Execution Copy
Proprietary and Confidential
SECURITY AGREEMENT
between
RITE AID REALTY CORP.
and
XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not in
its individual capacity but solely
as Trustee of RAC Distribution Statutory Trust
Dated as of June 27, 2001.(i)
TABLE OF CONTENTS
Page
ARTICLE I SECURITY INTERESTS ................................................ 1
1.1. Grant of Security Interests............................................ 1
1.2. Power of Attorney...................................................... 2
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS ................ 2
2.1. Necessary Filings...................................................... 2
2.2. No Liens............................................................... 2
2.3. Other Financing Statements............................................. 3
2.4. Chief Executive Office................................................. 3
2.5. Location of Equipment.................................................. 3
2.6. Recourse............................................................... 4
2.7. Trade Names; Change of Name............................................ 4
ARTICLE III PROVISIONS CONCERNING COLLATERAL ................................ 4
3.1. Protection of Lessor's Security........................................ 4
3.2. Further Actions........................................................ 4
3.3. Financing Statements................................................... 5
ARTICLE IV REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT...................... 5
4.1. Remedies; Obtaining the Equipment Collateral Upon Default ............. 5
4.2. Remedies; Disposition of the Equipment Collateral ..................... 6
4.3. Waiver of Claims....................................................... 7
4.4. Remedies Cumulative.................................................... 8
4.5. Discontinuance of Proceedings.......................................... 8
ARTICLE V MISCELLANEOUS ..................................................... 8
5.1. Notices................................................................ 8
5.2. Waiver; Amendment...................................................... 9
5.3. Obligations Absolute................................................... 9
5.4. Successors and Assigns; Reliance on Representations ................... 9
5.5. Headings Descriptive................................................... 9
5.6. Governing law.......................................................... 9
5.7. Company's Duties....................................................... 9
5.8. Termination; Release................................................... 10
5.9. Counterparts........................................................... 10
5.10. Severability........................................................... 10
(i)
Page
----
5.11. Benefit of Agreement................................................... 10
5.12. Exculpation of Trustee................................................. 11
SCHEDULE I - Schedule of Equipment
SCHEDULE II - Schedule of Equipment Locations
SCHEDULE III - Schedule of Trade and Fictitious Names
(ii)
SECURITY AGREEMENT
Proprietary and Confidential
SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of June 27, 2001, made
by RITE AID REALTY CORP., a Delaware corporation (the "Company") in favor of
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Trustee of the RAC Distribution Statutory Trust (the "Lessor").
Except as otherwise defined herein, capitalized terms used herein and defined in
the Participation Agreement (as defined below) shall be used herein as so
defined, and the rules of construction set forth in Part I of Appendix A to the
Participation Agreement shall apply to this Security Agreement.
W I T N E S S E T H :
WHEREAS, the Company, Rite Aid Corporation, the Lessor, the persons
named therein as Note Holders and Certificate Holders and Citicorp USA, Inc., as
Agent have entered into a Participation Agreement, dated as of the date hereof
(the "Participation Agreement");
WHEREAS, in connection with the transactions contemplated by the
Participation Agreement, the Company and the Lessor have entered into the Lease
pursuant to which the Lessor has agreed to lease the Property to the Lessor;
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Participation Agreement that the Company shall
have executed and delivered to the Lessor this Agreement;
NOW, THEREFORE, in consideration of the benefits accruing to the
Company, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby makes the following representations and warranties to the Lessor
and hereby covenants and agrees with the Lessor as follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. As security for the prompt and
complete payment and performance when due of all of the Company's obligations
under the Operative Documents (including its obligation to pay Rent, Termination
Value and the Residual Value Amount) (collectively, the "Obligations"), the
Company does hereby assign and transfer unto the Lessor, and does hereby pledge
and grant to the Lessor, a continuing security interest in, all of the right,
title and interest of the Company in, to and under all of the following, whether
now existing or hereafter from time to time acquired: (i) the equipment
described on Schedule I hereto (the "Equipment"), and (ii) all proceeds (as
defined in the UCC) and products of the foregoing (all of the above,
collectively, the "Equipment Collateral").
1.2. Power of Attorney. The Company hereby constitutes and appoints the
Lessor its true and lawful attorney, irrevocably, with full power after the
occurrence of and during the continuance of a Default, Event of Default or
Non-Performance Event (in the name of the Company or otherwise) to act, require,
demand, receive, compound and give acquittance for any and all moneys and claims
for moneys due or to become due to the Company under or arising out of the
Equipment Collateral, and to file any claims or take any action or institute any
proceedings which the Lessor may deem to be necessary or advisable to protect
its interests, which appointment as attorney is coupled with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Company represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this Agreement,
as follows:
2.1. Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve and perfect the security interest
granted by the Company to the Lessor hereby in respect of the Equipment
Collateral have been accomplished and the security interest granted to the
Lessor pursuant to this Agreement in and to the Equipment Collateral creates a
perfected security interest therein prior to the rights of all other Persons
therein and subject to no other Liens (other than Liens granted pursuant to the
Security Documents) and is entitled to all the rights, priorities and benefits
afforded by the UCC or other relevant law as enacted in any relevant
jurisdiction to perfected security interests, in each case to the extent that
the Equipment Collateral consists of the type of property in which a security
interest may be perfected by filing a financing statement under the UCC as
enacted in any relevant jurisdiction.
2.2. No Liens. The Company is and will be the owner of all Equipment
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Liens granted pursuant to the
Security Documents), and the Company shall defend the Equipment Collateral
against all claims and demands of all Persons at any time claiming the same or
any interest therein adverse to the Lessor.
2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Equipment Collateral (other than financing statements filed in
respect of Liens granted pursuant to the Security Documents), and so long as the
Termination Date (as defined in Section 5.8) has not occurred, the Company will
not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Equipment Collateral, except
financing statements filed or to be filed in respect of and covering the
security interests granted hereby by the Company or in connection with the other
Security Documents.
2.4. Chief Executive Office. The chief executive office of the Company
is located at 00 Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000-0000. The Company
will not move its chief executive office except to such new location as the
Company may establish in accordance with the immediately succeeding sentence.
The Company shall not establish new locations for its chief executive office
until (i) it shall have given to Lessor and the Agent not less than 15 days'
prior written notice of its intention to do so, clearly describing such new
location and providing such other information in connection therewith as the
Lessor and the Agent ma y reasonably request, (ii) with respect to such new
location, it shall have taken all action reasonably satisfactory to the Lessor
and the Agent to maintain the security interest of the Lessor in the Equipment
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect and (iii) at the request of the Lessor, it shall have
furnished an opinion of counsel reasonably acceptable to the Lessor and the
Agent to the effect that all financing or continuation statements and ame
ndments or supplements thereto have been filed in the appropriate filing office
or offices, and all other actions have been taken, in order to perfect (and
maintain the perfection of) the security interest granted hereby.
2.5. Location of Equipment. All Equipment is located at one of the
locations shown on Schedule II hereto. The Company agrees that all Equipment
shall be kept at any one of the locations shown on Schedule II hereto, or such
new location as the Company may establish in accordance with the immediately
succeeding sentence. The Company may establish a new location for any of the
Equipment only if (i) it shall have given to the Lessor and the Agent not less
than 15 days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Lessor and the Agent may request, (ii) with respect to such new location,
it shall have taken all action reasonably satisfactory to the Lessor and the
Agent to maintain the security interest of the Lessor in the Equipment
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect and (iii) at the request of the Lessor, it shall have
furnished an opinion of counsel reasonably acceptable to the Lessor and the
Agent to the effect that all financing or continuation statements and amendments
or supplements thereto have been filed in the appropriate filing office or
offices, and all other actions have been taken, in order to perfect (and
maintain the perfection of) the security interest granted hereby.
2.6. Recourse. This Agreement is made with full recourse to the
Company.
2.7. Trade Names; Change of Name. The Company has not operated in any
jurisdiction under, or in the preceding five years has had or has operated in
any jurisdiction under, any trade names, fictitious names or other names except
its legal name and such other trade or fictitious names as are listed on
Schedule III hereto. The Company shall not change its legal name or assume or
operate in any jurisdiction under any trade, fictitious or other name except
those names listed on Schedule III hereto and new names established in
accordance with the immediately succeeding sentence. The Company shall not
assume or operate in any jurisdiction under any new trade, fictitious or other
name until (i) it shall have given to the Lessor and the Agent not less than 15
days' prior written notice of its intention so to do, clearly describing such
new name and the jurisdictions in which such new name shall be used and
providing such other information in connection therewith as the Lessor and the
Agent may reasonably request, (ii) with respect to such new name, it shall have
taken all action reasonably requested by the Lessor to maintain the security
interest of the Lessor in the Equipment Collateral intended to be granted hereby
at all times fully perfected and in full force and effect and (iii) at the
request of the Lessor, it shall have furnished an opinion of counsel reasonably
acceptable to the Lessor and the Agent to the effect that all financing or
continuation statements and amendments or supplements thereto have been filed in
the appropriate filing office or offices, and all other actions have been taken,
in order to perfect (and maintain the perfection of) the security interest
granted hereby.
ARTICLE III
PROVISIONS CONCERNING COLLATERAL
3.1. Protection of Lessor's Security. The Company will do nothing to
impair the rights of the Lessor in the Equipment Collateral. The Company will at
all times keep the Equipment insured in favor of the Lessor, at the Company's
own expense to the extent and in the manner provided in the Section 5.03 of the
Senior Credit Facility. The Company assumes all liability and responsibility in
connection with the Equipment Collateral and the liability of the Company to pay
the Obligations shall in no way be affected or diminished by reason of the fact
that any Equipment Collateral may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to the Company.
3.2. Further Actions. The Company will, at its own expense and upon the
request of the Lessor, make, execute, endorse, acknowledge, file and/or deliver
to the. Lessor from time to time such lists and descriptions of the Equipment
Collateral, fina ncing statements and other assurances or instruments and take
such further steps relating to the Equipment Collateral, which the Lessor or the
Agent deems reasonably appropriate or advisable to perfect, preserve or protect
its security interest in the Equipment Collateral.
3.3. Financing Statements. The Company agrees to execute and deliver to
the Lessor such financing statements, in form reasonably acceptable to the
Lessor, as the Lessor may from time to time reasonably request or as are
necessary or desirable in the opinion of the Lessor to establish and maintain a
valid, enforceable, first priority perfected security interest in the Equipment
Collateral as provided herein and the other rights and security contemplated
hereby all in accordance with the UCC as enacted in any and all relevant
jurisdictions or any other relevant law. The Company will pay any applicable
filing fees, recordation taxes and related expenses relating to the Equipment
Collateral. The Company hereby authorizes the Lessor to file any such financing
statements without the signature of the Company where permitted by law.
ARTICLE IV
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
OR NON-PERFORMANCE EVENT
4.1. Remedies; Obtaining the Equipment Collateral Upon Default. The
Company agrees that, if any Event of Default or Non-Performance Event shall have
occurred and be continuing, then and in every such case, the Lessor, in addition
to any rights now or hereafter existing under applicable law, shall have all
rights as a secured creditor under any UCC, and such additional rights and
remedies to which a secured creditor is entitled under the laws in effect, in
all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Equipment Collateral or any part thereof, from the
Company or any other Person who then has possession of any part thereof
with or without notice or process of law, and for that purpose may
enter upon such Company's premises where any of the Equipment
Collateral is located and remove the same and use in connection with
such removal any and all services, supplies, aids and other facilities
of the Company;
(ii) sell, assign or otherwise liquidate any or all of the
Equipment Collateral or any part thereof in accordance with Section 4.2
hereof, or direct the Company to sell, assign or otherwise liquidate
any or all of the Equipment Collateral or any part thereof, and, in
each case, take possession of the proceeds of any such sale or
liquidation;.
(iii) take possession of the Equipment Collateral or any part
thereof, by directing the Company in writing to deliver the same to the
Lessor at any place or places designated by the Lessor, in which event
such Company shall at its own expense:
(x) forthwith cause the same to be moved to the place or
places so designated by the Lessor and there delivered to the
Lessor;
(y) store and keep any Equipment Collateral so delivered to
the Lessor at such place or places pending further action by the
Lessor as provided in Section 4.2 hereof; and
(z) while the Equipment Collateral shall be so stored and
kept, provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain them in
good condition;
it being understood that each Company's obligation so to deliver the Equipment
Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Lessor shall be
entitled to a decree requiring specific performance by the Company of said
obligation.
4.2. Remedies; Disposition of the Equipment Collateral. If any Event of
Default shall have occurred and be continuing, then any Equipment Collateral
repossessed by the Lessor under or pursuant to Section 4.1 hereof and any other
Equipment Collateral whether or not so repossessed by the Lessor, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Lessor may, in compliance with any
mandatory requirements of applicable law, determine to be commercially
reasonable. Any of the Equipment Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the Lessor
or after any overhaul or repair at the expense of the Company which the Lessor
shall determine to be commercially reasonable. Any such disposition which shall
be a private sale or other private proceedings permitted by such requirements
shall be made upon not less than 10 days' prior written notice to the Company
specifying the time at which such disposition is to be made and the intended
sale price or other consideration therefor, and shall be subject, for the 10
days after the giving of such notice, to the right of the Company or any nominee
of the Company to acquire the Equipment Collateral involved at a price or for
such other consideration at least equal to the intended sale price or other
consideration so specified. Any such disposition which shall be a public sale
permitted by such requirements shall be made upon not less than 10 days' prior
written notice to the Company specifying the time and place of such sale and, in
the absence of applicable requirements of law, shall be by public auction (which
may, at the Lessor's option, be subject to reserve), after publication of notice
of such auction (where required by applicable law) not less than 10 days prior
thereto. The Lessor may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned. To the extent permitted by any
such requirement of law, the Lessor may bid for and become the purchaser of the
Equipment Collateral or any item thereof, offered for sale in accordance with
this Section without accountability to the Company. If, under mandatory
requirements of applicable law, the Lessor shall be required to make disposition
of the Equipment Collateral within a period of time which does not permit the
giving of notice to the Company as hereinabove specified, the Lessor need give
the Company only such notice of disposition as shall be reasonably practicable
in view of such mandatory requirements of applicable law. The Company agrees to
do or cause to be done all such other acts and things as may be reasonably
necessary to make such sale or sales of all or any portion of the Equipment
Collateral valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at the Company's expense.
4.3 Waiver of Claims. Except as otherwise provided in this Agreement,
THE COMPANY HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND
JUDICIAL HEARING IN CONNECTION WITH THE LESSOR'S TAKING POSSESSION OR THE
LESSOR'S DISPOSITION OF ANY OF THE EQUIPMENT COLLATERAL, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES, and the Company hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Lessor's gross negligence or
willful misconduct;
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Lessor's
rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or
the absolute sale of the Equipment Collateral or any portion thereof,
and the Company, for itself and all who may claim under it, insofar as
it or they now or hereafter lawfully may, hereby waives the benefit of
all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Equipment Collateral shall operate to divest all right, title, interest,
claim and demand, either at law or in equity, of the Company therein and
thereto, and shall be a perpetual bar both at law and in equity against the
Company and against any and all Persons claiming or attempting to claim the
Equipment Collateral so sold, optioned or realized upon, or any part thereof,
from, through and under the Company.
4.4. Remedies Cumulative. Each and every right, power and remedy hereby
specifically given to the Lessor shall be in addition to every other right,
power and remedy specifically given under this Agreement and the other Operative
Documents, or now or hereafter existing at law, in equity or by statute and each
and every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as often and
in such order as may be deemed expedient by the Lessor. All such rights, powers
and remedies shall be cumulative and the exercise or the beginning of the
exercise of one shall not be deemed a waiver of the right to exercise any other
or others. No delay or omission of the Lessor in the exercise of any such right,
power or remedy and no renewal or extension of any of the Obligations shall
impair any such right, power or remedy or shall be construed to be a waiver of
any Default, Event of Default or Non-Performance Event or an acquiescence
therein. No notice to or demand on the Company in any case shall entitle it to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Lessor to any other or further
action in any circumstances without notice or demand. In the event that the
Lessor shall bring any suit to enforce any of its rights hereunder and shall be
entitled to judgment, then in such suit the Lessor may recover reasonable
expenses, including reasonable attorneys' fees, and the amounts thereof shall be
included in such judgment.
4.5. Discontinuance of Proceedings. In case the Lessor shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Lessor, then and in every such case the Company and the Lessor
shall be restored to their former positions and rights hereunder with respect to
the Equipment Collateral subject to the security interest created under this
Agreement, and all rights, remedies and powers of the Lessor shall continue as
if no such proceeding had been instituted.
ARTICLE V
MISCELLANEOUS
5.1. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be made in accordance with Section 9.02 of the Participation
Agreement.
5.2. Waiver; Amendment. None of the terms and cond itions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless done so in accordance with Section 9.04 of the Participation Agreement.
5.3. Obligations Absolute. The obligations of the Company hereunder
shall remain in full force and effect without regard to, and shall not be
impaired by (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Company; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement or any other Operative Document;
or (c) any amendment to or modification of any Operative Document or any
security for any of the Obligations; whe ther or not the Company shall have
notice or knowledge of any of the foregoing.
5.4. Successors and Assigns; Reliance on Representations. (a) This
Agreement shall be binding upon the Company and its successors and assigns
(although the Company may not assign its rights and obligations hereunder except
in accordance with the provisions of the Participation Agreement) and shall
inure to the benefit of the Lessor and its successors and assigns. The Company
acknowledges and consents to the assignment of this Agreement by the Lessor to
the Agent pursuant to the Assignment and Security Agreement.
(b) All agreements, statements, representations and warranties made by
the Company herein or in any certificate or other instrument delivered by the
Company or on its behalf under this Agreement shall be considered to have been
relied upon by the Lessor and shall survive the execution and delivery of this
Agreement and the other Operative Agreements regardless of any investigation
made by the Lessor or on its behalf.
5.5. Headings Descriptive. The headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
5.6. Governing law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
5.7. Company's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the Company shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Equipment Collateral and the Lessor shall not have any obligations or
liabilities with respect to any Equipment Collateral by reason of or arising out
of this Agreement, nor shall the Lessor be required or obligated in any manner
to perform or fulfill any of the obligations of the Company under or with
respect to any Equipment Collateral.
5.8. Termination; Release. (a) After the Termination Date (defined
below), this Agreement shall terminate and the Lessor, at the request and
expense of the Company, will promptly execute and deliver to the Company a
proper instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to the Company (without
recourse and without any representation or warranty) such of the Equipment
Collateral as may be in the possession of the Lessor and as has not theretofore
been sold or otherwise applied or released pursuant to this Agreement. As used
in this Agreement, "Termination Date" shall mean the date upon which the
Operative Documents have been terminated and all Obligations then owing have
been paid in full.
(b) In the event that any part of the Equipment Collateral is sold in
connection with a sale permitted by Section 6.04 or 6.06(b) of the Participation
Agreement (other than a sale to the Company or a Subsidiary thereof) or
otherwise released and the proceeds of such sale or sales or from such release
are applied in accordance with the provisions of Section 6.06(b) of the
Participation Agreement, to the extent required to be so applied, such Equipment
Collateral will be sold free and clear of the Liens created by this Agreement
and the Lessor, at the request and expense of the Company, will duly assign,
transfer and deliver to the Company (without recourse and without any
representation or warranty) such of the Equipment Collateral as is then being
(or has been) so sold or released and as may be in the possession of the Lessor
and has not theretofore been released pursuant to this Agreement.
5.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Company and the
Lessor.
5.10. 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.
5.11. Benefit of Agreement. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns.
5.12 Exculpation of Trustee. Except for its own gross negligence and
willful misconduct and as otherwise expressly provided in the Operative
Documents, it is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by WFBN, not in its individual capacity
but solely as Trustee under the Trust Agreement, in the exercise of the powers
and authority conferred and vested in it as the Trustee under the Trust
Agreement, (b) each of the undertakings and agreements herein made on the part
of the Trustee is made and intended not as a personal representation,
undertaking and agreement by WFBN but is made and intended for the purpose for
binding only the Trustee and the Trust Estate, (c) nothing herein contained
shall be construed as creating any liability on WFBN, individually or
personally, to perform any obligation of the Trustee either expressed or implied
contained herein or in the Operative Documents, all such liability, if any,
being expressly waived by the parties to this Agreement and by any Person
lawfully claiming by, through or under the parties to this Agreement and (d)
under no circumstances shall WFBN be personally liable for the payment of any
indebtedness or expenses of the Trustee or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trustee hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
RITE AID REALTY CORP.
By ____________________
Name:
Title:
Accepted and Agreed to:
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Trustee of RAC Statutory Trust
By_________________________________________________
Name:
Title:
Schedule I to
Security Agreement
EQUIPMENT SCHEDULE
"Equipment" shall mean all right, title and interest in, to and under
all of the Company's "equipment", as such term is defined in the Uniform
Commercial Code of the State of New York as in effect from time to time, located
at the Locations (as defined below) and, in any event, including, but not
limited to, all machinery, equipment, furnishings and vehicles, together with
all attachments, components, parts, equipment and accessories installed thereon
or affixed thereto.
"Locations" shall mean, collectively, the distribution centers operated
by the Company and located at (a) 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx and (b)
0000 Xxxx Xxxxxx X, Xxxxxxxxx, Xxxxxxxxxx.
Schedule II to
Security Agreement
SCHEDULE OF EQUIPMENT LOCATIONS
000 Xxxxxxx Xxxx 0000 Xxxx Xxxxxx X
Xxxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx
(Harford County) (Los Angeles County)
Schedule III to
Security Agreement
SCHEDULE OF TRADE AND FICTITIOUS NAMES
None.
