ANNEX
TO THE AGREEMENT ON TRANSFER OF SHARES
AS COLLATERAL
(DATED APRIL THE 2ND, 2001)
entered into on July 3, 2001 by and between:
1. International Fast Food Corporation, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxx 00000, XXX, hereinafter referred to as IFFC,
and
2. Xxxxxxxx Xxxxxxxx domiciled in Miami Beach, Florida, USA 40 Star
Island, hereinafter referred to as Xxxxxxxx Xxxxxxxx,
The Parties hereby amend the "Agreement on transfer of shares as
collateral" and resolve that it shall have the following wording:
"AGREEMENT ON TRANSFER OF SHARES AND
DEBT CLAIM AS COLLATERAL"
Agreement on transfer of shares and debt claim is concluded in order
to secure payment and performance of obligations of IFFC resulting under the
loan granted by Xxxxxxxx Xxxxxxxx to IFFC, the existence of which is evidenced
by "Demand promissory note" as of April the 2nd, 2001 and secured by certain
Stock Pledge Agreement (as defined in ss.2) and under the loan as of July 2,
2001, the existence of which is evidenced by "Demand promissory note" as of July
2, 2001. The said agreements and "Demand promissory note" are hereinafter
referred to as "Loan Agreements". Copies of Demand promissory notes constitute
enclosures 1 and 2 to the present agreement.
All references to "loan", "interest", "main sum" made in the present
Agreement shall be referred to Loan Agreements.
Whenever a reference to "Debt Claim" is made in the present
agreement, it shall mean all debt claims, to which IFFC is entitled against
American Restaurant Sp. z.o.o. with its seat in Wroclaw under the Share Transfer
Agreement concluded as of November 7th, 2000 between IFFC, American Restaurant
Sp. z.o.o. and International Fast Food Polska Sp. z.o.o. with the seat in
Warsaw, amended by the Annex as of December 13th, 2000 and, in particular under
ss.3(2)(c) and ss.3(2)(d) of the aforementioned Agreement.
Whenever a reference to "performance by American Restaurant Sp.
z.o.o." is made in the present agreement, it shall mean performance by the
aforementioned company aiming at satisfaction of the Debt Claim.
TRANSFER OF SHARES
SS.1
IFFC represents and guarantees that it owns 125,086 shares of nominal
value of 148,49 PLN each, of the total value of 18,574,020,14 PLN in a company
named Pizza King Polska SP. z.o.o. ("PKP").
SS.2
IFFC represents and warrants that the share capital of PKP is fully
paid and that the shares are free and clear of any claims and encumbrances
except for the pledge established for the benefit of Xxxxxxxx Xxxxxxxx on 2nd
April, 2001 ("Stock Pledge Agreement"). Copy of Stock Pledge Agreement
constitutes composite enclosure No. 3 to this Agreement.
SS.3
IFFC hereby unconditionally transfers the ownership title to the
shares referred to in ss.1 ("Existing Shares") and to the shares, which will be
created as a result of the registration of the increase of share capital of PKP
pursuant to the resolution of the Shareholders Assembly as of June 15, 2001 in
the entrepreneurs' register - under the condition that they come into existence
("Shares under creation") to Xxxxxxxx Xxxxxxxx in order to secure the payment
and the fulfillment of obligations under the Loan Agreements. The resolution of
15th June, 2001 constitutes enclosure No. 4 hereto. Existing Shares and Shares
under creation shall be hereinafter jointly referred to as the "Shares".
SS.4
Xxxxxxxx Xxxxxxxx shall transfer back to IFFC the ownership title to
the Shares under a separate agreement not later than 30 days after IFFC fulfills
all its obligations under the Loan Agreements.
SS.5
IFFC hereby agrees to notify in writing the Management Board of PKP
of the transfer of the title to the Existing Shares and Shares under creation so
that the notification obligations under article 187 of the Polish Code of
Commercial Companies are fulfilled.
SS.6
1. Xxxxxxxx Xxxxxxxx, as the sole shareholder of PKP, shall,
without undue delay after execution of this agreement,
grant power of attorney to IFFC, on the basis of which IFFC
will be authorized to exercise freely and independently all
corporate and property rights connected with Shares, with
reservation that the following activities do not fall
within the scope of such power of attorney and they either
require a separate power of attorney or may be exercised by
Xxxxxxxx Xxxxxxxx directly:
- adoption of the resolution on the change of the amount of the
share capital of PKP and redemption of shares,
- adoption of the resolution on consent granted to
representatives of PKP to dispose of a right or to incur an
obligation, the value of which exceeds the equivalent of PLN
of 20.000 USD or sale of the enterprise of the company,
- adoption of the resolution on he change of the Articles of
Incorporation of PKP,
- adoption of the resolution on liquidation, merger or
transformation of PKP,
- adoption of any resolutions on insolvency of PKP or
arrangement proceedings with creditors regarding PKP.
2. IFFC shall have right to profit connected with Shares.
TRANSFER OF DEBT CLAIM
SS.7
On the basis of art. 509 of the Civil Code, IFFC does hereby transfer
the Debt Claim to Xxxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx acquires the Debt
Claim.
SS.8
Xxxxxxxx Xxxxxxxx shall transfer the Debt Claim back to IFFC under a
separate agreement not later than 30 days after IFFC fulfills all its
obligations under Loan Agreement.
SS.9
IFFC consents to ratify American Restaurant Sp. z.o.o. forthwith of
any assignment of Debt Claim.
SS.10
1. With the reservation of section 2 and ss.ss.11 and 13,
Xxxxxxxx Xxxxxxxx shall not take any actions aiming at
pursuit of Debt Claim. It does not refer to the situation
when pursuing Debt Claim is necessary to avoid limitation
of claims resulting thereunder by lapse of time.
2. Xxxxxxxx Xxxxxxxx is obliged to take any actions aiming at
preserving the Debt Claim.
SATISFACTION OF CLAIMS RESULTING
FROM LOAN AGREEMENTS
SS.11
1. Should IFFC be in delay with performance under any Loan
Agreement (the "Delay"), Xxxxxxxx Xxxxxxxx shall be
authorized to, at his sole option, to sell all or a part of
shares and/or to pursue the Debt Claim. In such an event
the provisions of ss.6 sections 1 and 2 shall cease to be
in force and the powers of attorney granted to IFFC b
Xxxxxxxx Xxxxxxxx shall expire.
2. Means obtained by Xxxxxxxx Xxxxxxxx according to the
previous section (the "Means"), shall be counted, as the
first priority, towards payment of all outstanding interest
and next towards the payment of the main loan sum. If the
Means are obtained in a situation, when repayment of a
several loans is due, then the Means shall be counted
towards the loan which became due first. The Means may be
also counted towards all costs and expenses related to the
sale of Shares and collection of claims from American
Restaurant Sp. z.o.o. incurred by Xxxxxxxx Xxxxxxxx.
3. If upon satisfaction of all due and payable claims under
the Loan Agreements a surplus of the means remains, it
shall, within 14 days, be delivered to IFFC (the
"Surplus").
4. If within the 14 days period, referred to in the previous
section, the repayment of any loan (main sum or interest)
becomes due, the Surplus may be counted towards repayment
of such loan. It does not affect the fourteen days period
running.
SS.12
Xxxxxxxx Xxxxxxxx shall immediately, in writing, notify IFFC of sale
of Shares or of the performance by American Restaurant Sp. z.o.o. under the Debt
Claim. The notification shall specify the amounts obtained and the debt, which
they shall have been towards.
SS.13
1. If prior to the repayment of all loans (main performance or
interest) the performance by American Restaurant Sp. z.o.o.
has become due and IFFC is not in Delay and American
Restaurant Sp. z.o.o. offers its performance, Xxxxxxxx
Xxxxxxxx shall accept such performance and the amount so
obtained shall be counted towards the repayment of the loan
indicated by him, even if such loan is not yet due and
payable. The same shall apply to a situation when Xxxxxxxx
Xxxxxxxx shall demand the performance under ss.10 in order
to avoid the limitation of claims by lapse of time.
SS.14
Xxxxxxxx Xxxxxxxx does hereby declare that in case of sale of Shares,
he shall act with diligence in order to ensure such sale for the best price
possible.
MISCELLANEOUS
SS.15
This Agreement is executed in four copies in Polish and English
language, in two copies for each language version. In case of discrepancies, the
Polish version shall prevail.
SS.16
Any disputes under this Agreement, which are not settled amicably
shall be settled by the Court of Arbitration at the Polish Chamber of Commerce
in accordance with the Rules of that Court.
SS.17
This Agreement shall be subject to Polish law.
* * *
If "Agreement on transfer of shares as collateral" proves to be
ineffective for any reason whatsoever, this Annex, from the date of its
execution, shall be effective as the independent agreement of the contents
presented above in ss.ss.1-17, including preamble, transferring unconditionally
the Shares and the Debt Claim to Xxxxxxxx Xxxxxxxx. The Parties agree that Stock
Pledge Agreement expires upon the execution of this Agreement by virtue of
transfer of the ownership title to the subject of the pledge to Xxxxxxxx
Xxxxxxxx.
International Fast Food Corporation
Xxxxxxxx Xxxxxxxx
