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EXHIBIT 10.1
AMENDMENT NO. 2 AND WAIVER NO. 5
UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT AND WAIVER dated as of June 28, 2000 under the Amended and
Restated Credit Agreement dated as of September 30, 1998 (the "CREDIT
AGREEMENT") among VLASIC FOODS INTERNATIONAL INC. (the "COMPANY"), the BANKS
party thereto, THE CHASE MANHATTAN BANK, as Syndication Agent, and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (in such capacity,
the "ADMINISTRATIVE AGENT") and Collateral Agent.
W I T N E S S E T H :
WHEREAS, the Company has advised the Banks that at the end of the third
Fiscal Quarter of Fiscal 2000 its Debt/EBITDA Ratio and its Fixed Charge
Coverage Ratio (each as defined in the Credit Agreement) did not meet the
requirements of Sections 5.13 and 5.14, respectively, of the Credit Agreement,
and it has further advised the Banks that it believes it will be unable to be in
compliance with such provisions at the end of the fourth Fiscal Quarter of
Fiscal 2000 and the first Fiscal Quarter of Fiscal 2001 and at additional times
thereafter;
WHEREAS, the Company has requested the Banks to grant an extension of
interim waivers under the Credit Agreement granted in Waiver No. 3 dated as of
February 29, 2000, as extended by Waiver No. 4 dated as of June 14, 2000
("WAIVER NO. 3"); and
WHEREAS, the Banks party hereto are willing to extend such interim
waivers under the Credit Agreement, on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. (a) Unless otherwise specifically defined
herein, each term used herein that is defined in the Credit Agreement shall have
the meaning assigned to such term in the Credit Agreement.
(b) The definition of "Net Cash Proceeds" in the Credit Agreement is
amended in its entirety to read as follows:
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"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 (including interest and any premium, penalty or make-whole
amount related thereto) secured by a Lien on any asset disposed of in such Asset
Sale and discharged from the proceeds thereof, (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 and its Subsidiaries) as a result of such Asset Sale,
(iii) payments of unassumed liabilities by any Vlasic Company (as reasonably
estimated by a senior financial or accounting officer of the Company) relating
to the assets subject to such Asset Sale either in contemplation of, or at the
time of, such Asset Sale, (iv) reasonable reserves for post-closing adjustments
(including, without limitation, purchase price adjustments and indemnification
payments) and anticipated payments of unassumed liabilities relating to the
assets subject to such Asset Sale payable by any Vlasic Company (as reasonably
estimated by a senior financial or accounting officer of the Company), it being
understood and agreed that on the day that all such post-closing adjustments and
unassumed liabilities have been determined (to be a date not later than one year
after the date of such Asset Sale), the amount (if any) by which the reserved
amount in respect of such Asset Sale exceeds the actual post-closing adjustments
and unassumed liabilities payable by any Vlasic Company shall constitute Net
Cash Proceeds on such date, and (v) any severance costs or expenses (including,
without limitation, costs or expenses incurred or to be incurred as a result of
the Company's Special Severance Protection Program) or retention costs or
expenses to be incurred by any Vlasic Company 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
and its Subsidiaries) as a result of such Asset Sale.
(c) As used herein, the following additional terms have the following
meanings:
"BORROWING CONDITION" means the Company may not give any Notice of
Borrowing for Revolving Loans in an amount in excess of its actual Working
Capital Needs for the seven-day period beginning with the related date of
Borrowing, determined consistent with the Company's historical cash management
practices, as certified in reasonable detail by the Company's Chief Financial
Officer, Vice President and Controller or Treasurer in a certificate
accompanying such Notice of Borrowing, provided that if the amount so
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determined is less than $5,000,000, such Borrowing may be in the amount of
$5,000,000.
"BORROWING LIMIT" means, at any time of determination, $185,200,000
minus the aggregate amount by which Revolving Loans have been repaid after the
date hereof pursuant to Section 2.12 of the Credit Agreement.
"CASH BALANCE" means, as at any time of determination, the sum of the
amount of all money, currency and Temporary Cash Investments arising out of its
domestic operations held or carried in any deposit, custody or other account
maintained by the Company or any Domestic Subsidiary (other than any Excluded
Amounts).
"CASH MANAGEMENT BANK" means Mellon Bank, N.A. or any bank that
succeeds Mellon Bank, N.A. as the Company's primary cash management system bank.
"CASH PLAN" means the consolidated cash forecast for the domestic
operations of the Company and its Domestic Subsidiaries for the period from no
later than the first week of July 2000 through the last week (whether partial or
full) of February 2001, showing cash receipts and disbursements (other than in
respect of the principal amount of any Loans) weekly, the net difference
(whether positive or negative, referred to herein as "operating cash flow") and
cumulative net operating cash flow from the beginning of such period through
each succeeding week, including a summary of the significant assumptions upon
which such forecast was based, a copy of which is identified as an attachment to
the Company's letter to the Administrative Agent dated June 28, 2000.
"CASH SWEEP PERIOD" means as of any Domestic Business Day (i) the seven
days beginning on (and including) such Domestic Business Day, provided that (ii)
if on or before such day the Company has delivered to the Administrative Agent,
with a copy for each Bank, a certificate of its President or its Chief Financial
Officer stating that the Company has in connection with the Strategic Process
duly executed (along with the counter-party thereto) a definitive agreement
providing for the sale or other disposition of one or more of its Principal
Businesses (which shall be identified in such certificate) in a transaction (1)
meeting the requirements of Section 5.18 of the Credit Agreement and (2)
containing only conditions to closing customary for a transaction of such
nature, which certificate has attached thereto extracts from such agreement
germane to determining whether such agreement meets the requirements of clause
(y) of Section 5.18 of the Credit Agreement and the requirement of subclause (2)
(which extracts may be redacted to the extent necessary to maintain the
confidentiality of the identity of the counter-party and the price and other
financial terms of such
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agreement), then at the Company's election (which it shall notify to the
Administrative Agent), the Cash Sweep Period shall mean the one-month period
beginning on (and including) such Domestic Business Day, provided further that
if at any time prior to the consummation of a transaction described in clause
(ii) of this definition such agreement ceases to be in full force and effect or
any party thereto exercises a right of termination or the Company, in its
reasonable judgment and acting in good faith, determines that there is a
significant possibility that any condition precedent will be unable to be met,
then the Company shall promptly notify the Administrative Agent, and the
Required Banks may, by notice to the Company, declare the applicability of such
clause (ii) to be ended, whereupon the Cash Sweep Period automatically will
become the period specified in clause (i) of this definition.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, the consolidated
shareowners' equity of the Company and its Consolidated Subsidiaries less their
consolidated Intangible Assets, all determined as of such date. As used herein,
"INTANGIBLE ASSETS" means the amount (to the extent reflected in determining
such consolidated shareowners' equity) of all unamortized goodwill, trademarks
and other intangibles (primarily premium shelf space).
"DISCLOSURE MATERIALS" means (a) the February 10 Call Materials and (b)
the June 7 Meeting Materials.
"DF CONDITION" is satisfied if (i) the DF Participants or the DF
Fronting Bank have entered into the DF Participation Agreement, and the DF
Escrow Account has been created, by no later than July 31, 2000 and (ii) the DF
Participants have deposited an aggregate of $17,500,000 in the DF Escrow Account
by no later than July 31, 2000.
"DF ESCROW ACCOUNT" means an escrow account established by the DF
Participants with a bank reasonably satisfactory to the Agents, subject to an
agreement having provisions as contemplated by the DF Participation Term Sheet.
"DF FRONTING BANK" means a major commercial bank satisfactory to the
Required Banks.
"DF PARTICIPANTS" means those individuals who delivered a commitment
letter substantially in the form of Exhibit A to the Administrative Agent
pursuant to clause (iii) of Section 18(a).
"DF PARTICIPATION AGREEMENT" means a master participation agreement to
which the Participating Banks, the Administrative Agent and either the DF
Participants or the DF Fronting Bank are party, having terms substantially as
described in the DF Participation Term Sheet and otherwise reasonably
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satisfactory to the Required Banks and the DF Participants, pursuant to which
the DF Participants or the DF Fronting Bank, as the case may be, are, on such
terms but otherwise absolutely and unconditionally, obligated to provide funds
in connection with New Revolving Loans made by the Banks.
"DF PARTICIPATION TERM SHEET" means the term sheet captioned
"Supplemental Term Sheet for Waiver No. 5" dated June 26, 2000, with the term
sheet captioned "Term Sheet for Waiver No. 4" dated June 2, 2000 attached
thereto, a copy of which is identified as an attachment to the Company's letter
to the Administrative Agent dated June 28, 2000.
"EXCESS CASH AMOUNT" has the meaning specified in Section 3(d).
"EXCLUDED AMOUNT" means any money, currency or Temporary Cash
Investments held or carried in a Collateral Account maintained by the Collateral
Agent pursuant to the Security Agreement or pledged in compliance with Section
5.10 of the Credit Agreement to secure obligations to reimburse banks for
amounts drawn under letters of credit.
"FACILITY FEES" means the facility fees payable by the Company pursuant
to Section 2.08(a) of the Credit Agreement (as amended or otherwise modified
from time to time, including by the provisions of this Waiver).
"FEBRUARY 10 CALL MATERIALS" means the written materials prepared by
the Company and distributed to the Banks in connection with the lender
conference call held by the Company on February 10, 2000, as identified as
attachments to the Company's letter to the Administrative Agent dated February
17, 2000.
"FEE DETERMINATION DATE" has the meaning specified in Section 18(b).
"INDENTURE" means the Indenture dated as of June 29, 1999 from the
Company to The Bank of New York, as trustee, pursuant to which the Subordinated
Notes were issued.
"JUNE 7 MEETING MATERIALS" means the written materials prepared by or
on behalf of the Company and distributed to the Banks attending the lender
meeting held by the Company on June 7, 2000 at such meeting, as identified as
attachments to the Company's letter to the Administrative Agent dated June 28,
2000.
"MUSHROOMS AGREEMENT" has the meaning specified in the definition of
Mushrooms Sale.
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"MUSHROOMS AMOUNT" means $7,100,000 of the proceeds of the Mushrooms
Sale paid by the Company to the Collateral Agent to be held in the Collateral
Account maintained with it pursuant to the Security Agreement, together with any
interest or other investment income on such amount held in such account.
"MUSHROOMS SALE" means the sale on January 31, 2000 of all of the
outstanding capital stock of Vlasic Farms, Inc. by the Company pursuant to the
Stock Purchase Agreement (the "Mushrooms Agreement") dated as of December 17,
1999 among the Company, Money's Farms (U.S.) Ltd., and Money's Mushrooms Ltd.
"NEW REVOLVING LOANS" means Revolving Loans made pursuant to Section
3(c).
"PARTICIPATING BANK" means a Bank that has evidenced its agreement
hereto as provided in clause (i) of Section 18(a) by 5:00 P.M. on the Fee
Determination Date.
"PRINCIPAL BUSINESS" means any one of the following:
(i) the frozen foods business consisting of Swanson frozen foods in the
United States and Canada, but excluding Freshbake frozen foods in the United
Kingdom;
(ii) the grocery products business consisting of Vlasic retail and
foodservice pickles and condiments in the United States, but excluding (1) Open
Pit barbecue sauce and related brands in the United States and (2) Stratford
upon Avon Foods Limited and Rowats pickles, and canned beans and vegetables in
the United Kingdom;
(iii) Open Pit barbecue sauce and related brands in the United States;
and
(iv) Freshbake frozen foods in the United Kingdom and Stratford upon
Avon Foods Limited and Rowats pickles, and canned beans and vegetables in the
United Kingdom.
"STANDSTILL EXPIRY DATE" means the date on which the Standstill Expiry
Time occurs.
"STANDSTILL EXPIRY TIME" means, if a Standstill Period has commenced
pursuant to Section 4(c), 5:00 P.M. (New York City time) on the date that
otherwise would have been the Waiver Expiry Date had the Waiver Period not ended
pursuant to Section 4(c) and the Standstill Period commenced. For
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example, (a) if the Standstill Period commences and the Company takes the
actions contemplated by the proviso in Section 4(a), the Standstill Expiry Date
will be the Subordinated Note Standstill Date and (b) if the Standstill Period
commences and any event occurs or condition exists that would, pursuant to
Section 13, cause this Waiver to lapse and the Waiver Expiry Time to occur on a
specified date, the Standstill Expiry Date will be such specified date.
"STANDSTILL PERIOD" has the meaning specified in Section 4(c).
"STRATEGIC PROCESS" has the meaning specified in Section 13(c).
"SUBORDINATED NOTES" means the Company's Series A and Series B 10 1/4%
Senior Subordinated Notes due 2009.
"VLASIC BRANDS COMPANIES" means Vlasic International Brands Inc. and VF
Brands, Inc., each a wholly owned Subsidiary of the Company.
"WAIVER" means this Amendment and Waiver.
"WAIVER EFFECTIVE DATE" has the meaning specified in Section 18(a).
"WAIVER EXPIRY DATE" means the date on which the Waiver Expiry Time
occurs.
"WAIVER EXPIRY TIME" means 5:00 P.M. (New York City time) on February
28, 2001, or such earlier time as is determined pursuant to the proviso in
Section 2(a), Section 4 or Section 13.
"WAIVER FINANCIAL TESTS" means as of any day that:
(a) the North American gross sales for the three-month period ending on
the last day of the most recently ended month are not less than $130,000,000;
and
(b) Consolidated Tangible Net Worth as at the end of the most recently
ended Fiscal Quarter was not less than negative $180,000,000;
provided that:
(x) if the Company sells or otherwise disposes of a Principal Business
(other than the one described in clause (iv) of the definition of Principal
Business), then for any three-month period (or portion thereof) during any
Fiscal Year that is subsequent to the date of such sale or other disposition the
amount in clause (a) shall be reduced by an amount equal to the gross sales of
such Principal Business during the comparable three-month period (or portion
thereof) during the preceding Fiscal Year; and
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(y) if the Company sells or otherwise disposes of (or enters into an
agreement to sell or otherwise dispose of) a Principal Business and on account
of such disposition (or agreement) the Company, in compliance with GAAP,
recognizes a gain or loss, then the amount in clause (b) shall be adjusted by
the amount of such gain or loss, upwards or downwards as the case may be.
"WAIVER PERIOD" means a period from and including the Waiver Effective
Date to and including the Waiver Expiry Time.
"WEEKLY PERIOD" has the meaning specified in clause (i) of Section 5.
"WEEKLY CASH FLOW REPORT" has the meaning specified in clause (i) of
Section 5.
"WORKING CAPITAL NEEDS" means with respect to any seven-day period
applicable to determining whether the Borrowing Condition is met the Company's
actual cash funding needs for ordinary course of business expenditures (net of
other sources of funds available or expected to be available to it, including
previous Borrowings) during such period, including any fees required to be paid
pursuant to Section 14 but excluding the principal of and any accrued interest
on any Loans required to be repaid pursuant to Section 2.12 of the Credit
Agreement.
SECTION 2. Certain Waivers. (a) The Banks party hereto waive (including
for purposes of clause (c) of Section 3.03 of the Credit Agreement) any Default
occurring on account of the Company's failure to be in compliance with Section
5.13 or Section 5.14 of the Credit Agreement as at the end of the second, third
and fourth Fiscal Quarters of Fiscal 2000 and the first and second Fiscal
Quarters of Fiscal 2001, provided that if as of the last day of any month or
Fiscal Quarter the Company fails to meet the Waiver Financial Tests, then the
waivers granted by this Section 2 shall automatically cease to be effective as
of the last day of such month or Fiscal Quarter, as the case may be.
(b) The Banks party hereto hereby waive any Default that may have
occurred as a result of the Company at any time prior to the date hereof having
made or been deemed to have made the representation and warranty set forth in
Section 4.05(c) of the Credit Agreement without qualification by reference to
the circumstances described in the Disclosure Materials.
(c) The foregoing waivers shall be effective solely for the period
beginning on the Waiver Effective Date and ending at the Waiver Expiry Time.
(d) The Company understands and accepts:
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(i) the interim nature of the waiver provided hereby, and that
the Banks have given no assurances that they will extend the waiver
provided hereby or provide other waivers under or amendments to the
Credit Agreement or any other Financing Document;
(ii) that except as expressly set forth herein, the waiver
contained herein shall not constitute a waiver or amendment of any term
or condition of the Credit Agreement or any other Financing Document
and all such terms and conditions shall remain in full force and effect
and are hereby ratified and confirmed in all respects, and that no
failure or delay by the Banks or any of them in exercising any right,
power or privilege under any Financing Document, or any other action
taken or not taken or statement made, during the period prior to the
date hereof or during the period this Waiver is in effect shall operate
as a waiver thereof or obligate any Bank to agree to an extension of
the waiver provided hereby or any other waiver under or amendment to
any Financing Document;
(iii) that the Banks are under no obligation to extend, and in
their sole and absolute discretion may refuse to extend, this Waiver
beyond the Waiver Expiry Time; and
(iv) that since the Company failed (other than by reason of
Waiver No. 3 and this Waiver) to be in compliance with Sections 5.13
and 5.14 of the Credit Agreement as at the end of the second and third
Fiscal Quarters of Fiscal 2000, if the Banks do not extend the waiver
provided hereby or take other action in respect of any such failure, an
Event of Default will automatically exist immediately following the
expiry of this Waiver, without the requirement of any further action by
the Banks or the Administrative Agent.
SECTION 3. Borrowings; Commitments. The Company agrees that during the
period from the date hereof until 5:30 P.M. (New York City time) on February 28,
2001 it will not give any Notice of Borrowing, and the Banks shall have no
obligation to fund any Borrowing of Revolving Loans, unless such Borrowing is in
accordance with the provisions of this Section 3 (and otherwise in compliance
with this Waiver and the Credit Agreement as modified hereby).
(a) Unless permitted by Section 3(b) or (c), no Borrowing shall be
made that would cause the principal amount of outstanding Revolving Loans (after
giving effect to such Borrowing) to exceed the Borrowing Limit.
(b) Borrowings of Revolving Loans in excess of any amount that would
be permitted by Section 3(a) or 3(c) are permitted if and to the extent the
Required
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Banks, subsequent to the date hereof, determine to permit such additional
Borrowings. The Company understands and accepts that the Banks have given no
assurances that they will make such a determination or of the circumstances
under which they would make such a determination, and that the Banks are under
no obligation to make such a determination and in their sole and absolute
discretion may refuse to make such a determination or may impose dollar
limitations or other conditions upon the effectiveness of such determination.
(c) Borrowings of Revolving Loans in excess of any amount that would
be permitted by Section 3(a) or 3(b) are permitted (and the Company may borrow,
repay and re-borrow within the limits contemplated by this Section 3(c)) to the
extent that, after giving effect to such Borrowing, the principal amount of
outstanding Revolving Loans does not exceed the sum of $35,000,000 and the
Borrowing Limit, but only if (i) prior to the first such Borrowing the DF
Condition has been satisfied and (ii) on the date of each such Borrowing, the
Administrative Agent has actually received, in Federal or other funds
immediately available in New York City, at its address referred to in Section
9.01 of the Credit Agreement, pursuant to the DF Participation Agreement, an
amount equal to the portion of such Borrowing, if any, required to be funded by
the DF Participants (either directly or through the DF Fronting Bank) pursuant
to the DF Participation Agreement.
(d) If on any Domestic Business Day after the first day on which the
Company makes a Borrowing of Revolving Loans pursuant to Section 3(c) the Cash
Balance as determined as of the close of business on the immediately preceding
Domestic Business Day exceeds the sum of (i) the Company's actual cash funding
needs for ordinary course of business expenditures for the Cash Sweep Period
(net of other sources of funds available or expected to be available to it,
including proceeds of previous Borrowings), all as determined in the reasonable
judgment of the Company's Chief Financial Officer, Vice President and Controller
or Treasurer, consistent with its historical cash management practices, and (ii)
$5,000,000 (any such excess being an "Excess Cash Amount"), the Company shall on
such Domestic Business Day prepay a principal amount of Loans equal to such
Excess Cash Amount. The Company shall deliver notice to the Administrative Agent
not later than Noon (New York City time) on each date a repayment is required to
be made pursuant to this Section 3(d), specifying the amount of Loans being
repaid, and any repayment of Fixed Rate Loans shall be subject to Section 2.14
of the Credit Agreement. The Company agrees that in order to minimize the number
of occasions on which Section 2.14 will be applicable, it will maintain as Base
Rate Loans a portion of the outstanding Revolving Loans determined in
consultation with the Administrative Agent. Each prepayment of the Loans
required under this Section 3(d) shall be applied first to the Revolving Loans
until they are repaid in full and then to the Term
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Loans until they are repaid in full, but no reduction of the Revolving Credit
Commitments or the Borrowing Limit shall be required in connection with any such
repayment of Revolving Loans.
(e) No Borrowing may be made, even if otherwise permitted by Section
3(b) or 3(c), (i) unless the Borrowing Condition is satisfied in connection
therewith or (ii) during the Standstill Period, and all Borrowings remain
subject to the requirements of Section 3.03 of the Credit Agreement (determined
giving effect to this Waiver).
(f) The requirements of clause (d) of Section 3.03 of the Credit
Agreement are hereby waived during the Waiver Period to the limited extent that
the representation and warranty set forth in Section 4.05(c) of the Credit
Agreement is not true solely on account of the circumstances described in the
Disclosure Materials, and any representation and warranty made or deemed made by
the Company on or after the date hereof during the Waiver Period pursuant to
Section 3.03 of the Credit Agreement shall be deemed qualified to such extent.
SECTION 4. Accelerated Waiver Expiry Time; Standstill Period. (a) If
the Company fails to pay in full on the date when due (without allowance for any
grace period) the payment of interest due on the Subordinated Notes on January
1, 2001 (the "January 1 Payment"), the Waiver Expiry Time will become 5:00 P.M.
(New York City time) on January 30, 2001, without the requirement of any notice
from or other action by any of the Banks or the Administrative Agent, provided
that (1) if the Company obtains and delivers to the Administrative Agent an
instrument (the form and substance of which are satisfactory to the Required
Banks) pursuant to which the holders of more than 75% of the outstanding
Subordinated Notes have agreed not to take, and to instruct the trustee under
the indenture not to take, any action to accelerate the principal of the
Subordinated Notes or to enforce any other remedies for the enforcement or
collection of the Subordinated Notes or the Indenture any earlier than a date
specified therein that is no later than February 28, 2001 (the "Subordinated
Note Standstill Date"), then the date referred to above in this Section 4(a) on
which the Waiver Expiry Date shall automatically occur shall be the Subordinated
Note Standstill Date instead of January 30, 2001 and (2) if subsequent to such
due date the Company makes the January 1 Payment using funds that are neither
proceeds of Asset Sales nor funds generated by the business or operations of the
Company and its Subsidiaries, then the Waiver Expiry Date shall automatically
revert to being February 28, 2001.
(b) If on or before December 28, 2000 the Company has not (i)
established (with a commercial bank and pursuant to documentation satisfactory
to the Required Banks) an escrow account (the "Escrow Account"), (ii) provided
in the agreement establishing the Escrow Account, and unconditionally agreed in
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an instrument delivered to the Administrative Agent, that funds on deposit in
the Escrow Account will be used solely to make the January 1 Payment and (iii)
arranged to be deposited in the Escrow Account funds in an amount equal to the
January 1 Payment that are neither proceeds of Asset Sales nor funds generated
by the business and operations of the Company and its Subsidiaries, then the
Waiver Expiry Time will become 5:00 P.M. (New York City time) on December 28,
2000 without the requirement of any notice from or other action by any of the
Banks or the Administrative Agent.
(c) The Banks party hereto agree that if the Waiver Expiry Date
becomes December 28, 2000 pursuant to Section 4(b), then during the period (the
"Standstill Period") from the Waiver Expiry Time until the Standstill Expiry
Time they will not take, nor will they instruct the Administrative Agent or the
Collateral Agent to take, any action to enforce any collection or other right or
remedy available to the Banks under the Credit Agreement or the Collateral
Documents solely to the extent that the availability of such right or remedy
arises exclusively from (i) any Event of Default that would be, during the
Waiver Period, waived by this Waiver or (ii) the failure of the Company to make
the January 1 Payment (the circumstances described in clauses (i) and (ii) being
referred to as "Specified Defaults"), other than (x) accelerating the principal
of the Loans and (y) delivering a "Payment Blockage Notice" pursuant to Section
10.04 of the Indenture. The Company agrees that when the Standstill Expiry Time
occurs, the foregoing agreement of the Banks to forebear from exercising such
rights and remedies on account of any Specified Default shall immediately and
automatically terminate without the requirement of any demand, presentment,
protest or notice of any kind, all of which the Company waives, and the Banks,
the Administrative Agent and the Collateral Agent may at any time thereafter
proceed to exercise any and all of their respective rights and remedies under
any or all of the Financing Documents and applicable law. The Company agrees
that if any Default or failure to comply with this Waiver other than a Specified
Default shall occur and be continuing, the Banks, the Administrative Agent and
the Collateral Agent may proceed to exercise any and all of their respective
rights and remedies under any or all of the Financing Documents and applicable
law on account of such other Default or failure even if during the Standstill
Period, and further agrees and acknowledges that the foregoing agreement of the
Banks to forebear shall not constitute a wavier of any Specified Default and
that, subject only to such agreement to forebear, the Banks expressly reserve
all rights and remedies that they or the Administrative Agent or the Collateral
Agent now or may in the future have under any or all of the Financing Documents
and applicable law in respect of the Specified Defaults.
SECTION 5. Reports. The Company agrees that so long as any Bank has any
Loans outstanding under the Credit Agreement or any interest or fee accrued
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thereunder remains unpaid, the Company shall deliver the following information
to the Administrative Agent and each Bank:
(i) by facsimile no later than 5:00 P.M. (New York City time)
on each Tuesday (or, if such day or the immediately preceding Monday is
not a Domestic Business Day, the next succeeding Domestic Business
Day), a report with respect to its domestic operations (in a form and
level of detail consistent with the Cash Plan, referred to herein as a
"Weekly Cash Flow Report") setting forth cash receipts and
disbursements (other than in respect of the principal amount of any
Loans), operating cash flow and cumulative net operating cash flow for
the Company and its Domestic Subsidiaries for the week ending on the
most recent Friday (a "Weekly Period"), and if the cumulative net
operating cash flow for such Weekly Period varies adversely by more
than $6,000,000 from the cumulative net operating cash flow for such
Weekly Period set forth in the Cash Plan, the Company shall also
deliver with such Weekly Cash Flow Report a reconciliation to the
forecast for that week included in the Cash Plan and an explanation of
the causes of any variances.
(ii) by facsimile no later than 5:00 P.M. (New York City time)
on each Tuesday (or, if such day or the immediately preceding Monday is
not a Domestic Business Day, the next succeeding Domestic Business
Day), a report (in a form and level of detail satisfactory to the
Administrative Agent) for the most recent Weekly Period, setting forth
for such Weekly Period (a) gross sales, (b) shipment volumes and (c) as
available, IRI data, in each case for each major domestic product line
(all such calculations to be made in a manner consistent with the
Company's historical practices in compiling and reporting such data),
as well as the status of trade payables;
(iii) by facsimile no later than 15 Domestic Business Days after
the end of each month (or, in the case of the last month of the Fiscal
Year, 60 days and, in the case of August, 45 days), a copy of the
Company's monthly management operating report for such month, including
a consolidated statement of earnings of the Company and its
Consolidated Subsidiaries for such period and for the current Fiscal
Year to date, in each case compared to the projections for such period
and Fiscal Year to date previously delivered to the Banks, and also
setting forth North American gross sales for the three-month period
ending with such month, the cumulative amount of Consolidated Capital
Expenditures and depreciation for the period from January 1, 2000
through the end of such month and, when such month is the last month of
a Fiscal Quarter, Consolidated Tangible Net Worth as at the end of such
Fiscal Quarter.
13
<PAGE> 14
(iv) at any time when clause (ii) of the definition of Cash
Sweep is applicable, by facsimile no later than 5:00 P.M. (New York
City time) on the first and fifteenth Domestic Business Day of each
month, a projection of its cash flow for the next 70 days in a form and
level of detail satisfactory to the Administrative Agent.
SECTION 6. Other Modifications of Existing Provisions of the Credit
Agreement. The Company and the Banks party hereto agree that so long as any Bank
has any Loans outstanding under the Credit Agreement or any interest or Facility
Fee accrued hereunder remains unpaid, the provisions of the Credit Agreement are
modified as follows:
(a) The provisions of Section 2.12(c) of the Credit Agreement shall not
apply to any moneys deposited in the Escrow Account.
(b) Any sale or other transfer of all or any substantial part of the
assets of, or merger or consolidation involving, the Company or any Subsidiary
as part of the Strategic Process will be considered to be in compliance with the
requirements of Section 5.09 of the Credit Agreement without the requirement of
any further consent of the Required Banks, but only if (a) such transaction
constitutes an Asset Sale the Net Cash Proceeds of which will be applied
pursuant to Section 2.12(a) of the Credit Agreement or (b) in the case of a
merger or consolidation involving the Company, such transaction provides for the
repayment in full of all Loans outstanding under the Credit Agreement together
with any interest and Facility Fees accrued thereunder.
(c) Notwithstanding the provisions of subclause (i) of clause (ix) of
Section 5.10 of the Credit Agreement, Liens otherwise permitted thereby may be
created and exist on cash and Temporary Cash Investments of up to an aggregate
amount of $12,000,000 securing obligations to reimburse banks for amounts drawn
under letters of credit.
(d) Notwithstanding the provisions of Section 5.15 of the Credit
Agreement, no Vlasic Company will make any Restricted Payment.
(e) Section 5.16 of the Credit Agreement is hereby amended to read in
its entirety as follows:
SECTION 5.16. Capital Expenditures. The cumulative
amount of Consolidated Capital Expenditures for each
period beginning on January 1, 2000 and ending on the
last day of each month
14
<PAGE> 15
thereafter shall not exceed the amount of depreciation
for such period.
(f) Notwithstanding the provisions of Section 2.12(a) and Section 5.17
of the Credit Agreement, no Domestic Vlasic Company shall have the option to
treat any Net Cash Proceeds from any Asset Sale as Reinvestable Proceeds.
(g) In Section 5.18 of the Credit Agreement, the reference to
"$5,000,000" is changed to $2,500,00 and the reference to "75%" is changed to
100%.
(h) Notwithstanding subsection (c) of Section 5.19 of the Credit
Agreement, no Vlasic Company shall make any Permitted Asset Acquisition or
Permitted Investment.
SECTION 7. Vlasic Brands Companies. The Company agrees that each of the
Vlasic Brands Companies will not (i) incur any Debt or other liabilities other
than its Guarantee of the Company's obligations under the Credit Agreement, (ii)
sell or otherwise transfer any of its assets other than licensing/sub-licensing
to other Vlasic Companies in the ordinary course of business or (iii) engage in
any business other than owning or being the licensee of trade marks and other
intellectual property used by the Vlasic Companies.
SECTION 8. Meetings and Conference Calls. The Company agrees that as
often as may be reasonably requested by the Administrative Agent during the
Waiver Period and any Standstill Period it will have meetings to which all of
the Banks are invited, on dates and in locations to be mutually agreed with the
Administrative Agent (or, if in any particular instance agreed by the
Administrative Agent, a conference call in lieu of such a meeting), at which its
senior management will make detailed presentations of its recent results of
operations and current financial condition and the current status of its
business and affairs, as well as the status of the Strategic Process. For all
such meetings and conference calls, the Company will arrange for representatives
of Lazard Freres, the Company's financial adviser, to be present or
participating and available to answer questions concerning the status and
results of their activities on behalf of the Company. Without limiting the
generality of the foregoing, the Company will hold a conference call at least
once a month during the Waiver Period and any Standstill Period in which all of
the Banks will be invited to participate, on a date and at a time to be mutually
agreed with the Administrative Agent, at which its senior management and
representatives of Lazard Freres will report on the status of the Strategic
Process.
15
<PAGE> 16
SECTION 9. Treatment of Cash Proceeds from Mushrooms Sale and Other
Asset Sales etc. (a) The Banks party hereto agree that if at any time during the
Waiver Period the Company delivers to the Administrative Agent a certificate of
its President, Chief Financial Officer or Vice President and Controller stating
that the Company is obligated to make a post-closing adjustment payment to the
Buyer under the Mushrooms Agreement pursuant to Section 2.4(b) of the Mushrooms
Agreement, in the amount specified in such certificate (the "Post-Closing
Adjustment Amount"), and that all dispute procedures contemplated by Section
2.4(c) of the Mushrooms Agreement have been completed (which certificate shall
also represent and warrant that no Default (other than as waived by this Waiver)
has occurred and is continuing), then the Administrative Agent shall direct the
Collateral Agent to pay to or at the direction of the Company from funds
constituting the Mushrooms Amount an amount equal to the lesser of (i) the
Post-Closing Adjustment Amount and (ii) funds constituting the Mushrooms Amount
held by the Collateral Agent in the Collateral Account maintained by it pursuant
to the Security Agreement. The Banks party hereto further agree that at any time
during the Waiver Period the Company may deliver to the Administrative Agent a
certificate of its President, Chief Financial Officer or Vice President and
Controller setting forth, in reasonable detail, a calculation of the Net Cash
Proceeds of the Mushrooms Sale giving effect to the amendment of the definition
of Net Cash Proceeds made in Section 1(b) of this Waiver (which certificate
shall also (1) in reasonable detail reconcile such calculation to the
calculation of such Net Cash Proceeds initially provided to the Administrative
Agent and (2) represent and warrant that no Default (other than as waived by
this Waiver) has occurred and is continuing), and if such certificate
demonstrates that there are amounts ("Additional Amounts") properly deductible
in determining the Net Cash Proceeds of the Mushrooms that were not initially
retained by the Company then the Administrative Agent shall direct the
Collateral Agent to pay to the Company from funds constituting the Mushrooms
Amount an amount equal to the lesser of (i) the Additional Amounts and (ii)
funds constituting the Mushrooms Amount held by the Collateral Account
maintained by it pursuant to the Security Agreement. For the sake of avoidance
of doubt, it is understood and agreed that the Collateral Agent is not required
to pay to or at the direction of the Company pursuant to this Section 9 an
aggregate amount exceeding the Mushrooms Amount.
(b) If in connection with any Asset Sale the Company's calculation of
the Net Cash Proceeds thereof includes any deduction from gross cash proceeds on
account of items relating thereto described in clause (ii), (iii) or (iv) of the
definition of Net Cash Proceeds that are payable or estimated to be payable
after the closing of such Asset Sale, the Company shall deliver to the
Administrative Agent a certificate of its President, Chief Financial Officer or
Vice President and Controller describing such amounts in reasonable detail, and
concurrently with the
16
<PAGE> 17
closing of such Asset Sale the Company shall pay to the Collateral Agent for
deposit in a Collateral Account maintained with it pursuant to the Security
Agreement an amount equal to the aggregate amount of such deductions. From time
to time thereafter the Company may deliver to the Administrative Agent a further
certificate of its President, Chief Financial Officer or Vice President and
Controller stating that the Company is obligated to make a payment of any such
amount within the next three Domestic Business Days (which certificate shall
also describe such amount in reasonable detail and shall also represent and
warrant that no Default (other than as waived by this Waiver) has occurred and
is continuing), and upon receipt of any such certificate the Administrative
Agent shall direct the Collateral Agent to pay to or at the direction of the
Company from the amounts previously deposited with respect to such Asset Sale
and held in the Collateral Account maintained by it pursuant to the Security
Agreement an amount equal to the amount specified in such certificate.
SECTION 10. Cash Management Bank. The Company agrees that if it is
requested by the Required Banks, it will execute and deliver such amendments to
the existing Collateral Documents and the Subsidiary Guarantee Agreement as will
provide for overdrafts and similar liabilities owing to the Cash Management Bank
being entitled to the benefits of the Collateral Documents and the Subsidiary
Guarantee Agreement equally and ratably with the Company's obligations under the
Credit Agreement.
SECTION 11. Miscellaneous Other Provisions. (a) The rights of the
Agents and each Bank pursuant to clause (ii) of Section 9.03(a) of the Credit
Agreement shall be determined without giving effect to this Waiver or any prior
waivers. Without limiting the generality of Section 9.03(a), the Company agrees
that it will pay on demand all statements for fees and expenses (which may
include amounts on account) of any financial, accounting or valuation advisers
or special counsel retained by the Administrative Agent or otherwise on behalf
of the Banks (including those of Policano & Manzo pursuant to its engagement
letter dated May 18, 2000), as well as all out-of-pocket expenses incurred by
the Administrative Agent in connection with it acting as such.
(b) The right of the Company pursuant to Section 9.06(c) of the Credit
Agreement to consent to any Assignee and the related assignment shall be
determined without giving effect to this Waiver, and any Assignee and the
related assignment shall always (including any time after expiration of the
Waiver Period) be subject to the consent of the Administrative Agent (such
consent not to be unreasonably withheld) regardless of whether any Event of
Default has occurred and is continuing. The consent of neither the
Administrative Agent nor the Company shall be required for any assignment to
Family Participating Lenders as contemplated by Section 2(d) of the DF
Participation Term Sheet.
17
<PAGE> 18
(c) Both references to $5,000,000 in the last sentence of Section
2.12(e) of the Credit Agreement are amended to be instead $500,000, provided
that if prior to the Waiver Effective Date the Company has deferred making
prepayments of Loans solely on account of the amount in the last sentence of
Section 2.12(e) being $5,000,000, the amounts so deferred may continue to be
deferred until the sum of (i) such deferred amounts plus (ii) the amounts
required to be repaid pursuant to Section 2.12 on or after the Waiver Effective
Date (whether or not the amounts referred to in clause (ii) have already been
the basis of a prepayment) equal $5,000,000.
(d) The dates and amounts of any prepayments of Loans required by this
Waiver, having been imposed as conditions to this Waiver by the Required Banks,
are not intended to be dates "fixed" for any such payment for purposes of
Section 9.05(iii) of the Credit Agreement and accordingly may be amended or
waived with the consent of the Required Banks.
(e) The Administrative Agent and each Participating Bank agrees to
enter into the DF Participation Agreement.
(f) If at any time the aggregate amount of funds that have been paid
by the DF Participants (either directly or through the DF Fronting Bank) on
account of New Revolving Loans pursuant to the DF Participation Agreement equals
the principal amount of the Loans outstanding, then notwithstanding the
provisions of Section 7.08 of the Credit Agreement, Section 15(h) of the
Security Agreement and any comparable provisions of any other Collateral
Document, a resignation of the Administrative Agent and the Collateral Agent may
become effective even if a successor Administrative Agent or Collateral Agent
has not accepted appointment, provided that in such circumstances the Collateral
Agent shall execute and deliver, at the expense of the DF Participants, such
assignments or similar instruments as may be reasonably requested by the DF
Participants or the DF Fronting Bank, as the case may be, naming the then Banks,
as their interests appear, its assignees as secured party.
(g) The Company agrees that on or before the 15th Domestic Business
Day after the Waiver Effective Date it will enter into, and cause its
appropriate Subsidiaries to enter into, an account agreement, granting a lien on
and security interest in all accounts constituting its cash management system,
satisfactory to the Required Banks, and will deliver to the Administrative Agent
such certificates, opinions of counsel and other documents and information in
connection therewith as shall be reasonably requested by the Administrative
Agent.
18
<PAGE> 19
(h) The DF Participation Agreement contemplates that in certain
circumstances, the DF Participants will be entitled to vote with respect to
matters relating to the Loans and the Financing Documents. To permit the
foregoing, Section 9.06(b) of the Credit Agreement is modified to provide that
in circumstances where the percentage of the Credit Exposures or of the
aggregate unpaid principal amount of Loans required for the Banks or any of them
to take any action under any provision of the Financing Documents is being
determined, a Bank may indicate for such purposes that a portion of its Credit
Exposure or aggregate unpaid principal amount of Loans is designated as
approving such action and the remaining portion is designated as disapproving
such action if necessary so as to reflect the instructions of the DF
Participants with respect to their participation interest pursuant to the DF
Participation Agreement. The Banks party hereto also confirm in respect of
Section 9.06(b) of the Credit Agreement that the DF Participants may be
Participants under the Credit Agreement notwithstanding that they are not banks
or other institutions.
(i) Each Bank party hereto, and the Administrative Agent and the
Collateral Agent, hereby agrees for purposes of Section 2.20(c) of the Credit
Agreement that the obligation of the Company for any fees or other compensation
that it has agreed to pay to the DF Participants in any agreement or other
instrument related to (and consistent with the terms of) the DF Participation
Term Sheet may be designated as an additional Guaranteed Obligation and an
additional Secured Obligation of the Company for purposes of the Financing
Documents pursuant to such Section 2.20(c), provided that such obligation shall
be entitled to the benefits of the Subsidiary Guarantee Agreements and the
Security Agreement and other Collateral Documents only on a basis junior to the
Secured Obligations of the Banks and the Agents.
SECTION 12. Release of Bank Liability. The Company, for itself and on
behalf of its affiliated entities, successors, assigns and legal representatives
(the "Company Parties"), jointly and severally releases, acquits and forever
discharges the Administrative Agent, the Syndication Agent and each Bank
(collectively, the "Bank Parties"), and their respective subsidiaries, parents,
affiliates, officers, directors, employees, agents, attorneys, successors and
assigns, both present and former (collectively, the "Banks' Affiliates") from
any and all manner of actions, causes of action, suits, debts, controversies,
damages, judgments, executions, claims and demands whatsoever, asserted or
unasserted, in contract, tort, law or equity which the Company or any other
Company Party has or may have against any of the Bank Parties and/or the Banks'
Affiliates by reason of any action, failure to act, matter or thing whatsoever
arising from or based on facts occurring prior to the date hereof, including but
not limited to any claim or defense that relates to, in whole or in part,
directly or indirectly, (i) the making or administration of the Loans, including
without limitation, any such claims and
19
<PAGE> 20
defenses based on fraud, mistake, duress, usury or misrepresentation, or any
other claim based on so-called "lender liability theories", (ii) any covenants,
agreements, duties or obligations set forth in the Financing Documents, (iii)
any actions or omissions of any of the Bank Parties and/or the Banks' Affiliates
in connections with the initiation or continuing exercise of any right or remedy
contained in the Financing Documents or at law or in equity, (iv) lost profits,
(v) loss of business opportunity, (vi) increased financing costs, (vii)
increased legal or other administrative fees, or (viii) damages to business
reputation.
SECTION 13. Lapse of Waiver. (a) The Company agrees that its failure to
comply with any provision of this Waiver shall cause the waivers granted hereby
to cease to be in effect (i) in the case of Sections 3(d), 6, 7 and 14(c),
immediately and without the requirement of any prior notice from or further
action on the part of any Bank or the Administrative Agent, (ii) in the case of
Section 5, if such failure continues for two Domestic Business Days (without the
requirement of any notice from the Administrative Agent) and (iii) in any other
case not explicitly covered by another provision of this Waiver, if such failure
continues for more than five days after notice from the Administrative Agent
given at the direction of the Required Banks.
(b) The Company agrees that if the DF Condition is not satisfied on or
before July 31, 2000, regardless of the reason why the DF Condition has not been
so satisfied, then the Required Banks may by notice to the Company cause this
Waiver to lapse on the date of such notice.
(c) The Company acknowledges that Banks party to this Waiver are
agreeing to this Waiver in reliance in part upon the Company having delivered to
the Administrative Agent a certificate, dated June 6, 2000, of the Secretary of
the Company, which has attached thereto an extract from minutes of a meeting of
the Board of Directors of the Company held on June 6, 2000. The Company agrees
that if the Board of Directors subsequently takes or directs, officially or
unofficially, any further action that has the effect of revoking the
authorization in such extract or significantly delaying the carrying out of the
process contemplated thereby (the "Strategic Process"), then the Required Banks
may by notice to the Company cause this Waiver to lapse on the fifth Domestic
Business Day after the date of such notice.
(d) The Company also agrees that this Waiver shall be considered a
"Financial Document" for all purposes of the Credit Agreement, including without
limitation clause (d) of Section 6.01 therein.
SECTION 14. Interest and Additional Fees. (a) The Company agrees that
as of June 20, 2000 the Facility Fee Rate, Euro-Dollar Margin, CD Margin and
20
<PAGE> 21
Base Rate Margin shall be as set forth in the table below, regardless of the
actual Debt/EBITDA Ratio:
Facility Fee Rate
0.50%
Euro-Dollar Margin
3.25%
CD Margin
3.375%
Base Rate Margin
2.25%
(b) Notwithstanding the provisions of Section 2.07 and Section 2.08 of
the Credit Agreement, beginning with June 30, 2000, the Company will pay (a)
interest on Base Rate Loans and Facility Fees on the last day of each month
rather than quarterly and (b) interest on Fixed Rate Loans at intervals of 30
days or one month, as the case may be, rather than 90 days or three months (and
in any such case on each other date specified in the applicable section).
(c) In addition to the fees payable by the Company to the Banks
pursuant to Section 18(b), the Company agrees that if the Waiver Effective Date
occurs the Banks will on the Waiver Effective Date have earned, and the Company
shall be obligated to pay to the Administrative Agent for the account of the
Banks ratably in proportion to their Credit Exposures determined as of the
Waiver Effective Date, on the date provided herein, additional fees ("Additional
Fees), which shall be non-refundable (but subject to adjustment as provided
herein), consisting of "Tranche A Additional Fees" in the aggregate amount of
$3,000,000 and "Tranche B Additional Fees" in the aggregate amount of $350,000.
The Additional Fees shall be shall be payable on the Waiver Expiry Date (or, if
the Standstill Period commences, instead on the Standstill Expiry Date),
provided that if on a day on or before the date on which the Additional Fees
would otherwise be payable the Loans and all other obligations owing to the
Banks under the Credit Agreement have been paid in full (and the Revolving
Credit Commitments terminated), (i) the amount of the Tranche A Additional Fees
shall automatically be reduced to $1,500,000 and (ii) all Additional Fees shall
be payable on such day. If any Bank assigns any of its rights in respect of its
Loans and Revolving Credit Commitments pursuant to Section 9.06(c) of the Credit
Agreement, a proportionate amount of the Additional Fees earned by and payable
to such Bank shall be payable to the Assignee thereof as of the day the
Additional Fees are payable.
(d) As contemplated by Section 3(b) of the DF Participation Term
Sheet, the Tranche B Additional Fees shall in the DF Participation Agreement be
21
<PAGE> 22
allocated among the Participating Banks and the DF Participants, and the DF
Participation Agreement shall provide for the DF Participants to share in
payments of interest and Facility Fees, and certain increased cost provisions,
as contemplated by Section 2(c) of the DF Participation Term Sheet. The Company
acknowledges and agrees that except as expressly stated in the preceding
sentence, all fees and other compensation to be paid to the Banks or the Agents
as provided for in this Waiver is solely for the account of the Banks and the
Agents, as the case may be, and that any other fees or other compensation for
the DF Participants will be the responsibility of the Company and paid to them
directly.
SECTION 15. Representations of the Company. The Company represents and
warrants that, except as expressly waived hereby, (i) the representations and
warranties of the Company set forth in Article 4 of the Credit Agreement will be
true on and as of the Waiver Effective Date and (ii) no Default will have
occurred and be continuing on such date. The Company further represents and
warrants that:
(a) all information (other than projections) heretofore furnished by or
on behalf of the Company to the Administrative Agent or any Bank for purposes of
or in connection with this Waiver does not, and all such information hereafter
furnished by or on behalf of 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 statements therein, in light of the
circumstances under which they were or will be made, not misleading; and
(b) the projections upon which the Cash Plan was based and any similar
information provided in writing to the Banks by or on behalf of the Company
pursuant to the Credit Agreement or this Waiver will in each case be based upon
good faith estimates and assumptions believed by the Company's senior management
to be reasonable at the time delivered and at the time prepared and delivered
represent senior management's reasonable best estimate of the future performance
of, in the case of the Cash Plan, the domestic operations of the Company and its
Domestic Subsidiaries and, in any other case, the Company and its Subsidiaries.
SECTION 16. Governing Law. This Waiver shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 17. Counterparts. This Waiver may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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<PAGE> 23
SECTION 18. Effectiveness. (a) This Waiver shall become effective as of
the date hereof on the date (the "Waiver Effective Date") when the
Administrative Agent shall have received:
(i) from each of the Company, each Domestic Subsidiary and the
Required Banks a counterpart hereof signed by such party or facsimile
or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart hereof;
(ii) confirmation that the Company has paid all statements of
Davis Polk & Wardwell, special counsel for the Administrative Agent,
and of Policano & Manzo that have been rendered to the Company at least
two Domestic Business Days prior to the Waiver Effective Date in
respect of this Waiver or other Credit Agreement matters;
(iii) the Administrative Agent shall have received from one or
more individual members of the Dorrance family a commitment letter
substantially in the form of Exhibit A hereto covering an aggregate
committed amount of $17,500,000 for the DF Participation Agreement; and
(iv) the Administrative Agent shall have received a letter from
the Company, in form and substance satisfactory to it, with respect to
its fees and expenses for acting as Administrative Agent on and after
the Waiver Effective Date, together with payment of any amounts due
thereunder on the Waiver Effective Date.
(b) If the Waiver Effective Date occurs, the Borrower shall pay the
Administrative Agent, in immediately available funds, (1) for the account of
each Bank that has evidenced its agreement hereto as provided in clause (i) of
Section 18(a) by 5:00 P.M. (New York City time) on the later of (i) June 30,
2000 and (ii) the 10th Domestic Business Day after the date the Administrative
Agent issues a notice to the Banks saying this Waiver has become effective (such
later date being the "Fee Determination Date"), a waiver fee in an amount equal
to 0.15% of the sum (as of the opening of business on the date hereof) of (A)
the Revolving Credit Commitment of such Bank and (B) the outstanding principal
amount of such Bank's Term Loans, such waiver fees being due on the first
Domestic Business Day after the Fee Determination Date, and (2) an arrangement
fee solely for the account of each of the Administrative Agent and the
Syndication Agent (or their affiliates) in the amount separately agreed between
the Administrative Agent or the Syndication Agent, as the case may be, and the
Company, such arrangement fees being due on the first Domestic Business Day
after the Waiver Effective Date.
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<PAGE> 24
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed as of the date first above written.
VLASIC FOODS INTERNATIONAL INC.
By:
---------------------------------
Name:
Title:
MORGANGUARANTY TRUST COMPANY OF NEW
YORK, as Bank, Administrative
Agent and Collateral Agent
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
Title:
BANK OF AMERICA NT&SA
By:
---------------------------------
Name:
Title:
BANK OF MONTREAL
By:
---------------------------------
Name:
Title:
24
<PAGE> 25
BARCLAYS BANK PLC
By:
---------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
---------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK and/or
CAYMAN ISLANDS BRANCHES
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANK ONE, NA (Main office, Chicago)
By:
---------------------------------
Name:
Title:
25
<PAGE> 26
FLEET NATIONAL BANK
By:
---------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
---------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
---------------------------------
Name:
Title:
26
<PAGE> 27
PAM CAPITAL FUNDING LP
By:
---------------------------------
Name:
Title:
ML CBO IV (CAYMAN), LTD
By:
---------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
---------------------------------
Name:
Title:
SUNTRUST BANK
By:
---------------------------------
Name:
Title:
27
<PAGE> 28
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANCA NAZIONALE DEL LAVORO
S.p.A. - NEW YORK BRANCH
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
28
<PAGE> 29
CONFIRMED AND AGREED TO:
ALIGAR, INC.
CARGAL, INC.
VLASIC FOODS DISTRIBUTION COMPANY
VF BRANDS, INC.
VLASIC INTERNATIONAL BRANDS INC.
VLASIC STANDARDS, INC.
VLASIC INTERNATIONAL SALES INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
29
