Exhibit 10.27(b)
EXECUTION COPY
AGREEMENT
AGREEMENT dated as of March 21, 1997 comprising, inter alia, an
Amendment and Waiver to the Credit Agreement dated as of January 24,
1997 (the "Credit Agreement") among TASTEMAKER ("the Borrower"),
FRIES & FRIES, INC. ("Fries & Fries"), MALLINCKRODT INC.
("Mallinckrodt"), the BANKS party thereto, XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent and CITIBANK, N.A., as
Documentation Agent.
W I T N E S S E T H :
WHEREAS, the Obligors have agreed to consummate a Borrower
Change of Control (as defined in the Credit Agreement) in connection
with the acquisition of Tastemaker by Roche Holdings, Inc. ("RHI")
and/or one or more of its affiliates, including through the
contribution of Mallinckrodt's interest in Fries & Fries to a
subsidiary of Roche Holdings, Inc., all as more particularly provided
in the Agreement dated February 4, 1997 (as amended from time to
time, the "Wrap Agreement"; and the Wrap Agreement together with
related agreements referred to therein, the "Transaction Agreements")
among Hercules Incorporated, Mallinckrodt, RHI and Givaudan-Roure
(International) SA, which Borrower Change of Control is expected to
occur on or about March 31, 1997;
WHEREAS, in connection with such contemplated Borrower Change of
Control and pursuant to the Transaction Agreements, Fries & Fries has
requested the right to exercise a withdrawal with respect to certain
assets and liabilities of the Borrower and, subject to the provisions
below, the Banks have agreed to permit, pursuant to such withdrawal,
(i) the transfer to Fries & Fries of substantially all of the
operating assets in the United States of the Borrower other than the
Collateral and (ii) the assumption by Fries & Fries of, and release
of the Borrower from, liabilities of the Borrower under the Credit
Agreement and the Notes, including without limitation all principal
of and interest on the Notes; and
WHEREAS, the Borrower has requested, and subject to the
provisions below, the Banks have agreed to permit all of the Loans to
be repaid on the day of the Assignment and Assumption (as hereinafter
defined) whether or not such day is a Euro-Dollar Business Day (but
provided in any case that such day is a Domestic Business Day);
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined
in the Credit Agreement has the meaning assigned to such term in the
Credit Agreement. Each reference to "hereof", "hereunder", "herein"
and "hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the
Credit Agreement shall, after this Agreement becomes effective, refer
to the Credit Agreement as amended hereby.
SECTION 2. Assignment and Assumption; Release. Each of the
Banks and the Agents hereby consents to the distribution, assignment
or other transfer of all or substantially all of the operating assets
in the United States of the Borrower other than the Collateral (as
defined in the Pledge Agreement) to Fries & Fries (the "Transferred
Assets"), subject to assumption by Fries & Fries of all or
substantially all of the obligations of the Borrower, other than
obligations under the Pledge Agreement, contemporaneously therewith,
under the Credit Agreement and Notes (such obligations, but excluding
obligations under the Pledge Agreement, the "Transferred
Obligations"), all pursuant to the Transaction Agreements (the
assignment and assumption effected pursuant thereto, the "Assignment
and Assumption"). Each Bank hereby waives the provisions of Section
5.06 that would otherwise prohibit such Assignment and Assumption.
Each Bank agrees that this Section 2 constitutes a novation of the
Transferred Obligations (and solely the Transferred Obligations) as
between Fries & Fries and the Borrower, and agrees to accept
performance by Fries & Fries of, and releases the Borrower from
performance of, the Transferred Obligations, all effective upon the
Assignment and Assumption, and agrees that any remaining interest in
the Pledge Agreement and the Collateral shall automatically be
released upon receipt of the full payment referred to in Section 3
below.
SECTION 3. Maturity of Loans; Repayment of All Obligations.
Notwithstanding anything to the contrary in the Credit Agreement (and
unless such Commitments shall otherwise have theretofore terminated
and the Loans shall have become due and payable in accordance with
the terms of the Credit Agreement), (i) the Commitments shall
terminate in full upon the Assignment and Assumption and (ii) the
Loans shall become due and payable in full, and Fries & Fries shall
repay all of the Loans, together with interest accrued thereon to the
date of payment, immediately after (but in any event on the date of
consummation of) the Assignment and Assumption, provided that, for
the current Euro-Dollar Interest Period ending April 30, 1997, Fries
& Fries shall pay all fees due and owing to the Banks in accordance
with Section 2.14 of the Credit Agreement. The Banks hereby consent
to the repayment of all Loans and interest accrued thereon on a
Domestic Business Day, whether or not such day is a Euro-Dollar
Business Day and notwithstanding anything to the contrary in Section
2.13 thereof.
SECTION 4. Obligor Representations. (a) Each of the Obligors
hereby represents and warrants, as of the date of this Agreement and
after giving effect to the amendments and waivers set forth herein,
that (i) each representation and warranty of such Obligor contained
in the Loan Documents (other than the representation and warranty in
the last sentence of Section 4.01, which is modified by the Borrower
Change of Control referred to above) is true and correct in all
respects as though made on and as of this date; and (ii) no Default
has occurred and is continuing. For purposes of clause (i) above,
"Loan Documents" shall be deemed to include this Agreement.
(b) (i) Mallinckrodt hereby confirms that the Mallinckrodt
Guaranty referred to in Article 10 of the Credit Agreement remains in
full force and effect; and (ii) the Borrower hereby confirms that
Pledge Agreement remains in full force and effect with respect to
the Secured Obligations, including without limitation the Secured
Obligations assumed by Fries & Fries, in each case, after giving
effect to this Agreement and the transactions contemplated hereby,
including the Borrower Change of Control and the Assignment and
Assumption. Fries & Fries and the Borrower each represent and
warrant that the Assignment and Assumption includes assignment and
assumption of only the Transferred Assets and the Transferred
Obligations.
(c) Each of this Agreement and each Transaction Document has
been duly and validly executed and delivered by each such Obligor
that is a party thereto and constitutes, its legal, valid and binding
obligation, enforceable against such Obligor in accordance with their
respective terms, except as such enforceability may be limited by (i)
bankruptcy, dissolution, insolvency, reorganization, moratorium or
similar laws of general application affecting the enforcement of
creditors' rights and (ii) the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 5. No Other Waivers. Other than as specifically
provided for herein, this Agreement shall not operate as a waiver or
amendment of any right, power or privilege of the Banks under the
Credit Agreement or any other Loan Document nor shall the entering
into of this Agreement preclude the Banks from refusing to enter into
any further waivers or amendments with respect to the Credit
Agreement.
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.
SECTION 8. Effectiveness. This Agreement shall become
effective as of the date and the year first written above when the
Administrative Agent shall have received duly executed counterparts
hereof signed by the Borrower, Fries & Fries, Mallinckrodt, and all
of the Banks (or in the case of any party as to which an executed
counterpart shall not have been received, the Administrative Agent
shall have received telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof signed by such
party).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
TASTEMAKER
By:________________________
Name:
Title:
FRIES & FRIES, INC.
By:________________________
Name:
Title:
MALLINCKRODT INC.
By:________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Bank and
Administrative Agent
By_________________________
Title:
CITIBANK, N.A., as Bank and
Documentation Agent
By_________________________
Title:
BANK OF AMERICA ILLINOIS
By ________________________
Title:
THE CHASE MANHATTAN BANK
By ________________________
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By ________________________
Title:
ABN-AMRO BANK N.V., CHICAGO
BRANCH
By_________________________
Title:
By_________________________
Title:
THE BANK OF NOVA SCOTIA
By ________________________
Title:
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By ________________________
Title:
CIBC INC.
By ________________________
Title:
DEUTSCHE BANK AG
CHICAGO AND/OR CAYMAN
ISLANDS BRANCHES
By ________________________
Title:
By ________________________
Title:
THE FUJI BANK, LIMITED
By ________________________
Title:
MELLON BANK, N.A.
By ________________________
Title:
SOCIETE GENERALE, CHICAGO
BRANCH
By ________________________
Title:
THE SUMITOMO BANK, LTD.
By ________________________
Title:
BANCA COMMERCIALE ITALIANA
By_________________________
Title:
By_________________________
Title:
BANK OF IRELAND
By________________________
Title:
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By ________________________
Title:
BANQUE PARIBAS
By ________________________
Title:
By ________________________
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By ________________________
Title:
By ________________________
Title:
