Amendment No. 9 to Receivables Financing Agreement
Amendment No. 9 to
Receivables Financing Agreement
This
AMENDMENT NO. 9 TO RECEIVABLES FINANCING AGREEMENT, dated as of January 15,
2009 (this “Amendment
Agreement”), is made by and among Rite Aid Funding II (the “Borrower”), CAFCO,
LLC (“CAFCO”),
CRC FUNDING, LLC (“CRC”), Falcon Asset Securitization Company LLC
(“Falcon”),
Variable Funding Capital Company LLC (“Variable”; together
with CAFCO, CRC and Falcon, the “Investors”),
Citibank, N.A. (“Citibank”), JPMorgan
Chase Bank, N.A. (“JPMorgan”) and
Wachovia Bank, National Association (“Wachovia”; together
with Citibank and JPMorgan, the “Banks”), Citicorp
North America, Inc., as program agent (the “Program Agent”),
Citicorp North America, Inc. (“CNAI”), JPMorgan and
Wachovia, as investor agents (CNAI, JPMorgan and Wachovia, in such capacity, the
“Investor
Agents”), Rite Aid Hdqtrs. Funding, Inc. (the “Collection Agent”)
and each of the parties named in Schedule III to the Agreement (as defined
below) as originators (the “Originators”).
Preliminary
Statements. (1) The Borrower, the Investors (other than
CRC), the Program Agent, the Banks, the Investor Agents, the Collection Agent,
the Originators and The Bank of New York, as Trustee are parties to a
Receivables Financing Agreement, dated as of September 21, 2004, as amended
as of September 20, 2005, December 30, 2005, September 19, 2006,
November 9, 2006, February 20, 2007, August 31, 2007,
September 18, 2007 and September 16, 2008 (the “Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Agreement).
(2) The
Borrower, the Investors, the Program Agent, the Banks, the Investor Agents, the
Collection Agent and the Originators wish to amend the Agreement.
NOW,
THEREFORE, the parties agree as follows:
SECTION
1. Amendments to
Agreement. As of the Effective Date (as defined below in
Section 2), the Agreement is amended as follows:
1.1 Section
1.01 of the Agreement is amended as follows:
(a) The
definition of “Assignee Rate” is amended by deleting the parenthetical
expression which follows the term “0.75%” in the last paragraph of said
definition and replacing it with the following: “(or, if the
Applicable Margin is then 8.50%, 6.00%)”.
(b) The
definition of “Commitment Termination Date” is amended by (i) deleting the
date “January 15, 2009” contained in clause (a) thereof and replacing
it with the date “January 22, 2009” and (ii) replacing the phrase
“each Investor” in the fourth line thereof with the phrase “one or more
Investors”.
(c) The
definition of “Facility Termination Date” is amended by deleting the date
“January 15, 2009” contained in clause (a) thereof and replacing it
with the date “September 14, 2010”.
(d) The
definition of “Yield” is amended by deleting the parenthetical expression at the
end thereof and replacing it with the following:
“(on and
after January 15, 2009, at the higher of 10.00% per annum above the
Eurodollar Rate and 7.00% per annum above the Alternate Base
Rate).”
1.2 Annex H (Applicable
Margin) to the Agreement is amended in its entirety to read as
Exhibit I to this Amendment Agreement.
SECTION
2. Condition to
Effectiveness. This Amendment Agreement shall become effective
when fully executed counterparts of this Amendment Agreement and a new Fee
Agreement have been delivered to the Program Agent (the “Effective
Date”).
SECTION
3. Representations and
Warranties. Each of the Borrower and the Collection Agent
represents and warrants that each of the representations and warranties
contained in Section 4.01 and Section 4.02, respectively, of the
Agreement (after giving effect to this Amendment Agreement) are correct in all
material respects on and as of the date of this Amendment Agreement as though
made on and as of such date.
SECTION
4. Confirmation of
Agreement. Each reference in the Agreement to “this Agreement”
or “the Agreement” shall mean the Agreement as amended by this Amendment
Agreement, and as hereafter amended or restated. Except as herein
expressly amended, the Agreement is ratified and confirmed in all respects and
shall remain in full force and effect in accordance with its terms.
SECTION
5. Confirmation of Parent
Undertakings. The Parent, by its signature below, hereby
confirms and agrees that notwithstanding the effectiveness of this Amendment
Agreement, the Parent Undertakings shall continue to be in full force and effect
and shall apply to the Agreement as amended as contemplated by this Amendment
Agreement, and the Parent Undertakings are hereby ratified and
confirmed.
SECTION
6. Costs and
Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses in connection with the preparation, execution and delivery of
this Amendment Agreement and any other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Program Agent, the Investor Agents, the Investors and the Banks
with respect thereto.
SECTION
7. GOVERNING
LAW. THIS AMENDMENT AGREEMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF
THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
SECTION
8. Execution in
Counterparts. This Amendment Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken
together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment Agreement by facsimile or by
electronic transmission in portable document format (.pdf) shall be effective as
delivery of a manually executed counterpart of this Amendment
Agreement.
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of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have caused this Amendment Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
RITE
AID FUNDING II
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By:
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/s/ Xxxxx X. Xxxxxxxx | ||
Name:
Xxxxx X. Xxxxxxxx
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Title:
Vice President
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CAFCO,
LLC
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By:
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Citicorp
North America,
Inc.,
as Attorney-in-Fact
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By:
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/s/ Xxx Xxxxxxxx | ||
Name:
Xxx Xxxxxxxx
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Title:
Director, VP
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CRC
FUNDING, LLC
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By:
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Citicorp
North America,
Inc.,
as Attorney-in-Fact
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By:
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/s/ Xxx Xxxxxxxx | ||
Name:
Xxx Xxxxxxxx
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Title:
Director, VP
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FALCON
ASSET SECURITIZATION
COMPANY
LLC
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By:
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JPMorgan
Chase Bank, N.A., its
attorney-in-fact
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By:
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/s/ Xxxx X. Xxxxx | ||
Name:
Xxxx X. Xxxxx
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Title:
Executive Director
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VARIABLE
FUNDING CAPITAL
COMPANY
LLC
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By:
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Wachovia
Capital Markets, LLC,
Inc.,
as Attorney-in-Fact
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By:
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/s/ Xxxxxxx X. Xxxxxx, Xx. | ||
Name:
Xxxxxxx X. Xxxxxx, Xx.
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Title:
Director
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CITICORP
NORTH AMERICA, INC.,
as
Program Agent and as an Investor Agent
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By:
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/s/ Xxx Xxxxxxxx | ||
Name: Xxx Xxxxxxxx
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Title: Director, VP
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CITIBANK,
N.A.
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By:
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/s/ Xxx Xxxxxxxx | ||
Name: Xxx Xxxxxxxx
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Title:
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JPMORGAN
CHASE BANK, N.A.
as
a Bank and as an Investor Agent
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By:
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/s/ Xxxx X. Xxxxx | ||
Name: Xxxx X. Xxxxx
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Title: Executive
Director
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WACHOVIA
BANK, NATIONAL
ASSOCIATION
as
a Bank and as an Investor Agent
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By:
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/s/ Xxxxxxx X. Xxxxxx | ||
Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice
President
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RITE
AID HDQTRS. FUNDING INC.
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By:
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/s/ Xxxxx X. Xxxxxxxx | ||
Name:
Xxxxx X. Xxxxxxxx
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Title:
Vice
President
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RITE AID
CORPORATION
RITE AID
OF CONNECTICUT, INC.
RITE AID
OF DELAWARE, INC.
RITE AID
OF GEORGIA, INC.
RITE AID
OF INDIANA, INC.
RITE AID
OF KENTUCKY, INC.
RITE AID
OF MAINE, INC.
RITE AID
OF MARYLAND, 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 OHIO, INC.
RITE AID
OF PENNSYLVANIA, 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.
KEYSTONE
CENTERS, INC.
THE LANE
DRUG COMPANY
RITE AID
DRUG PALACE, INC.
THRIFTY
PAYLESS, INC.
HARCO,
INC.
PERRY
DRUG STORES, INC.
APEX DRUG
STORES, INC.
PDS-1
MICHIGAN, INC.
RDS
DETROIT, INC.
K & B
ALABAMA CORPORATION
K & B
LOUISIANA CORPORATION
K & B
MISSISSIPPI CORPORATION
K & B
TENNESSEE CORPORATION
ECKERD
CORPORATION
XXXXXXXX
DRUG STORES, INC.
EDC DRUG
STORES, INC.
MAXI
DRUG, INC.
MAXI DRUG
SOUTH, L.P.
MAXI DRUG
NORTH, INC.
MAXI
GREEN, INC.
THRIFT
DRUG, INC.
By:
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/s/ Xxxxxx X. Sari | ||
Name:
Xxxxxx X. Sari
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Title:
EVP as to Rite Aid Corporation
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EVP as to all Originators |
EXHIBIT
I
ANNEX
H
APPLICABLE
MARGIN
8.50%,
regardless of the senior unsecured rating for the Parent.
Notwithstanding
the above, if the Applicable Margin or equivalent amount payable to the Lenders
under the Credit Agreement is increased at any time, then the Applicable Margin
payable hereunder shall be increased by a similar amount.