EXHIBIT 4.4B
AMENDMENT NO. 1 dated as of November 27, 1998 (this
"Amendment"), to the Credit Agreement dated as of June 30,
1997 (the "Credit Agreement"), among PATHMARK STORES, INC.
(the "Borrower"), the LENDERS party thereto (the "Lenders"),
THE CHASE MANHATTAN BANK, as Administrative Agent (the
"Administrative Agent"), and CIBC INC. and CORESTATES BANK,
N.A., as Co-Agents.
A. The Lenders have extended credit to the Borrower and have agreed
to extend credit to the Borrower, in each case on the terms and subject to the
conditions set forth in the Credit Agreement.
B. The Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement as provided herein.
C. The Lenders are willing to agree to such amendments, on the terms
and subject to the conditions set forth therein.
D. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. (a) Section 1.01 of the Credit Agreement is
hereby amended as follows:
(i) by inserting the following definition in the appropriate
alphabetical order:
"'Permitted Other Dispositions Amount' shall mean (a) for the
1998 Fiscal Year, $50,000,000, (b) for the 1999 Fiscal Year,
$50,000,000 less the aggregate amount of Net Proceeds (up to but not
exceeding $50,000,000) resulting during the 1998 Fiscal Year from
dispositions referred to in clause (a)(iv) of the definition of the
term "Prepayment Event" and (c) for each other Fiscal Year,
$25,000,000."
(ii)by (A) inserting the phrase "during any Fiscal Year" immediately
following the phrase "other dispositions" in clause (a)(iv) of the
definition of the term "Prepayment Event", (B) deleting the phrase
"$25,000,000 during any Fiscal Year" in such clause and (C) inserting at
the end of such clause immediately before the semicolon the words "the
Permitted Other Dispositions Amount for such Fiscal Year".
(b) Section 6.04(i) of the Credit Agreement is hereby amended by
inserting the following at the end of such Section immediately before the
period:
"(provided that interest and dividends accreted, accrued or
paid-in-kind on instruments or securities of another Person held or
owned by the Borrower or a Subsidiary shall not increase the
aggregate amount deemed invested by the Borrower or such Subsidiary
in such instruments or securities and outstanding for purposes of
this Section 6.04(i))".
SECTION 2. Fees. Each Lender that delivers an executed counterpart
of this Amendment prior to noon on the date this Amendment becomes effective
shall receive from the Borrower an amendment fee equal to 0.125% of the sum of
(a) the aggregate principal amount of such Lender's Loans to the Borrower and
(b) the aggregate amount of such Lender's available Commitments. The Borrower
shall pay, in immediately available funds, such amendment fees to the
Administrative Agent for distribution to such Lenders on the date this Amendment
becomes effective. Once paid, such fee shall not be refundable under any
circumstances.
SECTION 3. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent and to each of the Lenders that:
(a) This Amendment is within the Borrower's corporate powers and has
been duly authorized by all necessary corporate action. This Amendment has
been duly executed and delivered by the Borrower and constitutes its
legal, valid and binding obligation, enforceable in accordance with its
terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject
to general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(b) Before and after giving effect to this Amendment, the
presentations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Before and after giving effect to this Amendment, no Event of
Default or Default has occurred and is continuing or will result herefrom.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when the Administrative Agent shall
have received (a) counterparts of this Amendment that, when taken together, bear
the signatures of the Borrower and the Required Lenders and (b) all fees and
expenses payable to the Administrative Agent pursuant to Sections 2 and 9.
SECTION 5. Credit Agreement. Except as specifically amended hereby,
the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Credit Agreement shall mean the Credit Agreement as
amended hereby.
SECTION 6. Loan Document. This Amendment shall be a Loan Document
for all purposes.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement.
SECTION 9. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
PATHMARK STORES, INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sr. VP, Treasurer & CFO
THE CHASE MANHATTAN BANK, individually, as
Issuing Bank and as Administrative Agent,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution AERIES FINANCE LTD.
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by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Name of Institution AG CAPITAL FUNDING PARTNERS, L.P.
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by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. as Investment Adviser
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Name of Institution CERES FINANCE LTD.
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by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
Name of Institution CIBC INC.
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by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Director
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp, AS AGENT
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution COMMERCIAL LOAN FUNDING TRUST I
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by ▇▇▇▇▇▇ Commercial Paper Inc. Not its Individual
Capacity but solely as Administrative Agent
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Name of Institution CypressTree Investment Partners I, Ltd., by CypressTree
Investment Management Company, Inc. as Portfolio Manager
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by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Name of Institution DLJ CAPITAL FUNDING, INC.
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by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment: First Union Bank, as successor by acquisition to
CoreStates Bank, N.A.
Name of Institution
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by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution GENERAL ELECTRIC CAPITAL CORPORATION
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by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
Name of Institution ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
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by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
Name of Institution KZH CNC LLC
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by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution KZH CYPRESSTREE-i LLC.
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by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
Name of Institution KZH PAMCO LLC
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by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
Name of Institution ▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
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by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P., as
Investment Advisor
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution METROPOLITAN LIFE INSURANCE COMPANY
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by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Name of Institution THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
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by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Its Authorized Representative
Name of Institution ▇▇▇ CAPITAL FUNDING, L.P.
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by Highland Capital Management as Collateral Manager
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇ CFA
Title: Executive Vice President
Highland Capital Management L.P.
Name of Institution PAMCO CAYMAN LTD.
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by Highland Capital Management as Collateral Manager
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇ CFA
Title: Executive Vice President
Highland Capital Management L.P.
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution PILGRIM HIGH INCOME INVESTMENTS LTD.
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by Pilgrim Investments, Inc. as its Investment Manager
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CFA
Title: Vice President
Name of Institution PILGRIM PRIME RATE TRUST
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by Pilgrim Investments, Inc. as its Investment Manager
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CFA
Title: VICE PRESIDENT
Name of Institution PNC BANK, N.A.
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by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution STRATA FUNDING LTD.
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by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution SUMMIT BANK
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by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution TORONTO DOMINION (TEXAS), INC.
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by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Name of Institution TRANSAMERICA BUSINESS CREDIT CORPORATION
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by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Name of Institution ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
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by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
SIGNATURE PAGE TO
AMENDMENT NO. 1,
DATED AS OF
November 27, 1998
To approve the Amendment:
Name of Institution ▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
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by ▇▇▇ ▇▇▇▇▇▇ American Capital Management Inc.,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director