Exhibit 10.5
GENERAL RELEASE
THIS GENERAL RELEASE, dated as of October 21, 1999 ("Agreement"), is
entered into by and among Burger King Corporation, a Florida corporation
("BKC"), International Fast Food Corporation, a Florida corporation ("IFFC"),
International Fast Food Polska S.P. z.o.o., a limited liability company
organized under the laws of Poland ("IFFP"), and Xxxxxxxx Xxxxxxxx ("Xxxxxxxx",
and together with IFFP and IFFC, the "IFFC Parties").
WHEREAS, pursuant to a Development Agreement by and among BKC and IFFC
(the "Development Agreement") BKC has granted IFFC the right to develop new
"Burger King" restaurants in the Republic of Poland;
WHEREAS, IFFC is the owner of all the issued and outstanding shares
(the "IFFP Shares") of IFFP;
WHEREAS, on February 24, 1999, Citibank (Poland) S.A. ("Citibank")
agreed to provide credit to IFFP in the aggregate amount of U.S. $5,000,000,
pursuant to a credit agreement dated February 24, 1999 (as amended, the "Credit
Agreement");
WHEREAS, as a condition to the disbursement of funds under the Credit
Agreement, BKC issued a guarantee in favor of Citibank to secure the repayment
by IFFP of amounts borrowed under the Credit Agreement (as amended, the
"Guarantee");
WHEREAS, in consideration of the Guarantee, IFFC granted BKC a
perfected security interest in the IFFP Shares to secure BKC's claims which may
arise as a result of the payment by BKC of any amounts under the Guarantee;
WHEREAS, pursuant to a Reimbursement Agreement dated February 24, 1999
(such agreement, as amended from time to time, is referred to herein as the
"Reimbursement Agreement") by and among IFFC, IFFP and BKC, IFFC agreed to
reimburse BKC for any payments that it may be required to make to Citibank under
the Guarantee, together with related costs, expenses and interest, as more fully
said forth therein;
WHEREAS, pursuant to an Agreement for the Transfer of Title to Shares
by way of Security dated February 24, 1999 (such agreement, as amended from time
to time, is referred to herein as the "Security Agreement") by and between IFFC,
BKC and IFFP, IFFC granted BKC a security interest in and to the IFFP Shares,
which permits BKC to retain the IFFP Shares in the event that BKC is required to
make any payment under the Guarantee and neither IFFC nor IFFP reimburse BKC for
the amount of such payment and other items under the Reimbursement Agreement;
WHEREAS, pursuant to a Purchase Agreement dated February 24, 1999 (the
"Purchase Agreement"), the parties agreed that, in the event that BKC acquires
the IFFP Shares pursuant to the exercise of its rights under the Security
Agreement, BKC will sell the IFFP Shares held by BKC to Xxxxxxxx;
WHEREAS, Citibank has agreed to increase the amount which may be
borrowed under the Credit Agreement to an aggregate amount of U.S.$8,000,000,
and BKC has agreed to increase the amount of the Guarantee to secure the
repayment by IFFP of amounts borrowed under the Credit Agreement;
WHEREAS, in the event that Citibank is willing to further increase the
amount which may be borrowed under the Credit Agreement, BKC has agreed to
increase the amount of the Guarantee to a maximum aggregate amount of
U.S.$10,000,000, upon the terms, and subject to the conditions, of that certain
Future Advances Agreement dated of even date herewith by and among BKC, IFFC and
IFFP; and
WHEREAS, the parties hereto have agreed to amend and restate the
documents executed in connection with the transactions described above (such
documents are collectively referred to herein as the "Transaction Documents") to
reflect the increased amount available under the Credit Agreement and the
Guarantee and to grant BKC additional security for the performance of IFFC's,
IFFP's and Xxxxxxxx'x obligations under the Transaction Documents.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
1. GENERAL RELEASE.
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(a) As a material inducement to enter into the Guarantee, the
IFFC Parties hereby irrevocably and unconditionally release, acquit and forever
discharge BKC, including its shareholders, officers, directors, consultants,
agents, predecessors, successors, assigns, employees, representatives,
affiliates, and all persons acting by, through, under or in concert with any of
them (such persons are collectively referred to herein as the "BKC Parties"),
whether in their individual or professional capacities, from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements
(including, without limitation, the Development Agreement and any franchise
agreements), controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including reasonable attorney's fees
and costs incurred) of any nature whatsoever, known or unknown, suspected or
unsuspected, relating to any matter up to and through the date hereof; provided,
that nothing contained herein shall be deemed to relieve the parties to the
Development Agreement and/or Franchise Agreements from their obligations under
the Development Agreement and/or Franchise Agreements, as amended from time to
time, from and after the date hereof.
(b) The IFFC Parties agree not to bring any action, suit or
proceeding whatsoever (including the initiation of governmental proceedings or
investigations of any type) against any of the BKC Parties hereto for any matter
or circumstance concerning which the IFFC Parties have released the BKC Parties
under this Agreement. Furthermore, the IFFC Parties agree not to encourage any
other person or suggest to any other person that he or it institute any legal
action against the BKC Parties.
2. LEGAL ADVICE; RELIANCE.
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(a) The parties represent and acknowledge that they have been
given adequate time with which to consider this Agreement and have been advised
to discuss all aspects of this Agreement with their private attorney and that
each party has in fact done so, that each party has carefully read and fully
understands all the provisions of this Agreement and that each party has
voluntarily entered into this Agreement, without duress or coercion.
(b) Each party represents and acknowledges that in executing
this Agreement they have not relied and do not rely upon any representation or
statements which are not set forth in this Agreement made by any other party
hereto or by any of the agents, representatives or attorneys of such party or
parties with regard to the subject matter, or relating to the basis or effect,
of this Agreement.
3. MISCELLANEOUS.
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(a) THIRD PARTY BENEFICIARIES. All releasees under Section 1
who are not signatories to this Agreement shall be deemed to be third party
beneficiaries of this Agreement to the same extent as if they were signatories
hereto.
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(b) FURTHER ASSURANCES. Each of the parties hereto agrees with
the other parties hereto that it will cooperate with such other parties and will
execute and deliver, or cause to be executed and delivered, all such other
instruments and documents, and will take such other actions, as such other
parties may reasonably request from time to time to effectuate the provisions
and purposes of this Agreement.
(c) BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. This Agreement shall be binding upon the parties hereto and their
respective successors, transferees and assigns. Notwithstanding the foregoing,
none of the parties hereto may assign any of its obligations hereunder without
the prior written consent of the other parties hereto; provided, that BKC may
assign its rights and delegate its duties under this Agreement to one or more of
its subsidiaries or affiliates.
(d) AMENDMENTS; WAIVERs. No amendment to or waiver of any
provisions of this Agreement, nor consent to any departure therefrom by any
party hereto, shall in any event be effective unless the same shall be in
writing and signed by such party, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(e) NO WAIVER; REMEDIES. No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any right. The remedies herein provided are cumulative and not exclusive of
any remedy provided by law.
(f) EXPENSES. IFFC shall pay or reimburse BKC for all of its
legal, accounting and other expenses directly related to the consummation of the
transactions contemplated hereby, together with the costs and expenses of
enforcing any of its rights hereunder.
(g) JURISDICTION. Any claim arising out of this Agreement
shall be brought in any state or federal court located in Miami-Dade County,
Florida, United States. For the purpose of any suit, action or proceeding
instituted with respect to any such claim, each of the parties hereto
irrevocably submits to the jurisdiction of such courts in Miami-Dade County,
Florida, United States. Each of the parties hereto further irrevocably consents
to the service of process out of said courts by mailing a copy thereof by
registered mail, postage prepaid, to such party and agrees that such service, to
the fullest extent permitted by law, (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding and
(ii) shall be taken and held to be a valid personal service upon and a personal
delivery to it. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in any such court located in Miami-Dade County, Florida, United States, and any
claim that any such suit, action or proceeding brought in such court has been
brought in an inconvenient forum. Notwithstanding the foregoing, at the option
of BKC, any claims against IFFP hereunder shall be settled by the Arbitration
Court at the Polish Chamber of Commerce with its seat in Warsaw in accordance
with its rules, and all such proceedings will be conducted in the English
language.
(h) GOVERNING LAW; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Florida, United States, without regard to any conflict of law, rule or principle
that would give effect to the laws of another jurisdiction.
(i) NOTICES. All notices, requests and other communications to
any party hereunder shall be writing (including facsimile transmission or
similar writing) and shall be given to such party, addressed to it, at its
address or facsimile number set forth on the signature pages below, or at such
other address or facsimile number as such party may hereafter specify for such
purpose by notice to the other party. Each such notice, request or communication
shall be deemed effective when received at the address or facsimile number
specified below.
(j) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which counterparts, when so executed and delivered,
shall be deemed to be an original, and all of which counterparts, when taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date indicated.
BURGER KING CORPORATION
By:
Name:
Title:
c/o Burger Xxxx XXX
Xxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx XX00XX
INTERNATIONAL FAST FOOD CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Chairman and CEO
c/o Xxxxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000,
XXX
INTERNATIONAL FAST FOOD POLSKA
S.P. Z.O.O.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Authorized Signature
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx
/s/ Xxxxxxxx Xxxxxxxx
----------------------
Xxxxxxxx Xxxxxxxx
c/o International Fast Food
Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000,
XXX
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