Exhibit 10.17
AMENDMENT TO AGREEMENT AND CONSENT
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This AMENDMENT TO AGREEMENT AND CONSENT ("AMENDMENT") is made in Dublin,
Ohio, as of the date set forth below, by and among WENDY'S INTERNATIONAL INC.,
an Ohio corporation ("WENDY'S"), WM LIMITED PARTNERSHP-1998, a Michigan
limited partnership ("FRANCHISEE"), MERITAGE HOSPITALITY GROUP INC., a
Michigan corporation ("MERITAGE"), MHG FOOD SERVICE INC., a Michigan
corporation ("MHG"), XXXXXX X. XXXXXXXX, XX. ("XXXXXXXX"), RES MANAGEMENT,
LLC, a Michigan limited liability company ("RES"), S & Q MANAGEMENT, LLC, a
Michigan limited liability company ("S & Q"), and the ESTATE OF XXX X. XXXXX
(the "ESTATE").
WHEREAS, various parties (including, without limitation, Wendy's,
Franchisee, Meritage, MHG, Xxxxxxxx, S & Q and Xxx X. Xxxxx entered into an
Agreement and Consent dated December 16, 1998 (the "AGREEMENT AND CONSENT")
which provided certain rights with respect to various franchise agreements and
related documents defined therein as the franchise agreements. Those franchise
agreements, the Agreement and Consent, all other amendments to said agreements,
and any subsequent franchise agreement or related documents executed by Wendy's
and Franchisee are collectively referred to herein as the "FRANCHISE
AGREEMENTS"); and
WHEREAS, S & Q was owned equally by Xxxxxxxx and Xxx X. Xxxxx and
pursuant to the Agreement and Consent, S & Q and Xxxxx were named as new
guarantors under the Franchise Agreements along with Meritage, MHG, and
Xxxxxxxx; and
WHEREAS, S & Q is currently the general partner of the Franchisee; and
WHEREAS, Xxx X. Xxxxx died on August 27, 2000; and
WHEREAS, the parties desire to obtain Wendy's consent to (i) terminate,
release and discharge Xxx X. Xxxxx and the Estate of and from any past or
future guaranty obligations, (ii) terminate, release and discharge S & Q of
and from any past or future guaranty obligations, (iii) replace S & Q with RES
as the general partner of the Franchisee, and (iv) add RES as a guarantor of
the Franchise Agreements and related documents concerning the franchise rights
granted by Wendy's to the Franchisee.
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, the parties, intending to be legally bound, mutually agree
as follows:
1. Upon the effective date of this Amendment, Wendy's hereby consents
and all parties hereto agree that (i) Xxx X. Xxxxx and the Estate
shall be terminated, released and discharged of and from any past
or future guaranty obligations, (ii) S & Q shall be terminated,
released and discharged of and from any past or future guaranty
obligations, (iii) RES shall replace S & Q as the general partner
of the Franchisee, and (iv) RES shall be a guarantor of
Franchisee's obligations under the Franchise Agreements. Wendy's
consent is subject to the terms, conditions, representations and
warranties set out herein.
2. RES, Franchisee, Xxxxxxxx, Meritage, and MHG represent, warrant
and agree that RES is a duly organized Michigan limited liability
company and is and shall remain owned solely by Xxxxxxxx. RES,
Franchisee, Xxxxxxxx, Meritage, and MHG represent, warrant and
agree that all legal actions necessary for RES to replace S & Q as
the sole general partner of the Franchisee have been taken or will
be taken within 10 days of the execution of this Amendment. RES
shall occupy and assume all rights, duties and obligations held by
S & Q in each of the Franchise Agreements (including, without
limitation, those described in the Agreement and Consent and in
the Guaranty dated May 30, 1997).
3. The Estate, S & Q, Franchisee, Meritage, MHG, Xxxxxxxx, and RES
hereby jointly and severally agree to indemnify, defend and hold
Wendy's, its successors, assigns, subsidiaries, officers,
directors, employees and agents, harmless from any and all claims,
judgments, actions or expenses (including reasonable attorney
fees), arising out of or otherwise connected with the interest of
any of these parties (or their affiliates) in the Franchisee, the
Franchise Agreements, or otherwise connected with the changes in
ownership as referenced herein, to which changes Wendy's consents
but assumes no responsibility for effectuating. This indemnity
shall be binding upon the respective heirs and/or successors of
the aforementioned parties as a contingent claim and shall survive
any termination of the Franchise Agreements in whole or in part.
4. RES hereby guarantees all of the terms, conditions, covenants, and
obligations of Franchisee under the Franchise Agreements, being
jointly and severally liable with Xxxxxxxx, Meritage, and MHG. RES
warrants, represents and agrees that it has carefully reviewed all
of the terms and conditions of the Guaranty dated May 30, 1997
signed by Xxxxxxxx and MHG and hereby specifically agrees to all
of its terms and conditions and their applicability to RES as a
guarantor thereunder. While such reaffirmation is not necessary
under said documents, Xxxxxxxx and MHG reaffirm their obligations
under the aforementioned Guaranty, and Meritage reaffirms its
obligations under the separate Meritage Guaranty dated May 30,
1997. RES agrees to execute such additional documentation (if any)
as Wendy's may hereafter require to further evidence such
guaranty.
5. Franchisee, the Estate, S & Q, RES, Meritage, MHG, and Xxxxxxxx
hereby agree to execute and date a General Release of All Claims
in the form attached hereto and made a part hereof as Exhibit A
contemporaneously with the execution of this Amendment. Said
parties further agree that if a General Release of All Claims is
returned to Wendy's undated, the effective date of this Amendment
shall also be the effective date of the General Release of All
Claims.
6. Wendy's and Franchisee agree that the official mailing address of
Franchisee shall be as previously set forth in the Agreement and
Consent. Franchisee acknowledges and agrees that notice shall be
duly delivered if given as set forth under the Franchise
Agreements, or by any recognized overnight delivery service, which
affords the sender evidence of delivery or attempted delivery. All
parties
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also agree that notice to Franchisee shall constitute notice to
RES, Xxxxxxxx, Meritage, and MHG.
7. Nothing contained in any documentation between Franchisee, its
past or current guarantors and any of their affiliates, is
intended to conflict with the terms and conditions of this
Amendment or the Franchise Agreements as defined herein or to
impose additional requirements or restrictions on Wendy's except
as may be specifically set forth herein. In the event of a
conflict, the terms and conditions of the Franchise Agreements,
and this Amendment will control over said documents. In the event
of a conflict between the Franchise Agreements and this Amendment,
this Amendment will control, provided every reasonable effort is
made to read this Amendment as supplementing the Franchise
Agreements, except as specifically stated to the contrary. The
parties further agree to the following:
A. ALL PARTIES ACKNOWLEDGE AND AGREE THAT AS TO WENDY'S AND
THE RIGHTS OF WENDY'S, THE FRANCHISE AGREEMENTS AND THIS
AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO.
8. This Amendment sets forth the entire understanding between the
parties concerning the subject matter of this Amendment and
incorporates all prior negotiations and understandings. There are
no covenants, promises, agreements, conditions or understandings,
either oral or written, between the parties relating to the
subject matter of this Amendment other than those set forth
herein. The terms of this Amendment supersede any and all prior
negotiations, agreements, representations, warranties and
statements made during such negotiations (except to the extent
specifically included in this Amendment), and except to the extent
expressly set forth herein, any such prior statements,
representations and agreements are not relied on in any way by the
parties and are null and void. No representation or warranty has
been made by or on behalf of any party to this Amendment (or any
officer, director, employee or agent thereof) to induce the other
party to enter into this Amendment or to abide by or consummate
any transactions contemplated by any terms of this Amendment,
except representations and warranties, if any, expressly set forth
herein.
9. No alteration, amendment, change or addition to this Amendment
shall be binding upon either party unless in writing and signed by
the party to be charged. The submission of any unexecuted copy of
this Amendment shall not constitute an offer to be legally bound
by any provision of the document submitted, either currently or in
the future; and no party shall be bound by this Amendment until it
is fully executed and delivered by all parties.
10. Except as specifically set forth herein, all other terms and
conditions of the Franchise Agreements, including without
limitation the Agreement and Consent and other documents,
concerning the franchise rights granted by Wendy's to the
Franchisee, shall remain in full force and effect.
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and other documents, concerning the franchise rights granted by
Wendy's to the Franchisee, shall remain in full force and effect.
IN WITNESS WHEREOF, this Amendment is effective as of the date it is
executed by Wendy's International, Inc.
WENDY'S INTERNATIONAL, INC.
/s/ W. XXXXXXX XXXX
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Title: W. XXXXXXX XXXX
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Vice President
Date: 6/11/01
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WM LIMITED PARTNERSHP-1998
By RES MANAGEMENT, LLC, Its General Partner
/s/ XXXXXX X. XXXXXXXX, XX.
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XXXXXX X. XXXXXXXX, XX., Member
MERITAGE HOSPITALITY GROUP, INC.
/s/ XXXXXX X. XXXXXXXX, XX.
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XXXXXX X. XXXXXXXX, XX., CEO
MHG FOOD SERVICE INC.
/s/ XXXXXX X. XXXXXXXX, XX.
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XXXXXX X. XXXXXXXX, XX., CEO
By:
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Title: CEO
RES MANAGEMENT, LLC
/s/ XXXXXX X. XXXXXXXX, XX.
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XXXXXX X. XXXXXXXX, XX., Member
/s/ XXXXXX X. XXXXXXXX, XX.
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XXXXXX X. XXXXXXXX, XX., Individually
(SIGNATURE LINES CONTINUED ON THE FOLLOWING PAGE)
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S & Q MANAGEMENT, LLC
/s/ XXXXXX X. XXXXXXXX, XX.
By:------------------------------------
Title: Member
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THE ESTATE OF XXX X. XXXXX
/s/ XXXXXXX XXXXX
By: Xxxxxxx Xxxxx
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Title: Personal Representative of the
Estate of Xxx X. Xxxxx, Deceased
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EXHIBIT A
GENERAL RELEASE OF ALL CLAIMS
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This GENERAL RELEASE OF ALL CLAIMS is made effective this ____ day of
__________________ 2001. As a requirement of and in consideration for the
willingness on the part of Wendy's International, Inc., an Ohio corporation
("Wendy's"), to enter into the Amendment to Agreement and Consent to be executed
contemporaneously herewith, as requested by the undersigned, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, individually and collectively, hereby
unconditionally RELEASE, DISCHARGE and ACQUIT Wendy's, its past and present
shareholders, officers, directors, employees, successors, assigns, agents, and
subsidiaries from any and all liabilities, claims, damages, demands, costs,
indebtedness, expenses, debts, indemnities, compensation, suits, controversies,
actions and causes of action of any kind whatsoever, whether developed or
undeveloped, known or unknown, fixed or contingent, regarding or arising out of
any prior or existing franchise agreement or any other agreement or document
executed by any of the undersigned and Wendy's (or any subsidiary of Wendy's),
any Wendy's Old Fashioned Hamburgers Restaurant (whether currently or previously
owned or operated by the undersigned or any of them), the franchise
relationship, or any other prior or existing business relationship between any
of the undersigned and Wendy's (or any subsidiary of Wendy's), which the
undersigned or any of them individually or collectively has asserted, may have
asserted or could have asserted against Wendy's (or any of the aforementioned
related parties) at any time up to the date of this GENERAL RELEASE OF ALL
CLAIMS, including specifically, without limitation, claims under the Xxxxxxx and
Xxxxxxx Acts and the anti-trust Laws of the United States, and claims arising
from contract, written or oral communications, alleged misstatements of fact,
indebtedness of any kind or nature, and acts of negligence whether active or
passive. This GENERAL RELEASE OF ALL CLAIMS shall survive the assignment or
termination of any of the franchise agreements or other documents entered into
by and between Wendy's and any of the undersigned. This GENERAL RELEASE OF ALL
CLAIMS is not intended as a waiver of those rights of the undersigned which
cannot be waived under applicable state franchise laws.
WITNESS: WM LIMITED PARTNERSHIP - 1998
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Title:
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MERITAGE HOSPITALITY GROUP INC.
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Title:
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MHG FOOD SERVICE INC.
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Title:
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(SIGNATURE LINES CONTINUED ON THE FOLLOWING PAGE)
EXHIBIT A
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XXXXXX X. XXXXXXXX, XX., Individually
RES MANAGEMENT, LLC
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Title:
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S & Q MANAGEMENT, LLC
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Title:
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THE ESTATE OF XXX X. XXXXX
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Title:
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