-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FND47zZyGw+b2RXM/PU13py0Gzgunfhkjymj8N6lba2OA+BmAbNyKpk5PvTXWXsX pO9JW9kQCO0KmLulkPUGXg== 0000950142-02-000817.txt : 20020816 0000950142-02-000817.hdr.sgml : 20020816 20020816154121 ACCESSION NUMBER: 0000950142-02-000817 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20020814 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020816 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PENN TRAFFIC CO CENTRAL INDEX KEY: 0000077155 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 250716800 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09930 FILM NUMBER: 02741225 BUSINESS ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SRYACUSE STATE: NY ZIP: 13221-4737 BUSINESS PHONE: 8145369900 MAIL ADDRESS: STREET 1: 1200 STATE FAIR BLVD CITY: SYRACUSE STATE: NY ZIP: 13221-4737 8-K 1 form8k-81502.txt FORM 8-K CURRENT REPORT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------ FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): August 14, 2002 THE PENN TRAFFIC COMPANY (Exact name of registrant as specified in its charter) Delaware 1-9930 25-0716800 (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 1200 State Fair Boulevard, Syracuse, New York (Address of principal executive offices) 13221-4737 (zip code) (315) 453-7284 (Registrant's telephone number, including area code) 2 ITEM 5. OTHER EVENTS As previously announced, The Penn Traffic Company ("Penn Traffic") recently discovered an accounting fraud at its Penny Curtiss bakery manufacturing subsidiary that will require it to restate its financial results for what Penn Traffic believes will be the past three fiscal years and the first quarter of the current fiscal year. Penn Traffic's Audit Committee is conducting an independent investigation into the accounting fraud. On August 14, 2002, Penn Traffic received a waiver letter from Fleet Bank approved by the Lenders under its Revolving Credit and Term Loan Agreement (the "Agreement") that (i) waives the events of default that arose under the Agreement as a result of the previously announced accounting fraud at its Penny Curtiss bakery manufacturing subsidiary through August 30, 2002, (ii) states that the lenders under the Agreement will forebear from taking any action under the Agreement as a result of such defaults and (iii) permits Penn Traffic to borrow, prepay and reborrow under the Agreement through August 30, 2002. Penn Traffic is currently negotiating a longer term waiver of the defaults under the Agreement with its bank lenders that would enable Penn Traffic's Audit Committee to complete its investigation and permit Penn Traffic to restate its financial results and assess whether any other modifications to the Agreement would be required. The waiver letter is attached as Exhibit 99.1 to this report, which is incorporated by reference into this Item. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS The waiver letter is attached as Exhibit 99.1 to this report. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: August 16, 2002 THE PENN TRAFFIC COMPANY By: /s/ Martin A. Fox --------------------------------------- Name: Martin A. Fox Title: Executive Vice President and Chief Financial Officer 4 EXHIBIT LIST EXHIBIT DESCRIPTION ------- ----------- 99.1 Waiver letter dated August 9, 2002. EX-99 3 ex991-form8k81502.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ FLEET CAPITAL CORPORATION 200 Glastonbury Blvd Glastonbury, CT 06033 August 9, 2002 The Penn Traffic Company 411 Theodore Fremd Avenue Rye, NY 10580 Attn: Martin A. Fox, CFO RE: REVOLVING CREDIT AND TERM LOAN AGREEMENT DATED AS OF JUNE 29, 1999, AS AMENDED TO DATE ("CREDIT AGREEMENT"), AMONG THE PENN TRAFFIC COMPANY AND THE OTHER BORROWERS NAMED THEREIN, THE LENDERS NAMED THEREIN, FLEET CAPITAL CORPORATION, AS ADMINISTRATIVE AGENT (THE "AGENT"), GMAC BUSINESS CREDIT, LLC, AS DOCUMENTATION AGENT AND AMSOUTH BANK AND BANC OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, AS CO-AGENTS. Ladies and Gentlemen: Reference is hereby made to the Credit Agreement. Capitalized terms used herein but not defined shall have the meaning set forth in the Credit Agreement. You have advised us that on account of an inventory overstatement continuing for approximately three years in your Penny Curtiss baking operation, certain Events of Default have occurred and are continuing under the Credit Agreement (I) on account of violations of ss. 6.4, ss. 7.1(a), (b) and (d), ss. 7.2(a), (b) and (d), and (II) under ss. 9.1(b) (the "Subject Events of Default"). This letter will confirm that the Required Lenders have agreed (A) to waive the Subject Events of Default from the date hereof through the close of business on August 30, 2002 (the "Waiver Period"), (B) to forebear during the Waiver Period from exercising rights and remedies under the Loan Documents on account of the Subject Events of Default, and (C) that during the Waiver Period the Borrowers may borrow, prepay and reborrow Revolving Loans. The waivers herein and agreement to forebear are subject to the agreement of the Borrowers as follows: (I) nothing in this letter shall be deemed a waiver or amendment of any of the terms or conditions of the Credit Agreement except as herein specifically provided; (II) the making of any Revolving Loans to the Borrowers after the date hereof by the Lenders shall not in any way modify the terms and conditions of the Credit Agreement; (III) all rights and remedies of the Agents and the Lenders are expressly reserved (X) with respect to any Events of Default other than the Subject Events of Default, and (Y) following the end of the Waiver Period. This letter may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute 2 one and the same agreement. A facsimile signature page shall constitute an original for the purposes hereof. Sincerely, FLEET CAPITAL CORPORATION as Agent and as Lender By: /s/ Kim Bushey --------------------------------------- Name: Kim Bushey Title: Vice President Acknowledged as of the Date First Written Above: THE PENN TRAFFIC COMPANY By: /s/ Martin A. Fox ------------------------------- Name: Martin A. Fox Title: Executive Vice President and Chief Financial Officer DAIRY DELL, INC. By: /s/ Martin A. Fox ------------------------------- Name: Martin A. Fox Title: Vice President BIG M SUPERMARKETS INC. By: /s/ Martin A. Fox ------------------------------- Name: Martin A. Fox Title: Vice President PENNY CURTISS BAKING COMPANY INC. By: /s/ Martin A. Fox ------------------------------- Name: Martin A. Fox Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----