GENERAL RELEASE
THIS GENERAL RELEASE, dated as of February 24, 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.A. 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 International Fast Food Polska S.P. z.o.o. ("IFFP");
WHEREAS, Citibank (Poland) S.A. ("Citibank") has 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 (the "Credit Agreement");
WHEREAS, It is a condition to the disbursement of funds under the
Credit Agreement that BKC issue a guarantee in favor of Citibank to secure the
repayment by IFFP of amounts borrowed under the Credit Agreement (the
"Guarantee");
WHEREAS, in consideration of the Guarantee, IFFC has agreed to grant
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 of even date herewith
(the "Reimbursement Agreement") by and among IFFC, IFFP and BKC, IFFC has 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 herein;
WHEREAS, pursuant to an Agreement for the Transfer of Title to Share by
way of Security dated of even date herewith (the "Security Agreement") by and
between IFFC, BKC and IFFP, IFFC has 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; and
WHEREAS, in connection with, and in consideration of, the foregoing,
BKC and IFFC have agreed to amend the Development Agreement.
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 has follows:
1. General Release.
(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
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(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 from its obligations under the Development Agreement, 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.
(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.
(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.
(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 Amendment.
(c) Binding on Successors, Transferees and Assigns;
Assignment. This Amendment 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 with 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 Amendment, 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.
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(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 including, without limitation, the
purchase rights provided in Section 1 hereof.
(g) Jurisdiction. Any claim arising out of this Amendment
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 Amendment 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 Amendment 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 Amendment.
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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:____________________________________
Name:
Title:
c/o Xxxxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000, XXX
INTERNATIONAL FAST FOOD POLSKA S.A. Z.O.O.
By:____________________________________
Name:
Title:
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx
_______________________________________
Xxxxxxxx Xxxxxxxx
c/o International Fast Food Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000, XXX
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