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Exhibit 99.5
August 18, 1999
EXCHANGE AGENCY AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vlasic Foods International Inc. (the "Company") proposes to
make an offer (the "Exchange Offer") to exchange its 10 1/4% Senior Subordinated
Notes due 2009 (the "Original Notes") for its 10 1/4% Senior Subordinated Notes
due 2009 which have been registered under the Securities Act of 1933, as amended
(the "Exchange Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated August 16, 1999 (the
"Prospectus"), to be distributed to all record holders of the Original Notes.
The Original Notes and the Exchange Notes are collectively referred to herein as
the "Notes."
The Company hereby appoints The Bank of New York to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company
on or about , 1999. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Original Notes to accept the Exchange Offer and
contains instructions with respect to the (i) delivery of certificates for
Original Notes tendered in connection therewith and (ii) the book-entry transfer
of Notes to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 P.M., New York City
time, on , 1999 or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 A.M.,
New York City
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time, on the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Original Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer-- Conditions to the Exchange Offer." The Company will give oral
(confirmed in writing) or written notice of any amendment or termination of the
Exchange Offer or nonacceptance of Original Notes to you promptly after any
amendment, termination or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Original
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Original Notes by causing the Book-Entry Transfer Facility to transfer such
Original Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer. You will maintain, during the Exchange
Offer, an address in the Borough of Manhattan, The City of New York, in which
tenders of the Original Notes may be made.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Notes (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Original Notes to ascertain
whether: (i) the Letters of Transmit tal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Original Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Original Notes
are not in proper form for transfer or some
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other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the President, Chief Financial
Officer, Chief Legal Officer, Treasurer or Controller (each, a "Designated
Officer") of the Company, or of counsel to the Company, (such approval, if given
orally, to be confirmed in writing) or any other party designated by any
Designated Officer in writing, you are authorized to waive any irregularities in
connection with any tender of Original Notes pursuant to the Exchange Offer.
5. Tenders of Original Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer--Procedures for Tendering," and Original Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Original
Notes which a Designated Officer, or of counsel to the Company, shall approve as
having been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Original
Notes received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Original Notes.
7. You shall accept tenders:
(a) in cases where the Original Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Original
Notes provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Original Notes to the transfer agent for split-up and return any untendered
Original Notes to
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the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Notes properly tendered and you, on behalf of the Company, will
exchange such Original Notes for Exchange Notes and cause such Original Notes to
be cancelled. Delivery of Exchange Notes will be made on behalf of the Company
by you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of Original Notes tendered promptly after notice (such notice
if given orally, to be confirmed in writing) of acceptance of said Original
Notes by the Company; provided, however, that in all cases, Original Notes
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Original Notes (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility), a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) with any required signature guarantees and any other required
documents. You shall issue Exchange Notes only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Original Notes tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Original
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Original Notes
tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Original Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Original Notes (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto that
are in your possession, to the persons who deposited them.
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12. All certificates for reissued Original Notes, unaccepted
Original Notes or for Exchange Notes shall be forwarded by first-class mail or
appropriate book-entry transfer.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to
act unless the same constitutes your own gross negligence, willful misconduct or
bad faith, and in no even shall you be liable to a security holder, the Company
or any third party for special, indirect or consequential damages, or lost
profits, arising in connection with this Agreement.
(b) shall have no duties or obligations other than
those specifically set forth herein or as may be subsequently agreed to in
writing by you and the Company;
(c) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Original Notes represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and will
make no representation as to the validity, value or genuineness of the Exchange
Offer; provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing;
(d) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with reasonable indemnity
satisfactory to you;
(e) may reasonably rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion, notice, letter or
other document (whether in its original or facsimile form) or security delivered
to you and reasonably believed by you to be genuine and to have been signed by
the proper party or parties;
(f) may reasonably act upon any tender, statement,
request, comment, agreement or other instrument whatsoever not only as to its
due
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execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a proper
person or persons;
(g) may conclusively rely on and shall be protected
in acting upon written or oral instructions from any Designated Officer of the
Company;
(h) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Original
Notes pursuant to the Exchange Offer as to the wisdom of making such tender or
as to the market value or decline or appreciation in market value of any
Original Notes.
15. You shall take such action as may from time to time be
requested by the Company or its counsel or any Designated Officer (and such
other action as you may reasonably deem appropriate) to furnish copies of the
Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery (as
defined in the Prospectus) or such other forms as may be approved from time to
time by the Company, to all persons requesting such documents and to accept and
comply with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for accepting
(or withdrawing from) the Exchange Offer. The Company will furnish you with
copies of such documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention:
Xxxxx X. Xxxxxx, Esq., Vice President, General Counsel and Corporate Secretary.
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to Xxxxx X. Xxxxxx, Esq., Vice
President, General Counsel and Corporate Secretary of the Company and such other
person or persons as it may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise requested) up to and
including the Expiration Date, as to the number of Original Notes which have
been tendered pursuant to the Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving cumulative totals as
to items properly
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received and items improperly received. In addition, you will also inform, and
cooperate in making available to, the Company or any such other person or
persons upon oral request made from time to time prior to the Expiration Date of
such other information as it or he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on your staff who
are responsible for receiving tenders, in order to ensure that immediately prior
to the Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You shall
prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of Original Notes tendered, the aggregate principal amount of
Original Notes accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right
of set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto. The provisions of this section shall survive the termination of this
agreement.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent, which shall be controlled by this Agreement.
21. (a) The Company covenants and agrees to indemnify and hold
you harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising out
of or in connection with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other in strument or document (whether in its
original or facsimile form) reasonably
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believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Original Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Original Notes; provided, however, that the
Company shall not be liable for indemnifi cation or otherwise for any loss,
liability, cost or expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. In no case shall the Company be liable under
this indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
as sertion of a claim or notice of commencement of an action against you or of
any other action commenced against you, promptly after you shall have received
any such written assertion or notice of commencement of an action. The Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action, and, if the Company so elects, the Company shall assume
the defense of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit or threatened action in
respect of which indemnification may be sought hereunder, the Company shall not
be liable for the fees and expenses of any additional counsel thereafter
retained by you so long as the Company shall retain counsel reasonably
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment, that a conflict of interest exists between you and
the Company.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. At the Company's written direction, you shall deliver or
cause to be delivered, in a timely manner to each governmental authority to
which any transfer taxes are payable, if any, in respect of the exchange of
Original Notes, your check in the amount of all transfer taxes so payable, and
the Company shall reimburse you for the amount of any and all transfer taxes
payable in respect of the exchange of Original Notes; provided, however, that
you shall reimburse the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such refund is received by
you.
24. This Agreement and your appointment as Exchange Agent
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hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written in strument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Vlasic Foods International Inc.
Vlasic Plaza
6 Executive Campus
Cherry Hill, New Jersey 08002-4112
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
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Floor 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee Administration
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Notes, funds or property then held by you as
Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
VLASIC FOODS INTERNATIONAL INC.
By:________________________________
Name: Xxxxx X. Xxxxxx, Esq.
Title: Vice President, General Counsel
and Corporate Secretary
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________
Name:
Title:
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SCHEDULE I
FEES
Exchange Agent Fee: $____
Out of Pocket Expenses: Fees quoted do not include any out-of-pocket expenses
including but not limited to facsimile, stationary, postage, telephone,
overnight courier and messenger costs. These expenses will be billed at cost
when incurred.
Outside Counsel Fees and Expenses: Fees quoted do not included the fees and
expenses for services rendered by outside counsel.
