Exhibit
10.7


 


EXECUTION COPY


 


 


CREDIT AGREEMENT


 


Dated as of July 11, 2007




among


 


BE FOODS INVESTMENTS, INC.,


as Borrower,


 


THE LENDERS


FROM TIME TO TIME PARTY HERETO,


 


UBS AG, STAMFORD BRANCH,


as Administrative Agent


 


and


 


UBS SECURITIES LLC,

as Sole Lead Arranger and Sole Book Running Manager


 

















 


Table of Contents


 


	
   

  	
  Page

  
	
  SECTION I DEFINITIONS

  	
  1

  
	
  1.1. DEFINITIONS

  	
  1

  
	
  1.2. COMPUTATION OF TIME
  PERIODS

  	
  29

  
	
  1.3. ACCOUNTING TERMS

  	
  29

  
	
   

  	
   

  
	
  SECTION II TERM LOAN FACILITY

  	
  30

  
	
  2.1. TERM LOANS

  	
  30

  
	
   

  	
   

  
	
  SECTION III OTHER PROVISIONS RELATING TO THE CREDIT
  FACILITY

  	
  31

  
	
  3.1. DEFAULT RATE

  	
  31

  
	
  3.2. EXTENSION AND CONVERSION

  	
  32

  
	
  3.3. PREPAYMENTS

  	
  32

  
	
  3.4. TERMINATION OF TERM LOAN
  COMMITMENTS

  	
  34

  
	
  3.5. FEES

  	
  34

  
	
  3.6. CAPITAL ADEQUACY

  	
  34

  
	
  3.7. LIMITATION ON EURODOLLAR
  LOANS

  	
  35

  
	
  3.8. ILLEGALITY

  	
  35

  
	
  3.9. REQUIREMENTS OF LAW

  	
  36

  
	
  3.10. TREATMENT OF AFFECTED
  LOANS

  	
  37

  
	
  3.11. TAXES

  	
  38

  
	
  3.12. COMPENSATION

  	
  40

  
	
  3.13. PRO RATA TREATMENT

  	
  40

  
	
  3.14. SHARING OF PAYMENTS

  	
  41

  
	
  3.15. PAYMENTS, COMPUTATIONS,
  ETC.

  	
  42

  
	
  3.16. EVIDENCE OF DEBT

  	
  42

  
	
  3.17. REPLACEMENT OF AFFECTED
  LENDERS

  	
  43

  
	
   

  	
   

  
	
  SECTION IV CONDITIONS

  	
  44

  
	
  4.1. CLOSING CONDITIONS

  	
  44

  
	
   

  	
   

  
	
  SECTION V REPRESENTATIONS AND WARRANTIES

  	
  46

  
	
  5.1. FINANCIAL CONDITION

  	
  46

  
	
  5.2. NO MATERIAL CHANGE

  	
  46

  
	
  5.3. ORGANIZATION AND GOOD
  STANDING

  	
  46

  
	
  5.4. POWER; AUTHORIZATION;
  ENFORCEABLE OBLIGATIONS

  	
  47

  
	
  5.5. NO CONFLICTS

  	
  47

  
	
  5.6. NO DEFAULT

  	
  47

  
	
  5.7. OWNERSHIP

  	
  48

  
	
  5.8. INDEBTEDNESS

  	
  48

  
	
  5.9. LITIGATION

  	
  48

  
	
  5.10. TAXES

  	
  48

  
	
  5.11. COMPLIANCE WITH LAW

  	
  48

  
	
  5.12. ERISA

  	
  49

  



 


i

















 


	
  5.13. CORPORATE STRUCTURE; CAPITAL STOCK, ETC.

  	
  50

  
	
  5.14. GOVERNMENTAL
  REGULATIONS, ETC.

  	
  50

  
	
  5.15. PURPOSE OF LOANS

  	
  51

  
	
  5.16. ENVIRONMENTAL MATTERS

  	
  51

  
	
  5.17. INTELLECTUAL PROPERTY

  	
  52

  
	
  5.18. SOLVENCY

  	
  52

  
	
  5.19. INVESTMENTS

  	
  52

  
	
  5.20. DISCLOSURE

  	
  52

  
	
  5.21. BROKERS’ FEES

  	
  52

  
	
  5.22. LABOR MATTERS

  	
  52

  
	
  5.23. SENIORITY

  	
  52

  
	
   

  	
   

  
	
  SECTION VI AFFIRMATIVE COVENANTS

  	
  53

  
	
  6.1. INFORMATION COVENANTS

  	
  53

  
	
  6.2. PRESERVATION OF EXISTENCE
  AND FRANCHISES

  	
  56

  
	
  6.3. BOOKS AND RECORDS

  	
  56

  
	
  6.4. COMPLIANCE WITH LAW

  	
  56

  
	
  6.5. PAYMENT OF TAXES AND OTHER
  CLAIMS

  	
  56

  
	
  6.6. INSURANCE

  	
  57

  
	
  6.7. MAINTENANCE OF PROPERTY

  	
  57

  
	
  6.8. USE OF PROCEEDS

  	
  57

  
	
  6.9. AUDITS/INSPECTIONS

  	
  57

  
	
   

  	
   

  
	
  SECTION VII NEGATIVE COVENANTS 

  	
  58 

  
	
  7.1. INDEBTEDNESS

  	
  58

  
	
  7.2. LIENS

  	
  59

  
	
  7.3. NATURE OF BUSINESS

  	
  62

  
	
  7.4. CONSOLIDATION, MERGER, DISSOLUTION,
  ETC.

  	
  62

  
	
  7.5. ASSET DISPOSITIONS

  	
  63

  
	
  7.6. INVESTMENTS

  	
  64

  
	
  7.7. RESTRICTED PAYMENTS

  	
  66

  
	
  7.8. OTHER INDEBTEDNESS

  	
  67

  
	
  7.9. TRANSACTIONS WITH
  AFFILIATES

  	
  67

  
	
  7.10. LIMITATION ON RESTRICTED
  ACTIONS

  	
  68

  
	
  7.11. SALE LEASEBACKS

  	
  69

  
	
   

  	
   

  
	
  SECTION VIII EVENTS OF DEFAULT

  	
  69

  
	
  8.1. EVENTS OF DEFAULT

  	
  69

  
	
  8.2. ACCELERATION; REMEDIES

  	
  71

  
	
   

  	
   

  
	
  SECTION IX AGENCY PROVISIONS

  	
  72

  
	
  9.1. APPOINTMENT, POWERS AND
  IMMUNITIES

  	
  72

  
	
  9.2. RELIANCE BY
  ADMINISTRATIVE AGENT

  	
  73

  
	
  9.3. DEFAULTS

  	
  73

  
	
  9.4. RIGHTS AS A LENDER

  	
  73

  
	
  9.5. INDEMNIFICATION

  	
  74

  



 


ii

















 


	
  9.6. NON-RELIANCE ON ADMINISTRATIVE
  AGENT AND OTHER LENDERS 

  	
  74 

  
	
  9.7. SUCCESSOR ADMINISTRATIVE
  AGENT

  	
  74

  
	
   

  	
   

  
	
  SECTION X MISCELLANEOUS

  	
  75

  
	
  10.1. NOTICES

  	
  75

  
	
  10.2. RIGHT OF SET-OFF;
  ADJUSTMENTS

  	
  76

  
	
  10.3. BENEFIT OF AGREEMENT

  	
  77

  
	
  10.4. NO WAIVER; REMEDIES
  CUMULATIVE

  	
  80

  
	
  10.5. EXPENSES;
  INDEMNIFICATION

  	
  81

  
	
  10.6. AMENDMENTS, WAIVERS AND
  CONSENTS

  	
  82

  
	
  10.7. COUNTERPARTS

  	
  84

  
	
  10.8. HEADINGS

  	
  84

  
	
  10.9. SURVIVAL

  	
  84

  
	
  10.10. GOVERNING LAW;
  SUBMISSION TO JURISDICTION; VENUE

  	
  84

  
	
  10.11. SEVERABILITY

  	
  85

  
	
  10.12. ENTIRETY

  	
  85

  
	
  10.13. BINDING EFFECT;
  TERMINATION

  	
  85

  
	
  10.14. CONFIDENTIALITY

  	
  86

  
	
  10.15. SOURCE OF FUNDS

  	
  87

  
	
  10.16. REGULATION D

  	
  87

  
	
  10.17. CONFLICT

  	
  87

  
	
  10.18. USA PATRIOT ACT

  	
  87

  



 


SCHEDULES


 


	
  Schedule 2.1(a)

  	
   

  	
  Lenders

  
	
  Schedule 5.9

  	
   

  	
  Litigation

  
	
  Schedule 5.12

  	
   

  	
  ERISA

  
	
  Schedule 5.13A

  	
   

  	
  Corporate Structure

  
	
  Schedule 5.13B

  	
   

  	
  Subsidiaries

  
	
  Schedule 5.22

  	
   

  	
  Labor Matters

  
	
  Schedule 7.1

  	
   

  	
  Indebtedness

  
	
  Schedule 7.2

  	
   

  	
  Liens

  
	
  Schedule 7.6

  	
   

  	
  Investments

  
	
  Schedule 7.9

  	
   

  	
  Affiliate Transactions

  



 


EXHIBITS


 


	
  Exhibit 2.1(b)

  	
   

  	
  Form of Notice of Borrowing

  
	
  Exhibit 2.1(f)

  	
   

  	
  Form of Term Note

  
	
  Exhibit 3.2

  	
   

  	
  Form of Notice of Extension/Conversion

  
	
  Exhibit 4.1(e)

  	
   

  	
  Form of Solvency Certificate

  
	
  Exhibit 4.1(f)

  	
   

  	
  Form of Closing Certificate

  
	
  Exhibit 6.1(c)

  	
   

  	
  Form of Officer’s Compliance Certificate

  
	
  Exhibit 10.3(b)

  	
   

  	
  Form of Assignment and Acceptance

  



 


iii

















 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT, dated as of July 11, 2007 (the
“CREDIT AGREEMENT”), is by and among BE FOODS INVESTMENTS, INC., a Delaware
corporation (the “BORROWER”), the Lenders (as defined herein), UBS SECURITIES
LLC (“UBSS”), as Sole Lead Arranger (in such capacity, the “ARRANGER”) and Sole
Book Running Manager, and UBS AG, STAMFORD BRANCH, as Administrative Agent for
the Lenders (in such capacity, the “ADMINISTRATIVE AGENT” and, together with
the Arranger, the “AGENTS”).


 


W I T N E S S E T H


 


1.             The
Borrower intends to pay to its Equity Investors (as defined herein) a dividend
(the “DISTRIBUTION”) funded directly from the proceeds of the Term Loans (as
defined herein).


 


2.             In
order to finance the Distribution and to pay related fees, commissions and
expenses, the Borrower has requested that the Lenders, the Arranger and the
Administrative Agent enter into this Credit Agreement in order to make
available to the Borrower the credit facility described herein (the “CREDIT
FACILITY”) on the terms and conditions hereinafter set forth, consisting of a
$310,000,000 term loan facility to be issued at a 1% discount.


 


NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:


 


SECTION I




DEFINITIONS


 


1.1. DEFINITIONS.


 


As used in this Credit Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:


 


“ACQUIRED NON-CORE ASSET DISPOSITION” means an
Asset Disposition of Property acquired after the Closing Date in an
Acquisition, provided that (i) such Asset Disposition is consummated
within 540 days following the date of the related Acquisition and (ii) the
aggregate fair market value of the Property subject to such Asset Disposition
(or series of related Asset Dispositions) is less than 10% of the aggregate
cash purchase price of such Acquisition; provided, however, that
the term “Acquired Non-Core Asset Disposition” shall not include any Asset
Disposition which is an “Asset Sale” (or any comparable term) under, and as
defined in, any Junior Financing Documentation.


 


“ACQUISITION”, by any Person, means the acquisition
by such Person of at least a majority of the Capital Stock or all or
substantially all of the Property or a line of business or division of another
Person, whether or not such acquisition involves a merger or consolidation by
the acquiring Person with or into the acquired Person.


 

















 


“ADDITIONAL ASSETS” means (i) any property,
plant or equipment or other assets or capital expenditures used in the same or
substantially similar line of business to that conducted by the Consolidated
Parties on the Closing Date (or any reasonable expansion thereof or any
business reasonably ancillary or complementary thereto) or that replace the
assets that were the subject of the Asset Disposition; (ii) the Capital
Stock of a Person that becomes a Subsidiary of the Borrower as a result of the
acquisition of such Capital Stock by the Borrower or another of its
Subsidiaries; or (iii) Capital Stock constituting a minority interest in
any Person that at such time is a Subsidiary of the Borrower; provided, however,
that any such Subsidiary described in clause (ii) or (iii) above is
primarily engaged in the same or substantially similar line of business to that
conducted by the Consolidated Parties on the Closing Date (or any reasonable
expansion thereof or any business reasonably ancillary or complementary
thereto) or replaces the assets that were the subject of the Asset Disposition.


 


“ADJUSTED BASE RATE” means, with respect to Term
Loans which are Base Rate Loans, the Base Rate plus the Applicable
Percentage.


 


“ADJUSTED EURODOLLAR RATE” means, with respect to
Term Loans which are Eurodollar Loans, the Eurodollar Rate plus the
Applicable Percentage.


 


“ADMINISTRATIVE AGENT” shall have the meaning
assigned to such term in the heading hereof, together with any successors or
assigns.


 


“ADMINISTRATIVE AGENT’S FEE LETTER” means that
certain fee letter agreement, dated June 15, 2007, among UBS Loan Finance
LLC, UBSS and the Borrower, as amended, modified, restated or supplemented from
time to time.


 


“AFFILIATE” means, with respect to any Person, any
other Person (i) directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person or (ii) directly
or indirectly owning or holding ten percent (10%) or more of the Capital Stock
in such Person. For purposes of this definition, “control” when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


“AGENTS” has the meaning set forth in the preamble
to this Credit Agreement.


 


“APPLICABLE LENDING OFFICE” means, for each Lender,
the office of such Lender (or of an Affiliate of such Lender) as such Lender
may from time to time specify to the Administrative Agent and the Borrower by
written notice as the office by which its Eurodollar Loans are made and
maintained.


 


“APPLICABLE PERCENTAGE” means, for purposes of
calculating the applicable interest rate for any day for any Term Loan, in the
case of Eurodollar Loans and Base Rate Loans, the appropriate applicable
percentage corresponding to the period in which such day occurs, as set forth
below:


 


2

















 


	
   

  	
   

  	
  Period

  	
   

  	
  Base Rate Loans

  	
   

  	
  Eurodollar Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  July 11, 2007 –
  December 27, 2008

  	
   

  	
  3.50

  	
  %

  	
  4.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  December 28, 2008 –
  December 26, 2009

  	
   

  	
  4.00

  	
  %

  	
  5.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  December 27, 2009 and
  thereafter

  	
   

  	
  4.50

  	
  %

  	
  5.50

  	
  %

  



 


“APPLICATION PERIOD” means, in respect of the Net
Cash Proceeds of any Asset Disposition, the period of 365 days following the
consummation of such Asset Disposition.


 


“APPROVED FUND” means (a) with respect to any
Lender, a CLO managed or administered by such Lender or by an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which as its
primary business invests in bank loans and similar extensions of credit, any
other fund that as its primary business invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.


 


“ARRANGER” shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.


 


“ASSET DISPOSITION” means any disposition
(including pursuant to a Sale and Leaseback Transaction) by a Consolidated
Party of any or all of the Property (including without limitation the Capital
Stock of a Subsidiary) of any Consolidated Party whether by sale, lease,
licensing, transfer or otherwise, other than pursuant to any Involuntary
Disposition; provided, however, that the term “Asset Disposition”
(i) shall not be deemed to include any Equity Issuance and (ii) shall
be deemed to include any “Asset Sale” (or any comparable term) under, and as
defined in, any Junior Financing Documentation.


 


“ASSET DISPOSITION OFFER” means a notice delivered
to the Administrative Agent stating:


 


(i)           that an Asset Disposition requiring
an Asset Disposition Offer pursuant to Section 7.5 has occurred and that
each Lender has the right to require the Borrower to prepay such Lender’s Loans
pursuant to such Section;


 


(ii)          the circumstances and relevant facts
regarding such Asset Disposition;


 


(iii) the Asset Disposition prepayment date (which
shall be no earlier than 30 days nor later than 90 days from the date such
notice is delivered) (the “ASSET DISPOSITION PREPAYMENT DATE”);


 


(iv)        that Lenders electing not to have any
Loans prepaid pursuant to an Asset Disposition Offer will be required to notify
the Administrative Agent prior to the close of business on the third Business
Day preceding the Asset Disposition Prepayment Date; and


 


3

















 


(v)           that Lenders will be entitled to
withdraw their election to require the Borrower to prepay their Loans; provided
that the Administrative Agent receives, not later than the close of business on
the Business Day immediately preceding the last day of the offer period, a
notice setting forth the name of the Lender, the principal amount of Loans
tendered for prepayment, and a statement that such Lender is withdrawing its
election to have such Loans prepaid.


 


“ASSET DISPOSITION PREPAYMENT DATE” shall have the
meaning assigned to such term in the definition of Asset Disposition Offer.


 


“ASSIGNMENT AND ACCEPTANCE” means an assignment and
acceptance entered into by a Lender and an Eligible Assignee (with the consent
of each party whose consent is required by Section 10.3(b)), and accepted
by the Administrative Agent, in substantially the form of Exhibit 10.3(b),
or any other form approved by the Administrative Agent and consented to by the
Borrower (which such consent shall not be unreasonably withheld).


 


“AVERAGE TOTAL DEBT” means, as of any date of
determination with respect to the Consolidated Parties on a consolidated basis (i) the
sum of (a) the aggregate outstanding principal amount of all Funded
Indebtedness (other than revolving loans) outstanding on such day and (b) the
quotient of the sum of the aggregate outstanding principal amount of all
revolving loans outstanding on the last day of each of the 12 fiscal months
ending on or immediately prior to such day divided by 12 minus (ii) the
quotient of the sum of the aggregate cash and cash equivalents (which are free
of any Liens other than Liens permitted to be incurred by the OpCo Consolidated
Parties pursuant to Section 7.2) outstanding on the last day of each of
the 12 fiscal months ending on or immediately prior to such day divided by 12.


 


“BANKRUPTCY CODE” means the Bankruptcy Code in
Title 11 of the United States Code, as amended, modified, succeeded or replaced
from time to time.


 


“BANKRUPTCY EVENT” means, with respect to any
Person, the occurrence of any of the following: (i) the entry of a decree
or order for relief by a court or governmental agency having jurisdiction over
such Person in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or the appointment by a court
or governmental agency of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part
of its Property or the ordering of the winding up or liquidation of its affairs
by a court or governmental agency; or (ii) the commencement against such
Person of an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or of any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for
any substantial part of its Property or for the winding up or liquidation of
its affairs, and such involuntary case or other case, proceeding or other
action shall remain undismissed for a period of sixty (60) consecutive days; or
(iii) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an


 


4

















 


involuntary case under any such law, or consent to the
appointment of or the taking possession by a receiver, liquidator, assignee,
secured creditor, custodian, trustee, sequestrator (or similar official) of
such Person or for any substantial part of its Property or make any general
assignment for the benefit of creditors; or (iv) such Person shall be
unable to, or shall admit in writing its inability to, pay its debts generally
as they become due.


 


“BASE RATE” means, for any day, the rate per annum
equal to the higher of (a) the Federal Funds Rate for such day plus
one-half of one percent (0.5%) and (b) the Prime Rate for such day. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the Prime Rate
or Federal Funds Rate.


 


“BASE RATE LOAN” means any Loan bearing interest at
a rate determined by reference to the Base Rate.


 


“BORROWER” means the Person identified as such in
the heading hereof, together with any permitted successors and assigns.


 


“BORROWER OBLIGATIONS” means, without duplication, (i) all
of the obligations of the Borrower to the Lenders and the Administrative Agent,
whenever arising, under this Credit Agreement or any of the other Credit
Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to the Borrower, regardless of
whether such interest is an allowed claim under the Bankruptcy Code), (ii) all
liabilities and obligations, whenever arising, owing from the Borrower to any
Lender, or any Affiliate of a Lender, arising under any Hedging Agreement and  (iii) any obligation of the Borrower or
any of its Subsidiaries in respect of overdrafts and related liabilities owed
to any Lender (or any Affiliate of a Lender) that arise from treasury,
depositary or cash pooling or management services including in connection with
any automated clearing house transfers of funds or any similar transactions.


 


“BUSINESS DAY” means a day other than a Saturday,
Sunday or other day on which commercial banks in New York, New York are
authorized or required by law to close, EXCEPT THAT, when used in connection
with a Eurodollar Loan, such day shall also be a day on which dealings between
banks are carried on in Dollar deposits in London, England.


 


“BUSINESSES” means, at any time, a collective
reference to the businesses operated by the Consolidated Parties at such time.


 


“CAPITAL LEASE” means, as applied to any Person,
any lease of any Property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is required to be accounted for as a
capital lease on the balance sheet of that Person.


 


“CAPITAL STOCK” means (i) in the case of a
corporation, capital stock, (ii) in the case of an association or business
entity, any and all shares, interests, participations,


 


5

















 


rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) in the case of a limited liability
company, membership interests.


 


“CASH EQUIVALENTS” means, as at any date, (1) with
respect to any Consolidated Party, (a) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
(12) months from the date of acquisition, (b) Dollar denominated time
deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s
is at least P-1 or the equivalent thereof (any such bank being an “APPROVED
DOMESTIC BANK”), in each case with maturities of not more than twelve (12)
months from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Domestic Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1
(or the equivalent thereof) or better by Moody’s and maturing within twelve
(12) months of the date of acquisition, (d) repurchase agreements entered
into by any Person with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the portfolios
of which are limited such that 95% of such Investments are of the character
described in the foregoing subdivisions (a) through (d) and (2) solely
with respect to any Foreign Subsidiary, non-Dollar denominated (a) certificates
of deposit of, bankers acceptances of, or time deposits with, any commercial
bank which is organized and existing under the laws of the country in which
such Foreign Subsidiary maintains its chief executive office and principal
place of business provided such country is a member of the Organization for
Economic Cooperation and Development, and whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s
is at least P-1 or the equivalent thereof (any such bank being an “APPROVED FOREIGN
BANK”) and maturing within twelve (12) months of the date of acquisition and (b) equivalents
of demand deposit accounts which are maintained with an Approved Foreign Bank.


 


“CHANGE OF CONTROL” means any of the following
events: (a) prior to a Qualifying IPO, (1) the failure of the Sponsor
(A) to own beneficially, directly or indirectly, at least 51% of the
outstanding common Capital Stock (on a fully diluted basis) of the Borrower
held by the Sponsor as of the Closing Date and (B) to have the right,
directly or indirectly, by beneficial ownership, contract or otherwise, to
elect at least a majority in number of the members of the Borrower’s board of
directors or (2) less


 


6














 


than a majority in number of the sitting members of the
Borrower’s board of directors shall have been elected by the Sponsor, (b) after
a Qualifying IPO, (1) a person or any group, and any affiliate of any such
person other than the Sponsor shall beneficially own, directly or indirectly,
an amount of Capital Stock of the IPO Issuer with voting power greater than (i) the
voting power of the amount of Capital Stock owned by the Sponsor or (ii) 35%
of the total voting power of all Capital Stock of the IPO Issuer or (2) during
any period of up to 24 consecutive months, commencing after the Closing Date,
individuals who at the beginning of such 24 month period were directors of the
Borrower (or, after a Qualifying IPO, the IPO Issuer) (together with any new
director whose election by the Borrower’s (or the IPO Issuer’s, as applicable)
board of directors or whose nomination for election by the Borrower’s (or the
IPO Issuer’s, as applicable) shareholders was approved by the Sponsor or a vote
of at least a majority of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors of the Borrower (or the IPO Issuer, as applicable)
then in office or (c) if any Subordinated Debt or Qualified Preferred
Stock shall have been issued, the occurrence of a “Change of Control” (or any
comparable term) under, and as defined in, any Junior Financing Documentation.
As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act.


 


“CHANGE OF CONTROL OFFER” shall mean a notice
delivered to the Administrative Agent stating:


 


(i)           that a Change of Control requiring a
Change of Control Offer pursuant to Section 3.3(b)(ii) has occurred
and that each Lender has the right to require the Borrower to prepay such
Lender’s Loans pursuant to such Section;


 


(ii)          the circumstances and relevant facts
regarding such Change of Control (including information with respect to pro forma historical income, cash flow and
capitalization, in each case after giving effect to such Change of Control);


 


(iii)         the Change of Control prepayment date
(which shall be no earlier than 30 days nor later than 90 days from the date
such notice is delivered) (the “CHANGE OF CONTROL PREPAYMENT DATE”);


 


(iv)        that Lenders electing not to have any
Loans prepaid pursuant to a Change of Control Offer will be required to notify
the Administrative Agent prior to the close of business on the third Business
Day preceding the Change of Control Prepayment Date; and


 


(v)         that Lenders will be entitled to
withdraw their election to require the Borrower to prepay their Loans; provided
that the Administrative Agent receives, not later than the close of business on
the Business Day immediately preceding the last day of the offer period, a
notice setting forth the name of the Lender, the principal amount of Loans
tendered for prepayment, and a statement that such Lender is withdrawing its
election to have such Loans prepaid.


 


7

















 


“CHANGE OF CONTROL PREPAYMENT DATE” shall have the
meaning assigned to such term in the definition of Change of Control Offer.


 


“CLO” means any entity (whether a corporation,
partnership, trust or otherwise) that is engaged primarily in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by a Lender or an Affiliate of such Lender.


 


“CLOSING DATE” means the date hereof.


 


“CODE” means the Internal Revenue Code of 1986, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations issued thereunder, in each case as in effect from time to time.
References to sections of the Code shall be construed also to refer to any
successor sections.


 


“COLOMA LOGISTICS AGREEMENT” means that certain
Logistics Services Agreement dated as of April 1, 1998 by and between OpCo
and APL Logistics Warehouse Management Services, Inc. (formerly d/b/a GATX
Logistics, Inc.), as amended.


 


“COMMITMENT” means, with respect to each Lender,
the Term Loan Commitment of such Lender.


 


“CONSOLIDATED EBITDA” means, as of any date for the
applicable period ending on such date with respect to the Consolidated Parties
on a consolidated basis, the sum of (i) Consolidated Net Income, plus
(ii) an amount which, in the determination of Consolidated Net Income for
such period, has been deducted for, without duplication, (A) total
interest expense, (B) income, franchise and similar taxes and any tax
distributions permitted to be made pursuant to Section 7.7(c), (C) depreciation
and amortization expense, including any non-cash goodwill impairment charges
and other intangibles, (D) letter of credit fees, (E) non-cash
expenses resulting from any employee benefit or management compensation plan or
the grant or ownership of equity and equity options to employees of the Parent,
the Borrower or any of their respective Subsidiaries pursuant to a written plan
or agreement or the treatment of such equity or options under variable plan
accounting, (F) all extraordinary charges, (G) non-cash amortization
of financing costs of the Borrower and its Subsidiaries, (H) 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), (I) any losses realized upon the disposition
of Property outside of the ordinary course of business, (J) to the extent
actually reimbursed, expenses incurred to the extent covered by indemnification
provisions in any agreement in connection with the Transaction and any
Acquisition, (K) to the extent covered by insurance, expenses with respect
to liability or casualty events, business interruption or product recalls, (L) management
fees, (M) any non-cash purchase accounting adjustments (and their related
non-cash future effect) and any step-ups or write-downs with respect to
re-valuing assets and liabilities in connection with the Transaction (as
defined in the Credit Agreement, dated as of August 19, 2002, and as
amended, supplemented or otherwise modified prior to March 22, 2007, between


 


8

















 


OpCo, Birds Eye Holdings, Inc., JPMorgan Chase Bank,
N.A. and the lenders party thereto) or any Permitted Investment, (N) other
non-cash expenses (excluding any non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period), (O) non-cash
losses from Joint Ventures and non-cash minority interest reductions, (P) fees
and expenses in connection with the issuance, exchange or refinancing of any
Subordinated Notes, Senior Unsecured Debt, Incremental Term Loans, Revolving
Commitment Increases or the GLK Note (as each of these terms is defined in the
OpCo Credit Agreement), (Q) non-cash, non-recurring charges, (R) other
non-recurring cash charges during any four consecutive fiscal quarter period in
an aggregate amount not to exceed $10,000,000, (S) expenses representing
the implied principal component under Synthetic Leases, (T) any expenses,
charges or losses realized upon the termination of the Coloma Logistics
Agreement, not to exceed $15,000,000 in the aggregate, (U) expenses,
charges and losses associated with the Discontinued Operations and the
transition therefrom, not to exceed $18,000,000 in the aggregate, (V) the
Pro-Fac Payment and (W) professional fees associated with the sale of the
non-branded frozen vegetable business and the development of new strategy,
minus (iii) an amount which, in the determination of Consolidated Net
Income, has been included for (A) all extraordinary gains and non-cash income
during such period and (B) any gains realized upon the disposition of
Property outside of the ordinary course of business plus/minus
(iv) unrealized losses/gains and any mark-to-market adjustments in respect
of Hedging Agreements. Notwithstanding the foregoing, (i) Consolidated
EBITDA for the fourth fiscal quarter of OpCo’s 2006 fiscal year shall be deemed
to be $24,046,000, (ii) Consolidated EBITDA for the first fiscal quarter
of OpCo’s 2007 fiscal year shall be deemed to be $20,021,000 and (iii) Consolidated
EBITDA for the second fiscal quarter of OpCo’s 2007 fiscal year shall be deemed
to be $47,549,000. Except as otherwise stated, as used in this definition,
“TRANSACTION” shall mean (i) the Transaction contemplated pursuant to this
Credit Agreement and (ii) the transactions consummated pursuant to the
OpCo Credit Agreement.


 


“CONSOLIDATED NET INCOME” means, as of any date for
the applicable period ending on such date with respect to the Consolidated
Parties on a consolidated basis, net income (excluding, without duplication, (i) extraordinary
items and (ii) any amounts attributable to Investments in any Joint
Venture to the extent that such amounts have not been distributed in cash to
the Consolidated Parties during the applicable period, as determined in
accordance with GAAP).


 


“CONSOLIDATED NET LEVERAGE RATIO” means, as of the
end of any fiscal quarter of the Consolidated Parties for the four fiscal
quarter period ending on such date with respect to the Consolidated Parties on
a consolidated basis, the ratio of (a) Average Total Debt on the last day
of such period to (b) Consolidated EBITDA for such period, in each case
calculated on a Pro Forma Basis.


 


“CONSOLIDATED PARTIES” means a collective reference
to the Borrower and its Subsidiaries, and “CONSOLIDATED PARTY” means any one of
them.


 


9

















 


“CONSOLIDATED TOTAL ASSETS” means, as of any date
with respect to the Consolidated Parties on a consolidated basis, total assets,
as determined in accordance with GAAP.


 


“CONTINUE”, “CONTINUATION” and “CONTINUED” shall
refer to the continuation pursuant to Section 3.2 hereof of a Eurodollar
Loan from one Interest Period to the next Interest Period.


 


“CONVERT”, “CONVERSION” and “CONVERTED” shall refer
to a conversion pursuant to Section 3.2 or Sections 3.7 through 3.12,
inclusive, of a Base Rate Loan into a Eurodollar Loan.


 


“CREDIT AGREEMENT” shall have the meaning assigned
to such term in the heading hereof.


 


“CREDIT DOCUMENTS” means a collective reference to
this Credit Agreement, the Notes and the Administrative Agent’s Fee Letter (in
each case as the same may be amended, modified, restated, supplemented,
extended, renewed or replaced from time to time), and “CREDIT DOCUMENT” means
any one of them.


 


“CREDIT FACILITY” shall have the meaning assigned
to such term in the recitals hereto.


 


“DEBT ISSUANCE” means the issuance by any
Consolidated Party of any Indebtedness for borrowed money.


 


“DEFAULT” means any event, act or condition which
with notice or lapse of time, or both, would constitute an Event of Default.


 


“DEFAULTING LENDER” means, at any time, any Lender
that (a) has failed to make a Loan or purchase a Participation Interest
required pursuant to the terms of this Credit Agreement within one Business Day
of when due, (b) other than as set forth in (a) above, has failed to
pay to the Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Credit Agreement within one Business Day of when
due, unless such amount is subject to a good faith dispute or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency proceeding
or with respect to which (or with respect to any of the assets of which) a
receiver, trustee or similar official has been appointed.


 


“DESIGNATED NONCASH CONSIDERATION” means the fair
market value of noncash consideration received by a Consolidated Party in
connection with an Asset Disposition that is so designated as Designated
Noncash Consideration pursuant to an officers’ certificate setting forth the
basis of such valuation, less the amount of cash or Cash Equivalents received
in connection with a subsequent sale of such Designated Noncash Consideration.


 


“DISCONTINUED OPERATIONS” means the non-branded
frozen vegetable business.


 


10

















 


“DISTRIBUTION” has the meaning set forth in the
recitals to this Credit Agreement.


 


“DOLLARS” and “$” means dollars in lawful currency
of the United States.


 


“DOMESTIC SUBSIDIARY” means any direct or indirect
Subsidiary of the Borrower that was formed under the laws of the United States
or any state thereof or the District of Columbia.


 


“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; and (iii) 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, however, that the Borrower and its Affiliates
(including the Equity Investors) shall not qualify as an Eligible Assignee and
in no event shall a competitor, customer or supplier of any Consolidated Party
or Affiliate thereof be an Eligible Assignee.


 


“ELIGIBLE REINVESTMENT” means any acquisition
(whether or not constituting a capital expenditure or an Acquisition) by a
Consolidated Party of Additional Assets.


 


“ENVIRONMENTAL LAWS” means any and all lawful and
applicable Federal, state, local and foreign statutes, laws (including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (“CERCLA”), the Resource Conservation and Recovery Act of
1976, the Toxic Substances Control Act, the Water Pollution Control Act, the
Clean Air Act and the Hazardous Materials Transportation Act), regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.


 


“EQUITY INVESTORS” means a collective reference to (i) the
Sponsor together with certain of its affiliates, (ii) Pro-Fac and (iii) any
Person who beneficially owns, directly or indirectly, any equity in the
Borrower as of the Closing Date, and “EQUITY INVESTOR” means any one of them.


 


“EQUITY ISSUANCE” means any issuance for cash by
any Consolidated Party to any Person of (a) shares of its Capital Stock, (b) any
shares of its Capital Stock


 


11

















 


pursuant to the exercise of options or warrants, (c) any
shares of its Capital Stock pursuant to the conversion of any debt securities
to equity or (d) any options or warrants relating to its Capital Stock. An
“Asset Disposition” shall not be deemed to be an Equity Issuance.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute thereto, as
interpreted by the rules and regulations thereunder, all as the same may
be in effect from time to time. References to sections of ERISA shall be
construed also to refer to any successor sections.


 


“ERISA AFFILIATE” means an entity which is under
common control with any Consolidated Party within the meaning of Section 4001(a)(14)
of ERISA, or is a member of a group which includes any Consolidated Party and
which is treated as a single employer under Sections 414(b) or (c) of
the Code.


 


“ERISA EVENT” means (i) with respect to any
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Consolidated Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan; (iii) the distribution of a
notice of intent to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2) or
4041A of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v) any
event or condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Plan; (vi) the complete or partial withdrawal
of any Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (vii) the
conditions for imposition of a lien under Section 302(f) of ERISA
exist with respect to any Plan; or (viii) the adoption of an amendment to
any Plan requiring the provision of security to such Plan pursuant to Section 307
of ERISA.


 


“EURODOLLAR LOAN” means any Loan that bears
interest at a rate based upon the Eurodollar Rate.


 


“EURODOLLAR RATE” means,
for any Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the quotient obtained by dividing (a) the
Interbank Offered Rate for such Eurodollar Loan for such Interest Period by (b)
1 minus the Eurodollar Reserve Requirement for such Eurodollar Loan for such
Interest Period.


 


“EURODOLLAR RESERVE REQUIREMENT” means, at any
time, the maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against “Eurocurrency liabilities” (as such term is used in
Regulation D). Without limiting the effect of the


 


12

















 


foregoing, the Eurodollar Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by
reference to which the Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar
Loans. The Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Requirement.


 


“EVENT OF DEFAULT” shall have the meaning assigned
to such term in Section 8.1.


 


“EXCESS PROCEEDS” shall have the meaning assigned
to such term in Section 7.5 (c).


 


“EXCLUDED ASSET DISPOSITION” means, with respect to
any Consolidated Party, any Asset Disposition consisting of (i) the sale,
lease, license, transfer or other disposition of inventory or other assets in
the ordinary course of such Consolidated Party’s business, (ii) the sale,
lease, license, transfer or other disposition of Property no longer used or
useful in the conduct of such Consolidated Party’s business, (iii) any
Involuntary Disposition by such Consolidated Party, (iv) any sale, lease,
license, transfer or other disposition of Property by such Consolidated Party
to any other Consolidated Party, (v) any portion of an Asset Disposition
by such Consolidated Party constituting a Permitted Investment or Restricted
Payment, (vi) the sale or disposition of Cash Equivalents for fair market
value, (vii) any sale of accounts receivable in connection with the
compromise thereof, (viii) the assignment of past due accounts for
collection, (ix) the licensing of Intellectual Property to third Persons
on customary terms as determined by the licensor’s board of directors in good
faith, (x) any Acquired Non-Core Asset Disposition, (xi) Discontinued
Operations or (xii) a disposition with a fair market value of less than
$1,000,000; provided, however, that the term “Excluded Asset
Disposition” shall not include any Asset Disposition to the extent of the
portion of the proceeds of such Asset Disposition that would be required under
any Junior Financing Documentation to be applied to permanently retire
Indebtedness of the Borrower.


 


“EXECUTIVE OFFICER” of any Person means any of the
chief executive officer, chief operating officer, president, chief financial
officer, treasurer or assistant treasurer of such Person, or any other Person
designated as an “Executive Officer” by the chief executive officer, chief
operating officer, president or chief financial officer.


 


“FEDERAL FUNDS RATE” means, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to


 


13

















 


the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative Agent.


 


“FEES” means all fees payable pursuant to Section 3.5.


 


“FFDCA” means the Federal Food, Drug, and Cosmetic
Act, as amended, 21 U.S.C. Section 301, et seq., and its implementing
regulations.


 


“FOOD SECURITY ACT” means the Food Security Act of
1985, as amended, and any successor statute thereto, including all rules and
regulations thereunder, all as the same may be in effect from time to time.


 


“FOREIGN SUBSIDIARY” means any direct or indirect
Subsidiary of the Borrower which is not a Domestic Subsidiary.


 


“FULLY SATISFIED” means, with respect to the
Borrower Obligations as of any date, that, as of such date, (a) all
principal of and interest accrued to such date which constitute the Borrower
Obligations shall have been paid in full in cash, (b) all fees, expenses
and other amounts then due and payable which constitute the Borrower
Obligations shall have been paid in cash and (c) the Commitments shall
have been expired or terminated in full.


 


“FUNDED INDEBTEDNESS” means, with respect to any
Person, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person under conditional sale
or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (c) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than accrued expenses and
trade debt incurred in the ordinary course of business) which would appear as
liabilities on a balance sheet of such Person and to the extent constituting
contingent obligations, (d) all Funded Indebtedness of others secured by
(or for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (e) the implied
principal component of all obligations of such Person under Capital Leases,
(f) the amount of unreimbursed drawings and funded outstandings under
letters of credit issued or bankers’ acceptances facilities created for the
account of such Person, (g) unless the holder thereof is a Consolidated
Party, all preferred Capital Stock issued by such Person and which by the terms
thereof could be (at the request of the holders thereof or otherwise) subject
to mandatory sinking fund payments, redemption or other acceleration (other
than as a result of a change of control or an Asset Disposition that does not
in fact result in a redemption of such preferred Capital Stock) at any time
prior to the Maturity Date, (h) the principal portion of all obligations
of such Person under Synthetic Leases and (i) the Funded Indebtedness of
any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer to the extent such Funded Indebtedness is
recourse to such Person (it being agreed that such Funded Indebtedness


 


14

















 


shall be deemed not to be recourse to such Person for
purposes of this definition if the only recourse of the holder of such Funded
Indebtedness to such Person is a pledge of the equity interests in such
partnership or joint venture owned by such Person and a related limited
guarantee recourse solely to such equity interests). Notwithstanding any other
provision of this Credit Agreement to the contrary, (i) the term “Funded
Indebtedness” shall not be deemed to include (w) any obligations of any
Consolidated Party referred to in Section 7.9(j), (x) any earn-out
obligation until such obligation becomes a liability on the balance sheet of
the applicable Person, (y) any deferred compensation arrangements or (z) any
non-compete or consulting obligations incurred in connection with Acquisitions,
(ii) the amount of Funded Indebtedness for which recourse is limited
either to a specified amount or to an identified asset of such Person shall be
deemed to be equal to such specified amount (or, if less, the fair market value
of such identified asset) and (iii) the amount of any Subordinated Debt
shall be calculated without regard to any purchase accounting adjustments.


 


“GAAP” means generally accepted accounting
principles in the United States applied on a consistent basis and subject to
the terms of Section 1.3 (except, in respect of (i) Joint Ventures of
the type described in clause (ii) of the definition thereof set forth in
this Section 1.1 and (ii) Synthetic Leases, as otherwise treated
herein).


 


“GLK” means Great Lakes Kraut Company, LLC, and its
successors.


 


“GLK NOTE” means the restated Subordinated
Promissory Note of OpCo dated as of May 17, 2007 and due December 31,
2018, originally payable to Dean Foods Company in the principal amount of
$38,777,036.88, as further amended, modified, supplemented, restated or
refinanced from time to time.


 


“GOVERNMENTAL AUTHORITY” means any Federal, state,
local or foreign court or governmental agency, authority, instrumentality or
regulatory body.


 


“GUARANTY OBLIGATIONS” means, with respect to any
Person, without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) guaranteeing or intended to guarantee any Indebtedness
of any other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security therefor, (ii) to
advance or provide funds or other support for the payment or purchase of any
such Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase Property, securities or services
primarily for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is made (or, if
less, the


 


15

















 


maximum amount of such principal amount for which such
Person may be liable under the terms of the instrument(s) evidencing such
Guaranty Obligation).


 


“HEDGING AGREEMENTS” means any interest rate
protection agreement, commodities purchase agreement or foreign currency
exchange agreement, including any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Consolidated Parties shall be a Hedging Agreement.


 


“INDEBTEDNESS” means, with respect to any Person,
without duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the
deferred purchase price of Property or services purchased by such Person (other
than accrued expenses and trade debt incurred in the ordinary course of
business) which would appear as liabilities on a balance sheet of such Person, (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (f) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person, (g) the implied principal component of all
obligations of such Person under Capital Leases, (h) all net obligations
of such Person (or, if less, the exposure of such Person) under Hedging
Agreements, (i) the maximum amount of all standby letters of credit issued
or bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
(j) unless the holder thereof is a Consolidated Party, all preferred
Capital Stock issued by such Person and which by the terms thereof could be (at
the request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration (other than as a result of a
change of control or an Asset Disposition that does not in fact result in a
redemption of such preferred Capital Stock) at any time prior to the Maturity
Date, (k) the principal portion of all obligations of such Person under
Synthetic Leases and (l) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer to the extent such Indebtedness is recourse to such Person (it
being agreed that such Indebtedness shall be deemed not to be recourse to such
Person for purposes of this definition if the only recourse of the holder of
such Indebtedness to such Person is a pledge of the equity interests in such
partnership or joint venture owned by such Person and a related limited
guarantee recourse solely to such equity interests). Notwithstanding any other
provision of this Credit Agreement to the contrary, (i) the term
“Indebtedness” shall not be deemed


 


16














 


to include any earn-out obligation until such obligation becomes a
liability on the balance sheet of the applicable Person, (ii) the amount
of Indebtedness for which recourse is limited either to a specified amount or
to an identified asset of such Person shall be deemed to be equal to such
specified amount (or, if less, the fair market value of such identified asset),
(iii) any obligations of any Consolidated Party referred to in
Section 7.9(i) and (iv) the amount of any Subordinated Debt
shall be calculated without regard to any purchase accounting adjustments.


 


“INDEMNIFIED PARTY” shall have the meaning
assigned to such term in Section 10.5(a).


 


“INTELLECTUAL PROPERTY” shall have the
meaning assigned to such term in Section 5.17.


 


“INTERBANK OFFERED RATE” means, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Page 3750
(or any successor page) of the Telerate Screen as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term “Interbank Offered Rate” shall mean, for any Eurodollar
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%). If the rates referenced in
the preceding two sentences are not available, the term “Interbank Offered
Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor, the
rate per annum determined by the Administrative Agent as the rate of interest
(rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits
in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Loan being made, continued or
converted by the Administrative Agent and with a term equivalent to such
Interest Period would be offered by the Administrative Agent’s London Branch to
major banks in the offshore Dollar market at their request at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period.


 


“INTEREST PAYMENT DATE” means (a) as to
Base Rate Loans, the last Business Day of each March, June, September and
December and the Maturity Date, and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period and the Maturity Date, and in
addition where the applicable Interest Period for a Eurodollar Loan is greater
than three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.


 


“INTEREST PERIOD” means, as to Eurodollar
Loans, a period of one, two, three or six (or, to the extent available to all
applicable Lenders, nine or twelve) months’


 


17

















 


duration, as the Borrower may elect, commencing, in each case, on the
date of the borrowing (including continuations and conversions thereof); provided,
however, (a) if any Interest Period would end on a day which is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Maturity Date and
(c) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last Business Day of
such calendar month.


 


“INVESTMENT” in any Person means (a) the
acquisition (whether for cash, property, services, assumption of Indebtedness,
securities or otherwise) of Property (other than in the ordinary course of
business), Capital Stock, bonds, notes, debentures, partnership, joint ventures
or other ownership interests or other securities of such other Person,
(b) any deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with leases or the purchase
of equipment, inventory and other assets in the ordinary course of business) or
(c) any other capital contribution to or investment in such Person,
including, without limitation, any Guaranty Obligations (including any support
for a letter of credit issued on behalf of such Person) incurred for the
benefit of such Person and any portion of an Asset Disposition (other than an
Excluded Asset Disposition) to such Person for consideration less than the fair
market value of the Property disposed in such transaction, but excluding any
Restricted Payment to such Person. Investments which are capital contributions
or purchases of Capital Stock which have a right to participate in the profits
of the issuer thereof shall be valued at the amount actually contributed or
paid to purchase such Capital Stock as of the date of such contribution or
payment less all cash distributions and returns of capital from the date such
Investment is made through and including the date of calculation. Investments
which are loans, advances, extensions of credit or Guaranty Obligations shall
be valued at the principal amount of such loan, advance or extension of credit
outstanding as of the date of determination or, as applicable, the principal
amount of the loan or advance outstanding as of the date of determination
actually guaranteed by such Guaranty Obligation.


 


“INVOLUNTARY DISPOSITION” means any loss or
casualty of, damage to or destruction of, or any condemnation or other taking
for public use of, any Property of any Consolidated Party.


 


“IPO ISSUER” means, in respect of a
Qualifying IPO, the Person (as among the Borrower or any parent company of the
Borrower which owns 100% of the Capital Stock of the Borrower (other than the
Sponsor and its related funds) and subject to the definition of the term
“Change of Control” set forth in this Section 1.1) that is the issuer of
the common Capital Stock offered in such Qualifying IPO.


 


“JOINT VENTURE” means (i) any Person
which would constitute an “equity method investee” under GAAP of a Consolidated
Party and (ii) any other Person designated by the Borrower in writing to
the Administrative Agent (which designation shall be irrevocable) as a “Joint
Venture” for purposes of this Credit Agreement and more


 


18

















 


than 50% but less than 100% of whose Capital Stock is directly owned by
any Consolidated Party; provided, however,  that
(a) no Person which is a Subsidiary of the Borrower as of the Closing Date
may be designated by the Consolidated Parties as a Joint Venture and
(b) GLK shall be deemed to be a Joint Venture until the Borrower
designates in writing to the Administrative Agent (which designation shall be
irrevocable) that GLK shall be a Subsidiary for purposes hereunder.


 


“JUNIOR FINANCING DOCUMENTATION” means any
documentation governing any (i) Subordinated Debt or (ii) Qualified
Preferred Stock.


 


“LENDER” means any of the Persons identified
as a “Lender” on the signature pages hereto, and any Person which may become
a Lender by way of assignment in accordance with the terms hereof, together
with their successors and permitted assigns.


 


“LENDING PARTY” shall have the meaning
assigned to such term in Section 10.14.


 


“LIEN” means any mortgage, pledge,
hypothecation, collateral assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference, priority or charge of
any kind (including any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any financing or similar statement or
notice filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and any
lease in the nature thereof).


 


“LOAN” or “LOANS” means the Term Loans (or a
portion of any Term Loan bearing interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar
Loan), individually or collectively, as appropriate.


 


“MANAGEMENT AGREEMENT” means that certain
Management Agreement, as in effect on the date hereof, among Agrilink
Foods, Inc., Agrilink Holdings Inc. and Vestar Capital Partners.


 


“MATERIAL ADVERSE EFFECT” means a material
adverse effect on (i) the financial condition, operations, business,
assets or liabilities of the Consolidated Parties taken as a whole,
(ii) the ability of the Borrower to perform any material obligation under
the Credit Documents or (iii) the material rights and remedies of the
Administrative Agent and the Lenders under the Credit Documents. The Lenders
agree that the discontinuation and transition from the non-branded frozen
vegetable business will not constitute a Material Adverse Effect.


 


“MATERIAL DOMESTIC SUBSIDIARY” means, at any
time, (a) any Domestic Subsidiary (i) which is directly owned by the
Borrower or any Subsidiary and (ii) with respect to which either
(A) its annual revenues exceed $1,000,000 for the most recently ended
twelve-month period or (B) its total assets, as determined in accordance
with GAAP, at such time is greater than $1,000,000 and (b) any Domestic
Subsidiary which has incurred Indebtedness in excess of $100,000; provided
that (i) the aggregate annual revenues of all non-Material Domestic
Subsidiaries shall not exceed $5,000,000 for the


 


19

















 


most recently ended twelve-month period, (ii) the aggregate total
assets of all non-Material Domestic Subsidiaries, as determined in accordance
with GAAP, shall not exceed $5,000,000 at any one time and (iii) Seasonal
Employers, Inc. shall be deemed not to be a Material Domestic Subsidiary
so long as it is engaged solely in the same type of business as it is engaged
as of the date hereof.


 


“MATERIALS OF ENVIRONMENTAL CONCERN” means
any gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.


 


“MATURITY DATE” means July 11, 2012.


 


“MOODY’S” means Moody’s Investors
Service, Inc., or any successor or assignee of the business of such
company in the business of rating securities.


 


“MULTIEMPLOYER PLAN” means a Plan which is a
“multiemployer plan” as defined in Sections 3(37) or 4001(a)(3) of ERISA.


 


“MULTIPLE EMPLOYER PLAN” means a Plan (other
than a Multiemployer Plan) with respect to which any Consolidated Party or any
ERISA Affiliate and at least one employer other than the Consolidated Parties
or any ERISA Affiliate are contributing sponsors.


 


“NET CASH PROCEEDS” means the aggregate cash
or Cash Equivalents proceeds received by any Consolidated Party in respect of
any Change of Control Offer, Qualifying IPO Offer or Asset Disposition, net of
(a) direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions), (b) taxes paid or payable
as a result thereof, (c) in the case of any Asset Disposition,
(i) the amount necessary to retire any Indebtedness secured by a Permitted
Lien on the related Property, (ii) any reserve for adjustment in respect
of (A) the sale price of such asset or assets established in accordance
with GAAP and (B) any liabilities associated with such asset or assets and
retained by the Consolidated Parties after such sale or other disposition
thereof, including, without limitation, pension and other post-employment
benefit liabilities and liabilities related to environmental matters or against
any indemnification obligations associated with such transaction and
(iii) reorganization, shut-down and severance costs incurred during the
Application Period for such Asset Disposition; it being understood that “Net
Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents
received upon (i) the sale or other disposition of any non-cash
consideration received by any such Consolidated Party in any Asset Disposition
or (ii) the reversal (without the satisfaction of expenses in cash in a
corresponding amount) of any reserve described in clause (ii) of the
preceding sentence. In addition, the “Net Cash Proceeds” of any Asset
Disposition shall include any other amounts which constitute “Net Proceeds” (or
any comparable term) of such transaction under, and as defined in, any Junior
Financing Documentation.


 


20

















 


“NOTE” or “NOTES” means the Term Notes,
individually or collectively, as appropriate.


 


“NOTICE OF BORROWING” means a written notice
of borrowing signed by an Executive Officer of the Borrower in substantially
the form of Exhibit 2.1(b), as required by Section 2.1(b).


 


“NOTICE OF EXTENSION/CONVERSION” means the
written notice of extension or conversion in substantially the form of Exhibit 3.2,
as required by Section 3.2.


 


“OPCO” means Birds Eye Foods, Inc., a
Delaware corporation, or any successor thereto.


 


“OPCO CONSOLIDATED PARTIES” means a
collective reference to OpCo and its Subsidiaries, and “OPCO CREDIT PARTY”
means any one of them.


 


“OPCO CREDIT AGREEMENT” means that certain
Amended and Restated Credit Agreement, as in effect on the date hereof (except
as otherwise stated herein), among OpCo, as borrower, Birds Eye
Holdings, Inc., as parent, the subsidiary guarantors party thereto, the
lenders party thereto, Bank of America, N.A. and UBSS, as co-syndication
agents, Cooperatieve Centrale Raiffeisen Boerenleenbank B.A., “Rabobank
Nederland”, New York branch and M&T Bank Corporation, as co-documentation
agents, J.P. Morgan Securities Inc., as sole lead arranger and sole bookrunner
and JPMorgan Chase Bank, N.A., as administrative agent for the lenders.


 


“OPCO CREDIT AGREEMENT DOCUMENTS” means a
collective reference to the OpCo Credit Agreement, any letters of credit and
notes issued pursuant thereto, the OpCo Security Documents and each agreement,
certificate, instrument, letter or other document related thereto (including in
each case each exhibit, schedule, annex or attachment to any of the foregoing),
in each case as in effect on the date hereof (except as otherwise stated
herein).


 


“OPCO CREDIT FACILITY” means, one or more
debt facilities (including, without limitation, the OpCo Credit Agreement) or
commercial paper facilities, in each case, with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
or letters of credit, in each case, as amended, restated, modified, renewed,
refunded, replaced (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time, and in all cases providing
for up to an aggregate principal amount of $514,200,000 of Indebtedness
thereunder.


 


“OPCO CREDIT PARTIES” means a collective
reference to OpCo, Birds Eye Holdings, Inc., Linden Oaks Corporation,
Kennedy Endeavors, Incorporated, Bemsa Holding, Inc., and “OPCO CREDIT
PARTY” means any one of them.


 


“OPCO SECURITY DOCUMENTS” means a collective
reference to the Collateral Agreement, the Mortgage Instruments (each term as
defined in the OpCo


 


21

















 


Credit Agreement) and any other agreement or instrument executed by any
OpCo Consolidated Party from time to time purporting to grant a Lien on any
property described therein in order to secure payment of all or any portion of
the obligations of any OpCo Credit Party under the OpCo Credit Agreement.


 


“OTHER TAXES” shall have the meaning assigned
to such term in Section 3.11(b).


 


“PACA” means the Perishable Agricultural Commodities
Act as amended, 7 U.S.C. Section 499a, et seq. and its implementing
regulations.


 


“PARENT” means Birds Eye Holdings LLC, a
Delaware limited liability company, or any successor holder of 100% of the
Capital Stock of the Borrower.


 


“PARTICIPANT” shall have the meaning assigned
to such term in Section 10.3(c).


 


“PARTICIPATION INTEREST” means a purchase by
a Lender of a participation in any Loans or other extensions of credit as
provided in Section 3.14.


 


“PBGC” means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any successor
thereof.


 


“PERISHABLE AGRICULTURAL COMMODITIES” shall
have the meaning assigned to such term by PACA.


 


“PERMITTED ASSET DISPOSITION” means, at any
time, (i) any Asset Disposition permitted at such time by Section 7.5
and (ii) any Excluded Asset Disposition.


 


“PERMITTED INVESTMENTS” means, at any time,
Investments by the Consolidated Parties permitted to exist at such time
pursuant to the terms of Section 7.6.


 


“PERMITTED LIENS” means, at any time, Liens
in respect of Property of the Consolidated Parties permitted to exist at such
time pursuant to the terms of Section 7.2.


 


“PERMITTED REFINANCING INDEBTEDNESS” means any Indebtedness of a
Consolidated Party issued in exchange for, or the net proceeds of which are
used to renew, refund, refinance, replace, defease or discharge, other
Indebtedness of a Consolidated Party (other than intercompany Indebtedness); provided
that:


 


(i)            the principal
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness renewed, refunded, refinanced, replaced,
defeased or discharged (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums, incurred in connection
therewith);


 


22

















 


(ii)           such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged;


 


(iii)          if the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged is
subordinated in right of payment to Loans, such Permitted Refinancing
Indebtedness has a final maturity date later than the Maturity Date, and is
subordinated in right of payment to, the Loans on terms at least as favorable
to the Lenders as those contained in the documentation governing the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged;


 


(iv)          any Qualified
Preferred Stock constituting Permitted Refinancing Indebtedness shall have
terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged; and


 


(v)           such Indebtedness is
incurred either by Borrower or by the Consolidated Party who is the obligor on
the Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged.


 


“PERSON” means any individual, partnership,
joint venture, firm, corporation, limited liability company, association, trust
or other enterprise (whether or not incorporated) or any Governmental
Authority.


 


“PIK INTEREST” shall have the meaning
assigned to such term in Section 2.1(e).


 


“PLAN” means any employee benefit plan (as
defined in Section 3(3) of ERISA) which is subject to Title IV of
ERISA and with respect to which any Consolidated Party or any ERISA Affiliate
is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an “employer” within the meaning of
Section 3(5) of ERISA.


 


“PRIME RATE” means the per annum rate of
interest established from time to time by the Administrative Agent as its prime
rate, which rate may not be the lowest rate of interest charged by the
Administrative Agent to its customers.


 


“PRO-FAC” means Pro-Fac Cooperative, Inc.,
a New York agricultural cooperative corporation.


 


“PRO-FAC PAYMENT” shall have the meaning
assigned to such term in Section 7.9.


 


“PRO FORMA BASIS” means, for purposes of
calculating (utilizing the principles set forth in the second paragraph of Section 1.3)
the Consolidated Net Leverage Ratio in respect of a transaction, that such
transaction shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal quarter end preceding
the date of such transaction. In connection with any


 


23

















 


calculation of the Consolidated Net Leverage Ratio upon giving effect
to a transaction on a Pro Forma Basis, (A) any Indebtedness incurred by
any Consolidated Party other than Indebtedness incurred on the date of
calculation pursuant to Section 7.1(b) in connection with such
transaction (1) shall be deemed to have been incurred as of the first day
of the applicable period and (2) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at the relevant date of
determination, (B) if applicable, income statement items (whether positive
or negative) attributable to the Person or Property acquired shall be included
beginning as of the first day of the applicable period, (C) any
Indebtedness which is retired in connection with such transaction shall be
excluded and deemed to have been retired as of the first day of the applicable
period and (D) if an acquisition, pro forma adjustments may be included to
the extent that such adjustments are consistent with the definition of “Consolidated
EBITDA” set forth in this Section 1.1 and give effect to events that are
(1) directly attributable to such transaction, (2) expected to have a
continuing impact on the Consolidated Parties and (3) factually
supportable.


 


“PROPERTY” means any interest in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible.


 


“PURCHASE RELATED AGREEMENTS” means,
collectively, the Management Services Agreement, the Securityholders Agreement,
the Amended and Restated Marketing and Facilitation Agreement and the
Termination Agreement, as defined in the Unit Purchase Agreement and as in
effect on the date hereof, as the same may be amended, modified, restated or
supplemented from time to time in accordance with the terms hereof.


 


“QUALIFIED PREFERRED STOCK” means any
preferred Capital Stock issued by the Borrower which constitutes Indebtedness
under clause (j) of the definition thereof and permits (and does not
restrict payment of) the Credit Facility.


 


“QUALIFYING IPO” means an Equity Issuance by
the IPO Issuer (subject to the definition of the term “Change of Control” set
forth in Section 1.1) consisting of an underwritten primary public
offering (other than a public offering pursuant to a registration statement on
Form S-8) of its common Capital Stock (i) pursuant to an effective
registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act (whether alone or in connection with a
secondary public offering) and (ii) resulting in gross proceeds to the IPO
Issuer of at least $50,000,000.


 


“QUALIFYING IPO OFFER” means a notice
delivered to the Administrative Agent stating:


 


(i)           that a Qualifying IPO requiring a Qualifying IPO Offer
pursuant to Section 3.3(b)(i) has occurred and that each Lender has
the right to require the Borrower to prepay such Lender’s Loans pursuant to
such Section;


 


24

















 


(ii)          the circumstances and relevant facts regarding such
Qualifying IPO (including information with respect to pro forma historical income, cash flow and
capitalization, in each case after giving effect to such Qualifying IPO);


 


(iii)         the Qualifying IPO prepayment date (which shall be no
earlier than 30 days nor later than 90 days from the date such notice is delivered)
(the “QUALIFYING IPO PREPAYMENT DATE”);


 


(iv)        that Lenders electing not to have any Loans prepaid pursuant
to a Qualifying IPO Offer will be required to notify the Administrative Agent
prior to the close of business on the third Business Day preceding the
Qualifying IPO Prepayment Date; and 


 


(v)         that Lenders will be entitled to withdraw their election to
require the Borrower to prepay their Loans; provided that the Administrative
Agent receives, not later than the close of business on the Business Day
immediately preceding the last day of the offer period, a notice setting forth
the name of the Lender, the principal amount of Loans tendered for prepayment,
and a statement that such Lender is withdrawing its election to have such Loans
prepaid.


 


“QUALIFYING IPO PREPAYMENT DATE” shall have
the meaning assigned to such term in the definition of Qualifying IPO Offer.


 


“REAL PROPERTIES” means, at any time, a
collective reference to each of the real properties owned, leased or operated
by the Consolidated Parties at such time.


 


“REGISTER” shall have the meaning assigned to
such term in Section 10.3(b)(iv).


 


“REGULATION D, U, OR X” means Regulation D, U
or X, respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.


 


“REPORTABLE EVENT” means any of the events
set forth in Section 4043(c) of ERISA, other than those events as to
which the notice requirement has been waived by regulation.


 


“REQUIRED LENDERS” means, at any time,
Lenders (other than Defaulting Lenders) holding in the aggregate at least a
majority of the outstanding Term Loans (including, without limitation,
Participation Interests).


 


“REQUIREMENT OF LAW” means, as to any Person,
the certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its material property is subject.


 


25

















 


“RESTRICTED PAYMENT” means (i) any
dividend or other payment or distribution, direct or indirect, on account of
any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding (including without limitation any payment in connection
with any dissolution, merger, consolidation or disposition involving any
Consolidated Party), or to the holders, in their capacity as such, of any shares
of any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding (other than dividends or distributions (including distributions in
connection with any restructure, merger, consolidation or disposition) payable
(A) in Capital Stock of the applicable Person or (B) except in the
case of the Borrower, ratably to minority shareholders of the applicable
Person), (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any
class of Capital Stock of any Consolidated Party, now or hereafter outstanding,
other than, in the case of clauses (ii) and (iii) of this definition,
any such payments made on a pro rata basis to the holders of such Capital
Stock, and (iv) any payment or prepayment of principal of, premium, if
any, or interest on, including any redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any Subordinated
Debt or Qualified Preferred Stock. The cancellation of Indebtedness shall not
be deemed to constitute a “Restricted Payment”.


 


“S&P” means Standard & Poor’s
Ratings Group, a division of The McGraw Hill Companies, Inc., or any
successor or assignee of the business of such division in the business of
rating securities.


 


“SALE AND LEASEBACK TRANSACTION” means any
direct or indirect arrangement with any Person or to which any such Person is a
party, providing for the leasing to any Consolidated Party of any Property,
whether owned by such Consolidated Party as of the Closing Date or later acquired,
which has been or is to be sold or transferred by such Consolidated Party to
such Person or to any other Person from whom funds have been, or are to be,
advanced by such Person on the security of such Property.


 


“SECURITIES ACT” means the Securities Act of
1933, as amended, and all regulations issued pursuant thereto.


 


“SECURITIES EXCHANGE ACT” means the
Securities Exchange Act of 1934, as amended, and all regulations issued
pursuant thereto.


 


“SINGLE EMPLOYER PLAN” means any Plan which
is covered by Title IV of ERISA, but which is not a Multiemployer Plan or a
Multiple Employer Plan.


 


“SOLVENT” or “SOLVENCY” means, with respect
to any Person as of a particular date, that on such date (i) such Person
is able to pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business,
(ii) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability generally to pay its
debts and liabilities as they mature in their ordinary course, (iii) such
Person is not engaged in a


 


26














 


business or a transaction, and is not about to
engage in a business or a transaction, for which such Person’s Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (iv) the fair value of the Property of such Person on a going
concern basis is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person and (v) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will
be computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“SPONSOR” means Vestar
Capital Partners IV, L.P. and its Affiliates.


 


“SUBORDINATED DEBT” means
any Indebtedness of the Borrower which (a) is subordinated to the Borrower Obligations identified in
clauses (i) and (ii) thereof on terms no less favorable to the
Lenders than the subordination provisions contained in customary documentation
governing high yield indebtedness and permits (and does not restrict payment
of) the Credit Facility, and (b) requires no payment in respect of
principal (other than pursuant to requirements to offer to purchase based on a
change of control or receipt of asset sale proceeds in accordance with then
customary high yield provisions) prior to the date which is six months after
the Maturity Date.


 


“SUBSIDIARY” means, as to
any Person at any time, (a) any corporation more than 50% of whose Capital
Stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at such time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture or other
entity of which such Person directly or indirectly through Subsidiaries owns at
such time more than 50% of the Capital Stock; provided, however,
that, notwithstanding any other provision to the contrary contained in this
Credit Agreement, a Joint Venture shall not constitute a Subsidiary.


 


“SYNDICATION PERIOD”
means the period beginning on the Closing Date through the earlier of (a) the
date 30 days following the Closing Date and (b) the completion by the
Administrative Agent of syndication (as determined by the Administrative Agent
and notified in writing to the Borrower) of the Credit Facility.


 


“SYNTHETIC LEASE” means
any synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease under GAAP.


 


“TAXES” shall have the
meaning assigned to such term in Section 3.11(a).


 


27

















 


“TERM LOAN” shall have
the meaning assigned to such term in Section 2.1(a).


 


“TERM LOAN COMMITMENT”
means, with respect to each Lender, the commitment of such Lender to make its
portion of the Term Loan in a principal amount equal to such Lender’s Term Loan
Percentage (if any) of the Term Loan Committed Amount.


 


“TERM LOAN COMMITTED
AMOUNT” shall have the meaning assigned to such term in Section 2.1(a).


 


“TERM LOAN PERCENTAGE”
means, for any Lender, the percentage identified as its Term Loan Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 10.3.


 


“TERM NOTE” shall have
the meaning assigned to such term in Section 2.1(f).


 


“TEST PERIOD” means, at
any time, the four consecutive fiscal quarters of the Borrower then last ended
(in each case taken as one accounting period) for which financial statements
have been or are required to be delivered pursuant to Section 6.01(a) or
(b) or, prior to the delivery of the financial statements related to the
fiscal quarter ended on or about March 24, 2007, are otherwise made
available to the Administrative Agent (which shall be in form and substance
reasonably satisfactory to the Administrative Agent).


 


“TRANSACTION” means,
collectively, the transactions contemplated by this Credit Agreement, including
the extension of the Term Loans hereunder, the payment of the Distribution and
the payment of all fees and expenses related thereto.


 


“UNAUDITED FINANCIAL
STATEMENTS” shall have the meaning assigned to such term in Section 5.1(a).


 


“UNIT PURCHASE AGREEMENT”
means the Unit Purchase Agreement, dated as of June 20, 2002, by and among
the Parent, OpCo and Pro-Fac, including the exhibits and schedules thereto, as
amended, modified, restated or supplemented and in effect from time to time.


 


“WEIGHTED AVERAGE LIFE TO MATURITY” means, when
applied to any Indebtedness at any date, the number of years obtained by
dividing:


 


(i)            the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
of the Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by


 


(ii)           the then outstanding principal amount of such Indebtedness.


 


28

















 


1.2. COMPUTATION OF TIME PERIODS.


 


For purposes of computation of periods of time
hereunder, the word “from” means “from and including” and the words “to” and
“until” each mean “to but excluding.”


 


1.3. ACCOUNTING TERMS.


 


Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall be prepared, in accordance with GAAP applied on
a consistent basis except as otherwise expressly provided herein; provided,
however, that calculations of the implied principal component of all
obligations under any Synthetic Lease or the implied interest component of any
rent paid under any Synthetic Lease shall be made by the Consolidated Parties
in accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
(except for changes which are immaterial and not adverse to the Lenders) with
the most recent annual or quarterly financial statements delivered pursuant to Section 6.1
(or, prior to the delivery of the first financial statements pursuant to Section 6.1,
consistent with OpCo’s consolidated financial statements as at June 24,
2006), but, in any event, unless otherwise expressly provided herein, after
elimination for minority interests; provided, however, if (a) the
Borrower shall object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in GAAP or the rules promulgated
with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lenders as to which no such objection shall have been made and the
parties shall negotiate in good faith to revise the applicable covenants to
reflect such changes in GAAP in a manner consistent with the Credit Agreement; provided further,
however, that nothing contained in this Section 1.3 shall be deemed
to restrict the ability of the Borrower to make purchase accounting adjustments
with respect to any Acquisition during the four-quarter period immediately
succeeding the consummation of such transaction.


 


Notwithstanding the above or the terms of any
definition in Section 1.1, the parties hereto acknowledge and agree that,
for purposes of all calculations made under with respect to the Consolidated
Net Leverage Ratio (including without limitation for purposes of the
definitions of “Applicable Percentage” and “Pro Forma Basis” set forth in Section 1.1),
(i) after consummation of any Asset Disposition or any Investment (or
series of related Investments) made pursuant to Section 7.6(o) to the
extent consisting of the contribution(s) or other transfer(s) of
Property (other than cash) to a Joint Venture for consideration less than the
fair market value of such Property, (A) income statement items (whether
positive or negative) and capital expenditures attributable to the Property
disposed of or contributed or otherwise transferred, as applicable, shall be
excluded to the extent relating to any period occurring prior to the date of
such transaction and (B) Indebtedness which is retired shall be excluded
and deemed to have been retired as of the first day of the applicable period
and (ii) after consummation of any Acquisition, (A) income statement
items (whether positive or negative) attributable to the Person


 


29

















 


or Property acquired shall, to the extent not otherwise
included in such income statement items for the Consolidated Parties in
accordance with GAAP or in accordance with any defined terms set forth in Section 1.1,
be included to the extent relating to any period applicable in such
calculations, (B) to the extent not retired in connection with such
Acquisition, Indebtedness of the Person or Property acquired shall be deemed to
have been incurred as of the first day of the applicable period and
Indebtedness which is retired shall be excluded and deemed to have been retired
as of the first day of the applicable period and (C) pro forma adjustments
may be included to the extent that such adjustments are consistent with the
definition of “Consolidated EBITDA” set forth in Section 1.1 and give
effect to events that are (x) directly attributable to such transaction, (y) expected
to have a continuing impact on the Consolidated Parties and (z) factually
supportable.


 


SECTION II


 


TERM LOAN FACILITY


 


2.1. TERM LOANS.


 


(a) TERM COMMITMENT. Subject to the terms and
conditions hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the Borrower on
the Closing Date such Lender’s Term Loan Percentage of a term loan in Dollars
(the “TERM LOAN”) in the aggregate principal amount of THREE HUNDRED TEN MILLION
DOLLARS ($310,000,000) (the “TERM LOAN COMMITTED AMOUNT”), 99.00% of which
($306,900,000) shall be disbursed to the Borrower on the Closing Date as a Base
Rate Loan. Thereafter, the Term Loan may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request; provided,
however, that no more than 15 Eurodollar Loans shall be outstanding
hereunder at any time (it being understood that, for purposes hereof,
Eurodollar Loans with different Interest Periods shall be considered as
separate Eurodollar Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
Eurodollar Loan with a single Interest Period). Amounts repaid or prepaid on
the Term Loan may not be reborrowed.


 


(b) BORROWING PROCEDURES. The Borrower shall
submit an appropriate Notice of Borrowing for the Term Loan to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
Closing Date. Such Notice of Borrowing shall be irrevocable and shall specify (i) that
the funding of the Term Loan is requested and (ii) that the funding of the
Term Loan shall be comprised of Base Rate Loans. Each Lender shall make its
Term Loan Percentage of the Term Loan available to the Administrative Agent for
the account of the Borrower at the office of the Administrative Agent specified
in Schedule 2.1(a), or at such other office as the Administrative Agent
may designate in writing, by 1:00 P.M. (New York City time) on the Closing Date
in Dollars and in funds immediately available to the Administrative Agent.


 


(c) MINIMUM AMOUNTS. Each Eurodollar Loan or
Base Rate Loan that is part of the Term Loan shall be in an aggregate principal
amount that is, before the calculation of the 1% original discount to be
subtracted from the aggregate principal amount of the Term Loan to


 


30

















 


be funded, not less than $2,000,000 and integral multiples
of $100,000 (or the then remaining principal balance of the Term Loan).


 


(d) REPAYMENT OF TERM LOAN. The Borrower
hereby promises to pay the outstanding principal amount of the Term Loan on the
Maturity Date.


 


(e) INTEREST. Subject to the provisions of Section 3.1,
the outstanding Term Loan shall bear interest at a per annum rate equal to:


 


(i)            BASE RATE LOANS. During such periods
as the Term Loan shall be comprised in whole or in part of Base Rate Loans,
such Base Rate Loans shall bear interest at a per annum rate equal to the
Adjusted Base Rate.


 


(ii)           EURODOLLAR LOANS. During such periods
as the Term Loan shall be comprised in whole or in part of Eurodollar Loans,
such Eurodollar Loans shall bear interest at a per annum rate equal to the
Adjusted Eurodollar Rate.


 


(iii)          PIK INTEREST. At the option of the
Borrower, the Borrower may, upon not less than five Business Days’ written
notice to the Administrative Agent prior to the commencement of any Interest
Period, pay interest for such Interest Period (i) in kind or (ii) half
in cash and half as PIK Interest. Interest paid in kind (“PIK INTEREST”) shall
be calculated at a rate 0.75% higher than the rates otherwise specified in this
Section 2.1(e) for such Interest Period and shall be capitalized, compounded
and added to the unpaid principal amount of the Loans on the applicable
Interest Payment Date. Amounts representing the PIK Interest shall be treated
as Loans for purposes of this Credit Agreement. The obligation of the Borrower
to pay all such PIK Interest so added shall be automatically evidenced by any
Notes issued to the Lenders (without modification or reissuance thereof).


 


The Borrower hereby promises to pay interest on the Term
Loan in arrears on each applicable Interest Payment Date (or at such other
times as may be specified herein).


 


(f) TERM NOTES. The Borrower hereby agrees
that, upon the request to the Administrative Agent by any Lender from time to
time, the Borrower will execute and deliver to such Lender a promissory note
evidencing the Term Loan of such Lender, substantially in the form of Exhibit 2.1(f),
with appropriate insertions as to date and principal amount (a “TERM NOTE”).


 


SECTION III


 


OTHER PROVISIONS RELATING
TO THE CREDIT FACILITY


 


3.1. DEFAULT RATE.


 


Upon the occurrence, and during the continuance, of
a default in the payment of any amount hereunder or under any of the other
Credit Documents, such overdue amount shall bear interest, payable on demand,
at a per annum rate 2% greater than the rate which would


 


31

















 


otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then the Adjusted Base
Rate plus 2%).


 


3.2. EXTENSION AND CONVERSION.


 


The Borrower shall have the option, on any Business
Day, to extend existing Loans into a subsequent permissible Interest Period or
to convert Loans into Loans of another interest rate type; provided, however,
that (i) except as provided in Section 3.8, Eurodollar Loans may be
converted into Base Rate Loans or extended as Eurodollar Loans for new Interest
Periods only on the last day of the Interest Period applicable thereto unless
the Borrower makes payment of any amounts then due and owing pursuant to Section 3.12,
(ii) Loans extended as, or converted into, Eurodollar Loans shall be
subject to the terms of the definition of “INTEREST PERIOD” set forth in Section 1.1
and shall be in such minimum amounts as provided in Section 2.1(c), (iii) no
more than 15 Eurodollar Loans shall be outstanding hereunder at any time (it
being understood that, for purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period) and (iv) any request for extension or conversion of a Eurodollar
Loan which shall fail to specify an Interest Period shall be deemed to be a
request for an Interest Period of one month. Each such extension or conversion
shall be effected by the Borrower by giving a Notice of Extension/Conversion
(or telephonic notice promptly confirmed in writing) to the office of the
Administrative Agent specified in Schedule 2.1(a), or at such other
office as the Administrative Agent may designate in writing, prior to 11:00
A.M. (New York City time) on the Business Day of, in the case of the conversion
of a Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior
to, in the case of the extension of a Eurodollar Loan as, or conversion of a
Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. In the event the Borrower fails to request extension or
conversion of any Eurodollar Loan in accordance with this Section 3.2, or
any such conversion or extension is not permitted or required by this Section 3.2,
then such Eurodollar Loan shall be automatically converted into a Base Rate Loan
at the end of the Interest Period applicable thereto. The Administrative Agent
shall give each Lender notice as promptly as practicable of any such proposed
extension or conversion affecting any Loan.


 


3.3. PREPAYMENTS.


 


(a) VOLUNTARY PREPAYMENTS. The Borrower shall
have the right to prepay Loans in whole or in part from time to time upon
providing at least three (3) Business Days’ notice to the Administrative
Agent (which notice may be waived by the Administrative Agent) at the
prepayment prices set forth below (expressed as a percentage of the principal
amount of Loans to be prepaid (including any PIK Interest previously added to
such principal)); provided, however, that each partial prepayment
of Loans shall be in a minimum principal amount of $2,000,000 and integral
multiples of $100,000 in excess thereof (or the then remaining principal
balance of the Term Loan, if less). Subject to the foregoing terms, amounts
prepaid under this Section 3.3(a) shall be applied first to Base Rate
Loans and then to Eurodollar


 


32

















 


Loans in direct order of Interest Period maturities. All
prepayments under this Section 3.3(a) shall be subject to Section 3.12,
but otherwise without premium or penalty, and, in the case of Eurodollar Loans,
shall be accompanied by interest on the principal amount prepaid through the
date of prepayment.


 


	
   

  	
  Period

  	
   

  	
  Prepayment
  Price

  	
   

  	
   

  	
   

  
	
   

  	
  On or before July 11,
  2008

  	
   

  	
  102

  	
  %

  	
   

  	
   

  
	
   

  	
  July 12, 2008, through
  July 11, 2009

  	
   

  	
  101

  	
  %

  	
   

  	
   

  
	
   

  	
  July 12, 2009, and
  thereafter

  	
   

  	
  100

  	
  %

  	
   

  	
   

  



 


(b) MANDATORY PREPAYMENTS


 


(i)            QUALIFYING IPO. The Borrower will,
within five days of the occurrence of a Qualifying IPO, make a Qualifying IPO
Offer to all Lenders to prepay all Loans with the Net Cash Proceeds from such
Qualifying IPO. The offer price in any Qualifying IPO Offer will be equal to
the greater of (A) 100% of the principal amount of the Loans (including
any PIK Interest previously added to such principal) and (B) the then
applicable prepayment price as set forth in Section 3.3(a), plus,
in each case, accrued and unpaid interest (to the extent not previously added
to principal on the Loans), if any, on the principal amount prepaid to the date
of prepayment, and fees outstanding and payable on the date of prepayment, if
any, and will be payable in cash. If any such Net Cash Proceeds remain after
the consummation of such Qualifying IPO Offer, the Borrower may use such
remaining Net Cash Proceeds for any purpose not otherwise prohibited by this
Agreement. If the aggregate principal amount of the Loans tendered into such
Qualifying IPO Offer exceeds the amount of Net Cash Proceeds received from such
Qualifying IPO, the Loans shall be repaid on a pro rata basis.


 


(ii)           CHANGE OF CONTROL. The Borrower will,
within five days of the occurrence of a Change of Control, make a Change of
Control Offer to all Lenders to prepay all Loans. The offer price in any Change
of Control Offer will be equal to the greater of (A) 101% of the principal
amount of the Loans (including any PIK Interest previously added to such
principal) and (B) the then applicable prepayment price as set forth in Section 3.3(a),
plus, in each case, accrued and unpaid interest (to the extent not previously
added to principal on the Loans), if any, on the principal amount prepaid to
the date of prepayment, and fees outstanding and payable on the date of
prepayment, if any, and will be payable in cash. If any Net Cash Proceeds
remain after the consummation of such Change of Control Offer, the Borrower may
use such remaining Net Cash Proceeds for any purpose not otherwise prohibited
by this Agreement.


 


(iii)          APPLICATION OF MANDATORY PREPAYMENTS.
Mandatory prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities. All prepayments
under this Section 3.3(b) shall be subject to Section 3.12, but
otherwise without premium or penalty, and shall, in the case of Eurodollar
Loans, be accompanied by interest on the principal amount prepaid through the
date of prepayment.


 


33

















 


(iv)          PREPAYMENT ACCOUNT. If the Borrower is
required to make a mandatory prepayment of Eurodollar Loans under this Section 3.3(b),
the Borrower shall have the right, in lieu of making such prepayment in full,
to deposit an amount equal to such mandatory prepayment with the Administrative
Agent in a cash collateral account maintained (pursuant to documentation
reasonably satisfactory to the Administrative Agent) by and in the sole
dominion and control of the Administrative Agent. Any amounts so deposited
shall be held by the Administrative Agent as collateral for the prepayment of
such Eurodollar Loans and shall be applied to the prepayment of the applicable
Eurodollar Loans at the end of the current Interest Periods applicable thereto
or, subject to the terms of Section 3.12, as earlier requested in writing
by the Borrower. At the request of the Borrower, amounts so deposited shall be
invested by the Administrative Agent in Cash Equivalents maturing prior to the
date or dates on which it is anticipated that such amounts will be applied to
prepay such Eurodollar Loans; any interest earned on such Cash Equivalents will
be for the account of the Borrower and the Borrower will deposit with the
Administrative Agent the amount of any loss on any such Cash Equivalents to the
extent necessary in order that the amount of the prepayment to be made with the
deposited amounts may not be reduced.


 


(v)           NOTICE OF MANDATORY PREPAYMENTS. The
Borrower agrees to use reasonable efforts to provide the Administrative Agent
advance notice of any mandatory prepayments of the Loans required to be made
pursuant to this Section 3.3(b).


 


3.4.          TERMINATION
OF TERM LOAN COMMITMENTS.


 


The Term Loan Commitment of each Lender, if any,
shall automatically terminate at such time as such Lender shall have made
available to the Borrower such Lender’s share of the Term Loan.


 


3.5.          FEES.


 


The Borrower hereby promises to pay to the
Administrative Agent, for its own account and for the account of UBSS, as applicable,
the fees referred to in the Administrative Agent’s Fee Letter.


 


3.6.          CAPITAL
ADEQUACY.


 


(a) If any Lender has determined, after the
date hereof, that the adoption or the becoming effective of, or any change in,
or any change by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof in the interpretation
or administration of, any applicable law, rule or regulation regarding
capital adequacy, or compliance by such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender’s capital or assets as a consequence
of its commitments or obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender’s policies with respect to
capital adequacy)


 


34

















 


by an amount deemed by such Lender to be material, then,
upon notice from such Lender through the Administrative Agent to the Borrower
setting forth in reasonable detail the charge and the calculation of such reduced
rate of return to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction to the extent that such Lender reasonably determines that such
additional amount is allocable to the existence of such Lender’s commitments or
obligations hereunder. Each determination by any such Lender of amounts owing
under this Section shall, absent demonstrable error, be conclusive and
binding on the parties hereto.


 


(b) The Borrower shall not be required to
compensate a Lender pursuant to this Section 3.6 for any additional
amounts incurred more than 180 days prior to the date that such Lender notifies
the Borrower of the change of law giving rise to such additional amounts and of
such Lender’s intention to claim compensation therefor; provided that,
if the change of law giving rise to such additional amounts is retroactive,
then such 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.


 


3.7.          LIMITATION
ON EURODOLLAR LOANS. If on or prior to the first day of any Interest Period for
any Eurodollar Loan:


 


(a) the Administrative Agent determines (which
determination shall be conclusive) that by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or


 


(b) the Required Lenders determine (which
determination shall be conclusive) and notify the Administrative Agent that the
Eurodollar Rate will not adequately and fairly reflect the cost to the Lenders
of funding Eurodollar Loans for such Interest Period;


 


then the Administrative Agent shall give the Borrower
prompt notice thereof, and so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans and the
Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Eurodollar Loans or
Convert such Eurodollar Loans into Base Rate Loans in accordance with the terms
of this Credit Agreement. The Administrative Agent or the Required Lenders, as
the case may be, will withdraw such determination pursuant to this Section promptly
as circumstances allow.


 


3.8.          ILLEGALITY.


 


Notwithstanding any other provision of this Credit
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender’s obligation to make or Continue Eurodollar Loans and to Convert Base
Rate Loans into Eurodollar Loans shall be suspended until such time as such Lender
may again make, maintain, and fund Eurodollar Loans (in which case the
provisions of Section 3.10 shall be applicable). Each Lender will
designate a different Applicable Lending Office if such designation will permit
such Lender to continue to make, maintain, or fund Eurodollar Loans


 


35

















 


hereunder and will not, in the judgment of such Lender, be
otherwise materially disadvantageous to it.


 


3.9.          REQUIREMENTS
OF LAW.


 


(a) If, after the date hereof, the adoption of
any applicable law, rule, or regulation, or any change in any applicable law,
rule, or regulation, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such Governmental Authority,
central bank, or comparable agency:


 


(i)            shall subject such Lender (or its
Applicable Lending Office) to any tax, duty, or other charge with respect to
any Eurodollar Loans or its obligation to make Eurodollar Loans, or change the
basis of taxation of any amounts payable to such Lender (or its Applicable
Lending Office) under this Credit Agreement in respect of any Eurodollar Loans
(other than Taxes and taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);


 


(ii)          shall impose, modify, or deem
applicable any reserve, special deposit, assessment, or similar requirement
(other than the Eurodollar Reserve Requirement utilized in the determination of
the Adjusted Eurodollar Rate) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Commitment of such
Lender hereunder; or


 


(iii)         shall impose on such Lender (or its
Applicable Lending Office) or the London interbank market any other condition
affecting this Credit Agreement or any of such extensions of credit or
liabilities or commitments;


 


and the result of any of the foregoing is to increase, by
an amount deemed by such Lender (or its Applicable Lending Office) to be
material, the cost to such Lender (or its Applicable Lending Office) of making,
Converting into, Continuing, or maintaining any Eurodollar Loans or to reduce
any sum received or receivable by such Lender (or its Applicable Lending
Office) under this Credit Agreement with respect to any Eurodollar Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any Lender
requests compensation by the Borrower under this Section 3.9, the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent),
suspend the obligation of such Lender to make or Continue Eurodollar Loans, or
to Convert Base Rate Loans into Eurodollar Loans, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.10 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested. Each Lender shall promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 3.9 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation


 


36














 


and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to it. Any Lender claiming compensation under this Section 3.9
shall furnish to the Borrower and the Administrative Agent a statement setting
forth in reasonable detail the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of demonstrable error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.


 


(b) The Borrower shall not be required to compensate
a Lender pursuant to this Section 3.9 for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the change of law giving rise to such increased costs
or reductions and of such Lender’s intention to claim compensation therefor; provided
that, if the change of law giving rise to such increased costs or reductions is
retroactive, then such 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


3.10.        TREATMENT
OF AFFECTED LOANS.


 


If the obligation of any Lender to make any Eurodollar
Loan or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall
be suspended pursuant to Section 3.7, 3.8 or 3.9 hereof, such Lender’s
Eurodollar Loans shall be automatically Converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for such
Eurodollar Loans (or, in the case of a Conversion required by Section 3.8,
on such earlier date as required by law as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in Section 3.7,
3.8 or 3.9 hereof that gave rise to such Conversion no longer exist:


 


(a) to the extent that such Lender’s
Eurodollar Loans have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender’s Eurodollar Loans
shall be applied instead to its Base Rate Loans; and


 


(b) all Loans that would otherwise be made or
Continued by such Lender as Eurodollar Loans shall be made or Continued instead
as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into Eurodollar Loans shall remain as Base Rate Loans.


 


If such Lender gives notice to the Borrower (with a copy
to the Administrative Agent) that the circumstances specified in Section 3.7,
3.8 or 3.9 hereof that gave rise to the Conversion of such Lender’s Eurodollar
Loans pursuant to this Section 3.10 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Loans made by other Lenders are outstanding, such Lender’s Base Rate
Loans shall be automatically Converted, on the first day(s) of the next
succeeding Interest Period(s) for such outstanding Eurodollar Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Eurodollar Loans and by such Lender are held pro rata (as
to principal amounts, interest rate basis, and Interest Periods) in accordance
with their respective Commitments.


 


37

















 


3.11.        TAXES.


 


(a) Except as otherwise provided herein, any
and all payments by the Borrower to or for the account of any Lender or the
Administrative Agent hereunder or under any other Credit Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of each Lender and the
Administrative Agent, taxes imposed on it as a result of a present or former
connection between the Administrative Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced this
Credit Agreement or any other Credit Document) (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as “TAXES”). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable under this Credit
Agreement or any other Credit Document to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions of Taxes (including deductions applicable to
additional sums payable under this Section 3.11) such Lender or the
Administrative Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law, and (iv) the Borrower shall furnish to the Administrative Agent, at
its address referred to in Section 10.1, the original or a certified copy
of a receipt evidencing payment thereof. Notwithstanding the foregoing, no
additional sums shall be payable pursuant to this Section 3.11(a) with
respect to Taxes (A) that are attributable to such Lender’s failure to
comply with Section 3.11(d), or (B) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Credit Agreement or (C) unless imposed as a
result of a change in treaty, law or regulation.


 


(b) In addition, the Borrower agrees to pay
any and all present or future stamp or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from any payment
made under this Credit Agreement or any other Credit Document or from the
execution or delivery of, or otherwise with respect to, this Credit Agreement
or any other Credit Document (hereinafter referred to as “OTHER TAXES”).


 


(c) The Borrower agrees to indemnify each Lender
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 3.11) paid by such
Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with respect
thereto.


 


(d) Each Lender that is not a United States
person under Section 7701(a)(30) of the Code, on or prior to the date of
its execution and delivery of this Credit Agreement in the case of each Lender
listed on the signature pages hereof and on or prior to the date on which
it becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal


 


38

















 


Revenue Service Form W-8 BEN or W-8 ECI, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces to zero the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Credit Agreement is effectively connected with the
conduct of a trade or business in the United States and/or (ii) any other
form or certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Code), certifying that
such Lender is entitled to an exemption from tax on payments pursuant to this
Credit Agreement or any of the other Credit Documents. In addition, each Lender
shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Lender. Each Lender shall promptly notify the
Borrower at any time it determines that it is no longer in a position to
provide any previously delivered form to the Borrower (or any other form
adopted by the United States taxing authorities for such purposes).
Notwithstanding any other provision of this paragraph, a Lender shall not be
required to deliver any form pursuant to this paragraph that such Lender is not
legally able to deliver.


 


(e) For any period with respect to which a
Lender has failed to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to Section 3.11(d) (unless such failure is
due to a change in treaty, law, or regulation occurring subsequent to the date
on which a form originally was required to be provided), such Lender shall not
be entitled to indemnification under Section 3.11(a) or 3.11(b) with
respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.


 


(f) If the Borrower is required to pay
additional amounts to or for the account of any Lender pursuant to this Section 3.11,
then such Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the judgment
of such Lender, is not otherwise materially disadvantageous to such Lender.


 


(g) Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 3.11 shall survive the repayment of
the Loans and other obligations under the Credit Documents and the termination
of the Term Commitments hereunder.


 


(h) If the Administrative Agent or any Lender
receives a refund with respect to Taxes paid by the Borrower, which in the good
faith judgment of such Lender is allocable to such payment, the Administrative
Agent or Lender, respectively shall promptly pay such refund, together with any
other amounts paid by the Borrower in connection with such refunded Taxes, to
the Borrower, net of all out-of-pocket expenses of such Lender incurred in
obtaining such refund, provided, however, that the Borrower
agrees to promptly return such refund to the Administrative Agent or the
applicable Lender, as the case may be, if it receives notice from the
Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund. This section shall not be construed to
require any Lender or the


 


39

















 


Administrative Agent to make available its tax returns (or
any other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.


 


3.12.        COMPENSATION.


 


Upon the request of any Lender, the Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(excluding loss of anticipated profits) incurred by it as a result of:


 


(a) any payment, prepayment, or Conversion of
a Eurodollar Loan for any reason (other than in connection with any assignment
by any Lender pursuant to Section 10.3(b), but including acceleration of
the Loans pursuant to Section 8.2) on a date other than the last day of
the Interest Period for such Loan; or


 


(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any condition precedent
specified in Section 4 to be satisfied) to borrow, Convert, Continue, or
prepay a Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant Notice of Borrowing,
prepayment, Continuation, or Conversion under this Credit Agreement.


 


With respect to Eurodollar Loans, such indemnification may
include an amount equal to the excess, if any, of (a) the amount of
interest (other than the Applicable Percentage) which would have accrued on the
amount so prepaid, or not so borrowed, Converted or Continued, for the period
from the date of such prepayment or of such failure to borrow, Convert or
Continue to the last day of the applicable Interest Period (or, in the case of
a failure to borrow, Convert or Continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein (excluding, however, the
Applicable Percentage included therein, if any) over (b) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. Any Lender
claiming compensation under this Section 3.12 shall furnish to the
Borrower and the Administrative Agent a statement setting forth in reasonable
detail the calculation of the amounts to be paid to it hereunder. The covenants
of the Borrower set forth in this Section 3.12 shall survive the repayment
of the Loans and other obligations under the Credit Documents and the
termination of the Commitments hereunder; provided, however, the
Borrower shall not be required to compensate a Lender pursuant to this Section 3.12
for any such loss, cost or expense incurred more than 180 days prior to the
date that such Lender notifies the Borrower of the incurrence of such loss,
cost or expense.


 


3.13.        PRO RATA
TREATMENT.


 


Except to the extent otherwise provided herein:


 


(a) LOANS. Each Loan, each payment or (subject to the
terms of Section 3.3) prepayment of principal of any Loan, each payment of
interest on the Loans and each Conversion or extension of any Loan shall be
allocated pro rata among the Lenders in


 


40

















 


accordance with the respective principal amounts of their
outstanding Loans and Participation Interests in Loans of the applicable type.


 


(b) ADVANCES. No Lender shall be responsible for the
failure or delay by any other Lender in its obligation to make its ratable
share of a borrowing hereunder; provided, however, that the
failure of any Lender to fulfill its obligations hereunder shall not relieve
any other Lender of its obligations hereunder. Unless the Administrative Agent
shall have been notified by any Lender prior to the date of any requested
borrowing that such Lender does not intend to make available to the
Administrative Agent its ratable share of such borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of such borrowing, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be able
to recover such corresponding amount from such Lender. If such Lender does not
pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent will promptly notify the Borrower, and the
Borrower shall promptly pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (i) from the
Borrower at the applicable rate for the applicable borrowing pursuant to the
Notice of Borrowing and (ii) from a Lender at the Federal Funds Rate.


 


3.14.        SHARING
OF PAYMENTS.


 


The Lenders agree among themselves that, in the event that
any Lender shall obtain payment in respect of any Loan or any other obligation
owing to such Lender under this Credit Agreement through the exercise of a
right of setoff, banker’s lien or counterclaim, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker’s lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a Participation Interest theretofore sold,
return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a Participation Interest may, to the fullest extent permitted
by law and in a manner not inconsistent with this Credit Agreement, exercise
all rights of payment, including setoff, banker’s lien or counterclaim, with
respect to such Participation Interest as fully as if such


 


41

















 


Lender were a holder of such Loan or other obligation in
the amount of such Participation Interest. Except as otherwise expressly
provided in this Credit Agreement, if any Lender shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender to
the Administrative Agent or such other Lender pursuant to this Credit Agreement
on the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Administrative Agent or such other Lender at a rate
per annum equal to, for the first two days, the Federal Funds Rate, and
thereafter, the Adjusted Base Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.14 applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders under this Section 3.14
to share in the benefits of any recovery on such secured claim.


 


3.15.        PAYMENTS,
COMPUTATIONS, ETC.


 


GENERALLY. Except as otherwise specifically provided
herein, all payments hereunder shall be made to the Administrative Agent in
Dollars in immediately available funds, without setoff, deduction, counterclaim
or withholding of any kind, at the Administrative Agent’s office specified in Schedule
2.1(a) not later than 2:00 P.M. (New York City time) on the date when
due. Payments received after such time shall be deemed to have been received on
the next succeeding Business Day. The Borrower shall, at the time it makes any
payment under this Credit Agreement, specify to the Administrative Agent the
Loans, Fees, interest or other amounts payable by the Borrower hereunder to
which such payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms hereof,
the Administrative Agent shall distribute such payment to the Lenders in such
manner as the Administrative Agent may determine to be appropriate in respect
of obligations owing by the Borrower hereunder, subject to the terms of
Sections 3.3 and 3.13(a)). The Administrative Agent will distribute such
payments to such Lenders, if any such payment is received prior to 2:00 P.M.
(New York City time) on a Business Day in like funds as received prior to the
end of such Business Day and otherwise the Administrative Agent will distribute
such payment to such Lenders on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment
shall instead be made on the next
preceding Business Day. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number
of days elapsed over a year of 360
days, except with respect to computation of interest on Base Rate Loans which
shall be calculated based on a year of 365 or 366 days, as appropriate.
Interest shall accrue from and include the date of borrowing, but exclude the
date of payment.


 


3.16.        EVIDENCE
OF DEBT.


 


(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Credit Agreement. Each


 


42

















 


Lender will make reasonable efforts to maintain the
accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.


 


(b) The Administrative Agent shall maintain
the Register pursuant to Section 10.3(b), and a subaccount for each
Lender, in which Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due and
payable to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from or for the account of the Borrower
and each Lender’s share thereof. The Administrative Agent will make reasonable
efforts to maintain the accuracy of the subaccounts referred to in the
preceding sentence and to promptly update such subaccounts from time to time,
as necessary.


 


(c) The entries made in the accounts, Register
and subaccounts maintained pursuant to clause (b) of this Section 3.16
(and, if consistent with the entries of the Administrative Agent, clause (a))
shall be prima facie evidence of the existence and amounts of the obligations
of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain any such account,
such Register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay the Borrower
Obligations owing to such Lender.


 


3.17.        REPLACEMENT
OF AFFECTED LENDERS.


 


If (i) the Borrower is required to make any payments
to any Lender under Section 3.6, Section 3.8, Section 3.9 or Section 3.11
in excess of the proportionate amount (based on the respective Commitments
and/or Loans of the Lenders) of corresponding payments required to be made to
the other Lenders or (ii) in the event of a refusal by a Lender to consent
to a proposed change, waiver, discharge or termination which requires the
consent of all Lenders or all affected Lenders and for which approval of such
Lenders holding more than a majority in interest has already been obtained, the
Borrower shall have the right to replace such Lender (the “REPLACED LENDER”)
with one or more other Eligible Assignee or Eligible Assignees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the “REPLACEMENT LENDER”), provided that (a) except
in the case of clause (ii) above, no Event of Default then exists, (b) at
the time of any replacement pursuant to this Section 3.17, the Replaced
Lender and Replacement Lender shall enter into an Assignment and Acceptance
pursuant to which the Replacement Lender shall acquire all or a portion, as the
case may be, of the Commitments and outstanding Loans of the Replaced Lender
and (c) all obligations of the Borrower owing to the Replaced Lender
relating to the Loans so replaced (including, without limitation, such
increased costs and excluding those specifically described in clause (b) above
in respect of which the assignment purchase price has been, or is concurrently
being paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the appropriate Assignment and
Acceptance, the payment of amounts referred to in clauses (b) and (c) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrower, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder with respect to such replaced
Loans, except with respect to indemnification provisions under this Agreement,
which shall survive as to such Replaced Lender. Notwithstanding


 


43

















 


anything to the contrary contained above, the Lender that
acts as the Administrative Agent may not be replaced hereunder except in
accordance with the terms of Section 9.7. The Replaced Lender shall be
required to deliver for cancellation its applicable Notes, if any, to be
cancelled on the date of replacement, or if any such Note is lost or
unavailable, such other assurances or indemnification therefor as the Borrower
may reasonably request.


 


SECTION IV


 


CONDITIONS


 


4.1.          CLOSING
CONDITIONS.


 


The agreement of each Lender to make and continue
extensions of credit hereunder shall be subject to satisfaction of the
following conditions:


 


(a) EXECUTED CREDIT DOCUMENTS. Receipt by the
Administrative Agent of duly executed copies of: (i) this Credit Agreement and (ii) all
other Credit Documents requested by the Administrative Agent.


 


(b) CORPORATE DOCUMENTS. Receipt by the
Administrative Agent of the following:


 


(i)              CHARTER DOCUMENTS. Copies of the
articles or certificate of incorporation or other charter documents of the
Borrower certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of the
Borrower to be true and correct as of the Closing Date.


 


(ii)             BYLAWS. A copy of the bylaws of the
Borrower certified by a secretary or assistant secretary of the Borrower to be
true and correct as of the Closing Date.


 


(iii)            RESOLUTIONS. Copies of resolutions
of the board of directors of the Borrower approving and adopting the Credit
Documents, the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary of the
Borrower to be true and correct and in force and effect as of the Closing Date.


 


(iv)            GOOD STANDING. Copies of (A) certificates
of good standing, existence or its equivalent of the Borrower certified as of a
recent date by the appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in which the failure
to so qualify and be in good standing could have a Material Adverse Effect and (B) to
the extent available, a certificate indicating payment of all corporate or
comparable franchise taxes certified as of a recent date by the appropriate
governmental taxing authorities.


 


44

















 


(v)             INCUMBENCY. An incumbency
certificate of the Borrower certified by a secretary or assistant secretary to
be true and correct as of the Closing Date.


 


(c) OPINION OF COUNSEL. The Administrative
Agent shall have received, dated as of the Closing Date and in form and substance
reasonably satisfactory to the Administrative Agent, a legal opinion of
Kirkland & Ellis LLP, counsel for the Borrower.


 


(d) CONSENT. Receipt by the Administrative
Agent of evidence that all material governmental, shareholder and third party
consents and approvals necessary in connection with the Transaction have been
obtained.


 


(e) SOLVENCY. Receipt by the Administrative
Agent of a certificate executed by the secretary and treasurer of the Borrower
as of the Closing Date, in the form of Exhibit 4.1(e) or any
other form approved by the Administrative Agent, regarding the Solvency of the
Borrower.


 


(f) OFFICER’S CERTIFICATES. The Administrative
Agent shall have received a certificate or certificates executed by an
Executive Officer of the Borrower as of the Closing Date, in the form of Exhibit 4.1(f) or
any other form approved by the Administrative Agent, stating that, immediately
after giving effect to the Transaction, (1) no Default or Event of Default
exists and (2) all representations and warranties contained herein or in
the other Credit Documents are true and correct in all material respects.


 


(g) FEES AND EXPENSES. Payment by the Borrower
to the Lenders and the Administrative Agent of all fees and expenses relating
to the Credit Facility which are due and payable on the Closing Date,
including, without limitation, payment to the Administrative Agent of the Fees
set forth in the Administrative Agent’s Fee Letter.


 


(h) The Borrower shall have delivered an
appropriate Notice of Borrowing.


 


(i) (i) The representations and
warranties set forth in Section 5 shall, subject to the limitations set
forth therein, be true and correct in all material respects as of such date
(except for those which expressly relate to an earlier date in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date) and (ii) no Default or Event of Default
shall exist and be continuing either prior to or after giving effect thereto.


 


45

















 


SECTION V


 


REPRESENTATIONS AND WARRANTIES


 


The Borrower hereby represents to the Administrative Agent
and each Lender that:


 


5.1.          FINANCIAL
CONDITION.


 


(a) The audited consolidated balance sheets and
income statements of the OpCo Consolidated Parties for the fiscal years ended
on or about June 24, 2006, June 30, 2005 and June 30, 2004
(including the notes thereto) (i) have been audited by Deloitte &
Touche LLP, (ii) have been prepared in accordance with GAAP consistently
applied throughout the periods covered thereby and (iii) present fairly
(on the basis disclosed in the footnotes to such financial statements) in all
material respects the consolidated financial condition, results of operations
and cash flows of the OpCo Consolidated Parties as of such date and for such
periods. The unaudited consolidated balance sheets and related statements of
income, stockholders’ equity and cash flows of the OpCo Consolidated Parties
for the first three fiscal quarters of the fiscal year ended June 30, 2007
(the “UNAUDITED FINANCIAL STATEMENTS”) (copies of which previously have been
delivered to the Administrative Agent) (i) have been prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby (except for the absence of footnotes and subject to year-end audit
adjustments) and (ii) present fairly (on the basis disclosed in the
footnotes to such financial statements) in all material respects the
consolidated financial condition, results of operations and cash flows of the
OpCo Consolidated Parties as of such date and for such periods.


 


(b) To the extent delivered, the financial statements
delivered pursuant to Section 6.1(a) and (b) have been prepared
in accordance with GAAP (except as may otherwise be permitted under Section 6.1(a) and
(b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) in all material respects the consolidated financial
condition, results of operations and cash flows of the Consolidated Parties, or
the OpCo Consolidated Parties, as applicable, as of such date and for such
periods (except for, in the case of the financial statements described in Section 6.1(b),
the absence of footnotes and subject to year-end audit adjustments).


 


5.2.          NO
MATERIAL CHANGE.


 


Since June 24, 2006, there has been no development or
event relating to or affecting a Consolidated Party which has had or could
reasonably be expected to have a Material Adverse Effect.


 


5.3.          ORGANIZATION
AND GOOD STANDING.


 


Each of the Consolidated Parties (a) is duly organized,
validly existing and is in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has the corporate or other
necessary power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a
foreign entity and in good standing under the


 


46














 


laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not have a Material Adverse Effect.


 


5.4.    POWER; AUTHORIZATION;
ENFORCEABLE OBLIGATIONS.


 


The Borrower has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents and to obtain extensions of credit hereunder and has taken all
necessary corporate or other necessary action to authorize the borrowings and
other extensions of credit on the terms and conditions of this Credit Agreement
and to authorize the execution, delivery and performance of the Credit Documents.
No consent or authorization of, filing with, notice to or other similar act by
or in respect of, any Governmental Authority or any other Person is required to
be obtained or made by or on behalf of the Borrower in connection with the
borrowings or other extensions of credit hereunder, with the execution,
delivery, performance, validity or enforceability of the Credit Documents or
with the consummation of the Transaction, except for consents, authorizations,
filings, notices or other acts which have been obtained as and when required or
the failure to make or obtain could not reasonably be expected to have a
Material Adverse Effect. This Credit Agreement has been, and each other Credit
Document will be, duly executed and delivered on behalf of the Borrower. This
Credit Agreement constitutes, and each other Credit Document when executed and
delivered will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower 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.


 


5.5.    NO CONFLICTS.


 


Neither the execution and delivery of the Credit
Documents, nor the consummation of the transactions contemplated therein, nor
performance of and compliance with the terms and provisions thereof by the
Borrower will (a) violate or conflict with any provision of its articles
or certificate of incorporation or bylaws or other organizational or governing
documents of the Borrower, (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.


 


5.6.    NO DEFAULT.


 


No Consolidated Party is in default in any respect under
any contract, lease, loan agreement, indenture, mortgage, security agreement or
other agreement or obligation to which it


 


47

















 


is a party or by which
any of its properties is bound which default could reasonably be expected to have
a Material Adverse Effect.


 


5.7.    OWNERSHIP.


 


Each Consolidated Party is the owner of, and has good and
marketable title to, all of its respective assets (including Intellectual
Property) owned by it necessary for the conduct of its business, except for
minor defects in title that do not materially interfere with its ability to
conduct its business or to utilize such assets for their intended purposes and
none of such assets or Intellectual Property is subject to any Lien other than
Permitted Liens.


 


5.8.    INDEBTEDNESS.


 


Except as otherwise permitted under Section 7.1, the
Consolidated Parties have no Indebtedness.


 


5.9.    LITIGATION.


 


Except as disclosed in Schedule 5.9, there does not
exist any pending or, to the knowledge of any Consolidated Party, threatened
action, suit or legal, equitable, arbitration or administrative proceeding
against any Consolidated Party which could reasonably be expected to have a
Material Adverse Effect.


 


5.10.    TAXES.


 


Each Consolidated Party has filed, or caused to be filed,
all material tax returns (Federal, state, local and foreign) required to be
filed and paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being
contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP, or (iii) the
failure of which to pay could reasonably be expected to result in a Material
Adverse Effect. The Borrower is not aware as of the Closing Date of any
material proposed tax assessments against it or any other Consolidated Party.


 


5.11.    COMPLIANCE WITH LAW.


 


Each Consolidated Party is in compliance with all
Requirements of Law applicable to it, or to its properties, unless such failure
to comply could not reasonably be expected to have a Material Adverse Effect.
Without limiting the generality of the preceding sentence, (i) the
Consolidated Parties have produced and distributed and are producing and
distributing food products that are in compliance with the Food Security Act,
FFDCA and all other applicable federal and state laws governing the production
of food, and all applicable regulations and administrative interpretations
promulgated under any such laws except for any violations or failures which
could not reasonably be expected to have a Material Adverse Effect and (ii) none
of the Consolidated Parties has violated or failed to comply with PACA or
similar


 


48

















 


laws or regulations
applicable to it, except for any violation or failure which could not
reasonably be expected to have a Material Adverse Effect.


 


5.12.    ERISA.


 


Except as disclosed and described in Schedule 5.12
attached hereto or except as could not reasonably be expected to result in a
Material Adverse Effect:


 


(a)           During
the five-year period prior to the date on which this representation is made or
deemed made: (i) no ERISA Event has occurred, and, to the knowledge of the
Executive Officers of the Borrower, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no “accumulated funding deficiency,”
as such term is defined in Section 302 of ERISA and Section 412 of
the Code, whether or not waived, has occurred with respect to any Plan; (iii) each
Plan has been maintained, operated, and funded in compliance with its own terms
and in material compliance with the provisions of ERISA, the Code, and any
other applicable Federal or state laws; and no Lien in favor of the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan (other
than a Permitted Lien).


 


(b)           The
actuarial present value of all “benefit liabilities” (as defined in Section 4001(a)(16)
of ERISA), whether or not vested, under each Single Employer Plan, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made (determined, in each case, in accordance with Financial
Accounting Standards Board Statement 87, utilizing the actuarial assumptions
used in such Plan’s most recent actuarial valuation report), did not exceed as
of such valuation date the fair market value of the assets of such Plan by such
amount as could reasonably be expected to have a Material Adverse Effect.


 


(c)           Neither
any Consolidated Party nor any ERISA Affiliate has received any notification
that any Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the knowledge of the Executive Officers of the
Consolidated Parties, reasonably expected to be in reorganization, insolvent,
or terminated.


 


(d)           No
prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code) or breach of fiduciary responsibility has occurred with respect to
a Plan which has subjected or may subject any Consolidated Party or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which any Consolidated Party or any ERISA Affiliate has
agreed or is required to indemnify any Person against any such liability.


 


(e)           Neither
any Consolidated Party nor any ERISA Affiliate has any material liability with
respect to “expected post-retirement benefit obligations” within the meaning of
the Financial Accounting Standards Board Statement 106. Each Plan which is a
welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been administered
in compliance in all material respects with the requirements of such sections.


 


49

















 


(f)            Neither
the execution and delivery of this Credit Agreement nor the consummation of the
financing transactions contemplated hereunder will involve any transaction
which is subject to the prohibitions of Sections 404, 406 or 407 of ERISA or in
connection with which a tax could be imposed pursuant to Section 4975 of
the Code. The representation by the Borrower in the preceding sentence is made
in reliance upon and subject to the accuracy of the Lenders’ representation in Section 10.15
with respect to their source of funds.


 


5.13.    CORPORATE STRUCTURE; CAPITAL
STOCK, ETC.


 


The corporate capital and ownership structure of the
Consolidated Parties as of the Closing Date is as described in Schedule 5.13A.
Set forth on Schedule 5.13B is a complete and accurate list as of the
Closing Date with respect to the Borrower and each of its direct and indirect
Subsidiaries of (i) jurisdiction of incorporation, (ii) number of
shares of each class of Capital Stock outstanding, (iii) number and
percentage of outstanding shares of each class owned (directly or indirectly)
by the Consolidated Parties and (iv) number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto as of the Closing Date. As of the
Closing Date, the outstanding Capital Stock of all such Persons is validly
issued, fully paid and (to the extent such concept is applicable)
non-assessable and is owned by the Consolidated Parties, directly or
indirectly, in the manner set forth on Schedule 5.13B, free and clear of
all Liens (other than those arising under or contemplated in connection with
the Credit Documents). Other than as set forth in Schedule 5.13B, as of
the Closing Date neither the Borrower nor any of its Subsidiaries has outstanding
any securities convertible into or exchangeable for its Capital Stock nor does
any such Person have outstanding any rights to subscribe for or to purchase or
any options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to its Capital Stock.


 


5.14.    GOVERNMENTAL REGULATIONS,
ETC.


 


(a)           None of
the transactions contemplated by this Credit Agreement (including, without
limitation, the direct or indirect use of the proceeds of the Loans) will
violate or result in a violation of the Securities Act, the Securities Exchange
Act or any of Regulations U and X. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement, in conformity with the requirements of FR Form U-1
referred to in Regulation U, that no part of the proceeds of the Loans will be
used, directly or indirectly, for the purpose of “buying” or “carrying” any “margin
stock” within the meaning of Regulations U and X, or for the purpose of
purchasing or carrying or trading in any securities.


 


(b)           None of
the Consolidated Parties is (i) required to be registered as an
“investment company”, or a company “controlled” by “investment company”, within
the meaning of the Investment Company Act of 1940, as amended or (ii) subject
to regulation under any other Federal or state statute or regulation which
limits its ability to incur Indebtedness.


 


50

















 


5.15.    PURPOSE OF LOANS.


 


The proceeds of the Loans hereunder shall be used solely
by the Borrower to effect the Distribution and to pay fees and expenses related
to the Transaction.


 


5.16.    ENVIRONMENTAL MATTERS.


 


Except as could not reasonably be expected to result in a
Material Adverse Effect:


 


(a)           Each of
the Real Properties and all operations at the Real Properties are in compliance
with all applicable Environmental Laws, there is no violation of any
Environmental Law with respect to the Real Properties or the Businesses, and
there are no conditions relating to the Real Properties or the Businesses that
could give rise to liability under any applicable Environmental Laws.


 


(b)           None of
the Real Properties contains, or has previously contained, any Materials of
Environmental Concern at, on or under the Real Properties in amounts or
concentrations that constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.


 


(c)           No
Consolidated Party has received any written or verbal notice of, or inquiry
from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the Real
Properties or the Businesses, nor does any Executive Officer of any
Consolidated Party have knowledge or reason to believe that any such notice
will be received or is being threatened.


 


(d)           Materials
of Environmental Concern have not been transported or disposed of from the Real
Properties, or generated, treated, stored or disposed of at, on or under any of
the Real Properties or any other location, in each case by or on behalf of any
Consolidated Party in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law.


 


(e)           No
judicial proceeding or governmental or administrative action is pending or, to
the best knowledge of the Executive Officers of any Consolidated Party,
threatened, under any Environmental Law to which any Consolidated Party is or
will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to the Consolidated Parties, the Real Properties or the Businesses.


 


(f)            There
has been no release, or threat of release, of Materials of Environmental
Concern at or from the Real Properties, or arising from or related to the
operations (including, without limitation, disposal) of any Consolidated Party
in connection with the Real Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could reasonably
be expected to give rise to liability under Environmental Laws.


 


51

















 


5.17.    INTELLECTUAL PROPERTY.


 


Each Consolidated Party owns, or has the legal right to
use, all trademarks, service marks, trade names, trade dress, patents,
copyrights, technology, know how and processes (the “INTELLECTUAL PROPERTY”)
necessary for each of them to conduct its business as currently conducted
except for those the failure to own or have such legal right to use could not
reasonably be expected to have a Material Adverse Effect.


 


5.18.    SOLVENCY.


 


The Borrower is Solvent.


 


5.19.    INVESTMENTS.


 


All Investments of each Consolidated Party are Permitted
Investments. 


 


5.20.    DISCLOSURE.


 


Neither this Credit Agreement nor any financial statements
(other than projections, budgets and other estimates or information of a
general economic nature) delivered to the Lenders nor any other document,
certificate or statement furnished to the Lenders by or on behalf of any
Consolidated Party in connection with the transactions contemplated hereby,
when taken as a whole, contains as of the applicable delivery date any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not materially
misleading in light of the circumstances under which such statements were made.


 


5.21.    BROKERS’ FEES.


 


No Consolidated Party has any obligation to any Person in
respect of any finder’s, broker’s, investment banking or other similar fee in
connection with any of the transactions contemplated under the Credit Documents
other than the Administrative Agent’s Fee Letter.


 


5.22.    LABOR MATTERS.


 


Except as set forth on Schedule 5.22, there are no
collective bargaining agreements or Multiemployer Plans covering the employees
of a Consolidated Party as of the Closing Date. None of the Consolidated
Parties has suffered any strikes, walkouts, work stoppages or other
material labor difficulty during the five years prior to the Closing Date
except, with respect to any of the foregoing, which could reasonably be
expected to have a Material Adverse Effect.


 


5.23.    SENIORITY.


 


The Borrower Obligations constitute “Senior Debt” under,
when executed, any instrument governing Subordinated Debt.


 


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SECTION VI


 


AFFIRMATIVE COVENANTS


 


The Borrower hereby covenants and agrees that until such
time as the Credit Agreement has been terminated in accordance with the terms
of Section 10.13:


 


6.1.    INFORMATION COVENANTS.


 


The Borrower will furnish, or cause to be furnished, to
the Administrative Agent:


 


(a)           ANNUAL
FINANCIAL STATEMENTS. As soon as available, and in any event within 105 days
after the close of each fiscal year of the Borrower, a consolidated balance sheet
of each of (a) the Consolidated Parties and (b) the OpCo Consolidated
Parties as of the end of such fiscal year, together with related consolidated
statements of income and cash flows for such fiscal year, in each case setting
forth in comparative form consolidated figures for the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and the financial information described in clause (b) above to be
audited by Deloitte and Touche LLP (or by any of PricewaterhouseCoopers LLP,
Ernst and Young or KPMG) or any other independent certified public accountants
of recognized national standing reasonably acceptable to the Administrative
Agent and whose opinion shall be to the effect that such financial statements have
been prepared in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of the audit or
qualified as to the status of the OpCo Consolidated Parties, taken as a whole,
as a going concern or any other material qualification or exception.


 


(b)           QUARTERLY
FINANCIAL STATEMENTS. As soon as available, and in any event within 45 days
(105 days in the case of the last fiscal quarter) after the close of each
fiscal quarter of each fiscal year of the Consolidated Parties, a consolidated
balance sheet of the Consolidated Parties as of the end of such fiscal quarter,
together with related consolidated statements of income and cash flows for such
fiscal quarter, in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year, all such
financial information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of an Executive Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of the Consolidated Parties and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments and the absence of certain footnotes. No later than
15 days after the delivery of the reports referred to in this Section 6.1(b),
the Borrower will use reasonable efforts to conduct a teleconference call with
the Administrative Agent and the Lenders.


 


(c)           OFFICER’S
CERTIFICATE. At the time of delivery of the financial statements provided for
in Sections 6.1(a) and 6.1(b) above, a certificate of an Executive
Officer of the Borrower substantially in the form of Exhibit 6.1(c),
stating that no Default or Event of Default exists as of the end of the
applicable fiscal period, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower proposes
to take with respect thereto.


 


53

















 


(d)           ANNUAL
BUSINESS PLAN AND BUDGETS. Within 45 days after the end of each fiscal year of
the Borrower, an annual business plan and budget of the OpCo Consolidated
Parties containing, among other things, projected financial statements for the
next fiscal year.


 


(e)           COMPLIANCE
WITH CERTAIN PROVISIONS OF THE CREDIT AGREEMENT. Within 105 days after the end
of each fiscal year of the Borrower, a certificate containing information
regarding the amount of all Asset Dispositions and Debt Issuances that were
made during the prior fiscal year.


 


(f)            REPORTS.
Promptly upon transmission or receipt thereof, (i) copies of any filings
and registrations with, and reports to or from, the Securities and Exchange
Commission, or any successor agency, and copies of all financial statements,
proxy statements, notices and reports as any Consolidated Party shall send to
its shareholders generally or to a holder of any Indebtedness owed by any
Consolidated Party in its capacity as such a holder and (ii) upon the
reasonable request of the Administrative Agent, all written reports and written
information to and from the United States Environmental Protection Agency, or
any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters.


 


(g)           NOTICES.
Upon any Executive Officer of the Borrower obtaining knowledge thereof, the
Borrower will give written notice to the Administrative Agent immediately of (i) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action the
Borrower proposes to take with respect thereto, and (ii) the occurrence of
any of the following with respect to any Consolidated Party (A) the
pendency or commencement of any litigation, arbitral or governmental proceeding
against such Person which is reasonably likely to have a Material Adverse
Effect, (B) the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any Federal, state or
local law, rule or regulation, including but not limited to, Environmental
Laws, where such liability or the violation of which could reasonably be
expected to have a Material Adverse Effect or (C) the receipt by any
Consolidated Party of notice from any regulatory agency or authority having
jurisdiction in the matter regarding a material investigation of any of such
Person under PACA.


 


(h)           ERISA.
Upon any Executive Officer of the Borrower obtaining knowledge thereof, the
Borrower will give written notice to the Administrative Agent promptly (and in
any event within thirty Business Days) of any of the following which could
reasonably be expected to have a Material Adverse Effect: (i) any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, an ERISA Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed in ERISA
or otherwise of any withdrawal liability assessed against the Borrower or any
ERISA Affiliates, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including extensions)
thereof of all amounts which any Consolidated Party or any ERISA Affiliate is
required to contribute to each Plan pursuant to its terms and as required to
meet the minimum funding standard set forth in ERISA and the Code with respect
thereto; or (iv) any change in the


 


54

















 


funding status of any Plan as of the end of the applicable
Plan year that could have a Material Adverse Effect, together with a
description of any such event or condition or a copy of any such notice and a
statement by an Executive Officer of the Borrower briefly setting forth the
details regarding such event, condition, or notice, and the action, if any,
which has been or is being taken or is proposed to be taken by the Borrower
with respect thereto. Promptly upon request, the Borrower shall furnish the
Administrative Agent and the Lenders with such additional information
concerning any Plan as may be reasonably requested, including, but not limited
to, copies of each annual report/return (Form 5500 series), as well as all
schedules and attachments thereto required to be filed with the Department of
Labor and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each “plan year” (within the meaning of Section 3(39) of
ERISA).


 


(i)            ENVIRONMENTAL.
Upon the reasonable written request of the Administrative Agent following the
occurrence of any event or the discovery of any condition which the
Administrative Agent or the Required Lenders reasonably believe(s) has
caused (or could cause) the representations and warranties set forth in Section 5.16
to be untrue, the Borrower will furnish or cause to be furnished to the
Administrative Agent, at the Borrower’s expense, a report of an environmental
assessment of reasonable scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant reasonably acceptable to
the Administrative Agent as to the subject matter of such possible breach. If
the Borrower fails to deliver such an environmental report within seventy-five
(75) days after receipt of such written request then the Administrative Agent
may arrange for same, and the Consolidated Parties hereby grant to the
Administrative Agent and their representatives reasonable access to the Real
Properties to reasonably undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable cost of any
assessment requested by the Administrative Agent pursuant to this provision
will be payable by the Borrower on demand.


 


(j)            OTHER
INFORMATION. With reasonable promptness upon any such request, such other
information regarding the business, properties or financial condition of any
Consolidated Party as the Administrative Agent or the Required Lenders may
reasonably request.


 


Each notice delivered under this Section shall be
accompanied by a written statement of an Executive Officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto. Documents
required to be delivered pursuant to this Section 6.1 may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a
link thereto, on the Borrower’s website or (ii) on which such documents
are posted on the Borrower’s behalf on an Internet or Intranet website, if any,
to which the Administrative Agent has access (whether a commercial third-party
website or a website sponsored by the Administrative Agent), provided
that (A) the Borrower shall, at the request of the Administrative Agent,
continue to deliver copies (which delivery may be by electronic transmission
(including Adobe pdf copy)) of such documents to the Administrative Agent and (B) the
Borrower shall notify (which notification may be by facsimile or electronic
transmission (including Adobe pdf copy)) the Administrative Agent (and each
Lender if there is, at the time, no incumbent Administrative Agent) of the
posting of any such


 


55

















 


documents on any website.
The Administrative Agent shall notify the Lenders of each notice delivered
under this Section.


 


6.2.    PRESERVATION OF EXISTENCE AND
FRANCHISES.


 


Except as a result of or in connection with a dissolution,
merger or disposition of a Subsidiary not prohibited by Section 7.4 or Section 7.5,
the Borrower will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.


 


6.3.    BOOKS AND RECORDS.


 


The Borrower will, and will cause each of its Subsidiaries
to, keep complete and accurate books and records of its transactions in
accordance with good accounting practices on the basis of GAAP (including the
establishment and maintenance of appropriate reserves).


 


6.4.    COMPLIANCE WITH LAW.


 


The Borrower will, and will cause each of its Subsidiaries
to, comply with all laws, rules, regulations and orders, and all applicable
restrictions (including PACA, the Food Security Act, the FFDCA, all other
applicable federal and state laws governing the production of food, and all
applicable regulations and administrative interpretations promulgated under any
such laws) imposed by all Governmental Authorities, applicable to it and its
Property to the extent that noncompliance with any such law, rule, regulation,
order or restriction could reasonably be expected to have a Material Adverse
Effect.


 


6.5.    PAYMENT OF TAXES AND OTHER
CLAIMS.


 


The Borrower will, and will cause each of its Subsidiaries
to, pay and discharge (a) all material taxes, assessments and governmental
charges or levies imposed upon it, or upon its income or profits, or upon any
of its properties, before they shall become delinquent and (b) all material
lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien upon any of its properties (other than a
Permitted Lien); provided, however, that no Consolidated Party
shall be required to pay any such tax, assessment, charge, levy or claim which (i) is
being contested in good faith by appropriate proceedings and as to which
adequate reserves therefor have been established in accordance with GAAP,
unless the failure to make any such payment could give rise to an immediate
right to foreclose on a Lien securing such amounts or (ii) could
reasonably be expected to have a Material Adverse Effect.


 


56














 


6.6.          INSURANCE.
The Borrower will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker’s compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with customary
industry practice.


 


6.7.          MAINTENANCE
OF PROPERTY.


 


The Borrower will, and will cause each of its Subsidiaries
to, maintain and preserve its properties and equipment material to the conduct
of its business in good repair, working order and condition, normal wear and
tear and Involuntary Disposition excepted, and will make, or cause to be made,
in such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as
may reasonably be needed or proper, to the extent and in the manner customary
for companies in similar businesses and to the extent necessary in the
reasonable business judgment of such Person.


 


6.8.          USE OF
PROCEEDS.


 


The Borrower will use the proceeds of the Loans solely for
the purposes set forth in Section 5.15.


 


6.9.          AUDITS/INSPECTIONS.


 


Upon reasonable notice and during normal business hours,
the Borrower will, and will cause each of its Subsidiaries to, permit
representatives appointed by the Administrative Agent, including, without
limitation, independent accountants, agents and attorneys to visit and inspect
its property, including its books and records to the extent allowed by
applicable law and regulation, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies thereof and
to write down and record any information such representative obtains and shall
permit the Administrative Agent or its representatives to investigate and
verify the accuracy of information provided to the Lenders and to discuss all
such matters with the officers, employees and representatives of such Person; provided,
however, that, unless an Event of Default shall exist, the
Administrative Agent shall not exercise its rights under this sentence more
often than two times during any calendar year and only one such time shall be
at the Borrower’s expense. Notwithstanding the foregoing, no material protected
by an attorney-client privilege shall be required to be disclosed pursuant to
this Section 6.9; provided, however, that, in the event that
the Borrower claims that any materials requested for review, investigation or
discussion by the Administrative Agent or any of its representatives pursuant
to this Section 6.9 is protected by an attorney-client privilege, then the
Borrower shall (i) provide the Administrative Agent with a reasonably
acceptable basis for the assertion of the privilege, (ii) remove or redact only those portions of the related materials deemed
to be privileged and (iii) in good faith cooperate with the Administrative
Agent to determine a method by which the information which the Administrative
Agent deems necessary to review, investigate or discuss may be obtained by the
Administrative Agent in an alternative manner which will not jeopardize any
attorney-client privilege.


 


57

















 


SECTION VII


 


NEGATIVE COVENANTS


 


The Borrower hereby covenants and agrees that until such
time as the Credit Agreement has been terminated in accordance with the terms
of Section 10.13:


 


7.1.          INDEBTEDNESS.


 


(a)   The
Borrower will not permit any Consolidated Party to contract, create, incur,
assume or permit to exist any Indebtedness; provided, however, that the
Borrower and its Subsidiaries will be permitted to incur Indebtedness if, after
giving effect thereto on a pro forma basis, as at the last day of any Test Period
immediately preceding the date of incurrence of such Indebtedness, the Borrower
would have a Consolidated Net Leverage Ratio of less than the ratio
corresponding to the period in which such last day occurs, as set forth below:


 




	
  Period

  	
   

  	
  Consolidated Net Leverage Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  July 11, 2007 –
  December 27, 2008

  	
   

  	
  6.50 to 1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 28, 2008 –
  December 26, 2009

  	
   

  	
  5.75 to 1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  December 27, 2009 and
  thereafter

  	
   

  	
  5.25 to 1.00

  	
   

  






 


(b)   Notwithstanding
the foregoing, nothing in Section 7.1(a) will prohibit any of the
following:


 


(i)            Indebtedness arising under this
Credit Agreement and the other Credit Documents;


 


(ii)           Indebtedness of the OpCo Consolidated
Parties under (A) the OpCo Credit Facility and (B) Indebtedness of
the Borrower and its Subsidiaries set forth in Schedule 7.1;


 


(iii)          obligations of any Consolidated Party
in respect of Hedging Agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity pricing risks and not for
speculative purposes;


 


(iv)          Guaranty Obligations and intercompany
Indebtedness permitted under Section 7.6 and Section 7.7;


 


(v)           Indebtedness representing deferred
compensation to directors, former directors, employees or former employees of
the Consolidated Parties;


 


(vi)          Unsecured Indebtedness consisting of
promissory notes issued by the Consolidated Parties to current or former
officers, directors and employees, their respective estates, spouses or former
spouses to finance the purchase or redemption of Capital Stock of the Consolidated
Parties or the Parent, provided that the aggregate


 


58

















 


principal amount of such Indebtedness incurred in any
fiscal year shall not exceed $5,000,000;


 


(vii)         Indebtedness evidenced by the GLK Note;


 


(viii)        Indebtedness incurred by any
Consolidated Party in connection with Acquisitions or Permitted Asset
Dispositions under agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from guarantees or letters of credit,
surety bonds or performance bonds securing the performance of such Consolidated
Party pursuant to such agreements;


 


(ix)           Indebtedness consisting of
obligations of any Consolidated Party under incentive, non-compete, consulting,
deferred compensation or other similar arrangements incurred by such Person in
connection with the Transaction (as defined in the OpCo Credit Agreement) and
Acquisitions;


 


(x)            Indebtedness incurred in connection
with the financing of insurance premiums;


 


(xi)           Indebtedness in respect of netting
services, overdraft protections and similar arrangements in each case in
connection with deposit accounts;


 


(xii)          to the extent constituting
Indebtedness, obligations incurred in respect of Liens permitted under Section 7.2(e);


 


(xiii)         Permitted Refinancing Indebtedness of
any Consolidated Party in exchange for, or the net proceeds of which are used
to renew, refund, refinance, replace, defease or discharge, any Indebtedness
that was incurred under Section 7.1(a) or Section 7.1(b)(ii)(B);
and


 


(xiv)        other Indebtedness in the aggregate
principal amount for all Consolidated Parties not to exceed $40,000,000 at any
time outstanding.


 


7.2.          LIENS.


 


The Borrower will not permit any Consolidated Party to
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property, whether now owned or hereafter acquired, except for:


 


(a)   Liens
granted under the OpCo Credit Agreement Documents;


 


(b)   Liens
existing as of the Closing Date and set forth on Schedule 7.2; provided
that no such Lien shall at any time be extended to or cover any Property other
than the Property subject thereto on the Closing Date;


 


(c)   Liens
(other than Liens created or imposed under ERISA) for taxes, assessments or
governmental charges or levies not yet delinquent or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate reserves
determined in


 


59

















 


accordance with GAAP have been established (and as to
which the Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof) or not otherwise required to be paid under Section 6.5;


 


(d)   statutory
and contractual Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant
to customary reservations or retentions of title arising in the ordinary course
of business, provided that such Liens (i) secure only amounts not
overdue by more than 30 days or (ii) if more than 30 days overdue, are
unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure, sale or
loss on account thereof) or not otherwise required to be paid under Section 6.5;


 


(e)   Liens
(other than Liens created or imposed under ERISA) incurred or deposits made by
any Consolidated Party in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance, surety, appeal and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);


 


(f)    Liens
in connection with attachments or judgments (including judgment or appeal
bonds) provided that either (i) the judgments secured shall, within
30 days after the entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall have been discharged within 30 days after the
expiration of any such stay or (ii) the judgments secured thereby do not
constitute an Event of Default under Section 8.1(h);


 


(g)   easements,
rights-of-way, covenants, restrictions (including zoning and building code
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of the
encumbered Property for its intended purposes;


 


(h)   leases,
licenses, subleases or sublicenses granted to others not interfering in any
material respect with the business of any Consolidated Party;


 


(i)    any
interest or title of a lessor, licensor, sublessor or sublicensor under, and
Liens arising from UCC financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to, leases or
licenses not prohibited by this Credit Agreement;


 


(j)    Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


 


(k)   Liens
deemed to exist in connection with Investments in repurchase agreements permitted
under Section 7.6;


 


(l)    normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;


 


60

















 


(m)  Liens of
a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;


 


(n)   Liens
arising from operation of the statutory trust under PACA or similar laws, provided
that such Liens do not secure past due account payable balances exceeding
$10,000,000 in the aggregate at any one time outstanding, unless, in respect of
any such account payables, (i) appropriate legal or administrative action
has been commenced and is being diligently pursued or defended by the
applicable Consolidated Party and (ii) the ability of the applicable
vendor to enforce any such Lien provided under PACA or similar laws has been
stayed or otherwise legally prohibited during the pendency of such action;


 


(o)   Liens on
“farm products” (as defined in the Food Security Act) to the extent, in the
case of any such Lien, that such Lien (i) was created by the Person (but
not a Consolidated Party) which sold such Property to the applicable
Consolidated Party and (ii) follows the Property by reason of the
provisions of the Food Security Act notwithstanding the transfer of title to
such Property to such Consolidated Party;


 


(p)   Liens of
sellers of goods to the Borrower and any of its Subsidiaries arising under Article 2
of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the
unpaid purchase price for such goods and related expenses;


 


(q)   Liens in
favor of sellers of Property attaching solely to cash earnest money deposits in
connection with any letter of intent or purchase agreement in connection with
Acquisitions;


 


(r)    Liens
arising from precautionary UCC financing statements regarding consignments;


 


(s)   Liens on
insurance policies and the proceeds thereof to the extent securing the
financing of the premium payment with respect thereto and to the extent such
payment is not delinquent;


 


(t)    Liens
encumbering customary initial deposits and margin deposits, and similar Liens
and margin deposits, and similar Liens attaching to commodity trading accounts
or other brokerage accounts incurred in the ordinary course of business;


 


(u)   Liens in
favor of financial institutions securing reimbursement obligations in respect
of documentary letters of credit or bankers’ acceptances; provided that
such Liens attach only to the goods covered thereby and the proceeds thereof;


 


(v)   any
interest of title of a purchaser under, and Liens arising from UCC financing
statements relating to, any sale of accounts receivable in connection with the
compromise thereof;


 


(w)  Liens consisting
of an agreement to sell, transfer or dispose of Property pursuant to a
Permitted Asset Disposition; and


 


61

















 


(x) Liens securing Indebtedness incurred by any
Subsidiary of the Borrower permitted to be incurred pursuant to Section 7.1.


 


7.3.          NATURE
OF BUSINESS.


 


The Borrower will maintain its status as a holding
company, will not conduct any material operations and will not permit any
Consolidated Party to substantively alter the character or conduct of the
business conducted by such Person as of the Closing Date, except for reasonable
extensions thereof and businesses ancillary or complementary thereto.


 


7.4.          CONSOLIDATION,
MERGER, DISSOLUTION, ETC.


 


(a) The Borrower will not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Borrower is the
surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the
Consolidated Parties taken as a whole, in one or more related transactions, to
another Person, unless:


 


(i)            either (A) the Borrower is the
surviving corporation or (B) the Person formed by or surviving any such
consolidation or merger (if other than the Borrower) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is
organized or existing under the laws of the United States, any state of the
United States or the District of Columbia; and


 


(ii)           the Person formed by or surviving any
such consolidation or merger (if other than the Borrower) or the Person to
which such sale, assignment, transfer, conveyance or other disposition has been
made assumes all of the Borrower Obligations pursuant to agreements reasonably
satisfactory to the Administrative Agent;


 


(iii)          immediately after such transaction, no
Default or Event of Default exists; and


 


(iv)          the Borrower or the Person formed by
or surviving any such consolidation or merger (if other than the Borrower), or
to which such sale, assignment, transfer, conveyance or other disposition has
been made would, on the date of such transaction after giving pro forma effect
thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, would have either (A) a
Consolidated Net Leverage Ratio of less than or equal to 5.00 to 1.00 or (B) a
lower Consolidated Net Leverage Ratio than the Consolidated Net Leverage Ratio
of the Borrower immediately prior to such transaction.


 


(b) Section 7.4(a) will not apply to:


 


(i)            a merger of the Borrower with an
Affiliate solely for the purpose of reincorporating the Borrower in another
jurisdiction; or


 


62

















 


(ii)           any consolidation or merger, or any
sale, assignment, transfer, conveyance, lease or other disposition of assets
between or among the Consolidated Parties.


 


7.5.          ASSET
DISPOSITIONS.


 


The Borrower will not permit any Consolidated Party to
make any Asset Disposition other than:


 


(a)     an
Excluded Asset Disposition; or


 


(b)     any
other Asset Disposition in which:


 


(i)              such Consolidated Party receives
consideration at the time of such Asset Disposition at least equal to the fair
market value (including as to the value of all non-cash consideration), as
determined in good faith by the board of directors of such Consolidated Party,
of the Property subject to such Asset Disposition; and


 


(ii)             at least 75% of the consideration
thereof received by such Consolidated Party is in the form of cash or Cash
Equivalents or Additional Assets;


 


provided that
the aggregate consideration received in respect of all Asset Sales pursuant to
this clause (b) shall not exceed $150,000,000 million in the aggregate.


 


For the purposes of Section 7.5(b)(ii), the following
are deemed to be cash or Cash Equivalents:


 


(A)                                   the assumption or discharge of liabilities of any Consolidated Party
(other than obligations in respect of preferred stock of the Borrower) and the
release of such Consolidated Party from all liability on such liabilities in
connection with such Asset Disposition;


 


(B)                                     securities, notes or other obligations received by any Consolidated Party
from the transferee that are converted by such Consolidated Party into cash
within 180 days of the receipt of such securities, notes or obligations, to the
extent of the cash received in that conversion; and


 


(C)                                     any Designated Noncash Consideration received by any Consolidated Party
in such Asset Disposition having an aggregate fair market value (as determined
in good faith by the Borrower), taken together with all other Designated
Noncash Consideration received pursuant to this clause that is at that time
outstanding, not to exceed the greater of (x) $25,000,000 and (y) an
amount equal to 4.50% of the Consolidated Total Assets of the Consolidated
Parties on the date on which such Designated Noncash Consideration is received
(with the fair market value of each item


 


63

















 


of Designated Noncash Consideration being measured at the
time received without giving effect to subsequent changes in value).


 


(c)     Within
365 days after the receipt of any Net Cash Proceeds from an Asset Disposition,
the applicable Consolidated Party may, at its option, apply such Net Cash
Proceeds; provided that such period shall be extended by 180 days if
such Consolidated Party is committed to apply Net Cash Proceeds within the
365-day period as set forth below:


 


(i)            to repay Indebtedness and other
obligations under the OpCo Credit Agreement and/or any other Indebtedness and
other obligations of any Subsidiaries of the Borrower (other than Indebtedness
or other obligations solely with an Affiliate) and, if such Indebtedness repaid
is revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;


 


(ii)           to make Investments permitted
pursuant to Section 7.6; or


 


(iii)          to make an Eligible Reinvestment.


 


Any Net Cash Proceeds from Asset Dispositions that are not
applied or invested as provided in paragraph (c) of this Section 7.5
will constitute “EXCESS PROCEEDS.” When the aggregate amount of Excess Proceeds
exceeds $10,000,000, within five days thereof, the Borrower will make an Asset
Disposition Offer to all Lenders to prepay all Loans and any Indebtedness of
the Borrower pari passu with the
Loans with such Excess Proceeds. The offer price in any Asset Disposition Offer
will be equal to the greater of (x) 100% of the principal amount of the
Loans (including any PIK Interest previously added to such principal) and (y) the
prepayment price set forth in Section 3.3(a), plus, in each case, accrued
and unpaid interest (to the extent not previously added to principal on the
Loans), if any, on the principal amount prepaid to the date of prepayment, and
will be payable in cash. If any Excess Proceeds remain after consummation of an
Asset Disposition Offer, the Borrower may use those Excess Proceeds for any
purpose not otherwise prohibited by this Agreement. If the aggregate principal
amount of the Loans tendered into such Asset Disposition Offer exceeds the
amount of Excess Proceeds, the Loans and any Indebtedness of the Borrower pari passu with the Loans shall be repaid
on a pro rata basis. Upon completion of each Asset Disposition Offer, the
amount of Excess Proceeds will be reset at zero.


 


7.6.          INVESTMENTS.


 


The Borrower will not permit any Consolidated Party to
make any Investments, except for:


 


(a)   Investments
consisting of cash and Cash Equivalents;


 


(b)   Investments
consisting of accounts receivable created, acquired or made by any Consolidated
Party in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;


 


(c)   Investments
consisting of Capital Stock, obligations, securities or other property received
by any Consolidated Party (i) in settlement of accounts receivable (created
in 


 


64

















 


the ordinary course of business) from bankrupt or
insolvent obligors or disputes with customers and (ii) as partial
consideration for a Permitted Asset Disposition;


 


(d)   Investments
existing as of the Closing Date and set forth in Schedule 7.6;


 


(e)   Investments
consisting of advances or loans to directors, officers, employees, agents,
customers or suppliers that, when added to the Investments permitted by Section 7.6(l),
do not exceed $5,000,000 in the aggregate at any one time outstanding;


 


(f)    Investments
by Consolidated Parties in other Consolidated Parties;


 


(g)   any
Eligible Reinvestment of the Net Cash Proceeds of any Asset Disposition as
contemplated by Section 7.5(c)(iii);


 


(h)   Investments
consisting of an Acquisition by any Consolidated Party, provided that
the acquired entity becomes a Subsidiary of the Borrower;


 


(i)    Investments
consisting of endorsements for collection or deposit in the ordinary course of
business;


 


(j)    to the
extent constituting Investments, (i) Guaranty Obligations permitted by Section 7.1
(b)(iv), (ii) Permitted Liens and (iii) transactions permitted by Section 7.4;


 


(k)   Investments
consisting of customary trade arrangements with customers in the ordinary
course of business and consistent with past practices;


 


(l)    Investments
by the Borrower consisting of obligations of directors and/or employees of any
Consolidated Party in connection with such Person’s purchase of Capital Stock
of the Parent that, when added to the Investments permitted by Section 7.6(e),
do not exceed $5,000,000 in the aggregate at any one time outstanding;


 


(m)  Investments
made by OpCo or its Consolidated Parties with the portion of excess cash flow
not required to prepay the loans under the OpCo Credit Agreement;


 


(n)   to the
extent constituting Investments, the licensing or contribution of Intellectual
Property pursuant to joint marketing arrangements with Persons other than
Consolidated Parties;


 


(o)   Investments
made with the Net Cash Proceeds of Equity Issuances by the Parent or the
Borrower;


 


(p)   Investments
consisting of advances or loans to the Parent in lieu of, and not exceeding the
aggregate amount of, Restricted Payments to the Parent permitted under Section 7.7;


 


(q)   other
Investments not listed above (including, without limitation, Investments in
Foreign Subsidiaries and Joint Ventures) in an aggregate net amount not to
exceed $100,000,000 at any one time; and


 


65

















 


(r)  to the extent constituting Investments, the
transactions permitted by Section 7.9(j).


 


7.7.          RESTRICTED
PAYMENTS


 


The Borrower will not permit any Consolidated Party to,
directly or indirectly, declare, order, make or set apart any sum for or pay
any Restricted Payment, except:


 


(a)   Restricted
Payments to any other Consolidated Party;


 


(b)   to the
extent constituting Restricted Payments, transactions permitted by Section 7.1(b)(v),
(vi), (vii), (ix) or (xii), Section 7.4, Section 7.8 or Section 7.9;


 


(c)   Restricted
Payments by any Consolidated Parties to the Parent for its proportionate share
of the tax liability of the affiliated group of corporations that file
consolidated federal income tax returns (or that file state or local income tax
returns on a consolidated basis);


 


(d)   Restricted
Payments made to satisfy required payments under Section 6.27 of the Unit
Purchase Agreement;


 


(e)   scheduled
payments by the Borrower of Subordinated Debt or Qualified Preferred Stock not
in violation of the subordination provisions contained in the applicable Junior
Financing Documentation;


 


(f)    Restricted
Payments made to repurchase and redeem all or any portion of the GLK Note (or
accreted amount plus accrued interest);


 


(g)   Restricted
Payments by any Consolidated Party to the Parent not to exceed an amount
necessary to permit the Parent to pay its interim expenses incurred in
connection with any public offering of equity securities the net proceeds of
which are specifically intended to be received by or contributed or loaned to
the Borrower, which, unless such offering shall have been terminated by the
board of directors of the Parent, shall be repaid to the Borrower promptly out
of the proceeds of such offering;


 


(h)   Restricted
Payments by any Consolidated Party to the Parent to pay for corporate,
administrative and operating expenses (including, without limitation, insurance
of the Parent) in the ordinary course of business in an amount not to exceed
$1,000,000 per fiscal year;


 


(i)    Restricted
Payments by the Borrower to the Parent to the extent necessary to enable the
Parent to repurchase Capital Stock (or to make payments on any promissory note
issued to repurchase such Capital Stock) from a former or current employee or
director (and/or such employee’s or director’s estate, spouse and/or former
spouse) of the Parent or any of its Subsidiaries in connection with the
termination of such employee’s employment or resignation from the board of
directors; provided that such Restricted Payments shall not exceed $2,000,000
in cash during any fiscal year plus (1) the unused amount available
pursuant to this clause (i) for such Restricted Payments from any previous
year and (2) the proceeds of any key-man life insurance maintained by and
received by the Parent or any of its Subsidiaries;


 


66














 


(j)      repurchase
of Capital Stock of the Parent deemed to occur upon the non-cash exercise of
stock options and warrants;


 


(k)     Restricted
Payments made with the Net Cash Proceeds of Equity Issuances of the Borrower;


 


(l)      refinancings
by any OpCo Consolidated Party of the Subordinated Debt and Qualified Preferred
Stock permitted by Section 7.1 and Section 7.8;


 


(m)    to the
extent constituting Restricted Payments, the loans and payments permitted by
clauses (i) and (j) of Section 7.9; and


 


(n)     Restricted
Payments made on the Closing Date to consummate the Transaction.


 


7.8.          OTHER INDEBTEDNESS.


 


The Borrower will not (a) if any Default or Event of
Default has occurred and is continuing or would be directly or indirectly
caused as a result thereof, after the issuance thereof, amend or modify any of
the terms of any Indebtedness of the Borrower which is subordinated in right of
payment to any Borrower Obligations if such amendment or modification would add
or change any terms in a manner adverse to the Borrower, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto
(other than as a result of a default) in excess of 200 basis points, (b) after
the issuance thereof, amend or modify any of the terms of any Junior Financing
Documentation if such amendment or modification would (i) change the
subordination provisions in a manner unfavorable to the Lenders, (ii) shorten
the final maturity or average life to maturity thereof or require any payment
to be made sooner than originally scheduled or (iii) not permit the Credit
Facility or (c) make interest payments in respect of any Subordinated Debt
or Qualified Preferred Stock in violation of the subordination provisions of
the applicable Junior Financing Documentation. Notwithstanding the foregoing,
the Borrower may repay or repurchase the GLK Note as permitted by Section 7.7(f).


 


7.9.          TRANSACTIONS WITH AFFILIATES.


 


The Borrower will not permit any Consolidated Party to
enter into or permit to exist any transaction or series of transactions with
any officer, director, Subsidiary or Affiliate of such Person other than:


 


(a)     advances
of working capital to any Consolidated Party other than the Borrower;


 


(b)     transactions
between Consolidated Parties;


 


(c)     transactions
expressly permitted by Section 7.1, 7.4, 7.5, 7.6 or 7.7;


 


(d)     normal
compensation, indemnification and reimbursement of expenses of officers,
employees and directors;


 


67

















 


(e)     the
payment of fees and expenses in connection with the Transaction;


 


(f)      the
payment of fees and reimbursement of expenses to the Equity Investors and any
indemnities in connection with the Transaction;


 


(g)     the
transactions set forth on Schedule 7.9;


 


(h)     Equity
Issuances to Affiliates;


 


(i)      the
payment by OpCo of up to $2,000,000 after the Closing Date and through June 30,
2007 to the extent required by the Purchase Related Agreements (the “PRO-FAC
Payment”), provided that, after giving effect thereto, no Default or Event of
Default then exists;


 


(j)      loans by
OpCo to Pro-Fac of up to $2,000,000; provided that, after giving effect
thereto, no Default or Event of Default then exists;


 


(k)     transactions
as to which the board of directors of the Borrower shall have received a
written opinion from an independent investment bank, appraisal firm or
accounting firm of national standing to the effect that such transaction is
fair, from a financial standpoint, to the Consolidated Parties or is not less
favorable to the Consolidated Parties than could reasonably be expected to be
obtained at the time in an arm’s-length transaction with a Person who was not
an Affiliate;


 


(l)      transactions
with a fair market value of less than $5,000,000;


 


(m)    the
payment of fees and reimbursement of expenses to the Equity Investors and any
indemnities as provided in the Management Agreement;


 


(n)     any
transaction with a joint venture or similar entity which would violate this
section solely because a Consolidated Party controls such joint venture or
similar entity; and


 


(o)     except
as otherwise specifically limited in this Credit Agreement, other transactions
which are entered into in the ordinary course of such Person’s business on
terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate.


 


7.10.        LIMITATION ON RESTRICTED
ACTIONS.


 


The Borrower will not permit any Consolidated Party to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Consolidated Party on its
Capital Stock or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation
owed to any Consolidated Party, (c) make loans or advances to any
Consolidated Party, or (d) sell, lease or transfer any of its Property
(other than Capital Stock in Joint Ventures) to any Consolidated Party, except
(in respect of any of the matters referred to in clauses (a)-(d) above) for
such encumbrances or restrictions existing under or by reason of (i) this
Credit Agreement or the other Credit


 


68

















 


Documents, (ii) applicable law or regulation, (iii) any
document or instrument governing Indebtedness permitted under Section 7.1,
provided that either (A) the provisions relating to such
encumbrance or restriction contained in such Indebtedness are no less favorable
to the Borrower, taken as a whole, as determined by the Board of Directors of
the Borrower in good faith than the provisions contained in the Opco Credit
Agreement Documents or (B) any encumbrance or restriction contained in
such Indebtedness does not affect the Borrower’s ability to make payments of
interest and scheduled payments of principal in respect of the Loans, in each
case as and when due, as determined by the Board of Directors of the Borrower
in good faith, (iv) any Permitted Lien or any document or instrument
governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien, (v) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 7.5 pending
the consummation of such sale, (vi) customary non-assignment provisions in
contracts or (vii) agreements entered into by Foreign Subsidiaries.


 


7.11.        SALE LEASEBACKS.


 


The Borrower will not permit any Consolidated Party to
enter into any Sale and Leaseback Transaction; provided, however,
the Borrower and its Subsidiaries may enter into Sale and Leaseback
Transactions so long as:


 


(a)     the
Borrower could have (i) incurred Indebtedness in an amount equal to the
Indebtedness attributable to such Sale and Leaseback Transaction under Section 7.1
and (ii) incurred a Lien to secure such Indebtedness pursuant to the
provisions of Section 7.2;


 


(b)     the
gross cash proceeds of that Sale and Leaseback Transaction are at least equal
to the fair market value, as determined in good faith by the board of directors
of the Borrower and set forth in an Officers’ Certificate delivered to the
Administrative Agent, of the property that is the subject of that Sale and
Leaseback Transaction; and


 


(c)     the
transfer of assets in that Sale and Leaseback Transaction is permitted by, and
the Borrower applies the proceeds of such transaction in compliance with Section 7.5.


 


SECTION VIII


 


EVENTS OF DEFAULT


 


8.1.          EVENTS OF DEFAULT.


 


An Event of Default shall exist upon the occurrence and
during the continuance of any of the following specified events (each an “EVENT
OF DEFAULT”):


 


(a) PAYMENT. The Borrower shall


 


(i)          default
in the payment when due of any principal of any of the Loans, or


 


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(ii)           default,
and such default shall continue for three (3) or more Business Days, in
the payment when due of any interest on the Loans or of any Fees or other
amounts owing hereunder, under any of the other Credit Documents or in
connection herewith or therewith; or


 


(b) REPRESENTATIONS. Any representation, warranty or
statement made or deemed to be made by the Borrower herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required to
be delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made; or


 


(c) COVENANTS. The Borrower shall


 


(i)            default in the due performance or observance of any term, covenant or
agreement contained in Sections 6.2 (with respect to corporate existence) and
6.8; or


 


(ii)           default in the due performance or observance by it of any covenant
contained in Section VII and such default shall continue unremedied for a
period of at least 30 days after notice thereof by the Administrative Agent; or


 


(iii)          default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in subsections (a), (b) or (c)(i) or
(ii) of this Section 8.1) contained in this Credit Agreement or any
other Credit Document and such default shall continue unremedied for a period
of at least 60 days after notice thereof by the Administrative Agent; or


 


(d) OTHER CREDIT DOCUMENTS. Except as a result of or
in connection with a dissolution, merger or disposition of a Subsidiary not
prohibited by Section 7.4 or Section 7.5, any Credit Document shall
fail to be in full force and effect (other than in accordance with its terms)
or to give the Administrative Agent and/or the Lenders the material rights,
powers and privileges purported to be created thereby, or the Borrower shall so
state in writing; or


 


(e) BANKRUPTCY, ETC. Any Bankruptcy Event shall occur
with respect to any Consolidated Party other than any non-Material Domestic
Subsidiary; or


 


(f) DEFAULTS UNDER OTHER INDEBTEDNESS. With respect
to any Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $10,000,000 in the aggregate principal amount for the
Consolidated Parties taken as a whole, (A) either (1) default in any
payment at final maturity shall occur and continue (beyond the applicable grace
period with respect thereto, if any) with respect to any such Indebtedness
(other than as a result of subordination provisions invoked by the Lenders), or
(2) a default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event or condition shall occur or exist, and
as a result of which default or other event or condition the holder or holders
of such Indebtedness (or trustee or agent on behalf of such holders) to cause
any such Indebtedness to become due prior to its final maturity; or


 


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(g)     JUDGMENTS.
One or more judgments or decrees shall be entered against one or more of the
Consolidated Parties other than any non-Material Domestic Subsidiary involving
a liability of $10,000,000 or more in the aggregate (to the extent not paid or
covered by insurance or indemnity provided by a carrier or indemnitor who has
not disclaimed coverage and has the ability to perform) and any such judgments
or decrees shall not have been paid, vacated, discharged or stayed or bonded
pending appeal within 60 days from the entry thereof; or


 


(h)     ERISA.
Any of the following events or conditions, if such event or condition could
reasonably be expected to result in liability that would have a Material
Adverse Effect: (i) any “accumulated funding deficiency,” as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, shall exist with respect to any Plan, or any lien shall arise on
the assets of any Consolidated Party or any ERISA Affiliate in favor of the
PBGC or a Plan; (ii) an ERISA Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA; (iii) an ERISA Event shall occur with respect to a Multiemployer
Plan or Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (A) the termination of such Plan
for purposes of Title IV of ERISA, or (B) any Consolidated Party or any
ERISA Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan; or (iv) any
prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code) or breach of fiduciary responsibility shall occur which may
subject any Consolidated Party or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability; or


 


(i)  SUBORDINATED FINANCINGS. (i) There
shall occur and be continuing any “Event of Default” (or any comparable term)
under, and as defined in, any Junior Financing Documentation, (ii) any of
the Borrower Obligations for any reason shall cease to be “Designated Senior
Debt” (or any comparable term) under, and as defined in, any Junior Financing
Documentation or (iii) the subordination provisions set forth in any
Junior Financing Documentation shall, in whole or in part, terminate, cease to
be effective or cease to be legally valid, binding and enforceable against any
holder of the applicable Subordinated Debt or Qualified Preferred Stock (other
than in accordance with their respective terms).


 


8.2. ACCELERATION; REMEDIES. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent, upon
the request and direction of the Required Lenders, shall, by written notice to
the Borrower take any of the following actions:


 


(a)     TERMINATION
OF COMMITMENTS. Declare the Commitments terminated whereupon the Commitments
shall be immediately terminated.


 


(b)     ACCELERATION.
Declare the Borrower Obligations to be due and payable, whereupon the same
shall be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.


 


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(c) ENFORCEMENT OF RIGHTS. Enforce any and all rights
and interests created and existing under the Credit Documents including,
without limitation, all rights of set-off.


 


Notwithstanding the foregoing, if an Event of Default
specified in Section 8.1(e) shall occur with respect to the Borrower,
then, without the giving of any notice or other action by the Administrative
Agent or the Lenders, (i) the Commitments automatically shall terminate,
(ii) all of the outstanding Borrower Obligations under clause (i) of
the definition thereof automatically shall immediately become due and payable
and (iii) the Borrower automatically shall be obligated (and hereby
promises) to pay to the Administrative Agent additional cash, to be held by the
Administrative Agent, for the benefit of the Lenders.


 


SECTION IX


 


AGENCY PROVISIONS


 


9.1.          APPOINTMENT, POWERS AND
IMMUNITIES.


 


(a) Each Lender hereby irrevocably appoints and
authorizes the Administrative Agent to act as its agent under this Credit
Agreement and the other Credit Documents with such powers and discretion as are
specifically delegated to the Administrative Agent by the terms of this Credit
Agreement and the other Credit Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent (which term as used
in this sentence and in Section 9.5 and the first sentence of Section 9.6
hereof shall include its Affiliates and its own and its Affiliates’ officers,
directors, employees, and agents): (i) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement and
shall not be a trustee or fiduciary for any Lender; (ii) shall not be
responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or provided for in,
or received by any of them under, any Credit Document, or for the value,
validity, effectiveness, genuineness, enforceability, or sufficiency of any
Credit Document, or any other document referred to or provided for therein or
for any failure by the Borrower or any other Person to perform any of its
obligations thereunder; (iii) shall not be responsible for or have any
duty to ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by the Borrower or the satisfaction of any condition or
to inspect the Property (including the books and records) of the Borrower or
any of its Subsidiaries or Affiliates; and (iv) shall not be responsible
for any action taken or omitted to be taken by it under or in connection with
any Credit Document, except to the extent that the taking of such action or
omission is found by a final and nonappealable decision of a court of competent
jurisdiction to constitute its own gross negligence, bad faith or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.


 


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9.2.          RELIANCE BY ADMINISTRATIVE
AGENT.


 


The Administrative Agent shall be entitled to rely upon
any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telecopy) believed
by it to be genuine and correct and to have been signed, sent or made by or on
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel for the Borrower or any Lender), independent
accountants, and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with Section 10.3(b) hereof.
As to any matters not expressly provided for by this Credit Agreement, the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding on
all of the Lenders; provided, however, that the Administrative
Agent shall not be required to take any action that exposes the Administrative
Agent to personal liability or that is contrary to any Credit Document or
applicable law or unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking any such action.


 


9.3.          DEFAULTS.


 


The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a “Notice of Default”. In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 9.2 hereof) take such
action with respect to such Default or Event of Default as shall reasonably be
directed by the Required Lenders (or such other Lenders as required by Section 10.6),
provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.


 


9.4.          RIGHTS AS A LENDER.


 


With respect to its Commitment and the Loans made by it,
UBS AG, Stamford Branch (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term “Lender” or “Lenders” shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. UBS AG, Stamford Branch (and any successor acting as
Administrative Agent) and its Affiliates may (without having to account
therefor to any Lender) accept deposits from, lend money to, make investments
in, provide services to, and generally engage in any kind of lending, trust, or
other business with the Borrower or any of its Subsidiaries or Affiliates as if
it were not acting as Administrative Agent, and UBS AG, Stamford Branch (and
any successor acting as 


 


73

















 


Administrative Agent) and its Affiliates may accept fees
and other consideration from the Borrower or any of its Subsidiaries or
Affiliates for services in connection with this Credit Agreement or otherwise
without having to account for the same to the Lenders.


 


9.5.          INDEMNIFICATION.


 


The Lenders agree to indemnify the Administrative Agent
(to the extent not reimbursed under Section 10.5 hereof, but without
limiting the obligations of the Borrower under such Section) ratably (in
accordance with their respective outstanding Term Loans (and Participation
Interests therein)) for, and hold the Administrative Agent harmless from and
against, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including attorneys’ fees), or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Administrative Agent (including by any
Lender) in any way relating to or arising out of any Credit Document or the
transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Credit Document; provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the
gross negligence, bad faith or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share
of any costs or expenses payable by the Borrower under Section 10.5, to
the extent that the Administrative Agent is not promptly reimbursed for such
costs and expenses by the Borrower. The agreements in this Section 9.5
shall survive the repayment of the Loans and other obligations under the Credit
Documents and the termination of the Commitments hereunder.


 


9.6.          NON-RELIANCE ON ADMINISTRATIVE
AGENT AND OTHER LENDERS.


 


Each Lender agrees that it has, independently and without
reliance on the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and its Subsidiaries and decision to enter into this
Credit Agreement and that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under the Credit
Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
affairs, financial condition, or business of the Borrower or any of its
Subsidiaries or Affiliates that may come into the possession of the
Administrative Agent or any of its Affiliates.


 


9.7.          SUCCESSOR ADMINISTRATIVE AGENT.


 


The Administrative Agent may resign at any time by giving
90 days prior notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right with the consent of the
Borrower (not to be unreasonably withheld) to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30)


 


74

















 


days after the retiring Administrative Agent’s giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States having combined
capital and surplus of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent’s resignation hereunder
as Administrative Agent, the provisions of this Section 9 shall continue
in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Administrative Agent. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above.


 


SECTION X


 


MISCELLANEOUS


 


10.1.        NOTICES.


 


Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device)
to the number set out below, (c) the Business Day following the day on
which the same has been delivered prepaid (or pursuant to an invoice
arrangement) to a reputable national overnight air courier service, or (d) the
third Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the
address, in the case of the Borrower and the Administrative Agent, set forth
below, and, in the case of the Lenders, set forth on Schedule  2.1(a),
or at such other address as such party may specify by written notice to the
other parties hereto:


 


if to the Borrower:


 


BE Foods Investments, Inc. 


c/o Birds Eye Foods, Inc. 


90 Linden Oaks


Rochester, New York 14625 


Attn: Earl L. Powers


Telephone: (585) 383-1850


Telecopy:   (585)
383-1606


 


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with copies to:


 


Vestar Capital Partners


245 Park Avenue


41st Floor


New York, New York 10167


Attn: Managing Director and General Counsel 


Telephone: (212) 351-1606


Telecopy: (212) 809-4922


 


and


 


Kirkland & Ellis LLP


Citigroup Center


153 East 53rd Street


New York, NY 10022


Attn: Joshua N. Korff


Telephone: (212) 446-4800 


Telecopy: (212) 446-4900


 


if to the Administrative Agent:


 


UBS AG, Stamford Branch 


677 Washington Boulevard 


Stamford, Connecticut 06901 


Attention: Brian Costa 


Telephone: (203) 719-8788 


Telecopy: (203) 719-3180


Email: brian.costa@ubs.com


 


Notices and other communications to any Lender hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.


 


10.2.        RIGHT OF SET-OFF; ADJUSTMENTS.


 


Upon the occurrence and during the continuance of any
Event of Default under Section 8.1(a), each Lender (and each of its
Affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, other than payroll
or trust accounts) at any time held and other indebtedness at any time owing by
such Lender (or any of its Affiliates) to or for the credit or the account of
the Borrower against any and all of the obligations of such Person then due and
owing under this Credit Agreement or under any other Credit Document,


 


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irrespective of whether such Lender shall have made any
demand hereunder or thereunder. Each Lender agrees promptly to notify in
writing the Borrower after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section 10.2 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender may have.


 


10.3.        BENEFIT OF AGREEMENT.


 


(a)     The
provisions of this Credit Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Credit Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in paragraph (c) of this Section) and, to the
extent expressly contemplated hereby, the Indemnified Parties) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)     (i)   Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:


 


(A)        the
Borrower, provided that no consent of the Borrower shall be required (i) for
an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (ii) during
the Syndication Period and (iii) during an Event of Default under Section 8.1(a);
and


 


(B)         the
Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of a Term Loan to an assignee that is
a Lender, Affiliate of a Lender or an Approved Fund immediately prior to giving
effect to such assignment.


 


(ii)          Assignments shall be subject to the following additional conditions:


 


(A)        except in the case of an assignment to a Lender, Affiliate of a Lender,
an Approved Fund or an assignment of the entire remaining amount of the
assigning Lender’s and its Affiliates’ or Approved Funds’ Commitment, the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000 in the case of Term Loans unless each of the Borrower
and the Administrative Agent otherwise consent, provided


 


77

















 


that Approved Funds shall be aggregated for purposes of
determining compliance with such minimum assignment amount;


 


(B)         each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;


 


(C)         the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance;


 


(D)         in the
case of an assignment by a Lender to a CLO managed by such Lender or an
Affiliate of such Lender, unless such assignment shall have been approved by
the Borrower (the Borrower agreeing that such an approval, if requested, will
not be unreasonably withheld or delayed), the assigning Lender shall retain the
sole right to approve any amendment, modification or waiver of any provision of
this Agreement, provided that the Assignment and Acceptance between such
Lender and such CLO may provide that such Lender will not, without the consent
of such CLO, agree to any amendment, modification or waiver described in the
first proviso to Section 10.6(a) that affects such CLO; and


 


(E)         the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in which the assignee designates one or
more credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower and its Affiliates and their
related parties or their respective securities) will be made available and who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities laws.


 


(iii)         Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.9,
3.11, 3.12 and 10.5 for matters arising while such person was a Lender). If the
assignee is not a United States person under Section 7701(a)(30) of the
Code, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of Taxes. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


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(iv)            The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“REGISTER”). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender (with
respect to its own interest only), at any reasonable time and from time to time
upon reasonable prior notice.


 


(v)             Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee’s completed administrative
questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.


 


(c) Any Lender may, without the consent of the
Borrower and the Administrative Agent, sell participations to one or more banks
or other entities (a “PARTICIPANT”) in all or a portion of such Lender’s rights
and obligations under this Credit Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Credit Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Consolidated Parties, the
Administrative Agent and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Credit Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce the Credit Documents and to approve any amendment,
modification or waiver of any provision of the Credit Documents; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 10.6(a) that affects
such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.9, 3.11 and 3.12 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.2 as though it were a Lender,
provided such Participant agrees to be subject to Section 3.14 as though
it were a Lender.


 


(i)            A Participant shall not be entitled to receive any greater payment under
Sections 3.9, 3.11 and 3.12 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be


 


79

















 


a Foreign Lender if it were a Lender shall not be entitled
to the benefits of Section 3.11 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 3.11(d) as though it
were a Lender.


 


(d)   Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Credit Agreement (i) to secure
obligations of such Lender to a Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto, (ii) in the case of any Lender which has made Term Loans and is an
investment fund, to its creditors or the trustee under the indenture to which
such fund is a party in support of its obligations to such creditors or trustee
for the benefit of the applicable trust beneficiaries and (iii) to
appropriate entities within the Farm Credit System, as collateral security.


 


(e)   Any
Lender may furnish any information concerning the Consolidated Parties in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants), subject, however, to the
provisions of Section 10.14 hereof.


 


10.4.        NO WAIVER; REMEDIES CUMULATIVE.


 


No failure or delay on the part of the Administrative
Agent or any Lender in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between the
Administrative Agent or any Lender and the Borrower shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Administrative Agent or
any Lender would otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.


 


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10.5.        EXPENSES; INDEMNIFICATION.


 


(a) The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with
the syndication, preparation, execution, delivery, administration,
modification, and amendment of this Credit Agreement, the other Credit
Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Credit
Documents. The Borrower further agrees to pay on demand all reasonable costs
and expenses of the Administrative Agent and one counsel to all of the Lenders,
if any, in connection with the enforcement (whether through negotiations, legal
proceedings, or otherwise) of the Credit Documents and the other documents to
be delivered hereunder, except to the extent such claim, damage, loss,
liability, cost, or expense results from the gross negligence, bad faith,
willful misconduct of the Person seeking reimbursement or a breach by such
Person of its obligations hereunder.


 


The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
respective officers, directors, trustees, employees and agents (each, an
“INDEMNIFIED PARTY”) from and against any and all obligations, penalties,
actions, judgments, suits claims, damages, actual losses, liabilities, costs,
expenses and disbursements (including, without limitation, reasonable
attorneys’ fees of the Administrative Agent and, except as provided below, one
counsel to all of the Lenders and excluding taxes) that may be incurred by or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Credit Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or expense
results from the gross negligence, bad faith or willful misconduct of such
Indemnified Party (or any of its Affiliates or any their respective officers,
directors, trustees, employees or agents) or from a breach by such Indemnified
Party (or any of its Affiliates or any their respective officers, directors, trustees,
employees or agents) of its obligations hereunder. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 10.5 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. No party hereto shall
assert any claim against any other party hereto, any of their Affiliates, or
any of their respective directors, trustees, officers, employees, attorneys,
agents, and advisers, on any theory of liability, for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the Credit
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans. The Borrower shall be entitled to
assume the defense of any action for which indemnification is sought by an
Indemnified Party hereunder with counsel of the Borrower’s choice at its
expense (in which case the Borrower shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by an Indemnified Person
except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to each Indemnified Party. Notwithstanding the
election by the Borrower to assume the defense of any such action, each
Indemnified Party shall have the right to employ separate counsel and to


 


81

















 


participate in the defense of such action, and the
Borrower shall bear the reasonable fees, costs, and expenses of such separate
counsel, if (i) the use of counsel chosen by the Borrower to represent
such Indemnified Party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the Borrower and such Indemnified Party and such Indemnified Party shall have
reasonably concluded that there may be legal defenses available to it that are
different from or additional to those available to the Borrower (in which case
the Borrower shall not have the right to assume the defense or such action on
behalf of such Indemnified Party); (iii) the Borrower shall not have
employed counsel reasonably satisfactory to such Indemnified Party to represent
it within a reasonable time after notice of the institution of such action; or (iv) the
Borrower shall authorize such Indemnified Party to employ separate counsel at
the Borrower’s expense.


 


(b) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 10.5 shall survive the repayment of the
Loans and other Borrower Obligations and the termination of the Commitments
hereunder.


 


10.6.        AMENDMENTS, WAIVERS AND
CONSENTS.


 


Neither this Credit Agreement nor any other Credit
Document nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing entered into by, or approved in writing
by, the Borrower and the Required Lenders, provided, however, that:


 


(a) without the consent of each Lender directly
affected thereby, neither this Credit Agreement nor any other Credit Document
may be amended, changed, waived, discharged or terminated so as to


 


(i)            extend any Commitment or the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof,


 


(ii)           reduce the rate or extend the time of payment of interest on any Loan or
of any reimbursement obligation, or any portion thereof or of any Fees,


 


(iii)          reduce or waive the principal amount of any Loan or of any reimbursement
obligation, or any portion thereof,


 


(iv)          increase the Commitment of a Lender over the amount thereof in effect (it
being understood and agreed that a waiver of any condition precedent set forth
in Section 4.1 or of any Default or Event of Default or mandatory
reduction in the Commitments shall not constitute a change in the terms of any
Commitment of any Lender),


 


(v)           except as the result of or in connection with a dissolution, merger or
disposition of a Consolidated Party not prohibited by Section 7.4 or Section 7.5,
release the Borrower from its or their obligations under the Credit Documents,


 


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(vi)          amend, modify or waive any provision of this Section 10.6 or Section 3.13(a),


 


(vii)         reduce
any percentage specified in the definition of Required Lenders, or


 


(viii)        consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents except as permitted
hereby or thereby;


 


(b)      without
the consent of Lenders (other than Defaulting Lenders) holding in the aggregate
at least a majority of the outstanding Term Loans (and Participation Interests
therein), Section 3.3(b)(iii) may not be amended, changed, waived,
discharged or terminated so as to extend the time for or change the amount or
the manner of application of proceeds of any mandatory prepayment required by Section 3.3(b)(i) or
(ii) hereof;


 


(c)       without
the consent of the Administrative Agent, no provision of Section 9 may be
amended, changed, waived, discharged or terminated; and


 


(d)      without
the consent of Lenders (other than Defaulting Lenders) holding in the aggregate
at least a majority of the outstanding Term Loans (and Participation Interests
therein), amend this Section 10.6 to impose any greater restriction on the
ability of any Lender to assign any of its rights and obligations hereunder.


 


Notwithstanding the fact that the consent of all the
Lenders is required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that
the provisions of Section 1126(c) of the Bankruptcy Code supersedes
the unanimous consent provisions set forth herein and (y) the Required
Lenders shall determine whether or not to allow the Borrower to use cash
collateral in the context of a bankruptcy or insolvency proceeding and such
determination shall be binding on all of the Lenders.


 


Notwithstanding the foregoing,
this Credit Agreement may be amended (or amended and restated) with the written
consent of the Required Lenders, the Administrative Agent and the Borrower (a) to
add one or more additional credit facilities to this Credit Agreement and to
permit the extensions of credit from time to time outstanding thereunder and
the accrued interest and fees in respect thereof to share ratably in the
benefits of this Credit Agreement and the other Credit Documents with the Term
Loans and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.


 


In addition, notwithstanding the
foregoing, this Credit Agreement may be amended with the written consent of the
Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all
outstanding Term Loans (“REFINANCED TERM LOANS”) with a replacement term loan tranche
hereunder (“REPLACEMENT TERM LOANS”), provided that (a) the
aggregate principal amount of such Replacement Term Loans shall not exceed the
aggregate principal amount of such Refinanced Term Loans, (b) the weighted
average life to maturity of such


 


83

















 


Replacement Term Loans shall not be shorter than the
weighted average life to maturity of such Refinanced Term Loans at the time of
such refinancing and (c) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the
Refinanced Term Loans in effect immediately prior to such refinancing.


 


Notwithstanding the foregoing, at any time on or prior to
the date that is 120 days after the Closing Date, this Credit Agreement and any
other Credit Document may be amended solely with the consent of the
Administrative Agent and the Borrower without the need to obtain the consent of
any other Lender if such amendment is delivered in order to cure ambiguities or
defects of a technical or immaterial nature in this Credit Agreement or the
applicable Credit Document; provided that (i) the Administrative
Agent will notify the Lenders of such changes and (ii) such changes shall
not be adverse to any Lender in any material respect.


 


10.7.        COUNTERPARTS.


 


This Credit Agreement 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 Credit Agreement to produce or account for more than
one such counterpart for each of the parties hereto. Delivery by facsimile by
any of the parties hereto of an executed counterpart of this Credit Agreement
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.


 


10.8.        HEADINGS.


 


The headings of the sections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.


 


10.9.        SURVIVAL.


 


All indemnities set forth herein, including, without
limitation, in Section 3.11, 3.12, 9.5 or 10.5 shall survive the execution
and delivery of this Credit Agreement, the making of the Loans, the repayment
of the Loans and other obligations under the Credit Documents and the
termination of the Commitments hereunder, and all representations and
warranties made by the Borrower herein shall survive until this Credit
Agreement shall be terminated in accordance with the terms of Section 10.13(b).


 


10.10.      GOVERNING LAW; SUBMISSION TO
JURISDICTION; VENUE.


 


(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE
EXPRESSLY PROVIDED THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of the State of


 


84

















 


New York in New York County, or of the United States for
the Southern District of New York, and, by execution and delivery of this
Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. The Borrower further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to Section 10.1,
such service to become effective three (3) days after such mailing.
Nothing herein shall affect the right of the Administrative Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against the Borrower in any other
jurisdiction.


 


(b)     The
Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Credit Agreement or any other Credit
Document brought in the courts referred to in subsection (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.


 


(c)     TO THE
EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE
BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


10.11.      SEVERABILITY.


 


If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.


 


10.12.      ENTIRETY.


 


This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.


 


10.13.      BINDING EFFECT; TERMINATION.


 


(a) This Credit Agreement shall become effective at
such time on or after the Closing Date when it shall have been executed by the
Borrower and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken together,
bear the signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Borrower, the Administrative
Agent and each Lender and their respective successors and assigns.


 


85














 


(b) The term of this Credit Agreement shall be until
the Borrower Obligations under clause (i) of such definition (other than
contingent indemnity obligations) are Fully Satisfied.


 


10.14.      CONFIDENTIALITY.


 


The Administrative Agent and each Lender (each, a “LENDING
PARTY”) agrees to keep confidential any information furnished or made available
to it by or on behalf of the Borrower pursuant to this Credit Agreement; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, trustee, employee, agent, or advisor of any
Lending Party or Affiliate of any Lending Party, provided in each case that
such Person is informed of the confidential nature of such information, (b) to
any other Person if reasonably incidental to the administration of the Credit
Facility, provided in each case that such Person is informed of the
confidential nature of such information, (c) as required by any law, rule,
or regulation, (d) upon the order of any court or administrative agency, (e) upon
the request or demand of any regulatory agency or authority having jurisdiction
over such Lending Party, (f) that is or becomes available to the public or
that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party or other Person bound by this Section 10.14
prohibited by this Credit Agreement, (g) in connection with any litigation
to which such Lending Party or any of its Affiliates may be a party, provided
that such Lending Party will, to the extent practical, use reasonable efforts
to notify the Borrower prior to such disclosure, (h) to the extent
necessary in connection with the exercise of any remedy under this Credit
Agreement or any other Credit Document, (i) to the National Association of
Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s
investment portfolio in connection with ratings issued with respect to such
Lender, (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty’s professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty (i) has been approved in writing by the Borrower and (ii) agrees
in a writing enforceable by the Borrower to be bound by the provisions of this Section 10.14)
and (k) subject to provisions substantially similar to those contained in
this Section 10.14, to any pledgee referred to in Section 10.3(d) or
any actual or proposed participant or assignee.


 


Each Lender acknowledges that information furnished to it
pursuant to this Agreement or the other Credit Documents may include material non-public
information concerning the Borrower and its Affiliates and their related
parties or their respective securities, and confirms that it has developed
compliance procedures regarding the use of material non-public information and
that it will handle such material non-public information in accordance with
those procedures and applicable law, including Federal and state securities
laws.


 


All information, including requests for waivers and
amendments, furnished by the Borrower or the Administrative Agent pursuant to,
or in the course of administering, this Agreement or the other Credit Documents
will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or
their respective securities. Accordingly, each Lender represents to the
Borrower and the Administrative Agent that it has identified in its
administrative questionnaire a credit contact


 


86

















 


who may receive information that may contain material
non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.


 


10.15.      SOURCE OF FUNDS.


 


Each of the Lenders hereby represents and warrants to the
Borrower that at least one of the following statements is an accurate
representation as to the source of funds to be used by such Lender in
connection with the financing hereunder:


 


(a)     no part
of such funds constitutes assets allocated by such Lender to any separate
account maintained by such Lender in which any employee benefit plan (or its
related trust) has any interest;


 


(b)     to the
extent that any part of such funds constitutes assets allocated to any separate
account maintained by such Lender, such Lender has disclosed to the Borrower
the name of each employee benefit plan whose assets in such account exceed 10%
of the total assets of such account as of the date of such purchase (and, for
purposes of this clause (b), all employee benefit plans maintained by the same
employer or employee organization are deemed to be a single plan);


 


(c)     to the
extent that any part of such funds constitutes assets of an insurance company’s
general account, such insurance company has complied with all of the
requirements of the regulations issued under Section 401(c)(1)(A) of
ERISA; or


 


(d)     such
funds constitute assets of one or more specific benefit plans which such Lender
has identified in writing to the Borrower.


 


As used in this Section 10.15, the terms “employee
benefit plan” and “separate account” shall have the respective meanings
assigned to such terms in Section 3 of ERISA.


 


10.16.      REGULATION D.


 


Each of the Lenders hereby represents and warrants to the
Borrower that it is a commercial lender, other financial institution or other
“accredited” investor (as defined in SEC Regulation D) which makes or acquires
or loans in the ordinary course of business and that it will make or acquire
Loans for its own account in the ordinary course of business.


 


10.17.      CONFLICT.


 


To the extent that there is a conflict or inconsistency
between any provision hereof, on the one hand, and any provision of any Credit
Document, on the other hand, this Credit Agreement shall control.


 


10.18.      USA PATRIOT ACT


 


Each Lender hereby notifies the Borrower that pursuant to
the requirements of the USA PATRIOT Act, it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other


 


87

















 


information that will allow such Lender to identify the
Borrower in accordance with the USA PATRIOT Act.


 


[Signature Pages to
Follow]


 


88

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Credit Agreement to be duly executed and delivered as of the date first above
written.


 


 


	
   

  	
  BE
  FOODS INVESTMENTS, INC.

  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Earl L. Powers

  
	
   

  	
  Name:

  	
  Earl
  L. Powers

  
	
   

  	
  Title:

  	
  Secretary

  



 


BE Foods Investments, Inc. -
Credit Agreement


 

















 


	
   

  	
  UBS
  AG, STAMFORD BRANCH,

  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary E. Evans

  
	
   

  	
  Name:

  	
  Mary
  E. Evans 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


 


	
   

  	
  By:

  	
  /s/
  David B. Julie

  
	
   

  	
  Name:

  	
  David
  B. Julie 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


BE Foods Investments, Inc. -
Credit Agreement


 

















 


	
   

  	
  UBS
  SECURITIES LLC,

  as
  Sole Lead Arranger and Sole Book Running Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary E. Evans

  
	
   

  	
  Name:

  	
  Mary
  E. Evans 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


 


	
   

  	
  By:

  	
  /s/
  David B. Julie

  
	
   

  	
  Name:

  	
  David
  B. Julie 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


BE Foods Investments, Inc. -
Credit Agreement


 

















 


	
   

  	
  UBS
  LOAN FINANCE LLC,

  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary E. Evans

  
	
   

  	
  Name:

  	
  Mary
  E. Evans 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


 


	
   

  	
  By:

  	
  /s/
  David B. Julie

  
	
   

  	
  Name:

  	
  David
  B. Julie 

  
	
   

  	
  Title:

  	
  Associate
  Director 

  Banking Products 

  Services, US

  



 


BE Foods Investments, Inc. -
Credit Agreement