Exhibit 4.4D
WAIVER AGREEMENT
WAIVER AGREEMENT dated as of April 18, 2000, among: PATHMARK STORES,
INC., a Delaware corporation (the "Borrower"); the Subsidiary Loan Parties
identified under the caption "Subsidiary Loan Parties" on the signature pages
hereto (the "Subsidiary Loan Parties" and together with the Borrower, the "Loan
Parties"); and THE CHASE MANHATTAN BANK, as administrative agent for the
below-referenced Lenders (in such capacity, the "Administrative Agent").
The Borrower, certain lenders (the "Lenders"), the Administrative
Agent and CIBC Inc. and First Union National Bank (as successor by acquisition
to Corestates Bank, N.A.), as co-agents, are party to a Credit Agreement dated
as of June 30, 1997 (as amended by Amendment No. 1 thereto dated as of November
27, 1998 and Amendment No. 2 thereto dated as of March 16, 1999, the "Credit
Agreement"), providing for loans to be made by the Lenders in an aggregate
principal amount up to but not exceeding $500,000,000.
The Borrower and the Subsidiary Loan Parties have requested that the
Administrative Agent and the Lenders waive compliance by the Borrower with
certain of the provisions of the Credit Agreement and the Administrative Agent,
having been previously authorized by Lenders constituting the "Required Lenders"
under the Credit Agreement, is willing, on behalf of itself and the Lenders, to
so agree on the terms and conditions provided below. Accordingly, the parties
hereto agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as defined therein. In addition,
as used herein the following terms shall have the following meanings:
"Budget" means the cash budget covering the Budget Period of
expenditure items for which the Borrower desires that the proceeds of
Loans under the Credit Agreement be available during the Budget Period,
broken down by category of expenses on a week-by-week basis, which budget
has been previously delivered to each of the Lenders and identified as the
"Budget" for purposes of this Waiver Agreement.
"Budget Period" means the period commencing on March 30, 2000 and
ending on July 29, 2000.
"Specified Period" means the period from and including the Specified
Period Effective Date to but excluding the Specified Period Termination
Date.
"Specified Period Effective Date" means the date (not later than
April 18, 2000) on which each of the conditions precedent set forth in
Section 4 hereof shall have been satisfied (or if not satisfied, waived by
the Administrative Agent and the Required Lenders).
Waiver Agreement
"Specified Period Termination Date" has the meaning set forth in
Section 5 hereof.
"Specified Provisions" means (i) the obligation set forth in Section
5.01(a) of the Credit Agreement to deliver audited financial statements
within 90 days after the end of each Fiscal Year (to the extent requiring
that such financial statements be delivered without a "going concern" or
like qualification or exception), (ii) the Payment Obligations covenant
set forth in Section 5.05 of the Credit Agreement to the extent requiring
payment of Material Indebtedness, (iii) the Leverage Ratio covenant set
forth in Section 6.16 of the Credit Agreement, (iv) the Consolidated
Interest and Rental Expense Coverage Ratio covenant set forth in Section
6.17 of the Credit Agreement, (v) the Minimum Consolidated EBITDA covenant
set forth in Section 6.18 of the Credit Agreement, (vi) the Senior Debt
Leverage Ratio covenant set forth in Section 6.19 of the Credit Agreement
and (vii) any Event of Default set forth in clauses (f) or (g) of Article
VII of the Credit Agreement to the extent arising out of a failure to pay
any Material Indebtedness (but not to the extent arising out of a
declaration by any holder of Material Indebtedness that such Material
Indebtedness is to become due and payable, or to the extent the
Administrative Agent shall receive a notice of acceleration from any
holder of such Material Indebtedness, or a trustee on behalf of any such
holder).
Section 2. Certain Matters Relating to Remedies; Applicable Rate.
(a) Waiver in Respect of Specified Provisions. The Administrative
Agent and the Lenders agree, on the terms and subject to the conditions hereof,
during the Specified Period to waive compliance by the Borrower with the
Specified Provisions. Notwithstanding such waiver, it is understood by the
Borrower that the Administrative Agent and the Lenders retain the right to
exercise, and have not waived, any rights or remedies with respect to any
Default or Event of Default or any rights or remedies in respect thereof under
the Credit Agreement or otherwise, other than with respect to the Events of
Default arising out of the Specified Provisions. During the Specified Period
(and thereafter), the Administrative Agent and the Lenders shall be permitted to
exercise all of their rights and remedies under the Credit Agreement, except as
may be expressly limited or otherwise provided in this Waiver Agreement.
(b) Waiver of Certain Representations. The Administrative Agent and
the Lenders agree that, during the Specified Period, Section 4.02 and clause (c)
of Article VII of the Credit Agreement shall not apply to any representation or
warranty made by the Borrower in Section 3.04(c) of the Credit Agreement.
Waiver Agreement
(c) Applicable Rate. The Borrower agrees that, commencing on the
Specified Period Effective Date, the "Applicable Rate" with respect to each Loan
shall be 0.50% plus the Applicable Rate that would otherwise be applicable to
such Loan under the Credit Agreement.
Section 3. Representations and Warranties. Each Loan Party
represents and warrants to the Lenders and the Administrative Agent that:
(a) This Waiver Agreement is within each Loan Party's corporate or
other powers, has been duly authorized by all necessary corporate or other
action and constitutes a legal, valid and binding obligation of each Loan
Party, enforceable against each Loan Party in accordance with its terms.
(b) Both immediately prior to the effectiveness of this Waiver
Agreement and also after giving effect thereto, (i) no Default shall have
occurred and be continuing and (ii) the representations and warranties set
forth in Article III of the Credit Agreement (other than in Section
3.04(c) thereof) are true and correct as if made on and as of the date
hereof and as if each reference in said Article III to "this Agreement" or
words of similar import included reference to the Credit Agreement as
amended hereby (or, to the extent such representations and warranties are
stated to have been made solely as of an earlier date, such
representations and warranties were true and correct on and as of such
earlier date).
(c) The Budget is based upon good faith estimates and assumptions
that are (and are believed by management of the Borrower to be) reasonable
as of the date hereof. No Default or Event of Default other than the
Events of Default referred to in the definition of "Specified Provisions"
is anticipated to occur during the Specified Period.
(d) The Credit Agreement and the other Loan Documents are legal,
valid and binding obligations of each Loan Party party thereto,
enforceable in accordance with their terms (and each Loan Party hereby
reaffirms, reconfirms and restates, all such obligations to the Lenders
and the Administrative Agent).
(e) The information, reports, financial statements, exhibits and
schedules furnished in writing by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation,
preparation or delivery of this Waiver Agreement or included herein
delivered pursuant hereto, do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were
made, not misleading. All written information furnished after the date
hereof by the Borrower or any of its Subsidiaries to the Administrative
Agent and the Lenders in connection with this Waiver Agreement and the
Loan Documents and the transactions contemplated hereby and thereby will
be true and correct in every material respect, or (in the case of
Waiver Agreement
projections) based on reasonable estimates, on the date as of which such
information is stated or certified.
Section 4. Conditions Precedent. The waivers set forth in Section 2
above shall become effective, as of the Specified Period Effective Date, upon
satisfaction of the following conditions (and any documents required to be
delivered under this Section 4 shall be in form and substance satisfactory to
the Administrative Agent):
(a) Agreement. Receipt by the Administrative Agent of one or more
counterparts of this Waiver Agreement, duly executed and delivered by the
Borrower and each Subsidiary Loan Party (or other evidence satisfactory to
the Administrative Agent of such execution and delivery).
(b) Payment of Fees. Payment by the Borrower of (i) a waiver fee in
such amount as the Borrower shall have agreed in writing to pay to the
Lenders in connection herewith and (ii) all costs and other expenses of
the Administrative Agent (including, but not limited to, the fees,
expenses and costs of external legal counsel for the Administrative Agent
in connection with the Credit Agreement and herewith) which the Borrower
is obligated to pay pursuant to Section 9.03(a) of the Credit Agreement or
otherwise, to the extent that written invoices therefor shall have been
submitted to the Borrower.
(c) Other Documents. Such other documents relating to the
transactions contemplated hereby as the Administrative Agent or any Lender
(acting through the Administrative Agent) may reasonably request.
Section 5. Termination. The waivers set forth in Section 2 above
shall terminate and be of no further force or effect on the date (the "Specified
Period Termination Date") which is the earlier of:
(a) July 29, 2000; and
(b) the date the Administrative Agent gives notice to the Borrower
(which notice shall be given by the Administrative Agent if so instructed
by the Required Lenders) of the termination of the temporary waiver set
forth in Section 2 above by reason of the occurrence of any one or more of
the following events:
(i) a breach in any material respect by any of the Loan
Parties of any of the representations or warranties set forth in
this Waiver Agreement;
(ii) a breach by any of the Loan Parties of any of the
certifications, covenants or other provisions set forth in this
Waiver Agreement or in any officer's certificate delivered pursuant
hereto;
Waiver Agreement
(iii) any Event of Default under the Credit Agreement, other
than an Event of Default arising out of any Specified Provision,
shall occur and be continuing; or
(iv) the Borrower shall have delivered a certificate pursuant
to Section 6(a) hereof in connection with any borrowing, but shall
not have applied the proceeds thereof to the expenditures, in the
amounts and for the purposes, described in said certificate.
From and after the Specified Period Termination Date, the Administrative Agent
and the Lenders shall be entitled to immediately exercise and enforce any and
all rights and remedies available to the Administrative Agent and the Lenders as
a consequence of the occurrence of any Event of Default arising out of any
Specified Provision (or any other Event of Default) that has occurred prior to,
during or after the Specified Period and is continuing.
Section 6. Additional Covenants. Without prejudice to the covenants
and agreements set forth in the Credit Agreement or the other Loan Documents,
the Borrower covenants and agrees as follows:
(a) Not later than 2 Business Days prior to any borrowing of a
Revolving Loan during the Specified Period, the proceeds of which will be
used in whole or in part to make expenditures that are of a type not
expressly contemplated by the Budget and that will exceed $1,250,000 for
the week in which such borrowing is to occur, the Borrower will deliver to
the Administrative Agent evidence satisfactory to the Administrative Agent
that, after making such borrowing (and taking into account the Borrower's
good faith estimate of the net increase in aggregate borrowings to occur
during such week) the aggregate unused Revolving Commitments will be at
least equal to the amount set forth in Annex I opposite the respective
week in which such borrowing is being made, together with a certificate of
the chief financial officer of the Borrower setting forth in reasonable
detail the proposed use of such proceeds and a calculation of such
aggregate unused Revolving Commitment amount, it being understood that,
unless the provisions of this paragraph (a) are satisfied with respect to
each requested borrowing of a Revolving Loan during the Specified Period,
the proceeds of which are to be applied as described above, the Lenders
shall not be obligated to make such Loan anything in the Credit Agreement
to the contrary notwithstanding; and
(b) Not later than April 30, 2000, the Borrower shall relocate its
concentration account to an account at The Chase Manhattan Bank, and shall
execute and deliver such control agreements and other documents relating
to such concentration account, and take such action as shall be necessary
to perfect of the security interest of the Lenders therein, as the
Administrative Agent shall request.
Waiver Agreement
Section 7. Continuing Effect. Except as expressly provided herein,
the Credit Agreement and the other Loan Documents shall remain unchanged and in
full force and effect, and all rights, powers and remedies of the Administrative
Agent and the Lenders thereunder are hereby expressly reserved. Without in any
way limiting the generality of the foregoing, the Borrower and the Subsidiary
Loan Parties shall be liable in accordance with the Credit Agreement and the
other Loan Documents for any and all sums and charges due pursuant thereto. The
Borrower and the Subsidiary Loan Parties shall timely pay, during the Specified
Period, all their respective obligations coming due and payable under the Credit
Agreement and the other Loan Documents, including without limitation, as
applicable, any interest, fees and the reimbursement of costs and expenses.
Except to the extent expressly waived herein, the Borrower and the Subsidiary
Loan Parties remain obligated by their respective representations, warranties,
covenants and agreements, and by the other provisions set forth in the Credit
Agreement and the other Loan Documents.
Section 8. No Commitment or Waiver. Neither this Waiver Agreement
nor any action or inaction on the part of the Administrative Agent or any of the
Lenders shall be construed to constitute or represent (i) a commitment by the
Administrative Agent or any Lender, either in their capacities under the Credit
Agreement or in any other capacity, to restructure any Indebtedness of the
Borrower, or (ii) an intention by the Administrative Agent, any Lender or the
Borrower, either in their capacities under the Credit Agreement or in any other
capacity, except as expressly provided in Section 2 above with respect to
Specified Provisions, to waive, modify or, not exercise any of their rights,
powers, privileges or remedies under the Credit Agreement, any other Loan
Document or any other document or agreement, at law, in equity or otherwise, and
each Loan Party acknowledges, agrees and confirms, except as expressly provided
in Section 2 above with respect to the Specified Provisions, that no such
commitment, waiver, modification or agreement not to exercise has been offered,
granted, extended or agreed to by the Administrative Agent or the Lenders,
either in their capacities under the Credit Agreement or in any other capacity.
Nothing set forth in this Waiver Agreement shall be construed so as to require
the Administrative Agent or the Lenders, either in their capacities under the
Credit Agreement or in any other capacity, to agree to the terms of any
modification proposed by the Borrower to the Credit Agreement or any other
document or agreement to which the Administrative Agent or any Lender is a
party.
Section 9. Miscellaneous.
9.01 Successors and Assigns; Benefit of Agreement. This Waiver
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Waiver Agreement is solely for
the benefit of the signatories hereto (and their respective successors and
assigns), and no other Person (including without limitation any other creditor
of or claimant against any Loan Party) shall have any rights under, or because
of the existence of, this Waiver Agreement.
Waiver Agreement
9.02 Submission to Jurisdiction, Waiver of Jury Trial, Etc. Sections
9.09(b), (c) and (d) and 9.10 of the Credit Agreement and Sections 18 and 19 of
the Guarantee Agreement are hereby incorporated by reference herein, as if set
forth in full herein, mutatis mutandis, and as if each reference therein to
"this Agreement" included reference to this Waiver Agreement.
9.03. Remedies. No failure on the part of the Administrative Agent
or the Lenders to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder or under the Credit
Agreement or any other Loan Documents shall operate as a waiver thereof; nor
shall any single or partial exercise by the Administrative Agent or the Lenders
of any right, power or remedy hereunder, under the Credit Agreement or under any
other Loan Documents preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
9.04. Voluntary Agreement. Each Loan Party represents and warrants
that it is represented by legal counsel of its choice, is fully aware of the
terms contained in this Waiver Agreement and has voluntarily and without
coercion or duress of any kind entered into this Waiver Agreement, and the
documents and agreements executed and to be executed in connection with this
Waiver Agreement.
9.05. Further Assurances. Each Loan Party shall execute all
additional documents and do all acts not specifically referred to herein which
are reasonably necessary to fully effectuate the intent of this Waiver
Agreement.
9.06. Time of Essence. TIME IS STRICTLY OF THE ESSENCE OF THIS
WAIVER AGREEMENT AND FULL AND COMPLETE PERFORMANCE OF EACH AND EVERY PROVISION
HEREOF.
9.07. Waiver and Release. No Loan Party has, and, in any event, each
Loan Party hereby waives and releases, any claim, counterclaim, demand (other
than notices required under the Loan Documents), action, defense or offset
against any of its indebtedness and other obligations (and the enforcement
thereof) under the Credit Agreement or the other Loan Documents or against the
Administrative Agent or the Lenders or their respective employees, agents and
representatives, by reason of any matter, cause or thing whatsoever occurring on
or before the date hereof which relates or arises out of the Credit Agreement or
the other Loan Documents or any obligations or responsibilities of the Lenders
or the Administrative Agent under or in respect of the Credit Agreement, the
other Loan Documents, or any credit heretofore extended to the Borrower
thereunder. In addition, each Loan Party agrees not to commence, join in,
assist, cooperate, prosecute or participate (other than as a defendant) in any
suit or other proceeding in a position that is materially adverse to the Lenders
or the Administrative Agent concerning matters within the scope of the waiver
and release contained above. Each Loan Party hereby expressly acknowledges and
agrees that nothing in this Waiver Agreement or in any document or instrument
executed in connection with or pursuant to this Waiver Agreement shall
constitute a satisfaction as to all or any portion of the Borrower's
indebtedness or obligations
Waiver Agreement
under the Credit Agreement and the other Loan Documents. It is understood and
agreed that the provisions of this Section 9.07 shall not be binding upon third
parties, but shall be binding solely upon the Loan Parties and their respective
successors and assigns.
9.08. Severability. Any provision of this Waiver Agreement that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining provisions of this Waiver
Agreement or affecting the validity or enforceability of any provisions of this
Waiver Agreement in any other jurisdiction.
9.09. Counterparts; Section Headings. This Waiver Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same agreement and any of the parties hereto may execute
this Waiver Agreement by signing any such counterpart. Section or other headings
contained in this Waiver Agreement are for reference purposes only and shall not
in any way effect the meaning or interpretation of this Waiver Agreement.
9.10. Governing Law; Loan Document. This Waiver Agreement shall be
governed by, and construed in accordance with, the law of the State of New York.
This Waiver Agreement shall be considered a "Loan Document" for all purposes.
Waiver Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
Agreement to be duly executed and delivered as of the day and year first above
written.
BORROWER
PATHMARK STORES, INC.
By /s/ Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Vice President
SUBSIDIARY LOAN PARTIES
AAL REALTY CORP. BRIDGE STUART, INC.
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
--------------------------------- --------------------------------------
Title: Executive Vice President Title: Executive Vice President
BUCKS STUART, INC. XXX PROPERTIES CORP.
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
--------------------------------- --------------------------------------
Title: Executive Vice President Title: Executive Vice President
PATHMARK RISK MANAGEMENT CORP. PAULS TRUCKING CORP.
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
--------------------------------- --------------------------------------
Title: Executive Vice President Title: Executive Vice President
Waiver Agreement
PLAINBRIDGE, INC.
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Executive Vice President
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Xxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
Waiver Agreement
ANNEX I
Minimum Weekly Availability Amounts
Week Ending Minimum Amount
----------- --------------
April 8, 2000 $90,213,000
April 15, 2000 $84,727,000
April 22, 2000 $89,209,000
April 29, 2000 $75,496,000
May 6, 2000 $70,661,000
May 13, 2000 $76,642,000
May 20, 2000 $69,842,000
May 27, 2000 $67,427,000
June 3, 2000 $62,831,000
June 10, 2000 $73,239,000
June 17, 2000 $77,702,000
June 24, 2000 $74,438,000
July 1, 2000 $71,823,000
July 8, 2000 $75,231,000
July 15, 2000 $87,073,000
July 22, 2000 $79,983,000
July 29, 2000 $75,755,000
Waiver Agreement
