SECOND AMENDMENT TO AGREEMENT TO ASSIGN LITIGATION PROCEEDS
-----------------------------------------------------------
THIS SECOND AMENDMENT TO AGREEMENT ("Second Amendment to Agreement") is
made and entered into as of March 13, 1997 between International Fast Food
Corporation, a Florida corporation (the "Company"), International Fast Food
Polska a Polish limited liability corporation ("IFFP") and Litigation Funding
Inc., a Florida corporation (the "Buyer"). (IFFP and the Company are
collectively referred to herein as "The Companies").
A. The Company, IFFP and the Buyer, as of January 25, 1996, entered
into that certain Agreement to Assign Litigation Proceeds (the "Original
Agreement"), pursuant to which Buyer agreed to pay up to $500,001 in exchange
for the "Assigned Proceeds" (as such term is defined in the Original Agreement).
B. The Company, IFFP and the Buyer, as of July'3, 1996, entered into
that certain Amendment to Agreement to Assign Litigation Proceeds (the "First
Amendment"). pursuant to which Buyer agreed to pay additional sums in exchange
for a greater amount of the "Assigned Proceeds." (The First Amendment and the
Original Agreement are herein collectively referred to as the "Litigation
Funding Agreement"). C. On or about September 11, 1996, IFFP assigned ALL of its
right, title and interest to the proceeds from the BKC Litigation to the
Company.
D. Concurrently herewith, the BKC Litigation is being settled pursuant
to a Settlement Agreement by and amongst the Company, IFFP and Burger King
Corporation ("BKC") dated on or about March 11, 1997 (the "Settlement
Agreement"). The Settlement Agreement requires the Company to invest in, or loan
to, IFFP $3,000,000 of the cash payment made by BKC to IFFC concurrently with
the execution thereof (the "Additional Investment").
E. The Company cannot make the commitment to the Additional without
modifying its obligation under the Litigation Funding
F. The parties hereto believe it is their respective best interests for
the Company and IFFP to execute and deliver the Settlement Agreement and to
comply with its provisions.
G. It is the intent of the Companies and Buyer that this Second
AMENDMENT to Agreement not be considered a novation of the Litigation Funding
Agreement, which rename m full force and effect The provisions of the Original
Agreement and First Amendment shall remain unaffected except as provided in THIS
Second Amendment to Agreement.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreement hereinafter set forth, the parties hereto agree as follows:
1. TERMINATION OF ESCROW. The parties hereto agree that the Company
shall not be obligated to deliver Proceeds to the Escrow Agent, as contemplated
by Section 2(h) of the Original Agreement.
2. CONSENT BY BUYER. Without waiving its rights to the Assigned
Proceeds, as defined in the Litigation Funding Agreement, Buyer hereby agrees to
the Additional investment, as contemplated by the Settlement Agreement. Buyer
and the Companies agree that, if upon a determination of the value of the
Proceeds: as contemplated by Section 2(f) of the Original Agreement, the Company
shall have insufficient funds (other than the funds for the Additional
Investment) to pay the Assigned Proceeds in cash, then to the extent the
Company's funds are insufficient to pay the Assigned Proceeds in full, Buyer and
the Company agrees to negotiate in good faith for the payment of other mutually
satisfactory consideration, including but not limited to shares of capital stock
in the Company, stock warrants or other stock rights. If within 90 days after
the completion of the appraisal contemplated by Section 2(f) of the Original
Agreement, the parties are unable to agree to mutually acceptable substitute
consideration for the unpaid amount of the. Assigned Proceeds, the Company shall
execute and deliver to Buyer a secured promissory note in form and substance
reasonably acceptable to Buyer; (a) in the principal sum of the unpaid amount of
the Assigned Proceeds; (b) secured by the Security Interest granted under the
Original Agreement; (c) with interest accruing at an annual rate equal to
Citibank's prime rate, plus 2%, as of the date of the promissory note; (d) all
accrued and unpaid interest and the entire principal balance clue no later than
June 30, 1997; and (e) acceleration of the entire note upon default or the
consummation of the issuance of any additional capital stock or other securities
by the Company.
3. MISCELLANEOUS
(a) This Second Amendment to Agreement, together with the First
Amendment and the Original 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 the
parties hereto.
2
(b) This Second Amendment to 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. Facsimile copies of
manually executed signature pages shall be deemed originals until the parties
hereto have received manually executed signature pages.
(c) Except as provided otherwise herein capitalized terms shall
have the same meaning as in the Original Agreement.
(d) This Second Amendment to Agreement has been negotiated, and,
with the exception of IFFP, signed in Florida and shall be governed by and
interpreted in accordance with the laws of The State of Florida. Each of the
parties to this Amendment to Agreement hereby irrevocably submits to the
jurisdiction of the state or federal courts located m Dado County, Florida in
connection with any suit, action or other proceeding arising out of or relating
to this Amendment to Agreement and the transactions contemplated hereby, and
hereby agree not to assert, by way of motion as a defense, or otherwise in any
such suit, action or proceeding that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Amendment to 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.
THE COMPANIES 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, CROSS-CLAIMS AND THIRD
PARTY CLAIMS) ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT TO
AGREEMENT OR THE SECURITY INTEREST. 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.
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Agreement as of the day and year first above written.
BUYER
LITIGATION FUNDING, INC.
Witness /s/ indistinguishable BY: /s/ Xxxxxxxx Xxxxxxxx
----------------------- ---------------------------------------
Witness /s/ indistinguishable Xxxxxxxx Xxxxxxxx, President
-----------------------
INTERNATIONAL FAST FOOD
CORPORATION
Witness /s/ indistinguishable BY: /s/ Xxxxxxxx Xxxxxxxx
----------------------- ---------------------------------------
Witness /s/ indistinguishable Xxxxxxxx Xxxxxxxx, President
-----------------------
INTERNATIONAL FAST FOOD POLSKA
SP.ZO.O.
Witness /s/ indistinguishable BY: /s/ Xxxxxxxx Xxxxxxxx
----------------------- ---------------------------------------
Witness /s/ indistinguishable Xxxxxxxx Xxxxxxxx, President
-----------------------
4
STATE OF FLORIDA )
------------
)
COUNTY OF DADE )
-----------
SS:
The foregoing instrument was acknowledged before me this 13th day of March
1997, by Xxxxxxxx Xxxxxxxx, as President of Litigation Funding Inc., a Florida
corporation, on behalf of the corporation. He personally appeared before me, is
PERSONALLY KNOWN to me or produced___________ as identification, and [did] [did
not] take an oath.
Notary: /s/ Xxxx Xxxxxxxx
[NOTARIZED] Notary Public, State of Florida
My Commission Expires: 9-16-97
Commission Number: XX000000
XXXXX XX XXXXXXX )
------------
)
COUNTY OF DADE )
-----------
SS:
The foregoing instrument was acknowledged before me this 13th day of March
1997, by Xxxxxxxx Xxxxxxxx, as President of International Fast Food Corporation,
a Florida corporation, on behalf of the corporation. He personally appeared
before me, is PERSONALLY KNOWN to me or produced___________ as identification,
and [did] [did not] take an oath.
Notary: /s/ Xxxx Xxxxxxxx
[NOTARIZED] Notary Public, State of Florida
My Commission Expires: 9-16-97
Commission Number: CC314651
5
STATE OF FLORIDA )
------------
)
COUNTY OF DADE )
-----------
SS:
The foregoing instrument was acknowledged before me this 13th day of March
1997, by Xxxxxxxx Xxxxxxxx, as President of International Fast Food Polska, Sp.
Zo.o., a Polish corporation, on behalf of the corporation. He personally
appeared before me, is PERSONALLY KNOWN to me or produced___________ as
identification, and [did] [did not] take an oath.
Notary: /s/ Xxxx Xxxxxxxx
[NOTARIZED] Notary Public, State of Florida
My Commission Expires: 9-16-97
Commission Number: CC314651
6
