, Inc. AMC Sault Ste. Marie, Inc. AMC Lapeer, Inc. each, a Michigan corporation     TMA Enterprises of Ferndale, LLC Ansley Group, L.L.C. AMC Warren, LLC Buckeye Group, LLC Buckeye Group II, LLC each, a Michigan limited liability company AMC Crown Point, Inc. AMC Hobart, Inc. AMC Schererville, Inc. AMC Valparaiso, Inc. Indy/Michigan Road Inc. Avon Burgers, Inc. Westfield Burgers, Inc.   each, an Indiana corporation AMC Lakeland, Inc. AMC Sarasota, Inc. AMC Ft. Myers, Inc. AMC Largo, Inc. AMC Ybor, Inc. each, a Florida corporation AMC Calumet City, Inc. AMC Homewood, Inc. AMC Lansing, Inc. AMC Lincoln Park, Inc. each, an Illinois corporation  

78

EXHIBIT 9.4

COVENANT COMPLIANCE CERTIFICATE

The undersigned, pursuant to the provisions of Section 9.4 of Credit Agreement dated September 25, 2012 (the “Credit Agreement”) between the Borrowers and RBS Citizens, N.A., do hereby certify as follows:

(a)           That the representations and warranties contained in Section 8 of the Credit Agreement are true and accurate on and as of the date hereof as though made on and as of such date (except to the extent such representations and warranties relate to earlier date),

(b)           That the Borrowers have complied with all conditions and covenants of the Credit Agreement and the other documents executed in connection therewith, and

(c)           That no event has occurred and is continuing which would constitute an Event of Default as specified in Section 12 of the Credit Agreement or would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

(d)           That the calculations attached hereto are true and accurate as of the date hereof.

(signature page to follow)

79

DEFINITIONS

Debt Service Covenant:

Borrower shall cause to be maintained a Debt Service Coverage Ratio on a consolidated basis to be less than 1.20 to 1.0, on the last day of each fiscal quarter of the Borrowers, measured on the basis of the twelve (12) month period immediately preceding the date of such computation, commencing with the fiscal period ending on December 31, 2012.

Lease Adjusted Leverage Ratio Covenant (quarterly basis):

Borrower shall not cause the Lease Adjusted Leverage Ratio on a consolidated basis to be greater than the Applicable Ratio, said ratio to be tested on a quarterly basis for the trailing twelve (12) month period.  “Applicable Ratio” shall mean 5.25:1.00 for calculations made on or before September 31, 2013: 4.75:1.00 for calculations made on or before September 30, 2014; 4.25 to 1.00 for calculations made on or before September 30, 2015; and 3.75:1.00 for calculations made on December 31, 2015 and thereafter.

CALCULATIONS

Debt Service Coverage Ratio

(a) EBITDA (on a consolidated basis, net of extraordinary gains and losses, calculated on a trailing twelve (12) month period)
(b) PLUS:  Pre-opening costs
(c) LESS:  cash taxes
(d) LESS:  maintenance capital expenditures ($10,000 per store per year open more than 12 months)
(e) LESS:  Distributions
(f)  LESS:  change in Borrower shareholder notes
(1) Subtotal (a) plus (b) minus (c) minus (d) minus (e) minus (f)	(A)
(B) Interest Expense and Principal Payments of Indebtedness

80

Debt Service Coverage Ratio: (A) divided by (B)

Maximum Lease Adjusted Leverage Ratio

(1)  Total Funded Debt (as adjusted for New Unit Development)

(2)  Third Party Rent Expense for the twelve (12) month period ending on such date multiplied by eight (8)

(A)  Subtotal (1) plus (2)

(B)  EBITDAR = EBITDA + Pre-opening costs and Third Party Rent Expense for the twelve (12)    month period ending on such date

Maximum Lease Adjusted Leverage Ratio: (A) divided by (B)

Date:		,
	a
	By:
	Name:
	Title:

81

EXHIBIT 10.1

INDEBTEDNESS

Creditor Date Maximum Principal Amount Current Principal Amount

82

SCHEDULE A

LEASEHOLD PREMISES

1.  1600 E. Summit Street, Crown Point, IN

2.  17510 Halsted, Homewood, IL

3.  1250 Torrence Avenue, Calumet City, IL

4.  2464 N. Lincoln Avenue, Chicago, IL

5.  1200 U.S. 41, Schererville, IN

6.  212 East Lincoln Way, Valparaiso, IN

7.  3720 Ridge Road, Lansing, IL

8.  2515 Southlake Mall Drive, Hobart, IN

FEE PREMISES

1.  15745 15 Mile Road, Clinton Township, MI

2. 2817 Kraft Avenue, S.E., Cascade Township, MI

ACQUISITION LOCATIONS

1.  1600 E. Summit Street, Crown Point, IN

2.  17510 Halsted, Homewood, IL

3.  1250 Torrence Avenue, Calumet City, IL

4.  2464 N. Lincoln Avenue, Chicago, IL

5.  1200 U.S. 41, Schererville, IN

6.  212 East Lincoln Way, Valparaiso, IN

7.  3720 Ridge Road, Lansing, IL

8.  2515 Southlake Mall Drive, Hobart, IN

LEASED PROPERTY

83

EX-99.1

Exhibit 99.1

Diversified Restaurant Holdings, Inc. Closes Acquisition of Eight Buffalo Wild Wings® Restaurants

Company on track to increase total restaurant count by 50% to 45 by year end

SOUTHFIELD, Mich., September 26, 2012 -- Diversified Restaurant Holdings, Inc. (OTCQB: DFRH) ("DRH" or the "Company"), the owner, operator, and franchisor of the unique, full-service, ultra-casual restaurant and bar Bagger Dave's Legendary Burgers Tavern® ("Bagger Dave's") and a leading franchisee for Buffalo Wild Wings® ("BWW"), has closed the acquisition of eight BWW's in Indiana and Illinois for $14.7 million, which was announced on August 22, 2012.  Terms of the transaction included an additional franchise agreement for a future location in Indiana.

T. Michael Ansley, President and CEO of DRH, commented, "This transaction expands the scope of our operations, adds a number of new markets to our existing footprint and strategically positions us for future expansion throughout the Midwest.  Our near-term focus will be to integrate the acquired restaurants and realize the opportunities to improve their operating and financial performance.  Longer term, we look to leverage this acquisition by expanding our Bagger Dave's concept within the same footprint, led by the anticipated opening of our first in Indiana by year's end."

The restaurants are located in Northwest Indiana and Southeast Illinois, and includes a location in Lincoln Park, Illinois; one of Chicago's most prominent neighborhoods.  

About Diversified Restaurant Holdings

Diversified Restaurant Holdings, Inc. ("DRH" or the "Company") is the owner, operator, and franchisor of the unique, full-service, ultra-casual restaurant concept, Bagger Dave's Legendary Burger Tavern® ("Bagger Dave's") and is a leading Buffalo Wild Wings® ("BWW") franchisee. Between the two concepts, the Company currently operates 37 restaurants in Michigan, Florida, Illinois and Indiana with an additional four Bagger Dave's and three BWW restaurants scheduled to be opened by year end 2012. The Company routinely posts news and other important information on its website at www.diversifiedrestaurantholdings.com.

Bagger Dave's offers a full-service, family-friendly restaurant and bar with a casual, comfortable atmosphere. The menu features freshly-made burgers (never frozen), accompanied by more than 30 toppings from which to choose, fresh-cut fries, hand-dipped milkshakes, and a selection of craft beer and wine. Signature items include Sloppy Dave's BBQ®, Train Wreck Burger®, and Bagger Dave's Amazingly Delicious Turkey Black Bean Chili®. The Bagger Dave's concept emphasizes local flair by showcasing historical photos of the city in which each restaurant resides and features an electric train that runs above the dining room and bar areas.  Currently, there are seven corporate-owned locations in the state of Michigan and an executed area development agreement to franchise six Bagger Dave's in five states outside of Michigan.  Bagger Dave's first franchisee opened in June 2012 in Cape Girardeau, Missouri. DRH is approved to franchise Bagger Dave's in the states of Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio, and Wisconsin. For more information, visit www.baggerdaves.com.

DRH operates 30 BWW restaurants: 14 in Michigan, eight in Florida, four in Illinois and four in Indiana.  The Company has opened 16 new BWW restaurants in fulfillment of its 32-store Area Development Agreement ("ADA") with franchisor Buffalo Wild Wings, Inc. (NASDAQ: BWLD).  The remaining 16 restaurants under the ADA agreement, along with an additional franchise agreement in Indiana, suggest that the Company will operate 47 BWW's by 2017.

Safe Harbor Regarding Forward Looking Statements

The information made available in this news release contains forward-looking statements which reflect DRH's current view of future events, results of operations, cash flows, performance, business prospects and opportunities. Wherever used, the words "anticipate," "believe," "expect," "intend," "plan," "project," "will continue," "will likely result," "may," and similar expressions identify forward-looking statements as such term is defined in the Securities Exchange Act of 1934. Any such forward-looking statements are subject to risks and uncertainties and the Company's actual growth, results of operations, financial condition, cash flows, performance, business prospects and opportunities could differ materially from historical results or current expectations. Some of these risks include, without limitation, the impact of economic and industry conditions, competition, food and drug safety issues, store expansion and remodeling, labor relations issues, costs of providing employee benefits, regulatory matters, legal and administrative proceedings, information technology, security, severe weather, natural disasters, accounting matters, other risk factors relating to our business or industry and other risks detailed from time to time in the Securities and Exchange Commission filings of DRH. Forward-looking statements contained herein speak only as of the date made and, thus, DRH undertakes no obligation to update or publicly announce the revision of any of the forward-looking statements contained herein to reflect new information, future events, developments or changed circumstances or for any other reason.