SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended May 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to _________
Commission File Number
1-6699
INTERNATIONAL MULTIFOODS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 41-0871880
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
33 South 6th Street, Minneapolis, Minnesota 55402
(Address of principal executive offices) (Zip Code)
(612) 340-3300
(Registrant's telephone number, including area code)
(not applicable)
(Former name, former address and former
fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.
Yes X No_____
The number of shares outstanding of the registrant's Common
Stock, par value $.10 per share, as of June 30, 1996 was 17,985,618.
PART I. FINANCIAL INFORMATION
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Consolidated Condensed Statements of Operations
(unaudited)
(in thousands, except per share amounts)
THREE MONTHS ENDED
May 31, May 31,
1996 1995
Net sales $626,073 $634,644
Cost of sales (536,758) (534,716)
Gross profit 89,315 99,928
Delivery and distribution (40,431) (38,469)
Selling, general and administrative (42,298) (49,312)
Unusual items (3,600) -
Operating earnings 2,986 12,147
Interest, net (4,290) (4,879)
Other income (expense), net 222 (246)
Earnings (loss) before income taxes (1,082) 7,022
Income taxes 649 (2,458)
Net earnings (loss) $ (433) $ 4,564
Net earnings (loss) per
share of common stock $ (.02) $ .25
Average shares of common stock outstanding 17,969 17,956
Dividends per share of common stock $ .20 $ .20
See accompanying notes to consolidated condensed financial statements.
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Consolidated Condensed Balance Sheets
(in thousands)
Condensed
from audited
financial
(Unaudited) statements
May 31, Feb. 29,
1996 1996
Assets
Current assets:
Cash and equivalents $ 9,590 $ 7,508
Trade accounts receivable, net 156,751 165,527
Inventories 252,275 230,626
Other current assets 53,428 55,374
Total current assets 472,044 459,035
Property, plant and equipment, net 224,396 226,498
Goodwill, net 99,321 99,999
Other assets 36,939 36,725
Total assets $832,700 $822,257
Liabilities and Shareholders' Equity
Current liabilities:
Notes payable $ 56,283 $ 28,541
Current portion of long-term debt 2,500 11,000
Accounts payable 171,078 170,884
Other current liabilities 55,476 61,870
Total current liabilities 285,337 272,295
Long-term debt 203,094 202,937
Employee benefits and other liabilities 48,513 47,462
Total liabilities 536,944 522,694
Shareholders' equity:
Common stock 2,184 2,184
Other shareholders' equity 293,572 297,379
Total shareholders' equity 295,756 299,563
Commitments and contingencies
Total liabilities and
shareholders' equity $832,700 $822,257
See accompanying notes to consolidated condensed financial statements.
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Consolidated Condensed Statements of Cash Flows
(unaudited)
(in thousands)
THREE MONTHS ENDED
May 31, May 31,
1996 1995
Cash flows from operations:
Net earnings (loss) $ (433) $ 4,564
Adjustments to reconcile net earnings (loss)
to cash used for operations:
Depreciation and amortization 7,476 7,582
Deferred income tax expense (benefit) (975) 547
Provision for losses on receivables 767 2,601
Provision for unusual charges 3,600 -
Changes in operating assets and liabilities,
net of business acquisitions:
Accounts receivable 8,373 14,187
Inventories (21,612) 7,796
Other current assets 2,780 (10,818)
Accounts payable 37 (25,413)
Other current liabilities (10,097) (7,559)
Other, net 515 269
Cash used for operations (9,569) (6,244)
Cash flows from investing activities:
Business acquisition - (5,275)
Capital expenditures (4,141) (5,370)
Proceeds from property disposals 58 675
Cash used for investing activities (4,083) (9,970)
Cash flows from financing activities:
Net increase in notes payable 27,733 12,197
Net increase (decrease) in long-term debt (8,500) 5,862
Dividends paid (3,571) (3,695)
Proceeds from issuance of common stock - 428
Purchase of treasury shares (16) (1,118)
Other, net (102) (45)
Cash provided by
financing activities 15,544 13,629
Effect of exchange rate changes on cash
and equivalents 190 7
Net increase (decrease)in cash and equivalents 2,082 (2,578)
Cash and equivalents at beginning of period 7,508 10,792
Cash and equivalents at end of period $ 9,590 $ 8,214
See accompanying notes to consolidated condensed financial statements.
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Notes to Consolidated Condensed Financial Statements
(unaudited)
(1) In the opinion of the Company, the accompanying unaudited consolidated
condensed financial statements contain all adjustments (consisting of only
normal recurring adjustments, except as noted elsewhere in the notes to the
consolidated condensed financial statements) necessary to present fairly
its financial position as of May 31, 1996 and the results of its operations
and cash flows for the three months ended May 31, 1996 and 1995. These
statements are condensed and therefore do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. The statements should be
read in conjunction with the consolidated financial statements and
footnotes included in the Company's Annual Report on Form 10-K for the year
ended February 29, 1996. The results of operations for the three months
ended May 31, 1996 are not necessarily indicative of the results to be
expected for the full year. Certain prior year amounts have been
reclassified to conform with the current year presentation.
In October 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" (SFAS 123). SFAS 123, which was adopted by the Company on
March 1, 1996, establishes financial accounting and reporting standards for
stock-based employee compensation plans. SFAS 123 allows companies to
either continue the current method of accounting for stock-based
compensation, or to switch to a fair-value based method. The Company
elected to continue using the current accounting method, and therefore will
be required to present pro forma disclosures of net income and earnings per
share as if the fair-value based method had been applied.
(2) Cost of sales - To more closely match costs with related revenues, the
Company classifies the inflation element inherent in interest rates on
Venezuelan local currency borrowings and the foreign exchange gains and
losses, which occur on such borrowings, as a component of cost of sales.
Accordingly, cost of sales was increased by $0.3 million and $1.1 million
for the three months ended May 31, 1996 and 1995, respectively.
(3) Unusual items - During the quarter ended May 31, 1996, the Company
recognized unusual items that resulted in a pre-tax charge of $3.6 million,
$2.2 million after tax ($0.12 per share). The unusual items included $2.2
million for severance and other costs resulting from the resignation of the
Company's Chief Executive Officer, Anthony Luiso, and $1.4 million
primarily for the cost of business assessment studies.
(4) Interest, net consisted of the following (in thousands):
Three Months Ended
May 31, May 31,
1996 1995
Interest expense $4,389 $5,301
Capitalized interest (9) (44)
Non-operating interest income (90) (378)
Interest, net $4,290 $4,879
Cash payments for interest, net of amounts capitalized, for the three
months ended May 31, 1996 and 1995 were approximately $6.7 million and $5.4
million, respectively.
(5) Income taxes - Cash payments for income taxes for the three months
ended May 31, 1996 and 1995 were $3.9 million and $1.9 million,
respectively.
(6) Supplemental balance sheet information (in thousands)
May 31, Feb. 29,
1996 1996
Trade accounts receivable, net:
Trade $166,676 $179,504
Allowance for doubtful accounts (9,925) (13,977)
Total trade accounts receivable, net $156,751 $165,527
Inventories:
Raw materials, excluding grain $ 19,110 $ 17,529
Grain 57,092 46,331
Finished and in-process goods 168,044 159,077
Packages and supplies 8,029 7,689
Total inventories $252,275 $230,626
Property, plant and equipment, net:
Land $ 12,048 $ 12,045
Buildings and improvements 89,925 90,001
Machinery and equipment 221,600 217,567
Transportation equipment 8,952 9,188
Improvements in progress 10,614 13,157
343,139 341,958
Accumulated depreciation (118,743) (115,460)
Total property, plant and equipment, net $224,396 $226,498
(7) Segment information - The Company's business segments are as follows:
Foodservice Distribution consists of U.S. vending distribution and limited-
menu distribution and food exporting business; Bakery consists of U.S. and
Canadian bakery products and consumer products in Canada, which includes
primarily home baking products and condiments; Venezuela Foods consists of
bakery products, consumer products for home baking and agricultural
products; Divested Businesses consists of the surimi seafood business which
was divested in fiscal 1996.
Net Operating Unusual Operating
(in millions) Sales Costs Items Earnings
Three Months Ended May 31, 1996
Foodservice Distribution $443.3 $(438.2) $ - $ 5.1
Bakery 111.6 (109.5) - 2.1
Venezuela Foods 71.2 (69.1) - 2.1
Corporate Expenses - (2.7) (3.6) (6.3)
Total $626.1 $(619.5) $(3.6) $ 3.0
Three Months Ended May 31, 1995
Foodservice Distribution $416.4 $(410.8) $ - $ 5.6
Bakery 108.0 (106.4) - 1.6
Venezuela Foods 96.7 (90.2) - 6.5
Divested Businesses 13.5 (11.9) - 1.6
Corporate Expenses - (3.2) - (3.2)
Total $634.6 $(622.5) $ - $12.1
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Management's Discussion and Analysis of Results of
Operations and Financial Condition
(Unaudited)
Results of Operations:
For the first quarter ended May 31, 1996 compared with the corresponding
prior period
Overview
Consolidated fiscal 1997 first quarter net sales declined 1% to $626.1
million, compared with $634.6 million a year ago. Continuing businesses
net sales increased slightly from last year. Fiscal 1996 results included
the Company's surimi seafood business, which was divested in June 1995.
The consolidated net loss for the first quarter was $0.4 million, or $.02
per share, compared with net earnings of $4.6 million, or $.25 per share, a
year ago. Excluding unusual items, net earnings for the first quarter of
fiscal 1997 were $1.8 million, or $.10 per share. During the first quarter
the Company recognized an unusual pre-tax charge of $3.6 million, or $.12
per share, which included $2.2 million for severance and other costs
resulting from the resignation of the Company's Chief Executive Officer and
$1.4 million primarily for the cost of business assessment studies. In
addition to unusual charges, the decline in net earnings was primarily the
result of significantly lower Venezuela Foods operating earnings and from
the absence of earnings from the Company's surimi seafood business.
Segment Results
Foodservice Distribution first quarter net sales increased 6% to $443.3
million, compared with $416.4 million a year ago. The increase was from
higher volumes in the Company's limited-menu and food exporting businesses,
partially offset by a 7% volume decline in the vending distribution
business. Unit volumes in the limited-menu business increased 12%
exclusive of the additional volumes from the Alum Rock Foodservice business
which was acquired by the Company in July 1995. Operating earnings
declined 9% to $5.1 million, compared with $5.6 million last year. The
decline was from the lower vending distribution volumes which more than
offset the benefits of the higher volumes described above and the purchase
of certain inventories in the vending distribution business at favorable
prices. The vending distribution volume declines are expected to continue
to adversely affect the Company's Foodservice Distribution operating
results in the second quarter.
Bakery first quarter net sales increased 3% to $111.6 million, compared
with $108 million a year ago. Sales increased on higher volumes in
consumer bakery products and condiments. The increase was partially offset
by lower volumes in U.S. bakery mix and North American frozen products.
First quarter operating earnings increased 31% to $2.1 million, compared
with $1.6 million last year. Operating earnings increased as a result of
the higher volumes and a change in the Company's promotional spending
strategy.
Venezuela Foods first quarter net sales declined 26% to $71.2 million,
compared with $96.7 million a year ago. The decline was primarily the
result of a significant devaluation in the exchange rate during the second
half of fiscal 1996, partially offset by higher volumes in consumer
products. The average free-market exchange rate in the first quarter of
fiscal 1997 was approximately 480 Venezuelan bolivars per U.S. dollar,
compared with the fixed exchange rate established by the Venezuelan
government of 170 bolivars per U.S. dollar which was used for translation
in the first quarter last year. Operating earnings declined 68% to $2.1
million, compared with $6.5 million last year, primarily from the
significant devaluation in the exchange rate during the second half of
fiscal 1996.
During the first quarter of fiscal 1997, the Venezuelan government
implemented major reforms in order to address the country's economic
problems. Economic reforms include the removal of controls over foreign
exchange, interest rates and prices. The Venezuelan government also signed
a letter of intent for a loan agreement with the International Monetary
Fund. The Company believes the reforms are a positive development over the
long term.
The Company expects that its recent ability to increase prices without
restrictions in Venezuela will mitigate the significant adverse effect of
the aforementioned currency devaluation on its Venezuela Foods operating
results in the second quarter of fiscal 1997. However, the Company also
expects that its Venezuela Foods operating results in the second quarter of
fiscal 1997 will be lower than the same quarter in fiscal 1996 as a result
of the benefit last year of the fixed exchange rate which was used for
translation.
Fiscal 1996 first quarter results included $13.5 million in net sales and
$1.6 million in operating earnings from the Company's surimi seafood
business, which was divested in June 1995.
Non-operating Expense and Income
Net interest expense declined to $4.3 million from $4.9 million a year ago.
The decline was primarily the result of lower interest rates.
Income Taxes
Excluding unusual items, the Company's effective tax rate in the first
quarter of fiscal 1997 was 30% compared with 35% last year. The decline
was the result of a lower effective tax rate in Venezuela.
Financial Condition:
The debt-to-total capitalization ratio increased slightly from 45% at
February 29, 1996 to 47% at May 31, 1996 as a result of higher working
capital requirements. Working capital increased on higher inventory levels
which resulted from the timing of purchases and seasonal factors. The
increase in working capital was also attributable to the timing of
payments, including income taxes.
During the first quarter of fiscal 1997, the Company entered into an $80
million revolving credit agreement in Canada that replaced an $84 million
revolving credit agreement and a $7 million line of credit. The new
Canadian revolving credit agreement expires March 15, 2001 and bears
interest on borrowings as determined by current market factors.
In June 1996, Moody's Investors Service, Inc. announced that it is
reviewing the Baa2 long-term debt and Prime-2 commercial paper ratings of
the Company for possible downgrade and Standard & Poor's announced that it
had placed the Company's BBB long-term debt and A-2 commercial paper
ratings on credit watch with negative implications. The Company's
management believes that in the event of a ratings downgrade, there would
not be a material impact on the results of operations or the Company's
ability to obtain financing.
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4.1 Credit Agreement dated as of May 30, 1996 among
Robin Hood Multifoods Inc., various financial institutions and
Canadian Imperial Bank of Commerce, as Agent.
10.1 Separation Agreement dated June 21, 1996
between Anthony Luiso and International Multifoods Corporation.
11. Computation of Earnings (Loss) Per Common
Share.
12. Computation of Ratio of Earnings to Fixed
Charges.
27. Financial Data Schedule.
(b) Reports on Form 8-K
During the quarter ended May 31, 1996, the Company
filed a report on Form 8-K dated May 17, 1996 relating to the
announcement by the Company that Anthony Luiso had resigned from the
office of Chairman, President and Chief Executive Officer of the
Company, effective immediately.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
INTERNATIONAL MULTIFOODS CORPORATION
Date: July 12, 1996 By /s/ Duncan H. Cocroft
Duncan H. Cocroft
Vice President - Finance and
Chief Financial Officer
(Principal Financial Officer and
Duly Authorized Officer)
EXHIBIT INDEX
4.1 Credit Agreement dated as of May 30, 1996 among Robin Hood
Multifoods Inc., various financial institutions and Canadian Imperial
Bank of Commerce, as Agent.
10.1 Separation Agreement dated June 21, 1996 between Anthony
Luiso and International Multifoods Corporation.
11. Computation of Earnings (Loss) Per Common Share.
12. Computation of Ratio of Earnings to Fixed Charges.
27. Financial Data Schedule.
EXHIBIT 4.1
CREDIT AGREEMENT
DATED AS OF MAY 30, 1996
AMONG
ROBIN HOOD MULTIFOODS INC.,
VARIOUS FINANCIAL INSTITUTIONS
AND
CANADIAN IMPERIAL BANK OF COMMERCE, as Agent
CREDIT AGREEMENT
I N D E X
Page
ARTICLE 1
INTERPRETATION 1
Definitions 1
Accounting Terms 9
Currency 9
References 9
Schedules 9
ARTICLE 2
THE CREDITS 10
Establishment of the Credits 10
Purpose of the Credits 11
Pro Rata Accommodation 11
Accommodation 12
Drawdown under the Credits 12
Rollovers and Switches of Accommodation 13
Disbursement of Loans 13
Bankers' Acceptances 13
Cancellation of Commitment 14
ARTICLE 3
PRIME RATE LOANS, U.S. BASE RATE LOANS AND LIBOR LOANS 15
Evidence of Indebtedness 15
Notes 15
Overdrafts 15
Interest 16
Payment of Interest 16
Calculation of Interest 16
Maximum Rate of Return 17
Interest Act 17
ARTICLE 4
BANKERS' ACCEPTANCES 18
General 18
Stamping Fee 18
Acceptance 18
Provisions on Default 19
Presigned Drafts 19
ARTICLE 5
GENERAL PROVISIONS RELATING TO LIBOR LOANS 20
General 20
Early Termination of LIBOR Periods 20
Inability to Make LIBOR Loans 20
Changes in Circumstances 21
Indemnity 21
ARTICLE 6
LETTERS OF CREDIT AND LETTERS OF GUARANTEE 22
Conditions Precedent to Issuance 22
Issuance Fees 22
Payments Pursuant to Letters of Credit and
Letters of Guarantee 22
Provision Upon Default 22
ARTICLE 7
FORWARD EXCHANGE CONTRACTS AND INTEREST RATE SWAPS 23
Forward Exchange Contracts 23
Interest Rate Swaps 23
ARTICLE 8
REPAYMENT AND PREPAYMENT 24
Repayment 24
Prepayment 24
Capital Adequacy, etc. 24
No Set-Off or Counterclaim 25
Withholding Taxes: Gross-up 25
Currency of Repayment 26
General 26
ARTICLE 9
GUARANTEE 27
Guarantee 27
ARTICLE 10
REPRESENTATIONS AND WARRANTIES 28
Representations and Warranties of the Borrower 28
ARTICLE 11
COVENANTS 30
Covenants of the Borrower 30
ARTICLE 12
EVENTS OF DEFAULT 33
Events of Default 33
Acceleration 34
Remedies Cumulative 35
Availability of Accommodation after Demand
or Default; Appropriation 35
Non-Merger 36
Currency Indemnity 36
ARTICLE 13
CONDITIONS PRECEDENT TO ACCOMMODATION 37
General 37
Opinion of Lenders' Counsel 38
ARTICLE 14
THE AGENT 39
Appointment 39
Delegation of Duties 39
Indemnity 39
Exculpation 40
Reliance 41
Exchange of Information 41
The Agent, Individually 41
Resignation 42
Meetings of Lenders 42
Provisions for Benefit of Lenders Only 43
Arrangements for Repayment of Accommodation 43
Repayment by Lenders to Agent 43
ARTICLE 15
MISCELLANEOUS 45
Payments to the Lenders 45
Fees and Expenses 45
Fees Related to the Credit 46
Amendment, Waiver, etc. 46
Further Assurances 47
Dealings by Agent and Lenders 47
Notices 49
Assignment and Participations 50
Survival 51
Successors and Assigns 52
Governing Law 52
Severability 52
Entire Agreement 52
Counterparts 52
CREDIT AGREEMENT
THIS AGREEMENT, dated as of May 30, 1996 entered into among
ROBIN HOOD MULTIFOODS INC., CANADIAN IMPERIAL BANK OF COMMERCE AS AGENT
and the parties named as Lenders on the execution pages hereof.
WHEREAS the Lenders have severally agreed to establish
Cdn.$110,000,000 revolving credit facilities in favour of Robin Hood
Multifoods Inc. on the terms of this Agreement;
THEREFORE it is agreed by the parties as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, including the recitals, unless the context
otherwise requires:
"Accommodation" means accommodation obtained under the Credits
by way of Prime Rate Loans, Bankers' Acceptances, LIBOR Loans, U.S. Base
Rate Loans, Letters of Credit, Letters of Guarantee, Forward Exchange
Contracts, Interest Rate Swaps, Overdrafts or any permitted combination
thereof;
"Agent" means (i) Canadian Imperial Bank of Commerce, or (ii)
such other Lender as shall be appointed as the successor Agent pursuant
to Section 14.8, and (iii) for the purposes of the Swing Line Credit
means the Swing Line Lender;
"Bankers' Acceptance" means a draft of the Borrower
denominated in Canadian Dollars which has been accepted by a Lender as
described in Article 4 of this Agreement;
"Bankers' Acceptance Rate" means, with respect to a Schedule I
Lender, the Discount Rate of such Lender and, with respect to a Schedule
II Lender, the lower of (i) the Discount Rate of such Lender and (ii)
the average of the Discount Rates of the Schedule I Lenders plus .07%
per annum;
"Borrower" means Robin Hood Multifoods Inc.;
"Business Day" means (i) any day, other than a Saturday or
Sunday, on which Canadian chartered banks are open for business in
Toronto, Canada and (ii) in the case of any determination to be made in
respect of a LIBOR Loan, a day which is otherwise a Business Day under
clause (i) above and on which dealings are carried out in the London
Interbank Market and banks operating in such market are generally open
for business in London, England;
"Canadian Dollars", "Cdn. Dollars" and "$Cdn." mean lawful
currency of Canada;
"Cdn. Dollar Amount" means at any time with respect to
outstanding Accommodation, the aggregate of (i) the amount in Cdn.
Dollars of all such Accommodation that is denominated in Cdn. Dollars
and (ii) the Cdn. Dollar Exchange Equivalent at such time of such
Accommodation that is denominated in a currency other than Cdn. Dollars;
"Cdn. Dollar Exchange Equivalent" means, with reference to any
amount (the "original amount") expressed in any currency (the "original
currency"), the amount expressed in Cdn. Dollars which the Lender would
be required to pay in Toronto on the date specified using the Bank of
Canada noon rate for such date (or if no date is specified on the date
when such amount is being determined) in order to purchase the original
amount of the original currency in accordance with the Lender's usual
foreign exchange practice;
"CDOR" means the rate quoted by the Agent for the Agent's 30
day Canadian Dollar bankers' acceptances that appears on the Reuters
Screen CDOR Page as of 10:00 a.m. (Toronto time) on the date of
determination, provided that if such rate does not appear on the Reuters
Screen CDOR Page at such time on such date, the rate for such date will
be the average of the Bankers' Acceptance Rates of the Schedule I Banks
which are Lenders for 30 day Canadian Dollar bankers' acceptances at
such time and on such date;
"Commitment" means, with reference to any Lender, the amount
of Credit A which that Lender has severally agreed to make available to
the Borrower as initially set out opposite that Lender's name on the
execution pages of this Agreement or, in the case of a Lender which has
executed a Lender's Acknowledgement, opposite the Lender's name on the
Lender's Acknowledgement, all as may be adjusted in accordance with this
Agreement;
"Credit A" means the revolving credit established in Article
2.1(1);
"Credits" means Credit A and the Swing Line Credit;
"Default" means any event that with the giving of notice or
the passage of time, or both, would be an Event of Default;
"Designated Account" means Account No. 0921416 @ Transit #2
(Agent suspense account) maintained by the Agent at its Main Branch,
Commerce Court, Toronto, Ontario;
"Discount Rate" means in respect of any Bankers' Acceptance,
the discount rate quoted by the principal office of the applicable
Lender at approximately 10:00 a.m. (Toronto time) (or such other time as
may be practicable for the determination of the Discount Rate) as the
discount rate at which such Lender would purchase Bankers' Acceptances
accepted by such Lender and with a term to maturity the same as the
applicable Bankers' Acceptance on the date of the applicable grant of
Accommodation;
"Documents" means this Agreement, the Notes and all other
documents delivered pursuant to this Agreement including the Guarantee;
"Eligible Assignee" means a bank, trust company or other
financial institution organized under the laws of Canada or any province
thereof having a rating of A or better by S&P;
"Eurodollars" means U.S. Dollars which are freely convertible,
transferable and dealt with in or on the London Interbank Eurodollar
Market;
"Event of Default" means an event specified in 12.1;
"Facility Fee" means the facility fee relative to Credit A and
referred to in Section 15.3(a);
"Forward Exchange Contract" means a forward exchange contract
purchased on behalf of the Borrower under the Swing Line Credit and
pursuant to Section 7.1;
"Guarantee" means the guarantee referred to in Section 9.1;
"Guarantor" means International Multifoods Corporation;
"Guarantor's Common Stockholders' Equity" means the common
stockholders' equity of the Guarantor and its Subsidiaries determined on
a consolidated basis in accordance with U.S. GAAP;
"Guarantor's Compliance Certificate" means a certificate
substantially in the form of Schedule I;
"Guarantor's Current Assets" means, at any time, all assets of
the Guarantor and its Subsidiaries which may be properly classified as
current assets in accordance with U.S. GAAP on a consolidated basis,
exclusive of cash, cash equivalents and short-term investments;
"Guarantor's Current Liabilities" means, at any time, all
liabilities of the Guarantor and its Subsidiaries which may be properly
classified as current liabilities in accordance with U.S. GAAP on a
consolidated basis, exclusive of commercial paper, Bankers' Acceptances,
notes payable and the current portion of long-term debt;
"Guarantor's Earnings from Continuing Operations Before Income
Tax" means, for any period, total pre-tax earnings from the continuing
operations of the Guarantor and its Subsidiaries, as determined for such
period in accordance with U.S. GAAP on a consolidated basis. If the
Guarantor is not required to report discontinued operations then
"Guarantor's Earnings from Continuing Operations Before Income Tax"
shall mean "earnings before income tax" as shown on the Guarantor's
consolidated statement of earnings;
"Guarantor's Fixed Charge Coverage" means the quotient of:
(a) the consolidated sum of (i) interest expense (reduced
by capitalized interest), (ii) minimum rentals for operating leases of
continuing operations of the Guarantor and its consolidated Subsidiaries
and (iii) Guarantor's Earnings from Continuing Operations Before Income
Tax (exclusive of (x) unusual or nonrecurring items and (y) any foreign
exchange gains or losses that might appear on or be reflected in the
consolidated statement of earnings of the Guarantor and its Subsidiaries
on a consolidated basis) divided by
(b) the consolidated sum of interest expense (reduced by
capitalized interest) and minimum rentals for operating leases of
continuing operations of the Guarantor and its consolidated
Subsidiaries;
"Guarantor's Net Worth" means the Guarantor's Common
Stockholders' Equity plus (i) any preferred stock of the Guarantor, as
set forth on a consolidated balance sheet of the Guarantor, and (ii) the
lesser of (A) the outstanding amount of any guarantee of an obligation
given by the Guarantor or any Subsidiary of the Guarantor to a lender to
a trust holding assets of any employee benefit plan of the Guarantor or
any Subsidiary of the Guarantor for the purpose of allowing such trust
to borrow monies, which amount has been reflected on the consolidated
balance sheet of the Guarantor as a reduction of common stockholders'
equity, or (B) two-thirds of the value of any stock held by such trust
securing such obligation of the trust. For the purpose of the preceding
sentence, the value of a share of common stock (par value ten cents
(U.S. Dollars) per share) of the Guarantor at any point in time shall be
the average closing price of a share of such common stock on the New
York Stock Exchange, Inc. (or its successor) for the 90-day period
immediately preceding the date of determination;
"Guarantor's Tangible Net Worth" means, at any time, the
Guarantor's Net Worth less the amount of goodwill, debt discount and
other like intangibles of the Guarantor and its Subsidiaries determined
on a consolidated basis;
"Guarantor's Total Capitalization" means, at any time, the sum
of Guarantor's Total Indebtedness and the Guarantor's Net Worth. For
the purposes of computing the Guarantor's Total Capitalization, any
decrease since November 30, 1995 to the Guarantor's Common Stockholders'
Equity as a component of the Guarantor's Net Worth resulting from a non-
recurring non-cash charge in connection with the write-off of goodwill
and other intangibles shall be added back to the Guarantor's Common
Stockholders' Equity;
"Guarantor's Total Indebtedness" means, at any time, total
indebtedness for monies borrowed by the Guarantor or any of its
Subsidiaries as such items appear on the consolidated balance sheet of
the Guarantor and its Subsidiaries on a consolidated basis in accordance
with U.S. GAAP ("Debt"). For any date other than August 31 as of any
year during the term of this Agreement, the Guarantor's Total
Indebtedness shall be calculated by subtracting from Debt the excess, if
any, of (i) the Guarantor's Working Capital as of such date excluding
increases in the Guarantor's Working Capital resulting from acquisitions
and mergers since the preceding August 31 over (ii) the Guarantor's
Working Capital as of the preceding August 31 ("Base Amount"), which
Base Amount shall be reduced by the amount of the Guarantor's Working
Capital attributable to businesses or assets of the Guarantor or any of
its consolidated Subsidiaries disposed of since the preceding August 31;
"Guarantor's Working Capital" means the excess, if any, of the
Guarantor's Current Assets over the Guarantor's Current Liabilities;
"Interest Rate Swaps" means interest rate swap agreements
obtained pursuant to Section 7.2;
"Lender's Acknowledgement" means a document substantially in
the form of Schedule "A";
"Lenders" means the financial institutions named as Lenders on
the signature pages hereof or any other financial institution which has
executed a Lender's Acknowledgement and where applicable means or
includes the Swing Line Lender and "Lender" means any one of them;
"Letter of Credit" means a letter of credit issued by the
Swing Line Lender under the Swing Line Credit on behalf of the Borrower
pursuant to Article 6;
"Letter of Guarantee" means a letter of guarantee issued by
the Swing Line Lender under the Swing Line Credit on behalf of the
Borrower pursuant to Article 6;
"LIBOR Loan" means a borrowing of Eurodollars under the Swing
Line Credit;
"LIBOR Period" means a period of 1, 2, 3 or 6 months or such
other period as the Borrower and the Swing Line Lender may mutually
agree, and readily available in the London Interbank Eurodollar Market.
If any LIBOR period, ends on a day which is not a Business Day, such
LIBOR Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day falls in the following month in
which event such LIBOR Period shall end on the immediately preceeding
Business Day;
"LIBOR Rate" means, with respect to any LIBOR Loan, the rate
of interest per annum at which deposits of U.S. Dollars in a principal
amount substantially similar to the principal amount in respect of which
such determination is being made and for delivery on the first day of
and for the same number of days as are comprised in the LIBOR Period in
respect of which such determination is being made are offered by prime
banks in the London Interbank Eurodollar Market to the Swing Line Lender
at 11:00 a.m., London time, on the second Business Day preceding the
first day of such LIBOR Period;
"Maturity Date" means March 15, 2001;
"Moody's" means Moody's Investors Services, Inc. or any
successor thereto;
"Multifoods Credit Agreement" means the U.S.$200,000,000
Credit Agreement dated as of March 22, 1996 among International
Multifoods Corporation, various financial institutions, Bankers Trust
Company, as Syndication Agent, The First National Bank of Chicago, as
Documentation Agent, and Bank of America National Trust and Savings
Association, as Administrative Agent, and as for the purpose of this
Agreement any other amendments made from time to time to the Multifoods
Credit Agreement which are accepted by the Required Lenders;
"Note" means a grid note of the Borrower in favour of a Lender
in substantially the form of Schedules B, C or D as applicable;
"Notice of Borrowing" means a notice of the Borrower in
substantially the form of Schedule E;
"Notice of Rollover/Switch" means a notice of the Borrower in
substantially the form of Schedule F;
"Overdrafts" means Prime Rate Loans and U.S. Base Rate Loans
obtained under the Swing Line Credit in order to meet a drawing upon any
account of the Borrower with the Swing Line Lender and for which no
Notice of Borrowing is required under Section 2.5 and "Overdraft" means
any such loan;
"Pricing Grid" means Schedule G as such schedule may be
amended from time to time;
"Prime Interest Rate" means at any time the greater of (i) the
then existing rate of interest per annum that is the rate of interest
per annum from time to time declared by the Agent as its prime interest
rate for commercial loans in Canada that are denominated in Canadian
Dollars and (ii) the then applicable CDOR plus 1/2% per annum;
"Prime Rate Loan" means a borrowing under the Credits that
bears interest at a rate based on the Prime Interest Rate;
"Rating Level" means at any time the Level set forth in the
table below opposite the then-current rating for the senior unsecured
non-credit-enhanced long-term debt of the Guarantor by Moody's or S&P,
whichever results in the numerically higher (one being highest) Level;
provided that (i) if there is a numerical difference of two or more
Levels between the Moody's rating and the S&P rating, the then-
applicable Rating Level shall be one Level below the higher of such
Levels; and (ii) if at any time there is no Moody's Rating and no S&P
Rating, the Rating Level shall be Level VI.
Level Moody's Rating S&P Rating
I A2 or better A or better
II A3 A-
III Baa1 BBB+
IV Baa2 BBB
V Baa3 BBB-
VI less than Baa3 less than BBB-
The Rating Level shall change two days after any applicable
change in rating by Moody's or S&P;
"Ratings Downgrade" means, at any time, that the rating for
the senior unsecured non-credit-enhanced long-term debt of the Guarantor
(i) is then rated below Baa3 by Moody's (or is not rated by Moody's) and
(ii) is then rated below BBB- by S&P (or is not rated by S&P);
"Required Lenders" means, at any time at least two Lenders
whose Commitments, which for this purpose includes the Swing Line Lender
with respect to the Swing Line Commitment, aggregate at least 51% of all
of the Commitments and the Swing Line Commitment; provided that the
Commitment or Swing Line Commitment of any Lender or the Swing Line
Lender which is in default under this Agreement and such Lender or Swing
Line Lender, as the case may be, shall not be included in the
calculation of Required Lenders;
"Responsible Officer" means the Chairman, the President, any
Vice President, the Chief Financial Officer, the Controller, the
Treasurer or any Assistant Treasurer of the Guarantor;
"S&P" means Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc., or any successor thereto;
"Stamping Fee" means the fee referred to in Section 4.2;
"Subsidiary" of a person means any corporation of which more
than 50% of the Voting Shares are beneficially owned for the time being,
directly or indirectly, by the person and includes a Subsidiary of any
Subsidiary;
"Swing Line Credit" means the revolving credit established in
Section 2.1(2);
"Swing Line Commitment" means the amount of the Swing Line
Credit which the Swing Line Lender has agreed to make available to the
Borrower as set out in Section 2.1(2) and opposite the Swing Line
Lender's name on the execution pages of this Agreement;
"Swing Line Lender" means Canadian Imperial Bank of Commerce
in its capacity as swing line lender or any successor and assign in such
capacity;
"Swing Line Maturity Date" means March 15, 2001 unless
otherwise extended with the written consent of the Swing Line Lender;
"U.S. Base Rate" means the rate of interest per annum from
time to time declared by the Swing Line Lender as its U.S. Base Rate for
U.S. Dollar commercial loans in Canada;
"U.S. Base Rate Loan" means a borrowing under the Swing Line
Credit in U.S. Dollars which bears interest at a rate based on the U.S.
Base Rate;
"U.S. Dollars" and "$U.S." mean lawful currency of the United
States of America;
"U.S. GAAP" means generally accepted accounting principles in
effect in the United States of America as the same may be amended from
time to time; and
"Voting Shares" means shares of any class carrying voting
rights exercisable for the time being.
1.2 Accounting Terms
All accounting terms not otherwise defined in this Agreement
have the meanings assigned to them by U.S. GAAP.
1.3 Currency
Unless otherwise specified in this Agreement, all statements
of, or references to, dollar amounts (without further description) shall
mean Canadian Dollars. All financial statements delivered pursuant to
this Agreement will be in U.S. Dollars.
1.4 References
Unless something in the subject matter or context is
inconsistent therewith, all references to Sections, Paragraphs, Articles
and Schedules are to Sections, Paragraphs, Articles and Schedules of
this Agreement. The words "hereto", "herein", "of this Agreement",
"under this Agreement" and similar expressions mean and refer to this
Agreement. This "Agreement" includes the Agreement and the Schedules
hereto, as amended from time to time by means of a Lender's
Acknowledgement or by written agreement among the parties hereto.
1.5 Schedules
The Schedules forming part of this Agreement are as follows:
Schedule A - Lender's Acknowledgement
B - Note for Prime Rate Loans
C - Note for U.S. Base Rate Loans
D - Note for LIBOR Loans
E - Notice of Borrowing
F - Notice of Rollover/Switch
G - Pricing Grid
H - Guarantee
I - Guarantor's Compliance Certificate
J - Opinion of Counsel for the Borrower
K - Opinion of Counsel for the Guarantor
ARTICLE 2
THE CREDITS
2.1 Establishment of the Credits
(1) Credit A:
Subject to the terms of this Agreement (including the
restrictions contained in this Article), each Lender hereby severally
agrees to make Accommodation available to the Borrower on a revolving
basis, provided that the amount of the Accommodation made by any Lender
shall not at any time exceed its Commitment from time to time and the
total Accommodation outstanding under Credit A shall not at any time
exceed $100,000,000.
(2) Swing Line Credit
Subject to the terms of this Agreement (including the
restrictions contained in this Article), the Swing Line Lender hereby
agrees to make Accommodation available to the Borrower on a revolving
basis, provided that the total Accommodation outstanding under the Swing
Line Credit shall not at any time exceed $10,000,000.
(3) Accommodation under the Credits:
Subject to the terms of this Agreement, the Borrower may from
time to time at its option obtain the following types of Accommodation:
Credit A: - Prime Rate Loans
- Bankers' Acceptances
Swing Line Credit: - Prime Rate Loans
- Bankers' Acceptances
- LIBOR Loans
- U.S. Base Rate Loans
- Letters of Credit
- Letters of Guarantee
- Forward Exchange Contracts
- Interest Rate Swaps
- Overdrafts
2.2 Purpose of the Credits
Accommodation obtained under the Credits shall be used for the
general corporate purposes of the Borrower and for no other purpose and,
for greater certainty, shall not be used to fund a hostile take-over
bid.
2.3 Pro Rata Accommodation
Contemporaneous Accommodation: All Accommodation under Credit
A requested in a Notice of Borrowing shall be made available
contemporaneously by the Lenders in the same proportions and types of
Accommodation as their respective Commitments, subject to the maximum
Commitment of each Lender; however, the Agent shall be entitled at any
time to request Accommodation from the Lenders otherwise than in
accordance with their respective Commitments to round off drafts
presented by the Borrower to the nearest $100,000 in which case the
proportion but not the maximum amount of the Commitment by a Lender to
accept drafts presented by the Borrower shall be increased if necessary
to ensure that the total Accommodation requested is made available and
the relative positions of the Lenders shall be readjusted in accordance
with their respective Commitments at the earliest possible opportunity
by the Agent. No Lender shall be responsible for any default by any
other Lender in its obligation to make its proportionate share of
requested Accommodation available nor shall the Commitment of any Lender
be increased as a result of the default by any other Lender in its
obligation to make Accommodation available, except as provided in
Subsection 2.3(2).
Failure to Advance Accommodation: In the event that any
Lender fails to make available its portion of any Accommodation as
required, the Agent shall forthwith give notice thereof to each of the
other Lenders, and any other Lender, on notice to the Borrower, the
Agent and the other Lenders and acknowledgment by the Agent, may advance
to the Borrower the amount (or if more than one Lender so elects, its
pro rata share of the amount based on the Commitments of the electing
Lenders) of the failing Lender's portion of the Accommodation. Upon the
making of such advance, the Lender or Lenders making the advance shall
have the right to forthwith recover the same from the failing Lender or,
if required by any Lender making the advance, the Lenders, the Agent and
the Borrower shall enter into such documentation, in form and substance
satisfactory to the parties, as may be appropriate to evidence the
adjustment of the Commitments of the Lenders necessitated by the advance
made by such Lender(s).
Nothing in this Agreement shall be deemed to relieve any
Lender from its obligation to fulfil its Commitment or to prejudice any
rights which the Borrower may have against any Lender as a result of any
default by such Lender under this Agreement.
2.4 Accommodation
Utilization: Subject to the terms of this Agreement, the
Borrower shall have the right at all times to determine the manner and
proportions in which it will utilize the different types of
Accommodation available under the Credits. The Borrower may at its
option, until the applicable Credit has been cancelled or repaid in
full, rollover or switch its method(s) of utilizing such Credit,
provided that all such rollovers or switches shall involve at least
$5,000,000 with respect to Credit A and at least $1,000,000 with respect
to the Swing Line Credit and no rollover or switch out of Bankers'
Acceptances under either Credit shall be made except upon the maturity
of a corresponding amount of Bankers' Acceptances.
Form of Accommodation Limitation: The Borrower shall not be
permitted to have outstanding at any one time under Credit A, Bankers'
Acceptances with more than 8 different dates of maturity.
2.5 Drawdown under the Credits
Notice of Borrowing: The Borrower shall deliver to the Agent,
in accordance with the following schedule, a Notice of Borrowing prior
to each proposed draw under either Credit:
Type of Accommodation Notice Required
If Equal to or Less If More than $15,000,000
than $15,000,000
Prime Rate Loans Same Day 1 Business Day
Bankers' Acceptances 1 Business Day 2 Business Days
U.S. Base Rate Loans Same Day 1 Business Day
LIBOR Loans 3 Business Days 3 Business Days
No Notice of Borrowing will be required with respect to
Overdrafts obtained under the Swing Line Credit.
The Notice of Borrowing shall be delivered to the Agent prior
to 11:00 a.m. Toronto time on the date that the Notice of Borrowing is
required. A Notice of Borrowing delivered after that time shall be
deemed to have been delivered on the next Business Day.
(2) Actions of Agent: On receipt of the Notice of Borrowing
requesting a grant of Accommodation under Credit A, the Agent shall
promptly notify by telecopy each Lender of (a) the proposed draw, (b)
the proportionate amount and type of Accommodation to be made available
by such Lender, and (c) the information relating to the Designated
Account to which the proceeds of any Prime Rate Loan or Bankers'
Acceptance advance is to be credited.
2.6 Rollovers and Switches of Accommodation
(1) Timing of Notices: Prior to a proposed switch or rollover of
Accommodation, the Borrower shall deliver to the Agent a Notice of
Rollover/Switch. The Notice of Rollover/Switch shall be delivered to
the Agent within the same time periods as Notices of Borrowing are
required to be delivered to the Agent pursuant to Subsection 2.5(1) of
this Agreement.
(2) Actions of Agent: On receipt of a Notice of Rollover/Switch
relating to a grant of Accommodation under Credit A, the Agent shall
promptly notify by telecopy each Lender of (a) the proposed
rollover/switch, (b) the proportionate amount and type of Accommodation
to be made available by such Lender under Credit A on the
rollover/switch date, and (c) the information relating to the Designated
Account to which the proceeds of any Prime Rate Loan or Bankers'
Acceptance advance to be effected on the rollover/switch date are to be
credited.
(3) Failure to Provide Notice of Rollover/Switch: In the event
that the Borrower does not provide the Agent with the required Notice of
Rollover/Switch in accordance with Subsection 2.6(1) for any
rollover/switch of Accommodation, then such Accommodation shall be
switched to a Prime Rate Loan for any amounts outstanding on the
rollover/switch date.
2.7 Disbursement of Loans
Each Prime Rate Loan, U.S. Base Rate Loan and LIBOR Loan shall
be made by each applicable Lender crediting the applicable funds to the
appropriate Designated Account in same day funds on the applicable
drawdown, rollover or switch date.
2.8 Bankers' Acceptances
All Bankers' Acceptances to be accepted by the Lenders shall
be obtained through the Agent. Each Lender agrees to purchase at the
applicable Bankers' Acceptance Rate each such Bankers' Acceptance
accepted by it and to provide to the Agent for the account of the
Borrower the discounted proceeds less the Stamping Fee. A Lender may
hold, sell, rediscount or otherwise dispose of any or all Bankers'
Acceptances accepted and purchased by it in accordance with the terms of
this Agreement.
2.9 Cancellation of Commitment
The Borrower may at any time during which there is no
outstanding Notice of Borrowing, by written notice to the Agent, cancel
any undrawn portion of the Lenders' aggregate Commitments or the Swing
Line Commitment as of the date specified in the written notice and, in
which case, (a) the Commitment of each Lender shall be reduced by an
amount which equals that proportion of the sum so specified by the
Borrower that such Lender's Commitment is of the original amount of
Credit A or (b) the Swing Line Commitment shall be reduced by the amount
specified in the written notice, as applicable.
ARTICLE 3
PRIME RATE LOANS, U.S. BASE RATE LOANS AND LIBOR LOANS
3.1 Evidence of Indebtedness
Each Prime Rate Loan and each U.S. Base Rate Loan (not
borrowed by way of Overdraft) and each LIBOR Loan and all payments on
account of such borrowings shall be evidenced by a notation on a Note
executed by the Borrower in favour of the applicable Lender.
3.2 Notes
(1) Recording on Note: The Borrower hereby authorizes each of the
Lenders, and each of the Lenders agrees, to record on the appropriate
Note held by it the amount of each advance made by it under the
applicable Credit on account of a Prime Rate Loan, U.S. Base Rate Loan
or LIBOR Loan as the case may be, to increase the balance owing under
such Note accordingly and to record any payments made on account of
advances evidenced by the Note.
(2) Note Evidences Balance Owing: The Borrower acknowledges,
confirms and agrees with each of the Lenders that all amounts recorded
on the reverse side of any Note executed by the Borrower that is held by
a Lender will constitute prima facie evidence of the balance owing under
such Note (in the absence of manifest error). Each Lender agrees that
on request it will give the Borrower written confirmation of all
notations made by a Lender on any Note held by it, provided that the
failure of any Lender to give such confirmation shall not impair the
validity of any notation.
(3) Replacement Notes: The Borrower agrees to execute and deliver
to each of the Lenders such replacement Notes as may be requested from
time to time and each Lender agrees to destroy or return the Note being
replaced on receipt of a duly executed replacement Note.
3.3 Overdrafts
The Borrower may obtain Prime Rate Loans and U.S. Base Rate
Loans by way of Overdrafts. The Borrower acknowledges, confirms and
agrees with the Swing Line Lender that all accounts and records kept by
the Swing Line Lender evidencing all Accommodation under the Swing Line
Credit by way of Overdrafts and all other amounts owing from time to
time by the Borrower to the Swing Line Lender under this Agreement will
constitute prima facie evidence of the balance owing by the Borrower to
the Swing Line Lender in the absence of manifest error; provided
however, that the failure of the Swing Line Lender to make any entry or
recording or any error in any entry or recording so made shall not limit
or otherwise affect the obligations of the Borrower under this
Agreement.
3.4 Interest
(1) Prime Rate Loans: Each Prime Rate Loan shall bear interest,
with interest on overdue interest in Cdn. Dollars, as well after as
before default, demand and judgment at a variable rate per annum equal
at all times to the Prime Interest Rate, such rate to be adjusted
automatically without notice to the Borrower whenever there is a
variation in the Prime Interest Rate.
(2) U.S. Base Rate Loans: Each U.S. Base Rate Loan shall bear
interest, with interest on overdue interest in U.S. Dollars, as well
after as before default, demand and judgment at a variable rate per
annum equal at all times to the U.S. Base Rate, such rate to be adjusted
automatically without notice to the Borrower whenever there is a
variation in the U.S. Base Rate.
(3) LIBOR Loans: Each LIBOR Loan shall bear interest, with
interest on overdue interest in U.S. Dollars, as well after as before
default, demand and judgment at the LIBOR Rate plus the rate set forth
in the Pricing Grid.
3.5 Payment of Interest
Interest on Prime Rate Loans and U.S. Base Rate Loans shall
accrue daily and be payable monthly in arrears in accordance with the
Agent's standard practice. Interest on LIBOR Loans shall accrue daily
and be payable at the end of each LIBOR Period, provided that where the
LIBOR Period exceeds 90 days, interest shall be payable every 90 days
during the term of the LIBOR Period and on the last day of the LIBOR
Period. If any payment falls due on a day which is not a Business Day,
then such payment will be made on the next following Business Day.
3.6 Calculation of Interest
The parties agree that for the purpose of the Interest Act
(Canada) (a) the principle of deemed reinvestment of interest shall not
apply to any interest calculation under this Agreement and (b) the rates
of interest stipulated in this Agreement are intended to be nominal
rates and not effective rates or yields.
3.7 Maximum Rate of Return
Notwithstanding any provision to the contrary contained in
this Agreement, in no event shall the aggregate "interest" (as defined
in Section 347 of the Criminal Code, R.S.C., 1985, C-46) payable under
this Agreement exceed the effective annual rate of interest on the
"Credit Advanced" (as defined in that section) lawfully permitted under
that section and, if any payment, collection or demand pursuant to this
Agreement in respect of "interest" (as defined in that section) is
determined to be contrary to the provision of that section, such
payment, collection or demand shall be deemed to have been made by
mutual mistake of the Borrower and the Lenders and the amount of such
payment or collection shall be immediately refunded to the Borrower.
3.8 Interest Act
Interest on Prime Rate Loans, U.S. Base Rate Loans, LIBOR
Loans and the Stamping Fees for Banker's Acceptances are each calculated
on the basis of the actual number of days in which such Accommodation is
outstanding divided by 365 in the case of Prime Rate Loans, U.S. Base
Rate Loans and Bankers' Acceptances and by 360 in the case of LIBOR
Loans. For the purposes of the Interest Act (Canada), such rates
expressed as annual rates are equivalent to the rate specified in this
Agreement multiplied by the actual number of days in the calendar year
in which the same is to be ascertained and divided by 365 in the case of
Prime Rate Loans, U.S. Base Rate Loans and Bankers' Acceptances and by
360 in the case of LIBOR Loans.
ARTICLE 4
BANKERS' ACCEPTANCES
4.1 General
Any draft tendered by the Borrower for acceptance by a Lender
shall be payable in Canada, shall be for the minimum principal amount of
$1,000,000 and in multiples of $100,000 thereafter, and shall have a
term ending on a Business Day of not less than seven or more than 180
days provided any term which is less than 30 days shall be subject to
availability, or such other term as may be agreed by all of the Lenders;
provided that no term shall extend beyond the Maturity Date.
4.2 Stamping Fee
Upon presentation of a draft for acceptance under Credit A,
the Borrower shall pay to the Lenders a stamping fee in Cdn. Dollars,
calculated on the principal amount and for the term of the draft, at a
rate per annum equal to the rate then applicable as set out in the
Pricing Grid. Upon presentation of a draft for acceptance under the
Swing Line Credit, the Borrower shall pay to the Swing Line Lender a
stamping fee in Cdn. Dollars, calculated on the principal amount and for
the term of the draft, at the rate set forth in the Pricing Grid.
4.3 Acceptance
The Borrower shall provide for each of the Bankers'
Acceptances at their respective maturities at the accepting Lender's
main branch in the Canadian city where the draft is payable, either by
payment of the full principal amount thereof or by a rollover/switch
pursuant to Section 2.6 hereof or by a combination of partial payment of
the principal amount thereof and partial rollover/switch pursuant to
Section 2.6 hereof. The Borrower will continue to be required to
provide as aforesaid for each of the Bankers' Acceptances at maturity
notwithstanding the fact that a Lender may be the holder of a Bankers'
Acceptance accepted by such Lender. Any amount owing in respect of any
Bankers' Acceptance which is not paid in accordance with the foregoing
shall be subject to the same terms as are applicable to Prime Rate Loans
under the Credits, but be payable on demand.
4.4 Provisions on Default
In the event that formal demand is made on the Borrower,
pursuant to Article 12, the Borrower shall forthwith pay to the Agent
for proration amongst the relevant Lenders an amount equal to the
aggregate principal amount of outstanding Bankers' Acceptances stamped
by the Lenders on behalf of the Borrower less the amount of any prepaid
but unearned interest. Such amount shall be held by the Agent for set-
off against future indebtedness owing by the Borrower to such Lenders in
respect of such Bankers' Acceptances.
4.5 Presigned Drafts
The Borrower shall supply each of the Lenders with such number
of drafts executed on behalf of the Borrower by one or more of its
officers as the Lenders may from time to time reasonably request. The
signatures of such officers may be mechanically reproduced in facsimile
and such facsimile signatures shall be valid and binding on the Borrower
as if they had been manually signed by such officers. Notwithstanding
that any of the individuals whose manual or facsimile signatures appears
on any draft may no longer hold office at the date thereof or at the
date of its acceptance by a Lender hereunder or at any time thereafter,
any draft or Bankers' Acceptance signed as provided for in this Section
shall be valid and binding on the Borrower. The Lenders will not be
liable for their failure to accept drafts pursuant to this Agreement if
such failure is, in whole or in part, due to the failure of the Borrower
to provide drafts to the Lenders in accordance with this Section 4.5.
The Lenders shall provide the Borrower on a timely basis with a
sufficient number of drafts to be executed by the Borrower from time to
time. The responsibility of each Lender in respect of the safekeeping
of executed drafts which are delivered to it for acceptance hereunder
shall be limited to the exercise of the same degree of care which the
applicable Lender gives to its own property, provided that such Lender
shall not be deemed to be an insurer thereof.
ARTICLE 5
GENERAL PROVISIONS RELATING TO LIBOR LOANS
5.1 General
Minimum: The principal amount of each LIBOR Loan shall be at
least $U.S.1,000,000 and shall in all events be a whole multiple of
$U.S.100,000.
Failure to Specify LIBOR Period: In the event that the
Borrower fails at any time to specify a LIBOR Period for any proposed
LIBOR Loan then the applicable LIBOR Period shall be deemed to be one
month.
5.2 Early Termination of LIBOR Periods
To the extent that the Lender is required to arrange for early
termination of any LIBOR Period or to arrange to acquire funds for any
period other than a LIBOR Period to permit the Borrower to repay any
Accommodation obtained by it under the Swing Line Credit, the Borrower
shall reimburse the Lender for all reasonable losses and out-of-pocket
expenses incurred by it as a result of the early termination of the
LIBOR Period in question or as a result of entering into the new
arrangement to the extent that such losses and expenses result from such
payment. If any such early termination or new arrangement cannot be
effected by the Lender, the Borrower shall continue to pay interest to
the Lender in U.S. Dollars, at the LIBOR Rate specified under this
Agreement on an amount of U.S. Dollars equal to the amount of the
principal repayment for the remainder of the then current LIBOR Period.
For the purpose of calculating such losses and out-of-pocket expenses, a
certificate of the Lender setting out particulars of the calculation of
such amounts shall, in the absence of manifest error, be prima facie
evidence thereof.
5.3 Inability to Make LIBOR Loans
In the event that on any date the Lender determines in good
faith (which determination shall be conclusive) that its ability to make
a requested LIBOR Loan has become impracticable, unlawful or impossible,
or has been materially adversely affected because (a) of any change in
applicable laws or regulations, or in the interpretation or
administration thereof by competent authorities, or (b) of any material
adverse change in or the termination of the London Interbank Eurodollar
Market for Eurodollars, or (c) there exists no adequate and fair means
for ascertaining the LIBOR Rate for any LIBOR Period for the LIBOR Loan,
then in any such case the Lender shall immediately give notice thereof
to the Borrower and thereafter the Lender shall have no further
obligation with respect to the requested LIBOR Loan provided that the
Borrower may elect to borrow the amount originally requested by it by
way of some other type of Accommodation upon compliance with the
applicable drawdown requirements.
5.4 Changes in Circumstances
In the event that on any date the Lender determines in good
faith (which determination shall be conclusive) that its ability to
maintain an outstanding LIBOR Loan has become unlawful or impossible
because of (a) any change in applicable laws or regulations, or in the
interpretation or administration thereof by competent authorities, or
(b) any material adverse change in or the termination of the London
Interbank Eurodollar Market for Eurodollars, or (c) the imposition by
any governmental authority of any condition, restriction or limitation
upon the Lender, then in any such case the Lender shall immediately give
notice thereof to the Borrower and the Borrower shall immediately repay
to the Lender the aggregate principal amount of all outstanding LIBOR
Loans together with all unpaid interest accrued thereon to the date of
repayment and all reasonable other expenses incurred in connection with
the termination (including without limitation any expenses resulting
from the termination of any LIBOR Period in accordance with Section
5.2). The Borrower may elect to re-borrow the amount repaid by way of
some other type of Accommodation.
5.5. Indemnity
The Borrower will, on demand, indemnify the Lender against
any reasonable loss or expense (including, but not limited to, loss of
profit relating to the Lender's spread over its cost of funds) which it
may sustain in employing deposits to effect, fund or maintain a LIBOR
Loan as a consequence of any failure by the Borrower to make any payment
when due of any amount due under this Agreement in connection with such
LIBOR Loan. The Borrower will, on demand, further indemnify the Lender
against any reasonable loss or expense (including, but not limited to,
loss of profit relating to the Lender's spread over its cost of funds)
which the Lender reasonably incurs as a result of the failure of the
Borrower to consummate any borrowing for which it has given notice to
the Lender. A certificate of the Lender as to such cost, setting out
the calculations therefor, shall be delivered to the Borrower and shall
be prima facie evidence of such costs in the absence of manifest error.
ARTICLE 6
LETTERS OF CREDIT AND LETTERS OF GUARANTEE
6.1 Conditions Precedent to Issuance
The Lender will issue Letters of Credit and Letters of
Guarantee under the Swing Line Credit on behalf of the Borrower upon
being reasonably satisfied as to the purpose, terms, conditions and
beneficiary(ies) thereof and upon execution by the Borrower of the
Lender's usual forms.
6.2 Issuance Fees
The Borrower shall pay to the Lender an issuance fee in
respect of each outstanding Letter of Credit and Letter of Guarantee at
a rate to be agreed upon by the Lender and the Borrower, which rate
shall not exceed three-quarters of one percent per annum.
Issuance fees in respect of Letters of Credit and Letters of
Guarantee shall be calculated on the maximum daily liability of the
Lender under the applicable Letter of Credit or Letter of Guarantee and
shall be payable in advance.
6.3 Payments Pursuant to Letters of Credit and Letters of
Guarantee
The Borrower shall forthwith reimburse the Lender for any
payment made by it pursuant to a Letter of Credit or Letter of
Guarantee, either by payment thereof in full or through utilization of
the Credits in accordance with this Agreement or through a combination
thereof.
6.4 Provision Upon Default
In the event that demand for payment is made upon the
occurrence of an Event of Default, the Borrower shall forthwith pay to
the Lender an amount equal to the Lender's maximum liability under each
outstanding Letter of Credit and Letter of Guarantee. Such amount shall
be held by the Lender for set-off against future indebtedness owing by
the Borrower to the Lender in respect of such Letters of Credit and
Letters of Guarantee.
ARTICLE 7
FORWARD EXCHANGE CONTRACTS AND INTEREST RATE SWAPS
7.1 Forward Exchange Contracts
Subject to the terms of this Agreement, the Borrower shall be
entitled, upon execution of the usual forms, to avail itself of the
Swing Line Credit to purchase Forward Exchange Contracts. In such event
the Borrower shall be deemed to have utilized the Swing Line Credit to
the extent of such percentage, as is reasonably determined by the
Lender, of the face amount of any such Forward Exchange Contract. The
Borrower shall deliver to the Lender a demand promissory note (bearing
the same rate of interest as a Prime Rate Loan) for any amount owing by
the Borrower in respect of a Forward Exchange Contract which is not paid
when the same becomes due and payable.
7.2 Interest Rate Swaps
Subject to the terms of this Agreement, the Borrower shall be
entitled, upon execution of the usual forms, to avail itself of the
Swing Line Credit to enter into Interest Rate Swaps. In such event the
Borrower shall be deemed to have utilized the Swing Line Credit with
respect to such Interest Rate Swaps by such amount as the Lender
reasonably deems from time to time to be the market risk for payments
which may become due thereunder. The Borrower shall deliver to the
Lender a demand promissory note (bearing the same rate of interest as a
Prime Rate Loan) for any amount owing by the Borrower with respect to an
Interest Rate Swap which is not paid when the same becomes due and
payable.
ARTICLE 8
REPAYMENT AND PREPAYMENT
8.1 Repayment
Subject to the provisions of Article 12, the Borrower shall
pay to the Lenders all outstanding Accommodation under Credit A on the
Maturity Date and all outstanding Accommodation under the Swing Line
Credit on the Swing Line Maturity Date.
8.2 Prepayment
The Borrower may at any time pay all or any outstanding
Accommodation under the Credits by providing the Agent with notice of
its intention to so pay in accordance with the notice periods set out in
Section 2.5(1) and the provisions of Sections 2.5(2) and 2.6 shall apply
to such payments mutatis mutandis. Any payment of a LIBOR Loan prior to
the expiry of the relevant LIBOR Period shall be subject to Section 5.3.
Any payment of Accommodation evidenced by Bankers' Acceptances, Letters
of Credit, Letters of Guarantee, Forward Exchange Contracts or Interest
Rate Swaps shall be made by delivering to the relevant Lender under
contractual arrangements reasonably satisfactory to such Lender, such
amounts as the Lender may be required to pay under such Accommodation.
8.3 Capital Adequacy, etc.
If the introduction after the date of this Agreement of or any
change in any applicable law, regulation, treaty or official directive
or regulatory requirement of Canada now or hereafter in effect (whether
or not having the force of law) or in the interpretation or
administration thereof by any court or by any judicial or governmental
authority charged with the interpretation or administration thereof, or
if compliance by any Lender with any request from any central bank or
other fiscal, monetary or other authority of Canada (whether or not
having the force of law):
(a) subjects a Lender to any cost or tax on or changes the basis
of taxation of payments due by the Borrower to such Lender or increases
any existing cost or tax on payments of principal, interest or other
amounts payable by the Borrower to such Lender under this Agreement
(except for increased costs or taxes which are fully reflected in the
Prime Interest Rate, the U.S. Base Rate, the LIBOR Rate or the Stamping
Fee charged by the Lenders in connection with Bankers' Acceptances, or
taxes on the overall net income of such Lender imposed by the
jurisdiction in which its principal or lending offices are located);
(b) imposes, modifies or deems applicable any reserve, special
deposit, regulatory or similar requirement against assets held by, or
deposits in or for the account of, or loans by, or commitment of, or any
other acquisition of funds for Accommodation under the Credits by a
Lender;
(c) imposes on a Lender a change in the manner in which such
Lender is required to allocate capital resources to its obligations
under this Agreement; or
(d) imposes on a Lender any other cost, tax or condition with
respect to this Agreement,
and the result of (a), (b), (c) or (d) is in the sole determination of
such Lender acting in good faith to increase the cost to such Lender, to
incur a liability or to reduce the income receivable by such Lender in
respect of the Credits, the Borrower shall pay to the Agent for the
benefit of such Lender that amount which indemnifies such Lender for
such additional cost, liability or reduction in income ("Additional
Compensation"). Upon such a determination by a Lender that it is
entitled to Additional Compensation, it shall promptly notify the Agent
and the Agent shall then promptly notify the Borrower. A certificate by
a duly authorized officer of the applicable Lender setting forth the
amount of the Additional Compensation and the basis for it must be
submitted by the Agent to the Borrower and is prima facie evidence, in
the absence of manifest error, of the amount of the Additional
Compensation. The Additional Compensation will accrue from the date of
delivery of the certificate to the Borrower.
If the Agent notifies the Borrower that Additional
Compensation is owed to a Lender, the Borrower has the right, at any
time thereafter on written irrevocable notice to the Agent, to make
payment in full without penalty or bonus to such Lender in respect of
the Accommodation which has given rise to the Additional Compensation on
the date specified in such notice together with the Additional
Compensation if any to the date of payment or at the Borrower's option
to convert such Accommodation into another type of Accommodation.
8.4 No Set-Off or Counterclaim
To the fullest extent permitted by law the Borrower shall make
all payments under this Agreement regardless of any rights of set-off or
any defense or counterclaim.
8.5 Withholding Taxes: Gross-up
All payments made under this Agreement shall be made
without deduction or withholding for or on account of any withholding
taxes. If the Borrower is required by law or by the administration
thereof to withhold or deduct withholding taxes, it shall pay to the
Lender such additional amounts as may be necessary in order that the net
amounts received by the Lender after such withholding or deduction
(including any required deduction or withholding on the additional
amount) shall equal the amount that the Lender would have received had
no deduction or withholding been made. The Lender shall exercise its
discretion in good faith as to whether or not it will seek any tax
benefit or credit in respect of such deduction or withholding provided
that the Lender shall remit to the Borrower any such tax benefit or
credit if and when received and shall notify the Borrower of (a) its
decision not to apply for any such tax benefit or credit and (b) the
reasons therefor. In addition, the Borrower shall forward to the Lender
within 60 days of making such payment to the governing or taxing
authority such tax receipts or other official documentation with respect
to the payment of the withholding taxes so deducted or withheld as may
be issued from time to time by such government or taxing authority.
Without limiting the foregoing, if the Lender shall become liable for
taxes as a result of a payment having been made by the Borrower to the
Lender without the withholding taxes required by law having been
deducted or withheld, the Borrower shall indemnify the Lender for any
taxes payable by the Lender in respect of any such payment.
8.6 Currency of Repayment
Each repayment or prepayment will be made in the currency or
currencies of the Accommodation being repaid or prepaid.
8.7 General
(1) The Borrower will ensure that no Bankers' Acceptance, LIBOR
Loan, Letter of Credit, Letter of Guarantee, Forward Exchange Contract
or Interest Rate Swap has a maturity date beyond the Swing Line Maturity
Date except for Bankers' Acceptances issued under Credit A which are not
to have a maturity date beyond the Maturity Date.
(2) If at any time the Cdn. Dollar Amount of Accommodation then
outstanding under the Swing Line Credit exceeds $10,500,000, the
Borrower will forthwith pay to the Swing Line Lender upon demand by the
Swing Line Lender the amount by which the Cdn. Dollar Amount of the
outstanding Accommodation exceeds $10,000,000 in order to reduce the
amount outstanding under the Swing Line Credit to $10,000,000.
ARTICLE 9
GUARANTEE
9.1 Guarantee
The present and future indebtedness and liability of the
Borrower to the Lenders, including the Swing Line Lender, under this
Agreement shall be supported by the guarantee of the Guarantor in favour
of the Agent, on behalf of the Lenders, in substantially the form set
out in Schedule H.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties of the Borrower
The Borrower represents and warrants to the Agent and each of
the Lenders as follows:
(a) it has been duly incorporated and is validly subsisting as a
corporation under the laws of Ontario; it is qualified to carry on its
business in each jurisdiction in which the nature of its business
requires qualification, except where failure to so qualify would not
have a material adverse effect on the business, assets, condition or
prospects, financial or otherwise, of the Borrower; it has the power and
authority to enter into and perform its obligations under the Documents
to which it is a party and all other instruments and agreements
delivered pursuant to any of the Documents and to own its property and
carry on its business as currently conducted; and it has obtained all
licences, permits and approvals from all governments, governmental
commissions, boards and other agencies required in respect of its
operations;
(b) the execution, delivery and performance of the Documents to
which it is a party and every other instrument or agreement delivered
pursuant to the Documents have been duly authorized by all requisite
action on the part of the Borrower and each of such documents has been
duly executed and delivered by the Borrower and constitutes a valid and
binding obligation against it enforceable in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium and similar
laws at the time in effect affecting the rights of creditors generally
and (ii) equitable remedies such as injunctions and specific performance
which may only be granted in the discretion of the court before which
they are sought;
(c) there are no actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened against or affecting it at law or
in equity or before or by any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or before
any arbitrator of any kind, which would result in any material adverse
change in its business, operations, prospects, properties, assets or
condition, financial or otherwise, or in its ability to perform its
obligations under any Document to which it is a party or any other
agreement or instrument delivered pursuant to this Agreement; it is not
aware of any existing ground on which any such action, suit or
proceeding might be commenced with any reasonable likelihood of success;
it is not in default with respect to any judgment, order, writ,
injunction, decree, award, rule or regulation of any court, arbitrator
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which, either separately or in the
aggregate, would result in any such material adverse change;
(d) it is not a party to any agreement or instrument which
materially adversely affects its ability to perform its obligations
under any of the Documents to which it is a party or any agreements or
instruments delivered pursuant to this Agreement which materially
adversely affects its business, operations, prospects, properties,
assets or condition, financial or otherwise;
(e) it is not subject to any restriction or any judgment, order,
writ, injunction, decree or award which materially adversely affects, or
to the best of its knowledge in the future will materially adversely
affect, its business, operations, prospects, properties, assets or
condition, financial or otherwise, or its ability to perform its
obligations under any of the Documents to which it is a party or any
agreements or instruments delivered pursuant to this Agreement;
(f) neither the execution nor delivery of the Documents to which
it is a party or any agreements or instruments delivered pursuant to
this Agreement, the consummation of the transactions herein and therein
contemplated, nor compliance with the terms of this Agreement or thereof
conflicts with or will conflict with, or results or will result in any
breach of, or constitutes a default under, any of the provisions of its
constating documents, articles or by-laws or any agreement, instrument,
court order or arbitration award to which it is a party or by which it
or any of its property and assets are bound or results or will result in
the creation or imposition of any mortgage, lien, charge or encumbrance
of any nature whatsoever upon its properties or assets or in the
contravention of any applicable law, rule or regulation of Canada or of
any jurisdiction in which it carries on business;
(g) all consents, approvals, authorizations, declarations,
registrations, filings, notices and other actions whatsoever required as
at the date of this Agreement in connection with its execution and
delivery of any of the Documents to which it is a party and all other
agreements or instruments delivered pursuant to this Agreement, and the
consummation of the transactions contemplated by this Agreement, have
been obtained, made or taken; and
(h) no event has occurred which constitutes a Default or an Event
of Default.
ARTICLE 11
COVENANTS
11.1 Covenants of the Borrower
So long as this Agreement is in force and except as otherwise
permitted by the prior written consent of the Required Lenders, and of
all the Lenders to the extent required by Section 15.4, the Borrower
covenants and agrees that:
(a) Corporate Existence. It will do or cause to be done all
things necessary to keep in full force and effect its corporate
existence and all properties, rights, franchises, licences and
qualifications required to carry on its business in each jurisdiction in
which it owns property or carries on business from time to time, except
where the failure to maintain any qualification would not have a
material adverse effect on the business, assets, condition or prospects,
financial or otherwise, of the Borrower;
(b) Insurance. It will maintain insurance of such types, in such
amounts and against such risks as is customary in the case of companies
engaged in a similar business with insurers;
(c) Compliance with Laws. It will comply with all applicable
governmental restrictions, laws and regulations and obtain and maintain
in good standing all material licences, permits, qualifications and
approvals from any and all governments, government commissions, boards
or agencies of jurisdictions in which it carries on business, except
where the failure to comply would not have a material adverse effect on
the business, assets, condition or prospects, financial or otherwise, of
the Borrower;
(d) Payment of Taxes. It will pay or cause to be paid all taxes,
government fees and dues levied, assessed or imposed upon it and its
property or any part thereof, as and when the same become due and
payable; provided that the Borrower may withhold or protest the payment
of any such taxes, fees or dues if it is acting in good faith;
(e) Event of Default. It will immediately notify the Agent of
the occurrence of any Default or Event of Default;
(f) Use of Accommodation. It will not request, use or permit any
Accommodation under the Credits to be used for any purpose other than
that set out in Section 2.2;
(g) Corporate Reorganization. It will not enter into any
transaction affecting its corporate structure or existence whether by
way of reconstruction, reorganization, consolidation, amalgamation,
merger or transfer, sale or lease of substantially all of its assets,
except for any reconstruction, reorganization, consolidation,
amalgamation or merger after giving effect to which no Event of Default
exists hereunder and the Borrower is the surviving entity;
(h) Compliance Certificate. It will provide the Agent with a
compliance certificate within 60 days following the last day of each
fiscal quarter of Borrower and within 95 days of each fiscal year end of
Borrower signed by an authorized officer of Borrower indicating that
Borrower is in compliance with the covenants and agreements contained in
Section 11.1 of this Agreement and that the representations and
warranties of the Borrower in Article 10 are true and correct in all
material respects as if made at the date of the certificate;
(i) Guarantor's Financial Statements. It will provide the Agent
for delivery to the Lenders:
(i) within 95 days after the end of each fiscal year of the Guarantor,
a consolidated balance sheet of Guarantor and its Subsidiaries as at the
close of such fiscal year and consolidated statements of earnings and
cash flows of the Guarantor and its Subsidiaries for such year,
certified by independent public accountants of national standing
selected by Guarantor;
(ii) within 15 days after the date of their filing, copies of all
reports on Forms 8-K, 10-Q and 10-K (or any substantially equivalent
reports at any time prescribed by applicable regulations) filed by the
Guarantor with the Securities and Exchange Commission;
(iii) promptly following any requests therefor, such other financial
data excluding projections (except in the event that the Guarantor's
then-current Rating Level is Level VI) as any Lender may reasonably
request from time to time; and
(iv) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each
fiscal year of the Guarantor, the unaudited consolidated condensed
balance sheet of the Guarantor and its Subsidiaries as at the end of
such quarterly period and the related unaudited consolidated condensed
statements of earnings and cash flows of the Guarantor and its
Subsidiaries for such quarterly period (except that the statement of
cash flows shall be on a year-to-date basis) and the portion of the
fiscal year through such date, setting forth in each case in comparative
form the figures for the previous year, certified by a Responsible
Officer (subject to normal year-end audit adjustments) in accordance
with U.S. GAAP (it being understood that delivery of a report on Form
10-Q filed by the Guarantor with the Securities and Exchange Commission
for the relevant quarter shall satisfy the requirements of this clause
(iv)).
All of the above financial statements delivered hereunder shall be
prepared in accordance with U.S. GAAP and stated in U.S. Dollars.
(j) Guarantor's Compliance Certificate. It will provide to the
Agent for delivery to the Lenders at the time of the delivery of each
set of financial statements of the Guarantor pursuant to Subsections
11.1(i) (i), (ii) and (iv), the Guarantor's Compliance Certificate
signed by a Responsible Officer of the Guarantor.
ARTICLE 12
EVENTS OF DEFAULT
12.1 Events of Default
Any one or more of the following events shall constitute an
Event of Default under this Agreement:
(a) Default in Payment - If the Borrower fails to repay any
indebtedness on account of principal or interest or any other amount
payable under this Agreement on the due date and such default continues
for a period of 5 Business Days or more after written notice has been
delivered by the Agent.
(b) Defaults under this Agreement - Subject to Section 12.1 (a),
if the Borrower defaults in the performance or observance of any
covenant or agreement contained in this Agreement, provided that no such
Default shall constitute an Event of Default if, being capable of
remedy, it is remedied within 15 days of the Agent giving notice to the
Borrower of such default (or such longer period as the Required Lenders
may designate in their sole discretion in situations where the Borrower
is diligently proceeding to remedy a Default that is capable of being
remedied and the required Lenders are satisfied, in their sole
discretion, that they are not being prejudiced by the continuance of the
Default).
(c) Representations and Warranties - If any representation,
warranty or statement made in this Agreement, the Guarantee or any
certificate or other document delivered to the Agent or any of the
Lenders pursuant to this Agreement is untrue or incorrect in any
material respect when made.
(d) Default under Other Agreements with Lenders - If the Borrower
defaults in the performance or observance of any material term,
condition, representation or covenant contained in any agreement between
the Borrower and the Agent or any of the Lenders which agreement
involves more than $10,000,000 (other than this Agreement) and such
default continues for a period of 30 days or more after written notice
thereof to the Borrower.
(e) Default in other Indebtedness - If any event of default as
defined in any instrument or agreement (other than this Agreement) shall
occur such that any of the indebtedness or liability of the Borrower in
excess of $10,000,000 under such instrument or agreement is declared due
and payable prior to the date on which the same would otherwise become
due and payable or if the Borrower defaults in the payment of any
principal amount in excess of $10,000,000 (other than to the Agent or
any of the Lenders) which has become due and payable.
(f) Winding-up, etc. - If an order is made or an effective
resolution passed for the winding-up, liquidation or dissolution of the
Borrower.
(g) Insolvency, etc. - If the Borrower consents to or makes a
general assignment for the benefit of creditors or makes a proposal or
files a notice of intention to file a proposal under the Bankruptcy Act,
or is declared bankrupt, or if a liquidator, trustee in bankruptcy,
custodian or receiver and manager or other officer with similar powers
is appointed of the Borrower or of its property or any part thereof and
such appointment is not being contested in good faith by the Borrower or
if the Borrower seeks the benefit of any insolvency law.
(h) Judgments - If a final judgment for an amount in excess of
$10,000,000 (which amount has not been paid or is not covered by
insurance) is rendered against the Borrower and, within 60 days after
entry thereof, such judgment has not been discharged or execution
thereof stayed pending appeal or if, within 60 days after the expiration
of any such stay, such judgment has not been discharged.
(i) Guarantee - If the Guarantee, or any part thereof, ceases at
any time after its execution and delivery to constitute in favour of any
of the Agent or the Lenders a security instrument in the manner
contemplated by this Agreement or if the Guarantor is in default with
respect to any of the provisions of the Guarantee; provided that, with
respect to Section 19 of the Guarantee, there shall be no default in the
performance or breach of such provision unless the failure to comply
with such provision continues for a period of 30 days.
(j) International Multifoods Corporation Credit Agreement - If
there occurs an Event of Default under the Multifoods Credit Agreement
which for the purposes of this Agreement shall be deemed to be in
existence in the event that it is terminated.
12.2 Acceleration
On the occurrence of any Event of Default, the Agent in its
discretion may, and on written request by the Required Lenders shall, by
written notice to the Borrower, take any or all of the following
actions: (a) declare the principal of and accrued interest owing in
respect of the Credits to be, and the same shall thereupon become,
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Borrower; (b) declare the Commitments and the Swing Line Commitment
terminated, whereupon the Commitment of each Lender and the Swing Line
Commitment shall terminate immediately and all amounts payable under the
Credits shall immediately become due and payable without any further
notice of any kind; (c) demand on the Guarantee as provided for therein;
and (d) without limitation, proceed by any other action, suit, remedy or
proceeding authorized or permitted by this Agreement or by law or by
equity.
12.3 Remedies Cumulative
The rights and remedies of the Agent and the Lenders under
this Agreement are cumulative and in addition to and not in substitution
for any rights or remedies provided by law.
12.4 Availability of Accommodation after Demand or Default;
Appropriation
(1) The Agent and each Lender may from time to time when a Default
or an Event of Default has occurred and is continuing, refuse to grant
any further Accommodation to the Borrower under the Credits. The
Lenders may also refuse to permit any switches or rollovers of
outstanding Accommodation other than to Prime Rate Loans and may
appropriate any moneys received in or towards payment of such of the
indebtedness and liability of the Borrower to the Lenders under this
Agreement as each Lender in its discretion may see fit and the Borrower
shall not have any right to require any inconsistent appropriation.
(2) If any Lender shall at any time receive payment or
satisfaction of all or any part of its loans, interest thereon or any
other amount payable under this Agreement or under the Notes with
respect to the Credits by whatever means in a proportion which, in
relation to any amounts received by any other Lender or Lenders,
represents more than the percentage of its Commitment or the Swing Line
Commitment as the case may be for the time being of the aggregate
outstanding Commitments and the Swing Line Commitment, then such Lender
shall pay to the other Lenders such amount as will ensure that each
Lender will receive a proportion of such payment equal to the percentage
that its Commitment or Swing Line Commitment bears to the aggregate of
the outstanding Commitments and the Swing Line Commitment.
Accommodation under Credit A and the Swing Line Credit shall rank pari
passu.
(3) In the event that at any time any Lender shall be required to
refund (as a preference or otherwise) any amount which has been paid to
or received by it on account of any part of its loans, interest thereon
or any other amount payable under this Agreement or under the Notes and
which has been paid to any other Lender pursuant to this Section 12.4,
such other Lender shall repay a proportionate amount of the sums so
refunded without interest, or, as the case may be, repurchase for cash
from the first-mentioned Lender a proportionate part of the indebtedness
of the Borrower to the first-mentioned Lender.
(4) If a Lender is required to make any payment to any other
Lender pursuant to this Section 12.4, it shall give notice thereof to
the Agent and, at the option of the Lender making such payment, (a)
subject to Subsection 12.4(3) of this Agreement, the liability of the
Borrower to the Lender making such payment under this Agreement shall be
treated as not having been reduced by the amount of such payment and the
liability of the Borrower to any Lender receiving such payment shall be
treated as having been reduced by the amount of the payment received by
such Lender or (b) the Borrower shall fully indemnify the Lender making
such payment for the amount of any payment made pursuant to this Section
12.4.
12.5 Non-Merger
The taking of a judgment or judgments or any other action or
dealing whatsoever by the Agent or any Lender in respect of the
Guarantee shall not operate as a merger of any indebtedness or liability
of the Borrower to the Agent or any of the Lenders or in any way suspend
payment or affect or prejudice the rights, remedies and powers, legal or
equitable, which the Agent or any Lender may have in connection with
such liabilities and the surrender, cancellation or any other dealings
with any security for such liabilities shall not release or affect the
liability of the Borrower under this Agreement.
12.6 Currency Indemnity
Any payment on account of an amount payable under this
Agreement in a specified currency made to or for the account of any
Lender in a currency other than the specified currency pursuant to a
judgment or order of a court or tribunal of any jurisdiction shall
constitute a discharge of the obligation under this Agreement only to
the extent of the amount of the specified currency which such Lender is
able, on the date of receipt of such payment, to purchase in Toronto,
Ontario with the amount so received by it. If the amount of the
specified currency which such Lender is so able to purchase is less than
the amount of the specified currency originally due to it, the Borrower
shall indemnify and save harmless such Lender from and against any loss
or damage arising as a result of such deficiency. This indemnity shall
constitute an obligation separate and independent from the other
obligations contained in this Agreement, shall give rise to a separate
and independent cause of action, shall apply irrespective of any
indulgence granted by any Lender from time to time and shall continue in
full force and effect notwithstanding any judgment or order for a
liquidated sum in respect of an amount due under this Agreement or under
any judgment or order.
ARTICLE 13
CONDITIONS PRECEDENT TO ACCOMMODATION
13.1 General
(1) The Borrower shall deliver or have delivered to the Agent
for the Lenders at the time of execution of this Agreement the following
documents:
(a) copies of the charter documents of the Borrower and the
Guarantor, certified by the Secretary of the Borrower and the Guarantor,
respectively ;
(b) certified copies of all corporate action taken by the
Borrower to authorize the execution and delivery of the Documents to
which it is a party and all other agreements or instruments to be
delivered by it pursuant to this Agreement;
(c) certified copies of all corporate action taken by the
Guarantor to authorize the Guarantee;
(d) the Notes;
(e) the Guarantee; and
(f) the opinions of counsel for the Borrower and the Guarantor
acceptable to the Agent and the Lenders (substantially in the forms of
Schedule J and Schedule K, respectively).
(2) The Borrower shall deliver to the Agent on or before the date
on which the Borrower first requests Accommodation under either of the
Credits the following documents:
(a) the necessary Notice of Borrowing required under this
Agreement;
(b) a certificate of the Borrower, executed by a senior officer
of the Borrower and dated the date on which the Accommodation is to be
granted certifying that as at such date:
(i) no Default or Event of Default has occurred and is continuing; and
(ii) the representations and warranties of the Borrower contained in
Article 10 of this Agreement are true and correct in all material
respects as if made at the date of the certificate.
(3) Prior to the second and each subsequent request made by the
Borrower for Accommodation under the Credits, the Borrower shall deliver
to the Agent all necessary Notes and documents respecting the granting
of Accommodation under this Agreement.
13.2 Opinion of Lenders' Counsel
Neither the Agent nor any of the Lenders shall be required to
make any Accommodation available under the Credits until the Agent and
the Lenders have received a satisfactory legal opinion of the Lenders'
counsel regarding such legal matters incident to the Documents and the
transactions provided for or contemplated herein or therein as they have
reasonably requested.
ARTICLE 14
THE AGENT
14.1 Appointment
The Lenders appoint Canadian Imperial Bank of Commerce
("CIBC") to act as Agent for the Lenders in the manner and on the terms
provided in this Agreement. Except as may be specifically provided to
the contrary in this Agreement, each of the Lenders irrevocably
authorizes CIBC, as the Agent for such Lender, to take such action on
its behalf under the provisions of the Documents and any other
instruments and agreements referred to in them, and to exercise such
powers and to perform such duties under such documents as are delegated
to the Agent by the terms of those documents, together with such other
powers as are reasonably incidental thereto which may be necessary for
the Agent to exercise in order that the provisions of the Documents are
carried out. The Agent shall only be required to exercise such powers
and perform such duties as Agent under this Agreement as it shall be
instructed to exercise from time to time by the Lenders.
14.2 Delegation of Duties
The Agent may perform any of its duties under any Document or
any other instruments and agreements referred to therein by or through
its agents or employees and shall be entitled to the advice of counsel
concerning all matters pertaining to its duties.
14.3 Indemnity
The Lenders agree to indemnify the Agent (to the extent not
reimbursed by the Borrower) ratably according to their Commitments and
the Swing Line Commitment from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any nature or kind whatsoever which
may be imposed on, incurred by, or asserted against the Agent in such
capacity in any way relating to or arising out of the Documents and any
other instruments and agreements referred to in them or any action taken
or omitted by the Agent under the Documents or any other instruments and
agreements referred to in them; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct.
Without limiting the generality of the foregoing, each Lender agrees to
reimburse the Agent promptly on demand for its ratable share as above
described of out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by the Agent in connection with the
determination or preservation of any rights of the Agent or the Lenders
under, or the enforcement of, or legal advice in respect of rights or
responsibilities under, the Documents or any other instruments and
agreements referred to in them, to the extent that the Agent is not
reimbursed for such expenses by the Borrower on demand. In addition,
the Agent may refrain from exercising any right, power or discretion or
taking any action to protect or enforce the rights of any Lender under
the Documents or any other instruments and agreements referred to in
them until it has been indemnified or secured to its satisfaction
against any and all costs, losses, expenses or liabilities (including
legal fees) which it would or might sustain or incur as a result of such
exercise or action.
14.4 Exculpation
The Agent shall have no duties or responsibilities except
those expressly set out in this Agreement. Neither the Agent nor any of
its officers, directors, employees or agents shall be liable for any
action taken or omitted to be taken under this Agreement or in
connection with it, unless caused by its or their gross negligence or
willful misconduct. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender and nothing
in this Agreement, expressed or implied, is intended to, or shall be
construed so as to, impose on the Agent any obligation except as
expressly set out in this Agreement. The Agent shall not be responsible
for any recitals, statements, representations or warranties herein or
which may be contained in any document subsequently received by the
Agent or for the authorization, execution, effectiveness, genuineness,
validity or enforceability of the Documents or any other instruments and
agreements referred to therein and shall not be required to make any
inquiry concerning the performance or observance of any of the terms,
provisions or conditions of the Documents or any other instruments and
agreements referred to therein. Each of the Lenders severally
represents and warrants to the Agent that it has made and will continue
to make such independent investigation of the financial condition and
affairs of the Borrower and related parties as such Lender deems
appropriate in connection with its entering into this Agreement and the
making and continuance of borrowings under the Credits, that such Lender
has and will continue to make its own appraisal of the creditworthiness
of the Borrower and related parties and that such Lender in connection
with such investigation and appraisal has not relied upon any
information provided to such Lender by the Agent. The Agent may at any
time request instructions from the Lenders with respect to any actions
or approvals which, by the terms of this Agreement, the Agent is
permitted or required to take or to grant, and the Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any person
for refraining from taking any action or withholding any approval under
this Agreement until it has received such instructions from the Required
Lenders or all of the Lenders, as applicable. No Lender shall have any
right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting under this Agreement in accordance with
instructions received from the Required Lenders or all of the Lenders,
as applicable.
14.5 Reliance
The Agent shall be entitled to rely upon any writing, notice,
statement, certificate, telex, teletype message, cablegram, facsimile,
order or other document or telephone conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
person or persons, and, with respect to all legal matters pertaining to
this Agreement and its duties under this Agreement, upon the advice of
counsel selected by it.
14.6 Exchange of Information
The Borrower agrees that the Agent and each Lender may provide
to the other Lenders or the Agent such information on a confidential
basis concerning the financial position, property and operations of the
Borrower, the Guarantor and their respective Subsidiaries as in the
opinion of the Agent or such Lender is relevant to the ability of the
Borrower to fulfil its obligations under or in connection with this
Agreement, provided that the Agent shall not be under any obligation to
disclose any information to any of the Lenders in respect of the
Borrower, the Guarantor and their respective Subsidiaries, other than
providing to such Lenders forthwith copies of this Agreement, the
Guarantee, financial statements not distributed directly to the Lenders
by the Borrower, and copies of any certificates and other notices
delivered by the Borrower pursuant to this Agreement. Any such
information received by the Agent and the Lenders which is not publicly
available shall be considered confidential and shall not be disclosed by
the Agent or any Lender without the prior written consent of the
Borrower and the Guarantor or as may be required by law. The Agent and
each Lender receiving such confidential information will take all
reasonable precautions necessary (a) to safeguard the confidential
information from disclosure to anyone other than a limited number of
appropriate officers, directors, examiners, auditors and agents of the
Agent or the Lenders who have a need to have access to the confidential
information and (b) to ensure that all of such persons who have access
to the confidential information will keep it confidential.
14.7 The Agent, Individually
With respect to its Commitment and the Swing Line Commitment,
the Accommodation granted by it under the Credits and any Notes issued
to it, the Agent shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it
were not the Agent, and the term "Lenders" or any similar terms shall,
unless the context clearly indicates otherwise, include the Agent in its
individual capacity. It is understood and agreed by all of the Lenders
that the Agent may accept deposits from, lend money to, and generally
engage in banking business with the Borrower and its Subsidiaries as if
it were not the Agent under this Agreement including the right to
refinance the Credits.
14.8 Resignation
If at any time the Agent deems it advisable, in its sole
discretion, it may deliver to each of the Lenders and the Borrower
written notification of its resignation insofar as it acts on behalf of
the Lenders pursuant to this Article 14, such resignation to be
effective on the date of the appointment of a successor by all of the
Lenders, which appointment shall be promptly made and written notice
thereof given to the Borrower concurrently with such appointment. If no
such appointment has been made within 30 days, the resigning Agent may
make such appointment on behalf of the Lenders and shall forthwith give
notice of such appointment to the Lenders and the Borrower.
14.9 Meetings of Lenders
Except with respect to any approval, instruction or other
expression referred to in Section 15.4, an approval, instruction, waiver
or other expression of the Lenders (including, subject to Section 15.4,
any amendment to the terms of this Agreement) may be obtained by
instrument in writing as provided in the next paragraph or may be
included in a resolution that is submitted to a meeting or adjourned
meeting of all Lenders duly called and held for the purpose of
considering the same as hereinafter provided and shall be deemed to have
been obtained if such resolution is passed by the affirmative vote of
the Required Lenders given on a poll of such Lenders with respect to
such resolution. A meeting of Lenders may be called by the Agent and
shall be called by the Agent on the request of any two Lenders. Every
meeting shall be held in the city where the head office of the Agent is
situated or at such other reasonable place as the Agent may approve. At
least 10 Business Days notice of the time and place of any meeting
shall be given to the Lenders and shall include or be accompanied by a
draft of the resolution to be submitted to the meeting, but the notice
may state that such draft is subject to amendment at the meeting or any
adjournment thereof. The Lenders who are present in person or by proxy
at the time and place specified in the notice shall constitute a quorum.
A person nominated in writing by the Agent shall be chairman of the
meeting. Upon every poll taken at any meeting, each Lender who is not
in default hereunder who is present in person or represented by a proxy
duly appointed in writing (who need not be a Lender) shall be entitled
to one vote in respect of each dollar of principal amount of outstanding
Accommodation which it is then owed under the Credits, calculated as of
the Business Day first preceding the day of the meeting. In respect of
all matters concerning the convening, holding and adjourning of Lenders'
meetings, the form, execution and deposit of instruments, appointing
proxies and all other relevant matters, the Agent may from time to time
make reasonable regulations not inconsistent with this Section 14.9 as
it shall deem expedient and any regulations as made by the Agent shall
be binding on the Borrower, the Agent and the Lenders. A resolution
passed pursuant to this Section 14.9 shall be binding on all Lenders,
and the Agent (subject to the provisions for its indemnity in this
Agreement) shall be bound to give effect thereto accordingly.
Any approval, instruction or other expression that is
specifically stated to be required of the Required Lenders or under
Section 15.4 may be obtained either by a resolution passed at a meeting
of Lenders called and held in accordance with this Section 14.9 or by an
instrument in writing signed in one or more counterparts by the
applicable Lenders.
14.10 Provisions for Benefit of Lenders Only
The provisions of this Article 14 relating to the rights and
obligations of the Agent and the Lenders inter alia shall be operative
as between the Agent and the Lenders only, and the Borrower shall not
have any rights under or be entitled to rely for any purposes upon such
provisions.
14.11 Arrangements for Repayment of Accommodation
Prior to an acceleration of the payment of amounts outstanding
under this Agreement pursuant to Section 12.2, on receipt by the Agent
of payments from the Borrower on account of principal, interest, fees or
any other payment made to the Agent on behalf of the Lenders with
respect to Credit A the Agent shall pay over to each Lender the amount
to which it is entitled under this Agreement. Such payment shall be
made promptly following receipt and, in any event, the Agent shall use
reasonable efforts to pay to each Lender at the applicable Lender's
branch of account such amount on the same Business Day as such amount is
received by the Agent.
14.12 Repayment by Lenders to Agent
(1) Unless the Agent has been notified in writing by the Borrower
at least one Business Day prior to the date on which any payment to be
made by the Borrower with respect to Credit A under this Agreement is
due that the Borrower does not intend to remit such payment, the Agent
may, in its discretion, assume that the Borrower has remitted such
payment when so due and the Agent may, in its discretion and in reliance
on such assumption, make available to each Lender on such payment date
an amount equal to such Lender's rateable portion of such assumed
payment. If the Borrower does not in fact remit such payment to the
Agent, without restricting the obligation of the Borrower to make such
payment, the Agent shall promptly notify each Lender and each such
Lender shall forthwith on demand repay to the Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon until the date of repayment thereof at a rate determined by the
Agent (such rate to be conclusive and binding on such Lender) in
accordance with the Agent's usual banking practice for such advances to
financial institutions of like standing to such Lender, but in any event
at a rate no greater than the usual interbank offered rate for the sale
of deposits in the applicable currency.
(2) Unless the Agent has been notified in writing by a Lender at
least one Business Day prior to a drawdown date that such Lender does
not intend to make available its proportion of any Accommodation under
Credit A, the Agent may, in its discretion, assume that such Lender has
remitted funds to the Agent and the Agent may, in its discretion and in
reliance on such assumption, make available to the Borrower on such
drawdown date an amount equal to such Lender's proportion of such
Accommodation. If a Lender does not in fact remit such funds to the
Agent, without restricting the obligation of such Lender to make such
funds available, the Agent shall promptly notify such Lender and the
Borrower shall forthwith on demand repay to the Agent the amount made
available by the Agent on behalf of such Lender, together with interest
thereon until the date of repayment thereof at a rate determined by the
Agent (such rate to be conclusive and binding on such Lender and the
Borrower) in accordance with the amount payable under this Agreement for
a Prime Rate Loan.
ARTICLE 15
MISCELLANEOUS
15.1 Payments to the Lenders
(1) All payments required to be made by the Borrower under this
Agreement shall be made in immediately available funds and amounts
payable by the Borrower to the Lenders under this Agreement on account
of interest, Stamping Fees and Facility Fees shall be paid by the Agent
debiting the same to a designated account maintained with the Agent (for
the Borrower).
(2) Except as provided for in Subsection 2.3(1), all payments
required to be made by the Agent to the Lenders under this Agreement in
connection with Credit A shall be made on a pro rata basis in accordance
with the then outstanding amount of each Lender's Commitment.
15.2 Fees and Expenses
(1) The Borrower agrees to pay all reasonable out-of-pocket
expenses, including reasonable legal fees and disbursements, now or
hereafter paid or incurred by the Agent on behalf of the Lenders or by
the Swing Line Lender in connection with the preparation of the
Documents and all other agreements or instruments delivered pursuant to
this Agreement, including any amendment thereof whether or not the
transactions contemplated by this Agreement are consummated.
(2) The Borrower agrees to reimburse the Agent on behalf of the
Lenders, on demand, for all reasonable sums charged by it or them on its
own behalf or paid to others on account of expenses incurred or services
rendered (expressly including legal advices and services) in connection
with the administration, maintenance and enforcement of this Agreement
and/or any Lender's Acknowledgement, and the Guarantee after any default
by the Borrower or any demand on the Borrower.
(3) The Borrower shall pay or indemnify the Lenders against any
and all registration fees and similar taxes or charges which may be
payable or determined to be payable under Canadian law in connection
with the execution, delivery, performance, registration or enforcement
of this Agreement or any other Document or any of the transactions
contemplated hereby or thereby, subject to the provisions of Sections
5.4, 8.3 and 8.5.
15.3 Fees Related to the Credit
(a) The Borrower shall pay to the Agent on behalf of the Lenders a
Facility Fee equal to the rate per annum then applicable as set out in
the Pricing Grid, calculated on the aggregate of the Commitments on a
daily basis beginning on the date of the execution of this Agreement and
continuing until the Maturity Date, such fee to be payable quarterly in
arrears on the last day of each March, June, September and December
commencing on June 30, 1996 with the fee for the period from the end of
the last quarter for which the Facility Fee has been paid to the
Maturity Date payable on the Maturity Date.
(b) The Borrower will pay to the Agent for the Agent's account,
such fee as agreed between the Agent and the Borrower.
(c) The Borrower shall pay to the Swing Line Lender a fee equal to
one-eighth of one percent per annum calculated on the amount of the
Swing Line Commitment on a daily basis beginning on the date of the
execution of this Agreement and continuing until the Swing Line Maturity
Date, such fee to be payable quarterly in arrears on the last day of
each of March, June, September and December commencing on June 30, 1996
with the fee for the period from the end of the last quarter for which
the facility fee has been paid to the Swing Line Maturity Date payable
on the Swing Line Maturity Date.
15.4 Amendment, Waiver, etc.
Subject to the provisions of this Section 15.4, the Agent or
the Lenders and the Borrower may, from time to time, enter into written
amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the
rights of the Lenders or the Borrower hereunder or waiving, on such
terms and conditions as may be specified in such instrument, any of the
requirements of this Agreement or any Default or Event of Default and
its consequences. No waiver or delay on the part of the Agent or any of
the Lenders in exercising any right or privilege under this Agreement
shall operate as a waiver thereof unless made in writing and signed by
an authorized officer of the Agent; provided however that no amendment,
waiver or consent, unless in writing and signed by all of the Lenders,
shall be effective to do any of the following: (a) reduce or forgive the
payment of any principal, interest, Stamping Fees or any other amount
payable by the Borrower pursuant to this Agreement; (b) postpone the
date for payment of any amount payable by the Borrower pursuant to this
Agreement; (c) release or discharge the Guarantee; (d) increase the
Commitments of the Lenders or the Swing Line Commitment or subject the
Lenders to any additional obligations; (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Credits,
or the proportion of Lenders, which shall be required for the Lenders or
any of them to take any action under this Agreement; (f) amend this
Section 15.4 or Section 15.10; or (g) amend the definition of "Required
Lenders"; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent and all of the Lenders,
affect the rights or duties of the Agent under this Agreement. No
written waiver shall preclude the further or other exercise by the Agent
or any of the Lenders of any right, power or privilege under this
Agreement, or extend to or apply to any further Event of Default. The
Borrower shall be entitled to rely without further enquiry on any
document or instrument and on any approval, instruction, waiver or other
expression given to it by the Agent purporting to indicate, and
reasonably believed by the Borrower to be genuine, that any requisite
waiver, consent or approval of the Lenders hereunder has been obtained
or granted.
15.5 Further Assurances
The Borrower shall from time to time immediately on the
Agent's request do, make and execute all such further assignments,
documents, acts, matters and things (other than security documents) as
may be reasonably required by the Agent with respect to this Agreement
in accordance with the terms of this Agreement to give effect to these
presents.
15.6 Dealings by Agent and Lenders
The Agent and each of the Lenders may grant extensions of time
and other indulgences, take and give up securities, accept compositions,
grant releases and discharges and otherwise deal with the Borrower,
debtors of the Borrower and others and any securities as they may see
fit without prejudice to the liability of the Borrower under this
Agreement or the Lender's right to hold and enforce this Agreement and
any of its rights and remedies.
15.7 Notices
Any notice or communication to be given under this Agreement
may be effectively given by delivering the same at the addresses
hereinafter set out or by sending the same by prepaid registered mail or
facsimile to the parties at such addresses. Any notice so mailed shall
be deemed to have been received five days following the mailing thereof
provided the postal service is in operation during such time and any
notice sent by facsimile shall be deemed to have been received on
transmission. The mailing addresses and facsimile numbers of the
parties for the purposes of this Agreement shall respectively be:
in the case of the Borrower:
Robin Hood Multifoods Inc.
60 Columbia Way
Markham, Ontario, L3R 0C9
Attention: Secretary Treasurer
Facsimile No.: (905) 940-0742
with a copy to:
International Multifoods Corporation
Multifoods Tower
33 South 6th Street
P.O. Box 2942
Minneapolis, Minnesota 55402
Attention: Vice President and General Counsel
Treasurer
Facsimile No.: (612) 340-6502
in the case of the Agent:
Canadian Imperial Bank of Commerce
Commerce Court West, 7th Floor
Toronto, Ontario, M5L 1A2
Attention: Manager, Agency Administration
Facsimile No.: (416) 980-5151
in the case of CIBC as Lender:
Canadian Imperial Bank of Commerce
Commerce Court West, 7th Floor
Toronto, Ontario, M5L 1A2
Attention: Director, Cross Border Group
Facsimile No.: (416) 980-8384
in the case of the Guarantor:
International Multifoods Corporation
Multifoods Tower
33 South 6th Street
P.O. Box 2942
Minneapolis, Minnesota, 55402
Attention: Vice President and General Counsel
Treasurer
Facsimile No.: (612) 340-6502
The address and facsimile number of each Lender is set out in
the execution pages of this Agreement or the applicable Lender's
Acknowledgement or where CIBC is the Lender, the address or facsimile
number of CIBC set out above.
The Borrower, the Guarantor, the Agent or any Lender may from
time to time notify each other, in accordance with the provisions of
this Agreement, of any change of address or facsimile number which
thereafter, until changed by like notice, shall be the address or
facsimile number of such party for all purposes of this Agreement.
15.8 Assignment and Participations
(1) A Lender, including the Agent, may with the prior written
consent of the Borrower (which consent shall not be unreasonably
withheld) at any time sell, transfer or assign any of its rights or
obligations under this Agreement to one or more Eligible Assignees,
provided that (a) any such assignment of a Lender's Commitment or the
Swing Line Commitment hereunder must be at least a minimum of
$10,000,000 and in no event without the written consent of the Borrower,
which may be withheld for any reason, shall any assignment be made which
would lower a Lender's Commitment below $15,000,000 after giving effect
to such assignment, (b) the Borrower may withhold consent to such
assignment in the event the Borrower, in the exercise of its good faith
business judgment, determines that such assignment would adversely
affect the Borrower, and (c) such assignee executes a Lender's
Acknowledgment in the form attached hereto as Schedule A. The costs and
expenses of such assignment shall be borne by the applicable Lender or
assignee and the Borrower agrees to execute such documentation as may
reasonably be required by such Lender to acknowledge and complete the
assignment. Upon completion of such assignment, the assignee will be
entitled to the assigned rights and obligations of the Lender to the
same extent as if the assignee were an original party in respect thereof
to this Agreement and the Lender as assignor shall be released and
discharged accordingly.
(2) A Lender, including the Agent, may with the prior written
consent of the Borrower (which consent may be withheld for any reason)
at any time sell to one or more banks or other entities ("Participants")
participating interests in any Prime Rate Loan owing to such Lender or
any Note or Bankers' Acceptance accepted by such Lender. In the event
of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement shall remain
unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender
shall remain the holder of any such Note and the acceptor of any
Bankers' Acceptance accepted by such Lender for all purposes under this
Agreement, all amounts payable by the Borrower under this Agreement
shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement.
(3) Any Lender may disclose with the prior written consent of the
Borrower (which consent shall not be unreasonably withheld), on a
confidential basis in accordance with Section 14.6, to a potential
assignee which has been approved by the Borrower under subsection
15.8(1) or with the prior written consent of the Borrower, to any
potential Participant which has been approved under Section 15.8(2),
such information about the Borrower, the Guarantor and their respective
Subsidiaries as such Lender may see fit; provided that such potential
assignee or potential Participant agrees in writing to keep such
information confidential to the same extent as required of the Lenders
hereunder.
15.9 Survival
This Agreement shall continue in full force and effect so long
as any indebtedness or liability is due and payable to the Agent or any
of the Lenders in respect of the Credits unless it is varied or
terminated in writing. All agreements, representations, warranties and
covenants of the Borrower made herein or in any document delivered by or
on behalf of the Borrower to the Agent or any of the Lenders pursuant to
the provisions of this Agreement or otherwise shall be deemed to have
been relied on by the Agent and the Lenders notwithstanding any
investigation heretofore or hereafter made by the Agent or any of the
Lenders, their respective solicitors or any representative of the Agent
or any of the Lenders and shall survive the execution of this Agreement
and the granting of Accommodation under the Credits until repayment in
full of all amounts owing to the Agent and the Lenders.
15.10 Successors and Assigns
This Agreement shall be binding on and shall enure to the
benefit of the Borrower, the Agent and each Lender and their respective
successors and permitted assigns, provided that the Borrower shall not
assign any of its rights or obligations under this Agreement without the
prior written consent of all of the Lenders. No part of any Credit may
be assigned by a Lender to a non-resident of Canada within the meaning
of the Income Tax Act (Canada) and no non-resident of Canada may
participate in the Credits. No Lender will book any part of the Credits
outside of Canada.
15.11 Governing Law
The Documents and all certificates and other instruments
delivered to the Agent or the Lenders pursuant to this Agreement shall
be construed and interpreted in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein.
15.12 Severability
Any term of this Agreement which is void or unenforceable in
any jurisdiction is, as to that jurisdiction, ineffectual to that extent
without invalidating the remaining provisions of this Agreement.
15.13 Entire Agreement
There are no representations, warranties, covenants,
indemnities or other agreements binding on the Borrower relating to the
subject matter hereof except as stated or referred to herein.
15.14 Counterparts
This Agreement may be executed in two or more counterparts,
either in original or telecopy form, each of which shall constitute an
original and all of which together shall constitute one and the same
agreement.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the date first above written.
ROBIN HOOD MULTIFOODS INC.
By: /s/ ALLAN C. TURNER
Name: ALLAN C. TURNER
Title: SECRETARY TREASURER
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent
By: /s/ DOUG ZINKIEWICH
Name: DOUG ZINKIEWICH
Title: DIRECTOR
Commitment: $35,000,000 CANADIAN IMPERIAL BANK OF
Swing Line Commitment: $10,000,000 COMMERCE, as Lender
Address: By: /s/ DOUG ZINKIEWICH
North American Corporate Banking Name: DOUG ZINKIEWICH
Commerce Court West, 7th Floor Title: DIRECTOR
Toronto, Ontario, M5L 1A2
Attention: Mr. D. Zinkiewich
Director
Telephone: (416) 980-5311
Facsimile: (416) 980-8384
Commitment: $35,000,000 THE TORONTO-DOMINION BANK,
as Lender
Address: By: /s/ David Pankhurst
Corporate & Investment Name: DAVID PANKHURST
Banking Group Title: MANAGER
Toronto-Dominion Tower, 2nd Floor
Toronto, Ontario, M5K 1A2
Attention: Ms. L. Williams
Credit Administration Officer
Telephone: (416) 982-7671
Facsimile: (416) 982-6630
Commitment: $30,000,000 THE BANK OF NOVA SCOTIA,
as Lender
Address: By: /s/ JUDY MCKAY
Corporate Banking Name: JUDY MCKAY
44 King Street West, 16th Floor Title: RELATIONSHIP MANAGER
Toronto, Ontario, M5H 1H1
Attention: Ms. J. McKay
Relationship Manager
Telephone: (416) 866-3632
Facsimile: (416) 866-2009
SCHEDULE A
LENDER'S ACKNOWLEDGEMENT
TO: CANADIAN IMPERIAL BANK OF COMMERCE, as Agent
AND TO: ROBIN HOOD MULTIFOODS INC.
Reference is made to the credit agreement dated as of May
30, 1996 among Robin Hood Multifoods Inc., the financial institutions
listed as Lenders on the execution pages thereof or which have executed
a Lender's Acknowledgement as lenders (each a "Lender" and collectively
the "Lenders"), and Canadian Imperial Bank of Commerce, as agent for the
Lenders in the manner and to the extent described in Article 14 thereof
(the "Agent"), as such credit agreement may be amended, restated or
revised from time to time (the "Credit Agreement"). The undersigned
acknowledges that its proper officers have received and reviewed a copy
of the Credit Agreement and it hereby takes cognizance of the provisions
thereof. All initially capitalized terms used herein and not otherwise
defined shall have the meanings given to them by the Credit Agreement.
The undersigned wishes to become a Lender under the Credit
Agreement and accordingly furnishes this instrument to the Agent and the
Borrower subject to the terms of the Credit Agreement. The undersigned,
by its execution and delivery of this instrument, hereby agrees to be
bound by all of the provisions of the Credit Agreement that are
applicable to Lenders including, without limitation, the appointment of
the Agent on the terms and conditions set forth in Article 14 of the
Credit Agreement all as the same may be amended, restated or revised
from time to time.
The undersigned executes and delivers this instrument on the
basis that, subject to the terms and conditions of the Credit Agreement,
it severally agrees to make Accommodation available to the Borrower
under Credit A, provided that the amount of such Accommodation does not
exceed $_____.
The undersigned, the Agent and the Borrower acknowledge and
agree that, on execution of this instrument, the existing commitments in
respect of Credit A shall be adjusted to reflect the foregoing
Commitments in the following manner:
[Name of Lender] Commitment reduced/increased by [$]
TOTAL [Lender] Commitment [$]
Such Commitments may be adjusted from time to time pursuant to
and in accordance with the terms of the Credit Agreement.
This instrument shall be governed and construed in accordance
with the laws of the Province of Ontario and the laws of Canada
applicable therein.
This instrument shall be binding on the undersigned and its
permitted successors and assigns.
IN WITNESS WHEREOF, the undersigned has caused this instrument
to be duly executed this 30th day of May, 1996.
Address: ___________________________________
Telecopy No.: By: _______________________________
Commitment: Title: ____________________________
By: _______________________________
Title: ____________________________
The foregoing Lender's Acknowledgement is acknowledged and
agreed to this 30th day of May, 1996.
ROBIN HOOD MULTIFOODS INC.
By: _______________________________
Title: ____________________________
By: _______________________________
Title: ____________________________
CANADIAN IMPERIAL BANK OF COMMERCE,
as Agent
By: ________________________________
Title: _____________________________
SCHEDULE B
NOTE FOR PRIME RATE LOANS
May 30, 1996
For value received, the undersigned hereby acknowledges itself
indebted to _____ , a Lender (as defined in the credit agreement, dated
as of May 30, 1996 among the undersigned, the financial institutions
named as Lenders on the execution pages thereof or which have executed a
Lender's Acknowledgement as lenders, and Canadian Imperial Bank of
Commerce, as Agent for the Lenders in the manner and to the extent
described in Article 14 thereof (such credit agreement amended, restated
or revised from time to time is referred to as the "Credit Agreement")),
and unconditionally promises to pay on demand to or to the order of
_________, at the place, on the dates and in the manner provided for in
the Credit Agreement, the unpaid principal balance of all Prime Rate
Loans made by ________________ to the undersigned under the Credit, as
recorded on the grid attached to this Note.
The principal amount (including any overdue interest)
outstanding hereunder from time to time shall bear interest at the rate
payable for Prime Rate Loans in accordance with the Credit Agreement as
well after as before maturity, default and judgment until paid.
The indebtedness evidenced hereby may forthwith become due and
payable without notice on the occurrence of any one or more of the
Events of Default defined in the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Credit Agreement and all
amendments thereto, and all initially capitalized terms used herein and
not otherwise defined have the meanings given to them by the Credit
Agreement.
ROBIN HOOD MULTIFOODS INC.
By: ___________________________
Name:
Title:
ADVANCES AND PAYMENT OF PRINCIPAL
Amount of Amount of Unpaid
Date Advance Principal Interest Paid Principal Notation
Prepaid Balance Made by
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
SCHEDULE C
NOTE FOR U.S. BASE RATE LOANS
May 30, 1996
For value received, the undersigned hereby acknowledges itself
indebted to _______________ , a Lender (as defined in the credit
agreement, dated as of May 30, 1996 among the undersigned, the financial
institutions named as Lenders on the execution pages thereof or which
have executed a Lender's Acknowledgement as lenders, and Canadian
Imperial Bank of Commerce, as Agent for the Lenders in the manner and to
the extent described in Article 14 thereof (such credit agreement
amended, restated or revised from time to time is referred to as the
"Credit Agreement")), and unconditionally promises to pay on demand to
or to the order of _________________, at the place, on the dates and in
the manner provided for in the Credit Agreement, the unpaid principal
balance of all U.S. Base Rate Loans made by ___________________ to the
undersigned under the Credit, as recorded on the grid attached to this
Note.
The principal amount (including any overdue interest)
outstanding hereunder from time to time shall bear interest at the rate
payable for U.S. Base Rate Loans in accordance with the Credit Agreement
as well after as before maturity, default and judgment until paid.
The indebtedness evidenced hereby may forthwith become due and
payable without notice on the occurrence of any one or more of the
Events of Default defined in the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Credit Agreement and all
amendments thereto, and all initially capitalized terms used herein and
not otherwise defined have the meanings given to them by the Credit
Agreement.
ROBIN HOOD MULTIFOODS INC.
By: ___________________________________
Name:
Title:
ADVANCES AND PAYMENT OF PRINCIPAL
Amount of Amount of Unpaid
Date Advance Principal Interest Paid Principal Notation
Prepaid Balance Made by
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
SCHEDULE D
NOTE FOR LIBOR LOANS
May 30, 1996
For value received, the undersigned hereby acknowledges itself
indebted to ____________ , a Lender (as defined in the credit agreement,
dated as of May 30, 1996 among the undersigned, the financial
institutions named as Lenders on the execution pages thereof or which
have executed a Lender's Acknowledgement as lenders, and Canadian
Imperial Bank of Commerce, as Agent for the Lenders in the manner and to
the extent described in Article 14 thereof (such credit agreement
amended, restated or revised from time to time is referred to as the
"Credit Agreement")), and unconditionally promises to pay on demand to
or to the order of _____________ , at the place, on the dates and in the
manner provided for in the Credit Agreement, the unpaid principal
balance of all LIBOR Loans made by __________________ to the undersigned
under the Credit, as recorded on the grid attached to this Note.
The principal amount (including any overdue interest)
outstanding hereunder from time to time shall bear interest at the rate
payable for LIBOR Loans in accordance with the Credit Agreement as well
after as before maturity, default and judgment until paid.
The indebtedness evidenced hereby may forthwith become due and
payable without notice on the occurrence of any one or more of the
Events of Default defined in the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Credit Agreement and all
amendments thereto, and all initially capitalized terms used herein and
not otherwise defined have the meanings given to them by the Credit
Agreement.
ROBIN HOOD MULTIFOODS INC.
By: ________________________________
Name:
Title:
ADVANCES AND PAYMENT OF PRINCIPAL
Amount of Amount of Unpaid
Date Advance Principal Interest Paid Principal Notation
Prepaid Balance Made by
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
_______ _________ ___________ _____________ __________ ________
SCHEDULE E
NOTICE OF BORROWING
TO: CANADIAN IMPERIAL BANK OF COMMERCE, as Agent
1. This Notice of Borrowing is delivered to you pursuant to
Section 2.5 of the credit agreement, dated as of May 30, 1996, among the
undersigned, the financial institutions named as Lenders on the
execution pages thereof or which have executed a Lender's
Acknowledgement as lenders, and Canadian Imperial Bank of Commerce as
Agent for the Lenders in the manner and to the extent described in
Article 14 thereof (such credit agreement as amended, restated or
revised from time to time is referred to as the "Credit Agreement").
All references to section numbers herein are in respect of the Credit
Agreement and all capitalized terms set forth in this Notice of
Borrowing shall have the respective meanings specified in the Credit
Agreement.
2. The undersigned certifies that as at the date hereof the
representations and warranties of the undersigned contained in Article
10 of the Credit Agreement are true and correct in all material respects
as if given on the date hereof.
3. All conditions precedent under the Credit Agreement for the
granting of the Accommodation requested herein have been satisfied.
4. No Event of Default or Default has occurred and is
continuing.
5. The undersigned hereby gives you notice that on ___________,
the undersigned wishes to obtain the following Accommodation under:
Credit A:
Prime Rate Loan: $____________
Bankers' Acceptance:
Principal Amount $____________
Term _______ days
Swing Line Credit:
Prime Rate Loan: $____________
U.S. Base Rate Loans $____________
LIBOR Loan $____________
Term _______ days
Bankers' Acceptance:
Principal Amount $____________
Term _______ days
DATED at _______________, this 30th day of May, 1996.
ROBIN HOOD MULTIFOODS INC.
By: __________________________________
Name:
Title:
SCHEDULE F
NOTICE OF ROLLOVER/SWITCH
TO: CANADIAN IMPERIAL BANK OF COMMERCE, as Agent
1. This Notice of Rollover/Switch is delivered to you pursuant
to Section 2.6 of the credit agreement, dated as of May 30, 1996, among
the undersigned, the financial institutions named as Lenders on the
execution pages thereof or which have executed a Lender's
acknowledgement as lenders, and Canadian Imperial Bank of Commerce as
Agent for the Lenders in the manner and to the extent described in
Article 14 thereof (such credit agreement as amended, restated or
revised from time to time is referred to as the "Credit Agreement").
All references to section numbers herein are in respect of the Credit
Agreement and all capitalized terms set forth in this Notice of
Rollover/Switch shall have the respective meanings specified in the
Credit Agreement.
2. The undersigned certifes that as at the date hereof no Event
of Default or Default has occurred and is continuing.
3. The undersigned hereby gives you notice that on ___________,
the undersigned wishes to undertake a Rollover/Switch of the following
Accommodation outstanding under the Credit:
[Describe outstanding Accommodation and specify the Credit]
into the following Accommodation:
If under Credit A:
Prime Rate Loan $____________
Bankers' Acceptance:
Principal Amount $____________
Term ______ days;
If under the Swing Line Credit:
Prime Rate Loan $____________
U.S. Base Rate Loan $____________
LIBOR Loan $____________
Bankers' Acceptance:
Principal Amount $____________
Term ______ days;
Dated at ____________ this 30th day of May, 1996.
ROBIN HOOD MULTIFOODS INC.
By: _____________________________
Name:
Title:
SCHEDULE G
PRICING GRID
(in Basis Points)
Rating
Level Level I Level II Level III Level IV Level V Level VI
Facility Fee 8.00 9.00 11.25 13.75 15.00 22.50
Stamping
Fee 22.00 23.50 26.25 28.75 35.00 52.50
All-In
Drawn
Margin 30.00 32.50 37.50 42.50 50.00 75.00
LIBOR 22.00 23.50 26.25 28.75 35.00 52.50
SCHEDULE H
GUARANTEE
WHEREAS Robin Hood Multifoods Inc. (the "Debtor") has entered
into a credit agreement dated as of May 30, 1996, among the Debtor, the
financial institutions named as Lenders on the execution pages thereof
or which have executed a Lender's Acknowledgement as lenders including
Canadian Imperial Bank of Commerce as the Swing Line Lender (the "Swing
Line Lender") (each a "Lender" and collectively the "Lenders") and
Canadian Imperial Bank of Commerce, as Agent for the Lenders in the
manner and to the extent described in Article 14 thereof (the "Agent"),
such credit agreement as amended, restated or revised from time to time
is referred to as the "Credit Agreement";
AND WHEREAS it is a condition precedent to the granting of
Accommodation under the Credit Agreement that the undersigned (the
"Guarantor") guarantee to the Agent, on behalf of the Lenders, the
indebtedness and liability of the Debtor to the Lenders under the Credit
Agreement;
NOW THEREFORE for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby agrees
as follows:
1. All capitalized terms in this Guarantee that are defined in
the Credit Agreement unless otherwise defined in this Guarantee have the
meaning attributed to them in the Credit Agreement.
2. The Guarantor hereby unconditionally guarantees payment to
the Agent, on behalf of the Lenders including the Swing Line Lender,
forthwith after demand therefor by the Agent following any Event of
Default, the indebtedness and liability which the Debtor has incurred or
is under or may incur or be under to the Lenders including the Swing
Line Lender pursuant to, in respect of or in any manner related to the
Credit Agreement, plus interest thereon at the rate or rates provided in
the Credit Agreement from the date of demand for payment hereunder.
3. The Agent and the Lenders may grant extensions of time or
other indulgences, take and give up securities, accept compositions,
grant releases and discharges and otherwise deal with the Debtor and
other parties and securities as the Agent or the Lenders may see fit,
and may apply all moneys received from the Debtor or others, or from
securities, upon such part of the Debtor's liability to the Lenders
under the Credit Agreement as the Agent or the Lenders may think best,
without prejudice to or in any way limiting or lessening the obligation
of the Guarantor under this Guarantee.
4. Neither the Agent nor the Lenders are bound to exhaust their
recourse against the Debtor or other parties or the securities they may
hold before being entitled to payment from the Guarantor under this
Guarantee; and the benefit of any statute affecting the liability of the
Guarantor hereunder or enforcement thereof is hereby waived to the
extent permitted by law.
5. Any loss of or in respect of any securities received by the
Agent or the Lenders from the Debtor or any other person, whether
occasioned through the fault of the Agent or the Lenders or otherwise,
shall not discharge pro tanto or limit or lessen the liability of the
Guarantor under this Guarantee.
6. This shall be a continuing Guarantee and shall cover all
present and future liabilities of the Debtor to the Lenders incurred
pursuant to the Credit Agreement, and shall be binding as a continuing
security on the Guarantor.
7. Any change or changes in the name of the Debtor shall not
affect or in any way limit or lessen the liability of the Guarantor
hereunder and this Guarantee shall extend to the person, firm or
corporation acquiring or from time to time carrying on the business of
the Debtor.
8. All moneys, advances, renewals and credits in fact borrowed
or obtained from the Lenders pursuant to the Credit Agreement shall be
deemed to form part of the liabilities hereby guaranteed notwithstanding
any incapacity, disability or lack or limitation of status or of power
of the Debtor or of the directors, officers or agents thereof or that
the Debtor may not be a legal entity, or any irregularity, defect or
informality in the Debtor or obtaining of such moneys, advances,
renewals or credits.
9. The Guarantor shall assume the responsibility for being and
keeping itself informed of the financial condition of the Debtor and of
all other circumstances bearing upon the risk of non-payment of the
liability under this Guarantee.
10. In the event that the Agent or the Lenders receive from the
Guarantor a payment or payments in full or on account of the Guarantor's
liability hereunder, the Guarantor shall not be entitled to recover
repayment against the Debtor until all claims of the Lenders against the
Debtor have been paid in full; and in the case of liquidation, winding
up or bankruptcy of the Debtor (whether voluntary or compulsory) or in
the event that the Debtor shall make a bulk sale of any of the Debtor's
assets within the bulk transfer provisions of any applicable legislation
or any composition with creditors or scheme or arrangement, the Lenders
shall have the right to rank for their full claim and receive all
dividends or other payments in respect thereof until such claim has been
paid in full and the Guarantor shall continue to be liable for any
balance which may be owing to the Lenders. If the Lenders value and/or
retain any securities, such valuation and/or retention shall not, as
between the Lenders and the Guarantor, be considered as a purchase of
such securities, or as payment or satisfaction or reduction of the
Debtor's liabilities to the Lenders, or any part thereof.
11. The Guarantor shall make payment to the Agent of the amount
of the liability of the Guarantor forthwith after demand therefor is
made in writing by the Agent following and during the continuance of an
Event of Default and such demand shall be conclusively deemed to have
been effectually made by delivering or mailing by prepaid registered
mail an envelope containing that addressed to the Guarantor in
accordance with the terms of the Credit Agreement. The liability of the
Guarantor shall bear interest from the date of receipt of such demand at
the rate or rates then applicable to the liabilities of the Debtor to
the Lenders under the Credit Agreement.
12. The Guarantor shall pay all reasonable legal fees and all
other costs and expenses which may be incurred by the Agent or the
Lenders in the enforcement of this Guarantee.
13. Nothing herein contained or in any security now held or
hereafter acquired by the Agent or the Lenders, nor any act or omission
of the Agent or the Lenders with respect to any such security, shall in
any way prejudice or affect the rights, remedies or powers of the Agent
or the Lenders with respect to any other security at any time held by
the Agent or the Lenders.
14. The Agent and the Lenders may, at their election, exercise
any right or remedy they respectively might have against the Debtor or
any security held by the Agent or the Lenders, including without
limitation the right to foreclose upon any such security by judicial or
non-judicial sale, without affecting or impairing in any way the
liability of the Guarantor hereunder except to the extent the
indebtedness has been paid. The Guarantor waives any defence arising
out of the absence, impairment or loss of any right of reimbursement or
subrogation or other right or remedy of the Guarantor against the Debtor
or any such security, whether resulting from such election by the Agent
or the Lenders or otherwise, to the extent permitted by law.
15. Until all indebtedness of the Debtor to the Lenders has
been paid in full, the Guarantor shall have no right to subrogation and
waives any right to enforce any remedy which the Agent or the Lenders
now have or may hereafter have against the Debtor, and waives any
benefit of any right to participate in the security now or hereafter
held by the Agent or the Lenders. The Guarantor waives all
presentments, demands for performance, notices of non-performance,
protests, notices of protest, notices of dishonour, and notices of
acceptance of this Guarantee and of the existence, creation or incurring
of new or additional indebtedness.
16. The Guarantor shall make each payment in the currency in
which the Debtor is obliged to make payment to the Lenders (the
"Original Currency"). If the Guarantor makes payment in a currency
other than the Original Currency (the "Other Currency"), such payment
shall constitute a discharge of the liability of the Guarantor hereunder
only to the extent of the amount of the Original Currency which the
Lender is able to purchase at Toronto, Ontario with the Other Currency
on the date of receipt in accordance with its normal practice. If the
amount of the Original Currency which the Lender is able to purchase is
less than the amount of such currency originally due to it, the
Guarantor shall indemnify and save the Lender harmless from and against
any loss as a result of such deficiency. This indemnity shall
constitute an obligation separate and independent from the other
obligations contained in this Guarantee and shall continue in full force
and effect notwithstanding any judgment or order in respect of any
amount due hereunder.
17. This instrument is in addition and without prejudice to any
securities of any kind now or hereafter held by the Agent or the
Lenders.
18. The Guarantor represents and warrants to the Agent, on
behalf of the Lenders, as follows:
(a) Organization and Existence: The Guarantor is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware. In all respects material to the Guarantor and
its Subsidiaries, taken as a whole, the Guarantor has all requisite
power and authority, corporate and otherwise, to own, operate and lease
its properties and to carry on its business as now being conducted. The
Guarantor is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the character of its
properties owned or leased or the nature of the activities conducted by
the Guarantor makes such qualification necessary, except where failure
so to qualify would not have a material adverse effect on the business,
assets, condition or prospects, financial or otherwise, of the Guarantor
and its Subsidiaries, taken as a whole.
(b) Power and Authority:
(i) The Guarantor has all power and authority necessary to
execute, deliver and carry out the terms and provisions of the
Guarantee. All action on the part of the Guarantor which is required
for the execution, delivery and performance of the Guarantee has been
duly and effectively taken.
(ii) The Guarantee constitutes a valid and binding obligation
of the Guarantor enforceable in accordance with its terms, in each case
as enforceability may be subject to bankruptcy, reorganization,
insolvency, moratorium or other similar laws and court decisions
relating to or affecting the enforcement of creditors' rights generally
and as enforceability may be subject to limitations imposed by law upon
the availability of specific enforcement, injunctive relief or other
equitable remedies. The execution, delivery and performance of the
Guarantee will not violate the terms and conditions or any other
material agreement, instrument, mortgage or similar document to which
the Guarantor is a party.
(c) Financial Position: The Guarantor has delivered to the
Lenders the consolidated balance sheet of the Guarantor and its
Subsidiaries as of February 29, 1996, accompanied by related
consolidated statements of earnings and cash flows, for the fiscal year
ended on such date and the related report of the Guarantor's auditors.
Such financial statements, with the notes thereto, present fairly the
consolidated financial position of the Guarantor and its Subsidiaries
and the results of their operations and cash flows as of the date and
for the period indicated, and were prepared in accordance with U.S.
GAAP. Since February 29, 1996 to the date of this Guarantee, there has
not occurred any material adverse change in the business, operations or
financial condition of the Guarantor and its Subsidiaries, taken as a
whole, except as described in any reports on Forms 8-K, 10-Q
and 10-K filed during such period by the Guarantor with the Securities
and Exchange Commission.
(d) Litigation: Except as disclosed in the notes to the
Guarantor's financial statements referred to in Subsection 18(c) hereof,
no litigation, investigation or proceeding of or before any arbitrator
or governmental authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or any of its
Subsidiaries or against any of its or their respective properties or
revenues which would reasonably be expected to have a material adverse
effect on the business, operations, properties or financial condition of
the Guarantor and its Subsidiaries, taken as a whole.
(e) No Violation of Law or Instrument: The execution,
delivery and performance of the Guarantee does not require any action or
consent of, or any registration with, any governmental authority, or of
any other party under any material contract or agreement to which the
Guarantor or any of its Subsidiaries is a party, or under any order or
decree to which the Guarantor or any of its Subsidiaries is a party or
to which any of their properties or assets are subject, or conflict
with, or entitle any party, with the giving of notice or lapse of time
or otherwise, to terminate or declare a default under, any such
contract, agreement, order or decree.
19. So long as this Guarantee is in force and except as
otherwise permitted by the prior written consent of the Required
Lenders, the Guarantor covenants and agrees with the Agent on behalf of
the Lenders that:
(a) the ratio of Guarantor's Total Indebtedness to Guarantor's
Total Capitalization at any time will not be greater than .55 to 1.0;
provided that the Guarantor may exceed the specified ratio at any time,
and from time to time, during any period of 270 consecutive days from
the date such ratio was first exceeded so long as on the date such ratio
is first exceeded the Guarantor's Fixed Charge Coverage for the period
of four consecutive fiscal quarters ending on the last day of the most-
recently ended fiscal quarter was equal to or greater than 1.5; and
provided, further, that (i) such ratio may be exceeded for only one such
period of 270 days in any period of eighteen months beginning on the
date such ratio was first exceeded and (ii) in no event shall the ratio
of Guarantor's Total Indebtedness to Guarantor's Total Capitalization at
any time be greater than .65 to 1.0;
(b) as of the last day of any fiscal quarter of the Guarantor
during which a Ratings Downgrade exists (regardless of whether a Ratings
Downgrade exists on such last day), the Guarantor's Fixed Charge
Coverage for the period of four consecutive fiscal quarters ending on
such last day will not be less than 1.5; and
(c) the Guarantor's Tangible Net Worth shall at all times be
not less than U.S.$80,000,000.
20. There are no representations, collateral agreements or
conditions with respect to this instrument or affecting the Guarantor's
liability hereunder other than as contained herein.
21. All amounts payable by the Guarantor hereunder shall be
made without setoff or counterclaim and without deduction for or on
account of any present or future taxes of any nature, unless the
Guarantor is prohibited by law from doing so, in which case the
Guarantor shall pay to the Agent on behalf of the Lenders such
additional amount as is necessary to ensure that the Lenders receive the
full amount they would have received if no deduction or withholding had
been made.
22. This Guarantee shall be construed in accordance with the
laws of the Province of Ontario, Canada and the Guarantor agrees that
any legal suit, action or proceeding arising out of or relating to this
Guarantee may be instituted in the courts of such jurisdiction and the
Guarantor hereby accepts and irrevocably submits to the jurisdiction of
such courts and acknowledges their competence and agrees to be bound by
any judgment thereof, provided that nothing herein shall limit the
Agent's or the Lenders' rights to bring proceedings against the
Guarantor elsewhere.
23. This Guarantee shall extend and enure to the benefit of the
successors and assigns of the Agent and the Lenders and shall be binding
upon the Guarantor and its successors and assigns.
EXECUTED at Minneapolis, Minnesota this 30th day of May, 1996.
INTERNATIONAL MULTIFOODS CORPORATION
By:
Name:
Title:
SCHEDULE I
FORM OF GUARANTOR'S COMPLIANCE CERTIFICATE
TO: Canadian Imperial Bank of Commerce, as Agent,
and the Lenders which are party to the Credit Agreement referred to
below
Reference is made to the Credit Agreement dated as of May 30, 1996
(as amended or otherwise modified from time to time, the "Credit
Agreement") among Robin Hood Multifoods Inc., various financial
institutions and Canadian Imperial Bank of Commerce, as Agent. Terms
used but not otherwise defined herein are used herein as defined in the
Credit Agreement.
I. Reports. Pursuant to Section 11.1(i) of the Credit Agreement,
enclosed herewith [are copies of (i) the Annual Report of the Guarantor
containing the consolidated balance sheet of the Guarantor and its
subsidiaries as at the close of the fiscal year of the Guarantor ended
___________________________ and consolidated statements of earnings and
cash flows of the Guarantor and its subsidiaries for such year,
certified by the Guarantor's independent public accountants, and (ii)
the Guarantor's most recent Form 10-K filed with the SEC.] [is a copy
of the Guarantor's most recent Form 10-Q filed with the SEC.]
II. Financial Tests. The Guarantor hereby certifies and warrants to
you that the following is a true and correct computation as at
_____________________________ of the following ratios and/or financial
restrictions contained in the Guarantee.
A. Subsection 19(a) Guarantor's Total Indebtedness to Guarantor's
Total Capitalization
Long-term Debt (net of current portion) $
Current portion of long-term debt $
Notes payable $
Less: Excess Working Capital(1) $
_______________________
(1) For every computation date other than the August 31 computation
date, subtract the excess, if any, of Guarantor's Working Capital as of
such computation date (excluding increases in Guarantor's Working
Capital due to acquisitions since the preceding August 31) over
Guarantor's Working Capital as of the previous August 31 (reduced by any
decreases in Guarantor's Working Capital due to dispositions since the
preceding August 31).
Guarantor's Total Indebtedness
Guarantor's Common Stockholders'
Equity $
Preferred stock $
Other(2) $___________
Guarantor's Net Worth $
Plus: Non-recurring write-offs of $___________
goodwill and other intangibles since
November 30, 1995
Guarantor's Total Capitalization $
Guarantor's Total Indebtedness to __________%
Guarantor's Total Capitalization
Maximum permitted ratio 0.55%
Maximum permitted temporary ratio 0.65%
____________________
(2) "Other" equals the lesser of (i) the outstanding amount of any
guaranty of an obligation given by the Guarantor or any Subsidiary of
the Guarantor to a lender to a trust holding assets of any employee
benefit plan of the Guarantor or any Subsidiary of the Guarantor for the
purpose of allowing such trust to borrow monies, which amount has been
reflected on the consolidated balance sheet of the Guarantor as a
reduction of common stockholders' equity, or (ii) two-thirds of the
value of any stock owned by such trust securing such obligation of the
trust.
B. Subsection 19(b) Maintenance of Guarantor's Fixed Charge Coverage
[This covenant only applies in the event of a Ratings Downgrade]
(FQE) (FQE) (FQE) (FQE) TOTAL
1. Consolidated interest $_____ $_____ $_____ $_____ $_____
expense (reduced by
capitalized interest)
2. Minimum rentals for $_____ $_____ $_____ $_____ $_____
operating leases of continuing
operations of the Guarantor and
its consolidated Subsidiaries
3. Guarantor's Earnings from $_____ $_____ $_____ $_____ $_____
Continuing Operations Before
Income Tax (exclusive of (x)
unusual or non-recurring items
and (y) any foreign exchange
gains or losses that might
appear on or be reflected in the
consolidated statement of
earnings of the Guarantor and
its Subsidiaries on a
consolidated basis)
4. Item 1 plus Item 2 plus $_____
Item 3
5. Item 1 plus Item 2 $______
6. Ratio of Item 4 to Item 5 ____ to 1.00
7. Required Fixed Charge Coverage 1.50 to 1.00
C. Subsection 19(c) Guarantor's Minimum Tangible Net Worth
Guarantor's Net Worth $
Less: Goodwill, debt discount and other $_______________
like intangibles
Guarantor's Tangible Net Worth $
Required Minimum Tangible Net Worth $80,000,000
III. Defaults. The Guarantor hereby further certifies and warrants
to you that no Event of Default (as defined in the Multifoods Credit
Agreement) or Unmatured Event of Default (as defined in the Multifoods
Credit Agreement) has occurred and is continuing.
IN WITNESS WHEREOF, the Guarantor has caused this Certificate to be
executed and delivered by its duly authorized officer this ___________
day of __________________, 19___.
INTERNATIONAL MULTIFOODS CORPORATION
By: _______________________________________
Title:
SCHEDULE J
LEGAL OPINION IN RESPECT OF THE BORROWER
May 30, 1996
Canadian Imperial Bank of Commerce,
As Agent for the Lenders under the Credit
Agreement referred to below
Commerce Court West, 7th Floor
Toronto, Ontario
M5L 1A2
Ladies and Gentlemen:
Re: Cdn. $110,000,000 Credit Agreement dated as of
May 30, 1996 Among Robin Hood Multifoods Inc.,
Canadian Imperial Bank of Commerce, as Agent,
and the parties named from time to time as
Lenders thereto (the "Credit Agreement")
We have acted as counsel in Ontario to Robin Hood Multifoods
Inc. (the "Borrower") in connection with the execution and delivery by
the Borrower of the Credit Agreement and as special counsel in Ontario
to International Multifoods Corporation (the "Guarantor") in connection
with the execution and delivery of the guarantee dated May 30, 1996,
made by the Guarantor in favour of the Agent on behalf of the Lenders
under the Credit Agreement (the "Guarantee").
For the purposes of the opinions hereinafter expressed, we
have examined and relied on certified copies of resolutions of the board
of directors of the Borrower and such other corporate records of the
Borrower and such other material as we have deemed necessary as a basis
for the opinions expressed herein, including, without limitation, a
certificate of compliance dated May 30, 1996 and issued by Consumer and
Corporate Affairs Canada with respect to the Borrower. We have also
examined originally executed copies of the Credit Agreement and the
Guarantee and we have considered such questions of law as we have deemed
relevant and necessary as a basis for the opinions hereinafter
expressed.
As to various questions of fact material to this opinion, we
have relied solely upon the certificate, a copy of which is attached
hereto, of an officer of the Borrower.
Our opinion relates solely to the laws of Ontario and the
federal laws of Canada applicable therein and we have made no
investigation of the laws of any other jurisdiction.
Based upon and subject to the foregoing and the assumptions
and qualifications set out at the end of this opinion, we are of the
opinion that:
(1) The Borrower is incorporated and validly subsisting under
the laws of Ontario and has full corporate capacity and authority to
execute, deliver and perform its obligations under the Credit Agreement.
(2) The Borrower has taken all necessary corporate action and
proceedings to duly authorize the execution, delivery and performance of
the Credit Agreement.
(3) The Credit Agreement has been duly executed and delivered
by the Borrower and constitutes a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its
terms.
(4) The Guarantee constitutes a legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
(5) No consent, license, approval, authorization or exemption
of any governmental body or regulatory authority or any filing is
required for or in connection with the execution and delivery by the
Borrower of the Credit Agreement.
This opinion is subject to the following assumptions and
qualifications:
(1) we have assumed the genuineness of all signatures (whether
on originals or copies of documents), the authenticity of all documents
submitted to us as originals, the conformity to original documents of
all documents submitted to us as notarial, certified, conformed,
photostatic or telecopied copies thereof and the authenticity of the
originals of such documents;
(2) we have assumed that the Credit Agreement is a legal, valid
and binding obligation of, and is enforceable in accordance with its
terms against, each of the parties thereto, other than the Borrower;
(3) we have assumed that the Guarantor is a subsisting
corporation under the laws of its jurisdiction of incorporation, that
the Guarantor has all requisite power, authority and capacity to execute
and deliver the Guarantee and perform its obligations thereunder, that
the Guarantor has taken all necessary corporate action to authorize the
execution and delivery of the Guarantee and the performance of its
obligations thereunder and has duly executed and delivered the
Guarantee;
(4) the enforceability of the Credit Agreement and the
Guarantee and the rights and remedies set out therein or any judgement
arising out of or in connection therewith may be limited by any
applicable bankruptcy, insolvency, winding-up, reorganization,
arrangement, moratorium or other laws affecting creditors' rights
generally;
(5) the enforceability of the Credit Agreement and the
Guarantee and the rights and remedies set out therein may be limited by
general principles of equity and the obligation to act in a reasonable
manner, and no opinion is given as to any specific remedy that may be
granted, imposed or rendered (including equitable remedies such as those
of specific performance and injunction;
(6) a court may not treat as conclusive those certificates and
determinations which the Credit Agreement states are to be so treated;
(7) the ability to recover or claim for certain costs or
expenses may be subject to judicial discretion;
(8) no opinion is given as to the enforceability of Section
15.12 of the Credit Agreement;
(9) the effectiveness of provisions which purport to relieve a
person from a liability or duty otherwise owed, may be limited by law,
and provisions requiring indemnification or reimbursement may not be
enforced by a court, to the extent that they relate to the failure of
such person to have performed such duty or liability; and
(10) no opinion is expressed as to the enforceability of any
provisions in the Credit Agreement which suggest that modifications,
amendments or waivers of or with respect to the Credit Agreement that
are not in writing will not be effective.
* * * * *
This opinion is rendered solely for the benefit of Canadian
Imperial Bank of Commerce as Agent for the Lenders under the Credit
Agreement, and for the benefit of the Lenders and their permitted
successors and assigns, in connection with the Credit Agreement and the
Guarantee and may not be relied upon by any other person or used for the
benefit of any other purpose without our prior written consent.
Yours very truly,
SCHEDULE K
LEGAL OPINION IN RESPECT OF THE GUARANTEE
[Date]
Canadian Imperial Bank of Commerce,
As Agent for the Lenders under the Credit
Agreement referred to below
Commerce Court West, 7th Floor
Toronto, Ontario
M5L 1A2
Ladies and Gentlemen:
Re: Cdn. $110,000,000 Credit Agreement Among Robin Hood
Multifoods Inc., Canadian Imperial Bank of Commerce,
as Agent, and the parties named as Lenders thereto
I am Vice President, General Counsel and Secretary of
International Multifoods Corporation, a Delaware corporation, United
States of America (the "Guarantor") and have acted for the Guarantor in
connection with the Guarantor's execution of that certain Guarantee
dated as of May 30, 1996 (the "Guarantee") in favour of Canadian
Imperial Bank of Commerce (the "Bank") as Agent for the Lenders under
the Credit Agreement dated as of May 30, 1996 among Robin Hood
Multifoods Inc. ("Robin Hood"), Canadian Imperial Bank of Commerce as
Agent for the Lenders and the Lenders named as Lenders on the execution
pages thereof or which may execute a Lender's Acknowledgement (the
"Credit Agreement") under which the Guarantor has guaranteed the payment
obligations of Robin Hood, a corporation continued under the laws of
Ontario, as and to the extent provided in the Guarantee.
I have examined the Guarantee, such documents and records of
the Guarantor and such other matters of fact and law that I deem
necessary or appropriate to render this opinion. In such examination, I
have assumed the authenticity of all documents submitted to me as
originals, the genuineness of all signatures and the conformity to the
originals of all documents submitted to me as copies. In rendering this
opinion, I do not express any opinion concerning any matter respecting
or affected by any laws other than the laws now in effect of the State
of Minnesota, the federal laws of the United States of America and the
provisions now in effect of the Delaware General Corporation Law.
Based upon the foregoing and subject to the qualifications set
out at the end of this opinion, it is my opinion that:
(1) The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power to execute and deliver the Guarantee and
perform its obligations thereunder.
(2) The execution and delivery of the Guarantee by the
Guarantor and the performance by the Guarantor of its obligations
thereunder have been duly authorized by all necessary action and
proceedings on the part of the Guarantor.
(3) The Guarantee has been duly executed and delivered by the
Guarantor.
(4) Neither the execution of the Guarantee by the Guarantor nor
the performance of the Guarantee contravenes any provision of the
Guarantor's Restated Certificate of Incorporation, as amended, or Bylaws
or any contractual agreement known to me which is binding on or
applicable to the performance of the Guarantor's obligations under the
Guarantee.
(5) In the event that the Guarantee were sought to be enforced
against the Guarantor in the State of Minnesota, the courts of competent
jurisdiction in Minnesota, subject to public policy, would give effect
to the choice of Ontario as the law governing the Guarantee. I am not
aware of any reason as to why the recognition and application of Ontario
law would be contrary to public policy in Minnesota.
Minnesota Statutes, Section 290.371, Subdivision 4, provides
that any corporation required to file a Notice of Business Activities
Report does not have a cause of action upon which it may bring suit
under Minnesota law unless the corporation has filed a Notice of
Business Activities Report and provides that the use of the courts of
the State of Minnesota for all contracts executed and all causes of
action that arose before the end of any period for which a corporation
failed to file a required report may be precluded or delayed. Insofar
as my opinion may relate to the valid, binding and enforceable character
of any agreement under Minnesota law or in a Minnesota court, I have
assumed that any party seeking to enforce such agreement has at all
times been, and will continue at all times to be, exempt from the
requirement of filing a Notice of Business Activities Report or, if not
exempt, has duly filed, and will continue to duly file, all Notice of
Business Activities Reports.
This opinion is rendered solely for the benefit of the Bank as
Agent for the Lenders under the Credit Agreement and for the benefit of
the Lenders and their permitted successors and assignees in connection
with the Guarantee and may not be relied upon by any other person or
used for any other purpose without my prior written consent.
Yours very truly,
Vice President, General Counsel and Secretary
EXHIBIT 10.1
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered
into on June 21, 1996 by and between Anthony Luiso ("Luiso"), a
Minnesota resident, and International Multifoods Corporation ("the
Company"), a Delaware corporation.
BACKGROUND
A. Luiso has been employed by the Company for
approximately nine years, during which time he was a director and
Chairman of the Board, President and Chief Executive Officer of the
Company.
B. Luiso has been employed by the Company pursuant to the
terms of a Revised and Restated Employment Agreement dated as of
September 17, 1993 ("Employment Agreement"), and during his
employment he has been eligible to participate in other plans and
programs of the Company, including, but not limited to, the
Management Incentive Plan, the Compensation Deferral Plan, the
Deferred Income Capital Accumulation Plan for Executives of
International Multifoods Corporation, Amended and Restated as of
September 17, 1993, the 1986 Stock Option Incentive Plan, the Amended
and Restated 1989 Stock-Based Incentive Plan, the Multifoods Pension
Equity Plan (formerly known as the Employees' Retirement Plan), the
Management Benefit Plan, and a Supplement Retirement Benefit
described in the Employment Agreement.
C. In May 1996 the Board of Directors of the Company and
Luiso agreed that it was in their mutual interests that Luiso resign
as Chairman of the Board, President and Chief Executive Officer as of
May 17, 1996, and that he resign as an employee as of June 17, 1996.
In spite of his agreement to resign as a director, officer, and
employee, Luiso believes that certain matters relating to his
separation from the Company could give rise to legal claims by him
against the Company, including claims for breach of his Employment
Agreement.
If Luiso brought and were able to prove the legal claims referred
to in the preceding paragraph, then he would be entitled to receive
damages from the Company.
D. The Company expressly denies that it may be liable to
Luiso on any basis or that it has engaged in any improper or unlawful
conduct or wrongdoing against him.
E. Luiso and the Company desire to resolve all present
issues in dispute between them rather than to engage in protracted
and expensive litigation.
F. Luiso and the Company have agreed to a full settlement
of all present issues in dispute between them.
G. Under the circumstances, it is one of the purposes of
this Agreement to provide for the exchange of consideration between
the parties, to provide for the exchange of releases of claims and
potential claims between the parties, and to consolidate within one
document the parties' obligations to each other.
NOW, THEREFORE, in consideration of the mutual promises and
provisions contained in this Agreement and the Releases referred to
below, the parties agree as follows:
AGREEMENTS
1. Release of Claims by Luiso. At the same time Luiso
executes this Agreement, he also will execute a Release, in the form
attached to this Agreement as Exhibit A ("Luiso Release"), in favor
of the Company, its insurers, affiliates, divisions, committees,
directors, officers, employees, agents, successors, and assigns.
This Agreement will not be interpreted or construed to limit the
Luiso Release in any manner. Further, the existence of any dispute
respecting the interpretation of this Agreement or the alleged breach
of this Agreement will not nullify or otherwise affect the validity
or enforceability of the Luiso Release.
2. Release of Claims by the Company. At the same time
the Company executes this Agreement, the Company also will execute a
Release, in the form attached to this Agreement as Exhibit B
("Multifoods Release"), in favor of Luiso and his successors and
assigns. This Agreement will not be interpreted or construed to limit
the Multifoods Release in any manner. Further, the existence of any
dispute respecting the interpretation of this Agreement or the
alleged breach of this Agreement will not nullify or otherwise affect
the validity or enforceability of the Multifoods Release.
3. Resignation. By executing this Agreement, Luiso
confirms his resignation as an employee of the Company effective as
of June 17, 1996.
4. Payments. The Company will make the payments set forth
in subparagraphs 4.a. through 4.j. below and the payment of the
Supplemental Retirement Benefit under the Employment Agreement
referred to in paragraph 9. below to Luiso or for his benefit in lieu
of any further payments that he would otherwise be entitled to
receive under the Employment Agreement, the Management Incentive
Plan, the Deferred Income Capital Accumulation Plan for Executives of
International Multifoods Corporation, Amended and Restated as of
September 17, 1993 ("DICAP Plan"), and the Compensation Deferral
Plan. The Company will make the payments set forth in subparagraphs
4.c., 4.d., and 4.f. through 4.j. below and the payment of the
Supplemental Retirement Benefit under the Employment Agreement
referred to in paragraph 9 below only if: (i) Luiso has not
rescinded this Agreement or the Luiso Release within the applicable
rescission period; (ii) the Company has received written confirmation
from Luiso, in the form attached to this Agreement as Exhibit C,
dated not earlier than the day after the expiration of the applicable
rescission period, that Luiso has not rescinded and will not rescind
this Agreement or the Luiso Release; and (iii) Luiso has not breached
his obligations pursuant to this Agreement or the Luiso Release.
Payment of any amount set forth below will not modify or terminate
the parties' obligations to each other as established by this
Agreement. The payments set forth below will be sent by first-class
mail to Luiso's last known residence address, unless he advises the
Company in writing that he wants the payments sent to a different
address.
a. Base Salary. The Company will continue to pay
Luiso his current base salary, less all applicable withholding,
through June 17, 1996.
b. Vacation Pay. The Company will pay Luiso
$49,288.39 for his accrued and earned vacation not yet taken as of
May 17, 1996, less all applicable withholding, in a lump sum on the
later of June 17, 1996 or the second business day following the
expiration of the applicable rescission period ("Payment Date").
c. Severance Pay. The Company will pay Luiso
severance pay equal to his current base salary of $45,833.33 per
month, less all applicable withholding, in semi-monthly installments
during the period between June 18, 1996 and June 18, 1997; provided,
however, that no installment will be paid to Luiso before the Payment
Date. Any installment otherwise due prior to the Payment Date will
not be forfeited but will be paid to Luiso on the Payment Date.
d. Bonus. The Company will pay Luiso or his estate
$550,000.00, less all applicable withholding, in a lump sum on the
Payment Date.
e. Deferred Compensation. Luiso is a participant in
the Company's Compensation Deferral Plan and the DICAP Plan. The
Company will continue to pay Luiso under the Compensation Deferral
Plan $1,101.68 per month, less all applicable withholding, with the
last monthly payment to be made in December 1999. In addition, the
Company will pay Luiso his DICAP Plan benefits, less all applicable
withholding, at the times and in the amounts described below:
i. With respect to his 1989 deferral: an annual
amount that is initially estimated to be $34,449.00 per year and that
will be adjusted on July 1 of each year to reflect changes in Luiso's
account balance, which will be paid in nearly equal monthly
installments during each 12-month period commencing on the later of
July 1, 1996 or the Payment Date and ending in June 2001. Any
installment otherwise due prior to the Payment Date will not be
forfeited but will be paid to Luiso on the Payment Date.
ii. With respect to his 1987 deferral: an amount
based on Luiso's account balance determined as of July 1, 2001, which
will be paid in nearly equal monthly installments commencing on July
1, 2001 and ending in June 2006.
After the payment of DICAP benefits commence, interest will be
credited to each of Luiso's accounts at a rate to be determined by
the Company's Vice President - Finance (or his successor), which rate
will be determined as specified in the DICAP Plan as if Luiso were a
current employee of the Company but will not exceed 8% per year.
f. Medical Insurance Reimbursement. The Company will
apply $2,500.00 to offset the premiums that Luiso otherwise would be
required to pay for the continuation of his group medical, dental,
and vision insurance coverages under the terms of subparagraph 8.a.
below; provided, however, that if Luiso does not elect such
coverages, or discontinues such coverages before the full $2,500.00
is so applied, then the Company will pay the balance of the
$2,500.00, less all applicable withholding, to Luiso promptly after
the later of the Payment Date or the date of discontinuance.
g. Special Executive Benefits. The Company will pay
(i) the cost of Luiso's annual physical examination at the Mayo
Clinic in 1997, (ii) Luiso's 1996 and 1997 income tax preparation
fees and financial planning fees, subject to a total maximum
limitation of $25,000.00, and (iii) Luiso's Interlachen Club basic
membership dues through June 15, 1997. The Company will pay those
amounts, at Luiso's election, either directly to the party that
provides invoices for those amounts or to Luiso upon his submission
of proper requests for reimbursement of those amounts. In addition,
the Company will continue to pay Luiso his monthly car allowance at
the current rate through June 17, 1997. Luiso acknowledges that
amounts paid to him or for his benefit pursuant to this subparagraph
will be subject to income tax withholding, unless otherwise provided
by law.
h. Outplacement. The Company will pay directly to
the outplacement firm of Market Share Inc. an amount not to exceed
$50,000.00 for outplacement services provided to date and to be
provided in the future to Luiso. Such amount will be paid to Market
Share Inc. on the later of June 30, 1996 or the Payment Date.
i. Business Office. The Company, at its expense,
will provide Luiso with an appropriate business office in the Twin
Cities metropolitan area between June 3, 1996 and June 18, 1997. The
Company will pay all the ordinary and necessary expenses of operating
Luiso's business office, including rent, insurance, depreciation,
furniture, equipment, supplies, telephones and telecommunications,
and part-time secretarial and clerical personnel. If, before June
19, 1997, Luiso changes his legal residence to a location outside the
Twin Cities metropolitan area, then the Company will have no further
obligation to continue to pay the expenses of Luiso's office.
j. Attorneys' Fees. The Company will pay to the law
firm of Mackall, Crounse & Moore PLC ("Mackall") an amount not to
exceed $25,000.00 for attorneys' fees and costs that Luiso incurs in
connection with his separation from employment with the Company.
Mackall will submit its invoice for fees and costs directly to the
Company's Vice President, General Counsel and Secretary, and the
Company will make payment of the amount of the invoice, subject to
the maximum limitation specified above, within 30 days after receipt
of the invoice.
5. Expense Reimbursement. The Company will reimburse
Luiso for his regular and necessary business expenses incurred
through May 17, 1996 according to the Company's regular policies and
practices, and will reimburse Luiso for five non-refundable airline
tickets that he has purchased, upon his submission of proper requests
for reimbursement therefor. Luiso will submit all his requests for
reimbursement to the Company no later than June 30, 1996, and the
Company will make reimbursement to Luiso on or before July 31, 1996.
6. Stock Options and Restricted Stock. Luiso is a
participant in the 1986 Stock Option Incentive Plan and the Amended
and Restated 1989 Stock-Based Incentive Plan (together "Stock
Plans").
a. Stock Options. Under the terms of the Stock Plans
and Luiso's agreements relating to options to purchase shares of the
Company's common stock, Luiso is fully vested in options to purchase
374,746 shares of Company common stock and will forfeit options to
purchase 25,000 shares of Company common stock upon his resignation
as an employee as of June 17, 1996. Pursuant to the special action
of the Compensation Committee of the Board of Directors of the
Company ("Compensation Committee"), Luiso may exercise those fully-
vested stock options for specific periods of time ending on the
termination dates of the respective options listed in Schedule 1
attached to this Agreement; provided, however, that if Luiso elects
to rescind this Agreement and the Luiso Release prior to the
termination of the applicable rescission period, then the termination
dates for the first eight options listed in Schedule 1, which total
163,750 shares, will become September 13, 1996.
b. Restricted Stock. Under the terms of the Stock
Plans and Luiso's agreements relating to the shares of restricted
Company common stock held by Luiso and pursuant to the special action
of the Compensation Committee, Luiso will be fully vested in 52,035
shares of restricted Company common stock as described below. In
addition, Luiso will forfeit 25,000 shares of restricted Company
common stock upon his resignation as an employee as of June 17, 1996
pursuant to the terms of the applicable Stock Plan and agreement.
The vesting requirements on the 52,035 shares will be removed on the
date that is 15 calendar days after the day that Luiso signs this
Agreement and the Luiso Release; provided, however, that if Luiso
rescinds or revokes this Agreement and the Luiso Release within such
period, then the 52,035 shares of restricted stock and all of the
rights relating thereto, including the payment of accrued dividends,
will be forfeited immediately. The Company will pay Luiso the
accrued dividends on all the shares of restricted stock as to which
the restrictions are removed as provided in this subparagraph, less
all applicable withholding, on the Payment Date. In addition, prior
to the delivery by the Company to Luiso of the 52,035 shares of stock
that have vested, Luiso will pay the Company an amount equal to the
amount of income taxes and other amounts that the Company is required
by law to withhold with respect to the vesting of the stock being
delivered to Luiso.
7. Employee Benefits. Luiso will continue to participate
in all regular employee benefit plans and programs applicable to
senior executives of the Company, except the Management Incentive
Plan, through June 17, 1996; provided, however, that Luiso's medical,
dental, vision, and employee assistance plan benefits will continue
through June 30, 1996.
8. Insurance Continuation.
a. Medical Insurance. Luiso will have the right
to continue his group medical, dental, and vision insurance coverages
after June 17, 1996 under COBRA under such terms as are made
available to similarly-situated former employees of the Company,
provided that Luiso pays 102% of the cost of the lowest-cost group
medical option provided by the Company and 102% of the cost of the
dental and vision coverages as provided by law (except to the extent
paid by the Company pursuant to subparagraph 4.f. above), for 18
months, or until he obtains other qualifying group coverage or his
COBRA rights terminate for some other reason, if earlier. In
addition, Luiso may elect to convert his current group medical
insurance coverage or to purchase individual health insurance
coverage in the future. Schedule 2 attached to this Agreement sets
forth certain conversion and purchase options available to Luiso at
the present time. Any remaining amount specified in subparagraph
4.f. above after discontinuance of COBRA coverage will be applied to
pay the premiums that Luiso would otherwise be required to pay for
the conversion of his group medical insurance coverage.
b. Life insurance. Luiso will have the right to
continue his group life insurance coverage after June 17, 1996 under
Minnesota law under such terms as are made available to similarly-
situated former employees of the Company, provided that Luiso pays
102% of the cost of that insurance as provided by law, for 18 months,
or until he obtains other qualifying group coverage or his statutory
rights terminate for some other reason, if earlier.
9. Retirement Plans. Luiso is a participant in the Multifoods
Pension Equity Plan (formerly known as the Employees' Retirement
Plan) and the Management Benefit Plan, and he also is entitled to
receive a Supplemental Retirement Benefit under the Employment
Agreement (collectively "Retirement Plans"). Luiso will be entitled
to begin drawing his retirement benefits at the times and under the
terms and conditions set forth in the Retirement Plans. Schedule 3
attached to this Agreement sets forth the amount of the retirement
benefits that Luiso will be entitled to receive.
10. No-Competition, Non-Solicitation, and Non-Disclosure
Agreements.
a. Agreement Not to Compete. Luiso will not, on or
before June 17, 1997, without the prior written consent of the
Company, become an owner directly or indirectly of more than one
percent of the stock of, take employment with, become a director,
officer, or partner of, or become a consultant or advisor to, any
competitor of the Company in any line of business (except Divested
Businesses) in which the Company is engaged as described in the
Annual Report on Form 10-K for the fiscal year of the Company ended
on February 29, 1996 filed with the Securities and Exchange
Commission.
b. Agreement Not to Solicit Employees. Luiso will
not, on or before June 17, 1998, without the prior written consent of
the Company, solicit any person who is then employed by or otherwise
engaged to perform services for the Company to terminate his or her
relationship with the Company or interfere with the Company's
relationship with any such person. Luiso will not, on or before June
17, 1998, without the prior written consent of the Company, provide
substantive or qualitative information regarding any person who is
then employed by or otherwise engaged to perform services for the
Company to any competitor of the Company in any line of business in
which the Company is engaged as of the date of this Agreement.
c. Agreement Not to Disclose Confidential Commercial
Information. Luiso will not, without the prior written consent of
the Company, disclose to any person, other than an officer or
director of the Company, any trade secrets of the Company or any of
the Company's confidential strategic plans or confidential product
development, marketing, or sales plans; provided, however, that
notwithstanding the provisions of this subparagraph, Luiso will not
be prohibited from disclosing any information that, at the time of
Luiso's disclosure, if any, is available in the public domain; and
provided further, however, that notwithstanding the provisions of
this subparagraph, Luiso may disclose any information, including
material confidential commercial information, if such disclosure is
required by law.
d. Scope of Restrictions. The parties intend that,
if any court of competent jurisdiction holds that any restriction in
subparagraphs 10.a. through 10.c. exceeds the limit of restrictions
that are enforceable under applicable law, then the restriction will
nevertheless apply to the maximum extent that is enforceable under
applicable law.
11. Luiso's Continued Availability. Until June 17, 1997,
Luiso will make himself available, when he is not traveling for
personal or other business reasons, to confer with the Company's
senior executive officers and directors during regular business hours
for reasonable amounts of time regarding the Company's significant
business matters. The Company will reimburse Luiso for any expenses
that he actually incurs when conferring with the Company's senior
executive officers or directors after June 17, 1996, but will not
make any other payments to Luiso for so conferring.
12. Company Cooperation. The Company will ensure that all
proper steps are followed to comply with Luiso's written instructions
with respect to his deferred compensation, stock options, restricted
stock, retirement benefits, and medical, dental, vision, and life
insurance benefits, and will provide him with information that he
reasonably requires in accordance with the applicable employee
benefit plans sponsored by the Company in which he is a participant.
13. Indemnification. Notwithstanding Luiso's separation
from the Company, with respect to events that occurred during his
tenure as an employee, officer, or director of the Company, Luiso
will be entitled, as a former employee, officer, or director of the
Company, to the same rights that are afforded to senior executive
officers or directors of the Company now or in the future, to
indemnification and advancement of expenses provided in the charter
documents of the Company and under applicable law or otherwise, and
to coverage and a legal defense under any applicable general
liability and/or directors' and officers' liability insurance
policies maintained by the Company.
14. Luiso Representation. Luiso represents that, during
the entire period that he was an employee, officer, or director of
the Company, he acted in good faith, had no reasonable cause to
believe that his conduct was unlawful, and reasonably believed that
his conduct was in the best interests of the Company. The parties
intend that the terms used in this paragraph will have the same
meaning as the same terms used in Section 145 of the Delaware General
Corporation Law.
15. Company Representation. The Company represents that
on the date of this Agreement no transaction or other event has
occurred that would constitute a "Change of Control" as that term is
defined in the Employment Agreement.
16. Mutual Confidentiality.
a. General Standard. It is the intent of the parties
that both (i) the substance of Luiso's potential claims against the
Company and (ii) the terms of his separation from the Company,
including the provisions of this Agreement and the Luiso Release and
the Multifoods Release (collectively "Confidential Information"),
will be forever treated as confidential. Accordingly, Luiso and the
Company will not disclose Confidential Information to anyone at any
time, except as provided in subparagraph 16.b. below.
b. Exceptions.
i. It will not be a violation of this Agreement
for the parties to disclose Confidential Information to the Company's
directors and stockholders or in public filings in the form of proxy
statements or other reports required by securities laws or to
governmental agencies as required by law, including, but not limited
to, the Securities and Exchange Commission and any federal or state
tax authority.
ii. It will not be a violation of this Agreement
for Luiso to disclose Confidential Information to his immediate
family, his attorneys, or his accountants or tax advisors.
iii. It will not be a violation of this Agreement
for Luiso to disclose to employers and/or prospective employers that
he is constrained from certain activities as a result of the terms of
subparagraphs 10.a., 10.b., and 10.c. above. Nor will it be a
violation of this Agreement for Luiso to inform Company employees who
ask him about employment opportunities outside the Company that the
terms of paragraph 10.b. of this Agreement preclude him from engaging
in certain activities that could interfere with their employment
with the Company.
iv. It will not be a violation of this Agreement
for either party to disclose Confidential Information to the
Company's auditors, its attorneys, or its directors, officers,
employees, and agents who have a legitimate reason to obtain the
Confidential Information in the course of performing their duties or
responsibilities for the Company.
17. Non-Disparagement. Luiso will not disparage, defame,
or besmirch the reputation, character, image, products, or services
of the Company, or the reputation or character of its directors,
officers, employees, or agents. The Company will not disparage,
defame, or besmirch the reputation, character, or image of Luiso.
18. Claims Involving the Company. Luiso will not
recommend or suggest to any potential claimants or plaintiffs or
their attorneys or agents that they initiate claims or lawsuits
against the Company, any of its affiliates or divisions, or any of
its or their directors, officers, employees, or agents, nor will
Luiso voluntarily aid, assist, or cooperate with any claimants or
plaintiffs or their attorneys or agents in any claims or lawsuits now
pending or commenced in the future against the Company, any of its
affiliates or divisions, or any of its or their directors, officers,
employees, or agents; provided, however, that this paragraph will not
be interpreted or construed to prevent Luiso from giving testimony in
response to questions asked pursuant to a legally enforceable
subpoena, deposition notice, or other legal process, during any legal
proceedings involving the Company, any of its affiliates or
divisions, or any of its or their directors, officers, employees, or
agents.
19. Records, Documents, and Property. Luiso represents
that he has returned to the Company all records, correspondence,
documents, financial data, plans, computer disks, computer tapes, and
other tangible property in his possession belonging to the Company.
20. Time to Consider Agreement. Luiso understands that he
may take at least 21 calendar days to decide whether to sign this
Agreement and the Luiso Release, which 21-day period will commence on
the date on which Luiso first receives copies of this Agreement and
the Luiso Release for review. Luiso represents that if he signs this
Agreement and the Luiso Release before the expiration of the 21-day
period, it is because he has decided that he does not need any
additional time to decide whether to sign this Agreement and the
Luiso Release.
21. Right to Rescind or Revoke. Luiso understands that he
has the right to rescind or revoke this Agreement and the Luiso
Release for any reason within 15 calendar days after he signs them
(which 15-day period expressly includes any other shorter time
periods provided by law). Luiso understands that this Agreement and
the Luiso Release will not become effective or enforceable unless and
until he has not rescinded this Agreement and the Luiso Release and
any applicable rescission period has expired. Luiso understands that
if he wishes to rescind, the rescission must be in writing and hand-
delivered or mailed to the Company. If hand-delivered, the
rescission must be (a) addressed to Mr. Frank W. Bonvino, Vice
President, General Counsel and Secretary, International Multifoods
Corporation, 33 South Sixth Street, Minneapolis, Minnesota 55402;
and (b) delivered to Mr. Bonvino within the 15-day period. If
mailed, the rescission must be: (a) postmarked within the 15-day
period; (b) addressed to Mr. Frank W. Bonvino, Vice President,
General Counsel and Secretary, International Multifoods Corporation,
33 South Sixth Street, P. O. Box 2942, Minneapolis, Minnesota 55402;
and (c) sent by certified mail, return receipt requested.
22. Full Compensation. Luiso and his attorneys, Mackall,
Crounse & Moore, PLC, understand that the payments made and other
consideration provided by the Company under this Agreement will fully
compensate Luiso for and extinguish any and all of the claims Luiso
is releasing in the Luiso Release, including, but not limited to, his
claims for attorneys' fees and costs and any and all claims for any
type of legal or equitable relief.
23. No Admission of Wrongdoing. Luiso understands that
this Agreement does not constitute an admission that the Company has
violated any local ordinance, state or federal statute, or principle
of common law, or that the Company has engaged in any improper or
unlawful conduct or wrongdoing against Luiso. Luiso will not
characterize this Agreement or the payment of any money or other
consideration in accordance with this Agreement as an admission that
the Company has engaged in any improper or unlawful conduct or
wrongdoing against him.
24. Authority. Luiso represents and warrants that he has
the authority to enter into this Agreement and the Luiso Release, and
that no causes of action, claims, or demands released pursuant to
this Agreement and the Luiso Release have been assigned to any person
or entity not a party to this Agreement and the Luiso Release.
25. Representation. Luiso acknowledges that he has been
represented by his own attorneys in this matter, that he has had a
full opportunity to consider this Agreement and the Luiso Release,
that he has had a full opportunity to ask any questions that he may
have concerning this Agreement, the Luiso Release, or the settlement
of his potential claims against the Company, and that he has not
relied upon any statements or representations made by the Company or
its attorneys, written or oral, other than the statements and
representations that are explicitly set forth in this Agreement, the
Luiso Release, the Multifoods Release, the DICAP Plan (to the extent
not modified by this Agreement), the Stock Plans and Luiso's
agreements relating thereto (to the extent not modified by the
special action of the Compensation Committee), the Retirement Plans,
and any other employee benefit plans sponsored by the Company in
which Luiso is a participant.
26. Successors and Assigns. This Agreement will be
binding upon and inure to the benefit of the parties and their
respective heirs, representatives, successors, and assigns,
including, but not limited to, a purchaser of substantially all the
business or assets of the Company, but will not be assignable by
either party without the prior written consent of the other party.
27. Invalidity. In the event that any provision of this
Agreement, the Luiso Release, or the Multifoods Release is determined
by a court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, such a determination will not affect
the validity, legality, or enforceability of the remaining provisions
of this Agreement, the Luiso Release, or the Multifoods Release, and
the remaining provisions of this Agreement, the Luiso Release, and
the Multifoods Release will continue to be valid and enforceable, and
any court of competent jurisdiction may modify the objectionable
provision so as to make it valid and enforceable.
28. Entire Agreement. Before signing this Agreement, the
Luiso Release, and the Multifoods Release, the parties and their
representatives engaged in discussions and negotiations and generated
certain documents, in which the parties and their representatives
considered the matters that are the subject of this Agreement, the
Luiso Release, and the Multifoods Release. In such discussions,
negotiations, and documents, the parties and their representatives
may have expressed their judgments and beliefs concerning the
intentions, capabilities, and practices of the parties, and may have
forecast future events. The parties recognize, however, that all
business transactions, including the transactions upon which the
parties' judgments, beliefs, and forecasts are based, contain an
element of risk, and that it is normal business practice to limit the
legal obligations of contracting parties only to those promises and
representations that are essential to the transaction so as to
provide certainty as to their respective future rights and remedies.
Accordingly, this Agreement, the Luiso Release, the Multifoods
Release, the DICAP Plan (to the extent not modified by this
Agreement), the Stock Plans and Luiso's agreements relating thereto
(to the extent not modified by the special action of the Compensation
Committee), the Retirement Plans, and any other employee benefit
plans sponsored by the Company in which Luiso is a participant are
intended to define the full extent of the legally enforceable
undertakings of the parties, and no promises or representations,
written or oral, that are not set forth explicitly in this Agreement,
the Luiso Release, the Multifoods Release, the DICAP Plan (to the
extent not modified by this Agreement), the Stock Plans and Luiso's
agreements relating thereto (to the extent not modified by the
special action of the Compensation Committee), the Retirement Plans,
or any other employee benefit plans sponsored by the Company in which
Luiso is a participant are intended by either party to be legally
binding, and all other agreements and understandings between the
parties are hereby superseded.
29. Headings. The descriptive headings of the paragraphs
and subparagraphs of this Agreement are inserted for convenience
only, and do not constitute a part of this Agreement.
30. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and
the same instrument.
31. Governing Law. This Agreement, the Luiso Release, and
the Multifoods Release will be interpreted and construed in
accordance with, and any dispute or controversy arising from any
breach or asserted breach of this Agreement, the Luiso Release, or
the Multifoods Release will be governed by, the laws of Minnesota.
IN WITNESS WHEREOF, the parties have executed this
Agreement on the date stated above.
/s/ ANTHONY LUISO
------------------------------------
ANTHONY LUISO
INTERNATIONAL MULTIFOODS
CORPORATION
/s/ ROBERT F. MADDOCKS
------------------------------------
Robert F. Maddocks
Its Executive Vice President
SCHEDULE 1
Termination
Date Number
Grant (Deadline to of Exercise Date
Date exercise) Shares Price Exercisable
- ------- ------------- ------- -------- -----------
11/16/90 8/19/99 22,500 22.75 5/16/91
12/20/91 8/19/99 15,000 25.6875 6/20/92
12/11/92 8/19/99 25,000 28.0625 6/11/93
3/16/87 1/11/97 15,000 19.75 9/16/87
3/16/88 1/11/97 15,000 21.0417 9/16/88
5/5/88 1/11/97 15,000 20.0833 11/05/88
11/17/89 1/11/97 26,250 19.2083 5/17/90
3/17/95 1/11/97 30,000 18.6875 3/17/96
8/18/89 8/19/99 190,483 21.75 4/14/95
3/31/94 6/14/01 20,513 16.875 4/12/95
SCHEDULE 2
1. HealthPartners conversion coverage
(a) $241.28 per month premium at present
(b) conversion at any time during COBRA continuation
coverage period
while covered under HealthPartners group coverage
(c) coverage substantially similar to present group
coverage
(d) no requirement to establish insurability
(e) no pre-existing condition limitations
(f) requirement to reside in service area; out-of-area
coverage
available only for emergencies
2. HealthPartners individual contract purchase
(a) $155.00 per month premium at present
(b) purchase option available only as long as
HealthPartners offers
contract to public
(c) coverage substantially similar to present group
coverage
(d) requirement to establish insurability through physical
exam
(e) no pre-existing condition limitations
(f) requirement to reside in serve area; out-of-area
coverage
available only for emergencies
3. Blue Cross/Blue Shield individual contract purchase
(a) $165.78 per month premium at present
(b) purchase option available only as long as BC/BS offers
contract
to public
(c) $150.00 deductible followed by 80/20 co-pay on next
$5,000.00 of
claims; 100% coverage thereafter on eligible expenses
(d) requirement to establish insurability through physical
exam
(e) 12-month exclusion for pre-existing conditions
(f) no requirement to reside in specific service area
SCHEDULE 3
Luiso may elect to begin receiving pension benefits as early as
February 1, 1999 (the first of the month next following his 55th
birthday), as late as February 1, 2009 (the first of the month next
following his 65th birthday), or on the first of any month between
those two dates. Shown below are the annual pension benefits payable
under the life-only payment option starting February 1, 1999:
Pension Equity Plan $ 13,212
Management Benefit Plan
Bonus Related 132,453
Qualified Plan Restoration 35,093
Supplemental Retirement Benefit 67,294
-----------
$ 248,052
Luiso may elect immediate commencement of benefits under the Pension
Equity Plan. The lump sum benefit payable effective June 16, 1996
would be $99,200. The life-only annuity starting July 1, 1996 would
be $7,511 per year. Such an election would not affect the benefit
amount or starting date of payments from the other plans.
EXHIBIT A
STRICTLY CONFIDENTIAL
LUISO RELEASE
Definitions. All words used in this Release have their plain
meanings in ordinary English. Specific terms used in this Release
have the following meanings:
A. "I", "me", and "my" mean both me and anyone who has or
obtains any legal rights or claims through me.
B. "Corporation" means International Multifoods Corporation,
a Delaware corporation, any of its present or past affiliates,
divisions, committees, or joint venture partners, and any of its
predecessors, successors, or assigns.
C. "Employer" means the Corporation, any company providing
insurance to the Corporation in the present or past, any present or
past stock option, deferred compensation, retirement, or other
employee benefit plans sponsored by the Corporation, any present or
past directors, officers, employees, or agents of the Corporation,
and any person who acted on behalf of or on instructions from the
Corporation.
D. "Agreement" means the Separation Agreement between the
Corporation and me that I am executing on the same date that I
execute this Release, together with all the documents attached to the
Agreement.
E. "My Claims" mean all of my existing rights to any relief
of any kind from the Employer, whether or not I now know about those
rights, including, but not limited to:
1. all claims that arise out of or that relate to my
employment or the termination of my employment with the Employer;
2. all claims that arise out of or that relate to the
statements or actions of the Employer;
3. all claims for any alleged unlawful discrimination
or any other alleged unlawful practices that arise out of or that
relate to the statements or actions of the Employer, including, but
not limited to, claims under the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities
Act, the Civil Rights Act of 1991, the Minnesota Human Rights Act,
the Minnesota Workers' Compensation Act, and any federal or state
wage and hour laws; and claims that the Employer engaged in conduct
prohibited on any other basis under any federal, state, or local
statute, ordinance, or regulation;
4. all claims arising out of the execution,
performance, or termination of any employment agreement or any other
agreement or contract of any kind between the Employer and me; all
claims for alleged unpaid compensation, expenses, stock options,
deferred compensation, retirement, and employee benefits; wrongful
discharge; harassment; retaliation or reprisal; constructive
discharge; assault or battery; defamation; intentional or negligent
infliction of emotional distress; invasion of privacy; false
imprisonment; fraud; intentional or negligent misrepresentation;
interference with contractual or business relationships; violation of
public policy; my conduct, if any, as a "whistleblower"; negligence;
false imprisonment; breach of contract; breach of fiduciary duty;
breach of the covenant of good faith and fair dealing; promissory or
equitable estoppel; any other wrongful employment practices; and all
claims under any other principle of common law; and
5. all claims for compensatory damages, liquidated
damages, punitive damages, attorneys' fees, costs, and disbursements;
but excluding all claims that I may have under the Agreement or,
except as modified by the Agreement, under any stock option, deferred
compensation, retirement, or other employee benefit plans sponsored
by the Corporation in which I am a participant, or my rights to
indemnification and advancement of expenses as provided in the
charter documents of the Corporation and under applicable law, and to
coverage and a legal defense under any applicable general liability
and/or directors' and officers' liability insurance policies
maintained by the Corporation.
Agreement to Release My Claims. I will receive certain sums of money
and other consideration from the Employer as set forth in the
Agreement if I sign and do not rescind this Release as provided
below. In exchange for that money and other consideration, I agree
to give up all My Claims. I will not bring any lawsuits or make any
other demands against the Employer based on My Claims. The money and
other consideration that I will receive in exchange for this Release
are a full and fair payment for the release of My Claims. The
Employer does not owe me anything for the release of My Claims in
addition to the money and other consideration that I am receiving in
exchange for this Release.
My Right to Decide Whether to Sign this Release. I understand that I
may take at least 21 calendar days to decide whether to sign this
Release, and that this 21-day period will begin when I first receive
a copy of this Release. If I sign this Release before the expiration
of the 21-day period, it is because I have decided that I do not need
any additional time to decide whether to sign this Release.
My Right to Rescind this Release. I understand that I have the right
to rescind (that is, cancel or revoke) this Release for any reason
within 15 calendar days after I sign it. I understand that this 15-
day period includes any other shorter time periods provided by law.
I understand that this Release will not become effective or
enforceable unless and until the rescission period has expired and I
have not rescinded this Release. I understand that if I wish to
rescind, the rescission must be in writing and hand-delivered or
mailed to the Employer. If hand-delivered, the rescission must be:
(a) addressed to Mr. Frank W. Bonvino, Vice President, General
Counsel and Secretary, International Multifoods Corporation, 33 South
Sixth Street, Minneapolis, Minnesota 55402; and (b) delivered to Mr.
Bonvino within the 15-day period. If mailed, the rescission must be:
(a) postmarked within the 15-day period; (b) addressed to Mr. Frank
W. Bonvino, Vice President, General Counsel and Secretary,
International Multifoods Corporation, 33 South Sixth Street, P. O.
Box 2942, Minneapolis, Minnesota 55402; and (c) sent by certified
mail, return receipt requested.
Confidentiality. I understand that the terms of this Release are
confidential, and that I may not disclose those terms to any person
except under the circumstances described in the Agreement.
Additional Agreements and Understandings. Even though the Employer
will pay me for the release of My Claims, the Employer does not admit
that it is responsible or legally obligated to me for My Claims. In
fact, I understand that the Employer denies that it is responsible or
legally obligated for My Claims or that it has engaged in any
improper or unlawful conduct or wrongdoing against me.
I have read this Release carefully and I understand all its
terms. I have been advised to consult with my own attorneys prior to
executing this Release. I have discussed this Release with my own
attorneys, who have fully explained it to me. In agreeing to sign
this Release, I have not relied on any statements or explanations
made by the Employer or its attorneys, other than statements made in
this Release, the Agreement, the Release executed by the Corporation,
and, except as modified by the Agreement, any stock option or
restricted stock (including my agreements relating thereto), deferred
compensation, retirement, and other employee benefit plans sponsored
by the Corporation in which I am a participant.
I understand and agree that this Release, the Agreement, the
Release executed by the Corporation, and, except as modified by the
Agreement, any stock option or restricted stock (including my
agreements relating thereto), deferred compensation, retirement, and
other employee benefit plans sponsored by the Corporation in which I
am a participant contain all the agreements between the Employer and
me relating to this settlement. We have no other written or oral
agreements relating to this settlement.
I am not under any legal disabilities that prevent me from being
legally bound by the agreements that I am making in this Release. I
am legally able and entitled to receive the money and other
consideration that I will receive from the Employer as set forth in
the Agreement in settlement of My Claims.
Dated: June ____, 1996. _____________________________
ANTHONY LUISO
Witnesses:
_________________________
_________________________
EXHIBIT B
STRICTLY CONFIDENTIAL
MULTIFOODS RELEASE
Definitions. All words used in this Release have their plain
meanings in ordinary English. Specific terms used in this Release
have the following meanings:
A. "Multifoods" means International Multifoods Corporation
("Corporation"), any company providing insurance to the Corporation
in the present or past, any present or past stock option, deferred
compensation, retirement, or other employee benefit plans sponsored
by the Corporation, any present or past affiliates, divisions,
committees, or joint venture partners of the Corporation, any
predecessors, successors, or assigns of the Corporation, and any
person who acted on behalf of or on instructions from the
Corporation.
B. "Luiso" means Anthony Luiso and anyone who has or obtains
any legal rights or claims through him.
C. "Agreement" means the Separation Agreement between Luiso
and the Corporation that the Corporation is executing on the same
date that the Corporation executes this Release, together with all
the documents attached to the Agreement.
D. "Multifoods' Claims" means all of Multifoods' existing
rights to any relief of any kind from Luiso, whether or not
Multifoods now knows about those rights, including, but not limited
to:
1. all claims that arise out of or that relate to
Luiso's employment or the termination of his employment with
Multifoods;
2. all claims that arise out of or that relate to the
statements or actions of Luiso;
3. all claims that arise out of the execution,
performance, or termination of any employment agreement or any other
agreement or contract of any kind between Luiso and Multifoods;
4. all claims that Multifoods could have made in
response to any claims that Luiso has or could have asserted against
Multifoods; and
5. all claims for compensatory damages, liquidated
damages, punitive damages, attorneys' fees, costs, and disbursements;
but excluding all claims Multifoods may have under the
Agreement.
Agreement to Release Multifoods' Claims. Multifoods will receive
certain consideration from Luiso as set forth in the Agreement and
the Release executed by him, subject to the terms of the Agreement.
In exchange for that consideration, Multifoods agrees to give up all
Multifoods' Claims. Multifoods will not bring any lawsuits or make
any other demands against Luiso based on Multifoods' Claims. The
consideration that Multifoods will receive in exchange for this
Release is a full and fair payment for the release of Multifoods'
Claims. Luiso does not owe Multifoods anything for the release of
Multifoods' Claims in addition to the consideration that Multifoods
is receiving in exchange for this Release.
Additional Agreements and Understandings. Even though Luiso will
provide consideration to Multifoods for the release of Multifoods'
Claims, Luiso does not admit that he is responsible or legally
obligated to Multifoods for Multifoods' Claims. In fact, Multifoods
understands that Luiso denies that he is responsible or legally
obligated for Multifoods' Claims or that he has engaged in any
improper or unlawful conduct or wrongdoing against Multifoods.
The Corporation, through its undersigned officer, has read
this Release carefully and understands all its terms. The
Corporation has consulted with its own attorneys prior to executing
this Release, who have fully explained it to the Corporation. In
agreeing to sign this Release, the Corporation has not relied on any
statements or explanations made by Luiso or his attorneys, other than
statements made in this Release, the Agreement, and the Release
executed by Luiso.
Multifoods understands and agrees that this Release, the
Agreement, the Release executed by Luiso, and, except as modified by
the Agreement, any stock option or restricted stock (including
Luiso's agreements relating thereto), deferred compensation,
retirement, or other employee benefit plans sponsored by the
Corporation in which Luiso is a participant contain all the
agreements between Multifoods and Luiso relating to this settlement.
Multifoods and Luiso have no other written or oral agreements
relating to this settlement.
The undersigned officer of the Corporation has the
authority to legally bind Multifoods by the agreements that
Multifoods is making in this Release, and represents that Multifoods
is not under any legal disabilities that prevent it from being
legally bound by the agreements that Multifoods is making in this
Release.
Dated: June _____, 1996. INTERNATIONAL MULTIFOODS
CORPORATION
By:__________________________
Robert F. Maddocks
Its Executive Vice President
EXHIBIT C
STRICTLY CONFIDENTIAL
__________________, 1996
Mr. Frank W. Bonvino
Vice President, General Counsel and Secretary
International Multifoods Corporation
33 South Sixth Street, 49th Floor
P. O. Box 2942
Minneapolis, MN 55402-0942
Dear Mr. Bonvino:
This is to confirm that I have not rescinded and will not take
action to rescind the Separation Agreement and Release that I
executed in favor of International Multifoods Corporation and others
on June __, 1996.
Very truly yours,
___________________________
Anthony Luiso
Exhibit 11
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Computation of Earnings (Loss) per Common Share
(unaudited)
(in thousands, except per share amounts)
THREE MONTHS ENDED
May 31, May 31,
1996 1995
Average shares of common stock outstanding 17,969 17,956
Common stock equivalents 33 75
Total common stock and
equivalents assuming
full dilution 18,002 18,031
Net earnings (loss) $ (433) $4,564
Less dividends on redeemable preferred stock - (42)
Net earnings (loss) applicable to common stock $ (433) $4,522
Earnings (loss) per share of common stock:
Primary $ (.02) $ .25
Fully diluted $ (.02) $ .25
Primary earnings (loss) per share has been computed by dividing net
earnings (loss), after deduction of preferred stock dividends, by
the weighted average number of shares of common stock outstanding
during the period. Common stock options and other common stock
equivalents have not entered into the primary earnings per share
computations since their effect is not significant.
Fully diluted earnings (loss) per share has been computed assuming
issuance of all shares for stock options deemed to be common stock
equivalents, using the treasury stock method.
Exhibit 12
INTERNATIONAL MULTIFOODS CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(unaudited)
(in thousands)
THREE MONTHS ENDED
May 31, May 31,
1996 1995
Earnings (loss) before income taxes $(1,082) $ 7,022
Plus: Fixed charges (1) 6,680 7,742
Less: Capitalized interest (9) (44)
Earnings available to cover
fixed charges $ 5,589 $14,720
Ratio of earnings to fixed charges (2) 0.84 1.90
(1) Fixed charges consisted of the following:
THREE MONTHS ENDED
May 31, May 31,
1996 1995
Interest expense, gross $4,389 $5,301
Rentals (Interest factor) 2,291 2,441
Total fixed charges $6,680 $7,742
(2) For the three months ended May 31, 1996 earnings were inadequate to
cover fixed charges by $1,091. The deficiency was the result of unusual
items as described in Note 3 to the consolidated condensed financial
statements. Excluding the unusual items, the ratio of earnings to fixed
charges would have been 1.38 for the three months ended May 31, 1996.
<TABLE> <S> <C>
<S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED CONDENSED BALANCE SHEET, STATEMENTS OF OPERATIONS AND CASH FLOWS
AND ACCOMPANYING NOTES AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS AND NOTES.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> FEB-28-1997
<PERIOD-END> MAY-31-1996
<CASH> 9,590
<SECURITIES> 0
<RECEIVABLES> 166,676
<ALLOWANCES> 9,925
<INVENTORY> 252,275
<CURRENT-ASSETS> 472,044
<PP&E> 343,139
<DEPRECIATION> 118,743
<TOTAL-ASSETS> 832,700
<CURRENT-LIABILITIES> 285,337
<BONDS> 203,094
0
0
<COMMON> 2,184
<OTHER-SE> 293,572
<TOTAL-LIABILITY-AND-EQUITY> 832,700
<SALES> 626,073
<TOTAL-REVENUES> 626,073
<CGS> 536,758
<TOTAL-COSTS> 536,758
<OTHER-EXPENSES> 40,431
<LOSS-PROVISION> 767
<INTEREST-EXPENSE> 4,380
<INCOME-PRETAX> (1,082)
<INCOME-TAX> (649)
<INCOME-CONTINUING> (433)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (433)
<EPS-PRIMARY> (0.02)
<EPS-DILUTED> 0.00
</TABLE>
