FRANCHISE TERMINATION AGREEMENT
This FRANCHISE TERMINATION AGREEMENT ("Agreement") is entered into as
of this 2nd day of January, 1997 by and between THE WESTERN TRANSMEDIA COMPANY,
INC., a Delaware corporation (the "Franchisee"), and TRANSMEDIA NETWORK INC., a
Delaware corporation (the "Franchisor").
W I T N E S S E T H:
WHEREAS, the Franchisee and the Franchisor have entered into a
Franchise Agreement, dated December 9, 1991, as amended (the "Franchise
Agreement"), pursuant to which the Franchisor granted to the Franchisee the
exclusive right to acquire rights to receive food and beverage credits from
participating restaurants and other establishments located in the States of
California, Oregon, Washington and parts of Nevada that accept the Transmedia
Card (the "Rights to Receive") and to sell such Rights to Receive to holders of
the Transmedia Card;
WHEREAS, the Franchisee and the Franchisor have entered into a Purchase
Agreement, dated as of November 15, 1996 (the "Purchase Agreement"), pursuant to
which the Franchisee agreed to sell to the Franchisor, and the Franchisor agreed
to purchase from the Franchisee, all of the Franchisee's Rights to Receive and
certain other related assets of the Franchisee; and
WHEREAS, the Franchisee and the Franchisor agreed that at the closing
of the transactions contemplated by the Purchase Agreement, the Franchise
Agreement would be completely and forever terminated and all of the rights
granted to the Franchisee thereunder would revert to the Franchisor;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and in the Purchase Agreement, the parties hereto hereby agree
as follows:
1. TERMINATION. The Franchise Agreement is hereby and forever
terminated, effective immediately, and all rights granted to the Franchisee
thereunder shall hereby revert to the Franchisor. The Franchisee represents that
it has not previously transferred to any other person any of the rights granted
to it under the Franchise Agreement. The Franchisee agrees that it shall
immediately cease to hold itself out in any way as a franchisee of the
Franchisor or to do anything which would indicate any relationship between the
Franchisee and the Franchisor.
2. RELEASES.
a. BY THE FRANCHISEE. Except as set forth in the Purchase Agreement,
the Franchisee, for itself and on behalf of its subsidiaries, affiliates,
shareholders, directors, officers, agents, successors and assigns, hereby
releases, acquits and forever discharges the Franchisor and its subsidiaries,
affiliates, shareholders, directors, officers, agents, successors and assigns
from any and all costs, expenses, attorneys' fees, losses, claims, damages,
demands, obligations, liability or causes of action of any nature whatsoever
arising out of, resulting from or relating to the Franchise Agreement, whether
known or unknown, whether based on acts, omissions or both, whether based on
tort, contract, statutory obligations or any other theory of recovery, whether
legal or equitable, whether for compensatory, punitive or any other form of
damages or for any other form of relief (the "Franchisee Released Claims").
b. BY THE FRANCHISOR. Except as set forth in the Purchase Agreement,
the Franchisor, for itself and on behalf of its subsidiaries, affiliates,
shareholders, directors, officers, agents, successors and assigns, hereby
releases, acquits and forever discharges the Franchisee and its subsidiaries,
affiliates, shareholders, directors, officers, agents, successors and assigns
from any and all costs, expenses, attorneys' fees, losses, claims, damages,
demands, obligations, liability or causes of action of any nature whatsoever
arising out of, resulting from or relating to the Franchise Agreement, whether
known or unknown, whether based on acts, omissions or both, whether based on
tort, contract, statutory obligations or any other theory of recovery, whether
legal or equitable, whether for compensatory, punitive or any other form of
damages or for any other form of relief (the "Franchisor Released Claims").
3. UNKNOWN CLAIMS.
a. BY THE FRANCHISEE.
(1) The Franchisee understands and agrees that the Franchisee
Released Claims include all claims of every nature and kind whatsoever, whether
known or unknown, suspected or unsuspected, and has read and understands, and
hereby expressly waives to the fullest extent permitted by law any right or
benefit it now has, or in the future may have in any capacity, under the
provisions of Section 1542 of the Civil Code of California, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
(2) The Franchisee acknowledges that it may hereafter discover
facts different from or in addition to those which it now knows or believes to
be true with
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respect to the Franchisee Released Claims and agrees that the release set forth
in Paragraph 2 hereof shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery thereof.
b. BY THE FRANCHISOR.
(1) The Franchisor understands and agrees that the Franchisor
Released Claims include all claims of every nature and kind whatsoever, whether
known or unknown, suspected or unsuspected, and has read and understands, and
hereby expressly waives to the fullest extent permitted by law any right or
benefit it now has, or in the future may have in any capacity, under the
provisions of Section 1542 of the Civil Code of California, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
(2) The Franchisor acknowledges that it may hereafter discover
facts different from or in addition to those which it now knows or believes to
be true with respect to the Franchisor Released Claims and agrees that the
release set forth in Paragraph 2 hereof shall be and remain effective in all
respects notwithstanding such different or additional facts or the discovery
thereof.
4. MISCELLANEOUS.
a. MODIFICATION. This Agreement may not be modified or amended
except by a written agreement executed by the Franchisee and the Franchisor.
b. ATTORNEYS' FEES. In the event legal action is commenced to
enforce or interpret, or for breach of, any provision of this Agreement, the
prevailing party shall be entitled to recover from the losing party costs and
expenses incurred, not limited to taxable costs, and reasonable attorneys' fees
incurred by the prevailing party, in addition to all other relief and remedies
to which the prevailing party may be entitled.
c. SURVIVAL OF COVENANTS, ETC. All agreements, conditions,
acknowledgments, representations and other obligations set forth in this
Agreement shall survive the execution hereof.
d. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York, without giving effect to the choice of law provisions
thereof.
e. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement
set forth the entire agreement and understanding among the parties as to the
subject matter of this
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Agreement and merge and supersede all prior discussions, agreements and
understandings among them with respect thereto.
f. COUNTERPARTS. This instrument may be executed in any number of
counterparts and each counterpart shall be deemed to be an original instrument.
IN WITNESS HERETO, the parties hereto have caused this Agreement to be
executed as of the date set forth above.
THE WESTERN TRANSMEDIA COMPANY,
INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
TRANSMEDIA NETWORK INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title:
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