AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated
as of November 8, 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"), NATIONSBANK OF FLORIDA,
NATIONAL ASSOCIATION, a national banking association having its
principal corporate trust office at 400 N. Ashley Street, Tampa,
Florida 33602 (the "Resigning Trustee"), and IBJ SCHRODER BANK &
TRUST COMPANY, a bank-ing corporation duly organized and existing
under the laws of the State of New York and having its principal
corporate trust office at One State Street, New York, New York
10004 (the "Successor Trustee").
RECITALS:
WHEREAS, there was originally authorized and issued
$85,000,000 aggregate principal amount of the Company's Senior
Floating Rate Notes due August 2, 1996 (the "Senior Notes") under
a Trust Indenture dated as of September 14, 1989, by and between
the Company and NCNB National Bank of Florida, a national banking
association (the "In-denture");
WHEREAS, the Resigning Trustee is the successor to NCNB
National Bank of Florida as Trustee under the Indenture;
WHEREAS, Section 610(b) of the Indenture provides that the
Trustee may resign at any time 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, on July 15, 1994, the Resigning Trustee gave
written notice to the Company of its resignation as Trustee under
the Indenture, a copy of which resignation is attached hereto as
Exhibit A;
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 the rights, powers, trusts and duties of
the predecessor Trustee;
WHEREAS, pursuant to Sections 305 and 614 of the Indenture,
NCNB National Bank of Florida was appointed Senior Note Registrar
and Paying Agent, respectively;
WHEREAS, the Resigning Trustee is the successor to NCNB
National Bank of Florida as Paying Agent and Senior Note
Registrar under the Indenture;
WHEREAS, the Company desires to appoint the Successor
Trustee as Trustee, Paying Agent and Senior Note Registrar to
succeed the Resigning Trustee in such capacities under the
Indenture; and
WHEREAS, the Successor Trustee is willing to accept such
appointment as successor Trustee, Paying Agent and Senior Note
Registrar under the Indenture;
NOW, THEREFORE, the Company, the Resigning Trustee and the
Successor 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 Section 614 of the Indenture, the
Resigning Trustee hereby notifies the Company that the Resigning
Trustee is hereby resigning as Senior Note Registrar and Paying
Agent under the Indenture.
SECTION 1.02 The Resigning Trustee hereby represents and
warrants to the Successor Trustee that:
(a) No covenant or condition contained in the Indenture has
been waived by the Resigning Trustee or, to the best
knowledge of responsible officers of the Resigning
Trustee's corporate trust department, by the Holders of
the percentage in aggregate principal amount of the
Senior Notes 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 the
Resigning Trustee's corporate trust department,
threatened against the Resigning Trustee before any
court or any governmental authority arising out of any
act or omission of the Resigning Trustee as Trustee
under the Indenture.
(c) As of the effective date of this Agreement, the Resign-
ing Trustee will hold no moneys or property under the
Indenture.
(d) Pursuant to Section 303 of the Indenture, the Resigning
Trustee duly authenticated and delivered, on September
14, 1989, $85,000,000 aggregate principal amount of
Senior Notes, of which $85,000,000 are outstanding as
of the effective date hereof.
(e) Each person who so authenticated the Senior Notes was
duly elected, qualified and acting as an officer of the
Resigning Trustee and empowered to authenticate the
Senior Notes at the respective times of such authenti-
cation and the signature of such person or persons
appearing on such Senior Notes is each such person's
genuine signature.
(f) This Agreement has been duly authorized, executed and
delivered on behalf of the 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, except for the Company's failure to pay
interest due under the Senior Notes on August 2, 1994,
which default is continuing. 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 1012 of the Indenture before the
effective date of this Agreement.
SECTION 1.03 The Resigning Trustee hereby assigns, trans-
fers, delivers and confirms to the Successor Trustee all right,
title and interest of the 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
the Resigning Trustee under the Indenture. The Resigning Trustee
shall execute and deliver such further instruments and shall do
such other things as the Successor Trustee may reasonably require
so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers and trusts hereby
assigned, transferred, delivered and confirmed to the Successor
Trustee as Trustee, Paying Agent and Senior Note Registrar.
SECTION 1.04 Notwithstanding the foregoing, the 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
the Resigning Trustee as Trustee, Paying Agent and Senior Note
Registrar under the Indenture.
SECTION 2.02 The Company hereby certifies that Exhibit B
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 the Resigning
Trustee's resignation as Trustee, Paying Agent and Senior Note
Registrar under the Indenture; (b) appoint the Successor Trustee
as Trustee, Paying Agent and Senior Note 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 the Successor Trustee as Trustee, Paying Agent and
Senior Note Registrar under the Indenture.
SECTION 2.03 The Company hereby appoints the Successor
Trustee as Trustee, Paying Agent and Senior Note Registrar under
the Indenture to succeed to, and hereby vests the Successor
Trustee with, all the rights, powers, duties and obligations of
the Resigning Trustee under the Indenture with like effect as if
originally named as Trustee, Paying Agent and Senior Note
Registrar in the Indenture.
SECTION 2.04 Promptly after the effective date of this
Agreement, the Company shall execute and deliver to the Successor
Trustee a notice substantially in the form of Exhibit C annexed
hereto, for further delivery by the Successor Trustee in
accordance with Section 3.04 hereof.
SECTION 2.05 The Company hereby represents and warrants to
the Resigning Trustee and the Successor Trustee that:
(a) The Company is a corporation duly and validly organized
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 Senior Notes were
validly issued by the Company.
(c) Except as described in the next succeeding paragraph,
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) Except for the Company's failure to pay interest due
under the Senior Notes due on August 2, 1994, which
default is continuing, 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 has
been waived by the Company or, to the best of the
Company's knowledge, by Holders of the percentage in
aggregate principal amount of the Senior Notes 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 and
delivered on behalf of the Company and constitutes its
legal, valid and binding obligation, en-forceable in
accordance with its terms.
(h) All conditions precedent relating to the appointment of
IBJ SCHRODER BANK & TRUST COMPANY as successor Trustee,
Paying Agent and Senior Note Registrar under the
Indenture have been complied with by the Company.
ARTICLE III
THE SUCCESSOR TRUSTEE
SECTION 3.01 The Successor Trustee hereby represents and
warrants to the Resigning Trustee and to the Company that:
(a) The Successor Trustee is not disqualified under the
provisions of Section 608 and is eligible under the
provisions of Sections 609 and 614 of the Indenture to
act as Trustee and Paying Agent under the Indenture.
(b) This Agreement has been duly authorized, executed and
delivered on behalf of the Successor Trustee and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.
SECTION 3.02 The Successor Trustee hereby accepts its
appointment as successor Trustee, Paying Agent and Senior Note
Registrar under the Indenture and accepts the rights, powers,
duties and obligations of the Resigning Trustee as Trustee,
Paying Agent and Senior Note Registrar under the Indenture, upon
the terms and conditions set forth therein, with like effect as
if originally named as Trustee, Paying Agent and Senior Note
Registrar under the Indenture.
SECTION 3.03 References in the Indenture to "corporate
trust office" or other similar terms shall be deemed to refer to
the principal corporate trust office of the Successor Trustee,
which is presently located at One State Street, New York, New
York 10004.
SECTION 3.04 Promptly after the effective date of this
Agreement, the Successor Trustee shall cause a notice,
substantially in the form of Exhibit C annexed hereto, to be sent
to each Holder of the Senior Notes in accordance with the
provisions of Sections 610 and 614 of the Indenture.
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 November 8, 1994 (the "Effective
Date").
SECTION 4.03 The Resigning Trustee hereby acknowledges
payment or provision for payment in full by the Company under
Section 607 of the Indenture of com-pensation for all services
rendered by the Resigning Trustee and reimbursement in full by
the Company of the expenses, disbursements and advances incurred
or made by the Resigning Trustee in accordance with the
provisions of the Indenture. The Company acknowledges its
obligation set forth in Section 607 of the Indenture to indemnify
the Resigning Trustee for, and to hold the 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 Senior Note 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, the Resigning Trustee and the
Successor Trustee hereby acknowledge receipt of an executed and
acknowledged counterpart of this Agreement and the effectiveness
thereof.
SECTION 4.07 The Resigning Trustee agrees that it will be
responsible for all fees, costs and expenses incurred by it in
connection with the negotiation and preparation of this Agreement
and the transfer of the duties described herein, including,
without limitation, compensation for services rendered by John S.
Hiott in connection therewith. Nothing herein shall be deemed to
relieve the Company of its obligations under Section 607 of the
Indenture to pay compensation to the Resigning Trustee for
services rendered in periods prior to the Effective Date, to the
extent such services were unrelated to the transfer of the duties
described herein.
SECTION 4.08 The parties hereto agree that this Agreement
does not constitute an assumption by the Successor Trustee of any
liability of the Resigning Trustee arising out of any breach by
the Resigning Trustee of its duties or obligations under the
Indenture (a "Prior Liability"). The parties hereto further
agree that, notwithstanding any provision hereof, the Resigning
Trustee shall remain liable for any Prior Liabilities. The
Resigning Trustee and Successor Trustee have entered into an
Indemnity Agreement of even date herewith, which Agreement shall
control any claim for indemnity with respect to a Prior Liability
asserted by the Successor Trustee against the Resigning Trustee.
SECTION 4.09 The parties hereto agree that, as of the
Effective Date, all references to the Resigning Trustee as
trustee in the Indenture shall be deemed to refer to the
Successor Trustee. After the Effective Date, all notices or
payments which were required by the terms of the Indenture to be
given or paid to the Resigning Trustee, as trustee, shall be
given or paid to:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Attn: Corporate Trust & Agencies Administration
SECTION 4.10 Nothing contained in this Agreement shall in
any way affect the obligations or rights of the Company, the
Resigning Trustee or any holder of the Senior Notes under the
Indenture. This Agreement shall be binding upon and inure to the
benefit of the Company, the Resigning Trustee and the Successor
Trustee, and their respective successor and assigns.
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.,
as the Company
Attest: By: /s/ R. P. Springer
Name: R. P. Springer
/s/ Richard D. Coleman Title: Executive Vice President
Name: Richard D. Coleman
Title: Secretary
[SEAL] NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Resigning Trustee
Attest:
By: /s/ John S. Hiott
Name: John S. Hiott
/s/ Shari B. Sawyers Title: Vice President
Name: Shari B. Sawyer
Title: Vice President
[SEAL] IBJ SCHRODER BANK & TRUST COMPANY,
as
Successor Trustee
Attest:
By: /s/ Nancy Besse'
Name: Nancy Besse'
/s/ Thomas McCutcheon Title: Vice President
Name: Thomas McCutcheon
Title: Assistant Secretary
13/K94/K9596RES.ARF
STATE OF FLORIDA )
: ss:
COUNTY OF HILLSBOROUGH)
On the 8th day of November, 1994, before me personally came R. P.
Springer to me known, who, being by me duly sworn, did depose and
say that he resides at ; that he is
Exec. V.P. of KASH N' KARRY FOOD STORES, INC., one of the
corporations described in and which executed the above in-
strument; 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. Uhlenhopp
Notary Public
STATE OF SOUTH CAROLINA)
: ss:
COUNTY OF )
On the 3rd day of November, 1994, before me personally came JOHN
S. HIOTT, to me known, who, being by me duly sworn, did depose
and say that he resides at 114 South Waccamaw Avenue, Columbia,
Richmond County, South Carolina; that he is a Vice President of
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, 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/ Beverly M. Miles
Notary Public
13/K94/K9596RES.ARF
STATE OF NEW YORK )
: ss:
COUNTY OF )
On the 3rd day of November, 1994, before me personally came Nancy
Besse' to me known, who, being by me duly sworn, did depose and
say that he/she resides at 375 South End Ave., N.Y.C., N.Y; that
he/she is Vice President of IBJ SCHRODER BANK & TRUST COMPANY,
one of the corpo-rations 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 Direc-tors of said corporation; and that he/she signed
his/her name thereto by like authority.
/s/ Jane Shaheen
Notary Public
13/K94/K9596RES.ARF
EXHIBIT B
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF KASH N' KARRY FOOD STORES, INC.
RESOLVED, that KASH N' KARRY FOOD STORES, INC.
(the "Company") appoints IBJ SCHRODER BANK & TRUST
COMPANY (the "Successor Trustee") as successor Trustee,
Paying Agent and Senior Note Registrar under the
Indenture dated as of September 14, 1989, by and
between the Company and NCNB National Bank of Florida,
as Trustee (the "Indenture"), pursuant to which the
Company issued $85,000,000 aggregate principal amount
of the Company's Senior Floating Rate Notes due August
2, 1996, and accepts the resignation of NATIONSBANK OF
FLORIDA, NATIONAL ASSOCIATION, the successor to NCNB
National Bank of Florida (the "Resigning Trustee"), as
Trustee, Paying Agent and Senior Note Registrar under
the Indenture, such resignation and appointment to be
effective upon the execution, delivery and
effectiveness of an instrument or instruments pursuant
to which the Successor Trustee accepts appointment as
successor Trustee under the Indenture, in substantially
the form attached hereto as Exhibit "A";
AND FURTHER RESOLVED, that the Chairman of the
Board, the President, any Executive Vice President, or
the Secretary of the Company be, and each of them
hereby is, authorized, empowered and directed to
execute and deliver in the name and on behalf of the
Company an instrument or instruments appointing the
Successor Trustee as the successor Trustee and
accepting the resignation of the Resigning Trustee;
AND FURTHER RESOLVED, that the proper officers of
the Company are hereby authorized, empowered and
directed to do or cause to be done all such acts or
things, and to execute and deliver, or cause to be
executed or delivered, any and all such other
agreements, amendments, instruments, certificates,
documents or papers (including, without limitation, any
and all notices and certificates required or permitted
to be given or made on behalf of the Company to the
Successor Trustee or to the Resigning Trustee), under
the terms of any of the executed instruments in
connection with the resignation of the Resigning
Trustee, and the appointment of the Successor Trustee,
in the name and on behalf of the Company as any of such
officers, in his/her discretion, may deem necessary or
advisable to effectuate or carry out the purposes and
intent of the foregoing resolutions; and to perform any
of the Company's obligations under the instruments and
agreements executed on behalf of the Company in
connection with the resignation of the Resigning
Trustee and the appointment of the Successor Trustee.
EXHIBIT C
[ON LETTERHEAD OF THE COMPANY]
To the Holders of Senior Floating Rate Notes due August 2, 1996
of Kash n' Karry Food Stores, Inc.
NOTICE IS HEREBY GIVEN, pursuant to Sections 610 and 614 of the
Indenture (the "Indenture") dated as of September 14, 1989, by
and between Kash n' Karry Food Stores, Inc. (the "Company") and
NCNB National Bank of Florida, as Trustee, that NationsBank of
Florida, National Association, as successor to NCNB National Bank
of Florida, has resigned as Trustee, Paying Agent and Senior Note
Registrar under the Indenture.
Pursuant to Section 611 of the Indenture, IBJ Schroder Bank
& Trust Company, a corporation duly organized and existing under
the laws of the State of New York, has accepted appointment as
Trustee, Paying Agent and Senior Note Registrar under the
Indenture. The address of the principal corporate trust office
of IBJ Schroder Bank & Trust Company is One State Street, New
York, New York, 10004.
The resignation of NationsBank of Florida as Trustee, Paying
Agent and Senior Note Registrar, and the appointment of IBJ
Schroder Bank & Trust Company as successor Trustee, Paying Agent
and Senior Note Registrar, were effective as of the opening of
business on _______________ 1994.
Date: New York, New York
________________, 1994
Very truly yours,
KASH N' KARRY FOOD STORES, INC.
By:
Richard D. Coleman,
Secretary