Exhibit 4.9
SECOND AMENDMENT TO
CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Amendment") is made
as of the 10th day of November, 2006 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 (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. The Credit Agreement is hereby amended
as follows:
a. The Definition of "Permitted Investments" in Section 1.01 of the Credit
Agreement is hereby amended by (i) the deletion of the word "and" at the
end of clause (a) therein, (ii) the addition of word "and" at the end of
clause (b) therein and (iii) the addition of a new clause (c) at the end
thereof reading as follows:
"(c) Investments in Equity Interests of Metro Inc., a Quebec corporation,
held by the Company on the date hereof."
b. Section 6.02 of the Credit Agreement is hereby amended by (i) the deletion
of the word "and" at the end of clause (h) therein, (ii) the addition of
word "and" at the end of clause (i) therein and (iii) the addition of a new
clause (j) at the end thereof reading as follows:
"(j) Liens granted pursuant to the Amended and Restated Pledge and Security
Agreement, dated as of November 10, 2006 by and between the Company and
Bank of America, N.A., as Issuing Bank (the "Letter of Credit Issuing
Bank"), as such Amended and Restated Pledge Agreement may be hereafter
amended, modified, supplemented or restated (the
"Letter of Credit Pledge and Security Agreement"); provided, however, that
the Liens in favor of the Letter of Credit Issuing Bank on Non-Primary
Collateral (as defined in the Letter of Credit Pledge and Security
Agreement) granted pursuant to the Letter of Credit Pledge and Security
Agreement shall be expressly subordinate to the Liens on such assets in
favor of the Collateral Agent and the other Secured Parties as evidenced by
a subordination agreement in the form of Exhibit P hereto."
c. The Credit Agreement is hereby amended by the addition of an Exhibit P
thereto, which Exhibit P shall be in the form of Exhibit A to this
Amendment.
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/ Alexis MacElhiney
------------------------------------
Name: Alexis MacElhiney
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Steven Schuit
------------------------------------
Name: Steven Schuit
Title: 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
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Rebecca A. Ford
------------------------------------
Name: Rebecca A. Ford
Title: Duly Authorized Signatory
WELLS FARGO RETAIL FINANCE, LLC
By: /s/ Emily Abrahamson
------------------------------------
Name: Emily Abrahamson
Title: Assistant 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