EXHIBIT 10.41
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment"), dated
as of December 19, 2001, by and among PERFORMANCE FOOD GROUP COMPANY, a
Tennessee corporation (the "Borrower"), the Lenders party to the Credit
Agreement referenced below (the "Lenders"), FIRST UNION NATIONAL BANK, as
Administrative Agent for the Lenders (the "Administrative Agent") and MERRILL
LYNCH CAPITAL CORPORATION, as Syndication Agent for the Lenders (the
"Syndication Agent").
Statement of Purpose
The Lenders agreed to extend certain credit facilities to the Borrower
pursuant to the Credit Agreement dated as of October 16, 2001 by and among the
Borrower, the Lenders, the Administrative Agent and the Syndication Agent (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement").
The parties now desire to amend or modify certain provisions of the
Credit Agreement in certain respects on the terms and conditions set forth
below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this
First Amendment shall have the meanings assigned thereto in the Credit
Agreement.
2. Amendments to the Credit Agreement. Section 10.4(b) of the Credit
Agreement is hereby amended by: (a) deleting the word "or" immediately prior to
the beginning of existing clause (iv) of said section; and (b) adding a new
clause "(v)" immediately after the end of existing clause (iv) as follows:
", or (v) money market mutual funds organized under the laws
of the United States or any State thereof which have daily
pricing and daily redemption features and invest at least
ninety (90%) percent of their assets in the investments
described in clauses (i) through (iv) of this Section 10.4
(b)"
3. Effectiveness. This First Amendment shall become effective on the
date that each of the following conditions has been satisfied:
(a) Executed First Amendment. The Administrative Agent shall
have received (i) a fully executed original of this First Amendment,
executed by the Administrative Agent, the Lenders and the Borrower, and
(ii) a fully executed original of the attached Consent to First
Amendment, executed by each Guarantor.
(b) Fees and Expenses. The Administrative Agent shall have
been reimbursed for all fees and out of pocket charges and other
expenses incurred in connection with this First Amendment, including,
without limitation, the fees and expenses referred to in Section 6 of
this First Amendment, the Credit Agreement and the transactions
contemplated thereby.
(c) Other Documents. The Administrative Agent shall have
received any other documents or instruments reasonably requested by the
Administrative Agent in connection with the execution of this First
Amendment.
4. Effect of Amendment. Except as expressly amended hereby, the Credit
Agreement and Loan Documents shall be and remain in full force and effect. The
amendments granted herein are specific and limited and shall not constitute a
modification, acceptance or waiver of any other provision of or default under
the Credit Agreement, the Loan Documents or any other document or instrument
entered into in connection therewith or a future modification, acceptance or
waiver of the provisions set forth therein.
5. Representations and Warranties/No Default.
(a) By its execution hereof, the Borrower hereby certifies that each of
the representations and warranties set forth in the Credit Agreement and the
other Loan Documents is true and correct as of the date hereof as if fully set
forth herein and that no Default or Event of Default has occurred and is
continuing as of the date hereof.
(b) By its execution hereof, the Borrower hereby represents and
warrants that Borrower and each Subsidiary has the right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this First Amendment and each other
document executed in connection herewith to which it is a party in accordance
with their respective terms.
(c) This First Amendment and each other document executed in connection
herewith has been duly executed and delivered by the duly authorized officers of
Borrower and each Subsidiary party thereto, and each such document constitutes
the legal, valid and binding obligation of Borrower or each Subsidiary party
thereto, enforceable in accordance with its terms.
6. Fees and Expenses. The Borrower shall pay all reasonable
out-of-pocket fees and expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this First Amendment, including,
without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
7. Governing Law. This First 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 law provisions thereof.
8. Counterparts. This First Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
9. Fax Transmission. A facsimile, telecopy or other reproduction of
this First Amendment may be executed by one or more parties hereto, and an
executed copy of this First 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 First Amendment as well as any facsimile, telecopy
or other reproduction hereof.
[Signature Pages To Follow]
2
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date and year first above written.
BORROWER:
[CORPORATE SEAL] PERFORMANCE FOOD GROUP COMPANY, as
Borrower
By:
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Name:
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Title:
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[First Amendment]
AGENTS AND LENDERS:
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By:
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Name:
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Title:
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[First Amendment]
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent and Lender
By:
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Name:
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Title:
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[First Amendment]
BANK OF AMERICA, N.A., as Lender
By:
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Name:
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Title:
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[First Amendment]
CREDIT SUISSE FIRST BOSTON, as Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[First Amendment]
BANK ONE, N.A., as Lender
By:
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Name:
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Title:
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[First Amendment]
THE CHASE MANHATTAN BANK, as Lender
By:
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Name:
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Title:
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[First Amendment]
SUNTRUST BANK, as Lender
By:
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Name:
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Title:
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[First Amendment]
Consent to First Amendment and
Confirmation of Loan Documents
By execution of this Consent to First Amendment and Confirmation of
Loan Documents (the "Consent to First Amendment"), each of the undersigned
hereby expressly (i) consents to the modifications and amendments set forth in
the First Amendment, (ii) reaffirms all of its respective covenants,
representations, warranties and other obligations set forth in the Guaranty
Agreement and the other Loan Documents to which it is a party and (iii)
acknowledges, represents and agrees that its respective covenants,
representations, warranties and other obligations set forth in the Guaranty
Agreement and the other Loan Documents to which it is a party remain in full
force and effect.
GUARANTORS:
[CORPORATE SEALS] KENNETH O. LESTER COMPANY, INC.
HALE BROTHERS SUMMIT, INC.
CARO FOODS, INC.
FRESH ADVANTAGE, INC.
SOUTHLAND DISTRIBUTION SYSTEMS, INC.
POCAHONTAS FOODS, USA, INC.
PERFORMANCE FOOD GROUP OF GEORGIA, INC.
T&S TRANSPORTATION OF RICHMOND, INC.
AFI FOOD SERVICE DISTRIBUTORS, INC.
ALLIANCE FOODSERVICE, INC.
PERFORMANCE FOOD GROUP OF TEXAS, L.P.
PERFORMANCE FOOD GROUP COMPANY
OF TEXAS, INC.
PFG HOLDING, INC.
VIRGINIA FOODSERVICE GROUP, INC.
AFFLINK INCORPORATED
CARROLL COUNTY FOODS, INC.
NORTHCENTERFOODSERVICE CORPORATION
PFG-LESTER BROADLINE, INC.
REDI-CUT FOODS, INC.
K.C. SALAD HOLDINGS, INC.
KANSAS CITY SALAD, L.L.C. (By: K.C. Salad
Holdings, Inc., its manager)
K.C. SALAD REAL ESTATE L.L.C. (By: K.C. Salad
Holdings, Inc., its member)
EMPIRE SEAFOOD HOLDING CORP.
EMPIRE SEAFOOD, INC.
EMPIRE IMPORTS, INC.
PERFORMANCE TRANSPORTATION SYSTEMS, INC.
SPRINGFIELD FOODSERVICE CORPORATION
FRESH INTERNATIONAL CORP.
TRANS-FRESH CORPORATION
FRESH EXPRESS INCORPORATED
FRESH INTERNATIONAL HOLDING CORP.
FEF SALES CORP.
[Guarantors Continued on the Following Page]
[Consent to First Amendment]
FRESH-CUTS INCORPORATED
FRESH EXPRESS MID-ATLANTIC INCORPORATED
FRESH EXPRESS-CHICAGO INCORPORATED
BRUCE CHURCH, LLC
BRUCE CHURCH, INC. OF ARIZONA
BC SYSTEMS, INC.
ALAMO LAND COMPANY
BLANCO DIRT INVESTORS, LLC
TRANSFRESH VENTURES CORPORATION
FRESH EXPRESS DALLAS INCORPORATED
By:
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Name: Robert J. Fishbein
Title: Vice President of each such Guarantor
[Guarantors Continued on the Following Page]
[Consent to First Amendment]
[CORPORATE SEAL] TRANSFRESH SOUTH AFRICA
By:
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Name:
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Title:
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[Consent to First Amendment]