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Exhibit 99.5
LOAN AMENDING AGREEMENT
THIS AGREEMENT is made this 1st day of September, 2000.
B E T W E E N:
INTERNATIONAL MENU SOLUTIONS CORPORATION, a corporation
incorporated pursuant to the laws of the State of Nevada,
(hereinafter referred to as the "Parent")
- and -
INTERNATIONAL MENU SOLUTIONS INC., a corporation amalgamated
pursuant to the laws of the Province of Ontario,
(hereinafter referred to as the "Borrower")
- and -
SOUTHBRIDGE INVESTMENT PARTNERSHIP NO. 1, a partnership
constituted pursuant to the laws of the Province of Ontario,
(hereinafter referred to as "Southbridge")
- and -
FIRST ONTARIO LABOUR SPONSORED INVESTMENT FUND LTD., a
corporation incorporated pursuant to the laws of the Province
of Ontario,
(hereinafter referred to as "First Ontario")
- and -
BANK OF MONTREAL CAPITAL CORPORATION, a corporation
incorporated pursuant to the laws of Canada,
(hereinafter referred to as "BMOCC" and, together with
Southbridge and First Ontario, referred to as the "Lender
Group")
WHEREAS the parties hereto entered into a Loan Agreement dated the
26th day of May, 2000 (the "Loan Agreement");
AND WHEREAS the Borrower, the Parent, First Ontario, and BMOCC
entered into a loan agreement dated the 10th day of May, 1999 (the "1999 Loan
Agreement");
AND WHEREAS the Lender Group entered into a Security Sharing
Agreement made as of the 31st day of May, 2000 (the "Security Sharing
Agreement");
AND WHEREAS the parties hereto wish to amend the Loan Agreement as
set out herein.
NOW THEREFORE IN CONSIDERATION of their respective covenants and
agreements contained herein, the parties hereby agree as follows:
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1 ACKNOWLEDGEMENT. The Corporation acknowledges that the Lender Group had
advanced the sum of $4,500,000 to the Corporation pursuant to Section 2.1 of the
Loan Agreement prior to the date hereof.
2 AMENDMENT. The Loan Agreement is amended as follows:
a. Section 2.1 shall be replaced with the following provision with
effect from the date hereof:
" CREDIT FACILITY. Subject to the provisions of this Agreement, the
Lender Group agrees to make available to the Borrower a
non-revolving term facility in the maximum principal amount of
$5,200,000 available by way of three advances of the Borrowing with
the First Advance and the Second Advance available no later than
June 10, 2000 and the Third Advance available no later than
September 15, 2000. A Lender shall not be obligated to advance more
than its Loan Amount of the Borrowing."
b. Section 3.4 shall be replaced with the following paragraph with
effect from the date hereof:
"PAYMENT MECHANICS. Each payment under this Agreement shall be made
for value at or before 1:00 p.m. (Toronto time) on the day such
payment is due, provided that, if any such day is not a Business
day, such payment shall be deemed for all purposes of this Agreement
to be due on the Business day immediately preceding such day (and
any such adjustment shall be taken into account for purposes of the
computation of interest and fees payable under this Agreement). The
First Ontario Proportionate Interest, BMOCC Proportionate Interest,
and Southbridge Proportionate Interest of all payments made in
connection with the First Advance and the Second Advance shall be
made by post-dated cheques delivered to First Ontario, BMOCC, and
Southbridge, respectively at addresses set out in Section 11.1 or
such other address as such Lender may from time to time advise the
Borrower in writing. All payments made in connection with the Third
Advance shall be made by post-dated cheques delivered to Southbridge
at the said address. The Borrower shall ensure that each Lender has
at least two post-dated cheques at all times."
c. The following definitions are hereby amended or added to Schedule
"A" of the Loan Agreement:
"LOAN AMOUNT" means $3,700,000 in the case of Southbridge,
$1,000,000 in the case of First Ontario, and $500,000 in the case of
BMOCC;
"THIRD ADVANCE" means the advance of $700,000 by Southbridge of the
Borrowing.
3 REPRESENTATIONS AND WARRANTIES. The Borrower and the Parent
represent and warrant to Southbridge that the representations and warranties
contained in Part 6.0 of the Loan Agreement continue to be true and correct as
if made on today's date.
4 EXPENSES. The Borrower shall be responsible for all reasonable legal
fees and expenses relating to the preparation of this Agreement and the Third
Advance.
5 FEE. The Borrower shall pay to Southbridge a brokerage and due
diligence fee of $50,000 plus GST to be deducted from the Third Advance;
6 CONDITIONS. In addition to the conditions contained in the Loan
Agreement, the obligation of Southbridge to advance the Third Advance is
conditional upon Southbridge being satisfied that the Scotiabank has increased
the Borrower's access to its operating line based on inventory levels from
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$2,500,000 to $3,800,000, failing which this transaction shall be at an end and
the Borrower shall pay to Southbridge the sum of $20,000.
7 FURTHER ASSURANCES. Each of the parties hereto shall from time to
time execute, procure and deliver such documents and further assurances as may,
in the opinion of counsel, be necessary or advisable to give effect to the
provisions of this Agreement.
8 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of
and be binding on the parties hereto, their respective successors and any
permitted assignees or transferees of same or all of the parties' rights or
obligations hereunder.
9 COUNTERPARTS. This Agreement may be executed in several counterparts
each of which when executed shall be deemed to be an original, and such
counterparts shall each constitute on and the same instrument and
notwithstanding their date of execution shall be deemed to bear the day and year
first above written.
10 FACSIMILE. Execution and delivery of a facsimile transmission of
this Agreement shall constitute, for purposes of this Agreement, delivery of an
executed original and shall be binding upon the party whose signature appears on
the transmitted copy. Any party so executing this Agreement hereby undertakes to
originally-execute and deliver to the other parties hereto a copy of this
Agreement as soon as possible after execution by facsimile.
11 FULL FORCE. Except as amended by this Agreement, the Loan Agreement
shall remain in full force and effect.
12 SECURITY SHARING AGREEMENT. The Lender Group agrees that
notwithstanding any provision of the Loan Agreement or the Security Sharing
Agreement, each of BMOCC and First Ontario postpones and subordinates in right
of payment all principal amounts of the Borrowing (as defined in the Loan
Agreement) and the Loan Amount (as defined in the 1999 Loan Agreement) owing to
BMOCC and First Ontario respectively and payments thereof to the prior payment
in full to Southbridge of the principal amount of the Third Advance only.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
INTERNATIONAL MENU SOLUTIONS CORPORATION
By:
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Name: Michael Steele
Title: President
c/s
INTERNATIONAL MENU SOLUTIONS INC.
By:
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Name: Michael Steele
Title: President
c/s
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SOUTHBRIDGE INVESTMENT PARTNERSHIP NO. 1
by its general partner, SIPGP NO. 1 INC.
By:
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Name: Michael Petersen
Title: President
c/s
BANK OF MONTREAL CAPITAL CORPORATION
By:
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Name: Mel Margolese
Title: Managing Director
FIRST ONTARIO LABOUR
SPONSORED INVESTMENT FUND LTD.
By:
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Name: Colin Walker
Title: Vice-President
