AMENDMENT NO. 8 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 8, dated as of November 4, 1994 (this "AMENDMENT") to
that certain Loan and Security Agreement dated as of March 5, 1993, as amended
by Amendment Nos. 1, 2, 3, 4, 5, 6 and as further amended by a certain Consent
and Amendment to Loan and Security Agreement dated September 29, 1994
(hereinafter "Amendment No. 7") (collectively the "LOAN AGREEMENT") among THE
PENN TRAFFIC COMPANY ("PENN TRAFFIC"), DAIRY DELL, BIG M SUPERMARKETS, INC., and
PENNY CURTISS BAKING COMPANY, INC. (individually a "BORROWER" and collectively
the "BORROWERS"), the Lenders listed therein (collectively the "LENDERS") and
NATWEST USA CREDIT CORP., as Agent for the Lenders (in such capacity, the
"AGENT"), is made by, between and among the Borrowers, the Agent, and the
Lenders parties hereto.
Capitalized terms used herein, except as otherwise defined herein,
shall have the meanings given to such terms in the Loan Agreement.
- - - - - - - - -
WHEREAS, both the Maximum Revolving Credit Line and the amount of the
Total Facility has been further increased from $200,000,000 to $225,000,000 as a
result of the Borrowers' compliance with and the satisfaction of the conditions
to the effectiveness of sections 1(a)(ii) and (iii) of Amendment No. 6 and
WHEREAS, Mitsubishi Trust and Banking Corporation, a current Lender
(Mitsubishi), and NWCC, a current Lender, have committed to increase the amount
of each of their Commitments and to changes in their Pro-Rata Shares.
WHEREAS, as a result of the increase in the Maximum Credit Line and
the amount of the Total Facility and certain transfers by current Lenders of all
or a portion of their interests as Lenders to other current Lenders, changes are
required to be made in the Commitments and Pro-Rata Shares of all of the
Lenders.
WHEREAS, the Borrowers, the Agent and the current Lenders have agreed
to amend the Loan Agreement pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. COMMITMENTS AND PRO RATA SHARES. Mitsubishi and NWCC hereby
increase each of their respective Commitment and consent to the changes in their
Pro-Rata Share as Lenders under the Loan Agreement to the extent set forth
opposite each of their signatures to this Amendment. On and after the date of
this Amendment, the Commitments and Pro Rata Shares of all Lenders (including
Mitsubishi and NWCC) shall be as set forth opposite each of their signatures to
this Amendment.
2. REPRESENTATIONS AND WARRANTIES. As an inducement to the Agent and
the current Lenders to enter into this Amendment, each of the Borrowers hereby
represents and warrants to the Agent and such Lenders and agrees with the Agent
and such Lenders as follows:
(a) It has the power and authority to enter into this Amendment, 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. 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.
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4. 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, recision,
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.
5. EFFECTIVE DATE. This Agreement shall become effective when
executed by the Borrowers and such number of Lenders as shall constitute the
amount of Required Lenders.
6. SEVERABILITY. If any provision of this Amendment is prohibited or
invalid, under applicable law, it is ineffective only to such extent, without
invalidating the remainder of this Amendment.
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 (except as may be
applicable under the UCC with respect to the Security Interest) shall be used to
apply the laws of any other state or jurisdiction.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
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BORROWERS:
THE PENN TRAFFIC COMPANY
By:/s/
---------------------------
Title:
DAIRY DELL
By:/s/
---------------------------
Title:
BIG M SUPERMARKETS, INC.
By:/s/
---------------------------
Title:
PENNY CURTISS BAKING
COMPANY, INC.
By:/s/
---------------------------
Title:
-4-
LENDERS:
Commitment: $50,000,000 NATWEST USA CREDIT CORP.
Pro-Rata Share: 22.222224%
Lending
Office: 175 Water Street By:/s/
New York, NY 10038 ---------------------------
Title:
Commitment: $20,000,000 NATIONAL BANK OF CANADA
Pro-Rata Share: 8.888889%
Lending
Office: Empire Tower-Suite 1540 By:/s/
350 Main Street ---------------------------
Buffalo, NY 14202 Title:
Commitment: $20,000,000 FUJI BANK, LTD.
Pro-Rata Share: 8.888889%
Lending
Office: Two World Trade Center By:/s/
79th Fl. ---------------------------
New York, NY 10048 Title:
Commitment: $30,000,000 SANWA BUSINESS CREDIT
Pro-Rata Share: 13.333333% CORPORATION
Lending
Office: One South Wacker Drive
Suite 2800 By:/s/
Chicago, IL 60606 ---------------------------
Title:
Commitment: $30,000,000 BANKAMERICA BUSINESS CREDIT,
Pro-Rata Share: 13.333333% INC.
Lending
Office: 40 East 52nd Street
Second Fl. By:/s/
New York, NY 10022 ---------------------------
Title:
Commitment: $25,000,000 HELLER FINANCIAL, INC.
Pro-Rata Share: 11.111111%
Lending
Office: 101 Park Avenue By:/s/
12th Fl. ---------------------------
New York, NY 10178 Title:
-5-
Commitment: $10,000,000 IBJ SCHRODER
Pro-Rata Share: 4.444444%
Lending
Office: One State Street By:/s/
9th Fl. ---------------------------
New York, NY 10004 Title:
Commitment: $10,000,000 MIDLANTIC NATIONAL BANK
Pro-Rata Share: 4.444444%
Lending
Office: 499 Thornalle Street By:/s/
9th Fl. ---------------------------
Edison, NJ 08837 Title:
Commitment: $30,000,000 MITSUBISHI TRUST AND BANKING
Pro-Rata Share: 13.333333% CORPORATION
Lending
Office: 520 Madison Avenue
25th Fl. By:/s/
New York, NY 10022 ---------------------------
Title:
AGENT:
NATWEST USA CREDIT CORP.,
As Agent
By:/s/
---------------------------
Title:
-6-