Exhibit 10.38
AMENDMENT, dated as of December 19, 2001 (this "Amendment") to
---------
the RECEIVABLES PURCHASE AGREEMENT, dated as of April 19, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Receivables Purchase
Agreement"), between Aurora Foods Inc. ("Aurora"), and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank) ("JPMorgan").
The parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in Exhibit A to the
-------------
Receivables Purchase Agreement and used herein shall have the meanings given to
them in Exhibit A to the Receivables Purchase Agreement.
SECTION 2. Amendments to Receivables Purchase Agreement. Exhibit A
--------------------------------------------
of the Receivables Purchase Agreement is hereby amended by deleting the phrase
"; and provided, further, that effective December 31, 2001, the Facility Limit
--------
shall be further permanently reduced by $10,000,000" from the definition of the
term "Facility Limit".
SECTION 3. Conditions to Effectiveness. This Amendment shall be
---------------------------
effective on the date on which Aurora, JPMorgan, and each of the Subordinated
Participants shall have executed and delivered this Amendment.
SECTION 4. Representations and Warranties. To induce the parties
------------------------------
hereto to enter into this Amendment, Aurora hereby represents and warrants that
the representations and warranties made by the Seller in Section 4.01 of the
Receivables Purchase Agreement are true and correct in all material respects on
and as of the date hereof, before and after giving effect to the effectiveness
of this Amendment, as if made on and as of the date hereof.
SECTION 5. Payment of Expenses. Aurora agrees to pay or reimburse
-------------------
JPMorgan and the Subordinated Participants for all of its out-of-pocket costs
and reasonable expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to JPMorgan and the Subordinated Participants.
SECTION 6. Continuing Effect. Except as expressly modified by this
-----------------
Amendment, the Receivables Purchase Agreement and the Participation Agreement
are and shall remain in full force and effect.
SECTION 7. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Execution in Counterparts. This Amendment may be
-------------------------
executed by 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. This Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
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: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: EVP-CFO
JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FENWAY PARTNERS CAPITAL FUND, L.P.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
FENWAY PARTNERS CAPITAL FUND II, L.P.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
XXXXXX DE LEEUW & CO. III, L.P.
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
XXXXXX DE LEEUW & CO. III (EUROPE), L.P.
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
XXXXXX DE LEEUW & CO. III (ASIA), L.P.
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
GAMMA FUND LLC
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
XXXXXX DE LEEUW & CO. IV, L.P
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
DELTA FUND LLC
By: /s/ Xxxxx Xx Xxxxx
-------------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
XXXXXX DE LEEUW & CO. IV, ASSOCIATES L.P
By: /s/ Xxxxx Xx Xxxxx
-------------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Member
UBS CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
