EXHIBIT 10.32
FIRST AMENDMENT TO CERTAIN
OPERATIVE AGREEMENTS
THIS FIRST AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS
dated as of December __, 2000 (this "Amendment") is by and
among the parties to the Participation Agreement
(hereinafter defined) from time to time as the lessees and
as the construction agents (subject to the definition of
Lessee and Construction Agent in Appendix A to the
Participation Agreement, individually a "Lessee" or a
"Construction Agent" and collectively the "Lessees" or the
"Construction Agents"); PERFORMANCE FOOD GROUP COMPANY, a
Tennessee corporation, as the guarantor ("Guarantor"); FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually, but solely as the Owner
Trustee under the PFG Real Estate Trust 2000-1 (the "Owner
Trustee", the "Borrower" or the "Lessor"); the various banks
and other lending institutions which are parties to the
Participation Agreement from time to time as holders of
certificates issued with respect to the PFG Real Estate
Trust 2000-1 (subject to the definition of Holders in
Appendix A to the Participation Agreement, individually, a
"Holder" and collectively, the "Holders"); the various banks
and other lending institutions which are parties to the
Participation Agreement from time to time as lenders
(subject to the definition of Lenders in Appendix A to the
Participation Agreement, individually, a "Lender" and
collectively, the "Lenders"); and FIRST UNION NATIONAL
BANK, a national banking association, as the agent for the
Lenders and respecting the Security Documents, as the agent
for the Lenders and the Holders, to the extent of their
interests (in such capacity, the "Agent"). Capitalized
terms used but not otherwise defined in this Amendment shall
have the meanings set forth in Appendix A to the
Participation Agreement.
W I T N E S S E T H:
WHEREAS, the parties to this Amendment are parties to
that certain Participation Agreement dated as of June 9,
2000 (the "Participation Agreement").
WHEREAS, concurrently with this Amendment, pursuant to
Section 28.1 of the Lease, the Financing Parties have
consented to the amendment and consents set forth in the
Second Amendment to the Lessee Credit Agreement and the
Third Amendment to the Lessee Credit Agreement, each dated
as of December __, 2000 with respect to the Incorporated
Representations and Warranties and the Incorporated
Covenants.
WHEREAS, in consideration for and as a condition of the
consent from the Financing Parties to the Second Amendment
to the Lessee Credit Agreement and the Third Amendment to
the Lessee Credit Agreement, each dated as of December __,
2000, the parties hereto have agreed to amend the
Participation Agreement on the terms and conditions set
forth in this Amendment.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties to this Amendment agree as
follows:
PART I
AMENDMENTS TO THE
PARTICIPATION AGREEMENT
1. Appendix A to the Participation Agreement is
hereby amended to modify the following defined term as
follows:
"Applicable Percentage" shall mean for Eurodollar Loans
and Eurodollar Holder Advances, the appropriate applicable
percentages corresponding to the Leverage Ratio in effect as
of the most recent Calculation Date as shown below:
Applicable
Applicable Percentage
Percentage for
for Eurodollar
Pricing Eurodollar Holder
Level Leverage Ratio Loans Advances
Level I >.50 to 1.0 0.750% 1.500%
Level II >.40 to 1, but <=.50 to 1.0 0.625% 1.400%
Level III >.30 to 1, but <=.40 to 1.0 0.500% 1.250%
Level IV <=.30 to 1.0 0.425% 1.175%
The Applicable Percentage for Eurodollar Loans and
Eurodollar Holder Advances shall, in each case, be
determined and adjusted quarterly on the tenth (10th)
Business Day after receipt by the Agent of quarterly
financial statements for the Guarantor and its Subsidiaries
and the accompanying Officer's Compliance Certificate
setting forth the Leverage Ratio of the Guarantor and its
Subsidiaries as of the most recent fiscal quarter end, as
required pursuant to Sections 7.1 and 7.2 of the Lessee
Credit Agreement and, by incorporation, pursuant to Section
28.1 of the Lease (each a "Calculation Date"); provided,
however, that (i) the initial Applicable Percentage, in each
case, shall be based on Pricing Level III (as shown above)
and shall remain at Pricing Level III until the next
occurring Calculation Date and, thereafter, the Pricing
Level shall be determined by the then current Leverage
Ratio, and (ii) if the Guarantor fails to provide the
financial statements and related Officer's Compliance
Certificate required pursuant to Sections 7.1 and 7.2 of the
Lessee Credit Agreement (and, by incorporation, pursuant to
Section 28.1 of the Lease) to the Agent on or before the
most recent Calculation Date, the Applicable Percentage, in
each case, from such Calculation Date shall be based on
Pricing Level I until such time that such financial
statements and related Officer's Compliance Certificate are
provided, whereupon the Pricing Level shall be determined by
the then current Leverage Ratio. Each Applicable Percentage
shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable
Percentage shall be applicable to all existing Eurodollar
Loans and Eurodollar Holder Advances as well as any new
Eurodollar Loans and Eurodollar Holder Advances made or
issued.
Notwithstanding the foregoing, in the event of any
replacement or amendment of the Lessee Credit Agreement, or
any replacement or amendment of the pricing grid setting
forth the Applicable Margin Per Annum for the LIBOR Rate in
the definition of "Applicable Margin" under the Lessee
Credit Agreement, (A) the Applicable Percentage for
Eurodollar Loans set forth herein for each Pricing Level
shall be amended to equal the greater of (i) the Applicable
Percentage for Eurodollar Loans set forth herein for each
Pricing Level or (ii) the Applicable Margin Per Annum for
LIBOR Rate Loans set forth for each corresponding Pricing
Level in the Lessee Credit Agreement, as replaced or
amended, plus 0.10%, and (B) the Applicable Percentage for
Eurodollar Holder Advances shall be amended to equal the
greater of (i) the Applicable Percentage for Eurodollar
Holder Advances set forth herein for each Pricing Level or
(ii) the Applicable Margin Per Annum for LIBOR Rate Loans
set forth for each corresponding Pricing Level in the Lessee
Credit Agreement, as replaced or amended, plus 0.10%.
PART II
MISCELLANEOUS
1. This Amendment shall be effective upon
satisfaction of the following conditions:
(a) execution and delivery of this Amendment by
the parties hereto and execution and delivery of such
other documents, agreements or instruments deemed
necessary or advisable by the Agent; and
(b) receipt by the Agent of an officer's
certificate and/or a secretary's certificate of each Credit
Party (in form and in substance reasonably satisfactory to
the Agent) certifying that a resolution has been adopted by
such Credit Party's Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment, specifying that no Default or Event of Default
shall have occurred and be continuing, specifying that the
representations and warranties of such Credit Party set
forth in the Participation Agreement are true and correct
(except for any such representations and warranties which
relate solely to an earlier time) and certifying as to the
incumbency of the officer of such Credit Party executing
this Amendment; and
(c) receipt by the Agent of legal opinions of
counsel to the Credit Parties relating to this
Amendment in form and substance reasonably satisfactory
to the Agent;
2. Except as modified hereby, all of the terms and
provisions of the Operative Agreements (including Schedules
and Exhibits) shall remain in full force and effect.
3. The Credit Parties agree to pay all reasonable
costs and expenses of the Agent in connection with the
preparation, execution and delivery of this Amendment,
including without limitation the reasonable fees and
expenses of Moore & Van Allen, PLLC.
4. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered
shall be deemed an original and it shall not be necessary in
making proof of this Amendment to produce or account for
more than one such counterpart.
5. This Amendment shall be deemed to be a contract
made under, and for all purposes shall be construed in
accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above
written.
PERFORMANCE FOOD GROUP
COMPANY, as a Construction
Agent and as a Lessee
By:
Name:
Title:
CARROLL COUNTY FOODS, INC. (as
successor to CCF Acquisition,
Inc.), as a Construction Agent
and as a Lessee
By:
Name:
Title:
HALE BROTHERS SUMMIT, INC., as
a Construction Agent and as a
Lessee
By:
Name:
Title:
PERFORMANCE FOOD GROUP
COMPANY, as the Guarantor
By:
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
except as expressly stated
herein, but solely as the
Owner Trustee under the PFG
Real Estate Trust 2000-1
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as
a Lender, as a Holder and as
the Agent
By:
Name:
Title:
BANK ONE, NA, as a Lender
(Main Office Chicago)
By:
Name:
Title:
SUNTRUST BANK, as a Lender and
as a Holder
By:
Name:
Title: