-----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, FBBAr7bgc2Zo0B/FaJJ2V/lqQ5kLJ8gmFX9NH+UzKZrLq9+y25TJKV6zvFL8IV8Z S9b6x0VMYgTH5X+dD/rVfw== 0000950142-03-000882.txt : 20030513 0000950142-03-000882.hdr.sgml : 20030513 20030513120717 ACCESSION NUMBER: 0000950142-03-000882 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030512 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030513 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: 03694563 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_051303.txt 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): May 12, 2003 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) ITEM 5. OTHER EVENTS The Penn Traffic Company today announced that it had entered into an amendment to its Credit Facility (the "May Bank Amendment") with its bank lenders that replaces the one-week waiver agreement the Company previously announced. The May Bank Amendment amends, among other things, the required levels for Consolidated EBITDA, interest coverage, fixed charge coverage and funded debt ratio to make them less restrictive on the Company. As a result of the May Bank Amendment, the Company was in compliance with the financial covenants in the Credit Facility as of May 2, 2003 (the end of its first fiscal quarter) and can borrow, repay and re-borrow under the revolving credit portion of the Credit Facility (the "Revolving Credit Facility"). A letter agreement (the "Letter Agreement") entered into to confirm that the May Bank Amendment is effective also contains a provision that waives the Company's obligation to file its Annual Report on Form 10-K for the fiscal year ended February 1, 2003 until the earlier of June 9, 2003 or the date the Company's independent auditor notifies the Company that it will not issue its unqualified report on the Company's consolidated financial statements to be included in the Annual Report on Form 10-K. A copy of the press release is attached as Exhibit 99.1 and copies of the May Bank Amendment and the Letter Agreement are attached as Exhibits 99.2 and 99.3, respectively. The Company paid the lenders under the Credit Facility an amendment fee for entering into the May Bank Amendment. The Company also agreed to the creation of certain additional reserves and to certain clarifications and adjustments to the manner in which borrowing availability is determined under the Revolving Credit Facility and agreed to an increase in the applicable interest rates payable to the lenders under the Credit Facility. Availability under the Revolving Credit Facility is calculated based on a specified percentage of eligible inventory and accounts receivable of the Company, subject to certain reserves. The calculation of availability was significantly modified pursuant to the May Bank Amendment. As of February 1, 2003, there were approximately $76.3 million of borrowings and $33.5 million of letters of credit outstanding under the Revolving Credit Facility. Availability under the Revolving Credit Facility was approximately $70 million as of February 1, 2003 prior to giving effect to the May Bank Amendment and the imposition of certain reserves. After giving effect to the May Bank Amendment, availability under the Revolving Credit Facility would have been approximately $45 million as of February 1, 2003. After giving effect to the May Bank Amendment, availability would have been approximately $52 million as of May 2, 2003 (including the addition of a $10.5 million letter of credit required to be issued to support workers' compensation obligations). The May Bank Amendment also further restricts the Company's ability to make capital expenditures during each of the fiscal years commencing with the first quarter of the fiscal year ending January 31, 2004 through and including the fiscal year ending February 3, 2007. The Company also announced that it continues to work with its independent auditor to finalize the audit of its consolidated financial statements for the fiscal year ended February 1, 2003 so that it can file its Annual Report on Form 10-K within the waiver period set forth in the amendment to the Credit Facility. While the Company and its independent auditor 2 are working diligently to conclude the audit so that the Company may file its Annual Report on Form 10-K, there can be no assurance that the Company will be able to file its Form 10-K by the period required under the amended Credit Facility and failure by the Company to file its Form 10-K by such period would trigger a default under the Credit Facility. FORWARD-LOOKING STATEMENTS Certain statements included in this press release which are not statements of historical fact are intended to be, and are hereby identified as, "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Without limiting the foregoing, the words "anticipate," "believe," "estimate," "expect," "intend," "plan," "project" and other similar expressions are intended to identify forward-looking statements. The Company cautions readers that forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievement expressed or implied by such forward-looking statements. Such factors include, among other things, the success or failure of the Company in implementing its current business and operational strategies; general economic and business conditions; competition, including increased capital investment and promotional activity by the Company's competitors; availability, location and terms of sites for store development; the successful implementation of the Company's capital expenditure program; labor relations; labor and employee benefit costs including increases in health care and pension costs and the level of contributions to the Company sponsored pension plans; the impact of the Company's loyalty card program; availability and terms of and access to capital; the Company's ability to improve its operating performance and effectuate its business plans; the Company's liquidity and other financial considerations; the ability of the Company to satisfy the financial and other covenants contained in its debt instruments or otherwise negotiate further accommodations from its lenders; the ability of the Company to complete the audit of its financial statements for the year ended February 1, 2003 and have PricewaterhouseCoopers LLP deliver an unqualified audit report on such financial statements; the success or failure in the Company's ability to continue to obtain customary terms from its suppliers, vendors and other third parties; and the outcome of pending or yet-to-be instituted legal proceedings and governmental investigations. Penn Traffic cautions that the foregoing list of important factors is not exhaustive. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS The press release dated May 12, 2002 is attached as Exhibit 99.1 to this report. Amendment No. 5 to the Revolving Credit and Term Loan Agreement (the May Bank Amendment) among the Company, certain of its subsidiaries, Fleet Capital Corporation and the lenders party thereto is attached as Exhibit 99.2 to this report. Letter agreement dated May 12, 2003 (the Letter Agreement) among the Company, certain of its subsidiaries, Fleet Capital Corporation and the lenders party thereto is attached as Exhibit 99.3 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: May 13, 2003 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 The press release dated May 12, 2002 is attached as Exhibit 99.1 to this report. 99.2 Amendment No. 5 to the Revolving Credit and Term Loan Agreement (the May Bank Amendment) among the Company, certain of its subsidiaries, Fleet Capital Corporation and the lenders party thereto is attached as Exhibit 99.2 to this report. 99.3 Letter agreement dated May 12, 2003 (the Letter Agreement) among the Company, certain of its subsidiaries, Fleet Capital Corporation and the lenders party thereto is attached as Exhibit 99.3 to this report. 5 EX-99 3 ex99-1form8k_051303.txt EXHIBIT 99.1 EXHIBIT 99.1 ------------ FOR IMMEDIATE RELEASE: CONTACT: Marc Jampole Jampole Communications, Inc. 412-471-2463 THE PENN TRAFFIC COMPANY ANNOUNCES NEW AGREEMENT WITH BANK GROUP SYRACUSE, NY, MAY 12, 2003 --- The Penn Traffic Company (Nasdaq: PNFT) today announced that it had entered into an amendment to its Credit Facility with its bank lenders that replaces the one-week waiver agreement the Company previously announced. The amendment reduces the required financial covenants in the Credit Facility and as a result of this amendment, the Company was in compliance with the financial covenants in the Credit Facility as of May 2, 2003 (the end of its first fiscal quarter) and can borrow, repay and re-borrow under the revolving credit portion of its Credit Facility. The amendment also contains a provision that waives the Company's obligation to file its Annual Report on Form 10-K for the fiscal year ended February 1, 2003 until the earlier of June 9, 2003 or the date the Company's independent auditor notifies the Company that it will not issue its unqualified report on the Company's consolidated financial statements to be included in the Annual Report on Form 10-K. On May 2, 2003, the Company had approximately $52 million of availability under the Credit Facility, after giving effect to the amendment. "We are pleased that our bank group has responded positively to our requests for covenant modifications, which will provide us with sufficient flexibility in this challenging business environment" said Mr. Joseph V. Fisher, Penn Traffic's President & Chief Executive Officer. "As we manage our business through this challenging period, we are fortunate to have a bank group that has supported us for many years as a constructive business partner." The Company also announced that it continues to work with its independent auditor to finalize the audit of its consolidated financial statements for the fiscal year ended February 1, 2003 so that it can file its Annual Report on Form 10-K within the waiver period set forth in the amendment to the Credit Facility. While the Company and its independent auditor are working diligently to conclude the audit so that the Company may file its Annual Report on Form 10-K, there can be no assurance that the Company will be able to file its Form 10-K by the period 1 required under the amended Credit Facility and failure by the Company to file its Form 10-K by such period would trigger a default under the Credit Facility. Certain statements included in this press release which are not statements of historical fact are intended to be, and are hereby identified as, "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Without limiting the foregoing, the words "anticipate," "believe," "estimate," "expect," "intend," "plan," "project" and other similar expressions are intended to identify forward-looking statements. The Company cautions readers that forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievement expressed or implied by such forward-looking statements. Such factors include, among other things, the success or failure of the Company in implementing its current business and operational strategies; general economic and business conditions; competition, including increased capital investment and promotional activity by the Company's competitors; availability, location and terms of sites for store development; the successful implementation of the Company's capital expenditure program; labor relations; labor and employee benefit costs including increases in health care and pension costs and the level of contributions to the Company sponsored pension plans; the impact of the Company's loyalty card program; availability and terms of and access to capital; the Company's ability to improve its operating performance and effectuate its business plans; the Company's liquidity and other financial considerations; the ability of the Company to satisfy the financial and other covenants contained in its debt instruments or otherwise negotiate further accommodations from its lenders; the ability of the Company to complete the audit of its financial statements for the year ended February 1, 2003 and have PricewaterhouseCoopers LLP deliver an unqualified audit report on such financial statements; the success or failure in the Company's ability to continue to obtain customary terms from its suppliers, vendors and other third parties; and the outcome of pending or yet-to-be instituted legal proceedings and governmental investigations. Penn Traffic cautions that the foregoing list of important factors is not exhaustive. ****************************************************************************** The Penn Traffic Company operates 212 supermarkets in Ohio, West Virginia, Pennsylvania, upstate New York, Vermont and New Hampshire under the "Big Bear," "Big Bear Plus," "Bi-Lo," "P&C" and "Quality" trade names. Penn Traffic also operates a wholesale food distribution business serving 79 licensed franchises and 66 independent operators. 2 EX-99 4 ex99-2form8k_051303.txt EXHIBIT 99.2 EXHIBIT 99.2 ------------ AMENDMENT NO. 5 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT AMENDMENT NO. 5, dated as of May 7, 2003 (this "AMENDMENT") to that certain Revolving Credit and Term Loan Agreement dated as of June 29, 1999, as amended as of June 26, 2000, as of September 14, 2001, as of April 19, 2002 and as of October 31, 2002, and as may be further amended, modified, restated or supplemented from time to time (the "LOAN AGREEMENT") among THE PENN TRAFFIC COMPANY ("PENN TRAFFIC"), DAIRY DELL, INC., BIG M SUPERMARKETS, INC. and PENNY CURTISS BAKING COMPANY, INC. (individually, each a "BORROWER" and collectively, the "BORROWERS"), the Lenders party to the Loan Agreement (collectively, the "LENDERS"), FLEET CAPITAL CORPORATION, as Administrative Agent for the Lenders (in such capacity, the "AGENT"), GMAC BUSINESS CREDIT, LLC, as documentation agent, and AMSOUTH BANK and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as co-agents is made by, between and among the Borrowers, the Lenders and the Agent. Capitalized terms used herein, except as otherwise defined herein, shall have the meanings given to such terms in the (i) Loan Agreement and (ii) Security Agreement. WHEREAS, the Borrowers and the Lenders have agreed to make certain amendments to the Loan Agreement and the Security Agreement, subject to the terms and conditions set forth herein. WHEREAS, the Agent and the Lenders wish to confirm the Revolving Credit Commitments of the Lenders as of the date hereof. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements hereinafter set forth, the parties hereto agree as follows: SECTION I. RATIFICATION OF EXISTING AGREEMENTS 1.01 All of the representations and warranties made by the Borrowers in the Loan Agreement and the other Loan Documents are true and correct on the date hereof as if made on and as of the date hereof, except to the extent that any of such representations and warranties relate by their terms to a prior date. 1.02 The Borrowers agree that the Obligations of the Borrowers to the Agent and each of the Lenders as evidenced by or otherwise arising under the Loan Agreement and the other Loan Documents are, by the Borrowers' execution of this Amendment, ratified and confirmed in all respects. 1.03 The Borrowers acknowledge and agree that all of their obligations arising under and relating to this Amendment constitute Obligations under the Loan Agreement. SECTION II. AMENDMENTS TO LOAN AGREEMENT 2.01 AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended as of May 7, 2003 (the "EFFECTIVE DATE"), subject to the fulfillment of the conditions under Section III hereof, as follows: (a) The following new definitions are hereby added to Section 1.01 of the Loan Agreement (in the appropriate alphabetical sequence). (i) "Business Operations and Valuation Consultant" means a nationally recognized Person (or two nationally recognized Persons) in the business of providing financial and business analysis, advisory, valuation and consulting services, acceptable to the Agent, retained by the Borrowers at the Borrowers' expense for such purposes, including the providing of written reports setting forth in reasonable detail its (or their) findings and analysis, and containing such other information as the Agent may reasonably request from time to time. (ii) "Slow Moving Reserve" means reserves with respect to Eligible Inventory located in the Borrowers' warehouses equal to 50% of the value of general merchandise Inventory plus 100% of the value of all other Inventory (i.e. grocery, frozen, meat, dairy products and the like), which in each case was received more than 120 days prior to the date of determination. (iii) "Valuation Reserve" means a reserve established by the Required Lenders which shall be no greater than the difference between (i) the sum of (x) 75% of the fair market value of the Real Estate Interests and (y) 80% of the orderly liquidation value of the Equipment, in each case given in appraisals of such assets from time to time and (ii) the then aggregate outstanding principal amount of the Term Loans. (b) The definition of "Consolidated Adjusted Net Income" in Section 1.01 of the Loan Agreement is hereby amended by deleting the word "and" following clause (f), and inserting after clause "(g)" the following new clause "(h): "(h) any charge against net income required to be taken for settlement accounting under FASB # 88.". (c) The definition of "Consolidated EBITDA" in Section 1.01 of the Loan Agreement is hereby amended by deleting the word "and" following clause (b)(v), and inserting after clause "(vi)" the following: "(vii) costs not exceeding $2,000,000 related to severance obligations incurred after March 1, 2003; (viii) the accrued costs related to the closure of stores by the Borrowers, minus the cash closing costs of stores closed after May 1, 2003; (ix) all of the costs associated with appraisals, reports, and costs of business consultants and financial advisors, including without limitation the Business Operations and Valuation Consultant; and (x) for the fourth Fiscal Quarter of Fiscal Year 2003 and the first Fiscal Quarter of Fiscal Year 2004, the difference between (1) first in first out gross 2 profit calculated without taking into account the accounting pronouncement EITF 02-16 and (2) first in first out gross profit calculated in accordance with GAAP consistent with the Company's implementation of EITF 02-16; for the avoidance of doubt this addback will be utilized in all calculations which include the fourth Fiscal Quarter of Fiscal Year 2003 and the first Fiscal Quarter of Fiscal Year 2004"; (d) The definition of PACA Reserve in Section 1.01 of the Loan Agreement is hereby amended to add the following: "Such reserve shall be adjusted no less often than monthly based on amounts owed for the purchase of produce as shown in the Borrowing Base Certificate delivered to the Agent as provided in the Security Agreement." (e) Section 2.2(a) of the Loan Agreement is hereby amended to add the following to the third sentence thereof: "provided, that each Borrower agrees that no Revolving Borrowing or Letters of Credit shall be requested unless the amount thereof is less than or equal to such Borrower's Revolving Borrowing Capacity less the sum of (i) any outstanding Revolving Loans and Swing Line Loans to such Borrower, (ii) $17,500,000 and (iii) the Valuation Reserve; and provided further that the Slow Moving Reserve shall have been deducted in determining the Value of Eligible Inventory." (f) Section 7.2 of the Loan Agreement is hereby amended as follows: (i) the designation of the existing subsection "(b)" is hereby changed to "(b)(i)"; (ii) the following new subsection 7.2(b)(ii) is hereby inserted: "(ii) As soon as available, but in any event not later than thirty (30) days after the close of each monthly reporting period in the Borrowers' Fiscal Year, consolidated unaudited balance sheets, together with a statement showing the agings of all accounts payable reflected in such balance sheets, of Penn Traffic and its consolidated Subsidiaries as at the end of such period, and consolidated unaudited statements of income and expense and cash flow for Penn Traffic and its consolidated Subsidiaries for such period, commencing with the period ending May 31, 2003, all in reasonable detail, fairly presenting the financial position and results of operation of Penn Traffic and its consolidated Subsidiaries as at the date thereof and for such period, prepared generally in accordance with GAAP consistent with the audited Financial Statements required pursuant to Section 7.2(a) and subject to normal Fiscal Quarter end and Fiscal Year end adjustments."; (iii) the following new subsection 7.2(b)(iii) is hereby inserted: 3 "(iv) Promptly upon receipt by the Borrowers, the reports furnished by each of the consultants, including the Business Operations and Valuation Consultant, without change or revision; (g) Article 7 of the Loan Agreement is hereby amended by adding the following new Sections 7.14 and 7.15: "7.14 CONSULTANTS. The Business Operations and Valuation Consultant shall be selected and retained by the Borrowers, at the Borrowers' expense, as soon as possible, but in no event later than May 22, 2003. The retention agreement between the Borrowers and the Business Operations and Valuation Consultant shall state that the Business Operations and Valuation Consultant shall provide its report to the Borrowers and the Agent as promptly as possible after the date on which the Business Operations and Valuation Consultant is retained by the Borrowers. The Borrowers agree that following notice from the Agent to the Borrowers, the Agent or its representative may contact representatives of any of the consultants, including the Business Operations and Valuation Consultant, to discuss the reports provided by them. The Borrowers will inform representatives of the consultants, including Business Operations and Valuation Consultant, of the aforementioned consent." 7.15 CERTAIN RESERVES. The Agent may in its reasonable discretion establish reserves for, INTER ALIA, inadequate payments by the Borrowers of tobacco taxes and sales taxes, such reserves being in addition to any reserves established by the Agent within clause (b)(D) of the definition of Revolving Borrowing Capacity. (h) Section 8.13(a) (Cash Capital Expenditures) of the Loan Agreement is hereby amended by deleting the information set forth under the headings "FISCAL YEAR" and "AMOUNTS" and replacing such information with the following: "FISCAL YEAR AMOUNTS ----------- ------- 2004 $17,000,000 2005 $17,000,000 2006 $22,000,000 (i) Section 8.13(e) (Cash Capital Expenditures) of the Loan Agreement is hereby amended to insert the following before the ".": "provided, that notwithstanding the foregoing, the Borrowers shall not make, based solely upon Carryover Cash Capex from Fiscal Year 2003, Cash Capital Expenditures in Fiscal Year 2004 or any subsequent Fiscal Year". (j) Section 8.14 (Consolidated EBITDA) of the Loan Agreement is hereby amended by(x) deleting the information set forth under the headings "FISCAL QUARTER" and "AMOUNTS" and replacing it with the following: 4 "FISCAL QUARTER AMOUNTS ------- ------- Fiscal Year 2004 Q1 $64,000,000 Fiscal Year 2004 Q2 $54,000,000 Fiscal Year 2004 Q3 $55,000,000 Fiscal Year 2004 Q4 $57,000,000 Fiscal Year 2005 Q1 $62,000,000 Fiscal Year 2005 Q2 $68,000,000 Fiscal Year 2005 Q3 $78,000,000 Fiscal Year 2005 Q4 $90,000,000 Fiscal Year 2006 Q1 $95,000,000 Fiscal Year 2006 Q2 $99,000,000 Fiscal Year 2006 Q3 $103,000,000 Fiscal Year 2006 Q4 $108,000,000 Fiscal Year 2007 Q1 $111,000,000 Fiscal Year 2007 Q2 $114,000,000" (k) Section 8.15 (Consolidated Funded Debt Ratio) of the Loan Agreement is hereby amended by deleting the information set forth under the headings "FISCAL YEAR", "FISCAL QUARTER" and "REQUIREMENT" and replacing it with the following: FISCAL "FISCAL YEAR QUARTER REQUIREMENT ----------- ------- ----------- 2004 1 6.5 2004 2 6.5 2004 3 6.5 2004 4 6.2 2005 1 5.8 2005 2 5.2 2005 3 4.6 2005 4 4.0 2006 1 3.9 2006 2 3.8 2006 3 3.7 2006 4 3.7 2007 1 3.7 2007 2 3.7 (l) Section 8.16 (Consolidated Interest Coverage Ratio) of the Loan Agreement is hereby amended by deleting the information set forth under the headings "FISCAL YEAR", "QUARTER" and "REQUIREMENT" and replacing it with the following: FISCAL "FISCAL YEAR QUARTER REQUIREMENT ------------ ------- ----------- 2004 1 1.70 2 1.45 5 FISCAL "FISCAL YEAR QUARTER REQUIREMENT ------------ ------- ----------- 3 1.45 4 1.45 2005 1 1.55 2 1.65 3 1.90 4 2.10 2006 1 2.30 2 2.40 3 2.50 4 2.60 2007 1 2.80 2 2.90" (m) Section 8.17 (Consolidated Fixed Charge Coverage Ratio) of the Loan Agreement is hereby amended by deleting the information set forth under the headings "FISCAL YEAR" and "REQUIREMENT" and replacing it with the following: "FISCAL YEAR REQUIREMENT ----------- ----------- 2004 0.85 2005 1.00 2006 1.00" (n) Annex B to the Loan Agreement is amended to read in the form attached hereto as "Annex B," including the textual provisions thereof. 2.02 AMENDMENT TO SECURITY AGREEMENT. Exhibit "I" to the Security Agreement is hereby deleted in its entirety and replaced with new Exhibit "I" in the form of Annex C hereto. SECTION III. CONDITIONS PRECEDENT 3.01 The amendments hereunder shall be subject to the fulfillment of the following conditions on the date hereof: (a) All representations and warranties contained in this Amendment or otherwise made in writing to the Agent in connection herewith shall be true and correct. (b) No unwaived event shall have occurred which constitutes an Event of Default under the Loan Agreement or would constitute such an Event of Default but for the requirement that notice be given or time elapse or both. (c) The Borrowers shall have delivered to the Agent for the benefit of each of the Lenders consenting hereto the Amendment Fee (as such term is defined in Section V hereof). (d) The Borrowers and the Required Lenders shall have executed and delivered this Amendment to the Agent. 6 (e) The Agent shall have received satisfactory evidence that all corporate action necessary for the valid execution and delivery by the Borrowers of this Amendment and any and all other agreements and documents contemplated pursuant to the transactions contemplated by this Amendment and the performance of the transactions contemplated hereby and thereby shall have been taken. (f) The Agent shall have received from the Borrowers such other approvals, opinions of counsel or documents as the Agent may reasonably request, which shall be in form and substance reasonably satisfactory to the Agent. (g) The Penn Traffic Company shall have filed with the Securities and Exchange Commission its annual report for the 2003 Fiscal Year accompanied by a report thereon, unqualified in scope, by Price WaterhouseCoopers LLC. SECTION IV. REPRESENTATIONS 4.01 The Borrowers jointly and severally represent and warrant (which representations and warranties shall survive the execution and delivery hereof) to the Agent and each of the Lenders that: (a) Such party has the power and authority to execute, deliver and carry out the terms and provisions of this Amendment and the transactions contemplated hereby and has taken or caused to be taken all necessary action to authorize the execution, delivery and performance of this Amendment and the transactions contemplated hereby; (b) No consent of any other person, and no action of, or filing with any governmental or public body or authority is required to authorize, or is otherwise required in connection with the execution, delivery and performance of this Amendment by such party; (c) This Amendment has been duly executed and delivered on behalf of such party by a duly authorized officer of such party, and constitutes the legal, valid and binding obligation of such party enforceable in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditors' rights generally and the exercise of judicial discretion in accordance with general principles of equity; (d) The execution, delivery and performance of this Amendment will not violate any law, statute or regulation or any order or decree of any court or governmental instrumentality, or conflict with, or result in the breach of, or constitute a default under any contractual obligation of such party; and (e) On and as of the date hereof and giving effect to this Amendment, no Event of Default has occurred under the Loan Documents and no default or event of default has occurred under the Senior Notes Indenture. 7 SECTION V. MISCELLANEOUS 5.01 NO PRESENT CLAIMS. The Borrowers acknowledge and agree that, as of the date hereof in respect of the Loan Documents and transactions thereunder: (a) none of the Borrowers or any of their affiliates has any claim or cause of action against any of the Lenders or the Agent, the Documentation Agent or the Co-Agents (or any of their directors, officers, employees, attorneys or agents); (b) none of the Borrowers or any of their affiliates has offset rights, counterclaims or defenses of any kind against any of their obligations, indebtedness or liabilities to any of the Lenders or the Agent; and (c) each of the Lenders, the Agent, the Documentation Agent and the Co-Agents have heretofore properly performed and satisfied in a timely manner all of their obligations to the Borrowers and each of their affiliates. The Lenders, the Agent, the Documentation Agent and the Co-Agents wish (and the Borrowers agree) to eliminate any possibility that any past conditions, acts, omissions, events, circumstances or matters in respect of the Loan Documents and transactions thereunder, would impair or otherwise adversely affect any of the rights, interests, contracts, collateral security or remedies of the Lenders, the Agent, the Documentation Agent and the Co-Agents. Therefore, the Borrowers, on their behalf and on behalf of each of their respective successors and assigns, hereby waive, release and discharge the Lenders, the Agent, the Documentation Agent and the Co-Agents and all of their directors, officers, employees, attorneys and agents, from any and all claims, demands, actions or causes of action arising out of or in any way relating to the Loan Documents and any documents, instruments, agreements (including this Amendment), dealings or other matters connected with the Loan Documents, including, without limitation, all known and unknown matters, claims, transactions or things occurring on or prior to the date of this Amendment related to the Loan Documents. The waivers, releases, and discharges in this paragraph shall be effective regardless of any other event that may occur or not occur on or after the date hereof. 5.02 NO WAIVER. Except as otherwise expressly provided for in this Amendment, nothing in this Amendment shall extend to or affect in any way any of the rights or obligations of the Borrowers or any of the Agent's or the Lenders' obligations, rights and remedies arising under the Loan Documents, and neither the Agent nor any Lender shall be deemed to have waived any or all of its rights or remedies with respect to any Event or Event of Default existing on the date hereof or arising hereafter. 5.03 FEES. In consideration of the Lenders' agreement to this Amendment, the Borrowers agree to pay to the Agent an amendment fee, in addition to any and all other fees which are due or may become due to the Lenders, in an amount equal to 3/4 of 1% of the Lenders' Aggregate Exposure (the "AMENDMENT FEE") payable on or before May 8, 2003 for distribution thereafter by the Agent to the Lenders agreeing to this Amendment in writing on or before 5:00 PM EDT May 7, 2003, in accordance with each such Lender's Pro Rata Share. The Borrowers acknowledge and agree that the Amendment Fee set forth herein constitutes an Obligation under the Loan Agreement. The Pro Rata Share of any Lender not so agreeing hereto shall be paid to the Lenders so agreeing pro rata with each such Lender's Pro Rata Share compared to the aggregate of the Pro Rata Shares of the Lenders so agreeing. 5.04 REVOLVING CREDIT COMMITMENTS OF LENDERS. Each Lender party hereto, and the Agent, confirms that Annex A annexed hereto sets forth the Revolving Credit Commitment of 8 such Lender as of the date hereof. The Swing Line Lender confirms that the Commitment of the Swing Line Lender is as set forth in Section 2.12 of the Loan Agreement. 5.05 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (OTHER THAN CONFLICTS OF LAWS PRINCIPLES THEREOF REQUIRING THE APPLICATION OF THE LAW OF A DIFFERENT JURISDICTION). 5.06 WAIVER OF JURY TRIAL. THE BORROWERS HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AMENDMENT, THE LOAN DOCUMENTS OR ANY OF THE BORROWERS' OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH OBLIGATIONS. THE BORROWERS hereby waive any right THEY may have to claim or recover in any litigation referred to in the preceding sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. the Borrowers confirm that none of the Agent, any of the Lenders, nor any of their respective agents, employees, or representatives has indicated, either orally or in writing, that the Agent or any lender would not seek to enforce the foregoing waivers. 5.07 COUNTERPARTS; FACSIMILE SIGNATURE. This Amendment may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective when copies hereof which, when taken together, bear the signatures of each of the Borrowers, the Agent and the Required Lenders shall be delivered to the Agent. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be as effective as delivery of a manually executed signature page hereto and the full text of this Amendment. 5.08 HEADINGS. Headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment. 5.09 WAIVERS; AMENDMENTS. Neither this Amendment nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers, the Agent and the Required Lenders. 5.10 NO IMPLIED AMENDMENTS. Except as expressly provided herein, the Loan Agreement and the other Loan Documents are not amended or otherwise affected in any way by this Amendment. 5.11 ENTIRE AGREEMENT; MODIFICATIONS; BINDING EFFECT. This Amendment constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior oral or written understandings about such matter. Each of the Borrowers confirms that, in entering into this Amendment, it did not rely upon any agreement, representation, or warranty by the Agent or any Lender except those expressly set forth herein. No modification, rescission, 9 waiver, release, or amendment of any provision of this Amendment may be made except by a written agreement signed by the parties hereto. The provisions of this Amendment are binding upon and inure to the benefit of the representatives, successors, and assigns of the parties hereto; provided, however, that no interest herein or obligation hereunder may be assigned by any Borrower without the prior written consent of the Required Lenders. 5.12 EFFECTIVE DATE. This Amendment shall become effective on the Effective Date subject to the fulfillment of the conditions in Section III hereof: 10 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written. BORROWERS: --------- THE PENN TRAFFIC COMPANY By: ------------------------------------- Title: DAIRY DELL, INC. By: ------------------------------------- Title: BIG M SUPERMARKETS, INC. By: ------------------------------------- Title: PENNY CURTISS BAKING COMPANY INC. By: ------------------------------------- Title: ADMINISTRATIVE AGENT: -------------------- FLEET CAPITAL CORPORATION By: ------------------------------------- Title: SWING LINE LENDER: ----------------- FLEET CAPITAL CORPORATION By: ------------------------------------- Title: 11 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: GENERAL ELECTRIC CAPITAL CORPORATION By: ------------------------------------- Title: LASALLE BUSINESS CREDIT, INC. By: ------------------------------------- Title: CITIZENS BUSINESS CREDIT COMPANY By: ------------------------------------- Title: 12 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: SOVEREIGN BANK By: ------------------------------------- Title: THE PROVIDENT BANK By: ------------------------------------- Title: 13 ANNEX A LENDER REVOLVING COMMITMENT ------ -------------------- Fleet Capital Corporation $ 26,640,775 GMAC Business Credit, LLC $ 19,218,750 AmSouth Bank $ 14,053,980 Bank of America National Trust and Savings Association $ 22,421,875 Foothill Capital Corporation $ 27,586,645 General Electric Capital Corporation $ 16,015,625 LaSalle Business Credit, Inc. $ 16,015,625 CIT Group/Business Credit, Inc. $ 16,015,625 Citizens Business Credit Company $ 9,609,375 IBJ Whitehall Business Credit Corporation $ 9,609,375 Transamerica Business Credit Corporation $ 14,999,850 Sovereign Bank $ 6,406,250 The Provident Bank $ 6,406,250 Total $ 205,000,000 14 ANNEX B
PRICING GRID (Rates and fees in basis points) - ---------------------------------------------------------------------------------------------------------------------- Revolving/Swing Line Loans Term Loans A Term Loans B ----------------------- ----------------------- ---------------------- Consolidated Unused Funded Debt Line Ratio Libor + Prime Rate + Libor + Prime Rate + Libor + Prime Rate + Fee ------------- -------- ------------ -------- ------------ ------- ------------- ---------- Tier A: 5.25+ N/A 100 N/A 100 400 300 50 - ---------------------------------------------------------------------------------------------------------------------- Tier I: 4.76 - 5.25 300 200 300 200 375 275 50 - ---------------------------------------------------------------------------------------------------------------------- Tier II: 4.26 - 4.75 275 175 275 175 375 275 50 - ---------------------------------------------------------------------------------------------------------------------- Tier III: 3.76 - 4.25 250 150 250 150 350 250 50 - ---------------------------------------------------------------------------------------------------------------------- Tier IV: 3.26 - 3.75 225 125 225 125 350 250 50 - ---------------------------------------------------------------------------------------------------------------------- Tier V: <3.25 212.5 112.5 212.5 112.5 350 250 50 - ----------------------------------------------------------------------------------------------------------------------
(1) There will be no pricing adjustment prior to May 1, 2000 (the "Adjustment Date"). The initial review for pricing adjustment will occur following receipt of the Borrowers' financial statements delivered pursuant to Section 7.2(a) for Fiscal Year 2000. (2) Thereafter, rate adjustments based on the Pricing Grid will be made following receipt from the Borrowers of the financial statements delivered pursuant to Section 7.2(a) or 7.2(b), and of a request for a rate adjustment accompanied by a schedule reflecting the appropriate calculation. (3) Quarterly adjustments based on the Pricing Grid shall occur 45 and 90 days after the end of the quarter or year-end, as appropriate, based on the financial statements for the corresponding periods respectively. (4) Solely for the purposes of calculating Consolidated Funded Debt Ratio under this Pricing Grid for the first Fiscal Quarter of Fiscal Year 2001 and any subsequent Fiscal Quarter or Fiscal Year, Consolidated Funded Debt shall include the Undrawn Amount of all Letters of Credit outstanding on the date of determination. (5) Notwithstanding clauses (2) and (3) above, from and after November 1, 2002, each of the Applicable Margins for determining the Eurodollar Rate and the Prime Rate shall be equal to the basis points set forth in the line designated "Tier II" above, until thereafter adjusted as provided in clauses (2) and (3) above. (6) Libor based rates are not available for the Revolving/Swing Line Loans and Term Loans A in Tier A. (7) The margins under the caption "Term Loans B" shall be reduced as follows: (a) Upon the aggregate principal balances of the Term Loans having been reduced to $66,337,000 or less, such margins shall each be reduced by 25 basis points, and (b) Upon the aggregate principal balances of the Term Loans having been reduced to $33,168,000 or less, such reduced margins shall each be further reduced by 25 basis points. 15 ANNEX C [To be provided.] 16 EX-99 5 ex99-3form8k_051303.txt EXHIBIT 99.3 EXHIBIT 99.3 ------------ The Penn Traffic Company 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 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: --------- THE PENN TRAFFIC COMPANY By: ------------------------------------- Title: DAIRY DELL, INC. By: ------------------------------------- Title: BIG M SUPERMARKETS, INC. By: ------------------------------------- Title: PENNY CURTISS BAKING COMPANY INC. By: ------------------------------------- Title: 2 AGREED: ------ ADMINISTRATIVE AGENT: -------------------- FLEET CAPITAL CORPORATION By: ------------------------------------- Title: SWING LINE LENDER: ----------------- 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 -----END PRIVACY-ENHANCED MESSAGE-----