Exhibit 2.1
Agreement of Purchase and Sale dated July 31, 2002 between Xxxxx & Partners
Limited in its capacity as the proposed interim receiver of Triple-C-Inc.
and Johnvince Foods Ltd. a Corporation incorporated under the laws of Ontario.
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT made the 31st day of July, 2002.
BETWEEN:
XXXXX & PARTNERS LIMITED in its capacity
as the proposed interim receiver of
Triple-C Inc.
(hereinafter called the "Vendor")
- and -
JOHNVINCE FOODS LTD., a corporation
incorporated under the laws of Ontario
(hereinafter called the "Purchaser")
WHEREAS the Company carried on the business of importing, selling and
distributing confectionary products;
AND WHEREAS Congress provided the Company with financing secured by a
security interest over all of the Company's assets, property and undertaking;
AND WHEREAS the Company is in default of its obligations to Congress
and Congress intends to take steps to enforce its security and will seek an
Order appointing the Vendor as interim receiver of the Company;
AND WHEREAS the Company has made or intends to make an assignment
pursuant to the provisions of the Bankruptcy and Insolvency Act (Canada) naming
the Vendor as trustee;
AND WHEREAS subject to the making of the Approval and Vesting Order the
Vendor has agreed to sell, transfer and assign to the Purchaser and the
Purchaser has agreed to buy from the Vendor, all of the Vendor's and the
Company's right, title and interest in and to the Purchased Assets:
NOW THEREFORE for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.01 Definitions.
In this Agreement the following terms shall have the following meanings;
"Accounts Receivable" means all accounts receivable, bills receivable, trade
accounts, book debts, insurance claims and any other amount due to the Company
by any Person, including refunds and rebates and the benefit of all security
(including deposits) for such indebtedness to the Company, and all guarantees
and other collateral held by the Company existing as at the Closing Date
(excluding Related Party Debts);
"Agreement" means this Agreement including the Recitals and Schedules to this
Agreement as it or they may be amended or supplemented from time to time, and
the expressions "hereof", "herein," "hereto," "hereunder," "hereby" and similar
expressions refer to this Agreement and not to any particular section or other
portion of this Agreement;
"Appeal Proceedings" means any proceeding occurring after the Court has issued
the Approval and Vesting Order capable of resulting in the appeal, amendment,
nullification, quashing or revocation of the Approval and Vesting Order;
"Approval and Vesting Order" means a final order of the Court, substantially in
the form attached as Schedule A, appointing the Vendor as interim receiver over
the Purchased Assets, ratifying the entering into of this Agreement by the
Vendor, approving the Transactions, authorizing and directing the Vendor to
implement the arrangements described in Article 11 of this Agreement, vesting
title to the Purchased Assets in the Purchaser or such other Person as the
Purchaser may designate free and clear of Encumbrances other than possessory
liens in respect of Inventory located in premises other than the Leased
Premises, and approving a distribution to Congress in full satisfaction of all
obligations (including costs and expenses) owing by the Company to Congress;
"Approval Date" means the date the Approval and Vesting Order is made by the
Court;
"Approval Date Deliveries" means those deliveries specified in Sections 8.01,
8.02 and 8.03;
"Base Purchase Price" means the amount of $2,097,994;
"Books and Records" means all originals and copies of all books and records of
the Company relating to the Business including financial, operations, sales
records, purchase records, lists of suppliers and customers (with full contact
particulars to the extent available) and all other documents, files,
correspondence, data and information, howsoever stored, including any of the
foregoing information stored on computer related media wherever located;
"Business" means the business of importing, selling and distributing
confectionary products;
"Business Day" means any day except Saturday, Sunday or any day on which banks
are generally not open for business in the City of Toronto;
"Canadian Dollars" means the lawful currency of Canada;
"Closing" means the completion of the Transactions;
"Closing Date" means the day that is the Eleventh (11th) day following the
Approval Date provided that if such day is not a Business Day the Closing Date
shall be the next Business Day thereafter or such earlier day as the Purchaser
may fix by notice in writing to the Vendor;
"Company" means Triple-C Inc. and includes any bankruptcy trustee appointed in
respect of Triple-C Inc.;
"Congress" means Congress Financial Corporation (Canada);
"Continental" means Continental Candy Industries B.V.;
"Continental Inventory" means the inventory in two containers identified
CMUU500099-1 and CMUU500281-8 which is currently in the possession of
Continental;
"Continental Inventory in Possession" means the Inventory in the approximate
value of $100,000 (at cost) in the possession of the Company to which
Continental has made a claim;
"Court" means the Ontario Superior Court of Justice (Commercial List);
"Employee Costs" means the amount of $16,079.15 incurred for wages to employees
and former employees of the Company to conduct the Trade Inventory count
contemplated in Section 2.06, to continue collection of Accounts Receivable and
to carry out such other tasks and services as the Vendor deems necessary or
desirable in connection with the Transactions;
"Encumbrances" means, with respect to the Purchased Assets, any and all
mortgages, charges, pledges, liens, encumbrances, security interests,
executions, judgments, trusts or any other claims in favour of Congress or any
other Person including, without limitation, those encumbrances listed on the
attached Schedule B;
"Escrow Agreement" means the agreement between the Parties in form and substance
satisfactory to the Parties with respect to the holding of the Purchase Price
and Approval Date Deliveries in escrow by the Vendor until Closing;
"Excluded Assets" means:
(a) Leased Premises;
(b) Continental Inventory;
(c) Related Party Debts;
(d) Leased Equipment;
(e) Leasehold Improvements;
(f) Accounts Receivable collected in cash by the Company or the Vendor
from and including July 31, 2002 to, but excluding, the Closing Date;
and
(g) all cash and cash equivalents;
"Exit Date" means October 29, 2002;
"Extended Closing Date" means the day that is the Twenty-first (21st) day after
the Vendor receives notice of any Appeal Proceedings;
"Fixed Assets" means all fixed assets, machinery, equipment implements, parts,
tools, jigs, dies, moulds, patterns, tooling spare parts, shelving and trade
fixtures of the Company of every kind and nature whatsoever wherever located,
but, for greater certainty, excluding Leasehold Improvements and Leased
Equipment;
"Intellectual Property" means all of the Company's right and interest in
recipes, formulae, product specifications, logos, trade dress, copyright, trade
marks, trade names, industrial designs, patents, proprietary information, trade
secrets, quality control and analysis records and all other intellectual
property owned by, licensed to, or used by the Company (including applications
and registrations of any of the foregoing and all renewals, extensions and
re-issues pertaining thereto), the name "Triple-C" and any variant thereof
(including the domain name) and all other documents, files, records,
correspondence, advertising and promotional materials and other data and
information relating thereto, including the Company's right and interest in the
trade marks described in Schedule C but only to the extent that the Company or
the Vendor have the right to assign the same without the prior approval or
consent of any third party,
"Interim Period" shall have the meaning ascribed in Section 11.01;
"Interim Period Receivables" shall have the meaning ascribed in Section
11.01(a);
"Inventory" means all inventory of the Company of every kind and nature
whatsoever wherever located, including all Trade Goods Inventory, raw materials,
work in process, finished goods, operating supplies, packaging, advertising and
promotional materials of every kind and nature whatsoever wherever located;
"Landlord" means the landlord listed on Schedule D;
"Leased Premises" means the premises leased by the Landlord to the Company and
listed on Schedule D;
"Leased Equipment" means equipment leased to the Company;
"Leasehold Improvements" means all leasehold improvements and landlord fixtures
at the Leased Premises, including fixtures that are the property of the Landlord
pursuant to the Lease;
"Other Assets" means all of the property and assets of the Company other than
Excluded Assets, Accounts Receivable, Inventory, Books and Records, Fixed Assets
and Intellectual Property and includes goodwill and intangible assets;
"Parent" means, collectively, Rachel's Gourmet Snacks, Inc. and Rachel's
Manufacturing, Inc.;
"Party" means a party to this agreement and any reference to a Party includes
its successors and permitted assigns; and "Parties" means every Party;
"Person" is to be broadly interpreted and includes an individual, a corporation,
a partnership, a trust, an unincorporated organization, the government of a
country or any political subdivision thereof, or any agency or department of any
such government, and the executors, administrators or other legal
representatives of an individual in such capacity;
"Pez" means Pez Candy, Inc.;
"Purchased Assets" means, to the extent the same does not include the Excluded
Assets;
(a) Accounts Receivable;
(b) Inventory;
(c) Books and Records;
(d) Fixed Assets;
(e) Intellectual Property; and
(f) Other Assets;
"Purchase Price" means the purchase price set out in Section 3.01 as the same
may be adjusted pursuant to Sections 3.03 and 3.04;
"Purchaser" means Johnvince Foods Ltd.;
"Related Party Debts" means all indebtedness owed to the Company by the Parent
or by any other corporation affiliated with the Company and including any
indebtedness owed to the Company by any of its directors, officers, employees or
shareholders;
"Time of Closing" mean 10:00 a.m. on the Closing Date or such other time on the
Closing Date as the Parties may agree;
"Trade Goods Inventory" means the Inventory of the Company purchased for resale
to customers located at the Leased Premises and, for greater certainty, excludes
raw materials, work in process, operating supplies, packaging, advertising and
promotional materials of every kind and nature;
"Transactions" means the purchase and sale of the Purchased Assets and all other
transactions contemplated by this Agreement;
"Transfer Taxes" means all applicable federal and provincial sales and transfer
taxes exigible in connection with the Transactions; and
"Wonka" means The Willy Wonka Candy Factory, a Division of Nestle, Inc.
1.02 Headings and Table of Contents.
The division of this Agreement into Articles and Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
1.03 Number and Gender.
Unless the context requires otherwise, words importing the singular include the
plural and vice versa and words importing gender include all genders.
1.04 Statute References.
Any reference in this Agreement to any statute or any section thereof shall,
unless otherwise expressly stated, be deemed to be a reference to such statute
or section as amended, restated or re-enacted from time to time.
1.05 Section and Schedule References.
Unless the context requires otherwise, references in this Agreement to Sections
or Schedules are to Sections or Schedules of this Agreement.
1.06 Schedules.
The following Schedules are attached to and form part of this Agreement:
Schedule A - Approval and Vesting Order
Schedule B - Encumbrances
Schedule C - Intellectual Property
Schedule D - Leased Premises
Schedule E - Access Agreement
Schedule F - Threshold Calculation
1.07 Payment and Currencies.
Unless otherwise stated, all dollar amounts referred to in this Agreement are in
Canadian Dollars. Any money to be paid or tendered by one Party to another
pursuant to this Agreement shall be paid by bank draft, certified cheque or wire
transfer payable to or to the order of the Vendor. Any tender of documents or
money pursuant to this Agreement may be made upon the parties or their
respective counsel.
ARTICLE 2
PURCHASE AND SALE
2.01 Purchased Assets to be Purchased and Sold.
Subject to the terms and conditions hereof and subject to the making of the
Approval and Vesting Order, the Vendor agrees to sell, assign and transfer to
the Purchaser, or to such other company or companies as the Purchaser may
designate in writing, and the Purchaser hereby agrees to purchase from the
Vendor, on the Closing Date, all of the Vendor's and the Company's right, title
and interest, if any, in and to the Purchased Assets.
2.02 Assignments Requiring Consent.
Nothing in this Agreement shall be construed as requiring the Vendor to assign,
or as an attempt to assign, any contract agreement, license, permit or warranty
which is not assignable in whole or in part, either pursuant to its terms, by
law or without the consent of the other party or parties thereto unless, in the
last case, such consent shall have been given, and the inability to assign such
contracts shall not entitle the Purchaser to terminate this Agreement, not to
complete the Transactions (save as provided in Sections 5.01 and 5.02) or claim
any damages, compensation or reduction of the Purchase Price.
2.03 As is, Where is.
The Purchaser acknowledges and agrees that except as provided herein, the
Purchased Assets are purchased on an "as is, where is" basis and that the
Purchaser has inspected the Purchased Assets and is relying entirely on its own
investigations and inspections in proceeding with the Transactions. Without
limiting the generality of the foregoing, the Purchaser expressly confirms,
acknowledges and agrees that, at the Time of Closing, the Purchaser will accept
the Purchased Assets in their then-present state, condition and location, and
that the Vendor has made no representations or warranties, and there are no
terms, conditions, understandings or collateral agreements, express or implied,
by statute or otherwise (including, without limitation, under the Sale of Goods
Act (Ontario)), all of which are expressly waived, with respect to title,
encumbrances, rights of third parties, assignability, merchantability,
removeability, condition, description, fitness for purpose, quality, quantity,
cost or as to any other matter whatsoever of the Purchased Assets, or otherwise
of or concerning the Purchased Assets or the right of the Vendor to sell,
transfer or assign the same, save and except for the express representations and
warranties given in Section 4.01, The Purchaser acknowledges that the Purchased
Assets are specifically being purchased as they will exist on the Closing Date
with no adjustment to be allowed to the Purchaser for any changes in the
condition of the Purchased Assets from the date hereof to the Closing Date save
and except as otherwise provided in this Agreement, The . Purchaser acknowledges
that any description and information of the Purchased Assets provided by the
Vendor or in any asset list, information package, and all other documents
relating or ancillary thereto, have been prepared solely for the convenience of
prospective purchasers and are not warranted to be complete, accurate or
correct, that such descriptions and information do not constitute part of any
tem-is and conditions of sale of the Purchased Assets. The Purchaser further
acknowledges that the descriptions of the Purchased Assets contained in the
annexed Schedules are for the purpose of identification only and there is no
condition, warranty or representation by the Vendor concerning the accuracy,
completeness or any other matter concerning those descriptions. The foregoing
provisions of this Section 2.03 are without prejudice to the rights conferred on
the Purchaser under Section 2.06.
2.04 Transfer Taxes.
(a) The Purchaser shall be responsible for the payment of all Transfer
Taxes. The Purchaser will at the Time of Closing pay directly to the
appropriate taxing authority all Transfer Taxes. The Purchaser will
deliver to the Vendor, at the Time of Closing, evidence to confirm the
payment of all of Transfer Taxes, in form and substance acceptable to
the Vendor and its counsel in all respects. Notwithstanding the
foregoing, the Purchaser may provide the Vendor with suitable exemption
certificates indicating the Purchaser's entitlement to any exemption or
exemptions from any Transfer Taxes, which exemption certificates, if in
form and substance acceptable to the Vendor and its counsel, acting
reasonably, will be accepted by the Vendor in lieu of the Purchaser's
obligations in respect of Transfer Taxes. The Purchaser shall and
hereby indemnifies and holds the, Vendor harmless in respect of any
Transfer Taxes, penalties and interest which may be assessed against
the Vendor as a result of the sale of the Purchased Assets and the
failure of the Purchaser to pay all of the Transfer Taxes payable in
connection with the Transactions, whether arising from re-assessment or
otherwise. The foregoing indemnification obligation shall survive the
Closing.
(b) The Vendor (on behalf of the Company) and the Purchaser shall
jointly elect at the Time of Closing under Subsection 167(l) of Part IX
of the Excise Tax Act (Canada) and any provincial legislation imposing
a similar value added or multi-staged tax, that no tax be payable with
respect to the sale and purchase of the Purchased Assets pursuant to
this Agreement, The Vendor and the Purchaser shall make such election
in the prescribed form containing prescribed information and the
Purchaser shall file the joint election in compliance with the
requirements of the Excise Tax Act (Canada) and any provincial
legislation imposing a similar value added or multi-staged tax. In the
event that an election under section 167 of the Excise Tax Act (Canada)
cannot be validly made, or the Canada Customs and Revenue Agency does
not accept in whole or in part such election, the Purchaser (i) shall
pay to the Vendor, in addition to any amounts payable by the Purchaser
under this Agreement all goods and services tax payable pursuant to the
Excise Tax Act (Canada) on or in respect of the property and services
supplied hereunder including, without limitation, such tax calculated
on or in respect of the value of the consideration paid or payable by
the Purchaser under this Agreement, and (ii) shall indemnify and save
harmless the Vendor from any penalties and interest which might be
payable by or assessed against the Vendor under the Excise Tax Act
(Canada) due to the supplies made under this Agreement not being
eligible for the section 167 election. The foregoing indemnification
obligation shall survive Closing.
2.05 Risk.
Until the Time of Closing, the Purchased Assets shall remain at the risk of the
Vendor and the Vendor shall hold all policies of insurance in effect on the
Purchased Assets and the proceeds in trust for itself, the Purchaser and all
other persons with an interest in the Purchased Assets as their respective
interests may appear. In the event of damage to a substantial portion of the
Purchased Assets prior to the Time of Closing, the Purchaser may, at its option:
(a) complete the Transactions without reduction of the Purchase Price
in which event all proceeds of insurance or compensation not to exceed
the Purchase Price, shall be payable to the Purchaser, or
(b) terminate this Agreement in which case the Parties shall have no
further rights or remedies against each other.
2.06 Trade Goods Inventory Count.
Beginning an July 31, 2002 for a period of two (2) Business Days, the Vendor, in
the presence of the Purchaser, shall conduct a detailed count of the Trade Goods
Inventory and reconciliation of the trade Accounts Receivable. Immediately
following completion of the detailed count and reconciliation a variance report
shall be prepared by the Purchaser and provided to the Vendor prior to 12:00
(noon) on August 2. 2002 together with the Purchaser's calculation of the value
of the Trade Goods Inventory and the trade Accounts Receivable based on the
valuation formula set out in Schedule F and in the case of the Trade Goods
Inventory that is merchantable,, on quantity as counted. The sum of
approximately $100,000 shall be deducted from the value of the Trade Goods
Inventory on account of the Continental Inventory in Possession. If the value of
the Trade Goods Inventory plus the value of the Accounts Receivable based on the
results of the foregoing count and reconciliation is determined by the Purchaser
in writing to be less than $1,700,000 (as adjusted downward by $0.75 for each
$1.00 of Accounts Receivable collected since July 26, 2002) the Purchaser shall
have the right exercisable on or before 5:00 p.m. on August 2, 2002 to terminate
this Agreement by providing the Vendor with written notice.
2.07 Employees.
Effective on or before the Closing Date, all of the employees of the Vendor
shall be terminated by operation of law of otherwise.
ARTICLE 3
PURCHASE PRICE
3.01 Purchase Price.
The Purchase Price for the Purchased Assets shall be the amount that is equal to
the Base Purchase Price plus the Employee Costs subject to adjustment in
accordance with Section 3.03 and 3.04 of this Agreement.
3.02 Payment of Purchase Price.
Subject to the terms and conditions of this Agreement on the later of the
Approval Date and August 13, 2002, the Purchaser shall pay the full amount of
the Purchase Price to the Vendor to be held by the Vendor in accordance with the
terms of the Escrow Agreement.
3.03 Adjustment of Employee Costs
On the Closing Date the Vendor will provide the Purchaser with details of the
actual Employee Costs incurred by the Company or the Vendor from and including
July 26, 2002 up to and including the Closing Date. In the event that the actual
Employee Costs incurred during this period are less than the Employee Costs, the
Employee Costs shall be reduced to reflect the actual Employee Costs incurred by
the Company or the Vendor. Under this Section 3.03 the Purchaser shall in no
event be liable for any amount in excess of the Employee Costs.
3.04 Purchase Price Adjustment
(a) The Base Purchase Price shall be reduced by One (1) dollar for
every One (1) dollar of Accounts Receivable collected by the Company or
the Vendor between the date of this Agreement and the Closing Date both
inclusive.
(b) If by final order of the Court any of the Purchased Assets are
excluded from the purchase and sale contemplated hereunder, the Base
Purchase Price shall be reduced by an amount agreed upon between the
Parties to be attributable to such Purchased Assets, both acting in
good faith and reasonably. If the Parties cannot agree within 10
Business Days of notice of such final order of the Court, the portion
of the Base Purchase Price attributable to such Purchased Assets and
the amount of such reduction shall be settled by reference to a
recognized valuator of such type of Purchased Assets selected by the
Vendor. Such valuator shall be instructed to take into account the
basis upon which the Purchased Assets have been purchased and sold
pursuant to this Agreement, and that in respect of the Trade Goods
Inventory, the Purchaser applied, in part, a weighted average
percentage in formulating the portion of the Base Purchase Price
attributable to Trade Goods Inventory. The determination of such
recognized valuator shall be binding on the Parties and not subject to
appeal. 'The costs of any recognized valuator so engaged by the Parties
shall be borne by the Purchaser. Notwithstanding the foregoing, the
Purchaser shall not be entitled to any reduction of the Base Purchase
Price as a result of the claim asserted by Continental to, the
Continental Inventory in Possession or as a result of the exclusion
from the purchase and sale transaction of the Continental Inventory in
Possession and all costs and expenses to dispute such claim and all
amounts the Court may require to be set aside pending resolution of
such dispute shall be the responsibility of, and for the account of,
the Purchaser and in addition to the Purchase Price.
3.05 No Assumption of Liabilities.
Except as otherwise herein expressly provided or imposed upon the Purchaser by
operation of applicable law or under the terms of this Agreement, the Purchaser
shall not assume and shall not be responsible for any of the Vendor's or the
Company's liabilities, debts or obligations, whether present or future, absolute
or contingent and whether or not relating to the Business including, without
limitation, those liabilities with respect to notice of termination, severance
and other obligations to employees of the Business, for federal, provincial and
local income taxes, employment taxes and property taxes or expenses or costs
arising out or relating to this Agreement, the negotiation hereof and the
consummation of the Transactions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Vendor.
The Vendor represents and warrants to the Purchaser as follows and acknowledges
that the Purchaser is relying on such representations and warranties in
connection with the Transactions:
(a) the Vendor is a corporation duly incorporated and validly
subsisting under the laws of its jurisdiction of incorporation;
(b) subject to the making of the Approval and Vesting Order, the Vendor
has the full right, power and authority to enter into this Agreement
and all other documents contemplated herein to which it is or will be a
party, to perform its obligations hereunder and thereunder, and to
carry out the Transactions;
(c) subject to the making of the Approval and Vesting Order, this
Agreement has been duly executed and delivered by the Vendor and
constitutes a legal, valid and binding obligation of the Vendor
enforceable in accordance with its terms;
(d) the Vendor is not and will not be at the Time of Closing a
non-resident of Canada within the meaning of the Income Tax Act
(Canada);
(e) the Vendor has not transferred or granted any option or right
capable of becoming an agreement or option for the purchase of the
Purchased Assets other than in the ordinary course of business or
pursuant to the provisions of this Agreement;
(f) neither the Vendor nor, to the best of the Vendor's knowledge,
Congress has done any act to encumber any of the Purchased Assets;
(g) the Vendor is not aware of any redemption or foreclosure of any of
the Purchased Assets by any third party, including the Landlord, prior
to the Time of Closing; and
(h) the Company's registration number pursuant to the Excise Tax Act
(Canada) is 10539 5511 RT0001.
4.02 Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants to the Vendor and acknowledges that
Vendor is relying on such representations and warranties in connection with the
Transactions:
(a) the Purchaser is a corporation duly incorporated and validly
subsisting under the laws of its jurisdiction of incorporation;
(b) the Purchaser has all necessary power, authority and capacity,
corporate and otherwise, to enter into this Agreement and to purchase
the Purchased Assets in the manner contemplated herein and to perform
its other obligations hereunder;
(c) this Agreement and all other documents contemplated hereunder to
which the Purchaser is or will be a party have been or will be, as the
Time of Closing, duly and validly executed and delivered by the
Purchaser, and constitute or will constitute, as at the Time of
Closing, legal, valid and binding obligations of the Purchaser,
enforceable against it in accordance with the terms hereof or thereof;
(d) the Purchaser intends to direct that title to the Purchased Assets
be vested in Johnvince Foods Processing Inc. whose registration number
pursuant to the Excise Tax Act (Canada) is 139230361 RT0001; and
(e) neither the Purchaser nor Johnvince Foods Processing Inc. is nor
will either of them be at the Time of Closing, a "non-Canadian" within
the meaning of the Investment Canada Act (Canada).
ARTICLE 5
CONDITIONS OF CLOSING
5.01 Condition Precedent - Court Approval.
Neither the Vendor nor the Purchaser shall be obligated to complete the
Transactions unless the Court shall have made the Approval and Vesting Order on
or before August 13, 2002.
5.02 Purchaser's Conditions.
In addition to the condition contained in Section 5.01 hereof, the obligation of
the Purchaser to purchase the Purchased Assets as contemplated in this Agreement
is subject to the conditions stated below which arc for the exclusive benefit of
the Purchaser and all or any of which may be waived by the Purchaser. If any
condition is not satisfied as of the Closing Date, or at such earlier date as is
specified, the Purchaser may at its sole discretion terminate this Agreement:
(a) all representations and warranties of the Vendor contained in this
Agreement shall be true in all material respects as of the Closing Date
with the same effect as though made on and as of that date;
(b) the Parent shall have provided a letter consenting to the
Transactions in form and substance acceptable to the Purchaser acting
reasonably;
(c) the Vendor shall have performed all of its covenants and
pre-closing obligations under this Agreement;
(d) the Vendor shall have delivered to the Purchaser the documents listed in
Sections 8.02 and 8.06 and such documents shall have been released from escrow;
(e) apart from the claim by Continental in the Continental Inventory in
Possession and except as otherwise provided in this Article 5 with respect to
Appeal Proceedings, there shall be no legal proceedings, either threatened or
commenced by any Person against the Vendor or the Purchaser concerning this
Agreement, the Purchased Assets or any other matter relating or pertaining
thereto and there shall be no stay order, injunction or restraining order,
judicial or administrative, issued by any Person enjoining or preventing the
Vendor or the Purchaser from completing the Transactions; and
(f) the Vendor shall undertake to file, or cause to be filed, with the Court
such certificate as may be necessary to render the Approval and Vesting Order
effective in accordance with its terms.
5.03 Vendor's Conditions.
In addition to the conditions contained in Section 5.01 hereof, the obligation
of the Vendor to sell the Purchased Assets as contemplated in this Agreement is
subject to the conditions stated below which are for the exclusive benefit of
the Vendor and all or any of which may be waived by the Vendor. If any condition
is not satisfied as of the Closing Date, the Vendor may at its sole discretion
terminate this Agreement:
(a) all representations and warranties of the Purchaser contained in
this Agreement shall be true in all material respects as at the Closing
Date with the same effect as though made on and as of that date;
(b) the Purchaser shall have made arrangements satisfactory to Congress
in its sole discretion with respect to the certain letter of credit or
bond issued by the Bank of Montreal for the benefit of the Company in
connection with the obligations of the Company under the Excise Tax Act
(Canada), which arrangements shall include the deposit of $110,000 with
Congress as cash collateral for such letter of credit or bond;
(c) the Purchaser shall have performed all of its material covenants
and obligations under this Agreement;
(d) apart from the claim by Continental in the Continental Inventory in
Possession and except as otherwise provided in this Article 5 with
respect to Appeal Proceedings, there shall be no legal proceedings,
either threatened or commenced by any Person against the Vendor or the
Purchaser concerning this Agreement, the Purchased Assets or any other
matter relating or pertaining thereto and there shall be no stay order,
injunction or restraining order, judicial or administrative, issued by
any Person enjoining or preventing the Vendor or the Purchaser from
completing the Transactions;
(e) the Purchaser shall have paid the Purchase Price into escrow under
the terms of the Escrow Agreement and the Purchase Price shall have
been released from escrow; and
(f) the Purchaser shall have delivered to the Vendor the documents
listed in Sections 8.03 and 8.07 and such documents shall have been
released from escrow.
5.04 Satisfaction of Conditions.
The closing of the Transactions by the Parties shall be deemed to constitute a
waiver by the Parties of compliance of any condition included for its benefit
which has not been satisfied.
5.05 Appeal Proceedings - Trade Goods Inventory Less than $200,000
In the event that Appeal Proceedings are commenced that relate to Trade Goods
Inventory of less than $200,000 at cost, the Vendor may elect by notice in
writing to the Purchaser delivered within Five (5) Business Days of the date the
Vendor receives notice. of any Appeal proceedings to (i) defend the Appeal
Proceedings in which case the items of Trade Goods Inventory which are the
subject of the Appeal Proceedings shall be segregated and excluded from the
Purchased Assets, an amount equal to the part of the Base Purchase Price
attributable to the Trade Goods Inventory that is the subject of the Appeal
Proceedings shall be held in escrow by the Vendor pending the determination of
the Appeal Proceedings and, unless the Transactions have been stayed, the
purchase and sale of the remaining Purchased Assets will close on the Closing
Date, (ii) defend the proceedings and extend the Closing Date until the Extended
Closing Date, or (iii) in the event the Transactions are stayed, terminate this
Agreement in which case the Purchase Price (together with accrued interest if
any) shall be returned to the Purchaser.
5.06 Appeal Proceedings - Trade Goods Inventory in Excess of $200,000
In the event Appeal Proceedings are commenced that relate to Trade Goods
Inventory equal to or in excess of $200,000 at cost the Purchaser shall have the
right to terminate this Agreement by notice in writing to the Vendor delivered
within Five (5) Business Days of the date the Purchaser receives notice of any
Appeal proceedings and the Purchase Price shall be returned to the Purchaser
(together with accrued interest if any). In the event that the Purchaser does
not terminate this Agreement the Vendor may then elect by notice in writing to
the Purchaser to (i) defend the Appeal Proceedings in which case if the Appeal
Proceedings relate to Trade Good Inventory, the items of Trade Goods Inventory
which are the subject of the Appeal Proceedings shall be segregated and excluded
from the Purchased Assets, an amount equal to the part of the Base Purchase
Price attributable to the Trade Goods Inventory that is the subject of the
Appeal Proceedings shall be held in escrow by the Vendor pending the
determination of the Appeal Proceedings, and unless the Transactions have been
stayed, the purchase and sale of the remaining Purchased Assets will close on
the Closing Date, (ii) defend the Appeal Proceedings and extend the Closing Date
until the Extended Closing Date, or (iii) terminate this Agreement in which case
the Purchase Price shall be returned to the Purchaser (together with accrued
interest if any).
5.07 Appeal Proceedings - Intellectual Property
In the event Appeal Proceedings are commenced that relate to the ownership of
Intellectual Property that, in aggregate, accounts for more than $2,500,000 of
the Company's sales in the last fiscal year, the Purchaser shall have the right
to terminate this Agreement by notice in writing to the Vendor delivered within
Five (5) Business Days of the date the Purchaser receives notice of any Appeal
proceedings and the Purchase Price shall be returned to the Purchaser (together
with accrued interest if any). In the event that the Purchaser does not
terminate this Agreement the Vendor may then elect by notice in writing to the
Purchaser to (i) defend the Appeal Proceedings in which case the Intellectual
Property which is the subject of the Appeal Proceedings shall be excluded from
the Purchased Assets, an amount equal to the part of the Base Purchase Price
attributable to the Intellectual property that is the subject of the Appeal
Proceedings shall be held in escrow by the Vendor pending the determination of
the Appeal Proceedings, and unless the Transactions have been stayed, the
purchase and sale of the remaining, Purchased Assets will close on the Closing
Date, (ii) defend the Appeal Proceedings and extend the Closing Date until the
Extended Closing Date, or (iii) terminate this Agreement in which case the
Purchase Price shad be returned to the Purchaser (together with accrued interest
if any).
5.08 Appeal Proceedings General
In the event that Appeal Proceedings are commenced that do not relate to Trade
Goods Inventory or Intellectual Property that is the subject of Section 5.07,
the Vendor may elect by notice in writing to the Purchaser delivered within Five
(5) Business Days of the date the Vendor receives notice of any Appeal
Proceedings to (i) defend the Appeal Proceedings in which case the Purchased
Assets which are the subject of the Appeal Proceedings shall be excluded from
the Purchased Assets, an amount equal to the part of the Base Purchase Price
attributable to the Purchased Assets that are the subject of the Appeal
Proceedings shall be held in escrow by the Vendor pending the determination of
the Appeal Proceedings and, unless the Transactions have been stayed, the
purchase and sale of the remaining Purchased Assets will close on the Closing
Date, (ii) defend the Appeal Proceedings and extend the Closing Date to the
Extended Closing Date, or (iii) terminate, this Agreement in which case the
Purchase Price shall be returned to the Purchaser (together with accrued
interest if any).
5.09 Extended Closing
In the event that Vendor elects to defend any Appeal Proceedings and extend the
Closing Date to the Extended Closing Date, and the Appeal Proceedings are not
settled or otherwise determined by the Extended Closing Date, either the
Purchaser or the Vendor may elect to terminate this Agreement by notice in
writing to the other Party at any time following the Extended Closing Date and
the Purchase Price shall be returned to the Purchaser (together with accrued
interest if any).
5.10 Attribution of Base Purchase Price
Unless otherwise ordered by the Court, the amount of the Base Purchase Price to
be set aside pursuant to Section 5.05 to 5.08, inclusive, shall be determined in
the same manner as set out in Section 3.04(b).
ARTICLE 6
ACCESS TO PURCHASED ASSETS
6.01 Access to Purchased Assets.
The Purchaser shall, under the supervision of the Vendor, have the right to
monitor during all hours of operation the conduct of the Business from and after
the execution of this Agreement by the Vendor, including the right to have
representatives of the Purchaser present at the Leased Premises and the Vendor
shall provide the Purchaser through its authorized representatives with
reasonable access to the Books and Records.
6.02 Information to be Kept Confidential.
Until the completion of the Transactions at the Time of Closing, the Purchaser
shall keep all information obtained pursuant to the terms of this Agreement
strictly confidential provided that the Purchaser may disclose such information
to its accountants, solicitors, financiers, agent and other advisers, provided
that they agree to keep such information confidential on the same basis, any
governmental authority having a right to receive such information or pursuant to
the order of a court of competent jurisdiction. For greater certainty, there
shall be no obligation on the part of the Vendor to maintain any information
confidential insofar as any report or application to the Court is concerned. If
this Agreement is terminated for any reason, all copies of any Books and Records
or any other information pertaining to the Company or the Business made by or on
behalf of the Purchaser shall forthwith be returned to the Vendor or otherwise
forthwith destroyed and the Purchaser shall keep all information obtained
pursuant to the terms of this Agreement strictly confidential. The foregoing
obligation of confidentiality shall survive any termination of this Agreement.
6.03 Press Releases.
Until the completion of the Transactions at the Time of Closing, no Party hereto
shall issue any press release or other publicity concerning the proposed
transaction without the prior approval of the other Party, except as otherwise
required by law.
6.04 Copies of Documents.
The Purchaser agree that for statutory purposes the Vendor may require access to
the Books and Records of the Business subsequent to the Closing Date and the
Purchaser agrees to provide the Vendor with access to such Books and Records
subsequent to the Time of Closing as may be reasonable for the Vendor to fulfill
its duties and obligations in filing tax returns, complying with the Approval
and Vesting Order and any further orders of the Court, its statutory duties, or
for any other legitimate purpose.
ARTICLE 7
COVENANTS
7.01 Approval and Vesting Order.
The Vendor covenants that forthwith after the execution of this Agreement it
shall apply to the Court for the Approval and Vesting Order and give notice of
such motion to the Landlord and to such other persons as may be required by law
or designated in writing by the Purchaser as being persons that should be
served.
7.02 Tax Elections.
At the Time of Closing, the Vendor and the Purchaser shall take all steps
necessary to make the election described in Section 2.04(b) of this Agreement.
ARTICLE 8
CLOSING ARRANGEMENTS
8.01 Escrow Agreement
The Parties shall enter into the Escrow Agreement on the Approval Date.
8.02 Approval Date Deliveries by the Vendor
On the Approval Date, the Vendor shall execute (where required) or deliver the
following, all of which shall be in form and substance satisfactory to the
Purchaser, (acting reasonably) to be held in escrow by the Vendor in accordance
with the Escrow Agreement:
(a) a certificate executed by the Vendor certifying that the
representations and warranties of the Vendor herein given are true and
correct at the Time of Closing;
(b) the letter from the Parent specified in Section 5.02(b), and
(c) written letters of recommendation from Xxxxx Xxxxxxxxx relating to
each of the following: (i) the application by the Purchaser to Wonka
for a distribution agreement under which Wonka would grant to the
Purchaser the exclusive wholesale distribution rights for all Wonka
products in Canada, and (ii) the application by the Purchaser to Pez
for a distribution agreement under which Pez would grant to the
Purchaser the exclusive wholesale distribution rights to for all Pez
products in Canada;
8.03 Approval Date Deliveries by the Purchaser
On the Approval Date, the Purchaser shall execute (where required) and/or
deliver to the Vendor the following all of which shall be in form and substance
satisfactory to the Vendor, (acting reasonably) to be held in escrow by the
Vendor in accordance with the Escrow Agreement:
(a) the Purchase Price;
(b) an Access Agreement in the form annexed hereto as Schedule F;
(c) the indemnity contemplated by Section 12.01;
(d) all documentation, letters of credit and cash collateral
contemplated or required pursuant to Section 5.03(b); and
(e) an acknowledgement from the Purchaser to Congress as contemplated
by Section 9.03.
8.04 Purchase Price to Be Hold in Escrow
The Vendor shall hold the Purchase Price in a segregated, interest bearing trust
account in accordance with the terms of the Escrow Agreement. Any interest
earned on the Purchase Price shall be for the account of the Purchaser.
8.05 Time And Place of Closing.
The completion of the Transactions contemplated by this Agreement to be
completed on the Closing Date will take place at the Time of Closing on the
Closing Date at the offices of Gowling Xxxxxxx Xxxxxxxxx XXX, Xxxxxxx, Xxxxxxx,
or such other place as may be agreed upon by the Parties.
8.06 Closing Deliveries by the Vendor.
At the Time of Closing, the Vendor shall execute (where required) and deliver to
the Purchaser the following all of which shall be in form and substance
satisfactory to the Purchaser, (acting reasonably):
(a) a certificate certifying that the representations and warranties of
the Vendor herein given are true and correct at the Time of Closing;
(b) the Approval and Vesting Order;
(c) all conveyances, assignments and instruments of transfer necessary
to transfer all of the Vendors' right, title and interest in and to the
Purchased Assets in form and substance satisfactory to the Purchaser,
acting reasonably, including a general conveyance, an assignment of the
Intellectual Property, and directions/notices of assignment to the
Company's account debtors designated by the Purchaser in writing;
(d) a certificate jointly executed by a former director of the Company
(without personal liability) to the effect that to the best of that
person's knowledge there are no agreements or rights conferred on the
Parent with respect to the Intellectual Property (or any part thereof);
(e) an election under section 22 of the Income Tax Act (Canada) in
respect of the Accounts Receivable;
(f) all other documents contemplated by this Agreement as may be
reasonably necessary to complete the Transactions; and
(g) a statement of adjustments relating to Sections 3.03 and 3.04.
8.07 Closing Deliveries by the Purchaser.
At the Time of Closing, the Purchaser shall execute (where required) and deliver
to the Vendor the following:
(a) a certificate certifying that the representations and warranties of
the Purchaser herein given are true and correct at the Time of Closing;
(b) an election under section 22 of the Income Tax Act (Canada) in
respect of Accounts Receivable; and
(c) all other documents contemplated by this Agreement as may be
reasonably necessary to complete the Transactions.
8.08 Release of Purchase Price
Subject to Article 10, provided that conditions set out in Sections 5,01, 5.02
and 5.03 have been satisfied in full or effectively waived at or before the
Closing Date, the Vendor shall be entitled to distribute the Purchase Price on
the Closing Date in accordance with the terms of the Approval and Vesting Order.
ARTICLE 9
LEASED PREMISES
9.01 Access to Leased Premises.
The Purchaser shall remove all of the Purchased Assets from the Leased Premises
by no later than the Exit Date. From the Closing Date until the Exit Date, the
Purchaser shall be entitled to access to the Leased Premises for the purpose of
operating the Business and removing the Purchased Assets pursuant to and on the
terms and conditions of this Agreement and the Access Agreement in the form
annexed hereto as Schedule E. The Purchaser covenants and agrees to be
responsible for the costs of the removal of the Purchased Assets, and to repair
any damage caused to the Leased Premises as a result of such removal or its
access or use promptly and at its own expense.
9.02 Completion of Removal of Purchased Assets.
After completion of removal of the Purchased Assets and termination of access to
the Leased Premises, the Purchaser shall, at its own expense, repair any
physical damage or physical injury caused to the Leased Premises as a result of
such removal, access or any use of the Leased Premises restore the Leased
Premises to the condition of cleanliness they were in at the Time of Closing
(which the parties agree will be a broom-swept condition) and remove any debris
resulting from the removal of the Purchased Assets from the Leased Premises, and
otherwise shall comply with all applicable laws or government regulations
pertaining to the property, assets and undertaking of the Business to the extent
required for the purposes of completion of removal and restoration of the Leased
Premises to such condition.
9.03 Indemnity - Congress.
Purchaser hereby indemnifies and saves harmless the Vendor and Congress, and
their respective officers, directors, employees, agents and shareholders, and
agrees to hold each of them harmless from and against any and all losses,
liabilities, damages, costs, expenses and claims of any kind and every kind
whatsoever, including all legal and professional costs, which at any time or
from time to time may be paid, incurred, or asserted against any of them for,
with respect to or as a result of.
(a) any physical damage or physical injury to the Leased Premises
caused by the removal of all or any of the Purchased Assets from the
Leased Premises, or the use of, or the operation of any business or
enterprise from the Leased Premises;
(b) the operation of any business or enterprise from the Leased
Premises; or
(c) any claim which the Landlords may successfully assert in respect of
Leasehold Improvements or Leased Premises which the Purchaser has
removed or damaged.
The Purchaser acknowledges and agrees that Congress may rely on this indemnity
notwithstanding that Congress is not a Party to this Agreement and, at the Time
of Closing, shall deliver to Congress a written acknowledgement to that effect.
9.04 Responsible for Access Charges
Notwithstanding the Actual Approval Date or Closing Date, the Purchaser
acknowledges that it is responsible for all costs and expenses including,
without limitation, rent operating expenses, security, maintenance, insurance
and utility costs, incurred in connection with the Leased Premises from August
1, 2002 to the earlier of (x) the Exit Date, and (y) termination of the access
of the Purchaser by the Purchaser, the Vendor or any bankruptcy trustee of the
Company under the Access Agreement,
ARTICLE 10
TERMINATION AND EXPENSES
10.01 Termination of Agreement by Purchaser.
The Purchaser shall be entitled to terminate this Agreement: (i) if, on the
Closing Date, one or more of the conditions contained in Section 5.01 or 5.02
has not been satisfied or (where applicable) effectively waived, (ii) if the
Approval Date has not occurred on or prior to August 13, 2002 unless such date
is extended in writing by the Parties hereto, or (iii) pursuant to Sections
5.05, 5.06, 5.07, 5.08 or 2.06.
10.02 Termination of Agreement by Vendor.
The Vendor shall be entitled to terminate this Agreement: (i) if, on the Closing
Date, one or more of the conditions to Closing contained in Sections 5.01 or
5.03 has not been satisfied or (where applicable) effectively waived, (ii) if
the Approval Date has not occurred on or prior to August 13, 2002 unless such
date is extended in writing by the Parties hereto, or (iii) pursuant to Sections
5.05, 5.06, 5.07 or 5.08.
10.03 Expenses.
Except as expressly provided elsewhere in this Agreement, all expenses incurred
by or on behalf of the Vendor, on the one hand, or the Purchaser, on the other,
in connection with the negotiation, execution and performance of this Agreement,
including, without limitation, the fees and expenses of counsel, shall be paid
by the Party incurring such expense whether or not the Transactions contemplated
in this Agreement are completed. For greater certainty, the Purchaser shall not
be liable for any expenses relating to or obligations incurred by the Vendor or
the Company, including any legal or other costs related thereto.
ARTICLE 11
INTERIM PERIOD SALES
11.01 Interim Period Sales
Subject to the granting of the Approval and Vesting Order and there being no
stay of the operation of the Approval and Vesting Order, the Parties agree as
follows with respect to the period from and including the Approval Date to the
earlier of the Closing Date and the termination of this Agreement (the "'Interim
Period"):
(a) With respect to Inventory that forms part of the Purchased Assets,
the Vendor shall appoint the Purchaser as the Vendor's sales agent to
sell such Inventory in the ordinary course of business during the
Interim Period for a price no less than cost without the prior written
consent of the Vendor. Such sales shall be made in the name of the
Vendor and all accounts receivables arising therefrom (the "Interim
Period Receivables"') shall be payable to the Vendor and be subject to
the security interest of Congress. The Purchaser shall:
(i) be responsible for providing, at its own cost and expense,
all personnel, equipment and services necessary to conduct and
consummate any such sales of Inventory including, without
limitation, all personnel and equipment required to pick,
package, ship and invoice such Inventory sold and all trucking
or other shipping services required to deliver such Inventory;
(ii) not be entitled to any commission fee, reimbursement of
costs and expenses or any other remuneration in connection
with such sales agency and the sale of such Inventory except
if this Agreement is terminated without completion of the
Transactions, in which case the Purchaser shall be entitled to
receive reimbursement of its costs and expenses incurred as
sales agent of the Vendor as contemplated by this Section
11.01(a) to a maximum amount equal to the difference between
the value at cost of any Inventory sold by the Purchaser as
sales agent and the amount of the Interim Period Receivable
arising from such Inventory actually collected by the Vendor;
provided that such reimbursement shall only be made as and
when the Interim Period Receivables are actually collected;
and
(iii) account to the Vendor in form and detail satisfactory to
the Vendor, acting reasonably, for all sales of Inventory made
in the Purchaser's capacity as such sales agent on such
periodic basis as may be agreed upon between the Parties but
in any event no less frequently than weekly.
If the Transactions are completed on the Closing Date, all Interim Period
Receivables shall form part of the Purchased Assets;
(b) The Vendor shall grant to the Purchaser a limited license to use
the trademarks of the Company described in Schedule C during the
Interim Period only. The license shall be limited to the purchase by
the Purchaser for its own account of new inventory during the Interim
Period in such amounts as may be agreed to from time to time between
the Vendor and the Purchaser for resale in the ordinary course of the
Purchaser's business under such trademarks. No fee, royalty or other
remuneration shall be payable by the Purchaser for such license and the
license shall automatically terminate on the expiry of the Interim
Period. If on the expiry of the Interim Period the Transactions have
not been completed, then notwithstanding the termination of such
license, the Purchaser shall be entitled to sell any new inventory
purchased by it during the Interim Period remaining in its possession
in the ordinary course of its business under such trademarks. Unless
and until the Transactions are completed, the Purchaser shall not hold
itself out as the owner of such trademarks or conduct any advertising
or sales campaigns involving such trademarks.
(c) The Purchaser shall promptly pay all of the costs and expenses
incurred by the Vendor in connection with the arrangements described in
this Article 11 and the Purchaser hereby indemnifies the Vendor and
Congress, and their respective officers, directors, employees, agents
and shareholders, and agrees to hold each of them harmless from and
against any and all losses, liabilities, damages, costs, expenses and
claims of any kind and every kind whatsoever, including all legal and
professional costs, which at any time or from time to time may be paid,
incurred, or asserted against any of them for, with respect to or as a
result of the arrangements described in this Article 11 and any
transactions arising therefrom. The Purchaser acknowledges and agrees
that Congress may rely on this indemnity notwithstanding that Congress
is not a Party to this Agreement and, on the Approval Date, shall
deliver to Congress a written acknowledgement to that effect. For
certain, the costs and expenses incurred by the Vendor contemplated by
this 11.01(c) are in addition to the Employee Costs and not limited by
Section 3.03.
11.02 Sales Agency and Trademarks License Agreement
Notwithstanding anything contained herein, the arrangements described in this
Article 11 shall not be effective unless and until a sales agency and license of
trademark agreement are entered into between the Parties in form and substance
satisfactory to the Parties.
11.03 Use of Purchaser's Employees
During the Interim Period, Purchaser agrees that Vendor may use the services of
employees of the Purchaser to assist the Vendor in the collection of Accounts
Receivable and in connection with the management and supervision of the
Transactions and arrangements between the Parties contemplated in this Agreement
and the consummation of the Transactions, all at no cost or expense to the
Vendor.
ARTICLE 12
GENERAL
12.01 Additional Professional Fees
The Purchaser shall indemnify the Vendor in respect of professional fees and
disbursements (including the fees and disbursements of the Vendor's solicitors)
incurred in connection with objections to the motion to obtain the Approval and
Vesting Order, any Appeal Proceedings and disputes arising in the course of the
interim receivership of the Company or the administration of the bankruptcy of
the Company to a maximum amount of $20,000 to the extent that the Purchase Price
is not sufficient to pay such professional fees and disbursements after the
obligations (including Congress's costs and expenses) owing by the Company to
Congress have been paid and shall provide the Vendor with a signed indemnity on
the Approval Date as provided in Section 8.03.
12.02 Notices.
Any notice, certificate, consent, determination or other communication required
or permitted to be given or made under this Agreement shall be in writing and
shall be effectively given and made if delivered personally, sent by prepaid
courier service or sent prepaid by fax or other similar means of electronic
communication, in each case to the applicable address set out below:
(a) if to the Purchaser, to:
Johnvince Foods Ltd.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx XX X0X0X0
Attention: Xxxxx Talaant
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
Suite 2100, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx X. XxXxxxx
Facsimile: 000-000-0000
(b) if to the Vendor, to:
Xxxxx & Partners Limited
000-0000 Xxx Xxxxx Xxxx
Xxxxx Xxxx XX X0X 0X0
Attention: Xxxxx Xxxxxxxxxx/Xxx Xxxxxxxxxx
Facsimile: (000) 000-0000
With a copies to:
Xxxxxxx Xxxxx LLP
3400 - 0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000 0000
Gowling XxXxxxx Xxxxxxxxx LLP
Suite 4900, Commerce Court West
Toronto ON M5L IJ3
Attention: Xxxxx Xxxx/Xxxxxxx Xxxx
Facsimile: 000-000-0000
Any such communication so given or made shall be deemed to have been given or
made and to have been received on the day of delivery, if delivered, or on the
day of faxing or sending by other means of recorded electronic communication,
provided that such day in either event is a Business Day and the communication
is so delivered, faxed or sent prior to 4:30 p.m. on such day. Otherwise, such
communication shall be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication given or
made in any other manner shall be deemed to have been given or made and to have
been received only upon actual receipt.
Any Party may from time to time change its address unto this Section 12.01 by
notice to the other Party given in the manner provided by this Section.
12.03 Time of Essence.
Time shall be of the essence of this Agreement in all respects.
12.04 Further Assurances.
Each Party shall in good faith, at the reasonable expense of the Party required
to deliver same, promptly do, execute, deliver or cause to be done, executed and
delivered all further acts, documents and things in connection with this
Agreement the other Party may reasonably that require, for the purposes of
giving effect to this Agreement and the Transactions.
12.05 Successors and Assigns.
This Agreement shall enure to the benefit of, and be binding on, the Vendor and
its successors and assigns, and the Purchaser and its successors and permitted
assigns.
12.06 Amendment.
No amendment of this Agreement will be effective unless made in writing and
signed by the Parties.
12.07 Entire Agreement.
This Agreement and the other agreements referred to herein or contemplated by
the Transactions constitute the entire agreement between such parties pertaining
to the subject matter of the Transactions and the same shall supersede all prior
agreements, understandings, negotiations and discussions, whether oral or
written, between the Parties. No Party has relied on any express or implied
representation, written or oral, of any person as an inducement to enter into
this Agreement.
12.08 Waiver.
A waiver of any default, breach or non-compliance under this Agreement is not
effective unless in writing and signed by the Party to be bound by the waiver.
No waiver shall be inferred from or implied by any failure to act or delay in
acting by a Party in respect of any default, breach or non-observance or by
anything done or omitted to be done by the other Party. The waiver by a Party of
any default, breach or non-compliance under this Agreement shall not operate as
a waiver of that Party's rights under this Agreement in respect of any
continuing,-,, or subsequent default, breach or non-observance (whether of the
same or any other nature),
12.09 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to that jurisdictiox4 be ineffective to the extent of
such prohibition or unenforceability and shall be severed from the balance of
this Agreement, all without affecting the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
12.10 Obligations to Survive.
The obligations, representations and warranties of the parties shall survive the
completion of this transaction except as otherwise stated herein.
12.11 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument. Counterparts may be executed
either in original or faxed form and the parties adopt any signatures received
by a receiving fax machine as original signatures of the Parties; provided,
however, that any Party providing its signature in such manner shall promptly
forward to the other Party an original of the signed copy of this Agreement
which was so faxed.
12.12 Governing Low.
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable in that Province and
shall be treated, in all respects, as an Ontario contract.
12.13 Attornment.
Each Party agrees (i) that any action or proceeding relating to this Agreement
shall be brought in any court of competent jurisdiction in the Province of
Ontario, and for that purpose now irrevocably and unconditionally attorns and
submits to the jurisdiction of such Ontario court, (ii) that it irrevocably
waives any right to, and shall not, oppose any such Ontario action or
proceeding, on any jurisdictional basis, including forum non conveniens; and
(iii) not to oppose the enforcement against it in any other jurisdiction of any
judgment or order duly obtained from an Ontario court as contemplated by this
Section 12.13.
12.14 Commissions and Expenses.
Other than the role the Vendor had as consultant to the Company, it is
understood and agreed that no broker, agent or other intermediary acted for the
Vendor or Purchaser in connection with the sale of the Purchased Assets, and
each of the Company, the Vendor and the Purchaser warrants to the others (which
warranty shall survive the Closing) that there are no obligations whatsoever for
any commission or other remuneration payable or alleged to be payable to any
broker, agent or other intermediary who purports to act or to have acted for
such Party for which the Purchaser would be responsible. Regardless of whether
or not the Transactions contemplated hereby are completed, the Parties hereto
shall not be responsible for any of the expenses of the others relating to such
Transactions or this Agreement.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the
date first written above.
XXXXX & PARTNERS LIMITED, solely in its
capacity as the proposed interim receiver of
Triple-C Inc.
By: /s/
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
I/We have authority to bind the Corporation.
JOHNVINCE FOODS LTD.
By: /s/
----------------------------------------
Name: Xxxxx Xxxxxx
Title: CFO
I/We have authority to bind the Corporation.
SCHEDULE A
APPROVAL AND VESTING ORDER
COURT FILE NO.: 02-CL-4623
ONTARIO
SUPERIOR COURT OF JUSTICE
(IN BANKRUPTCY AND INSOLVENCY)
COMMERCIAL LIST
--------------------------------------------------------------------------------
THE HONOURABLE REGIONAL ) THURSDAY, THE 8TH
)
SENIOR JUSTICE BLAIR ) DAY OF AUGUST, 2002.
CONGRESS FINANCIAL CORPORATION (CANADA)
Applicant
- and -
TRIPLE-C INC.
Respondent
APPLICATION pursuant to section 47 of the BANKRUPTCY AND INSOLVENCY ACT, R.S.C.
1985 c. B-3, as amended, (the "BIA").
ORDER
THIS MOTION, made by Congress Financial Corporation (Canada)
("Congress") was heard this day at the Court House, 000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx.
ON READING the Notice of Motion and the Application Record including
the First Report of Xxxxx & Partners Limited (the "Interim Receiver") the
proposed interim receiver of Triple-C Inc., (the "Company"), and on hearing the
submissions of counsel for Congress, the Company and the Interim Receiver, no
one else appearing.
SERVICE
1. THIS COURT ORDERS that the time for service of the Notice of
Application and the Application Record herein be and it, is hereby
abridged, if necessary, and that the Application is properly returnable
today and that further service hereof be and is hereby dispensed with.
APPOINTMENT OF INTERIM RECEIVER
2. THIS COURT ORDERS that the Interim Receiver be and is hereby appointed
interim receiver, without security, of the Company pursuant to section
47 of the BIA.
POWERS OF INTERIM RECEIVER
3. THIS COURT ORDERS that the Interim Receiver is hereby authorized and
empowered, but not obligated:
(a) to take immediate possession of the Company's assets, property
and undertaking (the "Assets") for the purposes herein
described;
(b) take such steps as, in the opinion of the Interim Receiver,
are necessary or appropriate to receive, preserve, protect and
maintain control of the Assets or any part or parts thereof,
including, but not limited to, the changing of locks and
security codes, the relocating of Assets to safeguard them the
engaging of internal or independent security personnel the
taking of physical inventories and the placement of such
insurance coverages as may be necessary or desirable;
(c) take such steps as, in the opinion of the Interim Receiver,
are necessary or appropriate to maintain control over all
receipts and disbursements arising out of or from the Assets,
including, without limiting the generality Of the foregoing,
taking such steps as are necessary or desirable to control
access to and use of all bank accounts of the Company, approve
all cheques or other instruments drawn on such accounts, and
permit payment of only those expenses which, in the opinion of
the Interim Receiver, are necessary for the continued
operation of the business of the Company,
(d) take such steps as in the opinion of the Interim Receiver are
necessary or appropriate to verify the existence and location
of all of the Assets, the terms fall agreements or other
arrangements relating thereto, whether written or oral, the
existence or assertion of any lien, charge, encumbrance or
security interest thereon, and any other matters which in the
opinion of the Interim Receiver may the extent, value,
existence and preservation of the Assets;
(e) to carry on the business of the Company if in the opinion of
the Interim Receiver it is necessary or desirable to do so,
and in furtherance thereof, to enter into any agreements,
incur any obligations in the ordinary course of business, pay
any creditors of the Company, including without limitation any
employees or employee-related costs, if such payment is, in
the discretion of the Interim
Receiver, necessary or desirable for the efficient operation
of the business or the protection, preservation, maintenance
or realization of the Assets, or take any other steps
incidental to these powers if in the opinion of the Interim
Receiver it is necessary or desirable to do so;
(f) to negotiate and enter into agreements in respect of the
Assets, including without limitation, management agreements,
or to amend or terminate existing agreements;
(g) to pay ongoing costs or expenses incurred on and after the
date of this Order which arise out of or in connection with
the day to day operations of the Assets and the business
carried on by the Company, including, without limitation,
ground rents and other rents, utilities, heating, maintenance,
insurance, supplies and similar expenses;
(h) to make such repairs or alterations to the Assets as the
Interim Receiver deems advisable;
(i) to sell inventory comprising the Assets or lease the Assets in
the ordinary course of business without the approval of this
Honourable Court;
(j) to purchase or lease such machinery, equipment, inventories,
supplies, premises, or other assets as may be necessary or
desirable in the opinion of the Interim Receiver to continue
the business of the Company or any part or parts thereof and
or to receive, preserve, protect or realize upon the Assets;
(k) to receive and collect all monies and accounts now owed or
hereafter owing to the Company in respect of the Assets, and
to exercise all remedies of the Company in collecting all such
monies, including, without limitation, to exercise any
security held by the Company;
(l) to join in and execute, assign, issue and endorse such
transfers, conveyances, contracts, leases, deeds, bills of
sale, cheques, bills of lading or exchange, or other documents
of whatever nature in respect of any of the Assets, in the
name and on behalf of the Company, which are necessary,
desirable or convenient in the opinion of the Interim Receiver
for any purpose pursuant to this Order;
(m) to employ employees or former employees of the Company on a
temporary basis if in the opinion of the Interim Receiver it
is necessary or desirable to do so;
(n) take any and all steps necessary at law, or otherwise
available in the opinion of the Interim Receiver, to preserve
all patents, trademarks, technology "know how" or other
intellectual property comprising Assets of the Company in
Canada and elsewhere;
(o) to undertake regulatory, environmental or workers health and
safety assessments of the Assets and operations of the Company
to the extent deemed necessary by the Interim Receiver;
(p) to exercise all rights of a shareholder in respect of any
corporate authority and to vote or otherwise deal with all
securities, warrants or other interests, any options or other
rights to acquire any such securities held by the Company, or
for their benefit.
(q) to bring or defend any action or other legal proceedings, take
any steps, enter into any agreements or incur any obligations
necessary or incidental to the exercise of the aforesaid
powers and performance of its duties hereunder as are
necessary or appropriate in the opinion of the Interim
Receiver;
(r) subject to paragraph 26 hereof, and only if the sale
contemplated therein does not successfully close, to market
any or all Assets, negotiate sales and, subject to the
approval of the Court, on such notice as the Interim Receiver
may deem necessary or desirable or as this Court may otherwise
order, enter into one or more agreements of purchase and sale
of some or all of the Assets with potential purchasers, on
such terms and conditions as the Interim Receiver in its
discretion may determine in respect of the Assets or any part
or parts thereof; the Interim Receiver shall not require the
approval of the Court for the sale of individual Assets of the
Company having a value, in the estimation of the Interim
Receiver. of less than $150,000 and the Interim Receiver is
hereby authorized to execute all documentation necessary to
effect such sales on behalf of the Company. For the purpose of
effecting such sales compliance with Part V of the Personal
Property Security Act (Ontario) be and the same is hereby
dispensed with.
(s) to report to, meet with and discuss with secured and unsecured
creditors of the Company, and their advisors, as the Interim
Receiver deems appropriate, on all matters relating to the
Assets and the Interim Receivership, including, without
limitation, financial information, analysis, offers on such
terms as to confidentiality as the Interim Receiver deems
appropriate;
(t) to apply for any vesting order or orders which may be
necessary or desirable, in the opinion of the Interim
Receiver, in order to convey the Assets or any part, or parts
thereof to a purchaser or purchasers thereof, free and clear
of any liens or encumbrances affecting such Assets and to
settle any liens or encumbrances affecting the Assets;
(u) to register a copy of this Order and any other Orders obtained
by the Interim Receiver in respect of the Assets against title
to any or all property comprised in the Assets;
(v) to enter into arrangements with respect to or settle, extend
or compromise any indebtedness of or owing to the Company;
and,
(w) take any steps, enter into any agreements or incur any
obligations necessary or incidental to the exercise of the
aforesaid powers.
DELIVERY OF ASSETS AND INFORMATION
4. THIS COURT ORDERS that the Company and all of their respective present
and former directors, officers, employees, agents and shareholders, any
other persons acting on their instructions including, without
limitation, the accountants and counsel of the Company, the Company'
insurers, brokers and adjusters and all other persons having notice of
this Order (all of whom are collectively referred to as the "Affected
Persons") do forthwith grant access to and, if necessary in the opinion
of the Interim Receiver to carry out its powers pursuant to this Order,
deliver possession of the Assets of every nature and kind whatsoever,
wheresoever situate, to the Interim Receiver including, without
limitation:
(a) any and all of the books, securities, records, documents,
accounts, deeds, papers, records, minute books, registers and
any and all other information related in any way to the
Assets:
(b) any and all budgets, accounting records, computer records,
computer programs, computer tapes, computer discs, leases and
agreements related in any way to the Assets;
(c) any and all information and documents relating to patents,
trademarks, copyrights and other intellectual Assets or rights
owned, licensed by or to or used by the Company in its
businesses, whether registered in the name of the Company or
otherwise;
(d) any and all data storage media and programs containing any
such information; and
(e) any other records of every kind and nature relating to the
Assets or the businesses carried on by the Company (items (a),
(b), (c), (d) and (e) above being collectively, the
"Information");
(f) all monies, cheques, postdated cheques and remittances of
every king and nature, whenever and howsoever arising in
respect of the Assets and to provide or permit the Interim
Receiver to make, retain and take away copies thereof and
allow the Interim Receiver immediate, continued and
unrestricted access to the Assets and that they must grant to
the Interim Receiver access to and use of accounting,
computer, software and escrow facilities relating thereto
promptly at the request of the Interim Receiver; and
5. THIS COURT ORDERS that all Affected Persons be and they are hereby
restrained and enjoined from disturbing or interfering with the Assets
and the Interim Receiver and with the exercise of the powers and
authority of the Interim Receiver conferred hereunder.
6. THIS COURT ORDERS that if any of the Information is stored or otherwise
contained on a computer or other electronic system of information
storage, and if the Interim Receiver has not otherwise been given
timely access to the Information, the Company and all Affected Persons
shall forthwith give unfettered access to the Interim Receiver for the
purpose of allowing the Interim Receiver to obtain a full copy of the
Information whether by way of printing the Information onto paper or
making copies of computer discs or such other manner of retrieving and
copying. the Information as the Interim Receiver in its discretion
deems expedient. For the purposes of this paragraph, the Company and
all Persons shall provide the Interim Receiver with all such assistance
in gaining access to the Information as the Interim Receiver may in its
discretion require, including, without limiting the generality of the
foregoing, providing the Interim Receiver with instructions on the use
of any computer or other system and providing the Interim Receiver with
any and all access or other codes as may be required to gain access to
the Information.
THE STAY
7. THIS COURT ORDERS that, without limiting the generality of any of the
provisions hereof, no one claiming an interest in the Assets, or any
part or parts thereof shall be at liberty to exercise any rights in
respect of such interest, including without limitation, any right to
possession of such Assets, or any part or parts thereof, except with
the prior written consent of the Interim Receiver or with leave of this
Honourable Court being first had and obtained on at least 7 days'
notice to the Interim Receiver.
8. THIS COURT ORDERS that no demands, legal actions, motions, steps,
registrations, perfections, administrative proceeds, self-help
remedies, or any other acts, proceedings or private remedies whatsoever
in respect of the Assets or the business conducted thereof by the
Company or against the Company or the Interim Receiver, including,
without limitation, the enforcement of security, liens, or collection
of any debt or liability, the exercise of any landlord's right to
distrain or terminate any lone, the acceleration, amendment, or
termination of any contract, including any franchise agreement or any
contract of insurance of the Company or in which the Company are a
named or unnamed insured or from which the Company may derive a
benefit, the exercise of any right of set off or combination of
accounts, the exercise of any right construction, mechanics' repair,
storage, or other lien, or the commencement or continuation of any
proceedings under any environmental regulation or similar statute in
any jurisdiction in which the Assets may be located, shall be taken or
continued against the Company or the Interim Receiver, with respect to
the Assets or any part thereof without the prior written consent of the
Interim Receiver or leave of this Court first being obtained and upon
application after 7 days' notice to the Interim Receiver provided that
any recognized public authority taking action solely to protect
imminent
and material danger to life, health, limb or property, whether pursuant
to Environmental Laws (as hereinafter defined) or otherwise, shall not
be so retrained.
9. THIS COURT ORDERS that, without limiting the generality of any of the
provisions hereof, all persons, including without limitation, all
utilities, landlords, franchisees, suppliers and equipment lessors be
and they are hereby restrained and enjoined from varying, amending,
terminating, canceling or breaching any agreements with the Company
including franchise agreements. In addition, all persons are enjoined
from disturbing or interfering with utility services, including but not
limited to the furnishing of fuel, gas, oil, heat, electricity, garbage
collection (including hazardous waste), water, cable television,
computers, telephones, telecopiers (at former and present telephone
numbers), or any other utilities of like kind, furnished up to the
present date to the Company in respect of any of the Assets. All
persons are hereby restrained and enjoined from terminating,
determining or cancelling any agreements with, or cutting off,
discontinuing or altering any such utilities, or services to the
Company or the Interim Receiver subject to the obligation of the
Company or the Interim Receiver, as the case may be, to pay for such
utilities or services provided to the Company or the Interim Receiver,
as the case may be, subsequent to the occupation, by the Interim
Receiver~ of the premises to which the utilities or services are
supplied, except with the prior written consent of the Interim Receiver
or upon further order of this Honourable Court on at least 7 days'
notice to the Interim Receiver.
10. THIS COURT ORDERS that all persons shall continue to perform and
observe all terms, conditions and provisions contained in any agreement
with the Company in respect of any of the Assets, subject to the
obligation of the Interim Receiver to pay for goods and services
requested by the Interim Receiver to be supplied to the Interim
Receiver, for the period commencing with the date of this Order, and
all persons are restrained from disturbing or otherwise interfering
with the possession, use or occupation, as the case may be, by the
Interim Receiver of any Assets owned or !eased by the Company, subject
to the obligation of the Interim Receiver to pay rent or occupation
rent, as the case may be, for the period commencing with the date of
actual occupatior4 use or possession, as the case may be, of such
Assets by the Interim Receiver, but not arrears, at the date presently
payable by the Company;
ADDITIONAL INTERIM RECEIVER POWERS AND PROTECTIONS
11. THIS COURT ORDERS that when all or part of the Assets are sold or
otherwise dealt with, the Company shall join in and execute all
necessary powers of attorney, conveyances, deeds and documents of
whatsoever nature or form. For such purpose the Interim Receiver is
hereby authorized and empowered to execute such powers of attorney,
agreements, conveyances, deeds. documents or instruments in the name of
and on behalf of the Company. Any such powers of attorney, conveyances,
deeds or documents so executed by the Interim Receiver shall have the
same force and effect as if executed by the Company.
12. THIS COURT ORDERS AND DECLARES that the employment of all employees of
the Company who were employed by the Company at the date hereof are
hereby terminated, and that nothing herein shall cause the Interim
Receiver to be deemed or considered to be a successor employer, sponsor
or payor with respect to the Company or any such employees under the
Canada Labour Code, the Labour Relations Act (Ontario), the Employment
Standards Act (Ontario), the Pension Benefits Act (Ontario), or under
any other provincial or federal legislation, regulation or rule of law
or equity applicable to employees or pensions (collectively "Labour
Laws"), or any collective agreement, other contract or otherwise,
notwithstanding that the Interim Receiver may employ some or all of
such employees in connection with the operation of the Companies
business in whole or in part while efforts are made to restructure or
sell the same.
13. THIS COURT ORDERS that nothing herein contained shall vest in the
Interim Receiver the care, ownership, control, charge, occupation,
possession of management (separately and/or collectively,
"Possession"), or require or obligate the Interim Receiver to occupy,
or to take control, care, charge, possession or manage any of the
Assets which may be environmentally contaminated or a pollutant or a
contaminant or cause or contribute to a spill, discharge, release or
deposit of a substance contrary to any legislation enacted for the
protection or preservation of the environment including, without
limitation, the Canadian Environmental Protection Act, the
Transportation of Dangerous Goods Act, the Environmental Protection
Act, (Ontario), the Emergency Plans Act, (1983) (Ontario), the Ontario
Water Resources Act, the Occupational Health and Safety Act (Ontario)
or the regulations thereunder or any federal or provincial legislation
or rule of law or equity in any jurisdiction affecting the environment
or the transportation of goods (collectively, "Environmental Laws" or
"Environmental Liabilities"). The Interim Receiver shall not be deemed
as a result of this Order to be in Possession of any of the Assets
within the meaning of any Environmental Laws.
14. THIS COURT ORDERS that the interim Receiver shall incur no liability or
obligation as a result of its appointment or the fulfillment of its
duties in carrying out the provisions of this Order, save and except
for any gross negligence or willful misconduct on its part and the
Interim Receiver be and is hereby indemnified out of the Assets from
and against all liabilities arising out of the due and proper
performance of its duties as Interim Receiver pursuant to the terms of
this Order and the Interim Receiver shall have a charge on the Assets
(the "Interim Receiver Charge") for such indemnity in priority as
provided for in paragraph 15 of this Order.
15. THIS COURT ORDERS that the Interim Receiver shall be at liberty to
appoint, employ or retain consultants, agents, employees, experts,
auditors, accountants, managers, solicitors and counsel, including
legal counsel and such other assistants from time to time and on
whatever basis, including on a temporary basis, as it may consider
necessary or desirable for receiving, managing, operating, preserving
or protecting or realizing on the Assets carrying on the business of
the Company, or generally exercising the powers and duties conferred by
this Order. Any expenditure which shall properly be made or incurred by
the Interim Receiver in so doing, including the fees of
the Interim Receiver and the fees and disbursements of its legal
counsel on a complete indemnity basis, shall be allowed to it in
passing its accounts and shall form a first charge on the Assets in
priority to any charge, mortgage, lien, security interest or
encumbrance on or in the Assets (the "Interim Receiver Charge".)
16. THIS COURT ORDERS that, prior to the passing of accounts, the Interim
Receiver shall be at liberty from time to time to apply a reasonable
amount of the monies in its hands against its fees and disbursements,
including reasonable legal fees and disbursements, incurred at the
standard rates and charges for such services rendered either monthly or
at such longer or shorter intervals as the Interim Receiver deems
appropriate, and such amounts shall constitute advances against its
remuneration when fixed from time to time.
17. THIS COURT ORDERS that, without limiting the generality of any of the
provisions hereof, the Interim Receiver be empowered, with leave of
this Honourable Court to have any past or present officer, director or
shareholder of the Company, or any employee, accountant, auditor, or
shareholder of the Company, attend to be examined under oath by the
Interim Receiver concerning the Company or any of the Assets.
18. THIS COURT ORDERS that the Interim Receiver be at liberty and it is
hereby empowered to borrow, by way of a revolving credit or otherwise,
such monies from time to time as it may consider necessary or
desirable, provided that the outstanding principal amount does not
exceed $500,000 (or such greater amount as this Court may by further
Order authorize) at any time, at such rate or rates of interest as it
deems advisable for such period or periods of time as it may arrange,
for the purpose of exercising the powers and duties conferred by this
Order, including interim expenditures. The whole of the Assets shall be
charged by way of a fixed and specific charge as security for the
payment of the monies borrowed, together with interest and charges
therefrom in priority to all security interests, trusts, liens,
charges, and encumbrances, but subject to the Interim Receiver Charge.
19. THIS COURT ORDERS that any security granted by the Interim Receiver in
connection with its borrowings under this Order shall not be enforced
without leave of this Court.
20. THIS COURT ORDERS that the interim Receiver is at liberty and
authorized to issue certificates substantially in the form annexed as
Schedule "A" hereto (the "Interim Receiver's Certificate) for any
amount borrowed by it pursuant to this Order.
21. THIS COURT ORDERS that the Interim Receiver be and it is hereby
authorized in its discretion, to borrow on the security of Interim
Receiver's Certificates instead of selling any Interim Receiver's
Certificates, and in connection therewith to execute such
hypothecations or pledges of Interim Receives Certificates containing
such provisions as it shall see fit.
22. THIS COURT ORDERS that the monies from time to time borrowed by the
Interim Receiver pursuant to this Order or any further order of this
Court and any and all Interim Receivers Certificates evidencing the
same or any part thereof shall rank on a pari passu basis.
23. THIS COURT ORDERS that the Interim Receiver be and it is hereby
authorized and empowered, for the purpose of exercising its power and
duties under this Order to apply for any permits, licenses, approvals
or permissions as may be required by any governmental or regulatory
authority, and to participate in any administrative hearings or
arbitrations with respect thereto.
24. THIS COURT ORDERS that die Interim Receiver be at liberty and is hereby
authorized and empowered from time to time to apply to this Court for
advice and directions in the discharge of its power and duties
hereunder.
25. THIS COURT ORDERS that any interested party affected by the terms of
this order and who did not receive notice of this motion, may apply to
this Court to vary or rescind this order or seek other relief on 7 days
notice to the Interim Receiver and the Bank.
SALE APPROVAL
26. THIS COURT ORDERS that the asset purchase agreement between Johnvince
Foods Inc.("Purchaser"') and the Interim Receiver dated July 31, 2002
(the "Asset Purchase Agreement") and the transactions contemplated
therein (the "Transactions"), pursuant to which the Purchaser has
agreed to purchase the assets specified in the Asset Purchase Agreement
(the Purchased Assets"), be and is hereby approved and the Interim
Receiver is authorized and directed to complete the Transactions in
accordance with the Asset Purchase Agreement The Interim Receiver is
hereby directed to and is hereby deemed to adopt the Asset Purchase
Agreement.
27. THIS COURT ORDERS that the Interim Receiver be and it is hereby
authorized, empowered and directed to, nunc pro tunc, execute and
deliver the Asset Purchase Agreement to the Purchaser and is further
authorized, empowered and directed to implement and complete the
Transaction in accordance with the terms and conditions of the Asset
Purchase Agreement with such alterations, amendments, deletions and
additions as the parties thereto may agree to, and to perform the
obligations contained in the Asset Purchase Agreement including,
without limitation, executing and delivering the Access Agreement
attached as Schedule E to the Asset Purchase Agreement (the "Access
Agreement") and the Sales Agency and Trademarks License Agreement
referenced in Section 11.02 of the Asset Purchase Agreement (the "Sales
Agency and Trademarks Licensing Agreement").
28. THIS COURT ORDERS that the Access Agreement shall be effective as of
the date of this Order.
29. THIS COURT ORDERS that the receivables resulting from sales of Trade
Goods Inventory, as defined in the Asset Purchase Agreement undertaken
pursuant to the Sales Agency and Trademarks Licensing Agreement be and
are hereby deemed to be subject to the security interest granted by the
Company to Congress.
30. THIS COURT ORDERS that in completing the Transaction, subject to the
terms and conditions of the Asset Purchase Agreement, the Interim
Receiver be and it is hereby authorized:
(a) to execute and deliver such additional related and ancillary
documents and assurances governing or giving effect to the
Transaction as the Interim Receiver, in its discretion, may
deem to be reasonably necessary or advisable to conclude the
Transactions, including the execution of such powers of
attorney, conveyances, deeds and documents in the name and on
behalf of any of the Company, as may be contemplated in the
Asset Purchase Agreement, and any such powers of attorney,
conveyances, deeds or documents so executed by the Interim
Receiver shall have the same force and effect as if executed
by any of the Company, and all such documents are hereby
ratified, approved and confirmed, and
(b) to take such steps as are, in the opinion of the Interim
Receiver, necessary or incidental to the performance of its
obligations pursuant to the Asset Purchase Agreement.
31. THIS COURT ORDERS and declares that the purchase price set out in the
Asset Purchase Agreement is fair and commercially reasonable and was
arrived at in a commercially reasonable manner.
32. THIS COURT ORDERS and declares that the Bulk Sales Act, R.S.O. 1990,
c.B.14 and any similar legislation in any other jurisdiction in which
the Purchased Assets may be situate does not apply to the transactions
contemplated by the Asset Purchase Agreement,
VESTING
33. THIS COURT ORDERS that, effective immediately upon the filing with this
Honourable Court of a certificate (the "Certificate") by the Interim
Receiver confirming that all terms and conditions under the Asset
Purchase Agreement have been either satisfied or waived, all right,
title and interest of all persons, parties or entities including,
without limitation, Congress, the Company and the Interim Receiver in
and to the Purchased Assets shall vest and are hereby vested in and to
Johnvince Foods Processing Inc. ("JFP"), absolutely and forever, free
and clew of and from any and all estate, right, title, interest claims,
hypothecs, mortgages, charges, liens (whether contractual, statutory or
otherwise), security interests, assignments, actions, levies, taxes,
writs of execution, trusts or deemed trusts (whether contractual,
statutory or otherwise), options, agreements, disputes, debts,
encumbrances or other rights,
limitations or restrictions or any nature whatsoever, including without
limitation, any rights or interests of any creditors of the Company,
whether or not they have attached or been perfected registered or
filed, whether secured or unsecured or otherwise, whether liquidated,
unliquidated or contingent (collectively, the "Claims"), by or of all
persons or entities of any kind whatsoever including, without
limitation, Congress, the Company, the Interim Receiver (in whatsoever
capacity), any corporation affiliated with the Company, all
individuals, firms, corporations, partnerships, joint ventures, trust,
unincorporated organizations, governmental and administrative bodies,
agencies, authorities or tribunals and all other natural persons or
corporations, whether acting in their capacity as principals or as
agents, trustees, executors, administrators or other legal
representatives (collectively, the "Claimants"), including for greater
certainty and without limiting the generality of the foregoing the
Claims held by or in favour of the entities or their solicitors served
with the Late Notice of Application relating to this Order. The Interim
Receiver shall file the Certificate with the Court immediately upon
receipt of the Purchase Price on Closing as those terms are defined in
the Purchase Agreement.
34. THIS COURT ORDERS that the proceeds of sale stemming from the Asset
Purchase Agreement after deducting the remuneration. expenses and
disbursements of the Interim Receiver incurred with respect to the sale
of the Purchased Assets (the "Sale Proceeds") which amount may be
deducted by and paid by the Interim Receiver, shall stand in the place
and stead of the Purchased Assets, without prejudice to any Claims
being advanced against the Sale Proceeds as could have been advanced
against the Purchased Assets and that any such Claims against the Sale
Proceeds shall be subject to the same priorities as could have been
claimed against the Purchased Assets as if the sale of the Purchased
Assets had not occurred.
35. THIS COURT ORDERS that, notwithstanding any of the foregoing, all
inventory sold and delivered prior to the date of this Order by
Continental Candy Industries B.V. ("Continental") to Triple-C (the
"Continental Inventory") and which is being transferred to the
Purchaser under the Asset Purchase Agreement, will vest in the JFP
subject only to right of Continental to seek to establish by way of a
final and binding Order obtained on reasonable notice to the Purchaser
that it had a secured claim thereto immediately prior to the making of
this Order ("Continental Secured Claim"). but the Continental Inventory
will otherwise vest in the JFP free and clear of all Claims of any
person, party or entity of any nature whatsoever as provided in this
order. In the event that Continental establishes that it has a
Continental Secured Claim to the Continental Inventory, the title
acquired by the JFP to the Continental Inventory will be subject to
such Continental Secured Claim only to the extent that such Continental
Secured Claim ranked in priority to the secured Claim of Congress to
the Continental Inventory immediately prior to the making of this
order. Apart from such prior ranking secured claim to the Continental
Inventory if so established, Continental shall have no other claim
against the Purchaser, JFP or the Continental Inventory or the other
Purchased Assets in respect of any matter pertaining to the Continental
Inventory the Purchased Assets, or the Company or its affairs.
36. THIS COURT ORDERS that the Interim Receiver shall forthwith deliver a
copy of this Order to each party served with the Application Record.
DISTRIBUTION
37. THIS COURT ORDERS that the Interim Receiver be and the same as hereby
authorized to distribute from the Sale Proceeds to Congress an amount
equal to the obligation owing by the Company to Congress (inclusive of
costs and expenses), forthwith upon the closing of the Transaction to
be applied as against die indebtedness owed by the Company to Congress.
38. THIS COURT ORDERS that nothing herein shall prejudice or affect the
ability of Continental to raise or assert any claim based on the
doctrine of marshalling with respect to any surplus Sale Proceeds
remaining after the obligation owing by the Company to Congress
(inclusive of costs and expenses) have been paid in full on the same
terms and to the same extent as it could have raised or asserted such
claim immediately prior to the making of this Order.
39. THIS COURT ORDERS that forthwith after making the distribution to
Congress referred to above, the Interim Receiver shall deliver the
notice required by Rule 79 of the Bankruptcy and Insolvency Act Rules
and unless a Motion is brought opposing the Interim Receiver's accounts
or the discharge of the Interim Receiver, the Interim Receivers'
accounts shall be deemed to be taxed and the Interim Receiver sham be
discharged thirty (30) days after the sending of such notice.
MISCELLANEOUS
40. THIS COURT ORDERS that, without limiting the generality or any of the
provisions hereof, the Interim Receiver be at liberty and is hereby
authorized and empowered to apply, upon such notice as it may consider
necessary, for an order recognizing the appointment of the Interim
Receiver by this Court and confirming the powers of the Interim
Receiver in such other jurisdiction or jurisdictions or to take such
steps, actions or proceedings as may be necessary or desirable for the
receipt, preservation, protection and maintenance of the Assets, and
all Court of all other jurisdictions are hereby respectfully requested
to make such orders and provide such other aid and assistance to the
Interim Receiver as an officer of this Court, as they may deem
necessary or appropriate in furtherance of this Order.
41. THIS COURT ORDERS that the Congress shall have its costs of this
application up to and including entry and service of this Order, on a
complete indemnity basis, paid by the Interim Receiver as a
disbursement of the interim receivership.
/s/
----------------------------------------
ENTERED ATANSCRIT A TORONTO
ON/BOOK NO.:
LE/DANS LE REGISTRE NO.:
August 08, 2002
PER/PAR: /s/
----------------
--------------------------------------------------------------------------------
Court File No.: 02-CL-4623
CONGRESS FINANCIAL TRIPLE-C INC.
CORPORATION
-Applicant- -Respondent-
--------------------------------------------------------------------------------
|
| ONTARIO
| SUPERIOR COURT OF JUSTICE
| COMMERCIAL LIST
|
| (PROCEEDING COMMENCED AT TORONTO)
|
-----------------------------------------
-----------------------------------------
ORDER
-----------------------------------------
GOWLING, LAFLEUR, XXXXXXXXX LLP
Barristers and Solicitors
0000 Xxxxxxxx Xxxxx Xxxx
P.O. Box 438
TORONTO, Ontario
M5L 1J3
Xxxxxxx Xxxx
LSUC No.: 39655K
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SOLICITORS FOR THE _______________
--------------------------------------------------------------------------------
SCHEDULE B
ENCUMBRANCES
------------------------------- ------------------------------ -----------------
Secured Party Collateral Description File No.
------------------------------- ------------------------------ -----------------
National Leasing Group Inc. Inventory, Equipment 845710956
------------------------------- ------------------------------ -----------------
Newcourt Financial Ltd. Equipment, Accounts, Other 852144561
Motor Vehicle Incl
------------------------------- ------------------------------ -----------------
Congress Financial Inventory, Equipment, 855451179
Corporation(Canada) Accounts, Other, Motor
Vehicle Incl.
------------------------------- ------------------------------ -----------------
Continental Candy Inventory 086736771
Industries B.V.
------------------------------- ------------------------------ -----------------
SCHEDULE C
INTELLECTUAL PROPERTY
SCHEDULE (2):
INTELLECTUAL PROPERTY IN THE NAME OF TRIPLE-C
The intellectual property includes, but is not limited to, the following:
TRADEMARKS RENEWAL DUE
XXXXXXX XXXXX 15 2013
BEER BOTTLES APRIL 08 2009
BELLY BUTTONS MAY 03 2001
BOUTEILLES COLA DECEMBER 17 2011
CANDY ON THE MOVE & DESIGN MAY 28 2008
CHILD BOY'S HEAD DESIGN MAY 06 2003
CHILD BOY'S FACE FANCIFUL DESIGN JUNE 01 2014
CHOCOLATE ON THE MOVE & DESIGN MAY 28 2008
COLA BOTTLES MAY 06 2003
DOG BONES` FEBRUARY 12 2003
FINS AND SCALES DECEMBER 11 2002
FLOSSED TEETH JULY 23 2003
FROGS MAY 19 2010
GRENQUILLES JUNE 30 2010
GUMMY GUY & HEAD DESIGN OCTOBER 26 2015
GUMMY GUY OCTOBER 23 2002
INITIAL MARCH 29 2006
IT'S A BOY JUNE 03 2009
IT'S A GIRL JUNE 24 2009
LES GRIMACIERS SUR ORIGINAUX MAY 19 2010
LOONIES SEPTEMBER 14 2005
MILLENNIUM COINS JULY 31 2001
PEANUT SMAKS FEBRUARY 07 2007
PUCKERPOWER SEPTEMBER 21 2005
QUENCHERS JANUARY 28 2009
SANTA'S OWN & DESIGN MARCH 26 2008
SANTA'S OWN OCTOBER 09 2007
SCREAMING SIRENS MARCH 31 2009
SIMON SUR OCTOBER 20 2010
SOUR FACE PULLERS RENEWED
SOUR PUSS DECEMBER 22 2004
SOUR SIMON & HEAD DESIGN OCTOBER 25 2015
SOUR SIMON JUNE 01 2014
SOUR SOOTHERS APRIL 11 2015
SOUR STRAWS JULY 27 2014
SOUR SUBS FEBRUARY 12 2003
SOUR TONGUES RENEWED
SUJETS SURS AUGUST 25 2010
SUMMER BERRIES RENEWED
SUPER FROGS DECEMBER 22 2010
SURFIN SNAKES DECEMBER 18 2002
TC & DESIGN RENEWED
TETINES SURS DECEMBER 01 2010
THE ORIGINAL SOUR FACE PULLER MARCH 25 2003
TIGER TAILS DECEMBER 18 2002
TOONIES MAY 17 2011
TWONIES MAY 17 2011
WINDSOR SEPTEMBER 22 2010
WORLD CLASS CANDY MAY 12 2010
WOW THAT'S SOUR FEBRUARY 25 2009
YUKKIES OCTOBER 20 2004
SCHEDULE (2) cont'd.
CANADIAN-ACTIVE-PENDING MARKS IN THE NAME OF TRIPLE-C
TRADEMARKS
AFFECTIONS
KIDSTUFF SEARCHED
KIDZ KORNER & DESIGN
MAD MONEY
U.S. ACTIVE-PENDING MARKS IN THE NAME OF TRIPLE-C
TRADEMARKS
CASINO CHIPS
KIDZ KORNER (STYLIZED)
KIDZ KORNER & DESIGN
GUMMY GUY & DESIGN
MILLENNIUM COINS
WINDSOR
ALL RIGHTS OF THE COMPANY IN "TRIPLE-C" AND ANY VARIATIONS THEREOF AND ANY
DOMAIN NAME (IF ANY)
SCHEDULE D
LEASES
Lease Landlord Premises
DRC Holdings Inc. 0 Xxxxxxx Xxxx Xxxxxxxx, Xxxxxxx
SCHEDULE E
ACCESS AGREEMENT
BETWEEN:
XXXXX & PARTNERS LIMITED [* interim
receiver of Triple-C Inc./trustee of the estate
of Triple-C Inc., a bankrupt]
(the "Xxxxx")
- and -
JOHNVINCE FOODS LTD., a corporation
incorporated under the laws of Ontario
(the "Purchaser")
RECITALS:
1. Pursuant to an Order Of the Ontario Superior Court of Justice (the
"Appointment Order") the Interim Receiver was appointed as interim
receiver of Triple-C Inc. (the "Company") pursuant to section 47 of the
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended. In
accordance with the terms of the Appointment order, Xxxxx is currently
in occupation of the premises located at 0 Xxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx (the "Premises");
2. In its capacity as interim receiver, Xxxxx has sold to the Purchaser
its right, title and interest, if any, in and to certain assets of the
Company located on the Premises;
3. The Purchaser wishes to obtain access to the Premises for the purpose
of conducting the business previously conducted by the Company from the
Premises for a period not to extend beyond October 28, 2002 and the
purpose of removing the Purchased Assets described in the Agreement of
Purchase and Sale among the Interim Receiver and the Purchaser dated
July 31, 2002, (the "Purchase Agreement") from the August 1, 2002 until
no later than 5:00 p.m. on October 28, 2002 (the "Access Period").
4. The Purchaser has indemnified the Interim Receiver in accordance with
the terms of the Purchase Agreement.
IN RETURN for allowing the Purchaser to access the Premises and for
other valuable consideration (the receipt and sufficiency of which is
acknowledged by the Interim Receiver and Purchaser) the parties agree:
1. Access
Subject to the terms of this Agreement and the Purchase Agreement Xxxxx
grants to the Purchaser an exclusive right subject only to the rights of Xxxxx
to access the Premises subject to the control and supervision of Xxxxx during
the Access Period, subject to earlier termination thereof under Article 6 of
this Agreement.
Xxxxx agrees to provide the Purchaser with access to the Premises and
provide such supervision as considered necessary.
Nothing in this Agreement shall be construed to make the relationship
between Xxxxx and Purchaser one of landlord and tenant, joint ventures, partners
or anything other than Interim Receiver and Purchaser.
2. Indemnity
Purchaser hereby indemnifies and saves harmless Xxxxx, together with
its officers, directors, employees, agents and shareholders, and agrees to hold
Xxxxx harmless from and against any and all losses, liabilities, damages, costs,
expenses and claims of any kind and every kind whatsoever, including all legal
and professional costs, which at any time or from time to time may be paid,
incurred, or asserted against any of them for, with respect to or as a result
of:
(a) any physical damage or physical injury to the Leased Premises
caused by the said use of the Premises or the removal of all
or any of the Purchased Assets from the Leased Premises or the
operation of any business or enterprise from the Leased
Premises;
(b) the operation of any other business or enterprise from the
Leased Premises; or
(c) any claim which the Landlords may successfully assert in
respect of Leasehold Improvements or Leased Premises which the
Purchaser has removed or damaged.
3. Access Charges
The Purchaser shall be responsible for all costs and expenses
including, without limitation, rent, operating expenses, security, maintenance,
insurance and utility costs, incurred by Xxxxx in connection with the Premises
and indemnifies and saves harmless the Interim Receiver from and against any
such costs (the "Access Charges").
4. Release
The Purchaser on its behalf and on behalf of its employees, agents,
servants and representatives, does hereby release and forever discharge Xxxxx
its employees, agents, servants and representatives from all claims, actions,
causes of action, losses, liabilities, debts,
demands, costs, and expenses whatsoever ("Claims"), which the Purchaser or its
employees, agents servants, representatives and invitees may hereafter have
against Xxxxx , its employees, agents, servants, representatives and invitees,
caused by, in connection with, or arising from its access to the Premises,
including without limitation, all of the acts and omissions of the Purchaser,
its employees, agents, servants and invitees.
5. Insurance
The Trustee shall, at the Purchaser's cost, arrange insurance for public
liability, property, fire and extended Perils with respect to the Premises. The
Purchaser will be responsible for insuring the Purchased Assets.
6. Removal of Purchased Assets
The Purchaser covenants and agrees that it will use reasonable care in removing
the Purchased Assets so as not to cause damage to or destroy the Premises. The
Purchaser shall comply with the provisions of Article 9 of the Purchase
Agreement with respect to the removal of the Purchased Assets from the Premises
during the Access Period.
7. Termination
The right to access the Premises under this Agreement may be terminated by Xxxxx
at any time without recourse by the Purchaser forthwith in the event of an Event
of Default (as hereinafter defined) occurs under this Agreement. Should Xxxxx
terminate under this provision, the Interim Receiver shall, acting reasonably,
consult with the Purchaser and make arrangements for the removal of the
Purchased Assets at the sole cost of the Purchaser. The Purchaser may surrender
the Premises and terminate this Agreement (apart from its accrued and
unsatisfied indemnity obligations under section 2) by 4 business days notice to
Xxxxx in writing.
8. No Assignment
This Agreement is personal to the Purchaser or its nominee/designate as
contemplated by Section 11.14 of the Purchase Agreement and cannot be assigned
without the written consent of Xxxxx, which consent may be arbitrarily withheld.
9. Default
If the Purchaser fails to comply with any provision under this Agreement
including payment of the Access Charges set out in Article 2 of this Agreement,
Xxxxx shall provide the Purchaser with written notice of the breach If the
breach is not remedied within twenty-four (24) hours an event of default shall
have been deemed to have occurred (an "Event of Default").
10. No Registration
The Purchaser agrees that this Agreement and any notice of it cannot be
registered against the title to the Premises.
11. Entire Agreement
Save and except for the Purchase Agreement, this Agreement is the entire
agreement between the parties and supersedes all prior negotiations and
discussions on those matters. There are no warranties. representations or
covenants except as set forth in this Agreement. No modification of this
Agreement is binding unless it is in writing and signed by each of Xxxxx and
Purchaser.
12. Notices
Any notice, certificate, consent, determination or other communication required
or permitted to be given or made under this Agreement shall be in writing and
shall be effectively given and made if delivered personally, sent by prepaid
courier service or sent prepaid by fax or other similar means of electronic
communication, in each case to the applicable address set out below:
(a) if to the Purchaser, to:
Johnvince Foods Ltd.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx XX X0X0X0
Attention: Xxxxx Talaant
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
Suite 2100, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx X. XxXxxxx
Facsimile: 000-000-0000
(b) if to Xxxxx, to:
Xxxxx & Partners Limited
000-0000 Xxx Xxxxx Xxxx
Xxxxx Xxxx XX X0X 0X0
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxxxxx/Xxx Xxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx LLP
3400 - 0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX, X0X 0X0
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000 0000
Any such communication so given or made shall be deemed to have been given or
made and to have been received on the day of delivery, if delivered, or on the
day of faxing or sending by other means of recorded electronic communication,
provided that such day in either event is a Business Day and the communication
is so delivered, delivered or sent prior to 4:30 p.m. on such day. Otherwise,
such communication shall be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication given or
made in any other manner shall be deemed to have been given or made and to have
been received only upon actual receipt.
Any Party may from time to time change its address by notice to the other Party
given in the manner provided by this Section.
13. Enurement
This Agreement binds and benefits the parties and their respective successors
and assigns.
14. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument. Counterparts may be executed
either in original or faxed form and the parties adopt any signatures received
by a receiving fax machine as original signatures of the Parties; provided
however, that any Party providing its signature in such manner shall promptly
forward to the other Party an original of the signed copy of this Agreement
which was so faxed.
THIS AGREEMENT effective the _______ day of _________________, 2002.
XXXXX & PARTNERS LIMITED [* interim
receiver of Triple-C Inc./trustee of the estate
of Triple-C Inc., a bankrupt]
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
I/We have authority to bind the Corporation.
JOHNVINCE FOODS LTD.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
I/We have authority to bind the Corporation.
SCHEDULE F
THRESHOLD CALCULATION
TRADE ACCOUNTS RECEIVABLE
Gross as at July 26, 2002 $*
plus $*
July 26 posted credit notes owed to ITWAL $*
plus $*
credit notes owed to ITWAL since July 26 $*
minus $*
collections since July 26 $*
-------
Adjusted Gross AR's $*
minus
over 90 day AR's $*
minus $*
allowance for bad debts $80,000
minus
damage claims/credits and returns not booked $85,000
minus
co-op or other programs owed $*
minus $*
other set-offs $*
-------
Eligible AR's $*
75% collection rate on Eligible AR's $*
plus
July 26 Posted credit notes owed to ITWAL $*
plus $*
credit notes owed to ITWAL since July 26 $*
minus
accrued volume rebates payable $*
Net Trade Accounts Receivable $*
TRADE GOODS INVENTORY
Gross Trade Goods Inventory(53% realization rate) $*
Net Trade Goods Inventory $*
-------
THRESHOLD CALCULATION $*
-------
