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Exhibit 4.3.3
SIXTH SUPPLEMENTAL INDENTURE, dated as of September 22, 1999,
between 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"), between the Company,
the Guarantors and Firstar Bank, National Association, as Trustee, as
supplemented by the First Supplemental Indenture dated June 25, 1999, the Second
Supplemental Indenture dated June 25, 1999, the Third Supplemental Indenture
dated June 25, 1999, the Fourth Supplemental Indenture dated September 22, 1999,
and the Fifth Supplemental Indenture dated September 22, 1999, providing for the
issuance from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (herein and therein called the "Securities"), to be
issued in one or more series as in the Indenture provided.
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.
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 Sixth
Supplemental Indenture.
The Company and the Guarantors, pursuant to the foregoing
authority, propose in and by this Sixth 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 Sixth 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 SIXTH 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 Sixth 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 Sixth Supplemental Indenture and, where so
specified, to the Articles and Sections of the Indenture as
supplemented by this Sixth Supplemental Indenture; and
(3) The terms "hereof", "herein", "hereby", "hereto",
"hereunder" and "herewith" refer to this Sixth Supplemental
Indenture.
(b) For all purposes of the Indenture and this Sixth 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)
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equal to the Comparable Treasury Price for such Redemption Date.
"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 Sixth 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.
"Business Day" means any day other than a Saturday, a
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 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.
"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
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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.
"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 Sixth Supplemental Indenture, and any
refinancing or other restructuring of such agreement or facility.
"Funded Indebtedness" means any Indebtedness maturing by its
terms more than one year from the date as of which the
determination is made, including (i) any Indebtedness having a
maturity of 12 months or less but by its terms renewable or
extendible at the option of the borrower beyond 12 months from
such date of determination and (ii) rental obligations payable
more than 12 months from such
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date 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).
"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.
"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 importance
to the business of the Company and its Restricted Subsidiaries.
"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.
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"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.
"Restricted Subsidiaries" means all Subsidiaries other than
Non-Restricted Subsidiaries.
"Sale and Lease-Back Transaction" has the meaning specified
in Section 1010.
"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.
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.
Section 202. FORM OF FACE OF SECURITY.
[FACE OF BOND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER 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
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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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No. CUSIP: 501044BW0
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THE KROGER CO.
Puttable Reset Securities PURS(SM) due October 1, 2010
The Kroger Co., a corporation organized and existing under the
laws of the State of Ohio (hereinafter called the "Company", which term shall
include any successor entity), for value received, hereby promises to pay to
CEDE & CO. or registered assigns, the principal sum of _________Dollars on
October 1, 2010 (the "Final Maturity") at any office or agency maintained for
the purpose in the Borough of Manhattan, The City of New York, New York or
Cincinnati, Ohio, which shall initially be the corporate trust office of Firstar
Bank, National Association, the Trustee under the Indenture referred to on the
reverse hereof, located on the date hereof at 425 Walnut Street, P.O. Box 1118,
Cincinnati, Ohio 45201-1118, in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts, and to pay to the registered holder hereof, as hereinafter
provided, interest on said principal sum at the rate described below, in like
coin or currency, from and including September 22, 1999, or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, on the dates set forth below, to but excluding the date on which
the principal amount is paid or made available for payment in full. The interest
so payable on any Interest Payment Date shall, subject to certain exceptions
provided in the Indenture, be paid to the person in whose name this Bond is
registered at the close of business on the applicable Interest Payment Record
Date (as defined below). Payments of interest shall be made at any office or
agency referred to above, provided that, at the option of the Company, payments
of interest may be made by check mailed to the registered address of the persons
entitled thereto.
From and including September 22, 1999 to but excluding October 1,
2000 (the "Floating Rate Period"), interest on the principal sum of this Bond
will accrue at LIBOR (as defined below) plus 0.90% and will be reset quarterly,
as described on the reverse side hereof. On October 1, 2000 (the "Reset Date"),
the interest rate on this Bond shall be reset so as to equal a fixed rate from
and including October 1, 2000 as determined as described on the reverse hereof,
unless the Company is obligated to repurchase this Bond on such date pursuant to
the Put Option referred to on the reverse hereof. Notwithstanding the foregoing,
the reset shall be subject to the occurrence of a Market Disruption Event or a
Failed Remarketing as described on the reverse hereof.
This Bond has initially been issued in the form of a Global
Security (as defined on the reverse hereof), and the Company has initially
designated The Depository
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Trust Company ("DTC", which term shall include any successor) as the Depositary
(the "Depositary") for this Bond. For as long as this Bond or any portion hereof
is issued in such form, and notwithstanding the foregoing, all payments of
interest, principal and other amounts in respect of this Bond or such portion
(including payments pursuant to the Call Option and Put Option referred to on
the reverse hereof) shall be made to the Depositary or its nominee in accordance
with its Applicable Procedures (as defined on the reverse hereof), in the coin
or currency specified above and as further provided on the reverse hereof.
Notwithstanding the foregoing, if any payment of interest,
principal or other amount to be made in respect of this Bond (including any
payment pursuant to an exercise of the Call Option or Put Option) would
otherwise be due on a day that is not a Business Day, such payment may be made
on the next succeeding day that is a Business Day, with the same effect as if
such payment were made on the due date.
This Bond is continued on the reverse hereof and the additional
provisions there set forth shall for all purposes have the same effect as if set
forth at this place. Such provisions include, inter alia, the Call Option and
Put Option, interest rate and the definitions of certain terms used on the face
hereof.
This Bond shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture.
IN WITNESS WHEREOF, THE KROGER CO. has caused this instrument to
be duly executed under its corporate seal.
Dated:
[CORPORATE SEAL] THE KROGER CO..
By:
---------------------------------
Name:
Title:
ATTEST:
By:
-------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Attest: FIRSTAR BANK, NATIONAL ASSOCIATION
as Trustee
- ------------------------------- By:
Assistant Secretary ----------------------------------
Name:
Title:
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Section 203. FORM OF REVERSE OF SECURITY.
THE KROGER CO.
Puttable Reset Securities PURSSM due October 1, 2010
1. INDENTURE.
(a) This Bond is one of a duly authorized issue of debentures,
notes or other evidence of indebtedness of the Company (including the related
Guarantees, the "Securities") of the series hereinafter specified, all issued or
to be issued under and pursuant to an indenture dated as of June 25, 1999,
between the Company, the Guarantors and Firstar Bank, National Association, as
Trustee, as supplemented by the First Supplemental Indenture dated June 25,
1999, the Second Supplemental Indenture dated June 25, 1999, the Third
Supplemental Indenture dated June 25, 1999, the Fourth Supplemental Indenture
dated September 22, 1999, the Fifth Supplemental Indenture dated September 22,
1999, and the Sixth Supplemental Indenture dated September 22, 1999 (the
"Indenture"), duly executed and delivered by the Company to Firstar Bank,
National Association, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture reference is hereby
made for a description of the rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Securities.
(b) The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as provided
in the Indenture. This Bond is one of a series of the Securities designated as
the Puttable Reset Securities PURSSM due October 1, 2010 of the Company, limited
in aggregate principal amount to $275,000,000 (the "Bonds"). The PURS constitute
a separate series of Securities under the Indenture.
(c) The provisions of this Bond (including those relating to the
Call Option and Put Option), together with the provisions of the Indenture,
shall govern the rights, obligations, duties and immunities of the holders
hereof, the Company and the Trustee with respect to this Bond, provided that, if
any provision of this Bond necessarily conflicts with any provision of the
Indenture, the provision of this Bond shall be controlling to the fullest extent
permitted under the Indenture.
(d) Terms used and not defined herein that are defined in the
Indenture shall have the respective meanings assigned thereto in the Indenture.
Unless the context requires otherwise, terms defined herein include the plural
as well as the singular and
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vice-versa, and the words "herein" and "hereof", and words of similar import,
refer to this Bond as a whole and not to any particular paragraph or other
subdivision.
2. CALL OPTION.
(a) Goldman, Sachs & Co., which term shall include any successor
(the "Call Option Holder"), shall have the right to purchase, on the Reset Date,
all of the Bonds outstanding on the Reset Date (in whole and not in part),
including this Bond, from the registered holders thereof on the Reset Date (such
right, the "Call Option"), at a price equal to 100% of the principal amount of
the Bonds purchased (the "Face Value") and subject to the Call Option Holder
giving notice of its intention to purchase the outstanding Bonds as described
below (a "Call Notice"). Whether or not the Call Option is exercised with
respect to the Reset Date, the Company shall remain obligated to pay all accrued
and unpaid interest on this Bond, and interest that becomes payable on this Bond
on the Reset Date shall be payable to the registered holder of this Bond on the
corresponding Interest Payment Record Date, as provided herein and in the
Indenture.
(b) To exercise the Call Option, the Call Option Holder must give
a Call Notice to the registered holder of this Bond no later than the tenth
Market Day prior to the Reset Date, in the manner described in paragraph 11
below. Subject to paragraph 5(a) below, in the event a Call Notice is duly
given, the registered holder of this Bond on the Reset Date shall be obligated
to sell this Bond to the Call Option Holder, and the Call Option Holder shall be
obligated to purchase this Bond from such holder, at the Face Value on the Reset
Date. Each such sale and purchase shall be effected through the facilities of
the Depositary, with the registered holder being deemed to have automatically
tendered this Bond for sale to the Call Option Holder on the Reset Date in
accordance with the Depositary's Applicable Procedures as provided in paragraph
5 below. The registered holder's automatic tender of this Bond on the Reset Date
shall be subject to receipt of payment of the Face Value of this Bond as
provided in paragraph 5(a) below. Notwithstanding any exercise of the Call
Option with respect to this Bond, this Bond will remain outstanding until it
otherwise ceases to be outstanding pursuant to the Indenture. As used herein,
"Market Day" means a Business Day other than a day on which dealings in the U.S.
Treasury bond market are generally not being conducted.
(c) If the Call Option is exercised, this Bond shall be subject
to purchase by the Call Option Holder on the Reset Date as provided herein and
subject to paragraph 5(a) below. This will be the case for every holder (and
every beneficial holder) of the Bonds outstanding on the Reset Date, including
any holder that acquires an interest in this Bond after the Call Notice is given
or who is otherwise unaware that the Call Notice has been given.
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3. PUT OPTION.
(a) If the Call Option Holder does not exercise the Call Option,
the registered holder of this Bond on the Reset Date shall have the right to
require the Company to repurchase this Bond (in whole and not in part) from such
holder on the Reset Date (such right, the holder's "Put Option") at a price
equal to 100% of the principal amount of this Bond repurchased (the "Put
Price"), in the circumstances described in the next paragraph. In the event the
Put Option is exercised, the Put Price shall be payable by the Company to the
registered holder of this Bond on the Reset Date, whereas the accrued and unpaid
interest on this Bond that becomes payable on the Reset Date shall be payable by
the Company to the registered holder of this Bond on the corresponding Interest
Payment Record Date, as provided herein and in the Indenture. If for any reason
payment of the Put Price is not made when due on this Bond, the accrued interest
from the Reset Date to the date such payment is made would be payable by the
Company as part of the Put Price for this Bond, to the person entitled to
receive the Put Price.
(b) On the Reset Date, the registered holder of this Bond on the
Reset Date shall be deemed to have exercised its Put Option automatically,
without any action on its part, for the full principal amount of this Bond held
of record by such holder on the Reset Date unless either (x) the Call Option
Holder has duly given a Call Notice or (y) if the Call Option Holder does not
exercise the Call Option, (i) no later than 10:00 A.M. (New York City time) on
the seventh Market Day prior to the Reset Date, the registered holder of this
Bond at the time gives notice to the Trustee that such holder elects not to sell
this Bond to the Company on the Reset Date (a "Hold Notice") and (ii) such
notice is effective (an "Effective Hold Notice") under the 10% Requirement (as
defined below). A Hold Notice must be given in the manner described in paragraph
11 below. Consequently, with respect to this Bond on the Reset Date, if a Call
Notice is not duly given by the Call Option Holder and an Effective Hold Notice
is not duly given by the applicable holder as provided above, the Company shall
be obligated to repurchase this Bond from the registered holder on the Reset
Date, and the registered holder of this Bond on the Reset Date shall be
obligated to sell this Bond to the Company, at the Put Price on the Reset Date.
Any such sale and purchase shall be effected through the facilities of the
Depositary, with the registered holder of this Bond on the Reset Date being
deemed (in the absence of an Effective Hold Notice) to have automatically
tendered this Bond in whole for sale to the Company on the Reset Date, all in
accordance with the Depositary's Applicable Procedures as provided in paragraph
5 below. Notwithstanding any exercise of the Put Option with respect to this
Bond, this Bond shall remain outstanding until it otherwise ceases to be
outstanding pursuant to the Indenture.
(c) Notwithstanding the foregoing, no Hold Notice for this Bond
shall be effective unless Hold Notices are duly given with respect to at least
10% of the
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principal amount of the Bonds outstanding. The provision described in this
paragraph is called the "10% Requirement". If a Hold Notice is duly given for
this Bond but the 10% Requirement is not satisfied, the Trustee shall give
written notice of that fact (a "10% Requirement Notice") to the registered
holder of this Bond and the Company not later than the close of business on the
seventh Market Day before the Reset Date, in the manner described in paragraph
11 below.
(d) Notwithstanding the foregoing, the Put Option shall be deemed
to be automatically exercised if the Call Option Holder exercises the Call
Option but either (i) a Market Disruption Event or Failed Remarketing occurs, as
provided in paragraph 4 below, or (ii) the Call Option Holder fails to pay the
Face Value on the Reset Date, as provided in paragraph 5(a) below.
4. INTEREST RATE.
During the Floating Rate Period, the Company shall pay interest
quarterly in arrears on December 22, 1999, March 22, 2000, June 22, 2000 and
October 1, 2000 (each, an "Interest Payment Date"), to the person in whose name
this Bond is registered at the close of business on the fifteenth calendar day
prior to the Reset Date (prior to the Reset Date, each, an "Interest Payment
Record Date"), whether or not it is a Business Day, immediately preceding the
Interest Payment Date.
During the Floating Rate Period, the interest rate on this Bond
will be calculated by the Trustee, and will be equal to LIBOR, as determined
below, plus 0.90%. The Trustee will set the interest rate on September 22, 1999
and reset the interest rate on December 22, 1999, March 22, 2000 and June 22,
2000 (each of which, including September 22, 1999, a "Floating Rate Reset
Date"). Prior to the Reset Date, interest on this Bond will be calculated on the
basis of a 360-day year for the actual number of days elapsed.
The second London Business day preceding each Floating Reset Date
is referred to as the "Floating Rate Determination Date" for that Floating Reset
Date. "London Business Day" means any day on which dealings in U.S. dollars are
transacted in the London interbank market.
The interest rate in effect on each date during the Floating Rate
Period that is not a Floating Rate Reset Date will be the interest rate
determined as of the Floating Rate Determination Date pertaining to the
immediately preceding Floating Rate Reset Date. The interest rate in effect on
each date during the Floating Rate Period that is a Floating Rate Reset Date
will be the interest rate determined as of the Floating Rate Determination Date
pertaining to that Floating Rate Reset Date.
"LIBOR" will be determined by the Trustee in accordance with the
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following provisions:
(1) Except as set forth in the next sentence, with respect to any
Floating Rate Determination Date, LIBOR will be the rate for deposits in U.S.
dollars having a maturity of three months commencing on the first day of the
applicable interest period that appears on Telerate Page 3750 as of 11:00 a.m.,
London time, on that Floating Rate Determination Date. With respect to the
Floating Rate Determination Date for June 22, 2000, LIBOR will be interpolated
on a straight-line basis from (i) LIBOR for U.S. dollars having a maturity of
three months commencing on the first day of the applicable interest period that
appears on Telerate Page 3750 as of 11:00 a.m, London time, on the Floating Rate
Determination Date for June 22, 2000 and (ii) LIBOR for U.S. dollars having a
maturity of four months commencing on the first day of the applicable interest
period that appears on Telerate Page 3750 as of 11:00 a.m, London time, on the
Floating Rate Determination Date for June 22, 2000. If no applicable rate
appears on Telerate Page 3750 on that Floating Rate Determination Date, LIBOR,
in respect of that Floating Rate Determination Date, will be determined in
accordance with the provisions described in (2) below.
(2) With respect to a Floating Rate Determination Date on which
no rate appears on Telerate Page 3750, as specified in (1) above, the Trustee
will request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Trustee, to provide it with
its offered quotation for deposits in U.S. dollars for the period of three
months, or the period of three and four months, as applicable, commencing on the
first day of the applicable interest period, to prime banks in the London
interbank market at approximately 11:00 a.m., London time, on that Floating Rate
Determination Date and in a principal amount that is representative for a single
transaction in U.S. dollars in that market at that time. If at least two
quotations are provided, then LIBOR on that Floating Rate Determination Date
will be the arithmetic mean of those quotations. If fewer than two quotations
are provided, then LIBOR on the Floating Rate Determination Date will be the
arithmetic mean (rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five one-millionths of a percentage point rounded
upwards) of the rates quoted at approximately 11:00 a.m., New York City time, on
the Floating Rate Determination Date by three major banks in New York City
selected by the Trustee for loans in U.S. dollars to leading European banks,
having a three month, or three month and four month, as applicable, maturity and
in a principal amount that is representative for a single transaction in U.S.
dollars in that market at that time. If the banks selected by the Trustee are
not providing quotations in the manner described in this sentence, LIBOR for the
interest period commencing on the Floating Rate Reset Date following the
Floating Rate Determination Date will be LIBOR in effect on that Floating Rate
Determination Date.
"Telerate Page 3750" means the display designated as "Page 3750"
on Dow
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Jones Market Service or any successor service, for the purpose of displaying the
London interbank offered rates for U.S. dollar deposits.
The interest rate on this Bond shall be reset on the Reset Date
(or, if the Reset Date is not a Market Day, on the next Market Day following the
Reset Date), unless the Company is obligated to purchase this Bond on such date
pursuant to the Put Option. After the interest rate has been reset, interest on
this Bond will accrue from the Reset Date (even if it is not a Market Day) at
the new interest rate. Notwithstanding the foregoing, reset of the interest rate
shall be subject to the occurrence of a Market Disruption Event or a Failed
Remarketing as described below.
Following the Reset Date, the Company shall pay interest
semi-annually in arrears on April 1 and October 1, to the person in whose name
this Bond is registered at the close of business on March 15 and September 15,
respectively (from and after the Reset Date, each, an "Interest Payment Record
Date"), whether or not it is a Business Day, immediately preceding the Interest
Payment Date. Following the Reset Date interest will be computed on the basis of
a 360-day year of twelve 30-day months.
Subject to its right to terminate the appointment of any such
agent, the Company shall take such action as is necessary to ensure that there
shall at all relevant times be a qualified financial institution appointed and
acting as its agent for the purpose of performing the actions contemplated
hereby to be performed by the Calculation Agent (such agent, including any
successor agent, the "Calculation Agent"). The Company has initially appointed
the Call Option Holder as Calculation Agent. If the interest rate is to be reset
on the Reset Date, the Calculation Agent shall effect the reset as set forth
below.
Between the tenth Market Day prior to the Reset Date and 11:00
A.M., New York City time, on the Calculation Date (as defined below), the
Calculation Agent shall select three leading financial institutions (one of
which will be Goldman, Sachs & Co. if Goldman, Sachs & Co. so requests) that
deal actively in the publicly-traded debt securities of the Company in New York
City and have agreed to participate as reference dealers in connection with the
rest of this Bond (the "Reference Dealers"). If the Call Option Holder has
exercised the Call Option and so requests, each Reference Dealer must include in
its participation agreement a written commitment (satisfactory to the Call
Option Holder) that, if it is selected as the Final Dealer (as defined below),
it shall purchase from the Call Option Holder on the Calculation Date for
settlement on the Reset Date and at the Final Offer Price (as defined below),
its Pro Rata (as defined below) portion of the Bonds that the Call Option Holder
purchases pursuant to the Call Option and tenders for resale to the Final Dealer
on the Reset Date. For each Reference Dealer, the Calculation Agent shall
request the name of and telephone and facsimile numbers for one individual to
represent such Reference Dealer.
17
On the sixth Market Day prior to the Reset Date (the "Calculation
Date"), the Calculation Agent shall undertake the following actions to calculate
a fixed rate at which interest will accrue on the Bonds from and including the
Reset Date to but excluding the Final Maturity (the "Reset Period"). In
paragraphs (a) and (b) below, all references to specific hours are references to
prevailing New York City time, and each notice shall be given telephonically and
shall be confirmed as soon as possible by facsimile to each of the Calculation
Agent and the Company. The times set forth below are guidelines for action, and
the Calculation Agent shall use reasonable efforts to adhere to these times.
(a) At 12:00 P.M., the Calculation Agent shall:
(i) determine (or obtain from the Call Option Holder, if the
Call Option Holder has exercised the Call Option) the approximate
ten-year U.S. Treasury bond yield at or about such time, which
shall be expressed as a percentage (the "Designated Treasury
Yield") and shall be based on the then-current, ten-year U.S.
Treasury bond (the "Designated Treasury Bond");
(ii) calculate and provide to the Reference Dealers, on a
preliminary basis, a hypothetical price at which the Bonds might
be offered for sale to a Reference Dealer on the Reset Date (the
"Offer Price"). The Offer Price shall be expressed as a
percentage of the principal amount of the Bonds and will equal
100% plus the Margin (as defined below), if the Treasury Rate
Difference (as defined below) is positive, or 100% minus the
Margin, if the Treasury Rate Difference is negative. The "Margin"
means the present value, expressed as a percentage of the
principal amount of the Bonds, of the absolute value of the
Treasury Rate Difference applied to twenty semi-annual periods
(i.e., ten years), discounted at the Designated Treasury Yield
divided by two. The "Treasury Rate Difference" means the
percentage (which may be positive or negative) equal to (x) 5.93%
(the "Initial Treasury Yield") minus (y) the Designated Treasury
Yield; and
(iii) request each Reference Dealer to provide to the
Calculation Agent, when notified of the Final Offer Price as
described in paragraph (b) below, a firm bid, expressed as a
percentage representing an interest rate spread over the
18
Designated Treasury Yield (the "Spread"), at which such Reference
Dealer would be willing to purchase on the Calculation Date for
settlement on the Reset Date, at the Final Offer Price, all of
the Bonds. Each such firm bid must be given on an "all-in" basis
and must remain open for at least 30 minutes after it is given.
(b) At 12:30 P.M., the Calculation Agent shall determine (or
obtain from the Call Option Holder, if the Call Option Holder has exercised the
Call Option) the Designated Treasury Yield on a final basis, and calculate and
provide to the Reference Dealers the Offer Price on a final basis (the "Final
Offer Price") and request each Reference Dealer to submit its bid immediately as
described in clause (a)(iii) above. If the Calculation Agent receives at least
two bids, the following shall occur:
(i) the Reference Dealer providing the bid presenting the
lowest all-in Spread (the "Final Spread") shall be the "Final
Dealer"; provided that if more than one Reference Dealer has
provided a bid representing the lowest all-in Spread (a
"Qualifying Reference Dealer"), the Calculation Agent will so
notify each Qualifying Reference Dealer and each Qualifying
Reference Dealer will have the opportunity immediately thereafter
to submit a second firm bid in the manner and on the terms
specified in clause (a)(iii) above, and the Qualifying Reference
Dealer providing the bid representing the lowest all-in Spread
will be the Final Dealer and if more than one Qualifying
Reference Dealer has provided a bid representing the lowest
all-in Spread, each of such Qualifying Reference Dealers will be
a Final Dealer (also, each referred to herein as the Final
Dealer);
(ii) if the Call Option Holder has exercised the Call
Option, the Final Dealer shall purchase from the Call Option
Holder at the Final Offer Price, for settlement on the Reset
Date, its Pro Rata portion of the Bonds that the Call Option
Holder purchases pursuant to the Call Option and tenders for
resale to the Final Dealer on the Reset Date (assuming that the
interest rate on the Bonds will be reset so as to equal the
Adjusted Rate (as defined below) during the Reset Period) (as
used herein "Pro Rata" shall mean the amount equal to the
aggregate outstanding principal amount of the Bonds that the Call
Option Holder purchases pursuant to the Call Option divided by
the number of Final Dealers); the Final Dealer
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shall not be obligated to purchase any Bonds if the Call Option
Holder has not exercised the Call Option;
(iii) the Calculation Agent shall calculate and provide to
the Company the "Adjusted Rate", which shall be the semi-annual,
bond- equivalent, fixed interest rate on the Bonds required to
produce, during the Reset Period, a semi-annual, bond-equivalent
yield on the Bonds that equals the sum of the Final Spread plus
the final Designated Treasury Yield, assuming that the Bonds are
purchased on the Reset Date at the Final Offer Price; and
(iv) the interest rate on the Bonds shall be adjusted so as
to equal the Adjusted Rate, effective from and including the
Reset Date to but excluding the Final Maturity. If the Call
Option Holder has not exercised the Call Option and an Effective
Hold Notice is given for this Bond, the Company shall promptly
give written notice of the Adjusted Rate to the registered
holder.
All determinations regarding the Designated Treasury Yield and the Designated
Treasury Bond as described in clause (a)(i) and the first sentence of paragraph
(b) above shall be made by the Call Option Holder if another party is acting as
the Calculation Agent, unless the Call Option Holder has elected not to exercise
the Call Option, in which case such determinations will be made as necessary by
the Calculation Agent.
If the Calculation Agent determines that, on the Calculation
Date, (x) a Market Disruption Event (as defined below) has occurred or is
continuing or (y) fewer than two Reference Dealers have provided firm bids in a
timely manner pursuant to participation agreements satisfactory to the Call
Option Holder substantially as described above (a "Failed Remarketing"), the
steps contemplated above shall be taken on the next Market Day on which the
Calculation Agent determines that no Market Disruption Event has occurred or is
continuing and at least two Reference Dealers have provided bids pursuant to
participation agreements satisfactory to the Call Option Holder substantially as
described above. If the Calculation Agent determines that a Market Disruption
Event and/or a Failed Remarketing has occurred or is continuing for at least
four consecutive Market Days starting on the Calculation Date, then the Call
Option Holder shall be deemed not to have exercised the Call Option and the
Company shall repurchase this Bond on the Reset Date at the Put Price from the
registered holder hereof on the Reset Date, all as if the Put Option on this
Bond had been exercised, and the Company shall pay to the Call Option Holder, an
amount equal to the Margin, if the Treasury Rate Difference is positive. For
purposes of calculating the amount that the Company will pay to the Call
20
Option Holder, the Calculation Agent will redetermine the Designated Treasury
Yield, the Treasury Rate Difference and the Margin at 3:00 p.m., New York City
time on such fourth Market Day. In these circumstances, the registered holder
may not continue to hold this Bond by giving an Effective Hold Notice. The
Calculation Agent shall notify the Company of such determination promptly after
the close of business on such fourth Market Day. The Company shall give notice
to the registered holder that this Bond will be repurchased by the Company at
the Put Price, from the registered holder on the Reset Date, such notice to be
given no later than the second Market Day prior to the Reset Date in the manner
described below.
Notwithstanding the foregoing, if at any time the Call Option
Holder is not acting as Calculation Agent, then the determinations and notice to
the Company described in the preceding paragraph shall be made and given by the
Call Option Holder, unless the Call Option Holder does not exercise the Call
Option, in which case such determinations and notice will be made and given by
the Calculation Agent.
"Market Disruption Event" means any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such exchange;
(ii) a general moratorium on commercial banking activities declared by either
federal or New York State authorities; (iii) any material adverse change in the
existing financial, political or economic conditions in the United States of
America; (iv) an outbreak or escalation of hostilities involving the United
States of America or the declaration of a national emergency or war by the
United States of America; or (v) any material disruption of the U.S. government
securities market, U.S. corporate bond market and/or U.S. federal wire system.
All determinations regarding Market Disruption Events and Failed
Remarketings, including whether or not any such event has occurred or is
continuing, shall be made by the Calculation Agent (or the Call Option Holder,
if applicable as provided above) in its sole discretion.
All percentages resulting from any calculation with respect to
the Bonds will be rounded to the nearest one hundred-thousandth of a percentage
point, and all U.S. dollar amounts will be rounded to the nearest cent (with
one-half cent being rounded upwards).
All determinations made by the Calculation Agent (or the Call
Option Holder) regarding the matters described herein shall be final, conclusive
and binding on all concerned absent manifest error. To the extent permitted by
law, no determination made by the Calculation Agent (or the Call Option Holder)
regarding the matters described herein shall give rise to any liability on the
part of the Calculation Agent, the Call Option Holder, the Trustee or the
Company.
21
5. SETTLEMENT ON EXERCISES OF CALL OPTION OR PUT OPTION.
For as long (but only for as long) as this Bond or any portion
hereof is issued in the form of a Global Security, the provisions of paragraphs
5(a) through 5(d) below, inclusive, shall apply with respect to this Bond or
such portion, as the case may be.
(a) If the Call Option is exercised, then, on the Reset Date,
all beneficial interests in this Bond held by or through Agent Members (as
defined below) shall be transferred to a Depositary account designated by the
Call Option Holder. The transfers shall be made automatically, without any
action on the part of any holder or beneficial owner, by book entry through the
facilities of the Depositary. The Call Option Holder shall be obligated to make
payment of the Face Value of this Bond to the Depositary or its nominee, for
credit to the accounts of the Agent Members by or through which beneficial
interests in this Bond are held, by the close of business on the Reset Date.
Each such transfer shall be made against the corresponding payment, and each
such payment shall be made against the corresponding transfer, in accordance
with the Depositary's Applicable Procedures. In all cases, the Company shall
remain obligated to make payment of accrued and unpaid interest on this Bond,
with interest payable on the Reset Date being payable to the registered holder
on the corresponding Interest Payment Record Date.
If the Call Option Holder fails to pay the Face Value of this
Bond on the Reset Date, the Call Option shall be deemed not to have been
exercised and the Put Option shall be deemed to have been exercised on this
Bond. In these circumstances, the registered holder on the Reset Date may not
continue to hold this Bond by giving an Effective Hold Notice, and the Company
will be obligated to pay, not later than two Business Days following the Reset
Date, the Put Price for this Bond (including accrued interest from the Reset
Date to but excluding the date payment is made), with settlement otherwise
occurring as described in paragraph 5(b).
As used herein, (i) "Agent Member" means, at any time, any person
who is a member of, or participant in, the Depositary at such time and (ii)
"Applicable Procedures" means, with respect to any payment, transfer or other
transaction to be effected with respect to a Global Security, through the
facilities of the Depositary at any time, the policies and procedures of the
Depositary applicable to such transaction, as in effect at such time.
(b) If the Put Option is exercised as to this Bond, then, on
the Reset Date, all beneficial interests in this Bond held by or through Agent
Members shall be transferred to a Depositary account designated by the Company.
The transfers shall be made automatically, without any action on the part of any
holder or beneficial owner, by
22
book entry through the facilities of the Depositary. The Company shall be
obligated to make payment of the Put Price of this Bond to the Depositary or its
nominee, for credit to the accounts of the Agent Members by or through which
beneficial interests in this Bond are held, by the close of business on the
Reset Date. Each such transfer shall be made against the corresponding payment,
and each such payment shall be made against the corresponding transfer, in
accordance with the Depositary's Applicable Procedures. If the Company fails to
pay the Put Price for this Bond on the Reset Date, accrued interest at the then
applicable rate from the Reset Date to the date the payment is made shall be
payable as part of such Put Price, in the same manner and for credit to the same
accounts as such Put Price. Whether or not purchased pursuant to the Put Option,
the Company shall remain obligated to make payment of accrued and unpaid
interest on this Bond, with interest payable on the Reset Date being payable to
the registered holder on the corresponding Interest Payment Record Date as
provided herein and in the Indenture.
(c) The transactions described in paragraphs 5(a) and 5(b)
above shall be executed on the Reset Date through the facilities of the
Depositary in accordance with its Applicable Procedures, and the accounts of the
respective Agent Members shall be debited and credited and beneficial interests
in this Bond shall be delivered by book entry as necessary to effect the
purchases and sales provided for above. Unless the Depositary's Applicable
Procedures require otherwise, such transactions shall settle, and all other
payments in respect of the Bonds shall be made, in immediately available funds
through DTC's Same-Day Funds Settlement System. Notwithstanding any provision
hereof or of the Indenture, neither the Company, the Trustee, the Call Option
Holder, nor any agent of any such person, shall have any responsibility with
respect to the Applicable Procedures or for any payments, transfers or other
transactions, or any notices or other communications, among the Depositary, its
Agent Members, any other direct or indirect participants therein and any
beneficial owners of a Global Security. For all purposes of this Bond and the
Indenture, any payment or notice to be made or given with respect to this Bond
by the Company or the Call Option Holder shall be deemed made or given when made
or given to the Depositary or its nominee, in accordance with its Applicable
Procedures.
(d) The settlement procedures described in paragraphs 5(a), 5(b)
and 5(c) above may be modified, notwithstanding any contrary terms of the Bonds
or the Indenture, to the extent required by the Depositary. In addition,
notwithstanding any contrary terms of the Bonds or the Indenture, the Company
may modify the settlement procedures described in paragraphs 5(a), 5(b) and 5(c)
above in order to facilitate the settlement process.
(e) If any Bonds are issued in non-book-entry form, the Company
shall modify the provisions of paragraphs 5(a) through 5(d) above, inclusive, so
as to ensure that the Reset Date settlements of transactions in such Bonds are
effected in as
23
comparable a manner as practical, provided that such modified procedures shall
not adversely affect the interests of the holders of the outstanding Bonds in
any material respect.
6. OPTIONAL REDEMPTION.
The Bonds will be redeemable, in whole or in part, at the option
of the Company at any time after the Reset Date at a redemption price equal to
the greater of (i) 100% of the principal amount of the Bonds 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 12.5
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 Bonds or
portions thereof called for redemption.
7. COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance at any time of
certain restrictive covenants and Events of Default with respect to this Bond
upon compliance with certain conditions set forth therein.
8. DEFAULT, WAIVER, AMENDMENT AND ENFORCEMENT.
(a) In case an Event of Default, as defined in the Indenture,
with respect to the Bonds shall have occurred and be continuing, the principal
of all outstanding Bonds may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture. The Indenture provides that in the event
of such a declaration, its consequences may be rescinded and annulled (and the
related default and its consequences may be waived) with respect to all the
Bonds by the holders of not less than a majority in aggregate principal amount
of all the Bonds then outstanding, voting as a separate class, in accordance
with the provisions of, and in the circumstances provided by and the conditions
set forth in the Indenture. It is also provided in the Indenture that the
holders of a majority in aggregate principal amount of the Bonds at the time
outstanding may, on behalf of the holders of all of the Bonds, waive any past
default under the Indenture with respect to the Bonds and its consequences,
except a default in (i) the payment of interest on or principal of any Bond
24
or (ii) in respect of certain covenants or provisions which cannot be modified
or amended without the consent of the holders of not less than a majority in
principal amount of the outstanding Bonds.
For all purposes of this Bond and the Indenture, any amount
payable by the Company in respect of the Put Price of this or any other Bond
(including any such amount payable by the Company because the Call Option Holder
fails to pay the Face Value of any Bond after its exercise of the Call Option as
to this Bond) shall be deemed to be an amount payable by the Company in respect
of the principal of such Bond at its maturity, and any default by the Company in
paying such amount shall be deemed to be a default in the payment of such
principal at maturity. No failure by the Call Option Holder to purchase any Bond
pursuant to the Call Option shall be deemed to be a default under this Bond or
the Indenture for any purpose.
(b) The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than 50% in aggregate
principal amount of the Securities of all series to be affected at the time
outstanding, evidenced as provided in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, the Indenture with respect to
each such series of Securities or modifying in any manner the rights of the
holders of each such series of Securities; provided, however, that no such
supplemental indenture, without the consent of the holder of each outstanding
security affected thereby, shall (i) change the stated maturity of the principal
of, or any installment of principal of or interest on, any Security or reduce
the principal amount thereof, or (subject to stated exceptions) reduce the rate
of interest thereon or any premium payable upon redemption, or reduce the amount
of the principal of an Original Issue Discount Security (as defined) due and
payable upon an acceleration thereof, or change the place of payment of amounts
due, or change the currency in which any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), (ii) reduce the percentage in
principal amount of securities of any series or of all series, the consent of
the holders of which is required for any such supplemental indenture affecting
this Bond or the consent of which holders is required for waivers of certain
conditions of or a default under the Indenture; or (iii) modify any of the
provisions of the section discussed in this subsection (b) or certain other
sections, except to increase the percentages discussed therein or to provide
that other provisions of the Indenture cannot be modified or waived without the
consent of the holders of each security affected thereby, subject to certain
exceptions enumerated in the Indenture.
(c) As provided in and subject to the provisions of the
Indenture, no holder of this Bond shall have the right to institute any suit,
action or proceeding with
25
respect to the Indenture, or for appointment of any receiver or trustee or for
any other remedy thereunder, unless an Event of Default with respect to the
Bonds shall have occurred and be continuing and such holder previously shall
have given the Trustee written notice of default and the continuance thereof,
the holders of not less than 25% in aggregate principal amount of the Bonds then
outstanding shall have made written request to the Trustee to institute such
suit, action or proceeding and shall have offered to the Trustee reasonable
indemnity and the Trustee, for 60 days after the receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute the same
and shall not have received any direction inconsistent therewith from the
holders of a majority in aggregate principal amount of all affected Securities
then outstanding.
(d) No reference herein to the Indenture and no provision of
this Bond or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal or Put Price
of and interest on this Bond at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
(e) Any consent, waiver or other action by the registered holder
of this Bond provided pursuant to this Bond or the Indenture (unless effectively
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders of this Bond and of any Bond issued in
exchange or substitution herefor, irrespective of whether or not any notation of
such consent or waiver is made upon this Bond or such other Bond.
9. FORM AND DENOMINATION; GLOBAL SECURITIES.
(a) The Bonds are issuable as fully registered Bonds without
coupons in the denominations of $1,000 and any whole multiple of $1,000. At the
corporate trust office of the Trustee referred to on the face hereof, and in the
manner and subject to the limitations provided herein and in the Indenture,
Bonds may be exchanged for a like aggregate principal amount of Bonds of other
authorized denominations, without payment of any charge other than a sum
sufficient to reimburse the Company for any tax or other governmental charge
incident thereto.
(b) The transfer of this Bond is registrable by the registered
holder hereof in person or by his attorney, duly authorized in writing, on the
books of the Company at the office or agency of the Company referred to on the
face hereof, subject to the terms of this Bond and the Indenture but without
payment of any charge other than a sum sufficient to reimburse the Company for
any tax or other governmental charge incident thereto, and upon surrender and
cancellation of this Bond upon any such transfer, a new Bond or Bonds of
authorized denomination or denominations, for the same aggregate principal
amount, shall be issued to the transferee in exchange herefor.
26
(c) The Bond evidenced by this certificate has been issued in
the form of a Global Security and, for as long as this Bond shall be issued in
such form, the provisions of paragraphs (c)(i) through (c)(iv), inclusive, below
shall apply to this Bond.
(i) Notwithstanding any other provision of this Bond or the
Indenture, this Global Security may not be exchanged in whole or
in part for Bonds registered, and no transfer of this Global
Security in whole or in part may be registered, in the name of
any person other than the Depositary or a nominee thereof unless
(A) the Depositary has notified the Company that (1) it is
unwilling or unable to continue as Depositary or (2) has ceased
to be a clearing agency registered under the Exchange Act or (B)
there shall have occurred and be continuing an Event of Default
with respect to the Bonds, or except as the Company may request
in order to facilitate the purchase of this Bond or any portion
hereof by the Call Option Holder pursuant to the Call Option or
by the Company pursuant to the Put Option (provided that, after
consummation of any such purchase pursuant to the Call Option,
the Bond or portion so purchased may be reissued in the form of a
Global Security in accordance with the Applicable Procedures).
(ii) Subject to paragraph (c)(i) above, any exchange of this
Global Security for other Bonds may be made in whole or in part,
and all Bonds issued in exchange for this Global Security or any
portion hereof shall be registered in such names and delivered to
such persons as the Depositary shall direct.
(iii) Every Bond authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of,
this Global Security or any portion hereof shall be issued and
authenticated in the form of, and shall be, a Global Security,
shall bear such legend as the Depositary may require and shall be
delivered to the Depositary or a nominee thereof or custodian
therefor, unless such Bond is registered in the name of a person
other than the Depositary or a nominee thereof.
(iv) As used herein, (A) "Global Security" means a Bond that
evidences all or any portion of the Bonds and is registered in
the name of the Depositary (or its nominee), (B)
27
"Depositary" means a clearing agency registered under the
Exchange Act and designated by the Company to act as Depositary
for the Bonds issued in book-entry form, and (C) "Exchange Act"
means the Securities Exchange Act of 1934 (or any successor
provision) as amended from time to time.
10. HOLDER.
The Company, the Trustee and the Call Option Holder (and any
agent of any such person) may treat the person in whose name this Bond shall be
registered as of the date of determination upon the books of the Company kept
for such purpose pursuant to the Indenture as the sole and absolute owner and
holder of this Bond (whether or not this Bond shall be overdue and
notwithstanding any notation of ownership or other writing hereon) for all
purposes, including the making of any payment in respect hereof, any exercise of
the Call Option or the Put Option and consummation of any sale and purchase
hereof pursuant thereto, the giving of any Call Notice, Hold Notice or other
notice with respect hereto, and the giving of any consent or taking of any other
action with respect hereto, and neither the Company nor the Trustee or the Call
Option Holder or any such agent shall be affected by any notice to the contrary.
11. NOTICES.
For as long as this Bond (or any portion hereof) is issued in the
form of a Global Security, each Call Notice, 10% Requirement Notice and any
other notice to be given to the holder of this Bond (or any such portion) shall
be deemed to have been duly given to such holder when given to the Depositary,
or its nominee, in accordance with its Applicable Procedures.
If at any time this Bond (or any portion hereof) is not issued in
the form of a Global Security, each Call Notice, 10% Requirement Notice and any
other notice to be given to the holder of this Bond (or any such portion) shall
be deemed to have been duly given to such holder upon the mailing of such notice
to the registered holder at such holder's address as it appears on the books of
the Company maintained for such purpose pursuant to the Indenture as of the
close of business preceding the day such notice is given.
Neither the failure to give any notice nor any defect in any
notice given to the holder of this Bond or any other Bond shall affect the
sufficiency of any notice given to another holder of any Bonds.
With respect to this Bond, whether or not issued in the form of a
Global Security, Hold Notices may be given by the registered holder hereof to
the Trustee only by facsimile transmission or by mail and must actually be
received by the Trustee at the
28
following address no later than 10:00 A.M., New York City time, on the seventh
Market Day prior to the Reset Date:
Star Bank, National Association
425 Walnut Street, P.O. Box 1118
Cincinnati, Ohio 45201-1118
Attention: Corporate Trust Administration
Facsimile no.: (513) 632-5511
Hold Notices may be given with respect to this Bond only by the registered
holder hereof.
12. NO RECOURSE.
No recourse shall be had for the payment of the principal of, or
the interest on, this Bond or of the Face Value upon any exercise of the Call
Option or of the Put Price upon any exercise of the Put Option, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation or entity, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
13. PROVISIONS RELATING TO THE CALL OPTION HOLDER.
Insofar as the provisions of this Bond purport to provide rights
to the Call Option Holder against any holder of this Bond, such rights
(including such rights to purchase this Bond pursuant to the Call Option) shall
be rights of the Company and shall be enforceable by the Company against such
holder. Each holder of this Bond shall hold this Bond (and by holding the same
shall be deemed to have agreed to do so) subject to the foregoing. Without
limiting the foregoing, the Call Option Holder may take any action under this
Bond (including giving any notice, making any determination and effecting any
settlement pursuant to paragraphs 2, 4 and 5 hereof) that the provisions of this
Bond contemplate may be taken by the Call Option Holder.
Pursuant to section 6 of the Calculation Agency Agreement, dated
as of September 22, 1999, the Call Option Holder has agreed with the Company,
for the benefit of the applicable holder of this Bond from time to time, that,
if the Call Option Holder exercises the Call Option, the Call Option Holder will
purchase this Bond from the registered holder hereof on the Reset Date, upon the
terms and subject to the conditions set forth herein. Except as may be expressly
provided in section 6 of such agreement, no holder of this Bond shall have any
right, remedy or claim against the Call Option Holder under this Bond, the
Indenture or such agreement.
29
No provision of this Bond shall be invalid or unenforceable by
reason of any reference herein to the Call Option Holder. In addition, no
provision of this paragraph shall be construed to impair or otherwise affect any
rights that the Call Option Holder may have at any time as a holder of any
Securities.
14. GOVERNING LAW.
As provided in the Indenture, this Bond shall for all purposes be
governed by and construed in accordance with the laws of the State of New York.
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 Five of the Sixth
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:
Attest:
Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
- ----------------------------- By:
Assistant Secretary/Secretary -----------------------------------------
Name:
Title:
Attest: VINE COURT ASSURANCE INCORPORATED,
30
as Guarantor of the Securities
By:
- ----------------------------- -----------------------------------------
Assistant Treasurer Name: Bruce M. Gack
Title: Vice President
RICHIE'S INC., as Guarantor of the Securities
By:
-----------------------------------------
Name: Keith C. Larson
Title: Vice President and Secretary
ROCKET NEWCO, INC.,
as Guarantor of the Securities
HENPIL, INC.,
as Guarantor of the Securities
WYDIV, INC.,
as Guarantor of the Securities
By:
-----------------------------------------
Name: Steven McMillan
Title: Vice President and Secretary
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SCHEDULE I
Guarantors
Name of Guarantor State of Organization
- ----------------- ---------------------
Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
CB&S Advertising Agency, Inc. Oregon
City Market, Inc. Colorado
Compare, Inc. Delaware
Crawford Stores, Inc. California
Dillon Companies, Inc. Kansas
Dillon Real Estate Co., Inc. Kansas
Distribution Trucking Company Oregon
Drugs Distributors, Inc. Indiana
FM Holding Corporation Delaware
FM Retail Services, Inc. Washington
FM, Inc. Utah
Food 4 Less GM, Inc. California
Food 4 Less Holdings, Inc. Delaware
Food 4 Less Merchandising, Inc. California
Food 4 Less of California, Inc. California
Food 4 Less of Southern California, Inc. Delaware
Fred Meyer, Inc. Delaware
Fred Meyer Jewelers, Inc. Delaware
Fred Meyer of Alaska, Inc. Alaska
Fred Meyer of California, Inc. California
Fred Meyer Stores, Inc. Delaware
Grand Central, Inc. Utah
Hughes Markets, Inc. California
Hughes Realty, Inc. California
Inter-American Foods, Inc. Ohio
Jackson Ice Cream Co., Inc. Kansas
JH Properties, Inc. Washington
Junior Food Stores of West Florida, Inc. Florida
J.V. Distributing, Inc. Michigan
KRGP Inc. Ohio
KRLP Inc. Ohio
Kroger Dedicated Logistics Co. Ohio
Kroger Limited Partnership I Ohio (limited partnership)
Kroger Limited Partnership II Ohio (limited partnership)
KU Acquisition Corporation Washington
32
Name of Guarantor State of Organization
- ----------------- ---------------------
Kwik Shop, Inc. Kansas
Merksamer Jewelers, Inc. California
Mini Mart, Inc. Wyoming
Peyton's-Southeastern, Inc. Tennessee
QFC Sub, Inc. Washington
Quality Food Centers, Inc. Washington
Quality Food Holdings, Inc. Delaware
Quality Food, Inc. Delaware
Quik Stop Markets, Inc. California
Ralphs Grocery Company Delaware
Roundup Co. Washington
Saint Lawrence Holding Company Delaware
Second Story, Inc. Washington
Smith's Beverage of Wyoming, Inc. Wyoming
Smith's Food & Drug Centers, Inc. Delaware
Smitty's Equipment Leasing, Inc. Delaware
Smitty's Super Valu, Inc. Delaware
Smitty's Supermarkets, Inc. Delaware
The Kroger Co. of Michigan Michigan
THGP Co., Inc. Pennsylvania
THLP Co., Inc. Pennsylvania
Topvalco, Inc. Ohio
Treasure Valley Land Company, L.C. Idaho
Turkey Hill, L.P. Pennsylvania (limited
partnership)
Wells Aircraft, Inc. Kansas
Western Property Investment Group, Inc. California
33
ARTICLE THREE
THE SERIES OF SECURITIES
Section 301. TITLE AND TERMS.
There shall be a series of Securities designated as the "Puttable
Reset Securities PURSSM due October 1, 2010" of the Company. Their Stated
Maturity shall be October 1, 2010, and they shall bear interest as set forth on
the reverse side of the Security.
Certain terms of the Securities are set forth on the face and the
reverse of the Security.
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.
ARTICLE FOUR
MODIFICATIONS AND ADDITIONS TO THE INDENTURE
Section 401. MODIFICATIONS TO THE CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE PROVISIONS.
With respect to the Securities of this series, each of Sections
801 and 802 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
34
assume all obligations of the Company under this Indenture and
the Securities of the series created by the Sixth Supplemental
Indenture, including the due and punctual payment of the
principal of and interest on all the Securities of the series
created by the Sixth 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 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 402. 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
deleted in its entirety and the following shall be substituted therefor:
"As long as the Depositary, or its nominee, is the registered
holder of a Global Security, the Depositary or such nominee, as
the case may be, will be considered the sole owner and holder of
such Global Security and the
35
Securities represented thereby for all purposes under the
Securities and the Indenture. Except in the limited circumstances
referred to above, owners of beneficial interests in a Global
Security will not be entitled to have such Global Security or any
Securities represented thereby registered in their names, will
not receive or be entitled to receive physical delivery of
certificated Securities in exchange therefor and will not be
considered to be the owners or holders of such Global Security or
any Securities represented thereby for any purpose under the
Securities or the Indenture. All payments of principal of and
interest on a Global Security will be made to the Depositary or
its nominee, as the case may be, as the holder thereof. The laws
of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in
definitive form. These laws may impair the ability to transfer
beneficial interests in a Global Security."
(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 403. ADDITIONAL COVENANTS; 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 Sixth Supplemental Indenture):
"Section 1009. LIMITATIONS ON LIENS.
After the date hereof and so long as any Securities of the series
created by the Sixth Supplemental Indenture are Outstanding, the
Company will not
36
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 Sixth 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;
(c) liens on any property or assets to secure Indebtedness of a
Restricted Subsidiary to the Company or to another Restricted
Subsidiary;
37
(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;
(i) pledges, liens or deposits under worker's compensation laws or
similar legislation and liens or judgments thereunder which are
not currently
38
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 Lease-Back
Transactions permitted by paragraph (a) of Section 1010 does
39
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 Sixth 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 Sixth 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 Sixth 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 Sixth 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 retirement, any related loan commitment
or the like shall be reduced in an amount
40
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
COVENANT DEFEASANCE
Section 1301. COMPANY'S OPTION TO EFFECT COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time,
elect to have Section 1302 applied to the Outstanding Securities
of this series upon compliance with the conditions set forth
below in this Article Thirteen.
Section 1302. 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, 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 1303. CONDITIONS TO COVENANT DEFEASANCE.
The following shall be the conditions to application of Section
1302 to the Outstanding Securities of this series:
41
(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 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
42
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 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.
(4) Such 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 covenant Defeasance
under Section 1302 have been complied with.
Section 1304. 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 1304, the
"Trustee") pursuant to Section 1303 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.
43
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 1303 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 1303
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 covenant Defeasance.
Section 1305. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 1302 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; 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 subrogated
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 404. 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 after the Reset Date at a
redemption price equal to the
44
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 12.5 basis points plus, in each case, accrued interest
thereon to the date of redemption."
ARTICLE FIVE
GUARANTEE
Section 501. 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
45
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 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 502. 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 503. 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 504. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE.
Subject to Section 510 of this Sixth 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
46
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 505. DEFENSES OF COMPANY WAIVED.
To the extent permitted by applicable law, each of the Guarantors
waives any defense based on or arising out of any defense of the Company or any
other Guarantor or the unenforceability of the 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 506. CONTINUED EFFECTIVENESS.
Subject to Section 510 of this Sixth 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 507. 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 Sixth Supplemental
Indenture shall be indefeasibly paid in full, the Trustee will, at such
47
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 508. 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, 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 509. 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 Sixth Supplemental Indenture is subject to Section 507 hereof.
Section 510. 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 Sixth 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 Sixth 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
48
(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 Sixth Supplemental Indenture and its
Guarantee.
Section 511. 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 510
hereof.
Section 512. 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 Sixth 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 513. 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 Sixth
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 Sixth Supplemental Indenture, will result in the obligations of such
Guarantor under its Guarantee not constituting such fraudulent transfer or
conveyance.
49
Section 514. CONTRIBUTION FROM OTHER GUARANTORS.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with generally accepted accounting principles in effect in the United States of
America as of the date hereof.
Section 515. 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 516. 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.
50
Section 517. EXECUTION AND DELIVERY OF THE GUARANTEE.
(a) To further evidence the Guarantee set forth in this Article
Five, 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 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 Five 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 Sixth
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 Sixth Supplemental Indenture on behalf of each Guarantor.
ARTICLE SIX
MISCELLANEOUS
Section 601. MISCELLANEOUS.
(a) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Sixth Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Sixth 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
Sixth Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall have
the respective meanings assigned to them in the Indenture.
51
(d) Each of the Company and the Trustee makes and reaffirms as of
the date of execution of this Sixth Supplemental Indenture all of its respective
representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this Sixth Supplemental
Indenture by the Company or the Trustee and each Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
(f) In case any provisions in this Sixth 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 Sixth 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 Sixth
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 Sixth
Supplemental Indenture as so modified or excluded, as the case may be.
(i) This Sixth 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 Sixth Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this Sixth 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.
52
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.
Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
By:
- ------------------------------ ----------------------------------------
Assistant Secretary/Secretary Name: Lawrence M. Turner
Title: Vice President and Treasurer
Attest: VINE COURT ASSURANCE INCORPORATED,
as Guarantor of the Securities
By:
- ------------------------------ ----------------------------------------
Assistant Treasurer Name: Bruce M. Gack
Title: Vice President
RICHIE'S INC., as Guarantor of the
Securities
By:
---------------------------------------
Name: Keith C. Larson
Title: Vice President and Secretary
53
ROCKET NEWCO, INC.,
as Guarantor of the Securities
HENPIL, INC.,
as Guarantor of the Securities
WYDIV, INC.,
as Guarantor of the Securities
By:
---------------------------------------
Name: Steven McMillan
Title: Vice President and Secretary
Attest: FIRSTAR BANK, NATIONAL ASSOCIATION,
as Trustee
Assistant Secretary By:
---------------------------------------
Name:
Title:
SCHEDULE I
Guarantors
Name of Guarantor State of Organization
- ----------------- ---------------------
Alpha Beta Company California
Bay Area Warehouse Stores, Inc. California
Bell Markets, Inc. California
Cala Co. Delaware
Cala Foods, Inc. California
CB&S Advertising Agency, Inc. Oregon
City Market, Inc. Colorado
Compare, Inc. Delaware
Crawford Stores, Inc. California
Dillon Companies, Inc. Kansas
Dillon Real Estate Co., Inc. Kansas
Distribution Trucking Company Oregon
Drugs Distributors, Inc. Indiana
FM Holding Corporation Delaware
FM Retail Services, Inc. Washington
FM, Inc. Utah
Food 4 Less GM, Inc. California
Food 4 Less Holdings, Inc. Delaware
Food 4 Less Merchandising, Inc. California
Food 4 Less of California, Inc. California
54
Name of Guarantor State of Organization
- ----------------- ---------------------
Food 4 Less of Southern California, Inc. Delaware
Fred Meyer, Inc. Delaware
Fred Meyer Jewelers, Inc. Delaware
Fred Meyer of Alaska, Inc. Alaska
Fred Meyer of California, Inc. California
Fred Meyer Stores, Inc. Delaware
Grand Central, Inc. Utah
Hughes Markets, Inc. California
Hughes Realty, Inc. California
Inter-American Foods, Inc. Ohio
Jackson Ice Cream Co., Inc. Kansas
JH Properties, Inc. Washington
Junior Food Stores of West Florida, Inc. Florida
J.V. Distributing, Inc. Michigan
KRGP Inc. Ohio
KRLP Inc. Ohio
Kroger Dedicated Logistics Co. Ohio
Kroger Limited Partnership I Ohio (limited partnership)
Kroger Limited Partnership II Ohio (limited partnership)
KU Acquisition Corporation Washington
Kwik Shop, Inc. Kansas
Merksamer Jewelers, Inc. California
Mini Mart, Inc. Wyoming
Peyton's-Southeastern, Inc. Tennessee
QFC Sub, Inc. Washington
Quality Food Centers, Inc. Washington
Quality Food Holdings, Inc. Delaware
Quality Food, Inc. Delaware
Quik Stop Markets, Inc. California
Ralphs Grocery Company Delaware
Roundup Co. Washington
Saint Lawrence Holding Company Delaware
Second Story, Inc. Washington
Smith's Beverage of Wyoming, Inc. Wyoming
Smith's Food & Drug Centers, Inc. Delaware
Smitty's Equipment Leasing, Inc. Delaware
Smitty's Super Valu, Inc. Delaware
Smitty's Supermarkets, Inc. Delaware
The Kroger Co. of Michigan Michigan
THGP Co., Inc. Pennsylvania
THLP Co., Inc. Pennsylvania
Topvalco, Inc. Ohio
55
Name of Guarantor State of Organization
- ----------------- ---------------------
Treasure Valley Land Company, L.C. Idaho
Turkey Hill, L.P. Pennsylvania (limited
partnership)
Wells Aircraft, Inc. Kansas
Western Property Investment Group, Inc. California
56
STATE OF
------------------- )
) ss.:
COUNTY OF
------------------ )
On the ___ day of September, 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, 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 Board of Directors of such
corporations, and that he signed his name thereto by like authority.
-----------------------------------------
STATE OF
------------------- )
) ss.:
COUNTY OF
------------------ )
On the ___ day of September, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of Rocket Newco, Inc., 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 Board of Directors of said corporations, and that he signed his name
thereto by like authority.
-----------------------------------------
-1-
57
Page
----
STATE OF
------------------- )
) ss.:
COUNTY OF
------------------ )
On the ___ day of September, 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 corporation, and that he signed his name thereto by like
authority.
-----------------------------------------
STATE OF
------------------- )
) ss.:
COUNTY OF
------------------ )
On the ___ day of September, 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
corporation, and that he signed his name thereto by like authority.
----------------------------------------
-2-
58
Page
----
STATE OF
------------------- )
) ss.:
COUNTY OF
------------------ )
On the ___ day of September, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is a _____________ of Firstar Bank, National Association, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------------
-3-