1
Exhibit 4.10
================================================================================
FRED MEYER, INC.,
and certain Guarantors
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
----------
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 30, 1999
TO
INDENTURE
Dated as of March 11, 1998
----------
$250,000,000 7.150% Notes due March 1, 2003
$750,000,000 7.375% Notes due March 1, 2005
$750,000,000 7.450% Notes due March 1, 2008
================================================================================
2
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 101. Definitions..................................................... 2
ARTICLE TWO
ADDITIONAL GUARANTEE
Section 201. ADDITIONAL GUARANTEE............................................ 3
Section 202. WAIVER OF DEMAND................................................ 4
Section 203. ADDITIONAL GUARANTEE OF PAYMENT................................. 4
Section 204. NO DISCHARGE OR DIMINISHMENT OF ADDITIONAL GUARANTEE............ 4
Section 205. DEFENSES OF COMPANY WAIVED...................................... 4
Section 206. CONTINUED EFFECTIVENESS......................................... 5
Section 207. SUBROGATION..................................................... 5
Section 208. INFORMATION..................................................... 6
Section 209. SUBORDINATION................................................... 6
Section 210. TERMINATION..................................................... 6
Section 211. ADDITIONAL GUARANTEES OF OTHER INDEBTEDNESS..................... 7
Section 212. ADDITIONAL GUARANTORS........................................... 7
Section 213. LIMITATION OF ADDITIONAL GUARANTOR'S LIABILITY.................. 7
Section 214. CONTRIBUTION FROM OTHER ADDITIONAL GUARANTORS................... 7
Section 215. NO OBLIGATION TO TAKE ACTION AGAINST THE COMPANY................ 8
Section 216. Dealing with the Company and Others............................. 8
-i-
3
ARTICLE THREE
MISCELLANEOUS
Section 301. MISCELLANEOUS................................................... 9
-ii-
4
SECOND SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this "Second
Supplemental Indenture"), among Fred Meyer, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company") having its principal office at 3800 SE 22nd Avenue, Portland, Oregon
97202 each of the guarantors signatory hereto as set forth on the signature
pages and Schedule I (collectively, the "Pre-Existing Guarantors"), each of the
additional guarantors signatory hereto as set forth on the signature pages and
Schedule II (collectively, the "Additional Guarantors" and collectively with the
Pre-Existing Guarantors, the "Guarantors"), and First National Bank of Chicago,
a national banking association, 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 11, 1998 (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 the First Supplemental Indenture,
dated as of March 11, 1998 (the "First Supplemental Indenture"), providing for
the issuance of the $250,000,000 7.150% Notes due March 1, 2003, the
$750,000,000 7.375% Notes due March 1, 2005, and the $750,000,000 7.450% Notes
due March 1, 2008 (collectively, the "Securities").
Each of the Additional Guarantors has duly authorized the issuance of a
guarantee of the Securities, as set forth herein, and to provide therefor, each
of the Additional Guarantors has duly authorized the execution and delivery of
this Second Supplemental Indenture.
Section 901(10) of the Indenture provides that, without the consent of any
Holders, the Company, when authorized by a Board Resolution, the Guarantors 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, the Securities, or
any Guarantee provided that such action shall not adversely affect the rights 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 Second Supplemental Indenture to amend and supplement the
Indenture in certain respects with respect to the Securities.
All things necessary to make this Second 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.
-1-
5
NOW, THEREFORE, THIS SECOND 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
DEFINITIONS
Section 101. DEFINITIONS.
For all purposes of this Second 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 Second
Supplemental Indenture and, where so specified, to the Articles and
Sections of the Indenture as supplemented by this Second Supplemental
Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder" and
"herewith" refer to this Second Supplemental Indenture.
(4) "Additional Guarantee" has the meaning specified in Section 201.
(5) "Additional Guaranteed Obligations" has the meaning specified in
Section 201.
(6) "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 the Company. and outstanding on the date of this Second Supplemental
Indenture, and any refinancing or other restructuring of any such agreement
or facility.
(7) "Holder" means any Holder of any Security pursuant to, and in
accordance with the terms of, the Indenture.
-2-
6
ARTICLE TWO
ADDITIONAL GUARANTEE
Section 201. ADDITIONAL GUARANTEE.
Each Additional Guarantor hereby jointly and severally fully and
unconditionally guarantees (each an "Additional 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
Additional 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 Additional Guarantor to the Holders of or the
Trustee under the Indenture or the Securities hereunder (including fees,
expenses or others) (collectively, the "Additional 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 Additional 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 Additional
Guaranteed Obligations, for whatever reason, each Additional 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 Additional Guarantee, and shall
entitle the Holders of Securities to accelerate the Additional Guaranteed
Obligations of the Additional Guarantor hereunder in the same manner and to the
same extent as the Additional Guaranteed Obligations of the Company.
Each Additional 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 an Additional 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 Additional 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 Additional Guaranteed Obligations may be accelerated as provided
in Article Five of the Indenture for the purposes of its Additional Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Additional Guaranteed Obligations, and (b) in the
event of any acceleration of such Additional
-3-
7
Guaranteed Obligations as provided in Article Five of the Indenture, such
Additional Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Additional Guarantor for the purposes
of its Additional Guarantee.
Section 202. WAIVER OF DEMAND.
To the fullest extent permitted by applicable law, each of the Additional
Guarantors waives presentment to, demand of payment from and protest of any of
the Additional Guaranteed Obligations, and also waives notice of acceptance of
its Additional Guarantee and notice of protest for nonpayment.
Section 203. ADDITIONAL GUARANTEE OF PAYMENT.
Each of the Additional Guarantors further agrees that its Additional
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 Additional
Guaranteed Obligations.
Section 204. NO DISCHARGE OR DIMINISHMENT OF ADDITIONAL GUARANTEE.
Subject to Section 210 of this Second Supplemental Indenture, the
obligations of each of the Additional 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 Additional Guaranteed
Obligations), including any claim of waiver, release, surrender, alteration or
compromise of any of the Additional 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
Additional Guaranteed Obligations or otherwise. Without limiting the generality
of the foregoing, the obligations of each of the Additional 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 Additional 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
Additional Guarantor or that would otherwise operate as a discharge of any
Additional Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of all the Additional Guaranteed Obligations).
Section 205. DEFENSES OF COMPANY WAIVED.
To the extent permitted by applicable law, each of the Additional
Guarantors waives any defense based on or arising out of any defense of the
Company or any other Guarantor or the unenforceability of the Additional
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the
-4-
8
Company, other than final and indefeasible payment in full in cash of the
Additional Guaranteed Obligations. Each of the Additional 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 Additional Guarantors against the Company or any
security.
Section 206. CONTINUED EFFECTIVENESS.
Subject to Section 210 of this Second Supplemental Indenture, each of the
Additional Guarantors further agrees that its Additional 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 Additional
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 Additional Guarantors by virtue hereof, upon the failure of the
Company to pay any Additional Guaranteed Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each of the Additional 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 Additional Guaranteed Obligations, and thereupon the Holders shall,
assign (except to the extent that such assignment would render an Additional
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 Additional
Guaranteed Obligations owed to it and paid by such Additional Guarantor pursuant
to this Additional Guarantee to such Additional Guarantor, such assignment to be
PRO RATA to the extent the Additional Guaranteed Obligations in question were
discharged by such Additional Guarantor, or make such other disposition thereof
as such Additional Guarantor shall direct (all without recourse to the Holders,
and without any representation or warranty by the Holders). If (a) an Additional
Guarantor shall make payment to the Holders of all or any part of the Additional
Guaranteed Obligations and (b) all the Additional Guaranteed Obligations and all
other amounts payable under this Second Supplemental Indenture shall be
indefeasibly paid in full, the Trustee will, at such Additional Guarantor's
request, execute and deliver to such Additional Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to such Additional Guarantor of an interest in the
Additional Guaranteed Obligations resulting from such payment by such Additional
Guarantor.
-5-
9
Section 208. INFORMATION.
Each of the Additional 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 Additional
Guaranteed Obligations and the nature, scope and extent of the risks that each
of the Additional Guarantors assumes and incurs hereunder, and agrees that the
Trustee and the Holders of the Securities will have no duty to advise the
Additional Guarantors of information known to it or any of them regarding such
circumstances or risks.
Section 209. SUBORDINATION.
Upon payment by any Additional Guarantor of any sums to the Holders, as
provided above, all rights of such Additional 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 Additional Guaranteed
Obligations to the Trustee; PROVIDED, HOWEVER, that any right of subrogation
that such Additional Guarantor may have pursuant to this Second Supplemental
Indenture is subject to Section 207 hereof.
Section 210. TERMINATION.
An Additional Guarantor shall, upon the occurrence of either of the
following events, be automatically and unconditionally released and discharged
from all obligations under this Second Supplemental Indenture and its Additional
Guarantee without any action required on the part of the Trustee or any Holder
if such release and discharge will not result in any downgrade in the rating
given to the Securities by Moody's Investors Service and Standard and Poor's
Ratings Services:
(a) upon any sale, exchange, transfer or other disposition (by merger or
otherwise) of all of the Capital Stock of an Additional Guarantor or all, or
substantially all, of the assets of such Additional Guarantor, which sale or
other disposition is otherwise in compliance with the terms of the Indenture;
provided, however, that such Additional Guarantor shall not be released and
discharged from its obligations under this Second Supplemental Indenture and its
Additional Guarantee if, upon consummation of such sale, exchange, transfer or
other disposition (by merger or otherwise), such Additional 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 Additional Guarantor not
so released will remain
-6-
10
liable for the full amount of the principal of, premium, if any, and interest
on the Securities provided in the Indenture and its Guarantee.
Section 211. ADDITIONAL GUARANTEES OF OTHER INDEBTEDNESS.
As long as the Securities are guaranteed by the Additional 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 an
Additional Guarantor under this Second Supplemental Indenture, if it has not
already done so or unless the Additional 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 ADDITIONAL GUARANTOR'S LIABILITY.
Each Additional 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 Additional Guarantee by such Additional 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 Additional Guarantor hereby irrevocably agree that the
obligations of such Additional Guarantor under this Second Supplemental
Indenture and its Additional Guarantee shall be limited to the maximum amount
which, after giving effect to all other contingent and fixed liabilities of such
Additional Guarantor, and after giving effect to any collections from or
payments made by or on behalf of, any other Additional Guarantor in respect of
the obligations of such Additional Guarantor under its Additional Guarantee or
pursuant to its contribution obligations under this Second Supplemental
Indenture, will result in the obligations of such Additional Guarantor under its
Additional Guarantee not constituting such fraudulent transfer or conveyance.
Section 214. CONTRIBUTION FROM OTHER ADDITIONAL GUARANTORS.
Each Additional Guarantor that makes a payment or distribution under its
Additional Guarantee shall be entitled to a contribution from each other
Additional Guarantor in a pro rata amount based on the net assets of each
Additional Guarantor,
-7-
11
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 Additional 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 Additional Guarantors of their liabilities
and obligations under their Additional 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 Additional
Guarantor hereunder and without the consent of or notice to any Additional
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 Additional 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 Additional 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.
-8-
12
ARTICLE THREE
MISCELLANEOUS
Section 301. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Second Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Second 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
Second Supplemental Indenture.
(c) Each of the Company, the Pre-Existing Guarantors and the Trustee makes
and reaffirms as of the date of execution of this Second Supplemental Indenture
all of its respective representations, covenants and agreements set forth in the
Indenture.
(d) All covenants and agreements in this Second 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 Second 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 Second 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 Second 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 Second Supplemental Indenture
as so modified or excluded, as the case may be.
(h) This Second 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.
-9-
13
(j) All provisions of this Second Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this Second 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.
-10-
14
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: FRED MEYER INC.
/s/ Bruce M. Gack By: (Paul W. Heldman)
- ---------------------------------- ---------------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest*: Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
Bruce M. Gack By*: (Paul W. Heldman)
- ---------------------------------- --------------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest: RICHIE'S INC., as Guarantor of the
Securities
By: (Keith C. Larson)
- ---------------------------------- ---------------------------------------
Name: Keith C. Larson
Title: Vice President
Attest: THE KROGER CO., as Additional Guarantor
of the Securities
/s/ Bruce M. Gack By: (Paul W. Heldman)
- ---------------------------------- ---------------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Senior Vice President
- ----------------------------------
*Signing as duly authorized officer for each such Guarantor.
-11-
15
Attest:** Each of the Additional Guarantors Listed on
Schedule II hereto, as Additional Guarantor
of the Securities
/s/ Bruce M. Gack By**: (Paul W. Heldman)
- ---------------------------------- -------------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest: HENPIL, INC., as Additional Guarantor
of the Securities
WYDIV, INC., as Additional Guarantor
of the Securities
By: (Steven McMillan)
- ---------------------------------- ---------------------------------------
Name: Steven McMillan
Title: Vice President
- ----------------------------------
**Signing as duly authorized officer for each such Additional Guarantor.
-12-
16
Attest: VINE COURT ASSURANCE INCORPORATED,
as Additional Guarantor of the Securities
(Beth Van Oflen) By: (Bruce M. Gack)
- ---------------------------------- ---------------------------------------
Beth Van Oflen, Assistant Treasurer Name: Bruce M. Gack
Title: Vice President
Attest: KROGER DEDICATED LOGISTICS CO.,
as Additional Guarantor of the Securities
(Bruce M. Gack) By: (Paul W. Heldman)
- ---------------------------------- ---------------------------------------
Bruce M. Gack, Secretary Name: Paul W. Heldman
Title: President
-13-
17
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the 30th day of July, 1999, before me personally came Paul W. Heldman,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of Ralphe Grocery Company and Vice President of each of the Guarantors
Listed on Schedule I hereto and Vice President of each of the Additional
Guarantors listed on Schedule II 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., corporations described in and which
executed the foregoing instrument; that he knows the seal 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 20, 2001
18
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 10/23/99
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
19
SCHEDULE I
GUARANTORS
Name of Guarantor State of Organization
- ----------------- ---------------------
CB&S Advertising Agency, Inc. Oregon
Distribution Trucking Company Oregon
FM Holding Corporation Delaware
FM Retail Services, Inc. Washington
FM, Inc. Utah
Fred Meyer Jewelers, Inc. Delaware
Fred Meyer of Alaska, Inc. Alaska
Fred Meyer of California, Inc. California
Fred Meyer Stores, Inc. Delaware
Grand Central, Inc. Utah
JH Properties, Inc. Washington
Merksamer Jewelers, Inc. California
Roundup Co. Washington
Compare, Inc. Delaware
Saint Lawrence Holding Company Delaware
Smith's Beverage of Wyoming, Inc. Wyoming
Smith's Food & Drug Centers, Inc. Delaware
Smitty's Equipment Leasing, Inc. Delaware
Smitty's Super Valu, Inc. Delaware
Smitty's Supermarkets, 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
QFC Sub, Inc. Washington
Quality Food Holdings, Inc. Delaware
Quality Food, Inc. Delaware
Second Story, 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
20
Name of Guarantor State of Organization
- ----------------- ---------------------
Food 4 Less GM, Inc. California
Food 4 Less Merchandising, Inc. California
Food 4 Less of California, Inc. California
Food 4 Less of Southern California, Inc. Delaware
Ralphs Grocery Company Delaware
21
SCHEDULE II
ADDITIONAL GUARANTORS
Name of Additional Guarantor State of 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