EXHIBIT 10.5
SUPPLEMENT NO. 2 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. 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. Section 7.14 of Collateral Agreement provides that additional
Subsidiaries may become Subsidiary Parties under the Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Subsidiary") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Party 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 the New Subsidiary agree as
follows:
SECTION 1. In accordance with Section 7.14 of the Collateral
Agreement, the New Subsidiary by its signature below becomes a Subsidiary Party
(and accordingly, becomes a Guarantor and a Grantor), Grantor and Guarantor
under the Collateral Agreement with the same force and effect as if originally
named therein as a Subsidiary Party and the New Subsidiary hereby (a) agrees to
all the terms and provisions of the Collateral Agreement applicable to it as a
Subsidiary Party, Grantor and Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Grantor and
Guarantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Subsidiary, as security for the payment
and performance in full of the Obligations, (a) 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
the New Subsidiary's right,
title and interest in and to the Collateral of the New Subsidiary and (b)
guarantee the Obligations set forth in Section 2 of the Collateral Agreement.
Each reference to a "Guarantor" or "Grantor" in the Collateral Agreement shall
be deemed to include the New Subsidiary. The Collateral Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary 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 the New Subsidiary 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. The New Subsidiary 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 the New Subsidiary and (b) set forth
under its signature hereto, is the true and correct legal name of the New
Subsidiary, 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.
SECTION 9. The New Subsidiary 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.
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IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have
duly executed this Supplement to the Collateral Agreement as of the day and year
first above written.
SEA COAST FOODS, INC.
by
/S/ N. MICHAEL DION
--------------------------------
Name: N. Michael Dion
Title: Chief Financial Officer
Legal Name: Sea Coast Foods, Inc.
Jurisdiction of Formation:
Washington
Location of Chief Executive office:
Cherry Hill Executive Campus #6
One South Union Place
Cherry Hill, NJ 08002
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS COLLATERAL AGENT
by
/S/ SCOTTYE LINDSEY
-------------------------------------
Name: Scottye Lindsey
Title: Director
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Schedule I
to the Supplement No.2 to the
Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
- ----------- --------
None.
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interests of Equity Interests
- ------ ----------- ----- ---------------- -------------------
None.
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
- ------ ------ ------------ -------------
None.
INTELLECTUAL PROPERTY
I. Copyrights - None
II. Copyright Applications - None
III. Copyright Licenses - None
IV. Patents - None
V. Pffatent Applications - None
VI. Patent Licenses - None
VII. United States Trademarks and Applications
COUNTRY/ REG. NO. OR FILING ISSUE GOODS AND/OR
STATE OF REG. TRADEMARK SERIAL NO. DATE DATE SERVICES RECORD OWNER
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 585,900 10/28/1950 02/23/1954 Canned fruits, canned Sea Coast Foods,
(script) vegetables in Classes 29 Inc.
and 30
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 1,445,405 09/02/1986 06/30/1987 Canned fruits and Sea Coast Foods,
(font) vegetables, and frozen Inc.
fruits and vegetables in
Class 29
- --------------------------------------------------------------------------------------------------------------------------------
United States SUN UP SKILLET 2,143,075 09/05/1995 03/10/1998 Prepared and packaged Sea Coast Foods,
(with star design) entrees consisting primarily Inc.
of cheese, meats,
vegetables, potatoes, or
combinations thereof with or
without sauces in Class 29
- --------------------------------------------------------------------------------------------------------------------------------
United States SKILLET DINNER 2,164,854 11/15/1996 06/09/199 Frozen meals consisting Sea Coast Foods,
primarily of vegetables, Inc.
(Supplemental) which also include chicken,
in Class 29
Frozen meals consisting
primarily of pasta, which
also include vegetables with
chicken in Class 30
- --------------------------------------------------------------------------------------------------------------------------------
United States SKILLET DINNER 2,213,548 02/04/1998 12/22/1998 Frozen meals consisting Sea Coast Foods,
(Supplemental) primarily of vegetables, Inc.
which also include chicken,
in Class 29
Frozen meals consisting
primarily of pasta, which
also include vegetables with
chicken in Class 30
2
COUNTRY/ REG. NO. OR FILING ISSUE GOODS AND/OR
STATE OF REG. TRADEMARK SERIAL NO. DATE DATE SERVICES RECORD OWNER
- --------------------------------------------------------------------------------------------------------------------------------
United States READY TO COOK 2,223,43 02/19/1998 02/09/1999 Frozen meals consisting Sea Coast Foods,
MEALS (Supplemental) primarily of vegetables, Inc.
which also include chicken,
beef, pork, or seafood in
Class 29
Frozen meals consisting
primarily of pasta or rice,
which also include
vegetables with chicken,
beef, pork or seafood in
Class 30
- --------------------------------------------------------------------------------------------------------------------------------
United States SKILLETT 2,270,067 03/04/1999 08/10/1999 Frozen meals consisting Sea Coast Foods,
DINNER (Supplemental) primarily of rice which also Inc.
include a protein
ingredient; frozen meals
consisting primarily of rice
which also include a
vegetable ingredient and a
protein ingredient; and
frozen meals consisting
primarily of rice which also
include a vegetable
ingredient and beef or
seafood as an ingredient in
Class 30
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 1,178,351 03/31/1980 11/17/1981 Fresh Cornish game hens in Trademark License
Class 29 dated 09/30/97
between Perdue
Holdings, Inc.
(Licensor) and Sea
Coast Foods, Inc.
(Licensee)
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 1,547,565 02/18/1988 07/11/1989 Fresh pork, beef, chicken, Trademark License
(with chef hat turkey and sausage in dated 09/30/97
design) Class 29 between Perdue
Holdings, Inc.
(Licensor) and
Sea Coast Foods,
Inc.(Licensor)
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COUNTRY/ REG. NO. OR FILING ISSUE GOODS AND/OR
STATE OF REG. TRADEMARK SERIAL NO. DATE DATE SERVICES RECORD OWNER
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 2,028,196 03/03/1995 01/07/1997 Poultry in Class 29 Trademark License
dated 09/30/97
between Perdue
Holdings, Inc.
(Licensor) and Sea
Coast Foods, Inc.
(Licensee)
- --------------------------------------------------------------------------------------------------------------------------------
United States CHEF'S CHOICE 2,095,467 04/07/1994 09/09/1997 Frozen meals consisting Trademark License
primarily of vegetables with dated 09/30/97
seafood, fish, chicken, pork between Perdue
or beef in Class 29 Holdings, Inc.
(Licensor) and Sea
Frozen meals consisting Coast Foods, Inc.
primarily of pasta with (Licensee)
seafood, fish, or chicken,
and frozen meals consisting
primarily of pasta and
vegetables with seafood,
fish, or chicken in Class 30
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ANNEX B
Financing Statement
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