EXHIBIT 10.1
FIRST AMENDMENT
This First Amendment, dated as of September 15, 2004 among PERFORMANCE
FOOD GROUP COMPANY, a Tennessee corporation, (the "Borrower"), the Lenders party
to the Credit Agreement referenced below (the "Lenders") and WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent (the "Administrative Agent"), for
the Lenders. All capitalized terms used but not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
STATEMENT OF PURPOSE:
The Lenders agreed to extend certain credit facilities to the Borrower
pursuant to an Amended and Restated Credit Agreement dated as of April 28, 2003
by and among the Borrower, the Lenders and the Administrative Agent (as amended,
restated, supplemented, or otherwise modified from time to time, the "Credit
Agreement").
The Borrower desires to prepay and redeem in full, in cash, the
Convertible Subordinated Notes by payment of the amount of approximately
$207,575,086.25, (which amount includes a call premium in the amount of
approximately $6,325,086.25) (the "Redemption Amount") to Bank One Trust
Company, N.A., as trustee under the Indenture dated October 16, 2001 under which
the Convertible Subordinated Notes were issued (such prepayment and redemption,
the "Redemption"), such Redemption Amount to be paid by means of a Revolving
Credit Loan under the Credit Agreement.
Section 10.11 of the Credit Agreement permits redemption of the
Convertible Subordinated Notes only under limited circumstances and restricts
cash redemption of the Convertible Subordinated Notes to the amount of
$12,500,000.
The Borrower has requested that the Administrative Agent and the
Lenders (i) amend certain provisions of the Credit Agreement to permit the
Redemption and (ii) amend certain other provisions of the Credit Agreement.
The Administrative Agent and the Required Lenders are willing, solely
upon the terms and conditions set forth below, to so amend the terms of the
Credit Agreement to the extent set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrower, the Administrative
Agent and the Required Lenders hereby agree as follows:
1. Amendments.
(a) Section 9.1 of the Credit Agreement is hereby amended
by deleting the existing text of such Section and by
substituting the following text in lieu thereof:
"SECTION 9.1 Senior Leverage Ratio As of any fiscal quarter
end, permit the ratio of (a) Senior Debt on such date to (b) EBITDAR
for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date to be greater than 3.25 to 1.00."
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(b) Section 4.1(c) of the Credit Agreement is hereby
amended by deleting the existing pricing grid of such
Section in its entirety and by substituting the
following pricing grid in lieu thereof:
Applicable Margin Per Annum
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Level Senior Leverage Ratio Base Rate LIBOR Rate
----- --------------------- --------- ----------
1 Greater than 3.0 to 1.00 0.00% 1.50%
2 Greater than 2.5 to 1.00 0.00% 1.25%
but less than or equal to 3.0 to 1.00
3 Greater than 2.0 to 1.00 0.00% 1.00%
but less than or equal to 2.5 to 1.00
4 Greater than 1.5 to 1.00 0.00% 0.75%
but less than or equal to 2.0 to 1.00
5 Less than or equal to 1.5 to 1.00 0.00% 0.50%
(c) Section 10.11 of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of
clause "(b)" and by substituting a comma in its place
and stead and (ii) adding the following clause "(c)"
immediately after the end of existing clause "(b)":
", and (c) notwithstanding any term or provision of this Section 10.11
or Section 2.9 of this Agreement to the contrary, at any time during
the period commencing on September 15, 2004 and ending on December 31,
2004, call the Convertible Subordinated Notes for redemption and redeem
the Convertible Subordinated Notes in full, in cash, for an amount not
to exceed $215,000,000.00 in the aggregate (including any call premium
or prepayment premium), provided no Event of Default shall exist at the
time of such redemption or shall result therefrom."
2. Conditions to Effectiveness. This First Amendment shall only
be effective on the date that each of the following conditions
has been satisfied:
(a) The Administrative Agent shall have received
counterparts of this First Amendment executed by the
Borrower and the Required Lenders;
(b) The Administrative Agent shall have received payment
from the Borrower of (i) an amendment fee (for the
benefit of itself and each of the Lenders who approve
this First Amendment by delivery to the
Administrative Agent of their respective executed
signature page to this First Amendment before 5:00
P.M. on September 15, 2004) equal to (a) 0.125% times
(b) the Commitment, as of the date hereof, of each
such approving Lender, and (ii) the fees and expenses
described in Paragraph 4.
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(c) The Administrative Agent shall have received and
approved such other instruments, documents and
certificates as the Administrative Agent shall
reasonably request in connection with the
transactions described herein.
(d) 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 (other than representations and
warranties which speak as of a specific date pursuant
to the Credit Agreement, which representations and
warranties shall have been true and correct as of
such specific dates) as if fully set forth herein and
that as of the date hereof no Default or Event of
Default has occurred and is continuing.
3. Effect of First Amendment. The amendments granted herein are
specific and limited only to the sections of the Credit
Agreement referred to in Paragraph 1 above and shall not be
construed as (i) a waiver of the Borrower's compliance with
any provision of the Credit Agreement or a waiver of any
Default or Event of Default under the Credit Agreement, the
Loan Documents or any other document or instrument entered
into in connection therewith or (ii) an amendment of the
Credit Agreement or any of the Loan Documents or a
modification, acceptance or waiver or a future modification,
acceptance or waiver of the provisions set forth therein,
except to the extent specifically set forth in Paragraph 1.
4. 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.
5. 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.
6. 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.
7. Facsimile 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 Follow]
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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:
PERFORMANCE FOOD GROUP COMPANY,
as Borrower
By:
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Name:
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Title:
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Lender
By:
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Name:
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Title:
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-----------------------------------,
as Lender
By:
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Name:
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Title:
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