EXHIBIT 10.33
SECOND AMENDMENT TO CERTAIN
OPERATIVE AGREEMENTS
THIS SECOND AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS
dated as of December __, 2000 (this "Amendment") is by and
among PERFORMANCE FOOD GROUP COMPANY, a Tennessee
corporation (the "Lessee" or the "Construction Agent");
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, not individually (in its individual
capacity, the "Trust Company"), but solely as the Owner
Trustee under the PFG Real Estate Trust 1997-1 (the "Owner
Trustee", the "Borrower" or the "Lessor"); the various banks
and other lending institutions which are parties hereto from
time to time as lenders (subject to the definition of
Lenders in Appendix A to the Participation Agreement
(hereinafter defined), individually, a "Lender" and
collectively, the "Lenders"); FIRST UNION NATIONAL BANK, a
national banking association ("First Union"), 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"); 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 1997-1 (subject to the definition of Holders in
Appendix A to the Participation Agreement, individually, a
"Holder" and collectively, the "Holders"). 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 August 29,
1997 (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 add or modify the following defined terms
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 0.700% 1.300%
Level II >.40 to 1, but <=.50 to 1.0 0.575% 1.175%
Level III >.30 to 1, but <=.40 to 1.0 0.450% 1.050%
Level IV <=.30 to 1.0 0.375% 0.975%
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 Lessee and its Subsidiaries and
the accompanying Officer's Compliance Certificate setting
forth the Leverage Ratio of the Lessee 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 if the Lessee 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%.
"Capital Lease" means, with respect to the Lessee and
its Subsidiaries, any lease of any property that should, in
accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Lessee
and its Subsidiaries.
"Capitalization" means, with respect to the Lessee and
its Subsidiaries at any date and without duplication, the
sum of the following calculated in accordance with GAAP: (a)
Total Debt plus (b) Consolidated Stockholders' Equity.
"Consolidated" means, when used with reference to
financial statements or financial statement items of the
Lessee and its Subsidiaries, such statements or items on a
consolidated basis in accordance with applicable principles
of consolidation under GAAP.
"Debt" means, with respect to the Lessee and its
Subsidiaries at any date and without duplication, the sum of
the following calculated on a Consolidated basis in
accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including but not limited to
obligations evidenced by bonds, debentures, notes or other
similar instruments of the Lessee or any Subsidiary thereof,
(b) all obligations to pay the deferred purchase price of
property or services of the Lessee or any Subsidiary
thereof, including without limitation all obligations under
non-competition agreements but excluding (i) trade payables
arising in the ordinary course of business and (ii) all
amounts payable under any earn-out agreement unless any such
earn-out payment is payable in cash and has been deemed
earned and required to be included on the financial
statements of the Lessee or any Subsidiary thereof in
accordance with GAAP, (c) all obligations of the Lessee or
any Subsidiary thereof as lessee under Capital Leases, (d)
all Debt of any other Person secured by a Lien on any asset
of the Lessee or any Subsidiary thereof, (e) all Guaranty
Obligations of the Lessee or any Subsidiary thereof
(excluding any Guaranty Obligations on account of trade
payables arising in the ordinary course of business), (f)
all obligations, contingent or otherwise, of the Lessee or
any Subsidiary thereof relative to the face amount of
letters of credit, whether or not drawn, including without
limitation any Reimbursement Obligation, and banker's
acceptances issued for the account of the Lessee or any
Subsidiary thereof, (g) all obligations of the Lessee or any
Subsidiary thereof to redeem, repurchase, exchange, defease
or otherwise make payments in respect of capital stock or
other securities of the Lessee or any Subsidiary thereof and
(h) all obligations incurred by the Lessee or any Subsidiary
thereof pursuant to Hedging Agreements.
"ELLF" means, at any date with respect to Lessee and
its Subsidiaries, any synthetic lease, end loaded lease
financing, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product to which
Lessee or any Subsidiary thereof is a party, where such
transaction is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease in
accordance with GAAP on a consistent basis.
"Facility Fee" shall mean, collectively, the Holder
Facility Fee and the Lender Facility Fee.
"Facility Fee Payment Date" shall mean the last
Business Day of each March, June, September and December and
the Expiration Date.
"Guaranty Obligation" means, with respect to Lessee and
its Subsidiaries, without duplication, any obligation,
contingent or otherwise, of any such Person pursuant to
which such Person has directly or indirectly guaranteed any
Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of any such
Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b)
entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, that the term
Guaranty Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hedging Agreement" means any agreement with respect to
an interest rate swap, collar, cap, floor or a forward rate
agreement or other agreement regarding the hedging of
interest rate risk exposure executed in connection with
hedging the interest rate exposure of Lessee, and any
confirming letter executed pursuant to such hedging
agreement, all as amended, restated or otherwise modified.
"Holder Facility Fee" shall have the meaning given to
such term in Section 9.4 of the Participation Agreement.
"Lender Facility Fee" shall have the meaning given to
such term in Section 9.4 of the Participation Agreement.
"Lessee Credit Agreement" shall mean that certain
Credit Agreement dated as of March 5, 1999 among the Lessee
and the lenders referred to therein and First Union National
Bank, as Administrative Agent, as such may hereafter be
amended, modified, supplemented, restated and/or replaced
from time to time.
"Leverage Ratio" shall mean the ratio of Total Debt to
Capitalization.
"Officer's Compliance Certificate" shall have the
meaning given to such term in Section 7.2 of the Lessee
Credit Agreement.
"Reimbursement Obligation" means the obligation of the
Lessee to reimburse the Issuing Lender pursuant to Section
3.5 of the Lessee Credit Agreement for amounts drawn under
Letters of Credit.
"Total Debt" means, as of any date of determination
with respect to the Lessee and its Subsidiaries on a
Consolidated basis without duplication, the sum of (a) Debt
plus (b) all outstanding indebtedness obligations actually
incurred under or on account of any ELLF, each in accordance
with GAAP.
2. Section 9.4 of the Participation Agreement is hereby
amended to read as follows:
The Lessee agrees to pay or to cause to be paid to the
Agent for the account of (a) the Lenders, respectively,
a facility fee (the "Lender Facility Fee") equal to the
product of the aggregate Commitments multiplied by a
rate of 0.150% per annum and (b) the Holders,
respectively, a facility fee (the "Holder Facility
Fee") equal to the product of the aggregate Holder
Commitments multiplied by a rate of 0.150% per annum.
Such Facility Fees shall be payable quarterly in
arrears on each Facility Fee Payment Date. If all or a
portion of any such Facility Fee shall not be paid when
due, such overdue amount shall bear interest, payable
by the Lessee on demand, at a rate per annum equal to
the ABR (or in the case of Holder Yield, the ABR plus
the Applicable Percentage for Eurodollar Holder
Advances) plus two percent (2%) from the date of such
non-payment until such amount is paid in full (as well
as before judgment).
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 the
Lessee (in form and in substance reasonably
satisfactory to the Agent) certifying that a resolution
has been adopted by Lessee'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 Lessee 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 Lessee executing this Amendment; and
(c) receipt by the Agent of legal opinions of
counsel to the Lessee 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 Lessee agrees 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 the Construction
Agent and as the Lessee
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 1997-1
By:
Name:
Title:
FIRST UNION NATIONAL BANK, as
a Holder, as a Lender and as
the Agent
By:
Name:
Title:
SUNTRUST BANK, ATLANTA, as a
Holder and as a Lender
By:
Name:
Title:
By:
Name:
Title:
HIBERNIA NATIONAL BANK, as a
Lender
By:
Name:
Title: