NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the Securities to the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles (whether or not such is indicated herein), and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted as consistently applied by the Company at the date of such computation;
(d) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(e) references to any agreement include any and all amendments, modifications or supplements, entered into from time to time.
"Act", when used with respect to any Holder, has the meaning specified in Section 1.04.
"Additional Second Priority Debt" means any indebtedness incurred by Rite Aid and guaranteed by the Subsidiary Guarantors after June 27, 2001, pursuant to the Second Priority Subsidiary Guarantee Agreement which is secured by the Second Priority Collateral on a pari passu basis with the other Second Priority Debt Obligations; provided, however, that (i) such indebtedness is permitted to be incurred, secured and guaranteed on such basis by each Senior Debt Document and each Second Priority Debt Document, (ii) the aggregate amount of such Additional Second Priority Debt does not exceed $300,000,000 at any time outstanding (it being understood that any amounts incurred in excess of such amount will not at any time qualify as Additional Second Priority Debt) and (iii) the Representative for the holders of such Additional Second Priority Debt shall have become party to the Intercreditor Agreement pursuant to, and by satisfying the conditions set forth in, Section 10.12 of the Intercreditor Agreement. Additional Second Priority Debt shall include any Registered Equivalent Notes issued in exchange for Additional Second Priority Debt initially sold in a Rule 144A or other private placement transaction. Additional Second Priority Debt includes the Securities.
"Additional Second Priority Debt Documents" means, with respect to any series, issue or class of Additional Second Priority Debt, the promissory notes, indentures or other operative agreements evidencing or governing such indebtedness, as furnished pursuant to Section 10.12 of the Intercreditor Agreement.
"Additional Second Priority Debt Facility" means the indenture or other governing agreement with respect to any Additional Second Priority Debt.
"Additional Second Priority Debt Obligations" means, with respect to any series, issue or class of Additional Second Priority Debt, (i) all principal of and interest (including without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company, whether or not allowed or allowable as a claim in any such proceeding) on such Additional Second Priority Debt, (ii) all other amounts payable by the Company to the related Additional Second Priority Debt Parties under the related Additional Second Priority Debt Documents and (iii) any renewals or extensions of the foregoing.
"Additional Second Priority Debt Parties" means, with respect to any series, issue or class of Additional Second Priority Debt, the holders of such indebtedness, any trustee or agent therefor under any related Additional Second Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken by Rite Aid or any Obligor under any related Additional Second Priority Debt Documents, but shall not include the Obligors or any controlled Affiliates thereof.
"Additional Senior Second Priority Debt" means any indebtedness incurred by Rite Aid and guaranteed by the Subsidiary Guarantors pursuant to the Second Priority Subsidiary Guarantee Agreement after June 27, 2001 which is secured by the Second Priority Collateral on a pari passu basis with the Synthetic Lease Obligations; provided, however, that (i) such indebtedness is permitted to be incurred, secured and guaranteed on such basis by each Senior Debt Document and each Second Priority Debt Document, (ii) the aggregate amount of such Additional Senior Second Priority Debt does not exceed $93,000,000 at any time outstanding (it being understood that any amounts incurred in excess of such amount will not at any time qualify as Additional Senior Second Priority Debt) and (iii) the Representative for the holders of such Additional Senior Second Priority Debt shall have become party to the Intercreditor Agreement pursuant to, and by satisfying the conditions set forth in, Section 10.12 of the Intercreditor Agreement. Additional Senior Second Priority Debt shall include any Registered Equivalent Notes issued in exchange for Additional Senior Second Priority Debt initially sold in a Rule 144A or other private placement transaction.
"Additional Senior Second Priority Debt Documents" means, with respect to any series, issue or class of Additional Senior Second Priority Debt, the promissory notes, indentures or other operative agreements evidencing or governing such indebtedness, as furnished pursuant to Section 10.12 of the Intercreditor Agreement.
"Additional Senior Second Priority Debt Facility" means the indenture or other governing agreement with respect to any Additional Senior Second Priority Debt.
"Additional Senior Second Priority Debt Obligations" means, with respect to any series, issue or class of Additional Senior Second Priority Debt, (i) all principal of and interest (including without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company, whether or not allowed or allowable as a claim in any such proceeding) on such Additional Senior Second Priority Debt, (ii) all other amounts payable by the Company to the related Additional Senior Second Priority Debt Parties under the related Additional Senior Second Priority Debt Documents and (iii) any renewals or extensions of the foregoing.
"Additional Senior Second Priority Debt Parties" means, with respect to any series, issue or class of Additional Senior Second Priority Debt, the holders of such indebtedness, any trustee or agent therefore under any related Additional Senior Second Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken by Rite Aid or any Obligor under any related Additional Senior Second Priority Debt Documents, but shall not include the Obligors or any controlled Affiliates thereof.
"Affiliate" of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security to the extent applicable to such transaction and as in effect at the time of such transfer or transaction.
"Attributable Debt" means, as to any particular Sale and Leaseback Transaction under which the Company or any Restricted Subsidiary is at the time liable, at any date as of which the amount thereof is to be determined (i) in the case of any such transaction involving a Capital Lease, the amount on such date of the Capital Lease Obligation thereunder, or (ii) in the case of any other such Sale and Leaseback Transaction, the then present value of the minimum rental obligation under such transaction during the remaining term thereof (after giving effect to any extensions at the option of the lessor) computed by discounting the respective rental payments at the actual interest factor included in such payment, or, if such interest factor included in such payment, or, if such interest factor cannot be readily determined, at the rate per annum equal to the rate of interest on the Securities. The amount of any rental payment required to be made under any such Sale and Leaseback Transaction not involving a Capital Lease may exclude amounts required to be paid by the lessee on account of maintenance and repairs, insurance, taxes, assessments, utilities, operating and labor costs and similar charges.
"Bankruptcy Proceeding" means any proceeding under Title 11 of the U.S. Code or any other Federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.
"Base Rate Borrowings" has the meaning set forth in the Senior Credit Facility.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in The City of New York, New York or Chicago, Illinois are authorized or obligated by law, regulation, executive order or governmental decree to close.
"Capital Lease" means any lease of property which, in accordance with generally accepted accounting principles, should be capitalized on the lessee's balance sheet; and "Capital Lease Obligation" means the amount of the liability so capitalized or disclosed (or which should be so disclosed) in a note in respect of a Capital Lease.
"Capital Stock" means, with respect to any Person, any shares or other equivalents (however designated) of any class of corporate stock or partnership interests or any other participations, rights, warrants, options or other interests in the nature of an equity interest in such Person, including preferred stock, but excluding any debt security convertible or exchangeable into such equity interest.
"Casualty/Condemnation" means any action or proceeding for the taking of any assets of the Company or its Subsidiaries, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any similar public improvement or condemnation proceeding.
"Co-Lead Counsel" means David J. Bershad of Milberg Weiss Bershad Hynes & Lerach LLP and Sherrie R. Savett of Berger & Montague, P.C.
"Collateral" means the Senior Collateral and the Second Priority Collateral.
"Collateral Documents" means (a) the Senior Collateral Documents and (b) the Second Priority Collateral Documents.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter "Company" shall mean such successor Person.
"Company Representative" means Salomon Smith Barney, or such other nationally recognized investment banking firm as the Company shall select in lieu thereof.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee.
"Consolidated Funded Debt" means the total of all outstanding Funded Debt of the Company and its Restricted Subsidiaries, determined on a consolidated basis in accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means (a) the total amount of assets (less applicable reserves and other properly deductible items) which under generally accepted accounting principles would be included on a consolidated balance sheet of the Company and its Restricted Subsidiaries after deducting therefrom (i) all liabilities and liability items, including amounts in respect of obligations or guarantees of obligations under leases, which under generally accepted accounting principles would be included on such balance sheet, except Funded Debt, capital stock and surplus, surplus reserves and provisions for deferred income taxes, and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, which in each case under generally accepted accounting principles would be included on such consolidated balance sheet, less (b) the amount which would be so included on such consolidated balance sheet for Investments (less applicable reserves) (i) made in Unrestricted Subsidiaries or (ii) made in corporations while they were Unrestricted Subsidiaries but which at the time of computation are not Subsidiaries of the Company.
"Corporate Trust Office" means the principal corporate trust office of the Trustee in the City of Chicago, Illinois, at which at any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, limited liability company, joint-stock company, partnership or business trust.
"Default" means any event which is, or after notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Depositary" means, with respect to any Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Securities (or any successor securities clearing agency so registered).
"DTC" means The Depository Trust Company, a New York corporation.
"Escrow Agent" means First Union National Bank, pursuant to the Escrow Agreement.
"Escrow Agreement" means that certain escrow agreement dated as of the date hereof by and among the Company, Ballard Spahr Ingersoll & Andrews, LLP, as counsel for the Company, the Co-Lead Counsel, on behalf of the Class and Class Members (as such terms are defined in the Settlement and Class Stipulation), and the Escrow Agent.
"Euro-Dollar Borrowings" has the meaning set forth in the Senior Credit Facility.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be amended and any successor act thereto.
"Exchange Note Documents" means the Exchange Notes, the Exchange Notes Indenture, and the Exchange Notes Registration Rights Agreement.
"Exchange Note Obligations" means (i) all principal of and interest (including, without limitation, any interest which accrues after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company, whether or not allowed or allowable as a claim in any such proceeding) on the Exchange Notes,
(ii) all other amounts payable by the Company to the Exchange Note Parties under the Exchange Note Documents, and (iii) any renewals and extensions of the foregoing.
"Exchange Note Parties" means the holders of the Exchange Notes, the Trustee and the beneficiaries of each indemnification obligation undertaken by the Company or any other Obligor under any Exchange Note Document but shall not include the Obligors or any controlled Affiliate thereof.
"Exchange Notes" means the 12.5% Senior Secured Notes due 2006 issued pursuant to the Exchange Notes Indenture on June 27, 2001 and any Registered Equivalent Notes issued in exchange therefor.
"Exchange Notes Indenture" means the Indenture dated as of June 27, 2001, among Rite Aid, the Subsidiary Guarantors and State Street Bank and Trust Company, as trustee, relating to the Exchange Notes.
"Exchange Notes Registration Rights Agreement" means the Exchange and Registration Rights Agreement, dated as of June 27, 2001, among the Company, each of the Subsidiary Guarantors and the holders from time to time of the Exchange Notes as provided therein, as such agreement may be amended from time to time.
"Finality Date" means the date when (i) entry of final judgment in relation to each of the proceedings comprising the Litigation; and
(ii) the expiration of any time for appeal or review of such order and final judgment, or, if any appeal is filed and not dismissed, after such order and final judgment is upheld on appeal in all material respects and is no longer subject to review upon appeal or review by writ of certiorari.
"Funded Debt" means any indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed, whether secured or unsecured, maturing more than one year after the date of determination thereof and any indebtedness, regardless of its term, renewable pursuant to the terms thereof or of a revolving credit or similar agreement effective for more than one year after the date of the creation of the indebtedness, which would, in accordance with generally accepted accounting practice, be classified as funded debt but shall not include:
(a) any indebtedness for the payment, redemption or satisfaction of which money (or evidences of indebtedness, if permitted under the instrument creating such indebtedness) in the necessary amount shall have been deposited in trust with the Trustee or proper depository either at or before maturity or redemption date thereof; or
(b) guarantees arising in connection with the sale, discount, guarantee or pledge of Securities, chattel mortgages, leases, accounts receivable, trade acceptances and other paper arising, in the ordinary course of business, out of installment or conditional sales to or by, or transactions involving title retention with, distributors, dealers or other customers of merchandise, equipment or services or guarantees other than guarantees of indebtedness for borrowed money; or
(c) any liability resulting from the capitalization of lease rentals.
"Global Security" means a Security that is registered in the Security Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the Security Register. Prior to the Release Date, the Escrow Agent will be the only Holder of the Securities.
"Indebtedness" means (i) all items of indebtedness or liability (except capital and surplus) which in accordance with generally accepted accounting principles would be included in determining total liabilities as shown on the liability side of a balance sheet as at the date as of which indebtedness is to be determined, (ii) indebtedness secured by any Mortgage existing on property owned subject to such Mortgage, whether or not the indebtedness secured thereby shall have been assumed, and (iii) guarantees, endorsements (other than for purposes of collection) and other contingent obligations in respect of, or to purchase or otherwise acquire, indebtedness of others, unless the amount thereof is included in indebtedness under the preceding clauses (i) or (ii); provided, however, that any obligations or guarantees of such obligations or guarantees of obligations in respect of lease rentals, whether or not such obligations or guarantees of obligations would be included as liabilities on a consolidated balance sheet of the Company and its Restricted Subsidiaries, shall not be included in indebtedness.
"Independent Financial Advisor" means Marty Wittman of MJ Wittman & Co.; provided, however, if Mr. Wittman is unable or unwilling to serve as Independent Financial Advisor, the Independent Financial Advisor will be the Independent Financial Advisor Candidate chosen by the mutual agreement of the Reset Agents.
"Independent Financial Advisor Candidate" means each of Harold Tanner of Tanner & Co. Inc., Charles Clough and Goldman Sachs & Company.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
"Initial Floating Interest Rate" for any month means the per annum rate equal to the sum of (i) the average per annum rate for Euro-Dollar Borrowings made under the Senior Credit Facility for such month, plus (ii) 375 basis points; provided, however, for any month that the Company has no Euro-Dollar Borrowings, the Initial Floating Interest Rate for that month shall be (i) the average per annum rate for Base Rate Borrowings made under the Senior Credit Facility for such month, plus (ii) 375 basis points.
"Intercreditor Agreement" means the Collateral Trust and Intercreditor Agreement, dated as of June 27, 2001, among the Company, the Subsidiary Guarantors, the Second Priority Collateral Trustee, the Senior Collateral Agent, State Street Bank and Trust Company, as trustee under the Company's 10.50% Senior Secured Notes due 2002, Wells Fargo Bank Northwest, National Association, as collateral agent for the Synthetic Lease Parties under the Synthetic Lease Documents, the Trustee and each Second Priority Representative.
"Interest Payment Date" has the meaning set forth in Section 2.02. |
