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THE KROGER CO.
TO
STAR BANK, NATIONAL ASSOCIATION
Trustee
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FIRST Supplemental Indenture
Dated as of May 11, 1998
TO
INDENTURE
Dated as of May 1, 1998
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7% SENIOR NOTES DUE 2018
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TABLE OF CONTENTS
ARTICLE ONE
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DEFINITIONS
Section 101. Definitions
ARTICLE TWO
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SECURITY FORMS
Section 201. Form of Securities of this Series.
Section 202. Form of Face of Security.
Section 203. Form of Reverse of Security.
ARTICLE THREE
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THE SERIES OF SECURITIES
Section 301. Title and Terms.
ARTICLE FOUR
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MODIFICATIONS AND ADDITIONS TO THE INDENTURE
Section 401. Modifications to the Consolidation, Merger,
Conveyance, Transfer or Lease Provisions.
Section 402. Other Modifications.
Section 403. Additional Covenants; Defeasance and Covenant
Defeasance.
Section 404. Redemption of Securities.
ARTICLE FIVE
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MISCELLANEOUS
Section 501. Miscellaneous.
FIRST SUPPLEMENTAL INDENTURE, dated as of May 11, 1998,
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 0000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, and Star 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 May 1, 1998 (the
"Indenture"), providing for the issuance from time to time of
the Company's unsecured debentures, notes or other evidences
of indebtedness (herein and therein called the "Securities"),
to be issued in one or more series as in the Indenture
provided.
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.
The Company, pursuant to the foregoing authority, proposes in
and by this First Supplemental Indenture to establish the
terms and form of the Securities of a new series and to amend
and supplement the Indenture in certain respects with respect
to the Securities of such series.
All things necessary to make this First Supplemental Indenture
a valid agreement of the Company, and a valid amendment of and
supplement to the Indenture, have been done.
NOW, THEREFORE, THIS FIRST Supplemental Indenture WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the
Securities of the series to be created hereby, as follows:
ARTICLE ONE
DEFINITIONS
Section 101. Definitions.
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(a) For all purposes of this First
Supplemental Indenture:
(1) Capitalized terms used herein without
definition shall have the meanings
specified in the Indenture;
(2) All references herein to Articles and
Sections, unless otherwise specified,
refer to the corresponding Articles
and Sections of this First
Supplemental Indenture and, where so
specified, to the Articles and
Sections of the Indenture as
supplemented by this First Supplemental
Indenture; and
(3) The terms "hereof", "herein",
"hereby", "hereto", "hereunder" and
"herewith" refer to this First
Supplemental Indenture.
(b) For all purposes of the Indenture and this
First Supplemental Indenture, with respect
to the Securities of the series created
hereby, except as otherwise expressly
provided or unless the context otherwise
requires:
"Adjusted Treasury Rate" means, with
respect to any Redemption Date, the rate
per annum equal to the semi-annual
equivalent yield to maturity of the
Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue
(expressed as a percentage of its principal
amount) equal to the Comparable Treasury
Price for such Redemption Date.
"Attributable Debt" means, in connection
with a Sale and Lease-Back Transaction, as
of any particular time, the aggregate of
present values (discounted at a rate per
annum equal to the interest rate borne by
the Securities of the series created by
this First Supplemental Indenture) of the
obligations of the Company or any
Restricted Subsidiary for net rental
payments during the remaining primary term
of the applicable lease, calculated in
accordance with generally accepted
accounting principles. The term "net rental
payments" under any lease for any period shall
mean the sum of the rental and other payments
required to be paid in such period by the lessee
thereunder, not including, however, any
amounts required to be paid by such lessee
(whether or not designated as rental or
additional rental) on account of
maintenance and repairs, reconstruction,
insurance, taxes, assessments, water
rates, operating and labor costs or
similar charges required to be paid by such
lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent
upon the amount of sales, maintenance and
repairs, reconstruction, insurance, taxes,
assessments, water rates or similar
charges.
"Business Day" means any day other than a
Saturday or Sunday or a day on which
banking institutions in New York City or
Cincinnati, Ohio are authorized or
obligated by law or executive order to
close.
"Capital Lease" means any lease of
property which, in accordance with
generally accepted accounting principles,
should be capitalized on the lessee's
balance sheet or for 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 and in
accordance with customary financial
practice, in pricing new issues of
corporate debt securities of comparable
maturity to the remaining term of such
Securities.
"Comparable Treasury Price" means, with
respect to any Redemption Date, (i) the
average of the Reference Treasury Dealer
Quotations, after excluding the highest
and lowest such Reference Treasury Dealer
Quotations for such Redemption Date, or
(ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer
Quotations, the average of all such
Quotations.
"Consolidated Net Tangible Assets" means,
for the Company and its Subsidiaries on a
consolidated basis determined in
accordance with generally accepted
accounting principles, the aggregate
amounts of assets (less depreciation and
valuation reserves and other reserves and
items deductible from gross book value of
specific asset accounts under generally
accepted accounting principles) which under
generally accepted accounting principles
would be included on a balance sheet after
deducting therefrom (a) all liability items
except deferred income taxes, commercial
paper, short-term bank Indebtedness, Funded
Indebtedness, other long-term liabilities
and shareholders' equity and (b) all
goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and
other like intangibles, which in each case
would be so included on such balance sheet.
"Funded Indebtedness" means any
Indebtedness maturing by its terms more
than one year from the date of the
determination thereof, including (i) any
Indebtedness having a maturity of 12
months or less but by its terms renewable or
extendible at the option of the obligor to
a date later than 12 months from the date of
the determination thereof and (ii) rental
obligations payable more than 12 months from
the date of determination thereof under
Capital Leases (such rental obligations to be
included as Funded Indebtedness at the amount
so capitalized at the date of such
computation and to be included for the
purposes of the definition of Consolidated
Net Tangible Assets both as an asset and as
Funded Indebtedness at the amount so
capitalized).
"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)
Xxxxxxx, Xxxxx & Co. and its successors;
provided, however, that if the foregoing
shall cease to be a primary U.S.
Government securities dealer in New York
City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any
other Primary Treasury Dealer selected by
the Company.
"Reference Treasury Dealer Quotations"
means, with respect to each Reference
Treasury Dealer and any Redemption Date,
the average, as determined by the Company,
of the bid and asked prices for the
Comparable Treasury Issue (expressed in
each case as a percentage of its principal
amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00
p.m. on the third Business Day preceding
such Redemption Date.
"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.
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The Securities of this series shall be in the form set forth
in this Article.
Section 202. Form of Face of Security.
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THE KROGER CO.
7.0% Senior Notes due 2018
No. $
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The Kroger Co., a corporation duly organized and existing
under the laws of the State of Ohio (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to or registered
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assigns, the principal sum of Dollars on
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May 1, 2018, and to pay interest thereon from May 11, 1998 or
from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on May 1 and
November 1 in each year, commencing November 1, 1998, at the
rate of interest of 7.0% per annum until the principal hereof
is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be
the April 15 or October 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10days prior to such
Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the
Company maintained for that purpose in Cincinnati, Ohio, in
such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the
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Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall
appear in the Security Register.
In the case where any Interest Payment Date or the maturity
date of this Security does not fall on a Business Day, payment
of interest or principal otherwise payable on such day need
not be made on such day, but may be made on the next
succeeding Business Day with the same form and effect as if
made on such Interest Payment Date or the maturity date of
this Security.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
THE KROGER CO.
By
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Attest:
Section 203. Form of Reverse of Security.
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This Security is one of a duly authorized issue of Securities
of the Company (herein called the "Securities") issued and to
be issued under an Indenture dated as of May 1, 1998, as
supplemented by the First Supplemental Indenture dated as of
May 11, 1998 (as so supplemented, herein called the
"Indenture"), each between the Company and Star Bank, National
Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in
aggregate principal amount to $200,000,000.
The Securities of this series will be redeemable, in whole or
in part, at the option of the Company at any time at a
redemption price equal to the greater of (i) 100% of the
principal amount of such Securities or (ii) as determined by a
Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest
accrued as of the date of redemption) discounted to the date
of redemption on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury
Rate plus 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
Securities or portions thereof called for redemption.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security or (ii)
certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with
certain conditions set forth therein.
If an Event of Default shall occur and be continuing, the
principal of all Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 50% in aggregate principal
amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of
such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of
transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security will have any right to
institute any proceeding with respect to the Indenture or for
any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing
Event of Default, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made
written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities a direction
inconsistent with such request and shall have failed to
institute such proceeding within 60 days; provided, however,
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that such limitations do not apply to a suit instituted by the
Holder hereof for the enforcement of payment of the principal
of (and premium, if any) or any interest on this Security on
or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and
unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security
is registerable in the Security Register, upon surrender of
this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and
any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for
a like aggregate principal amount of Securities of like tenor,
of a different authorized denomination, as requested by the
Holder surrendering the same.
Except where otherwise specifically provided in the Indenture,
no service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE THREE
THE SERIES OF SECURITIES
Section 301. Title and Terms.
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There shall be a series of Securities designated as the "7.0%
Senior Notes due 2018" of the Company. Their Stated Maturity
shall be May 1, 2018, and they shall bear interest at the rate
of 7.0% per annum.
Interest on the Securities of this series will be payable
semi-annually on May 1 and November 1 of each year, commencing
November 1, 1998, until the principal thereof is made
available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name the Securities
of this series (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the April 15 or October 15
(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
In the case where any Interest Payment Date or the maturity
date of the Securities of this series does not fall on a
Business Day, payment of interest or principal otherwise
payable on such date need not be made on such day, but may be
made on the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date or the
maturity date of the Securities of this series.
The aggregate principal amount of Securities of this series
which may be authenticated and delivered under this First
Supplemental Indenture is limited to $200,000,000, except for
Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other
Securities of this series pursuant to Section304, 305 and 306
of the Indenture and except for any Securities of this series
which, pursuant to Section303 of the Indenture, are deemed
never to have been authenticated and delivered under the
Indenture.
The Securities of this series will be represented by one or
more Global Securities representing the entire $200,000,000
aggregate principal amount of the Securities of this series,
and the Depositary with respect to such Global Security or
Global Securities will be The Depository Trust Company.
The Place of Payment for the principal of (and premium, if
any) and interest on the Securities of this series shall be
the office or agency of the Company in the City of Cincinnati,
State of Ohio, maintained for such purpose, which shall be the
Corporate Trust Office of the Trustee and at any other office
or agency maintained by the Company for such purpose;
provided, however, that at the option of the Company payment
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of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register.
The Securities of this series are redeemable prior to maturity
at the option of the Company as provided in this First
Supplemental Indenture.
The Securities of this series are not subject to a sinking
fund and the provisions of Section 501(3) and Article Twelve
of the Indenture shall not be applicable to the Securities of
this series.
The Securities of this series are subject to defeasance at the
option of the Company as provided in this First Supplemental
Indenture.
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, Section 801 of
the Indenture shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 801. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions.
----------------------------------------
The Company covenants that it will not merge with or into or
consolidate with any corporation, partnership, or other entity
or sell, lease or convey all or substantially all of its
assets to any other Person, unless (i) either the Company
shall be the continuing corporation, or the successor entity
or the Person which acquires by sale, lease or conveyance all
or substantially all the assets of the Company (if other than
the Company) shall be a corporation or partnership organized
under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume
all obligations of the Company under this Indenture and the
Securities of the series created by the First Supplemental
Indenture, including the due and punctual payment of the
principal of and interest on all the Securities of the series
created by the First Supplemental Indenture according to their
tenor, and the due and punctual performance and observance of
all of the covenants and conditions of the Indenture to be
performed or observed by the Company, by supplemental
indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such entity, and (ii) the
Company, such person or such successor entity, as the case may
be, shall not, immediately after such merger or consolidation,
or such sale, lease or conveyance, be in default in the
performance of any such covenant or condition and, immediately
after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing.
Section 802. Successor Substituted Upon any consolidation
---------------------
of the Company with, or merger of the Company into, any other
Person or any sale, lease or conveyance of all or
substantially all of the assets of the Company in accordance
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 modified by inserting ", and a successor
Depositary is not appointed by the Company within 90 days"
at the end of clause (i) in such paragraph; and
(b) Section 401 of the Indenture shall be modified by adding
to the end of such Section the following paragraph:
"For the purpose of this Section 401, trust funds may
consist of (A) money in an amount, or (B) U.S. Government
Obligations (as defined in Section 1304) which through
the scheduled payment of principal and interest in
respect thereof in accordance with their terms will
provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, the principal of,
premium, if any, and each installment of interest on the
Securities of this series on the Stated Maturity of such
principal or installment of interest on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and of such Securities of this
series."
Section 403. Additional Covenants; Defeasance and Covenant
---------------------------------------------
Defeasance.
----------
(a) With respect to the Securities of this series, the
following provisions shall be added as Sections 1009 and
1010 and as Article Thirteen (Section references contained in
these additional provisions are to the Indenture as
supplemented by this First Supplemental Indenture):
"Section 1009. Limitations on Liens.
--------------------
After the date hereof and so long as any Securities of
the series created by the First Supplemental Indenture
are Outstanding, the Company will not issue, assume or
guarantee, and will not permit any Restricted Subsidiary
to issue, assume or guarantee, any Indebtedness which is
secured by a mortgage, pledge, security interest, lien or
encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the
nature thereof, and any agreement to give any of the
foregoing) (each being hereinafter referred to as a
"lien" or "liens") of or upon any Operating Property or
Operating Asset, whether now owned or hereafter acquired,
of the Company or any Restricted Subsidiary without
effectively providing that the Securities of the series
created by the First Supplemental Indenture (together with,
if the Company shall so determine, any other Indebtedness
of the Company ranking equally with the Securities) shall
be equally and ratably secured by a lien on such assets
ranking ratably with and equal to (or at the Company's
option prior to) such secured Indebtedness; provided that
the foregoing restriction shall not apply to:
(a) liens on any property or assets of any corporation
existing at the time such corporation becomes a
Restricted Subsidiary provided that such lien does
not extend to any other property of the Company or
any of its Restricted Subsidiaries;
(b) liens on any property or assets (including stock)
existing at the time of acquisition of such property or
assets by the Company or a Restricted Subsidiary, or liens
to secure the payment of all or any part of the purchase
price of such property or assets (including stock) upon the
acquisition of such property or assets by the Company or a
Restricted Subsidiary or to secure any indebtedness incurred,
assumed or guaranteed by the Company or a Restricted
Subsidiary for the purpose of financing all or any part
of the purchase price of such property or, in the case of
real property, construction or improvements thereon or
attaching to property substituted by the Company to obtain
the release of a lien on other property of the Company on
which a lien then exists, which indebtedness is incurred,
assumed or guaranteed prior to, at the time of, or within
18 months after such acquisition (or in the case of real
property, the completion of construction (including any
improvements on an existing asset) or commencement of
full operation at such property, whichever is later
(which in the case of a retail store is the opening of
the store for business to the public)); provided that in
the case of any such acquisition, construction or
improvement, the lien shall not apply to any other
property or assets theretofore owned by the Company or a
Restricted Subsidiary;
(c) liens on any property or assets to secure Indebtedness of
a Restricted Subsidiary to the Company or to another
Restricted Subsidiary;
(d) liens on any property or assets of a corporation existing
at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or
at the time of a purchase, lease or other acquisition of the
assets of a corporation or firm as an entirety or substantially
as an entirety by the Company or a Restricted Subsidiary provided
that such lien does not extend to any other property of the Company
or any of its Restricted Subsidiaries;
(e) liens on any property or assets of the Company or a
Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of
any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any
Indebtedness incurred or guaranteed for the purpose of
financing all or any part of the purchase price (or, in
the case of real property, the cost of construction) of
the property or assets subject to such liens (including,
but not limited to, liens incurred in connection with
pollution control, industrial revenue or similar financings);
(f) liens existing on properties or assets of the Company or
any Restricted Subsidiary existing on the date hereof;
provided that such liens secure only those obligations
which they secure on the date hereof or any extension,
renewal or replacement thereof;
(g) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in
part, of any lien referred to in the foregoing clauses
(a) through (f), inclusive; provided that such extension,
renewal or replacement shall be limited to all or a part
of the property or assets which secured the lien so
extended, renewed or replaced (plus improvements and
construction on real property);
(h) liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehouseman's,
vendors', or other similar liens arising in the ordinary
course of business of the Company or a Restricted
Subsidiary, or governmental (federal, state or municipal)
liens arising out of contracts for the sale of products
or services by the Company or any Restricted Subsidiary,
or deposits or pledges to obtain the release of any of
the foregoing liens;
(i) pledges, liens or deposits under worker's compensation
laws or similar legislation and liens or judgments
thereunder which are not currently dischargeable, or in
connection with bids, tenders, contracts (other than for
the payment of money) or leases to which the Company or
any Restricted Subsidiary is a party, or to secure the
public or statutory obligations of the Company or any
Restricted Subsidiary, or in connection with obtaining or
maintaining self-insurance or to obtain the benefits of
any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security
or similar matters, or to secure surety, appeal or
customs bonds to which the Company or any Restricted
Subsidiary is a party, or in litigation or other proceedings
such as, but not limited to, interpleader proceedings, and
other similar pledges, liens or deposits made or incurred
in the ordinary course of business;
(j) liens created by or resulting from any litigation or
other proceeding which is being contested in good faith
by appropriate proceedings, including liens arising out
of judgments or awards against the Company or any
Restricted Subsidiary with respect to which the Company or
such Restricted Subsidiary is in good faith prosecuting an
appeal or proceedings for review or for which the time to
make an appeal has not yet expired; or final unappealable
judgment liens which are satisfied within 30 days of the
date of judgment; or liens incurred by the Company or any
Restricted Subsidiary for the purpose of obtaining a stay
or discharge in the course of any litigation or other
proceeding to which the Company or such Restricted Subsidiary
is a party;
(k) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter
be paid without penalty, or which are being contested in
good faith by appropriate proceedings; landlord's liens
on property held under lease; and any other liens or
charges incidental to the conduct of the business of the
Company or any Restricted Subsidiary or the ownership of
the property or assets of any of them which were not
incurred in connection with the borrowing of money or the
obtaining of advances or credit and which do not, in the
opinion of the Company, materially impair the use of such
property or assets in the operation of the business of
the Company or such Restricted Subsidiary or the value of
such property or assets for the purposes of such
business; or
(l) liens not permitted by clauses (a) through (k) above if
at the time of, and after giving effect to, the creation
or assumption of any such lien, the aggregate amount of
all Indebtedness of the Company and its Restricted
Subsidiaries secured by all such liens not so permitted by
clauses (a) through (k) above together with the Attributable
Debt in respect of Sale and Lease-Back Transactions permitted
by paragraph (a) of Section 1010 does not exceed 10% of
Consolidated Net Tangible Assets.
Section 1010. Limitations on Sale and Lease-Back
----------------------------------
Transactions.
------------
After the date hereof and so long as any Securities of
the series created by the First Supplemental Indenture
are Outstanding, the Company agrees that it will not, and
will not permit any Restricted Subsidiary to, enter into
any arrangement with any Person providing for the leasing
by the Company or a Restricted Subsidiary of any
Operating Property or Operating Asset (other than any such
arrangement involving a lease for a term, including renewal
rights, for not more than 3 years and leases between the
Company and a Restricted Subsidiary or between Restricted
Subsidiaries), whereby such Operating Property or Operating
Asset has been or is to be sold or transferred by the
Company or any Restricted Subsidiary to such Person (herein
referred to as a "Sale and Lease-Back Transaction"),
unless:
(a) the Company or such Restricted Subsidiary would, at
the time of entering into a Sale and Lease-Back
transaction, be entitled to incur Indebtedness
secured by a lien on the Operating Property or
Operating Asset to be leased in an amount at least
equal to the Attributable Debt in respect of such
Sale and Lease-Back Transaction without equally and
ratably securing the Securities of the series created
by the First Supplemental Indenture pursuant to
Section 1009; or
(b) the proceeds of the sale of the Operating Property
or Operating Asset to be leased are at least equal
to the fair market value of such Operating Property
or Operating Asset (as determined by the chief
financial officer or chief accounting officer of the
Company) and an amount in cash equal to the net
proceeds from the sale of the Operating Property or
Operating Asset so leased is applied, within 180
days of the effective date of any such Sale and
Lease-Back Transaction, to the purchase or
acquisition (or, in the case of Operating Property,
the construction) of Operating Property or Operating
Assets or to the retirement, repurchase, redemption or
repayment (other than at maturity or pursuant to a
mandatory sinking fund or redemption provision and
other than Indebtedness owned by the Company or any
Restricted Subsidiary) of Securities of the series
created by the First Supplemental Indenture or of
Funded Indebtedness of the Company ranking on a parity
with or senior to the Securities of the series
created by the First Supplemental Indenture, or in
the case of a Sale and Lease-Back Transaction by a
Restricted Subsidiary, of Funded Indebtedness of such
Restricted Subsidiary; provided that in connection
with any such retirement, any related loan commitment
or the like shall be reduced in an amount equal to
the principal amount so retired.
The foregoing restriction shall not apply to, in the
case of any Operating Property or Operating Asset
acquired or constructed subsequent to the date
eighteen months prior to the date of this Indenture,
any Sale and Lease-Back Transaction with respect to
such Operating Asset or Operating Property
(including presently owned real property upon which
such Operating Property is to be constructed) if a
binding commitment is entered into with respect to
such Sale and Lease-Back Transaction within 18 months
after the later of the acquisition of the Operating
Property or Operating Asset or the completion of
improvements or construction thereon or commencement
of full operations at such Operating Property (which
in the case of a retail store is the opening of the
store for business to the public).
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
----------------------------------------
Covenant Defeasance.
-------------------
The Company may at its option by Board Resolution, at any
time, elect to have either Section 1302 or Section1303 applied
to the Outstanding Securities of this series upon compliance
with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be deemed
to have been discharged from its obligations with respect to
the Outstanding Securities of the series created by the First
Supplemental Indenture on the date the conditions set forth
below are satisfied (hereinafter, "Defeasance"). For this
purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of this series and
to have satisfied all its other obligations under such
Securities of this series and this Indenture insofar as such
Securities of this series are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding Securities of this
series to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any)
and interest on such securities when such payments are due,
(B) the Company's obligations with respect to such Securities
of this series under Sections304, 305, 306, 1002 and 1003, (C)
the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may
exercise its option under this Section 1302 notwithstanding
the prior exercise of its option under Section 1303.
Section 1303. Covenant Defeasance
-------------------
Upon the Company's exercise of the option provided in Section
1301 applicable to this Section, the Company shall be released
from its obligations under Section 501(4) (in respect of the
covenants in Sections 1008 through 1010), Section 801 and
Sections 1008 through 1010, the Securities of this series and
the Holders of Securities of this series, on and after the
date the conditions set forth below are satisfied
(hereinafter, "covenant Defeasance"). For this purpose, such
covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such
Securities of this series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant
------------------------------------
Defeasance.
----------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of
this series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for
the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities
of this series, (A) money in an amount, or (B)U.S.
Government Obligations which through the scheduled
payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than
one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal
of, premium, if any, and each installment of interest on
the Securities of this series on the Stated Maturity of
such principal or installment of interest on the day on
which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities
of this series. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct
obligations of the United States of America for the
payment of which its full faith and credit is pledged or
(y)obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not
callable or redeemable at the option of the Company
thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except
--------
as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall
have occurred and be continuing on the date of such
deposit or, insofar as subsections 501(6) and (7) are
concerned, at any time during the period ending on the
121st day after the date of such deposit (it being
understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such Defeasance or covenant Defeasance shall not cause
the Trustee to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act
with respect to any securities of the Company.
(4) Such Defeasance or covenant Defeasance shall not result
in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it
is bound.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to
either the Defeasance under Section 1302 or the covenant
Defeasance under Section 1303 (as the case may be) have been
complied with.
(6) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from,
or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this First
Supplemental Indenture there has been a change in the
applicable Federal income tax law, in either case to the
effect that and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of this
series will not recognize income, gain or loss for
Federal income tax purposes as a result of such Defeasance
or covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at
the same times as would have been the case if such
Defeasance or covenant Defeasance had not occurred."
Section 1305. Deposited Money and U.S. Government Obligations
-----------------------------------------------
to Be Held in Trust; Other Miscellaneous
----------------------------------------
Provisions.
----------
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other
qualifying trustee--collectively, for purposes of this Section
1305, the "Trustee") pursuant to Section 1304 in respect of
the Securities of this series shall be held in trust and
applied by the Trustee, in accordance with the provisions of
such Securities of this series and this Indenture, to the
payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of
this series, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but
such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1304
or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities
of this series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess
of the amount thereof which would then be required to be
deposited to effect an equivalent Defeasance or covenant
Defeasance.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1302 or 1303 by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this
Indenture and the Securities of this series shall be revived
and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with
Section 1302 or 1303; provided, however, that if the Company
-------- -------
makes any payment of principal of (and premium, if any) or
interest on any Security of this series following the
reinstatement of its obligations, the Company shall be
subjugated to the rights of the Holders of such Securities of
this series to receive such payment from the money held by the
Trustee or the Paying Agent.
Section 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 at a redemption price equal
to the greater of (i) 100% of the principal amount of such
Securities or (ii) as determined by a Quotation Agent, the sum
of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of
such payments of interest accrued as of the date of
redemption) discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 12.5
basis points plus, in each case, accrued interest thereon to
the date of redemption."
ARTICLE FIVE
MISCELLANEOUS
Section 501. Miscellaneous.
-------------
a) The Trustee accepts the trusts created by the Indenture,
as supplemented by this First Supplemental Indenture, and
agrees to perform the same upon the terms and conditions
of the Indenture, as supplemented by this First
Supplemental Indenture.
(b) The recitals contained herein shall be taken as
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
First Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the
Indenture.
(d) Each of the Company and the Trustee makes and reaffirms
as of the date of execution of this First Supplemental
Indenture all of its respective representations,
covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this First Supplemental
Indenture by the Company or the Trustee shall bind its
respective successors and assigns, whether so expressed
or not.
(f) In case any provisions in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
(g) Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties
hereto and their successors under the Indenture and the
Holders of the series of Securities created hereby, any
benefit or any legal or equitable right, remedy or claim
under the Indenture.
(h) If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, as
may be amended from time to time, that is required under
such Act to be a part of and govern this First
Supplemental Indenture, the latter provision shall
control. If any provision hereof modifies or excludes
any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to
this First Supplemental Indenture as so modified or
excluded, as the case may be.
(i) This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of
New York.
(j) All amendments to the Indenture made hereby shall have
effect only with respect to the series of Securities
created hereby.
(k) All provisions of this First Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the
Indenture; and the Indenture, as supplemented by this
First Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one
and the same instrument.
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.
THE KROGER CO.
By: (Xxxxxxxx X. Xxxxxx)
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President &
Treasurer
Attest:
(Xxxxx X. Xxxx)
Assistant Secretary
STAR BANK, NATIONAL
ASSOCIATION,
as Trustee
By: (Xxxxx X. Xxxxxxxxx)
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Trust Officer
Attest:
(Xxxx Xxxxxxx)
Assistant Secretary
STATE OF OHIO )
)ss.:
COUNTY OF XXXXXXXX )
On the 8th day of May, 1998, before me personally came
Xxxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn,
did depose and say that he is Vice President & Treasurer of
The Kroger Co., 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.
(Xxxxxx X. Xxxxx)
Xxxxxx X. Xxxxx
Notary Public, State of Ohio
My Commission Expires June 20, 1998
STATE OF OHIO )
)ss.:
COUNTY OF XXXXXXXX )
On the 8th day of May,1998, before me personally came
Xxxxx X. Xxxxxxxxx, to me known, who, being by me duly
sworn, did depose and say that he is a Senior Trust Officer
of Star 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.
(Xxxxxx X. Xxxx)
Xxxxxx X. Xxxx
Notary Public, State of Ohio
My Commission Expires October 20, 2001
