PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of February 24, 1999,
by and among INTERNATIONAL FAST FOOD CORPORATION, a company organized under the
laws of the State of Florida, United States ("IFFC"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇"), INTERNATIONAL FAST FOOD POLSKA S.P. z.o.o., a Polish limited
liability company organized under the laws of Poland ("IFFP") and BURGER KING
CORPORATION, a company organized under the laws of State of Florida, United
States ("BKC").
WHEREAS, ▇▇▇▇▇▇▇▇ is a principal shareholder, and an officer and
director, of IFFC;
WHEREAS, IFFC is the owner of all the issued and outstanding shares
(the "IFFP Shares") of IFFP;
WHEREAS, Citibank (Poland) S.A. ("Citibank") has agreed to provide
credit to IFFP in the aggregate amount of U.S. $5,000,000), pursuant to a credit
agreement dated February 24, 1999 (the "Credit Agreement");
WHEREAS, It is a condition to the disbursement of funds under the
Credit Agreement that BKC issue a guarantee in favor of Citibank to secure the
repayment by IFFP of amounts borrowed under the Credit Agreement (the
"Guarantee");
WHEREAS, in consideration of the Guarantee, IFFC has agreed to grant
BKC a perfected security interest in the IFFP Shares to secure BKC's claims
which may arise as a result of the payment by BKC of any amounts under the
Guarantee;
WHEREAS, pursuant to a Reimbursement Agreement of even date herewith
(the "Reimbursement Agreement") by and among IFFC, IFFP and BKC, IFFC has agreed
to reimburse BKC for any payments that it may be required to make to Citibank
under the Guarantee, together with related costs, expenses and interest, as more
fully said forth herein;
WHEREAS, pursuant to an Agreement for the Transfer of Title to Share by
way of Security dated of even date herewith (the "Security Agreement") by and
between IFFC, BKC and IFFP, IFFC has granted BKC a security interest in and to
the IFFP Shares, which permits BKC to retain the IFFP Shares in the event that
BKC is required to make any payment under the Guarantee and neither IFFC nor
IFFP reimburse BKC for the amount of such payment and other items under the
Reimbursement Agreement; and
WHEREAS, in the event that BKC acquires the IFFP Shares as described
above, the parties hereto wish to provide for the sale of the IFFP Shares by BKC
to ▇▇▇▇▇▇▇▇, upon the terms, and subject to the conditions, hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree has follows:
1. Sale and Purchase of IFFP Shares. In the event that BKC is required to make
any payment under the Guarantee and neither IFFC nor IFFP reimburse BKC in full
for the amount of such payment and the other items specified under the
Reimbursement Agreement within fifteen days following written demand therefor by
BKC to either IFFC or IFFP, then BKC shall sell to IFFC, and IFFC shall purchase
from BKC, the IFFP Shares for a purchase price (the "Purchase Price") equal to
(i) any payments to be made or previously made by BKC under the Guarantee (such
amounts are hereinafter referred to as "Indemnity Payments"), (ii) interest on
the amount of any Indemnity Payment remaining unpaid by IFFC or IFFP under
clause (i) above, from (and including) date of such Indemnity Payment, until
payment in full thereof (after as well as before judgment) at a rate equal to
the Base Rate (as defined below) from time to time in effect plus two hundred
basis points, such interest to be payable on demand (which demand may be made
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upon IFFC or IFFP) and (iii) all fees, costs and expenses incurred by BKC in
connection with the enforcement of its rights hereunder. "Base Rate" means, on
any date, a fluctuating rate of interest per annum equal to the rate of interest
published in the "Wall Street Journal" on such date as the "prime rate" for U.S.
dollar loans by major money center banks. Interest accruing on the Base Rate
shall be computed on the basis of the actual number of days elapsed in a 365 day
year. In the event that IFFC defaults in its obligation to purchase the IFFP
Shares in accordance with this Section 1, then BKC shall send IFFC a written
notice (the "Default Notice") informing IFFC and ▇▇▇▇▇▇▇▇ of such default, and
BKC shall sell to ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ shall purchase from BKC, the IFFP
Shares for the Purchase Price. The closing of the sale by BKC and purchase by
▇▇▇▇▇▇▇▇ of the IFFP Shares in accordance with this Section 1 shall occur within
15 days following the delivery by BKC to ▇▇▇▇▇▇▇▇ of the Default Notice. The
Purchase Price shall be payable by wire transfer of immediately available funds
to an account designated in writing by BKC to ▇▇▇▇▇▇▇▇.
(b) In the event that neither IFFC nor ▇▇▇▇▇▇▇▇ purchase the IFFP
Shares in accordance with, and subject to the limitations set forth in, Section
1(a), above, then BKC shall have the right, but not the obligation, to terminate
without any additional consideration that certain Restaurant Development
Agreement dated as of March 14, 1997, by and among BKC and IFFP and to retain
the IFFP Shares for its own account or to sell the IFFP Shares to a third party,
subject to compliance with the terms and conditions of the Security Agreement.
2. Representations and Warranties
2.1 Representations and Warranties of IFFC, IFFP and ▇▇▇▇▇▇▇▇. Each of
IFFC, IFFP and ▇▇▇▇▇▇▇▇ represents and warrants to BKC that:
(a) Corporate Existence and Qualification. Each of IFFC and IFFP is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization. Each of IFFC and IFFP has all required
power and authority to own its properties and to carry on its business as
presently conducted.
(b) Authority, Approval and Enforceability. This Agreement has been
duly executed and delivered by each of IFFC, IFFP and ▇▇▇▇▇▇▇▇, and each of
IFFC, IFFP and ▇▇▇▇▇▇▇▇ has all requisite power and legal authority to execute
and deliver this Agreement, to consummate the transactions contemplated hereby,
and to perform its obligations hereunder. This Agreement constitutes the legal,
valid and binding obligation of each of IFFC, IFFP and ▇▇▇▇▇▇▇▇, enforceable in
accordance with its terms.
(c) No Company Defaults or Consents. Neither the execution and delivery
of this Agreement nor the effectuation of the transactions contemplated hereby
will:
(i) violate or conflict with any of the terms,
conditions or provisions of the certificate of incorporation or bylaws (or
similar organizational documents) of IFFC or IFFP;
(ii) violate any legal requirements applicable to
IFFC or IFFP or ▇▇▇▇▇▇▇▇;
(iii) violate, conflict with, result in a breach of,
constitute a default under (whether with or without notice or the lapse of time
or both), or accelerate or permit the acceleration of the performance required
by, or give any other party the right to terminate, any contract or permit
applicable to IFFC or IFFP;
(iv) result in the creation of any lien, charge or
other encumbrance on any property of IFFC or IFFP (except as expressly
contemplated hereby); or
(v) require IFFC or IFFP to obtain or make any
waiver, consent, action, approval or authorization of, or registration,
declaration, notice or filing with, any private non-governmental third party or
any governmental authority.
(d) No Proceedings. No suit, action or other proceeding is pending or,
to the Knowledge of IFFC, IFFP or ▇▇▇▇▇▇▇▇, threatened, before any governmental
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authority seeking to restrain such or prohibit its entry into this Agreement, or
seeking damages against IFFC, IFFP or ▇▇▇▇▇▇▇▇ or their respective properties,
as a result of the transactions contemplated by this Agreement.
(e) Disclosure; Due Diligence. This Agreement, when taken as a whole
with other documents and certificates furnished by each of IFFC, IFFP or
▇▇▇▇▇▇▇▇ to BKC or its counsel have been furnished in good faith and, do not
contain any untrue statement of material fact or omit any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they are made not misleading.
2.2 Representations and Warranties by BKC. BKC represents and warrants
to each of IFFC and IFFP that:
(a) Corporate Existence and Qualification. BKC is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. BKC has all required power and authority to own
its properties and to carry on its business as presently conducted.
(b) Authority, Approval and Enforceability This Agreement has been duly
executed and delivered by BKC, and BKC has all requisite power and legal
authority to execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform its obligations hereunder. This Agreement
constitutes the legal, valid and binding obligation of BKC, enforceable in
accordance with its terms.
3. Miscellaneous.
3.1 Further Assurances. Each of the parties hereto agrees with the
other parties hereto that they will cooperate with such other parties and will
execute and deliver, or cause to be executed and delivered, all such other
instruments and documents, and will take such other actions, as such other
parties may reasonably request from time to time to effectuate the provisions
and purposes of this Agreement.
3.2 Binding on Successors, Transferees and Assigns; Assignment. 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 with the prior
written consent of the other parties hereto; provided, that BKC may assign its
rights and delegate its duties under this Agreement to one or more of its
subsidiaries or affiliates.
3.3 Amendments; Waivers. No amendment to or waiver of any provisions 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 shall be effective only in the
specific instance and for the specific purpose for which given.
3.4 No Waiver; Remedies. 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.
3.5 Expenses. IFFC shall pay or reimburse BKC for all of its legal,
accounting and other expenses directly related to the consummation of the
transactions contemplated hereby, together with the costs and expenses of
enforcing any of its rights hereunder including, without limitation, the
purchase rights provided in Section 1 hereof.
3.6 Jurisdiction. 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 purpose of any suit, action or proceeding 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
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of 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 in 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 any 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
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.
3.7 Governing Law; Severability. 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.
3.8 Notices. All notices, requests and other communications to any
party hereunder shall be 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 party. Each such notice, request or communication shall
be deemed effective when received at the address or facsimile number specified
below.
3.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, when taken together,
shall constitute one and the same Agreement.
3.10 Indemnification. IFFC, IFFP and ▇▇▇▇▇▇▇▇, jointly and severally,
agree to indemnify and hold harmless BKC and its officers, directors, employees,
agents, subsidiaries and affiliates (collectively, the "BKC Parties") from and
against all losses, liabilities, damages, deficiencies, costs or expenses
(including, without limitation, interest, penalties and actual attorneys' fees
and disbursements) (collectively, "Losses") based upon any claim by any
shareholder, creditor or employee of IFFC or IFFP arising from or relating to
the purchase and sale of the IFFP Shares described in Section 1 hereof.
Notwithstanding the foregoing, neither IFFC, IFFP nor ▇▇▇▇▇▇▇▇ shall be required
to indemnify the BKC parties to the extent it is judicially determined that such
Losses resulted from the gross negligence or willful misconduct of BKC; and
provided, further, that the obligation of ▇▇▇▇▇▇▇▇ to indemnify the BKC Parties
hereunder shall only arise in the event that ▇▇▇▇▇▇▇▇ acquires the IFFP Shares
pursuant to Section 1 hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
_______________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o International Fast Food Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
INTERNATIONAL FAST FOOD CORPORATION
By:__________________________
Name:
Title:
c/o ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
INTERNATIONAL FAST FOOD POLSKA S.P. Z.O.O.
By:__________________________
Name:
Title:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
BURGER KING CORPORATION
By:_________________________
Name:
Title:
c/o Burger ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: General Counsel and
Vice President - Financial Affairs
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