Exhibit 4.8
FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "First Amendment") is made as
of the 13th day of March, 2006 by and among:
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation, as
Lead Borrower (in such capacity, the "Lead Borrower") for the Borrowers;
the 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 Lead Borrower, the Borrowers, the Lenders, and the Agent are
parties to a Credit Agreement dated as of November 15, 2005 (the "Credit
Agreement"); and
WHEREAS, the Lead Borrower 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. The Credit Agreement is hereby amended
as follows:
a. Section 6.08 (a) of the Credit Agreement is deleted in its entirety and the
following is substituted in its stead:
"(a) The Company will not, nor will it permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except
(i) the Company may make any Restricted Payment provided that immediately
before and after giving effect to any such Restricted Payment (1) each of
the Loan Parties is Solvent, (2) Borrowing Base Availability on the date of
any such dividend and projected on a pro forma basis for the following
twelve months shall be in an amount greater than twenty percent (20%) of
the Borrowing Base, and (3) no Default or Event of Default has occurred and
is continuing, (ii) the Company may declare and pay dividends with respect
to its capital stock payable solely in additional shares of its common
stock and (iii) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock; provided, however, that in the event that
the source of the payment of any Restricted Payment referred to in the
foregoing 6.08(a)(i) is or will be proceeds of any Borrowing(s) hereunder
in an amount in the aggregate in excess of $50,000,000 in any Fiscal Year,
then, as a condition precedent to the making of such Restricted Payment (in
addition to the conditions set forth in Section
6.08(a)(i)), the Company shall deliver to the Agent either (i) an opinion
as to solvency of the Loan Parties before and after giving effect to such
Restricted Payment, which opinion shall be in form and substance acceptable
to the Agent and rendered by a Person acceptable to the Agent or (ii)
evidence that (a) Borrowing Base Availability on the date of any such
Restricted Payment is in an amount greater than twenty percent (20%) of the
Borrowing Base and (b) average monthly Borrowing Base Availability
projected on a pro forma basis for the twelve months following the date of
any such Restricted Payment is greater than twenty percent (20%) of the
Borrowing Base and (c) the market value (as reflected on the Toronto Stock
Exchange at the close of trading on the Business Day immediately preceding
the date of such Restricted Payment) of the Equity Interests of Metro Inc.,
a Quebec corporation, owned beneficially and of record by the Loan Parties
and subject to no Liens is equal to or greater than $250,000,000.00."
3. Conditions to Effectiveness. This First Amendment shall not be effective
until each of the following conditions precedent have been fulfilled to the
satisfaction of the Agent:
a. This First Amendment shall have been duly executed and delivered by the
Lead Borrower, the other Borrowers, the Agent and the Required Lenders.
b. All action on the part of the Lead Borrower and the other Borrowers
necessary for the valid execution, delivery and performance by such Persons
of this First Amendment shall have been duly and effectively taken. The
Agent shall have received from the Lead Borrower 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 pay to the Agent for the account of the Lenders an
amendment fee (the "Amendment Fee") in an amount equal to .05% of the
aggregate outstanding Commitments Increase (i.e. $150,000,000 x .0005 =
$75,000.00). The Amendment Fee shall be fully earned and paid by the
Borrowers in full on the date of the First Amendment. The Amendment Fee
shall not be subject to refund or rebate under any circumstances. The Agent
shall allocate and pay the Amendment Fee to the Lenders in accordance with
the Applicable Percentages.
d. The Borrowers shall reimburse the Agent and the Lenders for all expenses
incurred in connection with the First Amendment, including, without
limitation, reasonable attorneys' fees, costs and expenses.
e. No Default or Event of Default shall have occurred and be continuing.
f. The Borrowers shall have provided such additional instruments, documents,
and opinions of counsel to the Agent as the Agent and their 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 Lead
Borrower and the other Borrowers hereby ratify, confirm, and reaffirm all
of the representations, warranties and covenants therein contained.
b. This First 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 First 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 First 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 First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First 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/ James Ward
------------------------------------
Name: James Ward
Title: Managing Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Matthew DeFranco
------------------------------------
Name: Matthew DeFranco
Title: Assistant Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Grabosky
------------------------------------
Name: Thomas Grabosky
Title: Director
JPMORGAN CHASE BANK, N.A.
By: /s/ James L. Sloan
------------------------------------
Name: James L. Sloan
Title: Vice President
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President Treasurer
COMPASS FOODS, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
BORMAN'S, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
SHOPWELL, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
WALDBAUM, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
SUPER FRESH FOOD MARKETS, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
SUPER MARKET SERVICE CORP.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
SUPER FRESH/SAV-A-CENTER, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
FOOD BASICS, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
HOPELAWN PROPERTY I, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President
LO-LO DISCOUNT STORES, INC.
By: /s/ William J. Moss
------------------------------------
Name: William J. Moss
Title: Vice President