EXHIBIT 10.8C
AMENDMENT NO. 3 TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMENDMENT NO. 3, dated as of April 19, 2002 (this "AMENDMENT") to that
certain Revolving Credit and Term Loan Agreement dated as of June 29, 1999, as
amended as of June 26, 2000 and as of September 14, 2001 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 amend certain
financial covenants contained in the Loan Agreement and the Lenders, subject to
the terms and conditions set forth herein, are willing to grant such request.
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. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as of April 19, 2002 (the "Effective Date"), subject to the fulfillment
of the conditions under Section 6 hereof, as follows:
(i) Section 8.13(a) (Cash Capital Expenditures) of the Credit
Agreement is hereby amended by deleting the information set forth
under the headings "FISCAL YEAR" and "AMOUNTS" and replacing it with
the following:
"Fiscal Year Amounts
----------- -------
2002 $50,000,000
2003 $45,000,000
2004 $47,000,000
2005 $47,000,000
2006 $50,000,000
2007 $50,000,000"
(ii) Section 8.14 (Consolidated EBITDA) of the Credit Agreement
is hereby amended by(x) deleting the information set forth under the
headings "FISCAL QUARTER" and "AMOUNTS" and replacing it with the
following:
"Fiscal Quarter Amounts
--------------- -------
Fiscal Year 2002 Q4 $ 95,000,000
Fiscal Year 2003 Q1 $ 95,000,000
Fiscal Year 2003 Q2 $ 95,000,000
Fiscal Year 2003 Q3 $ 95,000,000
Fiscal Year 2003 Q4 $ 95,000,000
Fiscal Year 2004 Q1 $ 95,000,000
Fiscal Year 2004 Q2 $ 96,000,000
Fiscal Year 2004 Q3 $ 97,000,000
Fiscal Year 2004 Q4 $ 98,000,000
Fiscal Year 2005 Q1 $101,000,000
Fiscal Year 2005 Q2 $104,000,000
Fiscal Year 2005 Q3 $108,000,000
Fiscal Year 2005 Q4 $112,000,000
Fiscal Year 2006 Q1 $115,000,000
Fiscal Year 2006 Q2 $118,000,000
Fiscal Year 2006 Q3 $121,000,000
Fiscal Year 2006 Q4 $125,000,000
Fiscal Year 2007 Q1 $130,000,000
Fiscal Year 2007 Q2 $135,000,000"
and (y) deleting 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."
(iii) Section 8.16 (Consolidated Interest Coverage Ratio) of the
Credit Agreement is hereby amended by deleting the information set
forth under the headings "FISCAL YEAR", "QUARTER" and "REQUIREMENT"
and replacing it with the following:
"Fiscal Year Quarter Requirement
------------ ------- -----------
2002 4 2.10
2
"Fiscal Year Quarter Requirement
------------ ------- -----------
2003 1 2.15
2 2.20
3 2.25
4 2.30
2004 1 2.35
2 2.40
3 2.40
4 2.40
2005 1 2.45
2 2.50
3 2.60
4 2.70
2006 1 2.75
2 2.80
3 2.85
4 2.90
2007 1 2.95
2 3.00"
(iv) Section 8.17 (Consolidated Fixed Charge Coverage Ratio) of
the Credit Agreement is hereby amended by deleting the information set
forth under the headings "FISCAL YEAR" and "REQUIREMENT" and replacing
it with the following:
"Fiscal Year Requirement
----------- -----------
2002 1.00
2003 1.00
2004 1.00
2005 1.00
2006 1.00"
(v) For the periods on and after the Effective Date, Annex B (Pricing
Grid) to the Credit Agreement is hereby deleted in its entirety and replaced
with Annex B annexed hereto.
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:
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(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.
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.
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(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:
------------------------------------
Title:
DAIRY DELL, INC.
By:
------------------------------------
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:
6
LENDERS:
FLEET CAPITAL CORPORATION
By:
------------------------------------
Title:
GMAC BUSINESS CREDIT, LLC
By:
------------------------------------
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:
7
CITIZENS BUSINESS CREDIT COMPANY
By:
------------------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
------------------------------------
Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By:
------------------------------------
Title:
FOOTHILL CAPITAL CORPORATION
By:
------------------------------------
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
------------------------------------
Title:
8
SOVEREIGN BANK
By:
------------------------------------
Title:
THE PROVIDENT BANK
By:
------------------------------------
Title:
9
Annex A
COMMITMENTS
REVOLVING A TERM B TERM TOTAL
LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------ ---------- ---------- ---------- ----------
Fleet Capital Corporation $ 26,640,775 $ 6,703,125 $ 15,082,031 $ 48,425,931
GMAC Business Credit, LLC $ 19,218,750 $ 3,093,750 $ 6,960,938 $ 29,273,438
AmSouth Bank $ 14,053,980 $ 2,262,876 $ 8,121,094 $ 24,437,950
Bank of America National Trust
and Savings Association $ 22,421,875 $ 3,609,375 $ 8,121,094 $ 34,152,344
Foothill Capital Corporation $ 27,586,645 $ 4,440,249 $ 6,960,938 $ 38,987,832
Xxxxxx Financial, Inc. $ 16,015,625 $ 2,578,125 $ 5,800,781 $ 24,394,531
LaSalle Business Credit, Inc. $ 16,015,625 $ 2,578,125 $ 5,800,781 $ 24,394,531
CIT Group/Business Credit, Inc. $ 16,015,625 $ 2,578,125 $ 5,800,781 $ 24,394,531
Citizens Business Credit Company $ 9,609,375 $ 1,546,875 $ 3,480,469 $ 14,636,719
IBJ Whitehall Business Credit
Corporation $ 9,609,375 $ 1,546,875 $ 3,480,469 $ 14,636,719
Transamerica Business Credit
Corporation $ 14,999,850 -0- -0- $ 14,999,850
Sovereign Bank $ 6,406,250 $ 1,031,250 $ 2,320,311 $ 9,757,811
The Provident Bank $ 6,406,250 $ 1,031,250 $ 2,320,313 $ 9,757,813
Total $205,000,000 $33,000,000 $ 74,250,000 $312,250,000
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ANNEX B
PRICING GRID
(Rates and fees in basis points)
Revolving/ Swing Line
Consolidated Loans Term Loans A Term Loans B
Funded Debt Prime Rate Prime Rate Prime Rate Unused Line
Ratio Libor + + Libor + + Libor + + Fee
----------- ------- ---------- ------- ---------- ------- ---------- ------------
Tier I: 4.75+ 275 175 275 175 300 200 50
Tier II: 4.26 - 4.75 250 150 250 150 300 200 50
Tier III: 3.76 - 4.25 225 125 225 125 275 175 37.5
Tier IV: 3.26 - 3.75 200 100 200 100 275 175 25
Tier V: < 3.25 187.5 87.5 187.5 87.5 275 175 25
There will be no pricing adjustment prior to May 1, 2000 (the
"Adjustment Date"). The initial review for pricing adjustment will occur
following receipt of the Borrowers' financial statements delivered pursuant to
Section 7.2(a) for Fiscal Year 2000. Thereafter, rate adjustments based on the
Pricing Grid will be made following receipt from the Borrowers of the financial
statements delivered pursuant to Section 7.2(a) or 7.2(b), and of a request for
a rate adjustment accompanied by a schedule reflecting the appropriate
calculation.
Quarterly adjustments based on the Pricing Grid shall occur 45 and 90
days after the end of the quarter or year-end, as appropriate, based on the
financial statements for the corresponding periods respectively.
Solely for the purposes of calculating Consolidated Funded Debt Ratio
under this Pricing Grid for the first Fiscal Quarter of Fiscal Year 2001 and any
subsequent Fiscal Quarter or Fiscal Year, Consolidated Funded Debt shall include
the Undrawn Amount of all Letters of Credit outstanding on the date of
determination.
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