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Exhibit 10.10A
AMENDMENT NO. 1 TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMENDMENT NO. 1, dated as of June 26, 2000 (this "AMENDMENT") to
that certain Revolving Credit and Term Loan Agreement dated as of June 29, 1999,
as may be 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 PENNY CURTISS 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: (1) agree to
amend the Loan Agreement to permit Penn Traffic to repurchase up to $10,000,000
of its common stock; and (2) make certain other amendments to the Loan
Agreement.
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. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended as of June
26, 2000 (the "Effective Date"), subject to the fulfillment of the conditions
under Section 6 hereof, as follows:
(i) Clause "(i)" of the definition of "Commitment" is amended
to read as f"(i) set forth on Annex A hereto (with respect to
Revolving Loans and Term Loans), subject to Section 11.13 hereof".
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(ii) The reference to "the signature pages hereof" in clause
(1) of the fifth sentence of Section 11.13(b) is amended to read
"Annex A hereto".
(iii) The definition of "Pricing Grid" in Section 1.1 is
hereby amended and restated in its entirety to read: "PRICING GRID"
means the pricing grid (and subjoined text) attached hereto as Annex
B.
(iv) The first sentence of Section 6.21 of the Loan Agreement
is hereby amended and restated in its entirety to read: "None of the
Borrowers and their subsidiaries owns any "margin stock" as such
term is defined in Regulation U, as amended, of the Federal Reserve
Board, other than capital stock of Penn Traffic repurchased pursuant
to Section 8.2 hereunder."
(v) Section 7.3 of the Loan Agreement is amended to add the
following subsection: "(o) Within 10 days thereof, any amendment or
modification to the Senior Notes Indenture."
(vi) Section 8.2 of the Loan Agreement is hereby amended by
adding the following sentence to the end thereof: "Notwithstanding
the foregoing, if no Event or Event of Default has occurred and is
continuing, Penn Traffic may repurchase its Capital Stock on the
open market or in privately negotiated arm's-length transactions;
PROVIDED, HOWEVER, that the aggregate purchase price for all such
repurchases shall not exceed $10,000,000; and PROVIDED, FURTHER,
that Penn Traffic shall give the Agent written notice within five
(5) Business Days following any such repurchase if the purchase
price for such repurchase plus the aggregate purchase price for all
prior repurchases of the capital stock of Penn Traffic not
previously reported shall exceed an aggregate of $1,000,000; and
PROVIDED, FURTHER, that no such repurchase may be made in the event
that such repurchase would not be permitted under the Senior Notes
Indenture."
(vii) Annex B is replaced in its entirety with the revised
Annex B attached 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:
(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
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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.
(ii) The Borrowers shall deliver to the Agent for the benefit
of the Lenders an opinion of Borrowers' counsel in form and
substance satisfactory to the Agent and its counsel which opinion
shall cover such matters as the Agent may reasonably request.
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(iii) 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.
(iv) 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:
PENNY CURTISS BAKING COMPANY
INC.
By:
-------------------------------
Title:
ADMINISTRATIVE AGENT:
---------------------
FLEET CAPITAL CORPORATION
By:
-------------------------------
Title:
SWING LINE LENDER:
------------------
FLEET CAPITAL CORPORATION
By:
-------------------------------
Title:
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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:
HELLER FINANCIAL, INC.
By:
-------------------------------
Title:
LASALLE BUSINESS CREDIT, INC.
By:
-------------------------------
Title:
CITIZENS BUSINESS CREDIT COMPANY
By:
-------------------------------
Title:
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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:
7
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DIME COMMERCIAL CORP.
By:
-------------------------------
Title:
SOVEREIGN BANK
By:
-------------------------------
Title:
THE PROVIDENT BANK
By:
-------------------------------
Title:
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Annex A
COMMITMENTS
<TABLE>
<CAPTION>
REVOLVING A TERM B TERM TOTAL
LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------ ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Fleet Capital Corporation $ 26,640,625 $ 8,125,000 $15,234,375 $ 50,000,000
GMAC Business Credit, LLC $ 19,218,750 $ 3,750,000 $ 7,031,250 $ 30,000,000
AmSouth Bank $ 14,053,980 $ 2,742,880 $ 8,203,125 $ 24,999,985
Bank of America National Trust
and Savings Association $ 22,421,875 $ 4,375,000 $ 8,203,125 $ 35,000,000
Foothill Capital Corporation $ 19,218,750 $ 3,750,000 $ 7,031,250 $ 30,000,000
Heller Financial, Inc. $ 16,015,625 $ 3,125,000 $ 5,859,375 $ 25,000,000
LaSalle Business Credit, Inc $ 16,015,625 $ 3,125,000 $ 5,859,375 $ 25,000,000
CIT Group/Business Credit, Inc. $ 16,015,625 $ 3,125,000 $ 5,859,375 $ 25,000,000
Citizens Business Credit $ 9,609,375 $ 1,875,000 $ 3,515,625 $ 15,000,000
IBJ Whitehall Business Credit
Corporation $ 9,609,375 $ 1,875,000 $ 3,515,625 $ 15,000,000
Transamerica Business Credit
Corporation $ 15,000,000 -0- -0- $ 15,000,000
Dime Commercial Corp. $ 8,367,895 $ 1,632,120 -0- $ 10,000,015
Sovereign Bank $ 6,406,250 $ 1,250,000 $ 2,343,750 $ 10,000,000
The Provident Bank $ 6,406,250 $ 1,250,000 $ 2,343,750 $ 10,000,000
Total $205,000,000 $40,000,000 $75,000,000 $320,000,000
</TABLE>
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ANNEX B
PRICING GRID
(Rates and fees in basis points)
<TABLE>
<CAPTION>
Revolving/Swing Line
Loan Term Loans A Term Loans B
Consolidated --------------------- --------------------- -------------------
Funded Debt Prime Rate Prime Rate Prime Rate Unused
Ratio Libor + + Libor + + Libor + + Line Fee
----- ------- ---------- ------- ---------- ------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Tier I: 4.75+ 237.5 137.5 237.5 137.5 300 200 50
Tier II: 4.26 - 4.75 212.5 112.5 212.5 112.5 300 200 50
Tier III: 3.76 - 4.25 187.5 87.5 187.5 87.5 275 175 37.5
Tier IV: 3.26 - 3.75 162.5 62.5 162.5 62.5 275 175 25
Tier V: Less than 3.25 150 50 150 50 275 175 25
</TABLE>
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.
