SETTLEMENT AGREEMENT - POLAND
This Agreement is entered into as of the 16th of June, 2000
By and among BURGER KING CORPORATION, a Florida corporation ("BKC"),
INTERNATIONAL FAST FOOD CORPORATION, a Florida corporation ("IFFC"),
INTERNATIONAL FAST FOOD POLSKA, SP Z.O.O., a Polish corporation ("IFFP"), and
MITCHELL RUBINSON ("Mr. Rubinson").
WHEREAS:
1. By a so-called "Restaurant Development Agreement" entered into as of
14th day of March 1997 by and among BKC and IFFC, BKC granted to IFFC
the right to develop Burger King restaurants in Poland upon the terms
and conditions therein set out. The said Restaurant Development
Agreement was subsequently transferred by IFFC with the consent of BKC
to IFFP, which company is accordingly the developer named therein. The
said Restaurant Development Agreement, as subsequently modified by
agreement between BKC and IFFP is hereinafter referred to as "the
Development Agreement."
2. IFFP owns and operates various restaurants in Poland by virtue of
franchises granted to it by BKC (the "Franchise Agreements").
3. In February 1999, BKC provided financial support to IFFP by arranging,
at the request of IFFP, a credit facility in favor of IFFP granted by
Citibank Poland in respect of which BKC provided a guaranty to Citibank
Poland.
4. In October 1999, BKC provided further financial support to IFFP by
arranging a larger credit facility which was granted by Citibank Poland
to IFFP and guaranteed by BKC. The following documentation was entered
into between the parties to this agreement, each document bearing as
its date the 18th October 1999 or "as of 21 October 1999":
Amended and restated Reimbursement Agreement between IFFC,
IFFP and BKC.
Amended and Restated Agreement for the Transfer of Title to
Shares by way of Security between IFFP, IFFC and BKC. Amended
and restated Purchase Agreement between Mr. Rubinson, IFFP,
IFFC and BKC. Guaranty between Mr. Rubinson and BKC.
Security and Pledge Agreement between Mr. Rubinson and BKC.
Guarantee of future advances Agreement between IFFC, Mr.
Rubinson, IFFP and BKC.
Warrant.
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The above agreements will be referred to as "the Financial Agreements
of October 1999." In addition to the Financial Agreements of October
1999, on October 18, 1999 and as of October 21, 1999 there were also
executed a document amending the Development Agreement, referred to as
"Amendment to Restaurant Development Agreement" and a "Deferred Payment
Agreement" as well as a "General Release".
5. As of December 30, 1999 IFFP entered into a facility agreement ("the
Facility Agreement") with Citibank Poland extending the credit
agreement entered into on October 1999, such Facility Agreement being
conditional upon BKC providing security satisfaction to Citibank
Poland.
6. BKC then agreed with Citibank Poland the form of a guaranty in relation
to the Facility Agreement, which BKC executed and provided to Citibank
Poland, which guaranty is dated January 14, 2000.
7. IFFC, IFFP, Mr. Rubinson and BKC entered into a so-called Omnibus
Amendment Agreement dated January 14, 2000, the effect of which was to
restate, inter alia, the Financial Agreements of October 1999 and to
apply the same to the Facility Agreement and to the Guaranty provided
by BKC to Citibank Poland dated January 14, 2000. The Financial
Agreements of October 1999 together with the Omnibus Amendment
Agreements are hereinafter together referred to as "the January 2000
Financial Agreements."
8. The sum of eight million United States dollars (US$8,000,000) or its
equivalent in Polish currency has been advanced to IFFP, under the
Facility Agreement.
9. The Guarantee of Further Advances Agreement sets out the terms and
conditions upon which IFFP would be entitled to all upon BKC to provide
guarantees for further draw downs under the Facility Agreement. IFFP
claims to be entitled to call upon BKC to provide a further guaranty to
Citibank Poland in respect of a further tranche of US$5000,000 to be
advanced by Citibank Poland to IFFP. BKC claims that the said terms and
conditions have not been fulfilled and that BKC is entitled to refuse
to provide the further guaranty requested. BKC asserts that in the
event that IFFP failed to repay the Citibank loan it would have
recourse against IFFP, IFFC and Mitchell Rubinson pursuant to various
commitments, guarantees and securities. These issues are hereinafter
referred to as "the Dispute". These securities, commitments and
guarantees shall be released on the execution and consummation of this
agreement.
10. In view of the Dispute, IFFP, IFFC and Mr. Rubinson have put BKC on
notice that they intend to commence legal proceedings against BKC.
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11. It has been resolved to settle the Dispute in the manner hereinafter
appearing and simultaneously to confirm that there are no other claims
between the parties and to enter into a general release as hereinafter
appears.
IT IS HEREBY AGREED AS FOLLOWS:
1. PAYMENT TO CITIBANK/IFFP DEBT
1.1 BKC undertakes within three working days of the date of this
Agreement to discharge the principal of eight million United States
dollars (US$8,000,000) and all interest under the Facility Agreement.
1.2 As one element of the consideration for the releases given to BKC
by IFFC in this Agreement, BKC hereby agrees to transfer to IFFC all
such rights (if any) as it may have against IFFP, under subrogation
following the discharge of the above debt owed to Citibank. IFFC
acknowledges that these rights (if they exist) may be worthless, and
that the other consideration given to IFFC for the release is in any
event sufficient. IFFC shall as soon as possible and in any event
within 120 days from the date of this agreement convert these rights
and the related debts into equity in IFFP and notify BKC accordingly.
If IFFC fails to convert these rights and the related debt into equity,
IFFC shall pay to BKC ninety-five percent (95%) of all sums which it
may receive at any time from IFFP in respect thereof refer to Exhibit
"1."
2. SPECIFIC OBLIGATIONS RELEASED
BKC hereby releases:
2.1 IFFP, IFFC and Mr. Rubinson from all liability and obligation under
the January 2000 Financial Agreements. For the avoidance of doubt, the
parties agree that no liabilities or obligations exist from the
February transactions.
2.2 the security and pledge created by the Security and Pledge
Agreement.
2.3 the security created by the Amended and Restated Agreement for the
Transfer of Title to Shares by way of security.
2.4 Mr. Rubinson from any and all obligations directly and/or
indirectly or as guarantor with respect to any agreements ever entered
into with BKC or its Affiliates.
2.5 IFFC from any and all obligations directly and/or indirectly or as
guarantor except obligations under the Franchise Agreements in respect
of which they are Principals.
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3. FURTHER OBLIGATIONS RELEASED
----------------------------
IFFC, IFFP and Mr. Rubinson hereby jointly and severally release BKC
from all liability and obligation under the January 2000 Financial
Agreements including but not limited to the Guarantee of Future
Advances Agreement.
4. DISCHARGE OF FINANCIAL AGREEMENTS
---------------------------------
The January 2000 Financial Agreements are accordingly hereby cancelled
and discharged.
5. GENERAL RELEASE OF BKC
----------------------
IFFP, IFFC and Mr. Rubinson hereby jointly and severally, irrevocably
and unconditionally, release, acquit and forever discharge BKC and its
affiliates, including their shareholders, officers, directors,
consultants, agents, predecessors, successors, assigns, employees,
representatives, affiliates, and all persons acting by, through, under
or in concert with any of them (such persons being collectively
referred to herein as "the BKC parties") whether in their individual or
professional capacities from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts
and expenses (including reasonable attorney's fees and costs incurred)
of any nature whatsoever, known or unknown, suspected or unsuspected,
relating to any matter up to and through the date hereof; provided that
nothing contained herein shall be deemed to relieve BKC from its
obligations under the Development Agreement and/or the Franchise
Agreements and/or the Deferred Payment Agreement as the same may be
amended from time to time, which may arise after the date hereof.
6. GENERAL RELEASE OF IFFP AND MR. RUBINSON
----------------------------------------
BKC hereby irrevocably and unconditionally releases, acquits and
forever discharges IFFC, IFFP and Mr. Rubinson, including their
shareholders, officers, directors, consultants, agents, predecessors,
successors, assigns, employees, representatives, affiliates and all
persons acting by, through, under or in concert with any of them,
whether in their individual or professional capacities from any and all
charges, complaints, claims, liabilities, obligations, promises,
agreements (including actions, causes of action, suits, rights,
demands, cost losses, debts and expenses (including reasonable
attorney's fees and costs incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected relating to any matter up to and
through the date hereof provided that nothing contained herein shall be
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deemed to relieve IFFP as the developer for the purposes of the
Development Agreement and as franchisee of BKC from its obligations
under the Development Agreement and the Franchise Agreements, and as
the same may be amended from time to time, from and after the date
hereof, or IFFC and IFFP from their obligations under the Deferred
Payment Agreement, as the same may be amended from time to time, from
and after the date hereof. For the avoidance of doubt nothing in this
Agreement shall relieve IFFP or IFFC from their obligation to pay to
BKC all sums which have already been rolled up and deferred and fail to
be paid to BKC subsequently in accordance with the provisions of the
Deferred Payment Agreement.
7. INDEMNITIES
-----------
In the event that any release given to BKC by any one or more of the
other parties to this Agreement is held to be invalid or null or null
void is set aside or otherwise deemed to be unenforceable, the party or
parties whose releases remain unaffected by such determination shall
indemnify BKC and hold BKC indemnified against the consequences
thereof. If any release given by BKC in this Agreement to any other
party to this Agreement is held to be invalid or null or void or is set
aside or otherwise deemed to be unenforceable, BKC shall indemnify that
party against the consequences thereof.
8. PART PAYMENT OF LEGAL COSTS
---------------------------
Unless the same has previously paid, IFFC or Mr. Rubinson shall pay to
BKC the sum of US$41,652 in cleared funds within 24 hours of the
execution of this Agreement as a contribution to the legal fees and
expenses of BKC which IFFC and IFFP have previously undertaken to
discharge in full. This agreement shall not come into effect until such
funds have been cleared into BKC's bank account.
9. RESTAURANT CLOSURE
------------------
IFFP shall have the right to effect the closure of franchised Burger
King restaurants in Poland subject to the following terms and
conditions:
9.1 The said right shall lapse as regards restaurants which have not
been closed within 24 months of the date of this agreement.
9.2 All losses, costs and expenses resulting directly or indirectly
from any such closure shall be borne exclusively by IFFP. IFFP shall
have no right of recourse whatsoever against BKC. IFFP shall indemnify
and keep BKC indemnified against any claims which may be raised by
third parties directly against BKC or indirectly relating to or as a
result of such closure.
9.3 The above said right of Closure shall exist only in relation to any
Burger King restaurant which has generated negative cash flows over a
three month period taken as a whole prior to the date of such closure.
IFFP may request BKC to agree to the closure of other restaurants but
BKC may in its absolute discretion either grant or withhold such
consent without in any way incurring liability in respect of its
response, whether affirmative or negative.
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9.4 If as a result of closures IFFP has fewer than eight restaurants,
it may close all such restaurants provided that if at the time it forms
an intention to close any one or more of the last seven restaurants
IFFP has received a bona fide offer from a third party to purchase any
one or more of the said restaurants for use as a Burger King
restaurant, BKC shall have a right of first refusal in relation to such
restaurant upon the terms and conditions set out in clause 15.4.1 of
the relevant franchise agreement. If such offer from a third party is
to purchase one or more of said restaurants for use other than a Burger
King, Burger King shall have right of first refusal upon the terms and
conditions set in clause 15.4.1 excepting the terms and conditions
requiring a franchisee application to be completed by the purchaser
will not be required and if Burger King rejects the offer the
franchisee may sell the franchised restaurant or restaurants upon the
terms offered to BKC without any further approval of BKC required.
9.5 Immediately IFFP forms the intention to close a restaurant it shall
inform BKC in writing of the location of the restaurant and the
proposed timing. Upon dosing the restaurant IFFP shall immediately take
all necessary steps to remove all signs and other items bearing the
name Burger King or any names or marks used in Burger King restaurants
or capable of indicating a connection with BKC or the Burger King
brand. If IFFP does not comply with this obligation BKC may cause all
matters to be done at the expense of IFFP to ensure that this
de-branding is fully effected and may for that purpose have full access
to the restaurant through its contracts, servants or agents.
9.6 Each time IFFP chooses to close a restaurant in accordance with the
provisions of this Agreement it shall be deemed, for value, to be
repeating the release in favor of BKC contained in Clause 5 hereof.
9.7 The franchise agreement in respect of each restaurant closed in
accordance with the terms of this clause 9 shall be deemed to have been
cancelled automatically with effect from the time of such closure. Upon
cancellation the terms of a Franchise Agreement shall cease to apply,
so that IFFP shall be under no restriction vis-a-vis BKC by virtue of
the terms of the cancelled Franchise Agreement.
9.8 IFFP shall notify BKC within 3 days of each such closure.
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10. INVESTMENT PLANS
----------------
Mr. Rubinson has expressed the intention to invest US$500,000 in IFFC
in return for an issue of common stock in IFFC. IFFC has expressed the
intention to advance up to US$500,000 in IFFP, such advance to be made
forthwith and to be used by IFFP for general working capital in IFFP's
existing operations. BKC has noted the expression of these intentions.
Neither BKC nor any officer, employee or agent or any person connected
with BKC has advised IFFC, IFFP or Mr. Rubinson regarding the
desirability of so doing, nor has any representation or warranty been
made to that effect or in any way regarding the desirability or effects
of so doing or upon the likely chances of IFFP surviving if such
actions are taken. Any decision taken by Mr. Rubinson, FFC or IFFP
shall be their sole decision and has not been influenced in any way by
BKC.
11. CONVERSION OF NOTES AND PREFERRED STOCK
---------------------------------------
Prior to the execution of this Agreement, IFFC represented to BKC that
it was its wish to procure the conversion of all 11% notes of IFFC and
all Class B preferred stock of IFFC into IFFC common stock. Neither BKC
nor any of its officers, employees or agents or any person on BKC's
behalf have advised IFFC, IFFP or Mr. Rubinson or any holders of any
such notes or preferred stock on any matter whatsoever connected with
such proposed conversion or the desirability thereof or on the issue of
whether such conversion would be likely to assist the survival of IFFP,
or on any other matter. Any decision taken by IFFC or Mr. Rubinson
shall be the sole decision of IFFC and Mr. Rubinson and has not been
influenced in any way by BKC.
12. RELIANCE ON REPRESENTATIONS ETC.
--------------------------------
In determining to enter into this Agreement, BKC has relied on
financial information regarding the business and assets of IFFP
provided to it and on the assurances provided to it that the execution
of this Agreement by IFFC and IFFP has been duly authorized in
accordance with the by-laws of those companies. Subject to these
exceptions, no party to this Agreement has relied on any representation
or warranty advice, opinion or statement whatsoever made by any other
party to this Agreement, or its officers, employees or agents or others
on its behalf, except to the extent that such statement is expressly
set forth in this Agreement. Each of the parties acknowledges that it
or he has received good and valuable and sufficient consideration for
each of the releases discharges, undertakings and other agreements on
its, or his, part set out in this Agreement. The parties represent and
acknowledge that they have been given adequate time in which to
consider this Agreement and have been advised to discuss all aspects of
this Agreement with their private attorney and that each party has in
fact done so, that each party has carefully read and fully understood
all the provisions of this Agreement and that each party has
voluntarily entered into this Agreement without duress of coercion.
Each party represents and acknowledges that there is no basis in equity
or otherwise for any part of this Agreement to be set aside. Each party
represents and acknowledges that in executing this Agreement they have
not relied and do not rely on any representation or statement which is
not set forth in this Agreement made by any other party hereto or by
any of the agents representatives or attorneys of such party or parties
with regard to the subject matter or relating to the basis or effect of
this Agreement.
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13. RESERVE STATEMENT
-----------------
Attached to this Agreement as Schedule A is the text of a Reserve
Statement which each of the parties may use in response to inquiries
raised by the press or by other persons. No other statement of any
description shall be made by any party to this Agreement without mutual
agreement of all parties to this Agreement, to any third party except
as required by law or the rules of relevant stock exchanges or, in the
case of BKC, as may be reasonably necessary to persons and companies
within the group of companies of which BKC is a member. BKC shall have
the right to view any filing or notice with the SEC or any stock
exchange which relate to or refer to the settlement, its existence or
terms, prior to such filing or notice being made or given. With these
limited exceptions, the existence as well as the terms of the
settlement hereby agreed shall be maintained by each party in strict
confidence.
14. NO DEFAMATION
-------------
No party to this Agreement shall make any statement or cause any
publication to be made which is critical of any of the parties to this
Agreement, their Affiliates, officers, servants or agents, or of the
Burger King brand or system or imputes blame for the causes of IFFP's
lack of success.
15. SURVIVING AGREEMENTS
--------------------
Except to the extent (if any) that they are modified by this Agreement,
each of the Franchise Agreements, the Development Agreement and the
Deferred Payment Agreement shall remain in full force and effect
16. MODIFICATION OF DEFERRED PAYMENT AGREEMENT
------------------------------------------
Clause 1 of the Deferred Payment Agreement is hereby modified so that
subparagraph 1(ii) shall be deemed deleted and subparagraph 1(i) shall
be deemed to read as follows:
"as to half on May 15 2001 and as to half on January15 2002"
17. MISCELLANEOUS
-------------
Third Party Beneficiaries
17.1 Wherever in this Agreement releases or indemnities are expressed
to be given to parties who or which are not signatories to this
Agreement, the same shall be deemed to be third party beneficiaries of
this Agreement to the same extent as if they were signatories hereto.
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Further Assurances
17.2 Each of the parties hereto agrees with the other parties hereto
that it will execute and deliver or cause to be executed and delivered,
all such other instruments and documents and will take all such other
actions as such other parties may reasonably request from time to time
to give effect to the provisions and purposes of this Agreement.
Relationship to earlier general releases
17.3 For the avoidance of doubt nothing in this Agreement shall be
taken to discharge or cancel or supersede or in any way modify any
previous release or discharge given by any of the parties hereto to BKC
or by BKC to any of the parties hereto.
Binding on successors, transferees and assigns; assignment
17.4 This Agreement shall be binding upon the parties hereto and their
respective successors, transferees and assigns, Notwithstanding the
foregoing none of the parties hereto may assign any of its obligations
hereunder without the prior written consent of the other parties
hereto; provided that BKC may assign its rights and derogate its duties
under this Agreement to one or more of its subsidiaries or affiliates.
Amendments; waivers
17.5 No amendment or waiver of any provision of this Agreement, nor
consent to any departure therefrom by any party hereto, shall in any
event be effective unless the same shall be in writing and signed by
such party, and then such waiver or consent shad be effected only in
the specific instance and for the specific purpose for which it is
given.
No waiver remedies
17.6 No failure on the part of any party hereto to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the
exercise of any right. The remedies herein provided are cumulative and
not exclusive of any remedy provided by law.
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Jurisdiction
17.7 Any claim arising out of this agreement shall be brought in any
State or Federal Court located in Miami-Dade County, Florida, United
States. For the purposes of any suit, action or proceedings instituted
with respect to any such claim, each of the parties hereto irrevocably
submits to the jurisdiction of such courts in Miami-Dade County
Florida, United States. Each of the parties hereto further irrevocably
consents to the service of process out of the said courts by mailing a
copy thereof by registered mail, postage prepaid, to such party and
agrees that such service, to the fullest extent permitted by law, (i)
shall be deemed in every respect effective service of process upon it
of any such suit, action or proceeding and (ii) shall be taken and held
to be a valid personal service upon and a personal delivery to it. Each
of the parties hereto hereby irrevocably waives to the fullest extent
permitted by law, any objection which it may now or hereafter have to
the laying of the venue of such suit, action or proceeding brought in
any such court located in Miami-Dade County, Florida, United States,
and any claim that any such suit, action or proceeding be brought in
such court has been brought in an inconvenient forum. Notwithstanding
the foregoing, at the option of BKC, any claims against IFFP hereunder
shall be settled by the Arbitration Court at the Polish Chamber of
Commerce with its seat in Warsaw, in accordance with its rules, and all
such proceedings will be conducted in the English language.
Governing Law/Severability
17.8 This Agreement shall be governed by and construed in accordance
with the internal laws of the state of Florida, United States without
regard to any conflict of law, rule or principle that would give effect
to the laws of another jurisdiction.
Notices
17.9 All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party addressed to it, at
its address or facsimile number set forth on the signature pages below
or at such other address or facsimile number as such party may
hereafter specify for such purpose by notice to the other parties, or
the last known address of the party. Each such notice, request or
communication shall be deemed effective when received at the address or
facsimile number specified below.
Counterparts
17.10 This amendment may be executed in any number of counterparts,
each of which counterparts when executed and delivered shall be deemed
to be an original and all of such counterparts when taken together
shall constitute one and the same agreement.
Headings
17.11 In this Agreement headings are for convenience only and have no
impact on the interpretation of this Agreement.
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Hierarchy
17.12 In the event of any inconsistency between this Agreement and the
terms of the Development Agreement, any Franchise Agreement or any
other agreement between BKC and the other parties (or any of them) the
terms of this Agreement shall prevail.
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IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THE AGREEMENT ON THE DATE
INDICATED.
/S/ PHILIP KINNERSLY
--------------------------------------------------------------------------------
BURGER KING CORPORATION
by:
Name: Philip Kinnersly
Title: Vice President/General Counsel
c/o the General Counsel
Burger King Corporation
17777 Old Cutler Road, Miami, Florida 33157, USA
and copied to
the General Counsel
Burger King EMA
Charter Place, Vine Street, Uxbridge, Middlesex UB8 1BZ, England
/S/ MITCHELL RUBINSON
--------------------------------------------------------------------------------
INTERNATIONAL FAST FOOD CORPORATION
by:
Name: Mitchell Rubinson
Title: Chairman & CEO
c/o Mitchell Rubinson
1000 Lincoln Road, Suite 200, Miami Beach, Florida 33139, USA
/S/ MITCHELL RUBINSON
--------------------------------------------------------------------------------
INTERNATIONAL FAST FOOD POLSKA
by:
Name: Mitchell Rubinson
Title: Authorized Signature
c/o 15 Jagiellonska Street, Warsaw, Poland
/S/MITCHELL RUBINSON
--------------------------------------------------------------------------------
MITCHELL RUBINSON
c/o International Fast Food Corporation
1000 Lincoln Road, Suite 200, Miami Beach, Florida 33139, USA
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EXHIBIT "1"
To: International Fast Food Polska Sp.z.o.o.
(all terms used herein shall have same meaning as in Settlement
Agreement - Poland)
Pursuant to provision of Section 1.2 of Settlement Agreement - Poland
entered in on 16 June 2000 we hereby notify IFFP as follows:
1. On or before 21st June 2000 BKC will repay the principal of
eight million United Stales dollars (US 8,000,000) and all
interests under Facility Agreement to Citibank (Polska) S.A.
2. On or before 21st June 2000 BKC will transfer to IFFC all
rights and claims BKC may have against IFFP, which result from
transaction described in point 1 above.
The only entity which may require from IFFP the performance of
Facility Agreement (including repayment of debt) will
accordingly be IFFC.
IFFC BKC
/S/ MITCHELL RUBINSON /S/ PHILIP KINNERSLY
--------------------- --------------------
Chairman & CEO Vice President
General Counsel
<PAGE>
SCHEDULE "A"
BURGER KING CORPORATION STATEMENT
INTERNATIONAL FAST FOODS POLSKA
June __, 2000
In recognition of the financial issues facing International Fast Foods Polska,
the independently owned Burger King franchisee in Poland, Burger King
Corporation confirmed that it has prepaid an $8 million loan to Citibank on
behalf of International Fast Foods Polska. As agreed with Burger King
Corporation International Fast Foods Polska may close several Burger King
restaurants in Poland.
