SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: February 25, 1998
THE KROGER CO.
(Exact name of registrant as specified in its charter)
An Ohio Corporation No. 1-303 31-0345740
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Number)
1014 Vine Street
Cincinnati, OH 45201
(Address of principal
executive offices)
Registrant's telephone number: (513) 762-4000
<PAGE>
Item 5. Other Events
On July 17, 1996, The Kroger Co. filed
Registration Statement No. 333-06763 on Form S-3 with the Securities
and Exchange Commission pursuant to Rule 415, as amended by Amendment
No. 1 filed on July 12, 1996, and Post-Effective Amendment No.
1 filed on July 17, 1996 (hereinafter, collectively referred to as the
"Registration Statement". The Registration Statement provides for the
issuance of Debt Securities in an aggregate amount of $744,226,000, and
was declared effective on July 15, 1996. Pursuant to a
Prospectus Supplement dated February 20, 1998, The Kroger Co. is
issuing $200,000,000 of Debt Securities designated 6 3/8% Senior
Notes due 2008.
Filed as Exhibit 1.1 to the Registration
Statement was a form of Underwriting Agreement for the issuance of the Debt
Securities. In connection with the issuance of the 6 3/8% Senior Notes due
2008, the Registrant has executed a Pricing Agreement dated
February 20, 1998, among Registrant, J. P. Morgan Securites, Inc.,
Goldman, Sachs & Co., First Chicago Capital Markets, Inc., First
Union Capital Markets Corp, and CIBC Oppenheimer Corp., the form of which
is incorporated herein by reference as Exhibit 1.1 hereof.
The form of indenture for the 6 3/8% Senior
Notes due 2008 was filed as Exhibit 4.2 of the Registration Statement.
The Third Supplemental Indenture dated as of February 25, 1998, between the
Company and Star Bank, National Association, as Trustee, supplements
the Indenture dated as of July 15, 1996, between the Company
and Star Bank, National Association (successor trustee to Comerica
Bank), as Trustee, which originally was qualified as filed with the
Registration Statement. The Second Supplemental Indenture is attached
hereto as Exhibit 4.2.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits
(c) Exhibits:
1.1 Pricing Agreement dated
February 20, 1998, among Registrant, J. P. Morgan Securites, Inc., Goldman,
Sachs & Co., First Chicago Capital Markets, Inc., First Union
Capital Markets Corp, and CIBC Oppenheimer Corp.
<PAGE>
4.2 Third Supplemental Indenture dated as
of February 25, 1998, between the Company and Star Bank, National
Association, as Trustee, relating to the Company s 6 3/8% Senior Notes due
2008.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereto duly authorized.
THE KROGER CO.
February 25, 1998 By: (Paul Heldman)
Paul Heldman
Senior Vice President,
Secretary & General Counsel
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
1.1 Pricing Agreement dated February 20,
1998, among Registrant, J. P. Morgan Securites, Inc., Goldman, Sachs & Co.,
First Chicago Capital Markets, Inc., First Union Capital Markets Corp,
and CIBC Oppenheimer Corp.
4.2 Third Supplemental Indenture dated as of
February 25, 1998, between the Company and Star Bank, National Association, as
Trustee, relating to the Company's 6 3/8% Senior Notes due 2007.
Pricing Agreement
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
First Chicago Capital Markets, Inc.
First Union Capital Markets Corp.
CIBC Oppenheimer Corp.
As Representatives of the several
Underwriters named in Schedule I hereto,
February 20, 1998
Dear Sirs:
The Kroger Co., an Ohio corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April 23, 1997 (the
"Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters")
the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made
at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the
Prospectus in Section2 of the Underwriting Agreement shall be
deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of
the date of this Pricing Agreement in relation to the
Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and
in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of
the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference,
the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth
in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in
ScheduleI hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us six counterparts
hereof, and upon acceptance hereof by you, on behalf of each
of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers
thereof.
Very truly yours,
The Kroger Co.
By
Name: W. Rodney McMullen
Title: Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
First Chicago Capital Markets, Inc.
First Union Capital Markets Corp.
CIBC Oppenheimer
By:
J.P. Morgan Securities Inc.
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of Designated Securities to be
Underwriter Purchased
J.P. Morgan Securities Inc. $70,000,000
Goldman, Sachs & Co. 70,000,000
First Chicago Capital Markets, Inc. 20,000,000
First Union Capital Markets Corp. 20,000,000
CIBC Oppenheimer 20,000,000
Total $200,000,000
SCHEDULE II
Title of Designated Securities:
6 3/8% Senior Notes due 2008
Aggregate principal amount:
$200,000,000
Price to Public:
99.284% of the principal amount of the Designated Securities,
plus accrued interest from February 25, 1998
Purchase Price by Underwriters:
98.634% of the principal amount of the Designated Securities,
plus accrued interest from February 25, 1998
Specified funds for payment of purchase price:
Immediately available funds
Indenture:
Indenture dated as of July 15, 1996, between the Company and
Star Bank, National Association, as Trustee
Maturity:
March 1, 2008
Interest Rate:
6 3/8%
Interest Payment Dates:
March 1 and September 1, commencing September 1, 1998
Redemption Provisions:
As described in the Prospectus Supplement dated February 20,
1998
Sinking Fund Provisions
No sinking fund provisions
Defeasance provisions:
As described in the Prospectus Supplement dated February
20, 1998
Time of Delivery:
February 25, 1998
Closing Location:
The Offices of Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza, New York, New York 10004
Names and addresses of Representatives:
Designated Representative: J.P. Morgan Securities Inc.
Address for Notices, etc.: 60 Wall Street
New York, New York 10260-0060
THE KROGER CO.
TO
STAR BANK, NATIONAL ASSOCIATION
Trustee
Third Supplemental Indenture
Dated as of February 25, 1998
TO
INDENTURE
Dated as of July 15, 1996
6 3/8% SENIOR NOTES DUE 2008
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of
February 25, 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
1014 Vine Street, Cincinnati, Ohio 45202, 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 Third 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 Third Supplemental
Indenture a valid agreement of the Company, and a valid
amendment of and supplement to the Indenture, have been done.
NOW, THEREFORE, THIS THIRD Supplemental Indenture
WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders
of the Securities of the series to be created hereby,
as follows:
ARTICLE ONE
DEFINITIONS
Section 101. Definitions.
(a) For all purposes of this Third
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 Third
Supplemental Indenture and, where so
specified, to the Articles and Sections of
the Indenture as supplemented by this
Third Supplemental Indenture; and
(3) The terms "hereof", "herein",
"hereby", "hereto", "hereunder" and
"herewith" refer to this Third
Supplemental Indenture.
(b) For all purposes of the Indenture and
this Third 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 Third
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) J.P. Morgan Securities Inc.
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.
The Securities of this series shall be in
the form set forth in this Article.
Section 202. Form of Face of Security.
THE KROGER CO.
6 3/8% Senior Notes due 2008
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 March 1, 2008, and to pay interest thereon from February
25, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for,
semi-annually on March 1 and September 1 in each
year, commencing September 1, 1998, at the rate of interest of
6 3/8% 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 February 15 or August 15 (whether
or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders
of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
Payment of the principal of (and premium,
if any) and interest on this Security will be made at the
office or agency of the Company maintained for
that purpose in Cincinnati, Ohio, in such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in
the Security Register.
In the case where any Interest Payment Date
or the maturity date of this Security does not fall on a
Business Day, payment of interest or principal otherwise
payable on such day need not be made on such day, but may be
made on the next succeeding Business Day with the same form
and effect as if made on such Interest Payment Date or the
maturity date of this Security.
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof,
which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication
hereon has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused
this instrument to be duly executed under its corporate seal.
Dated:
THE KROGER CO.
By...................
Attest:
.....................................
Section 203. Form of Reverse of Security.
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, as supplemented by the
Second Supplemental Indenture dated as of April 28, 1997 and
as supplemented by the Third Supplemental Indenture dated as
of February 25, 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,
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.
There shall be a series of Securities
designated as the "6 3/8% Senior Notes due 2008" of the
Company. Their Stated Maturity shall be March 1,
2008, and they shall bear interest at the rate of 6 3/8% per
annum.
Interest on the Securities of this series
will be payable semi-annually on March 1 and September 1 of
each year, commencing September 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 February 15 or August 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 Third 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 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 Third 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
Third 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 connvey 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 Third Supplemental
Indenture, including the due and punctual
payment of the principal of and interest on
all the Securities of the series created by the
Third 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 Third Supplemental Indenture):
"Section 1009. Limitations on Liens.
After the date hereof and so long as any
Securities of the series created by the Third
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
Third 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 thereof; 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 Third
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 Third 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 Third
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 Third
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 Third
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 follow
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 Third 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 Third Supplemental
Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as supplemented by this Third
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 Third 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 Third
Supplemental Indenture all of its respective representations,
covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this
Third 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 Third
Supplemental Indenture shall be invalid, illegal or
unenforceable, thevalidity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
(g) Nothing in this Third 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 Third
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 Third Supplemental
Indenture as so modified or excluded, as the case may be.
(i) This Third 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 Third
Supplemental Indenture shall be deemed to be incorporated in, and
made a part of, the Indenture; and the Indenture, as supplemented
by this Third 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.
<PAGE>
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: Lawrence M. Turner
Title: Vice President &
Treasurer
Attest:
Assistant Secretary
STAR BANK, NATIONAL
ASSOCIATION, as Trustee
By
Name:
Title:
Attest:
Assistant Secretary
200120
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On the day of February, 1998, before me
personally came Lawrence M. Turner, 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.
.......................
STATE OF .......... )
) ss.:
COUNTY OF ........ )
On the th day of ......., 1998, 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.
...........................
<PAGE>
