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[EXHIBIT 10.4]
ESCROW AGREEMENT
This Escrow Agreement (this "Escrow Agreement"), dated as of
August 2, 2000, is by and among Vlasic Foods International Inc., a New Jersey
corporation (the "Company"), the individuals listed on Schedule I hereto (the
"Family Participating Lenders"), Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent under the Credit Agreement referred to below (the
"Administrative Agent"), and Xxxxx Fargo Bank Minnesota, National Association,
as escrow agent (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, the Family Participating Lenders have entered into a
Master Loan Participation Agreement of even date herewith (the "Participation
Agreement") pursuant to which they have agreed to purchase participations in
one-half of additional Revolving Loans (the "New Revolving Loans") made under
the Amended and Restated Credit Agreement, dated as of September 30, 1998 (as
amended or waived to date (including by Amendment No. 2 and Waiver No. 5
thereunder dated as of June 28, 2000) and as hereafter amended or waived, the
"Credit Agreement"), among the Company, the Banks party thereto, The Chase
Manhattan Bank, as Syndication Agent, and the Administrative Agent (capitalized
terms used but not defined herein shall have the meanings assigned thereto in
the Credit Agreement), beyond the $185,200,000 of Revolving Loans under the
Credit Agreement currently outstanding, up to a maximum aggregate participation
amount of $17,500,000 (the "Maximum Amount"); and
WHEREAS, in connection with the Participation Agreement, the
Family Participating Lenders desire to establish an escrow account with the
Escrow Agent in accordance with the terms and conditions set forth herein, for
the deposit of funds representing the Maximum Amount and the application of such
funds toward the purchase of participations pursuant to the Participation
Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. Appointment of Escrow Agent. The Family Participating
Lenders hereby appoint Xxxxx Fargo Bank Minnesota, National Association, to act
as Escrow Agent in accordance with the terms and provisions of this Escrow
Agreement, and Xxxxx Fargo Bank Minnesota, National Association hereby accepts
such appointment on the terms and provisions of this Escrow Agreement.
2. Escrow Fund. The Family Participating Lenders have
deposited into an account (the "Escrow Account") maintained by the Escrow Agent,
by wire transfer, a total of the Maximum Amount in cash, in the respective
amounts set forth opposite each Family Participating Lender's name on Schedule I
hereto. Confirmation of receipt of these funds shall be immediately provided by
the Escrow Agent to the Administrative Agent upon notice to the Escrow Agent
that the Effective Date (as defined below) has occurred. Amounts deposited with
the Escrow Agent as provided by this Section 2, including any accretions and
reductions
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therefrom, are referred to herein and shall constitute the "Escrow Fund."
Commencing on the date on which any Escrow Funds were initially deposited into
the Escrow Account, such funds shall be invested in accordance with Section
4(a). Commencing on the Effective Date (as defined below), the Escrow Fund shall
continue to be invested and shall be held and administered in accordance with
the terms and provisions of this Escrow Agreement. The "Effective Date" shall
mean the date on which all of the following are executed and delivered to the
Family Participating Lenders, in form and substance satisfactory to the Family
Participating Lenders: (i) this Escrow Agreement; (ii) the Participation
Agreement; (iii) all documents, agreements and instruments necessary or
desirable, as determined by the Family Participating Lenders, to create, enforce
and perfect the liens, mortgages and security interests of the Family
Participating Lenders in the Collateral, as defined in Section 5 hereof; (iv) a
copy of all waivers executed by the Banks waiving any Events of Default under
the Financing Documents, including Waiver No. 6 under the Credit Agreement; and
(v) all other documentation (including legal opinions) requested by the Family
Participating Lenders in connection with this Escrow Agreement, the
Participation Agreement and the documents referred to in clause (iii) above. The
Family Participating Lenders authorize Dechert, their counsel, to notify the
Company and the Administrative Agent of the occurrence of the Effective Date.
3. Disbursement of Escrow Fund. At any time on or after the
Effective Date, the Escrow Agent shall release and disburse the Escrow Fund in
accordance with the provisions of this Section 3, without the requirement of any
prior notice to or action by any Family Participating Lender.
a. Promptly upon receipt of any Notice of Committed
Borrowing under the Credit Agreement, all or any portion of which will
constitute New Revolving Loans, the Administrative Agent shall, pursuant to the
Participation Agreement, deliver to the Escrow Agent a completed and signed
certificate substantially in the form of Exhibit A hereto (a "Notice"), together
with a copy of such Notice of Committed Borrowing, which Notice shall include
the date (the "Purchase Date") on which such Borrowing of New Revolving Loans is
to take place.
b. Upon receipt of any Notice, the Escrow Agent shall
on the related Purchase Date make available to the Administrative Agent from the
Escrow Fund, by transfer pursuant to the instructions set forth for the
Administrative Agent in Section 13, Federal or other funds immediately available
in New York City, in the amount specified as the Purchase Price in clause
(ii)(c) of such Notice, by (i) in the case of a Base Rate Borrowing, 1:30 P.M.
(New York City time) (but only if the Escrow Agent has received such Notice,
followed by a telephone call from the Administrative Agent confirming
transmission of such Notice, by no later than 12:30 P.M. (New York City time) on
such Purchase Date, and if such Notice has not been received by the Escrow Agent
by 12:30 P.M., it shall wire the requested funds as promptly after receipt of
such Notice as possible) and (ii) in the case of a CD Borrowing or Euro-Dollar
Borrowing, Noon (New York City time) (but only if the Escrow Agent has received
such Notice, followed by a telephone call from the Administrative Agent
confirming transmission of such Notice, by no later than 9:00 A.M. (New York
City time) on such Purchase Date, and if such Notice has not been received by
the Escrow Agent by 9:00 A.M., it shall wire the requested funds as promptly
after receipt of such Notice as possible).
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c. If on any Purchase Date the Administrative Agent
does not make the requested Borrowing of New Revolving Loans available to the
Company, the Administrative Agent shall, as provided in the Participation
Agreement, promptly make available to the Escrow Agent an amount equal to the
funds made available to the Administrative Agent by the Escrow Agent with
respect to such proposed Borrowing pursuant to paragraph a. above, and the
Escrow Agent shall re-deposit such funds into the Escrow Account.
4. Investment of Escrow Fund; Interest.
a. The Escrow Agent shall hold the Escrow Fund in the
Escrow Account maintained by the Escrow Agent, and the Escrow Fund shall be
invested, commencing on the date on which funds were deposited into such
account, in the Xxxxx Fargo Government Money Market Mutual Fund, provided that
the funds invested shall be immediately available, such that they can be
distributed to the Administrative Agent on any day on which the Company requests
a New Revolving Loan to be made as described in Section 3 hereof (such
investments are from time to time referred to as "Permitted Investments") and at
the times specified in Section 3 hereof. As of the date on which funds were
deposited into the Escrow Account, the Escrow Fund will be held in Account
Number: 00000000. The Escrow Agent shall notify the Family Participating Lenders
and the Administrative Agent of any change to the foregoing account designation.
Each Family Participating Lender shall be entitled to receive monthly copies of
all statements pertaining to the Escrow Account.
b. Any investments made pursuant to paragraph a.
above shall be held by or under the control of the Escrow Agent and shall be
deemed at all times to be part of the Escrow Fund, and any profit realized from
any investments shall be credited to and held in (and any loss shall be charged
to) the Escrow Fund for the benefit of the Family Participating Lenders. Any
interest accruing on the Escrow Fund and any profit realized from any Permitted
Investments shall be disbursed by wire transfer to the Family Participating
Lenders on the Termination Date pro rata in accordance with their respective
percentages as set forth on Schedule I hereto.
c. Subject to the provisions of Section 10 hereof,
the Escrow Agent shall not be liable for any depreciation in the value of any
investment made pursuant to this Section 4 or for any loss arising from any such
investment.
5. Security Interest.
a. In order to secure the Company's obligations to
the Family Participating Lenders under the Fee Letter, dated July 24, 2000, by
the Company in favor of the Family Participating Lenders (the "Fee Letter"),
whether now existing or hereafter arising, except for the obligations pursuant
to clause (a) thereof, the Company has, pursuant to its Certificate dated July
24, 2000 delivered to the Administrative Agent and the Collateral Agent pursuant
to Section 2.20(c) of the Credit Agreement, effectively designated such
obligations as "Secured Obligations" and "Guaranteed Obligations" under the
Collateral Documents, and, for avoidance of doubt, the Company and each of its
Subsidiaries listed on the signature pages hereof (collectively, the
"Subsidiaries") hereby grant to the Collateral Agent, for the benefit of the
Secured Parties, as defined in the Security Agreement (including the Family
Participating Lenders) a continuing security interest in and to all
"Collateral," as such term is defined in the Security Agreement, whether now
owned or existing or hereafter acquired or arising and regardless of where
located, to secure the Secured
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Obligations, as such term is defined in the Security Agreement and after giving
effect to the Certificate referred to above, owing to the Secured Parties
(including the Family Participating Lenders), except for the obligations to the
Family Participating Lenders pursuant to clause (a) of the Fee Letter. The
Family Participating Lenders agree that the Secured Obligations owing to them
are junior and subordinate in priority to all other Secured Obligations, as more
fully provided in the Fee Letter. The Family Participating Lenders shall be
entitled to exercise all the rights and remedies, and to have all the benefits,
of the Collateral Agent and the Banks with respect to the Collateral under the
Collateral Documents including, without limitation, the rights of a secured
party under Article 9 of the Uniform Commercial Code.
b. Each of the Company and the Subsidiaries agrees,
from time to time, at its expense, to execute, deliver, file and record any
statement, assignment, instrument, document, agreement or other paper and take
any other action (including, without limitation, any Intellectual Property
Filings and any filings of financing or continuation statements under the UCC)
that from time to time may be necessary or desirable, or that the Family
Participating Lenders may reasonably request, in order to create, preserve,
perfect, confirm or validate the security interests in such Collateral in favor
of the Family Participating Lenders or to enable the Family Participating
Lenders to obtain the full benefits of the Collateral Documents, or to enable
the Family Participating Lenders to exercise and enforce any of their rights,
powers and remedies thereunder with respect to any of such security interests.
6. Representations and Warranties of the Company. To induce
the Family Participating Lenders to enter into this Escrow Agreement, the
Company represents and warrants to the Family Participating Lenders, on the date
of execution hereof and on the Effective Date, that:
a. All representations and warranties of the Company
set forth in the Financing Documents are true and correct in all material
respects, and there is no Default.
b. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey
and has all requisite corporate power and authority to carry on its business as
now conducted and to enter into this Escrow Agreement, the Participation
Agreement, the Fee Letter, the Financing Documents and each other document,
agreement or instrument entered into from time to time by the Company or its
Subsidiaries in favor of the Family Participating Lenders (collectively, the
"Transaction Documents"). The Company holds all certificates of authority,
licenses and permits necessary to carry on its business as presently conducted
in each jurisdiction in which it is carrying on such business, except where the
failure to hold such certificates, licenses or permits would not have a material
adverse effect on the business, operations, property, assets or condition,
financial or otherwise, of the Company.
c. The Company's execution, delivery and performance
of the Transaction Documents to which it is a party have been duly authorized by
all necessary corporate action by the Company, and the Transaction Documents
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to
limitations as to enforceability which might result from bankruptcy, insolvency,
moratorium and other similar laws affecting creditors' rights generally or from
the application of general principles of equity.
d. The Company's execution, delivery and performance
of the Transaction Documents to which it is a party will not (i) violate any
provision of any law, statute, rule or regulation or any order, writ, judgment,
injunction, decree, determination or award of any court, governmental agency or
arbitrator presently in effect having applicability to the Company, (ii) violate
or contravene any provision of the Company's certificate of incorporation or
by-laws, or (iii) result in a breach of or constitute a default under any
indenture, loan or credit agreement, including, without limitation, the Credit
Agreement and the Indenture dated as of June 29, 1999 for the Company's 10 1/4%
Senior Subordinated Notes due 2009 (the "Indenture"), or any other agreement,
lease or instrument to which the Company is a party or by
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which any of them or any of their respective properties may be bound or result
in the creation of any Lien thereunder. The Company is not in default under or
in violation of any such law, statute, rule or regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture, loan
or credit agreement or other agreement, lease or instrument in any case in which
the consequences of such default or violation could have a material adverse
effect on the business, operations, properties, assets or condition (financial
or otherwise) of the Company.
e. All amounts of principal, interest, fees and other
payments owed from time to time under the Financing Documents in which the
Family Participating Lenders have or may have a participation interest pursuant
to the Participation Agreement, as well as all amounts owing to them under the
Fee Letter except for amounts owing under clause (a) of the Fee Letter, are
"Secured Obligations," which are secured by a valid and enforceable security
interest in the Collateral, which security interest is perfected and is prior to
all other Liens (except Liens permitted by Section 5.10 of the Credit
Agreement).
f. All amounts of principal, interest, fees and other
payments owed from time to time under or in connection with the Credit Agreement
in which the Family Participating Lenders have or may have a participation
interest pursuant to the Participation Agreement constitute "Senior Debt," as
defined in and for purposes of the Indenture.
g. No authorization, consent or other approval of,
notice to or filing with any court, governmental authority or regulatory body or
any other Person, including pursuant to the Indenture, is required to authorize,
or is required in connection with, the execution, delivery or performance by the
Company of the Transaction Documents.
h. The Loans outstanding under the Credit Agreement
are bona fide obligations of the Company outstanding from time to time, subject
to no defense, off-set or claim whatsoever.
7. Covenants of the Company. To induce the Family
Participating Lenders to enter into this Escrow Agreement, the Company agrees as
follows:
a. The Company hereby agrees to deliver to each
Family Participating Lender, at the address set forth on Schedule I hereto, the
following:
(i) upon delivery by the Company to the
Administrative Agent of the information required to be
delivered in accordance with Sections 5.01(a), (b), (c), (i)
and (j) of the Credit Agreement, the Company shall deliver a
copy of such information to the Family Participating Lenders;
(ii) upon delivery by the Company to the
Administrative Agent of the information required to be
delivered in accordance with Sections 5(i) and (iii) of
Amendment No. 2 and Waiver No. 5 under the Credit Agreement,
dated as of June 28, 2000, the Company shall deliver a copy of
such information to the Family Participating Lenders;
(iii) when any Financial Officer obtains
knowledge of any Default or any acceleration in each case
under the Financing Documents or any
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Subordinated Debt, 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;
(iv) within one (1) business day after the
execution thereof, a copy of any amendment, waiver or
modification to any of the Financing Documents; and
(v) from time to time such additional
information regarding the financial position or business of
the Company, including information regarding the progress of
the Company's strategic process, as any Family Participating
Lender may reasonably request.
b. The Company agrees to make all payments to the
Family Participating Lenders under the Fee Letter directly to each Family
Participating Lender pro rata in accordance with the respective percentages set
forth in Schedule I hereof and to the accounts and with the wire instructions
set forth on such schedule (unless otherwise notified by a Family Participating
Lender).
c. The Company will not create, or permit any
Subsidiary to create, any lien on any of its or their property or assets
securing any obligation (other than the Company's obligations under the Fee
Letter) that would be permitted pursuant to Section 4.12 of the Indenture only
in reliance upon clause (m) of the definition of "Permitted Liens" in the
Indenture.
8. Acknowledgment. Each Family Participating Lender
acknowledges and agrees, for the benefit of the Administrative Agent and the
Participating Banks, that any breach of a representation or warranty, or failure
to comply with a covenant, by the Company shall not excuse or otherwise affect
the obligations of the Family Participating Lenders under the Participation
Agreement to make funds available from the Escrow Fund for purchasing
participations in New Revolving Loans, except for a breach of the covenant
contained in Section 7c. hereof, to the extent that it is not waived by the
"Majority DF Participants" as defined in the Participation Agreement, which
breach shall excuse such obligations.
9. Notice by the Escrow Agent. Within three (3) business days
after the Administrative Agent delivers a Notice to the Escrow Agent, the Escrow
Agent agrees to deliver to each Family Participating Lender (unless the funds
requested in such Notice were returned to the Escrow Account pursuant to Section
3(c) hereof) notice of (i) the amount of the Loan requested pursuant to such
Notice and (ii) whether such Loan was a Base Rate Borrowing, a CD Borrowing or a
Euro-Dollar Borrowing.
10. Agreement with the Escrow Agent. To induce the Escrow
Agent to act hereunder, it is agreed by the Company, the Administrative Agent
and the Family Participating Lenders that:
a. The Escrow Agent may act in reliance upon any
instrument or signature furnished to it hereunder and which it, in good faith,
believes to be genuine and may
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assume that any person purporting to give any writing, notice, advice or
instruction in connection with the provisions hereof has been duly authorized to
do so.
b. The Escrow Agent may act relative hereto upon
advice of counsel in reference to any matter connected herewith, and shall not
be liable to any of the parties hereto, or their respective legal
representatives, heirs, successors and assigns, for any action taken in good
faith on the advice of counsel or for any mistake of fact or error of judgment,
or for any acts or omissions of any kind taken or made in good faith, unless any
of the foregoing is caused by its willful misconduct or gross negligence.
c. This Escrow Agreement sets forth exclusively the
duties of the Escrow Agent with respect to any and all matters pertinent hereto
and no implied duties or obligations shall be read into this Escrow Agreement
against the Escrow Agent.
d. The Escrow Agent makes no representation as to the
validity, value, genuineness or collectibility of any portion or all of the
Escrow Fund held by or delivered to it.
e. The Escrow Agent does not have and will not have
any interest in the Escrow Fund but is serving only as escrow holder and has
only possession thereof.
f. The Company and the Family Participating Lenders
hereby release the Escrow Agent from any act done or omitted to be done by the
Escrow Agent in good faith in the performance of its duties hereunder, and the
Company and the Family Participating Lenders, jointly and severally, hereby
agree to indemnify the Escrow Agent for, and to hold it harmless against, any
loss, liability or reasonable expense (including reasonable attorneys' fees and
expenses) incurred by the Escrow Agent, arising out of or in connection with its
entering into this Escrow Agreement and carrying out its duties hereunder,
including the reasonable costs and expenses of defending itself from any claim
or liability; provided, however, that the Escrow Agent shall not be entitled to
indemnification hereunder for losses, liabilities and expenses which arise out
of the willful misconduct or gross negligence of the Escrow Agent. The Company
and the Family Participating Lenders agree that any payments made to the Escrow
Agent under the indemnification obligation in the immediately preceding
sentence, whether made by the Company or the Family Participating Lenders, are
to be borne in equal amounts by (i) the Company and (ii) the Family
Participating Lenders (pro rata in accordance with the respective percentages
set forth on Schedule I hereto), and the Company and the Family Participating
Lenders hereby grant to each other a right of contribution to effect the same.
The agreements contained in the two immediately preceding sentences shall
survive despite any termination of this Escrow Agreement or the resignation or
removal of the Escrow Agent.
11. Resignation and Removal of the Escrow Agent. The Escrow
Agent may resign at any time or be removed by the Family Participating Lenders.
No resignation or removal of the Escrow Agent and no appointment of a successor
Escrow Agent, however, shall be effective until the acceptance or removal of the
Escrow Agent in the manner herein provided. In the event of the resignation or
removal of the Escrow Agent, the Family Participating Lenders shall in good
faith agree upon a successor Escrow Agent, subject to the approval of the
Administrative Agent, which consent shall not be unreasonably withheld. If the
Family
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Participating Lenders and the Administrative Agent (subject to the foregoing
sentence) are unable to agree upon a successor Escrow Agent within fourteen (14)
days after receipt of a notice of resignation or removal is given, the Escrow
Agent may deposit the Escrow Fund with a court of competent jurisdiction. Any
successor Escrow Agent shall execute and deliver to the predecessor Escrow
Agent, the Family Participating Lenders and the Administrative Agent an
instrument accepting such appointment and the transfer of the Escrow Fund and
agreeing to the terms of this Escrow Agreement, and thereupon such successor
Escrow Agent shall, without further act, become vested with all the estates,
properties, rights, powers and duties of the predecessor Escrow Agent as if
originally named herein.
12. Distributions and Termination of Escrow.
a. This Escrow Agreement shall terminate on the date
(the "Termination Date") which is the earliest of (i) the disbursement of the
entire Escrow Fund pursuant to the terms and provisions of Sections 3 and 4b
hereof, (ii) the termination of the Participation Agreement and (iii) the
occurrence of the Participation Termination Date (as defined in the
Participation Agreement). The Administrative Agent shall, pursuant to the
Participation Agreement, promptly notify the Escrow Agent in writing of the
occurrence of the event in clause (iii). Notice to the Escrow Agent of the
occurrence of the event in clause (ii) shall be effective only upon written
notice to the Escrow Agent by both the Administrative Agent and all of the
Family Participating Lenders.
b. On the Termination Date, this Escrow Agreement
shall terminate and the Escrow Agent shall distribute to the Family
Participating Lenders, pro rata in accordance with the respective percentages
set forth on Schedule I hereto, the remaining balance of the Escrow Fund within
5 days thereafter or as soon thereafter as the final interest posts to the
Escrow Account.
13. Notices. All notices and communications hereunder shall be
in writing (including facsimile transmission or similar writing) and shall be
given as follows, or to such other address or facsimile number as each party
hereto may designate in writing to the other parties hereto:
to the Escrow Agent, at:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust Services, N9303-120
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxxxx
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Payment Information:
Bank ABA: 000000000
Bank Name: Xxxxx Fargo Bank Minnesota,
National Association
Acct. No.: 0000000000
Acct. Name: Corporate Trust Clearing Account
OBI Field: FFC: (Client Acct. #10114800)
Client Acct. Name: Vlasic Foods Loan Participation
Questions to Xxxxx Xxxxxxx at 612/667-8687 or
Xxxxxxx Xxxxx at 612/667-6961.
to the Family Participating Lenders, at:
The addresses set forth on Schedule I
Payment Information:
Set forth on Schedule I
with a copy to:
Dechert
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Fax: (000) 000-0000
to the Company, at:
Vlasic Foods International Inc.
Six Executive Campus
Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
If to the Administrative Agent:
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
c/o XX Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
Attention: Xxxx Xxxxxx - 3/OPS2
Re: Vlasic Foods International Inc.
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with a copy to:
Xxxxxx Guaranty Trust Company of New York
as Administrative Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Houston X. Xxxxxxxx
Re: Vlasic Foods International Inc.
Payment Information:
Xxxxxx Guaranty Trust Company of New York
ABA #0210000238
Account #000-00-000
Reference: Vlasic
Attention: Xxxxx Xxxxxx
with advice of payment to each address above
Each such notice 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 Section.
14. Amendments. This Escrow Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties, or
conditions hereof may be waived, only by a written instrument executed by the
parties hereto, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party to this Escrow Agreement of any condition, or of the breach
of any provision, term, covenant, representation, or warranty contained in this
Escrow Agreement, in any one or more instances, shall not be deemed to be nor
construed as further or continuing waiver of any such conditions, or of the
breach of any other provision, term, covenant, representation, or warranty of
this Escrow Agreement.
15. Entire Agreement. Except as set forth in Section 16, this
Escrow Agreement contains the entire understanding among the parties hereto with
respect to the escrow contemplated hereby and supersedes and replaces all prior
and contemporaneous agreements and understandings, oral or written, with regard
to such escrow.
16. Administrative Agent. The Administrative Agent has become
a party hereto pursuant to its acting as Administrative Agent under the
Participation Agreement and solely for the purposes of establishing its ability,
as contemplated by the Participation Agreement, to have made available to it as
Administrative Agent moneys of the Family Participating Lenders to fund their
purchases of participations in New Revolving Loans and setting forth its
agreement to the procedures to be followed in connection therewith. The
provisions set forth in this Escrow Agreement with respect to the Administrative
Agent are not intended to expand the substantive responsibilities, rights,
obligations, duties and liabilities of the Administrative Agent that are set
forth in the Participation Agreement.
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17. Section Headings. The section headings in this Escrow
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Escrow Agreement.
18. Severability. In the event that any part of this Escrow
Agreement is declared by any court or other judicial or administrative body to
be null, void, or unenforceable, said provision shall survive to the extent it
is not so declared, and all of the other provisions of this Escrow Agreement
shall remain in full force and effect.
19. Governing Law. This Escrow Agreement shall be construed in
accordance with and governed by the laws of the State of New York without regard
to the conflict of law principles thereof.
20. Successors and Assigns. This Escrow Agreement shall be
binding upon and inure to the benefit of the parties hereto, their heirs, legal
representatives, successors and assigns.
21. Escrow Agent Fees. The Company shall be solely responsible
for the fees and expenses of the Escrow Agent under this Escrow Agreement and
the Escrow Agent agrees to xxxx the Company solely for such fees and expenses.
The Escrow Agent shall under no circumstances take its fees and expenses from
the Escrow Fund or have any claim therefor against any Family Participating
Lender or the Administrative Agent.
22. Counterparts. This Escrow Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute a single instrument.
23. Further Assurances. The Family Participating Lenders, the
Company and the Administrative Agent will cooperate with the Escrow Agent and
deliver to the Escrow Agent such additional information and documents as the
Escrow Agent shall reasonably request in the performance of its obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement, by their duly authorized officers, on and as of the date and
year first above written.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Escrow Agent
By:__________________________
Name:
Title:
VLASIC FOODS INTERNATIONAL INC.
By:__________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent
By:__________________________
Name:
Title:
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FAMILY PARTICIPATING LENDERS:
-----------------------------
Xxxxxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxxxx
-----------------------------
Xxxx Xxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxxxxxxx, Xx.
-----------------------------
Hope H. van Beuren
-----------------------------
Xxxx X. van Beuren
-----------------------------
Xxxxxxxxx Xxxxx
-----------------------------
Xxxxx Xxxxxx
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The undersigned subsidiaries of Vlasic Foods
International Inc. hereby agree to Section 5
of the Escrow Agreement:
ALIGAR, INC.
By:_________________________________________
Name:
Title:
XXXXXX, INC.
By:_________________________________________
Name:
Title:
VLASIC FOODS DISTRIBUTION COMPANY
By:_________________________________________
Name:
Title:
15
VF BRANDS, INC.
By:
----------------------------
Name:
Title:
VLASIC INTERNATIONAL BRANDS INC.
By:
----------------------------
Name:
Title:
VLASIC STANDARDS, INC.
By:
----------------------------
Name:
Title:
VLASIC INTERNATIONAL SALES INC.
By:
----------------------------
Name:
Title:
