EXECUTION COPY
SECOND PRIORITY SUBSIDIARY SECURITY AGREEMENT
SECOND PRIORITY SUBSIDIARY SECURITY AGREEMENT, dated
as of June 27, 2001, made by the SUBSIDIARY GUARANTORS
identified on the signature pages hereto and any other person
that becomes a Subsidiary Guarantor pursuant to the Senior
Credit Facility (as such term is defined below) (the
"Grantors"), in favor of WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as collateral trustee (in such capacity,
the "Second Priority Collateral Trustee") for the Second
Priority Debt Parties.
Each of the Subsidiary Guarantors has agreed to guarantee, among other
things, all the obligations of the Borrower under the Second Priority Debt
Documents. It is a condition precedent, among other conditions, to the
effectiveness of the Second Priority Debt Documents that the Grantors execute
and deliver an agreement in the form hereof to secure the Second Priority Debt
Obligations, which shall include any Additional Senior Second Priority Debt
Obligation, Additional Second Priority Debt Obligation, Replacement Senior
Second Priority Debt Obligation or Replacement Second Priority Debt Obligation
to the extent that such debt is Additional Senior Second Priority Debt,
Additional Second Priority Debt, Replacement Senior Second Priority Debt or
Replacement Second Priority Debt, respectively, pursuant to Section 10.12 of the
Collateral Trust and Intercreditor Agreement.
Accordingly, the Grantors and the Second Priority Collateral Trustee,
on behalf of itself and each Second Priority Debt Party (and each of their
respective successors or assigns), hereby agree as follows:
SECTION 1. Defined Terms.
SECTION 1.01. Definitions. (a) Unless otherwise defined herein, terms
used herein shall have the meanings given in the Definitions Annex annexed
hereto, or if not defined therein as defined in or by reference to the Second
Priority Debt Documents. All terms defined in the New York UCC (as defined
herein) and not defined in this Agreement have the meanings specified therein.
(b) The following terms shall have the following meanings:
"Account Debtor" means any person who is or may become obligated to any
Grantor with respect to or on account of an Account.
"Accounts" includes the right to payment of a monetary obligation,
whether or not earned by performance, (i) for property that has been or is to be
sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services
rendered or to be rendered, (iii) for a policy of insurance issued or to be
issued, (iv) for a secondary obligation incurred or to be incurred, (v) for
energy provided or to be provided, (vi) for the use or hire of a vessel under a
charter or other contract, (vii) arising out of the use of a credit or charge
card or information contained on or for use with the card, or (viii) as winnings
in a lottery or other game of chance operated or sponsored by a State,
governmental unit of a State, or person licensed or authorized to operate the
game by a State or governmental unit of a State. The term includes
health-care-insurance receivables. The term does not include (i) rights to
payment evidenced by chattel paper or an instrument, (ii) commercial tort
claims, (iii) deposit accounts, (iv) investment property, (v) letter-of-credit
rights or letters of credit, or (vi) rights to payment for money or funds
advanced or sold, other than rights arising out of the use of a credit or charge
card or information contained on or for use with the card.
"Accounts Receivable" means with respect to each Grantor, all right,
title and interest of such Grantor to Accounts and all of its right, title and
interest in any returned goods, together with all rights, titles, securities and
guaranties with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary in each case whether due or become
due, whether now or hereafter arising in the future.
"Agreement" means this Second Priority Subsidiary Security Agreement,
as the same may be amended, modified or otherwise supplemented from time to
time.
"Contracts" means with respect to each Grantor, all rights of such
Grantor under all contracts and agreements to which such Grantor is a party or
under which such Grantor has any right, title or interest or to which such
Grantor or any property of such Grantor is subject, as the same may from time to
time be amended, supplemented or otherwise modified, including, without
limitation, (a) all rights of such Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (b) all rights of such Grantor
to damages arising out of, or for, breach or default in respect thereof and (c)
all rights of such Grantor to exercise all remedies thereunder.
"Copyright License" means any written agreement, now or hereafter in
effect, granting any right to any third party under any copyright now or
hereafter owned by any Grantor or that such Grantor otherwise has the right to
license, or granting any right to any Grantor under any copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
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"Copyrights" means all of the following now owned or hereafter acquired
by any Grantor: (a) all copyright rights in any work subject to the copyright
laws of the United States or any other country, whether as author, assignee,
transferee or otherwise, and (b) all registrations and applications for
registration of any such copyright in the United States or any other country,
including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office, including
those listed on Schedule 4.
"Deposit Account" means, collectively, (a) the Lockbox Account and (b)
the Government Lockbox Account, as well as any demand, time, savings, passbook,
or similar account maintained with a bank. The term does not include investment
property or accounts evidenced by an instrument.
"Documents" means with respect to each Grantor, all Instruments, files,
records, ledger sheets, and documents covering or relating to any of the
Accounts, General Intangibles, Inventory or Proceeds.
"Equity Interests" means shares of capital stock, partnership, joint
venture, member or limited liability or unlimited liability company interests,
beneficial interests in a trust or other equity ownership interests in a Person
of whatever nature and rights, warranties or options to acquire the foregoing.
"Event of Default" means an "Event of Default" as defined in any Second
Priority Debt Document.
"General Intangibles" means all choses in action and causes of action
and all general intangibles of any Grantor of every kind and nature (other than
Accounts) now owned or hereafter acquired by any Grantor, including corporate or
other business records, indemnification claims, contract rights (including
rights under leases, whether entered into as lessor or lessee, Hedging
Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment of any of the Accounts.
"Government Lockbox Account" means the deposit account and
corresponding lockbox established at Mellon Bank and maintained with a
Government Lockbox Account Bank, Account No.[▇▇▇▇▇▇▇].
"Indemnitee" means the Second Priority Debt Parties and their
respective officers, directors, trustees, affiliates and controlling persons.
"Instrument" means an Instrument as defined in the Uniform Commercial
Code, insofar as such Instruments evidence Intercompany Advances, Accounts
Receivable or proceeds of Inventory.
"Intellectual Property" means all inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary
technical and business information,
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know-how, show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations and
franchises, and all additions, improvements and accessions to, and books and
records describing or used in connection with, any of the foregoing.
"Intercompany Advances" means any advances or open accounts owing by
the Borrower or any Subsidiary of the Borrower to any Grantor.
"Inventory" means with respect to each Grantor, all right, title and
interest of such Grantor in and to goods intended for sale or lease by such
Grantor, or consumed in such Grantor's business (including, without limitation,
all operating parts and supplies), together with all raw materials and finished
goods, whether now owned or hereafter acquired or arising.
"License" means any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule 4 (other than those license agreements in
existence on the date hereof and listed on Schedule 4 and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"New York UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Patent License" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a patent, now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" means all of the following now owned or hereafter acquired by
any Grantor: (a) all letters patent of the United States or any other country,
all registrations and recordings thereof, and all applications for letters
patent of the United States or any other country, including registrations,
recordings and pending applications in the United States Patent and Trademark
Office or any similar offices in any other country, including those listed on
Schedule I, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Prescription Files" means, as to any Grantor, all right, title and
interest of such Grantor in and to all prescription files maintained by it or on
its behalf, including without limitation all patient profiles, customer lists,
customer information and other records of prescriptions filled by it, in
whatever form and wherever maintained by it or on its behalf, and all goodwill
and other intangible assets arising from the maintenance of such records and the
possession of information contained therein.
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"Proceeds" means all "proceeds" as such term is defined in Section
9-102 of the New York UCC.
"Second Priority Collateral" is defined in Section 2 of this Agreement.
"Second Priority Collateral Account" means any collateral account
established by the Second Priority Collateral Trustee as provided in Section
5.03 or Section 8.02.
"Trademark License" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" means all of the following now owned or hereafter acquired
by any Grantor: (a) all trademarks, service marks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, trade
dress, logos, other source or business identifiers, designs and general
intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all registration and recording
applications filed in connection therewith, including registrations and
registration applications in the United States Patent and Trademark Office or
any similar offices in any State of the United States or any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule I, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
SECTION 1.2. Other Definitional Provisions. (a) The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section references are to this Agreement unless otherwise
specified. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. Grant of Security Interest. As security for the payment or
performance, as the case may be, in full of the obligations under the Second
Priority Debt Documents, each Grantor hereby assigns and pledges to the Second
Priority Collateral Trustee, its successors and assigns, for the ratable benefit
of the Second Priority Debt Parties, and hereby grants to the Second Priority
Collateral Trustee, its successors and assigns, for the ratable benefit of the
Second Priority Debt Parties, a security interest, in all right, title or
interest now owned or at any time hereafter acquired by such Grantor or in which
such Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the "Second Priority Collateral"):
(a) all Accounts Receivable and Chattel Paper;
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(b) the Cash Management Accounts, the Deposit Accounts and the
cash on deposit therein;
(c) all Contracts;
(d) all Documents;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Prescription Files;
(j) all books and records pertaining to any and all of the
foregoing and item (k) herein; and
(k) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing.
Nothing contained in this Section 2 is intended to limit any Grantor's rights to
create Permitted Liens (as defined below). Second Priority Collateral shall not
include any property specified in Section 2(g) above if the granting of a
security interest therein would jeopardize the Grantor's rights in any pending
intent-to-use applications for Federal Trademark registration.
Each Grantor hereby irrevocably authorizes the Second Priority
Collateral Trustee at any time and from time to time to file in any Uniform
Commercial Code jurisdiction any initial financing statements (including fixture
filings) and amendments thereto that contain the information required by Article
9 of the Uniform Commercial Code of each applicable jurisdiction for the filing
of any financing statement or amendment, including (a) whether the Grantor is an
organization, the type of organization and any organizational identification
number issued to the Grantor and (b) in the case of a financing statement filed
as a fixture filing or covering Second Priority Collateral constituting minerals
or the like to be extracted or timber to be cut, a sufficient description of the
real property to which such Second Priority Collateral relates. The Grantor
agrees to provide such information to the Second Priority Collateral Trustee
promptly upon request. In addition, each Grantor hereby authorizes and agrees
that such financing statements may describe the Second Priority Collateral
Trustee in the same manner as described herein or may contain an indication or
description of collateral that describes such property in any other manner as
the Second Priority Collateral Trustee may determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the security
interest in the Second Priority Collateral granted to the Second Priority
Collateral Trustee herein, including, without limitation, describing such
property as "all assets" or "all personal property."
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Each Grantor also ratifies its authorization for the Second Priority
Collateral Trustee to file in any Uniform Commercial Code jurisdiction any
initial financing statements or amendments thereto if filed prior to the date
hereof.
The Second Priority Collateral Trustee is further authorized to file
filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any other
country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the second priority security interest
granted by each Grantor, without the signature of any Grantor, and naming any
Grantor or the Grantors as debtors and the Second Priority Collateral Trustee as
secured party.
Such security interests are granted as security only and shall not
subject the Second Priority Collateral Trustee nor any Second Priority Debt
Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of the Second Priority Collateral.
SECTION 3. Representations and Warranties. Each Grantor hereby
represents and warrants, as to itself and the Second Priority Collateral in
which the security interest is created hereunder, that:
SECTION 3.01. Title; No Other Liens. Except for the security interest
granted to the Second Priority Collateral Trustee for the ratable benefit of the
Second Priority Debt Parties pursuant to this Agreement and the other Liens
permitted to exist pursuant to the Second Priority Debt Documents (the
"Permitted Liens"), each Grantor owns each item of the Second Priority
Collateral free and clear of any and all Liens or claims of others (or
arrangements reasonably satisfactory to the Second Priority Collateral Trustee
have been made for the timely release or discharge of such Liens). No security
agreement, financing statement or other public notice with respect to all or any
part of such Second Priority Collateral is on file or of record in any public
office, except such as have been filed or will be filed, pursuant to this
Agreement, in favor of the Second Priority Collateral Trustee, for the ratable
benefit of the Second Priority Debt Parties, or in respect of Permitted Liens
(or arrangements reasonably satisfactory to the Second Priority Collateral
Trustee have been made for the timely termination of such agreement or financing
statement). Further, no Grantor has intentionally entered into any contract,
lease or license in anticipation of this Agreement, which by its terms, validly
prohibits the granting of a security interest herein.
SECTION 3.02. Enforceable Obligation; Perfected, First Priority
Security Interests. This Agreement constitutes a legal, valid and binding
obligation of each Grantor, enforceable against such Grantor in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally and except as enforceability may be limited by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law), and the security interests granted pursuant to this
Agreement (a) upon completion of the filings and
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other actions specified in Schedule 1 hereto (or in the case of Instruments,
delivery to the Second Priority Collateral Trustee or its designee) shall
constitute fully perfected security interests in the Second Priority Collateral
in favor of the Second Priority Collateral Trustee for the ratable benefit of
the Second Priority Debt Parties, and (b) are prior and superior in right to all
other Liens (other than Permitted Liens, to the extent that such Permitted Liens
are expressly permitted by the Second Priority Debt Documents to have priority)
on the Second Priority Collateral in existence on the date hereof.
SECTION 3.03. Inventory. The Inventory owned by such Grantor are kept
at the locations listed in Schedule 2 hereto, which shall be updated from time
to time in accordance with Section 4.05 of this Agreement, or at such other
locations as shall be permitted by Section 4.04.
SECTION 3.04. Chief Executive Office; Jurisdiction of Incorporation. As
of the Closing Date, each Grantor's chief executive office, principal place of
business and jurisdiction of incorporation is located at the locations listed in
Schedule 10 hereto.
SECTION 3.05. Farm Products. None of the Second Priority Collateral
constitutes, or is the Proceeds of, Farm Products (as such term is defined in
the Uniform Commercial Code).
SECTION 3.06. Intellectual Property. (a) Schedule 4 lists all
Intellectual Property owned (and registered with the U.S. Copyright Office or
the U.S. Patent and Trademark Office) or licensed by such Grantor in its own
name on the date hereof.
(b) On the date hereof, based on information known, or reasonably
available to such Grantor, all Intellectual Property material to the conduct of
such Grantor's business is valid, subsisting, unexpired and enforceable, has not
been abandoned and does not infringe the intellectual property rights of any
other person.
(c) Except as set forth in Schedule 4, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) On the date hereof, based on information known, or reasonably
available to such Grantor, no holding decision or judgment has been rendered by
any Governmental Authority which would materially limit, cancel or question the
validity of, or such Grantor's rights in, any Intellectual Property in any
respect that could reasonably be expected to have a Material Adverse Effect.
(e) Except as set forth on Schedule 4, on the date hereof, no action or
proceeding is pending, or, to the knowledge of such Grantor, threatened, on the
date hereof (i) seeking to materially limit, cancel or question the validity of
any Intellectual Property material to the conduct of such Grantor's business or
such Grantor's ownership interest therein, or (ii) which, if adversely
determined, would have a material adverse effect on the value of any
Intellectual Property.
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SECTION 4. Covenants. Each Grantor covenants and agrees with the Second
Priority Debt Parties that, from and after the date of this Agreement until this
Agreement is terminated and the security interests created hereby are released:
SECTION 4.01. [Intentionally reserved.]
SECTION 4.02. Maintenance of Insurance. Each Grantor shall maintain
insurance policies in accordance with the requirements of the Second Priority
Debt Documents.
SECTION 4.03. Maintenance of Perfected Security Interest; Further
Documentation. (a) Each Grantor shall cause all filings and other actions listed
in Schedule 1 to be taken. Each Grantor shall maintain the security interests
created by this Agreement as first priority perfected security interests subject
only to Permitted Liens, to the extent such Permitted Liens are expressly
permitted by the Second Priority Debt Documents to have priority, and shall
defend such security interests against all claims and demands of all persons
whomsoever (other than those pursuant to Permitted Liens).
(b) At any time and from time to time, upon the written request of the
Second Priority Collateral Trustee, and at the sole expense of a Grantor, such
Grantor shall promptly and duly execute and deliver such further instruments and
documents and take such further action as the Second Priority Collateral Trustee
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any jurisdiction with
respect to the security interests created hereby.
(c) No Grantor shall intentionally enter into any contract, lease or
license in contemplation of this Agreement, which by its terms would validly
prohibit the grant of a security interest herein.
SECTION 4.04. Changes in Locations, Name, etc. Each Grantor agrees
promptly to notify the Second Priority Collateral Trustee in writing of any
change (i) in its corporate name, (ii) in the location of its chief executive
office or its principal place of business, (iii) in its identity or type of
organization, (iv) in its Federal Taxpayer Identification Number or
organizational identification number or (v) in its jurisdiction of organization.
Each Grantor agrees to promptly provide the Second Priority Collateral Trustee
with certified organizational documents reflecting any of the changes described
in the preceding sentence. Each Grantor agrees not to effect or permit any
change referred to in the preceding sentence unless all filings have been made
under the Uniform Commercial Code or otherwise that are required in order for
the Second Priority Collateral Trustee to continue at all times following such
change to have a valid, legal and perfected first priority security interest in
all the Second Priority Collateral.
SECTION 4.05. Further Identification of Second Priority Collateral.
Each Grantor shall furnish to the Second Priority Collateral Trustee from time
to time statements and schedules further identifying and describing the Second
Priority Collateral and such other reports in
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connection with such Second Priority Collateral as the Second Priority
Collateral Trustee may reasonably request, all in reasonable detail.
SECTION 4.06. Notices. A Grantor shall advise the Second Priority
Collateral Trustee promptly, in reasonable detail, in accordance with Section 13
hereto, of:
(a) any Lien (other than security interests created hereby or
Permitted Liens) on any material portion of the Second Priority
Collateral; and
(b) the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the security interests
created hereby or on the aggregate value of the Second Priority
Collateral.
SECTION 4.07. Second Priority Collateral Trustee's Liabilities and
Expenses; Indemnification. (a) Notwithstanding anything to the contrary provided
herein, neither the Second Priority Collateral Trustee nor any other Second
Priority Debt Party assumes any liabilities with respect to any claims regarding
each Grantor's ownership (or purported ownership) of, or rights or obligations
(or purported rights or obligations) arising from, the Second Priority
Collateral or any use (or actual or alleged misuse) whether arising out of any
past, current or future event, circumstance, act or omission or otherwise, or
any claim, suit, loss, damage, expense or liability of any kind or nature
arising out of or in connection with the Second Priority Collateral or the
production, marketing, delivery, sale or provision of goods or services under or
in connection with any of the Second Priority Collateral. All of such
liabilities shall, as between the Second Priority Collateral Trustee, the Second
Priority Debt Parties and the Grantors, be borne exclusively by the Grantors
unless such liability arises from the gross negligence or willful misconduct of
the Second Priority Collateral Trustee or any Second Priority Debt Party .
(b) Each Grantor hereby agrees to pay all reasonable expenses of the
Second Priority Collateral Trustee and the other Second Priority Debt Parties
and to indemnify the Second Priority Collateral Trustee and the other Second
Priority Debt Parties with respect to any and all losses, claims, damages,
liabilities and related expenses in respect of this Agreement or the Second
Priority Collateral in each case to the extent and under the circumstances the
Borrower is required to do so pursuant to the Second Priority Debt Documents.
(c) Any amounts payable as provided hereunder shall be additional
Second Priority Debt Obligations secured hereby and by the other Second Priority
Debt Documents. Without prejudice to the survival of any other agreements
contained herein, all indemnification and reimbursement obligations contained
herein shall survive the payment in full of the principal and interest and other
amounts due under the Second Priority Debt Documents and the termination of this
Agreement.
SECTION 4.08. Intellectual Property. (a) Each relevant Grantor (either
itself or through licensees) will (i) continue to use each Trademark material to
the conduct of such Grantor's business, to the extent that such Grantor's
business operations continue as to the said
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goods and/or services (subject to such Grantor's reasonable business judgment),
sufficient to avoid unintentional abandonment of any rights in such Trademarks,
(ii) maintain as in the past the quality of products and services offered under
such Trademark, (iii) use such Trademark with the appropriate notice of
registration and all other notices and legends required by applicable law, (iv)
not knowingly adopt or use any ▇▇▇▇ which is confusingly similar or a colorable
imitation of such Trademark unless the Second Priority Collateral Trustee, for
the ratable benefit of the Second Priority Debt Parties, shall obtain a
perfected security interest in such ▇▇▇▇ pursuant to this Agreement, and (v) not
knowingly (and not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby such Trademark material to the conduct of
Grantor's business may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any Patent material to the conduct of
Grantor's business may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) will not
knowingly (and will not permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby any portion of the Copyrights
material to the conduct of Grantor's business may become invalidated or
otherwise impaired or fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other person.
(e) In a status report provided to the Second Priority Collateral
Trustee on a quarterly basis ("Quarterly Status Report"), such Grantor will
indicate whether any application or registration relating to any material
Intellectual Property has been forfeited, abandoned or dedicated to the public,
or of any such determination or development (including, without limitation, the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding such Grantor's
ownership of, or the validity of, any material Intellectual Property or such
Grantor's right to register the same or to own and maintain the same.
(f) In the Quarterly Status Report provided to the Second Priority
Collateral Trustee pursuant to Section 4.08(e), such Grantor will report
whenever such Grantor, either by itself or through any agent, employee, licensee
or designee, has filed an application for the registration of any Intellectual
Property with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in any other country or any
political subdivision thereof. Upon request of the Second Priority Collateral
Trustee, such Grantor shall execute and deliver, and have recorded, any and all
agreements, instruments, documents and papers as the Second Priority Collateral
Trustee may request to evidence the Second Priority Collateral Trustee's and
Second Priority Debt Parties' security interest in any Copyright, Patent or
Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.
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(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the Intellectual Property material to the conduct
of Grantor's business, including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability.
(h) In the event that any Intellectual Property material to the conduct
of Grantor's business is infringed, misappropriated or diluted by a third party,
such Grantor shall (i) take such actions as such Grantor shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property and
(ii) if such Intellectual Property is of material economic value, promptly
notify the Second Priority Collateral Trustee after it learns thereof and take
all reasonable steps to protect its interests, which may include bringing suit
for infringement, misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such infringement,
misappropriation or dilution.
SECTION 5. Provisions Relating to Accounts.
SECTION 5.01. Grantors Remain Liable under Accounts. Anything herein
to the contrary notwithstanding, a Grantor shall remain liable under each of the
Accounts to observe and perform all the material conditions and material
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to each such Account. No Second
Priority Debt Party shall have any obligation or liability under any Account (or
any agreement giving rise thereto) by reason of or arising out of this Agreement
or the receipt by the Second Priority Collateral Trustee or any Second Priority
Debt Party of any payment relating to such Account pursuant hereto, nor shall
any Second Priority Debt Party be obligated in any manner to perform any of the
obligations of a Grantor under or pursuant to any Account (or any agreement
giving rise thereto), to make any payment, to make any inquiry as to the nature
or the sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Account (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
SECTION 5.02. Analysis of Accounts. In addition to its rights under
the Second Priority Debt Documents, the Second Priority Collateral Trustee shall
have the right upon the occurrence and during the continuance of an Event of
Default to make test verifications of the Accounts in any manner and through any
medium that it considers reasonably advisable, and each Grantor shall furnish
all such assistance and information as the Second Priority Collateral Trustee
may reasonably require in connection with such test verifications. At any time
and from time to time upon the occurrence and during the continuance of an Event
of Default, upon the Second Priority Collateral Trustee's reasonable request and
at the expense of each Grantor, each Grantor shall immediately request and use
commercially reasonable efforts to cause independent public accountants or
others reasonably satisfactory to the Second Priority Collateral Trustee to
furnish to the Second Priority Collateral Trustee reports showing
reconciliations, aging and test
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verifications of, and trial balances for, the Accounts. Upon the occurrence and
during the continuance of an Event of Default, the Second Priority Collateral
Trustee in its own name or in the name of others may communicate with Account
Debtors on the Accounts to verify with them to the Second Priority Collateral
Trustee's reasonable satisfaction the existence, amount and terms of any
Accounts and to direct all payments to the Second Priority Collateral Trustee.
To the extent reasonably practicable the Second Priority Collateral Trustee will
seek to take such actions through third parties.
SECTION 5.03. Collections on Accounts. (a) The Second Priority
Collateral Trustee hereby authorizes each Grantor to collect the Accounts, and
the Second Priority Collateral Trustee may curtail or terminate said authority
at any time after the occurrence and during the continuance of an Event of
Default. If required by the Second Priority Collateral Trustee at any time after
the occurrence and during the continuance of an Event of Default, any payments
of Accounts, when collected by a Grantor during the continuance of such an Event
of Default, (i) shall be forthwith (and, in any event, within two Business Days)
deposited by such Grantor in the exact form received, duly indorsed by such
Grantor to the Second Priority Collateral Trustee if required, in a Second
Priority Collateral Account maintained under the sole dominion and control of
and on terms and conditions reasonably satisfactory to the Second Priority
Collateral Trustee, subject to withdrawal by the Second Priority Collateral
Trustee as provided in Section 7.03, and (ii) until so turned over, shall be
held by such Grantor in trust for the Second Priority Debt Parties, segregated
from other funds of such Grantor.
(b) At the Second Priority Collateral Trustee's request after the
occurrence and during the continuance of an Event of Default, each Grantor shall
deliver to the Second Priority Collateral Trustee all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Accounts, including, without limitation, all original orders,
invoices and shipping receipts.
SECTION 5.04. Representations and Warranties. As of the Closing Date,
the place where each Grantor keeps its records concerning the Accounts is at the
location listed in Schedule 3 hereto.
SECTION 5.05. Covenants. (a) The amount represented by each Grantor to
the Second Priority Debt Parties from time to time as owing by each account
debtor or by all Account Debtors in respect of the Accounts shall at such time
be in all material respects the correct amount actually owing by such Account
Debtor or debtors thereunder.
(b) Upon the occurrence and during the continuance of an Event of
Default, a Grantor shall not grant any extension of the time of payment of any
of the Accounts Receivable, compromise, compound or settle the same for less
than the full amount thereof, release, wholly or partly, any person liable for
the payment thereof, or allow any credit or discount whatsoever thereon other
than extensions, credits, discounts, compromises or settlements granted or made
in the ordinary course of business.
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(c) Unless a Grantor shall deliver prior written notice, identifying
the change of location for its books and records, such Grantor shall not remove
its books and records from the location specified in Schedule 3.
SECTION 5.06. [Intentionally reserved.]
SECTION 6. Provisions Relating to Contracts.
SECTION 6.01. Grantors Remain Liable under Contracts. Anything herein
to the contrary notwithstanding, each Grantor shall remain liable under each
Contract to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with and pursuant to
the terms and provisions of such Contract. No Second Priority Debt Party shall
have any obligation or liability under any Contract by reason of or arising out
of this Agreement or the receipt by any such Second Priority Debt Party of any
payment relating to such Contract pursuant hereto, nor shall any Second Priority
Debt Party be obligated in any manner to perform any of the obligations of a
Grantor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party under any Contract, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
SECTION 6.02. Communication With Contracting Parties. Upon the
occurrence and during the continuance of an Event of Default, the Second
Priority Collateral Trustee in its own name or in the name of its nominee may
communicate with parties to the Contracts to verify with them to the Second
Priority Collateral Trustee's reasonable satisfaction the existence, amount and
terms of any Contracts. To the extent reasonably practicable the Second Priority
Collateral Trustee will seek to take such actions through third parties.
SECTION 7. Remedies.
SECTION 7.01. Notice to Account Debtors and Contract Parties. Upon the
request of the Second Priority Collateral Trustee at any time after the
occurrence and during the continuance of an Event of Default, a Grantor shall
notify Account Debtors on the Accounts and parties to the Contracts that the
Accounts and the Contracts have been assigned to the Second Priority Collateral
Trustee for the ratable benefit of the Second Priority Debt Parties and that
payments in respect thereof during the continuance of such an Event of Default
shall be made directly to the Second Priority Collateral Trustee.
SECTION 7.02. Proceeds to be Turned Over To Second Priority Collateral
Trustee. In addition to the rights of the Second Priority Collateral Trustee and
the Second Priority Debt Parties specified in Section 5.03 with respect to
payments of Accounts, if an Event of Default shall occur and be continuing all
Proceeds received by a Grantor consisting of cash, checks and other near-cash
items shall upon the Second Priority Collateral Trustee's request be held by
such Grantor in trust for the Second Priority Debt Parties, segregated from
other funds of such Grantor, and shall, upon the Second Priority Collateral
Trustee's request (it being understood that
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the exercise of remedies by the Second Priority Debt Parties in connection with
an Event of Default under the Second Priority Debt Documents shall be deemed to
constitute a request by the Second Priority Collateral Trustee for the purposes
of this sentence) forthwith upon receipt by such Grantor, be turned over to the
Second Priority Collateral Trustee in the exact form received by such Grantor
(duly indorsed by such Grantor to the Second Priority Collateral Trustee, if
required) and held by the Second Priority Collateral Trustee in a Second
Priority Collateral Account maintained under the sole dominion and control of
the Second Priority Collateral Trustee and on terms and conditions reasonably
satisfactory to the Second Priority Collateral Trustee. All Proceeds while held
by the Second Priority Collateral Trustee in a Second Priority Collateral
Account (or by such Grantor in trust for the Second Priority Collateral Trustee
and the Second Priority Debt Parties) shall subject to Section 7.03 continue to
be held as collateral security for all the Second Priority Debt Obligations, and
shall not constitute payment thereof until applied as provided in Section 7.03.
SECTION 8.03. Application of Proceeds. (a) So long as the Collateral
Trust and Intercreditor Agreement is in effect, following a Triggering Event (as
defined therein), the proceeds of any sale or other realization upon any
Collateral will be applied as set forth in the Collateral Trust and
Intercreditor Agreement.
(b) At all times when the Collateral Trust and Intercreditor
Agreement is not in effect, the proceeds of any sale or other realization upon
any Collateral following an Event of Default will be applied as soon as
practicable after receipt as follows:
FIRST: to the collateral agent under the Synthetic Lease
Facility and the trustee, administrative agent, security agent or
similar agent under each Additional Senior Second Priority Debt
Facility, if any, and under each Replacement Senior Second Priority
Debt Facility, if any, in an amount equal to the fees thereof which are
unpaid as of the applicable Distribution Date and to any Synthetic
Lease Party, any Additional Senior Second Priority Debt Party and any
Replacement Senior Second Priority Debt Party which has theretofore
advanced or paid any such fees in an amount equal to the amount thereof
so advanced or paid by such Synthetic Lease Party, Additional Senior
Second Priority Debt Party or Replacement Senior Second Priority Debt
Party, as the case may be, pro rata based on the amounts of such fees
(or such advance or payment);
SECOND: to the collateral agent under the Synthetic Lease
Facility and the trustee, administrative agent, security agent or
similar agent under each Additional Senior Second Priority Debt
Facility, if any, and under each Replacement Senior Second Priority
Debt Facility, if any, and any Synthetic Lease Party, any Additional
Senior Second Priority Debt Party and any Replacement Senior Second
Priority Debt Party to reimburse such Second Priority Representative or
such Second Priority Debt Party for the amount of any advance made
pursuant to Section 2.04 of the Collateral Trust and Intercreditor
Agreement (with interest thereon at the Default Rate), pro rata based
on the amounts so advanced;
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THIRD: to the collateral agent under the Synthetic Lease
Facility and the trustee, administrative agent, security agent or
similar agent under each Additional Senior Second Priority Debt
Facility, if any, and each Replacement Senior Second Priority Debt
Facility, if any, for distribution to the Synthetic Lease Parties, the
Additional Senior Second Priority Debt Parties, if any, and the
Replacement Senior Second Priority Debt Parties, if any, to be applied
to the payment of the Synthetic Lease Obligations, the Additional
Senior Second Priority Debt Obligations, if any, and the Replacement
Senior Second Priority Debt Obligations, if any, pro rata based on the
amount of Synthetic Lease Obligations, Additional Senior Second
Priority Debt Obligations and Replacement Senior Second Priority Debt
Obligations then due and owing, until all the Synthetic Lease
Obligations, Additional Senior Second Priority Debt Obligations and
Replacement Senior Second Priority Debt Obligations have been paid in
full;
FOURTH: to the trustee under the Exchange Note Indenture and
the trustee, administrative agent, security agent or similar agent
under each Additional Second Priority Debt Facility, if any, and each
Replacement Second Priority Debt Facility, if any, in an amount equal
to the fees thereof which are unpaid as of the applicable Distribution
Date and to any Exchange Note Party, any Additional Second Priority
Debt Party and any Replacement Second Priority Debt Party which has
theretofore advanced or paid any such fees in an amount equal to the
amount thereof so advanced or paid by such Exchange Note Party or
Additional Second Priority Debt Party or Replacement Second Priority
Debt Party, as the case may be, pro rata based on the amounts of such
fees (or such advance or payment);
FIFTH: to the trustee under the Exchange Note Indenture and
the trustee, administrative agent, security agent or similar agent
under each Additional Second Priority Debt Facility, if any, and each
Replacement Second Priority Debt Facility, if any, and any Exchange
Note Party, any Additional Second Priority Debt Party and any
Replacement Second Priority Debt Party to reimburse such Second
Priority Representative or such Second Priority Debt Party for the
amount of any advance made pursuant to Section 2.04 hereof (with
interest thereon at the Default Rate), pro rata based on the amounts so
advanced;
SIXTH: to the trustee under the Exchange Note Indenture and
the trustee, administrative agent, security agent or similar agent
under each Additional Second Priority Debt Facility, if any, and each
Replacement Second Priority Debt Facility, if any, for distribution to
the Exchange Note Parties, the Additional Second Priority Debt Parties,
if any, and the Replacement Second Priority Debt Parties, if any, to be
applied to the payment of the Exchange Note Obligations, the Additional
Second Priority Debt Obligations, if any, and the Replacement Second
Priority Debt Obligations, if any, pro rata based on the amount of
Exchange Note Obligations, Additional Second Priority Debt Obligations
and Replacement Second Priority Debt Obligations then due and owing,
until all the Exchange Note Obligations, Additional Second Priority
Debt Obligations and Replacement Second Priority Debt Obligations have
been paid in full; and
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SEVENTH: after payment in full of all Secured Obligations, to
Rite Aid and the Subsidiary Guarantors or their successors or assigns,
as their interests may appear, or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
SECTION 8.04. Uniform Commercial Code Remedies. If an Event of Default
shall have occurred and be continuing, the Second Priority Collateral Trustee,
on behalf of the Second Priority Debt Parties may exercise, in addition to all
other rights and remedies granted to them in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Second Priority
Debt Obligations, all rights and remedies of a senior secured party under the
Uniform Commercial Code. Without limiting the generality of the foregoing, the
Second Priority Collateral Trustee, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon a Grantor or any other
person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Second Priority Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Second Priority Collateral or
any part thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, at any exchange, broker's board or
office of any Second Priority Debt Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
Any Second Priority Debt Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Second Priority Collateral so sold,
free of (to the extent permitted by law) any right or equity of redemption in a
Grantor, which right or equity is hereby, to the extent permitted by law, waived
or released. Each Grantor further agrees, at the Second Priority Collateral
Trustee's request, to assemble the Second Priority Collateral and make it
available to the Second Priority Collateral Trustee at places which the Second
Priority Collateral Trustee shall reasonably select, whether at such Grantor's
premises or elsewhere. The Second Priority Collateral Trustee shall apply the
net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses incurred
therein or incidental to the care or safekeeping of any of such Second Priority
Collateral or reasonably relating to such Second Priority Collateral or the
rights of the Second Priority Collateral Trustee and the Second Priority Debt
Parties hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Second Priority Debt
Obligations, in accordance with Section 7.03, and only after such application
and after the payment by the Second Priority Collateral Trustee of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code, need the Second Priority Collateral
Trustee account for the surplus, if any, to such Grantor. If any notice of a
proposed sale or other disposition of such Second Priority Collateral shall be
required by law, such notice shall be in writing and deemed reasonable and
proper if given at least 10 days before such sale or other disposition.
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The Second Priority Collateral Trustee shall have absolute discretion
as to the time of application of any such proceeds, moneys or balances in
accordance with this Agreement. Upon any sale of the Second Priority Collateral
by the Second Priority Collateral Trustee (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the Second
Priority Collateral Trustee or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Second Priority
Collateral so sold and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the Second
Priority Collateral Trustee or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8.05. Grant of License to Use Intellectual Property. For the
purpose of enabling the Second Priority Collateral Trustee to exercise rights
and remedies under this Article at such time as the Second Priority Collateral
Trustee shall be lawfully entitled to exercise such rights and remedies, each
Grantor hereby grants to the Second Priority Collateral Trustee an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to the Grantors) to use, license or sub-license any of the Second
Priority Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Second Priority
Collateral Trustee shall be exercised, at the option of the Second Priority
Collateral Trustee, solely upon the occurrence and during the continuation of an
Event of Default; provided that any license, sub-license or other transaction
entered into by the Second Priority Collateral Trustee in accordance herewith
shall be binding upon the Grantors notwithstanding any subsequent cure of an
Event of Default.
SECTION 8.06. Waiver; Deficiency. Each Grantor waives and agrees not to
assert any rights or privileges it may acquire under Section 9-112 of the
Uniform Commercial Code. Each Grantor shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Second Priority Collateral
are insufficient to pay the Second Priority Debt Obligations and the reasonable
fees and disbursements of any attorneys employed by any Second Priority Debt
Party to collect such deficiency.
SECTION 8. Second Priority Collateral Trustee's Appointment as
Attorney-in-Fact; Second Priority Collateral Trustee's Performance of Grantors'
Obligations.
SECTION 8.01. Powers. Each Grantor hereby irrevocably constitutes and
appoints the Second Priority Collateral Trustee and any officer or agent
thereof, with full power of substitution, during the continuance of an Event of
Default, as its true and lawful attorney-in-fact, with full irrevocable power
and authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name from time to time in the Second Priority Collateral
Trustee's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, such Grantor hereby gives the Second Priority Collateral Trustee the
power and
18
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do the following upon the occurrence and during the continuance of an Event
of Default:
(a) in the name of such Grantor or its own name, or otherwise,
to take possession of and indorse and collect any checks, drafts,
notes, acceptances or other instruments for the payment of moneys due
under any Account, Instrument, General Intangible or Contract or with
respect to any other Second Priority Collateral and to file any claim
or to take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by the Second Priority Collateral
Trustee for the purpose of collecting any and all such moneys due under
any Account, Instrument, General Intangible or Contract or with respect
to any other Second Priority Collateral whenever payable;
(b) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Second Priority Collateral Trustee may
request to evidence the Second Priority Collateral Trustee's and the
Second Priority Debt Parties' security interest in such Intellectual
Property and the goodwill and general intangibles of such Grantor
relating thereto or represented thereby;
(c) to pay or discharge taxes and Liens levied or placed on or
threatened against the Second Priority Collateral (other than Permitted
Liens), to effect any repairs or any insurance called for by the terms
of this Agreement and to pay all or any part of the premiums therefor
and the costs thereof;
(d) to execute, in connection with any sale provided for in
Section 7.04 hereof, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Second Priority
Collateral;
(e)(i) to direct any party liable for any payment under any of
the Second Priority Collateral to make payment of any and all moneys
due or to become due thereunder directly to the Second Priority
Collateral Trustee or as the Second Priority Collateral Trustee shall
direct; (ii) to ask or demand for, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Second
Priority Collateral; (iii) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Second Priority Collateral;
(iv) to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the
Second Priority Collateral or any thereof and to enforce any other
right in respect of any Second Priority Collateral; (v) to defend any
suit, action or proceeding brought against any Grantor with respect to
any Second Priority Collateral Trustee; (vi) to settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Second Priority
Collateral Trustee may deem appropriate; (vii) to the extent permitted
by applicable law, assign any Copyright, Patent or Trademark (along
with the goodwill of the business to which any such Copyright,
19
Patent or Trademark pertains); and (viii) generally, to use, sell,
transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Second Priority Collateral Trustee as fully and
completely as though the Second Priority Collateral Trustee were the
absolute owner thereof for all purposes, and to do, at the Second
Priority Collateral Trustee's option and at the expense of such
Grantor, at any time, or from time to time, all acts and things which
the Second Priority Collateral Trustee reasonably deems necessary to
protect, preserve or realize upon such Second Priority Collateral and
the Second Priority Collateral Trustee's and the Second Priority Debt
Parties' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do; and
(f) to file any Uniform Commercial Code financing statement,
or to take such other steps, required to perfect or confirm the
perfection of any security interest described herein.
SECTION 8.02. Performance by Second Priority Collateral Trustee of
Grantor's Obligations. If any Grantor fails to perform or comply with any of its
agreements contained herein, the Second Priority Collateral Trustee, at its
option, but without any obligation so to do, may perform or comply, or otherwise
cause performance or compliance, with such agreement.
SECTION 8.03. Grantor's Reimbursement Obligation. The expenses of the
Second Priority Collateral Trustee and any other Second Priority Debt Party, as
applicable, reasonably incurred in connection with actions undertaken as
provided in this Section 8, together with interest thereon at a rate per annum
equal to the default rate of interest set forth in the Second Priority Debt
Documents, from the date payment is demanded by the Second Priority Collateral
Trustee to the date reimbursed by such Grantor, shall be payable by the Borrower
to the Second Priority Collateral Trustee on demand.
SECTION 8.04. Ratification; Power Coupled With An Interest. Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
SECTION 9. Duty of Second Priority Collateral Trustee. The Second
Priority Collateral Trustee's sole duty with respect to the custody, safekeeping
and physical preservation of the Second Priority Collateral in its possession,
under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to
deal with it in the same manner as the Second Priority Collateral Trustee deals
with similar property for its own account. No Second Priority Debt Party nor any
of its respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Second Priority Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Second Priority Collateral upon the request of a
Grantor or any other person or to take any other action whatsoever with regard
to the Second Priority Collateral or any part thereof. The powers conferred on
the Second Priority Debt Parties hereunder are solely to protect the Second
Priority Debt Parties' interests in
20
the Second Priority Collateral and shall not impose any duty upon any Second
Priority Debt Party to exercise any such powers. The Second Priority Debt
Parties shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
wilful misconduct.
SECTION 10. Execution of Financing Statements. Each Grantor authorizes
the Second Priority Collateral Trustee to file financing statements with respect
to the Second Priority Collateral without the signature of such Grantor in such
form and in such filing offices as the Second Priority Collateral Trustee
reasonably determines appropriate to perfect the security interests of the
Second Priority Collateral Trustee under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
SECTION 11. Authority of Second Priority Collateral Trustee. Each
Grantor acknowledges that the rights and responsibilities of the Second Priority
Collateral Trustee under this Agreement with respect to any action taken by the
Second Priority Collateral Trustee or the exercise or non-exercise by the Second
Priority Collateral Trustee of any option, voting right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Second Priority Collateral Trustee and the other
Second Priority Debt Parties, be governed by the Second Priority Debt Documents
and by such other agreements with respect thereto as may exist from time to time
among them but, as between the Second Priority Collateral Trustee and the
Grantors, the Second Priority Collateral Trustee shall be conclusively presumed
to be acting as agent for the other Second Priority Debt Parties with full and
valid authority so to act or refrain from acting.
SECTION 12. Notices. All notices, requests and demands to or upon the
Second Priority Debt Parties or the Grantors under this Agreement shall be given
or made in accordance with Section 15 of the Second Priority Subsidiary
Guarantee Agreement and addressed as follows:
(a) if to the Second Priority Collateral Trustee, in
accordance with Section 8.02 of the Collateral Trust and Intercreditor
Agreement;
(b) if to any Grantor, c/o the Borrower at the address of the
Borrower specified in Section 8.02 of the Collateral Trust and
Intercreditor Agreement;
SECTION 13. Security Interest Absolute. Subject to Section 19 hereof,
all rights of the Second Priority Collateral Trustee hereunder, the security
interest and all obligations of the Grantors hereunder shall be absolute and
unconditional.
SECTION 14. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Second Priority Debt Document shall be
considered to have been relied upon by the Second Priority Debt Parties and
21
shall survive the execution and delivery to the Second Priority Debt Parties of
the Second Priority Debt Documents, regardless of any investigation made by the
Second Priority Debt Parties or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Second Priority Obligation, or any fee or any other amount payable under or in
respect of this Agreement or any other Second Priority Debt Document is
outstanding and unpaid.
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.
SECTION 16. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Second Priority Debt Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Obligor or any Second Priority Debt Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Second
Priority Debt Documents against any Grantor or any Second Priority Debt Party or
its properties in the courts of any jurisdiction.
(b) Each Grantor and each Second Priority Debt Party hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Second Priority Debt Documents in any New York State or Federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 12. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 17. Release. (a) This Agreement and the security interest
created hereunder shall terminate when all Second Priority Debt Obligations have
been fully and indefeasibly paid, at which time the Second Priority Collateral
Trustee shall execute and deliver to each Grantor, or to such person or persons
as such Grantor shall reasonably designate, all Uniform Commercial Code
termination statements and similar documents prepared by such Grantor at its
expense which such Grantor shall reasonably request to evidence such
termination. Moreover, the security interest hereunder shall terminate with
respect to an individual Second Priority Debt Obligation when that individual
Second Priority Debt Obligation has been fully and indefeasibly paid. Any
execution and delivery of termination statements or documents pursuant to this
Section 17(a) shall be without recourse to or warranty by the Second Priority
Collateral Trustee.
(b) All Second Priority Collateral used, sold, transferred or otherwise
disposed of in accordance with the terms of the Second Priority Debt Documents
(including pursuant to a waiver or amendment of the terms thereof) shall be
used, sold, transferred or otherwise disposed of free and clear of the Lien and
the security interest created hereunder. In connection with the foregoing, (i)
the Second Priority Collateral Trustee shall execute and deliver to each
Grantor, or to such person or persons as such Grantor shall reasonably
designate, all Uniform Commercial Code termination statements and similar
documents prepared by such Grantor at its expense which such Grantor shall
reasonably request to evidence the release of the Lien and security interest
created hereunder with respect to such Second Priority Collateral and (ii) any
representation, warranty or covenant contained herein relating to such Second
Priority Collateral shall no longer be deemed to be made with respect to such
used, sold, transferred or otherwise disposed Second Priority Collateral.
SECTION 18. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The parties hereunder
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 19. Collateral Trust and Intercreditor Agreement.
Notwithstanding any provision to the contrary contained herein, the terms of
this Agreement, the Liens created hereby, and the rights and remedies of the
Second Priority Collateral Trustee and the Second Priority Debt Parties
hereunder, are subject to the Collateral Trust and Intercreditor Agreement and
subordinated as provided therein.
SECTION 20. Amendments in Writing; No Waiver. (a) None of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except by a
23
written instrument executed by the Grantors and the Second Priority Collateral
Trustee, provided that (i) any provision of this Agreement may be waived by the
Second Priority Instructing Group pursuant to a letter or agreement executed by
the Second Priority Collateral Trustee or by telecopy transmission from the
Second Priority Collateral Trustee, in either case with the prior written
consent of the Second Priority Instructing Group and (ii) any amendment or
waiver or other modification which by its terms materially adversely affects the
rights of the Second Priority Debt Parties under a particular Second Priority
Facility in a manner materially different from its effect on the other Second
Priority Facilities shall only be effective with the consent of the Second
Priority Representative for each Second Priority Facility so adversely affected.
(b) No Second Priority Debt Party shall by any act (except by a
written instrument pursuant to Section 20 hereof) or delay be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of any Second
Priority Debt Party, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Second Priority Debt
Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which such Second Priority Debt Party
would otherwise have on any future occasion.
SECTION 21. Remedies Cumulative. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
SECTION 22. Section Headings. The section and Section headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
SECTION 23. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of each Grantor and the Second Priority Debt Parties and their successors and
assigns, provided that this Agreement may not be assigned by any Grantor without
the prior written consent of the Second Priority Collateral Trustee.
SECTION 24. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
SECTION 26. Additional Grantors. Pursuant to the Second Priority Debt
Documents, certain Domestic Subsidiaries that were not in existence or not a
Second Priority Collateral
24
Trustee on the date thereof are required to enter into this Agreement as a
Grantor upon becoming a Domestic Subsidiary. Upon execution and delivery, after
the date hereof, by the Second Priority Collateral Trustee and such Domestic
Subsidiary of an instrument in the form of Annex 1, such Domestic Subsidiary
shall become a Grantor hereunder with the same force and effect as if originally
named as a Grantor hereunder. The execution and delivery of any such instrument
shall not require the consent of any Grantor hereunder. The rights and
obligations of each Grantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 27. Patient Confidentiality. The Second Priority Collateral
Trustee hereby agrees on behalf of itself and each Second Priority Debt Party
and any of their designees and assigns to, and shall take all reasonable steps
to, comply with all applicable state or federal laws or administrative
regulations regarding the confidentiality of patient records and patient medical
information it receives in connection with the transactions described in this
Agreement.
25
IN WITNESS WHEREOF, the undersigned has caused this Second Priority
Subsidiary Security Agreement to be duly executed and delivered as of the date
first above written.
WILMINGTON TRUST COMPANY, as Second
Priority Collateral Trustee,
By________________________________
Name:
Title:
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE A HERETO, as Grantors,
By________________________________
Name:
Title:
THRIFTY PAYLESS, INC., as Grantor,
By________________________________
Name:
Title:
26
Schedules:
---------
Annex 1 Supplement
Schedule A Subsidiary Guarantors
Schedule 1 Filings and Other Actions Required to Perfect
Security Interests
Schedule 2 Inventory
Schedule 3 Records of Accounts
Schedule 4 Copyrights and Copyright Licenses; Patents and
Patent Licenses; and
Trademarks and Trademark Licenses
Schedule 5 Perfection Certificate
Schedule 6 Chief Executive Offices, Principal Places of Business
and Jurisdictions of
Incorporation or Organization
Annex 1
to the Second Priority
Subsidiary Security Agreement
SUPPLEMENT NO. dated as of [______________________ ]
(this "Supplement") to the Second Priority Subsidiary Security
Agreement dated as of June 27, 2001 (the "Second Priority
Subsidiary Security Agreement"), between the SUBSIDIARIES
GUARANTORS identified on the signature pages thereto and any
other person that becomes a Subsidiary Guarantor (the
"Grantors") and WILMINGTON TRUST COMPANY (the "Second Priority
Collateral Trustee") for the Second Priority Debt Parties.
A. Reference is made to the (a) the Second Priority Debt Documents and
(b) the Second Priority Subsidiary Security Agreement dated as of June 27, 2001,
among the Subsidiary Guarantors and the Second Priority Collateral Trustee.
B. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Second Priority Subsidiary Security
Agreement.
C. The Grantors have entered into the Second Priority Subsidiary
Security Agreement in order to induce the Second Priority Debt Parties to enter
into the Second Priority Debt Documents. Pursuant to the Second Priority Debt
Documents, certain Domestic Subsidiaries that were not in existence or not a
Domestic Subsidiary on the date thereof are required to enter into the Second
Priority Subsidiary Security Agreement as a Grantor upon becoming a Domestic
Subsidiary. Section 26 of the Second Priority Subsidiary Security Agreement
provides that additional Domestic Subsidiaries may become Grantors under the
Second Priority Subsidiary Security Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned (the "New Grantor")
is a Domestic Subsidiary and is executing this Supplement in accordance with the
requirements of the Second Priority Debt Documents to become a Grantor under the
Second Priority Subsidiary Security Agreement as consideration for credit
previously extended to the Borrower.
Accordingly, the Second Priority Collateral Trustee and the New Grantor
agree as follows:
SECTION 1. In accordance with Section 26 of the Second Priority
Subsidiary Security Agreement, the New Grantor by its signature below becomes a
Grantor under the Second Priority Subsidiary Security Agreement with the same
force and effect as if originally named therein as a Grantor and the New Grantor
hereby agrees to all the terms
and provisions of the Second Priority Subsidiary Security Agreement applicable
to it as a Grantor thereunder. Each reference to a "Grantor" in the Second
Priority Subsidiary Security Agreement shall be deemed to include the New
Grantor. The Second Priority Subsidiary Security Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Second
Priority Debt Parties that this Supplement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument. This Supplement shall become
effective when the Second Priority Collateral Trustee shall have received
counterparts of this Supplement that, when taken together, bear the signatures
of the New Grantor and the Second Priority Collateral Trustee.
SECTION 4. Except as expressly supplemented hereby, the Second Priority
Subsidiary Security Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Second Priority Subsidiary Security Agreement shall not in any
way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in the Collateral Trust and Intercreditor Agreement. All
communications and notices hereunder to the New Grantor shall be given to it c/o
the Borrower as set forth in Section 8.02 of the Collateral Trust and
Intercreditor Agreement.
IN WITNESS WHEREOF, the New Grantor and the Second Priority Collateral
Trustee have duly executed this Supplement to the Second Priority Subsidiary
Security Agreement as of the day and year first above written.
2
[NAME OF NEW GRANTOR],
By
-----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Second
Priority Collateral Trustee,
By
-----------------------------------
Name:
Title:
3
Schedule A
to the Second Priority
Subsidiary Security Agreement
SUBSIDIARY GUARANTORS
Subsidiary Guarantors
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ Inc.
1740 Associates, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Inc.
5277 Associates, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Corporation
5600 Superior Properties, Inc.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇- ▇▇▇▇▇▇, ▇▇▇▇, LLC
▇▇▇ & Government Streets- Mobile, Alabama, LLC
Apex Drug Stores, Inc.
Baltimore/Annapolis Boulevard & Governor Richie Hwy-Glen Burnie, MD, LLC
Broadview and Wallings -Broadview Heights Ohio, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇- ▇▇▇▇▇, ▇▇, LLC
Dominion Action Four Corporation
Dominion Action One Corporation
Dominion Action Three Corporation
Dominion Action Two Corporation
Dominion Drug Stores Corporation
Drug Fair of PA, Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
Eighth and Water Streets- Ulrichsville, Ohio, LLC
England Street-Asheland Corporation GDF, Inc.
Gettysburg and Hoover-Dayton, Ohio, LLC
Gratiot & Center-Saginaw Township, Michigan, LLC Harco, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Inc.
K&B Tennessee Corporation
K&B Texas Corporation
K&B Trainees, Inc.
K&B, Incorporated
▇▇▇▇ & Besthoff, Inc.
Keystone Centers, Inc.
Lakehurst and Broadway Corporation
▇▇▇▇▇▇▇▇ & Chillicothe Roads- Chesterland, LLC
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC
Name Rite, LLC
Northline & ▇▇▇- ▇▇▇▇▇▇- Southgate, LLC
Ocean Acquisition Corporation
P.L.D. Enterprises, Inc.
▇▇▇▇▇▇ Drive and Navy Boulevard Property Corporation
Paw Paw Lake Road & Paw Paw Avenue-Coloma, Michigan, LLC
PDS-1 Michigan, Inc.
Perry Distributors, Inc.
Perry Drug Stores, Inc.
PL Xpress, Inc.
Portfolio Medical Services, Inc.
Rack Rite Distributors, Inc.
Ram-Utica, Inc.
RDS Detroit, Inc.
Reads, Inc.
Rite Aid Drug Palace, Inc.
Rite Aid Hdqtrs. Corp.
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maine, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Pennsylvania, Inc.
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
2
Rite Aid of Vermont, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid of West Virginia, Inc.
Rite Aid Realty Corp.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
Rite Investments Corporation
RX Choice, Inc.
Script South
Seven Mile and Evergreen-Detroit, LLC
Silver Springs Road-Baltimore, Maryland/One, LLC
Silver Springs Road-Baltimore, Maryland/Two, LLC
Sophie One Corp.
State & Fortification Streets-Jackson, Mississippi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇, LLC
Super Distributors, Inc.
Super Ice Cream Suppliers, Inc.
Super Laboratories, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc
The Lane Drug Company
The ▇▇▇▇ Company
Thrifty Corporation
Thrifty Payless, Inc
Thrifty Wilshire, Inc.
Tyler and ▇▇▇▇▇▇▇ Roads, Birmingham-Alabama, LLC
Virginia Corporation
W.R.A.C., Inc.
Fairground, LLC
▇▇▇▇▇▇▇▇▇▇'▇ Enterprises, Inc.
Leader Drugs, Inc.
3
Schedule 1
to the Second Priority
Subsidiary Security Agreement
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
[Uniform Commercial Code Filings]
[Patent and Trademark Filings]
[Copyright Filings]
Schedule 2
to the Second Priority
Subsidiary Security Agreement
INVENTORY LOCATIONS
See attached Inventory Perfection Chart
Schedule 3
to the Second Priority
Subsidiary Security Agreement
RECORDS OF ACCOUNTS
A. Each of the Grantors listed below keeps its records concerning the
Accounts at the following locations:
Rite Aid Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Rite Aid Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Grantors:
--------
Rite Aid Hdqtrs. Corp.
Rite Aid of Alabama, Inc.
Rite Aid of Connecticut, Inc.
Rite Aid of Delaware, Inc.
Rite Aid of Florida, Inc.
Rite Aid of Georgia, Inc.
Rite Aid of Illinois, Inc.
Rite Aid of Indiana, Inc.
Rite Aid of Kentucky, Inc.
Rite Aid of Maine, Inc.
Rite Aid of Maryland, Inc.
Rite Aid of Massachusetts, Inc.
Rite Aid of Michigan, Inc.
Rite Aid of New Hampshire, Inc.
Rite Aid of New Jersey, Inc.
Rite Aid of New York, Inc.
Rite Aid of North Carolina, Inc.
Rite Aid of Ohio, Inc.
Rite Aid of Pennsylvania, Inc.
Rite Aid of South Carolina, Inc.
Rite Aid of Tennessee, Inc.
Rite Aid of Vermont, Inc.
Rite Aid of Virginia, Inc.
Rite Aid of Washington, D.C., Inc.
Rite Aid of West Virginia, Inc.
Drug Fair of PA, Inc.
Drug Fair, Inc.
Eagle Managed Care Corp.
GDF, Inc.
Harco, Inc.
The Lane Drug Company
Keystone Centers, Inc.
Ocean Acquisition Corporation
Perry Drug Stores, Inc.
Reads, Inc.
Rite Aid Funding LLC
Rite Investments Corp.
Rite Aid Drug Palace, Inc.
Rite Aid Rome Distribution Center, Inc.
Rite Aid Transport, Inc.
RX Choice, Inc.
Script South
Thrifty Payless, Inc.
W.R.A.C., Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇ Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Inc.
5277 Associates, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Corporation
5600 Superior Properties, Inc.
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇.
▇▇▇▇▇▇▇▇▇ and Wallings - Broadview Heights Ohio, Inc.
Dominion Action One Corporation
Dominion Action Two Corporation
Dominion Action Three Corporation
Dominion Action Four Corporation
Dominion Drug Stores Corp.
England Street-Asheland Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation
Lakehurst and Broadway Corporation
▇▇▇▇▇▇ Drive and Navy Boulevard Property Corporation
Portfolio Medical Services, Inc.
Rack Rite Distributors, Inc.
Ram-Utica, Inc.
Rite Aid Venturer #1, Inc.
Rite Fund, Inc.
The ▇▇▇▇ Company
Virginia Corporation
K&B, Incorporated
2
K&B Alabama Corporation
K&B Florida Corporation
K&B Louisiana Corporation
K&B Mississippi Corporation
K&B Services, Incorporated
K&B Tennessee Corporation
K&B Texas Corporation
K&B Trainees, Inc.
▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
Super Distributors, Inc.
Super Ice Cream Suppliers, Inc.
Super Laboratories, Inc.
Super Pharmacy Network, Inc.
Super Tobacco Distributors, Inc.
Apex Drug Stores, Inc.
PDS-1 Michigan, Inc.
RDS Detroit, Inc.
Perry Distributors, Inc.
PL Xpress, Inc.
Thrifty Corporation
P.L.D. Enterprises, Inc.
Rite Aid Realty Corp.
Thrifty Wilshire, Inc.
Sophie One Corp.
Name Rite LLC ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ Inc.
1740 Associates, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇, ▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, LLC
▇▇▇ & Government Streets - Mobile, Alabama, LLC
Baltimore/Annapolis Boulevard & Governor Richie Hwy-Glen Burnie, MD, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇, ▇▇, LLC
Eighth and Water Streets - Ulrichsville, Ohio, LLC
Euclid and Wilders Roads- Bay City, LLC
Gettysburg and Hoover-Dayton, Ohio, LLC
Gratiot & Center - Saginaw Township, Michigan, LLC
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇- Monroe,
Louisiana, LLC Main & ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇, LLC
▇▇▇▇▇▇▇▇ & Chillicothe Roads - Chesterland, LLC
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC Northline & ▇▇▇- ▇▇▇▇▇▇ - Southgate, LLC
Paw Paw Lake Road & Paw Paw Avenue - Coloma, Michigan, LLC
▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, LLC
▇
▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC
Seven Mile and Evergreen - Detroit, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇/ One, LLC
Silver Springs Road - Baltimore, Maryland/ Two, LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇- ▇▇▇▇▇▇, ▇▇▇▇, LLC
State & Fortification Streets - Jackson, Mississippi, LLC
Tyler and ▇▇▇▇▇▇▇ Roads, Birmingham - Alabama, LLC
Fiona One Corp.
Fairground, LLC
▇▇▇▇▇▇▇▇▇▇'▇ Enterprises, Inc.
Leader Drugs, Inc.
4
Schedule 4
to the Second Priority
Subsidiary Security Agreement
RITE AID CORPORATION DOMAIN NAME REGISTRATIONS
-----------------------------------------------------------------------------------------------------------------------------------
Domain Name Date of Registration Owner Status
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ March 12, 2001 Rite Aid Corporation Record expires 3/12/02.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 14, 1998 Rite Aid Corporation Record expired 10/14/00.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ January 6, 1998 Rite Aid Corporation Record expires 1/7/03.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ April 28, 1999 Rite Aid Corporation Record expired 4/28/01.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ May 12, 1999 Rite Aid Corporation Record expired 5/12/01.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ May 12, 1999 Rite Aid Corporation Record expired 5/12/01.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 14, 1998 Rite Aid Corporation Record expired 10/14/00.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ March 28, 1996 Rite Aid Corporation Record expires 3/29/03.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 7, 1998 Rite Aid Corporation Record expired 10/7/00.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ May 13, 1999 Rite Aid Corporation Record expired 5/13/01.
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇-▇▇.▇▇▇ May 13, 1999 Rite Aid Corporation Record expired 5/13/01.
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▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ April 28, 1999 Rite Aid Corporation Record expired 4/28/01.
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▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ June 5, 1999 Rite Aid Corporation Record expired 6/5/01.
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 7, 1998 Rite Aid Corporation Record expired 10/7/00.
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▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ April 23, 1999 Rite Aid Corporation Record expired 4/23/01.
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Last Revised: June 18, 2001
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Domain Name Date of Registration Owner Status
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▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ April 23, 1999 Rite Aid Corporation Record expired 4/23/01.
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▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 7, 1998 Rite Aid Corporation Record expired 10/7/00.
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▇▇▇▇▇▇▇.▇▇▇ January 6, 1998 Rite Aid Corporation Record expires 1/7/03.
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ May 13, 1999 Rite Aid Corporation Record expired 5/13/01.
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▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ May 12, 1999 Rite Aid Corporation Record expired 5/12/01.
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▇▇▇▇▇▇▇▇▇▇-▇▇.▇▇▇ May 12, 1999 Rite Aid Corporation Record expired 5/12/01.
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▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ October 7, 1998 Rite Aid Corporation Record expired 10/7/00.
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▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ April 23, 1999 Rite Aid Corporation Record expired 4/23/01.
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▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ April 28, 1999 Rite Aid Corporation Record expired 4/28/01.
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Last Revised: June 18, 2001
2
RITE AID CORPORATION
PENDING FEDERAL APPLICATIONS
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
1-888-RITE AID Ser. No. 75/089,677 Retail drug store services, in Class 42. Rite Aid Corporation Application allowed
April 17, 1996 to abandon per
Intent-to-Use client's instructions.
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FLEXACIN Ser. No. 76/004,058 Nutritional supplements for promoting Name Rite, L.L.C. Notice of
March 17, 2000 bone and joint health, in Class 5. Allowance issued
Intent-to-Use 5/1/01; Statement of
Use or First Request
for Extension of
Time due 11/1/01.
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GOOD HEALTH Ser. No. 75/900,874 Providing health information services in Name Rite, L.L.C. Office Action
SOLUTIONS Plus January 20, 2000 the fields of self-care, nutrition, wellness issued 8/7/00,
Design Intent-to-Use and disease prevention; and providing response filed
health care services, namely health and 2/6/01; Per PTO
nutritional diagnostic tests, in Class 42. TRAM, approved
for publication as of
3/5/01--awaiting
publication notice.
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LIFE CHECK Ser. No. 75/306,055 Pharmacy services, namely, monitoring Rite Aid Corporation Notice of
June 10, 1997 drug interaction, in Class 42. Allowance issued
Intent-to-Use 10/31/00; Statement
of Use and Protective
Extension Request
filed 4/30/01; Per PTO
▇▇▇▇, application
accepted for
registration on
5/31/01.
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POCKET MINT Ser. No. 76/219,246 Mints, in Class 30. Name Rite, L.L.C. Examiner's
March 2, 2001 Amendment issued
Intent-to-Use on 6/4/01, entering
disclaimer of
"MINT" in
application.
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PROMPTSCRIPT Ser. No. 75/547,199 Pharmacy services, in Class 42. Name Rite, L.L.C. Abandoned per
September 3, 1998 Settlement
Intent-to-Use Agreement with
AutoMed
Technologies, Inc.
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PURE SPRING Ser. No. 76/153,195 Bubble bath, bath gel, bath oil, bath Name Rite, L.L.C. Office Action
October 24, 2000 powder, non-medicated bath salts, body issued 3/30/01;
Intent-to-Use cream, body oil, body powder, deodorant Response due
soap, skin moisturizer, shaving balm, 9/30/01.
after-shave lotions, hand, facial and body
lotion, shower gels, body shampoos, and
facial conditioner gels, excluding
sanitizing hand wash and instant hand
sanitizer with antibacterial properties, in
Class 3.
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3
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
QUICKFILL Ser. No. 75/547,599 Pharmacy services, in Class 42. Name Rite, L.L.C. Abandoned per
September 3, 1998 Settlement Agreement
Intent-to-Use with AutoMed
Technologies, Inc.
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RAPIDSCRIPT Ser. No. 75/541,962 Pharmacy services, in Class 42. Name Rite, L.L.C. Notice of
August 24, 1998 Allowance issued
Intent-to-Use 12/12/00; Statement
of Use and Protective
Extension Request
filed 5/1/01; Per PTO
▇▇▇▇, processing of
SOU completed as of
5/8/01.
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RITE AID GARDEN Ser. No. 75/373,987 Lawn and garden chemicals, namely, Rite Aid Corporation Allow to abandon
RITE October 6, 1997 pesticides and herbicides for domestic use, per client's
in Class 05. instructions.
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RITE AID Ser. No. 75/633,736 Retail pharmacy services, namely, Name Rite, L.L.C. Notice of
PHARMACY February 4, 1999 enabling customers to fill or refill Allowance issued
CONNECTION Plus Intent-to-Use prescription orders electronically via a 8/22/00; Statement
Design remote kiosk, in Class 42. of Use and
Protective Extension
Request filed 2/20/01;
Per PTO TRAM,
processing of SOU
completed as of
3/24/01.
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RITE AID Ser. No. 75/633,735 Retail pharmacy services, namely, Name Rite, L.L.C. Notice of
PRESCRIPTION February 4, 1999 enabling physicians to remotely transmit Allowance issued
CONNECTION Plus Intent-to-Use prescription orders via a global computer 8/22/00; Statement
Design network, in Class 42. of Use and
Protective Extension
Request filed 2/20/01;
Per PTO TRAM, SOU
forwarded to an
Examiner 4/12/01;
Office Action issued
on 5/10/01; Response
due 11/10/01.
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RITE NOW RX Ser. No. 75/547,598 Pharmacy services, in Class 42. Name Rite, L.L.C. Allowed to abandon
September 3, 1998 per client's
Intent-to-Use instructions.
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RITE AID SILVER Ser. No. 76/056,739 Promoting the sales of pharmaceutical Name Rite, L.L.C. Office Action
SAVERS DISCOUNT May 25, 2000 prescription products of others through a issued 11/22/00;
PROGRAM Intent-to-Use discount program, in Class 35. Response filed
5/21/01; awaiting
further examination.
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RITE AID WITH Ser. No. 76/205,946 Retail pharmacy services, in Class 35. Name Rite, L.L.C. Awaiting PTO
US IT'S February 7, 2001 examination.
PERSONAL Intent-to-Use
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SCRIPT-10 Ser. No. 75/547,198 Pharmacy services, in Class 42. Name Rite, L.L.C. Allowed to abandon
September 3, 1998 per client's
Intent-to-Use instructions.
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SCRIPTFAST Ser. No. 75/547,197 Pharmacy services, in Class 42. Name Rite, L.L.C. Abandoned per
September 3, 1998 Settlement
Intent-to-Use Agreement with
AutoMed
Technologies, Inc.
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4
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
SOAKED Ser. No. 76/116,046 Bath products, namely bubble bath, bath Name Rite, L.L.C. Office Action
August 24, 2000 salts and body wash; skin care issued 2/12/01;
Intent-to-Use preparations, namely skin lotion, in Class Response due
3. 8/12/01.
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SWIFTSCRIPT Ser. No. 75/547,802 Pharmacy services, in Class 42. Name Rite, L.L.C. Abandoned per
September 3, 1998 Settlement
Intent-to-Use Agreement with
AutoMed
Technologies, Inc.
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THE BIG FIZZ Ser. No. 75/808,596 Fruit flavored soft drinks, in Class 32. Name Rite, L.L.C. Notice of
September 23, 1999 Allowance issued
Intent-to-Use 6/20/00, though a
copy was not received
and is currently
unavailable. Statement
of Use and Protective
Extension Request
filed 12/20/00; Per
PTO TRAM as of
2/22/01, SOU accepted
and application will
register in due
course.
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WITH US IT'S Ser. No. 76/205,947 Retail pharmacy services, in Class 35. Name Rite, L.L.C. Awaiting PTO
PERSONAL February 7, 2001 examination.
Intent-to-Use
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COMPLI-LINE Reg. No. 1,987,679 Telephone advising and consulting service Name Rite, L.L.C. Sections 8 & 15
July 16, 1996 provided to pharmacy customers to assist declarations due
them in complying with prescribed medical between7/16/01 and
treatment, in Class 42. 7/16/02.
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CRYSTAL LAKE Reg. No. 2,362,972 Bottled water, in Class 32. Name Rite, L.L.C. Sections 8 & 15
June 27, 2000 declarations due
between 6/27/05 and
6/27/06.
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EAGLE MANAGED Reg. No. 2,302,313 Claims processing and insurance claims Name Rite, L.L.C. Sections 8 & 15
CARE December 21, 1999 administration of drug programs for third declarations due
party payors, in Class 36; Distributorship between 12/21/04 and
services for third party payors of computer 12/21/05.
software for management of prescription
drug programs, in Class 42.
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HARCO TOTAL Reg. No. 1,227,039 Distributorship services and rental of sick Harco Drug Inc. Renewal due 2/8/03.
CARE SICK ROOM February 8, 1981 room supplies and equipment, in Class 42.
SUPPLY SERVICE
Plus Design
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1-800-RITE AID Reg. No. 2,134,953 Retail drug store services, in Class 42. Name Rite, L.L.C. Sections 8 & 15
February 3, 1998 declarations due
between 2/3/03 and
2/3/04.
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5
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
BEAUTY THE RITE Reg. No. 2,243,537 Newsletters featuring information and tips Name Rite, L.L.C. Sections 8 & 15
WAY May 4, 1999 on the subjects of beauty, cosmetics, skin declarations due
care and health care, in Class 16; Providing between 5/4/04 and
advice related to cosmetics and beauty, in 5/4/05.
Class 41.
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CANADA'S Reg. No. 749,893 Canadian whisky, in Class 33. Name Rite, L.L.C. Renewal due 5/21/03.
DOMINION RARE May 21, 1963
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Reg. No. 787,900 Scotch whisky, in Class 33. Name Rite, L.L.C. Renewal due 4/6/05.
April 6, 1965
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FIRST CLASS Reg. No. 1,837,183 Mail order services featuring Name Rite, L.L.C. Allow to lapse per
PHARMACY Plus May 17, 1994 pharmaceuticals and other pharmacy client's instructions.
Design merchandise, in Class 42.
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FOR YOUR LIFE Reg. No. 2,115,340 Retail drug store services, in Class 42. Name Rite, L.L.C. Sections 8 & 15
RITE AID'S GOT November 25, 1997 declarations due
IT between 11/25/02 and
11/25/03.
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▇▇▇▇ DRUG Reg. No. 1,180,634 Retail drugstore services, in Class 42. Name Rite, L.L.C. Allow to lapse per
December 1, 1981 client's request.
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INTELL-RX Reg. No. 1,782,893 Providing management services; namely, Name Rite, L.L.C. Renewal due 7/20/03.
July 20, 1993 prescription drug utilization review, in
Class 35.
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JALTA Reg. No. 694,657 Vodka, in Class 33. Name Rite, L.L.C. Allow to lapse per
(Stylized) March 15, 1960 client's instructions.
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K & B Plus Reg. No. 954,207 Retail drug store services, in Class 42. Name Rite, L.L.C. Renewal due 2/27/03.
Design February 27, 1973
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K & B Plus Reg. No. 1,165,074 Retail drug store services, in Class 42. Name Rite, L.L.C. Renewal due 8/11/01.
Design August 11, 1981
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MAC ALPINE Reg. No. 695,802 Scotch whisky, in Class 33. Name Rite, L.L.C. Allow to lapse per
(Stylized) April 5, 1960 client's instructions.
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NITE AID Reg. No. 2,225,533 Retail pharmacy and drug store services, in Name Rite, L.L.C. Sections 8 & 15
February 23, 1999 Class 35. declarations due
between 2/23/04 and
2/23/05.
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OUTDOOR CHEF Reg. No. 2,379,844 Barbecue grills and hibachis, in Class 11; Rite Aid Sections 8 & 15
August 22, 2000 Barbecue utensils, grill covers and grill Corporation declarations due
Intent-to-Use cleaning brushes, in Class 21; Matches, in between 8/22/05 and
Class 34. 8/22/06.
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OUTDOOR Reg. No. 2,358,179 Carry-all bags, lunch totes, beach Rite Aid Sections 8 & 15
COMFORT May 23, 2000 umbrellas, hip packs, and water bottle Corporation declarations due
holders; in Class 18; Deck and patio between 5/23/05 and
furniture, in Class 20. 5/23/06.
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6
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
OWNER'S CHOICE Reg. No. 2,358,179 Pet foods, biscuits, treat and litter, in Rite Aid Sections 8 & 15
June 13, 2000 Class 31. Corporation declarations due
between 6/13/05 and
6/13/06.
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PERFECT PAIRS Reg. No. 2,427,245 Coupons for retail cosmetics and beauty Rite Aid Sections 8 & 15
February 6, 2001 products, in Class 16; Promoting the sale of Corporation declarations due
cosmetics and beauty products of others between 2/6/06 and
through the use of a coupon, discounts, 2/6/07.
and/or rebate program, in Class 35;
Providing discounts and/or rebates on the
purchase of cosmetics and beauty products
of others through the use of a promotional
program featuring combinations of
specifically identified complementary
products, in Class 36.
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PHOTO RITE Reg. No. 2,352,455 Retail drug store services, namely a section Rite Aid Sections 8 & 15
May 23, 2000 in a retail drug store featuring photographic Corporation declarations due
supplies and accessories, in Class 35; between 5/23/05 and
Photographic processing services, namely 5/23/06.
photo finishing, photographic printing and
photographic enlarging services, in Class
40.
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READY RX Reg. No. 2,161,704 Automated telephone prescription refill Name Rite, L.L.C. Sections 8 & 15
June 2, 1998 services, in Class 42. declarations due
between 6/2/03 and
6/2/04.
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REVELATIONS Reg. No. 1,809,431 Ice cream, in Class 30. Name Rite, L.L.C. Renewal due 12/7/03.
December 7, 1993
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RITE ADVICE Reg. No. 2,161,703 Providing personalized information to Name Rite, L.L.C. Sections 8 & 15
June 2, 1998 customers regarding prescription drugs they declarations due
have purchased, in Class 42. between 6/2/03 and
6/2/04.
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RITE AID Reg. No. 1,280,221 Retail drug store services, in Class 42. Name Rite, L.L.C. Renewal due 5/29/04.
May 29, 1984
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RITE AID Plus Reg. No. 875,773 Mouthwash, toothpaste, denture cleanser, Name Rite, L.L.C. Renewal due 8/26/09.
Design August 26, 1969 baby oil, personal deodorant, cream hair
rinse, glycerin and rose water, bath
oil, hair tonic, pre-electric shave
lotion, after-shave lotion, in Class 3;
Witch ▇▇▇▇▇, in Class 5.
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RITE AID Plus Reg. No. 877,669 Iodine; peroxide; alcohol; salt tablets; Name Rite, L.L.C. Renewal due 9/30/09.
Design September 30, 1969 aspirins; cough syrup, cold tablets and
capsules; medicated rubbing compound;
soda mint and antacid tablets; mineral
oils; rectal suppositories; milk of
magnesia; boric acid; powdered alum;
camphorated oil; spirits of camphor;
spirits of ammonia; peppermint, nitre
and turpentine; castor oil; glycerin;
medicated cream; and epsom salts, in
Class 5
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RITE AID Reg. No. 2,247,560 Retail store services in the field of Name Rite, L.L.C. Sections 8 & 15
COSMETICS May 25, 1999 cosmetics, in Class 35. declarations due
MONEY BACK between 5/25/04 and
GUARANTEE IT'S 5/25/05.
RISK FREE Plus
Design
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7
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
RITE AID Reg. No. 2,387,615 Retail store services in the field of Name Rite, L.L.C. Sections 8 & 15
COSMETICOS September 19, 2000 cosmetics, in Class 35. declarations due
GARANTIA DE between 9/19/05 and
DEVOLUCION DE 9/19/06.
TU DINERO EN
!SIN RIESGO!
Plus Design
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RITE AID GARDEN Reg. No. 2,373,996 Fertilizer for domestic use; potting soil, Rite Aid Sections 8 & 15
RITE August 1, 2000 in Class 1; Live flowers; live trees, live Corporation declarations due
shrubs; living vegetable plants; flower between 8/01/05 and
bulbs; top soil; mulch and seeds for plants 8/01/06
and flowers, in Class 31.
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RITE AID Reg. No. 2,281,756 Retail pharmacy services rendered by Name Rite, L.L.C. Sections 8 & 15
INTERNET September 28, 1999 means of a global computer network, in declarations due
REFILLS Class 42. between 9/28/04 and
▇▇▇.▇▇▇▇▇▇▇.▇▇ 9/28/05.
M Plus Design
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RITE AID IT'S Reg. No. 2,275,996 Retail drugstore and pharmacy services, in Name Rite, L.L.C. Sections 8 & 15
NOT JUST A September 7, 1999 Class 35. declarations due
STORE. IT'S A between 9/7/04 and
SOLUTION. 9/7/05.
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RITE AID 10 Reg. No. 2,421,850 Pharmacy services, in Class 42. Rite Aid Sections 8 & 15
MINUTE January 16, 2001 Corporation declarations due
PRESCRIPTIONS between 1/16/06 and
Plus Design 1/16/07.
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RITE AID Reg. No. 2,307,413 Providing retail pharmacy services through Name Rite, L.L.C. Sections 8 & 15
REFILLS BY January 11, 2000 an interactive tone and/or voice response declarations due
PHONE Plus telephone system, in Class 42. between 1/11/05 and
Design 1/11/06.
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RITE AID SINGLE Reg. No. 2,216,866 Promoting the sales of products of others Name Rite, L.L.C. Sections 8 & 15
CHECK REBATES January 12, 1999 through an in-house product rebate declarations due
Plus Design program for a drug store, in Class 35. between 1/12/04 and
1/12/05.
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RITE AID Reg. No. 2,318,513 Magazines in the field of health, vitamins Name Rite, L.L.C. Sections 8 & 15
VITAMIN February 15, 2000 and nutrition, in Class 16. declarations due
INSTITUTE between 2/15/05 and
MAGAZINE 2/15/06.
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RITE AID Reg. No. 2,304,222 Vitamins and herbal supplements, in Class Name Rite, L.L.C. Sections 8 & 15
VITAMIN December 28, 1999 5; retail drug store services and promoting declarations due
INSTITUTE Plus the sales of vitamins and herbal between 12/28/04 and
Design supplements through a product discount 12/28/05.
program, in Class 35; educational
services, namely, conducting classes and
seminars in the vitamin and herbal
supplement field, in Class 41.
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RITE EXPRESS Reg. No. 1,866,572 Packaging articles for transportation, in Name Rite, L.L.C. Renewal due 12/06/04.
December 6, 1994 Class 39.
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8
===================================================================================================================================
Serial No./ Next Action/
▇▇▇▇ Filing Date/ Description of Goods/Services Current Record Owner Deadline
Basis
===================================================================================================================================
RITE EXPRESS Reg. No. 1,924,009 Document photocopy and utility ▇▇▇▇ Name Rite, L.L.C. Sections 8 & 15
October 3, 1995 payment services, in Class 35; Providing declarations due
money orders; prepaid debit telephone 10/3/01.
calling card services, in Class 36; Key
duplicating services, in Class 37;
Facsimile transmission services, in
Class 38; Mailbox rental services, in
Class 39; Laminating and photographs,
cards, and the like, photo film
development and photo printing services,
in Class 40; Passport portrait
photography, in Class 42.
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RITE REWARDS Reg. No. 2,157,337 Promoting the sale of the goods of others Name Rite, L.L.C. Sections 8 & 15
May 12, 1998 through the administration of incentive declarations due
awards programs, in Class 35. between 5/12/03 and
5/12/04.
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RITE TASTE Reg. No. 2,062,350 Pretzels, thin pretzels, stick pretzels, Name Rite, L.L.C. Sections 8 & 15
May 13, 1997 corn and flour based chips, candy, cookies, declarations due
cakes and pies, popped popcorn, candy- between 5/13/02 and
coated popped popcorn, candied nuts, 5/13/03.
granola-based snack bars and mixes, tortilla
chips, and iced tea, in Class 30; Carbonated
soft drinks, bottled water, and fruit juices
and drinks, in Class 32.
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SCOTTS ▇▇▇▇ Reg. No. 720,102 Whisky, in Class 33. Name Rite, L.L.C. Allow to lapse per
August 15, 1961 client's instructions.
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SENTINEL Reg. No. 1,932,339 Smoker's articles, namely smoking tobacco Name Rite, L.L.C. Allow to lapse per
October 31, 1995 and snuff, in Class 34. client's instructions.
-----------------------------------------------------------------------------------------------------------------------------------
SPECIAL Reg. No. 2,223,490 Ice cream, sherbet and frozen yogurt, in Name Rite, L.L.C. Sections 8 & 15
OCCASION February 16, 1999 Class 30. declarations due
between 2/16/04 and
2/16/05.
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SPORTSMAN Reg. No. 637,987 Fishing tackle and equipment, namely, Name Rite, L.L.C. Renewal due 12/4/06.
(Stylized) December 4, 1956 rods, line, lures, leaders, leader material
and hooks, both loose and snelled, in Class
28.
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THE DIABETES Reg. No. 2,193,860 Consumer health information services in Name Rite, L.L.C. Sections 8 & 15
CONNECTION October 6, 1998 the field of diabetes and providing diabetes declarations due
screening tests, in Class 42. between 10/6/03 and
10/6/04.
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THRIFTY Reg. No. 1,813,929 Badminton rackets, air mattresses, table Name Rite, L.L.C. Renewal due 12/28/03.
December 28, 1993 tennis sets, table tennis balls, baseball
gloves, fishing reels,
fish hooks, fish line,
snap swivels, fish rods,
dry flies, lures, and golf
balls, in Class 28.
-----------------------------------------------------------------------------------------------------------------------------------
TRYLON Reg. No. 697,070 Electrified Christmas tree light bulbs and Name Rite, L.L.C. Allow to lapse per
(Stylized) May 3, 1960 ornaments, in Class 11; Christmas tree client's instructions.
decorations; Christmas tree ornaments and
artificial Christmas wreaths, in Class 28.
-----------------------------------------------------------------------------------------------------------------------------------
YULE RITE Reg. No. 1,860,176 Name Rite, L.L.C. Renewal due 10/25/04.
October 25, 1994
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9
RITE AID CORPORATION TRADEMARK LICENSES
Trademark License Agreement (Wholesale Goods), dated as of May 31, 1988, between
Name Rite, Inc. and Rite Aid Rome Distribution Center, Inc.
Trademark License Agreement (Wholesale Goods), dated as of May 31, 1988, between
Name Rite, Inc. and Rite Aid Distributors, Inc.
Trademark License Agreement (Wholesale Goods), dated as of May 31, 1988, between
Name Rite, Inc. and Rite Aid of West Virginia, Inc.
Trademark License Agreement (Wholesale Goods), dated as of May 31, 1988, between
Name Rite, Inc. and Rite Aid of South Carolina, Inc.
Trademark License Agreement (Wholesale Goods), dated as of May 31, 1988, between
Name Rite, Inc. and Rite Aid of Florida, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Alabama, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Connecticut, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Delaware, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Florida, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Georgia, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Indiana, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Kentucky, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Keystone Centers, Inc.
10
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Maryland, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Massachusetts, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Michigan, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of New Hampshire, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of New Jersey, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of New York, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of North Carolina, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Ohio, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Pennsylvania, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Rhode Island, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of South Carolina, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Tennessee, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Vermont, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Virginia, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of Washington, D.C., Inc.
11
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid of West Virginia, Inc.
Trademark License Agreement (Stores and Retail Goods), dated as of May 31, 1988,
between Name Rite, Inc. and Rite Aid Drug Palace, Inc.
Trademark License Agreement (Regarding K&B ▇▇▇▇), dated as of March 5, 1999,
between KBS Enterprises Inc. and Rite Aid Corporation.
12
RITE AID CORPORATION
FOREIGN APPLICATIONS AND REGISTRATIONS
==============================================================================================================================
▇▇▇▇ Country Reg. No./Ser. No. Description of Current Record Next Action/
Reg./Filing Date Goods/Services Owner Deadline
==============================================================================================================================
REVELATIONS Mexico 447,099 Ice cream, in Class 30. Name Rite, L.L.C. Renewal due 2/12/03.
November 24, 1993
------------------------------------------------------------------------------------------------------------------------------
SPECIAL Mexico 466,334 Frozen yogurt, in Class Name Rite, L.L.C. Renewal due 2/12/03.
OCCASION July 13, 1994 29.
------------------------------------------------------------------------------------------------------------------------------
SPECIAL Mexico 466,333 Ice cream and sherbet, Name Rite, L.L.C. Renewal due 2/12/03.
OCCASION July 13, 1994 in Class 30.
------------------------------------------------------------------------------------------------------------------------------
THRIFTY Mexico 602,624 Ice cream, sherbet and Name Rite, L.L.C. Certificate of
March 4, 1999 frozen confectionery, in Registration received
Class 30. 5/24/01.
------------------------------------------------------------------------------------------------------------------------------
THRIFTY Mexico 518,855 Frozen dairy desserts, Name Rite, L.L.C. Renewal due 2/25/03.
March 18, 1996 including frozen yogurt
desserts, in Class 30.
------------------------------------------------------------------------------------------------------------------------------
THRIFTY Plus Mexico 426,602 Ice creams, in Class 30. Name Rite, L.L.C. Renewal due 6/3/02.
Design November 17, 1992
------------------------------------------------------------------------------------------------------------------------------
THRIFTY Plus Mexico 462,012 Commercialization of Name Rite, L.L.C. Renewal due 6/3/02.
Design May 16, 1994 ice creams, pastries and
confectionery, in Class
42.
==============================================================================================================================
Last Revised: June 18, 2001
13
RITE AID CORPORATION
STATE REGISTRATIONS
====================================================================================================================================
▇▇▇▇ State Registration Description of Current Record Status/Next Action
No./Date Goods/Services Owner Required
====================================================================================================================================
MONOGRAM 6 California 46,606 Whiskey, in Class 33. Name Rite, L.L.C. Renewed; next renewal
August 9, 1968 due 8/9/08.
------------------------------------------------------------------------------------------------------------------------------------
K-B Louisiana 361,588 Retail merchandise, in Name Rite, L.L.C. Renewed; next renewal
December 15, 1978 Class 42. due 12/15/08.
------------------------------------------------------------------------------------------------------------------------------------
K-B Louisiana 501,995 Retail drugstore and/or Name Rite, L.L.C. Registered; renewal due
October 13, 1992 photo shop, in Classes 5 10/13/02.
and 42.
------------------------------------------------------------------------------------------------------------------------------------
K-B Louisiana 501,996 Retail drugstore and/or Name Rite, L.L.C. Registered; renewal due
October 13, 1992 retail photo shop of the 10/13/02.
superstore classification
including and applying
classes of merchandise
in Classes 5 and 42.
------------------------------------------------------------------------------------------------------------------------------------
KB Louisiana 361,548 Retail merchandise, in Name Rite, L.L.C. Renewed; next renewal
December 15, 1978 Class 42. due 12/15/08.
------------------------------------------------------------------------------------------------------------------------------------
KB Louisiana 501,997 Retail drugstore and/or Name Rite, L.L.C. Registered; renewal due
October 13, 1992 retail photo shop of the 10/13/02.
superstore classification
including and applying
classes of merchandise
in Classes 5 and 42.
------------------------------------------------------------------------------------------------------------------------------------
Last Revised: June 18, 2001
14
====================================================================================================================================
▇▇▇▇ State Registration Description of Current Record Status/Next Action
No./Date Goods/Services Owner Required
====================================================================================================================================
KB Louisiana 501,998 Retail drugstore and/or Name Rite, L.L.C. Registered; renewal due
October 13, 1992 photo shop of the 10/13/02.
superstore classification
including and applying
various classes of
merchandise, in Class
42.
------------------------------------------------------------------------------------------------------------------------------------
KB Plus Louisiana 501,991 Retail drug store and/or Name Rite, L.L.C. Registered; renewal due
Design October 13, 1992 photo shop of the superstore 10/13/02.
classification including
and applying to various
merchandise, in Classes
5, 16 and 42.
------------------------------------------------------------------------------------------------------------------------------------
Last Revised: June 18, 2001
15
RITE AID CORPORATION COPYRIGHT REGISTRATIONS
-----------------------------------------------------------------------------------------------------------------------------
Title of Work Reg. No./Reg. Date Owner Status/Comments
-----------------------------------------------------------------------------------------------------------------------------
Rite Aid Corporation Index TX4771731 Name Rite, L.L.C. Registered; Chain of title is
(Internet Web Site) May 8, 1998 clear.
-----------------------------------------------------------------------------------------------------------------------------
Last Revised: June18, 2001
16
Schedule 5
to the Second Priority
Subsidiary Security Agreement
PERFECTION CERTIFICATE
Last Revised: June18, 2001