Exhibit 10.2
EXECUTION COPY
FIRST AMENDMENT, dated as of September 22, 2004 (this
"Amendment"), to the Amended and Restated Collateral Trust and
Intercreditor Agreement, dated as of June 27, 2001, as amended
and restated as of May 28, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Collateral Trust
and Intercreditor Agreement"), among RITE AID CORPORATION, a
Delaware corporation ("Rite Aid" or the "Borrower"), each
Subsidiary of Rite Aid party thereto or which becomes a party
thereto pursuant to Section 9.11 thereof (each such
Subsidiary, individually, a "Subsidiary Guarantor", and
collectively, the "Subsidiary Guarantors"), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as collateral trustee
(in such capacity, the "Second Priority Collateral Trustee")
for the holders from time to time of the Second Priority Debt
Obligations, CITICORP NORTH AMERICA, INC., a Delaware
corporation ("CNAI"), as senior collateral processing
co-agent, JPMORGAN CHASE BANK, a New York banking corporation
("JPMCB"), as senior collateral processing co-agent (each,
individually in such capacity, a "Senior Collateral Agent",
and collectively, the "Senior Collateral Agents") for the
Senior Secured Parties under the Senior Loan Documents, U.S.
BANK AND TRUST, as trustee under the 12.5% Note Indenture, BNY
MIDWEST TRUST COMPANY, as trustee under the 9.5% Note
Indenture and as trustee under the 8.125% Note Indenture, and
each other Second Priority Representative which becomes a
party thereto pursuant to Section 8.12 thereof.
A. Reference is made to the Senior Credit Agreement, dated as of June
27, 2001, as amended and restated as of August 4, 2003, as further amended and
restated as of September 22, 2004 (as amended, supplemented or otherwise
modified from time to time, the "Senior Credit Agreement"), among Rite Aid, the
lenders party thereto (the "Senior Lenders"), CNAI, as Administrative Agent and
Collateral Processing Co-Agent, and JPMCB, as Syndication Agent and Collateral
Processing Co-Agent.
B. The Borrower has requested that certain provisions of the Collateral
Trust and Intercreditor Agreement be modified as set forth in this Amendment,
and the Majority Senior Parties and the Second Priority Instructing Group are
willing to agree to such modifications as provided for in this Amendment.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, and subject to the conditions set forth herein, the
parties hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings given to them in the Senior Credit Agreement or the
Collateral Trust and Intercreditor Agreement, as amended hereby.
SECTION 2. Amendment to the Collateral Trust and Intercreditor
Agreement. The Definitions Annex referred to in Section 1.02 of the Collateral
Trust and Intercreditor Agreement is hereby amended as follows:
(a) the term "Capital Markets Transaction" is hereby
amended and restated in its entirety to read as follows:
""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 received
by the Borrower or a Subsidiary in respect of and issuance or
incurrence of (A) Indebtedness or Attributable Debt pursuant
to Sections 6.01(a)(v), (vi), (vii), (viii), (xii) or (xiii)
of the Senior Credit Agreement, (B) Refinancing Indebtedness
pursuant to Section 6.01(a)(ii) of the Senior Credit Agreement
or (C) pursuant to a Securitization or a Factoring Transaction
permitted by the Senior Credit Agreement.".
(b) the term "Reduction Event" is hereby amended and
restated in its entirety to read as follows:
""Reduction Event" means each of the following:
(i) any Senior Collateral Disposition or any other
Asset Sale, except in each case any Permitted Disposition or
in connection with any Sale and Leaseback Transaction
permitted under Section 6.01(a)(vii), (xii) or (xiii) of the
Senior Credit Agreement or any Securitization or Factoring
Transaction permitted pursuant to the Senior Credit Agreement;
(ii) any Casualty/Condemnation; and
(iii) any Capital Markets Transaction; provided,
however, that Capital Markets Transactions (or portions
thereof) consummated on or after the Restatement Effective
Date resulting in receipt of initial cumulative Net Cash
Proceeds in the amount of up to $500,000,000 shall not be
deemed to constitute Reduction Events (except to the extent
cumulative Net Cash Proceeds in excess of such amount are
generated by any such Capital Markets Transaction); and
provided further, however,
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that any Capital Markets Transaction or portions thereof the
Net Cash Proceeds of which are required (without regard to
this proviso) to be applied to Reductions pursuant to clause
(i) of the first sentence of Section 2.11(d) of the Senior
Credit Agreement will in any event be deemed to constitute
Reduction Events and will be disregarded for purposes of
calculations when such $500,000,000 limit has been
reached.".
(c) the term "Second Priority Debt" is hereby
amended and restated in its entirety to read as follows:
""Second Priority Debt" means any Indebtedness
(including the 12.5% Notes, 9.5% Notes and 8.125% Notes)
incurred by Rite Aid and Guaranteed by the Subsidiary
Guarantors on or after the Effective Date pursuant to the
Second Priority Subsidiary Guarantee Agreement (i) which is
secured by the Second Priority Collateral on a pari passu
basis with the other Second Priority Debt Obligations and (ii)
if issued on or after the Restatement Effective Date, matures
after December 31, 2009; provided, however, that (A) such
Indebtedness is permitted to be incurred, secured and
Guaranteed on such basis by each Senior Loan Document and each
Second Priority Debt Document and (B) the Representative for
the holders of such Second Priority Debt shall have become
party to the Collateral Trust and Intercreditor Agreement
pursuant to, and by satisfying the conditions set forth in,
Section 8.12 thereof. Second Priority Debt shall include any
Registered Equivalent Notes issued in exchange thereof.".
SECTION 3. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the Collateral
Trust and Intercreditor Agreement are and shall remain in full force and effect.
SECTION 4. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, Rite Aid represents to each of the Majority
Senior Parties and the Second Priority Instructing Group:
(i) after giving effect to this Amendment, the representations and
warranties of the Borrower set forth in Article III of the Senior Credit
Agreement are true and correct in all material respects on the date hereof with
the same effect as if made on the Effective Date (as defined below), except for
representations and warranties that expressly relate to an earlier date, which
representations and warranties were true and correct in all material respects as
of such earlier date;
(ii) after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing under the Senior Credit Agreement; and
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(iii) this Amendment has been duly executed and delivered by Rite Aid
and constitutes a legal, valid and binding obligation of Rite Aid, enforceable
in accordance with its terms.
SECTION 5. Effectiveness. This Amendment shall become effective as of
the date (the "Effective Date") upon which the Senior Collateral Agent shall
have received counterparts of this Amendment that, when taken together, bear the
signatures of Rite Aid and the Majority Senior Parties and the Second Priority
Instructing Group under the Collateral Trust and Intercreditor Agreement.
SECTION 6. Effect of the Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, amend, or otherwise affect the rights and remedies of
either the Majority Senior Parties or the Senior Collateral Agents under the
Collateral Trust and Intercreditor Agreement and shall not alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Collateral Trust and Intercreditor Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle Rite Aid to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Collateral
Trust and Intercreditor Agreement in similar or different circumstances. This
Amendment shall apply and be effective with respect to the matters expressly
referred to herein. After the Effective Date, any reference to the Collateral
Trust and Intercreditor Agreement shall mean such Collateral Trust and
Intercreditor Agreement, as modified hereby.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Costs and Expenses. Rite Aid agrees to reimburse the Senior
Collateral Agents for its reasonable out-of-pocket expenses in connection with
this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Xxxxx LLP, counsel for the Senior Collateral Agents.
SECTION 9. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
RITE AID CORPORATION
by:
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Name:
Title:
THE SUBSIDIARY GUARANTORS LISTED ON ANNEX 1 HERETO
by:
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Name:
Title:
THRIFTY PAYLESS, INC.
by:
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Name:
Title:
CITICORP NORTH AMERICA, INC., as Senior
Collateral Agent
by:
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Name:
Title:
JPMORGAN CHASE BANK, as Senior Collateral Agent
by:
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Name:
Title:
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BNY MIDWEST TRUST COMPANY, as as Trustee under
the 9.5% Note Indenture
by:
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Name:
Title:
BNY MIDWEST TRUST COMPANY, as as Trustee under the
8.125% Note Indenture
by:
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Name:
Title:
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ANNEX 1 - SUBSIDIARY GUARANTORS