Supplement No. 2 to Guarantee and Collateral Agreement by Sea Coast Foods, Inc. and Deutsche Bank Trust Company Americas

Contract Categories: Business Finance › Security Agreements
Summary

This agreement adds Sea Coast Foods, Inc. as a new subsidiary guarantor and grantor under an existing Guarantee and Collateral Agreement among Crunch Holding Corp., Pinnacle Foods Holding Corporation, their subsidiaries, and Deutsche Bank Trust Company Americas. Sea Coast Foods, Inc. agrees to guarantee the obligations under the original agreement and grant a security interest in its assets to the collateral agent. The agreement is governed by New York law and remains effective as a binding legal obligation of the new subsidiary.

Read More Arrow
EX-10.5 17 y99283exv10w5.txt SUPPLEMENT NO. 2 TO THE COLLATERAL AGREEMENT 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. 2 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 3 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)
3
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
4 ANNEX B Financing Statement 5