Exhibit 4.12
AMENDMENT NO. 2
Dated as of October 25, 1999
to
MASTER LEASE AND SECURITY AGREEMENT
between
Rite Aid Realty Corp.
and
RAC Leasing LLC
Amendment No. 2, dated as of October 25, 1999 ("Amendment No. 2"),
between RAC Leasing LLC, a Wyoming limited liability company, as lessor
("Lessor"), and Rite Aid Realty Corp., a Delaware corporation, as lessee
("Lessee"), amending the Lease referred to below.
WHEREAS, Lessor and Lessee have heretofore entered into a Master
Lease and Security Agreement, dated as of March 19, 1998, (as amended by
Amendment No. 1, dated as of June 22, 1998, the "Lease"); and
WHEREAS, Lessor and Lessee wish to further amend the Lease as
hereinafter provided;
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
Section 1. Amendments to the Lease.
(a) Appendix 2 to the Lease is hereby amended by deleting the
reference to 0.125% in Paragraph (i) of Section (A) thereof and inserting
in lieu thereof "0.450%".
(b) Appendix 2 to the Lease is hereby further amended by deleting the
tables set forth under the headings "Determination of Lessor Applicable
Margin and Liquidity Applicable Margin" and "Determination of Lessor
Commitment Fee and Liquidity Commitment Fee", respectively, and inserting
in lieu thereof the following:
[TABLES OMITTED]
Section 3. Representations and Warranties. The Lessee
represents and warrants to the Liquidity Agent that:
(a) The execution, delivery and performance of this Amendment
No. 2 and any related documents executed in connection with this Amendment
No. 2, including, without limitation, Amendment No. 2 to the Guaranty,
dated as of the date hereof, from the Guarantor to the Lessor (the
"Amendment to Guaranty") and any documents and certificates furnished
pursuant hereto (collectively, the "Amendment Documents") and the
performance of the Lease, as amended by the Amendment Documents, have been
duly authorized by all necessary action of the Lessee. The Amendment
Documents have been duly executed and delivered by the Lessee and each
Amendment Document and the Lease, as amended by the Amendment
Documents, constitutes a legal, valid and binding obligation of the Lessee,
enforceable according to its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(b) The representations and warranties made under Section 6.2
of the Lease are true and correct with the same force and effect as though
made on and as of the date hereof and after giving effect to the Amendment
Documents, except (i) to the extent that such representations and
warranties expressly relate to an earlier date such representations and
warranties were true and correct on and as of such earlier date and (ii)
with respect to the representation set forth in Section 6.2(d) of the
Lease, such representation is true and correct on and as of the date hereof
as if made on and as of the date hereof except to the extent set forth in
the Guarantor's 1999 Annual Report on Form 10-K for the fiscal year ended
February 27, 1999; and
(c) No Default or Event of Default has occurred and is
continuing, or will result from the execution, delivery or performance of
the Amendment Documents, the performance of the Lease, as amended by the
Amendment Documents, or the consummation of the transactions contemplated
hereby.
Section 4. Conditions Precedent. As a condition precedent to the
effectiveness of this Amendment No. 2, the Liquidity Agent shall have
received the following items in form and substance satisfactory to it:
(a) fully executed counterparts of (i) this Amendment No. 2;
(ii) Amendment to Guaranty and (iii) the Fee Agreement, dated as of the
date hereof, between the Lessee and the Liquidity Agent (the "Fee
Agreement");
(b) a fully executed counterpart of the PCS Pledge Agreement
and the ▇▇▇▇▇▇▇▇▇.▇▇▇ Pledge Agreement (as such terms are defined in the
Credit Agreement) showing a lien for the benefit of the Collateral Agent
and the Secured Parties under the Intercreditor Agreement.
(c) any and all fees payable to the Lessor, the Liquidity
Providers and the Liquidity Agent in connection with this Amendment No. 2,
including, without limitation, the fees payable under the Fee Agreement,
together with all costs and expenses incurred by the Liquidity Agent in
connection with the preparation, execution and delivery of the Amendment
Documents;
(d) certificates from the Secretary of State of the State of
Delaware evidencing the good standing each of the Lessee and the Guarantor;
(e) a certificate from the Secretary or an Assistant Secretary of
the Lessee certifying (i) as to the incumbency and signature of the officer of
the Lessee to execute and deliver the Amendment Documents to which it is a
party, (ii) that the charter and by-laws of the Lessee are in full force
and effect and have not been amended or modified since the date last
delivered to the Liquidity Agent, and (iii) that attached thereto is a true
and complete copy of the resolutions of the Boards of Directors of the
Lessee authorizing the execution, delivery and performance of the Amendment
Documents, the performance of the Lease, as amended by the Amendment
Documents, and the transactions contemplated thereby, together with a
certification by another officer of the Lessee as to the incumbency and
signature of such Secretary or Assistant Secretary;
(f) a certificate from a Responsible Officer of the Lessee,
certifying that, to the best knowledge of such officer, the representations
and warranties contained in Section 6.2 of the Lease are true and correct
on and as of the date of such certificate and after giving effect to the
Amendment Documents and that no Default or Event of Default has occurred or
is continuing or would result from the execution, delivery and performance
of the Amendment Documents or the performance of the Lease, as amended by
the Amendment Documents;
(g) a legal opinion addressed to the Liquidity Agent from the
outside or General Counsel to the Lessee and the Guarantor as to the due
authorization, execution and binding effect of the Amendment Documents, and
the Lease and the Guaranty, as amended by the Amendment Documents, in form
and substance satisfactory to the Liquidity Agent and its counsel; and
(h) Such other documents, instruments certificates and
information as the Liquidity Agent on behalf of itself and/or the other
Required Participants may request.
Section 5. Counterparts. This Amendment No. 2 may be executed
in several counterparts, each of which when executed and delivered shall be
deemed an original and all of which counterparts, taken together, shall
constitute but one and the same Amendment No. 2.
Section 6. Governing LaTHIS AMENDMENT NO. 2 SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
Section 7. Continuing EExcept as herein provided, all provisions,
terms and conditions of the Lease shall remain in full force and effect. As
amended hereby, the Lease is ratified and confirmed in all respects.
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on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed as of the date first above written.
RITE AID REALTY CORP.,
as Lessee
By:__________________________________
Name:
Title:
RAC LEASING LLC, as Lessor
By: The Diversified Group
Incorporated,
Manager
By:__________________________________
Name:
Title:
