FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Fifth Amendment to Amended and Restated Credit Agreement (the “Fifth Amendment”) is made as of the 15th day of December, 2006 by and among
PATHMARK STORES, INC., a corporation organized under the laws of the State of Delaware, having a place of business at 200 Milik Street, Carteret, New Jersey 07008;
the LENDERS party hereto;
FLEET RETAIL GROUP, LLC (f/k/a Fleet Retail Group, Inc.), as Administrative Agent and Collateral Agent for the Lenders, a Delaware limited liability company, having a place of business at 40 Broad Street, Boston, Massachusetts 02109
THE CIT GROUP/BUSINESS CREDIT, INC., as Syndication Agent; and
GMAC COMMERCIAL FINANCE LLC and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agents
in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
WITNESSETH
WHEREAS, the Borrower, the Administrative Agent, the Collateral Agent, the Lenders, the Syndication Agent, and the Co-Documentation Agents have entered into an Amended and Restated Credit Agreement dated as of October 1, 2004 (as amended and in effect, the “Credit Agreement”); and
WHEREAS, the Borrower, the Administrative Agent, the Collateral Agent, the Lenders, the Syndication Agent, and the Co-Documentation Agents have agreed to amend certain provisions of the Credit Agreement as set forth 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. | Amendments to Article VI. The provisions of Article VI of the Credit Agreement are hereby amended by deleting the provisions of SECTION 6.17 in their entirety and substituting the following in their stead: |
6.17 Ratio of Credit Extensions to Consolidated EBITDA. The Borrower shall not, at any time, permit the ratio of the Credit Extensions to Consolidated EBITDA (calculated on a trailing four fiscal quarter basis) at the end of any fiscal quarter to be more than 2.40:1.00.
1
| 3. | Conditions to Effectiveness. This Fifth Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Agent: |
|
| a. | This Fifth Amendment shall have been duly executed and delivered by the Borrower, the Administrative Agent, the Collateral Agent and the Required Lenders. The Administrative Agent shall have received a fully executed copy hereof and of each other document required hereunder. |
|
| b. | The Borrower shall have reimbursed the Administrative Agent for all expenses due and payable in connection herewith, including, without limitation, its reasonable attorneys’ fees. |
|
| c. | No Default or Event of Default shall have occurred and be continuing. |
|
| d. | The Borrower shall have provided such additional instruments and documents to the Administrative Agent as the Administrative 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 Borrower hereby ratifies, confirms, and reaffirms all of the representations, warranties and covenants therein contained. Without limiting the generality of the foregoing, the Borrower hereby acknowledges, confirms and agrees that all Collateral shall continue to secure the Obligations and any modifications, amendments, substitutions or renewals thereof. |
|
| b. | This Fifth Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered, 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 or electronic transmission shall be effective as delivery of a manually executed counterpart hereof. |
|
| c. | This Fifth 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 Fifth 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 Fifth Amendment. |
2
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be executed and their seals to be hereto affixed as of the date first above written.
PATHMARK STORES, INC.
By: /s/ Frank Vitrano
Print Name: Frank Vitrano
Title: President and Chief Financial Officer
FLEET RETAIL GROUP, LLC, as Administrative Agent, Collateral Agent and Lender
By: /s/ Keith Vercauteren
Print Name: Keith Vercauteren
Title: Managing Director
GMAC COMMERCIAL FINANCE LLC
By: /s/ Christopher M. Gauch
Print Name: Christopher M. Gauch
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Amanda J. van Heyst
Print Name: Amanda J. van Heyst
Title: Duly Authorized Signatory
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Matthew DeFranco
Print Name: Matthew DeFranco
Title: Assistant Vice President
3
WELLS FARGO FOOTHILL, LLC
By: /s/ David P. Hill
Print Name: David P. Hill
Title: Vice President
4
