EXHIBIT 10.9
AMENDED AND RESTATED INDEMNITY AGREEMENT (the "Agreement") dated as of
May 4, 2004 among Pinnacle Foods Group Inc. (formerly Aurora Foods, Inc.)
(the "Company"), Crunch Equity Voting Trust ("Bondholder Trust") and Crunch
Equity Holding LLC ("CEH LLC")
WHEREAS, the Company is party to an Agreement and Plan of Reorganization
and Merger dated as of November 25, 2003, as amended (the "Merger Agreement")
with CEH LLC pursuant to which Pinnacle Foods Holding Corporation ("PFHC"), an
indirect subsidiary of CEH LLC, has been merged with and into the Company;
WHEREAS, pursuant to the Merger Agreement, Bondholder Trust has received,
and may receive in the future pursuant to the Merger Agreement, Class A Units of
CEH LLC (the "Class A Units");
WHEREAS, it was a condition precedent to the consummation of the
transactions contemplated by the Merger Agreement that Bondholder Trust enter
into the Indemnity Agreement, dated as of March 19, 2004, among the Company,
Bondholder Trust and CEH LLC (the "Original Indemnity Agreement"); and
WHEREAS, the parties to the Original Indemnity Agreement have decided to
amend and restate such agreement as set forth herein.
ACCORDINGLY, the parties hereto agree to amend and restate the Original
Indemnity Agreement as follows:
Section 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings. Capitalized terms used but not defined
herein shall have meanings given to such terms in the Merger Agreement.
"Asserted Liability" has the meaning given in Section 5(a) hereof.
"Asset Sale Fee" has the meaning given in the Prepetition Credit
Agreement, without giving effect to the October Amendment.
"Cash Funding" has the meaning given in Section 4(b) hereof.
"Claim" has the meaning given in Section 4(a)(i) hereof.
"Claim Notice" has the meaning given in Section 4(a)(ii) hereof.
"Deductible Amount" means an amount equal to $1,000,000 plus the amount
(up to $14 million), if any, by which $609.9 million exceeds the Actual Aurora
Adjusted Net Debt.
"Excess Leverage Fee" has the meaning given in the Prepetition Credit
Agreement,
without giving effect to the October Amendment.
"Excess Prepetition Lender Liabilities" means the extent to which the
aggregate Prepetition Lender Liabilities exceed the sum of (a) $6,850,000 plus
(b) the total amount of all legal fees, interest, and other expenses and costs
accrued or incurred in respect of the aggregate Prepetition Lender Liabilities
multiplied by a fraction, (i) the numerator of which is $6,850,000 and (ii) the
denominator of which is the aggregate Prepetition Lender Liabilities.
"Excess Prepetition Lender Liability Expenses" means the total amount of
all legal fees, interest, and other expenses and costs accrued or incurred in
respect of the aggregate Prepetition Lender Liabilities multiplied by a
fraction, (a) the numerator of which is the aggregate Prepetition Lender
Liabilities minus $6,850,000 and (b) the denominator of which is the aggregate
Prepetition Lender Liabilities.
"Expiration Date" has the meaning given in Section 3(c) hereof.
"Final Determination" means a final judgment of a court of competent
jurisdiction or an administrative agency having the authority to determine the
amount of, and liability with respect to, the item resulting in Losses for which
indemnification is sought hereunder and the denial of, or expiration of all
rights to, appeal related thereto.
"October Amendment" means the Amendment and Forbearance, dated as of
October 13, 2003, to the Prepetition Credit Agreement.
"Indemnity Amount" has the meaning given in Section 3(b) hereof.
"Indemnification Event" means each of the indemnification events set forth
in Section 2.
"Indemnifying Person" means Bondholder Trust and its successors and
assigns.
"Liability" means any liability or obligation, whether known or unknown,
asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated
or unliquidated, matured or unmatured, and whether due or to become due,
regardless of when asserted.
"Losses" means any and all losses, Claims, shortages, damages,
liabilities, obligations, expenses, assessments, tax deficiencies and Taxes
(including interest or penalties thereon), and fees, costs and expenses
(including reasonable attorneys', accountants' and other professional fees and
expenses) sustained, suffered or incurred by the Company in connection with, or
related to, any matter which is the subject of indemnification under this
Agreement or in connection with the receipt of indemnification or the
enforcement by the Company of its rights under this Agreement; provided,
however, that in computing the amount of any Losses for purposes of determining
the liability of any Indemnifying Person under this Agreement, (a) the amount of
any insurance proceeds actually received by the Company, less any deductibles,
shall be deducted from such Losses, (b) the amount of any Tax benefit (or cost)
actually used to reduce (or which increase) Taxes by the Company arising from
the incurrence or payment of any such Losses (or the receipt of indemnification
payments hereunder), shall be deducted from such Losses, and (c) to the extent
an amount is reflected as a liability or reserve on the Final Aurora Balance
Sheet or otherwise taken into consideration in calculating the Actual Aurora
Adjusted
2
Net Debt, then such amount shall not be included in Losses for which the Company
may seek indemnification under this Agreement. In computing the amount of any
such Tax costs or benefit, the Company shall be deemed to utilize all Tax items
arising from the receipt of any indemnity payment hereunder or the incurrence or
payments of any Losses after all other Tax items of such person have been
accounted for and utilized.
"Objection Notice" has the meaning given in Section 4(a)(iii) hereof.
"Potential Claim Notice" has the meaning given in Section 5(a) hereof.
"Prepetition Credit Agreement" means the Fifth Amended and Restated Credit
Agreement, dated as of November 1, 1999, as amended, supplemented or modified,
among the Company, the lenders listed therein, JPMorgan Chase Bank, as
administrative agent, and certain other agents and all documents (including
without limitation any security agreements or guarantees) related thereto.
"Prepetition Lender Liabilities" means the sum of (a) any amount or
amounts paid or payable by or on behalf of the Company pursuant to a final,
non-appealable judgment of a court of competent jurisdiction to a Prepetition
Lender in respect of the Asset Sale Fee or the Excess Leverage Fee (not
including any legal fees, interest and other expenses with respect thereto),
which liability arises from the entry of a final, non-appealable judgment by a
court of competent jurisdiction determining that the October Amendment is not,
or was not as of any relevant date, valid and fully enforceable against a
Prepetition Lender in accordance with its terms, plus (b) any payment or
payments by or on behalf of the Company to a Prepetition Lender approved by the
Indemnifying Person in settlement of a claim of the type referred to in clause
(a); provided, that for purposes of any calculations under this Agreement the
Prepetition Lender Liabilities shall not, in the aggregate, exceed $20,110,371.
"Prepetition Lenders" means the entities identified as "Lenders" under the
Prepetition Credit Agreement and their respective successors and assigns.
"Proceeding" has the meaning given in Section 8 hereof.
"Retained Units" has the meaning given in Section 4(c) hereof.
"Selected Courts" has the meaning given in Section 8(a) hereof.
Section 2. Indemnification of the Company. From and after the
Closing, the Indemnifying Person shall indemnify, defend and hold harmless the
Company against any and all Losses in connection with, arising out of or
resulting from:
(a) any Liabilities, except (1) to the extent reflected or reserved
against on the Final Aurora Balance Sheet, (2) Liabilities under Company
Material Contracts or any Contracts entered into in the Ordinary Course of
Business and to be performed after the date of the Final Aurora Balance Sheet
(other than any Liabilities for breach thereof), (3) Liabilities incurred in the
Ordinary Course of Business that are not required by GAAP to be reflected or
reserved on the Closing Balance Sheet (other than any such Liability arising
from breach of contract (other than as a result of claims due to rejection of
any contract or lease pursuant to Section 365 of the
3
Bankruptcy Code), breach of warranty, tort, infringement, any environmental
matter, including without limitation any Liability arising under Environmental
Laws, or violation of any Law or any proceeding) and (4) Liabilities disclosed
in the Merger Agreement, the Company Disclosure Schedules or the SEC Reports;
and
(b) any Claim by any third party (including Governmental Entities)
against or affecting the Company or Sea Coast which, if successful, constitute
or would give rise to a breach of any of the representations or warranties of
the Company set forth in Article VI of the Merger Agreement (it being understood
that notwithstanding Article XIII of the Merger Agreement, the representations
and warranties of the Company set forth in Article VI of the Merger Agreement
shall survive the Closing for purposes of this Agreement until the Expiration
Date).
Section 3. Limitations.
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Indemnifying Person shall have no obligation or liability to
indemnify and hold harmless the Company from and against Losses resulting from
any Indemnification Event unless and until the aggregate amount of all such
Losses shall exceed the Deductible Amount (and then only to the extent the
aggregate of such Losses exceeds such amount).
(b) The aggregate liability of the Indemnifying Person to indemnify
for Losses pursuant to this Agreement shall not exceed $30,000,000 (the
"Indemnity Amount") and the Indemnity Amount shall be the sole and exclusive
source for any claims for indemnification by the Company and once 30,000 Class A
Units (or cash in lieu of all or a portion thereof in accordance with Section
4(b)) have been transferred from Bondholder Trust to CEH LLC pursuant to this
Agreement, no further Class A Units shall be subject to any claims for
indemnification by the Company; provided that if the Company makes a Claim with
respect to Excess Prepetition Lender Liabilities, and payment of such Claim by
Bondholder Trust is due pursuant to Section 4 of this Agreement, then (x) the
Indemnity Amount shall be increased by the value of the Class A Units, valued at
$1,000 per unit, or cash in lieu thereof due to the Company pursuant to Section
4 to the extent such Claim constitutes Excess Prepetition Lender Liabilities,
plus the Excess Prepetition Lender Liability Expenses and (y) the number of
Class A Units held by Bondholder Trust subject to an indemnification Claim,
valued at $1,000 per Class A Unit, shall be commensurately increased to the
extent that all or a portion of the applicable Claim is not satisfied in cash in
accordance with Section 4(b) hereof. At such time as the Indemnity Amount is
exhausted or released, then the Company shall not be entitled to seek indemnity
hereunder.
(c) The Company shall not be entitled to make any Claim after the
first anniversary of the Closing Date (the "Expiration Date"), except that each
Claim properly made by the Company prior to the Expiration Date shall survive
until it is settled or resolved (it being agreed by the parties hereto that a
Claim with respect to Excess Prepetition Lender Liabilities may properly be made
by the Company based on the filing of an appeal with respect to the
enforceability of the October Amendment by R(2) Top Hat, LTD it being understood
that the making of such Claim is without prejudice to the Bondholder Trust's
ability to contest the merits of such Claim).
4
Section 4. Procedures.
(a) Claims Against the Indemnity Amount.
(i) Claims against the Indemnity Amount may be made only by
the Company for indemnification of Losses in respect of an Indemnification
Event (each, a "Claim"), subject to the terms of this Agreement.
(ii) In order to assert a Claim, the Company shall notify the
Designated Representative in writing (a "Claim Notice") of any sums which
the Company claims are subject to indemnification under this Agreement.
Such Claim Notice shall consist of a reasonably detailed description of
the Claim and the amount (which, if necessary, may be estimated) of the
Claim in United States dollars.
(iii) The Designated Representative may contest the Claims
specified in the Claim Notice (or any portion thereof) by giving the
Company written notice of such contest (the "Objection Notice") within 45
days after receipt by the Designated Representative of the Claim Notice,
which notice of contest shall include a statement of the grounds of such
contest and shall state the amount of any such Claim that is not in
dispute. The Company shall cooperate with the Designated Representative
and its advisors and representatives in connection with their
investigation of the Claim and shall provide such access to Company
personnel and information as they may reasonably request in connection
therewith.
(iv) Subject to Section 4(b):
(A) if, at 5:00 p.m. eastern time on the 45th day after
receipt by the Designated Representative of a Claim Notice, CEH LLC
has not received an Objection Notice pursuant to Section 4(a)(iii)
above, Bondholder Trust shall transfer as promptly as practicable to
CEH LLC for no consideration a number of Class A Units equal to the
amount of the Claim divided by $1,000, and CEH LLC shall cancel such
Class A Units;
(B) if the Claim is subject to an Objection Notice,
Bondholder Trust shall transfer as promptly as practicable to CEH
LLC for no consideration a number of Class A Units equal to the
portion of the Claim, if any, that is not subject to the Objection
Notice divided by $1,000, and CEH LLC shall cancel such Class A
Units;
(C) if the Company timely receives an Objection Notice
and the contested Claim (or contested portion thereof) is thereafter
settled by written agreement of the Company and Bondholder Trust,
Bondholder Trust shall transfer as promptly as practicable to CEH
LLC for no consideration a number of Class A Units equal to the
amount provided in such written agreement divided by $1,000, and CEH
LLC shall cancel such Class A Units; and
(D) if the Company timely receives an Objection Notice
and a Final Determination is thereafter entered with respect to such
contested Claim (or
5
contested portion thereof), Bondholder Trust shall transfer as
promptly as practicable to CEH LLC for no consideration a number of
Class A Units equal to the amount specified in the Final
Determination divided by $1,000, and CEH LLC shall cancel such Class
A Units.
(b) Cash Funding Election. In lieu of transferring Class A Units
from Bondholder Trust to CEH LLC pursuant to Sections 4(a)(iv) or 4(c), the
Bondholder Trust may elect to fund all or a portion of any such obligation by
making a cash payment (the "Cash Funding") to the Company equal to all or a
portion of the Claim otherwise to be satisfied through the cancellation of Class
A Units. If Bondholder Trust makes such an election, then as promptly as
practicable after the payment obligation arises pursuant to Sections 4(a)(iv) or
4(c), and in no event later than 20 Business Days after such payment obligation
arises, the Designated Representative shall deliver written notice to the
Company specifying the amount of the Cash Funding and Bondholder Trust shall
make such payment within five Business Days after delivering such notice.
(c) Release of Indemnity Amount. On the Expiration Date: (i) a
number of Class A Units equal to that portion, if any, of the Indemnity Amount
which the Company and Bondholder Trust have mutually agreed would reasonably
satisfy all Claims subject to an Objection Notice, if successful, divided by
$1,000 shall remain subject to redemption from the Bondholder Trust (the
"Retained Units"), and (ii) the Class A Units in excess of the Retained Units,
if any, shall no longer be subject to the provisions hereof . The Retained Units
shall remain subject to the terms hereof until such time that each such Claim
that is subject to an Objection Notice has been resolved by receipt of a written
statement executed by the Company and Bondholder Trust evidencing their
agreement with respect to the amounts in question or by a Final Determination,
at which time a number of Class A Units equal to such agreed amount or such
ordered or decreed amount with respect to such Claim that is subject to an
Objection Notice, divided by $1,000 shall be transferred for no consideration
from Bondholder Trust to CEH LLC for cancellation as promptly as practicable,
and CEH LLC shall cancel such Class A Units, unless Bondholder Trust has elected
to fund all or a portion of such amount in cash pursuant to Section 4(b).
(d) If any cancellation of Class A Units is to be made hereunder,
CEH LLC will record such cancellation on the books and records of the Company,
will update Schedule I to the Amended and Restated Operating Agreement of CEH
LLC dated as of the date hereof (as may be amended from time to time, the
"Operating Agreement") to reflect such cancellation, and will circulate such
updated Schedule I to the Members (as defined in the Operating Agreement) of CEH
LLC.
Section 5. Notice and Opportunity to Defend Third Party Claims.
(a) Promptly after receipt by the Company of notice of any Claim by
a third party or circumstances which, with the lapse of time, the Company
believes may give rise to a Claim by a third party or the commencement (or
threatened commencement) of any Claim by a third party (an "Asserted Liability")
that may result in a Loss, the Company shall give written notice thereof (the
"Potential Claim Notice") to the Indemnifying Persons. The Potential Claim
6
Notice shall describe the Asserted Liability in reasonable detail, and shall
indicate the amount (estimated, if necessary) of the Loss that has been or may
be suffered.
(b) The Indemnifying Person shall be entitled to participate in the
defense of any Asserted Liability and, subject to the limitations set forth in
this Agreement, shall be entitled to control and appoint lead counsel
(reasonably satisfactory to the Company) for such defense, in each case at its
expense; provided, however, that the Indemnifying Persons shall not have the
right to assume the defense of any Asserted Liability if (i) such Asserted
Liability seeks an injunction, restraining order, declaratory relief or other
non-monetary relief, (ii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Company and the Indemnifying
Persons and the former shall have been advised in writing by counsel (with a
copy to the Indemnifying Persons) that there are one or more legal or equitable
defenses available to them which are different from or additional to those
available to Indemnifying Persons, or (iii) such action or proceeding involves,
or could reasonably be expected to have an effect on, matters in an amount that
is more than 200% of the scope of the indemnification obligation of the
Indemnifying Persons; provided, further, that to exercise such rights the
Indemnifying Person must give notice to the Company within 30 days after receipt
of any such Potential Claim Notice whether it is assuming control of and
appointing lead counsel for such defense. If the Indemnifying Person does not
give such notice within such 30-day period, then the Company shall have the
right to assume the defense thereof.
(c) If the Indemnifying Person shall assume the control of the
defense of the Asserted Liability in accordance with the provisions of this
Agreement, (i) the Indemnifying Person shall obtain the prior written consent of
the Company (which shall not be unreasonably withheld, conditioned or delayed)
before entering into any settlement of such Asserted Liability if the settlement
does not unconditionally release the Company from all liabilities and
obligations with respect to such Asserted Liability or the settlement imposes
injunctive or other equitable relief against the Company and (ii) the Company
shall be entitled to participate, at its own cost, in the defense of such
Asserted Liability and to employ separate counsel of its choice for such
purpose. The fees and expenses of any such separate counsel to the Company
pursuant to this Agreement shall be paid by the Company; provided, however, that
the Indemnifying Party shall pay the fees and expenses of such counsel if (a)
the employment of separate counsel shall have been authorized in writing by the
Indemnifying Person in connection with the defense of such Asserted Liability or
(b) a conflict of interest exists that would make it inappropriate under
applicable standards of professional conduct to have common counsel.
(d) If the Company shall assume the control of the defense of any
Asserted Liability in accordance with the provisions of this Agreement, (i) the
Company shall obtain the prior written consent of the Indemnifying Person (which
shall not be unreasonably withheld, conditioned or delayed) before entering into
any settlement of such Asserted Liability and (ii) the Indemnifying Person shall
be entitled to participate, at its cost and expense, in the defense of such
Asserted Liability and to employ separate counsel of its choice for such
purpose.
(e) Each party shall cooperate, and cause their respective
Affiliates to cooperate, in the defense or prosecution of any Asserted Liability
and shall furnish or cause to be furnished such records, information and
testimony (subject to any applicable confidentiality
7
agreement), and attend such conferences, discovery proceedings, hearings, trials
or appeals as may be reasonably requested in connection therewith.
Section 6. Merger Agreement. No party hereto shall take any action
inconsistent with or in contravention of Article IV of the Merger Agreement.
Section 7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without giving
effect to conflicts of law principles thereof.
Section 8. Jurisdiction; Forum; Service of Process; Waiver of Jury.
With respect to any suit, action or proceeding ("Proceeding") arising out of or
relating to this Agreement, each of Bondholder Trust and CEH LLC hereby
irrevocably:
(a) submits to the exclusive jurisdiction of the courts of the State
of Delaware and of the United States of America, in each case located in New
Castle County, or any federal bankruptcy court where the Bankruptcy Case is
pending (the "Selected Courts"), for any Litigation arising out of or relating
to this Agreement or the other Transaction Documents and the transactions
contemplated hereby and thereby (and agrees not to commence any Litigation
relating hereto or thereto except in such courts) and waives any objection to
venue being laid in the Selected Courts whether based on the grounds of forum
non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to the Company,
the Reorganized Company, CEH LLC or Bondholder Trust at their respective
addresses referred to in Section 11 hereof; provided, however, that nothing
herein shall affect the right of any party hereto to serve process in any other
manner permitted by law; and
(c) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
OTHER TRANSACTION DOCUMENTS.
Section 9. Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors by operation of law and permitted assigns of the parties
hereto. No assignment of this Agreement may be made by any party at any time,
whether or not by operation of law, without the other party's prior written
consent; provided, however, that the Company may, without the consent of the
other parties hereto, assign any of its rights and interests under this
Agreement as security to any lender or financial institution providing financing
for the transactions contemplated by the Merger Agreement, which assignment will
not relieve the Company of any obligations hereunder.
Section 10. Entire Agreement; Amendment. This Agreement constitute
the full and entire understanding and agreement between the parties with regard
to the subjects hereof and supercede all prior agreements relating to the
subject matter hereof. Except as expressly
8
provided herein, neither this Agreement nor any term hereof may be amended,
modified, supplemented, waived, discharged or terminated other than by a written
instrument signed by the Bondholder Trust, the Company and CEH LLC expressly
stating that such instrument is intended to amend, modify, supplement, waive,
discharge or terminate this Agreement or such term hereof. No waiver of any of
the provisions of this Agreement shall be deemed to or shall constitute a waiver
of any other provision hereof (whether or not similar). No delay on the part of
any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof.
Section 11. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy (with
receipt confirmed), nationally recognized overnight courier or first class
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at the address set forth below or such other address as
may hereafter be designated in writing by such party to the other party:
if to the CEH LLC or the Company, to:
Pinnacle Foods Group Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
c/o ▇.▇. Childs Equity Partners III, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. Childs
▇▇▇▇ ▇. ▇▇▇▇▇▇
and
c/o ▇.▇. ▇▇▇▇▇▇ Partners, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Official Notices Clerk
FBO: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
9
and
O'Melveny & ▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Bondholder Trust:
c/o Oaktree Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests, consents and other communications shall
be deemed to have been given or made if and when delivered personally or by
overnight courier to the parties at the above addresses or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
above (or at such other address or telecopy number for a party as shall be
specified by like notice).
Section 12. Delays or Omissions. Except as expressly provided
herein, no delay or omission to exercise any right, power or remedy accruing to
the Bondholder Trust, the Company or CEH LLC upon any breach or default of any
party under this Agreement, shall impair any such right, power or remedy of the
Bondholder Trust, the Company or CEH LLC nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of the Bondholder Trust, the Company or CEH
LLC of any breach or default under this Agreement, or any waiver on the part of
any such party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law, in equity, or
otherwise afforded to the Bondholder Trust, the Company or CEH LLC shall be
cumulative and not alternative.
Section 13. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become
10
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
Section 14. Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provisions; provided, that, no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party. Any provision held invalid or unenforceable only in part or degree will
remain in full force to the extent not held invalid or unenforceable.
Section 15. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
CRUNCH EQUITY VOTING TRUST
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
CRUNCH EQUITY HOLDING, LLC
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PINNACLE FOODS GROUP INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
11