Exhibit 10.14
EXECUTION COPY
AMENDED AND RESTATED PCS PLEDGE AGREEMENT
AGREEMENT dated as of October 25, 1999 and amended and restated as of
June 12, 2000 between RITE AID CORPORATION (with its successors, the
"BORROWER") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK ("XXXXXX"), as
agent hereunder (the "AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower, certain banks and Xxxxxx, as agent for such
banks are parties to a Term Loan Agreement dated as of October 25, 1999 (as
heretofore amended, the "ORIGINAL LOAN AGREEMENT"); and
WHEREAS, the Borrower proposes to enter into the PCS Facility of even
date herewith amending and restating the Original Loan Agreement (as the
same may be amended from time to time, the "LOAN AGREEMENT"); and
WHEREAS, the Borrower granted a continuing security interest in and
to the Collateral (i) on a first priority basis, to secure its obligations
under the Loan Agreement, (ii) on a second priority basis, to secure
certain of its obligations under the RCF Facility (as this and other
capitalized terms are defined below), (iii) on a third priority basis, to
secure certain other obligations under the RCF Facility as well as the
Xxxxx Facility and the Independent Standby Letters of Credit and (iv) on a
fourth priority basis, to secure the Synthetic Lease Obligations; and
WHEREAS, certain of the Existing Facility Parties have converted a
portion of their loans under the Existing Facilities to Common Stock of the
Borrower and exchanged a portion of such loans for loans under the Exchange
Debt Facility; and
WHEREAS, the Borrower has agreed that its obligations under the
Exchange Debt Facility will continue to be secured by a continuing security
interest in and to the Collateral, to the extent the obligations for which
such Exchange Debt Obligations were exchanged were so secured;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. (a) Terms defined in the heading and recitals
hereto have the respective meanings provided for therein.
(b) The following terms have the meanings provided for in the RCF
Facility:
Tranche A Loans
Tranche B Loans
(c) The following terms have the meanings provided for in the Loan
Agreement or the Definitions Annex referred to therein and in the RCF
Facility:
Base Rate
Base Rate Margin
Default
Xxxxxxxxx.xxx Pledge Agreement
Event of Default
Exchange Debt Facility
Exchange Debt Obligations
Existing Facilities Documents
Existing Facility Parties
Xxxxx Facility
Xxxxx Facility Obligations
Independent Standby Letters of Credit
Independent Standby L/C Obligations
Lien
RCF Facility
RCF Facility Documents
Related Exchange Debt
Related Exchange Debt Obligations
Synthetic Lease Obligations
(d) The following additional terms, as used herein, have the following
respective meanings:
"COLLATERAL" has the meaning assigned to such term in Section 3(a).
"FIRST PRIORITY SECURED 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 under
the Loan Agreement, (ii) all other amounts payable by the Borrower under
the Loan Agreement and (iii) any renewals or extensions of any of the
foregoing.
"FOURTH PRIORITY SECURED OBLIGATIONS" means (i) the obligations of
the Borrower in respect of the Synthetic Lease Obligations and (ii) any
renewals or extensions of the foregoing.
"INSTRUCTING BANKS" means (i) until all First Priority Secured
Obligations shall have been paid in full, the "Required Banks" as defined
in the Loan Agreement and (ii) thereafter, the "Required Banks" as defined
in the RCF Facility.
"ISSUER" means PCS Holding Corporation, and its successors.
"LETTER OF CREDIT EXPOSURE" means the Independent Standby L/C
Obligations; provided that each issuer of such letters of credit shall have
entered into an agreement with the Borrower and the Agent satisfactory to
the Agent pursuant to which such issuer has agreed to accept the benefits
of and be bound by the terms of this Agreement; provided further that the
Letter of Credit Exposure may not for purposes of this Agreement exceed
$34,000,000; and provided further that the outstanding principal amount of
any such letters of credit which are undrawn shall be deemed to be the face
amount thereof for purposes of this Agreement, subject to the last sentence
of Section 13.
"MAXIMUM PRINCIPAL AMOUNT" shall mean that portion of the outstanding
principal amounts of the Partially Secured Obligations secured both
hereunder and under the xxxxxxxxx.xxx Pledge Agreement, which principal
amount shall not exceed $447,000,000, it being understood that this
Agreement and the xxxxxxxxx.xxx Pledge Agreement each individually, but
also collectively, secure the Partially Secured Obligations to the extent
of such Maximum Principal Amount, and that therefore the Maximum Principal
Amount for purposes of this Agreement shall be reduced by the amount of any
proceeds of Collateral applied to principal of the Partially Secured
Obligations pursuant to Section 13 of the xxxxxxxxx.xxx Pledge Agreement.
"PARTIALLY SECURED OBLIGATIONS" means the Tranche B Loans, loans
under the Exchange Debt Facility (other than any such loans which
constitute Related Exchange Debt with respect to the Loan Agreement or the
Tranche A Loans), the Xxxxx Facility and the Letter of Credit Exposure.
"PLEDGED STOCK" means (i) the Subsidiary Shares and (ii) any other
capital stock required to be pledged to the Agent pursuant to Section 3(b).
"SECOND PRIORITY SECURED 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 Tranche A
Loan, (ii) all other amounts payable by the Borrower hereunder or under the
RCF Facility Documents, to the extent properly allocable to the Tranche A
Loans, and (iii) any renewals or extensions of any of the foregoing.
"SECURED OBLIGATIONS" means the First Priority Secured Obligations,
the Second Priority Secured Obligations, the Third Priority Secured
Obligations, the Fourth Priority Secured Obligations and any amount payable
by the Borrower under this Agreement.
"SECURED PARTIES" means the Agent and the holders from time to time
of the Secured Obligations.
"SECURITY INTERESTS" means the security interests in the Collateral
granted hereunder securing the Secured Obligations.
"SUBSIDIARY SHARES" means certificate number A 2 representing 565
shares of Class A Stock, par value $1.00 per share, of the Issuer and
proceeds thereof and replacements therefor.
"THIRD PRIORITY SECURED OBLIGATIONS" means (i) all outstanding
principal amounts of Partially Secured Obligations, provided that the
principal amount secured pursuant to this clause (i) shall not exceed the
Maximum Principal Amount; (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 secured pursuant to clause (i) of this
definition, (iii) any renewals or extensions of any of the foregoing and
(iv) to the extent the same may be secured hereunder and under the
Xxxxxxxxx.xxx Pledge Agreement without contravention of the Indentures, any
and all other amounts payable by the Borrower in respect of the Partially
Secured Obligations. The amounts specified in clauses (i) and (iii) shall
be allocated among the Partially Secured Obligations ratably based on the
unpaid principal amount thereof at the time of determination.
Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the New York Uniform
Commercial Code as in effect on the date hereof shall have the meanings
therein stated.
SECTION 2. Representations and Warranties. The Borrower represents
and warrants as follows:
(a) Title to Pledged Stock. The Borrower owns all of the Pledged
Stock, free and clear of any Liens other than the Security Interests.
The Pledged Stock includes all of the issued and outstanding capital
stock of the Issuer. All of the Pledged Stock has been duly authorized
and validly issued, and is fully paid and non-assessable, and is
subject to no options to purchase or similar rights of any Person. The
Borrower is not and will not become a party to or otherwise bound by
any agreement, other than this Agreement, which restricts in any
manner the rights of any present or future holder of any of the
Pledged Stock with respect thereto.
(b) Validity, Perfection and Priority of Security Interests. The Agent
has valid and perfected security interests in the Collateral subject
to no prior Lien. No registration, recordation or filing with any
governmental body, agency or official is required in connection with
the execution or delivery of this Agreement or necessary for the
validity or enforceability hereof or for the perfection or enforcement
of the Security Interests. Neither the Borrower nor any of its
Subsidiaries has performed or will perform any acts which might
prevent the Agent from enforcing any of the terms and conditions of
this Agreement or which would limit the Agent in any such enforcement.
(c) UCC Filing Locations. The chief executive office of the Borrower
is located at its address set forth on the signature pages of the Loan
Agreement.
SECTION 3. The Security Interests. In order to secure the full and
punctual payment of the Secured Obligations in accordance with the terms
thereof, and to secure the performance of all the obligations of the
Borrower hereunder:
(a) The Borrower hereby assigns and pledges to and with the Agent for
the benefit of the Secured Parties and grants to the Agent for the
benefit of the Secured Parties security interests in the Pledged
Stock, and all of its rights and privileges with respect to the
Pledged Stock, and all income and profits thereon, and all dividends
and other payments and distributions with respect thereto, and all
proceeds of the foregoing (the "COLLATERAL"). Prior to the execution
and delivery hereof, the Borrower has delivered the certificate
representing the Subsidiary Shares in pledge hereunder.
(b) In the event that the Issuer at any time issues any additional or
substitute shares of capital stock of any class, the Borrower will
immediately pledge and deposit with the Agent certificates
representing all such shares as additional security for the Secured
Obligations. All such shares constitute Pledged Stock and are subject
to all provisions of this Agreement.
(c) The Security Interests are granted as security only and shall not
subject the Agent or any Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of the Borrower with
respect to any of the Collateral or any transaction in connection
therewith.
SECTION 4. Delivery of Pledged Stock. All certificates representing
Pledged Stock delivered to the Agent by the Borrower pursuant hereto shall
be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, with
signatures appropriately guaranteed, and accompanied by any required
transfer tax stamps, all in form and substance satisfactory to the Agent.
SECTION 5. Further Assurances. (a) The Borrower agrees that it will,
at its expense and in such manner and form as the Agent may require,
execute, deliver, file and record any financing statement, specific
assignment or other paper and take any other action that may be necessary
or desirable, or that the Agent may request, in order to create, preserve,
perfect or validate any Security Interest or to enable the Agent to
exercise and enforce its rights hereunder with respect to any of the
Collateral. To the extent permitted by applicable law, the Borrower hereby
authorizes the Agent to execute and file, in the name of the Borrower or
otherwise, Uniform Commercial Code financing statements (which may be
carbon, photographic, photostatic or other reproductions of this Agreement
or of a financing statement relating to this Agreement) which the Agent in
its sole discretion may deem necessary or appropriate to further perfect
the Security Interests.
(b) The Borrower agrees that it will not change (i) its name, identity
or corporate structure in any manner, (ii) the location of its chief
executive office or (iii) its jurisdiction of incorporation unless it shall
have given the Agent not less than 30 days' prior notice thereof.
SECTION 6. Record Ownership of Pledged Stock. The Agent may at any
time or from time to time, in its sole discretion, cause any or all of the
Pledged Stock to be transferred of record into the name of the Agent or its
nominee. The Borrower will promptly give to the Agent copies of any notices
or other communications received by it with respect to Pledged Stock
registered in the name of the Borrower and the Agent will promptly give to
the Borrower copies of any notices and communications received by the Agent
with respect to Pledged Stock registered in the name of the Agent or its
nominee.
SECTION 7. Right to Receive Distributions on Collateral. During the
continuance of any Default the Agent shall have the right to receive and to
retain as Collateral hereunder all dividends and other payments and
distributions made upon or with respect to the Collateral and the Borrower
shall take all such action as the Agent may deem necessary or appropriate
to give effect to such right. All such dividends and other payments and
distributions which are received by the Borrower shall be received in trust
for the benefit of the Agent and the Secured Parties and, if the Agent so
directs during the continuance of a Default, shall be segregated from other
funds of the Borrower and shall, forthwith upon demand by the Agent during
the continuance of a Default, be paid over to the Agent as Collateral in
the same form as received (with any necessary endorsement). After all
Defaults have been cured, the Agent's right to retain dividends and other
payments and distributions under this Section 7 shall cease and the Agent
shall pay over to the Borrower any such Collateral retained by it during
the continuance of a Default.
SECTION 8. Right to Vote Pledged Stock. Unless a Default shall have
occurred and be continuing, the Borrower shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect
to the Pledged Stock, and the Agent shall, upon receiving a written request
from the Borrower accompanied by a certificate signed by its principal
financial officer stating that no Default has occurred and is continuing,
deliver to the Borrower or as specified in such request such proxies,
powers of attorney, consents, ratifications and waivers in respect of any
of the Pledged Stock which is registered in the name of the Agent or its
nominee as shall be specified in such request and be in form and substance
satisfactory to the Agent.
If a Default shall have occurred and be continuing, the Agent shall
have the right to the extent permitted by law, and the Borrower shall take
all such action as may be necessary or appropriate to give effect to such
right, to vote and to give consents, ratifications and waivers, and take
any other action with respect to any or all of the Pledged Stock with the
same force and effect as if the Agent were the absolute and sole owner
thereof.
SECTION 9. General Authority. The Borrower hereby irrevocably
appoints the Agent its true and lawful attorney, with full power of
substitution, in the name of the Borrower, the Agent, the Secured Parties
or otherwise, for the sole use and benefit of the Agent and Secured
Parties, but at the expense of the Borrower, to the extent permitted by law
to exercise, at any time and from time to time while an Event of Default
has occurred and is continuing, all or any of the following powers with
respect to all or any of the Collateral:
(a) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof, as fully and effectually as if the
Agent were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
provided that the Agent shall give the Borrower not less than ten days'
prior notice of the time and place of any sale or other intended
disposition of any of the Collateral except any Collateral which is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. The Agent and the Borrower agree
that such notice constitutes "reasonable notification" within the meaning
of Section 9-504(3) of the Uniform Commercial Code.
SECTION 10. Remedies upon Event of Default. If any Event of Default
shall have occurred and be continuing, the Agent may exercise on behalf of
the Secured Parties all the rights of a secured party under the Uniform
Commercial Code (whether or not in effect in the jurisdiction where such
rights are exercised) and, in addition, the Agent may, without being
required to give any notice, except as herein provided or as may be
required by mandatory provisions of law, (i) apply the cash, if any, then
held by it as Collateral as specified in Section 13 and (ii) if there shall
be no such cash or if such cash shall be insufficient to pay all the
Secured Obligations in full, sell the Collateral or any part thereof at
public or private sale or at any broker's board or on any securities
exchange, for cash, upon credit or for future delivery, and at such price
or prices as the Agent may deem satisfactory. Any Secured Party may be the
purchaser of any or all of the Collateral so sold at any public sale (or,
if the Collateral is of a type customarily sold in a recognized market or
is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Agent is authorized, in connection
with any such sale, if it deems it advisable so to do, (A) to restrict the
prospective bidders on or purchasers of any of the Pledged Stock to a
limited number of sophisticated investors who will represent and agree that
they are purchasing for their own account for investment and not with a
view to the distribution or sale of any of such Pledged Stock, (B) to cause
to be placed on certificates for any or all of the Pledged Stock or on any
other securities pledged hereunder a legend to the effect that such
security has not been registered under the Securities Act of 1933 and may
not be disposed of in violation of the provision of said Act, and (C) to
impose such other limitations or conditions in connection with any such
sale as the Agent deems necessary or advisable in order to comply with said
Act or any other law. The Borrower will execute and deliver such documents
and take such other action as the Agent deems necessary or advisable in
order that any such sale may be made in compliance with law. Upon any such
sale the Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale
shall hold the Collateral so sold absolutely and free from any claim or
right of whatsoever kind, including any equity or right of redemption of
the Borrower which may be waived, and the Borrower, to the extent permitted
by law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or hereafter
adopted. The notice (if any) of such sale required by Section 9 shall (1)
in the case of a public sale, state the time and place fixed for such sale,
(2) in the case of a sale at a broker's board or on a securities exchange,
state the board or exchange at which such sale is to be made and the day on
which the Collateral, or the portion thereof so being sold, will first be
offered for sale at such board or exchange, and (3) in the case of a
private sale, state the day after which such sale may be consummated. Any
such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Agent may fix in the
notice of such sale. At any such sale the Collateral may be sold in one lot
as an entirety or in separate parcels, as the Agent may determine. The
Agent shall not be obligated to make any such sale pursuant to any such
notice. The Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so adjourned. In the
case of any sale of all or any part of the Collateral on credit or for
future delivery, the Collateral so sold may be retained by the Agent until
the selling price is paid by the purchaser thereof, but the Agent shall not
incur any liability in the case of the failure of such purchaser to take up
and pay for the Collateral so sold and, in the case of any such failure,
such Collateral may again be sold upon like notice. The Agent, instead of
exercising the power of sale herein conferred upon it, may proceed by a
suit or suits at law or in equity to foreclose the Security Interests and
sell the Collateral, or any portion thereof, under a judgment or decree of
a court or courts of competent jurisdiction.
SECTION 11. Expenses. The Borrower agrees that it will forthwith upon
demand pay to the Agent:
(a) the amount of any taxes which the Agent may have been required to
pay by reason of the Security Interests or to free any of the
Collateral from any Lien thereon, and
(b) the amount of any and all out-of-pocket expenses, including the
fees and disbursements of counsel, which the Agent may incur in
connection with (i) the administration or enforcement of this
Agreement, including such expenses as are incurred to preserve the
value of the Collateral and the validity, perfection, rank and value
of any Security Interest, (ii) the collection, sale or other
disposition of any of the Collateral, (iii) the exercise by the Agent
of any of the rights conferred upon it hereunder or (iv) any Default.
Any such amount not paid on demand shall bear interest at a rate per annum
equal to the rate applicable to overdue Base Rate Loans under the Loan
Agreement and shall be an additional Secured Obligation hereunder.
SECTION 12. Limitation on Duty of Agent in Respect of Collateral.
Beyond the exercise of reasonable care in the custody thereof, the Agent
shall have no duty as to any Collateral in its possession or control or in
the possession or control of any agent or bailee or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which it
accords its own property, and shall not be liable or responsible for any
loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any agent or bailee selected
by the Agent in good faith.
SECTION 13. Application of Proceeds. Upon the occurrence and during
the continuance of an Event of Default, the proceeds of any sale of, or
other realization upon, all or any part of the Collateral and any cash held
shall be applied by the Agent in the following order of priorities:
FIRST, to payment of the expenses of such sale or other
realization, including reasonable compensation to agents and counsel
for the Agent, and all expenses, liabilities and advances incurred or
made by the Agent in connection therewith, and any other unreimbursed
expenses for which the Agent is to be reimbursed pursuant to Section
11 hereof;
SECOND, to the ratable payment of unpaid principal of the First
Priority Secured Obligations;
THIRD, to the ratable payment of accrued but unpaid interest on
the First Priority Secured Obligations in accordance with the terms
thereof;
FOURTH, to the ratable payment of all other First Priority
Secured Obligations, until all First Priority Secured Obligations
shall have been paid in full;
FIFTH, to the ratable payment of unpaid principal of the Second
Priority Secured Obligations;
SIXTH, to the ratable payment of accrued but unpaid interest on
the Second Priority Secured Obligations in accordance with the terms
thereof;
SEVENTH, to the ratable payment of all other Second Priority
Secured Obligations, until all Second Priority Secured Obligations
shall have been paid in full;
EIGHTH, to the ratable payment of unpaid principal of the Third
Priority Secured Obligations;
NINTH, to the ratable payment of accrued but unpaid interest on
Third Priority Secured Obligations in accordance with the terms
thereof;
TENTH, to the ratable payment of all other Third Priority
Secured Obligations, until all Third Priority Secured Obligations
shall have been paid in full;
ELEVENTH, to the ratable payment of all Fourth Priority Secured
Obligations, until all Fourth Priority Secured Obligations have been
paid in full;
FINALLY, to payment to the Borrower or its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
The Agent may make distributions hereunder in cash or in kind or, on a
ratable basis, in any combination thereof. Any amount distributable
pursuant to this Section 13 in respect of any Independent Standby L/C
Obligations consisting of undrawn letters of credit shall be retained by
the Agent for payment to the Secured Parties that are issuers thereof at
such time as such letters of credit are drawn and then only to the extent
of any such draw. To the extent that any such letter of credit expires
undrawn, any amount then held by the Agent pursuant to the preceding
sentence in respect thereof shall be distributed in accordance with the
priorities established by this Section 13, it being understood that any
reimbursement obligations in respect of such expired letter of credit shall
not be included in Secured Obligations for purposes of such distribution.
SECTION 14. Concerning the Agent. The provisions of Article 7 of each
Loan Agreement shall inure to the benefit of the Agent in respect of this
Agreement and shall be binding upon the Secured Parties in such respect. In
furtherance and not in derogation of the rights, privileges and immunities
of the Agent therein set forth:
(a) The Agent is authorized to take all such action as is provided to
be taken by it as Agent hereunder and all other action reasonably
incidental thereto. As to any matters not expressly provided for
herein (including, without limitation, the timing and methods of
realization upon the Collateral) the Agent shall act or refrain from
acting in accordance with written instructions from the Instructing
Banks or, in the absence of such instructions, in accordance with its
discretion.
(b) The Agent shall not be responsible for the existence, genuineness
or value of any of the Collateral or for the validity, perfection,
priority or enforceability of the Security Interests in any of the
Collateral, whether impaired by operation of law or by reason of any
action or omission to act on its part hereunder. The Agent shall have
no duty to ascertain or inquire as to the performance or observance of
any of the terms of this Agreement by the Borrower.
SECTION 15. Appointment of Co-Agents. At any time or times, in order
to comply with any legal requirement in any jurisdiction, the Agent may
appoint another bank or trust company or one or more other persons, either
to act as co-agent or co-agents, jointly with the Agent, or to act as
separate agent or agents on behalf of the Secured Parties with such power
and authority as may be necessary for the effectual operation of the
provisions hereof and may be specified in the instrument of appointment
(which may, in the discretion of the Agent, include provisions for the
protection of such co-agent or separate agent similar to the provisions of
Section 14).
SECTION 16. Termination of Security Interests; Release of Collateral.
Upon the repayment in full of all Secured Obligations, the Security
Interests shall terminate and all rights to the Collateral shall revert to
the Borrower. At any time and from time to time prior to such termination
of the Security Interests, the Agent may release any of the Collateral in
accordance with the applicable provisions of each of the Loan Agreement and
the RCF Facility. Upon any such termination of the Security Interests or
release of Collateral, the Agent will, at the expense of the Borrower,
execute and deliver to the Borrower such documents as the Borrower shall
reasonably request to evidence the termination of the Security Interests or
the release of such Collateral, as the case may be.
SECTION 17. Notices. All notices hereunder shall be given in accordance
with Section 9.01 of each of the Loan Agreement and the RCF Facility.
SECTION 18. Waivers, Non-Exclusive Remedies. No failure on the part
of the Agent to exercise, and no delay in exercising and no course of
dealing with respect to, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by the Agent or
any Secured Party of any right under any Loan Document or any other
document relating to the Secured Obligations owing to such Secured Party
preclude any other or further exercise thereof or the exercise of any other
right. The rights under the Existing Facility Documents and such other
documents are cumulative and are not exclusive of any other remedies
provided by law.
SECTION 19. Successors and Assigns. This Agreement is for the benefit
of the Secured Parties and their successors and assigns, and in the event
of an assignment of all or any of the Secured Obligations, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Agreement shall be binding on the
Borrower and its successors and assigns.
SECTION 20. Changes in Writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by the Borrower and the Agent with the consent
of the Required Banks under each of the Loan Agreement and the RCF
Facility. No such amendment shall by its terms materially adversely affect
the rights of holders of any of the Xxxxx Facility Obligations, the Letter
of Credit Exposure, the Exchange Debt Obligations or the Synthetic
Obligations, in a manner different from its effect on the rights of holders
of any other Secured Obligations, except with the written consent of such
affected holder (or of the requisite majority of the affected holders
specified in the documents governing such affected holders' Secured
Obligations).
SECTION 21. New York Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except
as otherwise required by mandatory provisions of law and except to the
extent that remedies provided by the laws of any jurisdiction other than
New York are governed by the laws of such jurisdiction.
SECTION 22. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in favor of the Agent
and the Secured Parties in order to carry out the intentions of the parties
hereto as nearly as may be possible; and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not
affect the validity or enforceability of such provision in any other
jurisdiction.
SECTION 23. Acceptance of Appointment. Xxxxxx hereby accepts its
appointment as agent for each of the Secured Parties; provided that neither
such appointment or such acceptance shall impose on Xxxxxx any duties other
than the express duties of the Agent hereunder and subject in any case to
the provisions of Section 7 hereof and Article 7 of the Loan Agreement,
which shall be binding on all Secured Parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
RITE AID CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By:
-------------------------------------
Name:
Title:
