<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 1997
REGISTRATION STATEMENT NO. 333-7202
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3 TO FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INTERCORP EXCELLE INC.
(Name of small business issuer as specified in its charter)
------------------------------
<TABLE>
<S> <C> <C>
ONTARIO, CANADA N/A 2030
(State or other jurisdiction of (IRS Employer I.D. No.) (Primary Standard Industrial
Incorporation or Organization) Classification Code No.)
</TABLE>
1880 ORMONT DRIVE
TORONTO, ONTARIO
CANADA M9L 2V4
(416) 744-2124
(Address and Telephone Number of Registrant's Principal Executive Offices)
------------------------------
ARNOLD UNGER, CHIEF EXECUTIVE OFFICER
INTERCORP EXCELLE INC.
1880 ORMONT DRIVE
TORONTO, ONTARIO
CANADA M9L 2V4
(416) 744-2124
(Name, address and telephone number of agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
JAY M. KAPLOWITZ, ESQ. GREGORY SICHENZIA, ESQ.
ARTHUR S. MARCUS, ESQ. SINGER ZAMANSKY, LLP
GERSTEN, SAVAGE, KAPLOWITZ, 40 Exchange Place
FREDERICKS & CURTIN, LLP 20th Floor
101 East 52nd Street New York, New York 10005
New York, New York 10022 (212) 809-8550
(212) 752-9700
</TABLE>
------------------------------
Approximate date of proposed sale to the public: As soon as practicable
after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: /X/
----------------------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING PRICE PER OFFERING REGISTRATION
SECURITIES BEING REGISTERED REGISTERED SECURITY(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock, no par value................................................ 1,224,750(2) $ 5.00 $6,123,750 $1,855.68
Redeemable Common Stock Purchase Warrants................................. 1,224,750(3)(4) .10 122,475 37.11
Common Stock, no par value................................................ 1,224,750(3)(4)(5) 6.00 7,348,500 2,226.82
Underwriters' Warrant..................................................... 106,500 .0001 10 0.00
Common Stock, no par value................................................ 106,500 8.25 878,625 266.25
Redeemable Common Stock Purchase Warrants................................. 106,500(6) .165 17,573 5.33
Common Stock, no par value................................................ 106,500(6)(7) 6.00 639,000 193.64
Total..................................................................... $4,584.83
Previously paid........................................................... $4,584.83
Total owed................................................................ $ 0.00
</TABLE>
- ------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Includes up to 159,750 shares of Common Stock issuable upon exercise of the
Underwriters' over-allotment option.
(3) Includes up to 159,750 Redeemable Common Stock Purchase Warrants (the
"Warrants") issuable upon the exercise of the Underwriters' over-allotment
option.
(4) This Registration Statement also covers any additional shares of Common
Stock which may become issuable by virtue of the anti-dilutive provisions of
the Warrants and the Underwriters' Warrant. No additional registration fee
is included for these shares.
(5) Represents shares of Common Stock issuable upon exercise of the Warrants
offered pursuant to this Registration Statement.
(6) Reserved for issuance upon exercise of the Underwriters' Warrant together
with such indeterminate number of Warrants and/or Common Stock as may be
issuable pursuant to anti-dilution provisions under the Underwriters'
Warrant or the Warrants.
(7) Reserved for issuance upon exercise of the Warrants obtained upon exercise
of the Underwriters' Warrant.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET SHOWING LOCATION
IN PROSPECTUS OF INFORMATION REQUIRED BY ITEMS OF FORM SB-2
<TABLE>
<CAPTION>
REGISTRATION STATEMENT ITEM AND HEADING PROSPECTUS CAPTION
- ----------------------------------------------------------------- ------------------------------------------------------
<C> <S> <C>
1. Front of Registration Statement and Outside Front
Cover Page of Prospectus............................ Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus.......................................... Inside Front and Outside Back Cover Pages
3. Summary Information and Risk Factors.................. Prospectus Summary; Risk Factors
4. Use of Proceeds....................................... Use of Proceeds
5. Determination of Offering Price....................... Cover Page; Underwriting
6. Dilution.............................................. Dilution
7. Selling Security Holders.............................. Principal Stockholders and Selling Securityholders
8. Plan of Distribution.................................. Cover Page; Underwriting
9. Legal Proceedings..................................... Business
10. Directors, Executive Officers, Promoters and Control
Persons............................................. Management
11. Security Ownership of Certain Beneficial Owners and
Management.......................................... Principal Stockholders and Selling Securityholders
12. Description of Securities............................. Description of Securities
13. Interest of Named Experts and Counsel................. Legal Matters; Experts
14. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities...................... Indemnification for Securities Act Liabilities
15. Organization Within Last 5 Years...................... Prospectus Summary; Business
16. Description of Business............................... Prospectus Summary; Business
17. Management's Discussion and Analysis or Plan of
Operations.......................................... Management's Discussion and Analysis of Financial
Condition and Results of Operations
18. Description of Property............................... Business
19. Certain Relationships and Related Transactions........ Certain Transactions
20. Market for Common Equity and Related Stockholder
Matters............................................. Description of Securities; Risk Factors
21. Executive Compensation................................ Management
22. Financial Statements.................................. Financial Statements
23. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure................. Not Applicable
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The by-laws of the Company provide that the Company shall indemnify
directors and officers of the Company. The pertinent section of Canadian law is
set forth below in full. In addition, upon effectiveness of this registration
statement, management intends to obtain officers and directors liability
insurance.
See the second and third paragraphs of Item 28 below for information
regarding the position of the Securities and Exchange Commission (the
"Commission") with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended (the "Securities Act").
Section 136 of the Canadian Business Corporation Act provides as follows:
(1) INDEMNIFICATION OF DIRECTORS-A corporation may indemnify a director
or officer of the corporation, a former director or officer of the
corporation or a person who acts or acted at the corporation's request as a
director or officer of a body corporate of which the corporation is or was a
shareholder or creditor, and his or her heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by him or her in
respect of any civil, criminal or administrative action or proceeding to
which he or she is a party by reason of being or having been a director or
officer of such corporation or body corporate, if,
(a) he or she acted honestly and in good faith with a view to the
best interests of the corporation; and
(b) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he or she has reasonable grounds
for believing that his or her conduct was lawful.
(2) INDEM.-A corporation may, with the approval of the court, indemnify
a person referred to in subsection (1) in respect of an action by or behalf
of the corporation or body corporate to procure a judgment n its favor, to
which the person is made a party by reason of being or having been a
director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by the person in connection
with such action if he or she fulfills the conditions set out in clauses
(1)(a) and (b).
(3) IDEM.-Despite anything in this section, a person referred to in
subsection (1) is entitled to indemnity from the corporation in respect of
all costs, charges and expenses reasonably incurred by him in connection
with the defense of any civil, criminal or administrative action or
proceeding to which he or she is made a party by reason of being or having
been a director or officer of the corporation or body corporate, if the
person seeking indemnity;
(a) was substantially successful on the merits in his or her defense
of the action or proceeding; and
(b) fulfills the conditions set out in clauses (1)(a) and (b).
(4) LIABILITY INSURANCE-A corporation may purchase and maintain
insurance for the benefit of any person referred to in subsection (1)
against any liability incurred by the person,
(a) in his or her capacity as a director or officer of the
corporation, except where the liability relates to the person's failure
to act honestly and in good faith with a view to the best interests of
the corporation; or
II-1
<PAGE>
(b) in his or her capacity as a director or officer of another body
corporate where the person acts or acted in that capacity at the
corporation's request, except where the liability relates to the person's
failure to act honestly and in good faith with a view to the best
interests of the body corporate.
(5) APPLICATION TO COURT-A Corporation or a person referred to in
subsection 91) may apply to the court for an order approving an indemnity
under this section and the court may so order and make any further order it
thinks fit.
(6) IDEM-Upon application under subsection (5), the court may order
notice to be given to any interested person and such person is entitled to
appear and be heard in person or by counsel.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the estimated expenses to be paid by the
Company in connection with the issuance and distribution of the securities being
registered:
<TABLE>
<S> <C>
SEC Registration Fee........................................................... $ 4,333.94
NASD Filing Fee................................................................ 1,897.70
Nasdaq Listing Fees*........................................................... 15,000.00
BSE Listing Fees*.............................................................. 10,000.00
Printing Engraving Expenses*................................................... 75,000.00
Legal Fees and Expenses*....................................................... 125,000.00
Accounting Fees and Expenses*.................................................. 60,000.00
Blue Sky Fees and Expenses*.................................................... 17,500.00
Transfer Agent and Registrar Fees and Expenses*................................ 3,500.00
Non-accountable Expense Allowance.............................................. 153,195.00
Miscellaneous*................................................................. 9,573.36
Total.................................................................... $475,000.00
</TABLE>
- ------------------------
*estimate
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
In the past three years the Company has issued securities to a limited
number of persons as described below. Except as indicated, there were no
underwriters involved in the transactions and there were no underwriting
discounts or commissions paid in connection therewith.
In April 1997, the Company issued an aggregate of 2,900,000 shares of its
Common stock to Arnold Unger, Renee Unger, Lori Gutmann, Alysee Unger and Karen
Unger in exchange for all of the outstanding capital stock of Kalmath
Investments Limited and Intercorp Foods Ltd. The issuance was exempt from
registration under Section 4(2) of the Act.
In May 1997, the Company sold to 26 investors an aggregate of $625,000 12%
promissory notes, 175,000 shares of Common Stock and 175,000 redeemable common
stock purchase warrants. The warrants are exercisable to purchase 175,000 shares
of Common Stock at $3.75 per share or are exchangeable for warrants identical to
the warrants being offered by the Company in the Offering. The Underwriters
placed the securities and received 10% placement agent fees. The sale of
securities was exempt from registration pursuant to Rule 506 under Section 4(2)
of the Act.
In May 1997, the Company granted options to purchase an aggregate 200,000
shares of Common Stock under its 1997 Stock Option Plan to five of its officers
and directors. The transaction was exempt from registration under Section 4(2)
of the Act.
II-2
<PAGE>
ITEM 27. EXHIBITS
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement(1)
1.2 Form of Selected Dealers Agreement(1)
1.3 Form of Agreement Among Underwriters(1)
3.1 Articles of Incorporation of the Registrant(3)
3.2 By-laws of Registrant(2)
4.1 Form of Underwriters' Warrant(1)
4.2 Form of Warrant Agreement(1)
4.3 Specimen Common Stock Certificate(3)
4.4 Specimen Redeemable Common Stock Purchase Warrant Certificate(3)
5.1 Opinion of Wildeboer Rand Thomson Apps & Dellelce(3)
10.1 Form of Consulting Agreement with Underwriters(1)
10.2 1997 Stock Option Plan(2)
10.3 Lease of Company's Facilities(3)
10.4 Form of Employment Agreement with Arnold Unger(3)
10.5 Form of Employment Agreement with Renee Unger(3)
10.6 Business Development Bank of Canada Note(3)
10.7 National Bank of Canada Revolving Demand Credit Facility(3)
21.1 List of Subsidiaries of Registrant(1)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors(2)
23.2 Consent of Wildeboer Rand Thomson Apps & Dellelce (incorporated into Exhibit 5.1)
99.1 Share Exchange Agreement(2)
</TABLE>
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(1) Filed with Amendment No. 1
(2) Filed with Amendment No. 2
(3) Filed with Amendment No. 3
ITEM 28. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to any charter provision, by-law, contract arrangements,
statute, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the small business issuer in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the small business issuer
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned small business issuer hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i)To include any
Prospectus required by section 10(a)(3) of the Act; (ii)To reflect in the
Prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement; (iii)To include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the Offering of
such securities at that time shall be deemed to be the initial bona fide
Offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the Offering.
(4) For determining any liability under the Act, treat the information
omitted from the form of Prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of Prospectus
filed by the small business issuer under Rule 424(b)(1), or (4) or 497(h),
under the Act as part of this registration statement as of the time the
Commission declared it effective.
(5) For determining any liability under the Act, treat each
post-effective amendment that contains a form of Prospectus as a new
registration statement at that time as the initial bona fide Offering of
those securities.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirement for
filing on Form SB-2 and has duly caused this Amendment No. 3 to its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Province of Ontario, Canada on September 23, 1997.
<TABLE>
<S> <C>
INTERCORP EXCELLE INC.
By: /s/ ARNOLD UNGER
----------------------------------------
Arnold Unger
CHIEF EXECUTIVE
OFFICER
</TABLE>
Pursuant to the requirements of the Act, this Amendment No. 3 to the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
We, the undersigned officers and directors of INTERCORP EXCELLE INC. hereby
severally constitute and appoint Arnold Unger, our true and lawful
attorney-in-fact and agent with full power of substitution for us and in our
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and all documents
relating thereto, and to file the same, with all exhibits thereto and other
documents in connection therewith with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing necessary or advisable to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------------------------------------------------------------------------- ---------------
<C> <S> <C>
/s/ ARNOLD UNGER Co-Chairman, Chief Executive Officer
------------------------------------------- September 23,
Arnold Unger 1997
/s/ RENEE UNGER Co-Chairman, President
------------------------------------------- September 23,
Renee Unger 1997
/s/ FRED BURKE Director, Chief Operating Officer, Chief Financial
------------------------------------------- Officer/Principal Accounting Officer, Secretary September 23,
Fred Burke 1997
/s/ LORI GUTMANN Director
------------------------------------------- September 23,
Lori Gutmann 1997
/s/ ALYSSE UNGER Director
------------------------------------------- September 23,
Alysse Unger 1997
/s/ JOHN ROTHSCHILD Director
------------------------------------------- September 19,
John Rothschild 1997
/s/ TAKETO MURATA Director
------------------------------------------- September 19,
Taketo Murata 1997
</TABLE>
* Executed by Arnold Unger as attorney-in-fact pursuant to the power of
attorney executed on July 2, 1997.
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement(1)
1.2 Form of Selected Dealers Agreement(1)
1.3 Form of Agreement Among Underwriters(1)
3.1 Articles of Incorporation of the Registrant(3)
3.2 By-laws of Registrant(2)
4.1 Form of Underwriters' Warrant(1)
4.2 Form of Warrant Agreement(1)
4.3 Specimen Common Stock Certificate(3)
4.4 Specimen Redeemable Common Stock Purchase Warrant Certificate(3)
5.1 Opinion of Wildeboer Rand Thomson Apps & Dellelce(3)
10.1 Form of Consulting Agreement with Underwriters(1)
10.2..... 1997 Stock Option Plan(2)
10.3 Lease of Company's Facilities(3)
10.4 Form of Employment Agreement with Arnold Unger(3)
10.5 Form of Employment Agreement with Renee Unger(3)
10.6 Business Development Bank of Canada Note(3)
10.7 National Bank of Canada Revolving Demand Credit Facility(3)
21.1 List of Subsidiaries of Registrant(1)
23.1 Consent of Schwartz Levitsky Feldman, independent auditors(2)
23.2 Consent of Wildeboer Rand Thomson Apps & Dellelce (incorporated into Exhibit 5.1)
99.1 Share Exchange Agreement(2)
</TABLE>
- ------------------------
(1) Filed with Amendment No. 1
(2) Filed with Amendment No. 2
(3) Filed with Amendment No. 3
<PAGE>
Exhibit 3.1
ARTICLES OF INCORPORATION
1. The name of the Corporation is:
INTERCORP EXCELLE INC.
2. The address of the registered office:
Suite 810, 1 First Canadian Place
Toronto, Ontario M5X1A9
3. Number (or minimum and maximum number) of directors is:
Minimum 1 (ONE) - Maximum 10 (TEN)
4. The first director(s) is/are:
First name initials and surname:
Fred Burke
Residence address, giving Street & No. or R.R. No., Municipality and Postal
Code:
9 Tollbar Court
Richmond Hill, Ontario L4C 6K1
Resident Canadian State Yes or No
Yes
5. Restrictions, if any, on business the corporation may carry on or on
powers the corporation may exercise:
None
6. The classes and any maximum number of shares that the corporation is
authorized to issue:
The corporation is authorized to issue an unlimited number of common
shares and an unlimited number of preference shares.
7. Rights, privileges, restrictions and conditions (if any) attaching to
each class of shares and directors authority with respect to any class of
shares which may be issued in series:
A. The rights, privileges, restrictions and conditions attaching to the
Common Shares of the Corporation are as follows:
(1) Each holder of Common Shares shall be entitled to receive notice
of and to attend all meetings of shareholders of the Corporation,
except meetings at which only holders of other classes or series
of shares are entitled to attend, and at all such meetings shall
be entitled to one vote
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<PAGE>
in respect of each Common Share held by such holder.
(2) The holders of Common Shares shall be entitled to receive
dividends if and when declared by the directors.
(3) In the event of any liquidation, dissolution or winding-up of the
Corporation or other distribution of the assets of the
Corporation among its shareholders for the purpose of winding-up
its affairs, the holders of Common Shares shall be entitled,
subject to the rights of holders of shares of any class ranking
prior to the Common Shares, to receive the remaining property or
assets of the Corporation.
B. The rights, privileges, restrictions and conditions attaching to the
Preferred Shares of the corporation as a class are as follows:
(1) Preferred Shares may at any time or from time to time be
approved for issuance and be issued by the directors in one or
more series. Prior to the issue of the shares of any such
series, the directors shall, subject to the limitations set out
below, fix the number of shares in, and determine the
designation, rights, privileges, restrictions and conditions
attaching to the shares of such series including, without
limitations:
(a) the rate, amount or method of calculation of dividends, if
any, and whether the same are subject to adjustments;
(b) whether such dividends are cumulative, partly cumulative or
non-cumulative;
(c) the dates, manner and currency of payments of dividends and
the dates from which dividends accrue or become payable;
(d) if redeemable, retractable or purchasable, the redemption,
retraction, or purchase prices and the terms and conditions
of redemption, retractions or purchase, with or without
provision for sinking or similar funds;
(e) any conversion, exchange or reclassification rights; and
(f) any other rights, privileges, restrictions and conditions
not
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<PAGE>
inconsistent with these provisions;
the whole being subject to the receipt by the Director under the
Business Corporations Act (Ontario) of articles of amendment designating
and fixing the number of Preferred Shares in such series and setting forth
the rights, privileges, restrictions and conditions attaching to such
series of Preferred Shares and the issue by the Director of a certificate
of amendment with respect to the articles of amendment so filed.
(2) The Preferred Shares of each series shall, with respect to the
payment of dividends and the distribution of assets in the event
of the liquidation, dissolution or winding-up of the Corporation,
whether voluntary or involuntary, or any other distribution of
the assets of the Corporation among its shareholders for the
purpose of winding-up its affairs, rank and be entitled to a
preference over the Common Shares and the shares of any other
class ranking junior to the Preferred Shares.
(3) Except as provided in the Act or otherwise at law, the holders of
Preferred Shares shall not be entitled as such to receive notice
of, or to attend or vote at, any meeting of the shareholders of
the Corporation.
(4) The holders of shares of a class or of a series of the
Corporation are not entitled to vote separately as a class or
series and are not entitled to dissent, upon a proposal to
amend the Articles to:
(a) increase or decrease any maximum number of authorized
shares of such class or series, or increase any maximum
number of authorized shares of a class or series having
rights or privileges equal or superior to the shares of
such class or series;
(b) effect an exchange, reclassification or cancellation of the
shares of such class or series; or
(c) subject to the exceptions contained in the Act, create a new
class or series of shares equal or superior to the shares
of such class or series.
(5) The holders of Preferred Shares shall not, as such, have any
pre-emptive right to subscribe for, purchase or receive any
part of any issue of securities of the Corporation now or
hereafter authorized.
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<PAGE>
8. The issue, transfer or ownership of shares is/is not restricted and
the restrictions (if any) are as follows:
The right to transfer shares of the corporation shall be restricted in
that no shareholder shall be entitled to transfer any share or shares in
the capital of the corporation without either
(a) the previous consent of the directors of the corporation
expressed by a resolution passed by the board of directors
or by an instrument or instruments in writing signed by a
majority of the directors; or
(b) the previous consent of the holders of at least 51
(fifty-one) per cent of the shares of that class for the
time being outstanding expressed by a resolution passed by
the shareholders or by an instrument or instruments in
writing signed by such shareholders.
9. Other provisions, if any, are:
A. The number of shareholders of the corporation, exclusive of person
who are in its employment, and exclusive of persons who having been
formerly in the employment of the corporation, were, while in that
employment, and have continued to be, shareholders of the corporation,
is limited to not more than 50 (fifty), two or more persons who are
the joint registered owners of one or more shares being counted as
one shareholder.
B. Any invitation to the public to subscribe for securities of the
corporation is prohibited.
10. The names and addresses of the incorporators are first name, initials
and surname or corporate name:
Fred Burke
Full residence address or address of registered office or of principal
place of business giving street & No. or R.R. No., municipality and
postal code:
9 Tollbar Court
Richmond Hill, Ontario L4C 6K1
/S/ Fred Burke
--------------
Fred Burke
----------
-4-
<PAGE>
ARTICLES OF AMENDMENT
1. The name of the Corporation is:
INTERCORP EXCELLE INC.
2. Date of incorporation:
April 16, 1997
3. The articles of the Corporation are amended as follows:
(a) by deleting in their entirety the restrictions on the issue, transfer
or ownership of shares of the Corporation contained in paragraph 8 of
the articles of the Corporation; and
(b) by deleting in their entirety the provisions contained in paragraph 9
of the articles of the Corporation.
4. The amendment has been duly authorized as required by Sections 168 and 170
(as applicable) of the Business Corporations Act.
5. The resolution authorizing the amendment was approved by the
shareholders/directors (as applicable) of the Corporation on May 21, 1997.
INTERCORP EXCELLE INC.
By:/s/ Renee Unger
------------------------
Renee Unger, President
<PAGE>
Exhibit 4.3
INTERCORP EXCELLE INC
IC
CUSIP 458651 10 6
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, OF NO PAR VALUE, OF
INTERCORP EXCELLE INC.
(hereinafter called the "Corporation"). The shares evidenced by this
certificate are transferable only on the stock transfer books of the
Corporation by the holder hereof, in person or by attorney, upon surrender of
the certificate properly endorsed.
IN WITNESS WHEREOF the Corporation has caused this certificate to be executed
by the signatures of its duly authorized officers and has caused its
facsimile seal to be hereunto affixed.
Dated:
<PAGE>
CHIEF EXECUTIVE OFFICER
PRESIDENT
COUNTERSIGNED AND REGISTERED:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
(JERSEY CITY, NEW JERSEY)
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED OFFICER
<PAGE>
Exhibit 4.4
VOID AFTER MA , 2001
REDEEMABLE WARRANT CERTIFICATE FOR PURCHASE
OF COMMON STOCK OF
No. IW
NUMBER OF WARRANTS
INTERCORP EXCELLE INC.
CUSIP 458651 11 4
This certifies that FOR VALUE RECEIVED
or registered assigns (the ``Registered Holder'') is the owner of the number
of Redeemable Warrants (the ``Warrants'') specified above. Each Warrant
initially entitles the Registered Holder to purchase, subject to the terms
and conditions set forth in this Certificate and the Warrant Agreement (as
hereinafter defined), one fully paid and nonassessable share of Common Stock,
no par value, of Intercorp Excelle Inc., a Canadian corporation (the
``Company''), at any time between , 1997 and the Expiration Date (as
hereinafter defined), upon the presentation and surrender of this Warrant
Certificate with the Subscription Form on the reverse hereof duly executed,
at the corporate office of Continental Stock Transfer & Trust Company as
Warrant Agent, or its successor (the ``Warrant Agent''), accompanied by
payment of $6.00 per share (the ``Purchase Price'') in lawful money of the
United States of America in cash or by official bank or certified check made
payable to the Warrant Agent.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject in all respects to the terms and conditions set
forth in the Warrant Agreement (the ``Warrant Agreement''), dated as of
, 1997, by and among the Company, the Warrant Agent, Sharpe Capital,
Inc., Aegis Capital Corp. and Klein Maus and Shire Inc.
In the event of certain contingencies provided for in the Warrant Agreement,
the Purchase Price or the number of shares of Common Stock subject to purchase
<PAGE>
upon the exercise of each Warrant represented hereby are subject to
modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock will be issued.
In the case of the exercise of less than all the Warrants represented hereby
the Company shall cancel this Warrant Certificate upon the surrender hereof
and shall execute and deliver a new Warrant Certificate or Warrant
Certificates of like tenor, which the Warrant Agent shall countersign, for
the balance of such Warrants.
The term ``Expiration Date'' shall mean 5:00 p.m. (Eastern time) on ,
2001, or such earlier date as the Warrants shall be redeemed. If such date
shall in the State of New York be a holiday or a day on which the banks are
authorized to close, then the Expiration Date shall be 5:00 p.m. (Eastern
time) the next day which in the State of New York is not a holiday nor a day
in which banks are authorized to close.
The Company shall not be obligated to deliver any securities pursuant to the
exercise of this Warrant unless a registration statement under the Securities
Act of 1933, with respect to such securities is effective. The Company has
covenanted and agreed that it will file a registration statement and will use
its best efforts to cause the same to become effective and to keep such
registration statement current while any of the Warrants are outstanding.
This Warrant shall not be exercisable by a Registered Holder in any state
where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by the
Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an
equal aggregate number of Warrants, each of such new Warrant Certificates to
represent such number of Warrants as shall be designated by such Registered
Holder at the time of such surrender. Upon due presentment together with any
tax or other governmental charge imposed in connection therewith, for
registration of transfer of this Warrant Certificate at such office, a new
Warrant Certificate or Warrant Certificates representing an equal aggregate
number of Warrants will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Warrant Agrement.
Prior to the exercise of any Warrant represented hereby, the Registered
Holder shall not be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends or
other distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in the Warrant Agreement.
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Commencing , 1997 (or earlier, with the prior written consent of
Sharpe Capital, Inc.), this Warrant may be redeemed at the option of the
Company, at a Redemption Price of $0.10 per Warrant, provided the closing bid
price of the Company's Common Stock on the Nasdaq SmallCap Market as reported
by the National Quotation Bureau, Incorproated (or the last sale price, if
quoted on a national securities exchange) exceeds 150% of the then exercise
price of the Warrant to be called for a period of 20 consecutive business
days ending on the third day prior to the day on which notice is given during
the period in which the Warrants are exercisable. Notice of redemption shall
be given not later than the thirtieth (30th) day before the date fixed for
redemption, all as provided in the Warrant Agreement. On and after the date
fixed for redemption, the Registered Holder shall have no rights with respect
to this Warrant except to receive the $0.10 per Warrant upon surrender of
this Certificate.
Prior to due presentment for registration of transfer hereof, the Company and
the Warrant Agent may deem and treat the Registered Holder as the absolute
owner hereof and of each Warrant represented hereby (notwithstanding any
notations of ownership or writing hereon made by anyone other than a duly
authorized officer of the Company or the Warrant Agent) for all purposes and
shall not be affected by any notice to the contrary.
The Company has agreed to pay a fee of five percent (5%) of the Purchase
Price upon certain conditions as specified in the Warrant Agreement upon the
exercise of this Warrant.
This Warrant Certificate shall be governed by nd construed in accordance with
the laws of the State of New York.
This Warrant Certificate is not valid unless countersigned by the Warrant
Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed, manually or in facsimile by two (2) of its officers thereunto
duly authorized and a facsimile of its corporate seal to be imprinted hereon.
Dated:
Countersigned:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
<PAGE>
By:
Authorized Officer
INTERCORP EXCELLE INC.
By:
CHIEF EXECUTIVE OFFICER
By:
PRESIDENT
<PAGE>
Exhibit 5.1
[WILDEBOER RAND THOMSON APPS & DELLELCE LETTERHEAD]
September 23, 1997
Intercorp Excelle Inc.
1880 Ormont Drive
Weston, Ontario
M9L 2V4
Ladies and Gentlemen:
Re: Registration Statement on Form SB-2 - Registration No. 333-7202
We act as corporate counsel to Intercorp Excelle Inc., a Province of Ontario
corporation (the "Company") which has retained counsel in the United States
in connection with the registration of certain securities of the Company
under the Securities Act of 1933, as amended (the "Securities Act"). In that
regard, we have reviewed the Registration Statement on Form SB-2 as filed
under the Securities Act by the Company with the Securities and Exchange
Commission (the "Commission") on July 7, 1997 and the subsequent amendments
thereto (the "Registration Statement"). The Registration Statement has been
filed for the purposes of registering the proposed offering of (i) 1,224,750
shares, no par value, of the Company's common stock (the "Common Stock")
offered for sale by the Company and certain selling securityholders described
in the Registration Statement inclusive of securities issuable on exercise of
the over-allotment option described in the Registration Statement: (ii)
1,224,750 Redeemable Common Stock Purchase Warrants (the "Warrants")
exercisable at $6.00 per share subject to adjustment during the four year
period commencing on the date of the Prospectus which is part of the
Registration Statement, redeemable at $0.10 per Warrant one year from the
date of the final Prospectus under certain conditions as disclosed in the
Warrant inclusive of securities issuable on exercise of the over-allotment
option described in the Registration Statement; (iii) 1,224,750 shares of
Common Stock reserved for issuance upon exercise of the Warrants inclusive of
securities issuable on exercise of the over-allotment option described in the
Registration Statement; (iv) an Underwriters' Warrant exercisable for 106,500
shares, no par value, of the Company's common stock (the "Underwriters'
Warrant"); (v) 106,500 shares of Common Stock relating to the Underwriters'
Warrant; (vi) 106,500 Warrants relating to the Underwriters' Warrant; and
(vii) 106,500 shares of Common Stock reserved for issuance upon exercise of
the Warrants underlying the Underwriters' Warrant issuable to the
underwriters who will participate in the proposed public offering (the
"Underwriters").
<PAGE>
Intercorp Excelle Inc.
September 23, 1997
Page 2
In rendering this opinion, we have examined the originals or copies certified
or otherwise identified to our satisfaction as being true copies of the
Registration Statement, coupled with the Articles of Incorporation, as
amended, By-laws of the Company, minutes of meetings of the board of
directors of the Company and such other documents as we have deemed relevant
and necessary as a basis for this opinion including the Form of the
Underwriting Agreement to be entered into between the Company and the
Underwriters (the "Underwriting Agreement"), which Underwriting Agreement was
filed as Exhibit 1(a) to the Registration Statement.
In our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us, the conformity to original
documents of all documents submitted to us a certified or photostatic copies,
and the authenticity of the originals of such latter documents. As to our
opinion expressed in paragraph one below, we have relied solely upon a
Certificate of Status from the Ministry of Consumer and Commercial Relations
of the Province of Ontario as to the existence of the Company. Furthermore,
capitalized terms used in the context of the opinion shall have the same
meaning ascribed thereto within the Registration Statement.
We are qualified to practice law in the Province of Ontario and express no
opinion as to the laws of any other jurisdiction other than the federal law
of Canada.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the Province of Ontario with corporate power to conduct the
business which it conducts as described in the Registration Statement. Under
the laws of the Province of Ontario, shareholders of the Company are not
personally liable for debts of the Company arising solely from their
ownership of the Company's Common Stock.
2. The Common Stock and Warrants, and the Common Stock issuable upon
exercise of the Warrants have been duly and validly authorized for issuance
by the Company, and when issued, delivered and paid for by the Company and
sold by the Selling Securityholders in a manner set forth in the Registration
Statement, will be fully paid and non-assessable and conform to the
description contained in the section "Description of Securities" in the
prospectus forming a part of the Registration Statement.
This firm consents to the filing of this opinion as an Exhibit to the
<PAGE>
Intercorp Excelle Inc.
September 23, 1997
Page 3
Registration Statement and to the reference to this firm under the section
of "Legal Matters" in the prospectus forming a part of the Registration
Statement.
Yours very truly,
WILDEBOER RAND THOMSON APPS & DELLELCE
By:/s/ Wildeboer Rand Thomson Apps & Dellelce
<PAGE>
Exhibit 10.3
THIS INDENTURE made the 12th day of February, 1993.
BETWEEN:
ORLANDO CORPORATION
a company incorporated under the
laws of the Province of Ontario
(Hereinafter called the "Landlord"),
OF THE FIRST PART;
- and -
EXCELLE BRAND FOODS CORPORATION
a company incorporated under the
laws of the Province of Ontario
(Hereinafter called the "Tenant"),
OF THE SECOND PART;
ARTICLE I - DEMISE AND TERM
Premises
1.01 WITNESSETH that in consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of the
Tenant to be paid, observed and performed, the Landlord does
demise and lease unto the Tenant and the Tenant leases from the
Landlord, the Leased Premises.
Term
1.02 To have and to hold the Leased Premises for and during the
term of 10 years commencing on the 15th day of March, 1993 and
ending on the 14th day of March, 2003 and ending on the 14th day
of March, 2003.
Option to Renew
1.03 If not then in default the Tenant shall have the option to
renew the Lease for two consecutive terms of five (5) years each
upon the same terms and conditions contained in this Lease
except:
(a) there shall be no further right to renew after the second
renewal term; and
<PAGE>
(b) the Basic Rent payable by the Tenant during each
renewal period shall be fair market rent as of the date
of commencement of the renewal term based on similar
term, premises and location as for the Leased Premises,
provided in no event shall the Basic Rent for the
renewal period be less than as provided for in the
immediately preceding period. If the Landlord and the
Tenant cannot agree on the Basic Rent for the renewal
term at least ninety (90) days prior to the
commencement of the renewal term, the Basic Rent for
such renewal period shall be determined by arbitration
as hereinafter set out:
Each of the Landlord and Tenant shall at once agree upon the
appointment of an arbitrator and shall submit the dispute to
the arbitrator for determination in accordance with the
provisions of the Arbitrations Act of Ontario. The decision
of the arbitrator so appointed shall be final and binding
upon the Landlord and Tenant who covenant one with the other
that such dispute shall be decided by arbitration alone and
not by recourse to any court by action at law. If within a
reasonable time the Landlord and Tenant do not agree upon an
arbitrator, the arbitrator may, upon petition of either the
Landlord or the Tenant, be appointed by a judge of the
Ontario Court (General Division). The cost of arbitration
shall be apportioned between the Landlord and the Tenant
equally.
In order to exercise each renewal option, the Tenant shall be
required to give notice to the Landlord thereof in writing not less
than twelve (12) months prior to the expiry of the initial Term of the
Lease in the case of the first renewal option and not less than twelve
(12) months before the expiry of the first renewal term in the case of
the second renewal option.
Acceptance
of Premises
1.04 The Tenant shall examine the Leased Premises before taking
possession hereunder and such taking of possession shall be
conclusive evidence as against the Tenant that at the time
thereof the Leased Premises were in good order and satisfactory
condition and that all promises, representations and undertakings
by or binding upon the Landlord with respect to any alteration,
remodeling or decorating of or installation of fixtures in the
Leased Premises, have been fully satisfied and performed by the
Landlord. The Tenant acknowledges that the existing leasehold
improvements, if any, are acceptable and that the Tenant is
taking possession of the Leased Premises as is, subject to the
provisions of Schedule "D" hereto and Section 6.04 herein.
ARTICLE II - LANDLORD AND TENANT COVENANTS
Landlord Covenants
2.01 If the Tenant pays the Rent hereby reserved and performs the
covenants herein on its part contained, the Tenant shall and may
peaceably possess and enjoy the Leased Premises for the Term
hereby granted without any interruption or disturbance from the
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Landlord or any other person or persons lawfully claiming by,
from or under the Landlord.
Tenant Covenants
2.02 The Tenant covenants to pay Rent and all other charges
provided for in this Lease on their due dates and to observe and
perform all of the covenants and provisions of this Lease on its
part to be observed and performed.
ARTICLE III - RENT
Intent of Lease
3.01 This is a carefree net lease to the Landlord, except as
expressly hereinafter set out and it is the mutual intention of
the parties hereto that the Basic Rent herein provided to be paid
shall be net to the Landlord clear of all taxes, costs and
charges arising from or relating to the Leased Premises, save as
hereinafter expressly set out. Charges of a kind personal to the
Landlord such as taxes assessed on the income of the Landlord,
estate, capital, and inheritance tax and similar taxes and
principal and interest payments to be made by the Landlord in
satisfaction of mortgages now or hereinafter registered against
the Leased Premises shall not be the responsibility or obligation
of the Tenant.
Basic Rent
3.02 Yielding and saying therefor yearly and every year during
the Term unto the Landlord as Basic Rent for the Leased Premises
the following amounts:
(a) For year 1 of the Term (commencing June 15th, 1993 and
ending June 14th, 1994) the sum of $100,000.00 of lawful
money of Canada to be paid in advance in equal monthly
instalments of $8,333.33 an the first day of each and every
month during this portion of the Term; and
(b) For years 2 to 5 inclusive of the Term (commencing June
15th, 1994 and ending June 14th, 1998) the sum of
$149,496.00 of lawful money of Canada to be paid in advance
in equal monthly instalments of $12,458.00 on the first day
of each and every month during this portion of the Term; and
(c) For years 6 to 10 inclusive of the Term (commencing June
15th, 1998 and ending March 14th, 2003) the sum of
$224,244.00 of lawful money of Canada to be paid in advance
in equal monthly instalments of $18,687.00 on the first day
of each and every month during this portion of the Term.
The first payment of Basic Rent shall be made on the 15th day of June, 1993.
3
<PAGE>
If the Term commences on any day other than the first or ends on
any day other than the last day of a month, Basic Rent and Additional
Rent for the fractions of a month at the commencement and at the end
of the Term shall be adjusted pro rata on a per diem basis.
Additional Rent
3.03 The Tenant shall pay Additional Rent due and owing to the
Landlord within ten (10) days of written demand therefor or as
otherwise hereinafter expressly set out and all other Additional
Rent on the due date thereof. Additional Rent shall commence to
accrue as of the commencement date of the Term.
Deposit
3.04 The Landlord acknowledges receipt of the sum of $27,603.31
being:
(a) $8,333.33 to be held without interest by the Landlord and to
be applied on account of the Basic Rent for the first month
of the Term; and
(b) $18,687 to be held by the Landlord as security for the full
and faithful performance by the Tenant of all the
agreements, terms, covenants and conditions herein set forth
and applied against expenses or other costs or damages
incurred by the Landlord and to be payable as liquidated
damages and not as penalty, upon forfeiture, default or
early termination without prejudice to any further claims by
the Landlord for damages and any remedy for recovery
thereof. In the event the Tenant observes and performs the
terms and conditions of this Lease, such money shall be
applied on account of Basic Rent for the last month of the
Term. The Landlord shall accrue interest on the amount set
out in this subparagraph at the rate of 5% per annum, which
amount shall be credited to the Tenant at the expiration of
the Term.
Payments to Landlord
3.05 All payments to be made by the Tenant to the Landlord under
this Lease shall be made at the address hereinafter designated
or, at such other place or places as the Landlord may designate
in writing, and to the Landlord or to such agent of the Landlord
as the Landlord shall from time to time direct.
Overdue Rent
3.06 The Tenant shall pay the Landlord interest on all overdue
Rent, all such interest to be calculated from the date upon which
the amount is first due hereunder until actual payment thereof
and at a rate being the lesser of five percent (5%) per annum in
excess of the minimum lending rate to prime commercial borrowers
charged by the Landlord's bank from time to time and the rate
permitted by law.
Set-Off
3.07 All Rent payable by the Tenant to the Landlord shall be paid
without deduction, set-
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off or abatement except as expressly hereinafter provided.
Adjustments
3.08 Upon the termination of this Lease other than by reason of
default of the Tenant, the Landlord and Tenant shall pro-rate,
adjust, apportion and allow between themselves all items of
Taxes, insurance, water rates and other matters of a similar
nature, to the intent and purpose that the Tenant shall bear the
burden thereof until it shall deliver up possession on the
termination of this Lease or of any holding over hereunder and
not afterwards.
ARTICLE IV - TAXES
Taxes Payable
by Landlord
4.01 The Landlord shall pay the Taxes charged on the Leased
Premises to the applicable taxing authority, subject to
reimbursement by the Tenant as hereinafter set out. The Landlord
shall have no obligation to contest or litigate the imposition of
any Taxes.
Taxes Payable
by Tenant
4.02 The Tenant shall pay as Additional Rent, the amount
calculated by multiplying the assessment for the Leased Premises
by the applicable mill rate, which amount shall, for the purposes
of this paragraph only and notwithstanding anything else herein
contained, be the Tenant's "Proportionate Share" of Taxes for the
Leased Premises. In the first year of the Term only, the Tenant
shall be responsible for Taxes in respect of 50,000 square feet
of the Leased Premises only.
Tenant's Business
and Other Taxes
4.03 In addition to the Taxes payable by the Tenant pursuant to
Section 4.02, the Tenant shall pay to the lawful taxing
authorities in the case of taxes payable pursuant to paragraph
(a) and (b) hereof and to the Landlord in the case of taxes
payable pursuant to paragraph (c) hereof:
(a) all taxes, rates, duties, assessments and other charges that
are levied, rated, charged or assessed against or in respect
of all improvements, requirement and facilities of the
Tenant on or in the Leased Premises, the Lands or the
Building or any part thereof; and
(b) every tax and license fee which is levied, rated, charged or
assessed against or in respect of and every business carried
on in the Leased Premises or in respect of the
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<PAGE>
use or occupancy thereof or any part of the Lands or the Building
by the Tenant and every sub-tenant or licensee of the Tenant and
whether in any case, any such taxes, rates, duties, assessments or
license fees are rated, charged or assessed by any federal, provincial,
municipal, school or other body during the Term; and
(c) the full amount of any taxes in the nature of a business transfer tax,
value added tax, sales tax or any other tax levied, rated, charged or
assessed in respect of the Rent payable by the Tenant under this Lease
or in respect of the rental of space under this Lease, whether
characterized as a goods and services tax, sales tax, value added tax,
business transfer tax or otherwise.
Payment
of Taxes
4.04 (a) The Landlord shall be entitled at any time or times in
any Year, upon at least fifteen (15) days notice to the
Tenant to require the Tenant to pay to the Landlord the
Tenant's Proportionate Share of the Taxes for such Year
in equal monthly instalments. Such monthly amount
shall be determined by dividing the Tenant's
Proportionate Share of Taxes by the number of months
for the period from January lst in each Year of the
Term until the due date of the final instalment of
Taxes as established by the applicable taxing authority
from time to time in each Year ("Instalment Period")
and shall be paid by the Tenant to the Landlord,
monthly as Additional Rent, on the date for payment of
monthly rental payments during the Instalment Period.
The Landlord shall be entitled subsequently during such
Year, upon at least fifteen (15) days notice to the
Tenant, to revise its estimate of the amount of
increase in such Taxes and the said monthly instalment
shall be revised accordingly. All amounts received
under this provision in any Year on account of the
estimated amount of such Taxes shall be applied in
reduction of the actual amount of such Taxes for such
Year. If the amount received is less than the Tenant's
Proportionate Share of the actual Taxes, the Tenant
shall pay any deficiency to the Landlord as Additional
Rent within fifteen (15) days following receipt by the
Tenant of notice of the amount of such deficiency. If
the amount received is greater than the Tenant's
Proportionate Share of the actual Taxes, the Landlord
shall either refund the excess to the Tenant as soon as
possible after the end of the Year in respect of which
such payments were made or, at the Landlord's option,
shall apply such excess against any amounts owing or
becoming due to the Landlord by the Tenant.
(b) Taxes payable pursuant to Section 4.03 (a) and (b)
shall be paid by the Tenant when due if separate tax
bills are issued and otherwise shall be paid to the
Landlord within ten (10) days written demand therefor;
and
(c) Taxes payable pursuant to Section 4.03 (c) shall be paid to the
Landlord
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<PAGE>
within ten (10) days written demand therefor or at such time or
times as the Landlord from time to time determines by notice in
writing to the Tenant.
(d) if the Term of this Lease commences or ends on any day
other than the first or last day, respectively, of a
Year, the Tenant shall be liable only for the portion
of the Taxes for such Year as falls within the Term,
determined on a per diem basis.
Appeal of Assessment
4.05 The Tenant shall have the right to contest at its own
expense (and in the name of the Landlord, if necessary) by
appropriate legal proceedings the validity of any Taxes and if
the payment of such Taxes may legally be held in abeyance without
subjecting the Landlord to any liability of whatever nature for
failure to so pay, the Tenant may postpone such payment until the
formal determination of any such proceedings provided they be
prosecuted with all due diligence and dispatch. The Landlord
shall execute all powers of attorney and other documents or
proceedings necessary or useful in order to permit the Tenant to
contest, at its own expense in its own name or in the Landlord's
name, the validity of any Taxes. Nothing herein shall oblige the
Tenant or the Landlord to contest the validity of such Taxes.
ARTICLE V - HEATING AND UTILITIES
Utility Charges
5.01 The Tenant shall pay to the suppliers thereof on the due
dates, all charges for telephone, electric current and all other
utilities supplied to or used in connection with the Leased
Premises.
Heating
5.02 The Tenant shall maintain the temperature in the Leased
Premises at a reasonable level to avoid damage occurring in or to
the Leased Premises.
Service Contracts
5.03 The Tenant covenants and agrees to take out a standard
servicing contract with a capable company for the service and
maintenance of heating units and furnaces and air conditioning
equipment in the Leased Premises, such contract to include the
monthly cleaning of exchangers and the replacement of filters,
and to keep such contract in force for the Term of the within
Lease or any renewal thereof. The Tenant agrees to provide the
Landlord with a copy of the aforesaid servicing contract. In the
event that during the Term of the Lease or any renewal thereof,
any of the heating units, furnaces or air conditioning equipment
require replacement (unless such replacement is caused by the
Tenant's use of the Leased Premises), new units are to be
installed at the cost of the Landlord and the annual amortized
cost of such replacement, amortized over a period of 10 years,
shall be paid by the Tenant annually as Additional Rent to the
Landlord over the
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balance of the Term.
ARTICLE VI - MAINTENANCE, REPAIR AND ALTERATIONS
Repairs and
Replacements by Tenant
6.01 The Tenant shall make all necessary replacements to and
repair the Leased Premises in all respects both inside and
outside including repairing and replacing the drains and sanitary
sewers, repairing the heating and water apparatus,
air-conditioning and all fixtures and additions thereto in a
state of repair and condition to the same extent as would a
careful owner in occupation. For the first 5 years of the Term
the Tenant shall only be responsible for up to $5,000.00 per
annum in respect of any repairs to the roof of the Leased
Premises as determined by the Landlord acting reasonably and the
Landlord shall be responsible for the balance of such costs, if
any, over the aforesaid sum of $5,000.00. If the roof, in the
opinion of the Landlord acting reasonably, requires replacement
during the first 5 years of the Term, the Landlord shall replace
the roof at its cost and the Tenant shall pay the annual
amortized amount thereof, based on a 10 year amortization period,
to the Landlord as Additional Rent. In the event of any dispute
between the Landlord and the Tenant with respect to the need for
or extent of such repairs or replacements, the dispute shall be
settled by arbitration in the same manner as provided for in
Section 1.03 hereof. For the remainder of the Term and any
renewal term, the Tenant shall be fully responsible for all costs
associated with the repair or replacement of the roof of the
Leased Premises, maintenance by Tenant
Maintenance by Tenant
6.02 The Tenant shall at all times during the Term at its own
cost and expense keep or cause to be kept, the Leased Premises
well maintained, clean and tidy, including without limiting the
generality of the foregoing, keeping the Building properly
painted and decorated and otherwise presentable and of good
appearance, the driveways and parking areas free and clear of
snow and ice, and the lawn, trees and shrubs in good order and
condition, all to the standards of a first class industrial
building and in accordance with all the requirements of this
Lease and the reasonable requirements of the Landlord, its
insurers and governmental authorities having jurisdiction.
View and Repair
6.03 The Tenant shall allow the Landlord or its duly appointed
agent and work people at reasonable times on 48 hours prior
notice (except in cases of emergency in which case no notice
shall be required) to enter the Leased Premises and view the
state of repair and the Tenant shall repair as aforesaid
according to notice in writing, provided always that if the
Tenant shall not within fifteen (15) days after service of such
notice, commence and proceed diligently with the execution of the
repairs and works mentioned in such notice, it shall be lawful
for the Landlord to enter upon the Leased Premises and execute
such repairs and works and to charge the cost thereof to the
Tenant. In order to protect the
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confidentiality of the Tenant's business on the Leased Premises and
notwithstanding anything contained herein, it is agreed that a
representative of the Tenant shall be present at all such viewings and
neither the Landlord or its representatives shall be entitled to make any
type of reproductive matter relating to the Tenant's business
operations on the Leased Premises.
Repairs by Landlord
6.04 The Landlord shall be responsible for the repair and
replacement of the footings, foundations bearing walls,
structural columns and beams and roof frame only of the Leased
Premises unless such repairs or replacements are necessitated by
the negligence of the Tenant or those for whom in law it is
responsible.
Alterations
6.05 The Tenant shall not, without the prior written approval of
the Landlord make any installations, alterations, additions,
partitions, repairs or improvements in or to the Leased Premises,
including doing anything which might affect the structural
portions of the Leased Premises or the electrical, lighting,
heating, ventilating, air-conditioning, sprinkler, fire
protection or other systems therein; the Tenant's request for
approval shall be in writing and accompanied by an adequate
description of the contemplated work, and where appropriate,
working drawings and specifications therefor; the Landlord's
costs of having its architects, engineers or others examine such
drawings and specifications shall be payable by the Tenant upon
demand as Additional Rent; the Landlord may require that any or
all work to be done hereunder in respect of the link between the
two buildings comprising the Leased Premises and truck doors, be
done by the Landlord's contractors or workmen or by contractors
or workmen engaged by the Tenant but first approved by the
Landlord, and all work shall be subject to inspection by and the
reasonable supervision of the Landlord including a reasonable
supervision fee of the Landlord to be paid by the Tenant and
shall be performed in accordance with all laws and any reasonable
conditions and regulations imposed by the Landlord and shall be
completed in a good and workmanlike manner and with reasonable
diligence in accordance with the approvals given by the Landlord;
any connections of apparatus to the base electrical, plumbing,
heating, ventilating or air-conditioning systems shall be deemed
to be an alteration within the meaning of this Section. The
Tenant shall, at its own cost and before commencement of any
work, obtain all necessary building or other permits and keep
same in force. The maximum fee payable by the Tenant in respect
of inspection or supervisory work performed by the Landlord, its
agents, servants, workmen, or employees shall not exceed $500.00.
Removal of Fixtures
and Improvements
6.06 Leasehold Improvements shall immediately become the property
of the Landlord upon affixation or installation without
compensation therefor to the Tenant but the Landlord is under no
obligation to repair, maintain or insure such Leasehold
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Improvements. Such Leasehold Improvements shall not be removed
from the Leased Premises either during or at the expiration or
earlier termination of the Term, except that the Tenant shall, at
the end of the Term remove such Leasehold Improvements installed
or constructed after the commencement of the Term as the Landlord
may require to be removed. The Tenant may, during the Term or at
the expiration of the Term remove its trade fixtures provided
that the Tenant is not in default under this Lease and, in the
case of removal during the Term, such trade fixtures are
immediately replaced by trade fixtures of equal or better value.
Any removal of such Leasehold Improvements and the Tenant's trade
fixtures shall be done at the Tenant's sole cost and expense and
the Tenant shall make good any damage caused to the Leased
Premises or any part thereof by the installation or removal of
such Leasehold Improvements and trade fixtures. If the Tenant
does not remove its trade fixtures at the expiration or earlier
termination of the Term (which the Tenant is entitled to so
remove) the trade fixtures shall, at the option of the Landlord,
become the property of the Landlord and may be removed from the
Leased Premises and sold or disposed of by the Landlord in such
manner as it deems advisable. For greater certainty, the
Tenant's trade fixtures shall not include any heating,
ventilating and air-conditioning equipment or other building
services or floor covering affixed to the floor of the Leased
Premises. The obligations of the Tenant set forth herein shall
survive the expiry or other termination of the Term.
Construction Liens
6.07 The Tenant covenants to pay promptly all its contractors and
material men and do any and all things necessary to minimize the
possibility of a lien attaching to the Leased Premises or to any
part of the Building or the Lands and, should any such lien be
made or filed, the Tenant shall discharge the same forthwith
(after notice thereof is given to the Tenant) at the Tenant's
expense. In the event the Tenant shall fail to cause any such
lien to be discharged as aforesaid, then, in addition to any
other right or remedy of the Landlord, the Landlord may, but it
shall not be so obligated vacate same by paying the amount
claimed to be due into Court and the amount so paid by the
Landlord and all costs and expenses including solicitor's fees
(on a solicitor and his client basis), incurred herein for the
discharge of such lien shall be due and payable by the Tenant to
the Landlord as Additional Rent on demand.
Repairs on Termination, etc.
6.08 At the expiration or sooner termination of the Term, the
Tenant shall, at its own expense:
(a) deliver up possession of the Leased Premises to the Landlord
in the same condition in which the Tenant is required
hereunder to repair and maintain the Leased Premises
reasonable wear and tear excepted, together with all
Leasehold Improvements which the Tenant is required or
permitted to leave therein or hereon free and clear of all
encumbrances and in a clean and tidy condition and free of
all rubbish and to deliver to the Landlord all keys and
security devices;
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(b) remove any materials which may be deemed by any applicable
legislation as contaminated or hazardous and which have been
brought on to the Leased Premises by the Tenant or which are
a result of the Tenant's use or occupation of the Leased
Premises; and
(c) remove any storage and/or holding tanks whether above ground
or below ground and all pits from the Leased Premises which
were installed by the Tenant, at the option of the Landlord.
(d) restore the floors of the Leased Premises to the condition
of the floors as of the date of this Lease and to remove all
equipment and machinery and repair any damage caused by such
removal.
The covenants contained in this Section shall survive the expiry or other
termination of the Term.
ARTICLE VII - ASSIGNING AND SUBLETTING
Assigning or Subletting
7.01 (a) The Tenant shall not assign this Lease or sublet or
franchise, license, grant concessions in, or otherwise
part with or share possession of the Leased Premises,
or any part thereof, without the prior written consent
of the Landlord; at the time the Tenant requests such
consent the Tenant shall deliver to the Landlord such
information in writing (the "required information") as
the Landlord may reasonably require, including a copy
of the proposed offer or agreement, if any, to assign
or sublet or otherwise and the name, address and nature
of business and evidence as to the financial strength
of the proposed assignee or subtenant. In no event
shall any assignment of the Lease release the Tenant
from its obligations fully to perform all the terms,
conditions and covenants of this Lease.
PROVIDED however, and it is made a condition to the giving of such consent
that:
(i) The proposed assignee or sublessee of this Lease shall
agree in writing to assume and perform all of the
terms, covenants, conditions and agreements by this
Lease imposed upon the Tenant herein in a form to be
approved by the solicitor for the Landlord;
(ii) The Tenant shall pay the Landlord all reasonable legal
fees in connection with the assignment;
(iii) The consent of the Landlord is not a waiver of the
requirement of the Landlord's consent for
subsequent assignments of the Lease or subletting
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of the Leased Premises;
(iv) The acceptance by the Landlord of Rent from an assignee
or sublessee without the Landlord's consent shall not
constitute a waiver of the requirement of such consent
nor an acceptance of such party as the Tenant;
(v) If the assignment of Lease or subletting of the Leased
Premises does not take place within sixty (60) days
of the giving of consent by the Landlord the consent
shall expire and become null and void; and
(vi) if the Lease is disaffirmed, disclaimed or terminated
by any trustee in bankruptcy of an assignee or
sublessee, the original Tenant named in this Lease will
be deemed on notice from the Landlord given within
sixty (60) days from the date of such disaffirmation,
disclaimer or termination to have entered into a Lease
with the Landlord containing the same terms and
conditions as in this Lease.
(b) If an assignment or subletting occurs without the consent of
the Landlord when required, the Landlord may collect Rent
from the party in whose favour the assignment or subletting
was made and apply the net amount collected to the Rent
herein reserved but no such assignment or subletting will be
considered a waiver of this covenant or the acceptance of
the person in whose favour the assignment or subletting was
made as a tenant hereunder.
Change of Control
7.02 If the Tenant is a private corporation and any part in
excess of 50% thereof or all of the corporate shares shall be
transferred by sale, assignment, operation of law or other
disposition or dispositions so as to result in a change in the
control of the corporation, such change of control shall be
considered an assignment of this Lease and shall be subject to
the provisions of Section 7.01 hereof. The Tenant shall make
available to the Landlord upon its request a statutory
declaration of a senior officer of the Tenant as to the
applicability or inapplicability of this section.
Excess Rent
7.03 In the event that the Basic Rent payable under any sublease
or assignment is in excess of the Basic Rent reserved hereunder
or is in excess of the proportionate Rent reserved in the event
of a sublease of part of the Leased Premises, whether the excess
be in the form of cash, goods or services from the subtenant or
assignee or anyone acting on its behalf, to pay 50% of such
excess to the Landlord immediately upon receipt thereof; in the
event that such excess is represented by goods or services
rendered to the Tenant or its nominee, the value of those goods
or services shall be determined by the Landlord and Tenant and
50% of that value shall be paid in cash to the Landlord
immediately herein upon such determination. Notwithstanding the
foregoing, if the Tenant is in occupation
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of at least 50% of the Leased Premises, the Tenant shall not be required
to pay the Landlord any excess rent in the case of a subletting.
Mortgage of
Leasehold, etc.
7.04 The Tenant shall not mortgage, pledge, hypothecate or
otherwise encumber all or any portion of the Tenant's interest in
this Lease or the Leasehold improvements.
Advertising
Premises
7.05 The Tenant shall not advertise or allow the Leased Premises
or a portion thereof to be advertised as being available for
assignment, sublease or otherwise without the prior written
approval of the Landlord of the form and content of such
advertisement, which approval shall not be unreasonably withheld,
provided that no such advertising shall contain any reference to
the Rent for the Leased Premises.
Disposition
by Landlord
7.06 If the Landlord sells the Leased Premises or any part
thereof, or assigns this Lease, and to the extent that the
covenants and obligations of the Landlord hereunder are assumed
by the purchaser or assignee, the Landlord, without further
written agreement, will be discharged and relieved of liability
under the said covenants and obligations.
ARTICLE VIII - USE
Use of Leased
Premises
8.01 The Tenant shall not use the Leased Premises nor allow the
Leased Premises to be used for any purpose other than
manufacturing and distribution of food, salad dressings and
related business.
Observance
of Law
8.02 The Tenant shall comply promptly with and conform to the
requirements of all applicable statutes, by-laws, laws,
regulations, ordinances and orders from time to time or at any
time in force during the Term of this Lease and affecting the
condition, equipment, maintenance, use or occupation of the
Leased Premises and with every applicable regulation, order and
requirement of the Canadian Fire Underwriters Association or any
body having similar functions or of any liability or fire
insurance company by which the Landlord and the Tenant or either
of them may be insured at any time during the Term hereof, and,
in the event of the default of the Tenant under the provisions of
this Section, the Landlord may itself comply with any such
requirements as aforesaid and the Tenant will forthwith pay all
costs and expenses incurred by the Landlord
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in this regard and the Tenant agrees that all such costs and expenses shall
be recoverable by the Landlord as if the same were Additional Rent reserved
and in arrears under this Lease.
Waste and
Nuisance
8.03 The Tenant shall not do or suffer any waste, damage,
disfiguration or injury to the Leased Premises or the fixtures
and equipment thereof and shall not use or permit to be used any
part of the Leased Premises for any dangerous, noxious or
offensive trade or business nor use the Leased Premises in any
manner which, in the opinion of the Landlord acting reasonably,
is detrimental to the Building, nor keep, sell, use or handle and
dispose of any goods or things which may be objectionable nor
cause or maintain any nuisance in, at or on the Leased Premises
nor cause any annoyance, nuisance or disturbance to the occupiers
or owners of any adjoining lands and/or premises and shall store
and handle any hazardous waste and contaminants in accordance
with applicable governmental regulations. Notwithstanding
anything else herein contained, the Landlord acknowledges that
the normal conduct of the use set out in Section 8.01 shall not
be deemed a breach of this section.
Signs
8.04 The Tenant may affix a sign or signs to the Building,
subject to the approval of the Landlord which shall not be
unreasonably withheld and subject to municipal and other
governmental regulations in that respect and the Tenant shall
remove the same on the expiration of the Term of this Lease, or
other sooner termination thereof, provided the Tenant at its
expense shall forthwith make good all damages which may be caused
or occasioned by such removal and this covenant shall survive the
expiry or other termination of the Term.
Outside Storage
8.05 The Tenant shall not store any goods or matter of any kind
outside the Building without the written consent of the Landlord.
Overloading Floors
8.06 The Tenant covenants that it will not bring upon the Leased
Premises or any part thereof any machinery, equipment, article or
thing that, by reason of its weight, size, or operation, might
damage the Leased Premises and will not at any time overload the
floors of the Leased Premises. The Tenant shall remove any such
machinery, equipment, article or thing within five (5) days
written notice thereof and if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by
overloading, the Tenant shall forthwith repair such damage at its
own expense.
ARTICLE IX - INSURANCE AND INDEMNITY
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Tenant's Insurance
9.01 The Tenant shall, at its expense, maintain in force during
the Term and any renewals thereof in the names of the Tenant, the
Landlord and the Landlord's mortgagee, if any, the following
insurance:
(a) comprehensive general liability insurance against claims for
personal injury, death or property damage arising out of all
operations of the Tenant, (including tenants' legal
liability, personal liability, property damage and
contractual liability to cover all indemnities and repair
obligations) with respect to the business carried on in and
from the Leased Premises, in amounts required by the
Landlord and any mortgagee of the Building or any part
thereof from time to time but in no event more than Three
Million Dollars ($3,000,000.00) per occurrence during the
initial Term;
(b) property insurance covering all property owned by the
Tenant, or for which the Tenant is responsible pursuant to
this Lease, or which has been installed by or on behalf of
the Tenant including without limitation all chattels,
equipment, furniture, inventory, fixtures and all Leasehold
Improvements and all other contents of the Leased Premises,
in an amount equal to the full replacement value thereof;
and
(c) such other forms of insurance as may be reasonably required
by the Landlord and its mortgagee from time to time.
Any policy written pursuant to paragraph (a) hereof, shall contain a
severability of interest clause and cross-liability clause. All policies shall
contain an undertaking by the insurers to notify the Landlord and its mortgagee,
if any, in writing not less than thirty (30) days prior to any material change,
cancellation or termination thereof.
The Tenant agrees to furnish upon request from the Landlord verification of
compliance with the provisions of this Section 9.01.
Landlord's
Insurance
9.02 The Landlord shall, throughout the Term, keep at the sole
cost and expense of the Tenant, the Building and appurtenances
thereto, insured to the following extent:
(a) against such loss or damage as are customarily insured
against under a policy of insurance commonly known as a
Multi-Peril or All-Risk policy;
(b) blanket broad boiler and pressure vessel insurance including
repair or replacement;
(c) rental income protection insurance with respect to fire and
other usual perils for which such insurance is customarily
issued for a period (as selected by the Landlord) of not
less than six (6) months and not more than twelve (12)
months for the Basic Rent and other sums payable as
Additional Rent under this Lease;
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(d) other casualties as are customarily insured against under
insurance contracts normally entered into from time to time
during the Term by owners of buildings in the area of a
character similar to the Leased Premises for such an amount
as in the reasonable opinion of the Landlord is necessary to
protect the Landlord against loss or damage.
Notwithstanding anything herein provided, including the covenant of the
Landlord to take out the aforesaid insurance or the contribution of the
Tenant to the cost of such insurance, nothing herein shall confer any
insurable interest on the Tenant in respect of such insurance and the Tenant
acknowledges that it has no right to receive the proceeds or any part thereof
from such insurance policies.
Limit of
Landlord's
Liability
9.03 The Landlord shall not be responsible in any way for any
injury to any person (including death) or for any loss of or
damage to any property belonging to the Tenant or to other
occupants of the Leased Premises or to their respective
employees, agents, invitees, licensees or other persons from time
to time attending at the Leased Premises while such person or
property is in or about the Leased Premises, including without
limiting the foregoing, any loss of or damage to any property
caused by theft or breakage, or by steam, water, rain or snow or
for any loss or damage caused by or attributable to the condition
or arrangements of any electric or other wiring or for any damage
caused by smoke or for any other loss whatsoever with respect to
the Leased Premises, goods placed therein or any business carried
on therein.
Limit of
Tenant's
Liability
9.04 The Tenant shall not be liable to the Landlord for any
direct injury, loss or damage required to be insured by the
Landlord pursuant to paragraphs (a) or (b) of Section 9.02 to the
extent of the proceeds actually recovered by the Landlord under
such policies of insurance provided the Landlord has complied
with its obligations under Section 9.02 hereof.
Indemnity
9.05 The Tenant shall promptly indemnify and save harmless the
Landlord from any and all liabilities, damages, costs, claims,
suits or actions arising out of any breach, violation or
non-observance by the Tenant of any of its covenants and such
property shall be in or about the Leased Premises including the
systems, furnishings and amenities thereof, as a result of the
willful or negligent act or omission of the Tenant, its employees,
agents,
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invitees or licensees; and from any injury to any employee, agent,
invitee or licensee, of the Tenant, including death resulting at any time
therefrom, occurring on or about the Leased premises. Notwithstanding
anything else herein contained, this indemnity shall survive the expiry or
earlier termination of this Lease, in respect of any of the foregoing
circumstances during the Term.
ARTICLE X - DAMAGE AND DESTRUCTION
Abatement of Rent
10.01 If the Building or any portion thereof is damages or
destroyed by fire or by other casualty against which the Landlord
is required to insure for hereunder, Rent shall abate in
proportion to the area of that portion of the Building which, in
the reasonable opinion of the Landlord, is thereby rendered unfit
for the purposes of the Tenant bears to the area of the entire
Building until the Building is repaired and rebuilt as certified
by the Landlord's architect and the Landlord agrees that it will,
with reasonable diligence, repair, restore and rebuild the
Building. The Landlord's obligation to rebuild and restore the
Building shall not include the obligation to rebuild, restore,
replace or repair any chattel, fixture, Leasehold Improvement, or
any other thing that is the property of the Tenant and/or for
which the Tenant is to maintain insurance under Section 9.01(b),
(in this Section collectively called "Tenant's Improvements");
the Building shall be deemed restored and rebuild when the
Landlord's Architect certifies that the Building has been
substantially restored and rebuilt to the state where the Tenant
could occupy it for the purpose of the rebuilding, restoring,
replacing or repairing the Tenant's Improvements. The issuance
of the Architect's certificate shall not relieve the Landlord of
its obligation to complete the rebuilding and restoration as
aforesaid, but the Tenant shall forthwith after issuance of the
certificate proceed to rebuild, restore, replace and repair the
Tenant's Improvements, and the provisions of Section 6.04 shall
apply to such work, mutatis mutandis.
Termination
10.02 Notwithstanding the provisions of Section 10.01 hereof:
(i) if the Building or any portion hereof is damaged or
destroyed by any cause whatsoever and cannot in the
reasonable opinion of the Landlord be rebuilt or made fit
for the purposes of the Tenant as aforesaid within one
hundred and eighty (180) days from the date of damage or
destruction, the Landlord instead of rebuilding or making
the Building fit for the Tenant or the Tenant may, at their
option, terminate this Lease by giving to the other, within
forty-five (45) days after the date of such damage or
destruction, notice of termination and thereupon Rent shall
be apportioned and paid to the date o f such damage or
destruction and the Tenant shall immediately deliver up
possession of the Leased Premises to the Landlord.
(ii) If the Building or any portion thereof is damaged or
destroyed by an uninsured peril, the Landlord instead of
rebuilding or making the Building fit for
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the Tenant may, at its option terminate this Lease by giving to the
Tenant within forty-five (45) days after the date of such damage or
destruction, notice of termination and thereupon Rent shall be
apportioned and paid to the date of such damage or destruction and the
Tenant shall immediately deliver up possession of the Leased Premises
to the Landlord.
If neither the Landlord nor the Tenant has elected to terminate
the Lease, the Landlord shall repair and rebuild the Building and Rent
shall abate in accordance with the provisions of Section 10.01 hereof.
Notwithstanding anything herein contained, the Tenant shall be
entitled to exercise its option in Schedule "E" and upon the exercise
of such option the Tenant shall be entitled to all proceeds of the
insurance payable to the Landlord or the Tenant under this Lease.
ARTICLE XI - DEFAULT
Events of Default
11.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any
part thereof on the day appointed for payment thereof,
whether lawfully demanded or not and such failure
continues for three (3) days after written notice from
the Landlord (provided that if the Landlord shall have
been required to give notice to the Tenant pursuant to
this paragraph on three (3) occasions in any Year of
the Term, the Landlord shall have no further obligation
to give notice hereunder);
(b) the Tenant shall have breached or failed to comply with
any of its covenants and agreements contained in this
Lease (save for non-payment of Rent) and shall have
failed to remedy such breach or non-compliance within
fifteen (15) days (or such longer period as the
Landlord may reasonably determine, having regard to
the nature of the default) after written notice
thereof given by the Landlord to the Tenant;
(c) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt (and such bankruptcy is
not being diligently contested by the Tenant) or
insolvent or take the benefit of any act now or
hereinafter in force for bankrupt or insolvent debtors;
(d) the Tenant is a corporation and any order shall be made
for the winding up of the Tenant or other termination
of the corporate existence of the Tenant;
(e) the Tenant makes or attempts to make a sale of all or
substantially all of its assets outside the ordinary
course of its business regardless of where they
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are situated;
(f) a trustee, receiver, interim receiver, receiver and
manager, custodian or liquidator is appointed for all
or substantially all of the business, property, affairs
or revenue of the Tenant and such appointment is not
revoked within thirty (30) days of the date of such
appointment;
(g) this Lease or any of the Tenant's assets on the Leased
Premises are taken or seized under writ of execution,
an assignment, pledge, charge, debenture or other
security instrument, which taking or seizure is not
being contested by the Tenant.
(h) the Tenant abandons or attempts to abandon the Leased
Premises;
(i) the Leased Premises shall be used by any person other
than the Tenant, the Tenant's permitted assignees or
for any purpose other than that for which the Leased
Premises were let;
(j) any insurance policy on the Building or any part
thereof shall be canceled or shall be threatened by the
insurer to be canceled or the coverage thereunder
reduced in any way by the insurer by reason of the use
or occupation of the Leased Premises or any part
thereof by the Tenant and the Tenant shall have failed
to remedy the condition giving rise to cancellation,
threatened cancellation or reduction of coverage within
forty-eight (48) hours written notice given by the
Landlord to the Tenant;
(k) the Tenant sells or disposes of the goods, chattels or
equipment in the Leased Premises or removes, commences
or threatens to remove them from the Leased Premises so
that in the opinion of the Landlord (acting reasonably)
there would not, in the event of such sale, disposal or
removal, be sufficient goods on the Leased Premises
subject to distress which would satisfy all Rent due or
accruing hereunder for a period of six (6) months;
(1) the Tenant shall at any time during the Term use the
Leased Premises, whether within the use permitted by
Section 8.01 or not, which imposes on the Landlord any
obligation to modify, extend, alter or replace any part
of the Leased Premises or any of the machinery,
equipment or other facilities used in connection with
the Leased Premises and the Tenant, at the request of
the Landlord has not diligently commenced to carry out
such work;
(m) The Leased Premises are vacant for any period in excess
of fifteen (15) days other than during repairs or
renovations.
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Upon the occurrence of an Event of Default, the then current
month's Rent and next ensuing three (3) months' Rent shall immediately
become due and be paid by the Tenant to the Landlord as accelerated
Rent and the Landlord may immediately distrain for the same together
with any Rent arrears then unpaid.
Right of Re-entry
11.02 (a) Upon the occurrence of an Event of Default, the
Landlord may at any time thereafter, without
notice to the Tenant, re-enter the Leased Premises
or any part thereof in the name of the whole and
terminate this Lease and all the rights of the
Tenant thereunder.
(b) If and whenever the Landlord exercises its option to
re-enter the Leased Premises and terminate this Lease
pursuant to paragraph (a) of this section 11.02:
(i) the Tenant shall immediately vacate the Leased
Premises and the Landlord may remove or cause to
be removed from the Leased Premises the Tenant or
any other occupant or occupants thereof and may
remove all property therefrom and sell or dispose
of it as the Landlord considers appropriate
without liability for loss or damage and without
prejudice to the rights of the Landlord to recover
arrears of Rent or damages incurred by the
Landlord;
(ii) the Landlord shall be immediately entitled to the
payment of Rent up to the date of termination
together with all expenses incurred by the
Landlord in such termination and the value of the
Rent, calculated at the date of termination, for
the unexpired portion of the Term.
Reletting
11.03 At any time when the Landlord is entitled to re-enter
the Leased Premises or terminate this Lease, the Landlord may
without notice to the Tenant and without terminating the Lease
enter upon and take custody of the Leased Premises in the name of
and as agent of the Tenant, together with all the Tenant's
improvements, fixtures and furnishings, and sublet the Leased
Premises in the name of and as the agent of the Tenant on
whatever terms the Landlord may deem appropriate but no such
action by the Landlord shall waive any of the obligations of the
Tenant or the subsequent exercise of any of the Landlord's
remedies for default. If the Landlord shall sublet the Leased
Premises as aforesaid, the Landlord shall be entitled to receive
all sublease rent and apply the same in its discretion to any
indebtedness of the Tenant to the Landlord hereunder, and the
payment of any costs and expenses of reletting, and the Landlord
shall be liable to account to the Tenant only for the excess, if any,
of monies actually received by it. If the sublease rent is less than
is necessary to pay and discharge all the then existing and continuing
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obligations of the Tenant hereunder, the Tenant shall pay such
deficiency from time to time upon demand to the Landlord.
Notwithstanding any such re-entry and subletting without termination,
the Landlord may at any time thereafter terminate this Lease by reason
of the previous or any other default under the Lease and the
provisions of Section 11.02 shall apply.
Distress
11.04 The Tenant waives and renounces the benefit of any
present or future statute taking away or limiting the Landlord's
right of distress, and covenants and agrees that notwithstanding
any such statute none of the goods and chattels of the Tenant on
the Leased Premises at any time during the Term shall be exempt
from levy by distress for rent in arrears.
Right of Landlord
to Cure Defaults
11.05 If the Tenant fails to perform or cause to be performed
any of the covenants or obligations of the Tenant herein, the
Landlord shall have the right (but shall not be obligated) to
perform or cause to be performed and to do or cause to be done
such things as may be necessary or incidental thereto (including
without limiting the foregoing, the right to make repairs,
installations, erections and expend monies) and all payments,
expenses, charges, fees and disbursements incurred or paid by or
on behalf of the Landlord in respect thereof shall be paid by the
Tenant to the Landlord within ten (10) days written demand
therefor together with reasonable administrative costs of the
Landlord in respect thereof.
Remedies Not Exclusive
11.06 Mention in this Lease of any particular remedy or
remedies in respect of any default or threatened default by the
Tenant in the performance of its obligations shall not preclude
the Landlord from exercising, or limit the extent of, any other
remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted
as exclusive or dependent upon any other remedy, but the Landlord
may from time to time exercise any one or more of such remedies
independently or in combination.
Non-Waiver
11.07 No condoning, excusing or overlooking by the Landlord
or any default, breach or non-observance by the Tenant at any
time or times in respect of any covenant, proviso or condition
herein contained shall operate as a waiver of the Landlord's
rights hereunder in respect of any continuing or subsequent
default, breach or non-observance, or so as to defeat or affect
in any way the rights of the Landlord herein in respect of any
such continuing or subsequent default or breach, and no waiver
shall be inferred from or implied by anything done or omitted by
the Landlord save only an express waiver in writing.
21
<PAGE>
Recovery of
Adjustments
11.08 The Landlord shall have (in addition to any other right
or remedy of the Landlord) the same rights and remedies in the
event of default by the Tenant in payment of any amount payable
by the Tenant hereunder as the Landlord would have in the case of
default in payment of Rent.
ARTICLE XII - SUBORDINATION AND ACKNOWLEDGMENTS
Mortgages
12.01 At the option of the Landlord, this Lease shall be
subject and subordinate to any and all mortgages, charges and
deeds of trust, which may now or at any time hereafter affect the
Leased Premises in whole or in part, or the Lands, or the
Building whether or not any such mortgage, charge or deed of
trust affects only the Leased Premises or the Lands or the
Building or affects other premises as well. On request at any
time and from time to time of the Landlord or of the mortgagee,
chargee or trustee under any such mortgage, charge or deed of
trust, the Tenant shall promptly, at no cost to the Landlord or
mortgagee, chargee or trustee:
(a) attorn to such mortgagee, chargee or trustee and become
its tenant of the Leased Premises or the tenant of the
Leased Premises of any purchaser from such mortgagee,
chargee or trustee in the event of an exercise of any
permitted power of sale contained in any such mortgage,
charge or deed of trust for the then unexpired residue
of the Term on the terms herein contained; and/or
(b) postpone and subordinate this Lease to such mortgage,
charge or deed of trust to the intent that this Lease
and all right, title and interest of the Tenant in the
Leased Premises shall be subject to the rights of such
mortgagee, chargee or trustee as fully as if such
mortgage, charge or deed of trust had been executed and
registered and the money thereby secured had been
advanced before the execution of this Lease (and
notwithstanding any authority or consent of such
mortgagee, or trustee, expressed or implied, to the
making of this Lease).
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any
such mortgage, charge or deed of trust and every instrument supplemental or
ancillary thereto or in implementation thereof. The Tenant shall forthwith
execute an instruments of attornment or postponement and subordination which
may be so requested to give effect to this Section.
The Landlord shall obtain a non-disturbance agreement from any security
holder with an interest registered against the Leased Premises as of the date
of this Lease wherein such security
22
<PAGE>
holder agrees in writing with the Tenant that the Tenant's possession of the
Leased Premises shall not be disturbed as long as the Tenant is not in
default of the Lease.
Certificates
12.02 The Tenant shall execute and deliver to the Landlord at
any time and from time to time at no cost to the Landlord and
upon not less than ten (10) days' prior notice, a statement in
writing certifying that this Lease is unmodified and in full
force and effect (or if modified, stating the modifications and
that the Lease is in full force and effect as modified), the
amount of the annual Basic Rent then being paid hereunder, the
dates to which the same, by instalment or otherwise, and other
charges hereunder have been paid, whether or not there is any
existing default on the part of the Landlord of which the Tenant
has notice, and any other information reasonably required.
ARTICLE XIII - ACCESS BY LANDLORD
Entry by Landlord
13.01 The Tenant shall permit the Landlord and its agents
employees or workmen to enter upon the Leased Premises at any
reasonable time and from time to time upon forty-eight (48) hours
prior notice to the Tenant for the purpose of inspecting and
making repairs, alterations or improvements to the Leased
Premises and the Tenant shall not be entitled to any compensation
for any inconvenience, nuisance or discomfort occasioned thereby.
In order to protect the confidentiality of the Tenant's business
being conducted on the Leased Premises, any entry by the Landlord
or its agents, employees or workmen (except in cases of
emergency) shall be in the presence of a representative of the
Tenant and the Landlord and its agents, employees or workmen
shall not make any type of reproductive matter in respect of the
operation of the Tenant's business on the Leased Premises.
Exhibiting Leased Premises
13.02 The Tenant shall permit the Landlord or its agents to
exhibit the Leased Premises to prospective tenants during the
last six (6) months of the Term or any renewal thereof, upon
reasonable prior notice.
In order to protect the confidentiality of the Tenant's business
being conducted on the Leased Premises, any entry by the Landlord or
its agents shall be in the, presence of representative of the Tenant
and the Landlord and its agents shall not make any type of
reproductive matter in respect of the operation of the Tenant's
business on the Leased Premises.
ARTICLE XIV - REPRESENTATIONS AND WARRANTIES
Representations and
Warranties of Title
14.01 The Landlord represents and warrants that it has or
will have, at the commencement of the Term of this Lease, a good
and marketable title to the Lands, subject only to the
23
<PAGE>
following, (none of which will interfere with the development situate on the
Lands:
(a) Any rights of way and/or easements for the benefit of
the Landlord and Tenant in common with others to serve
the Leased Premises and/or adjoining or surrounding
lands for the free and unobstructed ingress and egress
of vehicular traffic and for the installation, repair
and replacement of underground services including
hydro, telephone, sanitary and storm sewers, natural
gas and water lines;
(b) Service easements in favour of Bell Telephone, Hydro
Electric Power Commission, City of North York, in the
Municipality of Metropolitan Toronto, and easements for
sewer or water easements for serving the Lands or
adjoining lands;
(c) Private deed restrictions (if any) which will have been
complied with prior to the commencement of the Term
herein;
(d) The financial agreement and/or subdivision agreement
between the developer and the City of North York and/or
the Municipality of Metropolitan Toronto, (the
provisions of which will have been complied with by the
developer and/or the Landlord prior to the commencement
of the Term, including the installation of all services
and the discharge of all financial obligations
thereunder, it being intended that the Tenant shall not
be required to pay for or perform any part of any of
the said agreements);
(e) The Toronto Airport zoning regulations (if applicable);
and
(f) Any mortgage or charge entered into from time to time
by the Landlord.
The Tenant acknowledges that some or all of the foregoing
encumbrances may not have been registered as of the commencement of
the Term and agrees to postpone its leasehold interest herein and/or
to execute such consents and/or postponements as may be necessary to
give effect to the provisions of this Section 14.01.
ARTICLE XV - MISCELLANEOUS
Notice
15.01 (a) Any notice, request, statement or other writing
pursuant to this Lease shall be deemed to have
been given if sent by registered prepaid post as
follows:
TO: ORLANDO CORPORATION
6205 Airport Rd.,
Mississauga, Ontario, L4V IE3
24
<PAGE>
or such other address as the Landlord shall notify the
Tenant in writing any time or from time to time;
TO: THE TENANT
----- at the Leased Premises
and such notice shall be deemed to have been received
by the Landlord or the Tenant, as the case may be, on
the third business day after the date on which it shall
have been so mailed (in the event that there is an
interruption of postal service, the aforesaid period
shall be extended for a period equivalent to the period
of interruption).
(b) Notice shall also be sufficiently given if and when the
same shall be delivered, in the case of notice to the
Landlord, to an executive officer of the Landlord, and
in the case of notice to the Tenant, to him personally
or to an executive officer of the Tenant if the Tenant
is a corporation. Such notice, if delivered, shall be
conclusively deemed to have been given and received at
the time of such delivery. If in this Lease two or
more persons are named as Tenant, such notice shall
also be sufficiently given if and when the same shall
be delivered personally to any one of such persons.
Provided that either party may, by notice to the other,
from time to time designate another address in Canada
to which notices mailed more than ten (10) days
thereafter shall be addressed.
Registration
15.02 The Tenant covenants and agrees with the Landlord that
the Tenant will not register or record this Lease against the
title to the Lands except by way of notice which shall be subject
to the approval of the Landlord and which shall only describe the
parties, the Leased Premises, the Term and any renewals or
options. The Tenant and the Landlord agree to execute a short
form of Lease prepared by the Landlord (or by the Tenant subject
to the approval of the Landlord) and at each party's own expense
setting out the aforesaid details within ten (10) days of written
request therefor.
Planning Act
15.03 Where applicable, this Lease shall be subject to the
condition that it is effective only if The Planning Act is
complied with. Pending such compliance, the Term and any renewal
periods shall be deemed to be for a total period of one (1) day
less than the maximum lease term permitted by law without such
compliance.
Interpretation
of Lease
15.04 All of the provisions contained in this Lease are to be
construed as covenants and agreements and if any provision is
illegal or unenforceable it shall be considered separate
25
<PAGE>
and severable from the remaining provisions which shall remain in
force and be binding upon the Landlord and the Tenant.
Overholdinq
15.05 if the Tenant shall continue to occupy all or part of
the Leased Premises after the expiration of this Lease with the
consent of the Landlord, and without any further written
agreement, the Tenant shall be a monthly tenant at fair market
rent for similar term, premises and location as the Leased
Premises.
Unavoidable
Delays
15.06 whenever and to the extent the Landlord is unable to
fulfill or shall be delayed or restricted in the fulfillment of
any obligation hereunder by reason of being unable to obtain the
material, goods, equipment, service, utility or labour required
to enable it to fulfill such obligation or by reason of any
statute, law, regulation, by-law or order or by reason of any
other cause beyond its reasonable control, whether of the same
nature as the foregoing or not, the Landlord shall be relieved
from the fulfillment of such obligation and the Tenant shall not
be entitled to compensation for any inconvenience, nuisance or
discomfort thereby occasioned. There shall be no deduction from
the Rent or other monies payable hereunder by reason of any such
failure or cause.
Evidence
of Payments
15.07 The Tenant shall produce to the Landlord upon request,
satisfactory evidence of due payment by the Tenant of all
payments required to be made by the Tenant under this Lease.
Lien
15.08 As security for the due payment by the Tenant of the
Rent reserved hereunder and the performance by the Tenant of all
covenants, agreements, provisoes and conditions of the Tenant to
be performed hereunder, the Tenant hereby grants to the Landlord
a lien and charge on all goods, chattels, trade fixtures,
furniture, equipment and inventory of the Tenant situate on, in
or about the Leased Premises or elsewhere. Such lien and charge
shall constitute a security agreement within the meaning of The
Personal Property Security (Ontario) and on default of the
Tenant hereunder the Landlord shall have, in addition to any
other rights and remedies it may be entitled to under this Lease
or otherwise, all the rights and remedies of a secured party
under The Personal Property Security Act. The Landlord hereby
postpones the within lien to any financing obtained by the Tenant
with respect to the conduct of the Tenant's business, with the
intent that the Landlord's lien hereunder shall be second in
priority to such financing. At the request of the Tenant, the
Landlord will provide the Tenant's lender with a postponement of
its interest as herein provided within five (5) days of delivery
of such postponement to the Landlord.
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<PAGE>
Time of
Essence
15.09 Time shall be of the essence of this Lease.
Law
15.10 This Lease shall be governed by and construed in
accordance with the laws of the Province of Ontario.
Captions
15.11 The captions appearing in the margin of this Lease have
been inserted as a matter of convenience and for reference only
and in no way define, limit or enlarge the scope of meaning of
this Lease nor any of the provisions hereof.
Joint and
Several Liability
15.12 If the Tenant shall be comprised of more than one (1)
person, the liability of each such person under this Lease shall
be joint and several.
Tenant
Partnership
15.13 If the Tenant shall be a partnership, each person who
shall be a member of such partnership or successor thereof shall
be and continue to be jointly and severally liable for the
performance and observance of all covenants, obligations and
agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
Environmental
15.14 The Landlord shall cause a "Phase I" environmental
investigation to be made of the Leased Premises. If contaminants
or hazardous wastes are found in levels exceeding the Ministry of
Environment Guide levels for commercial/industrial property, the
Landlord, at its option, shall either remove such hazardous
wastes or contaminants or terminate this Lease provided such
termination occurs on or before the 14th day of March, 1993.
Entire Agreement
15.15 The Tenant acknowledges that there gave been no
representations made by the Landlord which are not set out in the
Lease. The Tenant further acknowledges that the Lease
constitutes the entire agreement between the Landlord and Tenant
and may not be modified except as herein explicitly provided or
except by subsequent agreement in writing duly signed by the
Landlord and the Tenant.
Effect of Lease
15.16 This indenture and everything herein contained shall
extend to and bind and may
27
<PAGE>
be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of
each and every of the parties hereto, subject to the granting of
consent by the Landlord as provided herein to any assignment or
sublease, and where there is more than one tenant or there is a
female party or a corporation, the provisions hereof shall be read
with all grammatical changes thereby rendered necessary and all
covenants shall be deemed joint and several.
Approval of the Landlord
15.17 Wherever the approval or consent of the Landlord is
required by the terms of this Lease, such approval or consent
shall not be unreasonably or arbitrarily withheld or delayed
unless otherwise expressly set out.
IN WITNESS WHEREOF the parties hereto have executed this Lease.
LANDLORD: ORLANDO CORPORATION
Per:/s/
--------------------------------
Authorized Signing Officer
Name:
Position:
Per:/s/
--------------------------------
Authorized Signing Officer
Name:
Position:
WE HAVE AUTHORITY TO BIND THE
CORPORATION
TENANT: EXCELLE BRAND FOODS CORPORATION
Witness: /s/ Per:/s/
--------------------------- --------------------------
Authorized Signing Officer
Name:
Position:
28
<PAGE>
Per:/s/
-----------------------------
Authorized Signing Officer
Name:
Position:
WE HAVE AUTHORITY TO BIND THE
CORPORATION
29
<PAGE>
Exhibit 10.4
- -
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made as of 1st day of May, 1997 to be
effective as set forth below.
BETWEEN:
Arnold Unger
(hereinafter referred to as the "Executive"),
OF THE FIRST PART
- and -
INTERCORP EXCELLE INC.
a corporation incorporated under the laws
of the Province of Ontario,
(hereinafter referred to as the "Corporation")
OF THE SECOND PART
WHEREAS the Executive is currently employed by the Corporation;
AND WHEREAS the Executive and the Corporation wish to continue the
Executive's employment upon the terms and conditions set forth herein;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained herein, the parties covenant and agree as follows:
1. Appointment and Duties
1.1 The Corporation shall employ the Executive in the capacity of Chief
Executive Officer, Vice-President, Sales and Marketing and Co-Chairman of the
Board of Directors of the Corporation (the "Board"). The Executive shall
perform such duties and exercise such powers as are normally associated with
and incidental and ancillary to such position and shall perform such
additional duties and exercise such additional powers as may be accorded to
him by the Board.
1.2 The Executive shall well and faithfully serve the Corporation and use
his best efforts to promote the interests and goodwill of the Corporation
during the term of his employment hereunder. The Executive shall devote his
full time and energy to the Corporation. Without restricting the foregoing,
the Executive shall not, without the consent of the Board, engage in any
other business,
<PAGE>
2-
or become an employee, director, manager or agent of any other company, firm,
association, organization or individual if the Board determines acting
reasonably that such would result in the inability of the Executive to
perform his obligations hereunder.
1.3 This Agreement shall become effective on the date of the final
registration statement filed on behalf of the Corporation with the Securities
Exchange Commission pursuant to the Securities Act of 1933 (the "Effective
Date").
2. Term of Employment
2.1 Subject to earlier termination as provided in Sections 6 or 7 hereof,
the term of this Agreement shall be for a period of three (3) years,
commencing as of the Effective Date and concluding the third anniversary of
the Effective Date (the "Expiration Date"). The parties may mutually agree
to extend the term of employment on the same terms and conditions as
contained herein or on such other terms and conditions as are mutually agreed
between them.
3. Compensation
3.1 During the term of the Executive's employment under this Agreement, the
Corporation shall pay the Executive a minimum base salary of U.S. $135,000
per annum commencing as of the Effective Date and concluding as of the third
anniversary of the Effective Date, less statutory deductions, to be paid on a
bi-weekly basis.
3.2 The Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to other
senior executives of the Corporation and shall permit the Executive to
participate in any share option plan, share purchase plan, retirement plan,
perquisite program or similar plan offered by the Corporation from time to
time to its senior executives in the manner and to the extent authorized by
the Board.
3.3 The Executive shall be eligible to receive a discretionary management
bonus (the "Management Bonus") in an amount to be determined by the Board in
its absolute discretion. The Management Bonus shall be paid to the Executive
in the event that the Corporation achieves performance targets established by
the Board in its sole discretion. The minimum amount of such discretionary
Management Bonus will be no less than 20% of base compensation salary for
that year and shall be paid in accordance with such terms as are specified by
the Board at the time such Management Bonus is awarded.
3.4 Upon the death of the Executive while this agreement is in force, the
Corporation shall pay to his heir(s) or other designee(s) as provided in
writing by the Executive in his last Will and Testament or document of
similar intent and designations, an amount equal to the Executive's salary
for a period of two (2) years after his death, payable in the same
installments as his salary was being paid immediately prior to his death.
<PAGE>
3-
3.5 The Corporation shall during the term of employment maintain a term
policy or policies in the face amount of Cdn. $240,000, insuring the life of
the Executive. The Executive shall be the owner of said policy, and shall be
entitled to designate the beneficiary of such policy. The Corporation shall
provide the Executive from time to time as reasonably requested with
documentary proof of the purchase and maintenance of said insurance policy.
The Executive has the right to purchase and maintain such term life insurance
and pay for same if the Corporation fails to so purchase and maintain such
policy, which expenses and costs incurred by the Executive shall be
chargeable to and paid by the Corporation.
4. Additional Compensation
4.1 The Executive shall be reimbursed for all reasonable and necessary
business, travel, entertainment and other expenses actually and properly
incurred by the Executive from time to time in connection with the carrying
out of his duties hereunder on submission of proper receipts, vouchers and
other reasonable confirming documentation. The Executive will receive a
minimum car allowance determined by the Board plus all reasonable car
expenses. The budget for all such expenses shall be reviewed at the beginning
of each fiscal year during the term of the Executive's employment under this
Agreement.
4.2 The Executive shall be entitled to 4 weeks vacation as permitted
pursuant to the vacation policy in effect from time to time for the
Corporation. Such vacations shall be scheduled as agreed by the Board.
4.3 The additional compensation paid to the Executive on account of car
allowance, insurance, RRSP contributions and all other perquisites and
compensation, shall not exceed, in the aggregate, and exclusive of the base
salary and Management Bonus (if any) provided hereunder, U.S. $20,000.
5. Confidentiality, Non-Competition and Non-Solicitation
5.1 The Executive acknowledges that as Chief Executive Officer,
Vice-President, Sales and Marketing and Co-Chairman of the Board of Directors
of the Corporation he will acquire information about certain matters
pertaining to the Corporation, its affiliates and their businesses which are
confidential to the Corporation and which information is the exclusive
property of the Corporation including but not limited to clients and
accounts, information concerning products and services, trade secrets and
know-how, computer programs and the financial history of the Corporation.
The Executive acknowledges that such information could be used to the
detriment of the Corporation and therefore the Executive shall not disclose
such information in any manner, directly or indirectly, to any person without
the prior written consent of the Corporation.
5.2 The Executive in his capacity as an officer and employee of the
Corporation, covenants and agrees that:
(a) the Executive will not at any time within the period of eighteen (18)
months following
<PAGE>
4-
the termination of the Executive's employment hereunder
for cause, either individually or in partnership or jointly or in
conjunction with any person or persons as principal, agent, shareholder
(except as a shareholder holding not more that five (5) percent of the
outstanding shares from time to time from any class of shares of a
publicly traded corporation) or in any manner whatsoever carry on or be
engaged in or concerned with or interested in, or advise, lend money to,
guarantee the debts of or obligations of, or permit his name or any part
thereof to be used or employed by or associated with, any person or
persons engaged in or concerned with or interested in, any business the
same or similar to or competitive with the business or any other business
now or at any time during the course of employment of the Executive
hereunder carried on by the Corporation within any territory where the
Corporation is carrying on business at the time of the termination of
the Executive's employment hereunder;
(b) the Executive will not at any time within the period of eighteen (18)
months from the termination of the Executive's employment hereunder,
either directly or indirectly, by any means or in any capacity, approach,
solicit or contact in the course of being engaged in a business
competitive with the Corporation any person solicited, serviced, or
contacted by the Executive on behalf of the Corporation during the
Executive's employment or any person known by the Executive to have been
a client of the Corporation during the term of the Executive's employment;
(c) the Executive will not at any time within the period of eighteen (18)
months from the termination of the Executive's employment hereunder,
interfere with the employment arrangements between the Corporation or any
of its employees and will not in any way solicit, recruit, hire, assist
others in recruiting or hiring, or discuss employment with any employees
of the Corporation; and
(d) effective from the termination of the Executive's employment hereunder,
the Executive shall deliver over to the Corporation without demand, all
documentation, correspondence, papers, diskettes, and any other similar
material which may have been prepared by the Executive during the course
of his employment and the Executive agrees not to reproduce by any means
any of the above mentioned matters.
5.3 If any covenant or provision herein is determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other covenant or provision and subsections 5.2(a), (b),
(c) and (d) are each declared to be separate and distinct covenants.
5.4 The Executive agrees that all restrictions contained in Section 5.2 are
reasonable and valid and all defences to the strict enforcement thereof by
the Corporation are hereby waived by the Executive. The Executive agrees
that the covenants in Section 5.2 shall not terminate upon the termination of
the Executive's employment hereunder. The Executive acknowledges that a
violation of any of the provisions of Section 5.2 will result in immediate
and irreparable damage to the Corporation and agrees that in the event of
such violation the Corporation, in addition to any other
<PAGE>
5-
right of relief, shall be entitled to equitable relief by way of a temporary
or permanent injunction and to such other relief that any court of competent
jurisdiction may deem just and proper. If the Executive is in breach of any
such restrictions, the running of the period of such restrictions shall be
stayed and shall recommence upon the date the Executive ceases to be in
breach thereof, whether voluntarily or by injunction.
6. Termination
6.1 The employment of the Executive hereunder may be terminated in the
following manner and in the following circumstances:
(a) at any time by notice in writing from the Corporation to the Executive
for cause;
(b) automatically without notice upon the death of the Executive;
(c) automatically in the event the Executive is subject to any bankruptcy,
insolvency or other similar proceeding;
(d) if the Executive shall become permanently disabled, then at any time by
notice in writing from the Corporation to the Executive (and, for
purposes of this subsection, the Executive shall be deemed to be
permanently disabled immediately following any period of 365 consecutive
days during which the Executive is prevented from performing his essential
duties as a senior officer of the Corporation for more than 180 days in
the aggregate by reason of illness or mental or physical disability; or
(e) in any other case by twelve (12) months (plus 1 additional month for each
year of service), notice in writing given by the Corporation or equivalent
compensation in lieu thereof provided that compensation in lieu of notice
may, in the sole discretion of the Corporation, be paid on the same basis
as set forth in Section 3.1.
6.2 In the case of the permanent disability of the Executive, the Executive
shall receive 70% of his salary for the remainder of the term of the
agreement.
6.3 Based upon any wrongful termination, which includes changes in control
of the Company (through an acquisition where any person acquires or announces
a tender offer or exchange for 25% of the Company, a sale of substantially
all of the assets or merger, acquisition of the Company or its consolidation
with another, or certain types of board changes), the Company shall pay the
Executive, a lump sum payment, based upon his or her then compensation,
including benefits and perquisites, from such termination. Such payment
shall be the balance of their respective compensation for the remainder of
the term. If the payment is in excess of $100,000, then such excess shall be
payable in equal quarterly payments with interest at the prescribed rate
under the Income Tax Act (Canada).
<PAGE>
6-
6.4 Any payment to the Executive under Sections 6 or 7 shall be deemed to
include all required payments pursuant to the provisions of the Employment
Standards Act (Ontario).
6.5 The Executive may, by providing one (1) month notice in writing to the
Corporation (the "Notice Period"), terminate this Agreement and his
employment with the Corporation. In the event the Executive provides such
notice to the Corporation, the Corporation may request that the Executive
cease duties prior to the expiry of the Notice Period. The Corporation shall
in such event pay to the Executive an amount equal to the difference between
what the Executive would have received had the employment of the Executive
been continued for the Notice Period and the amount actually paid by the
Corporation to the Executive during the Notice Period.
7. Change of Control
7.1 Notwithstanding Section 6 of this Agreement, in the event of a Change in
Control (as hereinafter defined) of the Corporation where the Executive is
Constructively Dismissed (as hereinafter defined) by new management within
eighteen (18) months of the Change in Control, the Executive shall have the
option of resigning from his employment by providing the Corporation, within
ninety (90) days of the Constructive Dismissal, with written notice of his
intention to resign in which case the following will apply.
7.2 The Executive's resignation will be effective ninety (90) days from the
date at which the Corporation receives written notice of the Executive's
intention to resign. On the effective date of such resignation (the "Date of
Termination"), the Executive shall be entitled to the following benefits:
(a) the Corporation shall pay to the Executive a lump sum equal to twice
the aggregate of the Executive's annual salary; and
(b) the right to exercise all stock options previously granted to the
Executive whether or not such options have become fully vested
within thirty (30) days of the Date of Termination.
In addition, the Corporation shall, at the request of the Executive, make
representations to the Securities Exchange Commission (the "SEC") in support
of an application by the Executive to the SEC for the release of any common
shares in the capital of the Corporation owned by him which are still held in
escrow pursuant to SEC Policy.
7.3 A "Change in Control" shall mean the occurrence of the acquisition or
continuing ownership of securities ("Convertible Securities") convertible
into, exchangeable for or representing the right to acquire shares of the
Corporation and/or shares of the Corporation as a result of which a person,
group of persons or persons acting jointly or in concert, or persons
associated or affiliated with any such person, group of persons or any of
such persons acting jointly or in concert (collectively, "Acquirors"),
beneficially own shares of the Corporation and/or Convertible Securities such
that,
<PAGE>
7-
assuming only the conversion, exchange or exercise of Convertible Securities
beneficially owned by the Acquirors, the Acquirors would beneficially own
shares that would entitle the holders thereof to cast more than 20% of the
votes attaching to all shares in the capital of the Corporation that may be
cast to elect directors of the Corporation.
7.4 "Constructively Dismissed" or "Constructive Dismissal" shall be deemed
to have occurred if and when any of the following events or circumstances has
occurred without the prior written consent of the Executive within eighteen
(18) months of a Change in Control:
(i) any material and adverse change in the title, status, position,
job function, job responsibilities and/or reporting
responsibilities of the Executive from those current at the date
hereof;
(ii) the assignment to the Executive of duties and responsibilities
which are inconsistent with his current status and position;
(iii) a reduction in the Executive's annual base salary; or
(iv) a material reduction in the bonus compensation or other employee
benefits available to the Executive.
8. Legal Advice
8.1 The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery of this Agreement and that, in the
event that he did not avail himself with the opportunity prior to signing
this Agreement, he did so voluntarily without any undue pressure and agrees
that his failure to obtain independent legal advice shall not be used by him
as a defence to the enforcement of his obligations under this Agreement.
9. General
9.1 Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted
by telecopy or similar means of recorded electronic communication or sent by
registered mail, charges prepaid, addressed as follows or to such other
address as the relevant party may specify from time to time:
(a) if to the Corporation:
Intercorp Excelle Inc.
1880 Ormont Drive
Weston, Ontario
M9L 2V4
<PAGE>
8-
Attention: President
Telecopier: (416) 744-4369
(b) if to the Executive, to him at:
15 Vesta Drive
Toronto, Ontario
M5P 2Z4
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such
day is not a business day, on the next following business day) or, if mailed,
on the third business day following the date of mailing; provided, however,
that if at the time of mailing or within three (3) business days thereafter
there is or occurs a labour dispute or other event which might reasonably be
expected to disrupt the delivery of documents by mail, any notice or other
communication hereunder shall be delivered or transmitted by means of
recorded electronic communication as aforesaid.
9.2 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There
are no covenants, conditions, agreements, representations, warranties or any
other terms or provisions, express or implied, collateral, statutory or
otherwise, relating to the subject matter hereof, except as herein provided.
9.3 This Agreement shall be construed, interpreted and enforced in
accordance with, and the respective rights and obligations of the parties
shall be governed by, the laws of the Province of Ontario.
9.4 No amendment or waiver of any provision of this Agreement shall be
binding on any party unless consented to in writing by such party. No waiver
of any provision of this Agreement shall constitute a waiver of any other
provision nor shall any waiver constitute a continuing waiver unless
otherwise provided.
9.5 This Agreement shall enure to the benefit of and shall be binding upon
and enforceable by the parties hereto, and the heirs, executors,
administrators and legal personal representatives of the Executive and the
successors and assigns of the Corporation. This Agreement is personal to the
Executive and may not be assigned by the Executive.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as
of the date first above written.
Signed, sealed and delivered in the presence of: )
<PAGE>
9-
)
)
___________________________________ ).......................................
Witness: Arnold Unger
INTERCORP EXCELLE INC.
Per:
Authorized Signing Officer
<PAGE>
Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made as of the 1st day of May, 1997 to be
effective as set forth below.
BETWEEN:
Renee Unger
(hereinafter referred to as the "Executive"),
OF THE FIRST PART
- and -
INTERCORP EXCELLE INC.
a corporation incorporated under the laws
of the Province of Ontario,
(hereinafter referred to as the "Corporation")
OF THE SECOND PART
WHEREAS the Executive is currently employed by the Corporation;
AND WHEREAS the Executive and the Corporation wish to continue the
Executive's employment upon the terms and conditions set forth herein;
NOW THEREFORE in consideration of the mutual covenants and agreements
contained herein, the parties covenant and agree as follows:
1. Appointment and Duties
1.1 The Corporation shall employ the Executive in the capacity of President,
Vice-President and Co-Chairman of the Board of Directors of the Corporation
(the "Board"). The Executive shall perform such duties and exercise such
powers as are normally associated with and incidental and ancillary to such
position and shall perform such additional duties and exercise such
additional powers as may be accorded to her by the Board.
1.2 The Executive shall well and faithfully serve the Corporation and use her
best efforts to promote the interests and goodwill of the Corporation during
the term of her employment hereunder. The Executive shall devote her full
time and energy to the Corporation. Without restricting the foregoing, the
Executive shall not, without the consent of the Board, engage in any other
business, or become an employee, director, manager or agent of any other
company, firm, association, organization or individual if the Board
determines acting reasonably that such would result in the inability of the
Executive to perform her obligations hereunder.
<PAGE>
2-
1.3 This Agreement shall become effective on the date of the final
registration statement filed on behalf of the Corporation with the Securities
Exchange Commission pursuant to the Securities Act of 1933 (the "Effective
Date").
2. Term of Employment
2.1 Subject to earlier termination as provided in Sections 6 or 7 hereof, the
term of this Agreement shall be for a period of three (3) years, commencing
as of the Effective Date and concluding the third anniversary of the
Effective Date (the "Expiration Date"). The parties may mutually agree to
extend the term of employment on the same terms and conditions as contained
herein or on such other terms and conditions as are mutually agreed between
them.
3. Compensation
3.1 During the term of the Executive's employment under this Agreement, the
Corporation shall pay the Executive a minimum base salary of U.S. $135,000
per annum commencing as of the Effective Date and concluding as of the third
anniversary of the Effective Date, less statutory deductions, to be paid on a
bi-weekly basis.
3.2 The Corporation shall provide the Executive with employee benefits
comparable to those provided by the Corporation from time to time to other
senior executives of the Corporation and shall permit the Executive to
participate in any share option plan, share purchase plan, retirement plan,
perquisite program or similar plan offered by the Corporation from time to
time to its senior executives in the manner and to the extent authorized by
the Board.
3.3 The Executive shall be eligible to receive a discretionary management
bonus (the "Management Bonus") in an amount to be determined by the Board in
its absolute discretion. The Management Bonus shall be paid to the Executive
in the event that the Corporation achieves performance targets established by
the Board in its sole discretion. The minimum amount of such discretionary
Management Bonus will be no less than 20% of base compensation salary for
that year and shall be paid in accordance with such terms as are specified by
the Board at the time such Management Bonus is awarded.
3.4 Upon the death of the Executive while this agreement is in force, the
Corporation shall pay to her heir(s) or other designee(s) as provided in
writing by the Executive in her last Will and Testament or document of
similar intent and designations, an amount equal to the Executive's salary
for a period of two (2) years after her death, payable in the same
installments as her salary was being paid immediately prior to her death.
3.5 The Corporation shall during the term of employment maintain a term
policy or policies in the face amount of Cdn. $240,000, insuring the life of
the Executive. The Executive shall be the owner of said policy, and shall be
entitled to designate the beneficiary of such policy. The Corporation shall
<PAGE>
3-
provide the Executive from time to time as reasonably requested with
documentary proof of the purchase and maintenance of said insurance policy.
The Executive has the right to purchase and maintain such term life insurance
and pay for same if the Corporation fails to so purchase and maintain such
policy, which expenses and costs incurred by the Executive shall be
chargeable to and paid by the Corporation.
4. Additional Compensation
4.1 The Executive shall be reimbursed for all reasonable and necessary
business, travel, entertainment and other expenses actually and properly
incurred by the Executive from time to time in connection with the carrying
out of her duties hereunder on submission of proper receipts, vouchers and
other reasonable confirming documentation. The Executive will receive a
minimum car allowance determined by the Board plus all reasonable car
expenses. The budget for all such expenses shall be reviewed at the beginning
of each fiscal year during the term of the Executive's employment under this
Agreement.
4.2 The Executive shall be entitled to 4 weeks vacation as permitted pursuant
to the vacation policy in effect from time to time for the Corporation. Such
vacations shall be scheduled as agreed by the Board.
4.3 The additional compensation paid to the Executive on account of car
allowance, insurance, RRSP contributions and all other perquisites and
compensation, shall not exceed, in the aggregate, and exclusive of the base
salary and Management Bonus (if any) provided hereunder, U.S. $20,000.
5. Confidentiality, Non-Competition and Non-Solicitation
5.1 The Executive acknowledges that as President, Vice-President and
Co-Chairman of the Board of Directors of the Corporation she will acquire
information about certain matters pertaining to the Corporation, its
affiliates and their businesses which are confidential to the Corporation and
which information is the exclusive property of the Corporation including but
not limited to clients and accounts, information concerning products and
services, trade secrets and know-how, computer programs and the financial
history of the Corporation. The Executive acknowledges that such
information could be used to the detriment of the Corporation and therefore
the Executive shall not disclose such information in any manner, directly or
indirectly, to any person without the prior written consent of the
Corporation.
5.2 The Executive in her capacity as an officer and employee of the
Corporation, covenants and agrees that:
(a) the Executive will not at any time within the period of eighteen (18) months
following the termination of the Executive's employment hereunder for cause,
either individually or in partnership or jointly or in conjunction with any
person or persons as principal, agent, shareholder (except as a shareholder
<PAGE>
4-
holding not more that five (5) percent of the outstanding shares from time
to time from any class of shares of a publicly traded corporation) or in
any manner whatsoever carry on or be engaged in or concerned with or
interested in, or advise, lend money to, guarantee the debts of or
obligations of, or permit her name or any part thereof to be used or
employed by or associated with, any person or persons engaged in or
concerned with or interested in, any business the same or similar to or
competitive with the business or any other business now or at any time
during the course of employment of the Executive hereunder carried on by
the Corporation within any territory where the Corporation is carrying on
business at the time of the termination of the Executive's employment
hereunder;
(b) the Executive will not at any time within the period of eighteen (18) months
from the termination of the Executive's employment hereunder, either
directly or indirectly, by any means or in any capacity, approach, solicit
or contact in the course of being engaged in a business competitive with
the Corporation any person solicited, serviced, or contacted by the
Executive on behalf of the Corporation during the Executive's employment
or any person known by the Executive to have been a client of the
Corporation during the term of the Executive's employment;
(c) the Executive will not at any time within the period of eighteen (18) months
from the termination of the Executive's employment hereunder, interfere with
the employment arrangements between the Corporation or any of its employees
and will not in any way solicit, recruit, hire, assist others in recruiting
or hiring, or discuss employment with any employees of the Corporation; and
(d) effective from the termination of the Executive's employment hereunder, the
Executive shall deliver over to the Corporation without demand, all
documentation, correspondence, papers, diskettes, and any other similar
material which may have been prepared by the Executive during the course of
her employment and the Executive agrees not to reproduce by any means any
of the above mentioned matters.
5.3 If any covenant or provision herein is determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other covenant or provision and subsections 5.2(a), (b),
(c) and (d) are each declared to be separate and distinct covenants.
5.4 The Executive agrees that all restrictions contained in Section 5.2 are
reasonable and valid and all defences to the strict enforcement thereof by
the Corporation are hereby waived by the Executive. The Executive agrees
that the covenants in Section 5.2 shall not terminate upon the termination of
the Executive's employment hereunder. The Executive acknowledges that a
violation of any of the provisions of Section 5.2 will result in immediate
and irreparable damage to the Corporation and agrees that in the event of
such violation the Corporation, in addition to any other right of relief,
shall be entitled to equitable relief by way of a temporary or permanent
injunction and to such other relief that any court of competent jurisdiction
may deem just and proper. If the Executive is in breach of any such
<PAGE>
5-
restrictions, the running of the period of such restrictions shall be stayed
and shall recommence upon the date the Executive ceases to be in breach
thereof, whether voluntarily or by injunction.
6. Termination
6.1 The employment of the Executive hereunder may be terminated in the
following manner and in the following circumstances:
(a) at any time by notice in writing from the Corporation to the Executive for
cause;
(b) automatically without notice upon the death of the Executive;
(c) automatically in the event the Executive is subject to any bankruptcy,
insolvency or other similar proceeding;
(d) if the Executive shall become permanently disabled, then at any time by
notice in writing from the Corporation to the Executive (and, for purposes
of this subsection, the Executive shall be deemed to be permanently
disabled immediately following any period of 365 consecutive days during
which the Executive is prevented from performing her essential duties as a
senior officer of the Corporation for more than 180 days in the aggregate
by reason of illness or mental or physical disability; or
(e) in any other case by twelve (12) months (plus 1 additional month for each
year of service), notice in writing given by the Corporation or equivalent
compensation in lieu thereof provided that compensation in lieu of notice
may, in the sole discretion of the Corporation, be paid on the same basis
as set forth in Section 3.1.
6.2 In the case of the permanent disability of the Executive, the Executive
shall receive 70% of her salary for the remainder of the term of the
agreement.
6.3 Based upon any wrongful termination, which includes changes in control of
the Company (through an acquisition where any person acquires or announces a
tender offer or exchange for 25% of the Company, a sale of substantially all
of the assets or merger, acquisition of the Company or its consolidation with
another, or certain types of board changes), the Company shall pay the
Executive, a lump sum payment, based upon his or her then compensation,
including benefits and perquisites, from such termination. Such payment
shall be the balance of their respective compensation for the remainder of
the term. If the payment is in excess of $100,000, then such excess shall be
payable in equal quarterly payments with interest at the prescribed rate
under the Income Tax Act (Canada).
6.4 Any payment to the Executive under Sections 6 or 7 shall be deemed to
include all required payments pursuant to the provisions of the Employment
Standards Act (Ontario).
<PAGE>
6-
6.5 The Executive may, by providing one (1) month notice in writing to the
Corporation (the "Notice Period"), terminate this Agreement and her
employment with the Corporation. In the event the Executive provides such
notice to the Corporation, the Corporation may request that the Executive
cease duties prior to the expiry of the Notice Period. The Corporation shall
in such event pay to the Executive an amount equal to the difference between
what the Executive would have received had the employment of the Executive
been continued for the Notice Period and the amount actually paid by the
Corporation to the Executive during the Notice Period.
7. Change of Control
7.1 Notwithstanding Section 6 of this Agreement, in the event of a Change in
Control (as hereinafter defined) of the Corporation where the Executive is
Constructively Dismissed (as hereinafter defined) by new management within
eighteen (18) months of the Change in Control, the Executive shall have the
option of resigning from her employment by providing the Corporation, within
ninety (90) days of the Constructive Dismissal, with written notice of her
intention to resign in which case the following will apply.
7.2 The Executive's resignation will be effective ninety (90) days from the
date at which the Corporation receives written notice of the Executive's
intention to resign. On the effective date of such resignation (the "Date of
Termination"), the Executive shall be entitled to the following benefits:
(a) the Corporation shall pay to the Executive a lump sum equal to twice
the aggregate of the Executive's annual salary; and
(b) the right to exercise all stock options previously granted to the
Executive whether or not such options have become fully vested within
thirty (30) days of the Date of Termination.
In addition, the Corporation shall, at the request of the Executive, make
representations to the Securities Exchange Commission (the "SEC") in support
of an application by the Executive to the SEC for the release of any common
shares in the capital of the Corporation owned by her which are still held in
escrow pursuant to SEC Policy.
7.3 A "Change in Control" shall mean the occurrence of the acquisition or
continuing ownership of securities ("Convertible Securities") convertible
into, exchangeable for or representing the right to acquire shares of the
Corporation and/or shares of the Corporation as a result of which a person,
group of persons or persons acting jointly or in concert, or persons
associated or affiliated with any such person, group of persons or any of
such persons acting jointly or in concert (collectively, "Acquirors"),
beneficially own shares of the Corporation and/or Convertible Securities such
that, assuming only the conversion, exchange or exercise of Convertible
Securities beneficially owned by the Acquirors, the Acquirors would
beneficially own shares that would entitle the holders thereof to cast more
than 20% of the votes attaching to all shares in the capital of the
Corporation that may be cast to elect directors of the Corporation.
<PAGE>
7-
7.4 "Constructively Dismissed" or "Constructive Dismissal" shall be deemed to
have occurred if and when any of the following events or circumstances has
occurred without the prior written consent of the Executive within eighteen
(18) months of a Change in Control:
(i) any material and adverse change in the title, status, position, job
function, job responsibilities and/or reporting responsibilities of
the Executive from those current at the date hereof;
(ii) the assignment to the Executive of duties and responsibilities which
are inconsistent with her current status and position;
(iii) a reduction in the Executive's annual base salary; or
(iv) a material reduction in the bonus compensation or other employee
benefits available to the Executive.
8. Legal Advice
8.1 The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that she had the opportunity to seek and was not
prevented nor discouraged by the Corporation from seeking independent legal
advice prior to the execution and delivery of this Agreement and that, in the
event that she did not avail himself with the opportunity prior to signing
this Agreement, she did so voluntarily without any undue pressure and agrees
that her failure to obtain independent legal advice shall not be used by her
as a defence to the enforcement of her obligations under this Agreement.
9. General
9.1 Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted
by telecopy or similar means of recorded electronic communication or sent by
registered mail, charges prepaid, addressed as follows or to such other
address as the relevant party may specify from time to time:
(a) if to the Corporation:
Intercorp Excelle Inc.
1880 Ormont Drive
Weston, Ontario
M9L 2V4
Attention: President
Telecopier: (416) 744-4369
<PAGE>
8-
(b) if to the Executive, to her at:
47 Argonne Crescent
Toronto, Ontario
M2K 2K2
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such
day is not a business day, on the next following business day) or, if mailed,
on the third business day following the date of mailing; provided, however,
that if at the time of mailing or within three (3) business days thereafter
there is or occurs a labour dispute or other event which might reasonably be
expected to disrupt the delivery of documents by mail, any notice or other
communication hereunder shall be delivered or transmitted by means of
recorded electronic communication as aforesaid.
9.2 This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral. There
are no covenants, conditions, agreements, representations, warranties or any
other terms or provisions, express or implied, collateral, statutory or
otherwise, relating to the subject matter hereof, except as herein provided.
9.3 This Agreement shall be construed, interpreted and enforced in accordance
with, and the respective rights and obligations of the parties shall be
governed by, the laws of the Province of Ontario.
9.4 No amendment or waiver of any provision of this Agreement shall be
binding on any party unless consented to in writing by such party. No waiver
of any provision of this Agreement shall constitute a waiver of any other
provision nor shall any waiver constitute a continuing waiver unless
otherwise provided.
9.5 This Agreement shall enure to the benefit of and shall be binding upon
and enforceable by the parties hereto, and the heirs, executors,
administrators and legal personal representatives of the Executive and the
successors and assigns of the Corporation. This Agreement is personal to the
Executive and may not be assigned by the Executive.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as
of the date first above written.
Signed, sealed and delivered in the presence of: )
)
)
)
_______________________________________ ____________________________
Witness: Renee Unger
<PAGE>
9-
INTERCORP EXCELLE INC.
Per:
Authorized Signing Officer
<PAGE>
Exhibit 10.6
CONFIDENTIAL
February 29th, 1996
EXCELLE BRANDS FOOD CORP. ET AL
1880 ORMONT DRIVE
WESTON ON M9L 2V4
Attention: Mr. Arnie Unger, President
Dear Sir:
We are pleased to offer EXCELLE BRANDS FOOD CORP. ET AL, hereafter referred
to as "the borrower", a loan of $100,000.00 authorized February 29th, 1996,
on the following terms and conditions:
PROGRAMME AND FINANCING
This loan is to finance the following programme:
PROGRAMME
Working Capital $250,000.00
___________
$250,000.00
FINANCING
Business Development Bank of Canada $100.000.00
Increase in Line of Credit (TD) 150,000.00
__________
$250,000.00
No change in the programme or financing may be made without first obtaining
the Bank's written consent.
TERMS OF REPAYMENT
Principal will be repaid in 1 instalment of $1,000.00 on August 23rd, 1996,
followed by 60 consecutive monthly installments of $1,650.00 each, on the
23rd day of each month commencing on September 23rd, 1996. Interest on the
outstanding principal will also be also paid on the 23rd day of each month,
commencing the month following the first disbursement of the loan. The
interest rate will be 2.500 % above our daily floating base interest rate
which varies automatically and is regularly announced in our offices. The
current daily floating base rate is 9.000% per annum. The Maturity Date of
the Loan is August 23rd, 2001.
<PAGE>
It is possible to change from this floating interest rate plan to any
available fixed interest rate plan by providing 30 days written notice.
Payment of the Bank's standard switching fee then in effect is required.
Further details will be provided upon request.
It is also possible to select a fixed rate plan rather than the floating
without a switching fee if we are notified in writing of this intent to do so
by March 10th, 1996.
If the borrower selects a fixed interest rate plan rather than the floating
rate offered, the base interest rate corresponding to the selected interest
rate plan will be the rate that was in effect at the date of authorization of
this loan, provided we are notified in writing of this intent and the
acceptance of this loan by March 10th, 1996. If the acceptance is later than
this date, the base rate will be the base rate for the corresponding plan in
effect at date of acceptance and a switching fee will be payable which is
currently $250.00.
MANAGEMENT FEE
A monthly management fee of $50.00 shall apply to this loan and be payable on
the 23rd of each month beginning in the month following the initial
disbursement and ending when the loan has been fully repaid.
SECURITY PROCESSING FEE
The borrower agrees to pay the Bank's standard loan amendment and security
processing fees then in effect, which are charged for the administrative
handling of the loan documents by the Bank, such as for amending loan terms
and for the provision of discharges of security
The borrower also agrees to pay or reimburse the Bank all applicable returned
cheque handling fees and charges.
PRE-AUTHORIZED PAYMENT SYSTEM
All payments of principal interest and fees will be made under the
Pre-Authorization Payment System. Please complete the enclosed form and
return it with a sample cheque marked VOID.
SECURITY AND LEGAL DOCUMENTATION
This loan is the joint and several obligation of Excelle Brands Food Corp.
and Intercorp Foods Limited, secured by:
1. Loan Agreement.
2. Personal Property Security Agreement providing a first charge upon all
personal property of the Borrower including inventory, book debts,
equipment, subject only to chartered bank priority on inventory and
accounts receivable to support the line of credit.
3. Guarantee of Arnie Unger for $50.000 and Renee Unger for $50,000.
4. Assignment of a $112,223 shareholder loan owed to the directors of
Excelle Brands Food and of the $91,558 shareholder loan owed to the
parent company. Interest may be paid at a
<PAGE>
rate not exceeding that of the Bank's subject to the BDC loan
remaining in good standing.
The borrower also agrees to provide documentation satisfactory to the Bank
and its solicitors in order to carry out the intent of this agreement.
INSURANCE
The borrower agrees to provide and arrange for the following:
An assignment of appropriate insurance satisfactory to the Bank, on assets to
be charged to the Bank; recording Business Development Bank of Canada as Loss
Payee subject to the Insurer's Mortgage Interest clause.
You will advise your insurance broker/agent to arrange the necessary
insurance or amend existing policies as noted above. The solicitor
instructed to take security on your loan must have evidence that the required
insurance is in force, prior to disbursement of the loan.
It is not necessary to forward copies of your policies or renewals to the
Bank and your insurance broker/agent should be informed accordingly.
However, the Bank reserves the right to examine your policies or require that
certified copies be sent to the Bank at any time.
The borrower is obliged to inform the Bank immediately of any loss or damage
to any assets that are charged to the Bank.
We enclose an insurance authorization form. Would you please address it to
your agent and countersign and return it to our office in order that we may
forward it to your agent.
UNDERLYING CONDITIONS
1. No share dividend shall be paid without the Bank's prior written consent.
2. No loan shall be extended, no investment made, no guarantees given, and
no security pledged, without the Bank's prior written consent. Such
consent not unreasonably withheld.
3. No intercompany transactions, outside of the normal course of business
shall be made without the Bank's prior written consent. Sun consent not
unreasonably withheld.
4. The Bank wishes to maintain a close relationship with your business and
has therefore designed a programme that requires your cooperation. As
part of the programme, the Bank will contact you four times a year. For
our mutual benefit, the Bank will require prompt provision of the
specified financial information. The Bank will analyze the data and
arrange for 2 semi-annual visits by our counselor at a convenient date to
everyone concerned and 2 quarterly telephone contacts.
5. There shall be no redemption of shares nor dividends paid on any class of
shares.
<PAGE>
6. No loans may be extended to, nor investments made in, nor guarantees
provided for a third party without the Bank's prior written consent.
CONTINGENT CONDITIONS
The following contingent conditions will have to be fulfilled to the Bank's
satisfaction prior to any disbursement:
1. An audited financial statement as of January 31, 1996 which shows, at the
Bank's opinion, no material adverse change in the borrower's financial
position since the in-house financial statements dated January 31, 1996.
2. Satisfactory evidence that a financial institution operating credit of at
least $500,000 has been established in your favour with terms and
conditions acceptable to The Bank.
COMMITMENT FEE
The loan will lapse on August 30th, 1996, if after acceptance, the borrower
cancels it or does not provide the Bank with satisfactory documentation or
does not draw upon it, at least in part, by this date. Under any of these
circumstances the borrower will have to pay a commitment fee of $2,350.00
minus $500.00 already paid as processing fee, which will be retained by the
Bank not as a penalty, but as liquidated damages representing a reasonable
estimate of the Bank's damages in such event including, but not limited to,
costs incurred by the Bank, both before and after acceptance of this loan
offer, to process, investigate and approve the application for financing, to
prepare this offer, to instruct our solicitors and to arrange and reserve
funding for the loan.
STANDBY FEE
The borrower will pay a standby fee of 3% per annum calculated daily on that
portion of the loan which on each day starting April 30th, 1996 is not
disbursed by the Bank or is not canceled by the borrower in writing. The
standby fee will be effective from that date and will become due and payable
on the 23rd day of each month commencing May 23rd, 1996.
PREPAYMENT PRIVILEGE
The loan can be prepaid in whole or in part, at any time and without prior
notice. Furthermore the Interest Rate Differential will not apply if, at the
moment of prepayment, the loan outstanding is on a floating operational rate.
However, an Interest Rate Differential will be applicable if, at the moment
of prepayment, the loan outstanding is on a Fixed Interest Rate Plan. This
Interest Differential charge will only apply if, on the date of prepayment.
the Bank's base rate for the "corresponding" Fixed Interest Rate Plan is
lower than the base rate most recent set for the loan being prepaid.
The Interest Differential Rate is the difference between the two rates. The
"corresponding" Fixed Interest Rate Plan is determined by calculating the
number of years, rounded to the nearest year (minimum of one year) remaining
until the next Interest Adjustment Date (or the Maturity Date of the loan if
earlier) on the existing plan. The Interest Differential Rate is multiplied
by the principal that would have been outstanding at the 23rd of each month
until the next Interest Adjustment Date (or the maturity of the loan if
earlier), then the present value is calculated for each amount and
<PAGE>
totaled to become the Interest Differential charge. In the case of a partial
prepayment, the Interest Differential charge will be reduced proportionately.
Partial prepayments are applied regressively on the then last maturing
installments of principal.
LEGAL FEES
Payment of all legal charges relative to the preparation, execution and
registration of the security documents are the responsibility of the borrower
and may be paid directly by the Bank from the proceeds of this loan.
INELIGIBLE ACTIVITIES
It is a condition of this loan that the borrower or any person leasing space
from the borrower is not involved in the following activities: businesses
that are sexually exploitive or that are inconsistent with generally accepted
community standards of conduct or propriety, including those that feature
sexually explicit entertainment, products or services; businesses that are
engaged in or associated with illegal activities; businesses trading with
countries that are proscribed by the Federal Government; businesses that
operate as a separate and sole entity nightclubs, bars, lounges, cabarets,
casinos, discotheques and similar operations. If at any time during the
currency of the loan, the borrower or any person leasing space from the
borrower fails to comply with this paragraph, the loan will, at the sole
discretion of the Bank, become immediately due and payable forthwith. The
Bank's finding that there is an ineligible activity shall be final and
binding between the parties and will not be subject to review.
ENVIRONMENTAL CONDITION
The borrower is operating and will continue to operate the business in
conformity with all environmental legislation and neither the borrower nor
the prior owner of the assets has used them in violation of environmental
laws. All future uses of the facilities will be in compliance with relevant
environmental laws and any clean-up measures will be in full compliance with
all applicable laws at the sole costs of the borrower. Any breach of the
foregoing will constitute an event of default.
FINANCIAL STATEMENTS
The borrower will provide the Bank, within 90 days at the end of its year
end, with Annual Consolidated/Audited financial statements of Excelle Brands
Food Corp. /Intercorp Foods Ltd.
The borrower will also provide the Bank, within 30 days at the end of the
period, with Semiannual Combined by Client financial statements of Excelle
Brands Food Corp./Intercorp Foods Ltd.
By accepting this offer of credit, the borrower authorizes the Bank to
contact his auditors, inform them of the above-mentioned requirements and ask
them, on his behalf, to provide the Bank with the statements as soon as they
are completed.
CANCELLATION DATE
The Bank may cancel the undrawn balance of the loan if the borrower has not
drawn the entire loan within 12 months of its authorization date.
<PAGE>
DISBURSEMENT
Once the borrower has satisfied all our security requirements, met our
contingent conditions, if any, and utilized the financing obtained from
sources other than the Bank, if applicable, the Bank may disburse funds as
required against documents evidencing programme expenditures.
Unless otherwise authorized, funds will be disbursed "in Trust" to the
solicitors instructed to prepare security for this loan.
Please note that prompt attention to the completion and signing of the legal
documentation will assist in expediting the disbursement of funds.
The Bank may withhold disbursement or any undrawn balance if in the Bank's
opinion a material adverse change in risk occurs before full disbursement.
ACCEPTANCE
This loan offer will become effective upon receipt by the Bank no later than
March 11th, 1996, of your written acceptance by signing the enclosed forms
which cover our Offer of Credit as well as the automatic payment system and
insurance requirements.
<PAGE>
Should further information be required, please contact the undersigned at
954-5008.
Yours sincerely,
/s/ Michel Leduc
Michel Leduc
Senior Manager loans
Encl.
<PAGE>
(subject to amendments attached)**
I/we accept the terms and conditions of the loan as outlined in the letter of
offer dated February 29, 1996.
This loan is the joint and several obligation of Excelle Brands Food Corp.
and Intercorp Foods Limited.
Signed this 5th day of March, 1996
EXCELLE BRANDS FOOD CORP
By: /s/ Arnold Unger
----------------
By: /s/ Renee Unger
-----------------
GUARANTORS
/s/ Arnie Unger
- ----------------
Arnie Unger
/s/ Renee Unger
- ----------------
Renee Unger
<PAGE>
Subject: Amendments to Loan dated February 29, 1996
The amendments we require in accepting the terms and conditions of the loan
are as follows:
1) Security and Legal Documentation:
Point #2 to be changed in the last part to read "subject only to
chartered bank priority on inventory, accounts receivable, book debts,
equipment and insurance to support the line of credit".
2) Underlying conditions:
Point #1 and point 6 to be changed to add second line "Such consent not
unreasonably withheld". Also add to Point #6, loans, investments, etc.
outside the "normal course of business".
3) Underlying conditions:
Point #5 to be taken out all together.
Arnie Unger
Renee Unger
<PAGE>
March 7, 1996
Excelle Brands Food Corp et al
1880 Ormont Drive
Weston, Ontario
M9L 2V4
Attn: Mr. Arnie Unger, President
Dear Sir:
Re: A/C #353552-01-1 Toronto Branch
We are pleased to advise vou of the following amendment to the letter of
offer dated February 29, 1996.
SECURITY
Replace:
Personal Property Security Agreement providing a first
charge upon all pers...
By:
Personal Property Security Agreement providing a first charge upon all
personal property of the Borrower including inventory, book debts, equipment,
subject only to chartered bank priority on inventory and accounts receivable,
book debts, equipment and insurance to support the line of credit.
UNDERLYING CONDITIONS
Replace:
No share dividend shall be paid without the
Bank's prior written consent...
By:
No share dividend shall be paid without the Bank's prior written consent.
Such consent will not be unreasonably withheld.
VARIABLE RETURN
Replace:
No loans may be extended to. nor investments made
in, nor guarantees provid...
By:
No loans may be extended to, nor investments made in. nor guarantees provided
for a third party outside the normal course of business without the Bank's
prior written consent. Such consent will not be unreasonably withheld.
Delete:
There shall be no redemption of shares nor dividends paid on any
class of shares.
<PAGE>
EXCELLE BRANDS FOOD CORP ET AL
March 7, 1995
Page 2
All other terms and conditions remain the same.
Yours truly,
/s/ Michel Leduc
Michel Leduc
Senior Manager Loans
We hereby acknowledge that we have read and understood the above and consent
to and agree to be bound by the said amendment. (Please sign and return one
copy to the writer.)
Signed this ________ day of March 1996.
Excelle Brands Food Corp. Guarantor
Per:
- --------------------------------- ------------------------------
Arnie Unger
Intercorp Foods Limited
Per:
- --------------------------------- ------------------------------
Renee Unger
(Please affix company seal)
<PAGE>
Exhibit 10.7
NATIONAL BANK OF CANADA
ACKNOWLEDGMENT OF DEBT
REVOLVING DEMAND CREDIT
In consideration of the National Bank of Canada (thereinafter
called the "Bank") providing the undersigned thereinafter called
the "Customer") with a revolving demand loan facility
(thereinafter called the "Loan Facility") in the aggregate
principal amount, not exceeding $ 900,000.00
, Nine Hundred
Thousand______________________________________________________________________
__________________________xx dollars (x CDN: / / CDN or US Equivalent: / / US)
the customer agrees with the following::
1. TERMS OF CREDIT
The customer promises to pay the Bank, on demand, all amounts outstanding
under this Loan Facility including, without limitation, principal, interest,
fees and accessories.
2. INTEREST RATE
X 2.1 Advances in CDN$
Advances in CDN$ shall bear interest, until payment in full, at the
Canadian Prime Rate of the Bank plus 1.00 per cent, calculated
daily and payable monthly, with a minimum charge of $ 10.00 .
At the date hereof the Canadian Prime Rate of the Bank is
per cent per annum.
/ / 2.2 Advances in US$
Advances in US$ shall bear interest, until payment in full, at the US
Base Rate of the Bank plus per cent, calculated daily and
payable monthly, with a minimum charge of $ . At that date
hereof the US Base Rate of the Bank is Per cent per annum.
3. FINANCING CONDITIONS
3.1 The Customer authorizes the Bank, but the Bank is not obliged, to debit
from time to time his Account with the amount of interest accrued and
unpaid by the Customer.
3.2 Provided that the Bank has not demanded payment of any amount
outstanding under this Loan Facility, or has not terminated this
Agreement, the Customer may, at the Bank's discretion, borrow, repay
and reborrow up to the amount available under this Loan Facility at
any time and from time to time in the following manner:
3.2.1 The Customer authorizes the Bank, daily or otherwise as and
when determined by the Bank from time to time, to ascertain
the position or net position (as the case may be) between
the Customer and the Bank in respect to the deposit account
or, if more than one, the deposit accounts maintained by the
Customer with the Bank (herein called the "Account") and that
3.2.1.1 If such position or net position is a credit in
favour of the Customer, the Bank may apply the
amount of such credit or any part thereof, rounded
to the nearest $ 15,000.00 as a repayment of the
Loan Facility, and the Bank will debit the Account
with the amount of such repayment; and
3.2.1.2 If such position or net position is a debit in
favour of the Bank, the Bank will make an advance
under the Loan Facility of such amount, rounded to
the nearest $15,000.00 as is required to place the
Account in such credit or net credit position as
has been agreed between the customer and the Bank
from time to time, and the Bank may increase the
unpaid balance owing under the Loan Facility, and
credit the Account with the amount of such advance:
provided that at no time shall the balance owing
exceed the amount of the Loan Facility.
3.3 The Customer agrees to maintain an average monthly minium credit
balance in the Account, which may include compensating balances to
cover service charges, reserves and debit float. Such balance shall
be the amount agreed to in writing between the Customer and the Bank
from time to time.
3.4 The Bank shall maintain on the books of its unit of account,
accounts and records evidencing the outstanding principal amount of
the loan of the Bank to the Customer under this Loan Facility
together with any interest in respect thereof. The Bank shall
maintain a record or computerized data of the amount of the
balance, each advance, and each payment of principal and interest
on account of the loan. The Bank's accounts and records constitute
in the absence of manifest
<PAGE>
error prima facie evidence of the indebtedness of the Customer to the
Bank under this Loan Facility.
4. CONSOLIDATION
4.1 The Customer acknowledges that the outstanding principal balance
owing to the Bank under existing credit facilities which will be
replaced by this Loan Facility is $ ,
dollars,
as at the close of business on 19 . The initial outstanding
principal balance under this Loan Facility will be adjusted to
reflect transactions under the existing credit facility occurring
between 19 and the date of execution of this
agreement. The Customer acknowledges and declares that the security
previously granted to the Bank by the Customer remains in full
force and effect. The Bank hereby reserving all of its rights,
title and interest to and in the rights, hypothecs and privileges
granted to the Bank under the terms of said security.
5. SECTION 427 OF THE BANK ACT
5.1 This Agreement is given pursuant to the application for credit and
promise to give security made by the undersigned to the Bank and
dated the 17th day of June 1996, and any supplemental application
for credit and promise to give security. The Customer promises to
give the Bank from time to time warehouse receipts and/or bills of
lading covering the property described in such application(s) for
credit and promise(s) to give security or any part thereof which is
now or may hereafter be covered by warehouse receipts or bills of
lading, as security for this Loan Facility. No such security shall
be merged in any subsequent security or be taken to be substituted
for any security previously acquired. This section applies only to
loans granted under the provisions of the Bank Act.
6. INTERPRETATION
6.1 Definitions
For the purposes hereof, the following words and phrases shall have
the following meaning:
"Canadian Dollars" "CDN$": means lawful money of Canada.
"Canadian Prime Rate": means the annual variable rate of interest
announced from time to time by the Bank and used to determine the
interest rates on Canadian dollar commercial loans granted by the
Bank in Canada.
"Debt", "Indebtedness" or "total indebtedness": means the aggregate
amount of principal, interest and accessories due by the Customer
hereunder.
"Floating Rate": means the interest rate applicable to floating rate
advances made hereunder in Canadian or U.S. dollars, as the case
may be.
"U.S. Base Rate": means the annual variable rate of interest
announced from time to time by the Bank and used to determine the
interest rates on U.S. dollar commercial loans granted by the Bank
in Canada.
"U.S. Dollars" "US$": means lawful money of the United States of
America.
6.2 Conversion to U.S. or Canadian dollars
Each time an amount in Canadian dollars must be converted or
expressed in U.S. dollars, or the equivalent in U.S. dollars (or
inversely) must be determined, such calculation shall be made, on
the appropriate date, in accordance with the cash purchase rate of
the Bank at about 10:30 a.m.
6.3 Other Agreements
The Customer acknowledges that the terms of this agreement are in
addition to and not in substitution for any terms and conditions of
any other agreements between the Customer and the
Bank.
7. GENERAL TERMS AND CONDITIONS OF REPAYMENT
7.1 Currency and place of payment
All amounts due by the Customer under the terms hereof shall be
paid by the Customer to the Bank in Canadian dollars in the case
of a
2
<PAGE>
financing granted in Canadian dollars, or in U.S. dollars in the
case of a financing granted in U.S. dollars.
Should the amount of principal of the debt owing to the Bank
exceed the credit limit effectively granted hereunder, the
Customer shall reimburse the Bank, on demand, an amount equal to
such excess amount.
7.2 Judgment rendered in a currency other than the currency in which
the financing granted was due
Should a judgment be obtained against the Customer for an
amount owned by it, in a currency other than the one in which
the said amount was owing hereunder, the Customer shall pay the
Bank, as applicable, on the judgment date, such additional
amount as is equal to the excess of the amount that was due
hereunder and converted into the other currency, on the
judgment payment date, with respect to the judgment amount.
The exchange rate applicable for the purposes of obtaining the
judgment and for calculating said conversion shall be the rate
at which the Bank is able, on the appropriate date, in Montreal
to sell the currency applicable to this agreement to purchase
the other currency.
Any additional amount owing, under this clause
shall be due as a separate debt from that which
gave rise to the judgment, which judgment shall
not constitute resjudicata.
8. LANGUAGE
The Customer has expressly requested that this document be drawn up and
executed in the English language.
EXECUTED AT TORONTO THIS 25TH DAY OF APRIL, 1997
Per: /S/
-------------------------------- -- -----------------------------
SIGNATURE (Bank) SIGNATURE (Customer)
Per: /S/
-- -----------------------------
SIGNATURE (Customer)
3
