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EXHIBIT 4.15
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SMITH'S FOOD & DRUG CENTERS, INC.
and certain Guarantors
TO
STATE STREET BANK
AND TRUST COMPANY
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of July 30, 1999
TO
INDENTURE
Dated as of May 23, 1996
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$575,000,000 11 1/4% Senior Subordinated Notes due 2007
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TABLE OF CONTENTS
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ARTICLE ONE
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DEFINITIONS
Section 101. Definitions.......................................................2
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ARTICLE TWO
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ADDITIONAL GUARANTEE
Section 201. Additional Guarantee..............................................3
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Section 202. Waiver of Demand..................................................4
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Section 203. Additional Guarantee of Payment...................................4
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Section 204. No Discharge or Diminishment of Additional Guarantee..............4
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Section 205. Defenses of Company Waived........................................5
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Section 206. Continued Effectiveness...........................................5
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Section 207. Subrogation.......................................................5
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Section 208. Information.......................................................6
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Section 209. Subordination.....................................................6
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Section 210. Termination.......................................................6
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Section 211. Additional Guarantees of Other Indebtedness.......................7
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Section 212. Additional Guarantors.............................................7
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Section 213. Limitation of Additional Guarantor's Liability....................7
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Section 214. Contribution from Other Additional Guarantors.....................8
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Section 215. No Obligation to Take Action Against the Company..................8
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Section 216. Dealing with the Company and Others...............................8
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Section 217. Subordination of Guarantee........................................9
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ARTICLE THREE
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SUBORDINATION OF GUARANTEE OBLIGATIONS
Section 301. Guarantee Obligations Subordinated to Senior Indebtedness of Guarantors.........9
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ARTICLE FOUR
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MISCELLANEOUS
Section 401. Miscellaneous...................................................................9
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SECOND SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this
"Second Supplemental Indenture"), among Smith's Food & Drug Centers, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company") having its principal office at 1550 S. Redwood
Road, Salt Lake City, Utah 84104, and each of the Additional Guarantors
signatory hereto as set forth on the signature pages and on Schedule I
(collectively, the "Additional Guarantors" and collectively with any persons who
become guarantors under Section 5.17 of the Indenture (as defined below), the
"Guarantors"), and State Street Bank and Trust Company, 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 May 23, 1996 (as amended and supplemented, the
"Indenture") providing for the issuance of the $575,00,000 11 1/4% Senior
Subordinated Notes due 2007 (collectively, the "Securities").
The Indenture has been supplemented by the First Supplemental
Indenture, dated as of August 25, 1997 (the "First 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 Second Supplemental Indenture.
Section 10.01(3) of the Indenture provides that, without the
consent of any Holders, the Company and the Guarantors (if any), when authorized
by a Board Resolution, and the Trustee, together, may amend or supplement the
Indenture, the Securities, or the Guarantees to make any other change that does
not adversely affect the rights of any Holder of Securities 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.
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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
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DEFINITIONS
Section 101. Definitions.
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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 Fred
Meyer, Inc. 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.
(8) "Senior Indebtedness" means, with respect to any Additional
Guarantor, the principal of (and premium, if any) and interest on, and all other
amounts payable in respect of, (a) all Indebtedness of such Guarantor, whether
outstanding on the date of the Indenture or thereafter Incurred, (b) any
obligations of such Additional Guarantor under interest rate swaps, caps,
collars and similar arrangements, (c) any obligations of such Additional
Guarantor under foreign currency hedges entered into in respect of any such
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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 Additional Guarantor's Additional
Guarantee, (iii) any Indebtedness or obligation which is subordinated or junior
in any respect to any other Indebtedness or obligation of such Additional
Guarantor, and (iv) any indebtedness or obligation constituting a trade account
payable of such Additional Guarantor. Any obligation under any Senior
Indebtedness shall continue to constitute Senior Indebtedness despite a
determination that the Incurrence of such obligation by an Additional 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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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.
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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 Seven 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
Guaranteed Obligations as provided in Article Seven 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.
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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
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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 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.
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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.
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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
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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.
Section 208. Information.
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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.
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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.
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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 &
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
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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 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
such guarantee 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 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.
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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
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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, 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.
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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;
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(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.
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
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Guarantors.
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Article Twelve of the Indenture is hereby incorporated by
reference herein in its entirety herein, except that each reference to
"Guarantor" shall become a reference to "Additional Guarantor," each reference
to "Guarantee Obligations" shall become a reference to "Additional Guarantee
Obligations," and each reference to "Guarantor Senior Indebtedness" shall become
a reference to "Additional Guarantor Senior Indebtedness.
ARTICLE FOUR
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MISCELLANEOUS
Section 401. Miscellaneous.
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(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 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.
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(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.
(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.
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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: SMITH'S FOOD & DRUG CENTERS, INC.
(Bruce M. Gack) By: (Paul W. Heldman)
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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, Secretary Name: Paul W. Heldman
Title: Vice President
Each of the Additional Guarantors Listed on
Schedule I hereto, as Additional Guarantor of
the Securities
(Bruce M. Gack) By: (Paul W. Heldman)
- ---------------------------------- -------------------------------
Bruce M. Gack, Secretary Name: Paul W. Heldman
Title: Vice President
______________________
* Signing as duly authorized officer for each such Additional Guarantor.
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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
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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: Vice President
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Attest: STATE STREET BANK AND TRUST
COMPANY, as Trustee
________________________________ By: ______________________________
Name:
Title:
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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 Smith's Food & Drug Centers, Inc. and Vice
President of each of the Additional Guarantors Listed on Schedule I and
Senior Vice President of The Kroger Co., and President of Kroger Dedicated
Logistics Co., corporations described in and which executed the foregoing
instrument; that he knows the seals of said corporations; that the seals affixed
to said instrument are such corporate seals; that they were so affixed by
authority of the Boards of Directors of said corporations, and that he signed
his name thereto by like authority.
(Brenda R. Andes)
------------------------------
Notary Public
Brenda R. Andes [Notarial Seal]
Notary Public, State of Ohio
My Commission Expires June 20, 2003
STATE OF TEXAS )
) ss.:
COUNTY OF HARRIS )
On the 5th day of August, 1999, before me personally came
Steven McMillan, to me known, who, being by me duly sworn, did depose and say
that he is Vice President of Henpil, Inc. and Wydiv, Inc., the corporations
described in and which executed the foregoing instrument; that he knows the
seals of said corporations; that the seal 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
19
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
20
SCHEDULE I
Additional Guarantors
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Name of Additional Guarantor State of Organization
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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
21
Name of Additional Guarantor State of Organization
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Merksamer Jewelers, Inc. California
Roundup Co. Washington
JH Properties, Inc. Washington
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