Exhibit 4.26
XXXXX, INC.
7.30% SENIOR SECURED NOTES DUE FEBRUARY 28, 2002
AMENDMENT NO. 2 TO NOTE AGREEMENT
RITE AID CORPORATION
AMENDMENT NO. 2 TO GUARANTY AGREEMENT
As of December 2, 1999
TO EACH OF THE CURRENT NOTEHOLDERS
NAMED IN ANNEX 1 HERETO:
Ladies and Gentlemen:
XXXXX, INC. (hereinafter "XXXXX"), a Delaware corporation and RITE
AID CORPORATION (hereinafter "RITE AID", and, together with Xxxxx,
collectively, the "COMPANIES") (together with their successors and assigns)
agree with you as follows:
1. PRELIMINARY STATEMENTS.
1.1 Note Issuance, etc.
Xxxxx issued and sold $79,560,908.91 aggregate principal amount of
its 7.30% Senior Secured Notes due February 28, 2002 (as may be amended,
restated or otherwise modified from time to time, the "NOTES") pursuant to
a Note Agreement dated September 30, 1996 (as previously amended pursuant
to Amendment No. 1 to Note Agreement dated as of October 25, 1999, and as
in effect immediately prior to giving effect to the Amendments provided for
by this Amendment Agreement, the "EXISTING NOTE AGREEMENT"). Rite Aid has
entered into a Guaranty Agreement, also dated as of September 30, 1996 (as
previously amended pursuant to Amendment No. 1 to Guaranty Agreement dated
as of October 25, 1999, and as in effect immediately prior to giving effect
to the Amendments provided for by this Amendment Agreement, the "EXISTING
RITE AID GUARANTY") with the Noteholders, whereby in consideration of the
purchase of the Notes it unconditionally and absolutely guaranteed Xxxxx'x
performance of its obligations under the Existing Note Agreement. The
register for the registration and transfer of the Notes indicates that the
Persons named in Annex 1 hereto (collectively, the "CURRENT NOTEHOLDERS")
are currently the holders of the entire outstanding principal amount of the
Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have
the meanings ascribed to them in the Existing Note Agreement.
3. AMENDMENTS.
Subject to Section 5, the Existing Note Agreement and the Existing
Rite Aid Guaranty are amended as provided for by this Amendment No. 2 to
Note Agreement and Amendment No. 2 to Guaranty Agreement (collectively,
this "AMENDMENT AGREEMENT") in the manner specified in Exhibit A. The
amendments referred to herein are referred to herein, collectively, as the
"AMENDMENTS".
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Amendment Agreement and to consent
to the Amendments, the Companies, jointly and severally, represent and
warrant as follows:
4.1 Organization, Power and Authority, etc.
The Companies are corporations duly incorporated and validly existing
in good standing under the laws of their respective jurisdictions of
incorporation and have all requisite corporate power and authority to enter
into and perform their respective obligations under this Amendment
Agreement.
4.2 Legal Validity.
The execution and delivery of this Amendment Agreement by each of the
Companies and compliance by them with their obligations hereunder: (a) are
within the corporate powers of the respective Companies; and (b) are legal
and do not conflict with, result in any breach of, constitute a default
under, or result in the creation of any Lien upon any Property of either
Company under the provisions of: (i) any charter instrument or bylaw to
which either Company is a party or by which either Company or any of its
Property may be bound; (ii) any order, judgment, decree or ruling of any
court, arbitrator or Governmental Authority applicable to either Company or
its Property; or (iii) any agreement or instrument to which either Company
is a party or by which either Company or any of its Property may be bound
or any statute or other rule or regulation of any Governmental Authority
applicable to either Company or its Property, except where such conflict,
breach or default could not reasonably be expected to have a Material
Adverse Effect.
This Amendment Agreement has been duly authorized by all necessary
action on the part of the Companies, has been executed and delivered by a
duly authorized officer of the Companies, and constitutes a legal, valid
and binding obligation of each of the Companies enforceable in accordance
with its terms, except that enforceability may be limited by applicable
bankruptcy, reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors' rights generally
and subject to the availability of equitable remedies.
4.3 No Defaults.
No event has occurred and no condition exists that, upon the
execution and delivery of this Amendment Agreement, would constitute a
Default or an Event of Default.
The Current Noteholders understand that the Xxxxxx Credit Agreement
Amendment (as hereinafter defined) is amending the Amended and Restated
Credit Agreement, dated as of October 25, 1999, among the Guarantor, the
banks from time to time parties thereto, and Xxxxxx Guaranty Trust Company
of New York, as agent (the "EXISTING CREDIT AGREEMENT"). Pursuant to
Section 6.2 of the Rite Aid Guaranty, the provisions of Sections 5.7 to
5.13, inclusive (the "GUARANTY COVENANTS") of the Rite Aid Guaranty, and
the definitions of defined terms used therein, are automatically amended to
be identical to the equivalent covenants and definitions in the Existing
Credit Agreement upon the effectiveness of any amendment to the Existing
Credit Agreement. The Current Noteholders acknowledge and agree that all of
the Guaranty Covenants, and the definitions of defined terms used therein,
are being so automatically amended by the Xxxxxx Credit Agreement
Amendment. The Current Noteholders and the Companies acknowledge and agree
that, pursuant to Section 5.16 of the Existing Guaranty Agreement, all
covenants in Section 5 of the Amended Xxxxxx Credit Agreement (as
hereinafter defined) are incorporated into the Existing Rite Aid Guaranty,
as amended hereby.
5. EFFECTIVENESS OF AMENDMENTS.
The Amendments shall become effective on such date (the "EFFECTIVE
DATE") as
(i) the Companies and the Current Noteholders shall have
indicated their written consent to the Amendments by executing and
delivering to each other counterparts of this Amendment Agreement,
(ii) Amendment No. 1 to Amended and Restated Credit Agreement,
dated as of December 2, 1999, among Rite Aid, the banks from time to time
parties thereto, and Xxxxxx Guaranty Trust Company of New York, as Agent
shall have been executed and delivered by the parties thereto in the form
attached hereto as Exhibit B (the "XXXXXX CREDIT AGREEMENT AMENDMENT")
(such Amended and Restated Credit Agreement, as so amended, being referred
to herein as the "AMENDED XXXXXX CREDIT AGREEMENT"), and
(iii)the Companies shall have made payment of the fee payable
to the Noteholders pursuant to Section 6 of this Amendment Agreement and
the expenses to be paid on behalf of the Noteholders pursuant to Section 7
of this Amendment Agreement (to the extent a statement therefor has been
presented to the Companies on or prior to the Effective Date).
6. FEE.
In consideration of the consent by the Noteholders to the Amendments,
the Companies shall pay a combined fee to the Noteholders on the Effective
Date in an amount equal to .25% of the aggregate principal amount of the
Notes outstanding on such date. Such combined fee shall be paid to the
Noteholders ratably in accordance with the respective principal amounts of
Notes held by them and in the manner and to the accounts specified in the
Existing Note Agreement for payments of principal and interest on the
Notes.
7. EXPENSES.
Whether or not the Amendments become effective, the Companies will
promptly (and in any event within thirty days of receiving any statement or
invoice therefor) pay all fees, expenses and costs relating to this
Amendment, including, but not limited to, the reasonable fees of your
special counsel, Xxxxxxx Xxxx LLP, incurred in connection with the
preparation, negotiation and delivery of the Amendment Agreement and any
other documents related thereto. Nothing in this Section shall limit the
Companies' obligations pursuant to paragraph 10B of the Existing Note
Agreement and Section 6.1 of the Rite Aid Guaranty.
8. MISCELLANEOUS.
8.1 Part of Existing Note Agreement, Future References, etc.
This Amendment Agreement shall be construed in connection with and as
a part of the Existing Note Agreement, the Notes and the Existing Rite Aid
Guaranty and, except as expressly amended by this Amendment Agreement, all
terms, conditions and covenants contained in the Existing Note Agreement,
the Notes and the Existing Rite Aid Guaranty are hereby ratified and shall
be and remain in full force and effect. Any and all notices, requests,
certificates and other instruments executed and delivered after the
execution and delivery of this Amendment Agreement may refer to the
Existing Note Agreement, the Notes and the Existing Rite Aid Guaranty
without making specific reference to this Amendment Agreement, but
nevertheless all such references shall include this Amendment Agreement
unless the context otherwise requires.
8.2 Counterparts.
This Amendment Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all,
of the parties hereto.
8.3 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF
NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN NEW
YORK.
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IS SIGNATURE PAGE.]
If you are in agreement with the foregoing, please so indicate by
signing the acceptance below on the accompanying counterpart of this
agreement and returning it to the Companies, whereupon it will become a
binding agreement among you and the Companies.
XXXXX, INC.
BY:________________________________________
Name:
Title:
RITE AID CORPORATION
BY:________________________________________
Name:
Title:
The foregoing Amendment Agreement is hereby accepted as of the date
first above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
BY:______________________________________
Name:
Title:
PRUCO LIFE INSURANCE COMPANY
BY:______________________________________
Name:
Title:
EXHIBIT A
AMENDMENTS
1. Amendments to Existing Note Agreement.
(a) The definition of "Xxxxxx Credit Agreement" in paragraph 9B is
hereby amended and restated in its entirety as follows:
"XXXXXX CREDIT AGREEMENT" the Amended and Restated Credit
Agreement, dated as of October 25, 1999, as amended by Amendment No.
1 to Amended and Restated Credit Agreement, dated as of December 2,
1999, among the Guarantor, the banks from time to time parties
thereto, and Xxxxxx Guaranty Trust Company of New York, as Agent, as
in effect on the Effective Date of the Note/Guaranty Agreement.
(b) The definition of "Note/Guaranty Agreement" in paragraph 9B is
hereby amended and restated in its entirety as follows:
"NOTE/GUARANTY AGREEMENT" means Amendment No. 2 to Note
Agreement and Amendment No. 2 to Guaranty Agreement, dated as
of December [__], 1999, among the Company, the Guarantor and the
holders of the Notes.
2. Amendments to Existing Rite Aid Guaranty Agreement.
(a) The definition of "Xxxxxx Credit Agreement" in Section 3.1 of the
Existing Rite Aid Guaranty is hereby amended and restated in its entirety
as follows:
"XXXXXX CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement, dated as of October 25, 1999, as amended by Amendment No.
1 to Amended and Restated Credit Agreement, dated as of December 2,
1999, among the Guarantor, the banks from time to time parties
thereto, and Xxxxxx Guaranty Trust Company of New York, as Agent, as
in effect on the Effective Date of the Note/Guaranty Agreement (as
defined in the Note Agreement).
EXHIBIT B
