EXHIBIT 10.4
SUPPLEMENT NO. 1 dated as of March 19, 2004, to the
Guarantee and Collateral Agreement (the "Collateral
Agreement") dated as of November 25, 2003, among CRUNCH
HOLDING CORP., a Delaware corporation ("Holdings"), PINNACLE
FOODS HOLDING CORPORATION, a Delaware corporation (the
"Borrower"), each subsidiary of the Borrower listed on
Schedule I thereto (each such subsidiary individually a
"Subsidiary Guarantor" and collectively, the "Subsidiary
Guarantors"; the Subsidiary Guarantors, Holdings and the
Borrower are referred to collectively herein as the
"Grantors") and DEUTSCHE BANK TRUST COMPANY AMERICAS
("DBTCA"), as Collateral Agent (in such capacity, the
"Collateral Agent").
A. Reference is made to the Credit Agreement dated as of November
25, 2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the lenders from time to time
party thereto and, DBTCA, as Administrative Agent, General Electric Capital
Corporation, as Syndication Agent, and JPMorgan Chase Bank, Citicorp North
America, Inc. and Canadian Imperial Bank of Commerce, as Co-Documentation
Agents.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement and the
Collateral Agreement referred to therein.
C. Reference is made to the Assumption Agreement dated as of March
19, 2004, among Aurora Foods Inc. (to be renamed Pinnacle Foods Group Inc.)
("Aurora") and the Administrative Agent pursuant to which Aurora assumed all
obligations of the Borrower under the Credit Agreement, including, without
limitation, the obligation to become a Grantor under the Collateral Agreement.
D. The Grantors have entered into the Collateral Agreement in order
to induce the Lenders to make Loans and the Issuing Banks to issue Letters of
Credit. Aurora is executing this Supplement in accordance with the requirements
of the Credit Agreement to become a Grantor under the Collateral Agreement in
order to induce the Lenders to make additional Loans and the Issuing Banks to
issue additional Letters of Credit and as consideration for Loans previously
made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and Aurora agree as follows:
SECTION 1. Aurora by its signature below becomes a Grantor under the
Collateral Agreement with the same force and effect as if originally named
therein and Aurora hereby (a) agrees to all the terms and provisions of the
Collateral Agreement applicable to it as a Grantor thereunder and (b) represents
and warrants that the representations and warranties made by it as a Grantor
thereunder are true and correct on and as of the date hereof. In furtherance of
the foregoing, Aurora, as security for the
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payment and performance in full of the Obligations does hereby create and grant
to the Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, their successors and assigns, a security interest in and lien
on all of Aurora's right, title and interest in and to the Collateral of Aurora.
Each reference to a "Grantor" in the Collateral Agreement shall be deemed to
include Aurora. The Collateral Agreement is hereby incorporated herein by
reference.
SECTION 2. Aurora represents and warrants to the Collateral Agent
and the other Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received a counterpart of this Supplement that bears the
signature of Aurora and the Collateral Agent has executed a counterpart hereof.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Aurora hereby represents and warrants that (a) set forth
on Schedule I attached hereto is a true and correct schedule of the location of
any and all Collateral of Aurora and (b) set forth under its signature hereto,
is the true and correct legal name of Aurora, its jurisdiction of formation and
the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Collateral Agreement.
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SECTION 9. Aurora agrees to reimburse the Collateral Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, other charges and disbursements of counsel for the
Collateral Agent.
IN WITNESS WHEREOF, Aurora and the Collateral Agent have duly
executed this Supplement to the Collateral Agreement as of the day and year
first above written.
AURORA FOODS INC. (TO BE RENAMED
PINNACLE FOODS GROUP INC.),
by
/S/ N. XXXXXXX XXXX
--------------------------------
Name: N. Xxxxxxx Xxxx
Title: Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS COLLATERAL AGENT
by
/S/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Director
