Pathmark Stores, Inc. Form 10-Q; For the Fiscal Quarter Ended October 29, 2005; Exhibit 10.1




Exhibit 10.1 








SECOND AMENDMENT TO


AMENDED AND RESTATED CREDIT AGREEMENT


          This Second Amendment to
Amended and Restated Credit Agreement (the “Second Amendment”) is made as of the
6th day of September, 2005 by and among


	  	 PATHMARK
STORES, INC., a corporation organized under the laws of the State of Delaware, having a
place  of business at 200 Milik Street, Carteret, New Jersey 07008;





		the  LENDERS
party hereto; and




		FLEET
RETAIL GROUP, LLC (f/k/a Fleet Retail Group, Inc.), as  Administrative Agent and
Collateral Agent for the Lenders, a Delaware  corporation, having a place of business at
40 Broad Street, Boston,  Massachusetts 02109




	 	THE CIT GROUP/BUSINESS CREDIT, INC, as Syndication Agent; and





	 	 GMAC
COMMERCIAL FINANCE LLC and GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation
Agents





in consideration of the mutual covenants herein contained and benefits to be derived
herefrom.



WITNESSETH


          WHEREAS, the Borrower, the
Administrative Agent, the Collateral Agent, the Lenders, the Syndication Agent, and the
Co-Documentation Agents have entered into an Amended and Restated Credit Agreement dated
as of October 1, 2004 (as amended and in effect, the “Credit Agreement”); and


          WHEREAS, the Borrower, the
Administrative Agent, the Collateral Agent, the Lenders, the Syndication Agent, and the
Co-Documentation Agents have agreed to amend certain provisions of the Credit Agreement as
set forth 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. 	Amendments to Article I. The provisions of Article I  of the Credit Agreement are hereby amended
by deleting the word “and” at the end of clause (f) of the definition of “Permitted
Investments”,  by deleting the period at the end of clause (g) of the definition of
“Permitted Investments” and substituting “; and” in its  stead and
adding the following new clause (h):




			(h)  Investments
made in accordance with the investment policy of the Borrower  set forth as Schedule A
hereto.




	3. 	Amendment
to Schedules. The Schedules to the Credit  Agreement are hereby amended by adding
Schedule A in the form annexed hereto.





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	4. 	Conditions to Effectiveness. This Second Amendment  shall not be effective until each of the
following conditions precedent have  been fulfilled to the satisfaction of the Agent:




		a. 	This
Second Amendment shall have been duly executed and  delivered by the Borrower, the
Administrative Agent, the Collateral Agent and  the Required Lenders. The Administrative
Agent shall have received a fully  executed copy hereof and of each other document
required hereunder.




		b. 	The
Borrower shall have reimbursed the Administrative Agent  for all expenses due and payable
in connection herewith, including, without  limitation, its reasonable attorneys’ fees.




		c. 	No
Default or Event of Default shall have occurred and be  continuing.




		d. 	The
Borrower shall have provided such additional instruments  and documents to the
Administrative Agent as the Administrative Agent and its  counsel may have reasonably
requested.




	5. 	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 Borrower hereby ratifies, confirms, and
reaffirms all of the  representations, warranties and covenants therein contained.
Without limiting  the generality of the foregoing, the Borrower hereby acknowledges,
confirms and  agrees that all Collateral shall continue to secure the Obligations as
modified  and amended pursuant to this Second Amendment, and any future modifications,
amendments, substitutions or renewals thereof.




		b. 	This
Second 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
Second 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 Second 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 Second
Amendment.





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          IN WITNESS WHEREOF, the
parties hereto have caused this Second Amendment to be executed and their seals to be
hereto affixed as the date first above written.


	 	
                                                              PATHMARK STORES, INC.

                                                              /s/ Frank Vitrano



                                                              Frank Vitrano

                                                              President and Chief Financial Officer


                                                              FLEET RETAIL GROUP, LLC, as Administrative Agent,

                                                              Collateral Agent and Lender


                                                              /s/ Keith Vercauteren



                                                              Keith Vercauteren

                                                              Director

                                                               GMAC COMMERCIAL FINANCE LLC


                                                              /s/ Christopher M. Gauch



                                                              Christopher M. Gauch

                                                              Vice President


                                                              GENERAL ELECTRIC CAPITAL CORPORATION


                                                              /s/ Craig Winslow



                                                              Craig Winslow

                                                              Senior Vice President


                                                              THE CIT GROUP/BUSINESS CREDIT, INC.


                                                             /s/ Steven Schuit



                                                              Steven Schuit

                                                              Vice President


                                                              WELLS FARGO FOOTHILL, LLC


                                                               /s/ Eunnie Kim




                                                             Eunnie Kim

                                                              Vice President






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Schedule A



PATHMARK STORES, INC.


GENERAL POLICY STATEMENT FOR INVESTMENT


OF CORPORATE FUNDS


	1. 	STATEMENT OF OBJECTIVES






	 To  ensure safety of corporate investments



	 To ensure liquidity to meet projected and emergency cash  needs



	 To  maximize yields without undue risk as to safety and  liquidity




	2. 	APPROVED INVESTMENTS






	 Any  investment or direct obligations of the United States of  America, or any
agency thereof,  or obligations guaranteed by the United States  of America or any agency
thereof



	 Domestic  Certificates of Deposit, Eurodollar Certificates of  Deposit and Time
Deposits of major  U.S. and approved foreign banks



	 Prime  Commercial Paper, minimum rating of A-3 / P-3



	 Auction  Rate Securities (considered marketable securities)



	 Investments  in Securities issued or guaranteed by any state, commonwealth  or
territory of the United  States of America or by any political subdivision or  taxing
authority thereof, rated at  least “A” by Standard & Poor  Ratings Group or
“A” by Moody’s  Investors Services, Inc.



	 Federal  Agency Securities (Fannie Mae, Sallie Mae, etc.)



	 Repurchase  Agreements (fully collateralized...with formal  agreements)



	 Pre-funded  Municipal Securities (Treasury Equivalent)



	 Institutional  Money Market Funds



	 Bankers  Acceptance (Normal Bank Deposits)




	3. 	INVESTMENT DOLLAR LIMITATIONS






	 Purchase of United States Government obligations are not  subject to investment
dollar limitations.



	 The  total holdings in any single bank’s Domestic  Certificates of Deposit,
Eurdollar  Certificates of Deposit and Time Deposits  cannot exceed $15 million. Included
in this  limit would be any investments in  the bank holding company’s commercial
paper.



	 Commercial  paper purchases are subject to $15 million limit  per industrial or
bank holding company.



	 The  limits may be exceeded on an individual transaction basis  with the written
approval of  the Chief Financial Officer.





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	4. 	MATURITY LIMITATION






	 Investment  maturities can only be determined once the  Company’s cash
managements needs have  been taken into consideration.  Generally, maturities should be
less than 90 days.



	 Exception  to above would be Auction Rate Securities  (“ARS”) that
have scheduled  rate/auctions every 7, 28 or 35 days and  Federal Agency Paper which may
go beyond 90  days upon approval of Chief  Financial Officer.



	 Maturities  beyond 35 days require bids from at least two  investment banks /
dealers.




	5. 	SAFEKEEPING
OF SECURITIES






	 Written  confirmation on all securities purchased or sold,  regardless of
maturity date, whether  owned outright or under repurchase  agreement, must be postmarked
within two days of the  transaction date and  addressed to the Treasury Department.
Electronic online  confirmations are an  acceptable substitute if posted by next day
following the  transaction.




	6. 	FUNDS TRANSFER BANK LIMITATION






	 All  transfers of funds on the purchase or sales of securities  will be made
through approved  banks and such arrangements will be telephonically  confirmed by the
Cash Manager on the  day of the investment. Additionally, a  formal log will be kept for
all investments.



	 Others  as may be approved from time to time by the Chief  Financial Officer.




	7. 	AUTHORITY TO RECOMMEND POLICY CHANGES






	 The  Investment Policy Statement will be reviewed at least  annually. Any
recommended changes  resulting from the annual review will be  approved by the Chief
Financial Officer.



	 The  approved investments list will otherwise be monitored for  potential
deletions, which can  be made at any time.



	 Deletions  will be based on information indicating material  deterioration in
either the issuer’s  financial strength and/or the  marketability of its security.




	8. 	AUTHORITY TO TRANSACT BUY-SELL ORDERS






	 The  following individuals are designated as authorized agents  to transact
buy-sell orders:  (1) Cash Manager; (2) Manager of Banking & Electronic Payment
Systems; (3) Assistant  Vice President, Treasury.



	 The  Cash Manager is designated responsible for completing all  paperwork and
transactions  pertinent to the execution and confirmation of the  buy-sell order; for
instructing the  bank payment or collection of monies  resulting from the purchase,
required records of  current holdings’ and for  the preparation of daily and weekly
investment status  reports; preparation of  all required accounting records.




		a. 	 CRITERIA
FOR CHOOSING ELIGIBLE BANK ISSUERS FOR DOMESTIC CERTIFICATES OF DEPOSIT AND EURODOLLAR
CERTIFICATES OF DEPOSIT AND TIME DEPOSITS





				 To
be eligible for Certificates of Deposits or Time Deposits  investments, the  bank holding
company must have outstanding commercial paper  rated at least A-2 or the  equivalent
thereof by Standard & Poor’s or  P-2 or the equivalent thereof by  Moody’s
Investor Service. Further, the  bank should have assets of at least $10  billion.

 





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				 Maturities,
90 days or less after the date of purchase.






				 Foreign
bank issuers based in any of the following countries  are acceptable:  United Kingdom,
Canada, Germany, Switzerland, Netherlands or Japan.







		b. 	 CRITERIA FOR CHOOSING ELIGIBLE ISSUERS FOR COMMERCIAL PAPER




				 Commercial
paper must be rated at least A-3 by Standard and  Poor’s or P-3  by Moody’s.







		c. 	 CRITERIA FOR CHOOSING ELIGIBLE INVESTMENT BANKS / DEALERS





				 Dealer
must be an official issuer of commercial paper  approved for Pathmark  purchase.






				 Dealer
must be approved by the Chief Financial Officer.







	 	

                                                              Approved by:

                                                              /s/ Frank Vitrano



                                                              Frank Vitrano

                                                              President and Chief Financial Officer




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