EX-10.1






EXHIBIT
10.1



Execution Copy




Assumption Agreement




     This Assumption Agreement (this “Agreement”) is entered into as of December 31, 2008 by Bob
Evans Farms, Inc., an Ohio corporation (the “Successor Corporation”), in favor of the persons or
entities listed on Schedule A attached to the Note Purchase Agreement (defined below) and their
successors (collectively, the “Noteholders”), each of which is a party to (or a transferee of a
party to) that certain Note Purchase Agreement dated as of July 28, 2008, among Bob Evans Farms,
Inc., a Delaware corporation (the “Parent Guarantor”), and BEF Holding Co., Inc., a Delaware
corporation (the “Issuer”), and the several Noteholders (the “Note Purchase Agreement”).
Capitalized terms used herein without definition (including, without limitation, in Exhibits A-1,
A-2, B, C, D and E hereto) shall have the meanings assigned to such terms in the Note Purchase
Agreement.



Witnesseth:




     Whereas, pursuant to the Agreement of Merger dated as of December 31, 2008, between
the Successor Corporation and the Issuer, the Issuer has been merged with and into the Successor
Corporation (the “Transaction”) and, as a result of the Transaction, the Successor Corporation has
assumed all of the rights, duties, liabilities and obligations of the Issuer, including, without
limitation, all of the rights, duties, liabilities and obligations of the Issuer under the Note
Purchase Agreement;



     Whereas, the Successor Corporation, as the surviving corporation of the Transaction,
shall receive direct and indirect benefits by reason of the investments made by the Noteholders
under the Note Purchase Agreement (which benefits are hereby acknowledged);



     Whereas, the obligations of the Issuer under the Note Purchase Agreement and the
Notes, have been guaranteed by the Parent Guarantor, pursuant to the terms and provisions of
Section 11 of the Note Purchase Agreement (the “Parent Guaranty”) and by the Subsidiary Guarantor
pursuant to that certain Subsidiary Guaranty Agreement dated as of July 28, 2008 (the “Subsidiary
Guaranty”);



     Whereas, the Note Purchase Agreement requires, as a condition precedent to the
consummation of the Transaction, that the Successor Corporation execute and deliver this Agreement;
and



     Whereas, the Note Purchase Agreement further requires, as a condition precedent to
the consummation of the Transaction, that the Parent Guarantor and the Subsidiary Guarantor each
confirm in writing their respective obligations under the Note Purchase Agreement and the
Subsidiary Guaranty, as applicable.



     Now Therefore, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Successor
Corporation hereby agrees as follows:



 









 






          1. Assumption. (a) The Successor Corporation, as the surviving corporation of the
Transaction, hereby unconditionally and expressly assumes, confirms and agrees to perform
and observe each and every one of the covenants, rights, promises, agreements, terms,
conditions, obligations, duties and liabilities of the Issuer under the Note Purchase
Agreement and the Notes and under any documents, instruments or agreements executed and
delivered or furnished, or to be executed and delivered or furnished, by the Issuer in
connection therewith, and to be bound by all waivers made by the Issuer with respect to any
matter set forth therein.




          (b) All references to the Issuer in the Note Purchase Agreement or any Note or any
document, instrument or agreement executed and delivered or furnished, or to be executed and
delivered or furnished, in connection therewith shall be deemed to be references to the
Successor Corporation, except for references to the Issuer relating to its status prior to
the consummation of the Transaction. Upon the written request of any holder of Notes, the
Successor Corporation will issue a replacement Note in the form of Exhibit A-1 or Exhibit
A-2 hereto, as applicable (each, a “Replacement Note” and collectively, the “Replacement
Notes”), in exchange for such holder’s existing Note within 10 Business Days of any such
request.




          2. Representations and Warranties. The Successor Corporation hereby accepts and
assumes all obligations and liabilities of the Issuer related to each representation or
warranty made by the Issuer in the Note Purchase Agreement or any other document, instrument
or agreement executed and delivered or furnished in connection therewith. The Successor
Corporation further represents, warrants and affirms for the benefit of the Noteholders
that:




          (a) The representations and warranties set forth in Exhibit B hereto are true and
correct as of the date hereof after giving effect to the transactions contemplated hereby;




          (b) Immediately after giving effect to the Transaction, (i) the Successor Corporation
and the Parent Guarantor would have been in compliance with Section 10.3 of the Note
Purchase Agreement as of October 24, 2008, and (ii) no Default or Event of Default has
occurred and is continuing, or as a result of the transactions contemplated hereby, will
occur under the Note Purchase Agreement; and




          (c) The Successor Corporation is a solvent corporation organized and existing under the
laws of the State of Ohio.




          3. Opinions of Counsel. The Noteholders shall receive opinions in form and substance
reasonably satisfactory to the Noteholders from counsel to the Successor Corporation
substantially in the form of Exhibit C hereto.




          4. Further Assurances. At any time and from time to time, upon any Noteholder’s
request and at the sole expense of the Successor Corporation, the Successor Corporation will
promptly execute and deliver any and all further instruments and



- 2 -









 







documents and will take such further action as such Noteholder may reasonably deem necessary
to effect the purposes of this Agreement.




          5. Requisite Approval; Fees. This Agreement shall be effective as of the date first
written above upon the satisfaction of the following conditions precedent: (a) the Successor
Corporation shall have executed this Agreement and delivered a duly executed copy of this
Agreement to the Noteholders; (b) the Parent Guarantor shall have executed and delivered the
acknowledgment, consent and ratification of the Note Purchase Agreement to the Noteholders,
in the form attached hereto as Exhibit D; (c) the Subsidiary Guarantor shall have executed
and delivered the acknowledgment, consent and ratification of the Subsidiary Guaranty to the
Noteholders, in the form attached hereto a Exhibit E; and (d) the Successor Corporation
shall have paid all reasonable out-of-pocket expenses incurred by the Noteholders in
connection with the transactions contemplated by this Agreement, including without
limitation the reasonable fees, expenses and disbursements of Chapman and Cutler LLP which
are reflected in statements of counsel rendered on or prior to the date of this Agreement.




          6. Amendment, Etc. No amendment or waiver of any provision of this Agreement shall be
effective, unless the same shall be in writing and executed in accordance with the
provisions of the Note Purchase Agreement.




          7. Binding Effect; Assignment. This Agreement shall be binding upon the Successor
Corporation, and shall inure to the benefit of the Noteholders and their respective
successors and assigns.




          8. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.



[Remainder of Page Intentionally Blank]




- 3 -









 








     In Witness Whereof, the undersigned has caused this Agreement to be duly executed and
delivered by its duly authorized officer on the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	Bob Evans Farms, Inc., an Ohio corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tod P. Spornhauer	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Tod P. Spornhauer	 	 
	 

	 	 	 	Title:	 	Senior Vice
President — Finance,
Controller, Assistant Treasurer and Assistant
Secretary	 	 






- 4 -












 





Form of Series A Note




Bob Evans Farms, Inc.




6.39% Senior Note, Series A, due July 28, 2014




			
	 	 	 
	No. RA-[     ]
	 	[Date]
	$[               ]
	 	PPN 096761 A*2






     For Value Received, Bob Evans Farms, Inc., an Ohio corporation (the
“Issuer”), hereby promises to pay to [___], or its registered assigns, the principal
sum of $[___] Dollars on July 28, 2014, with interest (computed on the basis of a
360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.39% per
annum from the date hereof, payable quarterly, on the 28th of each January, April, July and October
in each year, commencing October 28, 2008, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole
Amount (as defined in the Note Purchase Agreement referred to below), payable quarterly as
aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.39% or (ii) 2% over the rate of interest publicly
announced by National City Bank from time to time in Cleveland, Ohio as its “base” or “prime” rate.
Capitalized terms used but not defined herein shall have the meaning assigned thereto in the Note
Purchase Agreement.



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of JP Morgan
Chase Bank in New York, New York or at such other place as the Issuer shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



     This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to
the Note Purchase Agreement, dated as of July 28, 2008 among Bob Evans Farms, Inc., a
Delaware corporation (the “Parent Guarantor”), BEF Holding Co., Inc., a Delaware
corporation, and the institutional investors named therein (as assumed by the Issuer pursuant to
the Assumption Agreement dated as of December 31, 2008, and as further amended, supplemented or
modified from time to time, the “Note Purchase Agreement”), and this Note is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and
(ii) to have made the representations set forth in Sections 6.1 and 6.2 of the Note Purchase
Agreement, provided that with respect to Section 6.2 such holder may (in reliance upon information
provided by the Issuer, which shall not be unreasonably withheld) make a representation to the
effect that the purchase by such holder of any Note will not constitute a non-exempt prohibited
transaction under section 406(a) of ERISA.



Exhibit A-1

(to Assumption Agreement)




 









 





     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note of the same Series for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for registration of transfer,
the Issuer may treat the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Issuer will not be affected by any
notice to the contrary.



     Pursuant to (i) Section 11 of the Note Purchase Agreement and (ii) that certain Subsidiary
Guaranty Agreement dated as of July 28, 2008 (as from time to time amended, joined, supplemented or
otherwise modified, the “Subsidiary Guaranty”), respectively, the Parent Guarantor and the
Subsidiary Guarantor have absolutely and unconditionally guarantied the payment in full of the
principal of, the Make-Whole Amount, if any, and interest on this Note and the performance by the
Issuer of all of its obligations contained in the Note Purchase Agreement all as more fully set
forth in said Note Purchase Agreement.



     The Issuer will make required prepayments of principal on the date and in the amount specified
in the Note Purchase Agreement. This Note is also subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but
not otherwise.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such state that would require the application of the laws of a jurisdiction other than such
State.



	 	 	 	 	 
	 	Bob Evans Farms, Inc.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-1-2









 





Form of Series B Note




Bob Evans Farms, Inc.




6.39% Senior Note, Series B, due July 28, 2013




			
	 	 	 
	No. RB-[     ]
	 	[Date]
	$[               ]
	 	PPN 096761 A@0






     For Value Received, the undersigned, Bob Evans Farms, Inc., an Ohio
corporation (the “Issuer”), hereby promises to pay to [___], or its registered assigns,
the principal sum of $[___] Dollars on July 28, 2013, with interest (computed on
the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate
of 6.39% per annum from the date hereof, payable quarterly, on the 28th of each January, April,
July and October in each year, commencing October 28, 2008, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue payment (including
any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of
any Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable
quarterly as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate
per annum from time to time equal to the greater of (i) 8.39% or (ii) 2% over the rate of interest
publicly announced by National City Bank from time to time in Cleveland, Ohio as its “base” or
“prime” rate. Capitalized terms used but not defined herein shall have the meaning assigned
thereto in the Note Purchase Agreement.



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of JP Morgan
Chase Bank in New York, New York or at such other place as the Issuer shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



     This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to
the Note Purchase Agreement, dated as of July 28, 2008 among Bob Evans Farms, Inc., a
Delaware corporation (the “Parent Guarantor”), BEF Holding Co., Inc., a Delaware
corporation, and the institutional investors named therein (as assumed by the Issuer pursuant to
the Assumption Agreement dated as of December 31, 2008, and as further amended, supplemented or
modified from time to time, the “Note Purchase Agreement”), and this Note is entitled to the
benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and
(ii) to have made the representations set forth in Sections 6.1 and 6.2 of the Note Purchase
Agreement, provided that with respect to Section 6.2 such holder may (in reliance upon information
provided by the Issuer, which shall not be unreasonably withheld) make a representation to the
effect that the purchase by such holder of any Note will not constitute a non-exempt prohibited
transaction under section 406(a) of ERISA.



Exhibit A-2

(to Assumption Agreement)




 









 





     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note of the same Series for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for registration of transfer,
the Issuer may treat the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the Issuer will not be affected by any
notice to the contrary.



     Pursuant to (i) Section 11 of the Note Purchase Agreement and (ii) that certain Subsidiary
Guaranty Agreement dated as of July 28, 2008 (as from time to time amended, joined, supplemented or
otherwise modified, the “Subsidiary Guaranty”), respectively, the Parent Guarantor and the
Subsidiary Guarantor have absolutely and unconditionally guarantied the payment in full of the
principal of, the Make-Whole Amount, if any, and interest on this Note and the performance by the
Issuer of all of its obligations contained in the Note Purchase Agreement all as more fully set
forth in said Note Purchase Agreement.



     This Note is subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not otherwise.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such state that would require the application of the laws of a jurisdiction other than such
State.



	 	 	 	 	 
	 	Bob Evans Farms, Inc.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-2-2









 





Acknowledgment and Consent




     The undersigned acknowledges receipt of a copy of, and hereby consents to, the Assumption
Agreement, ratifies and confirms its continued guarantee of the obligations of the Issuer under the
Note Purchase Agreement and the Notes, as assumed under this Assumption Agreement by the Successor
Corporation, pursuant to the terms of the Note Purchase Agreement, and confirms that all of the
terms, provisions and conditions thereof continue unimpaired and remain in full force and effect on
this 31st day of December, 2008.



	 	 	 	 	 
	 	Bob Evans Farms, Inc., a Delaware
corporation

 	 
	 	By:  	/s/
Tod P. Spornhauer	 
	 	 	Name:  	Tod P. Spornhauer	 
	 	 	Title:  	Senior Vice President — Finance,
Controller, Assistant Treasurer and Assistant Secretary	 
	 



Exhibit D

(to Assumption Agreement)





 









 





Acknowledgment and Consent




     The undersigned acknowledges receipt of a copy of, and hereby consents to, the Assumption
Agreement, ratifies and confirms its continued guarantee of the obligations of the Issuer under the
Note Purchase Agreement and the Notes, as assumed under this Assumption Agreement by the Successor
Corporation, pursuant to the terms of the Subsidiary Guaranty, and confirms that all of the terms,
provisions and conditions thereof continue unimpaired and remain in full force and effect on this
31st day of December, 2008.



	 	 	 	 	 
	 	Mimi’s Café, LLC, a Delaware limited
liability company

 	 
	 	By:  	/s/
Tod P. Spornhauer	 
	 	 	Name:  	Tod P. Spornhauer	 
	 	 	Title:  	Manager, Assistant Treasurer and Assistant
Secretary	 
	 



Exhibit E

(to Assumption Agreement)