Exhibit 10.2
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Amendment No. 4 to Receivables Financing Agreement and Consent
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This AMENDMENT NO. 4 TO RECEIVABLES FINANCING AGREEMENT AND
CONSENT, dated as of November 9, 2006 (this "Amendment Agreement"), is made by
and among Rite Aid Funding II (the "Borrower"), CAFCO, LLC ("CAFCO"), Jupiter
Securitization Corporation ("Jupiter"), Variable Funding Capital Company LLC
("Variable"); together with CAFCO and Jupiter, the "Investors"), Citibank,
N.A. ("Citibank"), JPMorgan Chase Bank, N.A. ("JPMorgan") and Wachovia Bank,
National Association ("Wachovia"; together with Citibank and JPMorgan, the
"Banks"), Citicorp North America, Inc., as program agent (the "Program
Agent"), Citicorp North America, Inc. ("CNAI"), JPMorgan and Wachovia, as
investor agents (CNAI, JPMorgan and Wachovia, in such capacity, the "Investor
Agents"), Rite Aid Hdqtrs. Funding, Inc. (the "Collection Agent"), and each of
the parties named in Schedule III to the Agreement (as defined below) as
originators (the "Originators").
Preliminary Statements. (1) The Borrower, the Investors, the
Program Agent, the Banks, the Investor Agents, the Collection Agent, the
Originators and JPMorgan, as Trustee are parties to a Receivables Financing
Agreement, dated as of September 21, 2004, as amended as of September 20,
2005, as of December 30, 2005 and as of September 19, 2006 (the "Agreement";
capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Agreement).
(2) The Borrower has advised the Investor Agents and the
Program Agent that in the event the anticipated transaction referred to in
Exhibit A hereto (the "Acquisition") is consummated, an Event of Termination
would occur under Section 7.01(l) of the Agreement due to a Change in Control
of the Parent and has requested the Investor Agents and the Program Agent to
consent thereto.
(3) The Borrower, the Investors, the Program Agent, the
Banks, the Investor Agents, the Collection Agent and the Originators also wish
to amend the Agreement to reduce the Minimum Liquidity Position under Section
7.01(n) of the Agreement.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Amendment to Agreement. Effective as of the date
hereof, Section 7.01(n) of the Agreement is amended by deleting the amount
"$110,000,000" found therein and replacing it with the amount "$100,000,000".
SECTION 2. Consent. Based on the description of the
Acquisition as set forth in Exhibit A to this Amendment Agreement, upon
execution and delivery of this Amendment Agreement by the Investor Agents and
the Program Agent, it will constitute a consent to the Acquisition, the
provisions of Section 7.01(l) of the Agreement to the contrary
notwithstanding. This consent shall pertain solely to the Acquisition, is
effective only for the limited purposes hereinabove set forth, and shall not
be deemed to authorize any further or future action not set
forth in Exhibit A or any other non-compliance with Section 7.01(l) or any other
provision of the Agreement.
SECTION 3. Effectiveness. Except as otherwise indicated in
Section 2 hereof, this Amendment Agreement shall become effective as of the
date hereof at such time that executed counterparts of this Amendment
Agreement have been delivered by each party hereto to the other parties
hereto.
SECTION 4. Representations and Warranties. Each of the
Borrower and the Collection Agent represents and warrants that each of the
representations and warranties contained in Section 4.01 and Section 4.02,
respectively, of the Agreement (after giving effect to this Amendment
Agreement) are correct in all material respects on and as of the date of this
Amendment Agreement as though made on and as of such date.
SECTION 5. Confirmation of Agreement. Each reference in the
Agreement to "this Agreement" or "the Agreement" shall mean the Agreement as
amended by this Amendment Agreement, and as hereafter amended or restated.
Except as herein expressly amended, the Agreement is ratified and confirmed in
all respects and shall remain in full force and effect in accordance with its
terms.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on
demand all reasonable costs and expenses in connection with the preparation,
execution and delivery of this Amendment Agreement and any other documents to
be delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Program Agent, the Investor Agents,
the Investors and the Banks with respect thereto.
SECTION 7. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF
THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
SECTION 8. Execution in Counterparts. This Amendment
Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which when taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Amendment Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Amendment Agreement.
2
IN WITNESS WHEREOF, the parties have caused this Amendment
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
RITE AID FUNDING II
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Treasurer
CAFCO, LLC
By: Citicorp North America,
Inc., as Attorney-in-Fact
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
JUPITER SECURITIZATION CORPORATION
By: JPMorgan Chase Bank, N.A.,
its attorney-in-fact
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
VARIABLE FUNDING CAPITAL COMPANY LLC
By: Wachovia Capital Markets, LLC,
its Attorney-in-Fact
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Program Agent and as an Investor Agent
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X Xxxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.
as a Bank and as an Investor Agent
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
as a Bank and as an Investor Agent
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Director
RITE AID HDQTRS. FUNDING INC.
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Treasurer
RITE AID CORPORATION
RITE AID OF CONNECTICUT, INC.
RITE AID OF DELAWARE, INC.
RITE AID OF GEORGIA, INC.
RITE AID OF INDIANA, INC.
RITE AID OF KENTUCKY, INC.
RITE AID OF MAINE, INC.
RITE AID OF MARYLAND, INC.
RITE AID OF MICHIGAN, INC.
RITE AID OF NEW HAMPSHIRE, INC.
RITE AID OF NEW JERSEY, INC.
RITE AID OF NEW YORK, INC.
RITE AID OF OHIO, INC.
RITE AID OF PENNSYLVANIA, INC.
RITE AID OF TENNESSEE, INC.
RITE AID OF VERMONT, INC.
RITE AID OF VIRGINIA, INC.
RITE AID OF WASHINGTON, D.C., INC.
RITE AID OF WEST VIRGINIA, INC.
KEYSTONE CENTERS, INC.
THE LANE DRUG COMPANY
RITE AID DRUG PALACE, INC.
THRIFTY PAYLESS, INC.
HARCO, INC.
PERRY DRUG STORES, INC.
APEX DRUG STORES, INC.
PDS-1 MICHIGAN, INC.
RDS DETROIT, INC.
K & B ALABAMA CORPORATION
K & B LOUISIANA CORPORATION
K & B MISSISSIPPI CORPORATION
K & B TENNESSEE CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Title: Treasurer
Name: Xxxxx Xxxxxxxxxx
EXHIBIT A
Rite Aid Corporation (the "Parent") and The Xxxx Xxxxx Group
(PJC) Inc. (the "Seller") have entered into a Stock Purchase Agreement dated
as of August 23, 2006 (the "Acquisition Agreement"), pursuant to which the
Parent intends to acquire (the "Acquisition") all the outstanding equity
interests in The Xxxx Xxxxx Group (PJC) USA, Inc. ("JCG-USA") or, if the
Parent effects the Reorganization (as defined in the Acquisition Agreement),
all the outstanding equity interests in JCG (PJC) USA, LLC ("JCG LLC"), which
will acquire all the outstanding equity interests in JCG-USA in such
Reorganization. For purposes hereof, "Holdings" means JCG-USA or, if the
Reorganization is effected, JCG LLC. Upon consummation of the Acquisition,
Holdings, together with its subsidiaries, will own and operate the network of
retail drugstores conducting business under the Eckerd and Xxxxxx tradenames.
On the date on which the Acquisition in consummated pursuant to the
Acquisition Agreement, the Parent will transfer to the Seller, in
consideration of the Acquisition, (i) $2,300,000,000 in cash, subject to
certain adjustments, including a reduction in the event that the Parent
assumes the Seller's 8.50% Senior Subordinated Notes due 2014 and adjustments
in respect to working capital and (ii) 250,000,000 shares of common stock of
the Parent, the issuance of which shares representing 30% or more of the
outstanding shares of common stock of the Parent.
