NOTE EXCHANGE AGREEMENT
This NOTE EXCHANGE AGREEMENT (the "Agreement") is entered into as of
June 27, 2001, by and among Rite Aid Corporation, a Delaware corporation (the
"Company"), and the entities listed on Schedule I hereto (the "Exchanging
Holders").
WHEREAS, the Company has issued to the Exchanging Holders, and there
remains outstanding, an aggregate of $152,025,000 principal amount of its 10.5%
Senior Secured Notes due 2002 (the "Original Notes") in the amounts set forth in
Schedule I hereto;
WHEREAS, pursuant to an offer to exchange, the Company desires to issue
to the Exchanging Holders, and the Exchanging Holders desire to acquire from the
Company, in exchange for all of their respective Original Notes, an equal
principal amount of 12.5% Senior Secured Notes due September 15, 2006 (the
"Exchange Notes") in the amounts set forth in Schedule I hereto and warrants
(the "Warrants"), which will expire in five years, to purchase up to an
aggregate of 3,000,000 shares of the Company's common stock, $1.00 par value per
share (the "Common Stock"), at an exercise price of $6.00 per share, on the
terms and subject to the conditions set forth herein, (such exchange, the
"Exchange"); and
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. The Exchange Offer.
(a) Exchange. Subject to the terms and conditions hereof, the
Company hereby agrees to issue to the Exchanging Holders (i) $1,000 aggregate
principal amount of Exchange Notes and (ii) a Warrant to purchase 19.7336 shares
of Common Stock, for every $1,000 aggregate principal amount of Original Notes
tendered in the Exchange. Any unpaid interest on the Original Notes accrued
through June 26, 2001 will become immediately due and payable on the Closing
Date (as defined herein).
(b) Terms of the Exchange Notes. The Exchange Notes will be governed
by an Indenture (the "Indenture"), dated as of June 27, 2001 between the Company
and State Street Bank and Trust Company, as trustee, the form of which is
attached as Exhibit A hereto.
Subject to the terms and conditions hereof, interest accrues on the
principal amount of the Exchange Notes at 12.5% per annum. Interest is payable
on the Exchange Notes and distributions will be made semi-annually in arrears on
March 15 and September 15 of each year, commencing on September 15, 2001.
2. Closing.
The consummation of the Exchange (the "Closing") shall occur at the
offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, New York, New York,
simultaneously with Closing of the Refinancing (as defined herein), at 9:00 a.m.
New York City time on June 27, 2001 (the "Closing Date") or at such other time
and place as the Company and the Exchanging Holders mutually agree in writing.
Prior to the time of Closing, the Company shall deliver to one or more
custodians for the Exchanging Holders, one or more certificates registered in
the name of the nominee of the custodian, evidencing the Warrants against
delivery to the Company through the facilities of The Depository Trust Company
("DTC"), of an aggregate of $152,025,000 principal amount of its 10.5% Senior
Secured Notes due 2002. The custodians will execute such documents reasonably
necessary to evidence receipt of such Warrants. If for any reason, the Closing
does not occur within twenty-four hours of the Company's delivery to the
custodians of the Warrants, the custodians shall immediately return such
Warrants to the Company or an authorized representative thereof. At the Closing,
the Company will cause to be delivered to the Exchanging Holders (i) the
Exchange Notes through the facilities of DTC, (ii) the legal opinion set forth
in Section 5 herein and (iii) an executed copy of the Registration Rights
Agreement, dated as of the date hereof by and between the Company and the
entities party thereto and (iv) an executed copy of the Exchange and
Registration Rights Agreement, dated as of the date hereof by and between the
Company and the entities party thereto. At the Closing, the Exchanging Holders
will cause to be delivered to the Company (i) the Original Notes through the
facilities of DTC (ii) an executed copy of the Registration Rights Agreement,
dated as of the date hereof by and between the Company and the entities party
thereto and (iii) an executed copy of the Exchange and Registration Rights
Agreement, dated as of the date hereof by and between the Company and the
entities party thereto.
As used herein, the term "Refinancing" shall mean the Company's
refinancing of its Senior Credit Agreement dated as of June 12, 2000 on terms
and conditions not materially less favorable to the Company than the terms of
that certain bank commitment letter attached as Exhibit B hereto and without the
waiver by the Agents (as such term is defined in the Commitment Letter) of any
material condition contained therein (the "Commitment Letter").
3. Exchanging Holder Representations. Each Exchanging Holder hereby
represents and warrants to the Company as follows:
(a) Authorization. The Exchanging Holder has requisite power and
authority to execute, deliver and perform its obligations under this Agreement.
The execution and delivery of this Agreement have been duly and validly
authorized, and all necessary action has been taken to make this Agreement a
legal, valid and binding obligation of the Exchanging Holder, enforceable in
accordance with its terms, except that the enforcement hereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and to general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(b) Access to Information. The Company has made available to the
Exchanging Holders all reports, schedules, forms, statements and other documents
filed by the
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Company with the SEC from October 11, 2000 through the Closing Date pursuant to
the reporting requirements of the Exchange Act, and the Exchanging Holders have
received physical delivery of all such documents, records and information which
the Exchanging Holders have requested, and have had adequate opportunity to ask
questions of, and receive answers from, the Company's officers, employees,
agents, accountants, and representatives concerning the Company's business,
operations, financial condition, assets, liabilities, and all other matters
relevant in making the Exchange.
(c) Title to Original Notes. Immediately prior to the Closing, the
Exchanging Holders will have title to the Original Notes being exchanged by it,
free and clear of all claims, liens, title defects and objections or equities of
any kind and nature whatsoever.
(d) Investment Representations.
(i) Each Exchanging Holder is the person who exercises full
investment discretion with respect to the Original Notes and the Exchanging
Holders have neither purchased nor sold for their account any Original Notes
since the original issuance thereof.
(ii) Each Exchanging Holder is acquiring the Warrants hereunder
for its own account, and not as a nominee or agent for any other person, firm or
corporation, and not with a view to the sale or distribution of all or any part
thereof in any transaction that would be in violation of the securities laws of
the United States, and it has no present intention of selling or otherwise
distributing any of the Warrants or Common Stock issuable upon exercise of the
Warrants in violation of the Securities Act of 1933, as amended (the "Act"). The
Exchanging Holders do not have any contract, undertaking, agreement or
arrangement with any person, firm or corporation to sell, transfer or grant
participations to such person, firm or corporation with respect to any such
Warrants or Common Stock issuable upon exercise of the Warrants.
(iii) Each Exchanging Holder understands that the Exchange
Notes, the Warrants and the Common Stock issuable upon exercise of the Warrants
acquired hereunder will not be registered under the Act, in part based upon an
exemption from registration predicated on the accuracy and completeness of its
representations and warranties appearing herein. Each Exchanging Holder
understands and acknowledges that, as a result, it will not be permitted to
sell, transfer or assign any of the Exchange Notes, the Warrants or Common Stock
issuable upon exercise of the Warrants acquired hereunder until such Exchange
Notes, Warrants and Common Stock are registered or an exemption from the
registration and prospectus delivery requirements of the Act is available.
(iv) Each Exchanging Holder agrees that in no event will it make
a disposition of any of the Exchange Notes, the Warrants or Common Stock
issuable upon exercise of the Warrants or any interest therein, unless such
Exchange Notes or Common Stock issuable upon exercise of the Warrants are
registered under the Act or unless and, in the case of the
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Warrants or Common Stock issuable upon exercise of the Warrants, until (A) it
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a statement of the circumstances surrounding the
proposed disposition and (B) it shall have furnished the Company with an opinion
of counsel, satisfactory in form and content to the Company, to the effect that
(x) such disposition will not require registration of such Common Stock issuable
upon exercise of the Warrants under the Act or compliance with applicable state
securities laws or (y) an exemption from the registration requirements of the
Act is available and that all appropriate action necessary for compliance
thereunder and under the applicable state securities laws has been taken.
(v) Each Exchanging Holder is either (i) a "Qualified
Institutional Buyer" as such term is defined in Rule 144A under the Act or (ii)
an "Accredited Investor" as such term is defined in Rule 501 of Regulation D
promulgated under the Act; does not require the assistance of an investment
advisor or other purchaser representative to participate in the transactions
contemplated by this Agreement; has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment in the Exchange Notes; has the ability to bear the economic risks of
its investment for an indefinite period of time; and has had adequate
opportunity to ask questions of, and receive answers from, the Company
concerning all matters relevant to the Exchange.
(e) No Commission or Remuneration. Each Exchanging Holder has not
received any commission or remuneration for acting on the Company's behalf in
connection with or in order to solicit or facilitate the Exchange.
(f) Section 3(a)(9) Exemption. The Exchanging Holders acknowledge
that the transaction contemplated hereby is intended to be exempt from
registration by virtue of Section 3(a)(9) of the Securities Act of 1933, as
amended. The Exchanging Holder knows of no reason why such exemption would not
be available for the transaction contemplated hereby.
4. The Company's Representations. The Company represents and warrants
to the Exchanging Holders as follows:
(a) Organization, Authority, etc. The Company is a corporation duly
incorporated and validly existing under and by virtue of the laws of the State
of Delaware and has all requisite corporate power to own or lease and operate
its properties and assets and to carry on its business as now conducted and as
proposed to be conducted; is duly qualified or licensed to do business and is in
good standing as a foreign corporation in all jurisdictions in which it owns or
leases property or in which the conduct of its business requires it so to
qualify or be licensed, except where the failure to be so licensed or qualified
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the assets, business, properties or financial
condition of the Company (as such business is presently conducted and as it is
presently proposed to be conducted); and has all requisite corporate power to
enter into this Agreement, to issue the Exchange Notes, the Warrants and the
Common Stock issuable upon exercise of the Warrants and to perform its
obligations hereunder.
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(b) Corporate Acts and Proceedings. The execution and delivery of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized, and all necessary corporate action has been taken to make
this Agreement a legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except that the enforcement thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and to general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Valid Issuance. When the Exchange Notes have been duly executed
and authenticated in accordance with the terms of the Indenture and delivered
upon consummation of the Exchange against receipt of the Original Notes
surrendered in exchange therefor as provided herein, the Exchange Notes will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their
terms, except to the extent that (a) the enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) and (b) the
waiver contained in Section 5.15 of the Indenture may be deemed unenforceable.
When the Warrants are delivered upon consummation of the Exchange
against receipt of the Original Notes as provided herein, the Warrants will
constitute a valid and binding obligation of the Company, and the Common Stock,
when issued upon exercise of the Warrants and payment of the exercise price
specified therein in accordance with the terms of the Warrants, will be duly and
validly issued, fully paid and nonassessable.
(d) Exempt Offering. Subject to the accuracy of the Exchanging
Holders' representations and warranties contained in Section 3 hereof, the
issuance hereunder of each of the Exchange Notes, the Warrants and the Common
Stock issuable upon exercise of the Warrants is exempt from the registration and
prospectus delivery requirements of the Act.
(e) Brokers. There is no broker, investment banker, financial
advisor, finder or other person which has been retained by or is authorized to
act on behalf of the Company who might be entitled to any fee or commission for
which the Exchanging Holders will be liable in connection with the execution of
this Agreement or the transactions contemplated hereby.
(f) Compliance with Other Instruments. Neither the execution and
delivery by the Company of this Agreement, nor the consummation of the
transactions contemplated hereby will (a) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, (b) result in
any violation of the
5
provisions of the certificate of incorporation or by-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its respective properties,
(c) result in the creation under any agreement or instrument of any lien,
security interest, encumbrance or other claim upon any of the respective assets
of the Company, or (d) create in any person or entity any right to terminate any
agreement with the Company or otherwise exercise any rights against the Company
or cause any payment or performance obligation of the Company to be accelerated,
except in each case (a-d) as would not, individually or in the aggregate have a
material adverse effect on the business, results of operations, prospects or
financial condition of the Company (as such business is presently conducted and
as it is presently proposed to be conducted) ("Material Adverse Effect").
(g) Additional Information. Since October 11, 2000, the Company has
timely filed, and at the Closing Date, the Company will have timely filed, all
reports, schedules, forms, statements and other documents required to be filed
by it with the Securities and Exchange Commission pursuant to the reporting
requirements of the Exchange Act. The Company represents and warrants that as of
their respective filing dates, the information contained in the 2001 10-K
(without exhibits) and the Definitive Proxy, complied with the requirements of
the Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the 2001 10-K and
the Definitive Proxy, except for the failure to include certain financial
information as described therein, and neither the 2001 10-K nor the Definitive
Proxy (including all exhibits included in the 2001 10-K and the Definitive Proxy
and all financial statements and schedules thereto and documents incorporated by
reference therein), at the time they were respectively filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
5. Conditions of Parties' Obligations.
(a) Conditions of the Exchanging Holders' Obligations. The
obligations of the Exchanging Holders under Sections 1 and 2 hereof are subject
to the fulfillment prior to or on the Closing Date of all of the following
conditions, any of which may be waived in whole or in part by the Exchanging
Holders.
(i) Continued Accuracy of the Company's Covenants,
Representations and Warranties. The representations and warranties of the
Company contained in Section 4 shall be true and correct on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of the Closing Date (except to the extent expressly made
as of an earlier date, in which case as of such earlier date).
(ii) No Material Adverse Change. There shall be no material
adverse change in the business, properties, prospects, or assets of the Company.
6
(iii) Consummation of the Refinancing. The Company shall
simultaneously with the Closing, consummate the Refinancing.
(iv) Second Priority Security Agreements. The Company shall have
entered into the second priority security agreements listed on Schedule II
hereto.
(v) Legal Opinions. The Company shall have delivered to the
Exchanging Holders, the legal opinions from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel to the Company, in substantially the form of Exhibit C hereto.
(b) The obligations of the Company under Sections 1 and 2 hereof are
subject to the fulfillment prior to or on the Closing Date of all of the
following conditions, any of which may be waived in whole or in part by the
Company.
(i) Continued Accuracy of Exchanging Holders' Covenants,
Representations and Warranties. The representations and warranties of the
Exchanging Holders contained in Section 3 shall be true and correct on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of the Closing Date (except to the extent
expressly made as of an earlier date, in which case as of such earlier date).
(c) Conditions of Each Party's Obligations. The respective
obligations of each party to consummate the transactions contemplated hereunder
are subject to the parties being reasonably satisfied as to the absence of (i)
litigation challenging or seeking damages in connection with the transactions
contemplated by this Agreement, and (ii) any provision of any applicable law or
regulation, or any judgment, injunction, order or decree prohibiting or
enjoining the transactions contemplated by this Agreement.
6. Security Interest Opinion. The Company shall cause to be delivered
to the Exchanging Holders on July 2, 2001, the legal opinion from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, with respect to the security
interest in certain UCC collateral, substantially in the form of Exhibit D
hereto.
7. Registration Rights. The Exchanging Holders will have such
registration rights as set forth in (i) a registration rights agreement in
substantially the form of Exhibit E hereto with respect to the Exchange Notes
and (ii) a registration rights agreement in substantially the form of Exhibit F
hereto with respect to the shares of Common Stock underlying the Warrants.
8. Legends. Until a registration statement covering the Warrants, the
Common Stock issuable upon exercise of the Warrants and the restricted Exchange
Notes, if any, is declared effective, all certificates representing the
Warrants, the Common Stock issuable upon exercise of the Warrants and the
Exchange Notes issued in exchange for the Original Notes hereunder shall bear
substantially the following legends:
7
(a) THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OFFERED FOR SALE UNLESS REGISTERED
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE OR UPON DELIVERY OF AN OPINION OF COUNSEL OR
OTHER EVIDENCE REASONABLY SATISFACTORY TO RITE AID CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED. THIS SECURITY IS ALSO SUBJECT TO AND HAS THE
BENEFIT OF A REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 27, 2001 BETWEEN THE
HOLDER AND RITE AID CORPORATION, COPIES OF WHICH ARE ON FILE WITH RITE AID
CORPORATION.
(b) Any legend required to be placed thereon by any applicable state
corporation, commercial or securities law.
9. Removal of Restrictions on Transfer. Any legend endorsed on a
certificate representing the Warrants, the Common Stock issuable upon exercise
of the Warrants and the Exchange Notes and the stop transfer instructions and
record notations with respect to such securities shall be removed and the
Company shall issue a certificate representing such securities without such
legend to the holder thereof (i) if such securities are registered under the
Act, (ii) if a notification under Regulation A under the Act is in effect with
respect thereto or (iii) if such securities are eligible for transfer under Rule
144(k) under the Act.
10. Survival of Representations, Warranties and Agreements. All
representations and warranties made by the Company and the Exchanging Holders
herein shall survive until twelve months from the Closing Date.
11. Miscellaneous.
(a) Amendment. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally or by course of dealing, but
only by a statement in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is sought.
(b) Expenses. Whether or not the transactions contemplated hereby
are consummated, each of the Company and the Exchanging Holders will pay their
own expenses incurred in connection with the transactions contemplated hereby.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier, telex, facsimile, telecopier, or similar
writing:
8
(i) if to the Exchanging Holders to the name of such Exchanging
Holder at the following address:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
, with a copy to
H. ▇▇▇▇▇ ▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇ Procter LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
; and
(ii) If to the Company, to:
Rite Aid Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
Senior Executive Vice President
and General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
, with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) All such notices and communications shall be deemed to
have been duly given: (i) when delivered by hand, if personally delivered; (ii)
five (5) business days after being deposited in the mail, postage prepaid, if
mailed; (iii) one (1) business day after being timely dispatched postage
prepaid, if by same-day or next-day courier; (iv) when answered back, if
telexed; (v) when receipt acknowledged, if sent by facsimile transmission and
(vi) if given by
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any other means, when delivered at the addresses referred to in this Section.
Any of the above addresses may be changed by notice made in accordance with this
Section 9(b).
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not.
(e) Headings. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
(f) Choice of Law. The internal laws of the State of New York shall
govern the enforceability and validity of this Agreement, the construction of
its terms and the interpretation of the rights and duties of the parties hereto
without giving effect to conflicts of laws, rules or principles.
(g) Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the subject matter hereof and such
Agreement supersedes and replaces all other prior agreements, written or oral,
among the parties hereto with respect to the subject matter hereof.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. This Agreement shall become effective
when each party hereto shall have received a counterpart hereof signed by the
other party hereto.
(i) Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby may be brought in any
federal or state court located in the State of New York, and each of the parties
hereby consents to the jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 9(b) shall be deemed effective service of
process on such party.
(j) No Implied Waiver. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial
10
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
(k) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(l) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(m) Notice of Limitation of Liability. A copy of the Agreement and
Declaration of Trust of each Fidelity fund or series investment company (each, a
"Fund") that is a Massachusetts business trust is on file with the Secretary of
State of The Commonwealth of Massachusetts and notice is hereby given that this
Agreement is executed on behalf of the Trustees of the relevant Fund as Trustees
and not individually and that the obligations of this Agreement are not binding
upon any of the Trustees, officers or shareholders of the Fund individually but
are binding only upon the assets property of such Fund.
BEFORE EXECUTING THIS AGREEMENT, THE EXCHANGING HOLDER SHOULD CONSULT WITH ITS
TAX ADVISORS REGARDING THE CONSEQUENCES OF THE EXCHANGE OFFER AND OWNERSHIP OF
THE EXCHANGE NOTES, THE WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF
THE WARRANT.
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IN WITNESS WHEREOF, the parties hereto have caused this Note Exchange
Agreement to be executed as of the date first above written.
RITE AID CORPORATION
By:
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Executive Vice President, General
Counsel and Assistant Secretary
[NAME OF EXCHANGING HOLDER]
By:
------------------------
Name:
Title:
Address:
Taxpayer Identification Number:
SCHEDULE I
EXCHANGING HOLDERS
Number
Fund 10.50% 12.50% of
Number Trust Name Fund Name Notes Notes Warrants
------ ---------- --------- ----- ----- --------
321 Fidelity ▇▇▇▇▇▇▇ Street Fidelity Asset Manager: Growth 7,095,000 7,095,000 140,010
Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Fidelity Asset Manager: Income 590,000 590,000 11,643
Trust
23 Fidelity Devonshire Trust Fidelity Equity-Income Fund 2,505,000 2,505,000 49,433
726 Fidelity Advisor Series I Fidelity Advisor Asset Allocation 200,000 200,000 3,947
Fund
374 Fidelity Advisor Series II Fidelity Advisor High Income Fund 465,000 465,000 9,176
218 Fidelity Advisor Series II Fidelity Advisor High Yield Fund 47,775,000 47,775,000 942,773
347 Fidelity ▇▇▇▇▇▇▇ Street Fidelity Asset Manager: Aggressive 395,000 395,000 7,795
Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Fidelity Asset Manager 9,660,000 9,660,000 190,626
Trust
304 Fidelity Puritan Trust Fidelity Balanced Fund 1,000,000 1,000,000 19,733
38 Fidelity Summer Street Fidelity Capital & Income Fund 43,940,000 43,940,000 867,094
Trust
455 Fidelity Fixed-Income Fidelity High Income Fund 10,565,000 10,565,000 208,485
Trust
211 Variable Insurance Equity-Income Portfolio 1,285,000 1,285,000 25,358
Products Fund
616 Variable Insurance Balanced Portfolio 215,000 215,000 4,243
Products Fund III
92728 Fidelity Canadian 175,000 175,000 3,453
Balanced Fund
329 Fidelity Global Asset 1,265,000 1,265,000 24,963
Allocation Fund
Commonwealth of Massachusetts Pension Reserve Investment 5,530,000 5,530,000 109,127
Management Board
7058 Fidelity High Yield 2,720,000 2,720,000 53,675
Collective Trust
907 Pension Investment Committee of General Motors for General 16,645,000 16,645,000 328,466
Motors Employees Domestic Group Pension Trust
152,025,000 152,025,000 3,000,000
SCHEDULE II
1. Second Priority Subsidiary Security Agreement, dated as of June 27, 2001.
2. Second Priority Subsidiary Guarantee Agreement, dated as of June 27, 2001.
3. Second Priority Indemnity, Subrogation and Contribution Agreement, dated as
of June 27, 2001.
4. Collateral Trust and Intercreditor Agreement, dated as of June 27, 2001.
5. Each of the second priority mortgages and deeds of trust, dated as of June
27, 2001.
EXHIBIT A
INDENTURE
A-1
EXHIBIT B
COMMITMENT LETTER
B-1
EXHIBIT C
FORM OF OPINIONS
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇-▇
EXHIBIT E
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
E-1
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
F-1
