May 12, 2003 Fleet Capital Corporation, as Administrative Agent and the Lenders Under the Credit Agreement as defined below 200 Glastonbury Boulevard Glastonbury, CT 060330 RE: AMENDMENT NO. 5 DATED AS OF MAY 8, 2003 ("AMENDMENT NO. 5"), TO THE...
EXHIBIT 99.3
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The Penn Traffic Company
May 12, 2003
Fleet Capital Corporation,
as Administrative Agent and the Lenders
Under the Credit Agreement as defined below
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 000000
RE: AMENDMENT NO. 5 DATED AS OF MAY 8, 2003 ("AMENDMENT NO. 5"), TO
THE REVOLVING CREDIT AND TERM LOAN AGREEMENT DATED AS OF JUNE 29,
1999, AS AMENDED (THE "CREDIT AGREEMENT"), AMONG THE PENN TRAFFIC
COMPANY (THE "COMPANY") AND CERTAIN SUBSIDIARIES (TOGETHER WITH
THE COMPANY, THE "BORROWERS"), THE LENDING INSTITUTIONS PARTY
THERETO (THE "LENDERS"), FLEET CAPITAL CORPORATION AS
ADMINISTRATIVE AGENT (THE "AGENT"), AND CERTAIN ADDITIONAL
AGENTS.
Gentlemen:
The Borrowers are advised by the Agent that the Lenders approved
Amendment No. 5 on May 8, 2003. On May 9, 3002, the Borrowers paid the Amendment
Fee (such term and all other capitalized terms used but not defined herein
having the meanings set forth in Amendment No. 5 or in the Credit Agreement),
and as of such date all conditions precedent to the effectiveness of the
Amendment had been satisfied except for the condition under Section 3.01(g) (the
"Condition") that the Company had filed with the Securities and Exchange
Commission its annual report for its Fiscal Year 2003 (the "10K Filing")
accompanied by a report thereon, unqualified in scope, by PriceWaterhouseCoopers
LLC (the "PWC Report").
The Borrowers have informed the Agent and the Lenders that the 10K
Filing and the PWC Report have been delayed, and the Borrowers agree and request
that the Agent and the Lenders agree, as follows:
(1) Effective as of May 9, 2003, the Condition is waived, the
Amendment shall be deemed in effect and the requirement for delivery of the
financial statements for Fiscal Year 2003 pursuant to Section 7.2(a) of the
Credit Agreement is waived through the earlier of (a) June 9, 2003 or (b) the
date of the occurrence under clause (2)(b) below.
(2) An Event of Default shall occur (a) if the 10K Filing accompanied
by the PWC Report (for the avoidance of doubt, unqualified) is not duly made on
or before June 9, 2003, or (b) on the earlier date on which the Company is
notified by PWC that it will not issue the PWC Report, in each case without any
requirement of notice or lapse of time or both, and the remedies afforded to the
Agent and the Lenders under the Loan Documents shall be immediately in effect
and available.
Please evidence your agreement to the foregoing by signing and return
(including by fax) to the Agent a copy of this letter agreement.
BORROWERS:
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THE PENN TRAFFIC COMPANY
By:
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Title:
DAIRY DELL, INC.
By:
-------------------------------------
Title:
BIG M SUPERMARKETS, INC.
By:
-------------------------------------
Title:
XXXXX XXXXXXX BAKING COMPANY INC.
By:
-------------------------------------
Title:
2
AGREED:
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ADMINISTRATIVE AGENT:
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FLEET CAPITAL CORPORATION
By:
-------------------------------------
Title:
SWING LINE LENDER:
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FLEET CAPITAL CORPORATION
By:
-------------------------------------
Title:
LENDERS:
--------
FLEET CAPITAL CORPORATION
By:
-------------------------------------
Title:
GMAC BUSINESS CREDIT, LLC.
By:
-------------------------------------
Title:
AMSOUTH BANK
By:
-------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-------------------------------------
Title:
3
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Title:
LASALLE BUSINESS CREDIT, INC.
By:
-------------------------------------
Title:
CITIZENS BUSINESS CREDIT COMPANY
By:
-------------------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
-------------------------------------
Title:
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By:
-------------------------------------
Title:
FOOTHILL CAPITAL CORPORATION
By:
-------------------------------------
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
-------------------------------------
Title:
4
SOVEREIGN BANK
By:
-------------------------------------
Title:
THE PROVIDENT BANK
By:
-------------------------------------
Title:
5
