EXHIBIT 4.2
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THE KROGER CO.
TO
STAR BANK, NATIONAL ASSOCIATION
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of April 28, 1997
TO
INDENTURE
Dated as of July 15, 1996
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7.65% SENIOR NOTES DUE 2007
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TABLE OF CONTENTS
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PARTIES
RECITALS OF THE COMPANY
ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
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(a) For all purposes of this Second Supplemental
Indenture:
(b) For all purposes of the Indenture and this Second
Supplemental Indenture, with respect to the Securities of the
series created hereby, except as otherwise expressly provided
or unless the context otherwise requires:
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 802. Successor Substituted
section 4.02. Other Modifications.
Section 403. Additional Covenants; Defeasance and Covenant
Defeasance.
ARTICLE THIRTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
SECTION 1302. Defeasance and Discharge.
SECTION 1303. Covenant Defeasance.
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions.
SECTION 1306. Reinstatement.
ARTICLE FIVE
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MISCELLANEOUS
Section 501. Miscellaneous.
Testimonium
Signatures and Seals
Acknowledgments
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NOTE: This table of contents shall not, for any purpose, be deemed
to be a part of the Second Supplemental Indenture.
SECOND SUPPLEMENTAL INDENTURE, dated as of April 28,
1997, 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 July 15, 1996 (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 Second 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 Second Supplemental
Indenture a valid agreement of the Company, and a valid
Amendment of and supplement to the Indenture, have been done.
NOW, THEREFORE, THIS SECOND 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 and Other Provisions
of General Application
Section 101. Definitions.
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(a) For all purposes of this Second Supplemental
Indenture:
(1) Capitalized terms used herein without
definition shall have the meanings specified in the
Indenture;
(2) All references herein to Articles and Sections,
unless otherwise specified, refer to the corresponding
Articles and Sections of this Second Supplemental Indenture
and, where so specified, to the Articles and Sections of the
Indenture as supplemented by this Second Supplemental
Indenture; and
(3) The terms "hereof", "herein", "hereby",
"hereto", "hereunder" and "herewith" refer to this Second
Supplemental Indenture.
(b) For all purposes of the Indenture and this Second
Supplemental Indenture, with respect to the Securities of the
series created hereby, except as otherwise expressly provided
or unless the context otherwise requires:
"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 Second
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.
"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.
"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.
7.65% Senior Notes due 2007
No. ......... $ ........
The Kroger Co., a corporation duly organized and existing
under the laws of the State of Ohio (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to .............................., or
registered assigns, the principal sum of
..................................... Dollars on April 15,
2007, and to pay interest thereon from April 15, 1997 or from
the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on April 15 and
October 15 in each year, commencing October 15, 1997, at the
rate of interest of 7.65% 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 1 or October 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such
Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
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
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option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
In the case where any Interest Payment Date or the
maturity date of this Security does not fall on a Business
Day, payment of interest or principal otherwise payable on
such day need not be made on such day, but may be made on the
next succeeding Business Day with the same form and effect as
if made on such Interest Payment Date or the maturity date of
this Security.
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:
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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 July
15, 1996, as supplemented by the First Supplemental Indenture
dated as of July 29, 1996 and as supplemented by the Second
Supplemental Indenture dated as of April 28, 1997 (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 are not subject to
redemption prior to maturity.
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 transferee.
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 "7.65%
Senior Notes due 2007" of the Company. Their Stated Maturity
shall be April 15, 2007, and they shall bear interest at the
rate of 7.65% per annum.
Interest on the Securities of this series will be payable
semi-annually on April 15 and October 15 of each year,
commencing October 15, 1997, 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 1 or October 1
(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
Second 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 Section 304,
305 and 306 of the Indenture and except for any Securities of
this series which, pursuant to Section 303 of the Indenture,
are deemed never to have been authenticated and delivered
under the Indenture.
The Securities of this series will be represented by one
or more Global Securities representing the entire $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 not redeemable prior to
maturity and the provisions of Article Eleven of the Indenture
are not applicable to Securities of this series.
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 Second
Supplemental Indenture.
ARTICLE FOUR
Modifications and Additions to the Indenture
Section 401. Modifications to the Consolidation, Merger,
Conveyance, Transfer or Lease Provisions.
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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.
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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 Second
Supplemental Indenture, including the due and punctual
payment of the principal of and interest on all the
Securities of the series created by the Second
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
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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 4.02. Other Modifications.
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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.
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(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 Second Supplemental Indenture):
"Section 1009. Limitations on Liens.
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After the date hereof and so long as any Securities of
the series created by the Second 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 Second 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 Second 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 Second
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 Second 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 Section 1303
applied to the Outstanding Securities of this series upon
compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in
Section 1301 applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with
respect to the Outstanding Securities of the series created by
the Second 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 Sections 304, 305, 306, 1002 and 1003,
(C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may
exercise its option under this Section 1302 notwithstanding
the prior exercise of its option under Section 1303.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in
Section 1301 applicable to this Section, the Company shall be
released from its obligations under Section 501(4) (in respect
of the covenants in Sections 1008 through 1010), Section 801
and Sections 1008 through 1010, the Securities of this series
and the Holders of Securities of this series, on and after the
date the conditions set forth below are satisfied
(hereinafter, "covenant Defeasance"). For this purpose, such
covenant Defeasance means that the Company may omit to comply
with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such
Securities of this series shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.
-------------------------------------
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding
Securities of this series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 609 who
shall agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for
the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities of this
series, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance
with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the 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 Second 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.
ARTICLE FIVE
MISCELLANEOUS
Section 501. Miscellaneous.
-------------
(a) The Trustee accepts the trusts created by the
Indenture, as supplemented by this Second Supplemental
Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as supplemented by this Second
Supplemental Indenture.
(b) The recitals contained herein shall be taken as
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Second Supplemental Indenture.
(c) 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 Second
Supplemental Indenture all of its respective representations,
covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this Second
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 Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
(g) Nothing in this Second Supplemental Indenture,
express or implied, shall give to any Person, other than the
parties hereto and their successors under the Indenture and
the Holders of the series of Securities created hereby, any
benefit or any legal or equitable right, remedy or claim under
the Indenture.
(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 Second Supplemental
Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of such
Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Second Supplemental Indenture
as so modified or excluded, as the case may be.
(i) This Second 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 Second Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the
Indenture; and the Indenture, as supplemented by this Second
Supplemental Indenture, shall be read, taken and construed as
one and the same instrument.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
_____________________________
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:
----------------------
Name:
Title:
Attest:
--------------------
Assistant Secretary
STAR BANK, NATIONAL
ASSOCIATION, as Trustee
By
------------------------
Name:
Title:
Attest:
-------------------------
Assistant Secretary
STATE OF )
) ss.:
COUNTY OF )
On the th day of , 1996, before me personally came
---- ----
, to me known, who, being by me duly sworn, did
--------------
depose and say that he is 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.
---------------------------
STATE OF )
) ss.:
COUNTY OF )
On the th day of , 1996, before me personally
---- ---
came _________________, to me known, who, being by me duly
sworn, did depose and say that he is a _____________ 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.
