Exhibit 10.6
[EXECUTION COPY]
$750,000,000
CREDIT AGREEMENT
dated as of
FEBRUARY 20, 1998
among
VLASIC FOODS INTERNATIONAL INC.
XXXXXXXX SOUP COMPANY
THE BANKS PARTY HERETO
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AS ADMINISTRATIVE AGENT
________________________
Arranged by
X.X. XXXXXX SECURITIES INC.
TABLE OF CONTENTS
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ARTICLE 1
Definitions
Section 1.01. Definitions............................................. 2
Section 1.02. Accounting Terms and Determinations..................... 17
Section 1.03. Types of Borrowings..................................... 18
ARTICLE 2
Loans to Xxxxxxxx
Section 2.01. Commitments to Lend..................................... 18
Section 2.02. Notice of Xxxxxxxx Closing Date; Funding of Loans....... 18
Section 2.03. Xxxxxxxx Global Note.................................... 19
Section 2.04. Maturity of Xxxxxxxx Loans.............................. 19
Section 2.05. Interest Rate........................................... 20
Section 2.06. Other Applicable Provisions............................. 20
Section 2.07. Representations and Warranties of Xxxxxxxx.............. 20
Section 2.08. Use of Proceeds......................................... 22
Section 2.09. Assumption of Xxxxxxxx Loans by Company................. 22
ARTICLE 3
Loans to the Company
Section 3.01. Commitments to Lend..................................... 22
Section 3.02. Notice of Committed Borrowing........................... 23
Section 3.03. Money Market Borrowings................................. 23
Section 3.04. Notice to Banks; Funding of Loans....................... 27
Section 3.05. Notes................................................... 28
Section 3.06. Maturity of Loans....................................... 28
Section 3.07. Interest Rates.......................................... 29
Section 3.08. Facility Fees........................................... 32
Section 3.09. Optional Termination or Reduction of Commitments........ 32
Section 3.10. Method of Electing Interest Rates....................... 32
Section 3.11. Optional Prepayments.................................... 34
Section 3.12. General Provisions as to Payments....................... 34
Section 3.13. Funding Losses.......................................... 35
Section 3.14. Computation of Interest and Fees........................ 35
Section 3.15. Regulation D Compensation............................... 36
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Section 3.16. Effect of Asset Securitization.......................... 36
ARTICLE 4
Conditions
Section 4.01. Closing with Xxxxxxxx................................... 36
Section 4.02. Closing with the Company................................ 38
Section 4.03. Borrowings by the Company............................... 40
ARTICLE 5
Representations and Warranties of the Company
Section 5.01. Corporate Existence and Power........................... 41
Section 5.02. Corporate and Governmental Authorization; No
Contravention........................................... 41
Section 5.03. Binding Effect.......................................... 41
Section 5.04. Financial Information................................... 41
Section 5.05. Litigation.............................................. 42
Section 5.06. Compliance with ERISA................................... 42
Section 5.07. Environmental Matters................................... 43
Section 5.08. Taxes................................................... 43
Section 5.09. Subsidiaries............................................ 43
Section 5.10. No Regulatory Restrictions on Borrowing................. 44
Section 5.11. Full Disclosure......................................... 44
Section 5.12. Fair Value; Solvency.................................... 44
ARTICLE 6
Covenants
Section 6.01. Information............................................. 44
Section 6.02. Maintenance of Property; Insurance...................... 46
Section 6.03. Conduct of Business and Maintenance of Existence........ 46
Section 6.04. Compliance with Laws.................................... 47
Section 6.05. Inspection of Property, Books and Records............... 47
Section 6.06. Use of Proceeds......................................... 47
Section 6.07. Mergers and Sales of Assets............................. 47
Section 6.08. Negative Pledge......................................... 48
Section 6.09. Subsidiary Debt Limitation.............................. 49
Section 6.10. Debt/EBITDA Ratio....................................... 49
Section 6.11. Fixed Charge Coverage Ratio............................. 49
Section 6.12. Restricted Payments..................................... 49
Section 6.13. Investments............................................. 49
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Section 6.14. Transactions with Affiliates............................ 50
ARTICLE 7
Defaults
Section 7.01. Events of Default....................................... 51
Section 7.02. Notice of Default....................................... 53
ARTICLE 8
The Administrative Agent
Section 8.01. Appointment and Authorization........................... 53
Section 8.02. Administrative Agent and Affiliates..................... 53
Section 8.03. Action by Administrative Agent.......................... 53
Section 8.04. Consultation with Experts............................... 53
Section 8.05. Liability of Administrative Agent....................... 54
Section 8.06. Indemnification......................................... 54
Section 8.07. Credit Decision......................................... 54
Section 8.08. Successor Administrative Agent.......................... 55
Section 8.09. Administrative Agent's Fees............................. 55
Section 8.10. Syndication Agent....................................... 55
ARTICLE 9
Change in Circumstances
Section 9.01. Basis for Determining Interest Rate Inadequate or Unfair 55
Section 9.02. Illegality.............................................. 56
Section 9.03. Increased Cost and Reduced Return....................... 57
Section 9.04. Taxes................................................... 58
Section 9.05. Base Rate Loans Substituted for Affected Fixed Rate..... 60
ARTICLE 10
Miscellaneous
Section 10.01. Notices................................................ 60
Section 10.02. No Waivers............................................. 60
Section 10.03. Expenses; Indemnification.............................. 61
Section 10.04. Sharing of Set-offs.................................... 61
Section 10.05. Amendments and Waivers................................. 62
Section 10.06. Successors and Assigns................................. 62
Section 10.07. No Reliance on Margin Stock............................ 64
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Section 10.08. Governing Law; Submission to Jurisdiction.............. 64
Section 10.09. Counterparts; Integration; Effectiveness............... 64
Section 10.10. WAIVER OF JURY TRIAL................................... 64
COMMITMENT SCHEDULE
RATIO-BASED PRICING SCHEDULE
RATINGS-BASED PRICING SCHEDULE
SCHEDULE I - List of Spin-Off Agreements
EXHIBIT A - Form of Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E - Opinion of Counsel for Xxxxxxxx
EXHIBIT F - Opinion of Counsel for the Company
EXHIBIT G-1 - Opinion of Special Counsel for the Administrative Agent
delivered on the Xxxxxxxx Closing Date
EXHIBIT G-2 - Opinion of Special Counsel for the Administrative Agent
delivered on the Company Closing Date
EXHIBIT H - Assignment and Assumption Agreement
EXHIBIT I - Form of Xxxxxxxx Global Note
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CREDIT AGREEMENT
AGREEMENT dated as of February 20, 1998 among VLASIC FOODS INTERNATIONAL
INC., XXXXXXXX SOUP COMPANY, the BANKS party hereto, THE CHASE MANHATTAN BANK,
as Syndication Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent.
WHEREAS, on the date hereof, the Company is a wholly-owned subsidiary of
Xxxxxxxx;
WHEREAS, the Company and Xxxxxxxx desire to establish a five year revolving
credit facility in the amount of $750,000,000 as provided herein;
WHEREAS, Xxxxxxxx will borrow an amount not to exceed $500,000,000 under
this facility on the Xxxxxxxx Closing Date for the purpose of repaying
outstanding debt of Xxxxxxxx;
WHEREAS, after such borrowing, Xxxxxxxx will effect the Spin-Off, pursuant
to which 100% of the shares of capital stock of the Company will be distributed
to the owners of Campbell's common stock;
WHEREAS, upon the consummation of the Company Closing, the Company will
assume all of the obligations of Xxxxxxxx with respect to the loans made to
Xxxxxxxx hereunder and Xxxxxxxx will be released from such obligations;
WHEREAS, after the Company Closing Date, the Company proposes to use funds
available under this facility for its general corporate purposes, including
acquisitions;
WHEREAS, the loans made to Xxxxxxxx hereunder will mature (i) one month
after the Xxxxxxxx Closing Date if the Company Closing is not consummated before
the Spin-Off Deadline or (ii) five years after the date hereof if the Company
Closing is consummated before the Spin-Off Deadline; and
WHEREAS, on the terms and conditions provided herein, the Banks are willing
(i) to lend up to $500,000,000 to Xxxxxxxx on the Xxxxxxxx Closing Date, (ii) to
release Xxxxxxxx from its obligations with respect to such loans upon the
assumption of such obligations by the Company on the Company Closing Date and
(iii) to make loans to the Company from time to time after the Company Closing
Date;
NOW, THEREFORE, 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 3.03.
"ADJUSTED CD RATE" has the meaning set forth in Section 3.07(b).
"ADMINISTRATIVE AGENT" means Xxxxxx 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 Company) duly
completed by such Bank.
"AFFILIATE" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Company (a "Controlling Person") or (ii)
any Person (other than the Company or a Subsidiary) which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to vote 10% or
more of any class of voting securities of a Person or to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"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.
"APPLICABLE PRICING SCHEDULE" means (i) the Ratio-Based Pricing Schedule
attached hereto, until the senior unsecured long-term debt securities of the
Company (without third party credit enhancement) are assigned a rating by S&P,
Xxxxx'x or both, and (ii) thereafter, the Ratings-Based Pricing Schedule
attached hereto.
"ASSESSMENT RATE" has the meaning set forth in Section 3.07(b).
"ASSET SECURITIZATION" means a sale or other disposition by the Company or
any Subsidiary of accounts receivable.
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"ASSIGNEE" has the meaning set forth in Section 10.06(c).
"BANK" means each bank listed on the signature pages hereof, each Assignee
which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"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 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 9.
"BORROWING" has the meaning set forth in Section 1.03.
"XXXXXXXX" means Xxxxxxxx Soup Company, a New Jersey corporation, and its
successors.
"XXXXXXXX CLOSING" means the closing with Xxxxxxxx hereunder on the
Xxxxxxxx Closing Date.
"XXXXXXXX CLOSING DATE" means the date on or after the Effective Date on
which (i) all the conditions specified in Section 4.01 shall have been satisfied
and (ii) the Xxxxxxxx Loans shall be made.
"XXXXXXXX ERISA GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Xxxxxxxx, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"XXXXXXXX GLOBAL NOTE" has the meaning set forth in Section 2.03.
"XXXXXXXX LOAN AMOUNT" means the aggregate amount (not to exceed
$500,000,000) to be borrowed by Xxxxxxxx hereunder on the Xxxxxxxx Closing Date
as specified by Xxxxxxxx pursuant to Section 2.02(a).
"XXXXXXXX LOANS" has the meaning set forth in Section 2.01.
"CAMPBELL'S CONSOLIDATED NET ASSETS" means the total assets of Xxxxxxxx and
its Consolidated Subsidiaries after deducting therefrom all current liabilities.
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"CAMPBELL'S LATEST FORM 10-Q" means Campbell's quarterly report on Form 10-
Q for the fiscal quarter ended November 2, 1997, as filed with the SEC pursuant
to the Exchange Act.
"CAMPBELL'S 1997 FORM 10-K" means Campbell's annual report on Form 10-K for
the fiscal year ended August 3, 1997, as filed with the SEC pursuant to the
Exchange Act.
"CD BASE RATE" has the meaning set forth in Section 3.07(b).
"CD LOAN" means a Committed Loan which bears interest at a CD Rate pursuant
to the applicable Notice of Committed Borrowing or Notice of Interest Rate
Election.
"CD MARGIN" means a rate per annum determined in accordance with the
Applicable Pricing Schedule.
"CD RATE" means a rate of interest determined pursuant to Section 3.07(b)
on the basis of an Adjusted CD Rate.
"CD REFERENCE BANKS" means The Chase Manhattan Bank, Xxxxxx Guaranty Trust
Company of New York and Wachovia Bank, N.A.
"COMBINED BASIS", when used with respect to determining any amount, means
that such amount is to be determined by combining the relevant amounts for each
of the Company's businesses in the same manner and with the same pro-forma
adjustments as were used in preparing the Company's combined pro-forma financial
statements included in the Form 10.
"COMMITMENT" means, with respect to each Bank listed on the Commitment
Schedule, (i) the amount set forth opposite its name on the Commitment Schedule
or (ii) with respect to any Assignee which becomes a Bank pursuant to Section
10.06(c), the amount of the transferor Bank's Commitment assigned to such
Assignee pursuant to Section 10.06(c), in each case as such amount may be
reduced from time to time pursuant to Section 3.09 or 3.16 or changed as a
result of an assignment pursuant to Section 10.06(c).
"COMMITMENT PERCENTAGE" means, with respect to any Bank at any time, the
percentage which the amount of such Bank's Commitment then constitutes of the
aggregate amount of the Commitments.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached hereto.
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"COMMITTED LOAN" means a loan made by a Bank to Xxxxxxxx on the Xxxxxxxx
Closing Date pursuant to Section 2.01 or a loan made by a Bank to the Company
after the Company Closing Date pursuant to Section 3.01; 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.
"COMPANY" means Vlasic Foods International Inc., a New Jersey corporation,
and its successors.
"COMPANY CLOSING" means the closing with the Company hereunder on the
Company Closing Date.
"COMPANY CLOSING DATE" means the date after the Xxxxxxxx Closing Date on
which (i) all the conditions specified in Section 4.02 shall have been satisfied
and (ii) the Company shall assume the Xxxxxxxx Loans as provided in Section
2.09.
"COMPANY'S SHARE" means, at any date, with respect to the Debt or interest
expense of any Minority-Owned Affiliate, a percentage of such Debt or interest
expense equal to the percentage of the outstanding aggregate equity interests
(other than preferred stock) in such Minority-Held Affiliate held at such date
by the Company and its Subsidiaries.
"CONSOLIDATED DEBT" means, at any date, the sum of (i) the Debt of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis as
of such date, and (ii) the Company's Share of the Debt of each Minority-Owned
Affiliate.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining Consolidated Net Income
for such period, the aggregate amount of (i) Consolidated Interest Expense, (ii)
income tax expense and (iii) depreciation, amortization and other similar non-
cash charges (including, without limitation, a write-off or write-down of
assets); provided that, for any period or portion of a period before the Spin-
Off Date, "Consolidated EBITDA" shall be determined on a Combined Basis.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum of (i) the
interest expense of the Company and its Consolidated Subsidiaries, determined on
a consolidated basis for such period, and (ii) the Company's Share of the
interest expense of each Minority-Owned Affiliate; provided that, for any period
or portion of a period before the Spin-Off Date, the interest expense of the
Company and its Consolidated Subsidiaries referred to in clause (i) shall be
determined on a Combined Basis.
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"CONSOLIDATED NET INCOME" means, for any period, the net income of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis
for such period, adjusted to exclude the effect of any extraordinary or other
non-recurring gain (but not loss); provided that, for any period or portion of a
period before the Spin-Off Date, "Consolidated Net Income" shall be determined
on a Combined Basis.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other entity
the accounts of which would be consolidated with those of the Company in its
consolidated financial statements if such statements were prepared as of such
date.
"CONSOLIDATED TANGIBLE ASSETS" means, at any date, the consolidated assets
of the Company and its Consolidated Subsidiaries less their consolidated
Intangible Assets, all determined as of such date. As used herein "INTANGIBLE
ASSETS" means the amount (to the extent reflected in determining such
consolidated assets) of (i) all write-ups (except write-ups resulting from
foreign currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such business) after
November 2, 1997 in the book value of any asset owned by the Company or a
Consolidated Subsidiary, (ii) all Investments in unconsolidated Subsidiaries and
all equity Investments in Persons which are not Subsidiaries and (iii) all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, anticipated future benefit of
tax loss carry-forwards, copyrights, organization and developmental expenses and
other intangible assets.
"CONTINUING DIRECTOR" means (i) any individual who is a director of the
Company on the Spin-Off Date and (ii) any individual who becomes a director of
the Company after the Spin-Off Date and is elected or nominated for election as
a director of the Company by a majority of the individuals who were Continuing
Directors immediately before such election or nomination.
"CREDIT EXPOSURE" means, with respect to any Bank at any time, (i) the
amount of its Commitment (whether used or unused) at such time or (ii) if the
Commitments have terminated in their entirety, the aggregate outstanding
principal amount of its Loans at such time.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all non-contingent
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (vi) all Debt of
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others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person and (vii) all Debt of others Guaranteed by such
Person.
"DEBT/EBITDA RATIO" means, at the end of any Fiscal Quarter, the ratio of
(i) Consolidated Debt at the end of such Fiscal Quarter to (ii) Consolidated
EBITDA for the period of four consecutive Fiscal Quarters then ended.
"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.
"DESIGNATED AFFILIATE" means (i) Xxxxxxx Xxxxxxxx, (ii) Xxxx Xxxxx Xxxxxx,
(iii) the June 2, 1990 Voting Trust described in the Form 10 or (iv) any group
of Persons (within the meaning of Section 13 or 14 of the Exchange Act) which
includes one or more of the foregoing.
"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 INVENTORY" means inventory owned by Xxxxxxxx or any Subsidiary of
Xxxxxxxx and located in the United States.
"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 Company and the Administrative 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 RECEIVABLES" means receivables of Xxxxxxxx or any Subsidiary of
Xxxxxxxx which in the ordinary course of business are payable in the United
States.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section 3.07(b).
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 10.09.
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"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control
which, together with the Company, are treated as a single employer under Section
414 of the Internal Revenue Code.
"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 Company
and the Administrative Agent.
"EURO-DOLLAR LOAN" means 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.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance with
the Applicable Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to Section
3.07(c) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of The
Chase Manhattan Bank, Xxxxxx Guaranty Trust Company of New York and Wachovia
Bank, N.A.
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"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).
"EVENTS OF DEFAULT" has the meaning set forth in Section 7.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"FACILITY FEE RATE" means a rate per annum determined in accordance with
the Applicable Pricing Schedule.
"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 Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Administrative Agent.
"FISCAL QUARTER" means a fiscal quarter of the Company.
"FISCAL YEAR" means a fiscal year of the Company.
"FIXED CHARGE COVERAGE RATIO" means, at the end of any Fiscal Quarter, the
ratio of Consolidated EBITDA for the period of four consecutive Fiscal Quarters
then ended to Consolidated Interest Expense for such period of four consecutive
Fiscal Quarters.
"FIXED RATE BORROWING" means a Borrowing comprised of Fixed Rate Loans.
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"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 9.01) or any combination of the foregoing.
"FORM 10" means the Company's report on Form 10, as filed with the SEC
pursuant to the Exchange Act on February 6, 1998 (which report includes the
Information Statement).
"GROUP OF LOANS" or "GROUP" 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 Article 9, 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" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise), (ii) to reimburse a bank for
amounts drawn under a letter of credit for the purpose of paying such Debt or
(iii) entered into for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part); provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 10.03(b).
"INFORMATION STATEMENT" means the draft of the Information Statement
furnished to the Banks with respect to the Spin-Off included in the Form 10.
"INTEREST PERIOD" means: (1) in the case of the initial Interest Period
applicable to the Xxxxxxxx Loans, a period of one month commencing on the
Xxxxxxxx Closing
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Date; provided that such Interest Period shall be subject to the provisions of
clauses (a) and (b) of paragraph (2) of this definition;
(2) with respect to (i) each Euro-Dollar Loan made to the Company and (ii)
each Xxxxxxxx Loan which is assumed by the Company on the Company Closing Date
and continued as a Euro-Dollar Loan after the initial Interest Period applicable
thereto expires, 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 Company may elect in such 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
Terminatio n Date shall end on the Termination Date.
(3) 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 Company may elect in such 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.
(4) 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 as the Company may elect in accordance
with Section 3.03; provided that:
11
(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.
(5) 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 30 days)
as the Company may elect in accordance with Section 3.03; 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.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, Guarantee, time deposit or otherwise (but
not including any demand deposit). " LIBOR AUCTION" means a solicitation of
Money Market Quotes setting forth Money Market Margins based on the London
Interbank Offered Rate pursuant to Section 3.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the
12
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"LOAN" means a Committed Loan or a Money Market Loan and "Loans" means
Committed Loans or Money Market Loans or any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
3.07(c).
"MATERIAL DEBT" means Debt (except Debt outstanding hereunder) of the
Company and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal or face amount exceeding
$30,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $30,000,000.
"MINORITY-OWNED AFFILIATE" means any Person (other than a Subsidiary) in
which the Company and its Subsidiaries hold at least 20% of the aggregate
outstanding equity interests of any class.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section
3.03(d)(ii).
"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 Company
and the Administrative Agent; provided that any Bank may from time to time by
notice to the Company 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 9.01).
"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 3.03(d)(ii).
13
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market Loan
in accordance with Section 3.03.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NOTES" means promissory notes of the Company, substantially in the form of
Exhibit A hereto, evidencing the obligations of the Company to repay the
Xxxxxxxx Loans assumed by it and all other Loans made to it, and "Note" means
any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined in
Section 3.02) or a Notice of Money Market Borrowing (as defined in Section
3.03(f)).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
3.10(a).
"PARENT" means, with respect to any Bank, any Person controlling such Bank.
"PARTICIPANT" has the meaning set forth in Section 10.06(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 at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
14
"PRIME RATE" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"PRINCIPAL PROPERTY OF XXXXXXXX" means any manufacturing or processing
plant or warehouse (a) located in the United States, (b) owned by Xxxxxxxx or
any Subsidiary of Xxxxxxxx and (c) having a gross book value (including related
land and improvements therein and all machinery and equipment included therein
without deduction of any depreciation reserves) on the date as of which the
determination is being made exceeding 2% of Campbell's Consolidated Net Assets.
"PRINCIPAL SUBSIDIARY OF XXXXXXXX" means any Subsidiary of Xxxxxxxx which
(a) owns a Principal Property of Xxxxxxxx, (b) owns Domestic Inventory and
Domestic Receivables with a combined aggregate book value in excess of
$30,000,000 or (c) owns (directly or indirectly) the stock of any Subsidiary of
Xxxxxxxx which owns a Principal Property of Xxxxxxxx or has Domestic Inventory
and Domestic Receivables with a combined aggregate book value in excess of
$30,000,000.
"QUARTERLY DATES" means each March 31, June 30, September 30 and December
31.
"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.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having more than 50% of the Credit
Exposures at such time.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on any
shares of the Company's capital stock (except dividends payable solely in shares
of its capital stock other than mandatorily redeemable preferred stock) or (ii)
any payment on account of the purchase, redemption, retirement or acquisition of
(a) any shares of the Company's capital stock or (b) any option, warrant or
other right to acquire shares of the Company's capital stock (but not including
payments of principal, premium (if any) or interest made pursuant to the terms
of convertible debt securities prior to conversion), provided that the
assumption by the Company of obligations of Xxxxxxxx pursuant to Section 2.09
shall not constitute a Restricted Payment.
"REVOLVING CREDIT PERIOD" means the period from and including the Company
Closing Date to but not including the Termination Date.
15
"SEC" means the Securities and Exchange Commission.
"SOVEREIGN" means (i) the central or federal executive or legislative
governmental authority of a country or (ii) any agency or instrumentality of
such governmental authority (including any central bank or central monetary
authority) to the extent the obligations of such agency or instrumentality are
fully backed by the general taxing power of such governmental authority.
"SPIN-OFF" means the distribution by Xxxxxxxx of 100% of the capital stock
of the Company to shareowners of Xxxxxxxx substantially in the manner described
in the Information Memorandum.
"SPIN-OFF AGREEMENTS" means the agreements listed on Schedule I hereto, in
each case complying in all material respects with the description thereof in the
Information Statement.
"SPIN-OFF DATE" means the date on which the Spin-Off is consummated.
"SPIN-OFF DEADLINE" means 5:00 P.M. (New York City time) on the earlier of
(i) May 15, 1998 and (ii) the date which is 30 days after the Xxxxxxxx Closing
Date.
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-
Xxxx Companies.
"SUBSIDIARY" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"SYNDICATION AGENT" means The Chase Manhattan Bank in its capacity as
syndication agent for this revolving credit facility.
"TEMPORARY CASH INVESTMENT" 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
S&P and at least P-1 by Moody's, (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 or licensed 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, (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,
(v) securities issued or fully and unconditionally guaranteed by any state,
commonwealth or territory
16
of the United States or by any political subdivision or taxing authority
thereof, and rated, in the case of long-term securities, at least AA by S&P and
Aa2 by Moody's, or, in the case of short-term securities, at least SP1 by S&P
and either MIG1 or VMIG1 by Moody's; (vi) direct obligations of any foreign
Sovereign recognized by the United States whose unguaranteed, unsecured and
otherwise unsupported long-term Sovereign U.S. dollar-denominated debt
obligations are rated at least AA by S&P and Aa2 by Moody's, (vii) time deposits
with, including certificates of deposit issued by, any bank or trust company
which is organized or licensed under the laws of any foreign country recognized
by the United States which has capital, surplus and undivided profits
aggregating at least $1,000,000,000 (or the currency equivalent thereof) or
(viii) shares of any money market or mutual fund, substantially all of the
assets of which are invested in securities and instruments of the types set
forth in clauses (i) through (vii) above, provided in each case that such
Investment matures within one year after it is acquired by the Company or a
Subsidiary.
"TERMINATION DATE" means February 20, 2003, or, if such day is not a Euro-
Dollar Business Day, the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
Termination Date shall be the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"VLASIC FOODS BUSINESSES" means (i) with respect to any period prior to the
Spin-Off, the businesses to be owned by the Company following the Spin-Off, as
described on page 1 of the Information Statement, and (ii) with respect to any
period after the Spin-Off, the businesses of the Company and its Subsidiaries.
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 the Company's
independent public accountants), with the
17
combined financial statements of the Company included in the Information
Statement; provided that, if the Company notifies the Administrative Agent that
the Company wishes to amend any provision hereof to eliminate the effect of any
change in generally accepted accounting principles on the operation of such
provision (or if the Administrative Agent notifies the Company that the Required
Banks wish to amend any provision hereof for such purpose), then the Company's
compliance with such provision 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 provision is amended in a manner satisfactory to the
Company and the Required Banks.
Section 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans by one or more Banks to be made to the Company pursuant to
Article 3, in each case on the same day, all of which Loans are of the same type
(subject to Article 9) 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 "EURO-DOLLAR BORROWING" is a Borrowing comprised of Euro-Dollar Loans
and a "CD BORROWING" is a Borrowing comprised of CD Loans) or by reference to
the provisions of Article 3 under which participation therein is determined
(i.e., a "COMMITTED BORROWING" is a Borrowing under Section 3.01 in which all
Banks participate in proportion to their Commitments, while a "MONEY MARKET
BORROWING" is a Borrowing under Section 3.03 in which the Bank participants are
determined on the basis of their bids).
ARTICLE 2
LOANS TO XXXXXXXX
Section 2.01. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make a loan to Xxxxxxxx on
the Xxxxxxxx Closing Date in an amount equal to such Bank's Commitment
Percentage of the Xxxxxxxx Loan Amount (such loans in an aggregate amount equal
to the Xxxxxxxx Loan Amount being herein called the "XXXXXXXX LOANS").
Section 2.02. Notice of Xxxxxxxx Closing Date; Funding of Loans. (a)
Xxxxxxxx shall give the Administrative Agent a notice, not later than 10:30 A.M.
(New York City time) on the third Euro-Dollar Business Day before the Xxxxxxxx
Closing Date, specifying:
(i) the Xxxxxxxx Closing Date (which shall be a Euro-Dollar Business
Day); and
18
(ii) the Xxxxxxxx Loan Amount, which shall not exceed $500,000,000.
Promptly after receiving such notice, the Administrative Agent shall notify
each Bank of the Xxxxxxxx Closing Date, the Xxxxxxxx Loan Amount and such Bank's
Commitment Percentage thereof, and such notice shall not thereafter be revocable
by Xxxxxxxx.
(b) Not later than 12:00 Noon (New York City time) on the Xxxxxxxx Closing
Date, each Bank shall make available an amount equal to its Commitment
Percentage of the Xxxxxxxx Loan Amount, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its address referred
to in Section 10.01. Unless the Administrative Agent determines that any
applicable condition specified in Section 4.01 has not been satisfied, the
Administrative Agent will make the funds so received from the Banks available to
Xxxxxxxx at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a Bank
prior to the Xxxxxxxx Closing Date that such Bank will not make available to the
Administrative Agent an amount equal to such Bank's Commitment Percentage of the
Xxxxxxxx Loan Amount, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on the Xxxxxxxx Closing
Date in accordance with subsection (b) of this Section and the Administrative
Agent may, in reliance upon such assumption, make a corresponding amount
available to Xxxxxxxx on the Xxxxxxxx Closing Date. If and to the extent that
such Bank shall not have so made such amount available to the Administrative
Agent, such Bank and Xxxxxxxx severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the day such amount is made available to Xxxxxxxx
until the day such amount is repaid to the Administrative Agent, at (i) in the
case of Xxxxxxxx, a rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section 2.05 and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank shall repay such
corresponding amount to the Administrative Agent, such amount so repaid shall
constitute such Bank's Xxxxxxxx Loan for purposes of this Agreement.
Section 2.03. Xxxxxxxx Global Note. Campbell's obligations to pay the
principal of and interest on the Xxxxxxxx Loans shall be evidenced by a single
global promissory note of Xxxxxxxx, payable to the order of the Administrative
Agent for the accounts of the several Banks in a principal amount equal to the
Xxxxxxxx Loan Amount. Such note (the "XXXXXXXX GLOBAL NOTE") shall be in
substantially the form of Exhibit I hereto.
Section 2.04. Maturity of Xxxxxxxx Loans. Each Xxxxxxxx Loan shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the initial one-month Interest Period applicable thereto if the Company
Closing is not
19
consummated before the Spin-Off Deadline or on the Termination Date if the
Company Closing is consummated before the Spin-Off Deadline.
Section 2.05. Interest Rate. Each Xxxxxxxx Loan shall bear interest
initially at a Euro-Dollar Rate for an Interest Period of one month, subject to
the provisions of the definition of Interest Period.
Section 2.06. Other Applicable Provisions. The provisions of Sections 3.11
to 3.15, inclusive, and Article 9 shall apply to the Xxxxxxxx Loans and
Campbell's obligations in connection therewith (in each case as if each
reference to the Company in said provisions referred instead to Xxxxxxxx and
each reference to the Notes in said provisions referred instead to the Xxxxxxxx
Global Note). Xxxxxxxx (instead of the Company) shall pay (i) any indemnity
payable under Section 9.04(c) for Taxes or Other Taxes with respect to any
payments by Xxxxxxxx under this Agreement or the Xxxxxxxx Global Note and (ii)
any indemnity payable under Section 10.03(b) with respect to any actual or
proposed use of proceeds of the Xxxxxxxx Loans. Xxxxxxxx shall be liable jointly
and severally with the Company for the facility fee payable pursuant to Section
3.08, excluding any portion of such facility fee accruing on and after the
Company Closing Date..
Section 2.07. Representations and Warranties of Xxxxxxxx. Xxxxxxxx
represents and warrants that:
(a) Xxxxxxxx is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of New Jersey, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
(b) The execution, delivery and performance by Xxxxxxxx of this
Agreement and the Xxxxxxxx Global Note are within the corporate powers of
Xxxxxxxx, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate
of incorporation or by-laws of Xxxxxxxx or of any agreement, judgment,
injunction, order, decree or other instrument binding upon Xxxxxxxx or any
of its Subsidiaries or result in the creation or imposition of any Lien on
any asset of Xxxxxxxx or any of its Subsidiaries.
(c) This Agreement constitutes a valid and binding agreement of
Xxxxxxxx and the Xxxxxxxx Global Note constitutes a valid and binding
obligation of Xxxxxxxx, in each case enforceable in accordance with its
terms
20
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
(d) The consolidated balance sheet of Xxxxxxxx and its consolidated
subsidiaries as of August 3, 1997 and the related consolidated statements
of earnings, of shareowners' equity and of cash flows for the fiscal year
then ended, reported on by Price Waterhouse LLP and set forth in Campbell's
1997 Form 10-K, a copy of which has been delivered to each of the Banks,
fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of Xxxxxxxx and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(e) The unaudited consolidated balance sheet of Xxxxxxxx and its
consolidated subsidiaries as of November 2, 1997 and the related unaudited
consolidated statements of earnings, of shareowners' equity and of cash
flows for the fiscal quarter then ended, a copy of which has been delivered
to each of the Banks, fairly present, in conformity with generally accepted
accounting principles applied on a basis consistent with the financial
statements referred to in subsection (d) of this Section, the consolidated
financial position of Xxxxxxxx and its consolidated subsidiaries as of such
date and their consolidated results of operations and cash flows for such
fiscal quarter (subject to normal year-end adjustments).
(f) Except for the effects of the Spin-Off, there has been no
material adverse change in the business, financial position or results of
operations of Xxxxxxxx and its consolidated subsidiaries, considered as a
whole, since August 3, 1997.
(g) Xxxxxxxx is not (i) an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, (ii) 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, or (iii) otherwise
subject to any regulatory scheme which restricts its ability to incur debt.
(h) All information heretofore furnished by Xxxxxxxx to the
Administrative Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby does not, and all such
information hereafter furnished by Xxxxxxxx to the Administrative Agent or
any Bank will not, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were or will be
made, not misleading.
21
Section 2.08. Use of Proceeds. Xxxxxxxx will use the proceeds of the
Xxxxxxxx Loans to repay existing debt of Xxxxxxxx. None of such proceeds will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U.
Section 2.09. Assumption of Xxxxxxxx Loans by Company. If the Company
Closing is consummated before the Spin-Off Deadline, then, effective upon the
consummation of the Company Closing:
(a) the Company will unconditionally and irrevocably assume, as
principal obligor and without recourse to Xxxxxxxx, all of the obligations
of Xxxxxxxx to make payments of principal and interest with respect to the
Xxxxxxxx Loans and the Xxxxxxxx Global Note; and
(b) the Company, the Administrative Agent and each Bank will
unconditionally and irrevocably release Xxxxxxxx from all claims and
demands whatsoever which each of them then has against Xxxxxxxx to make
payments of principal and interest with respect to the Xxxxxxxx Loans and
the Xxxxxxxx Global Note.
If the Company Closing is consummated before the Spin-Off Deadline, the
foregoing assumption and release shall become effective concurrently with the
consummation of the Company Closing and without any further action by the
parties hereto, and the Administrative Agent shall promptly cancel the Xxxxxxxx
Global Note and return it to Xxxxxxxx.
ARTICLE 3
Loans to the Company
Section 3.01. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make loans to the Company
pursuant to this Section from time to time during the Revolving Credit Period;
provided that, immediately after each such loan is made:
(i) the aggregate outstanding principal amount of such Bank's
Committed Loans shall not exceed its Commitment; and
(ii) the aggregate outstanding principal amount of all the Loans shall
not exceed the aggregate amount of the Commitments.
Each Borrowing under this Section shall be in an aggregate amount of $10,000,000
or any larger multiple of $1,000,000 (except that any such Borrowing may be in
the
22
aggregate amount available within the limitations in the foregoing
proviso) and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Company may borrow
under this Section, prepay Loans (including the Xxxxxxxx Loans) to the extent
permitted by Section 3.11 and reborrow at any time during the Revolving Credit
Period under this Section.
Section 3.02. Notice of Committed Borrowing. The Company 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 by it, specifying:
(a) 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;
(b) the aggregate amount of such Borrowing;
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate, a CD Rate or a Euro-Dollar Rate; and
(d) in the case of a CD Borrowing or a Euro-Dollar Borrowing, the
duration of the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
Section 3.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 3.01, the Company may, as
set forth in this Section, request the Banks to make offers to make Money Market
Loans to the Company from time to time during the Revolving Credit Period. The
Banks may, but shall have no obligation to, make such offers and the Company
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 Company 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 Company 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:
23
(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 Company 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 Company 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
Company 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. 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 10.01 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 Company 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
Company of the terms of the offer or offers contained therein not later than
24
(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 4 and 7, any Money Market Quote
so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Company.
(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 and (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) above,
(B) contains qualifying, conditional or similar language,
25
(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 the Company. The Administrative Agent shall promptly notify
the Company of the terms of (x) any Money Market Quote submitted by a Bank that
is in accordance with subsection (d) and (y) 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 Company shall specify (A) 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, (B) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (C) 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 the Company. 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 Company 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 Company 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
Company 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 aggregate 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;
26
(iv) the Company may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement; and
(v) immediately after such Money Market Borrowing is made, the
aggregate outstanding principal amount of the Loans shall not exceed the
aggregate amount of the Commitments.
(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 3.04. 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 Company.
(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 10.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 4 has not been satisfied, the Administrative Agent will
make the funds so received from the Banks available to the Company 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 has 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 a corresponding amount available to the Company on such date.
If and to the extent that such Bank shall not have so made such share available
to the Administrative Agent, such Bank and the Company severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date
27
such amount is made available to the Company until the day such amount is repaid
to the Administrative Agent, at (i) in the case of the Company, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 3.07 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay such corresponding amount to the
Administrative Agent, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
Section 3.05. Notes. (a) With respect to each Bank, the Company's
obligation to repay (i) the Loan made by such Bank to Xxxxxxxx and assumed by
the Company and (ii) the Loans made by such Bank directly to the Company 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 assumed by or made to the Company.
(b) Each Bank may, by notice to the Company and the Administrative Agent,
request that the Company's obligation to repay such Bank's 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 4.02(b), the
Administrative Agent shall forward such Note to such Bank. Each Bank shall
record the date, amount and type of the Loan made by it to Xxxxxxxx and assumed
by the Company and each Loan made by it to the Company, and in each case the
date and amount of each payment of principal made 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 a Bank's failure to make (or any error in making) any
such recordation or endorsement shall not affect the Company's obligations
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Company so to endorse its Note and to attach to and make a part of such Note a
continuation of any such schedule as and when required.
Section 3.06. Maturity of Loans. (a) Each Committed Loan made to the
Company (including the Xxxxxxxx Loans if assumed by the Company pursuant to
Section 2.09) shall mature, and the principal amount thereof shall be due and
payable, on the Termination Date.
28
(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 3.07. 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 the day such principal amount
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 1% plus the Base Rate 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 the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that if any CD Loan shall, as
a result of clause (3)(b) of the definition of Interest Period, have an Interest
Period of less than 30 days, such CD Loan 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 1% plus the Base Rate for such day.
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 fraction in brackets being rounded upward, if necessary, to the next
higher 1/100th 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 1/100th of 1%) of the prevailing rates
per annum bid at
29
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. (S)
327.4(a) (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 the Euro-Dollar Margin for such day 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.
30
(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 higher of (i) the sum of 1% plus the Euro-Dollar Margin for such
day plus the quotient obtained (rounded upward, if necessary, to the next higher
1/100th of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16th of 1%) of the respective rates per annum at which one day
(or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than three months as the
Administrative Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Euro-Dollar Reference Banks are
offered to such Euro-Dollar Reference Bank in the London interbank market for
the applicable period determined as provided above by (y) 1.00 minus the Euro-
Dollar Reserve Percentage (or, if the circumstances described in clause (a) or
(b) of Section 9.01 shall exist, at a rate per annum equal to the sum of 1% plus
the Base Rate for such day) and (ii) the sum of 1% plus the Euro-Dollar Margin
for such day plus the London Interbank Offered Rate applicable to such Loan
immediately before such payment was due.
(e) Subject to Section 9.01, 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
3.07(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 3.03. 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 3.03. 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 1% 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 of
each rate of interest so determined to the Company and the participating Banks
(and Xxxxxxxx in the case of the interest rate initially applicable to the
Xxxxxxxx Loans), 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
31
Reference Bank or Reference Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 9.01 shall apply.
Section 3.08. Facility Fees. (a) The Company shall pay to the
Administrative Agent, for the account of the Banks ratably in proportion to
their Credit Exposures, a facility fee calculated for each day at the Facility
Fee Rate for such day (determined in accordance with the Applicable Pricing
Schedule) on the aggregate amount of the Credit Exposures on such day. Such
facility fee shall accrue for each day from and including the Effective Date to
but excluding the day on which the Credit Exposures are reduced to zero.
(b) Such fees shall be payable quarterly in arrears on each Quarterly
Payment Date and on the day on which the Commitments terminate in their entirety
(and, if later, on the day on which the Credit Exposures are reduced to zero).
Section 3.09. Optional Termination or Reduction of Commitments.(a) During
the Revolving Credit Period, the Company may, upon at least three Domestic
Business Days' notice to the Administrative Agent, terminate the Commitments at
any time, if no Loans are outstanding at such time, or ratably reduce from time
to time by an aggregate amount of $25,000,000 or a larger multiple of
$1,000,000, the aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans. The Administrative Agent shall give
prompt notice to the Banks of any such termination or reduction of the
Commitments.
(b) Unless previously terminated, the Commitments shall terminate in their
entirety on the Termination Date (or on the last day of the initial one-month
Interest Period applicable to the Xxxxxxxx Loans if the Company Closing has not
been consummated before the Spin-Off Deadline).
Section 3.10. Method of Electing Interest Rates. (a) The Xxxxxxxx Loans
shall bear interest initially at a Euro-Dollar Rate. The Loans included in each
Committed Borrowing by the Company shall bear interest initially at the type of
rate specified by the Company in the applicable Notice of Committed Borrowing.
Thereafter, the Company 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 9), as follows:
(i) if such Loans are Base Rate Loans, the Company 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 Company may elect to convert
such Loans to Base Rate Loans as of any Domestic Business Day or to
32
Euro-Dollar Loans as of any Euro-Dollar Business Day or may elect to
continue such Loans as CD Loans for an additional Interest Period, subject
to Section 3.13 in the case of any such conversion 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 Company may elect to
convert such Loans to Base Rate Loans or CD Loans as of any Euro-Dollar
Business Day or may elect to continue such Loans as Euro-Dollar Loans for
an additional Interest Period, subject to Section 3.13 in the case of any
such conversion 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 10:00 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 Loans to
be continued as CD Loans for an additional Interest Period, in which case such
notice shall be delivered to the Administrative Agent not later than 10:00 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.
33
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 Company
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 Company. If the Company fails to deliver a timely Notice of
Interest Rate Election to the Administrative Agent for any Group of CD Loans or
Euro-Dollar Loans, such Loans shall be converted into Base Rate Loans on the
last day of the then current Interest Period applicable thereto.
Section 3.11. Optional Prepayments. Subject in the case of any Fixed Rate
Loans to Section 3.13, the Company may, upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any Group of Domestic Loans (or
any Money Market Borrowing bearing interest at the Base Rate pursuant to Section
9.01) 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
$5,000,000 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.
(b) Except as provided in subsection (a) above, the Company 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 Company.
Section 3.12. General Provisions as to Payments. (a) The Company 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 10.01 and without reduction by
reason of any set-off or counterclaim. 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
34
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar 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 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
Company before the date on which any payment is due to the Banks hereunder that
the Company will not make such payment in full, the Administrative Agent may
assume that the Company 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 to such Bank. If and to the extent that the Company
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 day such amount is distributed to such
Bank until the day such Bank repays such amount to the Administrative Agent, at
the Federal Funds Rate.
Section 3.13. Funding Losses. If the Company makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article 3, 7 or 9 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 3.07(d), or if the Company fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 3.04(a), 3.10(c) or 3.11(c), the
Company 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, prepay, convert or continue; provided that such Bank shall have
delivered to the Company a certificate as to the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest error.
Section 3.14. 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).
35
Section 3.15. Regulation D Compensation. Each Bank may require the Company
to pay, contemporaneously with each payment of interest on each of such Bank's
Euro-Dollar Loans, additional interest on such Euro-Dollar Loan 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 Company 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 notify the Company at least five Euro-Dollar Business
Days prior to each date on which interest is payable on the Euro-Dollar Loans of
the amount then due it under this Section.
Section 3.16. Effect of Asset Securitization. (a) The Company shall, within
three Euro-Dollar Business Days after any net cash proceeds are received from
the lenders or purchasers of securities in any Asset Securitization, ratably
reduce the Commitments by an aggregate amount equal to such net cash proceeds.
(b) Concurrently with each reduction of the Commitments pursuant to
subsection (a), the Company shall prepay Committed Loans in the manner provided
in Section 3.11, to the extent (if any) required so that no Bank has Committed
Loans outstanding in an aggregate principal amount in excess of its Commitment
as so reduced.
ARTICLE 4
CONDITIONS
Section 4.01. Closing with Xxxxxxxx. The Xxxxxxxx Closing shall occur and
the Xxxxxxxx Loans shall be made when all of the following conditions shall have
been satisfied (but only if all of such conditions are satisfied before May 15,
1998):
(a) the Administrative Agent shall have received from Xxxxxxxx a
notice specifying the Xxxxxxxx Closing Date as required by Section 2.02(a);
(B) the Administrative Agent shall have received the Xxxxxxxx Global
Note duly executed by Xxxxxxxx, dated on or before the Xxxxxxxx Closing
Date and complying with the provisions of Section 2.03;
(c) the Administrative Agent shall have received an opinion of the
General Counsel or Acting General Counsel of Xxxxxxxx, substantially in the
form of Exhibit E hereto, dated the Xxxxxxxx Closing Date and covering such
36
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) the Administrative Agent shall have received an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Administrative Agent, dated the
Xxxxxxxx Closing Date, substantially in the form of Exhibit G-1 hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(e) the representations and warranties of Xxxxxxxx contained in this
Agreement shall be true on and as of the Xxxxxxxx Closing Date; on the
Xxxxxxxx Closing Date:
(f) on the Xxxxxxx Closing Date:
(i) neither Xxxxxxxx nor any Principal Subsidiary of Xxxxxxxx
shall have commenced a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law or
shall have sought the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall have consented to any such relief or to the
appointment of or taking possession by any such official in any
involuntary case or other proceeding commenced against it, or shall
have made a general assignment for the benefit of creditors, or shall
have failed generally to pay its debts as they have become due, or
shall have taken any corporate action to authorize any of the
foregoing;
(ii) no involuntary case or other proceeding shall have been
commenced against Xxxxxxxx or any Principal Subsidiary of Xxxxxxxx
seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law or
seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its
property, and no order for relief shall have been entered against
Xxxxxxxx or any Principal Subsidiary of Xxxxxxxx under the federal
bankruptcy laws;
(iii) no member of the Xxxxxxxx ERISA Group shall have failed to
pay when due an amount or amounts aggregating in excess of $30,000,000
which it shall have become liable to pay under Title IV of ERISA; no
notice of intent to terminate a Material Plan of Xxxxxxxx shall have
been filed under Title IV of ERISA by any member of the Xxxxxxxx ERISA
Group, any plan administrator or any combination of the foregoing; and
no proceedings shall have been instituted by the PBGC
37
under Title IV of ERISA seeking to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan
of Xxxxxxxx; and no condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material
Plan of Xxxxxxxx must be terminated; and no complete or partial
withdrawal from, or default, within the meaning of Section 4219(c)(5)
of ERISA, shall have occurred with respect to one or more
Multiemployer Plans of Xxxxxxxx which could cause one or more members
of the Xxxxxxxx ERISA Group to incur a current payment obligation in
excess of $30,000,000;
(iv) no judgment or order for the payment of money in excess of
$100,000,000 shall have been rendered against Xxxxxxxx or any
Subsidiary of Xxxxxxxx which has not been satisfied; and
(v) no Default shall have occurred and be continuing under this
Agreement;
(g) the Administrative Agent shall have received a certificate signed
by an authorized officer of Xxxxxxxx to the effect set forth in clauses (e)
and (f) above; and
(h) the Administrative Agent shall have received all documents it may
reasonably request relating to the existence of Xxxxxxxx, the corporate
authority for and the validity of this Agreement and the Xxxxxxxx Global
Note, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent.
Promptly after the Xxxxxxxx Closing occurs, the Administrative Agent shall
notify Xxxxxxxx, the Company and the Banks thereof, and such notice shall be
conclusive and binding on all parties hereto.
Section 4.02. Closing with the Company. The Company Closing will occur,
and the Company will assume the Xxxxxxxx Loans as provided in Section 2.09, when
all of the following conditions shall have been satisfied (but only if all of
such conditions are satisfied before the Spin-Off Deadline):
(a) the Administrative Agent shall have received from the Company a
notice specifying the Company Closing Date before 3:00 P.M. (New York City
time) on the immediately preceding Domestic Business Day;
38
(b) the Administrative Agent shall have received a Note for the
account of each Bank duly executed by the Company, dated on or before the
Company Closing Date and complying with the provisions of Section 3.05;
(c) the Administrative Agent shall have received an opinion of the
General Counsel of the Company, substantially in the form of Exhibit F
hereto, dated the Company Closing Date and covering such additional matters
relating to the transactions contemplated hereby as the Required Banks may
reasonably request;
(d) the Administrative Agent shall have received an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Administrative Agent, dated the
Company Closing Date, substantially in the form of Exhibit G-2 hereto and
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(e) the representations and warranties of the Company contained in
this Agreement shall be true on and as of the Company Closing Date;
(f) no Default shall have occurred and be continuing under this
Agreement;
(g) each of the Spin-Off Agreements shall have been executed and
delivered by the parties thereto, shall be a valid and binding agreement of
each party thereto and shall be in full force and effect;
(h) the Spin-Off shall have been consummated and the assets
transferred to the Company in connection with the Spin-Off, the liabilities
assumed by the Company in connection with the Spin-Off and the substance of
the Spin-Off Agreements shall all be substantially as described in the
Information Statement;
(i) the execution, delivery and performance by Xxxxxxxx of the Spin-
Off Agreements shall be within the corporate powers of Xxxxxxxx, shall have
been duly authorized by all necessary corporate action, shall require no
action by or in respect of, or filing with, any governmental body, agency
or official (except the filing of the Form 10) and shall not contravene, or
constitute a default under, any provision of applicable law or regulation
or of the certificate of incorporation or by-laws of Xxxxxxxx or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon Xxxxxxxx or any of its Subsidiaries;
(j) the Administrative Agent shall have received (A) a certificate
signed by an authorized officer of the Company to the effect set forth in
clauses
39
(e), (f) and (g) above and (B) a certificate signed by an authorized
officer of Xxxxxxxx to the effect set forth in clauses (g), (h) and (i)
above;
(k) the Administrative Agent shall have received all documents it may
reasonably request relating to the existence of the Company, the corporate
authority for and the validity of this Agreement, the Notes and the Spin-
Off Agreements, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent.
Promptly after the Company Closing occurs, the Administrative Agent shall notify
Xxxxxxxx, the Company and the Banks thereof, and such notice shall be conclusive
and binding on all parties hereto.
Section 4.03. Borrowings by the Company. The obligation of any Bank to
make a Loan to the Company during the Revolving Credit Period (including any new
Loan to be made on the Company Closing Date) is subject to the satisfaction of
the following conditions:
(a) the Spin-Off shall have been consummated before the Spin-Off
Deadline;
(b) the Administrative Agent shall have received a Notice of
Borrowing as required by Section 3.02 or 3.03, as the case may be;
(c) immediately after such Borrowing, no Default shall have
occurred and be continuing; and
(d) the representations and warranties of the Company contained in
this Agreement (except those set forth in Section 5.12) shall be true on
and as of the date of such Borrowing.
Each Borrowing hereunder by the Company shall be deemed to be a representation
and warranty by the Company that the conditions specified in clauses (c) and (d)
of this Section are satisfied on the date of such Borrowing.
40
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
Section 5.01. Corporate Existence and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of New Jersey, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on the Vlasic
Foods Businesses as now conducted.
Section 5.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Company of this Agreement, the
Notes and the Spin-Off Agreements, and the assumption by the Company of
obligations of Xxxxxxxx as provided in Section 2.09, are within the corporate
powers of the Company, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any governmental
body, agency or official (except the filing of the Form 10) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any of its Subsidiaries or result in the creation or
imposition of any Lien on any asset of the Company or any of its Principal
Subsidiaries.
Section 5.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company, and each Note when executed and delivered by
the Company will constitute a valid and binding obligation of the Company, in
each case enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
Section 5.04. Financial Information. (a) The combined balance sheet of the
Company and its Subsidiaries as of August 3, 1997 and the related combined
statements of earnings, of cash flows and of shareowners' equity for the Fiscal
Year then ended, reported on by Price Waterhouse LLP and set forth in the
Information Statement, fairly present, in conformity with generally accepted
accounting principles, the combined financial position of the Vlasic Foods
Businesses as of such date and their combined results of operations and cash
flows for such Fiscal Year.
(b) The unaudited combined balance sheet of the Company and its
Subsidiaries as of November 2, 1997 and the related unaudited combined
statements of earnings, of cash flows and of shareowners' equity for the Fiscal
Quarter then ended, a copy of which has been delivered to each of the Banks,
fairly present, in conformity with
41
generally accepted accounting principles applied on a basis consistent with the
financial statements referred to in subsection (a) of this Section, the combined
financial position of the Vlasic Foods Businesses as of such date and their
combined results of operations and cash flows for such Fiscal Quarter (subject
to normal year-end adjustments).
(c) The pro forma condensed combined balance sheet of the Company and its
Subsidiaries as of November 2, 1997 and the pro forma condensed combined
statements of earnings of the Company and its Subsidiaries for the Fiscal Year
ended August 3, 1997 and the Fiscal Quarter ended November 2, 1997, all as set
forth in the Information Statement, as supplemented by a Memorandum to Banks
dated February 11, 1998 (collectively, the "Pro Forma Financial Statements")
fairly present, on a basis consistent with the financial statements referred to
in subsection (a) of this Section, the combined financial position of the Vlasic
Foods Businesses as of November 2, 1997 and their combined results of operations
for such Fiscal Year and Fiscal Quarter, in each case adjusted to give effect to
(i) the Spin-Off and the transactions contemplated thereby, (ii) the payment of
legal, accounting and other fees related thereto and (iii) the assumption by the
Company of obligations of Xxxxxxxx as provided in Section 2.09, all as if such
events had occurred (x) in the case of such condensed combined balance sheet, on
November 2, 1997 and (y) in the case of such condensed combined statements of
earnings, at the beginning of the Fiscal Year ended August 3, 1997.
(d) Excluding the effects of the Spin-Off as reflected in the Pro Forma
Financial Statements, there has been no material adverse change in the business,
financial position or results of operations of the Vlasic Foods Businesses,
considered as a whole, since November 2, 1997.
Section 5.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Company threatened against or affecting, the
Company or any of its Subsidiaries (or any prior owner of any of the Vlasic
Foods Businesses) before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could materially adversely affect (i) the business, combined
financial position or results of operations of the Vlasic Foods Businesses
considered as a whole, or (ii) the business, consolidated financial position or
consolidated results of operations of the Company and its Subsidiaries
considered as a whole, or which in any manner draws into question the validity
or enforceability of this Agreement, the Notes, or any of the Spin-Off
Agreements.
Section 5.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of
42
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan, which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
Section 5.07. Environmental Matters. In the ordinary course of their
businesses, the prior owners of the Vlasic Foods Businesses reviewed the effect
of Environmental Laws on the business, operations and properties of the Vlasic
Foods Businesses, and after the Spin-Off Date the Company will continue to
review the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries. In the course of such reviews,
such prior owners identified and evaluated, and the Company will identify and
evaluate, associated liabilities and costs (including, without limitation, any
capital or operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection with off-
site disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of these reviews, the Company has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the Vlasic
Foods Businesses, considered as a whole, or of the Company and its Subsidiaries,
considered as a whole.
Section 5.08. Taxes. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary. The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
Section 5.09. Subsidiaries. Each Subsidiary of the Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted. The Company owns, free and clear of
Liens, all outstanding shares of capital stock of its Subsidiaries and all such
shares are validly issued, fully paid and non-assessable.
43
Section 5.10. No Regulatory Restrictions on Borrowing. The Company is not
(i) an "investment company" within the meaning of the Investment Company Act of
1940, as amended, (ii) 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, or (iii) otherwise subject to any regulatory scheme which
restricts its ability to incur debt.
Section 5.11. Full Disclosure. All information heretofore furnished by
Xxxxxxxx or the Company to the Administrative Agent or any Bank for purposes of
or in connection with this Agreement or any transaction contemplated hereby does
not, and all such information hereafter furnished by the Company to the
Administrative Agent or any Bank will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were or will
be made, not misleading.
Section 5.12. Fair Value; Solvency. (a) The transfer of assets to the
Company and its Subsidiaries and the other transactions contemplated in
connection with the Spin-Off constitute direct economic benefit to the Company
at least equal to the obligations of Xxxxxxxx assumed by the Company pursuant to
Section 2.09 and the other consideration paid therefor.
(b) As of the Company Closing Date after giving effect to the transactions
contemplated hereby to occur on the Company Closing Date, including without
limitation assumption by the Company of obligations of Xxxxxxxx as provided in
Section 2.09: (i) the aggregate fair market value of the assets of the Company
will exceed its liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, (ii) the Company will have sufficient cash flow to
enable it to pay its debts as they mature and (iii) the Company will not have
unreasonably small capital for the business in which the Company and its
Subsidiaries are engaged.
ARTICLE 6
COVENANTS
The Company agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
Section 6.01. Information. The Company will deliver to the Administrative
Agent, with a copy for each of the Banks:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related
44
consolidated statements of earnings, of cash flows and of shareowners'
equity of the Company and its Consolidated Subsidiaries for such Fiscal
Year, reported on by independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries
as of the end of such Fiscal Quarter, the related consolidated statement of
earnings for such Fiscal Quarter and the related consolidated statements of
earnings and of cash flows for the portion of the Fiscal Year ended at the
end of such Fiscal Quarter;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) of this Section, a
certificate of the Company's chief financial officer or chief accounting
officer (i) setting forth in reasonable detail the calculations required to
establish (x) whether the Company was in compliance with the requirements
of Sections 6.08 to 6.13, inclusive, on the date of such financial
statements and (y) if the Ratio-Based Pricing Schedule attached hereto was
the Applicable Pricing Schedule on the date of such financial statements,
the Debt/EBITDA Ratio at the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(d) within five days after the chief financial officer, the treasurer
or the chief accounting officer of the Company obtains knowledge of any
Default, if such Default is then continuing, a certificate of the chief
financial officer, the treasurer or the chief accounting officer of the
Company setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareowners of the
Company generally, copies of all annual reports to shareowners and proxy
statements so mailed;
(f) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii)
45
receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy
of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or makes any amendment to
any Plan which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of the Company setting
forth details as to such occurrence and action, if any, which the Company
or applicable member of the ERISA Group is required or proposes to take;
and
(g) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
Section 6.02. Maintenance of Property; Insurance. (a) The Company will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted.
(b) The Company will, and will cause each Subsidiary to, either carry
insurance (either in the name of the Company or in such Subsidiary's own name)
with financially sound and responsible insurance companies to the extent
reasonably available or maintain self-insurance, on all their respective
properties and with respect to product liability, in each case against at least
such risks as (and subject to no greater risk retention than) are usually
insured against in the same general area by similarly sized companies of
established repute engaged in the same or a similar business; and will furnish
to the Banks, upon request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried or the self-insurance so
maintained.
Section 6.03. Conduct of Business and Maintenance of Existence. The
Company will preserve, renew and keep in full force and effect, and will cause
each Subsidiary to preserve, renew and keep in full force and effect, their
respective corporate existences and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section shall prevent any Subsidiary from merging into,
consolidating with, or transferring all or substantially all of its assets to,
the Company or another Subsidiary.
46
Section 6.04. Compliance with Laws. The Company will comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder), except (i) where the necessity of compliance therewith
is contested in good faith by appropriate proceedings and (ii) where the failure
to so comply could not reasonably be expected to have a material adverse effect
on the Company and its Consolidated Subsidiaries considered as a whole.
Section 6.05. Inspection of Property, Books and Records. The Company will
keep, and will cause each Subsidiary to keep, proper books of record and account
in which full and correct entries shall be made of all dealings and transactions
in relation to its business and activities. The Company will permit, and will
cause each Subsidiary to permit, representatives of any Bank at such Bank's
expense to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be requested; provided that, unless a Default shall
have occurred and be continuing, such Bank shall have given the Company's chief
financial officer or treasurer at least one Domestic Business Day's notice of
such visit, examination and/or discussion and a reasonable opportunity to
participate therein in person or through a designated representative.
Section 6.06. Use of Proceeds. The Company will use the proceeds of the
Loans (other than the Xxxxxxxx Loans) for general corporate purposes, including
acquisitions. None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any "margin stock" within the meaning of Regulation U.
Section 6.07. Mergers and Sales of Assets. (a) The Company will not
consolidate or merge with or into any other Person, sell, lease or otherwise
transfer, directly or indirectly, all or substantially all of its assets to any
other Person or (iii) sell, lease or otherwise transfer, directly or indirectly,
all or any substantial part of its assets to any other Person; provided that the
Company may merge with another Person if (x) the Company is the corporation
surviving such merger and (y) immediately after giving effect to such merger, no
Default shall have occurred and be continuing.
(b) No Subsidiary will (i) consolidate or merge with or into any other
Person or (ii) sell, lease or otherwise transfer, directly or indirectly, all or
any substantial part of the assets of the Company and its Subsidiaries, taken as
a whole, to any Person (other than the Company or another Subsidiary); provided
that a Subsidiary may consolidate or merge with another Person (x) if the entity
surviving such consolidation or merger is (A) the Company, (B) such Subsidiary
or (C) another Subsidiary or (y) if such Subsidiary
47
shall not constitute a substantial part of the assets of the Company and its
Subsidiaries, taken as a whole, and (z) in each case, immediately after giving
effect to such consolidation or merger, no Default shall have occurred and be
continuing.
(c) Notwithstanding the restrictions in subsections (a) and (b) of this
Section, nothing in this Section shall prohibit any Asset Securitization.
Section 6.08. Negative Pledge. Neither the Company nor any Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except:
(i) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $10,000,000;
(ii) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event;
(iii) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring, constructing
or improving such asset; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition, construction or
improvement thereof;
(iv) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Company or a Subsidiary
and not created in contemplation of such event;
(v) any Lien existing on any asset prior to the acquisition thereof
by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(vi) any Lien created for the direct or indirect benefit of the
purchasers or lenders in connection with any Asset Securitization;
(vii) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
provisions of this Section; provided that such Debt is not increased and is
not secured by any additional assets;
(viii) any lien arising in the ordinary course of its business which
(1) does not secure Debt and (2) does not secure any single obligation (or
class of obligations having a common cause) in an amount exceeding
$50,000,000;
48
(ix) any Lien in favor of the Company or any Lien created by a
Subsidiary in favor of another Subsidiary; and
(x) any other Lien; provided that the aggregate amount secured by
all Liens excluded pursuant to this clause (x) shall not exceed 6% of
Consolidated Tangible Assets.
Section 6.09. Subsidiary Debt Limitation. Total Debt of all Subsidiaries
(excluding Debt of a Subsidiary to the Company or to a wholly-owned Subsidiary
of the Company) will at no time exceed 8% of Consolidated Tangible Assets (or
the equivalent thereof in any other currency).
Section 6.10. Debt/EBITDA Ratio. At the end of each Fiscal Quarter ending
during each period set forth below, the Debt/EBITDA Ratio will not be higher
than the ratio set forth opposite such period below:
PERIOD RATIO
------ -----
End of first three Fiscal Quarters of Fiscal 1998 4.50 to 1
End of fourth Fiscal Quarter of Fiscal 1998 through end of third 4.25 to 1
Fiscal Quarter of Fiscal 1999
End of fourth Fiscal Quarter of Fiscal 1999 and thereafter 3.75 to 1
Section 6.11. Fixed Charge Coverage Ratio. At the end of each Fiscal
Quarter, the Fixed Charge Coverage Ratio will not be lower than 3.00 to 1.
Section 6.12. Restricted Payments. Neither the Company nor any Subsidiary
will declare or make any Restricted Payment unless, immediately after giving
effect thereto, (i) no Default would exist and (ii) the aggregate of all
Restricted Payments declared or made after August 3, 1997 does not exceed the
sum of (x) $100,000,000 plus (y) 50% of the consolidated net income (or minus
100% of the consolidated net loss) of the Company and its Consolidated
Subsidiaries for the period from August 3, 1997 through the end of the then most
recent Fiscal Quarter (treated for this purpose as a single accounting period);
provided that, for any portion of such period before the Spin-Off Date, such
consolidated net income or consolidated net loss shall be determined on a
Combined Basis.
Section 6.13. Investments. Neither the Company nor any Subsidiary will
hold, make or acquire any Investment in any Person other than:
49
(a) any Investment in a Person which is a Subsidiary immediately
after such Investment is made;
(b) Temporary Cash Investments;
(c) any debt obligation constituting all or part of the consideration
received for assets sold by the Company or any Subsidiary if, immediately
after such debt obligation is acquired, the aggregate outstanding principal
amount of all debt obligations held by the Company and its Subsidiaries as
permitted by this clause (c) does not exceed $20,000,000;
(d) any Investment in a Person which is not a Subsidiary immediately
after such Investment is made if, immediately after such Investment is
made, the aggregate unrecovered amount of all Investments permitted by this
clause (d), does not exceed $50,000,000;
(e) any Investment in a trust or other entity created for purposes of
any Asset Securitization; and
(f) Investments not otherwise permitted by the foregoing clauses of
this Section if, immediately after each such Investment is made or
acquired, the aggregate book value of all Investments permitted by this
clause (f) does not exceed $10,000,000.
Section 6.14. Transactions with Affiliates. Except for the assumption of
obligations of Xxxxxxxx as provided in Section 2.09, the Company will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of any Affiliate, make any investment in any Affiliate (whether
by acquisition of stock or indebtedness, by loan, advance, transfer of property,
guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise), lease, sell, transfer or otherwise dispose
of any assets, tangible or intangible, to any Affiliate, or participate in, or
effect any transaction with any Affiliate, except in each case on an arms-length
basis on terms at least as favorable to the Company or such Subsidiary as could
have been obtained from a third party that was not an Affiliate; provided that
the foregoing provisions of this Section shall not prohibit any such Person from
declaring or paying any lawful dividend or other payment ratably in respect of
all its capital stock of the relevant class so long as, after giving effect
thereto, no Default shall have occurred and be continuing.
50
ARTICLE
DEFAULTS
Section 7.01. Events of Default. If one or more of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) the Company shall fail to pay when due any principal of any Loan
or fail to pay, within 5 days after the date when due, any interest on any
Loan or any fee or other amount payable hereunder;
(b) the Company shall fail to observe or perform any covenant
contained in Section 6.01(d) or Sections 6.07 to 6.12, inclusive;
(c) the Company shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after notice thereof has been given to the
Company by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Company or Xxxxxxxx in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or deemed
made pursuant to the last sentence of Section 4.03);
(e) the Company or any Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(f) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be
51
entered against the Company or any Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
(g) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $30,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $30,000,000;
(h) a judgment or order for the payment of money in excess of
$30,000,000 shall be rendered against the Company or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a period
of 30 days;
(i) any event or condition shall occur which results in the
acceleration of the maturity of Material Debt or enables or, with the
giving of notice or lapse of time or both, would enable, the holders of
Material Debt or any Person acting on their behalf to accelerate the
maturity thereof; or
(j) after the Spin-Off, (i) any person or group of persons (within
the meaning of Section 13 or 14 of the Exchange Act), other than a
Designated Affiliate, shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the SEC under said Act) of 25% or more
of the outstanding shares of common stock of the Company, (ii) the
Designated Affiliates, collectively, shall have beneficial ownership
(within the meaning of said Rule 13d-3) of 49% or more of the outstanding
shares of common stock of the Company or (iii) Continuing Directors shall
cease to constitute a majority of the Company's board of directors;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Company terminate the Commitments and they shall thereupon terminate, and
(ii) if requested by Banks holding more than 50% of the aggregate principal
amount of the Loans, by notice to the Company declare the Loans (together with
accrued interest
52
thereon) to be, and the Loans shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Company; provided that (x) if any such notice is
given before the Company Closing Date, a copy thereof shall be given to Xxxxxxxx
and (y) if any Event of Default specified in clause (e) or (f) above occurs with
respect to the Company, then without any notice to the Company or Xxxxxxxx or
any other act by the Administrative Agent or the Banks, the Commitments shall
thereupon terminate and the Loans (together with accrued interest thereon) shall
become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company and Xxxxxxxx.
Section 7.02 Notice of Default. The Administrative Agent shall give
notice to the Company under Section 7.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 8
THE ADMINISTRATIVE AGENT
Section 8.01 Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers under this
Agreement, the Notes and the Xxxxxxxx Global Note as are delegated to the
Administrative Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
Section 8.02 Administrative Agent and Affiliates. Xxxxxx Guaranty Trust
Company of New York shall 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 the Administrative Agent, and Xxxxxx Guaranty Trust Company of New
York and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or Xxxxxxxx or any Subsidiary or
affiliate of the Company or Xxxxxxxx as if it were not the Administrative Agent.
Section 8.03 Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article 7.
Section 8.04 Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for the Company or Xxxxxxxx),
independent public accountants and other experts selected by it and shall not be
liable
53
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 8.05 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees 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. Neither the Administrative Agent nor any of its affiliates nor any
of their respective directors, officers, agents or employees 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; (ii) the performance or observance of any of the
covenants or agreements of the Company or Xxxxxxxx; (iii) the satisfaction of
any condition specified in Article 4, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes, the Xxxxxxxx Global Note or any other
instrument or writing furnished in connection herewith. The Administrative Agent
shall not 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. Without limiting the generality of the
foregoing, the use of the term "AGENT" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
Section 8.06 Indemnification. The Banks shall, ratably in accordance with
their respective Credit Exposures, indemnify the Administrative Agent, the
Syndication Agent, their respective affiliates and the directors, officers,
agents and employees of the foregoing (to the extent not reimbursed by the
Company) 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 this Agreement or any action taken or omitted
by such indemnitees hereunder.
Section 8.07 Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Syndication Agent, the
Administrative 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 Syndication Agent, the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time,
54
continue to make its own credit decisions in taking or not taking any action
under this Agreement.
Section 8.08 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Banks and the Company. Upon
any such resignation, the Required Banks shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives notice
of resignation, then the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States 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 Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, 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.
Section 8.09 Administrative Agent's Fees. The Company shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Company and the Administrative Agent.
Section 8.10 Syndication Agent. Nothing in this Agreement shall impose
upon the Syndication Agent, in its capacity as such, any duty or responsibility
whatsoever.
ARTICLE 9
CHANGE IN CIRCUMSTANCES
Section 9.01 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
55
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 Company and
the Banks, whereupon until the Administrative Agent notifies the Company 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 Company 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 9.02 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 Company,
whereupon until such Bank notifies the Company 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 (a) 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 (b) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day.
56
Section 9.03 Increased Cost and Reduced Return. 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 included in an applicable Euro-Dollar Reserve Percentage),
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 Notes 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 Notes 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
Company 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 Company shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
57
(c) Each Bank will promptly notify the Company 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 and 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 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 may use any
reasonable averaging and attribution methods.
Section 9.04 Taxes. For the purposes of this Section 9.04, 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 the Company
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Bank and the Administrative 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 the Administrative 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 up to the rate (if any) at which United
States withholding tax would apply to such payments to such Bank 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 this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Company 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 the Company 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) such Bank or the Administrative 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 Company shall make such deductions, (iii) the
Company shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law and (iv) the Company
58
shall furnish to the Administrative Agent, at its address referred to in Section
10.01, the original or a certified copy of a receipt evidencing payment thereof.
(c) The Company (or Xxxxxxxx, to the extent provided in Section 2.06)
agrees to indemnify each Bank and the Administrative 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)
paid by such Bank or the Administrative 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 the Administrative 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 Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company and the Administrative Agent 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
Company or the Administrative Agent with the appropriate form pursuant to
Section 9.04(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 9.04(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 Company shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Company is required to pay additional amounts to or for the
account of any Bank pursuant to this Section, then such Bank will change the
jurisdiction of its Applicable Lending Office if, in the judgment of such Bank,
such change (i) will eliminate or reduce any such additional payment which may
thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
59
Section 9.05 Base Rate Loans Substituted for Affected Fixed Rate. If the
obligation of any Bank to make, or convert outstanding Loans to, Euro-Dollar
Loans has been suspended pursuant to Section 9.02 or any Bank has demanded
compensation under Section 9.03 or 9.04 with respect to its CD Loans or Euro-
Dollar Loans and the Company 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 Company that the circumstances giving rise to such
suspension or demand for compensation no longer exist, 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). If such Bank notifies the Company 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.
ARTICLE 10
MISCELLANEOUS
Section 10.01 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: (x) in the
case of the Company, Xxxxxxxx or the Administrative Agent, at its address,
facsimile number or telex number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address, facsimile number or telex number set forth
in its Administrative Questionnaire, (z) or in the case of any party, at 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 Company.
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, Article 3 or Article 9 shall not be
effective until received.
Section 10.02 No Waivers. No failure or delay by the Administrative Agent
or any Bank in exercising any right, power or privilege hereunder or under any
Note or the
60
Xxxxxxxx Global 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 10.03 Expenses; Indemnification. The Company shall pay all
reasonable out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Administrative
Agent, 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 if an Event of Default occurs, all out-of-pocket
expenses incurred by the Administrative Agent and each Bank, including (without
duplication) the fees and disbursements of outside counsel and the allocated
cost of inside counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Company (or Xxxxxxxx, to the extent provided in Section 2.06)
agrees to indemnify the Administrative 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, settlement costs and the reasonable fees
and disbursements of counsel, 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 the Commitments
hereunder or any actual or proposed use of proceeds of the Loans; 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 10.04 Sharing of Set-offs. 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 Loan 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 Loan held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
relevant Loans held by the other Banks, and such other adjustments shall be
made, as may be required so that all such payments of principal and interest
with respect to the Loans 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 Company or
Xxxxxxxx, as applicable, other than its indebtedness hereunder. Each of the
Company and Xxxxxxxx
61
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Loan, 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 Company or Xxxxxxxx, as
applicable, in the amount of such participation.
Section 10.05 Amendments and Waivers. Any provision of this Agreement, the
Notes or the Xxxxxxxx Global Note may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company and the Required
Banks (and, if the rights or duties of the Administrative Agent or Xxxxxxxx are
affected thereby, by the Administrative Agent or Xxxxxxxx, as the case may be);
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 the termination of any
Commitment, (iv) change the percentage of the Credit Exposures or of the
aggregate unpaid principal amount of Loans 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 or (v) change any of the provisions
contained in Section 10.04, 10.05 or 10.06(a).
Section 10.06 Successors and Assigns. 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 neither Xxxxxxxx nor the Company
may assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all the 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
Company and the Administrative Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Company 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 Company and Xxxxxxxx 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 10.05 without the consent of
the Participant. Each of the Company and Xxxxxxxx agrees that each Participant
shall, to the extent
62
provided in its participation agreement, be entitled to the benefits of Article
9 and Sections 3.13 and 3.15 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) of all, of its rights and
obligations under this Agreement and its Note, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit H hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Company
(which consent shall not unreasonably be withheld); provided that no such
consent shall be required (i) if the Assignee is an affiliate of such transferor
Bank and its credit is comparable to or better than the credit of such
transferor Bank or (ii) an Event of Default has occurred and is continuing; 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 Company shall make appropriate arrangements so that a new Note is issued
to the Assignee, if required to evidence the Loans (or portions thereof)
assigned to and/or made by 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 or a state thereof, it shall
deliver to the Company and the Administrative Agent certification as to
exemption from deduction or withholding of United States federal income taxes in
accordance with Section 9.04.
(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 9.03 or 9.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 9.02, 9.03 or 9.04 requiring
such Bank to designate a different Lending Office under
63
certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
Section 10.07 No Reliance on Margin Stock. Each of the Banks represents to
the Administrative Agent 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 10.08 Governing Law; Submission to Jurisdiction. This Agreement,
each Note and the Xxxxxxxx Global Note shall be governed by and construed in
accordance with the laws of the State of New York. Each of the Company and
Xxxxxxxx hereby submits 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 this Agreement or the transactions contemplated hereby. Each
of the Company and Xxxxxxxx irrevocably waives, to the fullest extent permitted
by law, any objection which it 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 10.09 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 the Company, Xxxxxxxx, the Banks, the Syndication
Agent and the Administrative Agent (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 10.10 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
64
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.
VLASIC FOODS INTERNATIONAL INC.
By: _________________________________________
Name:
Title:
Address: Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: ______________________________
XXXXXXXX SOUP COMPANY
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
Address: Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: _________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: _________________________________________
Name:
Title:
BANK OF AMERICA NT&SA
By: _________________________________________
Name:
Title:
BANK OF MONTREAL
By: _________________________________________
Name:
Title:
BARCLAYS BANK PLC
By: _________________________________________
Name:
Title:
CITIBANK, N.A.
By: _________________________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK and/or
CAYMAN ISLANDS BRANCHES
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: _________________________________________
Name:
Title:
WACHOVIA BANK, N.A.
By: _________________________________________
Name:
Title:
THE BANK OF NEW YORK
By: _________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________________________
Name:
Title:
CORESTATES BANK, N.A.
By: _________________________________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.p.A.-
NEW YORK BRANCH
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By: _________________________________________
Name:
Title:
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telex: 177615
Facsimile: (000) 000-0000
THE CHASE MANHATTAN BANK, as
Syndication Agent
By: _________________________________________
Name:
Title:
COMMITMENT SCHEDULE
BANK COMMITMENT
---- ----------
Xxxxxx Guaranty Trust Company of New York $70,000,000
The Chase Manhattan Bank $70,000,000
Bank of America NT&SA $46,000,000
Bank of Montreal $46,000,000
Barclays Bank PLC $46,000,000
Citibank, N.A. $46,000,000
Deutsche Bank AG New York and/or
Cayman Islands Branches $46,000,000
The First National Bank of Chicago $46,000,000
Fleet National Bank $46,000,000
Mellon Bank, N.A. $46,000,000
PNC Bank, National Association $46,000,000
Wachovia Bank, N.A. $46,000,000
The Bank of New York $35,000,000
The Bank of Nova Scotia $25,000,000
CoreStates Bank, N.A. $25,000,000
SunTrust Bank, Atlanta $25,000,000
Westdeutsche Landesbank Girozentrale
New York Branch $25,000,000
Banca Nazionale del Lavoro S.p.A.-
New York Branch $15,000,000
------------
Total $750,000,000
RATIO-BASED PRICING SCHEDULE
Each of "FACILITY FEE RATE", "EURO-DOLLAR MARGIN" and "CD MARGIN" means (i)
for any day on or before January 31, 1999, the rate per annum set forth below in
the applicable row opposite such term and in the column for Level III Pricing
and (ii) for any day after January 31, 1999, the rate per annum set forth below
in the applicable row opposite such term and in the column corresponding to the
"Pricing Level" that applies for such day:
-------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
-------------------------------------------------------------------------------------------------------
Facility Fee Rate 0.085% 0.100% 0.125% 0.150% 0.250%
-------------------------------------------------------------------------------------------------------
Euro-Dollar Margin
If Utilization is 33% 0.200% 0.200% 0.200% 0.350% 0.625%
If Utilization is Greater than 33% 0.250% 0.250% 0.250% 0.400% 0.675%
-------------------------------------------------------------------------------------------------------
CD Margin
If Utilization is 33% 0.325% 0.325% 0.325% 0.475% 0.750%
If Utilization is Greater than 33% 0.375% 0.375% 0.375% 0.525% 0.800%
-------------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings.
"APPLICABLE DEBT/EBITDA RATIO" means, on any day, the Debt/EBITDA Ratio at
the end of the most recently ended Fiscal Quarter for which the Company has
delivered financial statements pursuant to Section 6.01(a) or 6.01(b); provided
that, if a Default exists under Section 6.01(a), 6.01(b) or 6.01(c) on such day,
the Applicable Debt/EBITDA Ratio for such day shall be deemed to be greater than
3.0 to 1.
"LEVEL I PRICING" applies for any day if, on such day, the Applicable
Debt/EBITDA Ratio is less than 1.5 to 1.
"LEVEL II PRICING" applies for any day if, on such day, the Applicable
Debt/EBITDA Ratio is greater than or equal to 1.5 to 1 but less than 2.0 to 1.
"LEVEL III PRICING" applies for any day if, on such day, the Applicable
Debt/EBITDA Ratio is greater than or equal to 2.0 to 1 but less than 2.5 to 1.
"LEVEL IV PRICING" applies for any day if, on such day, the Applicable
Debt/EBITDA Ratio is greater than or equal to 2.5 to 1 but less than 3.0 to 1.
"LEVEL V PRICING" applies for any day if, on such day, no other Pricing
Level applies.
"PRICING LEVEL" refers to the determination of which of Xxxxx X, Xxxxx XX,
Xxxxx XXX, Xxxxx XX or Level V Pricing applies for any day.
"UTILIZATION" means, for any day, the percentage which the aggregate
outstanding principal amount of the Loans represents of the aggregate amount of
the Commitments at the close of business on such day.
2
RATINGS-BASED PRICING SCHEDULE
Each of "FACILITY FEE RATE", "EURO-DOLLAR MARGIN" and "CD MARGIN" means,
for any day, the rate per annum set forth below in the applicable row opposite
such term and in the column corresponding to the "Pricing Level" that applies
for such day:
-----------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
-----------------------------------------------------------------------------------------------------
Facility Fee Rate 0.085% 0.100% 0.125% 0.150% 0.250%
-----------------------------------------------------------------------------------------------------
Euro-Dollar Margin
If Utilization is Less than or equal to 33% 0.200% 0.200% 0.200% 0.350% 0.625%
If Utilization is Greater than 33% 0.250% 0.250% 0.250% 0.400% 0.675%
-----------------------------------------------------------------------------------------------------
CD Margin
If Utilization is Less than or equal to 33% 0.325% 0.325% 0.325% 0.475% 0.750%
If Utilization is Greater than 33% 0.375% 0.375% 0.375% 0.525% 0.800%
-----------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings, subject to the concluding paragraphs of this Schedule:
"LEVEL I PRICING" applies for any day if, on such day, the Company's long-
term debt is rated A- or higher by S&P or A3 or higher by Xxxxx'x.
"LEVEL II PRICING" applies for any day if, on such day, (i) the Company's
long-term debt is rated BBB+ or higher by S&P or Baa1 or higher by Xxxxx'x and
(ii) Level I Pricing does not apply.
"LEVEL III PRICING" applies for any day if, on such day, (i) the Company's
long-term debt is rated BBB or higher by S&P or Baa2 or higher by Xxxxx'x and
(ii) neither Level I Pricing nor Level II Pricing applies.
"LEVEL IV PRICING" applies for any day if, on such day, (i) the Company's
long-term debt is rated BBB- or higher by S&P or Baa3 or higher by Xxxxx'x and
(ii) none of Level I Pricing, Level II Pricing and Level III Pricing applies.
"LEVEL V PRICING" applies for any day if, on such day, no other Pricing
Level applies.
"PRICING LEVEL" refers to the determination of which of Xxxxx X, Xxxxx XX,
Xxxxx XXX, Xxxxx XX or Level V Pricing applies for any day.
"UTILIZATION" means, for any day, the percentage which the aggregate
outstanding principal amount of the Loans represents of the aggregate amount of
the Commitments at the close of business on such day.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect on any
day is that in effect at the close of business on such day.
Split ratings shall be treated as follows:
(i) If the Company is split-rated and the ratings differential is one
level, the higher of the two ratings will apply (e.g., A-/Baa1 results in Level
I Pricing and BBB+/Baa2 results in Level II Pricing).
(ii) If the Company is split-rated and the ratings differential is more
than one level, the midpoint of the two ratings (or, if there is no midpoint,
the higher of two intermediate ratings) shall be used (e.g., A-/Baa2 results in
Level II Pricing and A-/Baa3 results in Level II Pricing).
2
SCHEDULE I
LIST OF SPIN-OFF AGREEMENTS
Distribution Agreement between Xxxxxxxx and the Company
Benefits Sharing Agreement between Xxxxxxxx and the Company
Tax Sharing and Indemnification Agreement between Xxxxxxxx and the
Company
Trademark License Agreements between Xxxxxxxx and the Company
Technology Sharing Agreement between Xxxxxxxx and the Company
Transition Services Agreement between Xxxxxxxx and the Company
Supply Agreements between Xxxxxxxx and the Company
Contract Manufacturing ("Co-Pack") Agreements between Xxxxxxxx and
the Company
EXHIBIT A- Note
FORM OF NOTE
New York, New York
___________ __, 199_
For value received, VLASIC FOODS INTERNATIONAL INC., a New Jersey
corporation (the "Company"), promises to pay to the order of
______________________ (the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of (i) the Loan (if any) made by the Bank to
Xxxxxxxx Soup Company on the Xxxxxxxx Closing Date and assumed by the Company on
the Company Closing Date and (ii) each Loan made by the Bank to the Company
after the Company Closing Date, in each case pursuant to the Credit Agreement
referred to below, on the maturity date provided for in the Credit Agreement,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company. The Company 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 Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans evidenced hereby, the respective types 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 (or any error in making) any such
recordation or endorsement shall not affect the obligations of the Company
hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement dated as
of February 20, 1998 among the Company, Xxxxxxxx Soup Company, the Banks party
thereto, The Chase Manhattan Bank, as Syndication Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative 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. The Bank is entitled to the
benefits of the Credit Agreement and reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
VLASIC FOODS INTERNATIONAL INC.
By:____________________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of Type of Amount of Maturity Notation
Date Loan Loan Principal Repaid Date Made By
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2
EXHIBIT B - Money Market Quote Request
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "ADMINISTRATIVE AGENT")
From: VLASIC FOODS INTERNATIONAL INC.
Re: Credit Agreement (the "CREDIT AGREEMENT") dated as of February 20, 1998
among Vlasic Foods International Inc., Xxxxxxxx Soup Company, the Banks
party thereto, The Chase Manhattan Bank, as Syndication Agent, and the
Administrative Agent.
We hereby give notice pursuant to Section 3.03 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.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
VLASIC FOODS INTERNATIONAL INC.
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 30 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
EXHIBIT C - Invitation for Money Market Quotes
FORM OF INVITATION FOR MONEY MARKET QUOTES
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Vlasic Foods International Inc.
(the "COMPANY")
Pursuant to Section 3.03 of the Credit Agreement dated as of February 20,
1998 among the Company, Xxxxxxxx Soup Company, the Banks party thereto, The
Chase Manhattan Bank, as Syndication Agent, and the undersigned, as
Administrative Agent, we are pleased on behalf of the Company to invite you to
submit Money Market Quotes to the Company 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.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30 A.M.]
(New York City time) on [date].
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By___________________________
Authorized Officer
____________________
/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 30 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
EXHIBIT D - Money Market Quote
FORM OF MONEY MARKET QUOTE
--------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
From: [Name of Bank]
Re: Money Market Quote to Vlasic Foods International Inc. (the "Company")
In response to your invitation on behalf of the Company 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:
[Money Market
Principal Amount/2/ Interest Period/3/ Margin/4/] [Absolute Rate/5/]
------------------- ------------------ ------------ ------------------
$
$
[provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $____________.]/2/
____________________________
/1/ As specified in the related Invitation.
/2/ Principal amount bid for each Interest Period may not exceed
principal amount required. 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 30 days, as specified in
the related 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
1/10,000th of 1%) and specify whether "PLUS" or "MINUS".
/5/ Specify rate of interest per annum (to the nearest 1/10,000th of
1%).
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of February 20, 1998 among the Company, Xxxxxxxx Soup Company, the
Banks party thereto, The Chase Manhattan Bank, as Syndication 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
2
EXHIBIT E - Opinion of Counsel for Xxxxxxxx
OPINION OF COUNSEL FOR XXXXXXXX
-------------------------------
________________, 199_
To the Banks, the Syndication Agent
and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I have advised Xxxxxxxx Soup Company ("Xxxxxxxx") in connection with the
Credit Agreement (the "Credit Agreement") dated as of February 20, 1998 among
Vlasic Foods International Inc., Xxxxxxxx, the banks party thereto (the
"Banks"), The Chase Manhattan Bank, as Syndication Agent, and Xxxxxx Guaranty
Trust Company of New York, as Administrative Agent. Terms defined in the Credit
Agreement are used herein as therein defined. This opinion is being rendered to
you pursuant to Section 4.01(c) of the Credit Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. Xxxxxxxx is a corporation duly incorporated, validly existing and in
good standing under the laws of New Jersey and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
2. The consummation of the Spin-Off and the execution, delivery and
performance by Xxxxxxxx of the Spin-Off Agreements, the Credit Agreement and the
Xxxxxxxx Global Note are within the corporate powers of Xxxxxxxx, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or
filing with, any governmental body, agency or official (except the filing of the
Form 10) and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of Xxxxxxxx or of any agreement, judgment, injunction, order, decree or other
instrument binding upon Xxxxxxxx or any of its Subsidiaries or result in the
creation or imposition of any Lien on any asset of Xxxxxxxx or any of its
Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
Xxxxxxxx, the Xxxxxxxx Global Note constitutes a valid and binding obligation of
Xxxxxxxx, and the Spin-Off Agreements when executed and delivered by the Company
and Xxxxxxxx will constitute valid and binding agreements of Xxxxxxxx, in each
case enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and by general principles of equity.
Very truly yours,
2
EXHIBIT F - Opinion of Counsel for the Company
OPINION OF COUNSEL FOR THE COMPANY
----------------------------------
________________, 199_
To the Banks, the Syndication Agent
and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
I have advised Vlasic Foods International Inc. (the "Company") in
connection with the Credit Agreement (the "Credit Agreement") dated as of
February 20, 1998 among the Company, Xxxxxxxx Soup Company, the banks party
thereto (the "Banks"), The Chase Manhattan Bank, as Syndication Agent, and
Xxxxxx Guaranty Trust Company of New York, as Administrative Agent. Terms
defined in the Credit Agreement are used herein as therein defined. This opinion
is being rendered to you pursuant to Section 4.02(c) of the Credit Agreement.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of New Jersey and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Company of the Credit
Agreement, the Notes and the Spin-Off Agreements and the assumption by the
Company
of obligations of Xxxxxxxx under the Credit Agreement as provided in Section
2.09 thereof, are within the corporate powers of the Company, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the Company or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Company or any of its Subsidiaries or result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of the
Company and each Note when executed and delivered in accordance with the Credit
Agreement will constitute a valid and binding obligation of the Company, in each
case enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and by general principles of equity.
4. There is no action, suit or proceeding pending against, or to the best
of my knowledge threatened against or affecting, the Company or any of its
Subsidiaries (or any prior owner of any of the Vlasic Foods Businesses) before
any court or arbitrator or any governmental body, agency or official, in which
there is a reasonable possibility of an adverse decision which could materially
adversely affect (i) the business, combined financial position or combined
results of operations of the Vlasic Foods Businesses, considered as a whole, or
(ii) the business, consolidated financial position or consolidated results of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole, or which in any manner draws into question the validity or enforceability
of the Credit Agreement, the Notes or any of the Spin-Off Agreements.
Very truly yours,
2
EXHIBIT G-1 - Opinion of Special Counsel for the Administrative Agent
OPINION OF
XXXXX XXXX & XXXXXXXX,
SPECIAL COUNSEL FOR THE ADMINISTRATIVE AGENT
ON THE XXXXXXXX CLOSING DATE
________________, 199_
To the Banks, the Syndication Agent
and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of February 20, 1998 among Vlasic Foods
International Inc., a New Jersey corporation (the "Company"), Xxxxxxxx Soup
Company, a New Jersey corporation, the Banks party thereto (the "Banks"), The
Chase Manhattan Bank, as Syndication Agent, and Xxxxxx Guaranty Trust Company of
New York, as Administrative Agent (the "Administrative Agent"), and have acted
as special counsel for the Administrative Agent for the purpose of rendering
this opinion pursuant to Section 4.01(d) 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:
1. The execution, delivery and performance by Xxxxxxxx of the Credit
Agreement and the Xxxxxxxx Global Note are within its corporate powers and have
been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
Xxxxxxxx and the Xxxxxxxx Global Note constitutes a valid and binding obligation
of Xxxxxxxx, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally 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 and the federal laws of
the United States. 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.
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,
2
EXHIBIT G-2 - Opinion of Special Counsel for the Administrative Agent
OPINION OF
XXXXX XXXX & XXXXXXXX,
SPECIAL COUNSEL FOR THE ADMINISTRATIVE AGENT
ON THE COMPANY CLOSING DATE
________________, 199_
To the Banks, the Syndication Agent
and the Administrative Agent
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of February 20, 1998 among Vlasic Foods
International Inc., a New Jersey corporation (the "Company"), Xxxxxxxx Soup
Company, a New Jersey corporation, the Banks party thereto (the "Banks"), The
Chase Manhattan Bank, as Syndication Agent, and Xxxxxx Guaranty Trust Company of
New York, as Administrative Agent (the "Administrative Agent"), and have acted
as special counsel for the Administrative Agent for the purpose of rendering
this opinion pursuant to Section 4.02(d) 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:
1. The execution, delivery and performance by the Company of the Credit
Agreement and the Notes are within its corporate powers and have been duly
authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of the
Company and each Note when executed and delivered by the Company in accordance
with the Credit Agreement will constitute a valid and binding obligation of the
Company, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally 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 and the federal laws of
the United States. 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.
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,
2
EXHIBIT H - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [NAME OF ASSIGNOR] (the
"Assignor") and [NAME OF ASSIGNEE] (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Credit Agreement dated as of February 20, 1998 among Vlasic Foods
International Inc. (the "Company"), Xxxxxxxx Soup Company ("Xxxxxxxx"), the
Assignor and the other Banks party thereto, as Banks, The Chase Manhattan Bank,
as Syndication Agent, and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (as the same may be amended from time to time, the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made 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 each 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
-----------
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 each of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor and the Assignee 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 the amount heretofore agreed between them./1/ It is
understood that facility fees 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 Company. This Agreement is conditioned upon
----------------------
the consent of the Company pursuant to Section 10.06(c) of the Credit Agreement.
The execution of this Agreement by the Company is evidence of its consent.
Pursuant to Section 10.06(c), the Company agrees to execute and deliver a Note
payable to the order of the Assignee, if required to evidence the Loans (or
portions thereof) assigned to and/or made by the Assignee.]
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 Company [or
Xxxxxxxx], or the validity and enforceability of the obligations of the Company
[or Xxxxxxxx] in respect of the Credit Agreement[, the Xxxxxxxx Global Note] or
any Note. The Assignee acknowledges that it has, independently and without
reliance on the Assignor, 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
____________________________
/1/ Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or by
formula rather than as a fixed sum.
2
making its own independent appraisal of the business, affairs and financial
condition of the Company [and Xxxxxxxx].
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.
[NAME OF ASSIGNOR]
By: __________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By: __________________________________
Name:
Title:
[The undersigned consents to the foregoing assignment.
VLASIC FOODS INTERNATIONAL INC.
By: __________________________________
Name:
Title: ]
3
EXHIBIT I - Note
FORM OF XXXXXXXX GLOBAL NOTE
New York, New York
_______ __, 1998
For value received, XXXXXXXX SOUP COMPANY, a New Jersey corporation
("Xxxxxxxx"), promises to pay to the order of XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent (the "Administrative Agent"), for the account
of the Banks party to the Credit Agreement referred to below, the principal
amount of ___________________________________________ ($____________) on the
maturity date provided for in the Credit Agreement, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Xxxxxxxx.
Xxxxxxxx promises to pay interest on such principal amount on the date and at
the rate provided for in the Credit Agreement. 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 Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
This Note is the Xxxxxxxx Global Note referred to in the Credit Agreement
dated as of February 20, 1998 among Vlasic Foods International Inc., Xxxxxxxx,
the Banks party thereto, The Chase Manhattan Bank, as Syndication Agent, and
Xxxxxx Guaranty Trust Company of New York, as Administrative 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. The Administrative
Agent and the Banks are entitled to the benefits of the Credit Agreement and
reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
XXXXXXXX SOUP COMPANY
By: ________________________________
Name:
Title:
