1
EXHIBIT 4.11
----------------------------------------------------------------------
RALPHS GROCERY COMPANY
and certain Guarantors
TO
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
----------
THIRD SUPPLEMENTAL INDENTURE
Dated as of July 30, 1999
TO
INDENTURE
Dated as of June 1, 1995
----------
$520,326,000 10.45% Senior Notes due 2004
----------------------------------------------------------------------
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.....................................5
--------------------------
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 Guarantors.............................8
----------------------------------
Section 215. No Obligation to Take Action Against the Company...............8
------------------------------------------------
Section 216. Dealing with the Company and Others............................8
-----------------------------------
ARTICLE THREE
-i-
3
MISCELLANEOUS
Section 301. Miscellaneous..................................................9
-------------
-ii-
4
THIRD SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this
"Third Supplemental Indenture"), among Ralphs Grocery Company, a Delaware
corporation having its principal office at 1100 West Artesia Boulevard, Compton,
California 90220 (herein called the "Company"), each of the guarantors signatory
hereto as set forth on the signature pages and on Schedule I (collectively, the
"Guarantors"), each of the additional guarantors signatory hereto as set forth
on the signature pages and Schedule II (collectively, the "Additional
Guarantors"), and Norwest Bank Minnesota, 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 June 1, 1995 (as amended and supplemented, the
"Indenture") providing for the issuance of the $520,326,000 10.45% Senior Notes
Due 2004 (the "Securities").
The Indenture has been supplemented by the First Supplemental
Indenture, dated as of June 14, 1995 (the "First Supplemental Indenture") and
the Second Supplemental Indenture dated as of February 26, 1998 (the "Second
Supplemental Indenture").
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 Third Supplemental Indenture.
Section 9.01(4) of the Indenture provides that, without the
notice to and consent of any Holders, the Company and the Guarantors, when
authorized by a Board Resolution, and the Trustee, together, may amend or
supplement the Indenture to make any other change that does not adversely affect
the rights of any Security holders in any material respect.
The Company, each of the Guarantors and each of the Additional
Guarantors, pursuant to the foregoing authority, propose in and by this Third
Supplemental Indenture to amend and supplement the Indenture in certain respects
with respect to the Securities.
All things necessary to make this Third Supplemental Indenture
a valid agreement of the Company, each of the Guarantors and each of the
Additional Guarantors, and a valid amendment of, and supplement to the
Indenture, have been done.
-1-
5
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company, each of
the Guarantors and each of the Additional 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 Third 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 Third
Supplemental Indenture and, where so specified, to the Articles and Sections of
the Indenture as supplemented by this Third Supplemental Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto", "hereunder" and
"herewith" refer to this Third 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 Fred
Meyer, Inc. and outstanding on the date of this Third 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 "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 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 Guaranteed Obligations of the Additional Guarantor hereunder in
the same manner and to the same extent as the 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 Additional 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 an Additional
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 Guaranteed Obligations may be accelerated as
provided in Article Six of the Indenture
-3-
7
for the purposes of its Additional 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 Six of the Indenture, such
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 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 an Additional 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 Additional Guarantee.
----------------------------------------------------
Subject to Section 210 of this Third 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 Guaranteed
Obligations), including any claim of waiver, release, surrender, alteration or
compromise of any of the Guaranteed Obligations, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations
of each of the 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 Additional 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 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
Guaranteed Obligations).
-4-
8
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 Additional 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 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 Third 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
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 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 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 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 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 Guaranteed
Obligations and (b) all the Guaranteed Obligations and all other amounts payable
under this Third Supplemental Indenture shall be indefeasibly paid in full, the
Trustee will, at such Guarantor's request, execute and deliver to such
Additional Guarantor appropriate
-5-
9
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Additional Guarantor of an interest
in the Guaranteed Obligations resulting from such payment by such Additional
Guarantor.
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 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 Guaranteed
Obligations to the Trustee; PROVIDED, HOWEVER, that any right of subrogation
that such Additional Guarantor may have pursuant to this Third 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 Third 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 &
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 Third 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 an Additional Guarantor under any Credit
Facility; or
-6-
10
(b) at the request of the Company, at any time 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 liable for the full amount of the principal of, premium,
if any, and interest on the Securities provided in this Third Supplemental
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 Third 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 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
Third 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
Third Supplemental Indenture, will result in the
-7-
11
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, 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 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 Guaranteed Obligations;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or
from any security to such part of the Guaranteed Obligations as the Holders may
see fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
-8-
12
(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.
ARTICLE THREE
-------------
MISCELLANEOUS
Section 301. Miscellaneous.
-------------
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this Third Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Third 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
Third Supplemental Indenture.
(c) Each of the Company, the Guarantors and the Trustee makes
and reaffirms as of the date of execution of this Third Supplemental Indenture
all of its respective representations, covenants and agreements set forth in the
Indenture.
(d) All covenants and agreements in this Third Supplemental
Indenture by the Company, the Guarantors, the Additional Guarantors and the
Trustee shall bind its respective successors and assigns, whether so expressed
or not.
(e) In case any provisions in this Third 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 Third 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 Third
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 Third
Supplemental Indenture as so modified or excluded, as the case may be.
-9-
13
(h) This Third Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
(i) All amendments to the Indenture made hereby shall affect
any and all series of Securities created under the Indenture.
(j) All provisions of this Third Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this Third 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.
RALPHS GROCERY COMPANY
Attest:
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: THE KROGER CO., as Additional Guarantor
of the Securities
Bruce M. Gack By: (Paul W. Heldman)
- ---------------------------------- ----------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
Attest**: Each of the Additional Guarantors Listed on
Schedule II hereto, as Additional Guarantor of
the Securities
Bruce M. Gack By: (Paul W. Heldman)
- ---------------------------------- ----------------------------------
Bruce M. Gack, Assistant Secretary Name: Paul W. Heldman
Title: Vice President
* Signing as duly authorized officer for each such Guarantor.
** Signing as duly authorized officer for each such Additional Guarantor.
-11-
15
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
Attest: RICHIE'S INC., as Additional Guarantor of
the Securities
By: (Keith C. Larson)
- --------------------------------- -----------------------------------
Name: Keith C. Larson
Title: Vice President
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
-12-
16
Attest: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
____________________________ By: ______________________________
Name:
Title:
-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 26, 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
seals of said corporations; that the seals affixed to said instrument are such
corporate seals; that they were so affixed by authority of the Boards of
Directors of said corporations, and that he signed his name thereto by like
authority.
(Barbara Edwards)
----------------------------
Notary Public
Barbara Edwards [Notarial Seal]
Notary Public, State of Texas
My Commission Expires October 19, 2001
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 [Notary 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 [Notary Seal]
Notary Public, State of Ohio
My Commission Expires June 20, 2003
19
STATE OF __________ )
) ss.:
COUNTY OF ________ )
On the ____ day of July, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she is a _____________ of Norwest Bank Minnesota, National Association,
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/her name thereto by like authority.
____________________________
20
SCHEDULE I
Guarantors
----------
Name of Guarantor State of Organization
- ----------------- ---------------------
Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
Crawford Stores, Inc. California
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
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
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
22
Name of Additional Guarantor State of Organization
- ---------------------------- ---------------------
Merksamer Jewelers, Inc. California
Roundup Co. Washington
JH Properties, Inc. Washington
Smith's Food & Drug Centers, Inc. Delaware
Compare, Inc. Delaware
Saint Lawrence Holding Company Delaware
Smith's Beverage of Wyoming, Inc. Wyoming
Smitty's Supermarkets, Inc. Delaware
Smitty's Equipment Leasing, Inc. Delaware
Smitty's Super Valu, Inc. Delaware
Treasure Valley Land Company, L.C. Idaho
Western Property Investment Group, Inc. California
Quality Food Centers, Inc. Washington
Hughes Markets, Inc. California
Hughes Realty, Inc. California
KU Acquisition Corporation Washington
Second Story, Inc. Washington
Quality Food, Inc. Delaware
Quality Food Holdings, Inc. Delaware
QFC Sub, Inc. Washington
Food 4 Less Holdings, Inc. Delaware