EXECUTION COPY
SECOND AMENDMENT, dated as of September 30, 2005 (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, N.A., a national
banking association ("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, as trustee under
the 8.125% Note Indenture and as trustee under the 7.5% 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 September 30, 2005 (as amended, restated,
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 (including the Definitions Annex
annexed thereto) 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 terms "11.25% Senior Notes" and "Unsecured Note Indenture" are
hereby deleted in their entirety.
(b) the term "Basket Asset Sale" is hereby amended by replacing the
amount "$75,000,000" in the eighth line thereof with the amount
"$125,000,000".
(c) the term "Effective Date Indentures" is hereby amended and
restated in its entirety to read as follows:
""Effective Date Indentures" mean, collectively, (a) the
Indenture dated as of December 21, 1998, between Rite Aid and ▇▇▇▇▇▇
Trust and Savings Bank, as trustee and (b) the Indenture dated as of
August 1, 1993, between Rite Aid and ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as trustee.".
(d) the term "Majority Senior Parties" is hereby amended and restated
in its entirety to read as follows:
""Majority Senior Parties" means the Required Lenders (as defined
in the Senior Credit Agreement), or with respect to any waiver,
amendment or request, Senior Lenders having such amount of unused
Revolving Commitments and Revolving Exposure as may be required under
the Senior Credit Agreement to approve the same.".
(e) 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)
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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).".
(f) 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, 8.125% Notes and 7.5% 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 (other than as provided by the terms of the
applicable Second Priority Debt Documents) with the other Second
Priority Debt Obligations and (ii) if issued on or after the
Restatement Effective Date, matures after December 31, 2010; 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.".
(g) the term "Senior Credit Agreement" is hereby amended and restated
in its entirety to read as follows:
""Senior Credit Agreement" means the Amended and Restated Senior
Credit Agreement, dated as of June 27, 2001, as amended and restated
as of September 30, 2005 and as may be further amended, restated or
otherwise modified from time to time, among Rite Aid, the Senior
Lenders and Citicorp North America, Inc., as administrative agent and
as Senior Collateral Agents for the Senior Lenders.".
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(h) the terms "7.5% Notes" and "7.5% Note Indenture" are hereby
inserted into the Definitions Annex after the term "Senior Subsidiary
Security Agreement" and to read as follows:
""7.5% Notes" means the 7.5% Senior Secured Notes of the Borrower
due 2015 issued pursuant to the 7.5% Note Indenture and any Registered
Equivalent Notes issued in exchange therefor.
"7.5% Note Indenture" means the Indenture dated as of January 11,
2005 among Rite Aid, the Subsidiary Guarantors and BNY Midwest Trust
Company, as trustee, relating to the 7.5% Notes.".
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
(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 Agents 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,
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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 & ▇▇▇▇▇ 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:
--------------------------------------
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, N.A., as Senior Collateral
Agent
by:
--------------------------------------
Name:
Title:
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BNY MIDWEST TRUST COMPANY, as Trustee under the
9.5% Note Indenture,
by:
--------------------------------------
Name:
Title:
BNY MIDWEST TRUST COMPANY, as Trustee under the
8.125% Note Indenture,
by:
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Name:
Title:
BNY MIDWEST TRUST COMPANY, as Trustee under the
7.5% Note Indenture,
by:
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Name:
Title:
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ANNEX 1 - SUBSIDIARY GUARANTORS