AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE,
dated as of April 11, 1994 by and among Kash n' Karry Food
Stores, Inc., a corporation duly organized and existing under
the laws of Delaware and having its principal office at 6422
Harney Road, Tampa, Florida 33610 (the "Company"), Barnett
Bank of Tampa, a banking corporation duly organized and existing
under the laws of the state of Florida and having its
principal corporate trust office at 9000 Southside Boulevard,
Building 100, Post Office Box 40200, Jacksonville, Florida
32203 ("Resigning Trustee") and THE BANK OF NEW YORK, a banking
corporation duly organized and existing under the laws of the
State of New York and having its principal corporate trust office
at 101 Barclay Street, New York, New York 10286 ("Successor
Trustee").
RECITALS:
WHEREAS, there was originally authorized and issued
$105,000,000 aggregate principal amount of the Company's 14%
Subordinated Debentures due February 1, 2001 (the "Securi-
ties") under a Trust Indenture dated as of February 8, 1989 by
and between the Company and First Florida Bank, N.A. (the "In-
denture");
WHEREAS, the Resigning Trustee is the successor to First
Florida Bank, N.A. as Trustee under the Indenture;
WHEREAS, Section 610(b) of the Indenture provides that the
Trustee may at any time resign by giving written notice of such
resignation to the Company, effective upon the acceptance by a
successor Trustee of its appointment as a successor
Trustee;
WHEREAS, Section 610(e) of the Indenture provides that, if
the Trustee shall resign, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee;
WHEREAS, Section 611 of the Indenture provides that any
successor Trustee appointed in accordance with the Indenture
shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment
under the Indenture, and thereupon the resignation of the
predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers, trusts and duties of
the predecessor trustee;
WHEREAS, pursuant to Sections 305 and 101 of the Indenture,
First Florida Bank, N.A. was appointed Security Registrar
and Paying Agent, respectively;
WHEREAS, the Resigning Trustee is the successor to First
Florida Bank, N.A. as Security Registrar and Paying Agent
under the Indenture;
WHEREAS, the Company desires to appoint Successor Trustee as
Trustee, Paying Agent and Security Registrar to succeed
Resigning Trustee in such capacities under the Indenture; and
WHEREAS, Successor Trustee is willing to accept such ap-
pointment as successor Trustee, Paying Agent and Security
Registrar under the Indenture;
NOW, THEREFORE, the Company, Resigning Trustee and Suc-
cessor Trustee, for and in consideration of the premises and of
other good and valuable consideration, the receipt and suf-
ficiency of which are hereby acknowledged, hereby consent and
agree as follows:
ARTICLE I
THE RESIGNING TRUSTEE
SECTION 1.01 Pursuant to Sections 610 and 614 of the
Indenture, Resigning Trustee hereby notifies the Company that
Resigning Trustee is hereby resigning as Trustee, Security
Registrar and Paying Agent under the Indenture.
SECTION 1.02 Resigning Trustee hereby represents and
warrants to Successor Trustee that:
(a) No covenant or condition contained in the Indenture
hasbeen waived by Resigning Trustee or, to the best
knowledge of responsible officers of Resigning
Trustee's corporate trust department, by the Holders of
the percentage in aggregate principal amount of the
Securities required by the Indenture to effect any
such waiver.
(b) There is no action, suit or proceeding pending or, to
the best knowledge of responsible officers of Resigning
Trustee's corporate trust department, threatened against
Resigning Trustee before any court or any governmental
authority arising out of any act or omission of Resigning
Trustee as Trustee under the Indenture.
(c) As of the effective date of this Agreement, Resigning
Trustee will hold no moneys or property under the
Indenture.
(d) Pursuant to Section 303 of the Indenture, Resigning
Trustee duly authenticated and delivered, on February 8,
1989 $105,000,000 aggregate principal amount of Securities,
of which $105,000,000 are outstanding as of the effective
date hereof.
(e) Each person who so authenticated the Securities was
dulyelected, qualified and acting as an officer of
Resigning
Trustee and empowered to authenticate the Securities at
the respective times of such authentication and the
signature of such person or persons appearing on such
Securities is each such person's genuine signature.
(f) This Agreement has been duly authorized, executed
and delivered on behalf of Resigning Trustee and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
(g) To the best knowledge of responsible officers of the
Resigning Trustee's corporate trust department, but without
further inquiry, no event has occurred and is continuing
which is, or after notice or lapse of time would become,
an Event of Default under Section 501 of the Indenture.
Notwithstanding anything to the contrary in this subsection
(g), the responsible officers of the Resigning Trustee's
corporate trust department are fully chargeable with
knowledge of the contents of any written statement or
Officers' Certificate delivered by the Company to
the Resigning Trustee under Section 1013 of the
Indenture before the effective date of this
Agreement.
SECTION 1.03 Resigning Trustee hereby assigns, trans-
fers, delivers and confirms to Successor Trustee all right,
title and interest of Resigning Trustee in and to the trust
under the Indenture, all the rights, powers and trusts of the
Trustee under the Indenture, and all property and money held by
Resigning Trustee under the Indenture. Resigning Trustee shall
execute and deliver such further instruments and shall do such
other things as Successor Trustee may reasonably require so
as to more fully and certainly vest and confirm in Successor
Trustee all the rights, powers and trusts hereby assigned,
transferred, delivered and confirmed to Successor Trustee as
Trustee, Paying Agent and Security Registrar.
SECTION 1. 04 Notwithstanding the foregoing, Resigning
Trustee reserves its rights, if any, to indemnification from
the Company pursuant to Section 607(c) of the Indenture.
ARTICLE II
THE COMPANY
SECTION 2.01 The Company hereby accepts the resignation of
Resigning Trustee as Trustee, Paying Agent and Security
Registrar under the Indenture.
SECTION 2.02 The Company hereby certifies that Exhibit A
annexed hereto is a copy of the Board Resolution which was duly
adopted by the Board of Directors of the Company, which is in
full force and effect on the date hereof, and which authorizes
certain officers of the Company to: (a) accept Resigning
Trustee's resignation as Trustee, Paying Agent and Security
Registrar under the Indenture; (b) appoint Successor Trustee as
Trustee, Paying Agent and Security Registrar under the Indenture;
and (c) execute and deliver such agreements and other
instruments as may be necessary or desirable to effectuate
the succession of Successor Trustee as Trustee, Paying Agent
and Security Registrar under the Indenture.
SECTION 2.03 The Company hereby appoints Successor
Trustee as Trustee, Paying Agent and Security Registrar under
the Indenture to succeed to, and hereby vests Successor
Trustee with, all the rights, powers, duties and obligations of
Resigning Trustee under the Indenture with like effect as if
originally named as Trustee, Paying Agent and Security
Registrar in the Indenture.
SECTION 2.04 Promptly after the effective date of this
Agreement, the Company shall cause a notice, substantially in
the form of Exhibit B annexed hereto, to be sent to each
Holder of the Securities in accordance with the provisions of
Sections 610 and 614 of the Indenture.
SECTION 2.05 The Company hereby represents and warrants to
Resigning Trustee and Successor Trustee that:
(a) The Company is a corporation duly and validly orga-
nized and existing pursuant to the laws of the State
of Delaware.
(b) The Indenture was validly and lawfully executed and
delivered by the Company and the Securities were validly
issued by the Company.
(c) The Company has performed or fulfilled prior to the
date hereof, and will continue to perform and fulfill
after the date hereof, each covenant, agreement, condition,
obligation and responsibility under the Indenture.
(d) No event has occurred and is continuing which is, or
after notice or lapse of time would become, an Event of
Default under Section 501 of the Indenture.
(e) No covenant or condition contained in the Indenture
hasbeen waived by the Company or, to the best of the
Company's knowledge, by Holders of the percentage in
aggregate principal amount of the Securities required to
effect any such waiver.
(f) There is no action, suit or proceeding pending or, to
the best of the Company's knowledge, threatened against
the Company before any court or any governmental authority
arising out of any act or omission of the Company under
the Indenture.
(g) This Agreement has been duly authorized, executed
anddelivered on behalf of the Company and Constitutes its
legal, valid and binding obligation, enforceable in
accordance with its terms.
(h) All conditions precedent relating to the appointment of
The Bank of New York as successor Trustee, Paying Agent
and Security Registrar under the Indenture have been
complied with by the Company.
ARTICLE III
THE SUCCESSOR TRUSTEE
SECTION 3.01 Successor Trustee hereby represents and
warrants to Resigning Trustee and to the Company that:
a) Successor Trustee is not disqualified under the pro-
visions of Section 608 and is eligible under the
provisions of Section 609 of the Indenture to act as
Trustee under the Indenture.
(b) This Agreement has been duly authorized, executed
anddelivered on behalf of Successor Trustee and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
SECTION 3.02 Successor Trustee hereby accepts its ap-
pointment as successor Trustee, Paying Agent and Security
Registrar under the Indenture and accepts the rights, powers,
duties and obligations of Resigning Trustee as Trustee, Paying
Agent and Security Registrar under the Indenture, upon the
terms and conditions set forth therein, with like effect as if
originally named as Trustee, Paying Agent and Security
Registrar under the Indenture.
SECTION 3.03 References in the Indenture to "Principal
Office" or other similar terms shall be deemed to refer to the
principal corporate trust office of Successor Trustee, which is
presently located at 101 Barclay Street, New York, New York
10286.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 Except as otherwise expressly provided
herein or unless the context otherwise requires, all terms
used herein which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
SECTION 4.02 This Agreement and the resignation, ap-
pointment and acceptance effected hereby shall be effective as of
the opening of business on April 11, 1994.
SECTION 4.03 Resigning Trustee hereby acknowledges payment
or provision for payment in full by the Company of compensation
for all services rendered by Resigning Trustee under Section 607
of the Indenture and reimbursement in full by the Company of the
expenses, disbursements and advances incurred or made by
Resigning Trustee in accordance with the provisions of the
Indenture. Resigning Trustee acknowledges that it relinquishes
any lien or preference it may have upon or with respect to all
property or funds held or collected by it to secure any
amounts due it pursuant to the provisions of Section 613 of
the Indenture. The Company acknowledges its obligation set
forth in Section 607 of the Indenture to indemnify Resigning
Trustee for, and to hold Resigning Trustee harmless against,
any loss, liability and expense incurred without negligence or
bad faith on the part of the Resigning Trustee and arising
out of or in connection with the acceptance or
administration of the trust evidenced by the Indenture
(which obligation shall survive the execution hereof). It
is understood and agreed that this Agreement does not constitute
a waiver by any of the parties hereto of any obligation or
liability which the Resigning Trustee may have incurred in
connection with its serving as Trustee, Paying Agent or
Security Registrar under the Indenture.
SECTION 4.04 This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
SECTION 4.05 This Agreement may be executed in any number
of counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
SECTION 4.06 The Company, Resigning Trustee and Successor
Trustee hereby acknowledge receipt of an executed and ac-
knowledged counterpart of this Agreement and the effectiveness
thereof.
SECTION 4.07 Any and all costs, expenses, charges and
fees incurred in connection with the transfer of the duties
described herein shall be borne by the Resigning Trustee and
the Successor Trustee. The Resigning Trustee and the
Successor Trustee hereby agree that each will be responsible
for its own fees and expenses in connection with the
negotiation and preparation of this Agreement and the transfer of
the duties described herein. In addition, the Resigning
Trustee agrees to pay the costs of the oversilvering of the
existing stock of debentures for the purpose of reflecting the
change of trustee.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement of Resignation, Appointment and Acceptance to be
duly executed and acknowledged and their respective seals to be
affixed hereunto and duly attested all as of the day and year
first above written.
[SEAL] KASH N' KARRY FOOD STORES, INC.
Attest: By: /s/ R. P. Springer
/s/ Richard D. Coleman Name: R. P. Springer
Name: Title: EXECUTIVE VICE
PRESIDENT
Title:
[SEAL]
Attest: BARNETT BANK OF TAMPA,
as Resigning Trustee
/s/ Julia T. Arroyo By: /s/ Lucretia M. Vizcaino
Name: Julia T. Arroyo Name: Lucretia M. Vizcaino
Title:Corporate Trust Title:Assistant Vice President
Specialist
[SEAL]
Attest: THE BANK OF NEW YORK, as
Successor Trustee
/s/ Barbara E. Bennett By: /s/ T. A. Burrell
Name: Barbara E. Bennett Name: T. A. Burrell
Title:Assistant Treasurer Title:Assistant Vice President
Specialist
STATE OF FLORIDA )
: ss:
COUNTY OF HILLSBOROUGH)
On the 30th day of February, 1994, before me personally
came Raymond P. Springer to me known, who, being by me duly
sworn, did depose and say that he resides at 18210 Clear Lake,
Lutz, FL; that he is Executive Vice President of Kash n' Karry
Food Stores, Inc., one of the corporations described in and
which executed the above instrument; that he knows the corporate
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by the
authority of the Board of Directors of said corporation;
and that he signed his name thereto by like authority.
/s/ Brenda L. Barrow
Notary Public
STATE OF FLORIDA )
: ss:
COUNTY OF DUVAL )
On the 7th day of April, 1994, before me personally came
Lucretia M. Vizcaino to me known, who, being by me duly sworn,
did depose and say that he/she resides at 4337 Habana Avenue,
Jacksonville, Florida 32217; that he/she is Assistant Vice
President of Barnett Bank of Tampa, one of the corporations
described in and which executed the above instrument; that he/she
knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by the authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like
authority.
/s/ Danny H. Verus
Notary Public
STATE OF NEW YORK )
: ss :
COUNTY OF NEW YORK )
On the day of April, 1994, before me personally came
T. A. Burrell to me known, who, being by me duly sworn, did
depose and say that he/she resides at 35 Stiles Rd., Edison, N.J,
08817 that he/she is Assistant Vice President of THE BANK OF
NEW YORK, one of the Corporations described in and which executed
the above instrument; that he/she knows the corporate seal of
said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by the authority of
the Board of Directors of said corporation; and that he/she
signed his/her name thereto by like authority.
/s/ Edward Souter
Notary Public
13/SEC.LAW/1994/K6750.AGR.1