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Exhibit 4.9
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THE KROGER CO.
and certain of its Subsidiaries, as Guarantors
TO
HARRIS TRUST AND SAVINGS BANK
Trustee
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SEVENTH SUPPLEMENTAL INDENTURE
Dated as of June 25, 1999
TO
INDENTURE
Dated as of April 1, 1992
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$250,000,000 9 7/8% Senior Subordinated Notes due 2002
$250,000,000 General Term Notes(SM), Series A
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 101. Definitions..........................................................................................2
ARTICLE TWO
GUARANTEE
Section 201. Guarantee............................................................................................3
Section 202. Waiver of Demand.....................................................................................4
Section 203. Guarantee of Payment.................................................................................4
Section 204. No Discharge or Diminishment of Guarantee............................................................4
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..........................................................................................6
Section 211. Guarantees of other Indebtedness.....................................................................7
Section 212. Additional 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
ARTICLE THREE
SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 301. Guarantee Obligations Subordinated to Senior Indebtedness of Guarantors..............................9
Section 302. Payment Over of Proceeds Upon Dissolution, Etc.......................................................9
Section 303. No Payment When Senior Indebtedness in Default......................................................10
Section 304. Payment Permitted if no Default.....................................................................11
Section 305. Subrogation to Rights of Holders of Senior Indebtedness.............................................12
Section 306. Provisions Solely to Define Relative Rights.........................................................12
Section 307. Trustee to Effectuate Subordination.................................................................13
Section 308. No Waiver of Subordination Provisions...............................................................13
Section 309. Notice to Trustee...................................................................................13
Section 310. Reliance on Judicial Order or Certificate of Liquidating Agent......................................14
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Section 311. Trustee Not Fiduciary for Holders of Senior Indebtedness............................................14
Section 312. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights...............15
Section 313. Article Applicable to Paying Agents.................................................................15
Section 314. Authorization to File Claims; Reinstatement of Subordination........................................15
ARTICLE FOUR
MISCELLANEOUS
Section 401. Miscellaneous.......................................................................................16
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SEVENTH SUPPLEMENTAL INDENTURE, dated as of June 25, 1999,
among 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, each of the guarantors signatory
hereto as set forth on the signature pages and Schedule I (collectively, the
"Guarantors") and Harris Trust and Savings Bank, an Illinois banking corporation
duly organized and existing under the laws of the State of Illinois, 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 April 1, 1992 (as amended and supplemented, 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.
The Indenture has been supplemented by, among other
supplemental indentures, the Fourth Supplemental Indenture dated as of August 1,
1992 (the "Fourth Supplemental Indenture"), and the Sixth Supplemental
Indenture, dated as of April 8, 1993 (the "Sixth Supplemental Indenture"),
providing for the issuance of the no longer outstanding, $250,000,000 9 7/8%
Senior Subordinated Notes due 2002, and the $250,000,000 General Term Notes(SM),
Series A, respectively (collectively, the "Securities").
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 Seventh
Supplemental Indenture.
Section 901(9) 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 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 of
any series in any material respect.
The Company and the Guarantors, pursuant to the foregoing
authority, propose in and by this Seventh Supplemental Indenture to amend and
supplement the Indenture in certain respects with respect to the Securities
issued thereunder.
All things necessary to make this Seventh Supplemental
Indenture a valid agreement of the Company and each of the Guarantors, and a
valid amendment of and supplement to the Indenture, have been done.
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NOW, THEREFORE, THIS SEVENTH 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
Section 101. DEFINITIONS.
For all purposes of this Seventh 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 Seventh
Supplemental Indenture and, where so specified, to the Articles and Sections of
the Indenture as supplemented by this Seventh Supplemental Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder" and
"herewith" refer to this Seventh 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 Company or Fred Meyer,
Inc. and outstanding on the date of this Seventh 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) "Notifying Holder" has the meaning specified in Section 303.
(9) "Payment Blockage Period" has the meaning specified in Section 303.
(10) "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
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Indebtedness of such Guarantor, whether outstanding on the date of this
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
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
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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.
Section 204. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE.
Subject to Section 210 of this Seventh 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
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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 Seventh 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 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
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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 Seventh 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 Seventh Supplemental Indenture is subject to Section
207 hereof.
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 Seventh 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 & Poor's Ratings
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
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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
Seventh 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 Seventh 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 Seventh 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 213. 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 or
state law. To effectuate the foregoing intention, the Holders and such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under
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this Seventh 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 Seventh 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;
(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;
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(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 SUBORDINATED 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 obligations of
such Guarantor in respect of the payment of the principal of (and premium, if
any) and interest 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.
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 marshaling of assets and liabilities of such
Guarantor, then and in any such event the holders of Senior Indebtedness of such
Guarantor shall be entitled to receive payment in full in cash of all amounts
due or to become due on or in respect of all Senior Indebtedness of such
Guarantor 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 to that end
the holders of Senior Indebtedness of such Guarantor shall be entitled to
receive, for application to the payment of all Senior Indebtedness of such
Guarantor remaining unpaid (to the extent necessary to pay all
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Senior Indebtedness of such Guarantor in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness), any payment or distribution 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, which may be payable or deliverable in respect of such Guarantee in
any such case, proceeding, dissolution, liquidation or other winding up or
event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
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, then and in such event such payment or distribution shall be held
in trust by any such Holder for the holders of Senior Indebtedness of such
Guarantor, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee, shall be held by the Trustee
in a separate account, and 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 in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness of such Guarantor.
The consolidation of any Guarantor with, or the merger of any
Guarantor into, another Person or the liquidation or dissolution of any
Guarantor following the sale, assignment, conveyance or transfer of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article Eight of the Indenture shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of such
Guarantor for the purposes of this Section 302 if the Person formed by such
consolidation or into which such Guarantor is merged or the Person which
acquires by sale, assignment, conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, sale, assignment, conveyance or transfer, comply with the
conditions set forth in Article Eight of the Indenture.
Section 303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
No Guarantor may make any payments in respect of its
Guarantee, including any payment in respect of principal of, premium, if any, or
interest on the Securities if (i) any Senior Indebtedness of such Guarantor is
not paid when due and such
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default is not cured or waived, (ii) any other event of default on Senior
Indebtedness of such Guarantor occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms and such acceleration
is not rescinded or (iii) judicial proceedings shall be pending with respect to
such default in payment or event of default. During the continuance of any
default (other than a default in payment or any other event of default and
acceleration as described in the preceding sentence) with respect to any Senior
Indebtedness, upon the receipt by the Trustee and any Guarantor of written
notice thereof from any holder of such Senior Indebtedness or a representative
of such holder (each a "Notifying Holder"), such Guarantor may not during the
period (the "Payment Blockage Period") commencing on the date of such receipt of
such written notice and ending on the earlier of (i) the date on which such
event of default shall have been cured or waived or cease to exist or all
obligations of each such Guarantor in respect of such Senior Indebtedness shall
have been discharged and (ii) the 179th day after the date of the receipt of
such notice, take any action which would be prohibited by the first sentence of
this Section if any Senior Indebtedness of such Guarantor had not been paid. Any
number of such notices may be given; PROVIDED, HOWEVER, that during any 360-day
period the aggregate of all Payment Blockage Periods shall not exceed 179 days
and there shall be a period of at least 181 consecutive days in each 360-day
period when no Payment Blockage Period is in effect. For all purposes of this
Section 303, no default which existed or was continuing on the date of the
commencement of any Payment Blockage Period and was known to a Notifying Holder
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period by the Notifying Holder, whether or not within a period of 360
consecutive days, unless such default shall have been cured or waived for a
period of not less than 90 consecutive days.
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 held in trust by any such Holder for the holders of Senior
Indebtedness of such Guarantor, and if such fact shall, at or prior to the time
of such payment, have been made known to the Trustee, shall be held by the
Trustee in a separate account, and 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 contained in this Article or elsewhere in this
Indenture or in any Guarantee or any Securities shall prevent (a) 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 marshaling of assets and liabilities of such Guarantor referred to in
Section 302 or under the conditions described in Section 303,
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from making payments at any time under its Guarantee, including of principal of,
premium, if any, or interest on the Securities or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of or interest on the Securities or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, it
did not have written notice as provided in Section 309, of any event prohibiting
such application.
Section 305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness of
each Guarantor, the Holders of the Securities shall be subrogated to the extent
of the payments or distributions made to the holders of such Senior Indebtedness
of such Guarantor pursuant to the provisions of this Article 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 interest on the Securities shall be paid in
full. For purposes of such subrogation, no payments or distributions 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 its 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 and the
Holders of the Securities, the obligation of such Guarantor, which is absolute
and unconditional (and which, subject to the rights under this Article of the
holders of Senior Indebtedness of such Guarantor, is intended to rank equally
with all other general obligations of such Guarantor), 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 the Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
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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 effectuate, as between the Holders and the holders of Senior
Indebtedness, the subordination provided for 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 right 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 the 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 Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) 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, any Holder, any Paying Agent, any holder of any
class of Senior Indebtedness or any Notifying Holder, who shall have been
certified by any Guarantor or otherwise established to the reasonable
satisfaction of the Trustee to be such holder, or from any trustee 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
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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 2 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 (or 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 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 within 2
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 a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee 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 such Person to
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 payment 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 order 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 or to the Holders of
Securities, for the purpose of ascertaining the Person entitled to participate
in such payment or distribution, the holders of the 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. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith
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mistakenly pay over or distribute to Holders of Securities or to any Guarantor
or to any other Person cash, property or securities to which any holders of
Senior Indebtedness of such Guarantor shall be entitled by virtue of this
Article or otherwise.
Section 312. RIGHTS OF TRUSTEE AS 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 this 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 607 of the Indenture.
Section 313. 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 hereunder, 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 this Section 313 shall not apply to the Company or any affiliate
of the Company if it or such Affiliate acts as Paying Agent.
Section 314. AUTHORIZATION TO FILE CLAIMS; REINSTATEMENT OF SUBORDINATION.
(a) Each Notifying Holder is hereby irrevocably authorized and
empowered (in its own name or in the name of the Holders or the Trustee or
otherwise), but shall have no obligation, to file claims and proofs of claim in
respect of the Securities in proceedings referred to in Section 302 in the event
such claims or proofs of claim have not been filed prior to 30 days before such
filings would be barred.
(b) The provisions of this Article Three shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any obligations in respect of any Senior Indebtedness is rescinded or must
otherwise be returned by any holder of such Senior Indebtedness or any other
Lender under any Bank Agreement upon the insolvency, bankruptcy or
reorganization of any Guarantor, all as though such payment had not been made,
PROVIDED, HOWEVER, that this paragraph (b) shall only apply to payments which
had been so rescinded or required to be returned as a result of a determination
that such payment 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
fraudulent transfer under Federal or State law.
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ARTICLE FOUR
------------
MISCELLANEOUS
Section 401. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this Seventh Supplemental Indenture, and agrees to perform
the same upon the terms and conditions of the Indenture, as supplemented by this
Seventh 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
Seventh Supplemental Indenture.
(c) Each of the Company and the Trustee makes and reaffirms as
of the date of execution of this Seventh Supplemental Indenture all of its
respective representations, covenants and agreements set forth in the Indenture.
(d) All covenants and agreements in this Seventh 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 Seventh 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 Seventh 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 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 Seventh
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 Seventh
Supplemental Indenture as so modified or excluded, as the case may be.
(h) This Seventh Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
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(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 Seventh Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture; and
the Indenture, as supplemented by this Seventh 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: THE KROGER CO.
/s/ Bruce M. Gack By: /s/ Paul Heldman
- ------------------------- ----------------------------------------
Assistant Secretary Name: Paul Heldman
Title: Senior Vice President
Attest*: Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
/s/ Bruce M. Gack By* : /s/ Paul Heldman
- ------------------------- ----------------------------------------
(Assistant) Secretary Name: Paul Heldman
Title: Vice President
Attest: VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By: /s/ Bruce M. Gack
- ------------------------- ----------------------------------------
Name: Bruce Gack
Title: Vice President
Attest: KROGER DEDICATED LOGISTICS CO.,
as Guarantor of the Securities
/s/ Bruce M. Gack By: /s/ Paul Heldman
- ------------------------- ----------------------------------------
Secretary Name: Paul Heldman
Title: President
- ----------------
* Signing as duly authorized officer for each such Guarantor.
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Attest: RICHIE'S, INC.,
as Guarantor of the Securities
By: /s/ Keith C. Larson
- ------------------------- ----------------------------------------
Name: Keith C. Larson
Title: Vice President Secretary
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Attest: HENPIL, INC., as Guarantor of the Securities
WYDIV, INC. , as Guarantor of the Securities
By: /s/ Steve Mcmillan
- -------------------------- ------------------------------------------
Name: Steve McMillan
Title: Vice President and Secretary
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Attest: HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:
- ----------------------------- ------------------------------------------
Assistant Secretary Name:
Title:
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the _____ day of June, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of The Kroger Co., and ____________________ of
each of the Guarantors Listed on Schedule I hereto and ____________ 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.
------------------------
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of June, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of Henpil, Inc. and Wydiv, Inc., 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.
------------------------
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of June, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is _________________ 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 Boards of
Directors of said corporations, and that he signed his name thereto by like
authority.
------------------------
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ____ day of June, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ____________ 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 Boards of Directors of said
corporations, and that he signed his name thereto by like authority.
------------------------
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STATE OF __________ )
) ss.:
COUNTY OF ________ )
On the ____ day of June, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she is a _____________ of Harris Trust and Savings Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she 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/she signed his name thereto
by like authority.
------------------------
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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
Roundup Co. Washington
JH Properties, Inc. Washington
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Name of Guarantor State of Incorporation/organization
- ----------------- -----------------------------------
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
Ralphs Grocery Company 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
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