FIRST AMENDMENT TO CERTAIN
OPERATIVE AGREEMENTS
THIS FIRST AMENDMENT TO CERTAIN OPERATIVE
AGREEMENTS dated as of August 31, 1999 (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"), except
as expressly stated herein, 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
hereto 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, the parties to this Amendment wish
to amend the Participation Agreement and certain
other agreements, instruments and other documents
to which they are a party (or to which certain of
them are a party) in connection with an increase
in the commitments described therein and
established thereby.
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
1.1 The definition of "Holder Commitments"
is deleted in its entirety from Appendix A to the
Participation Agreement and replaced with the
following:
" "Holder Commitments" shall mean
$1,410,000, provided, that the Holder Commitment
of each Holder shall be as set forth in the Trust
Agreement."
1.2 The definition of "Lender Commitments"
is deleted in its entirety from Appendix A to the
Participation Agreement and replaced with the
following:
" "Lender Commitments" shall mean
$45,590,000; provided, if there shall be more
than one (1) Lender, the Lender Commitment of
each Lender shall be as set forth in Schedule 1.1
to the Credit Agreement as such Schedule 1.1 may
be amended and replaced from time to time."
PART II
AMENDMENTS TO THE
TRUST AGREEMENT
2.1 Schedule I to the Trust Agreement is
deleted in its entirety and replaced with the
following:
SCHEDULE I
HOLDER COMMITMENTS
Name of Holder Holder Commitment
First Union National Bank $705,000
SunTrust Bank, Atlanta $705,000
2.2 Exhibit A to the Trust Agreement is
hereby deleted in its entirety and replaced with
the exhibit attached hereto as Annex 1.
PART III
AMENDMENTS TO THE
CREDIT AGREEMENT
3.1 Schedule 1.1 to the Credit Agreement is
deleted in its entirety and replaced with the
following:
Schedule 1.1
Tranche A Tranche B
Commitment Commitment
Name and Address of Lenders Amount/Percentage Amount/Percentage
First Union National Bank $16,098,000 38.92% $1,506,455 35.61%
c/o First Union Capital
Markets Group DC-6
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Mr. Peter M. Budko,
Director-Real Estate
Capital Markets
Telephone: (704) 383-1949
Telecopy: (704) 383-6205
Hibernia National Bank $15,750,000 38.08% $1,750,000 41.37%
313 Carondelet Street
New Orleans, Louisiana 70130
Attention: Mr. Lloyd Drum
Assistant Vice President
Telephone: (504) 533-2263
Telecopy: (504) 533-5344
SunTrust Bank, Atlanta $ 9,512,000 23.00% $ 973,545 23.02%
25 Park Place
Mail Code 118
Atlanta, Georgia 30303
Attention: Mr. C. Gray Key,
Vice President
Telephone: (804) 782-5237
Telecopy: (804) 782-5413
3.2 Exhibit A-1 to the Credit Agreement is
hereby deleted in its entirety and replaced with
the exhibit attached hereto as Annex 2.
3.3 Exhibit A-2 to the Credit Agreement is
hereby deleted in its entirety and replaced with
the exhibit attached hereto as Annex 3.
PART IV
AMENDMENTS TO THE
SECURITY AGREEMENT
4.1 The first paragraph of the Preliminary
Statement to the Security Agreement is deleted in
its entirety and replaced with the following:
"Pursuant to the Credit Agreement, the
Lenders have severally agreed to make Loans to
the Borrower in an aggregate amount not to exceed
the Lender Commitments upon the terms and subject
to the conditions set forth therein, to be
evidenced by the Notes issued by the Borrower
under the Credit Agreement. Pursuant to the
Trust Agreement, the Holders have agreed to
purchase the ownership interests of the Trust
created thereby in an aggregate amount not to
exceed the Holder Commitments upon the terms and
subject to the conditions set forth therein, to
be evidenced by the Certificates issued by the
Borrower under the Trust Agreement. The Borrower
is, or shall be upon the date of the initial
Advance with respect to each Property, the legal
and beneficial owner of such Property (except the
Borrower may have a leasehold interest in certain
Land pursuant to one (1) or more Ground Leases)."
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:
ANNEX 1
TO
AMENDMENT
Exhibit A to Trust Agreement
EXHIBIT A
AMENDED AND RESTATED
FORM OF HOLDER CERTIFICATE
FIRST SECURITY BANK, NATIONAL ASSOCIATION
TRUSTEE UNDER
TRUST AGREEMENT DATED AS OF AUGUST 29, 1997
HOLDER CERTIFICATE
PFG REAL ESTATE TRUST 1997-1
__________, 19__
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as trustee (herein in such capacity called the
"Owner Trustee") under that certain Trust
Agreement dated as of August 29, 1997 (as
amended, supplemented or otherwise modified from
time to time, herein called the "Trust
Agreement", the defined terms therein not
otherwise defined herein being used herein with
the same meanings), among the several banks and
other financial institutions from time to time
parties to the Trust Agreement as the initial
Holders and the Owner Trustee, hereby certifies
for the benefit of ___________________ as
follows: (i) this Holder Certificate is a Holder
Certificate referred to in Section 3.1(d) of the
Trust Agreement, which Holder Certificate has
been issued by the Owner Trustee pursuant to the
Trust Agreement and (ii) subject to the prior
payment of Notes to the extent provided for in
Section 10.7 of the Participation Agreement, and
to the assignment, pledge or mortgage of the
Trust Estate to secure the Notes as set forth in
the applicable Operative Agreements, the holder
of this Holder Certificate has an undivided
beneficial interest in properties of the Owner
Trustee constituting part of the Trust Estate and
is entitled to receive as provided in the Trust
Agreement, a portion of the Rent received or to
be received by the Owner Trustee for the
Properties, as well as a portion of certain other
payments which may be received by the Trustee
pursuant to the terms of the Operative Agreements
as more particularly set forth therein.
This Holder Certificate amends, restates and
replaces in its entirety that certain Holder
Certificate dated September 12, 1997 issued by
the Owner Trustee in favor of .
All amounts payable hereunder and under the
Trust Agreement shall be paid only from the
income and proceeds from the Trust Estate and
only to the extent that the Owner Trustee shall
have received sufficient income or proceeds from
the Trust Estate to make such payments in
accordance with the terms of the Trust Agreement,
except as specifically provided in Section 6.1 of
the Trust Agreement; and the holder hereof, by
its acceptance of this Holder Certificate, agrees
that it will look solely to the income and
proceeds from the Trust Estate to the extent
available for distribution to the holder hereof
as provided in the Trust Agreement and that,
except as specifically provided in the Trust
Agreement, the Owner Trustee is not personally
liable to the holder hereof for any amount
payable under this Holder Certificate or the
Trust Agreement.
The amounts payable to the holder hereof
pursuant to the Trust Agreement shall be paid or
caused to be paid by the Owner Trustee to, or for
the account of, such Holder, or its nominee, by
transferring such amount in immediately available
funds to a banking institution or banking
institutions with bank wire transfer facilities
for the account of such Holder or as otherwise
instructed in writing from time to time by such
Holder.
This Holder Certificate shall mature, and
all amounts payable to the holder hereof pursuant
to the Trust Agreement shall be due, on the
Maturity Date.
This Holder Certificate shall bear a yield
on the unpaid amount hereof from time to time
outstanding hereunder and under the Trust
Agreement at the Holder Yield as provided in the
Trust Agreement. The Holder Yield on this Holder
Certificate shall be computed as provided in the
Trust Agreement and shall be payable at the
rates, at the times and from the dates specified
in the Trust Agreement.
From and after the execution of the
Participation Agreement, the rights of the holder
of this Holder Certificate under the Trust
Agreement as well as the beneficial interest of
the holder of this Holder Certificate in and to
the properties of the Owner Trustee constituting
part of the Trust Estate, are subject and
subordinate to the rights of the holders of the
Notes to the extent provided in the applicable
Operative Agreements. The Trust Estate has been
or will be assigned, pledged and mortgaged to the
Agent, on behalf of the Lenders and the Holders,
as security for the Notes and the Holder
Certificates. Reference is hereby made to the
Trust Agreement, the Participation Agreement, the
Credit Agreement, the Security Agreement and the
Notes for statements of the rights of the holder
of this Holder Certificate and of the rights of
the holders of, and the nature and extent of the
security for, the Notes, as well as for a
statement of the terms and conditions of the
trusts created by the Trust Agreement, to all of
which terms and conditions the holder hereof
agrees by its acceptance of this Holder
Certificate.
The holder hereof, by its acceptance of this
Holder Certificate, agrees not to transfer this
Holder Certificate except in accordance with the
terms of the Trust Agreement and the other
Operative Agreements.
THIS HOLDER CERTIFICATE SHALL BE INTERPRETED
AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS)
AND DECISIONS OF THE STATE OF NORTH CAROLINA.
WHENEVER POSSIBLE EACH PROVISION OF THIS HOLDER
CERTIFICATE SHALL BE INTERPRETED IN SUCH MANNER
AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE
LAW, BUT IF ANY PROVISION OF THIS HOLDER
CERTIFICATE SHALL BE PROHIBITED BY OR INVALID
UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS OF
THIS HOLDER CERTIFICATE.
IN WITNESS WHEREOF, the undersigned
authorized officer of the Owner Trustee has
executed this Holder Certificate as of the date
first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly set
forth herein, but solely as the Owner Trustee
under the PFG Real Estate Trust 1997-1
By:
Name:
Title:
ANNEX 2
TO
AMENDMENT
Exhibit A-1 to Credit Agreement
Exhibit A-1
AMENDED AND RESTATED
TRANCHE A NOTE
(PFG Real Estate Trust 1997-1)
___________, 199__
FOR VALUE RECEIVED, the undersigned, FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner
Trustee under the PFG Real Estate Trust 1997-1
(the "Borrower"), hereby unconditionally promises
to pay to the order of [Lender] (the "Lender"),
at the office of First Union National Bank,
located at Charlotte, North Carolina or at such
other address as may be specified by First Union
National Bank, in lawful money of the United
States of America and in immediately available
funds, on the Maturity Date, the principal amount
of the aggregate unpaid principal amount of all
Tranche A Loans made by the Lender to the
Borrower pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower
agrees to pay interest in like money at such
office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the
dates specified in Section 2.8 of such Credit
Agreement.
This Note amends, restates and replaces in
its entirety that certain Tranche A Note dated
September 12, 1997 executed by the Borrower in
favor of [Lender] in the principal amount of
Dollars ($ ).
The holder of this Note is authorized to
endorse on the schedules annexed hereto and made
a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof
the date, Type and amount of each Tranche A Loan
made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of
principal thereof, each continuation thereof and
each conversion of all or a portion thereof to
another Type. Each such endorsement shall
constitute prima facie evidence of the accuracy
of the information endorsed. The failure to make
any such endorsement or any error in such
endorsement shall not affect the obligations of
the Borrower in respect of such Loan.
This Note (a) is one (1) of the Notes
referred to in the Credit Agreement dated as of
August 29, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time
to time parties thereto and First Union National
Bank , as the Agent, (b) is subject to the
provisions of the Credit Agreement (including
without limitation Section 9.18 thereof) and (c)
is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit
Agreement. Reference is hereby made to the
Credit Documents for a description of the
properties and assets in which a security
interest has been granted, the nature and extent
of the security and the guarantees, the terms and
conditions upon which the security interests and
each guarantee were granted and the rights of the
holder of this Note in respect thereof.
Upon the occurrence of any one (1) or more
of the Events of Default, all amounts then
remaining unpaid on this Note shall become, or
may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with
respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other
notices of any kind.
Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein
shall have the meanings given to them in the
Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NORTH CAROLINA.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee
under the PFG Real Estate Trust 1997-1
By:
Name:
Title:
ANNEX 3
TO
AMENDMENT
Exhibit A-2 to Credit Agreement
Exhibit A-2
AMENDED AND RESTATED
TRANCHE B NOTE
(PFG Real Estate Trust 1997-1)
_________, 19__
FOR VALUE RECEIVED, the undersigned, FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner
Trustee under the PFG Real Estate Trust 1997-1
(the "Borrower"), hereby unconditionally promises
to pay to the order of [Lender] (the "Lender") at
the office of First Union National Bank located
at Charlotte, North Carolina or at such other
address as may be specified by First Union
National Bank, in lawful money of the United
States of America and in immediately available
funds, on the Maturity Date, the principal amount
of the aggregate unpaid principal amount of all
Tranche B Loans made by the Lender to the
Borrower pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower
agrees to pay interest in like money at such
office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the
dates specified in Section 2.8 of such Credit
Agreement.
This Note amends, restates and replaces in
its entirety that certain Tranche B Note dated
September 12, 1997 executed by the Borrower in
favor of [Lender] in the principal amount of
Dollars ($ ).
The holder of this Note is authorized to
endorse on the schedules annexed hereto and made
a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof
the date, Type and amount of each Tranche B Loan
made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of
principal thereof, each continuation thereof and
each conversion of all or a portion thereof to
another Type. Each such endorsement shall
constitute prima facie evidence of the accuracy
of the information endorsed. The failure to make
any such endorsement or any error in such
endorsement shall not affect the obligations of
the Borrower in respect of such Loan.
This Note (a) is one (1) of the Notes
referred to in the Credit Agreement dated as of
August 29, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time
to time parties thereto and First Union National
Bank, as the Agent, (b) is subject to the
provisions of the Credit Agreement (including
without limitation Section 9.18 thereof) and (c)
is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit
Agreement. Reference is hereby made to the
Credit Documents for a description of the
properties and assets in which a security
interest has been granted, the nature and extent
of the security and the guarantees, the terms and
conditions upon which the security interests and
each guarantee were granted and the rights of the
holder of this Note in respect thereof.
Upon the occurrence of any one (1) or more
of the Events of Default, all amounts then
remaining unpaid on this Note shall become, or
may be declared to be, immediately due and
payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with
respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other
notices of any kind.
Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein
shall have the meanings given to them in the
Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NORTH CAROLINA.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee
under the PFG Real Estate Trust 1997-1
By:
Name:
Title: