Exhibit 10.5
EXECUTION COPY
SENIOR INDEMNITY, SUBROGATION and
CONTRIBUTION AGREEMENT dated as of June 12,
2000, among RITE AID CORPORATION, a Delaware
corporation (the "Borrower"), each Subsidiary
of the Borrower listed on Schedule I hereto
(the "Subsidiary Guarantors") and CITICORP
USA, INC., a Delaware corporation ("Citicorp
USA"), as collateral agent (in such capacity,
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, (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 and (c) the Senior Subsidiary Guarantee
Agreement dated as of June 12, 2000, among the Subsidiary Guarantors and
the Senior Collateral Agent (the "Senior Subsidiary Guarantee Agreement").
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 the Independent Standby Letters of Credit. The Subsidiary Guarantors
have guaranteed such Loans and the other Senior Obligations of the Borrower
pursuant to the Senior Subsidiary Guarantee Agreement and certain
Subsidiary Guarantors have granted Liens on and security interests in
certain of their assets to secure such guarantees. 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 Borrower and the Subsidiary Guarantors of an agreement in the form
hereof.
Accordingly, the Borrower, each Subsidiary Guarantor and the Senior
Collateral Agent agree as follows:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have
under applicable law (but subject to Section 3), the Borrower agrees that
(a) in the event a payment shall be made by any Subsidiary Guarantor under
the Senior Subsidiary Guarantee Agreement, the Borrower shall indemnify
such Subsidiary Guarantor for the full amount of such payment and such
Subsidiary Guarantor shall be subrogated to the rights of the Person to
whom such payment shall have been made to the extent of such payment and
(b) in the event and to the extent any assets of any Subsidiary Guarantor
shall be sold pursuant to any Senior Collateral Document to satisfy a claim
of any Senior Secured Party, the Borrower shall indemnify such Subsidiary
Guarantor in an amount equal to the greater of the book value or the fair
market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Subsidiary Guarantor
(a "Contributing Subsidiary Guarantor") agrees (subject to Section 3) that,
in the event a payment shall be made by any other Subsidiary Guarantor
under the Senior Subsidiary Guarantee Agreement or assets of any other
Subsidiary Guarantor shall be sold pursuant to any Senior Collateral
Document to satisfy a claim of any Senior Secured Party and such other
Subsidiary Guarantor (the "Claiming Subsidiary Guarantor") shall not have
been fully indemnified by the Borrower as provided in Section 1, the
Contributing Subsidiary Guarantor shall indemnify the Claiming Subsidiary
Guarantor in an amount equal to the amount of such payment or the greater
of the book value or the fair market value of such assets, as the case may
be, in each case multiplied by a fraction of which the numerator shall be
the net worth of the Contributing Subsidiary Guarantor on May 27, 2000 (or,
in the case of any Subsidiary Guarantor becoming a party hereto pursuant to
Section 12 after such date, the date of the Supplement hereto executed and
delivery by such Subsidiary Guarantor) and the denominator shall be the
aggregate net worth of all the Subsidiary Guarantors on May 27, 2000 (or,
in the case of any Subsidiary Guarantor becoming a party hereto pursuant to
Section 12 after such date, the date of the Supplement hereto executed and
delivered by such Subsidiary Guarantor). Any Contributing Subsidiary
Guarantor making any payment to a Claiming Subsidiary Guarantor pursuant to
this Section 2 shall be subrogated to the rights of such Claiming
Subsidiary Guarantor under Section 1 to the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated
to the indefeasible payment in full in cash of the Senior Obligations. No
failure on the part of the Borrower or any Subsidiary Guarantor to make the
payments required by Sections 1 and 2 (or any other payments required under
applicable law or otherwise) shall in any respect limit the obligations and
liabilities of any Subsidiary Guarantor with respect to its obligations
hereunder, and each Subsidiary Guarantor shall remain liable for the full
amount of the obligations of such Subsidiary Guarantor hereunder.
SECTION 4. TERMINATION. This Agreement shall survive and be in full
force and effect so long as any Senior Obligation is outstanding and has
not been indefeasibly paid in full in cash, and so long as the L/C Exposure
has not been reduced to zero and any of the Commitments under the Senior
Credit Facility have not been terminated, and 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 Obligation 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 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. NO WAIVER; AMENDMENT. (a) No failure on the part of the
Senior Collateral Agent or any Subsidiary Guarantor to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy by the Senior Collateral Agent or any Subsidiary
Guarantor preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law. None of the Senior
Collateral Agent and the Subsidiary Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and
signed by such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Borrower, the Subsidiary Guarantors 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 7. NOTICES. All communications and notices hereunder shall
be in writing and given as provided in the Senior Subsidiary Guarantee
Agreement and addressed as specified therein.
SECTION 8. BINDING 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 parties that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. Neither the Borrower nor any Subsidiary
Guarantor may assign or transfer any of its rights or obligations hereunder
(and any such attempted assignment or transfer shall be void) without the
prior written consent of the Majority Senior Parties. Notwithstanding the
foregoing, at the time any Subsidiary Guarantor is released from its
obligations under the Senior Subsidiary Guarantee Agreement in accordance
with such Senior Subsidiary Guarantee Agreement and the Senior Credit
Facility, such Subsidiary Guarantor will cease to have any rights or
obligations under this Agreement.
SECTION 9. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants
and agreements made by the Borrower and each other Obligor herein and in
the certificates or other instruments prepared or delivered in connection
with this Agreement or the other Senior Loan Documents shall be considered
to have been relied upon by the Senior Collateral Agent, the other Senior
Secured Parties and each Subsidiary Guarantor and shall survive the making
by the Senior Banks of the Loans and the issuance of the Letters of Credit
by the Issuing Banks, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loans or any other fee
or amount payable under the Senior Credit Facility or this Agreement or
under any of the other Senior Loan Documents is outstanding and unpaid or
the L/C Exposure does not equal zero and as long as the Commitments have
not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. 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 10. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement shall be
effective with respect to any Subsidiary Guarantor when a counterpart
bearing the signature of such Subsidiary Guarantor shall have been
delivered to the Senior Collateral Agent. Delivery of an executed signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Agreement.
SECTION 11. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Senior Credit Facility shall be applicable
to this Agreement.
SECTION 12. ADDITIONAL SUBSIDIARY GUARANTORS. Pursuant to Section
5.08 of the Senior Credit Facility, each Domestic Subsidiary of the
Borrower that was not in existence 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.
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 hereto, such Subsidiary shall become a Subsidiary Guarantor
hereunder with the same force and effect as if originally named as a
Subsidiary Guarantor hereunder. 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers as of the date first
appearing above.
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 Indemnity, Subrogation
and Contribution 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 Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the
Senior Indemnity, Subrogation and Contribution
Agreement dated as of June 12, 2000 (as the same may
be amended, supplemented or otherwise modified from
time to time, the "Senior Indemnity, Subrogation and
Contribution Agreement"), among RITE AID CORPORATION,
a Delaware corporation (the "Borrower"), each
Subsidiary of the Borrower listed on Schedule I
thereto (the "Subsidiary Guarantors"), and CITICORP
USA, INC., a Delaware corporation ("Citicorp USA"),
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, (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 and (c) the Senior Subsidiary Guarantee
Agreement dated as of June 12, 2000, among the Subsidiary Guarantors and
the Senior Collateral Agent (the "Senior Subsidiary Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Senior Indemnity,
Subrogation and Contribution Agreement, including the Definitions Annex and
the Senior Credit Facility referred to therein.
C. The Borrower and the Subsidiary Guarantors have entered into the
Senior Indemnity, Subrogation and Contribution 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 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 12 of the Senior Indemnity, Subrogation and Contribution Agreement
provides that additional Domestic Subsidiaries of the Borrower may become
Subsidiary Guarantors under the Senior Indemnity, Subrogation and
Contribution 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 Indemnity, Subrogation and Contribution
Agreement in order to 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 12 of the Senior Indemnity,
Subrogation and Contribution Agreement, the New Subsidiary Guarantor by its
signature below becomes a Subsidiary Guarantor under the Senior Indemnity,
Subrogation and Contribution Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and the New Subsidiary
Guarantor hereby agrees to all the terms and provisions of the Senior
Indemnity, Subrogation and Contribution Agreement applicable to it as a
Subsidiary Guarantor thereunder. Each reference to a "Subsidiary Guarantor"
in the Senior Indemnity, Subrogation and Contribution Agreement shall be
deemed to include the New Subsidiary Guarantor. The Senior Indemnity,
Subrogation and Contribution 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 (and by
different parties hereto on different 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 signed counterpart of this
Supplement.
SECTION 4. Except as expressly supplemented hereby, the Senior
Indemnity, Subrogation and Contribution 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, neither party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the
remaining provisions contained herein and in the Senior Indemnity,
Subrogation and Contribution Agreement shall not in any way be affected or
impaired. 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 7 of the Senior Indemnity,
Subrogation and Contribution Agreement. All communications and notices
hereunder to the New Subsidiary Guarantor shall be given to it at the
address set forth under its signature.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Senior Collateral Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including the reasonable fees, other
charges and disbursements 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
Indemnity, Subrogation and Contribution 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:
Schedule I
to Supplement No.___ to the Senior Indemnity
Subrogation and Contribution 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 2 to
the Senior Indemnity, Subrogation and
Contribution 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.
