Exhibit 4.4C AMENDMENT NO. 2 dated as of March 16, 1999 (this "Amendment"), to the Credit Agreement dated as of June 30, 1997 as amended (the "Credit Agreement"), among PATHMARK STORES, INC. (the "Borrower"), the lenders party thereto (the "Lenders"),...
Exhibit 4.4C
AMENDMENT NO. 2 dated as of March 16, 1999 (this
"Amendment"), to the Credit Agreement dated as of June 30,
1997 as amended (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 as Issuing Bank, and CIBC
INC. and FIRST UNION NATIONAL BANK, as successor by
acquisition to 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 financial covenants of the Credit Agreement as provided herein.
C. The Required Lenders are willing to agree to such amendments, on
the terms and subject to the conditions set forth herein.
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 6.16 of the Credit Agreement is
hereby amended by substituting the following table contained therein:
"Period Amount
------ ------
Closing Date through First Fiscal Quarter
of 1998 Fiscal Year 7.50 to 1.00
Second Fiscal Quarter of 1998 Fiscal Year 7.25 to 1.00
Third and Fourth Fiscal Quarters of 1998
Fiscal Year 7.00 to 1.00
First Fiscal Quarter of 1999 Fiscal Year 7.50 to 1.00
Second and Third Fiscal Quarters of 1999
Fiscal Year 7.75 to 1.00
Fourth Fiscal Quarter of 1999 Fiscal Year 7.50 to 1.00
First Fiscal Quarter of 2000 Fiscal Year 6.25 to 1.00
Second Fiscal Quarter of 2000 Fiscal Year 6.00 to 1.00
Third Fiscal Quarter of 2000 Fiscal Year 5.75 to 1.00
Fourth Fiscal Quarter of 2000 Fiscal Year 5.50 to 1.00
Thereafter 5.00 to 1.00"
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(b) Section 6.17 of the Credit Agreement is hereby amended by
substituting the following table for the table contained therein:
"Period Ratio
------ -----
Closing Date through Fourth Fiscal
Quarter of 1999 Fiscal Year 1.20 to 1.00
First Fiscal Quarter of 2000 Fiscal Year
through Fourth Fiscal Quarter
of 2000 Fiscal Year 1.35 to 1.00
Thereafter 1.40 to 1.00"
(c) Section 6.19 of the Credit Agreement is hereby amended by
substituting the following table for the table contained therein:
"Period Ratio
------ -----
Closing Date through First Fiscal Quarter
of 1998 Fiscal Year 3.15 to 1.00
Second Fiscal Quarter of 1998 Fiscal Year
through Fourth Fiscal Quarter of
1999 Fiscal Year 3.00 to 1.00
Thereafter 2.50 to 1.00"
SECTION 2. Fees. Each Lender that delivers an executed counterpart
of this Amendment to the Administrative Agent on or prior to the Effective Date
(as defined below) shall receive from the Borrower an amendment fee equal to
0.05%, calculated as of the Effective Date, of the sum of (a) the aggregate
principal amount of such Lender's outstanding 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 the applicable Lenders and, once paid, such fees 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 Effective Date, except to the extent such
representations and warranties expressly relate to an earlier date.
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(c) Before and after giving effect to this Amendment, no Event of
Default or Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective as of the first Business Day that the Administrative Agent shall have
received counterparts of this Amendment that, when taken together, bear the
signatures of the Borrower and the Required Lenders; provided, however, that
this Amendment shall not become effective (i) prior to March 29, 1999, and (ii)
until all fees and expenses payable to the Administrative Agent in connection
with this Amendment have been paid in immediately available funds. Such date is
referred to herein as the "Effective Date".
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.
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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/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Sr. VP, Treasurer & CFO
THE CHASE MANHATTAN BANK,
individually, as Issuing Bank and
as Administrative Agent,
by /s/ Xxxxxxxx Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
CIBC INC.,
individually and as Co-Agent,
by /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
FIRST UNION NATIONAL BANK,
as successor by acquisition to
CORESTATES BANK, N.A.,
individually and as Co-Agent,
by /s/ Xxxxxx XxXxxxxxx
--------------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President
5
AG CAPITAL FUNDING PARTNERS, L.P.,
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
AERIES FINANCE LTD.
by /s/ Xxxxxx Xxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
BLACK DIAMOND CLO 1998-1 LTD.,
by /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Director
CERES FINANCE LTD.,
by /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Director
COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper Inc., not in
its individual capacity but solely
as Administrative Agent,
by /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
6
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager,
by /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
CYPRESSTREE INVESTMENT
PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager,
by /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
DEEPROCK & CO.,
By: Xxxxx Xxxxx Management as Investment
Advisor,
by /s/ Xxxxx X. Page
--------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST,
By: Xxxxx Xxxxx Management as Investment
Advisor,
by /s/ Xxxxx X. Page
--------------------------------------
Name: Xxxxx X. Page
Title: Vice President
7
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Duly Authorized Signatory
KZH CNC LLC,
by /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
KZH CYPRESSTRESS-1 LLC,
by /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
KZH PAMCO LLC,
by /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO,
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor,
by /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
8
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor,
by /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY,
by /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
ML CLO XX STERLING (CAYMAN) LTD.,
By: Sterling Asset Management, L.L.C.,
as its Investment Advisor,
by /s/ Xxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: EVP
NORSE CBO, LTD., as Assignee,
By: Xxxxxxxx Capital Management, LLC as
its Investment Advisor,
By: Xxxxxxxx Capital Advisors, LLC, its
Manager and pursuant to delegated
authority,
by /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
9
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY,
by /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Its Authorized
Representative
XXX CAPITAL FUNDING, L.P.,
By: Highland Capital Management, L.P. as
Collateral Manager,
by /s/ Xxxx X. Xxxxx, CFA
--------------------------------------
Name: Xxxx X. Xxxxx, CFA
Title: Executive Vice President
PAMCO CAYMAN LTD.,
By: Highland Capital Management, L.P. as
Collateral Manager,
by /s/ Xxxx X. Xxxxx, CFA
--------------------------------------
Name: Xxxx X. Xxxxx, CFA
Title: Executive Vice President
PILGRIM AMERICA HIGH INCOME INVESTMENTS,
LTD.,
By: Pilgrim Investments, Inc., as its
Investment Manager,
by /s/ Xxxxxx Xxxxxx, CFA
--------------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
10
PILGRIM PRIME RATE TRUST,
By: Pilgrim Investments, Inc., as its
Investment Manager,
by /s/ Xxxxxx Xxxxxx, CFA
--------------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
PNC BANK, N.A.,
by /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research as
Investment Advisor,
by /s/ Xxxxx X. Page
--------------------------------------
Name: Xxxxx X. Page
Title: Vice President
STRATA FUNDING LTD.,
by /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Director
SUMMIT BANK,
by /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
11
TRANSAMERICA BUSINESS CREDIT
CORPORATION,
by /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
UBS AG,
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Director
/s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
XXX XXXXXX CLO I, LIMITED,
By: Xxx Xxxxxx American Management Inc.,
as Collateral Manager,
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
XXX XXXXXX PRIME RATE INCOME TRUST,
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
