Exhibit 10.30
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of January 17, 2002 in respect of the
Credit Agreement dated as of September 19, 2000 (as amended, modified,
supplemented and in effect from time to time, the "CREDIT AGREEMENT") among
PATHMARK STORES, INC. (the "BORROWER"), the LENDERS party thereto (individually,
a "LENDER" and collectively, the "LENDERS") and JPMORGAN CHASE BANK (formerly
known as The Chase Manhattan Bank), as Administrative Agent (the "ADMINISTRATIVE
AGENT").
The Borrower has requested that the Administrative Agent
consent to certain amendments to the Credit Agreement. The Administrative Agent,
pursuant to authority granted by, and having obtained all necessary consents of,
the Required Lenders (as defined in the Credit Agreement), has agreed to such
amendments and, accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. AMENDMENTS. Subject to the conditions precedent set
forth in Section 4 below, but effective as of the date hereof, the Credit
Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be a reference to the Credit Agreement as amended hereby.
2.02. DEFINITIONS. Section 1.01 of the Credit Agreement is
hereby amended as follows:
(a) adding the following new definitions and inserting the
same in the appropriate alphabetical locations to read in their
entirety as follows:
"INITIAL SUBORDINATED INDEBTEDNESS" means the
Subordinated Indebtedness described in the Borrower's
confidential offering memorandum to be dated January 2002.
"INDUSTRIAL REVENUE BONDS" means (i) the 10.875%
industrial revenue bonds due December 1, 2003 issued by Berks
County International Development Authority in July 1982 in
connection with the Pathmark Shillington Project and (ii) the
10.5% industrial revenue bonds due November 1, 2003 issued by
the Delaware Economic Development Authority in March 1982 in
connection with the Pathmark Lancaster Project, in an
aggregate amount not to exceed $6,400,000.
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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"SUBORDINATED INDEBTEDNESS" means Indebtedness
incurred in accordance with the provisions of Section 6.18.
(b) amending the definition of "CHANGE IN CONTROL" to read in
its entirety as follows:
"CHANGE IN CONTROL" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of record,
by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date
hereof) other than the two largest shareholders of the
Borrower on the Effective Date, of shares representing more
than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower, (b)
occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated or
(c) the occurrence of any change of control event as defined
in any indenture in respect of Subordinated Indebtedness
requiring the Borrower to prepay, redeem or repurchase (or
make an offer to prepay, redeem or repurchase) any portion of
such Subordinated Indebtedness.
(c) amending the definition of "NET PROCEEDS" to add a new
paragraph at the end thereof to read in its entirety as follows:
"Notwithstanding the foregoing, "Net Proceeds"
realized in respect of the incurrence of Indebtedness
permitted by Section 6.01(a)(xiii) shall be net of the amount
of the Industrial Revenue Bonds concurrently being paid with
the proceeds of such incurrence."
(d) amending clause (d) of the definition of "PREPAYMENT
EVENT" to read in its entirety as follows:
"(d) the incurrence by the Borrower or any Subsidiary
of any Indebtedness, other than Indebtedness permitted by
Section 6.01(a), PROVIDED, HOWEVER that the incurrence of
Indebtedness permitted by Section 6.01(a)(xiii) shall
constitute a Prepayment Event for the purposes hereof; or"
2.03. INDEBTEDNESS. Section 6.01(a) of the Credit Agreement is
hereby amended by (i) deleting the "and" at the end of clause (xii) thereof,
(ii) renumbering existing clause (xiii) as clause (xiv) and (iii) inserting a
new clause (xiii) to read as follows:
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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"(xiii) the Borrower may become and remain liable with respect
to Subordinated Indebtedness in an aggregate principal amount not to
exceed $350,000,000 at any time outstanding; and"
2.04. CAPITAL EXPENDITURES. Section 6.14 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"The Borrower will not permit the aggregate amount of Capital
Expenditures made by the Borrower and the Subsidiaries in any Fiscal
Year to exceed the amount set forth below opposite such Fiscal Year:
Fiscal Year Amount
----------- ------
2002 $127,500,000
2003 $135,000,000
2004 $135,000,000
2005 $140,000,000
2006 $145,000,000
2007 $150,000,000
The amount of permitted Capital Expenditures set forth above in respect
of any Fiscal Year shall be increased by the lesser of (a) the amount
of unused Capital Expenditures for the immediately preceding fiscal
year (less an amount equal to any unused Capital Expenditures carried
forward to such preceding fiscal year) and (b) $20,000,000, PROVIDED,
however, that upon the receipt by the Borrower of the Net Proceeds of
the issuance of at least $150,000,000 face amount of Subordinated
Indebtedness (at a price not less than 2% below par), and the
application of such Net Proceeds to the prepayment of Loans hereunder,
each of the amounts specified in the chart above for each fiscal year
ending after the date of the issuance of such Subordinated Indebtedness
shall be increased by $30,000,000."
2.05. SUBORDINATED INDEBTEDNESS. A new Section 6.18 is hereby
added at the end of Article VI to read as follows:
"SECTION 6.18. SUBORDINATED INDEBTEDNESS. The Borrower may
after the date hereof incur unsecured Subordinated Indebtedness subject
to the following conditions:
(a) such Indebtedness shall be subordinated to the
obligations of the Borrower to pay principal of and interest
on the Loans, the reimbursement obligation in respect of any
LC Disbursement and all other amounts payable hereunder and
such subordination of the Initial Subordinated Indebtedness
only, shall be in form and substance reasonably satisfactory
to the Administrative Agent (the subordination provisions of
any subsequent Subordinated Indebtedness shall be
substantially similar to those of the Initial Subordinated
Indebtedness);
(b) such Indebtedness shall be an obligation of the
Borrower only, except that any Subsidiary Loan Party may
Guarantee any such Indebtedness, so long as such Guarantee is
subordinated to the obligations of such Subsidiary Loan Party
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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under the Guarantee Agreement and the Security Documents and
such subordination of the Guarantee of the Initial
Subordinated Indebtedness only, shall be in form and substance
reasonably satisfactory to the Administrative Agent (the
subordination provisions of the Guarantee of any subsequent
Subordinated Indebtedness shall be substantially similar to
those of the Guarantee of the Initial Subordinated
Indebtedness);
(c) to the extent required pursuant to Section
2.11(b), the Net Proceeds of such Indebtedness shall be
applied to prepay Loans in the manner provided in Section
2.11(e);
(d) the terms of such Indebtedness shall not provide
for scheduled amortization of any portion of the principal
thereof prior to the date six months after the final maturity
of the Loans hereunder, it being understood that asset sale
offers and change of control offers are not deemed scheduled
amortization;
(e) financial and other covenants, events of default
and mandatory prepayments applicable to such Indebtedness
shall be on terms that are at the time customary in the market
for subordinated debt being incurred by borrowers, and in
transactions, comparable to the Borrower and the proposed debt
issuance;
(f) the terms and conditions of such Indebtedness
shall not contain any provision permitting the maturity of
such Indebtedness to be accelerated upon the occurrence of a
Default or Event of Default hereunder (but may contain a
provision permitting acceleration of such Indebtedness upon
the acceleration of the Loans hereunder or upon the failure of
the Borrower to make a principal payment at final maturity of
the Loans hereunder);
(g) the terms and conditions of such Indebtedness
shall contain financial covenants which are no more
restrictive to the Loan Parties than the covenants in this
Agreement and other covenants which, when taken as a whole,
are no more restrictive to the Loan Parties than the covenants
in this Agreement;
(h) at the time of issuance of such Indebtedness, and
after giving effect thereto, the Borrower shall be in
compliance with Sections 6.15 through 6.17 (the determination
of such compliance to be calculated under the assumption that
such Indebtedness was issued, at the beginning of the
respective period and that any other Indebtedness to be
retired with the proceeds thereof was in fact retired on such
date of issuance), and the Borrower shall have delivered to
the Administrative Agent a certificate of a Financial Officer
to such effect setting forth in reasonable detail the
computations necessary to determine such compliance; and
(i) at the time of such issuance, and after giving
effect thereto, no Default or Event of Default shall have
occurred and be continuing hereunder and the
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer to such effect.
Following any such issuance of Subordinated Indebtedness, neither the
Borrower nor any of its Subsidiaries shall purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount
owing in respect of, any Subordinated Indebtedness, except that the
Borrower may make payments on the regularly-scheduled payment dates
with respect to the principal of and interest on the Subordinated
Indebtedness (as originally in effect). The Borrower will not designate
any Indebtedness as "Designated Senior Indebtedness" (or equivalent
term) under any indenture in respect of Subordinated Indebtedness other
than the Indebtedness hereunder. Neither the Borrower nor any of its
Subsidiaries will consent to any modification, supplement or waiver of
any of the provisions of any Subordinated Indebtedness following its
issuance if any such modification, supplement or waiver would render
such Subordinated Indebtedness no longer compliant with the provisions
of this Section 6.18 without the prior written consent of the Required
Lenders."
Section 3. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Lenders that:
(a) on the date hereof, and after giving effect to this
Amendment No. 1, no Default is in existence and continuing; and
(b) the representations and warranties set forth in Section 3
of the Credit Agreement are true and correct in all material respects
on and as of the date hereof, except to the extent such representations
and warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date.
Section 4. CONDITIONS. The amendments to the Credit Agreement
set forth in Section 2 hereof shall become effective, as of the date hereof,
upon (i) the execution of this Amendment No. 1 by the Borrower and the
Administrative Agent and (ii) the payment to each Lender that authorizes the
Administrative Agent to execute this Amendment No. 1 not later than 5 p.m. New
York time on January 17, 2002, of an amendment fee in an amount equal to 1/20 of
1% of the sum of (x) the Revolving Commitment of such Lender on such date PLUS
(y) the aggregate outstanding principal amount of the Term Loans of such Lender
on such date.
Section 5. MISCELLANEOUS. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 1 may be executed in counterparts which, taken together, shall
constitute a single document and any of the parties hereto may execute this
Amendment No. 1 by signing any such counterpart. Terms defined in the Credit
Agreement are used herein as defined therein. This Amendment No. 1 shall be
governed by and construed in accordance with the law of the State of New York.
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed as of the date and year first above written.
PATHMARK STORES, INC.
By /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Senior Vice President, Secretary and
General Counsel
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank),
as Administrative Agent
By /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
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