Exhibit 4.10
THIRD AMENDMENT TO
CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Amendment") is made as
of the 9th day of March, 2007 by and among:
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation
(the "Company");
the other Borrowers party hereto;
the Lenders party hereto; and
BANK OF AMERICA, N.A., as Administrative Agent and as Collateral Agent
(in such capacities, the "Agent").
In consideration of the mutual covenants herein contained and benefits to be
derived herefrom, the parties hereto agree as follows:
WITNESSETH
WHEREAS, the Company, the Borrowers, the Lenders, and the Agent are
parties to a Credit Agreement dated as of November 15, 2005, as amended by a
First Amendment to Credit Agreement dated as of March 13, 2006 and a Second
Amendment to Credit Agreement dated as of November 10, 2006 (the "Credit
Agreement"); and
WHEREAS, the Company has advised the Agent and the Lenders that the
Borrowers desire to amend the 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
Credit Agreement.
2. Amendment of the Credit Agreement. Section 6.05(a) of the
Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(a) sales, transfers or other dispositions of
inventory, used or surplus equipment, or Permitted Investments
made pursuant to Section 6.04(a) or (h) (other than
Investments in Equity Interests of Metro Inc., a Quebec
corporation), in each case in the ordinary course of
business;"
Section 6.05 of the Credit Agreement is hereby further amended
by (i) the addition of word "and" at the end of clause (e)
therein and (ii) the addition of a new clause (f) at the end
thereof reading as follows:
"(f) sales of Investments in Equity Interests of
Metro Inc., a Quebec corporation, (not to exceed 7.1 million
shares) held by the Company, provided, that the net cash
proceeds of any such sales are deposited in the Cash
Collateral Account (as defined in the Letter of Credit Pledge
and Security Agreement) and applied in accordance with the
terms of the Letter of Credit Pledge and Security Agreement."
3. Conditions to Effectiveness. This Amendment shall not be
effective until each of the following conditions precedent
have been fulfilled to the satisfaction of the Agent:
a. This Amendment shall have been duly executed and
delivered by the Company, the other Borrowers, the
Agent and the Required Lenders.
b. All action on the part of the Company and the other
Borrowers necessary for the valid execution, delivery
and performance by such Persons of this Amendment
shall have been duly and effectively taken. The Agent
shall have received from the Company and the other
Borrowers true copies of their respective certificate
of the resolutions authorizing the transactions
described herein, each certified by their secretary
or other appropriate officer to be true and complete.
c. The Borrowers shall reimburse the Agent and the
Lenders for all expenses incurred in connection with
this Amendment, including, without limitation,
reasonable attorneys' fees, costs and expenses.
d. No Default or Event of Default shall have occurred
and be continuing.
e. The Borrowers shall have provided to the Agent such
additional instruments, documents, and opinions of
counsel as the Agent and its counsel may have
reasonably requested.
4. Miscellaneous.
a. Except as provided herein, all terms and conditions
of the Credit Agreement and the other Loan Documents
remain in full force and effect. The Company and the
other Borrowers hereby ratify, confirm, and reaffirm
all of the representations, warranties and covenants
therein contained.
b. This 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. This 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 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
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and their seals to be hereto affixed as the date first above written.
[SIGNATURE PAGES FOLLOW]
BANK OF AMERICA, N.A., as Administrative Agent and
Collateral Agent
By: /s/Xxxxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
CIT GROUP BUSINESS CREDIT, INC.
By: /s/Xxxxxxx XxXxxxxx
--------------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Assistant Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/Xxx Xxxxxxxx
--------------------------------------------
Name: Xxx Xxxxxxxx
Title: RM
JPMORGAN CHASE BANK, N.A.
By: /S/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/Xxxxxx X. xxx Xxxxx
--------------------------------------------
Name: Xxxxxx X. xxx Xxxxx
Title: Duly Authorized Signatory
XXXXX FARGO RETAIL FINANCE, LLC
By: /s/Xxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
COMPASS FOODS, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXXX'X, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
SHOPWELL, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXXXXX, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
SUPER FRESH FOOD MARKETS, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
SUPER MARKET SERVICE CORP.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
SUPER FRESH/SAV-A-CENTER, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FOOD BASICS, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
HOPELAWN PROPERTY I, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
LO-LO DISCOUNT STORES, INC.
By: /s/Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
