Exhibit 4.3.1
SIXTEENTH SUPPLEMENTAL INDENTURE, dated as of December 20, 2004, between
The Kroger Co., a corporation duly organized and existing under the laws of the
State of Ohio (herein called the "Company"), having its principal office at 1014
Vine Street, Cincinnati, Ohio 45202, the Guarantors listed on the signature
pages and Schedule I hereto (each, a "Guarantor") and U.S. Bank, N.A. (formerly
known as Firstar Bank, N.A.), a banking corporation duly organized and existing
under the laws of the State of Ohio, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of June 25, 1999 (the "Indenture"), providing for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein and therein called the "Securities"), to be
issued in one or more series as in the Indenture provided.
Section 201 of the Indenture permits the form of the Securities of any
series to be established pursuant to an indenture supplemental to the Indenture.
Section 301 of the Indenture permits the terms of the Securities of any
series to be established in an indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides that, without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental to the Indenture for the purpose of establishing the form or terms
of Securities of any series as permitted by Sections 201 and 301 of the
Indenture.
Each of the Guarantors has duly authorized the issuance of a guarantee of
the Securities, as set forth herein, and to provide therefor, each of the
Guarantors has duly authorized the execution and delivery of this Sixteenth
Supplemental Indenture.
The Company and the Guarantors, pursuant to the foregoing authority,
propose in and by this Sixteenth Supplemental Indenture to establish the terms
and form of the Securities of a new series and to amend and supplement the
Indenture in certain respects with respect to the Securities of such series.
All things necessary to make this Sixteenth Supplemental Indenture a valid
agreement of the Company and the Guarantors, and a valid amendment of and
supplement to the Indenture, have been done.
NOW, THEREFORE, THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of the series to be
created hereby, as follows:
ARTICLE ONE
DEFINITIONS
Section 101. Definitions.
(a) For all purposes of this Sixteenth Supplemental Indenture:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Sixteenth Supplemental Indenture and, where so specified, to the Articles
and Sections of the Indenture as supplemented by this Sixteenth
Supplemental Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder"
and "herewith" refer to this Sixteenth Supplemental Indenture.
(b) For all purposes of the Indenture and this Sixteenth Supplemental
Indenture, with respect to the Securities of the series created hereby, except
as otherwise expressly provided or unless the context otherwise requires:
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for such Redemption Date.
"Attributable Debt" means, in connection with a Sale and Lease-Back
Transaction, as of any particular time, the aggregate of
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present values (discounted at a rate per annum equal to the interest
rate borne by the Securities of the series created by this Sixteenth
Supplemental Indenture) of the obligations of the Company or any
Restricted Subsidiary for net rental payments during the remaining
primary term of the applicable lease, calculated in accordance with
generally accepted accounting principles. The term "net rental
payments" under any lease for any period shall mean the sum of the
rental and other payments required to be paid in such period by the
lessee thereunder, not including, however, any amounts required to
be paid by such lessee (whether or not designated as rental or
additional rental) on account of maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates,
operating and labor costs or similar charges required to be paid by
such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance
and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in New York City or
Cincinnati, Ohio are authorized or obligated by law or executive
order to close.
"Capital Lease" means any lease of property which, in
accordance with generally accepted accounting principles, should be
capitalized on the lessee's balance sheet or for which the amount of
the asset and liability thereunder as if so capitalized should be
disclosed in a note to such balance sheet; and "Capitalized Lease
Obligation" means the amount of the liability which should be so
capitalized or disclosed.
"Comparable Treasury Issue" means the United States Treasury
security selected by a Quotation Agent as having a maturity
comparable to the remaining term of the Securities to be redeemed
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining
term of such Securities.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the Reference Treasury Dealer
Quotations, after excluding the highest and lowest such Reference
Treasury Dealer Quotations for such Redemption Date, or (ii) if the
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Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Consolidated Net Tangible Assets" means, for the Company and
its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles, the aggregate amounts
of assets (less depreciation and valuation reserves and other
reserves and items deductible from gross book value of specific
asset accounts under generally accepted accounting principles) which
under generally accepted accounting principles would be included on
a balance sheet after deducting therefrom (a) all liability items
except deferred income taxes, commercial paper, short-term bank
Indebtedness, Funded Indebtedness, other long-term liabilities and
shareholders' equity and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like
intangibles, which in each case would be so included on such balance
sheet.
"Credit Facility" means any credit agreement, loan agreement
or credit facility, whether syndicated or not, involving the
extension of credit by banks or other credit institutions, entered
into by the Company or Fred Meyer, Inc. and outstanding on the date
of this Sixteenth Supplemental Indenture, and any refinancing or
other restructuring of such agreement or facility.
"Funded Indebtedness" means any Indebtedness maturing by its
terms more than one year from the date of the determination thereof,
including (i) any Indebtedness having a maturity of 12 months or
less but by its terms renewable or extendible at the option of the
obligor to a date later than 12 months from the date of the
determination thereof and (ii) rental obligations payable more than
12 months from the date of determination thereof under Capital
Leases (such rental obligations to be included as Funded
Indebtedness at the amount so capitalized at the date of such
computation and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded
Indebtedness at the amount so capitalized).
"Non-Restricted Subsidiary" means any Subsidiary that the
Company's Board of Directors has in good faith declared pursuant to
a written resolution not to be of material importance, either singly
or together with all other Non-Restricted Subsidiaries, to the
business of the Company and its consolidated Subsidiaries taken as a
whole.
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"Operating Assets" means all merchandise inventories,
furniture, fixtures and equipment (including all transportation and
warehousing equipment but excluding office equipment and data
processing equipment) owned or leased pursuant to Capital Leases by
the Company or a Restricted Subsidiary.
"Operating Property" means all real property and improvements
thereon owned or leased pursuant to Capital Leases by the Company or
a Restricted Subsidiary and constituting, without limitation, any
store, warehouse, service center or distribution center wherever
located, provided that such term shall not include any store,
warehouse, service center or distribution center which the Company's
Board of Directors declares by written resolution not to be of
material importance to the business of the Company and its
Restricted Subsidiaries.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means (i) Goldman, Sachs & Co. and
its successors; provided, however, that if the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
"Restricted Subsidiaries" means all Subsidiaries other than
Non-Restricted Subsidiaries.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 1010.
"Subsidiary" means (i) any corporation or other entity of
which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or
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indirectly owned by the Company and/or one or more Subsidiaries or
(ii) any partnership of which more than 50% of the partnership
interest is owned by the Company or any Subsidiary.
ARTICLE TWO
SECURITY FORMS
Section 201. Form of Securities of this Series.
The Securities of this series shall be in the form set forth in this
Article.
Section 202. Form of Face of Security.
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
except in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to The Kroger
Co. or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE KROGER CO.
4.95% Senior Notes due 2015
CUSIP No. 501044 CF 6
ISIN No. US 501044 CF 63 $ _______________
The Kroger Co., a corporation duly organized and existing under the
laws of the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the principal sum
of $ on January 15, 2015 and to pay interest thereon from December 20, 2004,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on January 15 and July 15 in each year,
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commencing July 15, 2005 at the rate of interest of 4.95% per annum until the
principal hereof is paid or made available for payment. Interest on the Security
will be computed on the basis of a 360-day year of twelve 30-day months. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 1 or July 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in Cincinnati, Ohio, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
In the case where any Interest Payment Date or the maturity date of
this Security does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or the maturity date of this Security.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: December 20, 2004
THE KROGER CO.
By ____________________________
Attest:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
U.S. BANK, N.A.,
as Trustee
By ____________________________
Authorized Officer
Attest:
_______________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company (including the related Guarantees, the "Securities") issued and to be
issued under an Indenture dated as of June 25, 1999, as supplemented by the
First Supplemental Indenture dated as of June 25, 1999, the Second Supplemental
Indenture dated as of June 25, 1999, the Third Supplemental Indenture dated as
of June 25, 1999, the Fourth Supplemental Indenture dated as of September 22,
1999, the Fifth Supplemental Indenture dated as of September 22, 1999, the Sixth
Supplemental Indenture dated as of September 22, 1999, the Seventh Supplemental
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Indenture dated as of February 11, 2000, the Eighth Supplemental Indenture dated
as of February 11, 2000, the Ninth Supplemental Indenture dated as of August 21,
2000, the Tenth Supplemental Indenture dated as of May 11, 2001, the Eleventh
Supplemental Indenture dated as of May 11, 2001, the Twelfth Supplemental
Indenture dated as of August 16, 2001, the Thirteenth Supplemental Indenture
dated as of April 3, 2002, the Fourteenth Supplemental Indenture dated as of
June 17, 2002, the Fifteenth Supplemental Indenture dated as of January 28,
2003, and the Sixteenth Supplemental Indenture dated as of December 20, 2004 (as
so supplemented, herein called the "Indenture"), each between the Company and
the Guarantors named therein, and Firstar Bank, N.A. (now known as U.S. Bank,
N.A.), as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Guarantors named therein, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
initially limited in aggregate principal amount to $300,000,000.
The Company may from time to time, without notice to or consent of
the registered holders of the Securities issue further Securities ("Additional
Securities"). The Additional Securities will rank equal with the Securities in
all respects (or in all respects other than the payment of interest accruing
prior to the issue date of the Additional Securities, or except for the first
payment of interest following the issue date of the Additional Securities). The
Additional Securities may be consolidated and form a single series with the
Securities and may have the same terms as to status, redemption, or otherwise,
as the Securities.
The Securities of this series will be redeemable, in whole or in
part, at the option of the Company at any time at a redemption price equal to
the greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by a Quotation Agent, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the date of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 15 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of the Securities to
be redeemed. Unless the Company defaults in payment of the redemption price, on
and after the Redemption Date, interest will cease to accrue on the Securities
or portions thereof called for redemption.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
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If an Event of Default shall occur and be continuing, the principal
of all Securities of this series may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 50% in aggregate principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all the Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default, the Holders of not less than 25% in principal amount of the Outstanding
Securities shall have made written request, and offered reasonable indemnity, to
the Trustee to institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in principal amount of the
Outstanding Securities a direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) or any interest
on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
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The Securities are issuable only in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of like tenor,
of a different authorized denomination, as requested by the Holder surrendering
the same.
Except where otherwise specifically provided in the Indenture, no
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Guarantee.
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEE
For value received, each of the undersigned hereby absolutely, fully
and unconditionally and irrevocably guarantees, jointly and severally with each
other Guarantor, to the holder of the Security on which this Guarantee is
endorsed the payment of principal of, premium, if any, and interest on such
Security in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of such Security, if lawful, and the payment or performance of
all other obligations of the Company under the Indenture or such Security, to
the holder of such Security and the Trustee, all in accordance with and subject
to the terms and limitations of such Security and Article Five of the Sixteenth
Supplemental Indenture to the Indenture. This Guarantee will not become
effective until the Trustee duly executes the certificate of authentication on
this Guarantee. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of law
principles thereof.
Dated: December 20, 2004
Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
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By: _______________________________
Name:
Title:
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QUEEN CITY ASSURANCE, INC.,
as Guarantor of the Securities
RJD ASSURANCE, INC.,
as Guarantor of the Securities
VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By:________________________________
Name: Bruce M. Gack
Title: Senior Vice President/Vice President
RICHIE'S, INC.,as Guarantor of the Securities,
ROCKET NEWCO, INC.,
as Guarantor of the Securities
HENPIL, INC.,
as Guarantor of the Securities
By: ________________________________
Name: Todd C. Frease
Title: President/Vice President
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This is one of the Guarantees referred to in the within mentioned Indenture.
Attest: U.S. BANK, N.A.
as Trustee
___________________ By: ________________________________
Name:
Title:
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SCHEDULE I
Guarantors
Name of Guarantor State of Organization
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Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
CB&S Advertising Agency, Inc. Oregon
Crawford Stores, Inc. California
Dillon Companies, Inc. Kansas
Dillon Real Estate Co., Inc. Kansas
Distribution Trucking Company Oregon
F4L L.P. Ohio
FM, Inc. Utah
FMJ, Inc. Delaware
Food 4 Less GM, Inc. California
Food 4 Less Holdings, Inc. Delaware
Food 4 Less Merchandising, Inc. California
Food 4 Less of California, Inc. California
Food 4 Less of Southern California, Inc. Delaware
Fred Meyer, Inc. Delaware
Fred Meyer Jewelers, Inc. California
Fred Meyer Stores, Inc. Ohio
Hughes Markets, Inc. California
Hughes Realty, Inc. California
Inter-American Foods, Inc. Ohio
Junior Food Stores of West Florida, Inc. Florida
J.V. Distributing, Inc. Michigan
KRGP Inc. Ohio
KRLP Inc. Ohio
The Kroger Co. of Michigan Michigan
Kroger Dedicated Logistics Co. Ohio
Kroger Group Cooperative, Inc. Ohio
Kroger Limited Partnership I Ohio
Kroger Limited Partnership II Ohio
Kroger Texas L.P. Ohio
Kwik Shop, Inc. Kansas
Mini Mart, Inc. Wyoming
Peyton's-Southeastern, Inc. Tennessee
Quik Stop Markets, Inc. California
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Name of Guarantor State of Organization
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Ralphs Grocery Company Ohio
Second Story, Inc. Washington
Smith's Beverage of Wyoming, Inc. Wyoming
Smith's Food & Drug Centers, Inc. Ohio
THGP Co., Inc. Pennsylvania
THLP Co., Inc. Pennsylvania
Topvalco, Inc. Ohio
Turkey Hill, L.P. Pennsylvania
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ARTICLE THREE
THE SERIES OF SECURITIES
Section 301. Title and Terms.
There shall be a series of Securities designated as the "4.95%
Senior Notes due 2015" of the Company. Their Stated Maturity shall be January
15, 2015, and they shall bear interest at the rate of 4.95% per annum.
Interest on the Securities of this series will be payable
semi-annually on January 15 and July 15 of each year, commencing July 15, 2005,
until the principal thereof is made available for payment. Interest on the
Securities of this series will be computed on the basis of a 360-day year of
twelve 30-day months. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be paid to the Person in whose
name the Securities of this series (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
In the case where any Interest Payment Date or the maturity date of
the Securities of this series does not fall on a Business Day, payment of
interest or principal otherwise payable on such date need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or the maturity date of the
Securities of this series.
The aggregate principal amount of Securities of this series which
may be authenticated and delivered under this Sixteenth Supplemental Indenture
is initially limited to $300,000,000, except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of this series pursuant to Section 304, 305 and 306 of the
Indenture and except for any Securities of this series which, pursuant to
Section 303 of the Indenture, are deemed never to have been authenticated and
delivered under the Indenture. Notwithstanding the foregoing, the Company may
from time to time, without notice to or consent of the registered holders of the
Securities issue further Securities ("Additional Securities"). The Additional
Securities will rank equal with the Securities in all respects (or in all
respects other than the payment of interest accruing prior to the issue date of
the Additional Securities, or except for the first payment of interest following
the issue date of the Additional Securities). The Additional Securities may be
consolidated and form a single series with the Securities and may have the same
terms as to status, redemption, or otherwise, as the Securities.
The Securities of this series will be represented by one or more
Global Securities representing the entire $300,000,000 aggregate principal
amount of the Securities of this series
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(as such amount may be increased by the Additional Securities), and the
Depositary with respect to such Global Security or Global Securities will be The
Depository Trust Company.
The Place of Payment for the principal of (and premium, if any) and
interest on the Securities of this series shall be the office or agency of the
Company in the City of Cincinnati, State of Ohio, maintained for such purpose,
which shall be the Corporate Trust Office of the Trustee and at any other office
or agency maintained by the Company for such purpose; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
The Securities of this series are redeemable prior to maturity at
the option of the Company as provided in this Sixteenth Supplemental Indenture.
The Securities of this series are not subject to a sinking fund and
the provisions of Section 501(3) and Article Twelve of the Indenture shall not
be applicable to the Securities of this series.
The Securities of this series are subject to defeasance at the
option of the Company as provided in this Sixteenth Supplemental Indenture.
ARTICLE FOUR
MODIFICATIONS AND ADDITIONS TO THE INDENTURE
Section 401. Modifications to the Consolidation, Merger,
Conveyance, Transfer or Lease Provisions.
With respect to the Securities of this series, Section 801 of the
Indenture shall be deleted in its entirety and the following shall be
substituted therefor:
"Section 801. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.
The Company covenants that it will not merge with or into or
consolidate with any corporation, partnership, or other entity or sell,
lease or convey all or substantially all of its assets to any other
Person, unless (i) either the Company shall be the continuing corporation,
or the successor entity or the Person which acquires by sale, lease or
conveyance all or substantially all the assets of the Company (if other
than the Company) shall be a corporation or partnership organized under
the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume all obligations of the
Company under this Indenture and the Securities of the series created by
the Sixteenth Supplemental Indenture, including the due and punctual
payment of the
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principal of and interest on all the Securities of the series created by
the Sixteenth Supplemental Indenture according to their tenor, and the due
and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed or observed by the Company, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such entity, and (ii) the Company, such person
or such successor entity, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in
default in the performance of any such covenant or condition and,
immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing.
Section 802. Successor Substituted
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, lease or conveyance of all or
substantially all of the assets of the Company in accordance with Section
801, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, lease or conveyance is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities."
Section 402. Other Modifications.
With respect to the Securities of this series, the Indenture shall
be modified as follows:
(a) The eighth paragraph of Section 305 of the Indenture shall be
modified by inserting ", and a successor Depositary is not appointed by the
Company within 90 days" at the end of clause (i) in such paragraph; and
(b) Section 401 of the Indenture shall be modified by adding to the
end of such Section the following paragraph:
"For the purpose of this Section 401, trust funds may consist of (A)
money in an amount, or (B) U.S. Government Obligations (as defined in
Section 1304) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, the principal of,
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premium, if any, and each installment of interest on the Securities of
this series on the Stated Maturity of such principal or installment of
interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities of this
series."
Section 403. Additional Covenants; Defeasance and Covenant Defeasance.
(a) With respect to the Securities of this series, the following
provisions shall be added as Sections 1009 and 1010 and as Article Thirteen
(Section references contained in these additional provisions are to the
Indenture as supplemented by this Sixteenth Supplemental Indenture):
"Section 1009. Limitations on Liens.
After the date hereof and so long as any Securities of the series
created by the Sixteenth Supplemental Indenture are Outstanding, the
Company will not issue, assume or guarantee, and will not permit any
Restricted Subsidiary to issue, assume or guarantee, any Indebtedness
which is secured by a mortgage, pledge, security interest, lien or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any of the foregoing) (each being hereinafter referred to as a "lien"
or "liens") of or upon any Operating Property or Operating Asset, whether
now owned or hereafter acquired, of the Company or any Restricted
Subsidiary without effectively providing that the Securities of the series
created by the Sixteenth Supplemental Indenture (together with, if the
Company shall so determine, any other Indebtedness of the Company ranking
equally with the Securities) shall be equally and ratably secured by a
lien on such assets ranking ratably with and equal to (or at the Company's
option prior to) such secured Indebtedness; provided that the foregoing
restriction shall not apply to:
(a) liens on any property or assets of any corporation
existing at the time such corporation becomes a Restricted Subsidiary
provided that such lien does not extend to any other property of the
Company or any of its Restricted Subsidiaries;
(b) liens on any property or assets (including stock) existing
at the time of acquisition of such property or assets by the Company or a
Restricted Subsidiary, or liens to secure the payment of all or any part
of the purchase price of such property or assets (including stock) upon
the acquisition of such property or assets by the Company or a Restricted
Subsidiary or to secure any indebtedness incurred, assumed or guaranteed
by the Company or a Restricted Subsidiary for the purpose of financing all
or any part of the purchase price of such property or, in the case of real
property, construction or improvements thereon or attaching to property
substituted by the Company to obtain the release of a lien on other
property of the Company on which a lien then exists, which indebtedness is
incurred, assumed or guaranteed prior to, at the
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time of, or within 18 months after such acquisition (or in the case of
real property, the completion of construction (including any improvements
on an existing asset) or commencement of full operation at such property,
whichever is later (which in the case of a retail store is the opening of
the store for business to the public)); provided that in the case of any
such acquisition, construction or improvement, the lien shall not apply to
any other property or assets theretofore owned by the Company or a
Restricted Subsidiary;
(c) liens on any property or assets to secure Indebtedness of
a Restricted Subsidiary to the Company or to another Restricted
Subsidiary;
(d) liens on any property or assets of a corporation existing
at the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a purchase, lease or
other acquisition of the assets of a corporation or firm as an entirety or
substantially as an entirety by the Company or a Restricted Subsidiary
provided that such lien does not extend to any other property of the
Company or any of its Restricted Subsidiaries;
(e) liens on any property or assets of the Company or a
Restricted Subsidiary in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness incurred or guaranteed
for the purpose of financing all or any part of the purchase price (or, in
the case of real property, the cost of construction) of the property or
assets subject to such liens (including, but not limited to, liens
incurred in connection with pollution control, industrial revenue or
similar financings);
(f) liens existing on properties or assets of the Company or
any Restricted Subsidiary existing on the date hereof; provided that such
liens secure only those obligations which they secure on the date hereof
or any extension, renewal or replacement thereof;
(g) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of any lien
referred to in the foregoing clauses (a) through (f), inclusive; provided
that such extension, renewal or replacement shall be limited to all or a
part of the property or assets which secured the lien so extended, renewed
or replaced (plus improvements and construction on real property);
(h) liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehouseman's, vendors', or other
similar liens arising in the ordinary course of business of the Company or
a Restricted Subsidiary, or governmental (federal, state or municipal)
liens arising out of contracts for the sale of products or
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services by the Company or any Restricted Subsidiary, or deposits or
pledges to obtain the release of any of the foregoing liens;
(i) pledges, liens or deposits under worker's compensation
laws or similar legislation and liens or judgments thereunder which are
not currently dischargeable, or in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the
Company or any Restricted Subsidiary is a party, or to secure the public
or statutory obligations of the Company or any Restricted Subsidiary, or
in connection with obtaining or maintaining self-insurance or to obtain
the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Company
or any Restricted Subsidiary is a party, or in litigation or other
proceedings such as, but not limited to, interpleader proceedings, and
other similar pledges, liens or deposits made or incurred in the ordinary
course of business;
(j) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including liens arising out of judgments or awards against
the Company or any Restricted Subsidiary with respect to which the Company
or such Restricted Subsidiary is in good faith prosecuting an appeal or
proceedings for review or for which the time to make an appeal has not yet
expired; or final unappealable judgment liens which are satisfied within
30 days of the date of judgment; or liens incurred by the Company or any
Restricted Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the Company or
such Restricted Subsidiary is a party;
(k) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens or charges incidental to the conduct of the business of the Company
or any Restricted Subsidiary or the ownership of the property or assets of
any of them which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit and which do not, in the
opinion of the Company, materially impair the use of such property or
assets in the operation of the business of the Company or such Restricted
Subsidiary or the value of such property or assets for the purposes of
such business; or
(l) liens not permitted by clauses (a) through (k) above if at
the time of, and after giving effect to, the creation or assumption of any
such lien, the aggregate amount of all Indebtedness of the Company and its
Restricted Subsidiaries secured by all such liens not so permitted by
clauses (a) through (k) above together with the Attributable Debt in
respect of Sale and Lease-Back Transactions permitted by paragraph (a) of
Section 1010 does not exceed 10% of Consolidated Net Tangible Assets.
Section 1010. Limitations on Sale and Lease-Back Transactions.
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After the date hereof and so long as any Securities of the series
created by the Sixteenth Supplemental Indenture are Outstanding, the
Company agrees that it will not, and will not permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for
the leasing by the Company or a Restricted Subsidiary of any Operating
Property or Operating Asset (other than any such arrangement involving a
lease for a term, including renewal rights, for not more than 3 years and
leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), whereby such Operating Property or Operating
Asset has been or is to be sold or transferred by the Company or any
Restricted Subsidiary to such Person (herein referred to as a "Sale and
Lease-Back Transaction"), unless:
(a) the Company or such Restricted Subsidiary would, at the
time of entering into a Sale and Lease-Back transaction, be entitled to
incur Indebtedness secured by a lien on the Operating Property or
Operating Asset to be leased in an amount at least equal to the
Attributable Debt in respect of such Sale and Lease-Back Transaction
without equally and ratably securing the Securities of the series created
by the Sixteenth Supplemental Indenture pursuant to Section 1009; or
(b) the proceeds of the sale of the Operating Property or
Operating Asset to be leased are at least equal to the fair market value
of such Operating Property or Operating Asset (as determined by the chief
financial officer or chief accounting officer of the Company) and an
amount in cash equal to the net proceeds from the sale of the Operating
Property or Operating Asset so leased is applied, within 180 days of the
effective date of any such Sale and Lease-Back Transaction, to the
purchase or acquisition (or, in the case of Operating Property, the
construction) of Operating Property or Operating Assets or to the
retirement, repurchase, redemption or repayment (other than at maturity or
pursuant to a mandatory sinking fund or redemption provision and other
than Indebtedness owned by the Company or any Restricted Subsidiary) of
Securities of the series created by the Sixteenth Supplemental Indenture
or of Funded Indebtedness of the Company ranking on a parity with or
senior to the Securities of the series created by the Sixteenth
Supplemental Indenture, or in the case of a Sale and Lease-Back
Transaction by a Restricted Subsidiary, of Funded Indebtedness of such
Restricted Subsidiary; provided that in connection with any such
retirement, any related loan commitment or the like shall be reduced in an
amount equal to the principal amount so retired.
The foregoing restriction shall not apply to, in the case of any
Operating Property or Operating Asset acquired or constructed subsequent
to the date eighteen months prior to the date of this Indenture, any Sale
and Lease-Back Transaction with respect to such Operating Asset or
Operating Property (including presently owned real property upon which
such Operating Property is to be constructed) if a binding commitment is
entered into with respect to such Sale and Lease-Back Transaction within
18 months after the later of the acquisition of the Operating Property or
Operating Asset or the completion of improvements or construction thereon
or commencement of full operations at such
- 23 -
Operating Property (which in the case of a retail store is the opening of
the store for business to the public).
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may at its option by Board Resolution, at any time,
elect to have either Section 1302 or Section 1303 applied to the
Outstanding Securities of this series upon compliance with the conditions
set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities
of the series created by the Sixteenth Supplemental Indenture on the date
the conditions set forth below are satisfied (hereinafter, "Defeasance").
For this purpose, such Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of this series and to have satisfied all its other
obligations under such Securities of this series and this Indenture
insofar as such Securities of this series are concerned (and the Trustee,
at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of this series to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if
any) and interest on such securities when such payments are due, (B) the
Company's obligations with respect to such Securities of this series under
Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company
may exercise its option under this Section 1302 notwithstanding the prior
exercise of its option under Section 1303.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be released from its
obligations under Section 501(4) (in respect of the covenants in Sections
1008 through 1010), Section 801 and Sections 1008 through 1010, the
Securities of this series and the Holders of Securities of this series, on
and after the date the conditions set forth below are satisfied
(hereinafter, "covenant Defeasance"). For this purpose, such covenant
Defeasance means that the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such Section, whether directly or indirectly, by
- 24 -
reason of any reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such
Securities of this series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of this series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities of this series, (A) money
in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium,
if any, and each installment of interest on the Securities of this
series on the Stated Maturity of such principal or installment of
interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities
of this series. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and credit
is pledged or (y) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option
of the Company thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such
- 25 -
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on
the U.S. Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 501(6) and (7) are concerned, at any time during the
period ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such Defeasance or covenant Defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any
securities of the Company.
(4) Such Defeasance or covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
Defeasance under Section 1302 or the covenant Defeasance under
Section 1303 (as the case may be) have been complied with.
(6) In the case of an election under Section 1302, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of
this Sixteenth Supplemental Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that
and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of this series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
Defeasance or covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance or covenant
Defeasance had not occurred.
- 26 -
Section 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Securities of this series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities of this series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of this series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of this series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or covenant
Defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities of this series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1302 or 1303; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any Security of this series
following the reinstatement of its obligations, the Company shall be subjugated
to the rights of the Holders of such Securities of this series to receive such
payment from the money held by the Trustee or the Paying Agent."
- 27 -
Section 404. Redemption of Securities.
With respect to Securities of this series, Section 1101 of the
Indenture shall be deleted in its entirety and the following shall be
substituted therefor:
"Section 1101. Optional Redemption.
The Securities will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the
greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by a Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest thereon (not
including any portion of such payments of interest accrued as of the date
of redemption) discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 15 basis points plus, in each case, accrued
interest thereon to the date of redemption."
ARTICLE FIVE
GUARANTEE
Section 501. Guarantee.
Each Guarantor hereby jointly and severally fully and
unconditionally guarantees (each a "Guarantee") to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of the Indenture or
the Securities or the obligations of the Company or any other Guarantor to the
Holders or the Trustee hereunder or thereunder, that (a) the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, upon redemption, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Securities and all other obligations of the
Company or the Guarantor to the Holders of or the Trustee under the Indenture or
the Securities hereunder (including fees, expenses or others) (collectively, the
"Obligations") will be promptly paid in full or performed, all in accordance
with the terms of the Indenture and the Securities; and (b) in case of any
extension of time of payment or renewal of any Obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
If the Company shall fail to pay when due, or to perform, any Obligations, for
whatever reason, each Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. An Event of Default under the
Indenture or the Securities shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities to accelerate the
Obligations of the Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Company.
-28-
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
of the Indenture or the Securities, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Security, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.
Each Guarantor further agrees that, as between it, on the one hand,
and the Holders of Securities and the Trustee, on the other hand, (a) the
maturity of the Obligations may be accelerated as provided in Article Five of
the Indenture for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations, and (b) in the event of any acceleration of such Obligations as
provided in Article Five of the Indenture, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantor for the
purposes of its Guarantee.
Section 502. Waiver of Demand.
To the fullest extent permitted by applicable law, each of the
Guarantors waives presentment to, demand of payment from and protest of any of
the Obligations, and also waives notice of acceptance of its Guarantee and
notice of protest for nonpayment.
Section 503. Guarantee of Payment.
Each of the Guarantors further agrees that its Guarantee constitutes
a guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Trustee or any Holder of the Securities to
the security, if any, held for payment of the Obligations.
Section 504. No Discharge or Diminishment of Guarantee.
Subject to Section 510 of this Sixteenth Supplemental Indenture, the
obligations of each of the Guarantors hereunder shall not be subject to any
reduction, limitation, impairment or for any reason (other than the indefeasible
payment in full in cash of the Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Obligations, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each of the Guarantors hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Trustee or any Holder of the Securities to assert any claim or demand or to
enforce any remedy under the Indenture or the Securities, any other guarantee or
any other agreement, by any waiver or modification of any provision of any
thereof, by any default,
-29-
failure or delay, willful or otherwise, in the performance of the Obligations,
or by any other act or omission that may or might in any manner or to any extent
vary the risk of any Guarantor or that would otherwise operate as a discharge of
any Guarantor as a matter of law or equity (other than the indefeasible payment
in full in cash of all the Obligations).
Section 505. Defenses of Company Waived.
To the extent permitted by applicable law, each of the Guarantors
waives any defense based on or arising out of any defense of the Company or any
other Guarantor or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Company,
other than final and indefeasible payment in full in cash of the Obligations.
Each of the Guarantors waives any defense arising out of any such election even
though such election operates to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of each of the Guarantors
against the Company or any security.
Section 506. Continued Effectiveness.
Subject to Section 510 of this Sixteenth Supplemental Indenture,
each of the Guarantors further agrees that its Guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by the Trustee or any Holder of the
Securities upon the bankruptcy or reorganization of the Company.
Section 507. Subrogation.
In furtherance of the foregoing and not in limitation of any other
right of each of the Guarantors by virtue hereof, upon the failure of the
Company to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each of the
Guarantors hereby promises to and will, upon receipt of written demand by the
Trustee or any Holder of the Securities, forthwith pay, or cause to be paid, to
the Holders in cash the amount of such unpaid Obligations, and thereupon the
Holders shall, assign (except to the extent that such assignment would render a
Guarantor a "creditor" of the Company within the meaning of Section 547 of Title
11 of the United States Code as now in effect or hereafter amended or any
comparable provision of any successor statute) the amount of the Obligations
owed to it and paid by such Guarantor pursuant to this Guarantee to such
Guarantor, such assignment to be pro rata to the extent the Obligations in
question were discharged by such Guarantor, or make such other disposition
thereof as such Guarantor shall direct (all without recourse to the Holders, and
without any representation or warranty by the Holders). If (a) a Guarantor shall
make payment to the Holders of all or any part of the Obligations and (b) all
the Obligations and all other amounts payable under this Sixteenth Supplemental
Indenture shall be indefeasibly paid in full, the Trustee will, at such
Guarantor's request, execute and deliver to such Guarantor appropriate
documents, without recourse and
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without representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Obligations resulting from
such payment by such Guarantor.
Section 508. Information.
Each of the Guarantors assumes all responsibility for being and
keeping itself informed of the Company's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Obligations
and the nature, scope and extent of the risks that each of the Guarantors
assumes and incurs hereunder, and agrees that the Trustee and the Holders of the
Securities will have no duty to advise the Guarantors of information known to it
or any of them regarding such circumstances or risks.
Section 509. Subordination.
Upon payment by any Guarantor of any sums to the Holders, as
provided above, all rights of such Guarantor against the Company, arising as a
result thereof by way of right of subrogation or otherwise, shall in all
respects be subordinated and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations to the Trustee;
provided, however, that any right of subrogation that such Guarantor may have
pursuant to this Sixteenth Supplemental Indenture is subject to Section 507
hereof.
Section 510. Termination.
A Guarantor shall, upon the occurrence of either of the following
events, be automatically and unconditionally released and discharged from all
obligations under this Sixteenth Supplemental Indenture and its Guarantee
without any action required on the part of the Trustee or any Holder if such
release and discharge will not result in any downgrade in the rating given to
the Securities by Moody's Investors Service and Standard and Poor's Rating
Services:
(a) upon any sale, exchange, transfer or other disposition (by
merger or otherwise) of all of the Capital Stock of a Guarantor or all, or
substantially all, of the assets of such Guarantor, which sale or other
disposition is otherwise in compliance with the terms of the Indenture;
provided, however, that such Guarantor shall not be released and discharged from
its obligations under this Sixteenth Supplemental Indenture and its Guarantee
if, upon consummation of such sale, exchange, transfer or other disposition (by
merger or otherwise), such Guarantor remains or becomes a Guarantor under any
Credit Facility; or
(b) at the request of the Company, at any time that none of the
Credit Facilities are guaranteed by any Subsidiary of the Company.
The Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a request of the Company accompanied by an Officers' Certificate
certifying as to the compliance with this Section. Any Guarantor not so released
will remain liable for the full
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amount of the principal of, premium, if any, and interest on the Notes provided
in this Sixteenth Supplemental Indenture and its Guarantee.
Section 511. Guarantees of other Indebtedness.
As long as the Securities are guaranteed by the Guarantors, the
Company will cause each of its Subsidiaries that becomes a Guarantor in respect
of (i) any Indebtedness of the Company which is outstanding on the date hereof
and (ii) any Indebtedness incurred by the Company after the date hereof (other
than in respect of asset-backed securities), to include in any guarantee given
by any such Guarantor, provisions similar to those set forth in Section 510
hereof.
Section 512. Additional Guarantors.
The Company will cause each of its Subsidiaries that becomes a
Guarantor in respect of any Indebtedness of the Company following the date
hereof to execute and deliver a supplemental indenture pursuant to which it will
become a Guarantor under this Sixteenth Supplemental Indenture, if it has not
already done so or unless the Guarantor is prohibited from doing so by
applicable law or a provision of a contract to which it is a party or by which
it is bound.
Section 513. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee by such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Title 11 of the United States Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar Federal of state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under this Sixteenth
Supplemental Indenture and its Guarantee shall be limited to the maximum amount
which, after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of, any other Guarantor in respect of the obligations of such
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Sixteenth Supplemental Indenture, will result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.
Section 514. Contribution from Other Guarantors.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with generally accepted accounting principles in effect in the United States of
America as of the date hereof.
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Section 515. No Obligation to Take Action Against the Company.
Neither the Trustee, any Holder nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or take any other steps
under any security for the Obligations or against the Company or any other
Person or any property of the Company or any other Person before the Trustee,
such Holder or such other Person is entitled to demand payment and performance
by any or all Guarantors of their liabilities and obligations under their
Guarantee.
Section 516. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may:
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or any other
Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral from the Company;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without consideration)
any and all collateral, mortgages or other security given by the Company or any
third party with respect to the Obligations;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from
any security to such part of the Obligations as the Holders may see fit or
change any such application in whole or in part from time to time as the Holders
may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Company and all other Persons and any security as the Holders or the
Trustee may see fit.
Section 517. Execution and Delivery of the Guarantee.
(a) To further evidence the Guarantee set forth in this Article
Five, each Guarantor hereby agrees that a notation of such Guarantee shall be
endorsed on each Security authenticated and delivered by the Trustee and
executed by either manual or facsimile signature of an officer of each
Guarantor. The corporate seal of a Guarantor may be reproduced on the executed
Guarantee and the execution thereof may be attested to by any appropriate
officer of the Guarantor, but neither such reproduction nor such attestation is
or shall be required.
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(b) Each of the Guarantors hereby agrees that its Guarantee set
forth in this Article Five shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee.
(c) If an officer of a Guarantor whose signature is on this
Sixteenth Supplemental Indenture or a Guarantee no longer holds that office at
the time the Trustee authenticates such Guarantee or at any time thereafter,
such Guarantor's Guarantee of such Security shall be valid nevertheless.
(d) The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Sixteenth Supplemental Indenture on behalf of each Guarantor.
ARTICLE SIX
MISCELLANEOUS
Section 601. Miscellaneous.
(a) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Sixteenth Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Sixteenth Supplemental Indenture.
(b) The recitals contained herein shall be taken as statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Sixteenth Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as of
the date of execution of this Sixteenth Supplemental Indenture all of its
respective representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this Sixteenth Supplemental
Indenture by the Company or the Trustee and each Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
(f) In case any provisions in this Sixteenth Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(g) Nothing in this Sixteenth Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and
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the Holders of the series of Securities created hereby, any benefit or any legal
or equitable right, remedy or claim under the Indenture.
(h) If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act of 1939, as may be amended from time to
time, that is required under such Act to be a part of and govern this Sixteenth
Supplemental Indenture, the latter provision shall control. If any provision
hereof modifies or excludes any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Sixteenth
Supplemental Indenture as so modified or excluded, as the case may be.
(i) This Sixteenth Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
(j) All amendments to the Indenture made hereby shall have effect
only with respect to the series of Securities created hereby.
(k) All provisions of this Sixteenth Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this Sixteenth Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
THE KROGER CO.
Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
By: /s/ Paul W. Heldman
----------------------------------------
Name: Paul W. Heldman
Title: Senior Vice President/President/Vice
President
QUEEN CITY ASSURANCE, INC.,
as Guarantor of the Securities
RJD ASSURANCE, INC.,
as Guarantor of the Securities
VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By: /s/ Bruce M. Gack
----------------------------------------
Name: Bruce M. Gack
Title: Senior Vice President/Vice President
RICHIE'S, INC.,
as Guarantor of the Securities
ROCKET NEWCO, INC.,
as Guarantor of the Securities
HENPIL, INC.,
as Guarantor of the Securities
By: /s/ Todd C. Frease
----------------------------------------
Name: Todd C. Frease
Title: President/Vice President
Attest: U.S. BANK, N.A.,
as Trustee
/s/ Bill Sicking By: /s/ Robert t. Jones
- ---------------- ----------------------------------------
Vice President Name: Robert T. Jones
Title: Vice President and Trust Officer
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SCHEDULE I
Guarantors
Name of Guarantor State of Organization
- ----------------- ---------------------
Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
CB&S Advertising Agency, Inc. Oregon
Crawford Stores, Inc. California
Dillon Companies, Inc. Kansas
Dillon Real Estate Co., Inc. Kansas
Distribution Trucking Company Oregon
F4L L.P. Ohio
FM, Inc. Utah
FMJ, Inc. Delaware
Food 4 Less GM, Inc. California
Food 4 Less Holdings, Inc. Delaware
Food 4 Less Merchandising, Inc. California
Food 4 Less of California, Inc. California
Food 4 Less of Southern California, Inc. Delaware
Fred Meyer, Inc. Delaware
Fred Meyer Jewelers, Inc. California
Fred Meyer Stores, Inc. Ohio
Hughes Markets, Inc. California
Hughes Realty, Inc. California
Inter-American Foods, Inc. Ohio
Junior Food Stores of West Florida, Inc. Florida
J.V. Distributing, Inc. Michigan
KRGP Inc. Ohio
KRLP Inc. Ohio
The Kroger Co. of Michigan Michigan
Kroger Dedicated Logistics Co. Ohio
Kroger Group Cooperative, Inc. Ohio
Kroger Limited Partnership I Ohio
Kroger Limited Partnership II Ohio
Kroger Texas L.P. Ohio
Kwik Shop, Inc. Kansas
Mini Mart, Inc. Wyoming
Peyton's-Southeastern, Inc. Tennessee
Quik Stop Markets, Inc. California
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Name of Guarantor State of Organization
- ----------------- ---------------------
Ralphs Grocery Company Ohio
Second Story, Inc. Washington
Smith's Beverage of Wyoming, Inc. Wyoming
Smith's Food & Drug Centers, Inc. Ohio
THGP Co., Inc. Pennsylvania
THLP Co., Inc. Pennsylvania
Topvalco, Inc. Ohio
Turkey Hill, L.P. Pennsylvania
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STATE OF OHIO)
) ss.:
COUNTY OF HAMILTON)
On the 16th day of December, 2004, before me personally came Paul W.
Heldman, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of The Kroger Co., and President or Vice President of each
of the Guarantors Listed on Schedule I hereto, corporations described in and
which executed the foregoing instrument; that he knows the seals of said
corporations; that the seals affixed to said instrument are such corporate
seals; that they were so affixed by authority of the Board of Directors of such
corporations, and that he signed his name thereto by like authority.
/s/ Dorothy D. Roberts
---------------------------------
STATE OF OHIO
) ss.:
COUNTY OF HAMILTON )
On the 16th day of December, 2004, before me personally came Bruce
M. Gack, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of Queen City Assurance, Inc. and RJD Assurance, Inc. and
Vice President of Vine Court Assurance Incorporated, corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Boards of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Dorothy D. Roberts
---------------------------------
-1-
STATE OF TEXAS)
) ss.:
COUNTY OF MONTGOMERY )
On the 16th day of December, 2004, before me personally came Todd C.
Frease, to me known, who, being by me duly sworn, did depose and say that he is
President of Richie's Inc. and Vice President of Rocket Newco, Inc. and Henpil,
Inc., corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Boards of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Barbara Edwards
---------------------------------
2
STATE OF OHIO)
) ss.:
COUNTY OF HAMILTON)
On the 16th day of December, 2004, before me personally came Robert
T. Jones, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of U.S. Bank, N.A., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Dorothy D. Roberts
---------------------------------
3