Exhibit 10.8


 


Execution Version


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


This FIRST AMENDMENT TO CREDIT AGREEMENT (this “AMENDMENT”) is entered
into as of July 16, 2009 by and among BE FOODS, INC., a Delaware
corporation (formerly known as BE Foods Investments, Inc.) (the
“BORROWER”), and the Lenders (as defined in the Credit Agreement referred to
below) signatory hereto.


 


RECITALS


 


WHEREAS, the Borrower, the Lenders, UBS AG, STAMFORD BRANCH, as
Administrative Agent for the Lenders (in such capacity, the “ADMINISTRATIVE
AGENT”), and UBS SECURITIES LLC, as Arranger and Sole Book Running Manager, are
parties to that certain Credit Agreement dated as of July 11, 2007 (the
“CREDIT AGREEMENT”) (except as otherwise noted herein, capitalized terms used
herein without definition have the meanings ascribed to such terms in the
Credit Agreement, as amended by this Amendment);


 


WHEREAS, the Borrower has notified the Administrative Agent that it
desires to amend the Credit Agreement to permit NewCo (as defined herein) to purchase
Loans from the Lenders and to hold such Loans, in each case on terms and
conditions as set forth herein; and


 


WHEREAS, subject to the terms and conditions set forth herein, the
Required Lenders are willing to agree to the amendments to the Credit Agreement
set forth herein.


 


NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:


 


SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.


 


A.                                   Amendments
to Exhibits. The Credit Agreement is hereby amended by adding the following
new Exhibits thereto as set forth in Annex I attached hereto:


 


	
  Exhibit 10.3(f)(iv)(1)

  	
  NewCo Assignment and Acceptance

  
	
  Exhibit 10.3(f)(vi)

  	
  Joinder Agreement

  



 


B.                                     Amendments
to Section 1.1: DEFINITIONS.


 


(i)                                     Section 1.1
of the Credit Agreement is hereby amended by adding the following definitions
in proper alphabetical sequence:


 


“FIRST AMENDMENT EFFECTIVE DATE” means July 16,
2009, the date the conditions referred to in Section 3 of the First
Amendment to Credit Agreement are satisfied.


 


“FIRST AMENDMENT TO CREDIT AGREEMENT” means
that certain First Amendment to Credit Agreement dated as of July 16, 2009
by and among the Borrower and the Required Lenders listed on the signature pages thereto.


 

















 


“NEWCO” means Rochester Holdco
LLC, a Delaware limited liability company.


 


“NEWCO ASSIGNMENT AND ACCEPTANCE”
means with respect to any assignment to NewCo pursuant to Section 10.3(f)(iv) an
Assignment and Acceptance substantially in the form of Exhibit 10.3(f)(iv)(1).


 


“NEWCO ASSIGNMENT EFFECTIVE DATE”
shall have the meaning assigned to such term in Exhibit 10.3(f)(iv)(1).


 


“NEWCO LOAN PURCHASE” means any
purchase of the Loans by NewCo pursuant to Section 10.3(f).


 


(ii)                             The definition of “AVERAGE TOTAL DEBT” is hereby
amended by adding the following proviso immediately before the “.” at the end
thereof:


 


; provided, however, that Average Total Debt shall be calculated
without regard to any Loan purchased and held by NewCo


 


(iii)                          The definition of “CONSOLIDATED EBITDA” is hereby amended
by:


 


(a) inserting the following
language in parenthesis immediately before the “,” at the end of clause (ii)(A)
thereof:


 


(other than any cash interest paid to NewCo
on account of the Loans held by it)


 


(b) amending and restating clause (ii)(H) thereof
as follows:


 


(H) (a) one-time cash fees and
expenses incurred in connection with the Transaction or, to the extent
permitted hereunder, any Permitted Investment, Equity Issuance or Debt Issuance
(whether or not consummated) and (b) cash fees and expenses incurred in
connection with the First Amendment to Credit Agreement and the purchase of any
Loans by NewCo pursuant to and in accordance with Section 10.3(f),


 


(iv)                         Section 1.1 of the Credit Agreement is hereby
amended by deleting the definition of “ELIGIBLE ASSIGNEE” in its entirety and
replacing it with the following new definition:


 


“ELIGIBLE ASSIGNEE” means (i) a
Lender; (ii) unless an assignment to such Person would result in any
increased cost to the Borrower under Section 3.6, 3.9 or 3.11, an Affiliate
of a Lender or, with respect to any Lender that is a fund that invests in bank
loans as its primary business, any other fund that invests in bank loans as its
primary business which is an “accredited investor” and is managed or advised by
the same investment advisor that manages or advises such Lender or by an
Affiliate of such investment advisor; (iii) solely for purposes of NewCo
Loan Purchases, NewCo, and (iv) any other Person approved by each of the
Administrative Agent and the Borrower (such approval by each of the
Administrative Agent and the Borrower not to be unreasonably withheld or
delayed); provided, that
other than as set forth in clause (iii) of this definition, “ELIGIBLE
ASSIGNEE” shall not include the Borrower or any of its Affiliates


 


2

















 


(including the Equity Investors) or
Subsidiaries or any natural person and in no event shall a competitor, customer
or supplier of any Consolidated Party or Affiliate thereof be an Eligible
Assignee.


 


C.                                     Amendments
to Section 2.1(e): INTEREST. Section 2.1(e) of
the Credit Agreement is hereby amended by adding the following as a second
paragraph to Section 2.1(e)(iii):


 


Notwithstanding any other
provision of this Section 2.1(e), in connection with any NewCo Loan
Purchase, on the Interest Payment Date immediately following such NewCo Loan
Purchase, the Borrower shall be required to pay interest in cash (at the rate
provided for in Section 2.1(e) for cash pay interest) then due and
payable on all Loans then outstanding for the corresponding Interest Period
(which payment of cash interest, in the case of Loans held by NewCo, shall be
subject to the provisions of Section 10.3(f)(iii)) in an aggregate amount
(the “CASH INTEREST PAYABLE AMOUNT”) up to the aggregate cash purchase price of
all Loans purchased by NewCo in connection with such NewCo Loan Purchase; provided,
however, if the amount of cash
interest paid on the Loans on the Interest Payment Date immediately following
such NewCo Loan Purchase is less than the Cash Interest Payable Amount (the
“CASH PAY DIFFERENCE”), then the Borrower shall be required to pay interest on
all Loans then outstanding in cash on the next succeeding Interest Payment Date
(and on any subsequent Interest Payment Date to the extent any Cash Interest
Payable Amount has not been applied to pay interest on the Loans in cash) in an
aggregate amount equal to such Cash Pay Difference (it being understood and
agreed that the Cash Interest Payable Amount shall be reduced by the amount of
interest on the Loans paid in cash). Notwithstanding the provisions of this
paragraph, after the Borrower has paid an amount of interest in cash equal to
the Cash Interest Payable Amount, the Borrower shall be permitted, at its
option, to pay the remaining interest then due in respect of any Interest
Period in kind (at the rate provided for in the first paragraph of this Section 2.1(e)(iii) for
such interest).


 


D.                                    Amendments
to Section III: OTHER PROVISIONS RELATING TO THE CREDIT FACILITY. Section III of the Credit Agreement is hereby
amended by adding the following new Section 3.18 thereto:


 


3.18 SUBORDINATION OF BORROWER
OBLIGATIONS OWING TO NEWCO.


 


(a) SUBORDINATION.
Notwithstanding anything to the contrary contained herein, all Borrower
Obligations owed to NewCo (the “SUBORDINATED OBLIGATIONS”) shall be
subordinated in right of payment to all Borrower Obligations owed to all of the
Lenders other than NewCo (the “SENIOR OBLIGATIONS”) such that all Lenders other
than NewCo (collectively, the “SENIOR CREDITORS”) shall be entitled to receive
payment in full in cash of the amounts constituting the Senior Obligations
before NewCo is entitled to receive any payment on account of the Subordinated
Obligations and, in that connection, unless and until the principal of, premium
and interest on, and all other amounts in respect of, all Senior Obligations
shall have been paid in full in cash:


 


3

















 


(i)                  no payment on account of the principal of, premium
or interest on, or any other amount in respect of the Subordinated Obligations
shall be made by or on behalf of the Borrower; and


 


(ii)               NewCo shall neither (x) ask, demand, sue for,
accelerate or take or receive from the Borrower, by set-off or in any other
manner, any payment on account of Subordinated Obligations nor (y) seek
any other remedy allowed at law or in equity against the Borrower for breach of
any of its obligations thereunder


 


; provided, however, that NewCo, subject to the provisions of Section 10.3(f)(iii),
shall be entitled to receive regular payments of interest on the Loans held by
NewCo when due and its pro rata portion of any payments of principal of the
Loan held by NewCo.


 


(b) ACTIONS UPON
DISSOLUTION. In the event of any dissolution or winding up or total or partial
liquidation or reorganization of the Borrower, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, then upon any
payment or distribution of assets of the Borrower of any kind or character,
whether in cash, property or securities, to any of its creditors (including
NewCo) of any amounts (including interest, indemnities and fees) due or to
become due, all Senior Obligations shall first be paid in full in cash before
NewCo shall be entitled to retain any assets so paid or distributed in respect
of the Subordinated Obligations (for principal, premium, interest or otherwise)
and, to that end, the Senior Creditors shall be entitled to receive for
application in payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities that would, but for the
provisions of this Section 3.18 (these “SUBORDINATION TERMS”), be paid or
delivered to NewCo. If NewCo shall have failed to file claims or proofs of
claim with respect to the Subordinated Obligations at least 10 days prior to
the deadline for any such filing, each Senior Creditor is hereby irrevocably
authorized to file proofs of claim and otherwise to act with respect to the
Subordinated Obligations as such Senior Creditor may deem appropriate in its
reasonable discretion. NewCo shall provide to the Administrative Agent and the
Senior Creditors all information and documents necessary to present claims or
seek enforcement as aforesaid and will duly and promptly take such action as
the Administrative Agent or the Senior Creditors may request to collect the
Subordinated Obligations for the account of the Administrative Agent and the
Senior Creditors and to file appropriate claims or proofs of claim with respect
thereto. If the Administrative Agent or the Senior Creditors do not exercise
their right to act in any reorganization proceeding as set forth in this clause
(b) (including the right to vote to accept or reject any plan of partial
or complete liquidation, reorganization, arrangement, composition or
extension), NewCo shall not take any action or vote in any way so as to contest
(x) the validity or enforceability of any of the Credit Documents, (y) the
rights and duties of the Administrative Agent and the Senior Creditors established
in any of the Credit Documents or (z) the validity or enforceability of
the subordination provisions set forth in this Section 3.18.


 


(c) TURNOVER BY NEWCO. If
any payment or distribution of any character, whether in cash, securities or
other property, in respect of the Credit Documents shall be received by NewCo
in contravention of these Subordination Terms, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to,


 


4

















 


the Administrative Agent for the benefit of the Senior Creditors,
ratably according to the respective aggregate amounts remaining unpaid thereon,
to the extent necessary to pay all Senior Obligations in full in cash.
Notwithstanding anything to the contrary contained herein, NewCo shall have no
rights under Section 3.14 but (without limiting its obligations under
these Subordination Terms) acknowledges its obligations under such Section.


 


(d) NO PETITION. So long as any Senior
Obligation is outstanding, NewCo shall not commence, or join with any creditor
(other than any Senior Creditor) in commencing, or directly or indirectly cause
the Borrower to commence, or assist the Borrower in commencing, any proceeding
referred to clause (b) above.


 


(e) CONTINUATION. The provisions of
these Subordination Terms constitute a continuing agreement and shall (i) remain
in full force and effect until all Senior Obligations have been paid in full in
cash, (ii) be binding upon NewCo and the Borrower and their respective
successors, transferees and assignees, and (iii) inure to the benefit of,
and be enforceable by, the Senior Creditors.


 


(f) NO IMPAIRMENT; AUTOMATIC
RESTORATION. The foregoing provisions are solely for the purpose of defining
the relative rights of the holders of the Senior Obligations on the one hand
and NewCo on the other hand, and nothing herein shall impair, as between the
Borrower and NewCo, the obligation of the Borrower, which is unconditional and
absolute, to pay to NewCo the principal of and interest owing hereunder in
accordance with the terms hereof. These Subordination Terms shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of the Borrower in respect of the Senior Obligations is
rescinded or must be otherwise restored by any holder of any of the Senior
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.


 


E.                                      Amendments
to Section 7.3: NATURE OF BUSINESS. Section 7.3 of the Credit Agreement
is hereby amended by adding the following to the conclusion thereof:


 


The Borrower will maintain NewCo’s status as
a holding company, will not permit NewCo to conduct any operations other than
to purchase and hold the Loans in accordance with Section 10.3(f),
together with such other operations as are reasonably incidental thereto. The
Borrower will at all times own all of the Capital Stock of NewCo.


 


F.                                      Amendments
to Section 9.6: NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Section 9.6 of the Credit Agreement is hereby amended by adding the
following to the conclusion thereof:


 


Each Lender acknowledges that in connection
with NewCo Loan Purchases, (a) NewCo may purchase or acquire Loans
hereunder from Lenders from time to time, subject to the restrictions set forth
in the Credit Agreement, (b) NewCo currently may have, and later may come
into possession of, information regarding the Loans or the Consolidated Parties
hereunder that is not known to such Lender and that may be material to a
decision by such Lender to enter into an assignment of such Loans hereunder


 


5

















 


(“EXCLUDED
INFORMATION”), (c) such Lender has independently and without reliance on
NewCo made such Lender’s own analysis and determined to enter into an
assignment of such Loans and to consummate the transactions contemplated
thereby notwithstanding such Lender’s lack of knowledge of the Excluded
Information and (d) NewCo shall have no liability to such Lender, and such
Lender hereby waives and releases, to the extent permitted by law, any claims
such Lender may have against NewCo, under applicable laws or otherwise, with
respect to the nondisclosure of the Excluded Information; provided that the Excluded Information shall not and
does not affect the truth or accuracy of the representations or warranties of
NewCo set forth in the applicable NewCo Assignment and Acceptance. Each Lender
further acknowledges that the Excluded Information may or may not be available
to the Administrative Agent or the other Lenders hereunder.


 


G.                                     Amendments
to Section 10.3: BENEFIT OF AGREEMENT. Section 10.3 of the Credit Agreement is hereby amended by:


 


(i)                                deleting “and” at the end of clause (b)(ii)(D) thereof;


 


(ii)                             replacing the period at the end of clause
10.3(b)(ii)(E) thereof with “; and”;


 


(iii)                          inserting a new clause (b)(ii)(F) immediately
after clause 10.3(b)(ii)(E) thereof as follows:


 


(F) any assignment to NewCo must be made in
accordance with the procedures set forth in Section 10.3(f).”


 


(iv)                         inserting new clause (f) thereto
immediately after the end of clause (e) thereof as follows:


 


(f) NewCo Loan Purchases. Notwithstanding anything to the contrary
contained in this Section 10.3 or any other provision of this Credit
Agreement, so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, NewCo may purchase outstanding Loans on
the following basis:


 


(i)                  At any time and from time to time, NewCo
shall have the right to purchase, for cash, Loans up to an amount to be
specified by NewCo at a purchase price to be determined for each such purchase;
provided, that NewCo
shall be entitled to purchase Loans solely pursuant to this Section 10.3(f) and
shall not be permitted to purchase Loans in any other manner.


 


(ii)               With respect to all purchases by NewCo of the
Loans pursuant to this Section 10.3(f), such purchases shall not, for the
avoidance of doubt, constitute prepayments of the Loans (including, without
limitation, pursuant to Section 3.3 or Section 3.15) for any purpose
hereunder. The Loans purchased by NewCo shall remain outstanding as such.


 


(iii) Immediately following any NewCo Loan
Purchase, (A) interest shall continue to accrue and be payable from and
after the NewCo


 


6

















 


Assignment Effective Date on any
Loans purchased by NewCo in accordance with Section 2.1(e); (B) all
principal and other payments due with respect to Loans purchased by NewCo shall
be subject to the provisions of Section 3.18; and (C) notwithstanding
anything to the contrary in this Credit Agreement or any other Credit Document,
NewCo shall have no right whatsoever, whether or not any Consolidated Party is
subject to a bankruptcy or insolvency proceeding (v) to make any request,
demand, authorization, direction or notice under this Credit Agreement or any
other Credit Document, (w) to consent to, or otherwise vote its interest in
connection with, any amendment, change, waiver, discharge or termination or
other such action with respect to any of the terms of this Credit Agreement or
any other Credit Document; provided, that NewCo
shall irrevocably instruct the Administrative Agent to automatically deem any
Loans held by NewCo to be voted pro rata according to the Loans of all other
Lenders in the aggregate (other than NewCo) in connection with any such
amendment, change, waiver, discharge or termination or other action (including,
without limitation, all voting and consent rights arising out of any bankruptcy
or insolvency proceeding, including Sections 1126 and 1129 of the Bankruptcy
Code), to require the Administrative Agent or other Lender to undertake any
action (or refrain from taking any action) with respect to the Credit Agreement
or any other Credit Document, (x) to seek adequate protection or oppose
any adequate protection requested by any Lender, or (y) to participate in
(or have the right to receive any notice of) any meeting, conference call or
correspondence, in each case solely among Lenders. Cash interest on Loans
purchased by NewCo accrued through the NewCo Assignment Effective Date shall be
paid to the Lender that has assigned such Loans to NewCo on the next Interest
Payment Date. Immediately following any NewCo Loan Purchase, Loans so purchased
by NewCo and any gains therefrom, together with all fees, charges and
accounting adjustments relating thereto or affected thereby, shall not be
included in any calculation of ratios or other financial measures with respect
to any definition or financial covenant set forth in the Credit Agreement.
Notwithstanding anything to the contrary contained in this Credit Agreement or
any other Credit Document, NewCo shall not decline all or any portion of any
prepayment of Loans purchased by the Borrower pursuant to Section 3.3. Any
payment of cash interest or principal, whether as a result of mandatory
prepayment or otherwise, with respect to Loans purchased by NewCo, immediately
upon receipt by NewCo, shall be distributed by NewCo to the Borrower.


 


(iv) Any
NewCo Loan Purchase shall be effective upon recordation in the Register (in the
manner set forth below) by the Administrative Agent (it being understood that such recordation by the Administrative Agent shall only occur
following receipt by the Administrative Agent of a fully executed and completed
NewCo Assignment and Acceptance effecting the assignment thereof. Each
assignment shall be recorded in the Register on the Business Day that the
Administrative Agent has received the


 


7

















 


applicable NewCo Assignment and Acceptance, if received by 1:00 p.m.
New York time, and on the following Business Day if received after such time. Prompt
notice of such recordation shall be provided to NewCo and the Borrower and a
copy of such NewCo Assignment and Acceptance shall be maintained by the
Administrative Agent. Upon the effectiveness of each NewCo Loan Purchase, NewCo
shall not sell, assign or participate all or any portion of any Loans purchased
pursuant to this Section 10.3(f).


 


(v)                                               NewCo
shall make payment of the purchase price for Loans accepted for payment by transmitting funds directly to the assigning
Lender.


 


(vi)                                            On or prior to the initial NewCo Loan
Purchase, NewCo shall deliver to the Administrative Agent a duly executed
Joinder Agreement substantially in the form of Exhibit 10.3(f)(vi).


 


(vii)                                         The provisions of this Section 10.3(f) shall
not require NewCo to offer to, or to consummate any, purchase of any Loans.


 


SECTION 2. CONSENT AND WAIVER. Pursuant to Section 10.6
of the Credit Agreement, the Required Lenders hereby consent to the
transactions described in this Amendment and waive the requirements of any
provision of the Credit Agreement or any other Credit Document that might
otherwise result in a breach of the Credit Agreement or such other Credit Documents
or a Default or an Event of Default as a result of or in connection with the
consummation of such transactions.


 


SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness
of each provision of this Amendment is subject to the satisfaction of each of
the following conditions precedent:


 


A.           The Administrative Agent shall have received
all of the following:


 


(i)                                     Amendment.
This Amendment, duly executed and delivered by the Borrower and the Required
Lenders;


 


(ii)                                  Fees. (A) The
Administrative Agent shall have received, on behalf of each of the Required
Lenders which executes this Amendment and submits to the Administrative Agent a
signature page hereto on or prior to 5:00 p.m. (New York time) on July 15,
2009, an amendment fee equal to 0.10% of the outstanding principal amount of
the Loans held by it; and (B) the Administrative Agent and its affiliates
shall have received all fees, expenses and other amounts referred to in Section 10.5
of the Credit Agreement or otherwise mutually agreed upon by the Borrower and
the Administrative Agent, in each case due and payable and invoiced on or prior
to the First Amendment Effective Date, to the extent documented and required to
be reimbursed or paid by the Borrower; and


 


(iii)                               Legal Opinion.
The Administrative Agent, on behalf of the Lenders, shall have received
originally executed copies of favorable written opinions of DLA Piper, counsel
for the Administrative Agent dated as of the First


 


8

















 


Amendment Effective Date in form and substance reasonably
satisfactory to the Administrative Agent.


 


B.             The Borrower shall be in
compliance in all material respects with all the terms and provisions of each
Credit Document on its part to be observed or performed, and, no Default or Event
of Default shall exist and be continuing either prior to or after giving effect
this Amendment.


 


C.             The representations and
warranties set forth herein shall, subject to the limitations set forth herein
and therein, be true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) as of the date
hereof as if made on the date hereof (except for those which expressly relate
to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) as of such earlier
date).


 


SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Agents and the Lenders that, as of the date
hereof and after giving effect to this Amendment, (a) it has the corporate
or other necessary power and authority, and the legal right, to make, deliver
and perform this Amendment and all other documents executed and/or delivered in
connection herewith and to authorize the execution, delivery and performance of
this Amendment and such other documents, (b) this Amendment has been duly
executed and delivered on its behalf, and (c) this Amendment constitutes a
legal, valid and binding obligation of it enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law) and by an implied covenant of good faith and fair dealing.


 


SECTION 5. NO CONFLICTS. Neither the execution
and delivery of this Amendment, nor the consummation of the transactions
contemplated herein, nor performance of and compliance with the terms and
provisions hereof by the Borrower will (a) violate or conflict with any
provision of its respective articles or certificate of incorporation or bylaws
or other organizational or governing documents, (b) violate, contravene or
materially conflict with any material Requirement of Law or any other material
law, regulation (including, without limitation, Regulation U or Regulation X),
order, writ, judgment, injunction, decree or permit applicable to it, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it may be
bound, the violation of which could reasonably be expected to have a Material
Adverse Effect, or (d) result in or require the creation of any Lien upon or
with respect to its properties.


 


SECTION 6. SURVIVAL OF
REPRESENTATIONS AND WARRANTIES. All representations and warranties made in this
Amendment or any other Credit Document shall survive the execution and delivery
of this Amendment, and no investigation by any Agent or the Lenders shall
affect the representations and warranties or the right of the Agents and the
Lenders


 


9

















 


to rely upon them. If any representation or warranty made in this
Amendment is false in any material respect as of the date made or deemed made,
then such shall constitute an Event of Default under the Credit Agreement.


 


SECTION 7. REFERENCE TO AGREEMENT. Each of the Credit
Documents, including the Credit Agreement, and any and all other agreements,
documents or instruments now or hereafter executed and/or delivered pursuant to
the terms hereof or pursuant to the terms of the Credit Agreement as amended
hereby, are hereby amended so that any reference in such Credit Documents to
the Credit Agreement, whether direct or indirect, shall mean a reference to the
Credit Agreement as amended hereby. This Amendment shall constitute a Credit
Document under the Credit Agreement.


 


SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 9. EXECUTION. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Amendment to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile or
other electronic means by any of the parties hereto of an executed counterpart
of this Amendment shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed
counterpart hereof will be delivered.


 


SECTION 10. LIMITED EFFECT. This Amendment relates only to
the specific matters expressly covered herein, shall not be considered to be a
waiver of any rights or remedies any Agent or Lender may have under the Credit
Agreement or under any other Credit Document, and shall not be considered to
create a course of dealing or to otherwise obligate in any respect any Lender
to execute similar or other amendments or grant any waivers under the same or
similar or other circumstances in the future.


 


[The remainder of this page is
intentionally left blank.]


 


10














 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
   

  	
  BE FOODS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Linda K. Nelson

  
	
   

  	
   

  	
   

  	
  Name: Linda K. Nelson

  
	
   

  	
   

  	
   

  	
  Title: Secretary

  



 


FIRST
AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AZB CLO 3 Limited

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Takashi Yoshimatsu

  
	
   

  	
   

  	
   

  	
  Name:

  	
  TAKASHI YOSHIMATSU

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   BLACKROCK KELSO CAPITAL CORPORATION

  
	
   

  	
   

  	
   By:

  	
  BLACKROCK KELSO CAPITAL ADVISORS LLC, its  Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael B. Lazar

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael B. Lazar

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Operating Officer

  
						



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER: Knighthead Master Fund, L.P.

  
	
   

  	
   

  	
  By:

  	
  Knighthead Capital Management, LLC, its Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas Wagner

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas Wagner

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Member

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  JPMORGAN CHASE BANK, N.A.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Aleksandra Markovic

  
	
   

  	
   

  	
  Name: 

  	
  Aleksandra Markovic

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:  

  	
  Zodiac Fund – Morgan Stanley US

  
	
   

  	
   

  	
   

  	
  Senior Loan Fund

  
	
   

  	
   

  	
   

  	
  By:

  	
  Morgan Stanley Investment Management Inc. as Investment
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John Hayes

  
	
   

  	
   

  	
  Name: 

  	
  JOHN HAYES

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE DIRECTOR

  
						



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 














 


	
   

  	
   

  	
  LENDER:  Morgan Stanley Prime
  Income Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John Hayes

  
	
   

  	
   

  	
   

  	
  Name:

  	
  JOHN HAYES

  
	
   

  	
   

  	
   

  	
  Title:

  	
  EXECUTIVE DIRECTOR

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS AG, STAMFORD BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Marie A. Haddad

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Marie A. Haddad

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate Director

  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mary E. Evans

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mary E. Evans

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate Director

  Banking Products Services, US

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDERS:  UBS Loan Finance LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mary E. Evans 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mary E. Evans 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate Director

  Banking Products Services, US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Marie A. Haddad 

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Marie A. Haddad 

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate Director

  Banking Products Services, US

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:  

  	
  VAN
  KAMPEN

  
	
   

  	
   

  	
   

  	
  Dynamic
  Credit Opportunities Fund

  
	
   

  	
   

  	
   

  	
  By:

  	
  Van
  Kampen Asset Management

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey M. Scott

  
	
   

  	
   

  	
   

  	
  Name:

  	
  JEFFREY M. SCOTT

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:  

  	
  VAN
  KAMPEN

  
	
   

  	
   

  	
   

  	
  SENIOR
  LOAN FUND

  
	
   

  	
   

  	
   

  	
  By:

  	
  Van
  Kampen Asset Management

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey M. Scott

  
	
   

  	
   

  	
   

  	
  Name:

  	
  JEFFREY M. SCOTT

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 

















 


	
   

  	
   

  	
  LENDER:  

  	
  VAN
  KAMPEN

  
	
   

  	
   

  	
   

  	
  SENIOR
  INCOME TRUST

  
	
   

  	
   

  	
   

  	
  By:

  	
  Van
  Kampen Asset Management

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey M. Scott

  
	
   

  	
   

  	
   

  	
  Name:

  	
  JEFFREY M. SCOTT

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


FIRST AMENDMENT TO CREDIT AGREEMENT


 














 


ANNEX I TO


FIRST AMENDMENT TO CREDIT AGREEMENT


 


Exhibit 10.3(f)(iv)(1) to


Credit
Agreement


 


FORM OF


NEWCO ASSIGNMENT AND ACCEPTANCE


 


Reference is made to that certain Credit Agreement dated as of July 11,
2007 (as amended, modified, restated or supplemented from time to time, the
“CREDIT AGREEMENT”) by and among BE FOODS, INC., a Delaware corporation
(formerly known as BE Foods Investments, Inc.) (the “BORROWER”), the
Lenders, UBS AG, STAMFORD BRANCH, as Administrative Agent (in such capacity,
the “ADMINISTRATIVE AGENT”), and the other Agents named therein. Capitalized
terms used but not defined herein have the meanings given to such terms in the
Credit Agreement.


 


1.     The Assignor identified on Schedule 1 hereto (the “ASSIGNOR”)
and Rochester Holdco LLC, a Delaware limited liability company (the “ASSIGNEE”)
agree as follows:


 


2.     The Assignor hereby
irrevocably sells and assigns to the Assignee without recourse to the Assignor,
and the Assignee hereby irrevocably purchases and assumes from the Assignor
without recourse to the Assignor, as of the NewCo Assignment Effective Date (as
defined below) inserted by the Administrative Agent, the interest described in Schedule 1 hereto (the “ASSIGNED
INTEREST”) in and to the Assignor’s rights and obligations under the Credit
Agreement with respect to the Loans, in a principal amount as set forth on Schedule 1 hereto.


 


3.     The Assignor (a) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Credit Document or any other instrument or document furnished pursuant thereto,
other than that the Assignor is the legal owner and beneficial owner of the
Assigned Interest and it has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is, and on the applicable
NewCo Assignment Effective Date will be, free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of
its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any other Credit Document
or any other instrument or document furnished pursuant hereto or thereto; (c) acknowledges
that (i) the Assignee currently may have, and later may come into
possession of, information regarding the Loans or the Consolidated Parties that
is not known to it and that may be material to a decision to enter into this
assignment of such Loans hereunder (“ASSIGNEE EXCLUDED INFORMATION”), (ii) it
has independently and without reliance on the other party made its own analysis
and determined to enter into this assignment of such Loans and to consummate
the transactions contemplated hereby notwithstanding its lack of knowledge of
the Assignee


 


I-1

















 


Excluded Information and (iii) the Assignee shall
have no liability to it, and it hereby to the extent permitted by law waives
and releases any claims it may have against Assignee under applicable laws or
otherwise, with respect to the nondisclosure of the Assignee Excluded
Information; provided that the Assignee Excluded Information shall not
and does not affect the truth or accuracy of the representations or warranties
set forth below in Section 4; (d) attaches any Notes held by it
evidencing the Loans and if the Assignor has retained any interest in the
Loans, requests that the Administrative Agent exchange the attached Notes for a
new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the NewCo Assignment Effective
Date); and (e) will, upon request, execute and deliver any additional
documents deemed by the Administrative Agent or the Assignee to be necessary or
desirable to complete the sale, assignment and transfer of the Assigned
Interest.


 


4.     The Assignee (a) represents
and warrants that (i) it is legally authorized to enter into this NewCo
Assignment and Acceptance and (ii) it has transmitted same day funds to
the Assignor on the NewCo Assignment Effective Date; (b) confirms that it
has received a copy of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this NewCo Assignment and Acceptance; (c) acknowledges
that (i) the Assignor currently may have, and later may come into
possession of, information regarding the Credit Documents or the Consolidated
Parties that is not known to it and that may be material to a decision to enter
into this NewCo Assignment and Acceptance (“ASSIGNOR EXCLUDED INFORMATION”), (ii) it
has independently and without reliance on the other party made its own analysis
and determined to enter into this NewCo Assignment and Acceptance and to
consummate the transactions contemplated hereby notwithstanding its lack of
knowledge of the Assignor Excluded Information and (iii) the Assignor
shall have no liability to it, and it hereby to the extent permitted by law
waives and releases any claims it may have against such Assignor under
applicable laws or otherwise, with respect to the nondisclosure of the Assignor
Excluded Information; provided that the Assignor Excluded Information
shall not and does not affect the truth or accuracy of the representations or
warranties of Assignor as set forth in Section 3; (d) agrees that it
will, independently and without reliance upon the Assignor, the Agents or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the this NewCo Assignment and Acceptance, the Credit
Agreement, the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (e) appoints and authorizes the
Agents to take such action as agent on its behalf and to exercise such powers
and discretion under this NewCo Assignment and Acceptance, the Credit
Agreement, the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agents by the
terms thereof, together with such powers as are incidental thereto; and (f) agrees
that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender.


 


5.     The effective
date of this NewCo Assignment and Acceptance shall be the NewCo Assignment
Effective Date of Assignment described in Schedule 1 hereto (the “NEWCO
ASSIGNMENT EFFECTIVE DATE”). Following the execution of this NewCo Assignment
and Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording


 


I-2

















 


by
the Administrative Agent pursuant to the Credit Agreement, effective as of the
NewCo Assignment Effective Date.


 


6.     Upon such acceptance and recording, from
and after the NewCo Assignment Effective Date, the Administrative Agent shall
make all payments of interest in respect of the Assigned Interest (excluding
payments of principal) to the Assignor for amounts which have accrued to the
NewCo Assignment Effective Date.


 


7.     Each of the Assignor and Assignee
acknowledges that it has not violated any applicable laws relating to this
NewCo Assignment and Acceptance or the transactions contemplated herein.


 


8.     From and after the NewCo Assignment
Effective Date, (a) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this NewCo Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and under the other Credit
Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this NewCo Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.


 


9.     This NewCo Assignment and Acceptance shall
be governed by and construed in accordance with the laws of the State of New
York.


 


[The remainder of this page is intentionally left blank.]


 


I-3

















 


Schedule 1 to


 


NewCo Assignment and Acceptance


 


Name of Assignor: [                                                     ]


 


Name of Assignee:  Rochester Holdco LLC 


 


Assigned Interest:


 


	
   

  	
  Loans Assigned

  	
   

  	
  Percentage Assigned of Loans(1)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  $[                         ]

  	
   

  	
  [   .                         ]%

  	
   

  	
   

  
	
   

  	
  $[                         ]

  	
   

  	
  [   .                         ]%

  	
   

  	
   

  
	
   

  	
  $[                         ]

  	
   

  	
  [   .                         ]%

  	
   

  	
   

  



 


NewCo Assignment Effective Date:
[                                             
], 20[      ] [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE NEWCO ASSIGNMENT EFFECTIVE DATE OF RECORDATION OF TRANSFER
IN THE REGISTER THEREFOR.]


 


Notice and Wire Instructions:


 


	
  ASSIGNOR:

  	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  	
   

  
	
  [Name of Assignor]

  	
   

  	
  Rochester Holdco LLC

  
	
   

  	
   

  	
   

  
	
  Notices:

  	
   

  	
  Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BE Foods, Inc. 

  
	
   

  	
   

  	
  90 Linden Oaks

  
	
  Attention:

  	
   

  	
  Rochester, NY 14625

  
	
  Telecopier:

  	
   

  	
  Attention: Linda Nelson

  
	
   

  	
   

  	
  Facsimile Number: 585-383-1606

  
	
  with a copy to:

  	
   

  	
  E-Mail Address: lnelson@birdseyefoods.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Vestar Capital Partners

  
	
  Telecopier:

  	
   

  	
  245 Park Avenue

  
	
   

  	
   

  	
  41st Floor

  
	
  Wire Instructions:

  	
   

  	
  New York, NY 10167

  
	
   

  	
   

  	
  Attention: Brian Ratzan

  



 






(1)
To be completed by the Administrative Agent to at least 15 decimals as a
percentage of the Loans of all Lenders thereunder.


 


I-4

















 


	
   

  	
   

  	
  Facsimile Number: 212-351-1600

  
	
   

  	
   

  	
  E-Mail Address: BRatzan@Vestarcapital.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wire Instructions:

  



 


[The remainder of this page is
intentionally left blank.]


 


I-5

















 


IN WITNESS WHEREOF, the parties hereto have
caused this NewCo Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers.


 


	
  ASSIGNOR:

  	
   

  	
  ASSIGNEE:

  
	
  [NAME OF ASSIGNOR]

  	
   

  	
  ROCHESTER HOLDCO LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
   

  	
  Title:

  



 


I-6