Exhibit 10.4
EXECUTION COPY
SENIOR SUBSIDIARY GUARANTEE AGREEMENT
dated as of June 12, 2000, among each
of the subsidiaries listed on Schedule
I hereto (each such subsidiary
individually, a "Subsidiary Guarantor"
and collectively, the "Subsidiary
Guarantors") of RITE AID CORPORATION, a
Delaware corporation (the "Borrower"),
and CITICORP USA, INC., a Delaware
corporation, as collateral agent (the
"Senior Collateral Agent") for the
Senior Secured Parties.
Reference is made to (a) the Senior Credit Agreement dated as of
June 12, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Senior Credit Facility"), among Rite Aid, as Borrower, the
Senior Banks parties thereto, the Swingline Banks, the Issuing Banks, the
Senior Administrative Agent, the Senior Collateral Agent and the
Syndication Agents and (b) the Independent Standby L/C Documents pursuant
to which Mellon Bank and Citibank have issued and may in the future issue
certain standby letters of credit. Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the
Definitions Annex attached as Annex 2 hereto, and if not defined therein,
as defined in or by reference to the Senior Credit Facility.
The Senior Banks have agreed to make Loans to the Borrower, and
the Issuing Banks have agreed to issue Letters of Credit for the account of
the Borrower, pursuant to, and upon the terms and subject to the conditions
specified in, the Senior Credit Facility. Mellon Bank and Citibank have
issued and may in the future issue the Independent Standby Letters of
Credit. Each of the Subsidiary Guarantors is a wholly owned Subsidiary of
the Borrower and acknowledges that it will derive substantial benefit from
the making of the Loans by the Senior Banks and the issuance of the Letters
of Credit and the Independent Letters of Credit. The obligations of the
Senior Banks to make Loans and of the Issuing Banks to issue Letters of
Credit are conditioned on, among other things, the execution and delivery
by the Subsidiary Guarantors of a Senior Subsidiary Guarantee Agreement in
the form hereof. As consideration therefor and (a) in order to induce the
Senior Banks to make Loans and the Issuing Banks to issue Letters of Credit
and (b) in consideration of the issuance of the Independent Standby Letters
of Credit by Mellon Bank and Citibank, the Subsidiary Guarantors are
willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. GUARANTEE. Each Subsidiary Guarantor unconditionally
guarantees, jointly with the other Subsidiary Guarantors and severally, as
a primary obligor and not merely as a surety, the due and punctual payment
of, and the due and punctual performance of, the Senior Obligations. Each
Subsidiary Guarantor agrees that the Senior Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it,
and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Senior Obligation.
Anything contained in this Agreement to the contrary
notwithstanding, the obligations of each Subsidiary Guarantor hereunder
shall be limited to a maximum aggregate amount equal to the greater of:
(a) the direct or indirect benefit to any Subsidiary
Guarantor from the Loans and other extensions of credit under the
Senior Loan Documents, and
(b) the greatest amount that would not render such
Subsidiary Guarantor's obligations hereunder subject to avoidance
under Section 548 of Title 11 of the United States Code or any
comparable provisions of any applicable state law, after giving
effect to all other liabilities of such Subsidiary Guarantor,
contingent or otherwise, that are relevant under such laws
(specifically excluding, however, any liabilities of such
Subsidiary Guarantor (x) in respect of intercompany indebtedness
to the Borrower or Affiliates of the Borrower to the extent that
such indebtedness would be discharged in an amount equal to the
amount paid by such Subsidiary Guarantor hereunder, and (y) under
any Guarantee of the Second Priority Debt Obligations) and after
giving effect as assets to the value of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such
Subsidiary Guarantor pursuant to (i) applicable law or (ii) any
agreement providing for an equitable allocation among such
Subsidiary Guarantor and other Affiliates of the Borrower of
obligations arising under Guarantees by such parties (including
the Senior Indemnity, Subrogation and Contribution Agreement).
SECTION 2. OBLIGATIONS NOT WAIVED. To the fullest extent permitted
by applicable law, each Subsidiary Guarantor waives presentment to, demand
of payment from and protest to the Borrower of any of the Senior
Obligations, and also waives notice of acceptance of its guarantee and
notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of each Subsidiary Guarantor hereunder
shall not be affected by (a) the failure of the Senior Collateral Agent or
any other Senior Secured Party to assert any claim or demand or to enforce
or exercise any right or remedy against the Borrower or any other
Subsidiary Guarantor under the provisions of the Senior Credit Facility,
any other Senior Loan Document or otherwise, (b) any rescission, waiver,
amendment or modification of, or any release from any of the terms or
provisions of this Agreement, any other Senior Loan Document, any Guarantee
or any other agreement, including with respect to any other Subsidiary
Guarantor under this Agreement or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of
the Senior Collateral Agent or any other Senior Secured Party.
SECTION 3. SECURITY. Each of the Subsidiary Guarantors authorizes
the Senior Collateral Agent and each of the other Senior Secured Parties,
to (a) take and hold security for the payment of this Guarantee and the
Senior Obligations and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner of sale
thereof as they in their sole discretion may determine and (c) release or
substitute any one or more endorsees, other Subsidiary Guarantors or other
Obligors.
SECTION 4. GUARANTEE OF PAYMENT. Each Subsidiary Guarantor agrees
that its guarantee constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Senior Collateral Agent or any other Senior Secured Party to any of the
security held for payment of the Senior Obligations or to any balance of
any deposit account or credit on the books of the Senior Collateral Agent
or any other Senior Secured Party in favor of the Borrower, any other
Obligor or any other Person.
SECTION 5. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE. The
obligations of each Subsidiary Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason (other
than the indefeasible payment in full in cash of the Senior Obligations),
including any claim of waiver, release, surrender, alteration or compromise
of any of the Senior Obligations, and shall not be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality or unenforceability of the Senior Obligations or
otherwise. Without limiting the generality of the foregoing, the
obligations of each Subsidiary Guarantor hereunder shall not be discharged
or impaired or otherwise affected by the failure of the Senior Collateral
Agent or any other Senior Secured Party to assert any claim or demand or to
enforce any remedy under the Senior Credit Facility, any other Senior Loan
Document or any other agreement, by any waiver or modification of any
provision of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Senior Obligations, or by any other
act or omission that may or might in any manner or to any extent vary the
risk of any Subsidiary Guarantor or that would otherwise operate as a
discharge of each Subsidiary Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Senior
Obligations).
SECTION 6. DEFENSES OF BORROWER WAIVED. To the fullest extent
permitted by applicable law, each of the Subsidiary Guarantors waives any
defense based on or arising out of any defense of the Borrower or the
unenforceability of the Senior Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower,
other than the final and indefeasible payment in full in cash of the Senior
Obligations. The Senior Collateral Agent and the other Senior Secured
Parties may, at their election, foreclose on any security held by one or
more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Senior Obligations, make any other accommodation
with the Borrower or any other guarantor or exercise any other right or
remedy available to them against the Borrower or any other guarantor,
without affecting or impairing in any way the liability of any Subsidiary
Guarantor hereunder except to the extent the Senior Obligations have been
fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
each of the Subsidiary Guarantors waives any defense arising out of any
such election even though such election operates, pursuant to applicable
law, to impair or to extinguish any right of reimbursement or subrogation
or other right or remedy of such Subsidiary Guarantor against the Borrower
or any other Subsidiary Guarantor or guarantor, as the case may be, or any
security.
SECTION 7. AGREEMENT TO PAY; SUBORDINATION. In furtherance of the
foregoing and not in limitation of any other right that the Senior
Collateral Agent or any other Senior Secured Party has at law or in equity
against any Subsidiary Guarantor by virtue hereof, upon the failure of the
Borrower or any other Obligor to pay any Senior Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice
of prepayment or otherwise, each Subsidiary Guarantor hereby promises to
and will forthwith pay, or cause to be paid, to the Senior Collateral Agent
or such other Senior Secured Party as designated thereby in cash the amount
of such unpaid Senior Obligations. Upon payment by any Subsidiary Guarantor
of any sums to the Senior Collateral Agent or any Senior Secured Party as
provided above, all rights of such Subsidiary Guarantor against the
Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise, including pursuant to
the Senior Indemnity, Subrogation and Contribution Agreement, shall in all
respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Senior Obligations. In
addition, any indebtedness of the Borrower now or hereafter held by any
Subsidiary Guarantor is hereby subordinated in right of payment to the
prior payment in full of the Senior Obligations. If any amount shall
erroneously be paid to any Subsidiary Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or
(ii) any such indebtedness of the Borrower, such amount shall be held in
trust for the benefit of the Senior Secured Parties and shall forthwith be
paid to the Senior Collateral Agent to be credited against the payment of
the Senior Obligations, whether matured or unmatured, in accordance with
the terms of the Senior Loan Documents.
SECTION 8. CASH COLLATERALIZATION OF LETTER OF CREDIT OBLIGATIONS.
If any Event of Default shall occur and be continuing, each Subsidiary
Guarantor agrees, jointly and severally, and in addition to its obligations
under Section 1, on the Business Day on which the Borrower receives notice
from the Senior Administrative Agent or the Majority Revolving Credit Banks
(or, if the maturity of the Loans has been accelerated, Revolving Credit
Banks holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters
of Credit) thereof and of the amount to be deposited, deposit in the L/C
Cash Collateral Account, for the benefit of the Revolving Credit Banks, an
amount in cash equal to the L/C Exposure as of such date. Such deposits
shall be held by the Senior Collateral Agent as collateral for the payment
and performance of the Senior Obligations. The Senior Collateral Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Such deposits shall be invested in Temporary
Cash Investments, to be selected by the Senior Collateral Agent in its sole
discretion, and interest earned on such deposits shall be deposited in such
account as additional collateral for the payment and performance of the
Senior Obligations. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically
be applied by the Senior Administrative Agent to reimburse the applicable
Issuing Bank for L/C Disbursements for which it has not been reimbursed,
(ii) be held for the satisfaction of the reimbursement obligations of the
Borrower for the L/C Exposure at such time and (iii) if the maturity of the
Loans has been accelerated be applied to satisfy other Senior Obligations.
If a Subsidiary Guarantor is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to
such Subsidiary Guarantor within three Business Days after all Events of
Default have been cured or waived (or during a Cash Sweep Period, paid into
the Citibank Concentration Account).
SECTION 9. INFORMATION. Each of the Subsidiary Guarantors assumes
all responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon
the risk of nonpayment of the Senior Obligations and the nature, scope and
extent of the risks that such Subsidiary Guarantor assumes and incurs
hereunder, and agrees that none of the Senior Collateral Agent or the other
Senior Secured Parties will have any duty to advise any of the Subsidiary
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 10. REPRESENTATIONS AND WARRANTIES. Each of the Subsidiary
Guarantors represents and warrants as to itself that all representations
and warranties relating to it contained in the Senior Credit Facility are
true and correct.
SECTION 11. TERMINATION. The Guarantees made hereunder (a) shall
terminate on the Senior Obligation Payment Date and (b) shall continue to
be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any Senior Obligations is rescinded or must
otherwise be restored by any Senior Secured Party or any Subsidiary
Guarantor upon the bankruptcy or reorganization of the Borrower, any
Subsidiary Guarantor or otherwise.
SECTION 12. BINDING EFFECT; SEVERAL AGREEMENT; ASSIGNMENTS.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of the
Subsidiary Guarantors that are contained in this Agreement shall bind and
inure to the benefit of each party hereto and their respective successors
and assigns. This Agreement shall become effective as to any Subsidiary
Guarantor when a counterpart hereof executed on behalf of such Subsidiary
Guarantor shall have been delivered to the Senior Collateral Agent, and a
counterpart hereof shall have been executed on behalf of the Senior
Collateral Agent, and thereafter shall be binding upon such Subsidiary
Guarantor and the Senior Collateral Agent and their respective successors
and assigns, and shall inure to the benefit of such Subsidiary Guarantor,
the Senior Collateral Agent and the other Senior Secured Parties, and their
respective successors and assigns, except that no Subsidiary Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all
of the capital stock of a Subsidiary Guarantor is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by Section 5.23
of the Senior Credit Facility, such Subsidiary Guarantor shall be released
from its obligations under this Agreement without further action. This
Agreement shall be construed as a separate agreement with respect to each
Subsidiary Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Subsidiary Guarantor without the approval of
any other Subsidiary Guarantor and without affecting the obligations of any
other Subsidiary Guarantor hereunder.
SECTION 13. WAIVERS; AMENDMENT. (a) No failure or delay of the
Senior Collateral Agent in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Senior Collateral Agent hereunder and of the other Senior
Secured Parties under the other Senior Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by
any Subsidiary Guarantor therefrom shall in any event be effective unless
the same shall be permitted by clause (b), and then such waiver or consent
shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Subsidiary Guarantors with respect to which such waiver,
amendment or modification relates and the Senior Collateral Agent, with the
prior written consent of the Majority Senior Parties, except (i) as
otherwise provided in the Senior Credit Facility and (ii) any amendment or
waiver which adversely affects the Independent Standby L/C Parties under
this Agreement will require the additional consent of the Independent
Standby L/C Parties pursuant to a letter or agreement by the Independent
Standby L/C Parties or by telecopy transmission from the Independent
Standby L/C Parties.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 15. NOTICES. All communications and notices hereunder
shall be in writing and given as provided in Section 9.01 of the Senior
Credit Facility. All communications and notices hereunder to each
Subsidiary Guarantor shall be given to it in care of the Borrower, at the
address of the Borrower specified in Annex 2 to the Senior Credit Facility.
SECTION 16. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All
covenants, agreements, representations and warranties made by the
Subsidiary Guarantors herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or
any other Senior Loan Document shall be considered to have been relied upon
by the Senior Collateral Agent and the other Senior Secured Parties and
shall survive the making by the Senior Banks of the Loans and the issuance
of the Letters of Credit by the Issuing Banks regardless of any
investigation made by the Senior Secured Parties or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any other fee or amount payable under this
Agreement or any other Senior Loan Document is outstanding and unpaid or
the L/C Exposure does not equal zero and as long as the Commitments and the
L/C Commitment have not been terminated.
(b) In the event any one or more of the provisions contained in
this Agreement or in any other Senior Loan Document should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction
shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute a single contract, and shall become
effective as provided in Section 12. Delivery of an executed signature page
to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 18. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Senior Credit Facility shall be applicable
to this Agreement.
SECTION 19. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Senior
Loan Documents, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that the Senior
Collateral Agent or any other Senior Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other
Senior Loan Documents against any Subsidiary Guarantor or its properties in
the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the other Senior Loan Documents in any New
York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 15. Nothing in
this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
SECTION 20. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER SENIOR LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER SENIOR LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 20.
SECTION 21. ADDITIONAL SUBSIDIARY GUARANTORS. Pursuant to Section
5.08 of the Senior Credit Facility, each Subsidiary of the Borrower that
was not in existence on the date of the Senior Credit Facility is required
to enter into this Agreement as a Subsidiary Guarantor upon becoming a
Subsidiary. Upon execution and delivery after the date hereof by the Senior
Collateral Agent and such a Subsidiary of an instrument in the form of
Annex 1, such Subsidiary shall become a Subsidiary Guarantor hereunder with
the same force and effect as if originally named as a Subsidiary Guarantor
herein. The execution and delivery of any instrument adding an additional
Subsidiary Guarantor as a party to this Agreement shall not require the
consent of any other Subsidiary Guarantor hereunder. The rights and
obligations of each Subsidiary Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Subsidiary
Guarantor as a party to this Agreement.
SECTION 22. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Senior Secured Party is hereby authorized
at any time and from time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other Debt at any time
owing by such Senior Secured Party to or for the credit or the account of
any Subsidiary Guarantor against any or all the obligations of such
Subsidiary Guarantor now or hereafter existing under this Agreement and the
other Senior Loan Documents held by such Senior Secured Party, irrespective
of whether or not such Senior Secured Party shall have made any demand
under this Agreement or any other Senior Loan Document and although such
obligations may be unmatured and regardless of the adequacy of any
Collateral. The rights of each Senior Secured Party under this Section 22
are in addition to other rights and remedies (including other rights of
setoff) which such Senior Secured Party may have.
SECTION 23. COLLATERAL TRUST AND INTERCREDITOR AGREEMENT. Each of
the parties to this Agreement acknowledges and agrees, for the benefit of
each other party to the Collateral Trust and Intercreditor Agreement, that
notwithstanding anything herein to the contrary, the terms of this
Agreement, and the rights and remedies of the parties hereto, are subject
to the Collateral Trust and Intercreditor Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CITICORP USA, INC., as Senior Collateral Agent,
By________________________________
Name:
Title:
THRIFTY PAYLESS, INC., as a Subsidiary
Guarantor,
By________________________________
Name:
Title:
PCS HEALTH SYSTEMS, INC., as a Subsidiary
Guarantor,
By________________________________
Name:
Title:
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO, as Grantors,
By________________________________
Name:
Title:
Schedule I to the
Senior Subsidiary Guarantee Agreement
Subsidiary Guarantors
Rite Aid Hdqtrs. Corp.
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maine, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Pennsylvania, Inc.
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
Rite Aid of Vermont, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid of West Virginia, Inc.
Drug Fair of PA. Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
GDF, Inc.
Harco, Inc.
The Lane Drug Company
Keystone Centers, Inc.
Ocean Acquisition Corporation
PCS Holding Corporation
Perry Drug Stores, Inc.
Xxxx, Inc.
Rite Aid Funding LLC
Rite Investments Corp.
Rite Aid Drug Palace, Inc.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
RX Choice, Inc.
Script South
Thrifty Payless, Inc.
W.R.A.C., Inc.
0000 Xxxxxx Xxxx Xxxx - Xxxxxxxxxx Corp.
0000 Xxxxxxxxxxxx Xxxxxx Xxxx -
Xxxxxxxxxxxx Xxxx, Inc.
5277 Associates, Inc.
000 Xxx Xxxxxx Corporation
5600 Superior Properties, Inc.
000-000 Xxxxx Xx. Xxxx.
Xxxxxxxxx and Wallings -Broadview
Heights Ohio, Inc.
Dominion Action One Corporation
Dominion Action Two Corporation
Dominion Action Three Corporation
Dominion Action Four Corporation
Dominion Drug Stores Corp.
England Street-Asheland Corporation
Xxxxx Xxxxxx Xxxxxx Corporation
Lakehurst and Broadway Corporation
Xxxxxx Drive and Navy Boulevard Property
Corporation
Portfolio Medical Services, Inc.
Rack Rite Distributors, Inc.
Ram-Utica, INC.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
The Xxxx Company
Virginia Corporation
K&B, Incorporated
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Incorporated
K&B Tennessee Corporation
K&B Texas Corporation
K&B Trainees, Inc.
Xxxx & Xxxxxxxx, Inc.
Super Beverage of Texas #2, Inc.
Super Beverage of Texas #3, Inc.
Super Beverage of Texas #4, Inc.
Super Beverage of Texas #5, Inc.
Super Beverage of Texas #6, Inc.
Super Distributors, Inc.
Super Ice Cream Suppliers, Inc.
Super Laboratories, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc.
PCS Health Systems, Inc.
PCS Services, Inc.
PCS Mail Services, Inc.
PCS Mail Service of Fort Worth, Inc.
PCS Mail Service of Birmingham, Inc.
PCS Mail Services of Scottsdale, Inc.
Clinical Pharmaceuticals, Inc.
Apex Drug Stores, Inc.
PDS-1 Michigan, Inc.
RDS Detroit, Inc.
Perry Distributors, Inc.
PL Xpress, Inc.
Thrifty Corporation
P.L.D. Enterprises, Inc.
Rite Aid Lease Management Company
Rite Aid Realty Corp.
Thrifty Wilshire, Inc.
Name Rite LLC
Sophie One Corp.
000 Xxxxxxxx Xxxxxx Xxxxxxx, LLC.
0000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx, LLC
0000 Xxxxxxx Xxxx - Xxxxxxxx Inc.
1740 Associates, LLC
000 Xxxxx Xxxxxxxx- Xxxxxx, Xxxx, LLC
000 Xxxxxxx Xxxxxx- Xxxxxxx, LLC
Xxx & Government Streets- Mobile,
Alabama, LLC
Baltimore/Annapolis Boulevard & Governor
Richie Hwy-Glen Burnie, MD, LLC
Xxxxxxx Xxxxxx xxx Xxxx Xxxxxx- Xxxxx, XX,
LLC
Eighth and Water Streets- Ulrichsville,
Ohio, LLC
Euclid and Wilders Roads- Bay City, LLC
Gettysburg and Hoover-Dayton, Ohio, LLC
Gratiot & Center- Saginaw Township,
Michigan, LLC
Xxxxxxxxxx Xxxxxx & Xxxxx 00xx Xxxxxx-
Monroe, Louisiana, LLC
Main & XxXxxxxxx- Xxxxx, LLC
Xxxxxxxx & Chillicothe Roads- Chesterland,
LLC
Xxxxxx & Xxxxxxx LLC
Northline & Xxx- Xxxxxx- Southgate, LLC
Paw Paw Lake Road & Paw Paw Avenue-
Coloma, Michigan, LLC
Xxxxxxxx Xxxx & Xxxxxxxxxx Xxxxxxxxx-
Xxxxxxxx Xxxxxxx, Xxxx, LLC
Xxxxx 0 xxx Xxxx Xxxx- Fredricksburg,
LLC
Route 202 at Route 124 Jaffrey- New
Hampshire, LLC
Seven Mile and Evergreen- Detroit, LLC
Silver Springs Road- Baltimore, Maryland/
One, LLC
Silver Springs Road- Baltimore, Maryland/
Two, LLC
Xxxxx Xxxxxx xxx Xxxx Xxxx- Xxxxxx, Xxxx,
LLC
State & Fortification Streets- Jackson,
Mississippi, LLC
Tyler and Xxxxxxx Roads, Birmingham-
Alabama, LLC
Annex 1 to the
Senior Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of , to the
Senior Subsidiary Guarantee Agreement dated as
of June 12, 2000, among each of the subsidiaries
listed on Schedule I thereto (each such
subsidiary individually, a "Subsidiary
Guarantor" and collectively, the "Subsidiary
Guarantors") of RITE AID CORPORATION, a Delaware
corporation (the "Borrower"), and CITICORP USA,
INC., a Delaware corporation, as collateral
agent (the "Senior Collateral Agent") for the
Senior Secured Parties.
A. Reference is made to (a) the Senior Credit Agreement dated as
of June 12, 2000 (as amended, supplemented or otherwise modified from time
to time, the "Senior Credit Facility"), among Rite Aid, as Borrower, the
Senior Banks parties thereto, the Swingline Banks, the Issuing Banks, the
Senior Administrative Agent, the Senior Collateral Agent and the
Syndication Agents and (b) the Independent Standby L/C Documents pursuant
to which Mellon Bank and Citibank have issued and may in the future issue
certain standby letters of credit.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Senior Subsidiary
Guarantee Agreement, including the Definitions Annex and the Senior Credit
Facility referred to therein.
C. The Subsidiary Guarantors have entered into the Senior
Subsidiary Guarantee Agreement (a) in order to induce the Senior Banks to
make Loans and the Issuing Banks to issue Letters of Credit and (b) in
consideration of the issuance of the Independent Standby Letters of Credit
by Mellon Bank and Citibank. Pursuant to Section 5.08 of the Senior Credit
Facility, each Domestic Subsidiary of the Borrower that was not in
existence or not a Subsidiary on the date of the Senior Credit Facility is
required to enter into the Senior Subsidiary Guarantee Agreement as a
Subsidiary Guarantor upon becoming a Domestic Subsidiary. Section 21 of the
Senior Subsidiary Guarantee Agreement provides that additional Subsidiaries
of the Borrower may become Subsidiary Guarantors under the Senior
Subsidiary Guarantee Agreement by execution and delivery of an instrument
in the form of this Supplement. The undersigned Subsidiary of the Borrower
(the "New Subsidiary Guarantor") is executing this Supplement in accordance
with the requirements of the Senior Credit Facility to become a Subsidiary
Guarantor under the Senior Subsidiary Guarantee Agreement in order to (a)
induce the Senior Banks to make additional Loans and the Issuing Banks to
issue additional Letters of Credit and as consideration for Loans
previously made and Letters of Credit previously issued and (b) in
consideration of the issuance of the Independent Standby Letters of Credit
by Mellon Bank and Citibank.
Accordingly, the Senior Collateral Agent and the New Subsidiary
Guarantor agree as follows:
SECTION 1. In accordance with Section 20 of the Senior Subsidiary
Guarantee Agreement, the New Subsidiary Guarantor by its signature below
becomes a Subsidiary Guarantor under the Senior Subsidiary Guarantee
Agreement with the same force and effect as if originally named therein as
a Subsidiary Guarantor and the New Subsidiary Guarantor hereby (a) agrees
to all the terms and provisions of the Senior Subsidiary Guarantee
Agreement applicable to it as a Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it
as a Subsidiary Guarantor thereunder are true and correct on and as of the
date hereof. Each reference to a "Subsidiary Guarantor" in the Senior
Subsidiary Guarantee Agreement shall be deemed to include the New
Subsidiary Guarantor. The Senior Subsidiary Guarantee Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Senior Collateral Agent and the other Senior Secured Parties that this
Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective
when the Senior Collateral Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New
Subsidiary Guarantor and the Senior Collateral Agent. Delivery of an
executed signature page to this Supplement by facsimile transmission shall
be as effective as delivery of a manually executed counterpart of this
Supplement.
SECTION 4. Except as expressly supplemented hereby, the Senior
Subsidiary Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Senior Subsidiary Guarantee
Agreement shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision hereof in a
particular jurisdiction shall not in and of itself affect the validity of
such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 14 of the Senior Subsidiary
Guarantee Agreement. All communications and notices hereunder to the New
Subsidiary Guarantor shall be given to it at the address set forth under
its signature below, with a copy to the Borrower.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Senior Collateral Agent for its out-of-pocket expenses in connection with
this Supplement, including the fees, disbursements and other charges of
counsel for the Senior Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Senior
Collateral Agent have duly executed this Supplement to the Senior
Subsidiary Guarantee Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
By________________________________
Name:
Title:
CITICORP USA, INC., as Senior Collateral Agent,
By________________________________
Name:
Title:
Annex 2 to
the Senior Subsidiary
Guarantee Agreement
DEFINITIONS ANNEX
This is the Definitions Annex referred to in the Senior Loan
Documents (such term and each other capitalized term used herein as defined
below, and if not defined herein, have the meanings assigned to such terms
in the applicable Senior Loan Document or Second Priority Debt Document)
and the Second Priority Debt Documents. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.
References to any agreement or contract are to such agreement or
contract as amended, modified or supplemented from time to time in
accordance with the terms thereof and of each Senior Loan Document and
Second Priority Debt Document containing restrictions or imposing
conditions on the amendment, modification or supplementing of such
agreement or contract.
"Affiliate" means, when used with respect to a specified Person,
another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Asset Sale" means any sale, transfer or other disposition
(including pursuant to a Sale and Leaseback Transaction) of any property or
asset of the Borrower or any Subsidiary (including any equity interest in a
Subsidiary), other than a Permitted Disposition.
"Attributable Debt" means, as to any particular Capital Lease or
Sale and Leaseback Transaction under which the Borrower or any Subsidiary
is at the time liable, at any date as of which the amount thereof is to be
determined (i) in the case of a transaction involving a Capital Lease, the
amount on such date of the obligation thereunder that would appear on a
balance sheet prepared as of such date in accordance with generally
accepted accounting principles, or (ii) in the case of a Sale and Leaseback
Transaction not involving a Capital Lease, the then present value of the
minimum rental obligations under such Sale and Leaseback Transaction during
the remaining term thereof (after giving effect to any extensions at the
option of the lessor) computed by discounting the respective rental
payments at the actual interest factor included in such payments or, if
such interest factor cannot be readily determined, at the rate per annum
that would be applicable to a Capital Lease of the Borrower having similar
payment terms. The amount of any rental payment required to be made under
any such Sale and Leaseback Transaction not involving a Capital Lease may
exclude amounts required to be paid by the lessee on account of maintenance
and repairs, insurance, taxes, assessments, utilities, operating and labor
costs and similar charges, whether or not characterized as rent.
"Bankruptcy Proceeding" means any proceeding under Title 11 of the
U.S. Code or any other Federal, state or foreign bankruptcy, insolvency,
reorganization, receivership or similar law.
"Basket Asset Sale" means any sale or disposition (including a
Sale and Leaseback Transaction not involving any Mortgaged Property) of
office locations, stores or other personal or real property (including any
improvements thereon), whether or not constituting Mortgaged Property, or
leasehold interest therein for fair value in the ordinary course of
business consistent with past practice and not inconsistent with the
Borrower's business plan delivered to the Representatives on the Closing
Date, provided, however, that, (i) the aggregate consideration received
therefor (including the fair market value of any non-cash consideration)
shall not exceed $75,000,000 in any fiscal year (calculated without regard
to Sale and Leaseback Transactions permitted by Section 5.14(a), (b) and
(c) of the Senior Credit Facility as in effect on the Closing Date) and
(ii) at least 75% of such consideration shall consist of cash.
"Borrower" means Rite Aid.
"Business Day" means any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Euro-Dollar Loan,
the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Markets Transaction" means the receipt by the Borrower or
a Subsidiary of proceeds of an issuance in the public or private capital
markets of long-term debt securities, of equity securities or of
equity-linked (e.g., trust preferred) securities (other than any proceeds
in respect of the issuance of Exchange Notes to SPV and the disposition of
such Exchange Notes pursuant to the Forward Commitment Agreement).
"Casualty/Condemnation" means any event that gives rise to
Casualty/Condemnation Proceeds.
"Casualty/Condemnation Proceeds" means
(a) any insurance proceeds under any insurance policies
or otherwise with respect to any casualty or other insured damage
to any assets of the Borrower or its Subsidiaries, and
(b) any proceeds received by the Borrower or any
Subsidiary of any action or proceeding for the taking of any
assets of the Borrower or its Subsidiaries, or any part thereof or
interest therein, for public or quasi-public use under the power
of eminent domain, by reason of any similar public improvement or
condemnation proceeding,
less, in each case (i) any fees, commissions and expenses (including the
costs of adjustment and condemnation proceedings) and other costs paid or
incurred by the Borrower or any Subsidiary in connection therewith, (ii)
income taxes reasonably estimated to be payable as a result of any gain
recognized in connection with the receipt of such payment or proceeds and
(iii) payment of the outstanding amount of any Debt (or Attributable Debt),
other than the Secured Obligations, together with premium or penalty, if
any, and interest thereon (or comparable obligations in respect of
Attributable Debt), that is secured by a Lien on (or if Attributable Debt,
the lease of) the stock or assets in question and that has priority over
both the Senior Lien and the Second Priority Lien and is to be repaid as a
result of receipt of such payments or proceeds; provided, however, that no
such proceeds shall constitute Casualty/Condemnation Proceeds to the extent
that such proceeds are (A) reinvested in other like fixed or capital assets
within 180 days of the Casualty/Condemnation that gave rise to such
proceeds or (B) committed to be reinvested in other like fixed or capital
assets within 180 days of such Casualty/Condemnation, with diligent pursuit
of such reinvestment, and reinvested in such assets within 365 days of such
Casualty/Condemnation.
"Citibank" means Citibank, N.A.
"Citibank Standby L/C Documents" means the reimbursement
agreements, letter of credit applications and other documents relating to
the Citibank Standby Letters of Credit.
"Citibank Standby L/C Obligations" means (a) each payment,
including payments in respect of reimbursements and cash collateralization,
required to be made by Rite Aid under the Citibank Standby L/C Documents in
respect of Citibank Standby Letters of Credit in an aggregate amount at any
time outstanding not in excess of (i) $8,000,000 minus (ii) the cumulative
amount of proceeds of Collateral applied to such obligations as the result
of the exercise of remedies under the Senior Collateral Documents and (b)
all other monetary obligations, including fees, costs, expenses and
indemnities (including interest and monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
of Rite Aid or any Obligor under the Citibank Standby L/C Documents to the
extent attributable to the Citibank Standby Letters of Credit referred to
in clause (a).
"Citibank Standby Letters of Credit" means the standby letters of
credit issued for the account of the Borrower by Citibank outstanding on
the Closing Date in an aggregate face amount of approximately $8,000,000,
together with any standby letter of credit (other than any letter of credit
issued under the Senior Credit Facility) hereafter issued by Citibank for
the account of any Obligor, provided that the Citibank Standby Letters of
Credit shall be limited to an amount at any time outstanding not in excess
of (i) $8,000,000 minus (ii) the cumulative amount of proceeds of
Collateral applied as the result of the exercise of remedies under the
Senior Collateral Documents to reimbursement and cash collateralization
obligations in respect of Citibank Standby Letters of Credit.
"Closing Date" means the date on which the Senior Credit Facility,
the amendments and restatements giving rise to the Existing Facilities and
the exchange offer and other transactions giving rise to the Exchange Notes
become effective.
"Collateral" means the Senior Collateral and the Second Priority
Collateral.
"Collateral Documents" means (a) the Senior Collateral Documents
and (b) the Second Priority Collateral Documents.
"Collateral Trust and Intercreditor Agreement" means the
Collateral Trust and Intercreditor Agreement, dated as of June 12, 2000,
among Rite Aid, the Subsidiary Guarantors, the Second Priority Collateral
Trustee, the Senior Collateral Agent and each Second Priority
Representative.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such
Person as lessee which are capitalized in accordance with generally
accepted accounting principles, (v) all non-contingent obligations of such
Person to reimburse any bank or other Person in respect of amounts paid
under a letter of credit or similar instrument, (vi) all Debt secured by a
Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vii) all Debt of others Guaranteed by such
Person.
"Debt Facility" means any of the Senior Credit Facility, the
Existing Facilities, the Synthetic Lease Facilities and the Exchange Note
Indenture.
"Default Rate" means a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the
case may be) equal to the sum of (a) the rate of interest publicly
announced by Citibank in New York, New York, from time to time as its "base
rate", plus (b) 2.00%.
"Designated Asset Disposition" means any sale, transfer or other
disposition of Exchange Debt First Priority Collateral other than a
Permitted Disposition.
"Domestic Subsidiary" means any Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof
or the District of Columbia.
"Xxxxxxxxx.xxx Common Stock" means the common stock of
Xxxxxxxxx.xxx, Inc., a Delaware corporation, owned by Rite Aid.
"Xxxxxxxxx.xxx Pledge Agreement" means the Xxxxxxxxx.xxx Pledge
Agreement dated as of October 25, 1999 and amended and restated as of June
12, 2000, between the Borrower and Xxxxxx Guaranty Trust Company of New
York, as agent thereunder.
"Exchange Debt Facility" means the Exchange Debt Facility dated as
of June 12, 2000 among Rite Aid Corporation, the banks party thereto and
Xxxxxx Guaranty Trust Company of New York, as administrative agent.
"Exchange Debt Facility Documents" means the collective reference
to the "Loan Documents" as defined in the Exchange Debt Facility.
"Exchange Debt First Priority Collateral" means the prescription
files of Rite Aid's Subsidiaries and the proceeds thereof.
"Exchange Debt First Priority Collateral Documents" means the
collective reference to the "First Priority Collateral Documents", as
defined in the Exchange Debt Facility.
"Exchange Debt Obligations" means (i) all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not
allowed or allowable as a claim in any such proceeding) on any loans made
under the Exchange Debt Facility, (ii) all other amounts payable by the
Borrower to the Exchange Debt Parties under the Exchange Debt Facility
Documents, and (iii) any renewals or extensions of any of the foregoing;
provided, however, that the principal amount of indebtedness included in
the Exchange Debt Obligations shall not exceed the maximum amount from time
to time permitted to be outstanding by the Collateral Trust and
Intercreditor Agreement.
"Exchange Debt Parties" means all parties to the Exchange Debt
Facility Documents other than the Obligors or any Affiliate thereof, the
Senior Bank Parties and the Representatives, but including the
administrative agent under the Exchange Debt Facility and the beneficiaries
of each indemnification obligation undertaken by Rite Aid or any other
Obligor under any Exchange Debt Facility Document.
"Exchange Note Documents" means the Exchange Notes and the
Exchange Note Indenture, Exchange and Registration Rights Agreement among
the State Street Bank and Trust, as trustee, Rite Aid and the Subsidiary
Guarantors, and the Forward Commitment Agreement.
"Exchange Note Indenture" means the Indenture dated as of June 12,
2000, among Rite Aid, the Subsidiary Guarantors and State Street Bank and
Trust Company, as trustee, relating to the Exchange Notes.
"Exchange Note Obligations" means (i) all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not
allowed or allowable as a claim in any such proceeding) on the Exchange
Notes, (ii) all other amounts payable by the Borrower to the Exchange Note
Parties under the Exchange Note Documents, and (iii) any renewals or
extensions of any of the foregoing.
"Exchange Note Parties" means all parties to the Exchange Note
Documents and the holders from time to time of the Exchange Notes, in each
case other than the Obligors or any Affiliate thereof, the Senior Bank
Parties and the Representatives, but including the trustee under the
Exchange Note Indentures and the beneficiaries of each indemnification
obligation undertaken by Rite Aid or any other Obligor under any Exchange
Note Document.
"Exchange Notes" means the 10.50% Senior Secured Notes Due 2002 of
Rite Aid (i) issued in exchange for certain 5.50% Notes Due 2000 of Rite
Aid and 6.70% Notes Due 2001 of Rite Aid or (ii) issued on the Closing Date
to SPV and to be transferred to SSB, JPM and their respective transferees
and assignees pursuant to the Forward Commitment Agreement; provided,
however, that the aggregate principal amount of Exchange Notes issued
pursuant to the Forward Commitment Agreement shall not exceed $93,158,000.
"Existing Facilities" means
(a) the PCS Facility;
(b) the RCF Facility;
(c) the Xxxxx Facility; and
(d) the Exchange Debt Facility.
"Existing Facilities Documents" means the collective reference to
(i) the PCS Facility Documents, (ii) the RCF Facility Documents, (iii) the
Xxxxx Facility Documents and (iv) the Exchange Debt Facility Documents.
"Existing Facility Obligations" means the PCS Facility
Obligations, the RCF Facility Obligations, the Xxxxx Facility Obligations
and the Exchange Debt Obligations.
"Existing Facility Parties" means the PCS Facility Parties, the
RCF Facility Parties, the Xxxxx Facility Parties and the Exchange Debt
Parties.
"Xxxxx Facility" means the Amendment No. 3 to Note Agreement,
Amendment No. 4 to Guaranty Agreement, Amendment No. 1 to Put Agreement
(the "Omnibus Amendment") dated as of June 12, 2000, relating to the
Adjustable Rate Senior Secured Notes due August 15, 2002 originally issued
by Xxxxx, Inc. and guaranteed by Rite Aid. The "Xxxxx Facility " shall be
deemed to include the Note Agreement dated as of September 30, 1996, among
Xxxxx, Inc., and each of the Purchasers listed in Annex 1 thereto, as
amended through the Closing Date.
"Xxxxx Facility Documents" means (i) the Xxxxx Facility, (ii) the
Guaranty Agreement dated as of September 30, 1996 pursuant to which Rite
Aid guaranteed the obligations of Xxxxx, Inc. under the Xxxxx Facility;
(iii) the Put Agreement dated as of September 30, 1996 entered into by Rite
Aid, and (iv) the Security Agreement dated as of September 30, 1996 entered
into by Xxxxx, Inc. and The Prudential Insurance Company of America as the
Security Agent on behalf of the Xxxxx Facility Parties, in each case as
amended through the Closing Date.
"Xxxxx Facility Obligations" means (i) all outstanding principal
amounts under the Xxxxx Facility Documents, (ii) all interest (including,
without limitation, any interest which accrues after the commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of the Borrower, whether or not allowed or allowable as a
claim in any such proceeding) on the principal amounts pursuant to clause
(i) of this definition, (iii) any renewals or extensions of any of the
foregoing and (iv) any and all other amounts payable by the Borrower in
respect of the Xxxxx Facility Documents; provided, however, that the
principal amount of indebtedness included in the Xxxxx Facility Obligations
shall not exceed the maximum amount from time to time permitted to be
outstanding by the Collateral Trust and Intercreditor Agreement.
"Xxxxx Facility Parties" means The Prudential Insurance Company of
America and Pruco Life Insurance Company and their successors and assigns
as noteholders and purchasers under the Xxxxx Facility Documents and The
Prudential Insurance Company of America, as Security Agent under the Xxxxx
Facility Documents and its successor or assignee.
"Forward Commitment Agreement" means the Forward Commitment
Agreement dated June 12, 2000, among Rite Aid, SPV, SSB and JPM.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
any other Person; provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
"Indentures" mean, collectively, (a) the Indenture dated as of
December 21, 1998, between Rite Aid and Xxxxxx Trust and Savings Bank, as
trustee, (b) the Indenture dated as of August 1, 1993, between Rite Aid and
Xxxxxx Guaranty Trust Company of New York, as trustee, (c) the Indenture
dated as September 10, 1997, between Rite Aid and Xxxxxx Trust and Savings
Bank, as trustee and (d) the Indenture dated as of September 22, 1998,
between Rite Aid and Xxxxxx Trust and Savings Bank, as trustee.
"Independent Standby L/C Documents" means the Citibank Standby L/C
Documents and the Mellon Standby L/C Documents.
"Independent Standby L/C Obligations" means the Citibank Standby
L/C Obligations and the Mellon Standby L/C Obligations.
"Independent Standby L/C Parties" means Citibank and Mellon Bank
in their capacities as issuers of Independent Standby Letters of Credit.
"Independent Standby Letters of Credit" means the Citibank Standby
Letters of Credit and the Mellon Standby Letters of Credit.
"Instructing Group" means, until the Senior Obligation Payment
Date, the Majority Senior Parties, and thereafter the Second Priority
Instructing Group.
"JPM" means X.X. Xxxxxx Securities, Inc.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, including, without limitation, the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease or other title
retention agreement relating to such asset.
"Majority Senior Parties" means the Majority Banks, as defined in
the Senior Credit Facility, or with respect to any waiver, amendment or
request, Senior Banks having such amount of unused Revolving Credit
Commitments, Revolving Credit Exposure, unused Term Loan Commitments and
outstanding Term Loans as may be required under the Senior Credit Facility
to approve the same.
"Mellon Bank" means Mellon Bank, N.A.
"Mellon Standby L/C Documents" mean the reimbursement agreements,
letter of credit applications and other documents relating to the Mellon
Standby Letters of Credit.
"Mellon Standby L/C Obligations" means (a) each payment, including
payments in respect of reimbursements and cash collateralization, required
to be made by Rite Aid under the Mellon Standby L/C Documents in respect of
Mellon Standby Letters of Credit in an aggregate amount at any time
outstanding not in excess of (i) $26,000,000 minus (ii) the cumulative
amount of proceeds of Collateral applied to such obligations as the result
of the exercise of remedies under the Senior Collateral Documents and (b)
all other monetary obligations, including fees, costs, expenses and
indemnities (including interest and monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable as a claim in such
proceeding) of Rite Aid under the Mellon Standby L/C Documents to the
extent attributable to the Mellon Standby Letters of Credit referred to in
clause (a).
"Mellon Standby Letters of Credit" means the standby letters of
credit issued for the account of the Borrower by Mellon Bank outstanding on
the Closing Date in an aggregate face amount of $26,000,000, together with
any standby letter of credit (other than any letter of credit issued under
the Senior Credit Facility) hereafter issued by Mellon Bank for the account
of any Obligor provided that the Mellon Standby Letters of Credit shall be
limited to an amount at any time outstanding not in excess of (i)
$26,000,000 minus (ii) the cumulative amount of proceeds of Collateral
applied as the result of the exercise of remedies under the Senior
Collateral Documents to reimbursement and cash collateralization
obligations in respect of Mellon Standby Letters of Credit.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
to its business of rating debt securities.
"Net Cash Proceeds" means,
(a) with respect to any sale, transfer or other
disposition of any property or asset (a "Disposition"), an amount
equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Disposition (including,
when received, any cash proceeds received in respect of any
noncash proceeds of any Disposition), less (I) the sum of
(i) reasonable costs and expenses paid or
incurred in connection with such transaction, including,
without limitation, any underwriting brokerage or other
customary selling commissions and reasonable legal,
advisory and other fees and expenses (including title and
recording expenses, associated therewith), payments of
unassumed liabilities relating to the assets sold and any
severance and termination costs;
(ii) the amount of any Debt (or Attributable
Debt), together with premium or penalty, if any, and
accrued interest thereon (or comparable obligations in
respect of Attributable Debt) secured by a Lien on (or if
Attributable Debt, the lease of) any asset disposed of in
such Disposition and discharged from the proceeds
thereof, but only to the extent such Lien has priority
over the Senior Lien, the Second Priority Lien and the
Liens under the Exchange Debt First Priority Collateral
Documents;
(iii) any taxes actually paid or to be payable
by such Person (as estimated by a senior financial or
accounting officer of the Borrower, giving effect to the
overall tax position of the Borrower) in respect of such
Disposition;
(iv) the portion of such cash proceeds which the
Borrower determines in good faith and reasonably should
be reserved for post-closing adjustments, including,
without limitation, indemnification payments and purchase
price adjustments, provided, that on the date that all
such post-closing adjustments have been determined, the
amount (if any) by which the reserved amount in respect
of such Disposition exceeds the actual post-closing
adjustments payable by the Borrower or any of the
Subsidiary Guarantors shall constitute Net Cash Proceeds
on such date; and
(v) in the case of a PCS Divestiture the sum of
(1) the PCS Incremental Investment as of the date of
consummation of such disposition plus (2) the aggregate
Net Cash Proceeds of PCS Dispositions in the form of Sale
and Leaseback Transactions theretofore applied to
prepayments of the PCS Facility; and
plus (II) in the case of a PCS Divestiture, the PCS Investment
Reduction as of the date of consummation of such transaction;
(b) with respect to any Capital Markets Transaction, an
amount equal to the cash proceeds received by the Borrower or any
of its Subsidiaries from or in respect of such Capital Markets
Transaction, less any reasonable transaction costs; including
investment banking and underwriting fees, discounts and
commissions and any other expenses (including legal fees and
expenses) reasonably incurred by such Person in respect of such
Capital Markets Transaction; and
(c) with respect to receipt of Casualty/Condemnation
Proceeds, the amount thereof.
"Obligors" means Rite Aid, the Subsidiary Guarantors and any other
Person who is liable for any of the Secured Obligations.
"paid in full" means paid in full in cash.
"PCS" means PCS Holding Corporation, a Delaware corporation, and
its successors.
"PCS Common Stock" means the common stock of PCS owned by Rite
Aid.
"PCS Dispositions" means (i) any sale or other disposition of
capital stock of PCS (or of any non-cash proceeds thereof), (ii) any sale,
lease or other disposition (including a Casualty/Condemnation) by PCS or
any of its Subsidiaries of any asset, other than (y) dispositions of
inventory, cash, cash equivalents and other cash management investments and
obsolete, unused or unnecessary equipment, in each case in the ordinary
course of business, and (z) dispositions to PCS or a wholly-owned
Subsidiary of PCS or (iii) any sale, lease or other disposition (including
a Casualty/Condemnation) of PCS Land.
"PCS Divestiture" means a PCS Disposition as a result of which the
business of PCS is no longer conducted by a Consolidated Subsidiary of the
Borrower.
"PCS/Drugstore Pledged Collateral" means the capital stock of PCS
and Xxxxxxxxx.xxx pledged by Rite Aid under the PCS Pledge Agreement and
the Xxxxxxxxx.xxx Pledge Agreement and all income and profits thereon,
dividends and other payments and distributions with respect thereto and all
proceeds of the foregoing subject to a Lien under such agreements.
"PCS Excluded Assets" means (i) any Collateral consisting of
assets of PCS or a Subsidiary of PCS, other than PCS Linked Accounts, (ii)
PCS Land and (iii) any proceeds of clauses (i) and (ii). For purposes of
Article IV of the Collateral Trust and Intercreditor Agreement, any
proceeds of enforcement of the Senior Subsidiary Guarantee Agreement or the
Second Priority Guarantee Agreement against PCS or a Subsidiary of PCS
(other than with respect to the PCS Linked Accounts and the proceeds
thereof) shall be deemed to be proceeds of Collateral consisting of PCS
Excluded Assets.
"PCS Facility" means the PCS Facility dated as of June 12, 2000,
among Rite Aid, the banks party thereto and Xxxxxx Guaranty Trust Company
of New York, as administrative agent.
"PCS Facility Documents" means the "Loan Documents" as defined in
the PCS Facility.
"PCS Facility Obligations" means (i) all principal of and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not
allowed or allowable as a claim in any such proceeding) on any loan made
under the PCS Facility, (ii) all other amounts payable by the Borrower
under the PCS Facility Documents and (iii) any renewals or extensions of
any of the foregoing; provided, however, that the principal amount of
indebtedness included in the PCS Facility Obligations shall not exceed the
maximum amount from time to time permitted to be outstanding by the
Collateral Trust and Intercreditor Agreement.
"PCS Facility Parties" means the parties to the PCS Facility
Documents other than the Obligors, the Senior Bank Parties and the
Representatives, but including the administrative agent under the PCS
Facility and the beneficiaries of each indemnification obligation by Rite
Aid or any other Obligor under any PCS Facility Documents.
"PCS Incremental Investment" means, at any date, the amount, if
any, by which the inter-company payable owing by Rite Aid Hdqtrs. Corp. to
PCS at such date is less than such amount as at May 27, 2000. The Borrower
shall promptly notify each of the Representatives following the Closing
Date of such latter amount.
"PCS Investment Reduction" means, at any date, the excess, if any,
of (i) the amount, if any, by which the intercompany payable owing by Rite
Aid Hdqtrs. Corp. to PCS at such date is greater than such amount as at May
27, 2000, over (ii) the cumulative PCS EBITDA, as defined in the Senior
Credit Facility, for the period from May 27, 2000, to such date.
"PCS Land" means the real property described as X.X. 00xx Xxxxxx
and Mountainview Road, Scottsdale, Arizona, together with any improvements
thereon.
"PCS Linked Accounts" means any accounts receivable owed to PCS by
third party insurers in respect of claims generated by other Subsidiaries
of Rite Aid and giving rise to related accounts payable owed by PCS to such
other Subsidiaries of Rite Aid.
"PCS Pledge Agreement" means the PCS Pledge Agreement dated as of
October 25, 1999 and amended and restated as of June 12, 2000, between the
Borrower and Xxxxxx Guaranty Trust Company of New York, as agent
thereunder.
"Permitted Disposition" means any of the following:
(i) dispositions of inventory at retail, cash, cash
equivalents and other cash managing investments and obsolete,
unused, uneconomic or unnecessary equipment, in each case in the
ordinary course of business;
(ii) a disposition to a Subsidiary Guarantor, provided,
that (A) if the property subject to such disposition constitutes
Collateral immediately before giving effect to such disposition,
such property continues to constitute Collateral subject to the
Senior Lien and the Second Priority Lien, and (B) no dispositions
of property will be made to or by PCS or its Subsidiaries except
in the ordinary course of business consistent with past practice;
(iii) a sale or discount, in each case without recourse
and in the ordinary course of business, of overdue Accounts (as
defined in the Senior Credit Facility) arising in the ordinary
course of business, but only to the extent such Accounts are no
longer Eligible Accounts Receivable (as defined in the Senior
Credit Facility) and such sale or discount is in connection with
the compromise or collection thereof consistent with customary
industry practice (and not as part of any bulk sale);
(iv) Basket Asset Sales; and
(v) any disposition of Exchange Notes by SPV to SSB or
JPM (or their respective successors, assigns and affiliates),
pursuant to the Forward Commitment Agreement as in effect on the
Closing Date.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"RCF Facility" means the RCF Facility dated as of June 12, 2000,
among Rite Aid, the banks party thereto and Xxxxxx Guaranty Trust Company
of New York, as administrative agent.
"RCF Facility Documents" means the "Loan Documents" as defined in
the RCF Facility.
"RCF Facility Obligations" means (i) all principal of and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower, whether or not
allowed or allowable as a claim in any such proceeding) on any loan made
under the RCF Facility, (ii) all other amounts payable by the Borrower to
the RCF Facility Parties under the RCF Facility Documents and (iii) any
renewals or extensions of any of the foregoing; provided, however, that the
principal amount of indebtedness included in the RCF Facility Obligations
shall not exceed the maximum amount from time to time permitted to be
outstanding by the Collateral Trust and Intercreditor Agreement.
"RCF Facility Parties" means the parties to the RCF Facility
Documents other than the Obligors.
"Reduction" means, when applied to any Debt Facility, (i) the
permanent repayment of outstanding loans (or obligations in respect of
Attributable Debt) under such Debt Facility, (ii) the permanent reduction
of outstanding lending commitments under such Debt Facility or (iii) the
permanent cash collateralization of outstanding letters of credit under
such facility (together with the termination of any lending commitments
utilized by such letters of credit).
"Reduction Event" is (i) a PCS Disposition, (ii) a Capital Markets
Transaction, (iii) a Designated Asset Disposition, (iv) a Senior Collateral
Disposition, (v) other Asset Sales or (vi) receipt of other
Casualty/Condemnation Proceeds.
"Related Exchange Debt" means, with respect to any of the Existing
Facilities (other than the Exchange Debt Facility), Debt under the Exchange
Debt Facility issued in exchange for Debt under such Existing Facility.
"Related Exchange Debt Obligation" shall mean Exchange Debt
Obligations in respect of Related Exchange Debt.
"Representatives" means each of the Senior Collateral Agent and
the Second Priority Representatives.
"Required Prepayment Amount" has the meaning assigned to such term
in the Senior Credit Facility, as in effect on the Closing Date.
"Rite Aid" means Rite Aid Corporation, a Delaware corporation, and
its successors.
"Rite Aid Hdqtrs. Corp." means Rite Aid Hdqtrs. Corp., a Delaware
corporation and a Wholly-Owned Consolidated Subsidiary of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to its business of rating
debt securities.
"Sale and Leaseback Transaction" means the sale or transfer by the
Borrower or any Subsidiary of any office building (including its
headquarters), distribution center, manufacturing plant, warehouse, Store
or equipment now or hereafter owned by the Borrower or any Subsidiary with
the intention that the Borrower or any Subsidiary take back a lease
thereof.
"Second Priority Collateral" means all the "Second Priority
Collateral" as defined in any Second Priority Collateral Documents and
shall also include the Mortgaged Properties and the proceeds thereof, but
shall not in any event include the PCS/Drugstore Pledged Collateral or the
Exchange Debt First Priority Collateral.
"Second Priority Collateral Documents" means the Second Priority
Mortgages, the Second Priority Subsidiary Security Agreement, the Second
Priority Subsidiary Guarantee Agreement, the Second Priority Indemnity,
Subrogation and Contribution Agreement, the Collateral Trust and
Intercreditor Agreement and each of the mortgages, security agreements and
other instruments and documents executed and delivered by any Subsidiary
Guarantor pursuant to any of the foregoing for purposes of providing
collateral security or credit support for any Second Priority Debt
Obligation or obligation under the Second Priority Subsidiary Guarantee
Agreement but specifically excluding the Xxxxxxxxx.xxx Pledge Agreement,
the Exchange Debt First Priority Collateral Documents and the PCS Pledge
Agreement.
"Second Priority Collateral Trustee" means Wilmington Trust
Company, in its capacity as collateral trustee under the Collateral Trust
and Intercreditor Agreement and the Second Priority Collateral Documents,
and its successors.
"Second Priority Debt Documents" means the Existing Facility
Documents, the Exchange Note Documents, the Synthetic Lease Documents and
the Second Priority Collateral Documents.
"Second Priority Debt Obligations" means the collective reference
to the Exchange Debt Obligations, the Exchange Note Obligations, the
Synthetic Lease Obligations, the PCS Facility Obligations, the RCF Facility
Obligations and the Xxxxx Facility Obligations.
"Second Priority Debt Parties" means the Existing Facility
Parties, the Exchange Note Parties, the Synthetic Lease Parties and the
Second Priority Collateral Trustee.
"Second Priority Facilities" means the Exchange Debt Facility, the
Exchange Note Indenture, the Synthetic Lease Facilities, the PCS Facility,
the RCF Facility and the Xxxxx Facility.
"Second Priority Indemnity, Subrogation and Contribution
Agreement" means the Second Priority Indemnity, Subrogation and
Contribution Agreement, dated as of June 12, 2000, among Rite Aid, the
Subsidiary Guarantors and the Second Priority Collateral Trustee.
"Second Priority Instructing Group" means Second Priority
Representatives with respect to Second Priority Facilities under which at
least a majority of the then aggregate amount of Second Priority Debt
Obligations are outstanding.
"Second Priority Lien" means the Liens on the Second Priority
Collateral in favor of the Second Priority Debt Parties under the Second
Priority Collateral Documents.
"Second Priority Mortgages" means the mortgages, deeds of trust,
leasehold mortgages, assignments of leases and rents, modifications and
other security documents which create a Lien in favor of the Second
Priority Collateral Trustee for the benefit of the Second Priority Debt
Parties, delivered pursuant to the Second Priority Debt Documents, each
substantially in the form of Exhibit [ ] to the RCF Facility, with such
changes as are approved by the Senior Collateral Agent and the Second
Priority Representatives.
"Second Priority Representative" means, in respect of each Second
Priority Facility, the trustee under the Exchange Note Indenture and the
administrative agent, security agent or agent under each other Second
Priority Facility and each of their successors in such capacities.
"Second Priority Subsidiary Guarantee Agreement" means the Second
Priority Subsidiary Guarantee Agreement, dated as of June 12, 2000, made by
the Subsidiary Guarantors (including any additional Subsidiary Guarantor
becoming party thereto after the Closing Date) in favor of the Second
Priority Collateral Trustee for the benefit of the Second Priority Debt
Parties.
"Second Priority Subsidiary Security Agreement" means the Second
Priority Subsidiary Security Agreement, dated as of June 12, 2000, made by
the Subsidiary Guarantors (including any additional Subsidiary Guarantor
becoming party thereto after the Closing Date) in favor of the Second
Priority Collateral Trustee for the benefit of the Second Priority Debt
Parties.
"Secured Obligations" means the Senior Obligations and the Second
Priority Debt Obligations.
"Senior Bank" means a "Bank" as defined in the Senior Credit
Facility.
"Senior Bank Obligations" means (i) the principal of each loan
made under the Senior Credit Facility, (ii) all reimbursement and cash
collateralization obligations in respect of letters of credit issued under
the Senior Credit Facility, (iii) all monetary obligations of the Borrower
or any Subsidiary under each Senior Interest Rate Agreement entered into
with any counterparty that was a Senior Bank (or an Affiliate thereof) at
the time such Senior Interest Rate Agreement was entered into, (iv) all
interest on the loans, letter of credit reimbursement, fees and other
obligations under the Senior Credit Facility or such Senior Interest Rate
Agreements (including, without limitation any interest which accrues after
the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower or any Subsidiary
Guarantor, whether or not allowed or allowable as a claim in such
proceeding), (v) all other amounts payable by the Borrower under the Senior
Loan Documents and (vi) all increases, renewals, extensions and
refinancings of the foregoing; provided, however, that the principal amount
of the indebtedness under the Senior Credit Facility included in the Senior
Bank Obligations shall not exceed the maximum amount from time to time
permitted to be outstanding by the Collateral Trust and Intercreditor
Agreement.
"Senior Bank Parties" means each party to the Senior Credit
Facility other than any Obligor, each counterparty to a Senior Interest
Rate Agreement, the beneficiaries of each indemnification obligation
undertaken by Rite Aid or any other Obligor under any Senior Loan Document,
and the successors and permitted assigns of each of the foregoing.
"Senior Collateral" means all the "Senior Collateral" as defined
in any Senior Collateral Document and shall also include the Mortgaged
Properties and the proceeds thereof, but shall not in any event include the
PCS/Drugstore Pledged Collateral and the Exchange Debt First Priority
Collateral.
"Senior Collateral Agent" means Citicorp USA, Inc., in its
capacity as Senior Collateral Agent under the Senior Collateral Documents,
and its successors.
"Senior Collateral Disposition" means (i) any sale, transfer or
other disposition of Senior Collateral (including any property or assets
that would constitute Senior Collateral but for the release of the Senior
Lien with respect thereto in connection with such sale, transfer or other
disposition), other than a PCS Disposition, or a Permitted Disposition or
(ii) a Casualty/Condemnation with respect to Senior Collateral (other than
PCS Excluded Assets).
"Senior Collateral Documents" means the Senior Mortgages, the
Senior Subsidiary Security Agreement, the Senior Subsidiary Guarantee
Agreement, the Senior Indemnity, Subrogation and Contribution Agreement,
the Collateral Trust and Intercreditor Agreement and each of the mortgages,
security agreements and other instruments and documents executed and
delivered by any Subsidiary Guarantor pursuant to any of the foregoing or
pursuant to the Senior Credit Facility or for purposes of providing
collateral security or credit support for any Senior Obligation or
obligation under the Senior Subsidiary Guarantee Agreement.
"Senior Credit Facility" means the Senior Credit Agreement, dated
as of June 12, 2000, among Rite Aid, as Borrower, the Senior Banks, the
Swingline Banks, the Issuing Banks, the Senior Administrative Agent, the
Senior Collateral Agent and the Syndication Agents.
"Senior Indemnity, Subrogation and Contribution Agreement" means
the Senior Indemnity, Subrogation and Contribution Agreement, dated as of
June 12, 2000 among Rite Aid, the Subsidiary Guarantors (including
Subsidiary Guarantors becoming party thereto after the Closing Date) and
the Senior Collateral Agent.
"Senior Interest Rate Agreement" means any Interest Rate Agreement
entered into with Rite Aid or any Subsidiary, if the applicable
counterparty was a Senior Bank or an Affiliate thereof at the time the
Interest Rate Agreement was entered into.
"Senior Lien" means the Liens on the Senior Collateral in favor of
the Senior Secured Parties under the Senior Collateral Documents.
"Senior Loan Documents" means the Senior Credit Facility, the
Notes referred to in the Senior Credit Facility, each Senior Interest Rate
Agreement, and the Senior Collateral Documents.
"Senior Mortgages" means the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other
security documents delivered pursuant to the Senior Credit Facility, each
substantially in the form of Exhibit J to the Senior Credit Facility, with
such changes as are approved by the Senior Collateral Agent.
"Senior Obligation Payment Date" means the date on which (i) the
Senior Obligations have been paid in full, (ii) all lending commitments
under the Senior Credit Facility have been terminated and (iii) there are
no outstanding Independent Standby Letters of Credit or letters of credit
issued under the Senior Credit Facility other than such as have been fully
cash collateralized under documents and arrangements satisfactory to the
issuer of such letters of credit.
"Senior Obligations" means (a) the Senior Bank Obligations and (b)
the Independent Standby L/C Obligations.
"Senior Secured Parties" means (a) the Senior Bank Parties and (b)
the Independent Standby L/C Parties.
"Senior Subsidiary Guarantee Agreement" means the Senior
Subsidiary Guarantee Agreement, made by the Subsidiary Guarantors
(including Subsidiary Guarantors that become parties thereto after the
Closing Date) in favor of the Senior Collateral Agent for the benefit of
the Senior Secured Parties.
"Senior Subsidiary Security Agreement" means the Senior Subsidiary
Security Agreement, made by the Subsidiary Guarantors (including Subsidiary
Guarantors that become parties thereto after the Closing Date) in favor of
the Senior Collateral Agent for the benefit of the Senior Secured Parties.
"SPV" means Fiona One Corp., a Delaware corporation and a
wholly-owned Subsidiary of Rite Aid which is organized for the sole purpose
of acquiring Exchange Notes on the Closing Date from Rite Aid and selling
such Exchange Notes to SSB and JPM in accordance with the Forward
Commitment Agreement.
"SSB" means Xxxxxxx Xxxxx Xxxxxx Inc.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Borrower.
"Subsidiary Guarantor" means each Subsidiary that is party to the
Senior Subsidiary Guarantee Agreement, the Second Priority Subsidiary
Guarantee Agreement or any other Senior Collateral Document or Second
Priority Collateral Document.
"Synthetic Lease Documents" means the documents governing the
Synthetic Leases.
"Synthetic Lease Facilities" means certain synthetic leases
entered into by the Subsidiary Guarantors and guaranteed by Rite Aid having
an aggregate discounted present value of approximately $214,000,000, as
amended and restated as of the Closing Date.
"Synthetic Lease Obligations" means all rent and supplemental
rent, all fees and all other expenses or amounts payable by any Obligors to
any Synthetic Lease Parties under any Synthetic Lease Document; provided,
however, that the aggregate amount of the Synthetic Lease Obligations shall
not exceed the maximum amount from time to time permitted to be outstanding
by the Collateral Trust and Intercreditor Agreement.
"Synthetic Lease Parties" means all parties to the Synthetic Lease
Documents other than the Obligors.
"Temporary Cash Investment" means any investment by any Person in
(i) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, (ii)
commercial paper rated at least A-1 by S&P and P-1 by Moody's, (iii) time
deposits with, including certificates of deposit issued by, any office
located in the United States of any bank or trust company which is
organized or licensed under the laws of the United States or any state
thereof and has capital, surplus and undivided profits aggregating at least
$500,000,000, (iv) repurchase agreements with respect to securities
described in clause (i) above entered into with an office of a bank or
trust company meeting the criteria specified in clause (iii) above,
provided in each case that such investment matures within one year from the
date of acquisition thereof by such Person or (v) money market mutual funds
at least 90% the assets of which are held in investments referred to in
clauses (i) through (iv) above (except that the maturities of certain
investments held by any such money market funds may exceed one year so long
as the dollar-weighted average life of the investments of such money market
mutual fund is less than one year).
"Uniform Commercial Code" or "UCC" means, unless otherwise
specified, the Uniform Commercial Code as from time to time in effect in
the State of New York.
