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EXHIBIT 99.1
BANKERS TRUST COMPANY
EXCHANGE AGENT AGREEMENT
Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
Del Monte Foods Company (the "Company"), is offering to exchange (the
"Exchange Offer") up to $230,000,000 in aggregate principal amount at maturity
of Series B 12-1/2% Senior Discount Notes due 2007 (the "Exchange Notes") for an
equal principal amount of its outstanding 12-1/2% Senior Discount Notes due 2007
(the "Initial Notes" and, together with the Exchange Notes, the "Notes"),
pursuant to a prospectus (the "Prospectus") included in the Company's
Registration Statement on Form S-4 (File No. 333-_______) (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC"). The
Term "Expiration Date" shall mean 5:00 p.m., New York City time, on ______ __,
1998, unless the Exchange Offer is extended as provided in the Prospectus, in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended. Upon execution of this Agreement, Bankers
Trust Company will act as the Exchange Agent for the Exchange Offer (the
"Exchange Agent"). A copy of the Prospectus is attached hereto as EXHIBIT A.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of the letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter of
clients (collectively, the "Tender Documents") to be used by holders of Initial
Notes ("Holders") in order to receive Exchange Notes pursuant to the Exchange
Offer is attached hereto as EXHIBIT B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you are
to act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all
of the Holders and participants on the day that you are notified by the Company
that the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof to any persons who become
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Holders prior to the Expiration Date and to any persons as may from time to time
be requested by the Company. All mailings pursuant to this Section 1 shall be by
first-class mail, postage prepaid, unless otherwise specified by the Company.
You shall also accept and comply with telephone requests for information
relating to the Exchange Offer provided that such information shall relate only
to the procedures for tendering Initial Notes in (or withdrawing tenders of
Initial Notes from) the Exchange Offer. All other requests for information
relating to the Exchange Offer shall be directed to the Company, Attention: Xxx
X. Xxxxxx, Assistant Treasurer, Xxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Telephone: (000) 000-0000, Facsimile: (000) 000-0000.
2. You are to examine the Letters of Transmittal and the Initial
Notes and other documents delivered or mailed to you, by or for the Holders,
prior to the Expiration Date, to ascertain whether (i) each Letter of
Transmittal is properly executed and completed in accordance with the
instructions set forth therein, (ii) the Initial Notes are in proper form for
transfer and (iii) any other document required by the instructions accompanying
the Letters of Transmittal is completed and duly executed in accordance with
such instructions. In each case where a Letter of Transmittal or other document
has been improperly executed or completed or, for any other reason, is not in
proper form, or some other irregularity exists, you are authorized to endeavor
to take such action as you consider appropriate to notify the tendering Holder
of such irregularity and as to the appropriate means of resolving the same.
Determination of questions as to the proper completion or execution of the
Letters of Transmittal, or as to the proper form for transfer of the Initial
Notes or as to any other irregularity in connection with the submission of
Lenders of Transmittal and/or Initial Notes and other documents in connection
with the Exchange Offer, shall be made by the officers of, or counsel for, the
Company at their written instructions or oral direction confirmed by facsimile.
Any determination made by the Company on such questions shall be final and
binding.
3. At the written request of the Company or its counsel,
Pillsbury Madison & Sutro LLP, you shall notify tendering Holders in the event
of any extension, termination or amendment of the Exchange Offer. In the event
of any such termination, you will return all tendered Initial Notes to the
persons entitled thereto, at the request and expense of the Company.
4. Tender of the Initial Notes may be made only as set forth in
the Letter of Transmittal. Notwithstanding the foregoing, tenders which the
Company shall approve in writing as having been properly tendered shall be
considered to be properly tendered. Letters of Transmittal and Notices of
Guaranteed Delivery shall be recorded by you as to the date and time of receipt
and shall be preserved and retained by you at the Company's expense for six
years. Exchange Notes are to be issued in exchange for Initial Notes pursuant to
the Exchange Offer only (i) against deposit with you prior to the Expiration
Date or, in the case of a tender in accordance with the guaranteed delivery
procedures outlined in Instruction 1 of the Letter of Transmittal, within three
New York Stock Exchange trading days after the Expiration Date of the Exchange
Offer, together with executed Letters of Transmittal and other documents
required by the Exchange Offer or (ii) in the event that the Holder is a
participant in The Depository Trust Company ("DTC") system, by the utilization
of DTC's
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Automated Tender Offer Program ("ATOP") and any evidence required by the
Exchange Offer.
You are hereby directed to establish an account with respect to the
Initial Notes at DTC (the "Book Entry Transfer Facility") within two business
days after the date of the Prospectus. Any financial institution that is a
participant in the Book Entry Transfer Facility system may, until the Expiration
Date, make book-entry delivery of the Shares by causing the Book Entry Facility
to transfer such Notes into your account in accordance with the procedure for
such transfer established by the Book Entry Transfer Facility. In every case,
however, a Letter of Transmittal (or a manually executed facsimile thereof), or
an Agent's Message, properly completed and duly executed with any required
signature guarantees and any other required documents must be transmitted to and
received by you prior to the Expiration Date or the guaranteed delivery
procedures described in the Prospectus must be complied with.
The term "Agent's Message" means a message transmitted by a participant
of the Book Entry Transfer Facility to and received by DTC and forming a part of
a Book Entry Confirmation, which states that such Book Entry Transfer Facility
has received an express acknowledgment from the participant in such Book Entry
Transfer Facility tendering the Initial Notes that such participant has received
and agrees to be bound by the terms of the Letter of Transmittal and that the
Company may enforce such agreement against such participant.
5. Upon the oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to Xxx X. Xxxxxx,
Assistant Treasurer, Xxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Telephone:
(000) 000-0000, Facsimile: (000) 000-0000, or such other persons as the Company
may reasonably request the aggregate number and principal amount of Initial
Notes tendered to you and the number and principal amount of Initial Notes
properly tendered that day. In addition, you will also inform the aforementioned
persons, upon oral request made from time to time (with written confirmation of
such request thereafter) prior to the Expiration Date, of such information as
they or any of them may reasonably request.
6. Upon the terms and subject to the conditions of the Exchange
Offer, delivery of Exchange Notes will be made by you promptly after acceptance
of the tendered Initial Notes in accordance with Section 8 hereof. You will hold
all items which are deposited for tender with you after 5:00 p.m., New York City
time, on the Expiration Date pending further instructions from an officer of the
Company.
7. If any Holder shall report to you that his or her failure to
surrender Initial Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by the Company, a bond
of indemnity in an amount and evidenced by such certificate or certificates of a
surety, as may be satisfactory to you and the Company, and (ii) to execute and
deliver an agreement to indemnify the Company and you in such form as is
acceptable to you and the Company. The obligees to be named in each such
indemnity
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bond shall include the Company and you. You shall report to the Company the
names of all Holders who claim that their Initial Notes have been lost or
destroyed and the principal amount of such Initial Notes.
8. Upon the expiration of the Exchange Offer, Xxx X. Xxxxxx,
Assistant Treasurer of the Company, or another designated officer or agent of
the Company will confirm to you orally (oral notice to be promptly confirmed in
writing) or in writing the aggregate principal amount of Initial Notes being
exchanged for Exchange Notes pursuant to the Exchange Offer. The Initial Notes
accepted for exchange are to be delivered to the Trustee with instructions to
cancel such Initial Notes and unless otherwise instructed by the Company to
destroy such canceled Initial Notes and furnish the Company with a certificate
evidencing such destruction.
As soon as practicable after the Company notifies you of its election
to exchange Initial Notes pursuant to the preceding paragraph, you shall either
(i) cause an aggregate principal amount of Exchange Notes equal to be aggregate
principal amount of Initial Notes surrendered with and tendered by each Letter
of Transmittal or Agent's Message and accepted for exchange to be reflected, as
directed in such Letter of Transmittal or Agent's Message, on records maintained
by DTC, or, as applicable, (ii) at the request of the tendering Holder contained
in a Letter of Transmittal which is tendering Initial Notes in definitive form,
cause to be delivered as directed in such Letter of Transmittal Exchange Notes
registered in the name or names specified in such Letter of Transmittal
evidencing an aggregate principal amount equal to the aggregate principal amount
of Initial Notes surrendered with and tendered by such Letter of Transmittal.
Tenders pursuant to the Exchange Offer are irrevocable, except that
Initial Notes tendered pursuant to the Exchange Offer may be withdrawn at any
time prior to the Expiration Date as described in the Prospectus.
If, pursuant to the terms of the Exchange Offer, the Company does not
accept and exchange all or any part of the Initial Notes, or Initial Notes are
tendered but withdrawn prior to the Expiration Date, or partial tenders are
made, you shall promptly return to, or, upon the order of, the tendering Holder,
certificates for Initial Notes not exchanged.
Any certificates for unexchanged Notes forwarded by first-class mail
shall be so forwarded under an existing insurance policy protecting you and the
Company from loss or liability arising out of the non-receipt or non-delivery of
such certificates or by registered mail insured separately for the replacement
value of such certificates.
9. For your services as the Exchange Agent hereunder, the Company
shall pay you in accordance with the schedule of fees attached hereto as EXHIBIT
C. The Company also will reimburse you, for your reasonable out-of-pocket
expenses (including, but not limited to, reasonable attorneys' fees and expenses
not previously paid to you) in connection with your services promptly after
submission to the Company of itemized statements.
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10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, accuracy, sufficiency,
value or genuineness of any Initial Notes deposited with you hereunder
of any Exchange Notes, any tender Documents or other documents prepared
by the Company in connection with the Exchange Offer;
(c) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or liability
unless you shall have been furnished with an indemnity reasonably
satisfactory to you;
(d) may rely on, and shall be fully protected and
indemnified as provided in Section 12 hereof in acting upon, the
written or oral instructions with respect to any matter relating to
your acting as Exchange Agent specifically covered by this Agreement or
supplementing or qualifying any such action of any officer or agent of
such other person or persons as may be designated or whom you
reasonably believe have been designated by the Company;
(e) may consult with counsel satisfactory to you,
including counsel for the Company, and the advice of such counsel shall
be full and complete authorization and protection in respect in good
faith and in accordance with such advice of such counsel;
(f) shall not at any time advise any person as to the
wisdom of the Exchange Offer or as to the market value or decline or
appreciation in market value of any Initial Notes or Exchange Notes;
and
(g) shall not be liable for any action which you may do
or refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith;
(h) shall not be required to expend or risk your own
funds or otherwise to incur any liability, financial or otherwise, in
the performance of any of your duties hereunder, or in the exercise of
any of your rights or powers if you shall have reasonable grounds for
believing that repayment of such funds
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or indemnity satisfactory to you against such risk or liability is not
assured to you;
(i) may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval or other paper or document believed by you to be
genuine and to have been signed or presented by the proper party or
parties;
(j) shall be entitled, if in the administration of the
provisions of this Agreement you shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering any
action to be taken hereunder, to receive and such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in
the absence of gross negligence, willful misconduct or bad faith on
your part be deemed to be conclusively proved and established by a
certificate signed by one of the Company's authorized officers and
delivered to you, and such certificate, in the absence of gross
negligence, willful misconduct or bad faith on your part shall be full
warrant to you for any action taken, suffered or omitted by it under
the provisions of this Agreement upon the faith thereof;
(k) may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees appointed with due care; and
(l) may at any time resign by giving 30 days written
notice of resignation to the Company. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor and, upon
the acceptance by the successor of such appointment, release the
resigning Exchange Agent from its obligations hereunder by written
instrument, a copy of which instrument shall be delivered to each of
the Exchange Agent and the successor. If no successor shall have been
so appointed and have accepted appointment within 45 days after the
giving of such notice of resignation, you may petition any court of
competent jurisdiction for the appointment of a successor.
12. The Company covenants and agrees to indemnify and hold
harmless Bankers Trust Company and its officers, directors, employees, agents
and affiliates (collectively, the "Indemnified Parties" and each an "Indemnified
Party") against any loss, liability or reasonable expense of any nature
(including reasonable attorneys' and other fees and expenses) incurred without
gross negligence, willful misconduct or bad faith on an Indemnified Party's
part, in connection with the administration of the duties of the Indemnified
Parties hereunder in accordance with this Agreement; provided, however, such
Indemnified Party shall use its best effort to notify the Company by letter, or
by cable, telex or facsimile confirmed by letter, of the written assertion of a
claim against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written
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assertion of a claim or shall have been served with a summons, or other legal
process, giving information as to the nature and basis of the claim; provided,
however, that failure to so notify the Company shall not relieve the Company of
any liability which it may otherwise have hereunder except such liability that
is a direct result of such Indemnified Party's failure to so notify the Company.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
the Company assumes such defense, the Company shall not be liable for any fees
and expenses thereafter incurred by such Indemnified Party, incurred as a result
of the need to have separate representation because of a conflict of interest
between such Indemnified Party and the Company. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent or the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
Obligations under this Section 12 shall survive the termination of this
Agreement or the earlier resignation or termination of the Exchange Agent.
13. This Agreement and your appointment as the Exchange Agent
shall be construed and enforced in accordance with the laws of the State of New
York (without regard to its 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 the parties hereto. No other person shall acquire or
have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement shall be heard and determined in such a New York State or federal
court. The parties hereby consent to and grant to any such court jurisdiction
over the persons of such parties and over the subject matter of any such dispute
and agree at delivery or mailing of any process or other papers in the manner
provided herein, or in such other manner as may be permitted by law, shall be
valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented
without an express written agreement executed by the parties hereto. Any
inconsistency between this Agreement and the Tender Documents, as they may from
time to time be supplemented or amended, shall be resolved in favor of the
latter, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent.
16. This Agreement may be executed in one 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.
17. 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 unpaired thereby.
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18. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 9 and 12 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Trustee any certificates for Initial Notes or Exchange Notes, funds or
property then held by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing
and shall be deemed to be duly given if delivered or mailed first class
certified or registered mail, postage prepaid, or sent by facsimile as follows:
If to Company: Del Monte Corporation
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to: Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to you: Bankers Trust Company
Corporate Trust and Agency Group
Four Albany Street - 4th Floor
New York, New York 10006
Attention: Xxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address or telecopy number as any of the above may have finished
to the other parties in writing for such purposes
20. This Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
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If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
By: _____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: General Counsel, Secretary and
Vice President
Agreed to this ____ day
of _________, 1998
BANKERS TRUST COMPANY,
as Exchange Agent
By: ________________________________
Name: Xxxxx Xxxxxxxxxxx
Title: Assistant Treasurer
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