AGREEMENT TO ASSIGN LITIGATION PROCEEDS
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THIS AGREEMENT ("Agreement") is made and entered into as of September 11,
1996, between International Fast Food Corporation, a Florida corporation (the
"Buyer") and International Fast Food Polska, a Polish limited liability
corporation ("IFFP").
RECITALS
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A. The Buyer and IFFP (collectively, the "Companies") are parties to that
certain cause of action known as International Fast Food Corporation and
International Fast Food Polska Sp. zo.o. v. Burger King Corporation (Case
No. 95-05130 CA 02) in the Circuit Court of the 11th Judicial Circuit in
and for Dade County, Florida (the "BKC Litigation").
B. IFFP desires to assign the IFFP Assigned Proceeds (as hereinafter defined)
to Buyer in order to discharge part of its obligations to the Buyer and to
assign to Buyer all of IFFP's claims against Burger King Corporation
asserted in the BKC Litigation.
C. Buyer desires to purchase the IFFP Assigned Proceeds for the purchase
price of $125,000.00 (the "Purchase Price), under the terms and conditions
set forth herein.
D. IFFP and Buyer agree that the value of the IFFP Assigned Proceeds cannot
be readily determined and that there is a substantial risk that the IFFP
Assigned Proceeds may have a value that is less than the Purchase Price
and that it may be zero.
E. IFFP entered into similar agreements in January 1996, as amended in July
1996, and assigned part of its proceeds (defined in said agreement, as
amended) to Litigation Funding Inc. (collectively "Agreement with
Litigation Funding Inc."). The Agreement with Litigation Funding Inc. is
attached to this Agreement as Exhibit 1 and incorporated herein by
reference.
F. IFFP owes to the Buyer a sum in excess of $125,000 (Owed Sum) which debt
results from funds advanced and expenses incurred.
G. Buyer will pay the legal fees of IFFP in connection with the BKC
litigation.
H. All terms used in this Agreement shall have the meaning described thereto
in Agreement with Litigation Funding Inc. unless this Agreement provides
otherwise.
AGREEMENT
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NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. PURCHASE PRICE. The Buyer hereby agrees to pay IFFP for the IFFP
Assigned Proceeds (as defined below) the consideration of $125,000.00 payable as
set forth herein.
2. ASSIGNMENT. In consideration of the Purchase Price payable pursuant
to Section 1., IFFP hereby assigns, sets over, transfers and conveys the IFFP
Assigned Proceeds to Buyer free of any claims, liens or other encumbrances
whatsoever, other than the rights of Litigation Funding, Inc. under the
Agreement with Litigation Funding, Inc. In addition, IFFP also assigns to Buyer
all of IFFP's rights and interest in and to all claims and causes of action
alleged in arising out of the BKC Litigation.
3. IFFP PROCEEDS. For the purposes hereof the "IFFP Assigned Proceeds"
shall be defined as the difference between the Proceeds and the Assigned
Proceeds (as such terms are defined under the Agreement with Litigation Funding,
Inc.) to which IFFP shall be entitled with exclusion of other parties.
a. Proceeds other than cash shall be deemed to have a value equal
to the fair market value of such assets on the date such Proceeds payable
to IFFP or Buyer are, for any reasons whatsoever, not to be fully paid
within ninety (90) days after a Judgment or Settlement, then the net
present value of the cash Proceeds to be paid shall be calculated,
applying a discount rate equivalent to the prime lending rate of Citibank,
N.A., by an independent certified public accountant (the "Appraiser")
selected by IFFP and the Buyer. The value of non-cash Proceeds (including,
but not limited to Debt Relief Proceeds and Contract Modifications
Proceeds) shall be determined by the Appraiser. To the extent that any of
the foregoing provisions of this paragraph are inconsistent with the
provisions of this Agreement and/or the Agreement with Litigation Funding,
Inc., specifically pertaining to the calculation of Sales Proceeds, the
provisions of this Agreement and/or the Agreement with Litigation Funding,
Inc., specifically pertaining to the calculation of Sales Proceeds shall
prevail if Sales Proceeds are being calculated.
b. In the event that IFFP and the Buyer cannot agree upon an
Appraiser, IFFP and the Buyer agree to retain as the Appraiser the first
firm on an alphabetical list of the United States of America's six largest
accounting firms which is willing to perform the Appraisal and does not
have a conflict. The computation of the market value of non-cash Proceeds
by the Appraiser shall be final and binding upon the parties hereto. IFFP
and the Buyer shall share equally the cost of Appraisal.
4. SETTLEMENT OF DEBTS. IFFP hereby acknowledges it owes Buyer in
excess of the Purchase Price. The parties agree that, as a result of payment by
crediting the Purchase Price, the amounts owned by IFFP to Buyer shall be
reduced by the Purchase Price.
5. ADDITIONAL COVENANTS OF IFFP.
a. IFFP agrees that IFFP shall pay to Buyer all Proceeds to which Buyer
is entitled pursuant to this Agreement promptly after receipt, in no event
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later than ten (10) business days following IFFP's receipt of such
Proceeds, and all such amounts shall be paid without offset or deduction
of any amounts, other than any adjustments based upon the rights of
Litigation Funding, Inc.
b. IFFP will make, execute and deliver to Buyer any and all
powers of attorney and other instruments, papers and documents which it
may lawfully make, execute and deliver, which may be or become necessary
to carry out and effectuate the intent and purposes of this Agreement, and
otherwise proper or convenient to enable Buyer to reduce to possession,
collect, enforce, own or enjoy any and all rights and benefits in, to,
with respect to, or in connection with the BKC Litigation, the IFFP
Assigned Proceeds, or any part of portion thereof, and upon Buyer's
request, to take, in its corporate name, any and all steps and to do any
and all things which may be or become convenient or desirable to enable
Buyer to enforce such rights (including but not limited to the execution
of UCC-1s and other security instruments evidencing Buyer's interests in
the IFFP Assigned Proceeds, and the execution and delivery of its notice
to Burger King Corporation regarding the assignment of Proceeds to the
Buyer hereunder to the extend required by law).
6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants that:
a. The Buyer shall be responsible for the payment of any costs of
litigation, including, without limitation, attorneys fees, witness fees,
out-of-pocket expenses and other charges incident to the prosecution of
the BKC Litigation.
b. The Buyer is not aware of any current settlement offers by the
BKC Entities which, if accepted by the IFFP, would entitle the Buyer to
compensation pursuant to the terms of this Agreement.
c. The Buyer represents and acknowledges that all matters
relating to IFFP and this Agreement have been explained to its
satisfaction and that it understands the speculative nature and risks
involved in its investment.
d. The Buyer is acquiring the IFFP Assigned Proceeds for
investment solely for its own account and not for distribution, transfer,
or resale to others.
e. The Buyer has been afforded the opportunity to ask questions
of, and receive answers from, IFFP and to obtain any additional
information, to the extent that IFFP possesses such information or could
have acquired it without unreasonable effort or expense, and has in
general had access to all information it deemed material to an investment
decision with respect to its acquisition of the IFFP Assigned Proceeds.
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f. The Buyer acknowledges that it has discussed this Agreement
with counsel and understands the meaning and legal consequences of the
representations and warranties herein.
g. Buyer acknowledges that its rights and interests in the IFFP
Assigned Proceeds is subject and subordinate to all rights granted by IFFP
in the Agreement with Litigation Funding, Inc.
7. REPRESENTATIONS AND WARRANTIES OF IFFP. IFFP hereby represents and
warrants to the Buyer, as follows:
a. IFFP is a corporation duly organized, validly existing and in
good standing under the laws of the Republic of Poland, with corporate
power to own its properties and to conduct in business as now conducted.
b. IFFP has full legal right, power and authority to enter into
and perform this Agreement, and the execution and delivery of this
Agreement by IFFP and the consummation of the transactions contemplated
hereby have been duly authorized by the Board of Directors of IFFP. This
Agreement constitutes a valid and binding agreement of IFFP.
c. IFFP is not aware of any offers by the BKC Entities which, if
IFFP, would entitle the Buyer to compensation pursuant to the terms of
this Agreement.
d. IFFP has made no admission of insolvency, has made no
assignment for the benefit of creditors, and has paid its obligations in
the ordinary course of business.
8. MISCELLANEOUS.
a. IFFP and Buyer shall each pay their own expenses and costs
(including without limitation all counsel fees) in connection with this
Agreement and the transactions contemplated hereby.
b. The assignment of the IFFP Assigned Proceeds pursuant to this
Agreement is without recourse, and IFFP does not guarantee the payment of
judgments which may be entered in its favor. However, IFFP shall not (i)
release, discharge or otherwise reduce the benefits of any judgment in its
favor arising in connection with the BKC Litigation, nor (ii) enter into a
settlement with respect to the BKC Matter without the Buyer's prior
written consent.
c. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this
Agreement shall be construed as if such invalidity, illegality or
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unenforceability shall not affect any other provision hereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
d. Any notice required to be given pursuant to this Agreement
must be in writing and may be given by registered or certified mail and,
if given by registered or certified mail, shall be deemed to have been
given and received when a registered or certified letter containing such
notice, properly addressed with postage prepaid, is deposited in the
United States mail; and if given otherwise than by registered or certified
mail, it shall be deemed to have been given when delivered to and received
by the party to whom addressed. Notices shall be given to the parties
hereto at the following addresses:
If to the Buyer:
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Xxxxxxx Xxxxx, Chief Financial Officer
International Fast Food Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
If to IFFP:
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Xxxx Xxxxxxxxxx, President
International Fast Food Polska, Sp. zo.o.
Xxxxx 0/0, 0xx Xxxxx
00-000 Xxxxxxxx, Xxxxxx
Any party hereto may, by giving five calendar days' written notice to the
other parties, designate any other address in substitution of the
foregoing address to which notices shall be given.
f. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legal representatives,
successors and permitted assigns, provided that none of the parties hereto
may transfer or assign all or any part of their rights or obligations
hereunder except to the extent expressly permitted herein. The Buyer may
assign its rights and obligations hereunder to an affiliate to any third
party.
g. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida. Each of the parties to
this Agreement hereby irrevocably submit to the jurisdiction of the state
or federal courts located in Dade County, Florida in connection with any
suit, action or proceeding that the suit, action or proceeding arising out
of or is brought relating to this Agreement and the transactions
contemplated hereby, and hereby agree not to assert, by way of motion, as
a defense, or otherwise in any suit, action or proceeding that the suit,
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action or proceeding is brought in an inconvenient forum, that the venue
of the suit, action or proceeding is improper or that this Agreement or
the subject matter hereof may not be enforced by such courts. IFFP
expressly waives any rights it may have which conflict with the foregoing
agreements of IFFP in this paragraph.
IFFP AND THE BUYER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY AND ALL RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, CROSSCLAIMS AND THIRD
PARTY CLAIMS) ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT
OR THE SECURITY INTEREST GRANTED HEREIN. EACH OF THEM HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF THE OTHER NOR THE OTHER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS JURY WAIVER PROVISION. EACH
OF THEM ACKNOWLEDGES THAT THIS JURY WAIVER HAS BEEN A MATERIAL INDUCEMENT
TO THE BUYER TO ENTER INTO THIS AGREEMENT.
h. This Agreement constitutes the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof, and may not be modified or amended except in writing signed
by all of the parties hereto.
i. No term or condition of this Agreement shall be deemed to have
been waived nor shall there be any estoppel to enforce any provision of
this Agreement except by written instrument of the party charged with such
waiver or estoppel.
j. IFFP shall defend and hold Buyer harmless against all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses),
arising from this Agreement, provided written notice of any claim is
furnished to IFFP on or prior to the second anniversary hereof and such
liability, loss or damage is not the result of any (i) actual untruth,
inaccuracy or breach, of or default under any representation, warranty,
covenant or agreement of Buyer made herein; (ii) violation of law by the
Buyer; or (iii) violation of law by an affiliate to the Buyer for the
benefit of the Buyer. The Buyer shall have the right to appoint counsel of
its own choosing to defend any litigation for which IFFP holds Buyer
harmless. Buyer shall, with respect to the representations, warranties,
covenants and agreements made by Buyer herein, indemnify, defend and hold
the IFFP harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including legal and
accounting fees and expenses), arising from the actual or alleged untruth,
inaccuracy or breach of or default under any of such representations,
warranties, covenants or agreements of Buyer provided that written notice
of such claim for indemnification is furnished to Buyer on or prior to the
second anniversary hereof.
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k. In case any one or more of the covenants and/or agreements set
forth in this Agreement shall have been breached, the non-breaching party
may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement.
The party prevailing on the merits in any such suit or action, shall be
indemnified against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including legal and
accounting fees and expenses).
l. The Buyer hereby agrees to cover, indemnify, defend and hold
IFFP harmless from and against the full amount of all claims, costs,
damages, judgments, fees, expenses, obligations, taxes, assessments,
liabilities, actions, suits or charges including without limitation,
reasonable trial and attorneys fees and expenses made against IFFP or to
be paid by IFFP in connection with BKC Litigation.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same agreement. The copies of manually executed signature pages shall be
deemed originals until the parties have received manually executed signature
pages.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER:
INTERNATIONAL FAST FOOD CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
INTERNATIONAL FAST FOOD POLSKA SP. Zo.o.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx, President
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