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EXHIBIT 10.1
WAIVER NO. 4
UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
WAIVER dated as of June 14, 2000 under the Amended and Restated Credit
Agreement dated as of September 30, 1998 (the "Credit Agreement") Among VLASIC
FOODS INTERNATIONAL INC. (the "Company"), the BANKS party thereto, THE CHASE
MANHATTAN BANK, as Syndication Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent (in such capacity, the "Administrative Agent") and
Collateral Agent.
W I T N E S S E T H :
WHEREAS, the Company has advised the Banks that at the end of the Third
Fiscal Quarter of Fiscal 2000 its Debt/EBITDA Ratio and its Fixed Charge
Coverage Ratio (each as defined in the Credit Agreement) did not meet the
requirements of Sections 5.13 and 5.14, respectively, of the Credit Agreement,
and it has further advised the Banks that it believes it will be unable to be in
compliance with such provisions at the end of the fourth Fiscal Quarter of
Fiscal 2000 and the first Fiscal Quarter of Fiscal 2001 and at additional times
thereafter;
WHEREAS, the Company has requested the Banks to grant an extension
of interim waivers under the Credit Agreement granted in Waiver No. 3 dated as
of February 29, 2000 ("Waiver No. 3"); and
WHEREAS, the Banks party hereto are willing to extend such interim waivers
under the Credit Agreement, on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise specifically defined herein, (i)
each term used herein that is defined in the Credit Agreement but not defined in
Waiver No. 3 shall have the meaning assigned to such term in the Credit
Agreement and (ii) each term used herein that is defined in the Waiver No. 3
shall have the meaning assigned to such term in the Waiver No. 3.
SECTION 2. Modification of Waiver No. 3. (a) In Section 2(c) of Waiver
No. 3, the reference to "June 20, 2000" is changed to "June 28, 2000"; and
(b) In Section 3(a) of Waiver No. 3, the reference to "June 20, 2000" is
changed to "June 28, 2000".
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(c) The Company understands and accepts:
(i) the interim nature of the waiver provided hereby, and that the Banks
have given no assurances that they will extend the waiver provided hereby or
provide other waivers under or amendments to the Credit Agreement or any other
Financing Document;
(ii) that except as expressly set forth herein, the waiver contained
herein shall not constitute a waiver or amendment of any term or condition of
the Credit Agreement or any other Financing Document and all such terms and
conditions shall remain in full force and effect and are hereby ratified and
confirmed in all respects, and that no failure or delay by the Banks or any of
them in exercising any right, power or privilege under any Financing Document,
or any other action taken or not taken or statement made, during the period
prior to the date hereof or during the period this Waiver is in effect shall
operate as a waiver thereof or obligate any Bank to agree to an extension of the
waiver provided hereby or any other waiver under or amendment to any Financing
Document;
(ii) that the Banks are under no obligation to extend, and in their sole
and absolute discretion may refuse to extend further, Waiver No. 3 (as modified
hereby) beyond the Waiver Expiry Time; and
(iii) that since the Company failed (other than by reason of Waiver No. 3
and this Waiver) to be in compliance with Sections 5.13 and 5.14 of the Credit
Agreement as at the end of the second and third Fiscal Quarters of Fiscal 2000,
if the Banks do not extend the waiver provided hereby or take other action in
respect of any such failure, an Event of Default will automatically exist
immediately following the expiry of this Waiver, without the requirement of any
further action by the Banks or the Administrative Agent.
SECTION 3. Assignments. The right of the Company pursuant to Section
9.06(c) of the Credit Agreement to consent to any Assignee and the related
assignment shall be determined without giving effect to this Waiver or Waiver
No. 3, and any Assignee and the related assignment shall always (including any
time after the expiration of the Waiver Period) be subject to the consent of the
Administrative Agent (such consent not to be unreasonably withheld) regardless
of whether any Event of Default has occurred and is continuing.
SECTION 4. Release of Bank Liability. The Company, for itself and on
behalf of its affiliated entities, successors, assigns and legal
representatives (the "Company Parties"), jointly and severally releases,
acquits and forever discharges
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the Administrative Agent, the Syndication Agent and each Bank (collectively, the
"Bank Parties"), and their respective subsidiaries, parents, affiliates,
officers, directors, employees, agents, attorneys, successors and assigns, both
present and former (collectively, the "Banks' Affiliates") from any and all
manner of actions, causes of action, suits, debts, controversies, damages,
judgments, executions, claims and demands whatsoever, asserted or unasserted, in
contract, tort, law or equity which the Company or any other Company Party has
or may have against any of the Bank Parties and/or the Banks' Affiliates by
reason of any action, failure to act, matter or thing whatsoever arising from or
based on facts occurring prior to the date hereof, including but not limited to
any claim or defense that relates to, in whole or in part, directly or
indirectly, (i) the making or administration of the Loans, including without
limitation, any such claims and defenses based on fraud, mistake, duress, usury
or misrepresentation, or any other claim based on so-called "lender liability
theories", (ii) any covenants, agreements, duties or obligations set forth in
the Financing Documents, (iii) any actions or omissions of any of the Bank
Parties and/or the Banks' Affiliates in connections with the initiation or
continuing exercise of any right or remedy contained in the Financing Documents
or at law or in equity, (iv) lost profits, (v) loss of business opportunity,
(vi) increased financing costs, (vii) increased legal or other administrative
fees, or (viii) damages to business reputation.
SECTION 5. Governing Law. This Waiver shall be governed by and Construed
in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Waiver 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 7. Effectiveness. (a) This Waiver shall become effective as of
the date hereof on the date (the "Waiver Effective Date") when the
Administrative Agent shall have received:
(i) from each of the Company, each Domestic Subsidiary and the Required
Banks a counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Administrative Agent) that such party
has signed a counterpart hereof; and
(ii) confirmation that the Company has paid all statements of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Administrative Agent, and of Xxxxxxxx & Xxxxx
that have been rendered to the Company at least two Domestic Business Days prior
to the Waiver Effective Date in respect of this Waiver or other Credit Agreement
matters.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
VLASIC FOODS INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxx
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Title: Vice President and Controller
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Houston X. Xxxxxxxx
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Title: Vice President
THE CHASE MANHATTAN BANK
By:
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Title:
BANK OF AMERICA NT&SA
By: /s/ Xxx X. Xxxxxxxxxxxx
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Title: Managing Director
BANK OF MONTREAL
By: /s/ Xxxx X. Xxxx
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Title: Director
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BANKERS TRUST COMPANY
By:
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Title:
BARCLAYS BANK PLC
By: /s/ Xxxxxx X. Xxxxxx
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Title: Director
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
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Title: Managing Director
DEUTSCHE BANK AG NEW YORK
and/or CAYMAN ISLANDS
BRANCHES
By: /s/ Xxxxxxxxx Xxxxx
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Title: Vice President
By: /s/ Xxxxxxxxx X. Xxxx
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Title: Vice President
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BANK ONE, NA (Main office, Chicago)
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Senior Vice President
FLEET NATIONAL BANK
By:
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Title:
MELLON BANK, N.A.
By: /s/ Green E. Dim
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Title: First Vice President
PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
WACHOVIA BANK, N.A.
By:
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Title:
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XXXXXXX XXXXX CREDIT
PARTNERS L.P.
By: /s/ Xxxxx Xxxxxx
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Title: Authorized Signatory
XXX CAPITAL FUNDING L.P.
By: /s/ Xxxx X. Xxxxx
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Title: Executive Vice President
THE BANK OF NEW YORK
By:
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Title:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxx X. Xxxxx
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Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx Xxxxxxx
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Title: Senior Vice President
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SUNTRUST BANK
By: /s/ T. Xxxxxxx Xxxxx
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Title: Managing Director
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK
BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Director
By: /s/ Xxxxxx X. Xxxxx III
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Title: Associate Director
BANCA NAZIONALE DEL LAVORO
S.p.A.-NEW YORK BRANCH
By:
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Title:
By:
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Title:
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CONFIRMED AND AGREED TO:
ALIGAR, INC.
XXXXXX, INC.
VLASIC FOODS DISTRIBUTION COMPANY
VF BRANDS, INC.
VLASIC INTERNATIONAL BRANDS INC.
VLASIC STANDARDS, INC.
VLASIC INTERNATIONAL SALES INC.
By: /s/ Xxxxxx Xxxxx
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Title: Vice President and Controller
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Treasurer
