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Consent And Amendment Number One To Senior Term Loan Credit Agreement

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Sectors: Food, Beverages and Tobacco
Governing Law: New York, View New York State Laws
Effective Date: December 03, 2009
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Exhibit 10.43

CONSENT AND AMENDMENT NUMBER ONE

TO SENIOR TERM LOAN CREDIT AGREEMENT

This CONSENT AND AMENDMENT NUMBER ONE TO SENIOR TERM LOAN CREDIT AGREEMENT, (this " Amendment" ), dated as of December 3, 2009, is entered into by and among BUMBLE BEE FOODS, LLC , a Delaware limited liability company (" Borrower" ), CONNORS BROS. CLOVER LEAF SEAFOODS COMPANY, successor by amalgamation with 3231021 Nova Scotia Company, a Nova Scotia unlimited company (" Connors Bros." ), the lenders identified on the signature pages hereof (such lenders, and the other lenders party to the below-defined Credit Agreement, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a " Lender" and collectively as the " Lenders" ), and WELLS FARGO FOOTHILL, LLC , a Delaware limited liability company, as the arranger and administrative agent for the Lenders (" Agent" ), and in light of the following:

W I T N E S S E T H

WHEREAS , Borrower, Connors Bros., Lenders, and Agent are parties to that certain Senior Term Loan Credit Agreement, dated as of November 18, 2008 (as amended, restated, supplemented, or otherwise modified from time to time, the " Credit Agreement" );

WHEREAS, Borrower has requested that Agent and the Lenders consent to (i) the transfer in an aggregate amount not to exceed $600,000 by the Loan Parties (through any direct or indirect, wholly-owned Subsidiary of Connors) to Connors, either in the form of a distribution or a repayment by the Loan Parties of all or a portion of the principal of any intercompany obligation between or among any direct or indirect, wholly-owned Subsidiary of Connors, which aggregate amount shall be used by Connors on the Senior Secured Note Closing Date to acquire from Borrower that certain Promissory Note, dated as of November 16, 2009, issued by AFT Holdings, Inc., a Louisiana corporation, in favor of Borrower in the original principal amount of $600,000 (the " Designated Transfer" ) for an aggregate purchase price of $600,000, (ii) the prepayment in full of the Subordinated Indebtedness out of the Net Cash Proceeds of the Designated Senior Note Indebtedness (the " Designated Subordinated Indebtedness Prepayment" ), (iii) the prepayment of the Term Loan on a non pro rata basis by only prepaying that portion of the Term Loan held by Regiment Capital Special Situations Fund IV, L.P. (the " Designated Term Loan Prepayment" ), (iv) the transfer in an aggregate amount not to exceed $1,800,000 by the Loan Parties (through any direct or indirect, wholly-owned Subsidiary of Connors) to Connors, either in the form of a distribution or a repayment by the Loan Parties of all or a portion of the principal of any intercompany obligation between or among any direct or indirect, wholly-owned Subsidiary of Connors, which aggregate amount shall be used by Connors to purchase the Stock of BB Co-Invest L.P. held by each of Plainfield Avalon Inc. and Kayne Anderson Mezzanine Partners (QP), L.P. (the " Stock Purchase Transaction" ), and (v) the payment of a financial advisory fee or structuring fee to the Equity Sponsor or its Affiliates in an aggregate amount not to exceed 1% of the face amount of the Senior Secured Notes (the " Advisory Fee Transaction" ; and together with the Designated Transfer, the Designated Subordinated Indebtedness Prepayment, the Designated Term Loan Prepayment, and the Stock Purchase Transaction, the " Designated Transactions" );

WHEREAS, Borrower has requested that Agent and the Lenders waive compliance with the covenant set forth in Section 5.18(a) of the Credit Agreement;

WHEREAS, Borrower has requested that Agent and Lenders make certain amendments to the Credit Agreement; and


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WHEREAS, upon the terms and conditions set forth herein, the parties hereby agree to amend the Credit Agreement as follows.

NOW, THEREFORE , in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Defined Terms . Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement, as amended hereby.

2. Amendments to Credit Agreement .

(a) Schedule 1.1 to the Credit Agreement is hereby amended by adding, or amending and restating, as applicable, the following defined terms in alphabetical order therein:

" BBCC" means Bumble Bee Capital Corp., a Delaware corporation.

" Capital Expenditures" means, with respect to any Person for any period, the aggregate of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, except to the extent that such expenditures are (i) financed with the proceeds of Purchase Money Indebtedness, or (ii) paid in respect of fees, premiums, charges or expenses that are capitalized in connection with (a) the Designated Subordinated Indebtedness Prepayment, (b) the Stock Purchase Transaction, (c) the transactions contemplated by the Senior Secured Note Documents, (d) the First Amendment, (e) the Third Amendment to Revolving Credit Agreement, or (f) the Designated Term Loan Prepayment.

" CLDH" means Clover Leaf Dutch Holdings, LLC, a Delaware limited liability company.

" Closing Date Term Loan" has the meaning specified therefor in Section 2.2(a) of the Agreement.

" Closing Date Term Loan Amount" means $133,000,000.

" Closing Date Term Loan Commitment" means, with respect to each Lender, its Closing Date Term Loan Commitment, and, with respect to all Lenders, their Closing Date Term Loan Commitments, in each case as such Dollar amounts are set forth beside such Lender' s name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.

" Clover Leaf Seafood" means Clover Leaf Seafood B.V., a private company with limited liability, incorporated under the laws of the Netherlands.

" Clover Leaf Seafood 2" means Clover Leaf Seafood 2 B.V., a private company with limited liability, incorporated under the laws of the Netherlands.

" Connors Holdco" means Connors Bros. Holdings, L.P., a Delaware limited partnership.

" Designated Subordinated Indebtedness Prepayment" shall mean the prepayment in full of the Subordinated Indebtedness.


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" Designated Term Loan Prepayment" shall mean the prepayment of the Term Loan on a non-pro rata basis by prepaying only that portion of the Term Loan held by Regiment Capital Special Situations Fund IV, L.P.

" Disqualified Person" means, with respect to any assignment, delegation or participation or any proposed assignment, delegation or participation, (a) so long as no Event of Default has occurred and is continuing, any Person that the transferring Lender knows (at the time of such assignment, delegation or participation or proposed assignment, delegation or participation) is a Specified Lender, and (b) so long as no Event of Default under Section 8.1 , 8.2(a)(i) (solely to the extent arising from failure to deliver any financial statement pursuant to Section 5.1 within twice the number of days after each month, fiscal quarter or fiscal year, as the case may be, as specified in Schedule 5.1 ), 8.4 or 8.5 of the Agreement has occurred and is continuing, any Person that the transferring Lender knows (at the time of such assignment, delegation or participation or proposed assignment, delegation or participation) is a Competitor of any Loan Party (if such transferring Lender obtains a representation by the Assignee or proposed Assignee that such Assignee or proposed Assignee is not a Competitor of any Loan Party, then such Lender shall be entitled to rely on such representation in determining whether such Assignee or proposed Assignee is a Competitor).

" Dutch Holdco" means Clover Leaf Seafood Cof6peratief U.A., a cooperative association incorporated under the laws of the Netherlands.

" Dutch Security Documents" means such guaranty agreements, pledge agreements and other security documents as Agent shall reasonably require, which in each case are governed by the laws of the Netherlands and which are otherwise in form and substance reasonably satisfactory to Agent.

" EBITDA" means, with respect to any fiscal period, the Company' s combined net earnings (or loss), minus, to the extent increasing net earnings for such fiscal period and without duplication, extraordinary gains and interest income, plus, to the extent reducing net earnings for such fiscal period and without duplication, Non-Cash Charges, interest expense, federal, state, local, and foreign income tax expense, payments made in respect of fees, premiums, charges or expenses in connection with (i) the Designated Subordinated Indebtedness Prepayment, (ii) the Stock Purchase Transaction, (iii) the transactions contemplated by the Senior Secured Note Documents, (iv) the Third Amendment to Revolving Credit Agreement, (v) the First Amendment, or (vi) the Designated Term Loan Prepayment, and, without duplication, distributions made pursuant to Section 6.9(a) , (c) , (d) , (f) , and (g) of the Agreement, and depreciation and amortization for such period, in each case, determined on a consolidated basis in accordance with GAAP.

" Excess Cash Flow" means, with respect to any fiscal period and with respect to the Company (a) TTM EBITDA, minus without duplication (b) the sum of (i) the cash portion of Interest Expense paid during such fiscal period, (ii) the cash portion of taxes paid during such period, (iii) all scheduled and mandatory principal payments made in respect of the Term Loan during such period, (iv) the cash portion of Capital Expenditures (net of any proceeds reinvested in accordance with the proviso to Section 2.4(e)(ii) of the Agreement) made during such period, (v) payments of Cash Consideration made in respect of the purchase price for a Permitted Acquisition (in each case, to the extent such payments are not made with the proceeds of Indebtedness or any Non-Cash Consideration), (vi) all scheduled principal payments of Permitted Purchase Money Indebtedness, (vii) voluntary prepayments of the principal balance of the Term Loan, (viii) to the extent reducing net income, distributions to Connors permitted under Sections 6.9(a) , (c) , (d) , (e) , (f) , (g) and (i) of the Agreement, (ix) all payments of Senior Revolving Indebtedness under the Senior Revolving Credit Agreement so long as any such payment is accompanied by a permanent reduction of the revolving credit commitment thereunder, (x) all payments of interest and principal in respect of the Senior Secured Note Indebtedness, and (xi) all payments made in respect of fees, premiums, charges or expenses in connection with (A) the Designated Subordinated Indebtedness


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Prepayment, (B) the Stock Purchase Transaction, (C) the transactions contemplated by the Senior Secured Note Documents, (D) the First Amendment, (E) the Third Amendment to Revolving Credit Agreement, and (F) the Designated Term Loan Prepayment.

" First Amendment" means that certain Consent and Amendment Number One to Senior Term Loan Credit Agreement dated as of December 3, 2009 by and among Borrower, Canadian Opco, and the Lender Group.

" First Amendment Term Loan" has the meaning specified therefor in Section 2.2(b) of the Agreement.

" First Amendment Term Loan Amount" means $3,206,197.27.

" First Amendment Term Loan Commitment" means, with respect to each Lender, its First Amendment Term Loan Commitment, and, with respect to all Lenders, their First Amendment Term Loan Commitments, in each case as such Dollar amounts are set forth beside such Lender' s name under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.

" Fixed Charges" means, with respect to any fiscal period and with respect to the Company determined on a combined basis in accordance with GAAP, the sum, without duplication, of (a) cash Interest Expense paid during such period, (b) principal payments in respect of Indebtedness that are required to be paid during such period (and, except as otherwise set forth in the Agreement, shall not include any optional prepayment or mandatory prepayments made under the Agreement, the Senior Revolving Credit Agreement, the Senior Secured Note Documents), (c) all federal, state, foreign and local income taxes paid in cash during such period, and (d) without duplication, distributions permitted by Section 6.9(a) , (c) , (d) , (f) , and (g) , made during such period.

" Guarantors" means (a) Stinson, (b) BB Holdings, (c) Borrower, (d) each Subsidiary of Borrower, (e) Canadian Holdco, (f) Canadian Opco, (g) each Subsidiary of Canadian Opco, (h) Connors Holdco, (i) CLDH, (j) Dutch Holdco, (k) Clover Leaf Seafood, (l) Clover Leaf Seafood 2, and (m) each other Person that becomes a guarantor after the Closing Date pursuant to Section 5.11 of the Agreement, and " Guarantor" means any one of them.

" Indebtedness" means (a) all obligations for borrowed money, (b) all obligations evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of a Person or its Subsidiaries, irrespective of whether such obligation or liability is assumed, (e) all obligations to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business but including any earn-out obligation upon such obligation becoming a liability on the balance sheet of such Person in accordance with GAAP), (f) all obligations owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) Prohibited Preferred Stock issued by any Loan Party to a Person that is not a Loan Party, and (h) any obligation guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be


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liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness described in clause (d) above shall be the lower of the amount of the obligation and the fair market value of the assets securing such obligation; provided that Indebtedness shall not include customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under the Agreement.

" Intercompany Note Subordination Agreement" means an amended and restated subordination agreement executed and delivered by each maker and each holder with respect to any of the BBF Note, the Subordinated Canadian Holdco Note, the Subordinated CBCL Note, and the Subordinated Dutch Holdco Note.

" LIBOR Rate Margin" means 4.00 percentage points.

" Material Contract" means, with respect to any Person, (a) each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $5,000,000 or more (other than (x) purchase orders in the ordinary course of the business of such Person or such Subsidiary, (y) contracts that by their terms may be terminated by such Person or Subsidiary in the ordinary course of its business upon less than 60 days notice without penalty or premium and (z) leases of real property), (b) the Management Agreement and (c) the Acquisition Agreement.

" Parallel Debt" has the meaning specified therefor in Section 15.18(a) of the Agreement.

" Permitted Intercompany Advances" means loans made by (a) Borrower to its U.S./Canadian Subsidiaries that are Loan Parties, (b) Canadian Opco to its U.S./Canadian Subsidiaries that are Loan Parties, (c) a U.S./Canadian Subsidiary of Borrower that is a Loan Party to another U.S./Canadian Subsidiary of Borrower that is also a Loan Party, (d) U.S./Canadian Subsidiary of Canadian Opco that is a Loan Party to another U.S./Canadian Subsidiary of Canadian Opco that is also a Loan Party, (e) a non-Loan Party to another non-Loan Party, (f) Borrower to Canadian Opco so long as (at the time when made) no Event of Default has occurred and is continuing or would result therefrom, and (g) Canadian Opco to Borrower so long as (at the time when made) no Event of Default has occurred and is continuing or would result therefrom.

" Principal Obligations" means, with respect to the Dutch Security Documents, all present and future Obligations (whether actual or contingent and whether owed jointly or severally) of the Loan Parties to the Loan Group (or any of them) under each or any of the Loan Documents.

" Senior Secured Note" means the Senior Secured Notes due in December 2015 issued pursuant to the Senior Secured Note Indenture.

" Senior Secured Note Closing Date" means the closing date of the initial issuance of the Senior Secured Notes.

" Senior Secured Note Documents" means the Senior Secured Note Indenture and the agreements, documents and instruments executed in connection therewith, including, without limitation, the Senior Secured Notes.

" Senior Secured Note Indebtedness" means the Indebtedness incurred by the Borrower, Canadian Opco, and BBCC and guarantied by the other Loan Parties under the Senior Secured Note Documents in an aggregate principal amount not to exceed the lesser of (a) the aggregate principal amount of the Senior Secured Notes funded on the Senior Secured Note Closing Date, and (b) $225,000,000 (such lesser amount, the " Senior Secured Note Principal Cap" ).


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" Senior Secured Note Indenture" means the Indenture, dated December 2009, governing the Senior Secured Notes, by and among Borrower, BBCC, and Canadian Opco, as Issuers, and Trustee, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, and as permitted by the Agreement.

" Senior Secured Note Intercreditor Agreement" means an Intercreditor Agreement, by and among the Senior Revolving Agent, Agent, and the Trustee.

" Specified Lender" means any Person that is primarily engaged in investing in (a) Indebtedness of companies that are either in default, under bankruptcy protection or in distressed financial condition or (b) high-yield bonds that are in default or equities that are in bankruptcy.

" Stock Purchase Transaction" means the transfer in an aggregate amount not to exceed $1,800,000 by the Loan Parties (through any direct or indirect, wholly-owned Subsidiary of Connors) to Connors, either in the form of a distribution or a repayment by the Loan Parties of all or a portion of the principal of any intercompany obligation between or among any direct or indirect, wholly-owned Subsidiary of Connors, which aggregate amount shall be used by Connors to purchase the Stock of BB Co-Invest L.P. held by each of Plainfield Avalon Inc. and Kayne Anderson Mezzanine Partners (QP), L.P.

" Subordinated Dutch Holdco Note" means that certain promissory note to be issued on the Closing Date by Dutch Holdco, as maker, to CLDH, as payee, for C$109,697,325, which shall provide for all interest and principal to be payable on a maturity date that is the ninth anniversary of the Closing Date, and which shall be subordinated in all respects to any payments due under any Loan Document.

" Term Loan" has the meaning specified therefor in Section 2.2(b) of the Agreement.

" Term Loan Commitment" means, collectively, the Closing Date Term Loan Commitment and the First Amendment Term Loan Commitment.

" Third Amendment to Revolving Credit Agreement" means that certain Consent and Third Amendment to Senior Revolving Credit Agreement dated as of December 3, 2009 by and among the Borrower, Canadian Opco, and the Lender Group.

" Trustee" means Deutsche Bank Trust Company Americas, in the capacity as the " Trustee" (as such term is defined in the Senior Secured Note Indenture) and any other Person acting in a similar capacity under any amendment, restatement, supplement, replacement or refinancing thereof.

" U.S./Canadian Subsidiary" means a Subsidiary that is organized under the laws of a state within the United States or a province within Canada.

(b) Schedule 1.1 to the Credit Agreement is hereby amended by deleting the following defined terms in their entirety: (i) EBITDA Excess Availability Test, (ii) Funds Flow Agreement, (iii) Senior Subordinated Note, (iv) Subordinated Agent, (v) Subordinated Indebtedness, (vi) Subordinated Lenders, (vii) Subordinated Loan Documents, (viii) Subordinated Note Agreement, (ix) Subordination Agreement, and (x) Syndication Letter.


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(c) The definition of " Base LIBOR Rate" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) deleting the phrase " 3.00 percent per annum" in clause (a) of such definition and (ii) replacing it with the phrase " 1.50 percent per annum" .

(d) The definition of " Base Rate" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) deleting the phrase " 5.00 percent per annum" in clause (a) of such definition and (ii) replacing such phrase with " 3.50 percent per annum" .

(e) The definition of " Base Rate Margin" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) deleting the phrase " 5.25 percent per annum" and (ii) replacing such phrase with " 3.00 percent per annum" .

(f) The definition of " Change of Control" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) deleting the text " or" immediately preceding clause (e), (ii) deleting the text " ;" immediately following clause (e) and replacing such text with " , or" , and (iii) adding the following new clause (f) immediately following clause (e):

" (f) Connors Holdco ceases to own, directly or indirectly, 100% of the Stock of (i) U.S. Borrower, (ii) Canadian Opco, and (iii) BBCC;" .

(g) The definition of " Loan Documents" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) deleting the reference to " the Subordination Agreement" appearing therein, (ii) replacing such reference with " the Senior Secured Note Intercreditor Agreement" , and (iii) adding the reference to " the Cayman Security Documents, the Dutch Security Documents" immediately following the reference to " the Trademark Security Agreement," .

(h) The definition of " Permitted Acquisitions" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by amending and restating clauses (c), (d), (g), (k) and (l) of such definition as follows:

" (c) Borrower has provided Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably agreed upon by the Loan Parties and Agent) created by adding the historical combined financial statements of the Loan Parties (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, Loan Parties and their respective Subsidiaries (i) would have been in compliance with the financial covenant in Section 7 of the Agreement for the four (4) fiscal quarter period ended immediately prior to the proposed date of consummation of such proposed Acquisition (determined as if the Fixed Charge Coverage Ratio Excess Availability Test had not been satisfied), and (ii) are projected to be in compliance with the financial covenant in Section 7 for the four (4) fiscal quarter period ended one year after the proposed date of consummation of such proposed Acquisition (determined as if the Fixed Charge Coverage Ratio Excess Availability Test had not been satisfied).

(d) Borrower has provided Agent with its due diligence package relative to the proposed Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow statements of the Person to be acquired, all prepared on a basis consistent with such Person' s historical financial


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statements, together with appropriate supporting details and a statement of underlying assumptions for the 1 year period following the date of the proposed Acquisition, on a quarter by quarter basis), in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent,

(g) Borrower has provided Agent with written notice of the proposed Acquisition at least 15 Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than 5 Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the acquisition agreement and other material documents relative to the proposed Acquisition, which agreement and documents must be reasonably acceptable to Agent,

(k) the purchase consideration payable in respect of all Permitted Acquisitions (including such Acquisition and including earn-out obligations and other deferred payment obligations) shall not exceed $35,000,000 in the aggregate; provided, however, that no more than $10,000,000 of the purchase consideration payable in respect of any single Acquisition or series of related Acquisitions shall consist of Cash Consideration, and

(l) such Acquisition is permitted under the Senior Secured Note Indenture, so long as such agreement, or any successor thereto, is still in force and effect."

(i) The definition of " Permitted Indebtedness" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by amending and restating clauses (g) and (m) of such definition as follows:

" (g) Senior Secured Note Indebtedness and any Refinancing Indebtedness in respect thereof,

(m) Permitted Intercompany Advances and the Indebtedness evidenced by (i) the BBF Note, (ii) the Subordinated CBCL Note, (iii) the Subordinated Canadian Holdco Note, and (iv) the Subordinated Dutch Holdco Note, so long as such Indebtedness is subject to the terms of the Intercompany Subordination Agreement or Intercompany Note Subordination Agreement, as applicable," .

(j) The definition of " Permitted Investments" appearing in Schedule 1.1 to the Credit Agreement is hereby amended by (i) amending and restating clause (s) of such definition as follows and (ii) adding new clauses (t) and (u) as follows:

" (s) Investments in another Person in an aggregate amount after the Closing Date not to exceed $5,000,000 so long as (i) no Event of Default has occurred and is continuing or would result therefrom, and (ii) Excess Availability is at least $25,000,000 immediately after giving effect to such Investment,

(t) the Guaranty, dated as of November 16, 2009, issued by J. Douglas Hines, in favor of Borrower, as amended, amended and restated, supplemented or modified from time to time, and

(u) the Second Lien Pledge and Security Agreement, dated as of November 16, 2009, by and between J. Douglas Hines and Borrower, as amended, amended and restated, supplemented or modified from time to time, and all rights and remedies that Borrower has with respect to the collateral thereunder (including the right to own, sell and/or hold collateral covered thereby)."


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(k) The definition of " Permitted Liens" appearing in Schedule 1.1 to the Credit Agreement is
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