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Exhibit 4.12
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RALPHS GROCERY COMPANY
and certain Guarantors
TO
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of July 30, 1999
TO
INDENTURE
Dated as of March 30, 1993
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$150,000,000 9% Senior Subordinated Notes due 2003 and
9% Series B Senior Subordinated Notes due 2003
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TABLE OF CONTENTS
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ARTICLE ONE
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DEFINITIONS
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Section 101. DEFINITIONS.................................................................................2
ARTICLE TWO
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GUARANTEE
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Section 201. GUARANTEE...................................................................................3
Section 202. WAIVER OF DEMAND............................................................................4
Section 203. GUARANTEE OF PAYMENT........................................................................4
Section 204. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE...................................................5
Section 205. DEFENSES OF COMPANY WAIVED..................................................................5
Section 206. CONTINUED EFFECTIVENESS.....................................................................5
Section 207. SUBROGATION.................................................................................5
Section 208. INFORMATION.................................................................................6
Section 209. SUBORDINATION...............................................................................6
Section 210. TERMINATION.................................................................................7
Section 211. GUARANTEES OF OTHER INDEBTEDNESS............................................................7
Section 212. GUARANTORS..................................................................................7
Section 213. LIMITATION OF GUARANTOR'S LIABILITY.........................................................8
Section 214. CONTRIBUTION FROM OTHER GUARANTORS..........................................................8
Section 215. NO OBLIGATION TO TAKE ACTION AGAINST THE COMPANY............................................8
Section 216. DEALING WITH THE COMPANY AND OTHERS.........................................................8
Section 217. SUBORDINATION OF GUARANTEE..................................................................9
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PAGE
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ARTICLE THREE
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SUBORDINATION OF GUARANTEE OBLIGATIONS
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Section 301. GUARANTEE OBLIGATIONS SUBORDINATE TO SENIOR INDEBTEDNESS OF GUARANTORS......................9
Section 302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.............................................10
Section 303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.............................................11
Section 304. PAYMENT PERMITTED IF NO DEFAULT............................................................12
Section 305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS....................................12
Section 306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................................................13
Section 307. TRUSTEE TO EFFECTUATE SUBORDINATION........................................................13
Section 308. NO WAIVER OF SUBORDINATION PROVISIONS......................................................14
Section 309. NOTICE TO TRUSTEE..........................................................................14
Section 310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.............................15
Section 311. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.....15
Section 312. ARTICLE APPLICABLE TO PAYING AGENTS........................................................16
ARTICLE FOUR
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MISCELLANEOUS
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Section 401. MISCELLANEOUS..............................................................................16
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FOURTH SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this
"Fourth Supplemental Indenture"), among Ralphs Grocery Company, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company"), having its principal office at 1100 West Artesia
Boulevard, Compton, California 90220, each of the guarantors signatory hereto as
set forth on the signature pages and on Schedule I (collectively, the
"Guarantors"), and United States Trust Company of New York, a New York
corporation, 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 March 30, 1993 (as amended and supplemented,
the "Indenture") providing for the issuance of $150,000,000 aggregate principal
amount of the Company's 9% Senior Subordinated Notes due 2003 (the "Initial
Securities").
Pursuant to the First Supplemental Indenture dated as of June
23, 1993 (the "First Supplemental Indenture"), between the Company and the
Trustee, the Company consummated an exchange offer for the Initial Securities
whereby the Company offered to exchange $1,000 principal amount of its 9% Series
B Senior Subordinated Notes due 2003 (the "Exchange Securities," and together
with the Initial Securities, the "Securities"), for each $1,000 principal amount
of its Initial Securities.
The Indenture has been supplemented by the First Supplemental
Indenture, Second Supplemental Indenture dated as of May 30, 1995 (the "Second
Supplemental Indenture") and the Third Supplemental Indenture dated as of June
14, 1995 (the "Third Supplemental 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 Fourth
Supplemental Indenture.
Section 901(c) 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, in form satisfactory to the Trustee,
to make any other provisions with respect to matters or questions arising under
the Indenture, provided that such action shall not adversely affect the
interests of the Holders of Securities in any material respect.
The Company and the Guarantors, pursuant to the foregoing
authority, propose in and by this Fourth Supplemental Indenture to amend and
supplement the Indenture in certain respects with respect to the Securities.
All things necessary to make this Fourth Supplemental
Indenture a valid
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agreement of the Company and each of the Guarantors, and a valid amendment of,
and supplement to the Indenture, have been done.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and each
of the Guarantors hereby covenants and agrees with the Trustee and its successor
or successors in said trust under the Indenture, as follows:
ARTICLE ONE
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DEFINITIONS
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Section 101. DEFINITIONS.
For all purposes of this Fourth 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 Fourth
Supplemental Indenture and, where so specified, to the Articles and Sections of
the Indenture as supplemented by this Fourth Supplemental Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder" and
"herewith" refer to this Fourth Supplemental Indenture.
(4) "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 Kroger Co. or Fred
Meyer, Inc. and outstanding on the date of this Fourth Supplemental Indenture
and any refinancing or other restructuring of any such agreement or facility.
(5) "Guarantee" has the meaning specified in Section 201.
(6) "Guaranteed Obligations" has the meaning specified in Section 201.
(7) "Holder" means any Holder of any Security pursuant to, and in
accordance with the terms of, the Indenture.
(8) "Obligations" means all obligations for the reimbursement of
amounts drawn under any letter of credit or for the payment of principal,
premium, interest (including, without limitation, interest whether or not
allowed after the filing of a petition initiating
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any proceeding referred to in Section 501 (6) or (7) of the Indenture at the
rate specified in the instrument governing the relevant Indebtedness),
penalties, fees, expenses, indemnities or other amounts, now or hereafter
existing, with respect to any Indebtedness.
(9) "Senior Indebtedness" means, with respect to any Guarantor,
the principal of (and premium, if any) and interest on, and all other amounts
payable in respect of, (a) all Indebtedness of such Guarantor, whether
outstanding on the date of the Indenture or thereafter Incurred, (b) any
obligations of such Guarantor under interest rate swaps, caps, collars and
similar arrangements, (c) any obligations of such Guarantor under foreign
currency hedges entered into in respect of any such Indebtedness or obligation
and (d) any amendments, renewals, extensions, modifications, and refundings of
any such Indebtedness or obligation, except (i) any Indebtedness or obligation
owed to a Subsidiary, (ii) any Indebtedness or obligation which by the terms of
the instrument creating or evidencing the same is not superior in right of
payment to such Guarantor's Guarantee, (iii) any Indebtedness or obligation
which is subordinated or junior in any respect to any other Indebtedness or
obligation of such Guarantor, and (iv) any indebtedness or obligation
constituting a trade account payable of such Guarantor. Any obligation under any
Senior Indebtedness shall continue to constitute Senior Indebtedness despite a
determination that the Incurrence of such obligation by a Guarantor was a
preference under Section 547(b) of Title 11 of the United States Code (or any
successor thereto) or was a fraudulent conveyance or transfer under Federal or
State Law.
ARTICLE TWO
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GUARANTEE
Section 201. 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
"Guaranteed 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 Guaranteed 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
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acceleration or otherwise. If the Company shall fail to pay when due, or to
perform, any Guaranteed 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 Guaranteed Obligations of the Guarantor
hereunder in the same manner and to the same extent as the Guaranteed
Obligations of the Company.
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 Guaranteed Obligations may be accelerated as provided in Article
Five of the Indenture for the purposes of its Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Guaranteed Obligations, and (b) in the event of any acceleration of such
Guaranteed Obligations as provided in Article Five of the Indenture, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of its Guarantee.
Section 202. 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 Guaranteed Obligations, and also waives notice of acceptance of its
Guarantee and notice of protest for nonpayment.
Section 203. 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 Guaranteed
Obligations.
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Section 204. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE.
Subject to Section 210 of this Fourth Supplemental Indenture,
the obligations of each of the Guarantors hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations), including
any claim of waiver, release, surrender, alteration or compromise of any of the
Guaranteed 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 Guaranteed 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, failure or delay, willful or
otherwise, in the performance of the Guaranteed 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 Guaranteed Obligations).
Section 205. 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 Guaranteed
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 Guaranteed 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 206. CONTINUED EFFECTIVENESS.
Subject to Section 210 of this Fourth 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 Guaranteed
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 207. 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
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Guaranteed 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 Guaranteed 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
Guaranteed 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
Guaranteed 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 Guaranteed Obligations and (b) all the Guaranteed Obligations and
all other amounts payable under this Fourth 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 without representation or warranty, necessary to evidence the transfer by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by such Guarantor.
Section 208. 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 Guaranteed
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 209. 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 Guaranteed Obligations to the
Trustee; PROVIDED, HOWEVER, that any right of subrogation that such Guarantor
may have pursuant to this Fourth Supplemental Indenture is subject to Section
207 hereof.
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Section 210. 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 Fourth 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 Services and Standard & 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 Fourth 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 amount of the principal of, premium, if any, and
interest on the Notes provided in this Fourth Supplemental Indenture and its
Guarantee.
Section 211. 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 210
hereof.
Section 212. 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 Fourth Supplemental Indenture, if it has not
already done so or unless the Guarantor is
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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 213. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor, other than The Kroger Co., 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 Fourth 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 Fourth Supplemental Indenture, will
result in the obligations of such Guarantor under its Guarantee not constituting
such fraudulent transfer or conveyance.
Section 214. 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.
Section 215. 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 Guaranteed 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 216. 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;
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(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 Guaranteed 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 Guaranteed 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 217. SUBORDINATION OF GUARANTEE.
The obligations of each Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee and this Indenture are
expressly subordinate and subject in right of payment to the prior payment in
full in cash of all Senior Indebtedness of such Guarantor, to the extent and in
the manner provided in Article Three.
ARTICLE THREE
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SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 301. GUARANTEE OBLIGATIONS SUBORDINATE TO SENIOR INDEBTEDNESS OF
GUARANTORS.
Each Guarantor covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Guarantee of such Guarantor, including the obligation of such
Guarantor in respect of the payment of the principal of and premium, if any, and
interest (including any payments required due to the occurrence of a Change of
Control Triggering Event) on each and all of the Securities, is hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Indebtedness of such Guarantor (including any interest accruing after
the occurrence of an Event of Default under Section 501(f) or (g) of the
Indenture).
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Section 302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of such Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of such
Guarantor, then and in any such event:
(1) the holders of Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness of such
Guarantor, or provision shall be made for such payment in cash or
cash equivalents, before the Holders of the Securities are
entitled to receive any payment in respect of such Guarantor's
Guarantee, including on account of principal of (or premium, if
any) or interest on the Securities; and
(2) any payment or distribution of assets of such
Guarantor of any kind or character, whether in cash, property or
securities, by set-off or otherwise, to which the Holders or the
Trustee would be entitled but for the provisions of this Article,
including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of
such Guarantor being subordinated to the payment of the Guarantee
of such Guarantor (except, so long as the effect of this
parenthetical clause is not to cause the Guarantee of such
Guarantor to be treated in any case or proceeding or similar event
described in Subsection (a), (b) or (c) of this Section 302 as
part of the same class of claims as the Senior Indebtedness of
such Guarantor or any class of claims on a parity with or senior
to the Senior Indebtedness of such Guarantor, for any such payment
or distribution (x) authorized by an order or decree giving
effect, and stating in such order or decree that effect is given,
to the subordination of the Guarantees to the Senior Indebtedness
of such Guarantor, and made by a court of competent jurisdiction
in a reorganization proceeding under any applicable bankruptcy
law, or (y) of securities that (i) are unsecured, (ii) have an
Average Life to Stated Maturity and final maturity that are no
shorter than the Average Life to Stated Maturity of the Securities
and (iii) are subordinated, to at least the same extent as the
Guarantees, to the payment of all Senior
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Indebtedness of such Guarantor then outstanding), shall be paid by
the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness of such Guarantor or their
representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of
such Senior Indebtedness of such Guarantor may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on,
and other amounts due on or in connection with, the Senior
Indebtedness of such Guarantor to the extent necessary to make
payment in full of all Senior Indebtedness of such Guarantor
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness of such
Guarantor; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Security shall have received any such payment or distribution of
assets of any Guarantor of any kind or character, whether in cash,
property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of
any other indebtedness of such Guarantor being subordinated to the
payment of the Guarantee of such Guarantor, before all Senior
Indebtedness of such Guarantor is paid in full or payment thereof
provided for, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of
such Guarantor for application to the payment of all Senior
Indebtedness of such Guarantor remaining unpaid to the extent
necessary to pay all Senior Indebtedness of such Guarantor in
full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness of such
Guarantor.
Section 303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(i) In the event of and during the continuation of any default
in the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness of any Guarantor beyond any applicable grace period with respect
thereto, or (ii) in the event that any other event of default with respect to
any Senior Indebtedness of any
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Guarantor shall have occurred and be continuing that permits the holders of such
Senior Indebtedness (or a trustee on behalf of such holders) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable either without further notice or upon the
expiration of any grace period applicable to such event of default, and written
notice thereof shall have been given to each of such Guarantor and the Trustee
by the trustee or representative for, or the holders of at least a majority of
the principal amount of the Senior Indebtedness of such Guarantor (the "Payment
Notice"), then no payment shall be made by such Guarantor in respect of its
Guarantee including on account of the principal of (or premium, if any) or
interest on the Securities or on account of the purchase or redemption or other
acquisition of Securities until (x) in case of an event of default described in
clause (i), unless and until such payment event of default shall have been cured
or waived or shall have ceased to exist or the holders of such Senior
Indebtedness or their agents have waived the benefits of this Section, or (y) in
case of any event of default specified in clause (ii), until the earlier of (1)
179 days after the date on which a Payment Notice shall have been given and (2)
the date, if any, on which such event of default is waived by the holders of
such Senior Indebtedness or otherwise cured or has ceased to exist or the Senior
Indebtedness to which such event of default relates is discharged (provided that
further written notice relating to the same or any other event of default
specified in clause (ii) above with respect to any Senior Indebtedness received
by such Guarantor or the Trustee within 12 months after such prior receipt of a
Payment Notice shall not be effective to further prohibit such payments).
In the event that, notwithstanding the foregoing, any
Guarantor shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to such Guarantor.
The provisions of this Section shall not apply to any payment
with respect to which Section 302 would be applicable.
Section 304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing in this Article or elsewhere in the Indenture or in
any Guarantee or in any of the Securities shall prevent any Guarantor, at any
time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of such Guarantor referred to in
Section 302 or under the conditions described in Section 303, from making
payments at any time under its Guarantee, including of principal of (and
premium, if any) or interest on the Securities.
Section 305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness of
each Guarantor,
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the Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of such Guarantor which by its express terms is
subordinated to Senior Indebtedness of such Guarantor to the same extent as the
Securities are subordinated and which is entitled to like rights of subrogation)
to the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness of such Guarantor until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior Indebtedness
of any cash, property or securities to which the holders of the Senior
Indebtedness of any Guarantor or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among such Guarantor, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment or distribution by such Guarantor to or on account of the Senior
Indebtedness of such Guarantor.
Section 306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in the Indenture or in the Securities is
intended to or shall (a) impair, as among any Guarantor, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of such Guarantor which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against any Guarantor of the
Holders of the Securities and creditors of such Guarantor other than the holders
of Senior Indebtedness of such Guarantor; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the express
limitations set forth in Article Five of the Indenture and to the rights, if
any, under this Article of the holders of Senior Indebtedness of such Guarantor
(1) in any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of such Guarantor referred to in Section 302, to receive, pursuant
to and in accordance with such Section, cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 303, to prevent any payment prohibited by such
Section.
Section 307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to
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effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 308. NO WAIVER OF SUBORDINATION PROVISIONS.
No rights of any present or future holder of any Senior
Indebtedness of any Guarantor to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of such Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by such Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holder of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 309. NOTICE TO TRUSTEE.
Each Guarantor shall give prompt written notice to the Trustee
of any fact known to such Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of the Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from any Guarantor or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601 of the
Indenture, shall be entitled in all respects to assume that no such facts exist;
PROVIDED, HOWEVER, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money
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and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it which
three Business Days prior to such date.
Subject to the provisions of Section 601 of the Indenture, the
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be holder of Senior Indebtedness (or a trustee,
fiduciary to agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request that such Person furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any amount or distribution of assets of any Guarantor
referred to in this Article, the Trustee, subject to the provisions of Section
601 of the Indenture, and the Holders of the Securities shall be entitled to
rely upon any other or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution delivered to the Trustee and to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 311. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in the Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606 of the Indenture.
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Section 312. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting thereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Section 311 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
ARTICLE FOUR
------------
MISCELLANEOUS
Section 401. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this Fourth Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Fourth 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
Fourth Supplemental Indenture.
(c) Each of the Company and the Trustee makes and reaffirms as
of the date of execution of this Fourth Supplemental Indenture all of its
respective representations, covenants and agreements set forth in the Indenture.
(d) All covenants and agreements in this Fourth Supplemental
Indenture by the Company, the Guarantors and the Trustee shall bind its
respective successors and assigns, whether so expressed or not.
(e) In case any provisions in this Fourth 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.
(f) Nothing in this Fourth Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the series of Securities
created hereby, any benefit or any legal or equitable right, remedy or claim
under the Indenture.
(g) If any provision hereof limits, qualifies or conflicts
with a provision
-16-
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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 Fourth 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 Fourth Supplemental Indenture
as so modified or excluded, as the case may be.
(h) This Fourth Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
(i) All amendments to the Indenture made hereby shall affect
any and all series of Securities created under the Indenture.
(j) All provisions of this Fourth Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this Fourth 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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: RALPHS GROCERY COMPANY
(Bruce M. Gack) By: (Paul W. Heldman)
- -------------------------------- -------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest: THE KROGER CO., as Guarantor of the
Securities
(Bruce M. Gack) By: (Paul W. Heldman)
- ---------------------------------- -------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Senior Vice President
Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
Attest:
(Bruce M. Gack) By: (Paul W. Heldman)
- ---------------------------------- -------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest: HENPIL, INC., as Guarantor of the Securities
WYDIV, INC. , as Guarantor of the Securities
- ---------------------------------- By: (Steven McMillan)
--------------------------------
Name: Steven McMillan
Title: Vice President
* Signing as duly authorized officer for each such Guarantor.
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Attest: RICHIE'S, INC. , as Guarantor of the
Securities
By: (Keith C. Larson)
- -------------------------------- -------------------------------
Bruce M. Gack, Assistant Secretary Name: Keith C. Larson
Attest: VINE COURT ASSURANCE
INCORPORATED, as Guarantor of the
Securities
(Beth Van Oflen) By: (Bruce M. Gack)
- -------------------------------- -------------------------------
Bruce M. Gack, Assistant Secretary Name: Bruce M. Gack
Title: Vice President
Attest: KROGER DEDICATED LOGISTICS CO., as
Guarantor of the Securities
(Bruce M. Gack) By: (Paul W. Heldman)
- -------------------------------- -------------------------------
Bruce M. Gack, Secretary Name: Paul W. Heldman
Title: Vice President
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Attest: UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
__________________ By: ________________________________
Name:
Title:
-20-
24
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 30th day of July, 1999, before me personally came
Paul W. Haldman, to me known, who, being by me duly sworn, did depose and say
that he is Vice President of Ralphs Grocery Company and each of the Guarantors
Listed on Schedule I hereto, and Senior Vice President of The Kroger Co., and
President of Kroger Dedicated Logistics Co., 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 Boards of Directors of
said corporations, and that he signed his name thereto by like authority.
(Brenda R. Andes)
------------------------------
Notary Public
Brenda R. Andes [Notarial Seal]
Notary Public, State of Ohio
My Commission Expires June 20, 2003
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
On the 5th day of August, 1999, before me personally came
Steven McMillan, to me known, who, being by me duly sworn, did depose and say
that he is Vice President of Henpil, Inc. and Wydiv, Inc., the 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 Boards of
Directors of said corporations, and that he signed his name thereto by like
authority.
(Barbara Edwards)
------------------------------
Notary Public
Barbara Edwards [Notarial Seal]
Notary Public, State of Texas
My Commission Expires October 19, 2001
25
STATE OF TEXAS )
) ss.:
COUNTY OF EL PASO )
On the 30th day of July, 1999, before me personally came
Keith C. Larson, to me known, who, being by me duly sworn, did depose and say
that he is Vice President of Richie's, Inc., 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.
(Mercedes Flores)
------------------------------
Notary Public
Mercedes Flores [Notarial Seal]
Notary Public, State of Texas
My Commission Expires 10/23/00
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 30th day of July, 1999, before me personally came
Bruce M. Gack, to me known, who, being by me duly sworn, did depose and say that
he is Vice President of Vine Court Assurance Incorporated, 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.
(Brenda R. Andes)
------------------------------
Notary Public
Brenda R. Andes [Notarial Seal]
Notary Public, State of Ohio
My Commission Expires June 20, 2003
26
SCHEDULE I
Guarantors
----------
Name of Guarantor State of Incorporation/organization
- ----------------- -----------------------------------
Dillon Companies, Inc. Kansas
Drug Distributors, Inc. Indiana
Inter-American Foods, Inc. Ohio
J.V. Distributing, Inc. Michigan
KRGP Inc. Ohio
KRLP Inc. Ohio
The Kroger Co. of Michigan Michigan
Kroger Limited Partnership I Ohio (limited partnership)
By: KRGP Inc., the General Partner
Kroger Limited Partnership II Ohio (limited partnership)
By: KRGP Inc., the General Partner
Peyton's-Southeastern, Inc. Tennessee
Rocket Newco, Inc. Texas
Topvalco, Inc. Ohio
City Market, Inc. Colorado
Dillon Real Estate Co., Inc. Kansas
Fry's Leasing Company, Inc. Arizona
Jackson Ice Cream Co., Inc. Kansas
Junior Food Stores of West Florida, Inc. Florida
Kwik Shop, Inc. Kansas
Mini Mart, Inc. Wyoming
Quik Stop Markets, Inc. California
THGP Co., Inc. Pennsylvania
THLP Co., Inc. Pennsylvania
Turkey Hill, L.P. Pennsylvania (limited partnership)
Wells Aircraft, Inc. Kansas
Fred Meyer, Inc. Delaware
Fred Meyer Stores, Inc. Delaware
CB&S Advertising Agency, Inc. Oregon
Distribution Trucking Company Oregon
FM, Inc. Utah
FM Holding Corporation Delaware
Grand Central, Inc. Utah
FM Retail Services, Inc. Washington
Fred Meyer of Alaska, Inc. Alaska
Fred Meyer of California, Inc. California
Fred Meyer Jewelers, Inc. Delaware
Merksamer Jewelers, Inc. California
27
Name of Guarantor State of Incorporation/organization
- ----------------- -----------------------------------
Roundup Co. Washington
JH Properties, Inc. Washington
Smith's Food & Drug Centers, Inc. Delaware
Compare, Inc. Delaware
Saint Lawrence Holding Company Delaware
Smith's Beverage of Wyoming, Inc. Wyoming
Smitty's Supermarkets, Inc. Delaware
Smitty's Equipment Leasing, Inc. Delaware
Smitty's Super Valu, Inc. Delaware
Treasure Valley Land Company, L.C. Idaho
Western Property Investment Group, Inc. California
Quality Food Centers, Inc. Washington
Hughes Markets, Inc. California
Hughes Realty, Inc. California
KU Acquisition Corporation Washington
Second Story, Inc. Washington
Quality Food, Inc. Delaware
Quality Food Holdings, Inc. Delaware
QFC Sub, Inc. Washington
Food 4 Less Holdings, Inc. Delaware
Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
Crawford Stores, Inc. California
Food 4 Less of California, Inc. California
Food 4 Less of Southern California, Inc. Delaware
Food 4 Less Merchandising, Inc. California
Food 4 Less GM, Inc. California