Exhibit 10.31


 


AMENDMENT NO. 5
TO AMENDED AND RESTATED 

LIMITED LIABILITY COMPANY AGREEMENT OF

BIRDS EYE HOLDINGS LLC


 


This Amendment No. 5 (this “Amendment”) to the
Amended and Restated Limited Liability Company Agreement (the “Agreement”)
of Birds Eye Holdings LLC (the “Company”), dated as of August 19, 2002,
as amended by that certain Amendment No. 1 to the Agreement dated as of August 30,
2003, that certain Amendment No. 2 to the Agreement dated as of December 22,
2003, that certain Amendment No. 3 to the Agreement dated as of February 11,
2004 and that certain Amendment No. 4 to the Agreement dated as of October 31,
2005, is entered into as of July 11, 2007. 
All capitalized terms used and not otherwise defined herein shall have
the meanings given to them in the Agreement.


 


WHEREAS, BE Foods Investments, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company (“BE Investments”)
has paid a dividend of approximately $298,408,056 million (the “July 2007
Dividend”) from the proceeds of a credit facility incurred by BE
Investments pursuant to the Credit Agreement by and among BE Investments as
borrower, the lenders party thereto and UBS AG, Stamford Branch, as
Administrative Agent dated on or about July 11, 2007;


 


WHEREAS, with the consent of the holders of a majority
of the Class A Units, the holders of a majority of the Class B Units and the
holders of a majority of the Class E Units, the Company desires to amend the
Agreement (i) to modify the distribution waterfall set forth in Section 4.4 of
the Agreement with respect to the distribution of the July 2007 Dividend by the
Company to the Unitholders to provide for the increase of distributions to the Class
C Unitholders and the Class D Unitholders over what would otherwise be
distributable to such holders which increase will reduce the amounts that would
otherwise be distributed to the Class A Unitholders, the Class B Unitholders
and the Class E Unitholders pursuant to Section 4.4 of the Agreement and (ii) to
provide that the Class A Unitholders, the Class B Unitholders and the Class E
Unitholders will be entitled to receive all future distributions that would
otherwise be payable to the Class C Unitholders and the Class D Unitholders who
have by virtue of this amendment received any portion of the increased
distributions to the Class C and Class D Unitholders until an amount equal to
the aggregate amount of such advance has been reallocated to the Class A, Class
B and Class E Unitholders.  The increase
in distributions to the Class C and Class D Unitholders will constitute an
advance of any future distributions payable to such Class C and Class D
Unitholders; and


 


WHEREAS, pursuant to Section 7.5 of the Agreement, the Management Committee with the consent of
holders of a majority of Class A Units, the holders of a majority of the
Class B Units and the holders of a majority of the Class E Units may amend the Agreement to provide for the
foregoing;


 


NOW THEREFORE, the Management
Committee and the
Members holding a majority of each of the Class A Units, the Class B Units and
the Class E Units desire to amend the
Agreement in accordance with the terms of Section 7.5 of the Agreement to
reflect the foregoing, and hereby agrees as follows:


 

















 


ARTICLE I

AMENDMENTS


 


1.1           Section 1.1(a) of the Agreement.    Section
1.1(a) of the Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:


 


“BE Investments” means BE Foods Investments, Inc.,
a wholly owned subsidiary of the Company.


 


“July 2007 Dividend” means the amount of any
dividend actually received by the Company from BE Investments from the proceeds
of a credit facility incurred by BE Investments pursuant to the Credit
Agreement by and among BE Investments as borrower, the lenders party thereto
and UBS AG, Stamford Branch, as Administrative Agent dated on or about July 6,
2007.


 


1.2           Section 4.4 of the Agreement.    Section 4.4 of the Agreement is hereby
amended by inserting a new subsection (e):


 


(e) Notwithstanding anything to the contrary in this Section 4.4,


 


(i) any distribution by the Company from the proceeds of the July 2007
Dividend and all future distributions shall be made in accordance with Sections
4.4(a) to (d) as modified by this subsection (e);


 


(ii) with respect to any distribution to be made from the proceeds of
the July 2007 Dividend, an amount equal to approximately $7,806,656.97 (the “Special
Distribution Amount”) that would otherwise be distributed to the holders of
the Class A Units, the Class B Units and the Class E Units (pro rata among the
holders of the Class A Units, the Class B Units and the Class E Units based on
the number of Class A Units, Class B Units and Class E Units held by such
Unitholders) pursuant to Sections 4.4(a) to 4.4 (d) shall instead be
distributed to the holders of the Class C Units and the Class D Units as an
advance of future distributions, if any, to be made to such persons pursuant to
the terms of this Agreement in such amounts as are set forth opposite each such
Class C Unitholder’s name and Class D Unitholder’s name under “Special
Distribution Amount” on the Special
Distribution Schedule which for purposes of confidentiality shall be
maintained by the Company’s Chief Financial Officer, and which shall be
certified by such officer as of the date of the making of such distribution
(such amount with respect to each such Unitholder, the “Individual Special
Distribution Amount”).  Each Class C
Unitholder and Class D Unitholder shall be informed of his or her Individual
Special Distribution Amount.  Any portion
of any Class C or Class D Unitholder’s Individual Special Distribution Amount
that is withheld by the Company to repay all or a portion of such Unitholder’s
note to the Company shall be distributed pursuant to Sections 4.4 (a) to (d) without
regard to this subsection (e); and


 


(iii) with respect to any distribution made by the Company subsequent
to the distribution of the proceeds of the July 2007 Dividend, any amount
otherwise distributable to any holder of Class C Units or Class D Units who
received any portion of the Special Distribution Amount pursuant to Section 4.4
shall be distributed to the holders of the Class A Units, the Class B Units and
the Class E Units whose portion of the distribution of the proceeds of the July
2007 


 


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Dividend was reduced to fund any portion of the
Special Distribution Amount (pro rata among such holders of the Class A Units,
the Class B Units and the Class E Units based on the number of Class A, Class B
and Class E Units held by such Unitholders) until the holders of the Class A
Units, the Class B Units and the Class E Units shall have in the aggregate
received pursuant to this sentence with respect to such Class C or Class D
Unitholder an amount equal to such Class C Unit holder’s or Class D Unitholder’s
Individual Distribution Amount.


 


ARTICLE II

MISCELLANEOUS


 


2.1          General. 
Except as expressly set forth in
this Amendment, all other terms and conditions of the Agreement shall remain in
full force and effect.


 


2.2          Governing Law.  THIS AMENDMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.


 


2.3          Counterparts.  This Amendment may be executed in any number
of counterparts (including by means of telecopied signature pages), all of
which together shall constitute a single instrument.


 


2.4          Section Titles.  Section titles and headings are for descriptive
purposes only and shall not control or alter the meaning of this Amendment as
set forth in the text hereof.


 


* * * * * * * * *


 


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IN WITNESS WHEREOF, the parties have executed this
Amendment as of the day and year first above written.


 


	
   

  	
  BIRDS
  EYE HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  By: its Management
  Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Ratzan

  
	
   

  	
  Name:

  	
  Brian Ratzan

  
	
   

  	
  Title:

  	
  Representative

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDER
  OF A MAJORITY OF CLASS A UNITS:

  
	
   

  	
   

  	
   

  
	
   

  	
  VESTAR/AGRILINK
  HOLDINGS LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Capital Partners
  IV, L.P.,

  
	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates IV,
  L.P.,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Vestar Associates
  Corporation IV,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel O’Connell

  
	
   

  	
  Name:

  	
  Daniel O’Connell

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HOLDER
  OF A MAJORITY OF CLASS B UNITS:

  
	
   

  	
   

  
	
   

  	
  PRO-FAC COOPERATIVE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen R. Wright

  
	
   

  	
  Name:

  	
  Stephen R. Wright

  
	
   

  	
  Title:

  	
  General Manager and CEO

  



 

















 


	
   

  	
  HOLDERS
  OF CLASS E UNITS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ Patrick Rose

  
	
   

  	
   

  	
  Patrick Rose

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ David Vermylen

  
	
   

  	
   

  	
  David Vermylen

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Gregg Ostrander 

  
	
   

  	
   

  	
  Gregg Ostrander

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Steve Donovan

  
	
   

  	
   

  	
  Steve Donovan

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Kevin Mundt

  
	
   

  	
   

  	
  Kevin Mundt

  



 


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