EXHIBIT 10.1
SETTLEMENT AND LIMITED RELEASE AGREEMENT
THIS SETTLEMENT AND LIMITED RELEASE AGREEMENT ("Agreement")
is made and entered into by and between GIANT GROUP, LTD.
("GIANT"), on the one hand, and Fidelity National Financial, Inc.
("Fidelity") and CKE Restaurants, Inc. ("CKE"), on the other
hand, as of March 21, 1997.
Any reference in this Agreement to a "party" or "the
parties" shall refer to a party or the parties to this Agreement.
This Agreement is entered into with reference to the
following facts:
RECITALS
A. Certain disputes (the "Disputes") have arisen between
GIANT, on the one hand, and Fidelity and CKE, on the other hand,
concerning a purchase and standstill agreement made as of April
26, 1996 by and between them (the "Purchase Agreement").
B. The parties are each desirous of settling and fully and
finally resolving the Disputes concerning the Purchase Agreement.
C. It is not the intent nor the desire of the parties
hereto that this Agreement should in any way interfere with,
alter, modify or supersede the Purchase Agreement, except as
expressly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, obligations and promises hereinafter set forth, IT IS
HEREBY AGREED BY THE PARTIES AS FOLLOWS:
1. OBLIGATIONS AND RELEASES
a. Paragraph 3.b of the Purchase Agreement is hereby
deemed deleted, null and void. Any and all rights of Fidelity
and CKE, and any and all obligations of GIANT, under said
paragraph hereby are fully relinquished and waived.
b. GIANT, on behalf of its parent corporations,
subsidiary corporations, affiliated corporations, shareholders,
officers, directors, partners, agents, representatives,
employees, attorneys, successors, predecessors, assignees, heirs,
and insurers hereby absolutely and forever releases and
discharges Fidelity and CKE, their parent corporations, subsidi-
ary corporations, affiliated corporations, shareholders,
officers, directors, partners, agents, representatives,
employees, attorneys, successors, predecessors, assignees, heirs,
and insurers from any and all claims, demands, damages, debts,
obligations and liabilities arising from the facts, circumstances
and representations made by the parties leading to the execution
of the Purchase Agreement by the parties hereto. Nothing in this
paragraph shall be construed as releasing Fidelity and CKE from
their obligations under the Purchase Agreement except as
expressly set forth in this Agreement.
c. Fidelity and CKE, on behalf of their parent
corporations, subsidiary corporations, affiliated corporations,
shareholders, officers, directors, partners, agents, representa-
tives, employees, attorneys, successors, predecessors, assignees,
heirs, and insurers hereby absolutely and forever release and
discharge GIANT, its parent corporations, subsidiary corpora-
tions, affiliated corporations, shareholders, officers,
directors, partners, agents, representatives, employees,
attorneys, successors, predecessors, assignees, heirs, and
insurers from any and all claims, demands, damages, debts,
obligations and liabilities arising from the facts, circumstances
and representations made by the parties leading to the execution
of the Purchase Agreement by the parties hereto. Nothing in this
paragraph shall be construed as releasing GIANT from any of its
obligations under the Purchase Agreement except as expressly set
forth in this Agreement.
2. SUCCESSORS, ASSIGNS AND AFFILIATES
All of the terms and conditions of this Agreement shall be
binding upon, and shall inure to the benefit of the parties, and
each of their heirs, beneficiaries, successors, assigns, subsidi-
aries and affiliated corporations.
3. REPRESENTATION BY COUNSEL AND INTERPRETATION
The parties, and each of them, at all times material hereto,
have had the opportunity to consult independently with legal
counsel of their own choosing concerning their obligations and
rights affected by this Agreement, its form and content, and the
advisability of executing it. Therefore, the parties each
acknowledge and agree that this Agreement shall not be deemed to
have been prepared or drafted by one party or another, and that
its interpretation shall not be resolved by any rule of inter-
pretation providing for interpretation against the drafting party
who causes any uncertainty.
4. THIS AGREEMENT IS NOT TO BE CONSTRUED AS AN ADMISSION
Acceptance of this Agreement and the payments and other
considerations referenced herein are neither intended to be nor
shall be construed as an admission of liability on the part of
any party to this Agreement, by whom liability is expressly
denied; they are also neither intended to be nor shall be
construed as an admission of any fact.
5. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties pertaining to the Disputes as set forth in this Agreement
and supersedes all prior or contemporaneous settlement agree-
ments, understandings, writings, communications, representations,
negotiations, or discussions, whether oral or written, except as
specifically set forth herein. No supplements, modifications,
waivers, or terminations of this Agreement shall be binding
unless executed in writing by the parties to be bound thereby.
No waiver of any provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether
or not similar, nor shall any such waiver constitute a continuing
waiver, unless otherwise expressly provided). Each party
warrants, promises, and represents that it is not relying upon
any oral representations, promise or statement in executing this
Agreement, and that is not relying upon any promise or represen-
tation contained in any other written agreement, except the
Purchase Agreement.
6. HEADINGS
The headings contained in this Agreement have been inserted
for convenience only and in no way define, enlarge or limit the
scope or interpretation of any provision.
7. COUNTERPARTS
This Agreement may be executed in any number of counter-
parts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
8. GOVERNING LAW
This Agreement has been made and entered into in Los Angeles
County, California, and shall be construed in accordance with,
and be governed by, the laws of the State of California.
9. UNDERSTANDING THE AGREEMENT
Each of the undersigned (on behalf of himself, herself and
the party for whom they sign) warrants and represents that he/she
has full authority to enter into this Agreement on behalf of the
party for whom they sign and to make it binding in accordance
with its terms and that he/she has read, understands, and agrees
fully to all of the terms and conditions of this Agreement. Each
of the parties signs this Agreement freely, knowingly and will-
ingly, and hereby warrants and represents that he/she has not
done it under duress of any kind.
10. MODIFICATION OR WAIVER
This Agreement cannot be modified, superseded or changed
except by written instrument signed by all the parties hereto.
No waiver of any of the provisions of this Agreement shall be
deemed to constitute a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the
party making the waiver.
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date first above written.
GIANT GROUP, LTD., a Delaware
corporation
By: \s\ Xxxxx Xxxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Director
Fidelity National Financial, Inc.,
a Delaware corporation
By: \s\ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
and General Counsel
CKE Restaurants, Inc., a Delaware
Corporation
By: \s\ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
and General Counsel
