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Exhibit 4.2
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THE KROGER CO.
AND THE GUARANTORS NAMED HEREIN
TO
FIRSTAR BANK, NATIONAL ASSOCIATION
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of June 25, 1999
TO
INDENTURE
Dated as of June 25, 1999
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7.25% SENIOR NOTES DUE 2009
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 101. Definitions.................................................................................2
ARTICLE TWO
SECURITY FORMS
Section 201. Form of Securities of this Series..........................................................10
Section 202. Form of Face of Security...................................................................11
Section 203. Form of Reverse of Security................................................................20
Section 204. Form of Guarantee..........................................................................25
Section 205. Global Securities..........................................................................29
ARTICLE THREE
TRANSFER AND EXCHANGE
Section 301. Transfer and Exchange......................................................................31
ARTICLE FOUR
THE SERIES OF SECURITIES
Section 401. Title and Terms............................................................................34
ARTICLE FIVE
MODIFICATIONS AND ADDITIONS TO THE INDENTURE
Section 501. Modifications to the Consolidation, Merger, Conveyance, Transfer or Lease
Provisions.................................................................................36
Section 502. Other Modifications........................................................................37
Section 503. Additional Covenants; Defeasance and Covenant Defeasance...................................37
Section 504. Redemption of Securities...................................................................46
ARTICLE SIX
GUARANTEE
Section 601. Guarantee..................................................................................47
Section 602. Waiver of Demand...........................................................................48
Section 603. Guarantee of Payment.......................................................................48
Section 604. No Discharge or Diminishment of Guarantee..................................................48
Section 605. Defenses of Company Waived.................................................................48
Section 606. Continued Effectiveness....................................................................49
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Section 607. Subrogation................................................................................49
Section 608. Information................................................................................49
Section 609. Subordination..............................................................................50
Section 610. Termination................................................................................50
Section 611. Guarantees of other Indebtedness...........................................................51
Section 612. Additional Guarantors......................................................................51
Section 613. Limitation of Guarantor's Liability........................................................51
Section 614. Contribution from Other Guarantors.........................................................51
Section 615. No Obligation to Take Action Against the Company...........................................52
Section 616. Dealing with the Company and Others........................................................52
Section 617. Execution and Delivery of the Guarantee....................................................52
ARTICLE SEVEN
MISCELLANEOUS
Section 701. Miscellaneous..............................................................................53
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FIRST SUPPLEMENTAL INDENTURE, dated as of June 25, 1999, among
The Kroger Co., a corporation duly organized and existing under the laws of the
State of Ohio (herein called the "Company"), having its principal office at 1014
Vine Street, Cincinnati, Ohio 45202, the guarantors listed on the signature
pages and Schedule I hereto (each, a "Guarantor") and Firstar Bank, National
Association, a banking corporation duly organized and existing under the laws of
the State of Ohio, 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 25, 1999 (the "Indenture"), providing for
the issuance from time to time of the Company's unsecured debentures, securities
or other evidences of indebtedness (herein and therein called the "Securities"),
to be issued in one or more series as in the Indenture provided.
Section 201 of the Indenture permits the form of the
Securities of any series to be established pursuant to an indenture supplemental
to the Indenture.
Section 301 of the Indenture permits the terms of the
Securities of any series to be established in an indenture supplemental to the
Indenture.
Section 901(7) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture for the purpose of establishing the
form or terms of Securities of any series as permitted by Sections 201 and 301
of the Indenture.
Section 901(9) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture to make any other provisions with
respect to matters or questions arising under the Indenture, provided that such
action shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
Each of the Guarantors has duly authorized the issuance of a
guarantee of the Securities, as set forth herein, and to provide therefor, each
of the Guarantors has duly authorized the execution and delivery of this First
Supplemental Indenture.
The Company and the Guarantors, pursuant to the foregoing
authority, propose in and by this First Supplemental Indenture to establish the
terms and form of the Securities of a new series and to amend and supplement the
Indenture in certain respects with respect to the Securities of such series.
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All things necessary to make this First Supplemental Indenture
a valid agreement of the Company and the Guarantors, and a valid amendment of
and supplement to the Indenture, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of the series to be
created hereby, as follows:
ARTICLE ONE
DEFINITIONS
Section 101. DEFINITIONS.
(a) For all purposes of this First 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 First Supplemental Indenture
and, where so specified, to the Articles and Sections of the
Indenture as supplemented by this First Supplemental
Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto",
"hereunder" and "herewith" refer to this First Supplemental
Indenture.
(b) For all purposes of the Indenture and this First
Supplemental Indenture, with respect to the Securities of the series created
hereby, except as otherwise expressly provided or unless the context otherwise
requires:
"Adjusted Treasury Rate" means, with respect to any
Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
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"Applicable Procedures" means, with respect to any
transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the
Depositary for such Security, Euroclear and Cedel, in each
case to the extent applicable to such transaction and as in
effect at the time of such transfer or transaction.
"Attributable Debt" means, in connection with a Sale
and Lease-Back Transaction, as of any particular time, the
aggregate of present values (discounted at a rate per annum
equal to the interest rate borne by the Securities of the
series created by this First Supplemental Indenture) of the
obligations of the Company or any Restricted Subsidiary for
net rental payments during the remaining primary term of the
applicable lease, calculated in accordance with generally
accepted accounting principles. The term "net rental payments"
under any lease for any period shall mean the sum of the
rental and other payments required to be paid in such period
by the lessee thereunder, not including, however, any amounts
required to be paid by such lessee (whether or not designated
as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water
rates, operating and labor costs or similar charges required
to be paid by such lessee thereunder or any amounts required
to be paid by such lessee thereunder contingent upon the
amount of sales, maintenance and repairs, reconstruction,
insurance, taxes, assessments, water rates or similar charges.
"Book-Entry Security" means any Global Securities
bearing the legend specified in Section 202 evidencing all or
part of a series of Securities, authenticated and delivered to
the Depositary for such series or its nominee, and registered
in the name of such Depositary or nominee.
"Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in New York City
or Cincinnati, Ohio are authorized or obligated by law or
executive order to close.
"Capital Lease" means any lease of property which, in
accordance with generally accepted accounting principles,
should be capitalized on the lessee's balance sheet or for
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which the amount of the asset and liability thereunder as if
so capitalized should be disclosed in a note to such balance
sheet; and "Capitalized Lease Obligation" means the amount of
the liability which should be so capitalized or disclosed.
"Cedel" means CEDEL, S.A. (or any successor
securities clearing agency).
"Commission" means the United States Securities and
Exchange Commission.
"Comparable Treasury Issue" means the United States
Treasury security selected by a Quotation Agent as having a
maturity comparable to the remaining term of the Securities to
be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to
any Redemption Date, (i) the average of the Reference Treasury
Dealer Quotations, after excluding the highest and lowest such
Reference Treasury Dealer Quotations for such Redemption Date,
or (ii) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such
Quotations.
"Consolidated Net Tangible Assets" means, for the
Company and its Subsidiaries on a consolidated basis
determined in accordance with generally accepted accounting
principles, the aggregate amounts of assets (less depreciation
and valuation reserves and other reserves and items deductible
from gross book value of specific asset accounts under
generally accepted accounting principles) which under
generally accepted accounting principles would be included on
a balance sheet after deducting therefrom (a) all liability
items except deferred income taxes, commercial paper,
short-term bank Indebtedness, Funded Indebtedness, other
long-term liabilities and shareholders' equity and (b) all
goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which in each
case would be so included on such balance sheet.
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"Credit Facility" means any credit agreement, loan
agreement or credit facility, whether syndicated or not,
involving the extension of credit by banks or other credit
institutions, entered into by the Company or Fred Meyer, Inc.
and outstanding on the date of this First Supplemental
Indenture, and any refinancing or other restructuring of such
agreement or facility.
"Depositary" means, with respect to the Securities
issued in the form of one or more Book-Entry Securities, The
Depository Trust Company ("DTC"), its nominees and successors,
or another Person designated as Depositary by the Company,
which must be a clearing agency registered under the Exchange
Act.
"Euroclear" means the Euroclear Clearance System (or
any successor securities clearing agency).
"Exchange Act" means the Securities Exchange Act of
1934 or any successor statute, and the rules and regulations
promulgated by the Commission thereunder.
"Exchange Offer" means the exchange offer by the
Company of Series B Securities for Series A Securities to be
effected pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the
registration statement under the Securities Act contemplated
by the Registration Rights Agreement.
"Funded Indebtedness" means any Indebtedness maturing
by its terms more than one year from the date of the
determination thereof, including (i) any Indebtedness having a
maturity of 12 months or less but by its terms renewable or
extendible at the option of the obligor to a date later than
12 months from the date of the determination thereof and (ii)
rental obligations payable more than 12 months from the date
of determination thereof under Capital Leases (such rental
obligations to be included as Funded Indebtedness at the
amount so capitalized at the date of such computation and to
be included for the purposes of the definition of Consolidated
Net Tangible Assets both as an asset and as Funded
Indebtedness at the amount so capitalized).
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"Global Securities" means the Rule 144A Global
Securities, the Regulation S Global Securities and the Series
B Global Securities to be issued as Book-Entry Securities
issued to the Depositary in accordance with Section 205
hereof.
"Holder" means any holder of any Security pursuant
to, and in accordance with, the terms of the Indenture
"Initial Purchaser" means each of Goldman, Sachs &
Co., Banc One Capital Markets, Inc., Banc of America
Securities LLC, Chase Securities Inc.
and Solomon Smith Barney Inc.
"Initial Securities" has the meaning stated in
Section 401 hereof.
"Non-Restricted Subsidiary" means any Subsidiary that
the Company's Board of Directors has in good faith declared
pursuant to a written resolution not to be of material
importance, either singly or together with all other
Non-Restricted Subsidiaries, to the business of the Company
and its consolidated Subsidiaries taken as a whole.
"Non-U.S. Person" means a Person who is not a "U.S.
Person" as defined in Regulation S under the Securities Act.
"Obligations" has the meaning stated in Section 601
hereof.
"Operating Assets" means all merchandise inventories,
furniture, fixtures and equipment (including all
transportation and warehousing equipment but excluding office
equipment and data processing equipment) owned or leased
pursuant to Capital Leases by the Company or a Restricted
Subsidiary.
"Operating Property" means all real property and
improvements thereon owned or leased pursuant to Capital
Leases by the Company or a Restricted Subsidiary and
constituting, without limitation, any store, warehouse,
service center or distribution center wherever located,
provided that such term shall not include any store,
warehouse, service center or distribution center which the
Company's Board of Directors declares by written resolution
not to be of material
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importance to the business of the Company and its Restricted
Subsidiaries.
"Private Placement Legend" has the meaning stated in
Section 202 hereof.
"Prospectus" means the prospectus included in a
Registration Statement, including any preliminary prospectus,
and any such prospectus as amended or supplemented by any
prospectus supplement, including any such prospectus
supplement with respect to the terms of the offering of any
portion of the Series A Securities covered by a Shelf
Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective
amendments, and in each case including all material
incorporated by reference therein.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means (i) Goldman, Sachs
& Co. and its successors; provided, however, that if the
foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury
Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any Redemption
Date, the average, as determined by the Company, of the bid
and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted
in writing to the Trustee by such Reference Treasury Dealer at
5:00 p.m. on the third Business Day preceding such Redemption
Date.
"Registration Rights Agreement" means the Exchange
and Registration Rights Agreement, dated as of June 25, 1999,
by and among the Company, the Guarantors and the Initial
Purchasers, as such agreement may be amended, modified or
supplemented from time to time.
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"Registration Statement" means any registration
statement of the Company and the Guarantors which covers any
of the Series A Securities (and related guarantees) or Series
B Securities (and related guarantees) pursuant to the
provisions of the Registration Rights Agreement, and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regulation S" means Regulation S promulgated under
the Securities Act or any successor rule or regulation
substantially to the same effect.
"Regulation S Global Security" means one or more
permanent Global Securities in registered form representing
the aggregate principal amount of Securities sold in reliance
on Regulation S under the Securities Act.
"Restricted Period" has the meaning stated in Section
201 hereof.
"Restricted Subsidiaries" means all Subsidiaries
other than Non-Restricted Subsidiaries.
"Rule 144" means Rule 144 promulgated under the
Securities Act, any successor rule or regulation to
substantially the same effect or any additional rule or
regulation under the Securities Act that permits transfers of
restricted securities without registration such that the
transferee thereof holds securities that are freely tradeable
under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the
Securities Act or any successor rule or regulation to
substantially the same effect.
"Rule 144A Global Securities" means one or more
permanent Global Securities in registered form representing
the aggregate principal amount of Securities sold in reliance
on Rule 144A under the Securities Act.
"Sale and Lease-Back Transaction" has the meaning
specified in Section 1010.
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"Securities" has the meaning stated in Section 401
hereof.
"Securities Act" means the United States Securities
Act of 1933, as amended.
"Series A Security" has the meaning stated in Section
401 hereof.
"Series B Security" has the meaning stated in Section
401 hereof.
"Series B Global Securities" means one or more
permanent Global Securities in registered form representing
the aggregate principal amount of Series B Securities
exchanged for Series A Securities pursuant to the Exchange
Offer.
"Shelf Registration Statement" means a "shelf"
registration statement of the Company and the Guarantors
pursuant to the Registration Rights Agreement, which covers
all of the Registrable Securities (as defined in the
Registration Rights Agreement) on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that
may be adopted by the Commission, and all amendments and
supplements to such registration statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Subsidiary" means (i) any corporation or other
entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at
the time directly or indirectly owned by the Company and/or
one or more Subsidiaries or (ii) any partnership of which more
than 50% of the partnership interest is owned by the Company
or any Subsidiary.
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ARTICLE TWO
SECURITY FORMS
Section 201. FORM OF SECURITIES OF THIS SERIES.
The Securities of this series shall be in the form set forth
in this Article. Initial Securities offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more Rule 144A Global
Securities, substantially in the form set forth in Section 202, deposited upon
issuance with the Trustee, as custodian for the Depositary, registered in the
name of the Depositary or its nominee, in each case for credit to an account of
a direct or indirect participant of the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Rule 144A Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation
S shall be initially issued in the form of one or more Regulation S Global
Securities, substantially in the form set forth in Section 202, deposited upon
issuance with the Trustee, as custodian for the Depositary, registered in the
name of the Depositary or its nominee, in each case for credit by the Depositary
to an account of a direct or indirect participant of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided; provided, however, that upon such deposit through and including the
40th day after the later of the commencement of the offering of the Securities
and the original issue date of the Securities (such period through and including
such 40th day, the "Restricted Period"), all such Securities shall be credited
to or through accounts maintained at the Depositary by or on behalf of Euroclear
or Cedel unless exchanged for interests in the Rule 144A Global Securities in
accordance with the transfer and certification requirements described below. The
aggregate principal amount of the Regulation S Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Series B Securities exchanged for Series A Securities shall be
issued initially in the form of one or more Series B Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance with
the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or its nominee, in each case for credit to an account of a direct or
indirect participant of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Series B Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
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Section 202. FORM OF FACE OF SECURITY.
(a) The form of the face of any Series A Securities
authenticated and delivered hereunder shall be substantially as follows:
Unless and until (i) an Initial Security is sold under an
effective Registration Statement or (ii) an Initial Security is exchanged for a
Series B Security in connection with an effective Registration Statement, in
each case pursuant to the Registration Rights Agreement, then such Initial
Security which is a Rule 144A Global Security and such Initial Security which is
a Regulation S Global Security shall each bear the respective legend set forth
below (a "Private Placement Legend") on the face thereof:
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[Legend if Rule 144A Global Security]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT
OF FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES.
[Legend if Regulation S Global Security]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S.
PERSON, UNLESS THE NOTES ARE REGISTERED UNDER THE SECURITIES
ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT IS AVAILABLE.
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[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE KROGER CO. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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THE KROGER CO.
7.25% Senior Notes due 2009, Series A
CUSIP No. ____________
No. ......... $ ........
The Kroger Co., a corporation duly organized and existing under the
laws of the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .............................., or
registered assigns, the principal sum of .....................................
Dollars on June 1, 2009, and to pay interest thereon from June 25, 1999 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on June 1 and December 1 in each year, commencing
December 1, 1999, at the rate of interest of 7.25% per annum, subject to
adjustment as described in the next paragraph until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the May 15 or November 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
The Holder of this Series A Security is entitled to the benefits of the
Registration Rights Agreement among the Company, the Guarantors and the Initial
Purchasers, dated June 25, 1999, pursuant to which, subject to the terms and
conditions thereof, the Company and the Guarantors are obligated to consummate
the Exchange Offer pursuant to which the Holder of this Security (and the
related Guarantees) shall have the right to exchange this Security (and the
related Guarantees) for 7.25% Senior Notes due 2009, Series B and related
guarantees (herein called the "Series B Securities") in like principal amount as
provided therein. In addition, the Company and the Guarantors have agreed to use
their reasonable efforts to register the Securities for resale under the
Securities Act through a Shelf Registration Statement in the event that the
Exchange Offer is not consummated within 225 calendar days after the original
issue of
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the Securities or under certain other circumstances. The Series A Securities and
the Series B Securities are together (including related Guarantees) referred to
as the "Securities." The Series A Securities rank pari passu in right of payment
with the Series B Securities.
In the event that (a) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 90th calendar day following the
date of original issue of the Series A Securities, (b) the Shelf Registration
Statement is not filed with the Commission on or prior to the date is was
required to be filed in accordance with the terms of the Registration Rights
Agreement, (c) the Exchange Offer Registration Statement is not declared
effective within 180 days following the date of the original issue of the Series
A Securities, (d) a Shelf Registration Statement required to be filed is not
declared effective on or prior to 120 days after it was filed, (e) the Exchange
Offer is not consummated on or prior to the 225th calendar day following the
date of original issue of the Series A Securities, or (f) the Exchange Offer
Registration Statement or the Shelf Registration Statement is filed and declared
effective but shall thereafter either be withdrawn or become subject to an
effective stop order suspending its effectiveness (except as specifically
permitted in the Registration Rights Agreement) without being succeeded
immediately by an additional registration statement which becomes effective
(each such event referred to in clauses (a) through (f) above, a "Registration
Default"), the interest rate borne by the Series A Securities shall be increased
by one-quarter of one percent per annum upon the occurrence of any Registration
Default, which rate (as increased as aforesaid) will increase by an additional
one-quarter of one percent each 90-day period that such additional interest
continues to accrue under any such circumstance, with an aggregate maximum
increase in the interest rate equal to one percent (1%) per annum. Immediately
following the cure of a Registration Default the accrual of additional interest
with respect to that particular Registration Default will cease.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Cincinnati, Ohio, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
In the case where any Interest Payment Date or the maturity date of
this Security does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same form and effect as if made on
such Interest Payment Date or the maturity date of this Security.
-15-
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Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
THE KROGER CO.
By.................................
Attest:
............................................
-16-
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(b) The form of the face of any Series B Securities
authenticated and delivered hereunder shall be substantially as follows:
[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE KROGER CO. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
-17-
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THE KROGER CO.
7.25% Senior Notes due 2009, Series B
CUSIP No. ______________
No. ......... $ ........
The Kroger Co., a corporation duly organized and existing under the
laws of the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .............................., or
registered assigns, the principal sum of .....................................
Dollars on June 1, 2009, and to pay interest thereon from June 25, 1999 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on June 1 and December 1 in each year, commencing
December 1, 1999, at the rate of interest of 7.25% per annum until the principal
hereof is paid or made available for payment, provided that to the extent
interest has not been paid or duly provided for with respect to the Series A
Security exchanged for this Series B Security, interest on this Series B
Security shall accrue from the most recent Interest Payment Date to which
interest on the Series A Security which was exchanged for this Series B Security
has been paid or duly provided for. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the May 15 or November 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
This Series B Security was issued pursuant to the Exchange Offer
pursuant to which the 7.25% Senior Notes due 2009, Series A, and related
Guarantees (herein called the "Series A Securities") in like principal amount
were exchanged for the Series B Securities and related Guarantees. The Series B
Securities rank pari passu in right of payment with the Series A Securities.
For any period in which the Series A Security exchanged for this Series
B Security was outstanding, in the event that (a) the Exchange Offer
Registration Statement
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shall not have been filed with the Commission on or prior to the 90th calendar
day following the date of original issue of the Series A Securities, (b) the
Shelf Registration Statement shall not have been filed with the Commission on or
prior to the date is was required to be filed in accordance with the terms of
the Registration Rights Agreement, (c) the Exchange Offer Registration Statement
shall not have been declared effective within 180 days following the date of the
original issue of the Series A Securities, (d) a Shelf Registration Statement
required to be filed shall not have been declared effective on or prior to 120
days after it was filed, (e) the Exchange Offer shall not have been consummated
on or prior to the 225th calendar day following the date of original issue of
the Series A Securities, or (f) the Exchange Offer Registration Statement or the
Shelf Registration Statement shall have been filed and declared effective but
shall thereafter be withdrawn or become subject to an effective stop order
suspending its effectiveness (except as specifically permitted in the
Registration Rights Agreement) without being succeeded immediately by an
additional registration statement which becomes effective (each such event
referred to in clauses (a) through (f) above, a "Registration Default"), the
interest rate borne by the Series A Securities shall have increased by
one-quarter of one percent per annum upon the occurrence of any Registration
Default, which rate (as increased as aforesaid) shall have increased by an
additional one-quarter of one percent each 90-day period that such additional
interest continued to accrue under any such circumstance, with an aggregate
maximum increase in the interest rate equal to one percent (1%) per annum.
Immediately following the cure of a Registration Default the accrual of
additional interest with respect to that particular Registration Default shall
have ceased; provided, however, that, if after any such reduction in interest
rate, a different event specified in clause (a) through (e) shall have occurred,
the interest rate again shall have increased pursuant to the foregoing
provisions. To the extent that interest at such increased rate shall not have
been paid or duly provided for with respect to the Series A Security exchanged
for this Series B Security, interest on this Series B Security shall accrue at
such increased rate, from the most recent Interest Payment Date to which
interest at such increased rate on the Series A Security exchanged for this
Series B Security has been paid or duly provided for, to the date on which the
particular Registration Default shall have been cured.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in Cincinnati, Ohio, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
In the case where any Interest Payment Date or the maturity
date of this Security does not fall on a Business Day, payment of interest or
principal otherwise payable on such day need not be made on such day, but may be
made on the next
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succeeding Business Day with the same form and effect as if made on such
Interest Payment Date or the maturity date of this Security.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
THE KROGER CO.
By..................................
Attest:
....................................
Section 203. FORM OF REVERSE OF SECURITY.
(a) The form of the reverse of the Series A Securities shall
be substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company (herein called the "Securities") issued and to be issued under an
Indenture dated as of June 25, 1999 between the Company and Firstar Bank,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture dated as of June 25, 1999 (as so supplemented,
herein called the "Indenture"), between the Company, the Guarantors named
therein and the Trustee, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Guarantors named therein, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $350,000,000.
-20-
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The Securities of this series will be redeemable, in whole or
in part, at the option of the Company at any time at a redemption price equal to
the greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by a Quotation Agent, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the date of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 10 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each holder of the
Securities to be redeemed. Unless the Company defaults in payment of the
redemption price, on and after the Redemption Date, interest will cease to
accrue on the Securities or portions thereof called for redemption.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the
principal of all Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of 50% in aggregate principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25%
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in principal amount of the Outstanding Securities shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from the Holders
of a majority in principal amount of the Outstanding Securities a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; PROVIDED, HOWEVER, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of (and premium, if any) or any interest on this Security on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of like tenor, of a different authorized denomination, as requested by the
Holder surrendering the same.
Except where otherwise specifically provided in the Indenture,
no service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
-22-
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(b) The form of the reverse of the Series B Securities shall
be substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company (herein called the "Securities") issued and to be issued under an
Indenture dated as of June 25, 1999 between the Company and Firstar Bank,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), as supplemented by the
First Supplemental Indenture dated as of June 25, 1999 (as so supplemented,
herein called the "Indenture"), between the Company, the Guarantors named
therein and the Trustee, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $350,000,000.
The Securities of this series will be redeemable, in whole or
in part, at the option of the Company at any time at a redemption price equal to
the greater of (i) 100% of the principal amount of such Securities or (ii) as
determined by a Quotation Agent, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any portion
of such payments of interest accrued as of the date of redemption) discounted to
the date of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate plus 10 basis
points, plus, in each case, accrued interest thereon to the date of redemption.
Notice of any redemption will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each holder of the
Securities to be redeemed. Unless the Company defaults in payment of the
redemption price, on and after the Redemption Date, interest will cease to
accrue on the Securities or portions thereof called for redemption.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the
principal of all Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of
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50% in aggregate principal amount of the Securities at the time Outstanding of
each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all the
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities a direction inconsistent with
such request and shall have failed to institute such proceeding within 60 days;
PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like
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aggregate principal amount of Securities of like tenor, of a different
authorized denomination, as requested by the Holder surrendering the same.
Except where otherwise specifically provided in the Indenture,
no service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. FORM OF GUARANTEE.
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEE
For value received, each of the undersigned hereby absolutely, fully
and unconditionally and irrevocably guarantees, jointly and severally with each
other Guarantor, to the holder of this Security the payment of principal of,
premium, if any, and interest on this Security upon which this Guarantee is
endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of this Security, if lawful, and the payment or performance of
all other obligations of the Company under the Indenture or the Securities, to
the holder of this Security and the Trustee, all in accordance with and subject
to the terms and limitations of this Security and Article Six of the First
Supplemental Indenture to the Indenture. This Guarantee will not become
effective until the Trustee duly executes the certificate of authentication on
this Security. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflict of law
principles thereof.
Dated:
-25-
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Attest* : The Guarantors listed on Schedule I hereto
By:
- -------------------------- ------------------------------------------
Name:
Title:
Attest: HENPIL, INC., as Guarantor of the Securities
WYDIV, INC., as Guarantor of the Securities
By:
- -------------------------- ------------------------------------------
Name:
Title:
Attest: VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By:
- -------------------------- ------------------------------------------
Assistant Secretary Name:
Title:
Attest: KROGER DEDICATED LOGISTICS CO.,
as Guarantor of the Securities
By:
- -------------------------- ------------------------------------------
Assistant Secretary Name:
Title:
- --------------
* Signing as duly authorized officer for each such Guarantor.
-26-
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Attest: RICHIE'S, INC.,
as Guarantor of the Securities
By:
- -------------------------- ------------------------------------------
Name:
Title:
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SCHEDULE I
Guarantors
----------
Name of 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
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Name of 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
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
Section 205. GLOBAL SECURITIES.
(a) Each Global Security initially shall (i) be registered in
the name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be deposited with, or on behalf of, the Depositary or with the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
Section 202.
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Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Security, and the Depositary may be treated by
the Company, the Guarantors, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantors, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a holder of any Security.
(b) [Intentionally Omitted.]
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Section 205 and the Indenture. If any Global
Security is to be exchanged for other Securities or canceled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancellation as provided in this Section 205 and
the Indenture or (ii) the principal amount thereof shall be reduced or increased
by an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Trustee, as Security Registrar, whereupon
the Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding adjustment
to its records. Upon any such surrender or adjustment of a Global Security, the
Trustee shall, subject to this Section 205 and the Indenture, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Section 205 and the Indenture if such order, direction or
request is given or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such
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Security is registered in the name of a Person other than the Depositary for
such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
ARTICLE THREE
TRANSFER AND EXCHANGE
Section 301. TRANSFER AND EXCHANGE.
(a) CERTAIN TRANSFERS AND EXCHANGES. Transfers and exchanges
of Securities and beneficial interests in a Global Security of the kinds
specified in this Section 301 shall be made only in accordance with this Section
301.
(i) RULE 144A GLOBAL SECURITY TO REGULATION S GLOBAL
SECURITY. If the owner of a beneficial interest in the Rule
144A Global Security wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the
form of a beneficial interest in the Regulation S Global
Security, such transfer may be effected only in accordance
with the provisions of this paragraph and paragraph (iv) below
and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the
Depositary or its authorized representative directing that a
beneficial interest in the Regulation S Global Security in a
specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the Rule
144A Global Security in an equal principal amount be debited
from another specified Agent Member's account and (b) a
Regulation S Certificate in the form of Exhibit A hereto,
satisfactory to the Trustee and duly executed by the owner of
such beneficial interest in the Rule 144A Global Security or
his attorney duly authorized in writing, then the Trustee, as
Security Registrar but subject to paragraph (iv) below, shall
reduce the principal amount of the Rule 144A Global Security
and increase the principal amount of the Regulation S Global
Security by such specified principal amount as provided in
Section 205(c).
(ii) REGULATION S GLOBAL SECURITY TO RULE 144A GLOBAL
SECURITY. If the owner of a beneficial interest in the
Regulation S Global Security
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wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial
interest in the Rule 144A Global Security, such transfer may
be effected only in accordance with this paragraph (ii) and
subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the
Depositary or its authorized representative directing that a
beneficial interest in the Rule 144A Global Security in a
specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be
debited from another specified Agent Member's account and (b)
if such transfer is to occur during the Restricted Period, a
Restricted Securities Certificate in the form of Exhibit B
hereto, satisfactory to the Trustee and duly executed by the
owner of such beneficial interest in the Regulation S Global
Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal
amount of the Regulation S Global Security and increase the
principal amount of the Rule 144A Global Security by such
specified principal amount as provided in Section 205(c).
(iii) EXCHANGES BETWEEN GLOBAL SECURITY AND
NON-GLOBAL SECURITY. A beneficial interest in a Global
Security may be exchanged for a Security that is not a Global
Security as provided in Section 301(b), PROVIDED that, if such
interest is a beneficial interest in the Rule 144A Global
Security, or if such interest is a beneficial interest in the
Regulation S Global Security and such exchange is to occur
during the Restricted Period, then such interest shall bear
the appropriate Private Placement Legend (subject in each case
to Section 301(b). Securities which are not in global form may
not be exchanged for beneficial interests in any global note
unless the transferor first delivers to the trustee a written
certificate to the effect that the transfer will comply with
the appropriate transfer restrictions applicable to those
securities.
(iv) REGULATION S GLOBAL SECURITY TO BE HELD THROUGH
EUROCLEAR OR CEDEL DURING RESTRICTED PERIOD. The Company shall
use its reasonable efforts to cause the Depositary to ensure
that, until the expiration of the Restricted Period,
beneficial interests in the Regulation S Global Security may
be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting
for the account thereof), and no person shall be entitled to
effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an
account; PROVIDED that this paragraph (iv) shall not prohibit
any transfer or exchange of such an interest in accordance
with paragraph (ii) above.
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(b) PRIVATE PLACEMENT LEGENDS. Rule 144A Securities and their
Successor Securities and Regulation S Securities and their Successor Securities
shall bear a Private Placement Legend, subject to the following:
(i) subject to the following clauses of this Section
301(b), a Security or any portion thereof which is exchanged,
upon transfer or otherwise, for a Global Security or any
portion thereof shall bear the Private Placement Legend borne
by such Global Security while represented thereby;
(ii) subject to the following Clauses of this Section
301(b), a new Security which is not a Global Security and is
issued in exchange for another Security (including a Global
Security) or any portion thereof, upon transfer or otherwise,
shall bear the Private Placement Legend borne by such other
Security;
(iii) Exchange Securities, and all other Securities
sold or otherwise disposed of pursuant to an effective
registration statement under the Securities Act, together with
their respective Successor Securities, shall not bear a
Private Placement Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the
Securities Act, a new Security which does not bear a Private
Placement Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof
which bears such a legend if the Trustee has received an
Unrestricted Securities Certificate substantially in the form
of Exhibit C hereto, satisfactory to the Trustee and duly
executed by the Holder of such legended Security or his
attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate
and deliver such a new Security in exchange for or in lieu of
such other Security as provided in this Section 301 and the
Indenture;
(v) a new Security which does not bear a Private
Placement Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof
which bears such a legend if, in the Company's judgment,
placing such a legend upon such new Security is not necessary
to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the
Company, shall authenticate and deliver such a new Security as
provided in this Section 301 and the Indenture; and
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(vi) notwithstanding the foregoing provisions of this
Section 301(b), a Successor Security of a Security that does
not bear a particular form of Private Placement Legend shall
not bear such form of legend unless the Company has reasonable
cause to believe that such Successor Security is a "restricted
security" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Company, shall authenticate
and deliver a new Security bearing a Private Placement Legend
in exchange for such Successor Security as provided in this
Section 301 and the Indenture.
By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 205 or
this Section 301. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Security Registrar.
ARTICLE FOUR
THE SERIES OF SECURITIES
Section 401. TITLE AND TERMS.
There shall be a series of securities designated as the "7.25%
Senior Notes due 2009, Series A" of the Company (the "Series A Securities" or
the "Initial Securities") and a series of securities designated as the "7.25%
Senior Notes due 2009, Series B" of the Company (the "Series B Securities" and,
together with the Series A Securities, the "Securities"). The Stated Maturity of
the Securities shall be June 1, 2009, and they shall bear interest at the rate
of 7.25% per annum, subject to increase as set forth in the Registration Rights
Agreement.
Interest on the Securities of this series will be payable
semi-annually on June 1 and December 1 of each year, commencing December 1,
1999, until the principal thereof is made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the Person in whose name the Securities of this series (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
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In the case where any Interest Payment Date or the maturity
date of the Securities of this series does not fall on a Business Day, payment
of interest or principal otherwise payable on such date need not be made on such
day, but may be made on the next succeeding Business Day with the same force and
effect as if made on such Interest Payment Date or the maturity date of the
Securities of this series.
The aggregate principal amount of Securities of this series
which may be authenticated and delivered under this First Supplemental Indenture
is limited to $350,000,000, except for Securities authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of, other
Securities of this series pursuant to Section 304, 305 and 306 of the Indenture
and except for any Securities of this series which, pursuant to Section 303 of
the Indenture, are deemed never to have been authenticated and delivered under
the Indenture.
The Securities of this series will be represented by one or
more Global Securities representing the entire $350,000,000 aggregate principal
amount of the Securities of this series, and the Depositary with respect to such
Global Security or Global Securities will be The Depository Trust Company.
The Place of Payment for the principal of (and premium, if
any) and interest on the Securities of this series shall be the office or agency
of the Company in the City of Cincinnati, State of Ohio, maintained for such
purpose, which shall be the Corporate Trust Office of the Trustee and at any
other office or agency maintained by the Company for such purpose; PROVIDED,
HOWEVER, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities of this series are redeemable prior to maturity
at the option of the Company as provided in this First Supplemental Indenture.
The Securities of this series are not subject to a sinking
fund and the provisions of Section 501(3) and Article Twelve of the Indenture
shall not be applicable to the Securities of this series.
The Securities of this series are subject to defeasance at the
option of the Company as provided in this First Supplemental Indenture.
For all purposes hereunder, the Series A Securities and the
Series B Securities will be treated as one class and are together referred to as
the "Securities." The Series A Securities rank pari passu in right of payment
with the Series B Securities.
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ARTICLE FIVE
MODIFICATIONS AND ADDITIONS TO THE INDENTURE
Section 501. MODIFICATIONS TO THE CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE PROVISIONS.
With respect to the Securities of this series, Section 801 of
the Indenture shall be deleted in its entirety and the following shall be
substituted therefor:
"Section 801. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR
CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS.
The Company covenants that it will not merge with or into or
consolidate with any corporation, partnership, or other entity
or sell, lease or convey all or substantially all of its
assets to any other Person, unless (i) either the Company
shall be the continuing corporation, or the successor entity
or the Person which acquires by sale, lease or conveyance all
or substantially all the assets of the Company (if other than
the Company) shall be a corporation or partnership organized
under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume
all obligations of the Company under this Indenture and the
Securities of the series created by the First Supplemental
Indenture, including the due and punctual payment of the
principal of and interest on all the Securities of the series
created by the First Supplemental Indenture according to their
tenor, and the due and punctual performance and observance of
all of the covenants and conditions of the Indenture to be
performed or observed by the Company, by supplemental
indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such entity, and (ii) the Company,
such person or such successor entity, as the case may be,
shall not, immediately after such merger or consolidation, or
such sale, lease or conveyance, be in default in the
performance of any such covenant or condition and, immediately
after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing.
Section 802. SUCCESSOR SUBSTITUTED
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale, lease or
conveyance of all or substantially all of the assets of the
Company in accordance
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with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which
such sale, lease or conveyance is made shall succeed to, and
be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities."
Section 502. OTHER MODIFICATIONS.
With respect to the Securities of this series, the Indenture
shall be modified as follows:
(a) The eighth paragraph of Section 305 of the Indenture shall
be modified by inserting ", and a successor Depositary is not appointed by the
Company within 90 days" at the end of clause (i) in such paragraph; and
(b) Section 401 of the Indenture shall be modified by adding
to the end of such Section the following paragraph:
"For the purpose of this Section 401, trust funds may consist
of (A) money in an amount, or (B) U.S. Government Obligations
(as defined in Section 1304) which through the scheduled
payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, the principal of, premium, if
any, and each installment of interest on the Securities of
this series on the Stated Maturity of such principal or
installment of interest on the day on which such payments are
due and payable in accordance with the terms of this Indenture
and of such Securities of this series."
Section 503. ADDITIONAL COVENANTS; DEFEASANCE AND COVENANT DEFEASANCE.
(a) With respect to the Securities of this series, the
following provisions shall be added as Sections 1009 and 1010 and as Article
Thirteen (Section references contained in these additional provisions are to the
Indenture as supplemented by this First Supplemental Indenture):
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"Section 1009. LIMITATIONS ON LIENS.
After the date hereof and so long as any Securities of the
series created by the First Supplemental Indenture are
Outstanding, the Company will not issue, assume or guarantee,
and will not permit any Restricted Subsidiary to issue, assume
or guarantee, any Indebtedness which is secured by a mortgage,
pledge, security interest, lien or encumbrance of any kind
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement
to give any of the foregoing) (each being hereinafter referred
to as a "lien" or "liens") of or upon any Operating Property
or Operating Asset, whether now owned or hereafter acquired,
of the Company or any Restricted Subsidiary without
effectively providing that the Securities of the series
created by the First Supplemental Indenture (together with, if
the Company shall so determine, any other Indebtedness of the
Company ranking equally with the Securities) shall be equally
and ratably secured by a lien on such assets ranking ratably
with and equal to (or at the Company's option prior to) such
secured Indebtedness; provided that the foregoing restriction
shall not apply to:
(a) liens on any property or assets of any corporation
existing at the time such corporation becomes a Restricted
Subsidiary provided that such lien does not extend to any
other property of the Company or any of its Restricted
Subsidiaries;
(b) liens on any property or assets (including stock) existing
at the time of acquisition of such property or assets by the
Company or a Restricted Subsidiary, or liens to secure the
payment of all or any part of the purchase price of such
property or assets (including stock) upon the acquisition of
such property or assets by the Company or a Restricted
Subsidiary or to secure any indebtedness incurred, assumed or
guaranteed by the Company or a Restricted Subsidiary for the
purpose of financing all or any part of the purchase price of
such property or, in the case of real property, construction
or improvements thereon or attaching to property substituted
by the Company to obtain the release of a lien on other
property of the Company on which a lien then exists, which
indebtedness is incurred, assumed or guaranteed prior to, at
the time of, or within 18 months after such acquisition (or in
the case of real property, the completion of construction
(including any improvements on an existing asset) or
commencement of full operation at such property, whichever is
later (which in the case of a retail store is the opening of
the store for business to the public)); provided that in the
case of any such acquisition, construction or improvement, the
lien shall not apply to any other property or assets
theretofore owned by the Company or a Restricted Subsidiary;
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(c) liens on any property or assets to secure Indebtedness of
a Restricted Subsidiary to the Company or to another
Restricted Subsidiary;
(d) liens on any property or assets of a corporation existing
at the time such corporation is merged into or consolidated
with the Company or a Restricted Subsidiary or at the time of
a purchase, lease or other acquisition of the assets of a
corporation or firm as an entirety or substantially as an
entirety by the Company or a Restricted Subsidiary provided
that such lien does not extend to any other property of the
Company or any of its Restricted Subsidiaries;
(e) liens on any property or assets of the Company or a
Restricted Subsidiary in favor of the United States of America
or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States
of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any
contract or statute or to secure any Indebtedness incurred or
guaranteed for the purpose of financing all or any part of the
purchase price (or, in the case of real property, the cost of
construction) of the property or assets subject to such liens
(including, but not limited to, liens incurred in connection
with pollution control, industrial revenue or similar
financings);
(f) liens existing on properties or assets of the Company or
any Restricted Subsidiary existing on the date hereof;
provided that such liens secure only those obligations which
they secure on the date hereof or any extension, renewal or
replacement thereof;
(g) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part, of
any lien referred to in the foregoing clauses (a) through (f),
inclusive; provided that such extension, renewal or
replacement shall be limited to all or a part of the property
or assets which secured the lien so extended, renewed or
replaced (plus improvements and construction on real
property);
(h) liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehouseman's,
vendors', or other similar liens arising in the ordinary
course of business of the Company or a Restricted Subsidiary,
or governmental (federal, state or municipal) liens arising
out of contracts for the sale of products or services by the
Company or any Restricted Subsidiary, or deposits or pledges
to obtain the release of any of the foregoing liens;
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(i) pledges, liens or deposits under worker's compensation
laws or similar legislation and liens or judgments thereunder
which are not currently dischargeable, or in connection with
bids, tenders, contracts (other than for the payment of money)
or leases to which the Company or any Restricted Subsidiary is
a party, or to secure the public or statutory obligations of
the Company or any Restricted Subsidiary, or in connection
with obtaining or maintaining self-insurance or to obtain the
benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or
similar matters, or to secure surety, appeal or customs bonds
to which the Company or any Restricted Subsidiary is a party,
or in litigation or other proceedings such as, but not limited
to, interpleader proceedings, and other similar pledges, liens
or deposits made or incurred in the ordinary course of
business;
(j) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by
appropriate proceedings, including liens arising out of
judgments or awards against the Company or any Restricted
Subsidiary with respect to which the Company or such
Restricted Subsidiary is in good faith prosecuting an appeal
or proceedings for review or for which the time to make an
appeal has not yet expired; or final unappealable judgment
liens which are satisfied within 30 days of the date of
judgment; or liens incurred by the Company or any Restricted
Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the
Company or such Restricted Subsidiary is a party;
(k) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be
paid without penalty, or which are being contested in good
faith by appropriate proceedings; landlord's liens on property
held under lease; and any other liens or charges incidental to
the conduct of the business of the Company or any Restricted
Subsidiary or the ownership of the property or assets of any
of them which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and
which do not, in the opinion of the Company, materially impair
the use of such property or assets in the operation of the
business of the Company or such Restricted Subsidiary or the
value of such property or assets for the purposes of such
business; or
(l) liens not permitted by clauses (a) through (k) above if at
the time of, and after giving effect to, the creation or
assumption of any such lien, the aggregate amount of all
Indebtedness of the Company and its Restricted Subsidiaries
secured by all such liens not so permitted by clauses (a)
through (k) above together with the Attributable Debt in
respect of Sale and
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Lease-Back Transactions permitted by paragraph (a) of Section
1010 does not exceed 10% of Consolidated Net Tangible Assets.
Section 1010. LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS.
After the date hereof and so long as any Securities of the
series created by the First Supplemental Indenture are
Outstanding, the Company agrees that it will not, and will not
permit any Restricted Subsidiary to, enter into any
arrangement with any Person providing for the leasing by the
Company or a Restricted Subsidiary of any Operating Property
or Operating Asset (other than any such arrangement involving
a lease for a term, including renewal rights, for not more
than 3 years and leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), whereby such
Operating Property or Operating Asset has been or is to be
sold or transferred by the Company or any Restricted
Subsidiary to such Person (herein referred to as a "Sale and
Lease-Back Transaction"), unless:
(a) the Company or such Restricted Subsidiary would, at
the time of entering into a Sale and Lease-Back transaction,
be entitled to incur Indebtedness secured by a lien on the
Operating Property or Operating Asset to be leased in an
amount at least equal to the Attributable Debt in respect of
such Sale and Lease-Back Transaction without equally and
ratably securing the Securities of the series created by the
First Supplemental Indenture pursuant to Section 1009; or
(b) the proceeds of the sale of the Operating Property
or Operating Asset to be leased are at least equal to the fair
market value of such Operating Property or Operating Asset (as
determined by the chief financial officer or chief accounting
officer of the Company) and an amount in cash equal to the net
proceeds from the sale of the Operating Property or Operating
Asset so leased is applied, within 180 days of the effective
date of any such Sale and Lease-Back Transaction, to the
purchase or acquisition (or, in the case of Operating
Property, the construction) of Operating Property or Operating
Assets or to the retirement, repurchase, redemption or
repayment (other than at maturity or pursuant to a mandatory
sinking fund or redemption provision and other than
Indebtedness owned by the Company or any Restricted
Subsidiary) of Securities of the series created by the First
Supplemental Indenture or of Funded Indebtedness of the
Company ranking on a parity with or senior to the Securities
of the series created by the First Supplemental Indenture, or
in the case of a Sale and Lease-Back Transaction by a
Restricted Subsidiary, of Funded Indebtedness of such
Restricted Subsidiary; provided that in connection with any
such
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retirement, any related loan commitment or the like shall be
reduced in an amount equal to the principal amount so retired.
The foregoing restriction shall not apply to, in the
case of any Operating Property or Operating Asset acquired or
constructed subsequent to the date eighteen months prior to
the date of this Indenture, any Sale and Lease-Back
Transaction with respect to such Operating Asset or Operating
Property (including presently owned real property upon which
such Operating Property is to be constructed) if a binding
commitment is entered into with respect to such Sale and
Lease-Back Transaction within 18 months after the later of the
acquisition of the Operating Property or Operating Asset or
the completion of improvements or construction thereon or
commencement of full operations at such Operating Property
(which in the case of a retail store is the opening of the
store for business to the public).
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any
time, elect to have either Section 1302 or Section 1303 applied to the
Outstanding Securities of this series upon compliance with the
conditions set forth below in this Article Thirteen.
Section 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of the series created by the First Supplemental Indenture on
the date the conditions set forth below are satisfied (hereinafter,
"Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of this series and to have
satisfied all its other obligations under such Securities of this
series and this Indenture insofar as such Securities of this series are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of this
series to receive, solely from the trust fund described in Section 1304
and as more fully set forth in such Section, payments in respect of the
principal of (and
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premium, if any) and interest on such securities when such payments are
due, (B) the Company's obligations with respect to such Securities of
this series under Sections 304, 305, 306, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303.
Section 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be released from its
obligations under Section 501(4) (in respect of the covenants in
Sections 1008 through 1010), Section 801 and Sections 1008 through
1010, the Securities of this series and the Holders of Securities of
this series, on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant Defeasance"). For this purpose, such
covenant Defeasance means that the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation
set forth in any such Section, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture
and such Securities of this series shall be unaffected thereby.
Section 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of this
series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Thirteen applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities of this series, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
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Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and each
installment of interest on the Securities of this series on
the Stated Maturity of such principal or installment of
interest on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such
Securities of this series. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the
Company thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect
to any such U.S. Government Obligation or a specific payment
of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the
holder of such depository receipt, PROVIDED that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government
Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall
have occurred and be continuing on the date of such deposit
or, insofar as subsections 501(6) and (7) are concerned, at
any time during the period ending on the 121st day after the
date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such
period).
(3) Such Defeasance or covenant Defeasance shall not
cause the Trustee to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with
respect to any securities of the Company.
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(4) Such Defeasance or covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound.
(5) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to
either the Defeasance under Section 1302 or the covenant
Defeasance under Section 1303 (as the case may be) have been
complied with.
(6) In the case of an election under Section 1302,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this First Supplemental
Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of this series will not recognize
income, gain or loss for Federal income tax purposes as a
result of such Defeasance or covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such Defeasance or covenant Defeasance had not occurred."
Section 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying
trustee--collectively, for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Securities of
this series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities of this series and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of this
series, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not
be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders
of the Outstanding Securities of this series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Defeasance or covenant
Defeasance.
Section 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1302 or 1303 by reason of any order or
judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of this series
shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with
Section 1302 or 1303; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (and premium, if any) or interest on any
Security of this series following the reinstatement of its obligations,
the Company shall be subjugated to the rights of the Holders of such
Securities of this series to receive such payment from the money held
by the Trustee or the Paying Agent.
Section 504. REDEMPTION OF SECURITIES.
With respect to Securities of this series, Section 1101 of the
Indenture shall be deleted in its entirety and the following shall be
substituted therefor:
"Section 1101. OPTIONAL REDEMPTION.
The Securities will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal
to the greater of (i) 100% of the principal amount of such
Securities or (ii) as determined by a Quotation Agent, the sum
of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of
such payments of interest accrued as of the date of
redemption) discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 10
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basis points plus, in each case, accrued interest thereon to
the date of redemption."
ARTICLE SIX
GUARANTEE
Section 601. GUARANTEE.
Each Guarantor hereby jointly and severally fully and
unconditionally guarantees (each a "Guarantee") to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of the Indenture or
the Securities or the obligations of the Company or any other Guarantor to the
Holders or the Trustee hereunder or thereunder, that (a) the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, upon redemption, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest, if any, on the Securities and all other obligations of the
Company or the Guarantor to the Holders of or the Trustee under the Indenture or
the Securities hereunder (including fees, expenses or others) (collectively, the
"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 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 Obligations, for
whatever reason, each Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. An Event of Default under the
Indenture or the Securities shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities to accelerate the
Obligations of the Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Company.
Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions of the Indenture or the Securities, any release of any
other Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
Each Guarantor further agrees that, as between it, on the one
hand, and the Holders of Securities and the Trustee, on the other hand, (a) the
maturity of the Obligations may be accelerated as provided in Article Five of
the Indenture for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition
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preventing such acceleration in respect of the Obligations, and (b) in the event
of any acceleration of such Obligations as provided in Article Five of the
Indenture, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the purposes of its Guarantee.
Section 602. WAIVER OF DEMAND.
To the fullest extent permitted by applicable law, each of the
Guarantors waives presentment to, demand of payment from and protest of any of
the Obligations, and also waives notice of acceptance of its Guarantee and
notice of protest for nonpayment.
Section 603. GUARANTEE OF PAYMENT.
Each of the Guarantors further agrees that its Guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Trustee or any Holder of the
Securities to the security, if any, held for payment of the Obligations.
Section 604. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE.
Subject to Section 610 of this First Supplemental Indenture,
the obligations of each of the Guarantors hereunder shall not be subject to any
reduction, limitation, impairment or
for any reason (other than the indefeasible payment in full
in cash of the Obligations), including any claim of waiver, release, surrender,
alteration or compromise of any of the 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 Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each of the Guarantors hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Trustee or any Holder of the Securities
to assert any claim or demand or to enforce any remedy under the Indenture or
the Securities, any other guarantee or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or omission that may or might in any manner or to any extent vary the risk of
any Guarantor or that would otherwise operate as a discharge of any Guarantor as
a matter of law or equity (other than the indefeasible payment in full in cash
of all the Obligations).
Section 605. DEFENSES OF COMPANY WAIVED.
To the extent permitted by applicable law, each of the
Guarantors waives any defense based on or arising out of any defense of the
Company or any other
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Guarantor or the unenforceability of the 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 Obligations.
Each of the Guarantors waives any defense arising out of any such election even
though such election operates to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of each of the Guarantors
against the Company or any security.
Section 606. CONTINUED EFFECTIVENESS.
Subject to Section 610 of this First Supplemental Indenture,
each of the Guarantors further agrees that its Guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any 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 607. SUBROGATION.
In furtherance of the foregoing and not in limitation of any
other right of each of the Guarantors by virtue hereof, upon the failure of the
Company to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each of the
Guarantors hereby promises to and will, upon receipt of written demand by the
Trustee or any Holder of the Securities, forthwith pay, or cause to be paid, to
the Holders in cash the amount of such unpaid Obligations, and thereupon the
Holders shall, assign (except to the extent that such assignment would render a
Guarantor a "creditor" of the Company within the meaning of Section 547 of Title
11 of the United States Code as now in effect or hereafter amended or any
comparable provision of any successor statute) the amount of the Obligations
owed to it and paid by such Guarantor pursuant to this Guarantee to such
Guarantor, such assignment to be PRO RATA to the extent the Obligations in
question were discharged by such Guarantor, or make such other disposition
thereof as such Guarantor shall direct (all without recourse to the Holders, and
without any representation or warranty by the Holders). If (a) a Guarantor shall
make payment to the Holders of all or any part of the Obligations and (b) all
the Obligations and all other amounts payable under this First Supplemental
Indenture shall be indefeasibly paid in full, the Trustee will, at such
Guarantor's request, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Obligations resulting from such payment by such Guarantor.
Section 608. INFORMATION.
Each of the Guarantors assumes all responsibility for being
and keeping itself informed of the Company's financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature,
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scope and extent of the risks that each of the Guarantors assumes and incurs
hereunder, and agrees that the Trustee and the Holders of the Securities will
have no duty to advise the Guarantors of information known to it or any of them
regarding such circumstances or risks.
Section 609. SUBORDINATION.
Upon payment by any Guarantor of any sums to the Holders, as
provided above, all rights of such Guarantor against the Company, arising as a
result thereof by way of right of subrogation or otherwise, shall in all
respects be subordinated and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations to the Trustee;
PROVIDED, HOWEVER, that any right of subrogation that such Guarantor may have
pursuant to this First Supplemental Indenture is subject to Section 607 hereof.
Section 610. TERMINATION.
A Guarantor shall, upon the occurrence of either of the
following events, be automatically and unconditionally released and discharged
from all obligations under this First Supplemental Indenture and its Guarantee
without any action required on the part of the Trustee or any Holder if such
release and discharge will not result in any downgrade in the rating given to
the Securities by Moody's Investors Service and Standard and Poor's Rating
Services:
(a) upon any sale, exchange, transfer or other disposition (by
merger or otherwise) of all of the Capital Stock of a Guarantor or all, or
substantially all, of the assets of such Guarantor, which sale or other
disposition is otherwise in compliance with the terms of the Indenture;
provided, however, that such Guarantor shall not be released and discharged from
its obligations under this First Supplemental Indenture and its Guarantee if,
upon consummation of such sale, exchange, transfer or other disposition (by
merger or otherwise), such Guarantor remains or becomes a guarantor under any
Credit Facility; or
(b) at the request of the Company, at any time that none of
the Credit Facilities are guaranteed by any Subsidiary of the Company.
The Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a request of the Company accompanied by an Officers' Certificate
certifying as to the compliance with this Section. Any Guarantor not so released
will remain liable for the full amount of the principal of, premium, if any, and
interest on the Notes provided in this First Supplemental Indenture and its
Guarantee.
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Section 611. GUARANTEES OF OTHER INDEBTEDNESS.
As long as the Securities are guaranteed by the Guarantors,
the Company will cause each of its Subsidiaries that becomes a guarantor in
respect of (i) any Indebtedness of the Company which is outstanding on the date
hereof and (ii) any Indebtedness incurred by the Company after the date hereof
(other than in respect of asset-backed securities), to include in any guarantee
given by any such guarantor, provisions similar to those set forth in Section
610 hereof.
Section 612. ADDITIONAL GUARANTORS.
The Company will cause each of its Subsidiaries that becomes a
guarantor in respect of any Indebtedness of the Company following the date
hereof to execute and deliver a supplemental indenture pursuant to which it will
become a Guarantor under this First 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 613. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
by such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Title 11 of the United States Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal of
state law. To effectuate the foregoing intention, the Holders and such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under this First
Supplemental Indenture and its Guarantee shall be limited to the maximum amount
which, after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of, any other Guarantor in respect of the obligations of such
Guarantor under its Guarantee or pursuant to its contribution obligations under
this First Supplemental Indenture, will result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.
Section 614. CONTRIBUTION FROM OTHER GUARANTORS.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with generally accepted accounting principles in effect in the United States of
America as of the date hereof.
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Section 615. 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 Obligations or against the Company or any
other Person or any property of the Company or any other Person before the
Trustee, such Holder or such other Person is entitled to demand payment and
performance by any or all Guarantors of their liabilities and obligations under
their Guarantee.
Section 616. DEALING WITH THE COMPANY AND OTHERS.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may:
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the Company
or any other Person;
(b) take or abstain from taking security or collateral from
the Company or from perfecting security or collateral from the Company;
(c) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given by the
Company or any third party with respect to the 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 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 617. EXECUTION AND DELIVERY OF THE GUARANTEE.
(a) To further evidence the Guarantee set forth in this
Article Six, each Guarantor hereby agrees that a notation of such Guarantee
shall be endorsed on each Security authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an officer of each
Guarantor. The corporate seal of a Guarantor may be reproduced on the executed
Guarantee and the execution thereof may be attested
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to by any appropriate officer of the Guarantor, but neither such reproduction
nor such attestation is or shall be required.
(b) Each of the Guarantors hereby agrees that its Guarantee
set forth in this Article Six shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee.
(c) If an officer of a Guarantor whose signature is on this
First Supplemental Indenture or a Guarantee no longer holds that office at the
time the Trustee authenticates such Guarantee or at any time thereafter, such
Guarantor's Guarantee of such Security shall be valid nevertheless.
(d) The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this First Supplemental Indenture on behalf of each Guarantor.
ARTICLE SEVEN
MISCELLANEOUS
Section 701. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
First 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
First Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as
of the date of execution of this First Supplemental Indenture all of its
respective representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this First Supplemental
Indenture by the Company, the Trustee and each Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
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(f) In case any provisions in this First 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.
(g) Nothing in this First 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.
(h) 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 First
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 First
Supplemental Indenture as so modified or excluded, as the case may be.
(i) This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
(j) All amendments to the Indenture made hereby shall have
effect only with respect to the series of Securities created hereby.
(k) All provisions of this First Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this First Supplemental Indenture, shall be read,
taken and construed as one and the same instrument.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: THE KROGER CO.
/s/ Bruce M. Gack By: /s/ Paul Heldman
- -------------------------- -----------------------------------------
Assistant Secretary Name: Paul Heldman
Title: Senior Vice President
Attest*: Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
/s/ Bruce M. Gack By* : /s/ Paul Heldman
- -------------------------- -----------------------------------------
Assistant Secretary Name: Paul Heldman
Title: Vice President
Attest: VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By: /s/ Bruce M. Gack
- -------------------------- -----------------------------------------
Assistant Secretary Name: Bruce M. Gack
Title: Vice President
Attest: KROGER DEDICATED LOGISTICS CO.,
as Guarantor of the Securities
By: /s/ Paul Heldman
- -------------------------- -----------------------------------------
Assistant Secretary Name: Paul Heldman
Title: President
- -------------------
* Signing as duly authorized officer for each such Guarantor.
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Attest: RICHIE'S, INC.,
as Guarantor of the Securities
By: /s/ Keith C. Larson
- -------------------------- -----------------------------------------
Name: Keith C. Larson
Title: Vice President and Secretary
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Attest: HENPIL, INC., as Guarantor of the Securities
WYDIV, INC. , as Guarantor of the Securities
By: /s/ Steven McMillan
- -------------------------- -----------------------------------------
Name: Steve McMillan
Title: Vice President and Secretary
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Attest: FIRSTAR BANK, NATIONAL ASSOCIATION,
as Trustee
- -------------------------- By: /s/ William Sicking
Assistant Secretary ---------------------------------------
Name: William Sicking
Title: Trust Officer
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the day of June, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is __________________ of The Kroger Co., and ____________________ of
each of the Guarantors Listed on Schedule I hereto and 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.
--------------------------
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the day of June, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of Henpil, Inc. and Wydiv, Inc., corporations
described in and which executed the foregoing instrument; that he knows the
seals of said corporations; that the seals affixed to said instrument are such
corporate seals; that they were so affixed by authority of the Boards of
Directors of said corporations, and that he signed his name thereto by like
authority.
--------------------------
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STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the day of June, 1999, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is _________________ of Vine Court Assurance Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Boards of
Directors of said corporations, and that he signed his name thereto by like
authority.
--------------------------
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the day of June, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ____________ of Richie's, Inc., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Boards of Directors of said
corporations, and that he signed his name thereto by like authority.
--------------------------
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