EXHIBIT 10.1
AMENDMENT #6 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT #6 TO RECEIVABLES PURCHASE AGREEMENT, dated as of June
26, 2006 (this "AMENDMENT"), is by and among PFG Receivables Corporation, a
Florida corporation ("SELLER"), Performance Food Group Company, a Tennessee
corporation, as initial Servicer (together with Seller, the "SELLER PARTIES"),
Jupiter Securitization Company LLC (f/k/a Jupiter Securitization Corporation)
("CONDUIT") and JPMorgan Chase Bank, N.A., successor by merger to Bank One, NA
(Main Office Chicago), individually (together with Conduit, the "PURCHASERS")
and as agent for the Purchasers (in such capacity, the "AGENT"), and pertains to
the Receivables Purchase Agreement, dated as of July 3, 2001 (as heretofore
amended, the "EXISTING AGREEMENT"). Unless defined elsewhere herein, capitalized
terms used in this Amendment shall have the meanings assigned to such terms in
the Existing Agreement.
W I T N E S S E T H:
WHEREAS, the parties desire to amend the Existing Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendments.
(a) Each of the following definitions in the Existing Agreement is
hereby amended and restated in its entirety to read, respectively, as follows:
"FEE LETTER" means that certain amended and restated fee
letter dated as of June 26, 2006 among Seller, PFG and the Agent, as it
may be amended, restated or otherwise modified and in effect from time
to time.
"LIQUIDITY TERMINATION DATE" means June 25, 2007.
"PFG CREDIT AGREEMENT" means that certain Second Amended and
Restated Credit Agreement, dated as of October 7, 2005, by and among
PFG, as borrower, the lenders who are or may become a party thereto and
Wachovia Bank, National Association, as administrative agent, as the
same has been amended through the date hereof but without taking into
account any subsequent amendment, and whether or not the same remains
in effect.
(b) All references in the Existing Agreement to "Jupiter Securitization
Corporation" are hereby replaced with "Jupiter Securitization Company LLC."
2. Representations and Warranties of the Seller Parties. In order to
induce the Agent and the Purchasers to enter into this Amendment, each Seller
Party hereby represents and warrants to the Agent and the Purchasers (i) that as
of the date hereof, each of such Seller Party's representations and warranties
set forth in Section 5.1 of the Existing Agreement is true
and correct as of the date hereof, and (ii) that, as to itself, each of the
following representations and warranties is true and correct as of the date
hereof:
(a) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by such Seller Party of this
Amendment, and the performance of its obligations under the Existing
Agreement as amended hereby, are within its corporate powers and
authority and have been duly authorized by all necessary corporate
action on its part. This Amendment has been duly executed and delivered
by such Seller Party.
(b) No Conflict. The execution and delivery by such Seller
Party of this Amendment, and the performance of its obligations under
the Existing Agreement as amended hereby do not contravene or violate
(i) its certificate or articles of incorporation or by-laws, (ii) any
law, rule or regulation applicable to it, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by
which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any
Adverse Claim on assets of such Seller Party or its Subsidiaries
(except as created hereunder) except, in any case, where such
contravention or violation could not reasonably be expected to have a
Material Adverse Effect; and no transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(c) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution and
delivery by such Seller Party of this Amendment and the performance of
its obligations under the Existing Agreement as amended hereby.
(d) Binding Effect. This Amendment and the Existing Agreement
as amended hereby constitute the legal, valid and binding obligations
of such Seller Party enforceable against such Seller Party in
accordance with their respective terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or limiting creditors' rights generally
and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
3. Conditions Precedent. This Amendment shall become effective as of
the date first above written upon delivery to the Agent of (a) counterparts
hereof duly executed by each of the parties hereto, (b) counterparts of an
amendment to the Receivables Sale Agreement, duly executed by the parties
thereto, (c) counterparts of an amended and restated Fee Letter, duly executed
by the parties thereto, and (d) a $20,000 renewal fee in immediately available
funds.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
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5. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY, AND EACH
SELLER PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY
PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE
AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR ANY PURCHASER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AMENDMENT OR THE EXISTING AGREEMENT AS AMENDED HEREBY SHALL
BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
6. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR THE EXISTING AGREEMENT AS
AMENDED HEREBY OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
7. Ratification. Except as expressly amended hereby, the Existing
Agreement remains unaltered and in full force and effect and is hereby ratified
and confirmed.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized representatives as of the date
hereof.
PFG RECEIVABLES CORPORATION
By:
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Name:
Title:
PERFORMANCE FOOD GROUP COMPANY
By:
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Name:
Title:
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JUPITER SECURITIZATION COMPANY LLC
(F/KA JUPITER SECURITIZATION CORPORATION)
BY: JPMORGAN CHASE BANK, N.A., ITS ATTORNEY IN FACT
By:
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Name:
Title:
JPMORGAN CHASE BANK, N.A., AS A FINANCIAL INSTITUTION AND AS AGENT
By:
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Name:
Title:
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