Ontario · Proposal
First Report of FTI Consulting Canada Inc., as Court Appointed Receiver
Court officer report · 30 October 2023
A plain-language read of this filing opens with a subscription.
What we verified from this filing3 verified
- secured creditorsnote: Aggregate outstanding indebtedness as of Oct 3, 2023, excluding professional fees, disbursements and accruing interest. Bennett Jones confirmed FCC Security is valid and enforceable against Non-Trade Personal Property of Whyte's and Gourmet (Ontario and Quebec) and Saroli (Ontario). Under the Intercreditor Agreement, FCC is first-ranking re Non-Trade Personal Property and second-ranking (behind Wells Fargo) re Trade Personal Property. A limited personal guarantee of $1,821,750 (May 20, 2020) was provided by Elizabeth Anna Kawaja, President/CEO of Whyte's (individual guarantor, related party - name for identification only). BDC was originally a fixed-term lender party to the Original Intercreditor Agreement alongside FCC and Wells Fargo but was refinanced and paid out in full by FCC (March 2023) and removed on amendment/restatement of the Intercreditor Agreement (April 19, 2023) - discharged, not a current creditor. · page: 10 · as of: 2023-10-03 · amount: 34695269.77 · debtor: Whyte's Foods Inc./Les Aliments Whyte's Inc., Triak Capital Inc./Capital Triak Inc., Maison Gourmet Inc., Mario Saroli Sales Inc. (the Debtors) · creditor: Farm Credit Canada (FCC) · currency: CAD · security: FCC Credit Agreement (Initial FCC Credit Agreement, FCC ARCA, FCC Forbearance Agreement). Initial FCC Credit Agreement (May 20, 2020) two real property loans, maximum principal $18,217,500 in aggregate; FCC ARCA (April 11, 2023) added two further real property loan facilities, maximum principal $17,300,000; aggregate maximum principal under FCC ARCA $35,517,500 (facility limit, not a balance). FCC Security includes: Mortgage, principal $35,000,000, by Whyte's in favour of FCC dated May 19, 2020, first charge on Wallaceburg Property (Instrument No. CK173090); universal deed of hypothec (movable/immovable) by Whyte's, principal $18,217,500, dated May 14, 2020; universal deed of hypothec (movable/immovable) by Whyte's, principal $16,782,500, dated April 17, 2023; universal deed of hypothec (movable) by Gourmet, principal $35,000,000, dated April 17, 2023; unlimited corporate guarantees from Triak, Gourmet and Saroli (May 20, 2020); Assignment, Postponement and Subordination Agreements from Triak, Paul Kawaja, Care and EJJ; Security Agreements (PPSA/RPMRR registrations) by Whyte's, Gourmet and Saroli; Assignment of rents and leases re Wallaceburg Property. Principally secures Non-Trade Personal Property and the Wallaceburg Facility.
- secured creditorsnote: Principal amount remaining outstanding as of October 3, 2023. · page: 10 · as of: 2023-10-03 · amount: 8109221.6 · debtor: Whyte's Foods Inc./Les Aliments Whyte's Inc., Maison Gourmet Inc. (borrowers); Triak Capital Inc./Capital Triak Inc., Mario Saroli Sales Inc. (guarantors) · creditor: Wells Fargo Capital Finance Corporation Canada · currency: CAD · security: Wells Fargo Credit Facility: Initial Wells Fargo Credit Agreement dated October 14, 2022 - revolving loan facility limit $25,000,000 and term loan, maximum principal amount $1,500,000 (facility limits, not balances); amended by waiver and amendment agreement (Jan 6, 2023), forbearance and second amendment (April 19, 2023), and third amendment and forbearance (Aug 22, 2023). Secured against Trade Personal Property (accounts receivable, cash, deposit accounts, inventory, Operational Financing Purchased Equipment and certain IP assets) via a Canadian guarantee and security agreement dated Oct 14, 2022 (all Co-Borrowers and Guarantors) and a deed of hypothec dated Oct 11, 2022 by Whyte's over the universality of its movable property. First-ranking priority re Trade Personal Property; second-ranking re Non-Trade Personal Property, per Intercreditor Agreement.
- fee scheduleengagements: form: prose · rows: · money: fees: quote: The total legal fees (exclusive of disbursements and general and harmonized sales taxes) billed by Bennett Jones for the aforementioned accounts to October 27, 2023, in connection with its role as counsel to the Receiver, are $109,376.00. · amount: 109376 · approximate: false · period: end: 2023-10-27 · kind: cumulative · quote: billed by Bennett Jones for the aforementioned accounts to October 27, 2023 · approval: state: unstated · averages: rate: 695.92 · quote: Average hourly rate = $695.92 · currency: · invoices: · firm text: Bennett Jones LLP · firm quote: the Receiver's legal counsel, Bennett Jones LLP (" Bennett Jones ") · context quote: together with the Receiver's legal counsel, Bennett Jones LLP (" Bennett Jones "), engaging with THS and its advisors in negotiating and finalizing the THS APA