Exhibit 4.7
AMENDING AGREEMENT
This Agreement is made as of the 1st day of November, 1999 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 parties hereto other than Multifoods Inc. have entered
into a credit agreement dated as of May 30, 1996 which agreement was
amended as of the 30th day of September, 1997 (the "Credit Agreement")
and the parties wish to further amend the Credit Agreement to permit
Multifoods Inc., a subsidiary of Robin Hood Multifoods Inc. to borrow
under the Credit established under the Credit Agreement.
In consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Interpretation. In this Agreement, defined terms shall have the
meaning given in the Credit Agreement.
2. Amendments.
(a) Section 2.1(a) of the Credit Agreement is amended to read as
follows:
(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 including Accommodation
obtained by Multifoods Inc. under Section 2.1(2A), shall not at any
time exceed $100,000,000.
(b) Section 2.1(2A) is added to the Credit Agreement
as follows:
(2A) Accommodation by Multifoods Inc.:
Subject to the terms of this Agreement (including the restrictions
contained in this Article), Multifoods Inc. may obtain Accommodation
under Credit A and the terms of this Agreement shall apply to such
Accommodation as if such Accommodation were obtained by the Borrower.
Multifoods Inc. agrees to be bound by all of the provisions of the
Credit Agreement relating to such Accommodation.
(c) Section 9.1 of the Credit Agreement is amended to read as
follows:
9.1 Guarantee
The present and future indebtedness and liability of the Borrower and
Multifoods Inc. to the Lenders, including the Swingline 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".
(d) Schedule H to the Credit Agreement is hereby
deleted and Schedule H in the form attached to this Agreement is
substituted therefor.
3. Continuing Effect. Each of the parties hereto acknowledges and
agrees that the Credit Agreement, as amended by this Agreement, shall
be and continue in full force and effect.
4. 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 the
Agreement as of the date and year first above written.
ROBIN HOOD MULTIFOODS INC.
By: /s/ D. H. Twiner
Name: Donald H. Twiner
Title: President
MULTIFOODS INC.
By: /s/ D. H. Twiner
Name: Donald H. Twiner
Title: President
Commitment: $35,000,000 CANADIAN IMPERIAL BANK OF
Swing Line COMMERCE, as Lender
Commitment: $10,000,000
Address:
Commerce Court West, 9th Floor By: /s/ Mario Biscardi
Toronto, Ontario, M5L 1A2 Name: Mario Biscardi
Title: Commercial Lending
Specialist
Attn: Mr. M. Spagnolo By: /s/ M. Spagnolo
Executive Director Name: M. Spagnolo
Telephone: (416) 956-3327 Title: Director
Facsimile: (416) 304-5704
Commitment: $35,000,000 THE TORONTO-DOMINION BANK, as Lender
Address:
55 King Street West By: /s/ Parin Kanji
Toronto-Dominion Bank Tower, Name: Parin Kanji
9th Floor - P.O. Box 1 Title: Assistant Manager
Toronto, Ontario M5K 1A2
Attn: Parin Kanji By: [left blank intentionally]
Assistant Manager Name:
Telephone: (416) 827-7586 Title:
Commitment: $30,000,000 BANK OF NOVA SCOTIA, as Lender
Address:
Corporate Banking By: /s/ K. Coulson
44 King Street West, 16th Floor Name: K. Coulson
Toronto, Ontario, M5H 1H1 Title: Director
Attn: Ms. Kathleen Coulson By: /s/ Judy McKay
Relationship Manager Name: Judy McKay
Telephone: (416) 866-6078 Title: Director
Facsimile: (416) 866-2009
CANADIAN IMPERIAL BANK OF
COMMERCE, as Agent
By: /s/ M.W. Lobo
Name: M.W. Lobo
Title: Associate
SCHEDULE H
GUARANTEE
WHEREAS Robin Hood Multifoods Inc. has entered into a credit
agreement dated as of May 30, 1996, among Robin Hood Multifoods Inc.,
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 the Credit Agreement has been amended by Amending
Agreement dated as of November 1, 1999 to permit Multifoods Inc., a
subsidiary of Robin hood Multifoods Inc., to obtain accommodation under
Credit A established under 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 each of Robin Hood Multifoods Inc. and
Multifoods Inc. 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 and the term the
"Debtor" shall mean each of Robin Hood Multifoods Inc. and Multifoods
Inc. in their separate capacities.
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
claims 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 defense 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 nonperformance,
protests, notices of protest, notices of dishonor, 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 nor 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 on
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 28, 1999, 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 28, 1999 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.
24. This Guarantee replaces the Guarantee dated May 30, 1996 in
favour of the Agent on behalf of the Lenders which Guarantee is hereby
cancelled.
EXECUTED at Minneapolis, Minnesota as of the 1st day of November,
1999.
INTERNATIONAL MULTIFOODS
CORPORATION
By:__________________________
Name:
Title: