EXECUTION COPY
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EXHIBIT 10.36
AMENDMENT
AMENDMENT, dated as of April 28, 2000 (this "Amendment"), to the Fifth
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Amended and Restated Credit Agreement, dated as of November 1, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
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among Aurora Foods Inc. (the "Company"), the financial institutions parties
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thereto (the "Lenders"), The Chase Manhattan Bank, as the administrative agent
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for the Lenders (in such capacity, the "Administrative Agent"), National
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Westminster Bank PLC, as syndication agent (in such capacity, the "Syndication
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Agent") and UBS AG, Stamford Branch, as documentation agent (in such capacity,
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the "Documentation Agent").
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W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Company; and
WHEREAS, the Company has requested, and, upon this Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be modified in the manner provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and
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used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendment to Credit Agreement. Subsection 1.1 of the Credit
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Agreement is hereby amended by deleting the defined term "Interest Payment Date"
therefrom in its entirety and substituting in lieu thereof the following:
"Interest Payment Date" means, with respect to any Base Rate
Loan and any Eurodollar Rate Loan, the last Business Day of each
month of each year.
SECTION 3. Conditions to Effectiveness. This Amendment shall be
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effective as of March 29, 2000 upon receipt by the Administrative Agent of this
Amendment, executed and delivered by a duly authorized officer of each of the
Company, the Guarantor, and the Requisite Lenders.
SECTION 4. Representations and Warranties. To induce the Lenders
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parties hereto to enter into this Amendment, the Company hereby represents and
warrants to the Administrative
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Agent and all of the Lenders that the representations and warranties made by the
Company in the Loan Documents are true and correct in all material respects on
and as of the date hereof, after giving effect to the effectiveness of this
Amendment, as if made on and as of the date hereof, except as otherwise provided
in the First Amendment, Forbearance and Waiver, dated as of March 29, 2000, to
the Credit Agreement.
SECTION 5. Effect on the Loan Documents. The Credit Agreement and all
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other Loan Documents shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
SECTION 6. Costs, Expenses and Taxes. The Company agrees to pay on
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demand all actual and reasonable and documented out-of-pocket costs and expenses
of the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered thereunder and hereunder,
including, without limitation, the reasonable and documented fees and out-of-
pocket expenses of counsel for the Administrative Agent (including allocated
costs of internal counsel) with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities hereunder and
thereunder. The Company further agrees to pay on demand all costs and expenses
of the Administrative Agent and each of the Lenders, if any (including, without
limitation, counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Amendment
and the other instruments and documents to be delivered hereunder, including,
without limitation, reasonable counsel fees and expenses (including allocated
costs of internal counsel) in connection with the enforcement of rights under
this Section 6.
SECTION 7. Affirmation of Subsidiary Guaranty, Pledge Agreement and
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Credit Agreement. The Guarantor hereby (a) consents to the modification of the
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Credit Agreement contemplated hereby and (b) acknowledges and agrees that the
guarantees contained in the Subsidiary Guaranty, the pledge of stock contained
in the Pledge Agreement and the obligations contained in the Credit Agreement as
modified hereby are, and shall remain, in full force and effect after giving
effect to this Amendment.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
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OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Execution in Counterparts. This Amendment may be executed by
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one or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment
signed by all the parties shall be lodged with the Company and the
Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
AURORA FOODS INC.
By: _________________________________________
Name:
Title:
SEA COAST FOODS, INC.
By: _________________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________________________
Name:
Title:
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[NAME OF LENDER]
By: _________________________________________
Name:
Title:
