Exhibit 10.41
THIRD AMENDMENT TO
LETTER OF CREDIT AGREEMENT
This Third Amendment to Letter of Credit Agreement (the "Third
Amendment") is made as of the 14th day of October, 2007 by and among
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation
(the "Company"); and
BANK OF AMERICA, N.A., as Issuing Bank (the "Issuing Bank").
In consideration of the mutual covenants herein contained and benefits to be
derived herefrom, the parties hereto agree as follows:
WITNESSETH
WHEREAS, the Company and the Issuing Bank are parties to a Letter of
Credit Agreement dated as of October 14, 2005, as amended (the "Letter of Credit
Agreement"); and
WHEREAS, the Company has advised the Issuing Bank that the Company
desires to amend the Letter of Credit Agreement as provided herein.
NOW THEREFORE, it is hereby agreed as follows:
1. Definitions: All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in
the Letter of Credit Agreement.
2. Amendment of the Letter of Credit Agreement. The Letter of
Credit Agreement is hereby amended as follows:
a. Clause (i) of the definition of "Termination Date" in
Section 1.01 of the Letter of Credit Agreement is hereby
amended by deleting the reference to "October 14, 2007"
therein and substituting in its stead "April 14, 2008".
b. Clause (ii) of Section 2.01(b) of the Letter of Credit
Agreement is hereby amended by deleting the reference to
"October 14, 2007" therein and substituting in its stead
"April 14, 2008".
3. Conditions to Effectiveness. This Third Amendment shall
not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of the
Issuing Bank:
a. This Third Amendment shall have been duly executed and
delivered by the Company and the Issuing Bank.
b. All action on the part of the Company necessary for the
valid execution, delivery and performance by the Company
of this Third Amendment shall have been duly and
effectively taken.
c. No Default or Event of Default shall have occurred and be
continuing.
d. The Company shall have provided such additional
instruments and documents as the Issuing Bank and their
counsel may have reasonably requested.
4. Miscellaneous.
a. Except as provided herein, all terms and conditions of the
Letter of Credit Agreement remain in full force and
effect. The Company hereby ratifies, confirms, and
reaffirms all of the representations, warranties and
covenants therein contained.
b. This Third Amendment may be executed in several
counterparts and by each party on a separate counterpart,
each of which when so executed and delivered, each shall
be an original, and all of which together shall constitute
one instrument. Delivery of an executed counterpart of a
signature page hereto by telecopy shall be effective as
delivery of a manually executed counterpart hereof.
c. The Company shall reimburse the Issuing Bank for all
expenses incurred in connection with this Third Amendment,
including, without limitation, reasonable attorneys' fees,
costs and expenses.
d. This Third Amendment expresses the entire understanding of
the parties with respect to the matters set forth herein
and supersedes all prior discussions or negotiations
hereon. Any determination that any provision of this Third
Amendment or any application hereof is invalid, illegal or
unenforceable in any respect and in any instance shall not
effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality
or enforceability of any other provisions of this Third
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Amendment to be executed as the date first above
written.
[SIGNATURE PAGES FOLLOW]
BANK OF AMERICA, N.A., as Issuing Bank
By: /s/Xxxxxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP Treasurer
Each of the following Participants hereby
consents to the above Third Amendment and
agrees that their respective participations in
the Issuing Bank's interest in the Letter of
Credit Agreement remain in full force and
effect giving effect to the above Third
Amendment:
THE BANK OF NEW YORK
By:/s/Xxxxx X. Xxxx
----------------
Name: Xxxxx X. Xxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By:/s/Xxxxx. X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO RETAIL FINANCE, LLC
By: /s/Xxxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
