Exhibit 4.11
AMENDMENT NO. 1 TO GUARANTY
AMENDMENT NO. 1 TO GUARANTY ("Amendment No. 1"), dated as of June 22,
1998, from RITE AID CORPORATION, a Delaware corporation (the "Guarantor"),
to RAC LEASING, a Wyoming limited liability company (the "Lessor").
WHEREAS, the Lessor and Rite Aid Realty Corp. (the "Lessee") entered
into a Master Lease and Security Agreement dated as of March 19, 1998 (the
"Master Lease"); and
WHEREAS, the Guarantor and the Lessor entered into a Guaranty, dated
as of March 19, 1998 (the "Guaranty"); and
WHEREAS, the Lessor has pledged and assigned its rights in the
Guaranty pursuant to the Amended and Restated Intercreditor and Security
Agreement dated as of March 19, 1998 among the Lessor, the Guarantor, the
Lessee, the Sumitomo Bank, Limited, New York Branch, as Collateral Agent
and the other parties thereto (the "Intercreditor Agreement"); and
WHEREAS, the Guarantor and the Lessor now desire to amend the
Guaranty; and
WHEREAS, capitalized terms used but not defined herein shall have the
respective meanings given to such terms in Appendix I to the Master Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. Section 3(b) of the Guaranty is hereby amended by inserting at the
end thereof the following:
"The Guarantor hereby waives, to the fullest extent
permitted by law, all rights and benefits under
section 2809 of the California Civil Code purporting
to reduce a guarantor's obligations in proportion to
the principal obligation, all rights and benefits
under section 580a of the California Code of Civil
Procedure governing determination of fair market value
following the exercise of power of sale, all rights
and benefits under section 580b of the California Code
of Civil Procedure stating that no deficiency may be
recovered on a real property purchase money obligation
and all rights and benefits under section 580d of the
California Code of Civil Procedure stating that no
deficiency may be recovered on a note secured by a
deed of trust on real property in case such real
property is sold under the power of sale contained in
such deed of trust, and all rights and benefits under
section 726 of the California Code of Civil Procedure
and any and all similar laws now in effect or
hereafter enacted in the State of California regarding
the procedures to be followed by a creditor with real
property security and/or limiting the right of such a
creditor to a deficiency judgment, including, without
limitation, the California law now in effect stating
that the Lessor must first proceed against any real
property collateral before commencing an action to
collect the Obligations, if such sections, or any of
them, have any application hereto or any application
to the Guarantor. The Guarantor expressly waives any
and all benefits under the California Civil Code
sections 2808, 2810, 2819, 2821, 2825, 2839, 2845
through 2850, 2854 and 2855."
2. Section 11(a) of the Guaranty is hereby amended by deleting such
Section in its entirety and substituting in lieu thereof the following:
"(a)The covenants contained in Article V of the Credit
Agreement, a copy of which is attached hereto as Annex A, are
hereby incorporated herein by reference with the same force and
effect as if such covenants were set forth expressly herein.
Notwithstanding the foregoing, any amendments or waivers of such
covenants approved by the requisite parties under the Credit
Agreement shall likewise be effective hereunder; provided, that
the Lessor and the Liquidity Providers shall have received a pro
rata share (based on the respective commitments of the Lessor,
Liquidity Providers and parties to the Credit Agreement) of any
consideration given by the Guarantor or any Affiliate of the
Guarantor in connection with such amendment or waiver; provided,
further, that if at any time there are loans outstanding under
the Committed Loan Agreement for a period of three consecutive
months or longer, then during the period (the "Voting Period")
commencing on the last day of such three-consecutive- month
period and ending on the date on which all outstanding loans
under the Committed Loan Agreement have been repaid in full, the
covenants from the Credit Agreement incorporated herein by
reference shall be effective without regard to any amendments or
waivers thereof made by the requisite parties under the Credit
Agreement during such Voting Period and not specifically
consented to by the Required Lenders."
3. The Guarantor hereby agrees to deliver to the Lessor (with
sufficient copies for the Collateral Agent and the other Secured Parties)
on the date hereof a certificate dated the date of this Amendment No. 1,
from the Secretary or Assistant Secretary of the Guarantor certifying (i)
as to the incumbency and signature of each officer of the Guarantor
authorized to execute and deliver this Amendment No. 1, (ii) that attached
thereto are true and complete copies of the Certificate of Incorporation
and By-Laws of the Guarantor as in full force and effect on the date of
this Amendment No. 1 and (iii) that attached thereto is a true and complete
copy of the resolutions of the Board of Directors of the Guarantor
authorizing the execution, delivery and performance of this Amendment No. 1
and the transactions contemplated hereby, together with a certificate of
another officer of the Guarantor as to the incumbency and signature of such
Secretary or Assistant Secretary.
4. The Guarantor hereby represents and warrants that each of the
representations and warranties made in Section 4 of the Guaranty are true
and correct with the same force and effect as though made on and as of the
date of this Amendment No. 1, except to the extent that any such
representations or warranties expressly relate to an earlier date, in which
case, such representations and warranties were true and correct on and as
of such earlier date.
5. Except as expressly modified and amended hereby, the Guaranty
remains unchanged and in full force and effect in all respects. As
expressly modified and amended hereby, the Guarantor hereby ratifies and
affirms the Guaranty.
6. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. This Amendment No. 1 may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute
but one and the same Amendment No. 1
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 1 to be executed by their officers thereunto duly authorized
as of the date first above written.
RITE AID CORPORATION,
as Guarantor
By:_____________________________________
Name:
Title:
Acknowledged and Agreed:
RAC LEASING LLC
By: The Diversified Group Incorporated
By:_________________________
Name:
Title:
