EXHIBIT 10.31
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (the "Third
Amendment") dated as of December 15, 2000 among PERFORMANCE
FOOD GROUP COMPANY, a Tennessee corporation (the
"Borrower"), the lenders parties to the Credit Agreement
referred to below (the "Lenders"), and FIRST UNION NATIONAL
BANK, as administrative agent (the "Administrative Agent")
for the Lenders thereunder.
PRELIMINARY STATEMENTS:
The Borrower, the Lenders and the Administrative Agent
have entered into a Credit Agreement dated as of March 5,
1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the
terms defined therein being used herein as therein defined
unless otherwise defined herein).
The Borrower has informed the Administrative Agent and
the Lenders that it intends to enter into a receivables
purchase facility (the "Receivables Purchase Facility").
The Administrative Agent and the Required Lenders are,
on the terms and conditions stated below, willing to grant
the request of the Borrower to amend the Credit Agreement,
and the Borrower and the Required Lenders have agreed to
amend the Credit Agreement as hereinafter set forth.
Section 1. Third Amendment to Credit Agreement.
The Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set
forth in Section 2, hereby amended as follows:
(a) Amendment of Definition: The definition of
"Debt" in Section 1.1 of the Credit Agreement is hereby
amended by
(i) deleting the "and" at the end of
clause (g) in its entirety,
(ii) by inserting the word "and" at the
end of clause (h); and
(iii) by adding the following language
to the end of such definition:
and, (i) although the parties
acknowledge that asset
securitization facilities that
comply with Section 10.6(e) may not
constitute indebtedness of the
Borrower under GAAP, nevertheless,
solely for purposes of determining
compliance with the terms of this
Agreement, all asset securitization
facilities, including the
Receivables Purchase Facility,
shall be treated as Debt.
(b) Addition of Definitions. Section 1.1 of the
Credit Agreement is amended by the addition of the
following defined term (in alphabetical order):
"Consolidated Assets" shall mean, at any
time, the total assets of Borrower and its
Subsidiaries determined on a Consolidated
basis in accordance with GAAP.
"Disposition" shall mean the sale,
lease, transfer or other disposition of
property (including without limitation the
transfer or issuance of shares or equity
interests in any Subsidiary) but shall not
include any public taking or condemnation,
and "Dispose of" and "Disposed of" shall have
a corresponding meaning to Disposition. The
term Disposition shall not include an
exchange of assets, provided that the assets
involved in such exchange are similar in
function in that after giving effect to such
exchange there has not been (A) a Material
Adverse Effect upon Borrower and its
Subsidiaries taken as a whole, (B) any
material deterioration of cash flow
generation from or in connection with such
assets, or (C) any material deterioration in
the overall quality of plant, property and
equipment of Borrower and its Subsidiaries
taken as a whole. An "exchange" shall be
deemed to have occurred if each of the
transactions involved shall have been
consummated within a six-month period.
"Fair Market Value" shall mean, at any
time, the sale value of property that would
be realized in an arm's length sale at such
time between an informed and willing buyer,
and an informed and willing seller, under no
compulsion to buy or sell, respectively.
"Receivables Purchase Facility" means a
receivables purchase facility as permitted
hereunder.
"Third Amendment to Credit Agreement"
means the Third Amendment to Credit
Agreement, dated as of December 15, 2000 and
effective as provided therein, by and among
the Borrower, the Lenders party thereto, and
the Administrative Agent.
(c) Section 10.1 of the Credit Agreement is
hereby amended as follows:
(i) by deleting the word "and" at the
end of clause (i);
(ii) by inserting the word "and" at
the end of clause (j); and
(iii) by inserting new clause (k) as
follows:
(k) the Receivables Purchase
Facility so long as such
facility complies with the
terms and conditions of
Section 10.6(e).
(d) Section 10.3 is hereby amended as follows:
(i) by deleting the word "and" at the
end of clause (g);
(ii) by deleting the period at the end
of clause (h) and inserting "; and" in lieu
thereof; and
(iii) by inserting new clause (i) to
read in its entirety as follows:
(i) Liens on or ownership
interest in accounts
receivable granted in
connection with the
Receivables Purchase Facility.
(e) Section 10.6 is hereby amended as follows:
(i) by deleting the word "and" at the
end of clause (c);
(ii) by deleting the period at the end
of clause (d) and inserting "; and" in lieu
thereof;
(iii) by inserting a new clause (e)
to read in its entirety as set forth below:
(e) Borrower or any Subsidiary may Dispose of any other of
its assets so long as immediately after giving effect to
such Disposition:
(i) the consideration for such assets represents Fair
Market Value of such assets at the time of such Disposition;
(ii) the cumulative net book value of all such assets
Disposed of by Borrower and its Subsidiaries during any
period of twelve (12) consecutive calendar months does not
exceed 15% of Consolidated Assets determined as of the most
recently completed fiscal year. The net book value of any
assets shall be determined as of the respective date of
Disposition of those assets;
(iii) the Borrower provides to the Administrative Agent
an opinion of counsel to the Borrower which provides that
the Disposition is a true sale; and
(iv) the Person to which any receivables are sold is a
bankruptcy remote entity.
For purposes of this Section
10.6(e), the sale of ownership
interests in receivables to third
parties under the Receivables
Purchase Facility or any similar
facility shall constitute a sale of
assets based upon the net book
value of the receivables in which
the certificates sold to third
parties represent an ownership
interest. To the extent that
receivables are repaid or
repurchased, no additional sale of
assets shall be deemed to have
taken place upon the transfer of
additional receivables to the
holders of the certificates
evidencing the ownership interests
therein so long as the aggregate
net book value of receivables in
which the holders of the
certificates have an ownership
interest is not increased over the
amount initially transferred.
(f) Article IX is hereby amended by adding a new
Section 9.4 to read in its entirety as follows:
"Ratio of Debt to EBITDA Plus ELLF
Rents" As of any fiscal quarter
end, permit the ratio on such date
of (a) Total Debt to (b) the sum of
(i) EBITDA for the immediately
preceding four fiscal quarters
(which shall include, to the extent
not already included, the
unadjusted EBITDA of any Permitted
Acquisition for such period) plus
(ii) rent payments under the ELLFs
during such period, to be greater
than 3.00 to 1.00.
Section 2. Conditions of Effectiveness. This Third
Amendment shall become effective when, and only when the
Administrative Agent shall have received counterparts of
this Third Amendment executed by the Borrower, the
Administrative Agent and the Required Lenders or, as to any
of the Lenders, advice satisfactory to the Administrative
Agent that such Lenders have executed this Third Amendment
and the Administrative Agent shall have additionally
received all of the following documents, each document
(unless otherwise indicated) being dated the date of receipt
thereof by the Administrative Agent (which date shall be the
same for all such documents), in form and substance
satisfactory to the Administrative Agent:
(a) Authorization and Approval Documents.
Certified copies of (i) the resolutions of Board of
Directors of the Borrower approving this Third
Amendment and (ii) all documents, evidencing other
necessary corporate action and governmental approvals,
if any, with respect to this Third Amendment, the
matters contemplated hereby and thereby;
(b) Certificate of Incumbency. A certificate of
the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of its
officers authorized to sign this Third Amendment and
other documents to be delivered hereunder;
(c) Issuance of Additional Equity. Evidence
satisfactory to the Administrative Agent that the
Borrower has received net proceeds from the Additional
Equity Issuance (as defined in the Second Amendment) in
an aggregate amount in excess of $95,000,000, all upon
terms and conditions satisfactory to the Administrative
Agent;
(d) Redi-Cut Acquisition. Evidence satisfactory
to the Administrative Agent that the Redi-Cut
Acquisition (as defined in the Second Amendment) has
been consummated and that such acquisition is a
Permitted Acquisition;
(e) Fees, Costs Expenses and Taxes. All fees,
costs, expenses and taxes set forth in Section 5 of
this Third Amendment; and
(f) Other Documents. Any other documents or
instruments reasonably requested by the Administrative
Agent in connection with the execution of this Third
Amendment.
Section 3. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of
the jurisdiction indicated at the beginning of this
Third Amendment.
(b) The execution, delivery and performance by
the Borrower of this Third Amendment and the Loan
Documents, as amended hereby, to which it is or is to
be a party are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate
action and do not contravene (i) the Borrower's charter
or by-laws, (ii) Applicable Law or any contractual
restriction binding on or affecting the Borrower,
except to the extent a breach of such contractual
restriction would not have a Material Adverse Effect.
(c) No authorization, approval or other action
by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of
this Third Amendment or any of the Loan Documents, as
amended hereby, to which it is or is to be a party.
(d) This Third Amendment and each of the other
Loan Documents, as amended hereby, to which the
Borrower is a party constitute legal, valid and binding
obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms,
except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or
similar state or federal debtor relief laws from time
to time in effect which affect the enforcement of
creditors' rights in general and the availability of
equitable remedies.
(e) The representations and warranties made by
the Borrower pursuant to Article VI of the Credit
Agreement, are true and correct with the same effect as
if made on and as of the date hereof, except for any
representation and warranty made as of an earlier date,
which such representation and warranty shall remain
true and correct as of such earlier date.
(f) No Default or Event of Default shall have
occurred and be continuing under the Credit Agreement
on the date hereof except to the extent remedied by
this Third Amendment.
Section 4. Reference to and Effect on the Loan
Documents.
(a) Upon the effectiveness of this Third
Amendment, on and after the date hereof each reference
in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring
to the Credit Agreement, and each reference in the
other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the
Credit Agreement, the Notes, and all other Loan
Documents, are and shall continue to be in full force
and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of
this Third Amendment shall not, except as expressly
provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative
Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
Section 5. Fees, Costs, Expenses and Taxes. The
Borrower agrees to pay on demand all costs and expenses of
the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and
amendment of this Third Amendment and the other instruments
and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto
and with respect to advising the Administrative Agent as to
its rights and responsibilities hereunder and thereunder.
The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings
or otherwise) of this Third Amendment and the other
instruments and documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and
expenses in connection with the enforcement of rights under
this Section 5. In addition, the Borrower shall pay any and
all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of
this Third Amendment and the other instruments and documents
to be delivered hereunder, and agrees to save the
Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
Section 6. Execution in Counterparts. This Third
Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall
constitute but one and the same agreement.
Section 7. Governing Law. This Third Amendment
shall be governed by, and construed in accordance with, the
laws of the State of North Carolina, without reference to
the conflicts or choice of laws principles thereof.
Section 8. Fax Transmission. A facsimile, telecopy
or other reproduction of this Third Amendment may be
executed by one or more parties hereto, and an executed copy
of this Third Amendment may be delivered by one or more
parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of
any party hereto, all parties hereto agree to execute an
original of this Third Amendment as well as any facsimile,
telecopy or other reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
PERFORMANCE FOOD GROUP COMPANY,
as Borrower
[CORPORATE SEAL]
By:
Name:
Title:
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:
Name:
Title:
BANK OF AMERICA N.A.,
as Lender
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Lender
By:
Name:
Title:
BANK ONE, N.A. (f/k/a THE FIRST
NATIONAL BANK OF CHICAGO),
as Lender
By:
Name:
Title:
HIBERNIA NATIONAL BANK,
as Lender
By:
Name:
Title: