Exhibit 10.20
EXECUTION
AMENDMENT NO. 5
Dated as of June 12, 2000
to
MASTER LEASE AND SECURITY AGREEMENT
between
Rite Aid Realty Corp.
and
Sumitomo Bank Leasing and Finance, Inc.
AMENDMENT NO. 5 TO MASTER LEASE AND SECURITY AGREEMENT, dated as
of June 12, 2000 ("Amendment No. 5"), between SUMITOMO BANK LEASING AND
FINANCE, INC., a Delaware corporation, 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 May 30, 1997, as amended by
Amendment No. 1, dated as of March 11, 1998, and as further amended by
Amendment No. 2, dated as of June 22, 1998, and as further amended by
Amendment No. 3, dated as of May 26, 1999 and as further amended by
Amendment No. 4, dated as of October 25, 1999 (as so amended, the "Lease");
WHEREAS, the Rite Aid Corporation (the "Guarantor") and the Lessor
entered into a Guaranty, dated as of May 30, 1997, as amended by Amendment
No. 1 dated as of October 25, 1999 ("Amendment No. 1") and as further
amended by Amendment No. 2 dated as of December 2, 1999 and as further
amended by Amendment No. 3 dated as of February 28, 2000 and as further
amended by Amendment No. 4 dated as of the date hereof (as so amended, the
"Guaranty"); and
WHEREAS, Lessor and Lessee wish to amend further the Lease as
hereinafter provided, and each of the parties hereto agrees to the terms of
this Amendment No. 5 to Master Lease and Security Agreement;
NOW, THEREFORE, Lessor and Lessee hereby agree as follows:
Section 1. Amendments to the Lease.
Appendix 2 to the Lease is hereby amended by deleting the tables
and related provisions set forth under the headings "Determination of
Lessor Applicable Margin and Liquidity Applicable Margin", respectively,
and inserting in lieu thereof the following:
"The Liquidity Applicable Margin" means the sum of (i) 3.75% plus
(ii) at any date on or after November 1, 2000, 0.50% unless the Reduction
Condition has been met on or prior to such date.
"The Lessor Applicable Margin" means the sum of (i) 4.75% plus
(ii) at any date on or after November 1, 2000, 0.50% unless the Reduction
Condition has been met on or prior to such date.
"Reduction Condition" shall have the meaning given to such term in
Annex A to the Guaranty.
Section 2. Representations and Warranties. The Lessee represents
and warrants to the Lessor, Collateral Agent and the other Secured Parties
that:
(a) The execution, delivery and performance of this Amendment No.
4 and any related documents executed in connection with this Amendment No.
4, including, without limitation, Amendment No. 5 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 or
thereto (collectively, the "Amendment Documents") and the performance of
the Lease and the Guaranty, as amended by the Amendment Documents, have
been duly authorized by all necessary action of the Lessee and the
Guarantor. The Lessee and the Guarantor have duly executed and delivered
each Amendment Document to which it is a party. Each Amendment Document and
the Lease and the Guaranty, as amended by the Amendment Documents,
constitutes a legal, valid and binding obligation of the Lessee and the
Guarantor, as the case may be, 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, (ii) with
respect to each representation set forth in Section 6.2(h) of the Lease,
such representation is true and correct on and as of the date hereof,
subject to the disclosure set forth in the Initial Financial Statements (as
defined in Annex A to the Guaranty) for the period on or before May 27,
2000 and (iii) in lieu of the representation set forth in Section 6.2(d) of
the Lease, the Lessee hereby represents and warrants to the Lessor and each
Lender that on and as of the date hereof, there has been (x) no development
in any Existing Litigation after April 10, 2000 and (y) no litigation or
administrative proceeding that in case of either clause (x) or (y), could
reasonably be expected to have a Material Adverse Effect, and that on and
as of the date hereof, there has been no development in any Existing
Litigation after April 10, 2000, and there has been no litigation or
administrative proceeding that could, in the Required Participants' sole
judgment, impair the validity, enforceability or priority of the security
interests granted in favor of the Lenders under the Operative Documents,
the Pledge Agreements (as defined in Annex A to the Guaranty) or the Second
Priority Collateral Documents (as defined in Annex A to the Guaranty); 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 3. Conditions Precedent. As a condition precedent to the
effectiveness of this Amendment No. 5, 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. 5; (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 each of the Second Priority
Collateral Documents (as such term is defined in Annex A to the Guaranty)
showing a lien in favor of the trustee named therein for the ratable
benefit of the Collateral Agent and the Secured Parties under the
Intercreditor Agreement;
(c) a fully executed counterpart of each amendment to the PCS
Pledge Agreement and the Drugstore.com Pledge Agreement (as such terms are
defined in Annex A to the Guaranty);
(d) a fully executed copy of the RCF Facility dated as of the date
hereof among the Guarantor, the banks parties thereto and Morgan Guaranty
Trust Company of New York, certified as true, correct and complete by a
Responsible Officer of the Guarantor;
(e) any and all fees payable to the Lessor, the Liquidity
Providers and the Liquidity Agent in connection with this Amendment No. 5,
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;
(f) certificates from the Secretary of State of the State of
Delaware evidencing the good standing each of the Lessee and the Guarantor;
(g) 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;
(h) a certificate from the Secretary or an Assistant Secretary of
the Guarantor certifying (i) as to the incumbency and signature of the
officer of the Guarantor to execute and deliver the Amendment Documents to
which it is a party, (ii) that the charter and by-laws of the Guarantor 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 Guarantor authorizing the execution, delivery and performance of the
Amendment Documents, the performance of the Guaranty, as amended by the
Amendment Documents, and the transactions contemplated thereby;
(i) a certificate from a Responsible Officer of the Lessee,
certifying that, to the best knowledge of such officer, the representation
and warranty made by the Lessee pursuant to Section 2(b) hereof is 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;
(j) a certificate from a Responsible Officer of the Guarantor,
certifying that, to the best knowledge of such officer, the representations
and warranties contained in Section 4 of Amendment No. 4 to the Guaranty
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 Guaranty, as amended by the Amendment Documents;
(k) 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
(l) Such other documents, instruments certificates and information
as the Liquidity Agent on behalf of itself and/or the other Required
Participants may request.
Section 4. Counterparts. This Amendment No. 5 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. 5.
Section 5. Governing Law. THIS AMENDMENT NO. 5 SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 6. Continuing Effect. Except 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 5 to be duly executed as of the date first above written.
RITE AID REALTY CORP.,
By:________________________
Name:
Title:
SUMITOMO BANK LEASING AND FINANCE,
INC.,
By:___________________________
Name:
Title:
The undersigned hereby acknowledge and consent
to the foregoing Amendment No. 5:
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By: _________________________________
RITE AID CORPORATION
By: _________________________________
SUMITOMO BANK LEASING & FINANCE, INC.
By: _________________________________
BANK OF AMERICA, N.A.
By: _________________________________
Amendment No. 5 to Master Lease and Security Agreement (SBLF TOOL)
