Exhibit 10.28
AMENDMENT No. 6 dated as of March 25, 2003, to the Credit Agreement dated
as of February 23, 2001, as amended (the "Credit Agreement"), among THE
GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. (the "Company"), THE GREAT
ATLANTIC & PACIFIC COMPANY OF CANADA, LIMITED (the "Canadian Borrower"),
COMPASS FOODS, INC., XXXXXX'X, INC., XXXX'x FOOD STORES, INC., SHOPWELL,
INC., XXXXXXXX, INC., SUPER FRESH FOOD MARKETS, INC. and SUPER MARKET
SERVICE CORP. (together with the Company, the "U.S. Borrowers", and the
U.S. Borrowers together with the Canadian Borrower, the "Borrowers"), the
LENDERS party thereto (the "Lenders"), JPMORGAN CHASE BANK (successor to
THE CHASE MANHATTAN BANK), as agent for the U.S. Lenders (in such capacity,
the "U.S. Administrative Agent"), and X. X. XXXXXX BANK CANADA, (successor
to THE CHASE MANHATTAN BANK OF CANADA), as agent for the Canadian Lenders
(in such capacity, the "Canadian Administrative Agent", and together with
the U.S. Administrative Agent, the "Administrative Agents").
A. Pursuant to the Credit Agreement, the Lenders have extended
credit to the Borrowers, and have agreed to extend credit to the Borrowers, in
each case pursuant to the terms and subject to the conditions set forth therein.
B. The Borrowers have requested that the Lenders agree to
amend the Credit Agreement as set forth herein.
C. The undersigned Lenders are willing to so amend the Credit
Agreement pursuant to the terms and subject to the
conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned thereto in the Credit Agreement.
Accordingly, in consideration of the mutual agreements,
provisions and covenants herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, and
subject to the conditions, the parties hereto hereby agree as follows:
SECTION 1. Appointment. The parties hereto hereby agree that
JPMorgan Chase Bank, an authorized foreign bank under the Bank Act (Canada)
carrying on business through its Canadian branch (in such capacity, "JPMorgan
Xxxxx Xxxx, Xxxxxxx Branch"), is appointed Canadian Administrative Agent and
Canadian Collateral Agent, replacing X. X. Xxxxxx Bank Canada, and JPMorgan
Chase Bank, Toronto Branch, hereby accepts such appointment. All fees payable to
X. X. Xxxxxx Bank Canada under the Loan Documents shall be payable to JPMorgan
Chase Bank, Toronto Branch, as successor to X. X. Xxxxxx Bank Canada.
SECTION 2. Amendments. Section 6.07 of the Credit Agreement is
hereby amended by inserting immediately after the text "any Hedging Agreement"
the text ", other than Hedging Agreements entered into in the ordinary course of
business and consistent with past practices of the Company to hedge or mitigate
currency or energy exposure risks to which the Company or any Subsidiary is
exposed in the conduct of its business".
SECTION 3. Representations and Warranties. Each of the
Borrowers and other Loan Parties represents and warrants to
the Administrative Agents and the Lenders that:
(a) This Amendment has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors' rights generally and except as
enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(b) After giving effect to this Amendment, the representations
and warranties set forth in Article III of the Credit Agreement are
true and correct in all material respects with the same effect as if
made on the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) After giving effect to this Amendment, no Event of
Default, or event that with notice or lapse of time or both would
constitute an Event of Default, has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective (as of the date first written above) on the date (the
"Amendment Effective Date") when (i) the Administrative Agents (or their
counsel) shall have received counterparts of this Amendment that, when taken
together, bear the signatures of the Borrowers and the Required Lenders and (ii)
the Administrative Agents shall have received payment of any out-of-pocket
expenses of the Administrative Agents payable by the Borrowers that have been
invoiced before the Amendment Effective Date.
SECTION 5. Expenses. The Borrowers shall reimburse the
Administrative Agents for their reasonable out-of-pocket expenses incurred in
connection with this Amendment, including the reasonable fees and expenses of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agents, and XxXxxxxx
Binch, Canadian counsel for the Administrative Agents.
SECTION 6. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Administrative Agents or the Lenders under the Credit Agreement, and shall not
alter, modify, amend or in any way affect the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement, which is ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrowers to a consent to, or a waiver,
amendment, modification or other change of, any terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement in similar or
different circumstances. This Amendment shall apply and be effective only with
respect to the provision of the Credit Agreement specifically referred to
herein.
SECTION 7. Credit Agreement. Except as specifically amended
hereby, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof. After
the date hereof, any reference to the Credit Agreement shall mean the Credit
Agreement as amended hereby. This Amendment shall constitute a Loan Document for
all purposes under the Credit Agreement.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract. Delivery of an
executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
SECTION 10. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.,
by
Name:
Title:
THE GREAT ATLANTIC & PACIFIC
COMPANY OF CANADA, LIMITED,
by
Name:
Title:
by
Name:
Title:
JPMORGAN CHASE BANK,
individually and as U.S.
Administrative Agent,
by
Name:
Title:
X.X. XXXXXX BANK CANADA, as
resigning Canadian Administrative
Agent and Canadian
Collateral Agent,
by
Name:
Title:
JPMORGAN CHASE BANK, TORONTO BRANCH,
as a Lender and successor Canadian
Administrative Agent and Canadian
Collateral Agent,
by
Name:
Title:
COMPASS FOODS, INC.,
by
Name:
Title:
XXXXXX'X, INC.,
by
Name:
Title:
XXXX'X FOOD STORES, INC.,
by
Name:
Title:
SHOPWELL, INC.,
by
Name:
Title:
XXXXXXXX, INC.,
by
Name:
Title:
SUPER FRESH FOOD MARKETS, INC.,
by
Name:
Title:
SUPER MARKET SERVICE CORP.,
by
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 6
DATED AS OF MARCH 25, 2003, TO THE
CREDIT AGREEMENT DATED AS OF
FEBRUARY 23, 2001, as amended, among
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC., THE GREAT ATLANTIC &
PACIFIC COMPANY OF CANADA, LIMITED,
THE OTHER BORROWERS PARTY THERETO,
THE LENDERS PARTY THERETO, JPMORGAN
CHASE BANK, as U.S. Administrative
Agent, and X. X. XXXXXX BANK CANADA,
as Canadian Administrative Agent.
Name of Institution:
by
Name:
Title:
by
Name:
Title:
