Exhibit 10.10B
AMENDMENT NO. 2 TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMENDMENT NO. 2, dated as of September 17, 2001 (this
"AMENDMENT") to that certain Revolving Credit and Term Loan Agreement dated as
of June 29, 1999, as amended by Amendment No. 1, dated as of June 26, 2000, and
as may be further amended, modified, restated or supplemented from time to time
(the "LOAN AGREEMENT") among THE PENN TRAFFIC COMPANY ("Penn Traffic"), DAIRY
DELL, INC., BIG M SUPERMARKETS, INC. and XXXXX XXXXXXX BAKING COMPANY, INC.
(individually, each a "BORROWER" and collectively, the "BORROWERS"), the Lenders
listed therein (collectively, the "LENDERS"), FLEET CAPITAL CORPORATION, as
Administrative Agent for the Lenders (in such capacity, the "AGENT"), GMAC
BUSINESS CREDIT, LLC, as documentation agent, and AMSOUTH BANK and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as co- agents is made by,
between and among the Borrowers, the Lenders and the Agent. Capitalized terms
used herein, except as otherwise defined herein, shall have the meanings given
to such terms in the Loan Agreement.
WHEREAS, the Borrowers have requested that the Lenders agree
to amend the Loan Agreement to adjust the Consolidated EBITDA covenant to take
into account, among other things, the startup costs associated with expanding
its customer loyalty card program.
WHEREAS, the Borrowers, the Agent and the Lenders have agreed
to amend the Loan Agreement pursuant to the terms and conditions set forth
herein.
WHEREAS, the Agent and the Lenders wish to confirm the
Commitments of the Lenders as of the date hereof.
NOW, THEREFORE, in consideration of the mutual promises,
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as of September 17, 2001 (the "Effective Date"), subject to the
fulfillment of the conditions under Section 6 hereof, to add the following
proviso at the end of Section 8.14 of the Loan Agreement:
"provided, that solely for the purpose of the requirements of
this Section 8.14 and without any effect upon any other
provision of this Agreement or the definition of Consolidated
EBITDA, $10,000,000 shall be added to Consolidated EBITDA
calculated for the four consecutive Fiscal Quarter periods
ending on each of the
third and fourth Fiscal Quarters of Fiscal Year 2002 and on
each of the first, second, third and fourth Fiscal Quarters of
Fiscal Year 2003."
2. REPRESENTATIONS AND WARRANTIES. As an inducement to the
Lenders to enter into this Amendment, each of the Borrowers hereby represents
and warrants to the Lenders and agrees with the Lenders as follows:
(a) It has the power and authority to enter into this
Amendment and has taken all corporate action required to
authorize its execution, delivery, and performance of this
Amendment. This Amendment has been duly executed and delivered
by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms. The
execution, delivery, and performance of this Amendment will
not violate its certificate of incorporation or by-laws or any
agreement or legal requirements binding upon it.
(b) As of the date hereof and after giving effect to
the terms of this Amendment: (i) the Loan Agreement is in full
force and effect and constitutes a binding obligation of the
Borrowers, enforceable against the Borrowers and owing in
accordance with its terms; (ii) the Obligations are due and
owing by the Borrowers in accordance with their terms; and
(iii) Borrowers have no defense to or setoff, counterclaim, or
claim against payment of the Obligations and enforcement of
the Loan Documents based upon a fact or circumstance existing
or occurring on or prior to the date hereof.
3. COMMITMENTS OF LENDERS. Each Lender party hereto, and the
Agent, confirms that Annex A annexed hereto sets forth the Commitment of such
Lender as of the date hereof. The Swing Line Lender confirms that the Commitment
of the Swing Line Lender is as set forth in Section 2.12 of the Loan Agreement.
4. NO IMPLIED AMENDMENTS. Except as expressly provided herein,
the Loan Agreement and the other Loan Documents are not amended or otherwise
affected in any way by this Amendment.
5. ENTIRE AGREEMENT; MODIFICATIONS; BINDING EFFECT. This
Amendment constitutes the entire agreement of the parties with respect to its
subject matter and supersedes all prior oral or written understandings about
such matter. Each of the Borrowers confirms that, in entering into this
Amendment, it did not rely upon any agreement, representation, or warranty by
the Agent or any Lender except those expressly set forth herein. No
modification, rescission, waiver, release, or amendment of any provision of this
Amendment may be made except by a written agreement signed by the parties
hereto. The provisions of this Amendment are binding upon and inure to the
benefit of the representatives, successors, and assigns of the parties hereto;
provided, however, that no interest herein or obligation hereunder may be
assigned by any Borrower without the prior written consent of the Required
Lenders.
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6. EFFECTIVE DATE. This Agreement shall become effective on
the Effective Date subject to the fulfillment of the following conditions:
(i) No Event or Event of Default shall have occurred
and there shall have been no material adverse change in the
business or financial condition of any of the Borrowers.
(ii) The Borrowers shall deliver to the Agent a
certificate of the Borrowers' Chief Executive or Chief
Financial Officer with respect to Section (i) above and such
other instruments and documents as the Agent shall reasonably
request.
(iii) The Agent shall have received an original
counterpart of this Amendment, duly executed and delivered by
the Borrowers and the Required Lenders.
7. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, and by each party in separate counterparts, each of which is an
original, but all of which shall together constitute one and the same agreement.
8. GOVERNING LAW. This Amendment is deemed to have been made
in the State of New York and is governed by and interpreted in accordance with
the laws of such state, provided that no doctrine of choice of law shall be used
to apply the laws of any other state or jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their duly authorized officers as of
the date first above written.
BORROWERS:
THE PENN TRAFFIC COMPANY
By:
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Title:
DAIRY DELL, INC.
By:
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Title:
BIG M SUPERMARKETS, INC.
By:
------------------------------------
Title:
XXXXX XXXXXXX BAKING COMPANY
INC.
By:
------------------------------------
Title:
ADMINISTRATIVE AGENT:
FLEET CAPITAL CORPORATION
By:
------------------------------------
Title:
SWING LINE LENDER:
FLEET CAPITAL CORPORATION
By:
------------------------------------
Title:
4
LENDERS:
FLEET CAPITAL CORPORATION
By:
------------------------------------
Title:
GMAC BUSINESS CREDIT, LLC
By:
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Title:
AMSOUTH BANK
By:
------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
------------------------------------
Title:
XXXXXX FINANCIAL, INC.
By:
------------------------------------
Title:
LASALLE BUSINESS CREDIT, INC.
By:
------------------------------------
Title:
5
CITIZENS BUSINESS CREDIT COMPANY
By:
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Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
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Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By:
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Title:
FOOTHILL CAPITAL CORPORATION
By:
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Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:
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Title:
6
DIME COMMERCIAL CORP.
By:
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Title:
SOVEREIGN BANK
By:
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Title:
THE PROVIDENT BANK
By:
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Title:
7
