Exhibit 10.1
EXECUTION COPY
REFINANCING AMENDMENT NO. 4 dated as of March 3, 2011 (this “Amendment”), relating to the Credit Agreement dated as of June 27, 2001, as amended and restated as of June 5, 2009 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Rite Aid Corporation, a corporation organized under the laws of the State of Delaware (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), Citicorp North America, Inc., as administrative agent and collateral agent (in such capacities, the “Administrative Agent”), and the other agents party thereto.
RECITALS
A. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction specified in Section 1.03 of the Credit Agreement also apply to this Amendment.
B. The Credit Agreement permits the Borrower to obtain from any Lender or Additional Lender Refinancing Indebtedness in respect of any Indebtedness outstanding under the Credit Agreement in the form of Other Term Loans pursuant to a Refinancing Amendment.
C. On the Amendment Effective Date (as defined below), the Borrower intends to incur additional Term Loans pursuant to Section 6.01(c) of the Credit Agreement in an aggregate principal amount of at least $343,000,000 (the “Tranche 5 Term Loans”) to be made available to the Borrower by the lenders signatory hereto (the “Tranche 5 Term Lenders”). The proceeds of the Tranche 5 Term Loans will be used on the Amendment Effective Date (a) to repay all outstanding Tranche 3 Term Loans and accrued interest thereon and (b) to pay fees and expenses incurred in connection with the foregoing.
D. This Amendment is a Refinancing Amendment effected pursuant to Section 6.01(c) of the Credit Agreement.
AGREEMENTS
In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Subsidiary Loan Parties, the Tranche 5 Term Lenders and the Administrative Agent hereby agree as follows:
ARTICLE I
Amendment
SECTION 1.1. Amendment of Credit Agreement. Pursuant to Section 6.01(c) of the Credit Agreement, effective as of the Amendment Effective Date, for all purposes of the Senior Loan Documents, (a) the Tranche 5 Term Commitments (as defined below), the Tranche 5 Term Loans and the Tranche 5 Term Borrowings shall constitute “Other Term Commitments”, “Other Term Loans” and “Other Term Borrowings”, respectively and (b) each Tranche 5 Term
Lender shall become an “Additional Lender” and a “Lender” (if such Tranche 5 Term Lender is not already a Lender prior to the effectiveness of this Amendment). Certain terms of the Tranche 5 Term Loans are set forth in Exhibit A attached hereto.
SECTION 1.2. Tranche 5 Term Commitments. i)Subject to the terms and conditions set forth herein, each Tranche 5 Term Lender agrees to make a Tranche 5 Term Loan to the Borrower on the Amendment Effective Date in a principal amount not exceeding such Tranche 5 Term Lender’s Tranche 5 Term Commitment. Notwithstanding anything to the contrary contained herein (and without affecting any other provision hereof or of the Credit Agreement), the funded portion of each Tranche 5 Term Loan to be made on the Amendment Effective Date (i.e., the amount advanced in cash to the Borrower on the Amendment Effective Date) shall be equal to 99.5% of the principal amount of such Tranche 5 Term Loan (it being agreed that the Borrower shall be obligated to repay 100.0% of the principal amount of each such Tranche 5 Term Loan and interest shall accrue on 100.0% of the principal amount of each such Tranche 5 Term Loan, in each case as provided hereunder and under the Credit Agreement). A Person shall become a Tranche 5 Term Lender and a Lender under the Credit Agreement by executing and delivering to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “Tranche 5 Term Lender”. The “Tranche 5 Term Commitment” of any Tranche 5 Term Lender will be the amount of Tranche 5 Term Loans that such Person commits to make, as set forth on Schedule B hereto. The commitments of the Tranche 5 Term Lenders are several and no Tranche 5 Term Lender shall be responsible for any other Tranche 5 Term Lender’s failure to make Tranche 5 Term Loans.
(b) The obligation of each Tranche 5 Term Lender to make Tranche 5 Term Loans on the Amendment Effective Date is subject to the satisfaction of the following conditions:
(i) After giving effect to the borrowing of the Tranche 5 Term Loans, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the Tranche 5 Term Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Borrower and (ii) Marc Strassler, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the Tranche 5 Term Lenders, and dated the Amendment Effective Date, in substantially the forms thereof delivered in connection with Refinancing Amendment No. 3, dated as of August 19, 2010, modified, however, to address the Tranche 5 Term Loans and this Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory
to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) The Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the Tranche 5 Term Lenders make the Tranche 5 Term Loans to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing of the Tranche 5 Term Loans, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) the aggregate principal amount of Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 1.3. Amendment Effectiveness. The Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which the following conditions have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received duly executed counterparts hereof that, when taken together, bear the signatures of (i) the Borrower, (ii) each Subsidiary Loan Party, (iii) each Tranche 5 Term Lender and (iv) the Administrative Agent. The aggregate amount of Tranche 5 Term Commitments shall not exceed $343,000,000.
(b) The conditions to the making of the Tranche 5 Term Loans set forth in Section 1.2(b) hereof shall have been satisfied.
(c) The principal of and accrued and unpaid interest on all outstanding Tranche 3 Term Loans, in each case as of the Amendment Effective Date, and all amounts owed in respect of the prepayment thereof pursuant to Section 2.16 of the Credit Agreement shall have been (or substantially simultaneously with the effectiveness of this Amendment shall be) paid in full, and the Administrative Agent shall have received evidence reasonably satisfactory to it of such payment.
(d) To the extent invoiced at least two days prior to the Amendment Effective Date, the Administrative Agent shall have received payment or reimbursement of its reasonable out-of-pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
(e) To the extent invoiced at least two days prior to the Amendment Effective Date, CGMI shall have received, for the account of the Tranche 5 Term Lenders, payment of all fees owed to such Tranche 5 Term Lenders by the Borrower on the Amendment Effective Date in connection with this Amendment and the transactions contemplated hereby.
The Administrative Agent shall notify the Borrower, the Tranche 5 Term Lenders and the other Lenders of the Amendment Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment effected hereby shall not become effective, and the obligations of the Tranche 5 Term Lenders hereunder to make Tranche 5 Term Loans will automatically terminate, if each of the conditions set forth or referred to in Sections 1.2(b) and 1.3 hereof has not been satisfied at or prior to 5:00 p.m., New York City time, on March 4, 2011.
ARTICLE II
Miscellaneous
SECTION 2.1. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower represents and warrants to each of the Lenders, including the Tranche 5 Term Lenders, and the Administrative Agent that, as of the Amendment Effective Date and after giving effect to the transactions and amendments to occur on the Amendment Effective Date, this Amendment has been duly authorized, executed and delivered by the Borrower and constitutes, and the Credit Agreement, as amended hereby on the Amendment Effective Date, will constitute, its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 2.2. Effect of Amendment. ii)Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Lenders or the Agents under the Credit
Agreement or any other Senior Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Senior Loan Document, 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 any Loan Party 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 Credit Agreement or any other Senior Loan Document in similar or different circumstances. This Amendment shall apply to and be effective only with respect to the provisions of the Credit Agreement and the other Senior Loan Documents specifically referred to herein.
(b) On and after the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Credit Agreement, “thereunder”, “thereof”, “therein” or words of like import in any other Senior Loan Document, shall be deemed a reference to the Credit Agreement, as amended hereby. This Amendment shall constitute a “Senior Loan Document” for all purposes of the Credit Agreement and the other Senior Loan Documents.
SECTION 2.3. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 2.4. Costs and Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.
SECTION 2.5. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of any executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic imaging means shall be effective as delivery of a manually executed counterpart hereof.
SECTION 2.6. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their officers as of the date first above written.
