EXHIBIT 10.23
AMENDMENT NO. 1 TO FEE AGREEMENT
This Amendment No. 1 to Fee Agreement (this "Agreement") is made as of
December 8, 2003, by and among, Pinnacle Foods Holding Corporation, a Delaware
corporation (the "Company"), Crunch Holding Corp., a Delaware corporation
("Crunch Holding") and CDM Capital LLC, a Delaware limited liability company
("CDM").
WHEREAS, the Company, Crunch Holding and CDM are parties to that certain
Fee Agreement, dated as of November 25, 2003 (the "Fee Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Fee Agreement on the
terms and subject to the conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Amendments to Fee Agreement. The Fee Agreement is hereby amended by
inserting a new Section 15 which shall read as follows:
"SECTION 15. CESSATION OF PAYMENTS. Notwithstanding anything to the
contrary contained in this Agreement, no fees shall be payable to CDM
pursuant to Sections 1 or 2(a) of this Agreement following the date on
which CDM Investor Group LLC ("CDM Investor") no longer owns at least 5%
of the equity securities of Crunch Equity Holding, LLC ("LLC"), the parent
of Crunch Holding, issued to it at the closing of the Initial Transaction;
provided that the Company shall be obligated to make any payments due and
payable in respect of periods prior to such date. For purposes of
calculating CDM Investor's ownership percentage in this Section 15, the
Class D Units and Class E Units issued to CDM Investor pursuant to the
Operating Agreement of LLC dated as of November 25, 2003 (as may be
amended, restated or modified, the "Operating Agreement") shall be deemed
issued to CDM Investor at the closing of the Initial Transaction only if
such Units would be Participating Units (as defined in the Operating
Agreement) at the time in question."
2. Miscellaneous.
a. Except as herein expressly amended, the Fee Agreement is hereby
ratified and confirmed in all respects and shall remain in full force and effect
in accordance with its terms. All references to the Fee Agreement shall mean the
Fee Agreement as amended hereby and as the same may in the future be amended,
restated, supplemented, or modified from time to time in accordance with its
terms.
b. This Agreement may be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which shall be an original and
all of which shall constitute one and the same agreement.
c. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to any law or rule that
would cause the laws of any jurisdiction other than the State of New York to be
applied.
d. ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN ANY WAY TO
THIS AGREEMENT MAY BE BROUGHT AND ENFORCED IN THE COURTS OF THE STATE OF NEW
YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
TO THE EXTENT THAT SUBJECT MATTER JURISDICTION EXISTS THEREFOR, AND THE PARTIES
IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HERETO IRREVOCABLE WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT SUCH PARTY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING IN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY OR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM. ANY JUDGMENT MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
e. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to Fee Agreement as of the date first above written.
PINNACLE FOODS HOLDING CORPORATION
By: /s/ M. XXXXXX XXXXX
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Name: M. Xxxxxx Xxxxx
CRUNCH HOLDING CORP.
By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
CDM CAPITAL LLC
By: /s/ C. XXXX XXXXXXXXXXX
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Name: C. Xxxx Xxxxxxxxxxx
