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EXECUTION COPY
EXHIBIT 10.6
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
SEPTEMBER 30, 1998
among
VLASIC FOODS INTERNATIONAL INC.
THE BANKS PARTY HERETO
THE CHASE MANHATTAN BANK,
AS SYNDICATION AGENT
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
Arranged by
X.X. XXXXXX SECURITIES INC.
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TABLE OF CONTENTS
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SECTION 1.01. Definitions....................................................1
SECTION 1.02. Accounting Terms and Determinations...........................28
SECTION 1.03. Types of Borrowings...........................................29
ARTICLE 2
LOANS
SECTION 2.01. Commitments to Lend...........................................29
SECTION 2.02. Notice of Committed Borrowing.................................30
SECTION 2.03. Money Market Borrowings.......................................31
SECTION 2.04. Notice to Banks; Funding of Loans.............................35
SECTION 2.05. Notes.........................................................36
SECTION 2.06. Maturity of Loans.............................................36
SECTION 2.07. Interest Rates................................................36
SECTION 2.08. Fees..........................................................40
SECTION 2.09. Optional Termination or Reduction of Commitments..............41
SECTION 2.10. Method of Electing Interest Rates.............................41
SECTION 2.11. Optional Prepayments..........................................43
SECTION 2.12. Mandatory Prepayments.........................................44
SECTION 2.13. General Provisions as to Payments.............................45
SECTION 2.14. Funding Losses................................................46
SECTION 2.15. Computation of Interest and Fees..............................46
SECTION 2.16. Regulation D Compensation.....................................47
SECTION 2.17. Asset Securitization..........................................47
SECTION 2.18. Release of Security Interests in Assets Being Sold............47
SECTION 2.19. Release of Security Interests on Security Release Date........48
SECTION 2.20. Additional Guaranteed Obligations and Additional
Company Secured Obligations......................................48
ARTICLE 3
CONDITIONS
SECTION 3.01. Conditions to Effectiveness...................................49
SECTION 3.02. Consequences of Effectiveness.................................51
SECTION 3.03. Conditions to Borrowings......................................51
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power.................................52
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SECTION 4.02. Corporate and Governmental Authorization; No
Contravention....................................................52
SECTION 4.03. Binding Effect................................................52
SECTION 4.04. Security Interests............................................52
SECTION 4.05. Financial Information.........................................52
SECTION 4.06. Litigation....................................................53
SECTION 4.07. Compliance with ERISA.........................................53
SECTION 4.08. Environmental Matters.........................................54
SECTION 4.09. Taxes.........................................................54
SECTION 4.10. Subsidiaries..................................................54
SECTION 4.11. No Regulatory Restrictions on Borrowing.......................54
SECTION 4.12. Full Disclosure...............................................55
SECTION 4.13. Information as to Equity Interests and Instruments Owned
by the Vlasic Companies..........................................55
SECTION 4.14. Year 2000 Compliance..........................................55
ARTICLE 5
COVENANTS
SECTION 5.01. Information...................................................56
SECTION 5.02. Maintenance of Property; Insurance............................59
SECTION 5.03. Conduct of Business and Maintenance of Existence..............60
SECTION 5.04. Compliance with Laws..........................................60
SECTION 5.05. Inspection of Property, Books and Records.....................60
SECTION 5.06. Use of Proceeds...............................................61
SECTION 5.07. Guarantees by Future Domestic Subsidiaries....................61
SECTION 5.08. Future Assets to Be Added to Collateral.......................61
SECTION 5.09. Mergers and Sales of Assets...................................62
SECTION 5.10. Negative Pledge...............................................63
SECTION 5.11. Limitation on Indebtedness....................................64
SECTION 5.12. Subsidiary Debt Limitation....................................65
SECTION 5.13. Debt/EBITDA Ratio.............................................65
SECTION 5.14. Fixed Charge Coverage Ratio...................................65
SECTION 5.15. Restricted Payments...........................................65
SECTION 5.16. Capital Expenditures..........................................66
SECTION 5.17. Reinvestment of Asset Sale Proceeds and Casualty
Proceeds.........................................................66
SECTION 5.18. Cash Consideration for Asset Sales............................67
SECTION 5.19. Investments and Acquisitions..................................68
SECTION 5.20. Transactions with Affiliates..................................68
SECTION 5.21. Certain Amendments............................................69
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SECTION 5.22. Limitations on Restrictions Affecting Subsidiaries............69
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default.............................................70
SECTION 6.02. Notice of Default.............................................72
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization.................................73
SECTION 7.03. Action by Agents..............................................73
SECTION 7.04. Consultation with Experts.....................................73
SECTION 7.05. Liability of Agents...........................................73
SECTION 7.06. Indemnification...............................................74
SECTION 7.07. Credit Decision...............................................74
SECTION 7.08. Successor Agents..............................................74
SECTION 7.09. Agents' Fees..................................................75
SECTION 7.10. Syndication Agent.............................................75
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair......75
SECTION 8.02. Illegality....................................................76
SECTION 8.03. Increased Cost and Reduced Return.............................77
SECTION 8.04. Taxes.........................................................78
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate...........80
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices.......................................................80
SECTION 9.02. No Waivers....................................................81
SECTION 9.03. Expenses; Indemnification.....................................81
SECTION 9.04. Sharing of Set-offs...........................................81
SECTION 9.05. Amendments and Waivers........................................82
SECTION 9.06. Successors and Assigns........................................82
SECTION 9.07. No Reliance on Margin Stock...................................84
SECTION 9.08. Governing Law; Submission to Jurisdiction.....................84
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SECTION 9.09. Counterparts; Integration.....................................84
SECTION 9.10. WAIVER OF JURY TRIAL..........................................84
COMMITMENT SCHEDULE
RATIO-BASED PRICING SCHEDULE
RATINGS-BASED PRICING SCHEDULE
SCHEDULE 1.01 - List of Spin-Off Agreements
SCHEDULE 5.11 - Debt Outstanding at August 30, 1998
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 the Company
EXHIBIT F - Opinion of Special Counsel for the Administrative Agent
EXHIBIT G - Form of Assignment and Assumption Agreement
EXHIBIT H - Subsidiary Guaranty Agreement
EXHIBIT I - Security Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 30, 1998
among VLASIC FOODS INTERNATIONAL INC., the BANKS party hereto, THE CHASE
MANHATTAN BANK, as Syndication Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent and Collateral Agent.
WHEREAS, the Company (as defined below), 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, are parties to a
Credit Agreement dated as of February 20, 1998 (the "EXISTING CREDIT
AGREEMENT");
WHEREAS, the Company has reduced the Commitments under the Existing
Credit Agreement pro rata from an aggregate amount of $750,000,000 to an
aggregate amount of $650,000,000;
WHEREAS, the undersigned parties wish, upon satisfaction of the
conditions set forth in Section 3.01, to amend the Existing Credit Agreement to,
among other things, (i) classify a pro rata portion of each Bank's outstanding
Loans as Term Loans (which Term Loans will initially be in the aggregate
principal amount of $100,000,000); (ii) classify the remaining portion of each
Bank's Commitment as a Revolving Credit Commitment (which Revolving Credit
Commitments will initially be in the aggregate amount of $550,000,000); (iii)
modify certain financial covenants; and (iv) increase the rates of interest and
fees payable by the Company; and
WHEREAS, for the convenience of the parties hereto, the undersigned
parties wish to restate the Existing Credit Agreement as so amended (which
restatement thereof is set forth in this Agreement);
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:
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"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"ADJUSTED CD RATE" has the meaning set forth in Section 2.07(b).
"ADJUSTED CONSOLIDATED EBITDA" means, for any period, Consolidated
EBITDA for such period adjusted, if such period ends in Fiscal 1999, by adding
one of the following amounts: (i) if such period ends at the end of the first
Fiscal Quarter of Fiscal 1999, $35,300,000, (ii) if such period ends at the end
of the second Fiscal Quarter of Fiscal 1999, $38,300,000, (iii) if such period
ends at the end of the third Fiscal Quarter of Fiscal 1999, $29,600,000 and (iv)
if such period ends at the end of the fourth Fiscal Quarter of Fiscal 1999,
$4,600,000.
"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.
"AGENT" means the Administrative Agent or the Collateral Agent.
"AGREEMENT" means, when used with respect to this agreement, this
Amended and Restated Credit Agreement as amended from time to time.
"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 the Ratio-Based Pricing Schedule
attached hereto; provided that if on any day the Company has a Corporate Rating
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by S&P, Xxxxx'x or both and application of the Ratings-Based Pricing Schedule
attached hereto would result in a higher Facility Fee Rate, Euro-Dollar Margin
or CD Margin, then the "Applicable Pricing Schedule" for such day with respect
to the Facility Fee Rate, Euro-Dollar Margin or CD Margin, as the case may be,
shall be the Ratings-Based Pricing Schedule.
"ASSESSMENT RATE" has the meaning set forth in Section 2.07(b).
"ASSET ACQUISITION" means any transaction, or any series of related
transactions, consummated after the Effective Date, by which one or more Vlasic
Companies directly or indirectly acquires any ongoing business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise.
"ASSET SALE" means any sale, lease or other disposition (including
any such transaction effected by way of merger or consolidation) by any Person
of any asset, including without limitation any sale-leaseback transaction,
whether or not involving a capital lease, but excluding (i) dispositions of
inventory or obsolete, worn out or unnecessary equipment, in each case in the
ordinary course of business, (ii) dispositions of Temporary Cash Investments and
cash payments otherwise permitted under this Agreement and (iii) dispositions by
any Vlasic Company to another Vlasic Company.
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANK" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(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
rate applicable to Base Rate Loans pursuant to the applicable Notice of
Committed Borrowing or Notice of Interest Rate Election or the provisions of
Article 8.
"BASE RATE MARGIN" means:
(a) for each day during the period from and including October 1,
1998 to but excluding January 1, 1999, a rate per annum equal to 0.375%;
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(b) for each day during the period from and including January 1,
1999 to but excluding April 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
0.250%; and
(ii) otherwise, a rate per annum equal to 0.500%;
(c) for each day during the period from and including April 1, 1999
to but excluding July 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
0.250%;
(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
0.500%; and
(iii) otherwise, a rate per annum equal to 1.000%;
(d) for each day during the period from and including July 1, 1999
to but excluding the Grid Pricing Commencement Date:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
0.250%;
(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
0.500%; and
(iii) otherwise, a rate per annum equal to 1.250%; and
(e) for each day on and after the Grid Pricing Commencement Date, a
rate per annum determined in accordance with the Applicable Pricing Schedule.
"BORROWING" has the meaning set forth in Section 1.03.
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"XXXXXXXX" means Xxxxxxxx Soup Company, a New Jersey corporation,
and its successors.
"XXXXXXXX CLOSING DATE" means the date on which the Xxxxxxxx Loans
were made.
"XXXXXXXX LOANS" means loans in the aggregate principal amount of
$500,000,000 made to Xxxxxxxx under the Existing Credit Agreement and assumed by
the Company upon consummation of the Spin-Off.
"CASUALTY PROCEEDS" means (i) any insurance proceeds received by any
Domestic Vlasic Company under any property insurance policy or (ii) any award or
other compensation with respect to any condemnation of property (or any transfer
or disposition of property in lieu of condemnation) received by any Domestic
Vlasic Company.
"CD BASE RATE" has the meaning set forth in Section 2.07(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) for each day during the period from and including October 1,
1998 to but excluding January 1, 1999, a rate per annum equal to 1.500%;
(b) for each day during the period from and including January 1,
1999 to but excluding April 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.375%; and
(ii) otherwise, a rate per annum equal to 1.625%;
(c) for each day during the period from and including April 1, 1999
to but excluding July 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.375%;
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(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.625%; and
(iii) otherwise, a rate per annum equal to 2.125%;
(d) for each day during the period from and including July 1, 1999
to but excluding the Grid Pricing Commencement Date:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.375%;
(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.625%; and
(iii) otherwise, a rate per annum equal to 2.375%; and
(e) for each day on and after the Grid Pricing Commencement Date, a
rate per annum determined in accordance with the Applicable Pricing Schedule.
"CD RATE" means a rate of interest determined pursuant to Section
2.07(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.
"COLLATERAL ACCOUNTS" has the meaning set forth in Section 1 of the
Security Agreement.
"COLLATERAL AGENT" means Xxxxxx Guaranty Trust Company of New York,
in its capacity as Collateral Agent for the Secured Parties under the Collateral
Documents, and its successors in such capacity.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Security
Agreement Supplements, the Intellectual Property Security Agreements and all
other supplemental or additional security agreements, mortgages or similar
instruments delivered pursuant hereto or thereto, but excluding any UCC
financing statements.
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"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.
"COMMITTED LOAN" means a Revolving Loan or a Term Loan.
"COMMITMENT" means, with respect to any Bank at any time, an amount
equal to the sum of its Revolving Credit Commitment and the aggregate
outstanding principal amount of its Term Loans at such time.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached
hereto.
"COMPANY" means Vlasic Foods International Inc., a New Jersey
corporation, and its successors.
"COMPANY CLOSING DATE" means the date on which the Company assumed
the Xxxxxxxx Loans pursuant to the Existing Credit Agreement.
"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-Owned Affiliate held at
such date by the Company and its Subsidiaries.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
additions to property, plant and equipment and other capital expenditures of the
Company and its Consolidated Subsidiaries for such period, as the same are or
would in accordance with GAAP be set forth in a consolidated statement of cash
flows of the Company and its Consolidated Subsidiaries for such period,
excluding any amount (i) paid with proceeds from the sale of assets being
replaced by the assets acquired as a result of such capital expenditures or (ii)
paid (or reasonably expected to be paid) with the proceeds of casualty
insurance, condemnation awards and the like.
"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.
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"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Earnings for such period plus, to the extent deducted in determining
Consolidated Net Earnings 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.
"CONSOLIDATED NET EARNINGS" means, for any period, the net earnings
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 Earnings" 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.
"CONTINUING DIRECTOR" means (i) any individual who was a director of
the Company on August 2, 1998 and (ii) any individual who becomes a director of
the Company after August 2, 1998 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.
"CORPORATE RATING" means a credit rating by Xxxxx'x or S&P for the
Company's senior unsecured long-term debt securities without third-party credit
enhancement.
"CREDIT EXPOSURE" means, with respect to any Bank at any time, the
sum of (i) its Revolving Credit Exposure at such time plus (ii) the aggregate
outstanding principal amount of its Term Loans at such time.
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"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
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)
Adjusted 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.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"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.
"DESIGNATED INTEREST RATE AGREEMENTS" means the interest rate swap
agreements listed on Schedule 2 to the Security Agreement and any other interest
rate swap agreement or interest rate cap and floor agreement that is between the
Company and a Bank and is designated by the Company, in a notice to the
Collateral Agent, as a Designated Interest Rate Agreement for purposes of the
Financing Documents.
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"DESIGNATED LETTER OF CREDIT" means a letter of credit issued by a Bank
and designated by the Company, in a notice to the Collateral Agent, as a
Designated Letter of Credit for purposes of the Financing Documents.
"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 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 RESERVE PERCENTAGE" has the meaning set forth in Section
2.07(b).
"DOMESTIC SUBSIDIARY" means any Subsidiary that is not a Foreign
Subsidiary.
"DOMESTIC VLASIC COMPANIES" means the Company and its Domestic
Subsidiaries.
"EFFECTIVE DATE" means the date on which this Agreement becomes
effective pursuant to Section 3.01.
"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 or 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.
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"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.
"EQUITY INTEREST" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a limited liability company, any
membership interest therein, (iii) in the case of a partnership, any partnership
interest (whether general or limited) therein, (iv) in the case of any other
business entity, any participation or other interest in the equity or profits
thereof or (v) any warrant, option or other right to acquire any Equity Interest
described in the foregoing clauses (i), (ii), (iii) and (iv).
"EQUITY ISSUANCE" means any issuance or sale by any Vlasic Company of
any Equity Interest in such Vlasic Company, other than (i) any issuance or sale
of such Equity Interests to any Domestic Vlasic Company and (ii) the issuance of
any Equity Interest in the Company pursuant to the exercise of employee stock
options.
"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) for each day during the period from and including October 1, 1998
to but excluding January 1, 1999, a rate per annum equal to 1.375%;
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17
(b) for each day during the period from and including January 1, 1999
to but excluding April 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.250%; and
(ii) otherwise, a rate per annum equal to 1.500%;
(c) for each day during the period from and including April 1, 1999 to
but excluding July 1, 1999:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.250%;
(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.500%; and
(iii) otherwise, a rate per annum equal to 2.000%;
(d) for each day during the period from and including July 1, 1999 to
but excluding the Grid Pricing Commencement Date:
(i) if the Partial Refinancing shall have been completed and
the Company shall have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.250%;
(ii) if the Partial Refinancing shall have been completed and
the Company shall not have issued Subordinated Debt in an aggregate
principal amount of at least $200,000,000, a rate per annum equal to
1.500%; and
(iii) otherwise, a rate per annum equal to 2.250%; and
(e) for each day on and after the Grid Pricing Commencement Date, a
rate per annum determined in accordance with the Applicable Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.07(c) on the basis of a London Interbank Offered Rate.
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"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.
"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 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the heading of
this Agreement.
"FACILITY FEE RATE" means:
(a) for each day during the period from and including October 1, 1998
to but excluding January 1, 1999, a rate per annum equal to 0.375%;
(b) for each day during the period from and including January 1, 1999
to but excluding the Grid Pricing Commencement Date:
(i) if the Partial Refinancing shall have been completed and the
Company shall have issued Subordinated Debt in an aggregate principal
amount of at least $200,000,000, a rate per annum equal to 0.250%; and
(ii) otherwise, a rate per annum equal to 0.500%; and
(c) for each day on and after the Grid Pricing Commencement Date, 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
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19
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.
"FINANCIAL OFFICER" means the chief financial officer, chief accounting
officer or treasurer of the Company.
"FINANCIAL PREVIEW" means the Financial Preview dated August 14, 1998
that was provided to the Administrative Agent and the Banks.
"FINANCING DOCUMENTS" means this Agreement (including the Schedules and
Exhibits hereto), the Notes, the Subsidiary Guaranty Agreements and the
Collateral Documents.
"FISCAL QUARTER" means a fiscal quarter of the Company.
"FISCAL YEAR" means a fiscal year of the Company. A Fiscal Year is
identified by the calendar year in which it ends (e.g., "Fiscal 1999" is the
Fiscal Year that ends on August 1, 1999).
"FIXED CHARGE COVERAGE RATIO" means, at the end of any Fiscal Quarter,
the ratio of Adjusted 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.
"FIXED RATE LOANS" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the rate
applicable to Base Rate Loans pursuant to Section 8.01) or any combination of
the foregoing.
"FOREIGN SUBSIDIARY" means any Subsidiary that (i) is organized under
the laws of a jurisdiction outside the United States and (ii) conducts
substantially all of its operations outside the United States, other than any
such Subsidiary that
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is (whether as a matter of law, pursuant to an election by such Subsidiary or
otherwise) treated as a partnership in which any Domestic Vlasic Company is a
partner or as a branch of any Domestic Vlasic Company for United States income
tax purposes.
"FORM 10" means the Company's report on Form 10, as filed with the SEC
pursuant to the Exchange Act on March 5, 1998 (which report includes the
Information Statement).
"GAAP" has the meaning set forth in Section 1.02.
"GRID PRICING COMMENCEMENT DATE" means the first day after the end of
Fiscal 1999 on which the Company shall have delivered to the Administrative
Agent a certificate of a Financial Officer setting forth the Company's
good-faith estimate of the Debt/EBITDA Ratio at the end of Fiscal 1999.
"GROUP OF LOANS" or "GROUP" means at any time a group of Revolving
Loans or a group of Term Loans, in either case consisting of (i) all such Loans
which are Base Rate Loans at such time, (ii) all such Loans which are
Euro-Dollar Loans having the same Interest Period at such time or (iii) all such
Loans which are CD Loans having the same Interest Period at such time; provided
that, if a Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Article 8, 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.
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21
"GUARANTEED OBLIGATIONS" has, with respect to each Domestic Subsidiary
party to a Subsidiary Guaranty Agreement, the meaning set forth in such
Subsidiary Guaranty Agreement.
"GUARANTEED PARTIES" means the holders from time to time of the
Guaranteed Obligations.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives and
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 9.03.
"INFORMATION STATEMENT" means the draft of the Information Statement
furnished to the Banks with respect to the Spin-Off included in the Form 10.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning set forth in
Section 1 of the Security Agreement.
"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar 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 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
Termination Date shall end on the Termination Date;
(2) 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
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22
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;
(3) 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 2.03; 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 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;
(4) 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 2.03; 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.
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"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).
"KATTUS SALE" means the transfer or sale by the Company of
substantially all of the assets and/or quotas of its wholly-owned subsidiaries,
Xxxxxxx Xxxxxx GmbH and Xxxxxxxx Grocery Products GmbH, to a third party.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"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 interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LIEN GRANTORS" has the meaning set forth in Section 1 of the Security
Agreement.
"LOAN" means a Revolving Loan, a Money Market Loan or a Term Loan,
and "LOANS" means Revolving Loans, Money Market Loans or Term Loans or
any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(c).
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect on the
business, financial position or results of operations of the Vlasic Companies,
considered as a whole, (ii) any material adverse effect on the validity, binding
effect or enforceability of any Financing Document or (iii) any material adverse
effect on the validity, perfection or priority of any Lien on any of the
Collateral created or purportedly created under the Collateral Documents.
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"MATERIAL DEBT" means Debt (except Debt outstanding hereunder) of one
or more Vlasic Companies, arising in one or more related or unrelated
transactions, in an aggregate principal or face amount exceeding $10,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"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
2.03(d)(ii).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan made or 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 made or to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the rate
applicable to Base Rate Loans pursuant to Section 8.01).
"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 2.03(d)(ii).
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"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
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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.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, Equity
Issuance or incurrence of Debt, an amount equal to the cash proceeds received by
any Vlasic Company from or in respect of such Asset Sale, Equity Issuance or
incurrence of Debt (including any cash proceeds received as income or other
proceeds of any noncash proceeds of any Asset Sale), less (x) any expenses
reasonably incurred by any Vlasic Company in respect of such Asset Sale, Equity
Issuance or incurrence of Debt and (y) in the case of an Asset Sale, (i) the
amount of any Debt secured by a Lien on any asset disposed of in such Asset Sale
and discharged from the proceeds thereof and (ii) any taxes actually paid or to
be payable by any Vlasic Company (as reasonably estimated by a senior financial
or accounting officer of the Company, giving effect to the overall tax position
of the Company) in respect of such Asset Sale.
"NOTES" means promissory notes of the Company, substantially in the
form of Exhibit A hereto, evidencing the obligations of the Company to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined
in Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.10(c).
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation, by-laws and other constitutional
documents, including the certificate of designation for any series of its
preferred stock, (ii) with respect to any limited liability company, its
articles of organization and operating agreement, or other comparable documents
however named, and (iii) with respect to any partnership, its partnership
agreement.
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARTIAL REFINANCING" means the prepayment of Revolving Loans pursuant
to Section 2.12(b) with the Net Cash Proceeds from the issuance of $200,000,000
aggregate principal amount of Debt and the concurrent pro rata
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26
reduction of the Revolving Credit Commitments by an aggregate amount equal to
such Net Cash Proceeds.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED ASSET ACQUISITION" means an Asset Acquisition if all the
following are true:
(i) the business or assets being acquired are not being
acquired principally for the purpose of engaging in a line of business
in which no Vlasic Company was engaged on the Effective Date;
(ii) the value of the consideration for such Asset
Acquisition, together with the aggregate value of the consideration for
all prior Permitted Asset Acquisitions and Permitted Investments, is
not greater than $250,000,000;
(iii) all Debt incurred or assumed to finance such Asset
Acquisition or to pay amounts required to be paid as a direct result of
such Asset Acquisition shall be Permitted Acquisition Debt;
(iv) at the time of such Asset Acquisition, the ratio of the
amount of Permitted Acquisition Debt incurred or assumed in connection
with such Asset Acquisition to the Target's EBITDA does not exceed 4.25
to 1;
(v) after giving effect to such Asset Acquisition and any
Loans the proceeds of which will be used for such acquisition, the
Company will have unused Revolving Credit Commitments of at least
$20,000,000; and
(vi) no Event of Default shall have occurred and be continuing
immediately after giving effect to such Asset Acquisition.
"PERMITTED ACQUISITION DEBT" means Debt incurred to finance a Permitted
Asset Acquisition or Permitted Investment or to pay amounts required to be paid
as a direct result of a Permitted Asset Acquisition or Permitted Investment;
provided that the cumulative aggregate principal amount of Permitted Acquisition
Debt incurred by the Vlasic Companies after the Effective Date shall not exceed
$100,000,000.
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"PERMITTED ASSET SECURITIZATION" has the meaning set forth in Section
2.17(a).
"PERMITTED INTERCOMPANY DEBT" means Debt owed by any Vlasic Company to
any other Vlasic Company; provided that at all times until the Security
Interests are released pursuant to Section 18 of the Security Agreement, all
such Debt owing to any Domestic Vlasic Company is (i) maintained in the form of
open account balances in which the Collateral Agent has a first priority,
perfected security interest or (ii) is evidenced by Instruments (as defined in
the Security Agreement) delivered to the Collateral Agent pursuant to Section
4(c) of the Security Agreement.
"PERMITTED INVESTMENT" means the acquisition (after the Effective Date)
by a Vlasic Company of any Equity Interest in another Person if all the
following are true:
(i) such Person is not principally engaged in a line of
business in which no Vlasic Company was engaged on the Effective Date;
(ii) such Person will, after such acquisition, be a Subsidiary
of the Company;
(iii) the value of the consideration for such acquisition,
together with the aggregate value of the consideration for all prior
Permitted Asset Acquisitions and Permitted Investments, is not greater
than $250,000,000;
(iv) all Debt incurred or assumed to finance such acquisition
or to pay amounts required to be paid as a direct result of such
acquisition shall be Permitted Acquisition Debt;
(v) at the time of such acquisition, the ratio of the Target's
Debt to the Target's EBITDA does not exceed 4.25 to 1;
(vi) after giving effect to such acquisition and any Loans the
proceeds of which will be used for such acquisition, the Company will
have unused Revolving Credit Commitments of at least $20,000,000; and
(vii) no Event of Default shall have occurred and be
continuing immediately after giving effect to such acquisition.
"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.
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"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.
"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.
"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.
"REINVESTABLE PROCEEDS" has the meaning set forth in Section 5.17.
"RELEVANT ASSET" has the meaning set forth in Section 5.17.
"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).
"REVOLVING CREDIT COMMITMENT" means the portion of each Bank's
Commitment that is classified as a Revolving Credit Commitment, such portion
being (i) with respect to each Bank listed on the Commitment Schedule, the
amount set forth therein opposite the name of such Bank under the heading
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"Revolving Credit Commitment" and (ii) with respect to any Assignee of a
Revolving Credit Commitment, the amount of the transferor Bank's Revolving
Credit Commitment assigned to such Assignee pursuant to Section 9.06(c), in each
case as such amount may be reduced from time to time pursuant to Section 2.09 or
2.12 or changed as a result of an assignment pursuant to Section 9.06(c).
"REVOLVING CREDIT EXPOSURE" means, as to any Bank at any time:
(i) the amount of its Revolving Credit Commitment (whether
used or unused); or
(ii) if the Revolving Credit Commitments have terminated in their
entirety, the aggregate outstanding principal amount of its Revolving
Loans and Money Market Loans at such time.
"REVOLVING CREDIT PERIOD" means the period from and including the
Effective Date to but not including the Termination Date.
"REVOLVING LOAN" means a loan made by a Bank under this Agreement
(other than a Term Loan or a Money Market Loan); 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 "REVOLVING 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.
"SEC" means the Securities and Exchange Commission.
"SECURED OBLIGATIONS" has, with respect to each Lien Grantor, the
meaning set forth in the Security Agreement.
"SECURED PARTIES" has the meaning set forth in Section 1 of the
Security Agreement.
"SECURITY AGREEMENT" means a Security Agreement substantially in the
form of Exhibit I among the Collateral Agent and the Lien Grantors, as amended
and/or supplemented from time to time.
"SECURITY AGREEMENT SUPPLEMENT" has the meaning set forth in Section
1 of the Security Agreement.
"SECURITY INTERESTS" has the meaning set forth in Section 1 of the
Security Agreement.
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"SECURITY RELEASE DATE" has the meaning set forth in Section 1 of the
Security Agreement.
"SENIOR" means, with respect to any Debt of the Company, that such Debt
is not Subordinated.
"SENIOR OBLIGATIONS" means (i) all principal of all Loans outstanding
from time to time hereunder, all interest (including without limitation Post-
Petition Interest (as defined in the Security Agreement)) on such Loans and all
other amounts (including without limitation reasonable attorneys' fees and
disbursements) now or hereafter payable by the Company pursuant to any Financing
Document, (ii) all obligations of the Company under Designated Interest Rate
Agreements, (iii) all obligations of the Company to reimburse an issuing bank
for amounts drawn under a Designated Letter of Credit or to pay fees or other
amounts to such issuing bank in connection with such Designated Letter of Credit
and (iv) any other obligation designated by the Company prior to the Security
Release Date as an additional Secured Obligation of the Company pursuant to
Section 2.20 of the Credit Agreement.
"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 1.01
hereto, in each case complying in all material respects with the description
thereof in the Information Statement.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies.
"SUBORDINATED" means Debt of the Company that satisfies the following
conditions:
(i) such Debt is unsecured and is not guaranteed by any
Subsidiary;
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(ii) no payment of the principal of such Debt is due prior to
August 31, 2003;
(iii) the covenants in respect of such Debt will be no more
restrictive than the covenants under this Agreement and the events of
default in respect of such Debt will be no more extensive than the
Events of Default; provided that a payment default in respect of such
Debt may be an Event of Default in respect of such Debt;
(iv) in the event of a bankruptcy, insolvency, liquidation,
reorganization, dissolution or other winding-up or similar event with
respect to the Company, the Senior Obligations must be paid in full
before any payment is made with respect to the principal of, premium,
if any, interest or other amounts, if any, payable in respect of such
Debt; and
(v) no cash payments may be made with respect to such Debt
during the continuance of a payment default with respect to any of the
Senior Obligations and, during the continuance of any other Event of
Default, no payment may be made with respect to such Debt until such
Event of Default is cured (or if not cured, until such Event of Default
has been continuing for more than 179 days after the Administrative
Agent notifies the Company that payments on such Debt are to be
suspended until such Event of Default is cured).
"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.
"SUBSIDIARY GUARANTY AGREEMENT" means a Subsidiary Guaranty Agreement
substantially in the form of Exhibit H hereto.
"SUPER-MAJORITY BANKS" means, at any time, Banks having more than 75%
of the Credit Exposures at such time.
"SYNDICATION AGENT" means The Chase Manhattan Bank, in its capacity as
syndication agent for this credit facility.
"TARGET" means (i) a Person (other than a Vlasic Company) in which any
Vlasic Company acquires or proposes to acquire an Equity Interest after the
Effective Date or (ii) a business being acquired by a Vlasic Company or a Person
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(other than a Vlasic Company) or division thereof selling all or substantially
all of its assets to a Vlasic Company, as the case may be.
"TARGET'S DEBT" means, in connection with any acquisition of an Equity
Interest in a Target by a Vlasic Company, an amount equal to the sum of (i) the
Debt of the Target and its consolidated Subsidiaries (if any), determined on a
consolidated basis as of the date of such acquisition, and (ii) any Debt
incurred or to be incurred by any Vlasic Company, the Target or any Subsidiary
of the Target to finance such acquisition and/or to make any payments of
pre-existing Debt required as a result of such acquisition, less the principal
amount of any Debt referred to in clause (i) above that is to be repaid with the
proceeds of Debt referred to in clause (ii) above.
"TARGET'S EBITDA" means (a) in connection with any acquisition of an
Equity Interest in a Target by a Vlasic Company, the Target's consolidated net
income for the most recent period of twelve months for which financial
statements of the Target are available and (b) in connection with any Asset
Acquisition, the net income attributable to the operations of the Target for the
most recent period of twelve months for which financial statements of the Target
are available (in the case of both clauses (a) and (b) above, adjusted to
exclude the effect of any extraordinary or other non-recurring gain, but not
loss) plus, in the case of both clauses (a) and (b) above, to the extent
deducted in determining such consolidated net income for such period, the
aggregate amount of (i) 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).
"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 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
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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 equivalent thereof in another
currency) 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.
"TERM LOANS" means the Loans (or portions thereof) classified as term
loans pursuant to Section 2.01(b).
"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.
"UCC" has the meaning set forth in Section 1 of the Security Agreement.
"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 COMPANIES" means the Company and its Subsidiaries.
"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
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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 combined financial statements of the
Company included in the Information Statement ("GAAP"); 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 made or to be made to the Company
pursuant to Article 2 in each case on the same day, all of which Loans are of
the same type (subject to Article 8) 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 2 under which participation therein is
determined (i.e., a "COMMITTED BORROWING" is a Borrowing under Section 2.01 in
which all Banks participate in proportion to their Revolving Credit Commitments,
while a "MONEY MARKET BORROWING" is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids).
ARTICLE 2
LOANS
SECTION 2.01. Commitments to Lend. (a) 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:
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35
(i) the aggregate outstanding principal amount of such Bank's
Revolving Loans shall not exceed its Revolving Credit Commitment; and
(ii) the aggregate outstanding principal amount of all
Revolving Loans and Money Market Loans shall not exceed the aggregate
amount of the Revolving Credit Commitments.
Each Borrowing under this Section shall be in an aggregate amount of (x) in the
case of a Base Rate Borrowing, $500,000 or any larger multiple thereof or (y) in
the case of a Fixed Rate Borrowing, $5,000,000 or any larger multiple of
$1,000,000 (except that any Borrowing under this Section may be in the aggregate
amount then available within the limitations in the foregoing proviso) and shall
be made from the several Banks ratably in proportion to their respective
Revolving Credit Commitments. Within the foregoing limits, the Company may
borrow under this Section, prepay Revolving Loans to the extent permitted by
this Agreement and reborrow at any time during the Revolving Credit Period under
this Section.
(b) On the Effective Date, the Company shall deliver to the
Administrative Agent a notice specifying a Group of Euro-Dollar Loans (or
portion thereof) in the aggregate outstanding principal amount of $100,000,000
to be classified as Term Loans on the Effective Date. If only a portion of a
Group of Euro-Dollar Loans is so specified, such portion shall be allocated
ratably among the Loans comprising such Group. All outstanding Committed Loans
(or portions thereof) not so classified as Term Loans shall be classified as
Revolving Credit Loans on the Effective Date. Loans classified as Term Loans
pursuant to this subsection may be prepaid to the extent permitted by this
Agreement but are not revolving in nature and once repaid may not be reborrowed.
SECTION 2.02. Notice of Committed Borrowing. The Company shall give the
Administrative Agent notice (a "NOTICE OF COMMITTED BORROWING") not later than
(x) 12:00 Noon (New York City time) on the date of each Base Rate Borrowing, (y)
10:30 A.M. (New York City time) on the second Domestic Business Day before each
CD Borrowing and (z) 10:30 A.M. (New York City time) on the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, 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;
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36
(c) whether the Loans comprising such Borrowing are to bear
interest initially at the rate applicable to Base Rate Loans, 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 2.03. Money Market Borrowings. (a) The Money Market Option. At
any time during the Revolving Credit Period, if the Company's Corporate Rating
is Baa3 or better by Moody's or BBB- or better by S&P at such time, the Company
may, as set forth in this Section, request the Banks to make offers to make
Money Market Loans to the Company. 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:
(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
$5,000,000 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.
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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. (i) 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 9.01 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 (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 3 and
6, 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,
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(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 Revolving Credit
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,
(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
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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 $5,000,000 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;
(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
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(v) immediately after such Money Market Borrowing is made, the
aggregate outstanding principal amount of all Revolving Loans and Money
Market Loans shall not exceed the aggregate amount of the Revolving
Credit 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 2.04. 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 (i) 1:30 P.M. (New York City time) on the date of
each Base Rate Borrowing and (ii) 12:00 Noon (New York City time) on the date of
each CD Borrowing or Euro-Dollar 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 9.01. Unless the Administrative Agent determines
that any applicable condition specified in Article 3 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 such amount is
made available to the Company until the day such amount is
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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 2.07 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 2.05. Notes. (a) The Company's obligation to repay the Loans of
each Bank 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.
(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) Each Bank shall record the date, amount and type of each Loan made
by it, and 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 2.06. Maturity of Loans. (a) Each Committed Loan shall mature,
and the principal amount thereof shall be due and payable, on the Termination
Date.
(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 2.07. 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 sum of
the Base
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Rate Margin (if any) for such day plus the Base Rate for such day. Such interest
shall, subject to subsection (f) below, 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 rate otherwise applicable to Base Rate
Loans 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 2(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, subject to subsection (f) below, 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 rate applicable to Base Rate Loans 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 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
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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. Section 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, subject to subsection (f) below, 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 1/16th 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.
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(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 8.01 shall exist, at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans 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 8.01, 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
2.07(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 2.03. 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 2.03. 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 rate applicable to Base Rate Loans for such day.
(f) The Administrative Agent shall determine each interest rate and
Facility Fee Rate hereunder. With respect to any interest or fees accrued and
payable in the period from and including the Grid Pricing Commencement Date to
and including the date the Company delivers financial statements with respect to
Fiscal 1999 pursuant to Section 5.01(a), interest and fees shall be calculated
and shall be payable on the basis of the Company's good faith estimate of the
Debt/EBITDA Ratio at the end of Fiscal 1999; provided that if the correct amount
of such interest and fees (determined by reference to the Debt/EBITDA Ratio at
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the end of Fiscal 1999) shall be greater than the amount theretofore paid by the
Company, the Company shall, within three Business Days after receipt of notice
from the Administrative Agent specifying the additional interest and fees to be
paid, pay such additional interest and fees to the Administrative Agent for the
account of the Banks. The Administrative Agent shall give prompt notice of each
rate determined by it to the Company and the participating Banks, 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 Reference Bank or Reference Banks or, if
none of such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply.
SECTION 2.08. Fees. (a) Facility Fees. 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 on the aggregate amount of the Credit Exposures on such
day. Such facility fee shall accrue for each day from and including October 1,
1998 to but excluding the day on which the Credit Exposures are reduced to zero.
Such fees shall be payable quarterly in arrears on each Quarterly Payment Date
and on the day on which the Revolving Credit Commitments terminate in their
entirety (and, if later, on the day on which the Credit Exposures are reduced to
zero).
(b) Upfront Fees.
(i) On the Effective Date, the Company shall pay to the
Administrative Agent, for the account of each Bank, a fee equal to
0.15% of such Bank's Credit Exposure on the Effective Date.
(ii) If the Partial Refinancing shall not have been completed
before January 1, 1999, the Company shall, on January 4, 1999, pay to
the Administrative Agent for the account of each Bank an additional fee
equal to 0.10% of such Bank's Credit Exposure on January 1, 1999.
(iii) If the Partial Refinancing shall not have been completed
before July 1, 1999, the Company shall, on July 1, 1999, pay to the
Administrative Agent for the account of each Bank an additional fee
equal to 0.25% of such Bank's Credit Exposure on such date.
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SECTION 2.09. 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, (i) terminate the
Revolving Credit Commitments at any time, if no Revolving Loans or Money Market
Loans are outstanding at such time, or (ii) ratably reduce from time to time by
an aggregate amount of $10,000,000 or a larger multiple of $1,000,000, the
aggregate amount of the Revolving Credit Commitments in excess of the aggregate
outstanding principal amount of all Revolving Loans and Money Market Loans. The
Administrative Agent shall give prompt notice to the Banks of any such
termination or reduction of the Revolving Credit Commitments.
(b) Unless previously terminated, the Revolving Credit Commitments
shall terminate in their entirety on the Termination Date.
SECTION 2.10. Method of Electing Interest Rates. (a) Each Euro-Dollar
Loan made before the Effective Date that remains outstanding after the Effective
Date shall, subject to Articles 6 and 8, continue to bear interest, until the
end of the Interest Period applicable to it on the Effective Date at the
applicable rate established under the Existing Credit Agreement, except that (i)
for each day on and after the Effective Date, the applicable Euro-Dollar Margins
shall be those specified in this Agreement and (ii) the interest rate applicable
to such Loans shall be subject to change after the Effective Date as provided in
subsection (c) of this Section. The foregoing sentence shall also apply to any
such outstanding Loans (or portions thereof) that are reclassified as Term Loans
on the Effective Date. Any Base Rate Loans outstanding on the Effective Date
shall continue as Base Rate Loans until they are repaid or converted to CD Loans
or Euro-Dollar Loans as provided in subsection (c) of this Section.
(b) The Loans included in each Committed Borrowing made by the Company
on or after the Effective Date shall bear interest initially at the type of rate
specified by the Company in the applicable Notice of Committed Borrowing.
(c) The Company may from time to time elect to change or continue the
type of interest rate borne by each outstanding Group of Loans (subject in each
case to the provisions of Article 8), 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 Euro-Dollar Loans as of any Euro-Dollar Business Day or may elect
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to continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.14 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
2.14 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 (except
in the case of Base Rate Loans) $5,000,000 or any larger multiple of $1,000,000.
(d) 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
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(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.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(e) 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 2.11. Optional Prepayments. (a) Subject in the case of any
Fixed Rate Loans to Section 2.14, the Company may (i) upon delivering notice to
the Administrative Agent not later than 12:00 Noon (New York City time) on the
on the date of prepayment, prepay any Base Rate Loans (or any Money Market
Borrowing bearing interest at the rate applicable to Base Rate Loans pursuant to
Section 8.01), (ii) upon delivering notice to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Domestic Business Day prior to
the date of prepayment, prepay any Group of CD Loans and (iii) upon delivering
notice to the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Euro-Dollar Business Day prior to the date of prepayment,
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 (x) $500,000 or any larger
multiple thereof in the case of Base Rate Loans or (y) $5,000,000 or any larger
multiple of $1,000,000 in the case of CD Loans or Euro-Dollar Loans, 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.
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SECTION 2.12. Mandatory Prepayments. (a) Asset Sales. If after the
Effective Date any Domestic Vlasic Company receives any Net Cash Proceeds of any
Asset Sale, the Company shall prepay (subject to subsection (e) below) an
aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds
(excluding any portion thereof reinvested as permitted by Section 5.17). Within
one Domestic Business Day after the closing of any such Asset Sale, the Net Cash
Proceeds received at such closing shall be deposited in a Collateral Account and
held in such Collateral Account until such Net Cash Proceeds (or an amount equal
thereto) are reinvested as permitted by Section 5.17 or applied to prepay Loans.
(b) Incurrence of Debt. If after the Effective Date any Vlasic Company
receives any Net Cash Proceeds from the incurrence of any Debt that is not
permitted by any clause of Section 5.11 other than clause (c) thereof, the
Company shall prepay (subject to subsection (e) below) an aggregate principal
amount of Loans equal to 100% of such Net Cash Proceeds.
(c) Equity Issuances. If after the Effective Date (i) any Domestic
Vlasic Company receives any Net Cash Proceeds from any Equity Issuance and (ii)
at the time of such receipt, the average of the Debt/EBITDA Ratios set forth in
the two officer's certificates then most recently delivered pursuant to Section
5.01(c) is equal to or higher than 4:1, the Company shall prepay (subject to
subsection (e) below) an aggregate principal amount of Loans equal to 50% of
such Net Cash Proceeds.
(d) Casualty Proceeds. If after the Effective Date, any Domestic
Vlasic Company receives any Casualty Proceeds, the Company shall prepay (subject
to subsection (e) below) an aggregate principal amount of Loans equal to 100% of
such Casualty Proceeds (excluding any portion thereof reinvested as permitted by
Section 5.17). Promptly upon receipt of any such Casualty Proceeds, such
Casualty Proceeds shall be deposited in a Collateral Account and held in such
Collateral Account until such Casualty Proceeds (or an amount equal thereto) are
reinvested as permitted by Section 5.17 or applied to prepay Loans.
(e) Timing of Prepayment. Each prepayment required by subsection (a)
or (d) of this Section shall be made within the time specified in Section 5.17.
Each prepayment required by subsection (b) or (c) of this Section shall be made
within two Domestic Business Days after any Vlasic Company (or the Collateral
Agent) receives the relevant Net Cash Proceeds. Notwithstanding the foregoing,
if the aggregate principal amount of the Loans required to be prepaid on any
date pursuant to this Section is less than $5,000,000, such prepayment shall be
deferred until the aggregate principal amount of the Loans required to be
prepaid pursuant to this Section (including such deferred amounts) is not less
than $5,000,000.
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(f) Allocation of Prepayments. Each prepayment of the Loans required
under this Section shall be applied first to the Revolving Loans until they are
repaid in full and then to the Term Loans until they are repaid in full.
(g) Interest. Each prepayment of principal of the Loans under this
Section shall be made together with interest accrued on the amount prepaid to
the date of payment.
(h) Notice of Prepayment. The Company shall give the Administrative
Agent, before 11:00 A.M. (New York City time) on the third Domestic Business Day
immediately preceding the date of each mandatory prepayment, a prepayment notice
specifying the date and amount of such prepayment and describing the event or
events which require such prepayment to be made. Upon receiving such prepayment
notice, the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share of such prepayment.
(i) Reduction of Revolving Credit Commitments. Concurrently with any
mandatory prepayment of Revolving Credit Loans pursuant to this Section, the
Revolving Credit Commitments shall be ratably reduced by an aggregate amount
equal to the amount of such prepayment; provided that no such reduction of the
Revolving Credit Commitments shall be required if and to the extent that such
mandatory prepayment is made with Net Cash Proceeds received in respect of the
Kattus Sale.
(j) Amendments and Waivers. The dates and amounts of any prepayments
that may be required pursuant to this Section are not presently ascertainable
and are not intended to be dates "fixed" for any such payment for purposes of
Section 9.05(iii). Accordingly, the provisions of this Section may be amended or
waived with the consent of the Company and the Required Banks.
SECTION 2.13. 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 9.01 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
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
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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 2.14. 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 2, 6 or 8 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 2.07(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 2.04(a), 2.10(e), 2.11(c) or
2.12(h), 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 2.15. 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
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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).
SECTION 2.16. 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 2.17. Asset Securitization. (a) No Vlasic Company shall sell or
otherwise dispose of its accounts receivable before the Security Release Date.
If any Vlasic Company sells or otherwise disposes of its accounts receivable on
or after the Security Release Date (a "PERMITTED ASSET SECURITIZATION"), the
Company shall, within three Euro-Dollar Business Days after any net cash
proceeds are received from the lenders or purchasers of securities in such
Permitted Asset Securitization, ratably reduce the Revolving Credit Commitments
by an aggregate amount equal to such net cash proceeds.
(b) Concurrently with each reduction of the Revolving Credit
Commitments pursuant to subsection (a), the Company shall prepay Revolving Loans
in the manner provided in Section 2.11, to the extent (if any) required so that
no Bank has Revolving Loans outstanding in an aggregate principal amount in
excess of its Revolving Credit Commitment as so reduced.
SECTION 2.18. Release of Security Interests in Assets Being Sold. The
Administrative Agent shall from time to time instruct the Collateral Agent to
(and the Collateral Agent shall) release specific assets (but not all or
substantially all the Collateral) from the Security Interests pursuant to
Section 18 of the Security Agreement if:
(i) the Administrative Agent shall have received a written
request for such release signed by a Financial Officer stating that (x)
the assets to be released are being sold, (y) the sale thereof does not
violate
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Section 2.17, 5.09 or 5.18 and (z) immediately before and immediately
after such sale, no Event of Default shall have occurred and be
continuing;
(ii) arrangements satisfactory to the Administrative Agent
have been made so that such release will become effective concurrently
with the closing of such sale; and
(iii) in the case of an Asset Sale, arrangements satisfactory
to the Administrative Agent have been made to deposit an amount equal
to the Net Cash Proceeds payable at the closing of such Asset Sale in a
cash collateral account and apply it to prepay Loans as required by
Section 2.12.
SECTION 2.19. Release of Security Interests on Security Release Date.
At any time on or after the Security Release Date, the Company may request the
Administrative Agent to instruct the Collateral Agent to release the Collateral
from the Security Interests pursuant to Section 18 of the Security Agreement.
Promptly upon receiving such request, the Administrative Agent shall confirm
that the Security Release Date has occurred and, if it has, shall instruct the
Collateral Agent to release all the Collateral from the Security Interests.
SECTION 2.20. Additional Guaranteed Obligations and Additional Company
Secured Obligations. (a) The Company may from time to time designate its
obligations to any Bank under any interest rate swap agreement or any interest
rate cap and floor agreement (collectively, "INTEREST RATE AGREEMENTS") as an
additional Guaranteed Obligation and as an additional Secured Obligation of the
Company for purposes of the Financing Documents by delivering to the
Administrative Agent and the Collateral Agent (i) a certificate signed by a
Financial Officer identifying such interest rate agreement, stating that it is
designated as a Designated Interest Rate Agreement for purposes of the Financing
Documents and specifying the Bank that is the counterparty to such interest rate
agreement and (ii) a copy of such agreement.
(b) The Company may from time to time designate its obligation to
reimburse any Bank for drawings under a letter of credit issued by such Bank as
an additional Guaranteed Obligation and as an additional Secured Obligation of
the Company for purposes of the Financing Documents by delivering to the
Administrative Agent and the Collateral Agent a certificate signed by a
Financial Officer identifying such letter of credit and specifying the amount
available to be drawn thereunder, stating that it is designated as a Designated
Letter of Credit for purposes of the Financing Documents and specifying the Bank
that issued such letter of credit.
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(c) The Company may from time to time, with the prior written consent
of the Administrative Agent and Collateral Agent (which in each case shall not
be unreasonably withheld) and the Super-Majority Banks (which consent shall be
in their sole discretion), designate any other obligation of the Company as an
additional Guaranteed Obligation or an additional Secured Obligation of the
Company or both for purposes of the Financing Documents by delivering to the
Administrative Agent and the Collateral Agent a certificate signed by a
Financial Officer identifying the obligation so designated, stating that such
obligation is designated as a Guaranteed Obligation and/or Secured Obligation of
the Company for purposes of the Financing Documents and specifying the name and
address of the holder of such obligation or of a trustee, agent or similar
representative designated to supply information with respect to such additional
Guaranteed Obligation or Secured Obligation to the Administrative Agent pursuant
to the relevant Subsidiary Guaranty Agreement and/or to the Collateral Agent as
contemplated by Section 20 of the Security Agreement.
ARTICLE 3
CONDITIONS
SECTION 3.01. Conditions to Effectiveness. This Agreement shall become
effective when all of the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received from each of
the Company, the Collateral Agent and the Required Banks either a
counterpart of this Agreement signed by such party or facsimile or
other written evidence satisfactory to the Administrative Agent
confirming that such party has signed a counterpart thereof;
(b) the Administrative Agent shall have received a counterpart
of a Subsidiary Guaranty Agreement signed by each Domestic Subsidiary;
(c) the Administrative Agent shall have received a counterpart
of the Security Agreement, signed by the Collateral Agent, the Company
and each Domestic Subsidiary, and the Company shall have made
arrangements satisfactory to the Administrative Agent for the delivery
to the Collateral Agent of stock certificates evidencing all the
capital stock listed on Schedule 1 to the Security Agreement and
required to be pledged pursuant to Section 4(a) thereof (together with
signed stock powers relative to such certificates) not later than 2
Domestic Business Days after the Effective Date;
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(d) the Administrative Agent shall have received a counterpart
of each Intellectual Property Security Agreement listed on Schedule 3
to the Security Agreement, signed by the appropriate Lien Grantor
listed on such Schedule 3;
(e) the Collateral Agent shall have received all signed UCC
financing statements reasonably requested by the Collateral Agent to
perfect the Security Interests in the Collateral;
(f) the Administrative Agent shall have received notice from
the Company as required by Section 2.01(b), specifying the Loans (or
portions thereof) to be classified as Term Loans on the Effective Date;
(g) the Administrative Agent shall have received an opinion of
the General Counsel of the Company dated the Effective Date,
substantially in the form of Exhibit E hereto, and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(h) the Administrative Agent shall have received an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Administrative Agent,
dated the Effective Date, substantially in the form of Exhibit F hereto
and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(i) the representations and warranties of the Domestic Vlasic
Companies contained in this Agreement and the other Financing Documents
shall be true on and as of the Effective Date;
(j) no Default shall have occurred and be continuing under
this Agreement; and
(k) the Administrative Agent shall have received all documents
it may reasonably request relating to the existence of each Domestic
Vlasic Company, the corporate authority for and the validity of each
Financing Document, the creation and perfection of the Security
Interests contemplated by the Collateral Documents and any other
matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent.
Promptly after this Agreement becomes effective, the Administrative Agent shall
notify the Company and the Banks thereof, and such notice shall be conclusive
and binding on all parties hereto.
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SECTION 3.02. Consequences of Effectiveness. (a) When this Agreement
becomes effective, the Existing Credit Agreement will be automatically amended
and restated, without further action by any of the parties hereto, to read in
full as set forth in this Agreement.
(b) On and after the Effective Date, the rights and obligations of the
parties to this Agreement shall be governed by the provisions of this Agreement
and the other Financing Documents. The rights and obligations of the parties to
the Existing Credit Agreement with respect to the period prior to the Effective
Date (and any liability that Xxxxxxxx may have with respect to the
representations and warranties made by it in or pursuant to the Existing Credit
Agreement) shall continue to be governed by the provisions of the Existing
Credit Agreement as in effect prior to the Effective Date (except that the Base
Rate Margin, CD Margin, Euro-Dollar Margin and Facility Fee Rate provided for
herein shall apply on and after October 1, 1998). Interest Periods applicable to
Loans outstanding on the Effective Date shall not be broken solely by reason of
the effectiveness hereof, and unpaid interest and facility fees accrued to the
Effective Date under the Existing Credit Agreement shall (subject to the
foregoing change in rates as of October 1, 1998) be payable together with
interest and facility fees accrued hereunder on and after the Effective Date
(but without duplication) on the dates specified herein.
SECTION 3.03. Conditions to Borrowings. The obligation of any Bank to
make any Loan to the Company on the occasion of any Borrowing on or after the
Effective Date is subject to the satisfaction of the following conditions:
(a) this Agreement shall have become effective on or before
November 1, 1998;
(b) the Administrative Agent shall have received a Notice of
Borrowing as required by Section 2.02 or 2.03, 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 Domestic Vlasic
Companies contained in this Agreement and the other Financing Documents
shall be true on and as of the date of such Borrowing.
Each Borrowing hereunder 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.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. Each Vlasic Company is a
corporation, limited liability company or partnership duly incorporated or
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, and has all corporate or other
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by each Vlasic Company of
the Financing Documents to which it is a party are within its corporate or other
powers, have been duly authorized by all necessary corporate or other 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 its Organizational Documents or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon it or result in the creation or imposition of any Lien (other than
Liens created by the Collateral Documents) on any of its assets.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Company, and each other Financing Document when
executed and delivered by any Domestic Vlasic Company as contemplated herein or
therein will constitute a valid and binding obligation of such Vlasic 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 4.04. Security Interests. On and at all times after the
Effective Date, the Collateral Documents will create valid Security Interests in
the Collateral from time to time covered or purportedly covered thereby. Such
Security Interests will be perfected and/or recorded as to each item of
Collateral when or promptly after it is included in the Collateral, and will be
prior to all other Liens (except Liens permitted by Section 5.10) on such item
of Collateral until the applicable Security Interest is released pursuant to
Section 18 of the Security Agreement.
SECTION 4.05. Financial Information. (a) The consolidated balance
sheet of the Company and its Subsidiaries as of August 2, 1998 and the related
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consolidated statements of earnings, of cash flows and of shareowners' equity
for the Fiscal Year then ended, reported on by Price Waterhouse LLP and
delivered to the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Vlasic Foods
Businesses as of such date and their consolidated results of operations and cash
flows for such Fiscal Year.
(b) The pro forma consolidated balance sheet of the Company and its
Subsidiaries as of August 2, 1998 and the related pro forma consolidated
statements of earnings, of cash flows and of shareowners' equity for the Fiscal
Year then ended, copies of which have been delivered to the Banks, would fairly
present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Vlasic Foods Businesses as of such date
and their consolidated results of operations and cash flows for such Fiscal Year
if the Xxxxxxxx Loans had been assumed by the Company at the beginning of such
Fiscal Year.
(c) There has been no material adverse change since August 2, 1998
in the business, financial position or results of operations of the Vlasic Foods
Businesses, considered as a whole, as compared with the consolidated balance
sheet as of August 2, 1998 referred to in subsection (a) above and the earnings
statement and free cash flow projections for Fiscal 1999 included in the
Financial Preview.
SECTION 4.06. 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 (i) could have a Material Adverse Effect or (ii) in any
manner draws into question the validity or enforceability of any Financing
Document or Spin-Off Agreement.
SECTION 4.07. 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 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
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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 4.08. 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 has and 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 and the Company have identified and evaluated, and the Company
will continue to 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.
SECTION 4.09. 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 4.10. Subsidiaries. The Company owns, free and clear of
Liens, all outstanding Equity Interest in each of its Subsidiaries and all
shares of capital stock included in such Equity Interests are validly issued,
fully paid and non-assessable.
SECTION 4.11. 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
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Company Act of 1935, as amended, or (iii) otherwise subject to any regulatory
scheme which restricts its ability to incur debt.
SECTION 4.12. Full Disclosure. All information (other than
projections) heretofore furnished by 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. The projections included in the
Financial Preview were based on reasonable assumptions and as of their date
represented an estimate of the future performance of the Company and its
Subsidiaries that was no better than the Company's best estimate thereof at such
date.
SECTION 4.13. Information as to Equity Interests and Instruments
Owned by the Vlasic Companies. (a) Schedule 1 to the Security Agreement sets
forth a correct and complete list, as of the close of business on the Effective
Date, identifying each Subsidiary, its jurisdiction of organization, its
outstanding Equity Interests, the owner thereof and the percentage thereof owned
by such owner.
(b) Schedule 1 to the Security Agreement also sets forth a correct
and complete list, as of the close of business on the Effective Date, of all
Equity Interests in Persons (other than Subsidiaries) owned by the Domestic
Vlasic Companies, the jurisdiction of organization thereof, the owner thereof
and the percentage thereof owned by such owner.
(c) As of the close of business on the Effective Date, no Debt
(including Permitted Intercompany Debt) owed to any Domestic Vlasic Company is
evidenced by an instrument (as such term is defined in the UCC) that is not
pledged to the Collateral Agent pursuant to the Security Agreement.
SECTION 4.14. Year 2000 Compliance. Before the Effective Date, the
Company initiated, and from time to time after the Effective Date, the Company
will continue, a review and assessment of all areas within its and its
Subsidiaries' businesses and operations (including those affected by material
suppliers and material vendors) that could be adversely affected by the "Year
2000 Problem" (that is, the risk that computer applications used by it or any of
its Subsidiaries (or their respective material suppliers and material vendors)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999). Before
the Effective Date, the Company did, and after the Effective Date, the Company
will continue to, develop a plan and timeline for addressing the Year 2000
Problem on a timely basis and
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from time to time implement that plan in accordance with that timetable. The
Company reasonably believes that (i) all computer applications (including those
of its suppliers and vendors) that are material to its or any of its
Subsidiaries' businesses and operations will on a timely basis be able to
perform properly date-sensitive functions for all dates before and after January
1, 2000, except to the extent that a failure to do so could not reasonably be
expected to have a Material Adverse Effect, and (ii) the cost to the Company of
addressing the Year 2000 Problem will not have a Material Adverse Effect.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Credit Exposure
or any interest or fee payable under any Financing Document remains unpaid:
SECTION 5.01. 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, (i) a consolidated and consolidating balance
sheet of the Company and its Consolidated Subsidiaries as of the end
of such Fiscal Year, (ii) the related consolidated and consolidating
statement of earnings of the Company and its Consolidated
Subsidiaries for such Fiscal Year and (iii) the related consolidated
statements of cash flows and of shareowners' equity of the Company
and its Consolidated Subsidiaries for such Fiscal Year, all such
consolidated statements 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,
(i) a consolidated and consolidating balance sheet of the Company and
its Consolidated Subsidiaries as of the end of such Fiscal Quarter,
(ii) the related consolidated and consolidating statement of earnings
for such Fiscal Quarter, (iii) the related consolidated and
consolidating statement of earnings for the portion of the Fiscal
Year ended at the end of such Fiscal Quarter and (iv) the related
consolidated statement 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
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the chief financial officer or chief accounting officer of the
Company (i) setting forth in reasonable detail the calculations
required to establish (x) whether the Company was in compliance with
the requirements of Sections 5.10 to 5.19, inclusive, on the date of
such financial statements and (y) if the certificate is delivered
after July 31, 1999, 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) at least 15 days before the beginning of each Fiscal Year, the
Company's operating budget and projections for such Fiscal Year,
which shall contain such information and be in such form as shall be
satisfactory to the Administrative Agent and shall be based on
reasonable assumptions that as of their date shall represent an
estimate of the future performance of the Company and its
Subsidiaries that is no better than the Company's best estimate
thereof at such time;
(e) within 30 days after the end of each of the first two four-week
accounting periods in each Fiscal Quarter (except the first such
four-week accounting period in each Fiscal Year), a consolidated
statement of earnings of the Company and its Consolidated
Subsidiaries for such period and for the year-to-date, in each case
compared to the projections for such period and year-to-date
delivered pursuant to clause (d) above;
(f) within five days after any Financial Officer obtains knowledge
of any Default, if such Default is then continuing, a certificate of
a Financial Officer setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(g) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) filed by the Company with the
SEC;
(h) promptly upon the mailing thereof to the shareowners of the
Company generally, copies of all annual reports to shareowners and
proxy statements so mailed;
(i) as soon as reasonably practicable after any Financial Officer
obtains knowledge of the commencement of, or a threat of the
commencement of, an action, suit or proceeding against or affecting
the Company or any of its Subsidiaries (or any prior owner of any of
the
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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 (i) could have a Material
Adverse Effect or (ii) in any manner draws into question the validity
or enforceability of any Financing Document or Spin-Off Agreement, a
certificate of a Financial Officer setting forth the nature of such
pending or threatened action, suit or proceeding and such additional
information with respect thereto as may be reasonably requested by
the Administrative Agent;
(j) 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) 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 a Financial Officer
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
(k) from time to time such additional information regarding the
financial position or business of any Vlasic Company as the
Administrative Agent, at the request of any Bank, may reasonably
request.
Information required to be delivered pursuant to clauses (a), (b), (g) and (h)
above shall be deemed to have been delivered on the date on which the Company
provides notice to the Banks that such information has been posted on the
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Company's website on the Internet at the website address listed on the signature
pages hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in
such notice and accessible by the Banks without charge; provided that (i) such
notice may be included in a certificate delivered pursuant to clause (c) above
and (ii) the Company shall deliver paper copies of the information referred to
in clauses (a), (b), (g) and (h) above to any Bank which requests such delivery.
SECTION 5.02. 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 (i)
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 (ii) 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.
(c) On or before the Effective Date, the Company shall (i) cause the
Collateral Agent to be named as an additional insured and loss payee on each
property insurance policy maintained by any Domestic Vlasic Company and (ii)
deliver to the Administrative Agent and the Collateral Agent a certificate from
the Company's insurance broker (A) showing the amount of insurance coverage for
the Domestic Vlasic Companies as of such date, (B) certifying that such coverage
satisfies the requirements of subsection (b) above and (C) with respect to each
property insurance policy maintained by any Domestic Vlasic Company, certifying
that such policy includes an effective waiver by the insurer of all claims for
insurance premiums against all loss payees and additional insureds and all
rights of subrogation against all loss payees and additional insureds and that
no cancellation, reduction in amount or material change in coverage thereof
shall be effective until at least 30 days after receipt by such additional
insured and loss payee of written notice thereof.
(d) The Company will furnish to the Banks, upon request from the
Administrative Agent, information presented in reasonable detail as to the
insurance carried by the Vlasic Companies or the self-insurance maintained by
them. Before the Company or any Subsidiary cancels, fails to renew or makes any
material change in the coverage of any material insurance policy, the Company
shall notify the Administrative Agent thereof. Within five days of the receipt
by the Company or any Subsidiary from any insurer of a notice of
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cancellation, nonrenewal or material change in coverage of any material
insurance policy, the Company shall notify the Administrative Agent thereof.
(e) If the Secured Obligations of the Domestic Vlasic Companies are
secured by real property pursuant to Section 5.08(a)(iv), the Company shall, and
shall cause its Domestic Subsidiaries to, maintain such insurance with
financially sound and responsible insurance companies as may be reasonably
requested by the Administrative Agent (at the request of the Required Banks) to
protect the value of the assets securing such Secured Obligations.
(f) If any Vlasic Company fails to maintain any insurance policy
required to be maintained under this Section, the Collateral Agent shall have
the right to maintain such policy or obtain a comparable policy, and in either
case pay the premiums therefor. If the Collateral Agent maintains or obtains any
such policy and pays the premiums therefor, the Company will reimburse the
Collateral Agent upon demand for its expenses in connection therewith, including
interest thereon for each day at a rate per annum equal to the sum of 1% plus
the rate applicable to Base Rate Loans for such day.
SECTION 5.03. Conduct of Business and Maintenance of Existence. The
Vlasic Companies will continue to engage in business of the same general type as
now conducted by the Vlasic Companies. Each Vlasic Company will preserve, renew
and keep in full force and effect its existence and its rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section shall prevent any merger, consolidation or transfer
of assets permitted by Section 5.09.
SECTION 5.04. 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.
SECTION 5.05. 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,
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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 a Financial Officer
at least three Domestic Business Days' notice of such visit, examination and/or
discussion and a reasonable opportunity to participate therein in person or
through a designated representative.
SECTION 5.06. 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 5.07. Guarantees by Future Domestic Subsidiaries. If any
Person becomes a Domestic Subsidiary after the Effective Date, the Company will,
within five Domestic Business Days after such Person becomes a Domestic
Subsidiary, (i) cause such Domestic Subsidiary to guarantee the Company's
obligations hereunder pursuant to a Subsidiary Guaranty Agreement and (ii)
deliver to the Administrative Agent such legal opinions and other documents as
the Administrative Agent may reasonably request relating to the existence of
such Domestic Subsidiary, the corporate or other authority for and validity of
its Subsidiary Guaranty Agreement and any other matters relevant thereto, all in
form and substance satisfactory to the Administrative Agent.
SECTION 5.08. Future Assets to Be Added to Collateral. (a) Unless the
Security Release Date shall have occurred, the Company shall:
(i) within five Domestic Business Days after any Person
becomes a Domestic Subsidiary, cause all Equity Interests in such
Person owned by the Vlasic Companies to be pledged under the Security
Agreement;
(ii) within five Domestic Business Days after any Person
becomes a Foreign Subsidiary, cause all Equity Interests in such
Person owned by the Vlasic Companies (but not more than 66% of the
outstanding voting Equity Interests in such Person) to be pledged
under the Security Agreement;
(iii) within five Domestic Business Days after any Person
becomes a Domestic Subsidiary, (A) cause such Domestic Subsidiary to
sign and deliver a Security Agreement Supplement granting a Lien or
Liens on substantially all the personal property included in its
assets (with the exceptions set forth in the proviso at the end of
Section 3 of the
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Security Agreement and such other exceptions as the Agents shall have
approved in writing) to the Collateral Agent to secure its Secured
Obligations and (B) cause such Domestic Subsidiary to comply with the
provisions thereof and of the Security Agreement; and
(iv) on or before July 1, 1999 (unless the Partial Refinancing
shall have been completed before July 1, 1999), further secure, and
cause each Domestic Vlasic Company to further secure, its Secured
Obligations by Liens on substantially all its real property (with
such exceptions as the Agents shall have approved in writing) and to
deliver to the Collateral Agent all such mortgages, deeds of trust,
leasehold mortgages and other documents, together with the
appropriate UCC forms for any related fixture filings, as shall be
required (or reasonably requested by the Collateral Agent) to grant,
record, perfect and protect such Liens, all in form and substance
reasonably satisfactory to the Collateral Agent.
(b) Whenever any Equity Interest, real property or other asset is
added to the Collateral pursuant to this Section, the Company shall deliver to
the Administrative Agent such legal opinions and other documents as the
Administrative Agent may reasonably request relating to the existence of the
relevant Lien Grantor, the corporate or other authority for and validity of the
Collateral Documents applicable thereto, the creation and perfection (or due
recordation) of the Lien purportedly created thereby, the name of the legal
owner of any such real property and the accuracy of the legal description
thereof, and any other matters relevant thereto, all in form and substance (and
from counsel) reasonably satisfactory to the Administrative Agent.
SECTION 5.09. Mergers and Sales of Assets. (a) The Company will not
(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 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 Domestic 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 its assets to any Person; provided
that any Domestic Subsidiary may consolidate or merge with, or transfer its
assets to, the Company or any other Domestic Subsidiary if, immediately after
giving effect to such transaction, no Default shall have occurred and be
continuing.
(c) No Foreign Subsidiary will (i) consolidate or merge with or into
any other Person or (ii) sell, lease or otherwise transfer, directly or
indirectly, all or
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any substantial part of its assets to any Person; provided that any Foreign
Subsidiary may consolidate or merge with, or transfer its assets to, any other
Vlasic Company if, immediately after giving effect to such transaction, no
Default shall have occurred and be continuing.
(d) Notwithstanding the restrictions in the foregoing subsections of
this Section, nothing in this Section shall prohibit any Permitted Asset
Securitization.
SECTION 5.10. Negative Pledge. No Vlasic Company will create, assume
or suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(i) Liens existing on February 20, 1998 securing Debt
outstanding on February 20, 1998 in an aggregate principal amount not
exceeding $10,000,000;
(ii) Liens created pursuant to the Collateral Documents;
(iii) 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;
(iv) 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;
(v) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into a Vlasic Company
and not created in contemplation of such event;
(vi) any Lien existing on any asset prior to the acquisition
thereof by a Vlasic Company and not created in contemplation of such
acquisition;
(vii) any Lien created for the direct or indirect benefit of
the purchasers or lenders in connection with any Permitted Asset
Securitization after the Security Release Date;
(viii) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the
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foregoing provisions of this Section; provided that such Debt is not
increased and is not secured by any additional assets;
(ix) any Lien arising in the ordinary course of its business
which (1) does not secure any Debt, any Derivatives Obligation or any
obligation to reimburse a bank for amounts drawn under a letter of
credit and (2) does not secure any single obligation (or class of
obligations having a common cause) in an amount exceeding
$20,000,000;
(x) any Lien in favor of the Company or any Lien created by a
Subsidiary in favor of a Domestic Subsidiary; and
(xi) any other Lien; provided that the aggregate amount
secured by all Liens excluded pursuant to this clause (xi) shall not
exceed $2,000,000.
SECTION 5.11. Limitation on Indebtedness. No Vlasic Company will
incur or at any time be liable with respect to any Debt except:
(a) Debt outstanding on August 30, 1998 not exceeding
$18,400,000 in aggregate principal amount and identified on Schedule
5.11 hereto and refinancings thereof; provided that the principal
amount thereof is not increased beyond the amount outstanding
thereunder on August 30, 1998;
(b) Debt incurred or assumed under this Agreement;
(c) Debt incurred after the Effective Date, to the extent that
the Net Cash Proceeds thereof are to be applied to prepay Loans as
required by Section 2.12(b);
(d) Permitted Intercompany Debt;
(e) Permitted Acquisition Debt;
(f) Debt of the Target of any Permitted Investment (subject to
the limit in clause (v) of the definition of "Permitted Investment");
(g) Debt incurred by Foreign Subsidiaries to finance their
working capital needs;
(h) Debt secured by Liens permitted by Section 5.10; and
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(i) Debt of the Vlasic Companies not otherwise permitted by
this Section incurred after the Effective Date in an aggregate
principal amount at any time outstanding not to exceed $2,000,000.
SECTION 5.12. Subsidiary Debt Limitation. Total Debt of all Domestic
Subsidiaries (excluding Debt owed by a Domestic Subsidiary to another Domestic
Vlasic Company) will at no time exceed $20,000,000.
SECTION 5.13. Debt/EBITDA Ratio. At the end of each Fiscal Quarter
specified below, the Debt/EBITDA Ratio will not be higher than the ratio
specified for such Fiscal Quarter below:
FISCAL QUARTER RATIO
-------------- -----
First Fiscal Quarter of Fiscal 1999 5.25 to 1
Second Fiscal Quarter of Fiscal 1999 6.00 to 1
Third Fiscal Quarter of Fiscal 1999 5.00 to 1
Fourth Fiscal Quarter of Fiscal 1999 4.00 to 1
and each Fiscal Quarter thereafter
SECTION 5.14. Fixed Charge Coverage Ratio. At the end of each Fiscal
Quarter specified below, the Fixed Charge Coverage Ratio will not be lower than
the ratio specified for such Fiscal Quarter below:
FISCAL QUARTER RATIO
-------------- -----
First Fiscal Quarter of Fiscal 1999 3.00 to 1
Second Fiscal Quarter of Fiscal 1999 2.50 to 1
Third Fiscal Quarter of Fiscal 1999 2.60 to 1
Fourth Fiscal Quarter of Fiscal 1999 2.80 to 1
Each Fiscal Quarter thereafter 3.00 to 1
SECTION 5.15. Restricted Payments. No Vlasic Company will declare or
make any Restricted Payment before the end of Fiscal 1999. No Vlasic Company
will declare or make any Restricted Payment thereafter unless the Partial
Refinancing shall have been completed and, immediately after giving effect to
such Restricted Payment, (i) no Default would exist and (ii) the aggregate of
all Restricted Payments declared or made after the completion of the Partial
Refinancing does not exceed 25% of the consolidated net earnings of the Company
and its Consolidated Subsidiaries for the period from August 2, 1998 through the
end of the then most recent Fiscal Quarter (treated for this purpose as a single
accounting period).
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SECTION 5.16. Capital Expenditures. Consolidated Capital Expenditures
will not, for any Fiscal Year listed below, exceed the amount indicated for such
Fiscal Year:
FISCAL YEAR AMOUNT
----------- ------
1999 $52,000,000
2000 $58,000,000
2001 $63,000,000
2002 $65,000,000
2003 $68,000,000
SECTION 5.17. Reinvestment of Asset Sale Proceeds and Casualty
Proceeds. If any Domestic Vlasic Company receives any Net Cash Proceeds of an
Asset Sale or any Casualty Proceeds (collectively, "REINVESTABLE PROCEEDS"), the
Company may elect to defer the related prepayment of Loans that would otherwise
be required by Section 2.12(a) or 2.12(d), by delivering notice of such election
to the Administrative Agent at least one Domestic Business Day before such
prepayment would otherwise be required. If the Company elects to defer such
prepayment, such Reinvestable Proceeds shall be deposited in the appropriate
Collateral Accounts established pursuant to Section 6 of the Security Agreement
and applied as follows:
(i) such Reinvestable Proceeds will be released by the
Collateral Agent from time to time, at the Company's request in
accordance with Section 6 of the Security Agreement, either (x) to
repair or replace (or to reimburse a Vlasic Company for amounts
previously spent to repair or replace) the asset in respect of which
such Reinvestable Proceeds were received (the "RELEVANT ASSET") or
(y) to prepay Loans pursuant to Section 2.12(a) or 2.12(d), as
applicable; provided that the Company shall not request the release
of any Reinvestable Proceeds if an Event of Default shall have
occurred and be continuing, and the Collateral Agent shall not
release any Reinvestable Proceeds if it shall have received notice
from the Administrative Agent of the occurrence of an Event of
Default and such notice shall not have been rescinded;
(ii) if within 90 days after such Reinvestable Proceeds were
received, the Company shall not have either (x) applied the full
amount of such Reinvestable Proceeds pursuant to clause (i) above or
(y) notified the Administrative Agent that it is committed to expend
the full amount of the remaining Reinvestable Proceeds to repair or
replace the Relevant Asset, the amount by which such Reinvestable
Proceeds exceeds the aggregate amount so applied or committed shall
be applied within two Domestic
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Business Days after the end of such 90-day period to prepay Loans
pursuant to Section 2.12(a) or Section 2.12(d), as applicable;
(iii) any amount of Reinvestable Proceeds retained in a
Collateral Account after the foregoing 90-day period because the
Company has notified the Administrative Agent that it is committed to
expend such amount to repair or replace the Relevant Asset may be
retained in such Collateral Account and applied pursuant to clause
(i) above for a period ending twelve months after the Relevant Asset
was sold, damaged, condemned or transferred in lieu of condemnation;
and
(iv) any Reinvestable Proceeds remaining in a Collateral
Account at the end of such twelve-month period shall be applied,
within two Domestic Business Days thereafter, to prepay Loans
pursuant to Section 2.12(a) or 2.12(d), as applicable.
SECTION 5.18. Cash Consideration for Asset Sales. (a) No Vlasic
Company will make any Asset Sale or series of related Asset Sales for which the
aggregate consideration received by the Vlasic Companies exceeds $5,000,000,
unless in each case:
(x) the consideration to be received by the Vlasic Companies
is, in the opinion of a Financial Officer, not less than the fair
market value of the assets being sold; and
(y) at least 75% (or 50% in the case of the Kattus Sale) of
such consideration is paid in cash at the closing of such Asset Sale;
provided that, for purposes of this Section, the amount of (A) any liabilities
(as shown on the most recent financial statements of the Company and its
Consolidated Subsidiaries delivered to the Banks pursuant to Section 5.01(a) or
(b)) that are assumed by the transferee of any such assets and (B) any
securities or other obligations received from such transferee that are
immediately converted by such Vlasic Company into cash (or as to which such
Vlasic Company has received, at or before the consummation of such sale, a
commitment (which may be subject to customary conditions) from a nationally
recognized investment, merchant or commercial bank to convert such securities or
other obligations into cash within 90 days after the consummation of such sale
and which are thereafter actually converted into cash within such 90-day period)
will be deemed to be cash (but will not be deemed to be Net Cash Proceeds until
converted to cash).
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SECTION 5.19. Investments and Acquisitions. No Vlasic Company will
make any Asset Acquisition or hold, make or acquire any Investment in any
Person other than:
(a) any Investment in a Person which is a Subsidiary on the
Effective Date;
(b) Temporary Cash Investments;
(c) Permitted Asset Acquisitions and Permitted Investments;
(d) any debt obligation constituting all or part of the
consideration received for assets sold by a Vlasic Company if,
immediately after such debt obligation is acquired, the aggregate
outstanding principal amount of all debt obligations held by the
Vlasic Companies as permitted by this clause (d) does not exceed
$10,000,000;
(e) any Investment in a trust or other entity created for
purposes of any Permitted Asset Securitization after the Security
Release Date; 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 $5,000,000.
For purposes of clauses (d) and (f) above, the amount of each Investment shall
be deemed to be the original amount invested less any principal repaid or
capital returned, but not less than zero.
SECTION 5.20. Transactions with Affiliates. No Vlasic Company will,
directly or indirectly, (i) pay any funds to or for the account of any
Affiliate, (ii) 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), (iii) lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to any Affiliate, or (iv) 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 such Vlasic Company 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.
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SECTION 5.21. Certain Amendments. No Vlasic Company will amend its
Organizational Documents or any of the Spin-Off Agreements in any manner which
could adversely affect the rights of the Agents or the Banks under the Financing
Documents or their ability to enforce the same.
SECTION 5.22. Limitations on Restrictions Affecting Subsidiaries. No
Vlasic Company will enter into, or suffer to exist, any agreement (other than
the Financing Documents) which prohibits or limits the ability of any Subsidiary
to (i) pay dividends or make other distributions or pay any Debt owed to any
other Vlasic Company, (ii) make loans or advances to any other Vlasic Company or
(iii) create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, to secure
its Secured Obligations; provided that the foregoing shall not prohibit any such
prohibition or limitation contained in:
(a) any document relating to Debt secured by a Lien permitted
by Section 5.10, insofar as the provisions thereof limit grants of
junior liens on the assets securing such Debt;
(b) any document relating to Debt of Foreign Subsidiaries
permitted by Section 5.11(a) or (g);
(c) any operating lease or capital lease, insofar as the
provisions thereof limit grants of a security interest in, or other
assignments of, the related leasehold interest to any other Person;
and
(d) if a Person becomes a Subsidiary of the Company after the
Effective Date, any agreement that is binding on such Person and was
not entered into in contemplation of its becoming a Subsidiary,
insofar as such agreement limits such Person's ability to take any
action described in clause (i), (ii) or (iii) of this Section,
provided that either:
(1) such limitation is terminated within 60 days
after such Person becomes a Subsidiary or
(2) not more than 5% of Consolidated EBITDA for any
period of four consecutive Fiscal Quarters ending after
such Person becomes a Subsidiary (determined on a pro forma
basis assuming that all Persons that are Subsidiaries at
the end of such period were Subsidiaries at the beginning
of such period) is attributable, in the aggregate, to
Persons that become Subsidiaries after the Effective Date
and remain subject to such limitations more than 60 days
after becoming Subsidiaries.
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ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) the Company shall (i) fail to pay when due any principal
of any Loan or (ii) 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 5.01(f) or Sections 5.07 to 5.18, inclusive or
the Company or any Domestic Subsidiary shall fail to observe or
perform any covenant contained in Section 5(a), (b) or (j) of the
Security Agreement;
(c) the Company or any Domestic Subsidiary shall fail to
observe or perform any covenant or agreement contained in this
Agreement or any other Financing Document (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 any Domestic Subsidiary in this Agreement or
any other Financing Document or in any certificate, financial
statement or other document delivered by the Company pursuant hereto
or thereto shall prove to have been incorrect in any material respect
when made (or deemed made pursuant to the last sentence of Section
3.03);
(e) any Vlasic Company 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;
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(f) an involuntary case or other proceeding shall be commenced
against any Vlasic Company 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 entered against any Vlasic Company 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 $10,000,000 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 $10,000,000;
(h) a judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Vlasic Company and such
judgment or order shall continue unsatisfied and unstayed for a
period of 30 days;
(i) one or more Vlasic Companies shall fail to repay Material
Debt at the maturity thereof;
(j) 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;
(k) any Lien created by the Collateral Documents shall at any
time fail to constitute a valid and perfected Lien on all of the
Collateral
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purported to be subject to such Lien, subject to no prior or equal
Lien, or any Vlasic Company shall so assert in writing, or any
provision of any Subsidiary Guaranty Agreement shall cease to be in
full force and effect or any Vlasic Company, or any Person acting on
behalf of any Vlasic Company, shall so assert in writing; or
(l) (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 Revolving Credit
Commitments, by notice to the Company terminate the Revolving Credit 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 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 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 any other act by the Administrative Agent or the Banks,
the Revolving Credit 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.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Company under Section 6.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. (a) 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 the
Financing Documents as are delegated to the Administrative Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto.
(b) Each Bank irrevocably appoints and authorizes the Collateral
Agent to take such action as Collateral Agent on its behalf and to exercise such
powers under the Financing Documents as are delegated to the Collateral Agent by
the terms thereof, together with all such powers as are reasonably incidental
thereto.
SECTION 7.02. Agents and Affiliates. Xxxxxx Guaranty Trust Company of
New York shall have the same rights and powers under the Financing Documents as
any other Bank and may exercise or refrain from exercising the same as though it
were not an 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 any Vlasic Company or Xxxxxxxx or any Subsidiary or
affiliate of any Vlasic Company or Xxxxxxxx as if it were not an Agent.
SECTION 7.03. Action by Agents. The obligations of each 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 6, and the Collateral Agent shall not be required to take any action
with respect to any Default except as expressly provided in the Security
Agreement.
SECTION 7.04. Consultation with Experts. Each Agent may consult with
legal counsel (who may be counsel for any Vlasic Company), independent public
accountants and other experts selected by it and shall not be liable 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 7.05. Liability of Agents. None of the Agents, their
respective affiliates and their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by such Agent 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. None
of the Agents, their respective affiliates and their respective directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any
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statement, warranty or representation made in connection with the Financing
Documents or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any Vlasic Company; (iii) the satisfaction of
any condition specified in Article 3, except, in the case of the Administrative
Agent, receipt of items required to be delivered to the Administrative Agent; or
(iv) the validity, effectiveness or genuineness of any Financing Document or any
other instrument or writing furnished in connection therewith. Neither Agent
shall 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
Agents 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 administrative relationships between independent contracting
parties.
SECTION 7.06. Indemnification. The Banks shall, ratably in accordance
with their respective Credit Exposures, indemnify the Administrative Agent, the
Collateral 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 any Financing Document or any
action taken or omitted by such indemnitees thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Syndication Agent, the
Administrative Agent, the Collateral 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, the Collateral Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Successor Agents. 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,
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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 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, 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 the
Administrative Agent hereunder. The Collateral Agent may resign as provided in
the Security Agreement.
SECTION 7.09. Agents' Fees. The Company shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and such Agent.
SECTION 7.10. Syndication Agent. Nothing in this Agreement shall
impose upon the Syndication Agent, in its capacity as such, any duty or
responsibility whatsoever.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. 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 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,
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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 rate applicable to Base
Rate Loans for such day.
SECTION 8.02. Illegality. If, on or after February 20, 1998, 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.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) February 20, 1998, 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 February 20, 1998,
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
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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.
(c) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge, occurring after
February 20, 1998, 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 8.04. Taxes. (a) For the purposes of this Section, 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 any
Vlasic Company pursuant to any Financing Document, and all liabilities with
respect thereto, excluding (i) in the case of each Bank and each 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 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 any Financing Document or from the
execution or delivery of, or otherwise with respect to, any Financing Document.
(b) Any and all payments by the Company to or for the account of any
Bank or Agent under any Financing Document 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 Agent (as the case may be) receives an amount equal to the
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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 shall furnish to the Administrative Agent,
at its address referred to in Section 9.01, the original or a certified copy of
a receipt evidencing payment thereof.
(c) The Company agrees to indemnify each Bank and each 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 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
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 8.04(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 8.04(b) or 8.04(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
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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.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate. If
(i) the obligation of any Bank to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03 or 8.04 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 9
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Company, the Administrative Agent or the Collateral Agent, at its
address or facsimile number set forth on the signature pages hereof, (y) in the
case of any Bank, at its address or facsimile number set forth in its
Administrative Questionnaire, (z) or in the case of any party, at such other
address or facsimile 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 facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this
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Section; provided that notices to the Administrative Agent under Article 2 or
Article 8 shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by any Agent or any
Bank in exercising any right, power or privilege under any Financing Document
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 9.03. Expenses; Indemnification. (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Agents, including reasonable
fees and disbursements of special counsel for the Administrative Agent, in
connection with the preparation and administration of this Agreement or any
other Financing Document, any waiver or consent hereunder or any amendment
hereof or thereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs, all out-of-pocket expenses incurred by the Agents 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 agrees to indemnify each 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 any Financing Document 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 9.04. 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
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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 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 9.05. 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 9.04, 9.05 or 9.06(a).
SECTION 9.06. Successors and Assigns. (a) 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 Revolving
Credit 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 Agents
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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 Vlasic Companies under the Financing Documents including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of any Financing Document; 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 9.05 without the consent of the Participant. The Company agrees that
each Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Article 8 and Sections 2.14 and 2.16 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 $5,000,000) 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 G 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 Bank or an affiliate of a 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
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deduction or withholding of United States federal income taxes in accordance
with Section 8.04.
(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 8.03 or
8.04 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 8.02, 8.03 or 8.04
requiring such Bank to designate a different Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.07. 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 9.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. The Company 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 the
Financing Documents or the transactions contemplated hereby. The Company
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 9.09. Counterparts; Integration. This Agreement and any
amendment hereto 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.
SECTION 9.10. WAIVER OF JURY TRIAL. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
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BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE FINANCING
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
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IN WITNESS WHEREOF, the undersigned parties 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: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and CFO Title: President and CEO
Address: Vlasic Plaza
6 Executive Campus
Xxxxxx Xxxx, XX 00000-0000
Facsimile: 000-000-0000
Website: xxx.xxxxxx.xxx
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxxx Xxxxx-Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx-Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA NT&SA
By: /s/ X.X. Xxxx
------------------------------
Name: X.X. Xxxx
Title: M.D.
92
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
BARCLAYS BANK PLC
By: /s/ X. Xxxxxx
------------------------------
Name: X. Xxxxxx
Title: Director
CITIBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Attorney in Fact
DEUTSCHE BANK AG NEW YORK
and/or CAYMAN ISLANDS
BRANCHES
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/ Xxxx-Xxxxx Xxxxxx
------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
93
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: Corporate Banking Officer
FLEET NATIONAL BANK
By: /s/Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: FIRST VICE PRESIDENT
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx Zift
Name: Xxxxx Zift
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
00
XXX XXXX XX XXX XXXX
By: /s/ W.C. Parrcci
Name: W.C. Parrcci
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: S.V.P.
SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
Name: W. Xxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Operations Officer
00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX XXX XXXX
BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
Name: XXXXXXX XXXXXXXXX
Title: DIRECTOR
By: /s/ Xxxxxx X. Xxxxx III
Name: XXXXXX X. XXXXX III
Title: Associate
BANCA NAZIONALE DEL LAVORO
S.p.A.-NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
THE CHASE MANHATTAN BANK, as
Syndication Agent
By: /s/ Xxxxx X. Xxxxx
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
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COMMITMENT SCHEDULE
REVOLVING
BANK CREDIT COMMITMENT TERM LOANS COMMITMENT
---- ----------------- ---------- ----------
Xxxxxx Guaranty Trust Company of New York $51,333,333.34 $9,333,333.34 $60,666,666.68
The Chase Manhattan Bank $51,333,333.34 $9,333,333.34 $60,666,666.68
Bank of America NT&SA $33,733,333.34 $6,133,333.34 $39,866,666.68
Bank of Montreal $33,733,333.34 $6,133,333.34 $39,866,666.68
Barclays Bank PLC $33,733,333.34 $6,133,333.34 $39,866,666.68
Citibank, N.A. $33,733,333.33 $6,133,333.33 $39,866,666.66
Deutsche Bank AG New York and/or Cayman Islands $33,733,333.33 $6,133,333.33 $39,866,666.66
Branches
The First National Bank of Chicago $33,733,333.33 $6,133,333.33 $39,866,666.66
Fleet National Bank $33,733,333.33 $6,133,333.33 $39,866,666.66
Mellon Bank, N.A. $33,733,333.33 $6,133,333.33 $39,866,666.66
PNC Bank, National Association $33,733,333.33 $6,133,333.33 $39,866,666.66
Wachovia Bank, N.A. $33,733,333.33 $6,133,333.33 $39,866,666.66
The Bank of New York $25,666,666.67 $4,666,666.67 $30,333,333.34
The Bank of Nova Scotia $18,333,333.33 $3,333,333.33 $21,666,666.66
First Union National Bank $18,333,333.33 $3,333,333.33 $21,666,666.66
SunTrust Bank, Atlanta $18,333,333.33 $3,333,333.33 $21,666,666.66
Westdeutsche Landesbank Girozentrale New York $18,333,333.33 $3,333,333.33 $21,666,666.66
Branch
Banca Nazionale del Lavoro S.p.A.- New York Branch $11,000,000.00 $2,000,000.00 $13,000,000.00
-------------- ------------- --------------
TOTAL $550,000,000.00 $100,000,000.00 $650,000,000.00
-----
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RATIO-BASED PRICING SCHEDULE
For any day on or after the Grid Pricing Commencement Date, each of
"FACILITY FEE RATE", "EURO-DOLLAR MARGIN", "CD MARGIN" and "BASE RATE MARGIN"
means 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 Xxxxx XX Xxxxx X Xxxxx XX Xxxxx XXX
Facility Fee Rate 0.085% 0.100% 0.150% 0.175% 0.250% 0.250% 0.500%
Euro-Dollar Margin 0.250% 0.350% 0.550% 0.700% 1.125% 1.250% 1.500%
CD Margin 0.375% 0.475% 0.675% 0.825% 1.250% 1.375% 1.625%
Base Rate Margin 0 0 0 0 0.125% 0.250% 0.500%
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 5.01(a) or 5.01(b); provided
that (i) if a Default exists under Section 5.01(a), 5.01(b) or 5.01(c) on any
such day, the Applicable Debt/EBITDA Ratio for such day shall be deemed to be
greater than 4.0 to 1 and (ii) subject to the foregoing clause (i), the
Debt/EBITDA Ratio at the end of Fiscal 1999 shall apply for any day from and
including the Grid Pricing Commencement Date to but excluding the date the
Company delivers financial statements with respect to the first Fiscal Quarter
of Fiscal 2000 pursuant to Section 5.01(b).
"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, the Applicable
Debt/EBITDA Ratio is greater than or equal to 3.0 to 1 but less than 3.5 to 1.
98
"LEVEL VI PRICING" applies for any day if, on such day, the Applicable
Debt/EBITDA Ratio is greater than or equal to 3.5 to 1 but less than 4.0 to 1.
"LEVEL VII 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, Level IV, Level V, Level VI or Level VII Pricing applies for any
day.
99
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 > 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 > 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.
100
"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).
101
SCHEDULE 1.01
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
102
SCHEDULE 5.17
DEBT OUTSTANDING AT AUGUST 30, 1998
DEBTOR AMOUNT EXCHANGE RATE US$ OR EQUIVALENT
Xxxxxxxx Grocery Products DM 2,280,000 (short-term) 1.7585 $1,297,000
GmbH and Xxxxxxx Xxxxxx DM 3,017,000 (long-term) 1.7585 $1,716,000
GmbH
Freshbake Foods Limited (pound sterling)1,582,000 1.6806 $2,658,000
Swift Armour Sociedad $11,939,000
Anonima Argentina
Capitalized Leases (current $369,000
portion)
Capitalized Leases (long-term $382,000
portion)
TOTAL $18,361,000
000
XXXXXXX X
XXXX XX XXXX
Xxx Xxxx, Xxx Xxxx
___________ __, 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.
104
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:
105
LOANS AND PAYMENTS OF PRINCIPAL
AMOUNT OF TYPE OF AMOUNT OF MATURITY NOTATION
DATE LOAN LOAN PRINCIPAL REPAID DATE MADE BY
106
EXHIBIT B
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "ADMINISTRATIVE AGENT")
From: VLASIC FOODS INTERNATIONAL INC.
Re: Amended and Restated Credit Agreement dated as of September 30, 1998,
as amended (the "CREDIT AGREEMENT") among Vlasic Foods International
Inc., the Banks party thereto, The Chase Manhattan Bank, as Syndication
Agent, and Xxxxxx Guaranty Trust Company of New York, as Administrative
Agent and Collateral Agent.
We hereby give notice pursuant to Section 2.03 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 $5,000,000 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.
107
EXHIBIT C
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 2.03 of the Amended and Restated Credit Agreement
dated as of September 30, 1998, as amended, among the Company, the Banks party
thereto, The Chase Manhattan Bank, as Syndication Agent, and the undersigned, as
Administrative Agent and Collateral 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 $5,000,000 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.
108
EXHIBIT D
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:
PRINCIPAL AMOUNT(1) INTEREST PERIOD(2) [MONEY MARKET MARGIN(3)] [ABSOLUTE RATE(4)]
$
$
[provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $____________.](2)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Amended and
Restated Credit Agreement dated as of September 30, 1998, as amended, among the
Company, the Banks party thereto, The Chase Manhattan Bank, as Syndication
Agent, and yourselves, as Administrative Agent and Collateral 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,
--------
(1) As specified in the related Invitation.
109
[NAME OF BANK]
Dated: By:
Authorized Officer
110
1. 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.
2. 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.
3. 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".
4. Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
2
