Exhibit 10.27(a)
EXECUTION COPY
$600,000,000
CREDIT AGREEMENT
dated as of
January 24, 1997
among
Tastemaker,
as Borrower
Fries & Fries, Inc.,
as Guarantor
Mallinckrodt Inc.,
as Guarantor
The Banks Parties Hereto
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent
Citibank, N.A.,
as Documentation Agent
_________________
▇.▇. ▇▇▇▇▇▇ Securities Inc. and Citicorp Securities, Inc.,
Co-Syndication Agents
▇.▇. ▇▇▇▇▇▇ Securities Inc. and Citicorp Securities, Inc.
Co-Arrangers
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.01. Definitions.................................1
Section 1.02. Accounting Terms and Determinations........15
Section 1.03. Types of Borrowings........................15
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend........................15
Section 2.02. Notice of Committed Borrowing..............16
Section 2.03. Money Market Borrowings....................16
Section 2.04. Notice to Banks; Funding of Loans..........20
Section 2.05. Notes......................................21
Section 2.06. Maturity of Loans..........................22
Section 2.07. Interest Rates.............................22
Section 2.08. Facility Fees..............................25
Section 2.09. Optional Termination or Reduction
of Commitments.............................25
Section 2.10. Method of Electing Interest Rates..........25
Section 2.11. Scheduled Termination of Commitments.......27
Section 2.12. Optional Prepayments.......................27
Section 2.13. General Provisions as to Payments..........28
Section 2.14. Funding Losses.............................28
Section 2.15. Computation of Interest and Fees...........29
Section 2.16. Regulation D Compensation..................29
Section 2.17. Borrower Change of Control.................30
ARTICLE 3
Conditions
Section 3.01. Closing....... ..........................30
Section 3.02. Borrowings.................................31
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence........................32
Section 4.02. Financial Condition........................32
Section 4.03. Litigation.................................33
Section 4.04. No Breach..................................34
Section 4.05. Action.....................................34
Section 4.06. Approvals..................................34
Section 4.07. ERISA......................................34
Section 4.08. Taxes......................................35
Section 4.09. Investment Company Act.....................35
Section 4.10. Public Utility Holding Company Act.........35
Section 4.11. True and Complete Disclosure...............35
Section 4.12. Environmental Matters......................36
ARTICLE 5
Covenants
Section 5.01. Financial Statements, Etc..................36
Section 5.02. Litigation.................................39
Section 5.03. Existence, Etc.............................39
Section 5.04. Insurance..................................39
Section 5.05. Limitation on Liens........................40
Section 5.06. Mergers, Etc...............................42
Section 5.07. Change in Nature of Business...............42
Section 5.08. Total Debt to Total Capital Ratio..........42
Section 5.09. Indebtedness of Subsidiaries...............42
Section 5.10. Transactions with Affiliates...............43
Section 5.11. Use of Proceeds............................43
Section 5.12. Environmental Laws.........................43
Section 5.13. Most Favored Lender........................44
ARTICLE 6
Defaults
Section 6.01. Events of Default..........................44
Section 6.02. Notice of Default..........................47
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization..............48
Section 7.02. Agent and Affiliates.......................48
Section 7.03. Action by Agent............................48
Section 7.04. Consultation with Experts..................48
Section 7.05. Liability of Agent.........................48
Section 7.06. Indemnification............................49
Section 7.07. Credit Decision............................49
Section 7.08. Successor Administrative Agent.............49
Section 7.09. Agents' Fees...............................50
Section 7.10. Documentation Agent and Co-Agents..........50
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate
Inadequate or Unfair......................50
Section 8.02. Illegality.................................51
Section 8.03. Increased Cost and Reduced Return..........51
Section 8.04. Taxes......................................53
Section 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans.................55
Section 8.06. Substitution of Bank.......................55
ARTICLE 9
Fries & Fries Guaranty
Section 9.01. The Fries & Fries Guaranty.................56
Section 9.02. Guaranty Unconditional.....................56
Section 9.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances....57
Section 9.04. Waiver by Fries & Fries....................57
Section 9.05. Subrogation................................57
Section 9.06. Stay of Acceleration.......................57
ARTICLE 10
Mallinckrodt Guaranty
Section 10.01. The Mallinckrodt Guaranty..................58
Section 10.02. Guaranty Unconditional.....................58
Section 10.03. Discharge Only upon Payment in Full;
Reinstatement in Certain
Circumstances.............................59
Section 10.04. Waiver by Mallinckrodt....................59
Section 10.05. Subrogation...............................59
Section 10.06. Stay of Acceleration......................60
ARTICLE 11
Miscellaneous
Section 11.01. Notices...................................60
Section 11.02. No Waivers................................60
Section 11.03. Expenses; Indemnification.................60
Section 11.04. Sharing of Set-offs.......................61
Section 11.05. Amendments and Waivers....................62
Section 11.06. Successors and Assigns....................62
Section 11.07. Collateral................................64
Section 11.08. Governing Law; Submission
to Jurisdiction..........................64
Section 11.09. Counterparts; Integration; Effectiveness..64
Section 11.10. Waiver of Jury Trial......................65
Section 11.11. Confidentiality...........................65
EXHIBIT A - Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E-1 - Opinion of Counsel for the Borrower
EXHIBIT E-2 - Opinion of Counsel for the Guarantors
EXHIBIT E-3 - Opinion of Special Counsel for the Obligors
EXHIBIT F - Opinion of Special Counsel for the Agents
EXHIBIT G - Assignment and Assumption Agreement
EXHIBIT H - Pledge Agreement
CREDIT AGREEMENT
AGREEMENT dated as of January 24, 1997 among TASTEMAKER, as
Borrower, FRIES & FRIES, INC., as Guarantor of the obligations of the
Borrower hereunder, MALLINCKRODT INC., as Guarantor of the
obligations of Fries & Fries hereunder, the BANKS party hereto from
time to time, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent and CITIBANK, N.A., as Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section
2.03.
"Adjusted CD Rate" has the meaning set forth in Section
2.07(b).
"Administrative Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, in its capacity as administrative agent for the Banks
hereunder, and its successors in such capacity.
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent (with
a copy to the Borrower) duly completed by such Bank.
"Affiliate" means any Person that directly or indirectly
controls, or is under common control with, or is controlled by,
Mallinckrodt and, if such Person is an individual, any member of the
immediate family (including parents, spouse, children and siblings)
of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any
Person who is controlled by any such member or trust. As used in
this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract
or otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 15% or more of the voting
power for the election of directors or other governing body of a
corporation or 15% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or
other Person. Notwithstanding the foregoing, (a) no individual shall
be an Affiliate solely by reason of his or her being a director,
officer or employee of Mallinckrodt or any of its Subsidiaries and
(b) none of the Subsidiaries of Mallinckrodt shall be Affiliates.
"Agent" means each of the Administrative Agent, the Collateral
Agent and the Documentation Agent, and "Agents" means all or any
combination of the foregoing.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Domestic Loans, its Domestic Lending Office,
(ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending
Office and (iii) in the case of its Money Market Loans, its Money
Market Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 11.06(c), and
their respective successors.
"Bankruptcy Code" means the United States Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of
1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan which bears interest
at the Base Rate pursuant to the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election or the provisions of
Article 8 or (ii) an overdue amount which was a Base Rate Loan
immediately before it became overdue.
"Borrower" means Tastemaker, a Delaware general partnership the
general partners of which are Fries & Fries and Hercules Flavor, Inc.
(a subsidiary of Hercules Incorporated), and the successors of such
general partnership.
"Borrowing" has the meaning set forth in Section 1.03.
"Capital Lease Obligations" means, for any Person, all
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement conveying the right to use) Property to the
extent such obligations are required to be classified and accounted
for as a capital lease on a balance sheet of such Person under GAAP
(including Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board), and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means (i) a Committed Loan which bears interest at a
CD Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was
a CD Loan immediately before it became overdue.
"CD Rate" means a rate of interest determined pursuant to
Section 2.07(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means The Chase Manhattan Bank, The First
National Bank of Chicago, Citibank, N.A., and ▇▇▇▇▇▇ Guaranty Trust
Company of New York.
"Closing Date" means the date on or after the Effective Date on
which the Administrative Agent shall have received the documents
specified in or pursuant to Section 3.01.
"Co-Agents" means Bank of America Illinois, The Chase Manhattan
Bank, and The First National Bank of Chicago in their capacity as
co-agents hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" has the meaning set forth in the Pledge Agreement.
"Collateral Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as collateral agent under the Pledge Agreement, and its
successors in such capacity.
"Commitment" means, with respect to each Bank listed on the
signature pages hereof, the amount set forth opposite the name of
such Bank on the signature pages hereof, and with respect to any Bank
which becomes a party to this Agreement pursuant to Section 11.06(c),
the amount of the Commitment thereby assumed by such Bank, in each
case as such amount may be reduced from time to time pursuant to
Sections 2.09 and 11.06(c) or increased pursuant to Section 11.06(c).
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01; provided that, if any such loan or loans (or portions
thereof)are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Committed Loan" shall refer to the combined
principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the
case may be.
"Consolidated Net Worth" means, as at any date, the sum, for
Mallinckrodt and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following:
(a) the amount of capital stock, plus
(b) the amount of capital in excess of par value, plus
(c) the amount of reinvested earnings (or in the case of a
reinvested earnings deficit, minus the amount of such deficit), minus
(d) the cost of treasury stock.
"Covenant" means, with respect to any agreement or instrument
representing or governing Indebtedness, any covenant (whether
expressed as a covenant or an event of default) contained therein.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time
or both would, unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing
transactions.
"Documentation Agent" means Citibank, N.A. in its capacity as
documentation agent for the Banks hereunder.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City are
authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic
Lending Office)or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Borrower
and the Agent; provided that any Bank may so designate separate
Domestic Lending Offices for its Base Rate Loans, on the one hand,
and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed
to refer to either or both of such offices, as the context may
require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 11.09.
"Environmental Claim" means, with respect to any Person, (a)
any written or oral notice, claim, demand or other communication
(collectively, a "claim") by any other Person alleging or asserting
such Person's liability for investigatory costs, cleanup costs,
governmental response costs, damages to natural resources or other
Property, personal injuries, fines or penalties arising out of, based
on or resulting from (i)the presence, or Release into the
environment, of any Hazardous Material at any location, whether or
not owned by such Person, or (ii) circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law. The
term "Environmental Claim" shall include, without limitation, any
claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant
to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment.
"Environmental Laws" means any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any
orders or decrees, in each case as now or hereafter in effect,
relating to the regulation or protection of human health, safety or
the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment,
including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Affiliate" means any corporation or trade or business
that is a member of any group of organizations (i) described in
Section 414(b) or (c) of the Code of which Mallinckrodt is a member
and (ii) solely for purposes of potential liability under Section
302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien
created under Section 302(f) of ERISA and Section 412(n) of the Code,
described in Section 414(m) or (o) of the Code of which Mallinckrodt
is a member.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including
dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice to the Borrower
and the Administrative Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears
interest at a Euro-Dollar Rate pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or (ii) an
overdue amount which was a Euro-Dollar Loan immediately before it
became overdue.
"Euro-Dollar Rate" means a rate of interest determined pursuant
to Section 2.07(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices
of The Chase Manhattan Bank, The First National Bank of Chicago,
Citibank, N.A., and ▇▇▇▇▇▇ Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
for a member bank of the Federal Reserve System in New York City with
deposits exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States
office of any Bank to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Domestic Business Day next succeeding
such day, provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if
no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New York on
such day on such transactions as determined by the Administrative
Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at
the Base Rate pursuant to Section 8.01) or any combination of the
foregoing.
"Fries & Fries" means Fries & Fries, Inc., a Delaware
corporation, and its successors.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section
1.02 hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"Group of Loans" means at any time a group of Loans consisting
of (i) all Committed Loans which are Base Rate Loans at such time,
(ii) all Euro-Dollar Loans having the same Interest Period at such
time or (iii) all CD Loans having the same interest period at such
time, provided that, if a Committed Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.02 or
8.05, such Loan shall be included in the same Group or Groups of
Loans from time to time as it would have been in if it had not been
so converted or made.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise directly or indirectly to be or become
contingently liable under or with respect to, the Indebtedness of any
Person, but excluding endorsements for collection or deposit in the
ordinary course of business. The terms "Guarantee" and "Guaranteed"
used as a verb shall have a correlative meaning.
"Guarantor" means each of Fries & Fries and Mallinckrodt.
"Hazardous Material" means collectively, (a) any petroleum or
petroleum products, flammable explosives, radioactive materials,
asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, and transformers or other equipment
that contain dielectric fluid containing polychlorinated biphenyls
(PCB's), (b) any chemicals or other materials or substances which are
now or hereafter become defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or
words of similar import under any Environmental Law and (c) any other
chemical or other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any Environmental
Law.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by
loan, the issuance and sale of debt securities or the sale of
Property to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property from such
Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade
accounts payable are payable within one year of the date the
respective goods are delivered; (c) Indebtedness of others secured by
a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d)
obligations of such Person under any contract for the purchase of
materials, supplies or other Property or the rendering of services if
such contract (or any related document) requires that payment for
such materials, supplies or other Property or services shall be made
regardless of whether or not delivery of such materials, supplies or
other Property is ever made or tendered or such services are ever
rendered; (e) obligations of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person (other than
commercial documentary letters of credit); (f) Capital Lease
Obligations of such Person; and (g) Indebtedness of others Guaranteed
by such Person; provided, that Indebtedness of Mallinckrodt and its
Subsidiaries shall not include obligations of Mallinckrodt and its
Subsidiaries in respect of unfunded liabilities of Mallinckrodt in
respect of postretirement health and welfare benefits under Financial
Accounting Standards Board Statement of Financial Accounting
Standards No. 106 ("Employers' Accounting for Postretirement Benefits
Other Than Pensions") not in excess of $96,000,000 in the aggregate.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Loan, the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in the
applicable Notice of Interest Rate Election and ending one, two,
three or six months thereafter, as the Borrower may elect in the
applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date
(determined at the commencement of such Interest Period);
(2) with respect to each CD Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing
or on the date specified in the applicable Notice of Interest Rate
Election and ending 30, 60, 90 or 180 days thereafter, as the
Borrower may elect in the applicable notice; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination Date
(determined at the commencement of such Interest Period);
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable
Notice of Borrowing and ending such whole number of months thereafter
(but not less than 1 month) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination Date
(determined at the commencement of such Interest Period); and
(4) with respect to each Money Market Absolute Rate Loan, the
period commencing on the date of borrowing specified in the
applicable Notice of Borrowing and ending such number of days
thereafter (but not less than 7 days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination Date
(determined at the commencement of such Interest Period).
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank
Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such Property. For purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to such
Property.
"Loan" means a Domestic Loan, a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Domestic Loans, Euro-Dollar Loans or
Money Market Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes and the Pledge
Agreement.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Mallinckrodt" means Mallinckrodt Inc., a New York corporation,
and its successors.
"Margin Stock" means "margin stock" within the meaning of
Regulations U and X.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition, operations or business taken as a whole
of Mallinckrodt and its Subsidiaries, (b) the ability of any Obligor
to perform its respective obligations under the Loan Documents, (c)
the validity or enforceability of this Agreement or of the Notes or
(d) the rights and remedies of the Banks and the Agents under the
Loan Documents.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Money Market Lending
Office by notice to the Borrower and the Administrative Agent;
provided that any Bank may from time to time by notice to the
Borrower and the Administrative Agent designate separate Money Market
Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in
which case all references herein to the Money Market Lending Office
of such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest
at the Base Rate pursuant to Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.03(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been made
by Mallinckrodt or any ERISA Affiliate and which is covered by Title
IV of ERISA.
"Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Loans, and "Note" means any one of such
promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as
defined in Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"Obligor" means any of the Borrower or either Guarantor, and
"Obligors" means all or any combination of the foregoing.
"Operating Lease Amount" means, at any time, an amount equal to
seven times the amount by which (i) the minimum rental commitments
under non-cancelable operating leases of Mallinckrodt and its
Subsidiaries for the fiscal year of Mallinckrodt and its Subsidiaries
following the most recent fiscal year for which audited financial
statements are available at such time, as reflected in the notes to
such financial statements, exceed (ii)$50,000,000.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means an employee benefit or other plan established or
maintained by Mallinckrodt or any ERISA Affiliate and that is covered
by Title IV of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" means the Pledge Agreement dated as of the
date hereof between the Borrower and the Collateral Agent,
substantially in the form of Exhibit H and as amended from time to
time.
"Prime Rate" means the rate of interest publicly announced by
▇▇▇▇▇▇ Guaranty Trust Company of New York in New York City from time
to time as its Prime Rate.
"Property" means any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"Quarterly Date" means the last day of March, June, September
and December in each year, the first of which shall be the first such
day after the date of this Agreement; provided that if any such day
is not a Euro-Dollar Business Day, then such Quarterly Date shall be
the next preceding Euro-Dollar Business Day.
"Reference Banks" means the CD Reference Banks or the
Euro-Dollar Reference Banks, as the context may require, and
"Reference Bank" means any one of such Reference Banks.
"Regulations U and X" mean, respectively, Regulations U and X
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without
limitation, the movement of Hazardous Materials through ambient air,
soil, surface water, ground water, wetlands, land or subsurface
strata.
"Required Banks" means at any time Banks having at least 51% of
the aggregate amount of the Commitments or, if the Commitments shall
have been terminated, holding Notes evidencing at least 51% of the
aggregate unpaid principal amount of the Loans.
"Revolving Credit Period" means the period from and including
the Effective Date to and excluding the Termination Date.
"Securities" has the meaning set forth in Section 5.11.
"Subsidiary" means, as to any Person, any corporation, limited
liability company, partnership or other entity of which at least a
majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board
of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or
not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity
shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries of such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of Mallinckrodt.
"Tastemaker Guarantees" means (i) the Guarantee by Fries & Fries
pursuant to Article 9 and (ii) the Guarantee by Mallinckrodt pursuant
to Article 10.
"Termination Date" means June 20, 1997, or, if such day is not
a Euro-Dollar Business Day, the next preceding Euro-Dollar Business
Day, subject to Section 2.17.
"Total Capital" means, at any time, Consolidated Net Worth plus
Total Debt.
"Total Debt" means, at any time, the aggregate outstanding
principal amount of all Indebtedness of Mallinckrodt and its
Subsidiaries at such time (determined on a consolidated basis without
duplication in accordance with GAAP), excluding Indebtedness pursuant
to the Tastemaker Guarantees.
"Wholly-Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly
owned by Mallinckrodt.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its
territories and possessions.
Section 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall
be prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis
consistent (except for changes concurred in by Mallinckrodt's
independent public accountants) with the most recent audited
consolidated financial statements of Mallinckrodt and its
Consolidated Subsidiaries delivered to the Banks; provided that, if
Mallinckrodt notifies the Administrative Agent that Mallinckrodt
wishes to amend any covenant in Article 5 to eliminate the effect of
any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies
Mallinckrodt that the Required Banks wish to amend Article 5 for such
purpose), then Mallinckrodt's compliance with such covenant shall be
determined on the basis of generally accepted accounting principles
in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner
satisfactory to Mallinckrodt and the Required Banks.
Section 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made to
the Borrower pursuant to Article 2 on the same date, all of which
Loans are of the same type (subject to Article 8) and, except in the
case of Base Rate Loans, have the same initial Interest Period.
Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a
"Fixed Rate Borrowing" is a Euro-Dollar Borrowing, a CD Borrowing or
a Money Market Borrowing (excluding any such Borrowing consisting of
Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01), and a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions
of Article 2 under which participation therein is determined (i.e., a
"Committed Borrowing" is a Borrowing under Section 2.01 in which all
Banks participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing under Section 2.03 in which the Bank
participants are determined on the basis of their bids in accordance
therewith).
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend. During the Revolving
Credit Period, each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make loans to the Borrower
pursuant to this Section from time to time in amounts such that the
aggregate principal amount of Committed Loans by such Bank at any one
time outstanding shall not exceed the amount of its Commitment. Each
Borrowing under this Section shall be in an aggregate principal
amount of $10,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in
accordance with Section 3.02(c)) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under this Section,
prepay Loans to the extent permitted by Section 2.12 and reborrow at
any time during the Revolving Credit Period under this Section.
Section 2.02. Notice of Committed Borrowing.. The Borrower
shall give the Administrative Agent notice (a "Notice of Committed
Borrowing") not later than 10:30 A.M. (New York City time) on (x)
the date of each Base Rate Borrowing, (y) the second Domestic
Business Day before each CD Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing
or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are
to bear interest initially at the Base Rate, a CD Rate or a
Euro-Dollar Rate; and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period; and
(b) certifying that each of the conditions precedent to
such Borrowing has been satisfied.
Section 2.03. Money Market Borrowings. (a) The Money Market
Option. In addition to Committed Borrowings pursuant to Section
2.01, the Borrower may, as set forth in this Section, request the
Banks during the Revolving Credit Period to make offers to make Money
Market Loans to the Borrower. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth in
this Section.
(b) Money Market Quote Request. When the Borrower wishes
to request offers to make Money Market Loans under this Section, it
shall transmit to the Administrative Agent by telex or facsimile
transmission a Money Market Quote Request substantially in the form
of Exhibit B hereto so as to be received not later than 10:30 A.M.
(New York City time) on (x) the fifth Euro-Dollar Business Day prior
to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be
a Euro-Dollar Business Day in the case of a LIBOR Auction
or a Domestic Business Day in the case of an Absolute Rate
Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period, and
(iv) whether the Money Market Quotes requested are to
set forth a Money Market Margin or a Money Market Absolute
Rate.
The Borrower may request offers to make Money Market Loans
for more than one Interest Period in a single Money Market Quote
Request. No Money Market Quote Request shall be given within five
Euro-Dollar Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, the Administrative Agent shall send
to the Banks by telex or facsimile transmission an Invitation for
Money Market Quotes substantially in the form of Exhibit C hereto,
which shall constitute an invitation by the Borrower to each Bank to
submit Money Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance with this
Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to
make Money Market Loans in response to any Invitation for Money
Market Quotes. Each Money Market Quote must comply with the
requirements of this subsection (d)and must be submitted to the
Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 11.01 not later than (x)
2:00 P.M. (New York City time) on the fourth Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case of a
LIBOR Auction or (y) 9:30 A.M. (New York City time) on the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction
for which such change is to be effective); provided that Money Market
Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of a Bank may be submitted, and
may only be submitted, if the Administrative Agent or such affiliate
notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the
other Banks, in the case of a LIBOR Auction or (y) 15 minutes prior
to the deadline for the other Banks, in the case of an Absolute Rate
Auction. Subject to Articles 3 and 6, any Money Market Quote so made
shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which principal
amount (w) may be greater than or less than the Commitment
of the quoting Bank, (x) must be $5,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal
amount of Money Market Loans for which offers were
requested, (z) may be subject to an aggregate limitation as
to the principal amount of Money Market Loans for which
offers being made by such quoting Bank may be accepted,
(c) in the case of a LIBOR Auction, the margin above
or below the applicable London Interbank Offered Rate (the
"Money Market Margin") offered for each such Money Market
Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such
base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers
by the quoting Bank with respect to each Interest Period specified in
the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit
D hereto or does not specify all of the information
required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(c) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in subsection
(d)(i).
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with subsection (d)
and (y) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted
by such Bank with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the Borrower
shall specify the aggregate principal amount of Money Market Loans
for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, the respective
principal amounts and Money Market Margins or Money Market Absolute
Rates, as the case may be, so offered and if applicable, limitations
on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30
A.M. (New York City time) on (x) the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as
the Borrower and the Administrative Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the
Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective), the Borrower
shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection
(e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may
accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request;
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of
$1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Banks with the same Money Market Margins or Money Market
Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such offers are accepted
for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated
by the Administrative Agent among such Banks as nearly as possible
(in multiples of $1,000,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
Section 2.04. Notice to Banks; Funding of Loans. (a) Upon
receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's
share (if any) of such Borrowing and such Notice of Borrowing shall
not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date
of each Borrowing, each Bank participating therein shall make
available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent
at its address referred to in Section 11.01. Unless the
Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the
Borrower at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will
not make available to the Administrative Agent such Bank's share of
such Borrowing, the Administrative Agent may assume that such Bank
as made such share available to the Administrative Agent on the date
of such Borrowing in accordance with subsection (b) of this Section
and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such share
available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, a rate per annum equal to the
higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
Section 2.05. Notes. (a) The Loans of each Bank shall be
evidenced by a single Note payable to the order of such Bank for the
account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the
Administrative Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the aggregate
unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of
such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section
3.01(a), the Administrative Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and maturity of
each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such
Bank so elects in connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Bank to
make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Bank
is hereby irrevocably authorized by the Borrower so to endorse its
Note and to attach to and make a part of its Note a continuation of
any such schedule as and when required.
Section 2.06. Maturity of Loans. (a) Each Committed Loan
shall mature, and the principal amount thereof shall be due and
payable on the Termination Date.
(b) Each Money Market Loan included in any Money Market
Borrowing shall mature, and the principal amount thereof shall be due
and payable, on the last day of the Interest Period applicable to
such Borrowing.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each
day from the date such Loan is made until it becomes due, at a rate
per annum equal to the Base Rate for such day. Such interest shall
be payable quarterly in arrears on each Quarterly Date and, with
respect to the principal amount of any Base Rate Loan converted to a
CD Loan or a Euro-Dollar Loan, on each date a Base Rate Loan is so
converted. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period
applicable thereto, at a rate per annum equal to the sum of 0.315%
plus the Adjusted CD Rate applicable to such Interest Period;
provided that if any CD Loan or any portion thereof shall, as a
result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such portion shall bear
interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest
Period is longer than 90 days, at intervals of 90 days after the
first day thereof. Any overdue principal of or interest on any CD
Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate applicable
to Base Rate Loans for such day, provided that until the end of the
Interest Period applicable to such CD Loan, any such overdue
principal shall bear interest at the higher of the foregoing rate and
the sum of 2.315% plus the Adjusted CD Rate applicable to such Loan
at the date such payment was due.
The "Adjusted CD Rate" applicable to any Interest Period means
a rate per annum determined pursuant to the following formula:
( CDBR )*
ACDR = (------------) + AR
( 1.00 DRP )
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
--------------
*The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%.
The "CD Base Rate" applicable to any Interest Period is the
rate of interest determined by the Administrative Agent to be the
average (rounded upward, if necessary, to the next higher 1/100 of
1%) of the prevailing rates per annum bid at 10:00 A.M. (New York
City time) (or as soon thereafter as practicable) on the first day of
such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from
each CD Reference Bank of its certificates of
deposit in an amount comparable to the principal amount of the CD
Loan of such CD Reference Bank to which such Interest Period applies
and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion dollars in respect of new
non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount
of $100,000 or more. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in the
Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate
in effect on such day which is payable by a member of the Bank
Insurance Fund classified as adequately capitalized and within
supervisory subgroup "A" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. Section 327.3(e) (or
any successor provision) to the Federal Deposit Insurance Corporation
(or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and
as of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during each
Interest Period applicable thereto, at a rate per annum equal to the
sum of 0.19% plus the London Interbank Offered Rate applicable to
such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period
is longer than three months, at intervals of three months after the
first day thereof.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next
higher 1/16 of 1%) of the respective rates per annum at which
deposits in dollars are offered to each of the Euro-Dollar Reference
Banks in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate applicable
to Base Rate Loans for such day, provided that until the end of the
Interest Period applicable to such Euro-Dollar Loan, any such overdue
principal shall bear interest at the higher of the foregoing rate and
the sum of 2.19% plus the London Interbank Offered Rate applicable to
such Loan at the date such payment was due.
(e) Subject to Section 8.01, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the
sum of the London Interbank Offered Rate for such Interest Period
(determined in accordance with Section 2.07(c) as if the related
Money Market LIBOR Borrowing were a Committed Euro-Dollar Borrowing)
plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the Money Market Absolute Rate quoted by the Bank
making such Loan in accordance with Section 2.03. Such interest
shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear
interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 2% plus the Base Rate for such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated by
this Section. If any Reference Bank does not furnish a timely
quotation, the Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished
by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section
8.01 shall apply.
Section 2.08. Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably a facility
fee at the rate of 0.06% per annum. Such facility fee shall accrue
(i) from and including the Effective Date to but excluding the date
of termination of the Commitments in their entirety, on the daily
aggregate amount of the Commitments (whether used or unused) and (ii)
from and including such date of termination to but excluding the date
the Loans shall be repaid in their entirety, on the daily aggregate
outstanding principal amount of the Loans. Accrued fees under this
Section 2.08 shall be payable quarterly in arrears on each Quarterly
Date and on the date of termination of the Commitments in their
entirety (and, if later, the date the Loans shall be repaid in their
entirety).
Section 2.09. Optional Termination or Reduction of Commitments.
During the Revolving Credit Period, the Borrower may, upon at least
three Domestic Business Days' notice to the Administrative Agent, (i)
terminate the Commitments at any time, if no Loans are outstanding at
such time or (ii) ratably reduce from time to time by an aggregate
amount of $10,000,000 or any larger multiple of $1,000,000, the
aggregate amount of the Commitments in excess of the aggregate
outstanding principal amounts of the Loans.
Section 2.10. Method of Electing Interest Rates. (a) The Loans
included in each Committed Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice
of Committed Borrowing. Thereafter, the Borrower may from time to
time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of
Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower
may elect to convert such Loans to CD Loans as of any
Domestic Business Day or to Euro-Dollar Loans as of any
Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or
Euro-Dollar Loans or elect to continue such Loans as CD
Loans for an additional Interest Period, subject to Section
2.14 in the case of any such conversion or continuation
effective on any day other than the last day of the then
current Interest Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the Borrower
may elect to convert such Loans to Base Rate Loans or CD
Loans or elect to continue such Loans as Euro-Dollar Loans
for an additional Interest Period, subject to Section 2.14
in the case of any such conversion or continuation
effective on any day other than the last day of the then
current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a
"Notice of Interest Rate Election") to the Administrative Agent not
later than 10:30 A.M. (New York City time) on the third Euro-Dollar
Business Day before the conversion or continuation selected in such
notice is to be effective (unless the relevant Loans are to be
converted to Domestic Loans of the other type or are CD Rate Loans to
be continued as CD Rate Loans for an additional Interest Period, in
which case such notice shall be delivered to the Administrative Agent
not later than 10:30 A.M. (New York City time) on the second Domestic
Business Day before such conversion or continuation is to be
effective). A Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate principal amount
of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and (ii) the
portion to which such Notice applies, and the remaining portion to
which it does not apply, are each $10,000,000 or any larger multiple
of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection(a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if the Loans being
converted are to be Fixed Rate Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Euro-Dollar Loans for an additional Interest Period, the
duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of
Interest Period.
(C) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent
shall promptly notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Borrower. If the
Borrower fails to deliver a timely Notice of Interest Rate Election
to the Administrative Agent for any Group of Fixed Rate Loans, such
Loans shall be converted into Base Rate Loans on the last day of the
then current Interest Period applicable thereto.
(d) An election by the Borrower to change or continue the rate
of interest applicable to any Group of Loans pursuant to this Section
2.10 shall not constitute a "Borrowing" subject to the provisions of
Section 3.02.
Section 2.11. Scheduled Termination of Commitments. The
Commitments shall terminate on the Termination Date and any Loans
then outstanding (together with accrued interest thereon) shall be
due and payable on such date or, if the Termination Date has been
adjusted pursuant to Section 2.17, on the second Euro-Dollar Business
Day after the Termination Date.
Section 2.12. Optional Prepayments. (a) Subject in the case
of any Fixed Rate Loans to Section 2.14, the Borrower may, upon at
least one Domestic Business Day's notice to the Administrative Agent,
prepay the Group of Base Rate Loans (or any Money Market Borrowing
bearing interest at the Base Rate pursuant to Section 8.01), upon at
least three Domestic Business Days' notice to the Administrative
Agent, prepay any Group of CD Loans, or upon at least three
Euro-Dollar Business Days' notice to the Administrative Agent, prepay
any Group of Euro-Dollar Loans, in each case in whole at any time, or
from time to time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Group or
Borrowing.
(b) Except as provided in subsection (a) above the Borrower may
not prepay all or any portion of the principal amount of any Money
Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share (if any) of
such prepayment and such notice shall not thereafter be revocable by
the Borrower.
Section 2.13. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 12:00 Noon (New York
City time) on the date when due, in Federal or other funds
immediately available in New York City, to the Administrative Agent
at its address referred to in Section 11.01. The Administrative
Agent will promptly distribute to each Bank its ratable share of each
such payment received by the Administrative Agent for the account of
the Banks. Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended
to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans or the Money
Market LIBOR Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business
Day. Whenever any payment of principal of, or interest on, the Money
Market Absolute Rate Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to
the Banks hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that the Borrower
shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank
repays such amount to the Administrative Agent, at the Federal Funds
Rate.
Section 2.14. Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan or any Fixed
Rate Loan is converted (pursuant to Article 2, 6 or 8 or otherwise)
on any day other than the last day of an Interest Period applicable
thereto (including for this purpose any payment made pursuant to
Section 2.17 other than on the last day of the Interest Period fixed
on the first day of such Interest Period), or the last day of an
applicable period fixed pursuant to Section 2.07(d), or if the
Borrower fails to borrow or prepay any Fixed Rate Loans after notice
has been given to any Bank in accordance with Section 2.04(a)
or 2.12(c), the Borrower shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or by
an existing or prospective Participant in the related Loan),
including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or
failure to borrow or prepay, provided that such Bank shall have
delivered to the Borrower a certificate as to the amount of such loss
or expense, which certificate shall be conclusive in the absence of
manifest error.
Section 2.15. Computation of Interest and Fees. Interest
based on the Prime Rate hereunder shall be computed on the basis of a
year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the
last day). All other interest and fees shall be computed on the
basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day).
Section 2.16. Regulation D Compensation. For so long as
any Bank maintains reserves against "Eurocurrency liabilities" (or
any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of such Bank to
United States residents), and as a result the cost to such Bank (or
its Applicable Lending Office) of making or maintaining its
Euro-Dollar Loans is increased, then such Bank may require the
Borrower to pay, contemporaneously with each payment of interest on
the Euro-Dollar Loans, additional interest on the related Euro-Dollar
Loan of such Bank at a rate per annum determined by such Bank up to
but not exceeding the excess of (i) (A) the applicable London
Interbank Offered Rate divided by (B) one minus the Euro-Dollar
Reserve Percentage over (ii) the applicable London Interbank Offered
Rate. Any Bank wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the Euro-Dollar
Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period
commencing at least three Euro-Dollar Business Days after the giving
of such notice and (y) shall furnish to the Borrower at least five
Euro-Dollar Business Days prior to each date on which interest is
payable on the Euro-Dollar Loans an officer's certificate setting
forth in reasonable detail the amount to which such Bank is then
entitled under this Section 2.16 (which shall be consistent with such
Bank's good faith estimate of the level at which the related reserves
are maintained by it).
Section 2.17. Borrower Change of Control. If at any time
(i) Mallinckrodt shall cease to own 100% of the issued and
outstanding capital stock of Fries & Fries or (ii) Fries & Fries
shall cease to be a general partner of the Borrower with legal and
beneficial ownership of at least 50% of all capital and other equity
and partnership interests in the Borrower (any such event in clauses
(i) or (ii), a "Borrower Change of Control"; and the date of
consummation of any such Borrower Change of Control, a "Borrower
Change of Control Date"), then, unless prior to the Borrower Change
of Control Date all of the Banks shall have expressly consented in
writing (i) to maintain their Commitments until the Termination Date
then in effect, (ii) to release each Guarantor unconditionally from
its respective Tastemaker Guarantee, and (iii) to agree to release
the Collateral as provided under the Pledge Agreement, the Commitment
of each Bank shall terminate (and the Termination Date shall be
deemed to occur) on the first Euro-Dollar Business Day after the
Borrower Change of Control Date and the outstanding principal amount
of each Loan shall thereupon become due and payable on the second
Euro-Dollar Business Day after such termination, with interest
accrued thereon to the date of payment, all without notice to any
Obligor or any other action by any Person.
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur upon
receipt by the Administrative Agent of the following documents, each
dated the Closing Date unless otherwise indicated:
(a) a duly executed Note for the account of each Bank
dated on or before the Closing Date complying with the
provisions of Section 2.05;
(b) an opinion of the General Counsel of Tastemaker,
substantially in the form of Exhibit E1 hereto;
(c) an opinion of the General Counsel of Mallinckrodt,
substantially in the form of Exhibit E-2 hereto;
(d) an opinion of White & Case, special counsel for the
Obligors, substantially in the form of Exhibit E-3 hereto;
(e) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel
for the Agents, substantially in the form of Exhibit F hereto;
(f) duly executed counterparts of the Pledge Agreement and
each other document contemplated thereby to be executed on the
Closing Date;
(g) evidence satisfactory to the Administrative Agent of
the effectiveness and, to the extent applicable, of the Security
Interest contemplated by the Pledge Agreement, the delivery of
any promissory notes and stock certificates comprising the
Collateral and any notices or filings required thereby; and
(h) all documents the Administrative Agent may reasonably
request relating to the existence of the Obligors, the corporate
and general partnership authority for and the validity of the
Loan Documents, and any other matters relevant hereto, all in
form and substance satisfactory to the Administrative Agent.
The Administrative Agent shall promptly notify the Obligors and
the Banks of the Closing Date, and such notice shall be conclusive
and binding on all parties hereto.
Section 3.02. Borrowings. The obligation of any Bank to
make a Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
(a) the fact that the Closing Date shall have occurred on
or prior to January 31, 1997;
(b) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as the case may
be;
(c) the fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Loans will not
exceed the aggregate amount of the Commitments;
(d) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of
the Obligors contained in this Agreement (except, in the case of
any Borrowing after the initial Borrowing, those contained in
Section 4.02(c), 4.02(f), clause (i) of Section 4.03 and in the
last sentence of Section 4.12 hereof) shall be true on and as of
the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by each Obligor on the date of such Borrowing as to the
facts specified in clauses (c), (d) and (e) of this Section.
ARTICLE 4
Representations and Warranties
Each of the Obligors represents and warrants (in each case as
to itself and as to its Subsidiaries) that:
Section 4.01. Corporate Existence. Each of Mallinckrodt, its
Subsidiaries and the Borrower: (a) is a corporation, partnership or
other entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization; (b) has all
requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure
so to qualify could have a Material Adverse Effect. Mallinckrodt
owns 100% of the issued and outstanding capital stock of Fries
& Fries, and Fries & Fries is a general partner of the Borrower with
legal and beneficial ownership of 50% of all capital and other equity
and partnership interests in the Borrower.
Section 4.02. Financial Condition. (a) Mallinckrodt has
heretofore furnished to each of the Banks the consolidated balance
sheet of Mallinckrodt and its Subsidiaries as at June 30, 1996 and
the related consolidated statements of earnings, cash flows and
changes in shareholders' equity of Mallinckrodt and its Subsidiaries
for the fiscal year ended on said date, with the opinion thereon of
Ernst & Young LLP. All such financial statements fairly present, in
all material aspects, the financial condition of Mallinckrodt and its
Subsidiaries, as at said date, and the consolidated results of their
operations for the fiscal year ended on said date, all in accordance
with GAAP.
(b) Mallinckrodt has heretofore furnished to each of the Banks
the unaudited consolidated balance sheet of Mallinckrodt and its
Subsidiaries as at September 30, 1996 and the related unaudited
consolidated statements of earnings, cash flows and changes in
shareholders' equity of Mallinckrodt and its Subsidiaries for the
three month period ended on said date. All such financial statements
fairly present, in all material aspects, the financial condition of
Mallinckrodt and its Subsidiaries, as at said date, and the
consolidated results of their operations for the three month period
ended on said date, all in accordance with GAAP.
(c) Since September 30, 1996, there has been no material
adverse change, and nothing has occurred that is reasonably likely to
result in any material adverse change, in the financial condition,
operations or business taken as a whole of Mallinckrodt and its
Subsidiaries from that set forth in the financial statements referred
to in clause (b) above as at the date referred to therein.
(d) The Borrower has heretofore furnished to each of the Banks
the balance sheet of the Borrower as at December 31, 1995 and the
related statements of earnings and cash flows of the Borrower for the
fiscal year ended on said date, with the opinion thereon of Coopers &
▇▇▇▇▇▇▇ LLP. All such financial statements fairly present, in all
material aspects, the financial condition of the Borrower, as at said
date, and the results of its operations for the fiscal year ended on
said date, all in accordance with GAAP.
(e) The Borrower has heretofore furnished to each of the Banks
the unaudited balance sheet of the Borrower as at September 30, 1996
and the related unaudited statements of earnings and cash flows for
the nine month period ended on said date. All such financial
statements fairly present, in all material aspects, the financial
condition of the Borrower, as at said date, and the results of its
operations for the nine month period ended on said date, all in
accordance with GAAP.
(f) Since September 30, 1996, there has been no material
adverse change, and nothing has occurred that is reasonably likely to
result in any material adverse change, in the financial condition,
operations or business taken as a whole of the Borrower from that set
forth in the financial statements referred to in clause (e) above as
at the date referred to therein.
Section 4.03. Litigation. Except as may be disclosed in
regular periodic reports filed with the Securities and Exchange
Commission prior to the date of this Agreement (copies of which
reports have heretofore been furnished to the Banks), there are no
legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to
the knowledge of Mallinckrodt) threatened against Mallinckrodt or any
of its Subsidiaries or the Borrower (i) which, if adversely
determined, is reasonably likely to have a Material Adverse Effect or
(ii) which in any manner draws into question the validity or
enforceability of any Loan Document.
Section 4.04. No Breach. None of the execution and delivery of
the Loan Documents, the consummation of the transactions herein
or therein contemplated or compliance with the terms and provisions
hereof or thereof will conflict with or result in a breach of, or
require any consent under, the general partnership agreement of the
Borrower or the certificate of incorporation or by-laws of either
Guarantor, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which Mallinckrodt or any
of its Subsidiaries or the Borrower is a party or by which any of
them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or
instrument.
Section 4.05. Action. Each of the Obligors has all necessary
corporate (or, in the case of the Borrower, partnership) power,
authority and legal right to execute, deliver and perform its
obligations under the Loan Documents to which it is a party; the
execution, delivery and performance by each of the Obligors of the
Loan Documents to which it is a party have been duly authorized by
all necessary corporate action or partnership action (as the case may
be) on its part (including, without limitation, any required
shareholder approvals); and each of this Agreement (in the case of
each Obligor) and the Pledge Agreement (in the case of the Borrower)
has been duly and validly executed and delivered by each such
Obligor and constitutes, and each of the Notes (in the case of the
Borrower) when executed and delivered for value will constitute, its
legal, valid and binding obligation, enforceable against such Obligor
in accordance with their respective terms, except as such
enforceability may be limited by (a) bankruptcy, dissolution,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b)
the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
Section 4.06. Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any governmental
or regulatory authority or agency, or any securities exchange, are
necessary for the execution, delivery or performance by any Obligor
of the Loan Documents to which such Obligor is a party or for the
legality, validity or enforceability hereof.
Section 4.07. ERISA. Each Plan, and, to the knowledge of
Mallinckrodt, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA, the
Code and any other Federal or State law, and no event or condition
has occurred and is continuing as to which Mallinckrodt would be
under an obligation to furnish a report to the Banks under Section
5.01(e) hereof.
Section 4.08. Taxes. Mallinckrodt and those of its
Subsidiaries that are at least 80% owned by Mallinckrodt are members
of an affiliated group of corporations filing consolidated returns
for Federal income tax purposes, of which Mallinckrodt is the "common
parent" (within the meaning of Section 1504 of the Code) of such
group. Mallinckrodt and its Subsidiaries have filed all Federal
income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by Mallinckrodt
or any of its Subsidiaries. The charges, accruals and reserves on
the books of Mallinckrodt and its Subsidiaries in respect of taxes
and other governmental charges are, in the opinion of Mallinckrodt,
adequate. Mallinckrodt has not given or been requested to give a
waiver of the statute of limitations relating to the payment of
federal, state, local and foreign taxes or other impositions, the
payment of which is reasonably likely to have a Material Adverse
Effect.
Section 4.09. Investment Company Act. None of Mallinckrodt,
any of its Subsidiaries or the Borrower is an "investment company",
or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
Section 4.10. Public Utility Holding Company Act. None of
Mallinckrodt, any of its Subsidiaries or the Borrower is a "holding
company", or an "affiliate" of a "holding company," or a "subsidiary
company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section 4.11. True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of any Obligor to any Agent or any Bank in
connection with the negotiation, preparation or delivery of this
Agreement or included herein or delivered pursuant hereto, when taken
as a whole do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements
herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after
the date hereof by any Obligor to any Agent or any Bank in connection
with this Agreement and the transactions contemplated hereby will be
true, complete and accurate in every material respect, or (in the
case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact
known to any Obligor that could have a Material Adverse Effect that
has not been disclosed herein or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished to
the Banks for use in connection with the transactions contemplated
hereby.
Section 4.12. Environmental Matters. In the ordinary course of
its business, Mallinckrodt conducts an ongoing review of the effect
of Environmental Laws on the business, operations and properties of
Mallinckrodt and its Subsidiaries, in accordance with customary
industry practice. On the basis of this review, Mallinckrodt has
reasonably concluded that the costs of compliance with Environmental
Laws are unlikely to have a Material Adverse Effect.
ARTICLE 5
Covenants
Each of the Obligors agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains
unpaid:
Section 5.01. Financial Statements, Etc. Mallinckrodt will
deliver to each of the Banks:
(a) as soon as available and in any event within 60 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of Mallinckrodt, consolidated statements of earnings,
cash flows and changes in shareholders' equity of Mallinckrodt and
its Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period,
and the related consolidated balance sheet of Mallinckrodt and its
Subsidiaries as at the end of such period, setting forth in each case
in comparative form the corresponding consolidated figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of Mallinckrodt, which
certificate shall state that said consolidated financial statements
fairly present, in all material respects, the consolidated financial
condition and results of operations of Mallinckrodt and its
Subsidiaries, in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 120 days after
the end of each fiscal year of Mallinckrodt, consolidated statements
of earnings, cash flows and changes in shareholders' equity of
Mallinckrodt and its Subsidiaries for such fiscal year and the
related consolidated balance sheet of Mallinckrodt and its
Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures for
the preceding fiscal year, and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present, in all material respects, the consolidated
financial condition and results of operations of Mallinckrodt and its
Subsidiaries as at the end of, and for, such fiscal year in
accordance with generally accepted accounting principles;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which
Mallinckrodt shall have filed with the Securities and Exchange
Commission (or any governmental agency substituted therefor) or any
national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of
Mallinckrodt generally, copies of all financial statements, reports
and proxy statements so mailed;
(e) as soon as possible, and in any event within ten days after
Mallinckrodt knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a senior financial
officer of Mallinckrodt setting forth details respecting such event
or condition and the action, if any, that Mallinckrodt or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to PBGC by
Mallinckrodt or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of
the Code or Section 302 of ERISA, including, without limitation,
the failure to make on or before its due date a required
installment under Section 412(m) of the Code or Section 302(e)
of ERISA, shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the Code);
and any request for a waiver under Section 412(d) of the Code
for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by
Mallinckrodt or an ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by
Mallinckrodt or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by Mallinckrodt or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by Mallinckrodt or
any ERISA Affiliate of notice from a Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against Mallinckrodt or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that,
pursuant to section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if Mallinckrodt or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections;
(f) promptly after any Obligor knows or has reason to believe
that any Default has occurred, a notice of such Default describing
the same in reasonable detail and, together with such notice or as
soon thereafter as possible, a description of the action that such
Obligor has taken or proposes to take with respect thereto; and
(g) from time to time such other information regarding the
financial condition, operations, business or prospects of the
Borrower or of Mallinckrodt or any of its Subsidiaries (including,
without limitation, any Plan or Multiemployer Plan and any reports or
other information required to be filed under ERISA) or of the
Collateral as any Bank or the Agent may reasonably request.
Mallinckrodt will furnish to each Bank, at the time it
furnishes each set of financial statements pursuant to paragraph (a)
or (b) above, a certificate of a senior financial officer of
Mallinckrodt (i) to the effect that no Default has occurred and is
continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action
that Mallinckrodt has taken or proposes to take with respect thereto)
and (ii) setting forth in reasonable detail the computations
necessary to determine whether Mallinckrodt is in compliance with
Sections 5.08 and 5.09 hereof as of the end of the respective
quarterly fiscal period or fiscal year.
Section 5.02. Litigation. Mallinckrodt will promptly give
to each Bank notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority or
agency, and any material development in respect of such legal or
other proceedings, affecting Mallinckrodt or any of its Subsidiaries
or the Borrower, except proceedings which, if adversely determined,
would not have a Material Adverse Effect. Without limiting the
generality of the foregoing, Mallinckrodt will give to each Bank
notice of the assertion of any Environmental Claim by any Person
against, or with respect to the activities of, Mallinckrodt or any of
its Subsidiaries and notice of any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses
or authorizations, other than any Environmental Claim or alleged
violation which, if adversely determined, would not have a Material
Adverse Effect.
Section 5.03. Existence, Etc. Mallinckrodt will, and will
cause each of its Subsidiaries to, and the Borrower will:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this section 5.03 shall prohibit any transaction expressly
permitted under Sections 5.06 and 5.07 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could have a Material
Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP; and
(f) subject to Section 11.11 hereof, permit representatives of
any Bank, during normal business hours, to examine, copy and make
extracts from its books and records, to inspect any of its
Properties, and to discuss its business and affairs with its
officers, all to the extent reasonably requested by such Bank.
Section 5.04. Insurance. Mallinckrodt will, and will cause
each of its Subsidiaries to and the Borrower will, keep insured by
financially sound and reputable insurers all Property of a character
usually insured by corporations engaged in the same or similar
business similarly situated against loss or damage of the kinds and
in the amounts customarily insured against by such corporations and
carry such other insurance as is usually carried by such
corporations.
Section 5.05. Limitation on Liens. Mallinckrodt will not, and
will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any of its Property, whether now owned
or hereafter acquired, except:
(a) Liens in existence on the date hereof securing Indebtedness
outstanding on the date hereof in an aggregate principal amount not
exceeding $50,000,000;
(b) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in
good faith and by appropriate proceedings if, unless the amount
thereof is not material with respect to it or its financial
condition, adequate reserves with respect thereto are maintained on
the books of Mallinckrodt or the affected Subsidiaries, as the case
may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate
proceedings;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of
the business of Mallinckrodt or any of its Subsidiaries;
(g) Liens on Property of any corporation which becomes a
Subsidiary of Mallinckrodt after the date of this Agreement; provided
that such Liens are in existence at the time such corporation becomes
a Subsidiary of Mallinckrodt, were not created in anticipation
thereof and do not at any time secure any Indebtedness other than
Indebtedness which was secured by such Liens at the time such
corporation became a Subsidiary;
(h) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by
Mallinckrodt or any of its Subsidiaries, each of which Liens either
(A) existed on such Property before the time of its acquisition and
was not created in anticipation thereof, or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that no such Lien shall
extend to or cover any Property of Mallinckrodt or such Subsidiary
other than the Property so acquired and improvements thereon;
(i) Liens incidental to the conduct of its business or the
ownership of its Property which were not incurred in connection with
the borrowing of money, the obtaining of credit or Derivatives
Obligations, and which do not in the aggregate materially detract
from the value of its Property or materially impair the use thereof
in the operation of its business;
(j) Liens arising from judgments, decrees or attachments not in
excess of $25,000,000 in the aggregate and in circumstances not
constituting an Event of Default under Section 6.01(h) hereof;
(k) leases or subleases granted to others otherwise permitted
by this Agreement;
(l) UCC financing statements and other similar filings
regarding leases and other Liens otherwise permitted by this
Agreement;
(m) rights to receive income in connection with consignment
arrangements or licensing agreements in the ordinary course of
Mallinckrodt's or such Subsidiary's business, as the case may be;
(n) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $50,000,000;
and
(o) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
Notwithstanding the foregoing, nothing in this Section 5.05
shall restrict the ability of Mallinckrodt or any of its Subsidiaries
to sell or assign its accounts receivable. The Borrower will not
create, incur, assume or suffer to exist any Lien upon any of the
Collateral other than Liens created by the Pledge Agreement.
Section 5.06. Mergers, Etc.. Neither Mallinckrodt nor the
Borrower will, nor will either permit any of their respective
Subsidiaries to, (a) merge or consolidate with or into any Person,
(b) convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all
of the assets (whether now owned or (c) hereafter acquired) of
Mallinckrodt and its Subsidiaries or of the Borrower and its
Subsidiaries, in each case taken as a whole, to any Person, or
acquire all or substantially all of the assets of, any Person,
except that (i) any Subsidiary of Mallinckrodt may merge or
consolidate with or into, or transfer assets to, or acquire assets
of, any other Subsidiary of Mallinckrodt, (ii) any Subsidiary of
Mallinckrodt may merge or consolidate with or into, or transfer
assets to, Mallinckrodt, (iii) Mallinckrodt may merge with or
consolidate into, or acquire assets of, and any Subsidiary of
Mallinckrodt may merge or consolidate with or into, or acquire assets
of, any other Person or (iv) a Borrower Change of Control may occur
in accordance with the provisions of Section 2.17 of this Agreement
provided in each case that, immediately after giving effect to such
proposed transaction, no Default would exist and in the case of any
such proposed transaction to which either Mallinckrodt or the
Borrower is a party, it is the surviving corporation.
Section 5.07. Change in Nature of Business. Mallinckrodt
will not (i) make any material change in the nature of the business
of Mallinckrodt and its Subsidiaries taken as a whole as carried on
as of the date hereof, or (ii) acquire, or permit any of its
Subsidiaries to acquire, businesses which result in any material
change in the nature of the business of Mallinckrodt and its
Subsidiaries taken as a whole as carried on as of the date hereof;
provided, however, that Mallinckrodt or any of its Subsidiaries may
engage in or acquire a business of a nature substantially related to
the nature of its business as carried on as of the date hereof, and
provided, further, in each case that, immediately after giving effect
to such proposed transaction, no Default would exist.
Section 5.08. Total Debt to Total Capital Ratio. Mallinckrodt
will not permit the ratio of (i) the sum of (x) Total Debt plus (y)
the Operating Lease Amount at any time to (ii) the sum of (x) Total
Capital at such time plus (y) the Operating Lease Amount at such time
to exceed 0.60 to 1.
Section 5.09. Indebtedness of Subsidiaries. Mallinckrodt
will not permit the aggregate Indebtedness of all of its Subsidiaries
(exclusive of Indebtedness (x) owing to Mallinckrodt or a
Wholly-Owned Subsidiary and (y) pursuant to the Tastemaker
Guarantees) to exceed at any time to and including May 21, 1997 35%
of Total Capital. Thereafter, Mallinckrodt will not permit the
aggregate Indebtedness of all of its Subsidiaries (exclusive of
Indebtedness (x) owing to Mallinckrodt or a Wholly-Owned Subsidiary
and (y) pursuant to the Tastemaker Guarantees) to exceed at any time
(i) 25% of Total Capital, if the ratio of Total Debt to Total Capital
is equal to or less than 0.50 to 1 at such time; and (ii) 20% of
Total Capital, if the ratio of Total Debt to Total Capital is greater
than 0.50 to 1 at such time.
Section 5.10. Transactions with Affiliates. Except as
expressly permitted by this Agreement, Mallinckrodt will not, nor
will it permit any of its Subsidiaries to, directly or indirectly
enter into transactions with any Affiliates unless the monetary or
business consideration arising therefrom would be substantially as
advantageous to Mallinckrodt and its Subsidiaries as the monetary or
business consideration which would obtain in a comparable transaction
with a Person not an Affiliate.
Section 5.11. Use of Proceeds. The Borrower will use the
proceeds of the Loans hereunder solely to acquire debt securities
(the "Securities") issued by a single purpose issuer (the "Issuer"),
all in form and substance substantially as described to the Banks
prior to the date hereof, which includes without limitation that (i)
such Securities have a face amount and fair market value (determined
at the date of purchase) approximately equal to the aggregate
principal amount of Loans made, (ii) such Securities are, together
with any obligations owed with respect to ordinary course interest
rate ▇▇▇▇▇▇ entered into with respect to such Securities for bona
fide hedging purposes ("Interest Rate Swaps"), the sole debt
obligations of the Issuer, (iii) the Issuer's assets consist of
asset-backed securities with an aggregate face amount and fair market
value (determined at the time of issuance) in excess of the face
amount of the Securities, and rated AAA by Standard & Poor's Ratings
Services ("S&P") and Aaa by ▇▇▇▇▇'▇ Investors Services, Inc.
("Moody's"), as well as the rights under the Interest Rate Swaps,
(iv) the obligations of the Issuer under the Securities are secured
by a first priority security interest (subject to the rights of the
Interest Rate Swap providers) granted by the Issuer in all of such
asset-backed securities and all other assets of the Issuer and (v)
the Obligors reasonably believe that, if the Securities were rated by
S&P and Moody's, such securities would receive a rating of not less
than AA by S&P and Aa by Moody's; provided that neither any Agent nor
any Bank shall have any responsibility as to the use of any of such
proceeds. No part of the proceeds of any extension of credit
hereunder will be used to buy or carry any Margin Stock.
Section 5.12. Environmental Laws. Mallinckrodt will, and
will cause each of its Subsidiaries to, comply in all material
respects with the requirements of all applicable Environmental Laws
and all ordinances and regulatory and administrative authorities with
respect thereto, and shall not permit or suffer any of its
Subsidiaries to, generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce or process Hazardous
Materials other than in the ordinary course of business and in
compliance in all material respects with applicable Environmental
Laws, and shall not, and shall not permit or suffer any of its
Subsidiaries to, cause or permit, as a result of any intentional or
unintentional act or omission on the part of Mallinckrodt or any
Subsidiary thereof, the installation or placement of Hazardous
Materials in violation of or actionable under in any material respect
applicable Environmental Laws onto any of its Property or suffer the
presence of Hazardous Materials in violation of or actionable under
in any material respect applicable Environmental Laws on any of its
Property. Mallinckrodt shall, and shall cause each of its
Subsidiaries to, promptly undertake and diligently pursue to
completion any remedial clean-up action required of Mallinckrodt or
any Subsidiary under applicable Environmental Laws in the event of
any release of Hazardous Materials.
Section 5.13. Most Favored Lender. Mallinckrodt will not
and will not permit any Subsidiary to (a) enter into any indenture,
agreement or other instrument under which any Indebtedness for
borrowed money in excess of $15,000,000 for any such indenture,
agreement or instrument (or series of related agreements or
instruments) of Mallinckrodt or of any Subsidiary may be issued (a
"Restricted Agreement"), or (b) agree to any amendment, waiver,
consent, modification, refunding, refinancing or replacement of any
Restricted Agreement, in either case, with terms the effect of which
is to (i) include a Covenant which imposes a restriction, limitation
or obligation in favor of another lender not imposed in favor of the
Banks by this Agreement, or (ii) revise or alter any Covenant
contained therein the effect of which is to impose a restriction,
limitation or obligation in favor of another lender not imposed in
favor of the Banks by this Agreement, unless Mallinckrodt or such
Subsidiary, as the case may be, concurrently (x) notifies the Banks
and the Administrative Agent thereof and (y) incorporates herein such
additional, altered or revised Covenant. If the Administrative Agent
at the time so elects by notice to Mallinckrodt and the Banks, the
incorporation of each such additional Covenant shall be deemed to
occur automatically without any further action or the execution
of any additional document by any of the parties to this Agreement.
If the Administrative Agent does not elect to effect such an
automatic incorporation, the Administrative Agent shall promptly
tender to Mallinckrodt and the Borrower for execution by them an
amendment (executed by the Administrative Agent) incorporating such
additional Covenant, and shall promptly deliver a copy of such
amendment to the Banks.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) Any Obligor shall: (i) default in the payment of any
principal of any Loan when due (whether at stated maturity or at
mandatory or optional prepayment); or (ii) default in the payment of
any interest on any Loan, any fee or any other amount payable by it
hereunder when due and such default shall have continued unremedied
for five days; or
(b) Mallinckrodt or any of its Subsidiaries or the Borrower
shall default beyond any applicable grace period, or, in the case of
any Derivatives Obligations for which no grace period is otherwise
provided, beyond five days, in the payment when due of any principal
of or interest on any Indebtedness (other than the Indebtedness
hereunder or under the Notes) aggregating $15,000,000 or more, or in
the payment when due of amounts exceeding $15,000,000 in the
aggregate for the payment or collateralization of Derivatives
Obligations; or any event specified in any note, agreement, indenture
or other document evidencing or relating to any such Indebtedness or
any event specified in any instrument or agreement governing such
Derivatives Obligations shall occur if the effect of such event is
(or, with the giving of notice or the passage of time or both,
would be) to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid
in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity or to have the interest rate
thereon reset to a level so that securities evidencing such
Indebtedness trade at a level specified in relation to the par value
thereof or, in the case of an instrument or agreement governing such
Derivatives Obligations, to permit the payments owing under such
instrument or agreement to be liquidated; or (c) Any representation,
warranty or certification made or deemed made herein (or in any
modification or supplement hereto) by any Obligor, or any certificate
furnished to any Bank or any Agent pursuant to the provisions hereof,
shall prove to have been false or misleading as of the time made or
furnished in any material respect; or (d) Any Obligor shall default
in the performance of its obligations under Sections 5.01(f), 5.05
through 5.09 (inclusive), or 5.13 hereof or Article 9 or 10 hereof;
or the Borrower shall default in the performance of any of its
obligations under the Pledge Agreement; or any Obligor shall default
in the performance of any of its other obligations in this Agreement
and such default shall continue unremedied for a period of 30 days
after notice thereof to the Borrower and Mallinckrodt by the
Administrative Agent at the request of any Bank; or
(e) Mallinckrodt, any of its Subsidiaries or the Borrower shall
admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due; or
(f) Mallinckrodt, any of its Subsidiaries or the Borrower shall
(i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its Property, (ii) make
a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code, (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case
under the Bankruptcy Code or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of Mallinckrodt, any of its Subsidiaries or
the Borrower, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up,
or the composition or readjustment of its debts, (ii) the appointment
of a receiver, custodian, trustee, examiner, liquidator or the like
of Mallinckrodt, such Subsidiary or the Borrower or of all or any
substantial part of any of its respective Property, or (iii) similar
relief in respect of Mallinckrodt, such Subsidiary or the Borrower
under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment
or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or
more days; or an order for relief against Mallinckrodt, such
Subsidiary or the Borrower shall be entered in an involuntary case
under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $15,000,000 in the aggregate shall be rendered by one or
more courts, administrative tribunals or other bodies having
jurisdiction against Mallinckrodt, any of its Subsidiaries or the
Borrower and the same shall not be discharged (or provision shall not
be made for such discharge), or a stay of execution thereof shall not
be procured, within 30 days from the date of entry thereof and
Mallinckrodt, its relevant Subsidiary or the Borrower shall not,
within said period of 30 days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 5.01(e) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, Mallinckrodt or any ERISA Affiliate shall
incur or in the opinion of the Required Banks shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or PBGC
(or any combination of the foregoing) which would constitute, in the
determination of the Required Banks, a Material Adverse Effect; or
(j) Any Person or two or more Persons acting in concert shall
have acquired, in one transaction or in a series of related
transactions, beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of securities of
Mallinckrodt (or other securities convertible into such securities)
representing 40% or more of the combined voting power of Mallinckrodt
then outstanding securities entitled to vote in the election of
directors (other than securities having such power only by reason of
the happening of a contingency); or
(k) At any time any obligation of either Guarantor under
Article 9 or Article 10, as the case may be, shall for any reason
cease to be in full force and effect, or any Obligor shall so assert
in writing; or
(l) At any time the Lien created by the Pledge Agreement shall
cease to constitute a perfected first priority security interest in
favor of the Collateral Agent for the benefit of the Secured Parties
referred to therein in any of the Collateral, or any Obligor shall so
assert in writing;
THEREUPON: (i) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 6.01 with respect to
any Obligor, (A) the Administrative Agent, upon request of the Banks
having at least 51% of the aggregate amount of the Commitments,
shall, by notice to the Borrower, terminate the Commitments and they
shall thereupon terminate, and (B) the Administrative Agent, upon
request of Banks holding at least 51% of the aggregate unpaid
principal amount of the Loans, shall, by notice to the Borrower,
declare the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Borrower
hereunder and under the Notes to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower; and (2) in the
case of the occurrence of an Event of Default referred to in clause
(f) or (g) of this Section 6.01 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Borrower hereunder and under the
Notes shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
Section 6.02. Notice of Default. The Administrative Agent
shall give notice to the Borrower and Mallinckrodt under Section
6.01(d) promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent and the
Collateral Agent to take such action as administrative agent on its
behalf and to exercise such powers under the Loan Documents as are
delegated to the Administrative Agent or the Collateral Agent (as the
case may be) by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section 7.02. Agent and Affiliates. ▇▇▇▇▇▇ Guaranty Trust
Company of New York and Citibank, N.A. shall each have the same
rights and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it were not an
Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York and Citibank,
N.A. and their respective affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the
Obligors or any Subsidiary or affiliate of any Obligor as if it were
not an Agent hereunder.
Section 7.03. Action by Agent. The obligations of each Agent
hereunder are only those expressly set forth herein. Without
limiting the generality of the foregoing, no Agent shall be required
to take any action with respect to any Default, except as expressly
provided in Article 6.
Section 7.04. Consultation with Experts. Each Agent may
consult with legal counsel (who may be counsel for the Obligors),
independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 7.05. Liability of Agent. No Agent nor any of its
affiliates nor any of the respective directors, officers, agents or
employees of the foregoing shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. No Agent nor any of its affiliates
nor any of the respective directors, officers, agents or employees of
the foregoing shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder or
the Pledge Agreement; (ii) the performance or observance of any of
the covenants or agreements of the Obligors, (iii) the satisfaction
of any condition specified in Article 3, except in the case of the
Administrative Agent receipt of items required to be delivered to
such Agent; or (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in
connection therewith. No Agent shall incur any liability by acting
in reliance upon any notice, consent, certificate, statement, or
other writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be genuine or to
be signed by the proper party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify each Agent, its affiliates
and the respective directors, officers, agents and employees of the
foregoing (to the extent not reimbursed by the Obligors) against any
cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with the Loan Documents
or any action taken or omitted by such indemnitees thereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon either Agent or any
other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the either Agent or any other
Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under the Loan Documents.
Section 7.08. Successor Administrative Agent. The
Administrative Agent and the Collateral Agent may each resign at any
time by giving notice thereof to the Banks and the Borrower. Upon
any such resignation, the Required Banks shall have the right to
appoint a successor Administrative Agent and/or Collateral Agent (as
relevant) reasonably acceptable to the Borrower. If no such
successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Administrative Agent
and/or Collateral Agent (as relevant), which shall be a commercial
bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its
appointment as such Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights and duties of the
retiring Administrative Agent and/or Collateral Agent (as relevant),
and the retiring Administrative Agent and/or Collateral Agent (as
relevant) shall be discharged from its duties and obligations
hereunder and/or under the Pledge Agreement (as relevant). After any
retiring Agent's resignation hereunder as Administrative Agent and/or
Collateral Agent (as relevant) the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent and/or Collateral Agent (as
relevant).
Section 7.09. Agents' Fees. The Borrower shall pay to each
Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and such Agent.
Section 7.10. Documentation Agent and Co-Agents. Nothing
in this Agreement shall impose upon the Documentation Agent or any
Co-Agent, in their respective capacities as such, any duty or
obligation whatsoever.
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for
any CD Loan, Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference
Banks that deposits in dollars (in the applicable amounts) are
not being offered to the Reference Banks in the relevant market
for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks
having 50% or more of the aggregate principal amount of the
affected Loans advise the Administrative Agent that the Adjusted
CD Rate or the London Interbank Offered Rate, as the case may
be, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding
their CD Loans or Euro-Dollar Loans, as the case may be, for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Banks to make
CD Loans or Euro-Dollar Loans, as the case may be, or to continue or
convert outstanding Loans as or into CD Loans or Euro-Dollar Loans,
as the case may be, shall be suspended and (ii) each outstanding CD
Loan or Euro-Dollar Loan, as the case may be, shall be converted into
a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative
Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall
instead be made as a Base Rate Borrowing and (ii) if such Fixed Rate
Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from
and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
Section 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank
(or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify
the Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans, shall be suspended.
Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each
Euro-Dollar Loan of such Bank then outstanding shall be converted to
a Base Rate Loan either (i) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Bank may
lawfully continue to maintain and fund such Loan to such day or (ii)
immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or
after (x) the date hereof, in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related
Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank
(or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve Percentage and
(ii) with respect to any Euro-Dollar Loan any such requirement with
respect to which such Bank is entitled to compensation during the
relevant Interest Period under Section 2.16), special deposit,
insurance assessment (excluding, with respect to any CD Loan, any
such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting
its Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans and the result of any of the foregoing is to increase the cost
to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto,
by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Administrative Agent),
the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate
of return on capital of such Bank (or its Parent) as a consequence of
such Bank's obligations hereunder to a level below that which such
Bank (or its Parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this section but in any event within 45
days, after such Bank obtains actual knowledge thereof; provided that
(i) if any Bank fails to give such notice within 45 days after it
obtains actual knowledge of such an event, such Bank shall, with
respect to compensation payable pursuant to this Section 8.03 in
respect of any costs resulting from such event, only be entitled to
payment under this Section 8.03 for costs incurred from and after the
date 45 days prior to the date that such Bank does give such notice
and (ii) each Bank will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of
any Bank claiming compensation under this section and setting forth
in reasonable detail the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, such Bank shall use reasonable averaging
and attribution methods.
Section 8.04. Taxes. (a) For the purposes of this Section
8.04, the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to
any payment by an Obligor pursuant to the Loan Documents, and all
liabilities with respect thereto, excluding (i) in the case of each
Bank and Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction under the laws of which such
Bank or such Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Bank,
in which its Applicable Lending Office is located and (ii) in the
case of each Bank, any United States withholding tax imposed on such
payments but only to the extent that such Bank is subject to United
States withholding tax at the time such Bank first becomes a party to
this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or
levies, which arise from any payment made pursuant to the Loan
Documents or from the execution or delivery of, or otherwise with
respect to, the Loan Documents.
(b) Any and all payments by the Obligors to or for the account
of any Bank or the Administrative Agent hereunder or under any Note
shall be made without deduction for any Taxes or Other Taxes;
provided that, if any Obligor shall be required by law to deduct any
Taxes or Other Taxes from any such payments, (i) the sum payable
shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 8.04) such Bank or such Agent (as the case
may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the relevant Obligor shall
make such deductions, (iii) the relevant Obligor shall pay the full
amount deducted to the relevant taxation authority or other authority
in accordance with applicable law and (iv) the relevant Obligor (as
applicable) shall furnish to the Administrative Agent, at its address
referred to in Section 11.01, the original or a certified copy of a
receipt evidencing payment thereof.
(c) Each of the Obligors agrees to indemnify each Bank and each
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.04) paid by such
Bank or such Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days after
such Bank or such Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Bank listed on the
signature pages hereof and on or prior to the date on which it
becomes a Bank in the case of each other Bank, and from time to time
thereafter if requested in writing by the Borrower (but only so long
as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party which exempts
the Bank from United States withholding tax or reduces the rate of
withholding tax on payments of interest for the account of such Bank
or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in
the United States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section
8.04(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form
originally was required to be provided), such Bank shall not be
entitled to indemnification under Section 8.04(b) or (c) with respect
to Taxes imposed by the United States; provided that if a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding
tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such
Taxes.
(f) If any Obligor is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.04, then such
Bank will change the jurisdiction of its Applicable Lending Office
if, in the judgment of such Bank, such change will eliminate or
reduce any such additional payment which may thereafter accrue and
is not otherwise disadvantageous to such Bank.
Section 8.05. Base Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make, or
convert outstanding Loans to, Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
(or continued as or converted into) CD Loans or Euro-Dollar
Loans, as the case may be, shall instead be Base Rate Loans (on
which interest and principal shall be payable contemporaneously
with the related Fixed Rate Loans of the other Banks); and
(b) after each of its CD Loans or Euro-Dollar Loans, as the
case may be, has been repaid (or converted to a Base Rate Loan),
all payments of principal which would otherwise be applied to
repay such Fixed Rate Loans shall be applied to repay its Base
Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise
to such notice no longer apply, the principal amount of each such
Base Rate Loan shall be converted into a CD Loan or Euro-Dollar Loan,
as the case may be, on the first day of the next succeeding Interest
Period applicable to the related CD Loans or Euro-Dollar Loans of the
other Banks.
Section 8.06. Substitution of Bank. Provided that no Default
shall have occurred and be continuing, if (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section 8.03 or
8.04 the Borrower shall have the right to designate an Assignee which
is not any Obligor, any of their Subsidiaries or an Affiliate to
purchase for cash, pursuant to an Assignment and Assumption Agreement
substantially in the form of Exhibit G hereto, the outstanding Loans
and Commitment of such Bank and to assume all of such Bank's other
rights and obligations hereunder without recourse to or warranty by
such Bank, for a purchase price equal to the principal amount of all
of such Bank's outstanding Loans plus any accrued but unpaid interest
thereon and the accrued but unpaid facility fees in respect of such
Bank's Commitment hereunder plus such amount, if any, as would be
payable pursuant to Section 2.14 if the outstanding Loans of such
Bank were prepaid in their entirety on the date of consummation of
such assignment, plus the compensation then due and payable pursuant
to Sections 8.03 and 8.04.
ARTICLE 9
Fries & Fries Guaranty
Section 9.01. The Fries & Fries Guaranty. Fries & Fries
hereby unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Note issued by the Borrower
pursuant to this Agreement, and the full and punctual payment of all
other amounts payable by the Borrower under this Agreement and the
other Loan Documents. Upon failure by the Borrower to pay punctually
any such amount, Fries & Fries shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in this
Agreement.
Section 9.02. Guaranty Unconditional. The obligations of
Fries & Fries hereunder shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be
delayed, released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of any other
Obligor under any Loan Document, by operation of law or
otherwise, and (to the extent applicable) any right under
partnership or other applicable law to require any Person to
seek remedies against partnership assets before proceeding
against its partners;
(ii) any modification or amendment of or supplement to any
Loan Document;
(iii) any release, impairment, non-perfection or invalidity
of any direct or indirect security for any obligation of any
other Obligor under any Loan Document;
(iv) any change in the corporate or general partnership
existence, structure or ownership of any other Obligor, or any
dissolution, insolvency, bankruptcy, reorganization or other
similar proceeding affecting any other Obligor or its assets or
any resulting release or discharge of any obligation of any
other Obligor contained in any Loan Agreement;
(v) the existence of any claim, set-off or other rights
which Fries & Fries may have at any time against any other
Obligor, either Agent, any Bank or any other Person, whether in
connection herewith or any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against any other Obligor for any reason of any Loan Document,
or any provision of applicable law or regulation purporting to
prohibit the payment by any other Obligor of the principal of or
interest on any Note or any other amount payable by any other
Obligor under the Loan Document; or
(vii) any other act or omission to act or delay of any kind
by any other Obligor, either Agent, any Bank or any other Person
or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of or defense to Fries & Fries's obligations or any
other Obligor's obligations, as the case may be, hereunder.
Section 9.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances. Fries & Fries's obligations
hereunder shall remain in full force and effect until the Commitments
shall have terminated and the principal of and interest on the Notes
and all other amounts payable by the Obligors under the Loan
Documents shall have been paid in full. If at any time any payment
of the principal of or interest on any Note or any other amount
payable by the Borrower under the Loan Documents is rescinded or must
be otherwise restored or returned upon the dissolution, insolvency,
bankruptcy or reorganization of the Borrower or otherwise, Fries &
Fries's obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such
time.
Section 9.04. Waiver by Fries & Fries. Fries & Fries
irrevocably waives acceptance hereof, presentment, demand, protest
and any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the
Borrower or any other Person.
Section 9.05. Subrogation. Upon making any payment with
respect to the Borrower hereunder, Fries & Fries shall be subrogated
to the rights of the payee against the Borrower with respect to such
payment (including any such rights under the Pledge Agreement);
provided that Fries & Fries shall not enforce any payment by way of
subrogation until all amounts of principal of and interest on the
Notes and all other amounts payable by the Borrower under the Loan
Documents have been paid in full.
Section 9.06. Stay of Acceleration. If acceleration of the
time for payment of any amount payable by the Borrower under this
Agreement or the Notes is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be
payable by Fries & Fries hereunder forthwith on demand by the
Administrative Agent made at the request of the requisite proportion
of the Banks specified in Article 6 of this Agreement.
ARTICLE
Mallinckrodt Guaranty
Section 10.01. The Mallinckrodt Guaranty. Mallinckrodt
hereby unconditionally guarantees all obligations of Fries & Fries
under Article 9 of this Agreement. Upon failure by Fries & Fries to
fulfill any such obligation, Mallinckrodt shall forthwith on demand
pay the amount not so paid at the place and in the manner specified
in this Agreement.
Section 10.2. Guaranty Unconditional. The obligations of
Mallinckrodt hereunder shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be
delayed, released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of any other
Obligor under any Loan Document, by operation of law or
otherwise and (to the extent applicable) any right under m
partnership or other applicable law to require any Person to
seek remedies against partnership assets before proceeding
against its partners;
(ii) any modification or amendment of or supplement to any
Loan Document;
(iii) any release, impairment, non-perfection or invalidity
any direct or indirect security for any obligation of any other
Obligor under any Loan Document;
(iv) any change in the corporate or general partnership
existence, structure or ownership of any other Obligor, or any
dissolution, insolvency, bankruptcy, reorganization or other
similar proceeding affecting any other Obligor or its assets or
any resulting release or discharge of any obligation of any
other Obligor contained in any Loan Agreement;
(v) the existence of any claim, set-off or other rights
which Mallinckrodt may have at any time against any other
Obligor, either Agent, any Bank or any other Person, whether in
connection herewith or any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against any other Obligor for any reason of any Loan Document,
or any provision of applicable law or regulation purporting to
prohibit the payment by any other Obligor of the principal of or
interest on any Note or any other amount payable by any other
Obligor under the Loan Document; or
(vii) any other act or omission to act or delay of any kind
by any other Obligor, either Agent, any Bank or any other Person
or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable
discharge of or defense to Fries & Fries's obligations or any
other Obligor's obligations, as the case may be, hereunder.
Section 10.03. Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances. Mallinckrodt's obligations
hereunder shall remain in full force and effect until the Commitments
shall have terminated and the principal of and interest on the Notes
and all other amounts payable by the Obligors under the Loan
Documents shall have been paid in full. If at any time any payment
of any amount payable by Fries & Fries under its Tastemaker Guarantee
is rescinded or must be otherwise restored or returned upon the
dissolution, insolvency, bankruptcy or reorganization of Fries &
Fries or otherwise (including, without limitation, pursuant to the
operation of Section 9.03), Mallinckrodt's obligations hereunder with
respect to such payment shall be reinstated as though such payment
had been due but not made at such time.
Section 10.04. Waiver by Mallinckrodt. Mallinckrodt
irrevocably waives acceptance hereof, presentment, demand, protest
and any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against any other
Obligor or any other Person.
Section 10.05. Subrogation. Upon making any payment with
respect to the Tastemaker Guaranty of Fries & Fries hereunder,
Mallinckrodt shall be subrogated to the rights of the payee against
Fries & Fries (including any rights against the Borrower by way of
such Tastemaker Guaranty) with respect to such payment (including any
such rights under the Pledge Agreement); provided that Mallinckrodt
shall not enforce any payment by way of subrogation until all amounts
of principal of and interest on the Notes and all other amounts
payable by the Obligors under the Loan Documents have been paid in
full.
Section 10.06. Stay of Acceleration. If acceleration of
the time for payment of any amount payable by Fries & Fries under
this Agreement or the Notes is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower (including without limitation
pursuant to Section 9.06), all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be
payable by Mallinckrodt hereunder forthwith on demand by the
Administrative Agent made at the request of the requisite proportion
of the Banks specified in Article 6 of this Agreement.
ARTICLE 11
Miscellaneous
Section 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party: (a) in the case of any Obligors, or any
Agent, at its address, facsimile number or telex number set forth on
the signature pages hereof, (b) in the case of any Bank, at its
address, facsimile number or telex number set forth in its
Administrative Questionnaire or in the case of any party, such other
address, facsimile number or telex number as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the
Obligors. Each such notice, request or other communication shall
be effective (i) if given by telex, when such telex is transmitted to
the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this section and
confirmation of receipt is received, (iii) if given by mail, 72 hours
after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article 2 or
Article 8 shall not be effective until received.
Section 11.02. No Waivers. No failure or delay by any Agent or
any Bank in exercising any right, power or privilege hereunder or
under any Note shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 11.03. Expenses; Indemnification. (a) The Borrower
shall pay (i) all out-of-pocket expenses of each Agent, including
reasonable fees and disbursements of special counsel for the Agents,
in connection with the preparation and administration of this
Agreement, any waiver or consent hereunder or any amendment hereof or
any Default or alleged Default hereunder and (ii) if an Event of
Default occurs and is continuing, all out-of-pocket expenses incurred
by each Agent and each Bank, including (without duplication) the fees
and disbursements of outside counsel and the allocated cost of inside
counsel, in connection with collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and each Bank,
their respective affiliates and the respective directors, officers,
agents and employees of the foregoing (each an "Indemnitee") and hold
each Indemnitee harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel and
settlement costs, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a
party thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans
hereunder; provided that no Indemnitee shall have the right to be
indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent
jurisdiction.
Section 11.04. Sharing of Set-offs. (a) Each Bank agrees that
if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note held by it which
is greater than the proportion received by any other Bank in respect
of the aggregate amount of principal and interest due with respect to
any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in
the Notes held by the other Banks, and such other adjustments shall
be made (including upon any recapture or rescission of such greater
payment so received by such Bank), as may be required so that all
such payments of principal and interest with respect to the Notes
held by the Banks shall be shared by the Banks pro rata; provided
that nothing in this section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of
indebtedness of the Obligors other than its indebtedness hereunder.
Each of the Obligors agrees, to the fullest extent it may effectively
do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such holder of a
participation were a direct creditor of the Obligors (as the case may
be) in the amount of such participation.
(b) Upon the occurrence and during the continuance of any
Event of Default, each of the Banks and their respective affiliates
is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such
Bank or such Bank's affiliate to or for the credit or the account of
an Obligor now or hereafter existing under this Agreement, whether
or not such Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Bank agrees promptly
to notify the Obligors after any such set-off and application,
provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank and
their respective affiliates under this subsection (b) are in addition
to other rights and remedies (including, without limitation, other
rights of set-off) that the Banks and their respective affiliates may
have.
Section 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Obligors and
the Required Banks (and, if the rights or duties of either Agent are
affected thereby, by such Agent); provided that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase or
decrease the Commitment of any Bank (except for a ratable decrease in
the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any
Loan, or any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan, or any fees
hereunder or for termination of any Commitment, (iv) change the
percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this section or
any other provision of this Agreement, amend (v) Section 2.17 or
release any substantial part of the Collateral from the Lien of the
Pledge Agreement or (vi) release the Guarantors from any of their
obligations under, or modify in any material respect the provisions
of, Article 9 or 10, respectively; and provided further that, at the
option of the Administrative Agent, an additional, altered or revised
Covenant shall be incorporated herein pursuant to Section 5.13 either
(i) automatically or (ii) by an amendment signed solely by the
Administrative Agent and the Obligors.
Section 11.06. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except
that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement without the prior written consent of all
Banks.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in
its Commitment or any or all of its Loans. In the event of any such
grant by a Bank of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Administrative Agent, such
Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 11.05 without the
consent of the Participant. Each of the Borrower and Mallinckrodt
agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Section 2.16
and Article 8 with respect to its participating interest. An
assignment or other transfer which is not permitted by subsection(c)
or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part
(equivalent to an initial Commitment of not less than $10,000,000,
unless a lower amount is agreed to by the Borrower and the
Administrative Agent) of all, of its rights and obligations under
this Agreement and the Notes, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit G hereto executed by
such Assignee and such transferor Bank, with (and subject to) the
subscribed consent of the Borrower and the Administrative Agent, each
of which shall not be unreasonably withheld; provided that if an
Assignee is an affiliate of such transferor Bank, no such consent
shall be required; and provided further that such assignment may, but
need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations
of a Bank with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued
to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of
$2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the
Borrower and the Administrative Agent certification as to exemption
from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank.
No such assignment shall release the transferor Bank from its
obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section
8.03 or 8.04 than such Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with
the Borrower's prior written consent or by reason of the provisions
of Section 8.02, 8.03 or 8.04 requiring such Bank to designate a
different Applicable Lending Office under certain circumstances or at
a time when the circumstances giving rise to such greater payment did
not exist.
Section 11.07. Collateral. Each of the Banks represents to
each of the Agents and each of the other Banks that it in good faith
is not relying upon any "margin stock" (as defined in Regulation U)
as collateral in the extension or maintenance of the credit provided
for in this Agreement.
Section 11.08. Governing Law; Submission to Jurisdiction.
This Agreement and each Note shall be governed by and construed in
accordance with the laws of the State of New York. The Obligors
hereby submit to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New
York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to the Loan Documents or the
transactions contemplated thereby. The Obligors irrevocably waive,
to the fullest extent permitted by law, any objection which they may
now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an
inconvenient forum.
Section 11.09 Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement
constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the
Administrative Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telegraphic,
telex, facsimile or other written confirmation from such party of
execution of a counterpart hereof by such party).
Section 11.10 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 11.11 Confidentiality. The Agents and each Bank
agree to keep any information delivered or made available by the
Obligors pursuant to this Agreement confidential from anyone other
than affiliates of such Bank and persons employed or retained by it
who are engaged in evaluating, approving, structuring or
administering the credit facility contemplated hereby; provided that
nothing herein shall prevent any Bank from disclosing such
information (a) to any other Bank or to an Agent, (b) to any other
Person if reasonably incidental to the administration of the credit
facility contemplated hereby, (c) upon the order of any court or
administrative agency, (d) upon the request or demand of any
regulatory agency or authority, (e) which had been publicly disclosed
other than as a result of a disclosure by an Agent or Bank prohibited
by this Agreement, (f) in connection with any litigation to which an
Agent or Bank or its subsidiaries or Parent may be a party, (g) to
the extent necessary in connection with the exercise of any remedy
hereunder, (h) to such Bank's or the Agents' legal counsel and
independent auditors and (i) subject to provisions substantially
similar to those contained in this Section, to any actual or proposed
Participant or Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
TASTEMAKER
By:__________________________
Name:
Title:
Address:
Facsimile:
FRIES & FRIES, INC., as Guarantor
By:__________________________
Name:
Title:
Address:16305 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
MALLINCKRODT INC., as Guarantor
By:__________________________
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Commitments
$50,000,000 ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By___________________________
Title:
$50,000,000 CITIBANK, N.A.
By___________________________
Title:
$41,000,000 BANK OF AMERICA ILLINOIS
By___________________________
Title:
$41,000,000 THE CHASE MANHATTAN BANK
By___________________________
Title:
$41,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By___________________________
Title:
$28,000,000 ABN-AMRO BANK N.V., CHICAGO
BRANCH
By___________________________
Title:
By___________________________
Title:
$28,000,000 THE BANK OF NOVA SCOTIA
By___________________________
Title:
$28,000,000 THE BOATMEN'S NATIONAL
BANK OF ST. LOUIS
By___________________________
Title:
$28,000,000 CIBC INC.
By___________________________
Title:
$28,000,000 DEUTSCHE BANK AG
CHICAGO AND/OR CAYMAN
ISLANDS BRANCHES
By___________________________
Title:
By___________________________
Title:
$28,000,000 THE FUJI BANK, LIMITED
By___________________________
Title:
$28,000,000 MELLON BANK, N.A.
By___________________________
Title:
$28,000,000 SOCIETE GENERALE, CHICAGO
BRANCH
By___________________________
Title:
$28,000,000 THE SUMITOMO BANK, LTD.
By___________________________
Title:
$25,000,000 BANCA COMMERCIALE ITALIANA
By___________________________
Title:
By___________________________
Title:
$25,000,000 BANK OF IRELAND
By___________________________
Title:
$25,000,000 THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By___________________________
Title:
$25,000,000 BANQUE PARIBAS
By___________________________
Title:
$25,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By___________________________
Title:
By___________________________
Title:
Total Commitments
=================
$ 600,000,000
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By:__________________________
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex number: 177615 MGT UT
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A., as Documentation
Agent
By:__________________________
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
NOTE
New York, New York
______________, ______
For value received, Tastemaker (the "Borrower"), promises to
pay to the order of (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to
below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of
each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in Federal or
other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any
transfer or enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding
may be endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the $600,000,000
Credit Agreement dated as of January 24, 1997 among the Borrower,
Fries & Fries, Inc., as Guarantor, Mallinckrodt Inc., as Guarantor,
the banks party thereto from time to time, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent and Citibank, N.A., as
Documentation Agent (as the same may be amended from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
TASTEMAKER
By:__________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------------------
Amount Type Amount of
of or Maturity Principal Notation
Date Loan Loan Date Repaid Made By
---- ------ ---- -------- --------- --------
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
(Date)
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York
From: Tastemaker
Re: $600,000,000 Credit Agreement (the "Credit Agreement")
dated as of January 24, 1997 among Tastemaker, as
Borrower, Fries & Fries, Inc., as Guarantor,
Mallinckrodt Inc., as Guarantor, the Banks party
thereto from time to time, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent and
Citibank, N.A., as Documentation Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
$
Such Money Market Quotes should offer a Money Market [Margin]
(Absolute Rate). (The applicable base rate is the London Interbank
Offered Rate.)
TASTEMAKER
By:_____________________
Name:
Title:
---------------------
(1) Amount must be $10,000,000 or a larger multiple of $1,000,000.
(2) Not less than one month (LIBOR Auction) or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the
definition of Interest Period.
EXHIBIT C
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: (Name of Bank)
Re: Invitation for Money Market Quotes to Tastemaker (the
"Borrower")
Pursuant to Section 2.03 of the $600,000,000 Credit Agreement
dated as of January 24, 1997 among Tastemaker, as Borrower, Fries &
Fries, Inc., as Guarantor, Mallinckrodt Inc., as Guarantor, the Banks
party thereto from time to time, Citibank, N.A., as Documentation
Agent and the undersigned, as Administrative Agent, we are pleased on
behalf of the Borrower to invite you to submit Money Market Quotes to
the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
(Absolute Rate). (The applicable base rate is the London Interbank
Offered Rate.)
Please respond to this invitation by no later than (2:00 P.M.)
(9:30 A.M.) (New York City time) on (date).
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By:_______________________
Authorized Officer
EXHIBIT D
FORM OF MONEY MARKET QUOTE
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative
Agent
Re: Money Market Quote to Tastemaker (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote
on the following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________(1)
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount(2) Period(3) (Margin)(4) (Absolute Rate)(5)
--------- --------- ------------ --------------------
$
$
---------------------
(1) As specified in the related Invitation.
(2) Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum
of the individual offers exceeds the amount the Bank is willing to
lend. Bids must be made for $5,000,000 or a larger multiple of
$1,000,000.
(3) Not less than one month or not less than 7 days, as specified in
the elated Invitation. No more than five bids are permitted for each
Interest Period.
(4) Margin over or under the London Interbank Offered Rate determined
for the applicable Interest Period. Specify percentage (to the
nearest 1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
(5) Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
(Provided, that the aggregate principal amount of Money Market
Loans for which the above offers may be accepted shall not exceed
$____________.)(2)
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the 600,000,000 Credit Agreement dated as of January 24, 1997 among
Tastemaker, Fries & Fries, Inc., as Guarantor, Mallinckrodt Inc., as
Guarantor, the Banks party thereto from time to time, Citibank, N.A.,
as Documentation Agent, and yourselves, as Administrative Agent,
irrevocably obligates us to make the Money Market Loan(s) for which
any offer(s) are accepted, in whole or in part.
Very truly yours,
(NAME OF BANK)
Dated:__________________________ By:__________________________
Authorized Officer
EXHIBIT E-1
OPINION OF COUNSEL FOR THE BORROWER
(Closing Date)
Each of the Banks and each of the Agents party
to the Credit Agreement referred to below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York as Administrative Agent
for said Banks
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the General Counsel of Tastemaker, a general partnership
organized under the laws of the State of Delaware ("Tastemaker") and
am furnishing this opinion in connection with the Credit Agreement
dated as of January 24, 1997 (the "Credit Agreement") among
Tastemaker (the "Borrower"), Fries & Fries, Inc., as a Guarantor
("Fries & Fries"), Mallinckrodt Inc., as a Guarantor ("Mallinckrodt")
(Fries & Fries and Mallinckrodt together, the "Guarantors"; and,
together with the Borrower, the "Obligors"), the banks party thereto
from time to time (the "Banks"), Citibank, N.A. as Documentation
Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Administrative Agent, providing for, among other things, the making
of loans by the Banks in an aggregate principal amount not exceeding
$600,000,000. All capitalized terms used but not defined herein have
the respective meanings given to such terms in the Credit Agreement.
In rendering the opinions expressed below, I have examined:
(i) the Credit Agreement;
(ii) the Pledge Agreement;
(ii) the Notes (collectively with the Credit Agreement and
the Pledge Agreement, the "Loan Documents"); and
(iv) the Partnership Agreement of the Borrower dated as of
February 1, 1992 (the "General Partnership
Agreement") and such corporate and partnership
records, agreements and instruments of the Borrower
and such other documents and records as I have deemed
necessary as a basis for the opinions expressed
below.
In my examination, I have assumed the genuineness of all
signatures (except those of officers of the Borrower), the
authenticity of all documents submitted to me as originals and the
conformity with authentic original documents of all documents
submitted to me as copies. When relevant facts were not
independently established, I have relied upon representations
made in or pursuant to the Credit Documents and certificates of
appropriate representatives of the Borrower.
In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter,
that (except, to the extent set forth in the opinions expressed
below, as to the Borrower):
(i) such documents have been duly authorized by, have been
duly executed and delivered by, and constitute legal,
valid, binding and enforceable obligations of, all of
the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered
such questions of law as I have deemed necessary as a basis for the
opinions expressed below, I am of the opinion that:
1. Tastemaker is a general partnership between Fries & Fries
and Hercules Flavor Inc. ("HFI"), and each of Fries & Fries and HFI
is the legal and beneficial ownership of 50% of all capital and other
equity and partnership interests in Tastemaker.
2. The Borrower has all requisite power under the General
Partnership Agreement to execute and deliver, and to perform its
obligations under, each Loan Document and has all requisite power
under the General Partnership Agreement to borrow under the Credit
Agreement.
3. The execution, delivery and performance by the Borrower of
the Loan Documents and the borrowings by the Borrower under the
Credit Agreement have been duly authorized by all necessary action
required under the General Partnership Agreement.
4. Each Loan Document has been duly executed and delivered
by the Borrower. The Credit Agreement has been duly executed and
delivered by the Borrower.
5. Each Loan Document (assuming, in the case of the Notes,
execution and delivery thereof for value) constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms except as the foregoing may be
limited by dissolution, bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
of creditors generally and except as the enforceability of the Loan
Documents is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in equity or
at law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing, and except that certain
of the remedial provisions in the Pledge Agreement may be limited by
applicable law, although such limitations do not in my opinion make
the remedies provided for therein inadequate for the practical
realization of the benefits of the security intended to be afforded
thereby.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency
is required on the part of the Borrower for the execution, delivery
or performance by the Borrower of, or for the legality, validity or
enforceability of, the Loan Documents or for any borrowing by the
Borrower under the Credit Agreement.
7. The execution, delivery and performance by the Borrower of
the Loan Documents, and borrowings by the Borrower under the Credit
Agreement, do not and will not (a) violate any provision of the
General Partnership Agreement, (b) violate any applicable law, rule
or regulation, (c) violate any order, writ, injunction or decree of
any court or governmental authority or agency or any arbitral award
applicable to the Borrower of which I have knowledge (after due
inquiry) or (d) result in a breach of, constitute a default under,
require any consent under, or result in the acceleration or required
prepayment of any indebtedness pursuant to the terms of, any
agreement or instrument of which I have knowledge (after due inquiry)
to which the Borrower is a party or by which Borrower is bound or
to which the Borrower is subject.
8. I have no knowledge (after due inquiry) of any legal or
arbitral proceeding by or before any governmental or regulatory
authority or agency, now pending or threatened against the Borrower
or any of its Properties that, if adversely determined, is reasonably
likely to have a Material Adverse Effect.
9. The Borrower is neither an "investment company" nor a
company "controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940, as amended.
10. The Borrower is neither a "holding company", nor an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
The foregoing opinions are subject to the following comments
and qualifications:
A. The enforceability of Section 11.03 of the Credit Agreement
may be limited by laws rendering unenforceable indemnification
contrary to Federal or State securities laws and the public policy
underlying such laws.
B. The enforceability of provisions in the Credit Documents to
the effect that terms may not be waived or modified except in writing
may be limited under certain circumstances.
C. I express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State
of Ohio) that limit the interest, fees, or other charges such Bank
may impose, and (ii) the second sentence of Section 11.08 of the
Credit Agreement, insofar as such sentence relates to the subject
matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related
to the Credit Documents.
The foregoing opinions are specifically limited to the laws of
the United States of America and the general partnership laws of the
State of Delaware, each as in effect on the date hereof.
At the request of my client, this opinion letter is, pursuant
to Section 3.01 of the Credit Agreement, provided to you by me in my
capacity as General Counsel of Tastemaker and may not be relied upon
by any Person for any purpose other than in connection with the
transactions contemplated by the Credit Agreement without, in each
instance, my prior written consent.
Very truly yours,
EXHIBIT E-2
OPINION OF COUNSEL FOR THE GUARANTORS
(Closing Date)
Each of the Banks and each of the Agents party
to the Credit Agreement referred to below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York as Administrative Agent
for said Banks
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am the General Counsel of Mallinckrodt Inc., a corporation
organized under the laws of the State of New York ("Mallinckrodt")
and am furnishing this opinion in connection with the Credit
Agreement dated as of January 24, 1997 (the "Credit Agreement") among
Tastemaker (the "Borrower"), Fries & Fries, Inc., as a Guarantor
("Fries & Fries"), Mallinckrodt, as a Guarantor (Fries & Fries and
Mallinckrodt together, the "Guarantors"; and, together with the
Borrower, the "Obligors"), the banks party thereto from time to time
(the "Banks"), Citibank, N.A. as Documentation Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent,
providing for, among other things, the making of loans by the Banks
in an aggregate principal amount not exceeding $600,000,000. All
capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement.
In rendering the opinions expressed below, I have examined:
(i) the Credit Agreement;
(ii) the Pledge Agreement; and
(iii) the Notes (collectively with the Credit Agreement and
the Pledge Agreement, the "Loan Documents").
In my examination, I have assumed the genuineness of all
signatures (except those of officers of the Obligors), the
authenticity of all documents submitted to me as originals and the
conformity with authentic original documents of all documents
submitted to me as copies. When relevant facts were not
independently established, I have relied upon representations made in
or pursuant to the Credit Documents and certificates of appropriate
representatives of the Obligors.
In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter,
that (except, to the extent set forth in the opinions expressed
below, as to the Guarantors):
(i) such documents have been duly authorized by, have been
duly executed and delivered by, and constitute legal,
valid, binding and enforceable obligations of, all of
the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and
perform such documents.
Based upon and subject to the foregoing and subject also
to the comments and qualifications set forth below, and having
considered such questions of law as I have deemed necessary as a
basis for the opinions expressed below, I am of the opinion that:
1. Mallinckrodt is a corporation duly organized, validly
existing and in good standing under the laws of the State of New
York, and Fries & Fries is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
2. The Guarantors have all requisite corporate power to
execute and deliver, and to perform their obligations under, the
Credit Agreement.
3. The execution, delivery and performance by the Guarantors of
the Credit Agreement have been duly authorized by all necessary
corporate action on the part of each of the Guarantors.
4. The Credit Agreement has been duly executed and delivered by
each of the Guarantors.
5. Under Missouri conflict of laws principles, the stated
choice of New York Law to govern the Loan Documents will be honored
by the courts of the State of Missouri and the Loan Documents will be
construed in accordance with, and will be treated as being governed
by, the law of the State of New York. However, if the Loan Documents
were stated to be governed by and construed in accordance with the
law of the State of Missouri, or if a court were to apply the law of
the State of Missouri to the Loan Documents, the Credit Agreement
would constitute the legal, valid and binding obligation of each
Guarantor, enforceable against each Guarantor in accordance with its
terms, except as the foregoing may be limited by dissolution,
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally and
except as the enforceability of the Loan Documents is subject to the
application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing, and except
that certain of the remedial provisions in the Pledge Agreement may
be limited by applicable law, although such limitations do not in our
opinion make the remedies provided for therein inadequate for the
practical realization of the benefits of the security intended to be
afforded thereby.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency
is required on the part of either of the Guarantors for the
execution, delivery or performance by the Guarantors of, or for the
legality, validity or enforceability of, the Credit Agreement.
7. The execution, delivery and performance by each of the
Guarantors of the Credit Agreement do not and will not (a) violate
any provision of the charter or by-laws of either of the Guarantors,
(b) violate any applicable law, rule or regulation, (c) violate any
order, writ, injunction or decree of any court or governmental
authority or agency or any arbitral award applicable to the
Guarantors of which I have knowledge (after due inquiry) or (d)
result in a breach of, constitute a default under, require any
consent under, or result in the acceleration or required prepayment
of any indebtedness pursuant to the terms of, any agreement or
instrument of which I have knowledge (after due inquiry) to which
either of the Guarantors is a party or by which either of the
Guarantors is bound or to which either of the Guarantors is subject.
8. Except as may be disclosed in regular periodic reports
filed with the Securities and Exchange Commission prior to the date
of the Credit Agreement (copies of which reports have heretofore been
furnished to the Banks), I have no knowledge (after due inquiry) of
any legal or arbitral proceeding by or before any governmental or
regulatory authority or agency, now pending or threatened against
Mallinckrodt or any of its Subsidiaries or any of their respective
Properties that, if adversely determined, is reasonably likely to
have a Material Adverse Effect.
9. Neither Mallinckrodt, nor any of its Subsidiaries is an
"investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940,
as amended.
10. Neither Mallinckrodt, nor any of its Subsidiaries is a
"holding company", or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
The foregoing opinions are subject to the following comments
and qualifications:
A. The enforceability of Section 11.03 of the Credit
Agreement may be limited by laws rendering unenforceable
indemnification contrary to Federal or State securities laws and the
public policy underlying such laws.
B. The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
C. I express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Bank is located (other than the State
of Missouri) that limit the interest, fees, or other charges such
Bank may impose, and (ii) the second sentence of Section 11.08 of the
Credit Agreement, insofar as such sentence relates to the subject
matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related
to the Credit Documents.
The foregoing opinions are limited to matters involving the
Federal law of the United States of America, the law of the State of
Missouri and (with respect to my opinions in paragraphs 1 through 4
above) the Business Corporation Law of the State of New York and the
General Corporation Law of the State of Delaware, and I do not
express any opinion as to any other laws.
At the request of my client, this opinion letter is, pursuant
to Section 3.01 of the Credit Agreement, provided to you by me in my
capacity as General Counsel of Mallinckrodt and may not be relied
upon by any Person for any purpose other than in connection with the
transactions contemplated by the Credit Agreement without, in each
instance, my prior written consent.
Very truly yours,
EXHIBIT E-3
OPINION OF SPECIAL COUNSEL FOR THE OBLIGORS
(Closing Date)
Each of the Banks and Agents party
to the Credit Agreement referred to below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
for said Banks
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Credit Agreement dated as of January 24, 1997 (the "Credit
Agreement") among Tastemaker, a Delaware general partnership
(the "Borrower"), Fries & Fries, Inc., a corporation organized
under the laws of Delaware, as a Guarantor ("Fries & Fries"),
Mallinckrodt Inc., a corporation organized under the laws of the
State of New York, as a Guarantor ("Mallinckrodt"; Fries & Fries
and Mallinckrodt together, the "Guarantors"; and, together with
the Borrower, the "Obligors"), the banks party thereto from time
to time (the "Banks"), Citibank, N.A. as Documentation Agent,
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative
Agent
Ladies and Gentlemen:
We have acted as special counsel to the Obligors for the purpose
of rendering this opinion pursuant to Section 3.01 of the Credit
Agreement. Terms used herein that are defined in the Credit Agreement
shall have the respective meanings set forth in the Credit Agreement
unless otherwise defined herein.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of
such documents, corporate records, certificates of public officials
and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of
this opinion.
For purposes of this opinion, we have assumed that (i) each
Obligor is a corporation or partnership, as the case may be, validly
existing and in good standing under the law of its jurisdiction of
incorporation or organization, as the case may be, and has the
requisite power and authority to execute, deliver and perform its
obligations under the Credit Agreement, the Pledge Agreement and the
Notes and (ii) each of the Credit Agreement, the Pledge Agreement and
each of Notes has been duly authorized, executed and delivered by all
parties thereto. Upon the basis of the foregoing, we are of the
opinion that:
1. Each of the Credit Agreement and the Pledge Agreement
constitutes a valid and binding agreement of the Borrower, each Note
constitutes a valid and binding obligation of the Borrower, and the
Credit Agreement constitutes a valid and binding agreement of each of
the Guarantors, in each case enforceable in accordance with its terms
except as the same may be limited by dissolution, bankruptcy,
insolvency, reorganization, fraudulent transferor conveyance laws or
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought at
equity or law), and except that certain of the remedial provisions in
the Pledge Agreement may be limited by applicable law, although such
limitations do not in our opinion make the remedies provided for
therein inadequate for the practical realization of the
benefits of the security intended to be afforded thereby.
2. Under the Uniform Commercial Code (the "UCC"), assuming that
the Collateral Agent takes possession of the Pledged Securities and
(describe any certificates or other instruments evidencing the
Pledged Securities), together with the related duly executed
instruments of transfer as contemplated by the Pledge Agreement, and
further assuming that (i) the Agents, the Collateral Agent and the
Banks have no knowledge of any security interest, lien or encumbrance
or adverse claim (as defined in Section 8-302 of the UCC) in, on or
to such Pledged Securities and have acted in good faith (as such term
is defined in Section 8-302 of the UCC) and (ii) the Collateral Agent
maintains continuous possession of such Pledged Securities and
(certificates or other instruments) in the State of New York, the
Collateral Agent has, for the benefit of the Secured Parties named in
the Pledge Agreement to secure the Loans, a perfected security
interest (the "Security Interest") in all right, title and interest
of the Borrower in and to such Pledged Securities under the UCC, and
no registration, recordation or filing with any governmental body or
agency is required for the perfection of such Security Interest.
The foregoing opinion is subject to the following
qualifications:
(a) We express no opinion as to the right, title, or interest
of the Borrower in or to any collateral or value given therefor;
(b) We express no opinion as to the creation or perfection of
any security interest or lien except as expressly set forth in
paragraph 2 above; and
(c) We express no opinion as to the effect (if any) of any law
of any jurisdiction (except the State of New York) in which any Bank
is located which limits the rate of interest that such Bank may
charge or collect.
This opinion is limited to the laws of the State of New York.
This opinion is rendered solely to you in connection with the above
matter.
This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
EXHIBIT F
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENTS
(Closing Date)
Each of the Banks and Agents party
to the Credit Agreement referred to below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
for said Banks
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have participated in the preparation of the $600,000,000
Credit Agreement dated as of January 24, 1997 (the "Credit
Agreement") among Tastemaker, a Delaware general partnership, as
Borrower, (the "Borrower"), Fries & Fries, Inc., a Delaware
corporation ("Fries & Fries"), Mallinckrodt Inc., a Delaware
corporation ("Mallinckrodt"; Fries & Fries and Mallinckrodt together,
the "Guarantors"; and together with the Borrower, the "Obligors"),
the banks party thereto from time to time (the "Banks"), Citibank,
N.A., as Documentation Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent, and have acted as special counsel
for the Agents for the purpose of rendering this opinion pursuant to
Section 3.01 of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed
necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Credit Agreement constitutes a valid and binding agreement of each of
the Obligors and each Note constitutes a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its
terms except as the same may be limited by dissolution, bankruptcy,
insolvency or similar laws affecting creditors' rights generally
(including without limitation laws concerning fraudulent conveyance
and transfer) and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York,
the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. In giving the foregoing
opinion, we express no opinion as to the effect (if any) of any law
of any jurisdiction (except the State of New York) in which any Bank
is located which limits the rate of interest that such Bank may
charge or collect. In giving the foregoing opinion, we have assumed
without independent investigation that (i) each of the Obligors is
duly incorporated or organized as a partnership (as the case may be),
validly existing and in good standing under the laws of the
jurisdiction of its organization, and has all necessary corporate or
partnership (as the case may be) power, authority and legal right to
execute, deliver and perform its obligations under the Loan Documents
to which it is a party, (ii) the execution, delivery and performance
of each of the Loan Documents has been duly authorized by each of the
Obligors parties thereto and any other required action and (iii) each
of the Loan Documents has been duly executed and delivered by each of
the Obligors parties thereto.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any
other purpose or relied upon by any other person without our prior
written consent.
Very truly yours,
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), TASTEMAKER (the "Borrower")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative
Agent (the "Agent").
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the $600,000,000 Credit Agreement dated as of
January 24, 1997 among the Borrower, Fries & Fries, Inc., as
Guarantor, Mallinckrodt Inc., as Guarantor, the Assignor and the
other Banks party thereto from time to time, as Banks, Citibank,
N.A., as Documentation Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Administrative Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the
Assignor has a Commitment to make Loans to the Borrower in an
aggregate principal amount at any time outstanding not to exceed
$__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of
$__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect
of a portion of its Commitment thereunder in an amount equal to
$__________ (the "Assigned Amount"), together with a corresponding
portion of its outstanding Committed Loans, and the Assignee proposes
to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as
follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in
the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and
sells to the Assignee all of the rights of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase from the
Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof.
Upon the execution and delivery hereof by the Assignor, the Assignee,
(the Borrower and the Administrative Agent) and the payment of the
amounts specified in Section 3 required to be paid on the date hereof
(i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the
Credit Agreement with a Commitment in an amount equal to the Assigned
Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from
its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment
and sale contemplated in Section 2 hereof, the Assignee shall pay to
the Assignor on the date hereof in Federal funds in the amount
heretofore mutually agreed between them. It is understood that
facility fees in respect of the Assigned Amount accrued to the date
hereof are for the account of the Assignor and such fees accruing
from and including the date hereof are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that
if it receives any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
(SECTION 4. Consent of the Borrower and the Administrative
Agent. This Agreement is conditioned upon the consent of the
Borrower and the Administrative Agent pursuant to Section 11.06(c) of
the Credit Agreement. The execution of this Agreement by the
Borrower and the Agent is evidence of this consent. Pursuant to
Section 11.06(c), the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.)
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of the Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit Agreement or any
Note. The Assignee acknowledges that it has, independently and
without reliance on the Assignor, any other Bank or either Agent and
based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial
condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York.
SECTION 7. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered by their duly authorized officers as of
the date first above written.
[ASSIGNOR]
By:__________________________
Name:
Title:
[ASSIGNEE]
By:__________________________
Name:
Title:
TASTEMAKER
By:__________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By:__________________________
Name:
Title:
EXHIBIT H
PLEDGE AGREEMENT
AGREEMENT dated as of January 24, 1997 between TASTEMAKER, a
Delaware general partnership (with its successors, the "Borrower")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Collateral Agent
(with its successors in such capacity, the "Collateral Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, certain guarantors, certain banks (the
"Banks"), ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
administrative agent for such Banks and Citibank, N.A., as
documentation agent for such banks are parties to a Credit Agreement
of even date herewith (as the same may be amended from time to time,
the "Credit Agreement"); and
WHEREAS, in order to induce said Banks, Morgan Guaranty Trust
Company of New York, as administrative agent for such banks and
Citibank, N.A., as documentation agent for such banks to enter into
the Credit Agreement, the Borrower has agreed to grant a continuing
security interest in and to the Collateral (as hereafter defined) to
secure its obligations under the Credit Agreement and the Notes
issued pursuant thereto;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions
Terms defined in the Credit Agreement and not otherwise defined
herein have, as used herein, the respective meanings provided for
therein. The following additional terms, as used herein, have the
following respective meanings:
"Collateral" has the meaning assigned to such term in Section
3(a).
"Collateral Account" has the meaning set forth in Section 4.
"Liquid Investments" means any investment in (i) direct
obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-1 by Standard & Poor's Ratings
Service and P-1 by ▇▇▇▇▇'▇ Investors Service, Inc., (iii) time
deposits with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company
which is organized under the laws of the United States or any state
thereof and has capital, surplus and undivided profits aggregating at
least $1,000,000,000 or (iv) repurchase agreements with respect to
securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause
(iii) above, provided in each case that such investment matures
within 30 days after it is acquired by the Collateral Agent, and is
either (x) evidenced by negotiable certificates or instruments, or if
non-negotiable then issued in the name of the Collateral Agent, which
(together with any appropriate instruments of transfer) are delivered
to, and held by, the Collateral Agent or an agent thereof (which
shall not be the Borrower or any of its Affiliates) in the State of
New York or (y) in book-entry form and issued by the United States
and subject to pledge under applicable state law and Treasury
regulations and as to which (in the opinion of counsel to the
Collateral Agent) appropriate measures shall have been taken for the
perfection of the Security Interests.
"Pledged Securities" means the "Securities" as defined in
Section 5.11 of the Credit Agreement, but regardless of whether such
securities satisfy each requirement provided in such Section 5.11.
"Required Secured Parties" means the Required Banks, as defined
in the Credit Agreement; provided that if at any time all Secured
Obligations other than Subrogation Obligations have been paid in full
and no Bank has any Commitment under the Credit Agreement, "Required
Secured Parties" means the holder or holders of 51% or more of the
Subrogation Obligations then outstanding.
"Secured Obligations" means the obligations secured under this
Agreement including (i) all principal of and interest (including,
without limitation, any interest which accrues after the commencement
of any case, proceeding or other action relating to the dissolution,
bankruptcy, insolvency or reorganization of the Borrower, whether or
not allowed or allowable as a claim in any such proceeding) on any
loan under, or any note issued pursuant to, the Credit Agreement,
(ii) all other amounts payable by the Borrower hereunder or under the
Credit Agreement (including without limitation all Subrogation
Obligations) and (iii) any renewals or extensions of any of the
foregoing.
"Secured Parties" means, collectively, the Banks, the Agents
and, solely to the extent of any Subrogation Obligations, the
Subrogation Creditors.
"Security Interests" means the security interests in the
Collateral granted hereunder securing the Secured Obligations.
"Subrogation Creditors" means one or both of Fries & Fries and
Mallinckrodt, solely to the extent and at the times in which such
Person is owed a Subrogation Obligation.
"Subrogation Obligations" means all obligations of the Borrower
owed in respect of either of the Tastemaker Guarantees pursuant to
Section 9.05 or 10.05 of the Credit Agreement, subject to the
conditions (including the limitations on enforcement) set forth
therein.
Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the New York
Uniform Commercial Code as in effect on the date hereof shall have
the meanings therein stated.
Section 2. Representations and Warranties
The Borrower represents and warrants as follows:
(a) Title to Pledged Securities. The Borrower owns all of
the Pledged Securities, free and clear of any Liens other than the
Security Interests. The Borrower is not and will not become a party
to or otherwise bound by any agreement, other than this Agreement and
the Credit Agreement, which restricts in any manner the rights of any
present or future holder of any of the Pledged Securities with
respect thereto. The Pledged Securities comply in all respects with
the requirements of Section 5.11 of the Credit Agreement.
(b) Validity, Perfection and Priority of Security Interests.
Upon the delivery of the Pledged Securities to the Collateral Agent
in accordance with Section 4 hereof, the Collateral Agent will have
valid and perfected security interests in the Collateral for the
benefit of the Secured Parties subject to no prior Lien. No
registration, recordation or filing with any governmental body,
agency or official is required in connection with the execution or
delivery of this Agreement or necessary for the validity or
enforceability hereof or for the perfection or enforcement of the
Security Interests. The Borrower has not performed and will not
perform any acts which might prevent the Collateral Agent from
enforcing any of the terms and conditions of this Agreement or which
would limit the Collateral Agent in any such enforcement.
(c) UCC Filing Locations. The chief executive office of the
Borrower is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Under the Uniform Commercial Code as in effect in the State of Ohio,
a filing with both the Secretary of State of Ohio and the County
Recorder of ▇▇▇▇▇▇▇▇ County, Ohio, is required to perfect a security
interest in collateral consisting of general intangibles.
Section 3. The Security Interests
In order to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, and to secure the
performance of all the obligations of the Borrower hereunder:
(a) The Borrower hereby assigns and pledges to and with the
Collateral Agent for the benefit of the Secured Parties and grants to
the Collateral Agent for the benefit of the Secured Parties security
interests in the Pledged Securities, and all of its rights and
privileges with respect to the Pledged Securities, and all income and
profits thereon, and all interest, dividends and other payments and
distributions with respect thereto, and all proceeds of the foregoing
(the "Collateral").
(b) In the event that any issuer of any Pledged Securities at
any time issues any substitute note in respect of such Pledged
Securities, the Borrower will immediately pledge and deposit with the
Collateral Agent such note as additional security for the Secured
Obligations, and take such action as the Collateral Agent may request
to perfect the security interests therein in favor of the Secured
Parties. All such notes constitute Pledged Securities and are
subject to all provisions of this Agreement.
(c) The Security Interests are granted as security only and
shall not subject any Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of the Borrower with
respect to any of the Collateral or any transaction in connection
therewith.
Section 4. Perfection of Security Interests
(a) All Pledged Securities shall be delivered to the Collateral
Agent by the Borrower pursuant hereto indorsed to the order of the
Collateral Agent, and accompanied by any required transfer tax
stamps, all in form and substance satisfactory to the Collateral
Agent.
(b) There is hereby established with the Collateral Agent a
cash collateral account (the "Collateral Account") in the name and
under the control of the Collateral Agent into which there shall be
deposited from time to time the cash proceeds of the Collateral
required to be
delivered to the Collateral Agent pursuant to any provision of this
Agreement. Any income received by the Collateral Agent with respect
to the balance from time to time standing to the credit of the
Collateral Account, including any interest or capital gains on Liquid
Investments, shall remain, or be deposited, in the Collateral
Account. All right, title and interest in and to the cash amounts on
deposit from time to time in the Collateral Account together with any
Liquid Investments from time to time made pursuant to subsection (d)
of this Section shall vest in the Collateral Agent, shall constitute
part of the Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied thereto as hereinafter
provided.
(c) Upon the occurrence and continuation of an Event of
Default, the Collateral Agent shall, if so instructed by the Required
Secured Parties, apply or cause to be applied (subject to collection)
any or all of the balance from time to time standing to the credit of
the Collateral Account in the manner specified in Section 13.
(d) Amounts on deposit in the Collateral Account shall be
invested and re-invested from time to time in such Liquid Investments
as the Borrower shall determine, which Liquid Investments shall be
held in the name and be under the control of the Collateral Agent,
provided that, if an Event of Default has occurred and is continuing,
the Collateral Agent shall, if instructed by the Required Secured
Parties, liquidate any such Liquid Investments and apply or cause to
be applied the proceeds thereof to the payment of the Secured
Obligations in the manner specified in Section 13.
Section 5. Further Assurances
(a) The Borrower agrees that it will, at its expense and in
such manner and form as the Collateral Agent may reasonably require,
execute, deliver, file and record any financing statement, specific
assignment, notice or other paper and take any other action that may
be necessary or desirable, or that the Collateral Agent may
reasonably request, in order to create, preserve, perfect or validate
any Security Interest or to enable the Collateral Agent to exercise
and enforce its rights hereunder with respect to any of the
Collateral. To the extent permitted by applicable law, the Borrower
hereby authorizes the Collateral Agent to execute and file, in the
name of the Borrower or otherwise, Uniform Commercial Code financing
statements (which may be carbon, photographic, photostatic or other
reproductions of this Agreement or of a financing statement relating
to this Agreement) which the Collateral Agent in its sole discretion
may deem necessary or appropriate to further perfect the Security
Interests.
(b) The Borrower agrees that it will not change (i) its name
or identity (ii) its partnership structure in any manner or (iii) the
location of its chief executive office unless it shall have given the
Collateral Agent not less than 30 days' prior notice thereof.
Section 6. Record Ownership of Pledged Securities
The Collateral Agent may at any time or from time to time during
the continuance of any Event of Default, in its sole discretion,
cause any or all of the Pledged Securities to be transferred of
record into the name of the Collateral Agent or its nominee. The
Borrower will promptly give to the Collateral Agent copies of any
notices or other communications received by it with respect to
Pledged Securities registered in the name of the Borrower and the
Collateral Agent will promptly give to the Borrower copies of any
notices and communications received by the Collateral Agent with
respect to Pledged Securities registered in the name of the
Collateral Agent or its nominee.
Section 7. Right to Receive Distributions on Collateral
The Collateral Agent shall have the right, but only during the
continuance of any Event of Default, to receive and retain as
Collateral hereunder all dividends, interest and other payments and
distributions made upon or with respect to the Collateral and the
Borrower shall take all such action as the Collateral Agent may deem
necessary or appropriate to give effect to such right. All such
dividends, interest and other payments and distributions which are
received by the Borrower shall be received in trust for the benefit
of the Secured Parties and, if the Collateral Agent so directs during
the continuance of an Event of Default, shall be segregated from
other funds of the Borrower and shall, forthwith upon demand by the
Collateral Agent during the continuance of an Event of Default, be
paid over to the Collateral Agent as Collateral in the same form as
received (with any necessary endorsement). After all Events of
Default have been cured, the Collateral Agent's right to receive and
retain dividends, interest and other payments and distributions under
this Section 7 shall cease and the Collateral Agent shall pay over to
the Borrower any such Collateral retained by it during the
continuance of an Event of Default.
Section 8. Right to Vote Pledged Securities
Unless an Event of Default shall have occurred and be
continuing, the Borrower shall have the right, from time to time, to
vote and to give consents, ratifications and waivers with respect to
the Pledged Securities, and the Collateral Agent shall, upon
receiving a written request from the Borrower accompanied by a
certificate signed by its principal financial officer stating that no
Event of Default has occurred and is continuing, deliver to the
Borrower or as specified in such request such proxies, powers of
attorney, consents, ratifications and waivers in respect of any of
the Pledged Securities which is registered in the name of the
Collateral Agent or its nominee as shall be specified in such request
and be in form and substance satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be continuing,
the Collateral Agent shall have the right to the extent permitted by
law and the Borrower shall take all such action as may be necessary
or appropriate to give effect to such right, to vote and to give
consents, ratifications and waivers, and take any other action with
respect to any or all of the Pledged Securities with the same force
and effect as if the Collateral Agent were the absolute and sole
owner thereof.
Section 9. General Authority
The Borrower hereby irrevocably appoints the Collateral Agent
its true and lawful attorney, with full power of substitution, in the
name of the Borrower, the Collateral Agent, the Banks or otherwise,
for the sole use and benefit of the Secured Parties, but at the
expense of the Borrower, to the extent permitted by law to exercise,
at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with
respect to all or any of the Collateral:
(a) to demand, ▇▇▇ for, collect, and receive and for any and
all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof, as fully and effectually as
if the Collateral Agent were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto;
provided that the Collateral Agent shall give the Borrower not
less than ten days' prior written notice of the time and place of any
sale or other intended disposition of any of the Collateral except
any Collateral which is perishable or threatens to decline speedily
in value or is of a type customarily sold on a recognized market.
The Collateral Agent and the Borrower agree that such notice
constitutes "reasonable notification" within the meaning of Section
9-504(3) of the Uniform Commercial Code.
Section 10. Remedies upon Event of Default
If any Event of Default shall have occurred and be continuing,
the Collateral Agent may exercise on behalf of the Secured Parties
all the rights of a secured party under the Uniform Commercial Code
(whether or not in effect in the jurisdiction where such rights are
exercised) and, in addition, the Collateral Agent may, without being
required to give any notice, except as herein provided or as may be
required by mandatory provisions of law, (i) apply the cash, if any,
then held by it as Collateral as specified in Section 13 and (ii) if
there shall be no such cash or if such cash shall be insufficient to
pay all the Secured Obligations in full, sell the Collateral or any
part thereof at public or private sale or at any broker's board or on
any securities exchange, for cash, upon credit or for future
delivery, and at such price or prices as the Collateral Agent may
deem reasonably satisfactory. Any Bank may be the purchaser of any
or all of the Collateral so sold at any public sale (or, if the
Collateral is of a type customarily sold in a recognized market or is
of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Collateral Agent is
authorized, in connection with any such sale, if it deems it
advisable so to do, (A) to restrict the prospective bidders on or
purchasers of any of the Pledged Securities to a limited number of
sophisticated investors who will represent and agree that they are
purchasing for their own account for investment and not with a view
to the distribution or sale of any of such Pledged Securities, (B) to
cause to be placed on certificates for any or all of the Pledged
Securities or on any other securities pledged hereunder a legend to
the effect that such security has not been registered under the
Securities Act of 1933 and may not be disposed of in violation of the
provision of said Act, and (C) to impose such other limitations or
conditions in connection with any such sale as the Collateral Agent
deems necessary or advisable in order to comply with said Act or any
other law. The Borrower will execute and deliver such documents and
take such other action as the Collateral Agent deems necessary or
advisable in order that any such sale may be made in compliance with
law. Upon any such sale the Collateral Agent shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral
so sold. Each purchaser at any such sale shall hold the Collateral
so sold absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of the Borrower
which may be waived, and the Borrower, to the extent permitted by
law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or
hereafter adopted. The notice (if any) of such sale required by
Section 9 shall (1) in the case of a public sale, state the time and
place fixed for such sale, (2) in the case of a sale at a broker's
board or on a securities exchange, state the board or exchange at
which such sale is to be made and the day on which the Collateral, or
the portion thereof so being sold, will first be offered for sale at
such board or exchange, and (3) in the case of a private sale, state
the day after which such sale may be consummated. Any such public
sale shall be held at such time or times within ordinary business
hours and at such place or places as the Collateral Agent may fix in
the notice of such sale. At any such sale the Collateral may be sold
in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine. The Collateral Agent shall not be obligated to
make any such sale pursuant to any such notice. The Collateral Agent
may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so
adjourned. In the case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold
may be retained by the Collateral Agent until the selling price is
paid by the purchaser thereof, but the Collateral Agent shall not
incur any liability in the case of the failure of such purchaser to
take up and pay for the Collateral so sold and, in the case of any
such failure, such Collateral may again be sold upon like notice.
The Collateral Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity
to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
Section 11. Expenses
The Borrower agrees that it will forthwith upon demand pay to
the Collateral Agent:
(a) the amount of any taxes which the Collateral Agent may
have been required to pay by reason of the Security Interests or to
free any of the Collateral from any Lien thereon, and
(b) the amount of any and all out-of-pocket expenses, including
the reasonable fees and disbursements of counsel and of any other
experts, which the Collateral Agent may incur in connection with (ii)
the administration or enforcement of this Agreement, including such
expenses as are incurred to preserve the value of the Collateral and
the validity, perfection, rank and value of any Security Interest,
(ii) the collection, sale or other disposition of any of the
Collateral, (iv) the exercise by the Collateral Agent of any of the
rights conferred upon it hereunder or (v) any Default or Event of
Default.
Any such amount not paid on demand shall bear interest at the
rate applicable to Base Rate Loans plus 2% and shall be an additional
Secured Obligation hereunder.
Section 12. Limitation on Duty of Agent in Respect of Collateral
Beyond the exercise of reasonable care in the custody thereof,
the Collateral Agent shall have no duty as to any Collateral in its
possession or control or in the possession or control of any agent or
bailee or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto. The
Collateral Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that
which it accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Collateral, or for
any diminution in the value thereof, by reason of the act or omission
of any agent or bailee selected by the Collateral Agent in good
faith. Without limitation of the foregoing and to the extent
permitted by law, each Subrogation Creditor waives any right that it
may have under applicable law against the Collateral Agent or the
Banks with respect to the care and custody of the Collateral and as
to the choice of remedies under Section 10 or the terms or price on
which any Collateral is disposed of in accordance therewith.
Section 13. Application of Proceeds
Upon the occurrence and during the continuance of an Event of
Default, the proceeds of any sale of, or other realization upon, all
or any part of the Collateral and any cash held shall be applied by
the Collateral Agent in the following order of priorities:
first, to payment of the expenses of such sale or other
realization, including reasonable compensation to agents
and counsel for the Collateral Agent, and all expenses,
liabilities and advances incurred or made by the Collateral
Agent in connection therewith, and any other unreimbursed
expenses for which the Collateral Agent or any Bank is to
be reimbursed pursuant to Section 11.03 of the Credit
Agreement or Section 11 hereof and unpaid fees owing to the
Administrative Agent under the Credit Agreement;
second, to the ratable payment of unpaid principal of the
Secured Obligations (excluding any Subrogation Obligations);
third, to the ratable payment of accrued but unpaid
interest on the Secured Obligations in accordance with the
provisions of the Credit Agreement (excluding any Subrogation
Obligations);
fourth, to the ratable payment of all other Secured
Obligations owed to the Banks or the Administrative Agent, until
all such Secured Obligations shall have been paid in full;
fifth, to the ratable payment of any Subrogation
Obligations; and
finally, to payment to the Borrower or its successors or
assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining from such proceeds.
The Collateral Agent may make distributions hereunder in cash
or in kind or, on a ratable basis, in any combination thereof.
Section 14. Concerning the Agent
(a) The provisions of Article 7 of the Credit Agreement shall
inure to the benefit of the Collateral Agent in respect of this
Agreement and shall be binding upon the parties to the Credit
Agreement in such respect, including without limitation the
Subrogation Creditors (notwithstanding the fact that the Subrogation
Creditors are not referred to in such Article 7). In furtherance and
not in derogation of the rights, privileges and immunities of the
Collateral Agent therein set forth:
(i) The Collateral Agent is authorized to take all
such action as is provided to be taken by it as Collateral
Agent hereunder and all other action reasonably incidental
thereto. As to any matters not expressly provided for
herein (including, without limitation, the timing and
methods of realization upon the Collateral) the Collateral
Agent shall act or refrain from acting in accordance with
written instructions from the Required Secured Parties or,
in the absence of such instructions, in accordance with
its discretion.
(ii) The Collateral Agent shall not be responsible
for the existence, genuineness or value of any of the
Collateral or for the validity, perfection, priority or
enforceability of the Security Interests in any of the
Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part
hereunder. The Collateral Agent shall have no duty to
ascertain or inquire as to the performance or observance
of any of the terms of this Agreement by the Borrower.
(b) The Collateral Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Secured Parties shall have the right to
appoint a successor Collateral Agent reasonably acceptable to the
Borrower. If no such successor Collateral Agent shall have been so
appointed by the Required Secured Parties, and shall have accepted
such appointment, within 30 days after the retiring Collateral Agent
gives notice of resignation, then the retiring Collateral Agent may,
on behalf of the Secured Parties, appoint a successor Collateral
Agent, which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of its appointment as Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. After any retiring Collateral Agent's
resignation hereunder as Collateral Agent, the provisions of this
Section and Article 7 of the Credit Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Collateral Agent.
Section 15. Appointment of Co-Agents
At any time or times and upon notice to the Borrower, in order
to comply with any legal requirement in any jurisdiction, the
Collateral Agent may appoint another bank or trust company or one or
more other Persons, either to act as co-agent or co-agents, jointly
with the Collateral Agent, or to act as separate agent or agents on
behalf of the Banks with such power and authority as may be necessary
for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in the
discretion of the Collateral Agent, include provisions for the
protection of such co-agent or separate agent similar to the
provisions of Section 14).
Section 16. Termination of Security Interests; Release of
Collateral
Upon the repayment in full of all Secured Obligations and the
termination of the Commitments under the Credit Agreement, the
Security Interests shall terminate and all rights to the Collateral
shall revert to the Borrower. At any time and from time to time
prior to such termination of the Security Interests, the Collateral
Agent may release any of the Collateral with the prior written
consent of the Banks and the Subrogation Creditors. Upon any such
termination of the Security Interests or release of Collateral, the
Collateral Agent will, at the expense of the Borrower, execute and
deliver to the Borrower such documents as the Borrower shall
reasonably request to evidence the termination of the Security
Interests or the release of such Collateral, as the case may be.
Section 17. Notices
All notices hereunder shall be given in accordance with Section
11.01 of the Credit Agreement, in the case of the Collateral Agent,
to the address of the Administrative Agent referred to therein.
Section 18. Waivers, Non-Exclusive Remedies
No failure on the part of the Collateral Agent to exercise, and
no delay in exercising and no course of dealing with respect to, any
right under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise by the Agent of any right under
the Credit Agreement or this Agreement preclude any other or further
exercise thereof or the exercise of any other right. The rights in
this Agreement and the Credit Agreement are cumulative and are not
exclusive of any other remedies provided by law.
Section 19. Successors and Assigns
This Agreement is for the benefit of the Secured Parties and
their successors and assigns, and in the event of an assignment of
all or any of the Secured Obligations, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Agreement shall be binding on the
Borrower and its successors and assigns.
Section 20. Changes in Writing
Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but only in writing signed
by the Borrower and the Collateral Agent with the consent of the
Required Secured Parties.
Section 21. New York Law
This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, except as otherwise
required by mandatory provisions of law and except to the extent that
remedies provided by the laws of any jurisdiction other than New York
are governed by the laws of such jurisdiction.
Section 22. Severability
If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the
other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the
Collateral Agent and the Banks in order to carry out the intentions
of the parties hereto as nearly as may be possible; and (ii) the
invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
TASTEMAKER
By:__________________________
Name:
Title:
Address:
Facsimile:
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as
Collateral Agent
By:___________________________
Name:
Title: