FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For quarter ended October 30, 1994 Commission File No. 33-25621
KASH N' KARRY FOOD STORES, INC.
(Exact name of registrant as specified in charter)
Delaware 95-4161591
(State of incorporation) (IRS employer identification number)
6422 Harney Road, Tampa, Florida 33610
(Address of registrant's principal executive offices)
(813) 621-0200
(Registrant's telephone number, including area code)
The registrant has filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
and has been subject to such filing requirements for the past 90 days.
As of December 9, 1994, there were 2,819,589 shares outstanding of the
registrant's common stock, $0.01 par value.
<PAGE>
KASH N' KARRY FOOD STORES, INC.
BALANCE SHEETS
(Dollar Amounts in Thousands, Except Per Share Amounts)
ASSETS
October 30, July 31,
1994 1994
----------- ---------
Current assets: (Unaudited)
Cash and cash equivalents $ 12,622 $ 6,852
Accounts receivable 6,439 8,084
Inventories 74,171 76,094
Prepaid expenses and other current assets 2,542 12,805
--------- ---------
Total current assets 95,774 103,835
Property and equipment, at cost, less
accumulated depreciation 165,779 160,491
Favorable lease interests, less accumulated
amortization of $13,969 and $13,543 11,886 12,312
Deferred financing costs, less accumulated
amortization of $23,259 and $22,572 13,695 12,630
Excess of cost over net assets acquired, less
accumulated amortization of $16,996 and $16,288 96,050 96,758
Other assets 3,848 3,867
--------- ---------
Total assets $387,032 $389,893
========= =========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Current portion of long-term debt $ 40,852 $ 42,740
Accounts payable 37,729 34,908
Accrued payroll and benefits 7,017 5,579
Accrued interest 22,906 15,849
Taxes, other than income 6,895 6,056
Other accrued expenses 13,512 11,450
--------- ---------
Total current liabilities 128,911 116,582
Long-term debt, less current obligations 312,327 317,381
Other long-term liabilities 10,917 12,334
Series B Cumulative Preferred Stock of $.01 par
value and a stated value of $100 a share.
Authorized 50,000 shares; 38,750 shares outstanding. 3,875 3,875
Series C Convertible Preferred Stock of $.01 par value.
Authorized 100,000 shares; 77,500 shares outstanding. 775 775
Stockholders' deficit:
Common Stock of $.01 par value. Authorized 4,000,000
shares; 2,819,589 shares outstanding. 28 28
Capital in excess of par value 77,695 77,695
Accumulated deficit (147,459) (138,740)
Less cost of treasury stock - 2,437 shares (37) (37)
--------- ---------
Total stockholders' deficit (69,773) (61,054)
--------- ---------
Total liabilities and stockholders' deficit $387,032 $389,893
========= =========
See accompanying notes to condensed financial statements.
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KASH N' KARRY FOOD STORES, INC.
CONDENSED STATEMENTS OF OPERATIONS
(In Thousands)
(Unaudited)
Thirteen Weeks Ended Thirteen Weeks Ended
October 30, 1994 October 31, 1993
-------------------- --------------------
Sales $240,147 $256,635
Cost of sales 191,732 204,209
--------- ---------
Gross profit 48,415 52,426
Selling, general and
administrative expenses 40,500 44,828
Depreciation and amortization 6,074 5,891
Store closing and other costs -- 11,016
--------- ---------
Operating income (loss) 1,841 (9,309)
Interest expense 10,560 11,141
--------- ---------
Net loss (8,719) (20,450)
Undeclared dividends on Preferred Stock 116 116
--------- ---------
Loss attributable to Common Stock $ (8,835) $(20,566)
========= =========
See accompanying notes to condensed financial statements.
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KASH N' KARRY FOOD STORES, INC.
STATEMENTS OF CASH FLOWS
(In Thousands)
(Unaudited)
Thirteen Thirteen
Weeks Ended Weeks Ended
October 30, 1994 October 31, 1993
---------------- ----------------
Net cash flow from operating activities:
Net loss $ (8,719) $(20,450)
Adjustments to reconcile net loss to net
cash provided (used) by operating
activities:
Depreciation and amortization, excluding
deferred financing costs 6,074 5,891
Store closing and other costs -- 11,016
Amortization of deferred financing costs 687 718
(Increase) decrease in assets:
Accounts receivable 1,645 1,952
Inventories 1,923 (6,931)
Prepaid expenses and other assets 295 1,679
Increase (decrease) in liabilities:
Accounts payable 2,821 5,402
Accrued expenses and other liabilities 9,978 (4,324)
--------- ---------
Net cash provided (used) by
operating activities 14,704 (5,047)
--------- ---------
Cash used by investing activities:
Additions to property and equipment (229) (3,016)
Leased/financed asset additions -- (3,613)
--------- ---------
Net cash used by investing
activities (229) (6,629)
--------- ---------
Cash provided (used) by financing activities:
Borrowings under revolving loan facility 800 15,700
Additions to obligations under
capital leases and notes payable -- 713
Repayments on revolving loan facility (4,500) (2,400)
Repayments on term loan facility (1,463) (1,462)
Repayments of other long-term liabilities (1,790) (1,782)
Other financing activities (1,752) (113)
--------- ---------
Net cash provided (used) by
financing activities (8,705) 10,656
--------- ---------
Net increase (decrease) in cash
and cash equivalents 5,770 (1,020)
Cash and cash equivalents at beginning of period 6,852 2,145
--------- ---------
Cash and cash equivalents at end of period $ 12,622 $ 1,125
========= =========
See accompanying notes to condensed financial statements.
<PAGE>
KASH N' KARRY FOOD STORES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(In Thousands)
(Unaudited)
1. The condensed financial statements presented herein have been prepared
in accordance with the instructions to Form 10-Q and do not include all of
the information and note disclosures required by generally accepted
accounting principles. These statements should be read in conjunction with
the fiscal 1994 Form 10-K filed by the Company. The accompanying condensed
financial statements have not been audited by independent accountants in
accordance with generally accepted auditing standards, but in the opinion of
management such condensed financial statements include all adjustments,
consisting only of normal recurring adjustments, necessary to summarize
fairly the Company's financial position and results of operations. The
results of operations for the thirteen weeks may not be indicative of the
results that may be expected for the fiscal year ending July 30, 1995.
2. On September 3, 1994, the Company began to solicit acceptances of all
impaired parties of a restructuring of the Company which would be implemented
through the consummation of a "prepackaged" plan of reorganization under
Chapter 11 of the United States Bankruptcy Code (the "Plan"). As a result of
this solicitation, the voting requirements prescribed by Section 1126 of the
Bankruptcy Code were satisfied, and on November 9, 1994 the Company filed
with the Bankruptcy Court a voluntary petition for reorganization under
Chapter 11 of the Bankruptcy Code. On December 12, 1994, the Bankruptcy
Court confirmed the Plan, and the Company is scheduled to emerge from
bankruptcy on or about December 27, 1994. During the pendency of the
bankruptcy case, the Company is, with the Bankruptcy Court's approval,
operating its business in the ordinary course, and is paying all pre-petition
and post-petition claims of the Company's general unsecured creditors, trade
creditors and employees in full. The Plan also provides that:
(i) Each $1,000 principal amount of the Company's Old Senior Floating
Rate Notes will be exchanged for (a) new Senior Floating Rate Notes due
February 1, 2003 (the "New Senior Floating Rate Notes") in an original
principal amount equal to $1,000 plus 100% of the accrued interest under the
Old Senior Floating Rate Notes from and including February 3, 1994, through
but not including the petition date, or, at such holder's election, (b) new
11.5% Senior Fixed Rate Notes due February 1, 2003 (the "New Senior Fixed
Rate Notes") in the same original principal amount, or, at such holder's
election, (c) an amount of New Senior Floating Rate Notes and an amount of
New Senior Fixed Rate Notes equal, in the aggregate, to 100% of such claim.
(ii) Each $1,000 principal amount of the Company's Old Senior Fixed
Rate Notes will be exchanged for (a) New Senior Floating Rate Notes in an
original principal amount equal to $1,000 plus 100% of the accrued interest
under the Old Senior Fixed Rate Notes from and including February 2, 1994,
through but not including the petition date, or, at such holder's election,
(b) New Senior Fixed Rate Notes in the same original principal amount, or, at
such holder's election, (c) an amount of New Senior Floating Rate Notes and
an amount of New Senior Fixed Rate Notes equal, in the aggregate, to 100% of
such claim.
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KASH N' KARRY FOOD STORES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(In Thousands)
(Unaudited)
(iii) the Old Subordinated Debentures will be exchanged for
newly-issued common stock of the Company representing 85 percent of the
common stock to be outstanding on the effective date of the Plan (the
"Effective Date");
(iv) Green Equity Investors, L.P., will invest $10 million cash in
exchange for newly-issued common stock of the Company representing 15 percent
of the common stock to be outstanding on the Effective Date;
(v) the Company will enter into a new bank credit agreement with The
CIT Group/Business Credit, Inc., and the lenders under its existing bank
credit agreement, pursuant to which the Company will have credit availability
from and after the Effective Date on the terms set forth therein; and
(vi) all of the existing preferred stock, common stock, and options and
warrants to purchase common stock of the Company will be extinguished.
3. Inventories consist of merchandise held for resale and are stated at the
lower of cost or market; cost is determined using average cost, which
approximates the first-in, first-out (FIFO) method.
4. The Company had a policy of classifying capital expenditures to be
refinanced within one year as prepaid expenses and other current assets.
Under the provisions of the new bank agreement currently under negotiation,
the Company will be significantly restricted from incurring additional
capital lease obligations, and any proceeds from refinancing will not be
available for operating purposes. Therefore, these amounts have been
classified as property, plant, and equipment in the accompanying condensed
financial statements as of October 30, 1994. At July 31, 1994, prepaid
expenses and other current assets included $9,987 of expenditures for
construction in progress expected to be financed.
5. The Company has a retiree medical plan under which medical coverage is
available to current retirees and those active employees who, on August 1,
1993, had attained age 65 with at least 15 years of service. In accordance
with AICPA Statement of Position 90-7 "Financial Reporting by Entities in
Reorganization Under the Bankruptcy Code," which the Company will adopt on
the Effective Date of the Plan, the provisions of Financial Accounting
Standards Board Statement 106 ("SFAS 106") will also be adopted as of that
date. The Company estimates that the expected postretirement benefit
obligation will be approximately $2.0 million.
6. During the first quarter of fiscal 1994, the Company recorded a
non-recurring charge of $11,016 which reflects expenses associated with a
program of closing twelve underperforming stores and expensing costs
associated with unsuccessful financing activities.
7. Cumulative undeclared dividends on Preferred Stock are $2,678 from
October 12, 1988 through October 30, 1994.
<PAGE>
KASH N' KARRY FOOD STORES, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
This analysis should be read in conjunction with the condensed financial
statements.
Results of Operations
Operating cash flow (earnings before interest, taxes, depreciation and
amortization and store closing and other costs) for the quarter ended October
30, 1994 was $7.9 million versus $7.6 million for the quarter ended October
31, 1993. The increase in operating cash flow was attributed to the factors
indicated below.
Sales.
Thirteen Weeks
1994 1993
-------- -----
Sales (in millions) $240.1 $256.6
Change in same store sales 0.34%
Average sales per
store week (in thousands) $186 $172
The Company closed seventeen stores and opened two new stores over the
last year as part of an overall strategic consolidation of its store network.
The Company was able to mitigate the sales impact of these store closings by
transferring a portion of the sales of the closed stores to operating stores;
therefore, there was not a substantial adverse impact on the Company's
operating cash flow.
Gross Profit. The Company had gross profit of $48.4 million, or 20.2%
as a percentage of sales, for the thirteen weeks ended October 30, 1994; and
gross profit of $52.4 million, or 20.4% of sales, for the thirteen weeks
ended October 31, 1993. The decrease in gross margin as a percentage of
sales was due to the effect of lower investment in forward buy inventory and
lower promotional funds, offset by improved perishable margins and increased
efficiency in warehouse and distribution operations.
Selling, General and Administrative Expenses. The Company had selling,
general and administrative expenses of $40.5 million, or 16.9% as a
percentage of sales, for the thirteen weeks ended October 30, 1994 and $44.8
million, or 17.5% as a percentage of sales, for the thirteen weeks ended
October 31, 1993. The reduction of selling, general and administrative
expenses was due to lower store labor costs, reduced corporate overhead
expenses and lower advertising expenditures associated with a comprehensive
operational restructuring of the Company initiated during the quarter; and
reduced operating costs associated with store closings during the last twelve
months. These improvements were partially offset by an increase in workers'
compensation insurance reserves.
<PAGE>
KASH N' KARRY FOOD STORES, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Depreciation and Amortization. The Company's depreciation and
amortization expenses were $6.1 million for the quarter ended October 30,
1994 compared to $5.9 million for the quarter ended October 31, 1993. The
increase is primarily attributable to new stores and major remodels,
partially offset by the retirement of assets of stores closed.
Store Closing and Other Costs. During the first quarter of fiscal 1994,
the Company recorded a non-recurring charge of $11.0 million. This charge
included $1.9 million of costs associated with unsuccessful financing
activities, $4.2 million of favorable lease interests written off in
connection with the closing of twelve underperforming stores, $4.0 million
representing an adjustment to the expected lease liability on closed stores,
net of sublease income, and $.9 million of other store closing and related
expenses.
Interest Expense. The Company's net interest expense for the thirteen
weeks ended October 30, 1994 was $10.6 million and $11.1 million for the
thirteen weeks ended October 31, 1993. The decrease in interest expense was
primarily attributable to decreased interest hedge costs offset partially by
higher interest expense on floating rate debt.
Financial Condition
On November 9, 1994, the Company filed with the Bankruptcy Court a
voluntary petition for reorganization under Chapter 11 of the Bankruptcy
Code; on December 12, 1994, the Bankruptcy Court confirmed the Company's Plan
of Reorganization (the "Plan"); and the effective date of the Plan is
scheduled on or about December 27, 1994. During the pendency of the
bankruptcy case, the Company is, with the Bankruptcy Court's approval,
operating its business in the ordinary course, and is paying all pre-petition
and post-petition claims of the Company's general unsecured creditors, trade
creditors, and employees in full. The provisions of the Plan, which are
discussed in Footnote 2 to the accompanying condensed financial statements,
will have an immediate beneficial impact on the Company's financial
condition, primarily as a result of significantly deleveraging the Company's
balance sheet.
Prior to November 9, 1994, the Company's Bank Credit Agreement provided
for a revolving credit facility with individual sublimits of $30.0 million
for working capital loans and $25.0 million for letters of credit, with a
maximum of $50.0 million outstanding under the total facility at any one
time. As of October 30, 1994, the Company had $25.0 million borrowed under
the working capital line and $16.7 million of letters of credit outstanding.
<PAGE>
During the weeks preceding the bankruptcy filing, the Company, with the
approval of its existing bank lenders, increased its cash position by fully
drawing the remaining availability under its working capital line. On
November 9, 1994, the Bankruptcy Court approved the use of cash collateral
and a letter of credit facility of $17.7 million under the existing Bank
Credit Agreement, and additional debtor-in-possession financing provided by
BankAmerica Business Credit, Inc. of $11.2 million, subject to certain terms
and conditions. The Company has received commitments from CIT Group/Business
Credit Inc. and its existing bank lenders to provide a new 3-year $35 million
term loan facility and a new 3-year $50 million revolving credit facility
upon the Company's emergence from bankruptcy on the effective date.
Beginning August 1, 1994, the Company implemented a new business
strategy to improve the Company's financial performance. The focus of this
strategy is to conserve capital, reduce administrative and operating
expenses, and direct management attention toward the operation of existing
stores. During the first quarter of fiscal 1995 the Company has
significantly improved its liquidity by instituting a payment moratorium on
interest due on the Senior Fixed Rate Notes, Senior Floating Rate Notes, and
Subordinated Debentures; managing working capital; and reducing operating
expenses and capital expenditures. These actions have allowed the Company to
begin investing in forward buy inventory again.
Consistent with its new business strategy, the Company does not
anticipate opening or acquiring any new stores during the current fiscal
year, but expects that capital expenditures of approximately $7.4 million
will be used to upgrade its existing store facilities.
The Company has entered into interest rate hedging transactions to
reduce its exposure to increases in short-term interest rates on the majority
of its floating rate debt which extend through August 1995. The Company does
not believe that there would be any material impact on the accompanying
condensed financial statements as of October 30, 1994 by liquidating these
contracts.
Based upon the Company's ability to generate working capital through its
operations and the new $50.0 million bank revolving credit facility that will
be available upon its emergence from bankruptcy, the Company believes that it
has the financial resources necessary to pay its capital obligations and
implement its business plan.
Effects of Inflation
The Company's primary costs, inventory and labor, are affected by a
number of factors that are beyond its control, including availability and
price of merchandise, the competitive climate and general and regional
economic conditions. As is typical of the supermarket industry, the Company
has generally been able to maintain margins by adjusting its retail prices,
but competitive conditions may from time to time render it unable to do so
while maintaining its market share.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
On November 9, 1994, the Company filed with the United States District
Court for the District of Delaware (the "Bankruptcy Court") a voluntary
petition for reorganization pursuant to Chapter 11 of United States
Bankruptcy Code, styled In re: Kash n' Karry Food Stores, Inc., Chapter 11
Case No. 94-1082 (HSB). On December 12, 1994, the Bankruptcy Court entered
an order confirming the Company's First Amended Plan of Reorganization, as
amended by notices of technical modifications thereto filed with the
Bankruptcy Court on November 9, 1994, and December 12, 1994 (the "Plan").
The effective date on which the Plan will be consummated (the "Effective
Date") is anticipated to occur on or before December 27, 1994. During the
pendency of the bankruptcy case, the Company is, with the Bankruptcy Court's
approval, operating its business in the ordinary course, and is paying all
pre-petition and post-petition claims of the Company's general unsecured
creditors, trade creditors and employees in full.
Under the terms of the Plan, on the Effective Date, each of the
following transactions will occur:
(1) each $1,000 principal amount of the Company's $85 million Senior
Floating Rate Notes due August 2, 1996 (the "Old Senior Floating Rate Notes")
will be exchanged for (a) new Senior Floating Rate Notes due February 1, 2003
(the "New Senior Floating Rate Notes") in an original principal amount equal
to $1,000 plus 100% of the accrued interest under the Old Senior Floating
Rate Notes from and including February 3, 1994, through but not including the
petition date, or, at such holder's election, (b) new 11.5% Senior Fixed Rate
Notes due February 1, 2003 (the "New Senior Fixed Rate Notes") in the same
original principal amount, or, at such holder's election, (c) an amount of
New Senior Floating Rate Notes and an amount of New Senior Fixed Rate Notes
equal, in the aggregate, to 100% of such claim;
(2) each $1,000 principal amount of the Company's $50 million 12-3/8%
Senior Fixed Rate Notes due February 1, 1999 (the "Old Senior Fixed Rate
Notes") will be exchanged for (a) New Senior Floating Rate Notes in an
original principal amount equal to $1,000 plus 100% of the accrued interest
under the Old Senior Fixed Rate Notes from and including February 2, 1994,
through but not including the petition date, or, at such holder's election,
(b) New Senior Fixed Rate Notes in the same original principal amount, or, at
such holder's election, (c) an amount of New Senior Floating Rate Notes and
an amount of New Senior Fixed Rate Notes equal, in the aggregate, to 100% of
such claim;
(3) the Company's $105 million 14% Subordinated Debentures due February
1, 2001 (the "Old Subordinated Debentures") will be exchanged for
approximately 2,635,000 shares of newly-issued common stock of the Company,
representing in the aggregate 85 percent of the common stock to be
outstanding on the Effective Date;
(4) Green Equity Investors, L.P., will invest $10 million cash in
exchange for 465,000 shares of newly-issued common stock of the Company
representing 15 percent of the common stock to be outstanding on the
Effective Date;
(5) all of the existing preferred stock, common stock, and options and
warrants to purchase common stock of the Company will be extinguished;
<PAGE>
(6) the Company will enter into a new bank credit agreement with
CIT Group/Business Credit, Inc., and the lenders under its existing bank
credit agreement, pursuant to which the Company will have credit availability
from and after the Effective Date on the terms set forth therein; and
(7) the rights of trade creditors and other creditors of the Company
will be unimpaired.
Except for the pending bankruptcy case, there are no material legal
proceedings to which the Company is a party or to which any of its property
is subject. The Company is a party to ordinary and routine litigation
incidental to its business.
Item 3. Defaults Upon Senior Securities.
The Company did not make interest payments due on August 1, 1994, and
August 2, 1994, respectively, under the Old Senior Fixed Rate Notes, the Old
Subordinated Debentures, and the Old Senior Floating Rate Notes. As a result
of the Company's pending bankruptcy proceeding, the automatic stay provisions
of the U.S. Bankruptcy Code preclude the holders of such obligations from
enforcing remedies with respect to the occurrence of an event of default
thereunder.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
Exhibit No. Description
2 First Amended Plan of Reorganization filed by the Company with the
United States Bankruptcy Court of the District of Delaware, as
confirmed on December 12, 1994. (Exhibits to the Plan have been
omitted in reliance on Item 601(b)(2) of Regulation S-K. The
Company agrees to furnish supplementally to the Commission a copy
of any omitted exhibit upon request.)
4.1(a) Indenture entered into between the Company and First Florida Bank,
N.A., relating to the $105 million 14% Subordinated Debentures due
February 1, 2001, dated as of February 8, 1989 (previously filed as
Exhibit 4.2(a) to the Company's Annual Report on Form 10-K for the
period ended July 30, 1989, which exhibit is hereby incorporated by
reference).
4.1(b) Agreement of Resignation, Appointment and Acceptance dated as of
April 11, 1994, by and among the Company, Barnett Bank of Tampa (as
successor in interest to First Florida Bank, N.A.), as resigning
Trustee, and The Bank of New York, as successor Trustee (previously
filed as Exhibit 4.1(b) to the Company's Quarterly Report on Form
10-Q for the period ended May 1, 1994, which exhibit is hereby
incorporated by reference).
4.2 Piggyback Registration Rights Agreement between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated dated February
8, 1989 (previously filed as Exhibit 4.5 to the Company's Annual
Report on Form 10-K for the period ended July 30, 1989, which
exhibit is hereby incorporated by reference).
<PAGE>
4.3(a) Indenture entered into between the Company and NCNB National Bank
of Florida, as Trustee, relating to the $85 million Senior Floating
Rate Notes due August 2, 1996, dated as of September 14, 1989
(previously filed as Exhibit 4.6(a) to the Company's Annual Report
on Form 10-K for the period ended July 30, 1989, which exhibit is
hereby incorporated by reference).
4.3(b) Agreement of Resignation, Appointment and Acceptance dated as of
November 8, 1994, by and among the Company, NationsBank of Florida,
National Association (as successor in interest to NCNB National
Bank of Florida), as resigning Trustee, and IBJ Schroder Bank &
Trust Company, as successor Trustee.
4.4(a) Indenture entered into between the Company and AmeriTrust Texas,
N.A., as Trustee, relating to the $50 Million Senior Notes due 1999
dated as of January 29, 1992 (previously filed as Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q for the period ended
February 2, 1992, which exhibit is hereby incorporated by
reference).
4.4(b) Registration Rights Agreement dated as of January 29, 1992, between
the Company and the purchasers of the Senior Notes due 1999
(previously filed as Exhibit 28.1 to the Company's Quarterly Report
on Form 10-Q for the period ended February 2, 1992, which exhibit
is hereby incorporated by reference).
4.4(c) Indenture Amendment No. 1 entered into between the Company and
AmeriTrust Texas, N.A., as Trustee, relating to the Series B Senior
Notes due 1999 dated as of July 2, 1992 (previously filed as
Exhibit 4.7(c) to the Company's Amendment No. 3 to Registration
Statement on Form S-1, Registration No. 33-47324, which exhibit is
hereby incorporated by reference).
10.1(a)(i)Amended and Restated Credit Agreement dated as of September 14,
1989, among the Company, certain lenders, and Security Pacific
National Bank, as Agent (previously filed as Exhibit 10.4(g) to the
Company's Annual Report on Form 10-K for the period ended July 30,
1989, which exhibit is hereby incorporated by reference).
10.1(a)(ii)Agreement to Amend and Restate the Credit Agreement, dated as of
October 12, 1988 among the Company, certain senior lenders, and
Security Pacific National Bank, as Agent, dated as of September 14,
1989, among the Company, certain senior lenders and Security
Pacific National Bank, as Agent (previously filed as Exhibit
10.1(a)(i) to the Company's Registration Statement on Form S-1,
Registration No. 33-65070, which exhibit is hereby incorporated by
reference).
10.1(a)(iii)Assignment and Acceptance Agreement among the Company, Security
Pacific National Bank, and California Federal Bank, dated as of
September 14, 1989 (previously filed as Exhibit 10.1(a)(ii) to the
Company's Registration Statement on Form S-1, Registration No.
33-65070, which exhibit is hereby incorporated by reference).
10.1(b) First Amendment to Amended and Restated Credit Agreement and
Limited Waiver among the Company, certain lenders, and Security
Pacific National Bank, as Agent, dated December 28, 1989
(previously filed as Exhibit 10.4(h) to the Company's Annual Report
on Form 10-K for the period ended July 29, 1990, which exhibit is
hereby incorporated by reference).
<PAGE>
10.1(c) Second Amendment to Amended and Restated Credit Agreement among the
Company, certain lenders, and Security Pacific National Bank, as
Agent, dated as of July 10, 1990 (previously filed as Exhibit
10.4(i) to the Company's Annual Report on Form 10-K for the period
ended July 29, 1990, which exhibit is hereby incorporated by
reference).
10.1(d) Third Amendment to Amended and Restated Credit Agreement dated as
of November 27, 1990, among the Company, certain lenders, and
Security Pacific National Bank, as Agent (previously filed as
Exhibit 28.1 to the Company's Quarterly Report on Form 10-Q for the
period ended April 28, 1991, which exhibit is hereby incorporated
by reference).
10.1(e) Fourth Amendment to Amended and Restated Credit Agreement and
Limited Waiver among the Company, certain senior lenders, and
Security Pacific National Bank, as Agent, dated as of November 25,
1991 (previously filed as Exhibit 28.1 to the Company's Quarterly
Report on Form 10-Q for the period ended November 3, 1991, which
exhibit is hereby incorporated by reference).
10.1(f) Fifth Amendment to Amended and Restated Credit Agreement and
Limited Waiver and Instruction dated as of January 29, 1992, among
the Company, certain lenders, and Security Pacific National Bank
(previously filed as Exhibit 28.2 to the Company's Quarterly Report
on Form 10-Q for the period ended February 2, 1992, which exhibit
is hereby incorporated by reference).
10.1(g) Sixth Amendment to Credit Agreement dated as of January 4, 1993,
among the Company, certain lenders, and Bank of America National
Trust and Savings Association, as successor by merger to Security
Pacific National Bank, as Agent (previously filed as Exhibit
10.1(g) to the Company's Registration Statement on Form S-1,
Registration No. 33-65070, which exhibit is hereby incorporated by
reference).
10.1(h) Limited Waiver dated as of July 1, 1993, among the Company, certain
lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(i) to the
Company's Registration Statement on Form S-1, Registration No.
33-65070, which exhibit is hereby incorporated by reference).
10.1(i) Limited Waiver dated as of September 22, 1993, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(i) to the
Company's Quarterly Report on Form 10-Q for the period ended May 1,
1994, which exhibit is hereby incorporated by reference).
10.1(j) Limited Waiver dated as of December 15, 1993, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(i) to the
Company's Quarterly Report on Form 10-Q for the period ended
January 30, 1994, which exhibit is hereby incorporated by
reference).
<PAGE>
10.1(k) Seventh Amendment to Credit Agreement dated as of February 1, 1994,
among the Company, certain lenders, and Bank of America National
Trust and Savings Association, as successor by merger to Security
Pacific National Bank, as Agent (previously filed as Exhibit
10.1(k) to the Company's Quarterly Report on Form 10-Q for the
period ended May 1, 1994, which exhibit is hereby incorporated by
reference).
10.1(l) Limited Waiver dated as of March 11, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(l) to the
Company's Quarterly Report on Form 10-Q for the period ended May 1,
1994, which exhibit is hereby incorporated by reference).
10.1(m) Eighth Amendment to Credit Agreement dated as of April 12, 1994,
among the Company, certain lenders, and Bank of America National
Trust and Savings Association, as successor by merger to Security
Pacific National Bank, as Agent (previously filed as Exhibit
10.1(m) to the Company's Quarterly Report on Form 10-Q for the
period ended May 1, 1994, which exhibit is hereby incorporated by
reference).
10.1(n) Limited Waiver dated as of July 5, 1994, among the Company, certain
lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(n) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.1(o) Limited Waiver dated as of September 1, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(o) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.1(p) Limited Waiver and Consent dated as of September 8, 1994, among the
Company, certain lenders, and Bank of America National Trust and
Savings Association, as successor by merger to Security Pacific
National Bank, as Agent (previously filed as Exhibit 10.1(p) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.1(q) Limited Waiver dated as of September 14, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(q) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.1(r) Limited Waiver dated as of September 29, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(r) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
<PAGE>
10.1(s) Limited Waiver dated as of October 27, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(s) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.1(t) Limited Waiver dated as of November 1, 1994, among the Company,
certain lenders, and Bank of America National Trust and Savings
Association, as successor by merger to Security Pacific National
Bank, as Agent (previously filed as Exhibit 10.1(t) to the
Company's Annual Report on Form 10-K for the period ended July 31,
1994, which exhibit is hereby incorporated by reference).
10.2 Form of Indemnity Agreement between the Company and its directors
and certain of its officers (previously filed as Exhibit 10.3 to
the Company's Registration Statement on Form S-1, Registration No.
33-25621, which exhibit is hereby incorporated by reference).
10.3(a) Restated 1988 Management Stock Option Plan (effective for the Plan
Years beginning on and after July 30, 1990) (previously filed as
Exhibit 10.3(a) to the Company's Annual Report on Form 10-K for the
period ended July 28, 1991, which exhibit is hereby incorporated by
reference).
10.3(b) Form of Management Stock Option Agreement to be entered into
between the Company and certain key employees with respect to
options granted for Plan Years beginning on and after July 30, 1990
(previously filed as Exhibit 10.3(b) to the Company's Annual Report
on Form 10-K for the period ended July 28, 1991, which exhibit is
hereby incorporated by reference).
10.3(c) Form of Amendment to the Management Stock Option Agreement under
the 1988 Restated Management Stock Option Plan dated as of June 19,
1992, entered into between the Company and the holder of each
outstanding option granted under the Restated 1988 Management Stock
Option Plan (previously filed as Exhibit 10.3(c) to the Company's
Annual Report on Form 10-K for the period ended August 2, 1992,
which exhibit is hereby incorporated by reference).
10.3(d) Form of Second Amendment to Stock Option Agreement dated December
1988 under Restated 1988 Management Stock Option Plan, dated as of
December 9, 1993, entered into by and between the Company and the
holder of each outstanding option granted under the Restated 1988
Management Stock Option Plan for the Plan Year ended July 31, 1989
(previously filed as Exhibit 10.3(d) to the Company's Quarterly
Report on Form 10-Q for the period ended January 30, 1994, which
exhibit is hereby incorporated by reference).
10.3(e) Form of Restricted Stock Agreement to be entered into between the
Company and certain key employees with respect to stock issued
pursuant to options granted under the Restated 1988 Management
Stock Option Plan (previously filed as Exhibit 10.3(d) to the
Company's Registration Statement on Form S-1, Registration No.
33-65070, which exhibit is hereby incorporated by reference).
10.4(a) 1991 Management Stock Option Plan (previously filed as Exhibit
28.2(a) to the Company's Quarterly Report on Form 10-Q for the
period ended November 3, 1991, which exhibit is hereby incorporated
by reference).
<PAGE>
10.4(b) Form of Stock Option Agreement entered into between the Company and
certain key employees with respect to the options granted pursuant
to the 1991 Management Stock Option Plan (previously filed as
Exhibit 28.2(b) to the Company's Quarterly Report on Form 10-Q for
the period ended November 3, 1991, which exhibit is hereby
incorporated by reference).
10.4(c) Form of Restricted Stock Agreement to be entered into among the
Company, Green Equity Investors, L.P. ("GEI") and certain key
employees with respect to stock issued pursuant to options granted
pursuant to the 1991 Management Stock Option Plan (previously filed
as Exhibit 28.2(c) to the Company's Quarterly Report on Form 10-Q
for the period ended November 3, 1991, which exhibit is hereby
incorporated by reference).
10.5 Amended and Restated Kash n' Karry Retirement Estates and Trust
dated October 14, 1993, effective as of January 1, 1992 (previously
filed as Exhibit 10.5 to the Company's Annual Report on Form 10-K
for the period ended August 1, 1993, which exhibit is hereby
incorporated by reference).
10.6 Key Employee Stock Purchase Plan (previously filed as Exhibit 10.6
to the Company's Registration Statement on Form S-1, Registration
No. 33-25621, which exhibit is hereby incorporated by reference).
10.7 Deferred Compensation Agreement dated October 12, 1988, between the
Company and Ronald J. Floto (previously filed as Exhibit 10.7 to
the Company's Registration Statement on Form S-1, Registration No.
33-25621, which exhibit is hereby incorporated by reference).
10.8 Trademark License Agreement dated as of October 12, 1988, between
the Company and Lucky Stores, Inc. (previously filed as Exhibit
10.11 to the Company's Registration Statement on Form S-1,
Registration No. 33-25621, which exhibit is hereby incorporated by
reference).
10.9 Warrant Agreement dated as of October 12, 1988, between the Company
and Lucky Stores, Inc. (previously filed as Exhibit 10.15 to the
Company's Registration Statement on Form S-1, Registration No.
33-25621, which exhibit is hereby incorporated by reference).
10.10 Management Bonus Plan (previously filed as Exhibit 10.16 to the
Company's Registration Statement on Form S-1, Registration No.
33-25621, which exhibit is hereby incorporated by reference).
10.11(a) Mortgage, Fixture Filing, Security Agreement and Assignment of
Rents between the Company, as Mortgagor, and Sun Life Insurance Co.
of America ("Sun Life"), dated as of September 7, 1989 (previously
filed as Exhibit 28.1(a) to the Company's Quarterly Report on Form
10-Q for the period ended October 29, 1989, which exhibit is hereby
incorporated by reference).
10.11(b) Assignment of Rents and Leases and Other Income between the Company
and Sun Life dated as of September 7, 1989 (previously filed as
Exhibit 28.1(b) to the Company's Quarterly Report on Form 10-Q for
the period ended October 29, 1989, which exhibit is hereby
incorporated by reference).
<PAGE>
10.11(c) Fixture Financing Statement between the Company and Sun Life filed
with the Clerk of Hillsborough County, Florida, on September 11,
1989 (previously filed as Exhibit 28.1(c) to the Company's
Quarterly Report on Form 10-Q for the period ended October 29,
1989, which exhibit is hereby incorporated by reference).
10.11(d) Partial Release of Mortgage executed by Security Pacific National
Bank as of September 7, 1989 (previously filed as Exhibit 28.1(d)
to the Company's Quarterly Report on Form 10-Q for the period ended
October 29, 1989, which exhibit is hereby incorporated by
reference).
10.12(a) Mortgage between the Company, as Mortgagor, and Ausa Life Insurance
Company ("Ausa"), as Mortgagee, dated as of November 21, 1989
(previously filed as Exhibit 28.2(a) to the Company's Quarterly
Report on Form 10-Q for the period ended October 29, 1989, which
exhibit is hereby incorporated by reference).
10.12(b) Conditional Assignment of Leases, Rents and Contracts between the
Company and Ausa dated as of November 21, 1989 (previously filed as
Exhibit 28.2(b) to the Company's Quarterly Report on Form 10-Q for
the period ended October 29, 1989, which exhibit is hereby
incorporated by reference).
10.12(c) Financing Statement between the Company and Ausa filed with the
Clerk of Hillsborough County, Florida, on November 22, 1989
(previously filed as Exhibit 28.2(c) to the Company's Quarterly
Report on Form 10-Q for the period ended October 29, 1989, which
exhibit is hereby incorporated by reference).
10.13(a) Form of Deferred Compensation Agreement dated as of December 21,
1989, between the Company and key employees and a select group of
management (KESP) (previously filed as Exhibit 28.3(a) to the
Company's Quarterly Report on Form 10-Q for the period ended
January 28, 1990, which exhibit is hereby incorporated by
reference).
10.13(b) Form of Deferred Compensation Agreement dated as of December 21,
1989, between the Company and Ronald J. Floto (KESP) (previously
filed as Exhibit 28.3(b) to the Company's Quarterly Report on Form
10-Q for the period ended January 28, 1990, which exhibit is hereby
incorporated by reference).
10.13(c) Master First Amendment to Deferred Compensation Agreements, dated
as of November 11, 1991, between the Company and the key employees
party thereto (previously filed as Exhibit 28.3 to the Company's
Quarterly Report on Form 10-Q for the period ended November 3,
1991, which exhibit is hereby incorporated by reference).
10.13(d) Master Second Amendment to Deferred Compensation Agreements, dated
as of December 30, 1993, between the Company and the key employees
party thereto (previously filed as Exhibit 10.13(d) to the
Company's Quarterly Report on Form 10-Q for the period ended
January 30, 1994, which exhibit is hereby incorporated by
reference).
<PAGE>
10.14(a) Stockholders Agreement dated as of November 26, 1991, among The
Fulcrum III Limited Partnership and The Second Fulcrum III Limited
Partnership (collectively, the "Fulcrum Partnership"), GEI and the
Company (previously filed as Exhibit 28.2 to the Company's Current
Report on Form 8-K dated November 26, 1991, which exhibit is hereby
incorporated by reference).
10.14(b) Stock Purchase Agreement dated as of November 15, 1991, among the
Company, GEI and the Fulcrum Partnerships (previously filed as
Exhibit 10.15(b) to the Company's Registration Statement on Form
S-1, Registration No. 33-65070, which exhibit is hereby
incorporated by reference).
10.15 Stockholders Agreement dated as of June 19, 1992, between the
Company, GEI and certain employee-stockholders (previously filed as
Exhibit 10.17 to the Company's Annual Report on Form 10-K for the
period ended August 2, 1992, which exhibit is hereby incorporated
by reference).
10.16 Stockholders Agreement dated as of May 3, 1993, between the
Company, GEI and certain employee-stockholders (previously filed as
Exhibit 10.17 to the Company's Registration Statement on Form S-1,
Registration No. 33-65070, which exhibit is hereby incorporated by
reference).
10.17 Leave Agreement dated as of November 30, 1992, between the Company
and Thomas A. Whipple (previously filed as Exhibit 10.18 to the
Company's Registration Statement on Form S-1, Registration No.
33-65070, which exhibit is hereby incorporated by reference).
10.18 Ronald J. Floto Severance Pay Agreement dated as of February 9,
1994, by and between the Company and Ronald J. Floto (previously
filed as Exhibit 10.18 to the Company's Quarterly Report on Form
10-Q for the period ended January 30, 1994, which exhibit is hereby
incorporated by reference).
10.19 Form of Senior Management Severance Pay Agreement dated as of
February 9, 1994, by and between the Company and the key employees
party thereto (previously filed as Exhibit 10.19 to the Company's
Quarterly Report on Form 10-Q for the period ended January 30,
1994, which exhibit is hereby incorporated by reference).
10.20(a) Note and Warrant Purchase Agreement dated as of February 1, 1994,
by and between the Company and GEI (previously filed as Exhibit
10.20(a) to the Company's Quarterly Report on Form 10-Q for the
period ended May 1, 1994, which exhibit is hereby incorporated by
reference).
10.20(b) Stock Purchase Warrants dated as of February 2, 1994, issued by the
Company to GEI (previously filed as Exhibit 10.20(b) to the
Company's Quarterly Report on Form 10-Q for the period ended May 1,
1994, which exhibit is hereby incorporated by reference).
(b) Reports on Form 8-K:
No reports on Form 8-K have been filed during the quarter ended October
30, 1994.
<PAGE>
SIGNATURES
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 thereunto duly authorized.
KASH N' KARRY FOOD STORES, INC.
Date: December 14, 1994 /s/ Raymond P. Springer
-------------------------------
Raymond P. Springer
Executive Vice President,
Administration
Date: December 14, 1994 /s/ Richard D. Coleman
-------------------------------
Richard D. Coleman
Vice President, Controller
and Secretary
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<FISCAL-YEAR-END> JUL-30-1995
<PERIOD-START> AUG-01-1994
<PERIOD-END> OCT-30-1994
<CASH> 12,622
<SECURITIES> 0
<RECEIVABLES> 6,439
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<INVENTORY> 74,171
<CURRENT-ASSETS> 95,774
<PP&E> 251,880
<DEPRECIATION> 86,101
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4,650
0
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<TOTAL-LIABILITY-AND-EQUITY> 387,032
<SALES> 240,147
<TOTAL-REVENUES> 240,147
<CGS> 191,732
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
In re
Chapter 11
KASH N' KARRY FOOD STORES, INC., Case No. 94-1082
Hon. Helen S. Balick
Debtor.
FIRST AMENDED PLAN OF REORGANIZATION
OF
KASH N' KARRY FOOD STORES, INC.
December 12, 1994
Kramer, Levin, Naftalis, Young, Conaway, Stargatt
Nessen, Kamin & Frankel & Taylor
Counsel to the Debtor Counsel to the Debtor
and Debtor-in-Possession and Debtor-in-Possession
919 Third Avenue 11th Floor -- Rodney Square
New York, New York 10022 P.O. Box 391
Wilmington, Delaware 19899
<PAGE>
TABLE OF CONTENTS
Page
Article I Definitions................................... A-3
Article II. Administrative Expense Claims and Priority
Tax Claims....................................A-11
Article III. Classification................................A-12
Article IV. Treatment of Unimpaired Classes...............A-13
Article V. Treatment of Impaired Classes.................A-14
Article VI. No Bar Date; Disputed Claims; Objections
to Claims.....................................A-16
Article VII. Implementation of the Plan....................A-17
Article VIII. Executory Contracts and Unexpired Leases......A-23
Article IX. Conditions Precedent..........................A-24
Article X. Modification, Revocation or Withdrawal of
the Plan......................................A-25
Article XI. Retention of Jurisdiction.....................A-26
Article XII. Miscellaneous Provisions......................A-27
Exhibits
A New Bank Credit Agreement Term Sheet
B Form of New Management Services Agreement
C Form of New Senior Fixed Rate Note Indenture
D Form of New Senior Floating Rate Note Indenture
E Form of Restated Certificate of Incorporation
F Form of Securities Purchase Agreement
EXHIBITS TO THE PLAN ARE AVAILABLE UPON WRITTEN REQUEST TO
KRAMER, LEVIN, NAFTALIS, NESSEN, KAMIN & FRANKEL, 919 THIRD
AVENUE, NEW YORK, NEW YORK 10022, ATTN: MICHAEL J. SAGE
<PAGE>
Kash n' Karry Food Stores, Inc., as debtor and debtor-in-
possession, proposes this first amended plan of reorganization
pursuant to section 1121 (a) of title 11 of the United States
Code:
ARTICLE I.
DEFINITIONS
Rules of Interpretation. As used herein, the following
terms have the respective meanings specified below, and such
meanings shall be equally applicable to both the singular and
plural, and masculine and feminine, forms of the terms defined.
The words "herein," "hereof," "hereto," "hereunder" and others of
similar import, refer to the Plan as a whole and not to any
particular section, subsection or clause contained in the Plan.
Captions and headings to articles, sections and exhibits are
inserted for convenience of reference only and are not intended
to be part of or to affect the interpretation of the Plan. The
rules of construction set forth in section 102 of the Bankruptcy
Code shall apply. In computing any period of time prescribed or
allowed by the Plan, the provisions of Bankruptcy Rule 9006(a)
shall apply. Any capitalized term used herein that is not
defined herein but is defined in the Bankruptcy Code shall have
the meaning ascribed to such term in the Bankruptcy Code. In
addition to such other terms as are defined in other sections of
the Plan, the following terms (which appear in the Plan as
capitalized terms) have the following meanings as used in the
Plan.
1.01. Administrative Expense Claim means any Claim
(including, without limitation, any Claim arising under the DIP
Facility or the Cash Collateral Order) entitled to the priority
afforded by sections 503(b) and 507(a)(1) of the Bankruptcy Code.
1.02. Allowed means, with respect to any Claim, a Claim as
to which no objection to the allowance thereof, or motion to
estimate for purposes of allowance, shall have been Filed on or
before any applicable period of limitation that may be fixed by
the Bankruptcy Code, the Bankruptcy Rules and/or the Bankruptcy
Court, or as to which any objection, or any motion to estimate
for purposes of allowance, shall have been so Filed, to the
extent allowed by a Final Order; provided that all Class 6 Claims
(excluding any Claims arising pursuant to Article VIII of the
Plan) shall be treated for all purposes as if the Chapter 11 Case
was not filed, and the determination of whether any such Claim
shall be allowed and/or the amount thereof (which shall not be
listed on the Schedules, and as to which no proof of Claim need
be Filed) shall be determined, resolved or adjudicated, as the
case may be, in the manner in which such Claim would have been
determined, resolved or adjudicated if the Chapter 11 Case had
not been commenced.
<PAGE>
1.03. Ballot Agent means Shawmut Bank Connecticut, N.A.
1.04. Ballot Record Date means August 29, 1994.
1.05. Ballot Return Date means 5:00 p.m., New York City
time, on November 8, 1994, unless and to the extent such date is
extended by the Debtor in accordance with the provisions of the
Disclosure Statement.
1.06. Ballots means the ballots and/or master ballots
distributed to the holders of Old Senior Floating Rate Notes, Old
Senior Fixed Rate Notes, Old Subordinated Debentures and Banks'
Secured Claims for the purposes of voting on the Plan and, with
respect to the holders of Old Senior Floating Rate Notes and Old
Senior Fixed Rate Notes, making the election contemplated by
Section 5.02 hereof.
1.07. Bankruptcy Code means the Bankruptcy Reform Act of
1978, as amended from time to time, set forth in sections 101 et
seq. of title 11 of the United States Code.
1.08. Bankruptcy Court means the United States Bankruptcy
Court for the District of Delaware, or such other court that
exercises jurisdiction over the Chapter 11 Case or any proceeding
therein, including the United States District Court for the
District of Delaware to the extent that the reference of the
Chapter 11 Case or any proceeding therein is withdrawn.
1.09. Bankruptcy Rules means, collectively, the Federal
Rules of Bankruptcy Procedure, as amended and promulgated under
section 2075, title 28 of the United States Code, and the local
rules and standing orders of the Bankruptcy Court.
1.10. Banks means Bank of America National Trust and
Savings Association, as agent and lender, Wells Fargo Bank, N.A.,
Barnett Bank of Tampa and NationsBank of Florida, N.A., as
lenders pursuant to the Credit Agreement, and their successors
and assigns thereunder.
1.11. Banks' Secured Claims means the Secured Claims of the
Banks which, for purposes of the Plan, shall be deemed to be
Allowed in an amount equal to the excess of (a) the sum of
(i) all of the Obligations (as such term is defined in the Credit
Agreement) as of the Petition Date (including, without
limitation, the amounts described in the Cash Collateral Order),
(ii) an amount equal to 100% of the interest that accrued
pursuant to the Credit Agreement at the contract rate from and
including the Petition Date through and including the Effective
Date, (iii) all amounts owed to the Banks pursuant to the Cash
Collateral Order, (iv) all payments required under Eligible
Interest Rate Contracts and all Letter of Credit Obligations (as
such terms are defined in the Credit Agreement) from and
including the Petition Date through and including the Effective
Date and (v) to the extent provided by the Loan Documents (as
<PAGE>
such term is defined in the Credit Agreement), an amount equal to
100% of any and all costs and expenses, including, without
limitation, attorneys' fees which remain unpaid as of the
Effective Date over (b) the sum of all payments made in cash by
the Debtor to the Banks pursuant to sections 361, 363 and/or 364
of the Bankruptcy Code prior to the Effective Date on account of
the obligations described in subparagraph (a) herein.
1.12. Bondholder Committee means an unofficial committee of
holders of the Old Notes, collectively holding 33%, 42% and 59%
in aggregate outstanding principal amount of the Old Senior
Floating Rate Notes, the Old Senior Fixed Rate Notes and the Old
Subordinated Debentures, respectively, which participated in the
negotiation of the proposed terms of the Plan and certain of the
transactions contemplated thereby, and whose members are Alliance
Capital Management L.P., American Capital Asset Management Inc.,
IDS Financial Corporation, PaineWebber Incorporated, The
Prudential Insurance Company of America and Sun America Asset
Management Corp.
1.13. Business Day means a day other than a Saturday,
Sunday or other day on which banks in New York, New York are
authorized or required by law to be closed.
1.14. Cash Collateral Order means any and all consensual
order(s) of the Bankruptcy Court authorizing the Debtor to use,
subject to the terms and provisions thereof, the Banks' cash
collateral (as such term is defined in section 363(a) of the
Bankruptcy Code) and non-cash collateral.
1.15. Chapter 11 Case means the case under chapter 11 of
the Bankruptcy Code with respect to the Debtor, pending or to be
pending in the District of Delaware, administered as In re Kash
n' Karry Food Stores, Inc., Chapter 11 Case No. .
1.16. Claim means (a) any right to payment from the Debtor
arising before the Confirmation Date, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured or (b) any right to an equitable
remedy against the Debtor arising before the Confirmation Date
for breach of performance if such breach gives rise to a right of
payment from the Debtor, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
1.17. Class means one of the classes of Claims or Interests
defined in Article III hereof.
1.18. Confirmation Date means the date on which the
Confirmation Order is entered on the docket by the Clerk of the
Bankruptcy Court.
<PAGE>
1.19. Confirmation Order means the order of the Bankruptcy
Court confirming the Plan in accordance with the provisions of
chapter 11 of the Bankruptcy Code.
1.20. Credit Agreement means the Credit Agreement, dated as
of October 12, 1988, as amended, modified, restated or supple-
mented from time to time, between the Debtor and the Banks.
1.21. Creditors' Committee means the official committee of
unsecured creditors appointed in the Chapter 11 Case by the
United States Trustee pursuant to section 1102 of the Bankruptcy
Code, as constituted by the addition or removal of members from
time to time.
1.22. Debtor means Kash n' Karry Food Stores, Inc., as
debtor and debtor-in-possession in the Chapter 11 Case.
1.23. Deferred Compensation Claim means any Claim which may
be asserted by any former employee of the Debtor under any
employment agreement, severance agreement or deferred
compensation agreement pursuant to which the Debtor is a party
and which arises, or is alleged to have arisen, upon the
occurrence of (a) the termination of such employee's employment
with the Debtor and (b) a "Change in Control" (as such phrase is
defined under such agreement).
1.24. DIP Facility means the obligations of the Debtor
under any debtor-in-possession financing incurred by the Debtor
pursuant to section 364 of the Bankruptcy Code (other than
pursuant to the Cash Collateral Order), together with the
documents, agreements and order(s) of the Bankruptcy Court
authorizing and governing such obligations.
1.25. Disclosure Statement means the Debtor's Disclosure
Statement, dated September 2, 1994, as amended, modified,
restated and supplemented by the Supplement and as further
amended, modified, restated or supplemented from time to time,
pertaining to the Plan.
1.26. Distribution Record Date means the date on which the
Confirmation Order is signed.
1.27. Effective Date means the Business Day on which all of
the conditions specified in Section 9.01 hereof are first
satisfied and/or waived in accordance with Article IX of the
Plan.
1.28. Employee Claim means a Claim based on salaries,
wages, sales commissions, expense reimbursements, accrued
vacation pay, health-related benefits, incentive programs,
employee compensation guarantees severance or similar employee
benefits.
1.29. Filed means filed with the Bankruptcy Court in the
Chapter 11 Case.
<PAGE>
1.30. Final Order means an order or judgment entered on the
docket by the Clerk of the Bankruptcy Court or any other court
exercising jurisdiction over the subject matter and the parties
(a) that has not been reversed, stayed, modified or amended,
(b) as to which no appeal, certiorari proceeding, reargument or
other review or rehearing has been requested or is still pending
and (c) as to which the time for filing a notice of or petition
for certiorari, or request for reargument or further review or
rehearing shall have expired.
1.31. Financing Lease means any lease pursuant to which the
Debtor is the lessee that is intended to grant a security
interest in the leased property to the lessor under such lease.
1.32. Fulcrum Partnerships means The Fulcrum III Limited
Partnership and The Second Fulcrum III Limited Partnership.
1.33. GEI means Green Equity Investors, L.P., a Delaware
limited partnership of which LGP is general partner.
1.34. GGvA means Gibbons, Goodwin, van Amerongen, f/k/a
Gibbons, Green, van Amerongen.
1.35. Interest means the rights of the owners of the issued
and outstanding shares of the Old Series B Preferred Stock, the
Old Series C Preferred Stock, the Old Common Stock and the Old
Options, respectively.
1.36. Lease Secured Claim means any Claim of a lessor under
a Financing Lease.
1.37. LGP means Leonard Green & Partners, L.P., a Delaware
limited partnership.
1.38. New Bank Credit Agreement means an agreement, to be
dated as of the Effective Date, among the Reorganized Debtor, the
Banks, The CIT Group/Business Credit, Inc. and any other lender
that from time to time becomes a party to such agreement,
pursuant to which the Reorganized Debtor shall have, among other
things, credit availability from and after the Effective Date, on
substantially the terms set forth in Exhibit A to the Plan,
together with such other terms and conditions as are acceptable
to the parties to such agreement.
1.39. New Common Stock means the common stock, $0.01 par
value per share, of the Reorganized Debtor, authorized for
issuance pursuant to the Restated Certificate of Incorporation.
1.40. New Indentures means the New Senior Fixed Rate Note
Indenture and the New Senior Floating Rate Note Indenture.
1.41. New Management Services Agreement means an agreement
pursuant to which LGP shall provide the Reorganized Debtor with
management, consulting, financial planning and financial advisory
services in return for an annual fee of $200,000, the term of
<PAGE>
which shall commence on the Effective Date and terminate on the
second anniversary date thereof, substantially in the form of
Exhibit B to the Plan.
1.42. New Notes means the New Senior Fixed Rate Notes and
the New Senior Floating Rate Notes.
1.43. New Preferred Stock means the preferred stock $.01
par value per share of the Reorganized Debtor, authorized for
issuance pursuant to the Restated Certificate of Incorporation.
1.44. New Senior Fixed Rate Notes means the 11 1/2% Senior
Fixed Rate Notes due February 1, 2003, issuable pursuant to the
New Senior Fixed Rate Note Indenture and described in the
Disclosure Statement.
1.45. New Senior Fixed Rate Note Indenture means the New
Senior Fixed Rate Note Indenture, dated as of the Effective Date,
to be entered into by the Reorganized Debtor with respect to the
New Senior Fixed Rate Notes, substantially in the form of Exhibit
C to the Plan.
1.46. New Senior Floating Rate Notes means the Senior
Floating Rate Notes due February 1, 2003, bearing interest at
LIBOR plus 2%, issuable pursuant to the New Senior Floating Rate
Note Indenture and described in the Disclosure Statement.
1.47. New Senior Floating Rate Note Indenture means the New
Senior Floating Rate Note Indenture, dated as of the Effective
Date, to be entered into by the Reorganized Debtor with respect
to the New Senior Floating Rate Notes, substantially in the form
of Exhibit D to the Plan.
1.48. Old Common Stock means the common stock, $.01 par
value per share, of the Debtor.
1.49. Old Equity Interests means the Old Series B Preferred
Stock, the Old Series C Preferred Stock, the Old Common Stock and
the Old Options.
1.50. Old Indentures means the Old Senior Fixed Rate Note
Indenture, the Old Senior Floating Rate Note Indenture and the
Old Subordinated Debenture Indenture.
1.51. Old Management Services Agreements means certain oral
agreements between the Debtor and GGvA and the Debtor and LGP,
pursuant to which the Debtor agreed to pay GGvA and LGP,
respectively, certain annual fees and related expenses in return
for the provision of management, consulting, financial planning
and financial advisory services.
1.52. Old Notes means the Old Senior Fixed Rate Notes, the
Old Senior Floating Rate Notes and the Old Subordinated
Debentures.
<PAGE>
1.53. Old Options means all outstanding rights, as of the
Petition Date, to acquire Old Common Stock, including, without
limitation, (a) all options issued pursuant to the Old Stock
Option Plans, (b) all warrants issued pursuant to the Old Warrant
Agreements and (c) all rights to receive or acquire such options
or warrants.
1.54. Old Senior Fixed Rate Note Claim means a Claim of a
holder of Old Senior Fixed Rate Notes which, for purposes of the
Plan, shall be deemed to be an amount equal to the sum of (a) the
face amount of Old Senior Fixed Rate Notes held by such holder
and (b) an amount equal to 100% of the interest that accrued at
the contract rate on such Old Senior Fixed Rate Notes from and
including February 2, 1994, through but not including the
Petition Date.
1.55. Old Senior Fixed Rate Notes means the Debtor's 12*%
Senior Notes due February 1, 1999, as amended, modified, restated
or supplemented from time to time.
1.56. Old Senior Fixed Rate Note Indenture means the
Indenture, dated as of January 29, 1992, as amended, modified,
restated or supplemented from time to time, between the Debtor
and Ameritrust Texas, N.A., as indenture trustee, relating to the
Old Senior Fixed Rate Notes.
1.57. Old Senior Floating Rate Note Claim means a Claim of
a holder of Old Senior Floating Rate Notes which, for purposes of
the Plan, shall be deemed to be an amount equal to the sum of
(a) the face amount of Old Senior Floating Rate Notes held by
such holder and (b) an amount equal to 100% of the interest that
accrued at the contract rate on such Old Senior Floating Rate
Notes from and including February 3, 1994, through but not
including the Petition Date.
1.58. Old Senior Floating Rate Notes means the Debtor's
Senior Floating Rate Notes due August 2, 1996, as amended,
modified, restated or supplemented from time to time.
1.59. Old Senior Floating Rate Note Indenture means the
Indenture, dated as of September 14, 1989, as amended, modified,
restated or supplemented from time to time, between the Debtor
and NationsBank of Florida, N.A., as indenture trustee, relating
to the Old Senior Floating Rate Notes.
1.60. Old Series B Preferred Stock means the Series B
Preferred Stock, par value $.01 per share, of the Debtor.
1.61. Old Series C Preferred Stock means the Series C
Preferred Stock, par value $.01 per share, of the Debtor.
1.62. Old Stock Option Plans means (a) the Debtor's
Restated 1988 Management Stock Option Plan, as amended, modified,
restated or supplemented from time to time and (b) the Debtor's
1991 Management Stock Option Plan, as amended, modified, restated
or supplemented from time to time.
<PAGE>
1.63. Old Stockholders' Agreement means the Stockholders'
Agreement, dated as of November 26, 1991, as amended, modified,
restated or supplemented from time to time, among the Debtor, GEI
and the Fulcrum Partnerships.
1.64. Old Subordinated Debentures means the Debtor's 14%
Subordinated Debentures due February 1, 2001, as amended,
modified, restated or supplemented from time to time.
1.65. Old Subordinated Debenture Indenture means the
Indenture, dated as of February 8, 1989, as amended, modified,
restated or supplemented from time to time, between the Debtor
and The Bank of New York, as successor indenture trustee,
relating to the Old Subordinated Debentures.
1.66. Old Warrant Agreements means the Note and Warrant
Purchase Agreement, dated as of February 1, 1994, between the
Debtor and GEI, as amended, modified, restated or supplemented
from time to time and the Agreement, dated as of October 12,
1988, between the Debtor and Lucky Stores, Inc., as amended,
modified, restated or supplemented from time to time.
1.67. Other Priority Claim means any Claim for an amount
entitled to priority in right of payment under section 507(a)
(3), (4), (5) or (6) of the Bankruptcy Code.
1.68. Petition Date means November 9, 1994, the date on
which the petition of relief commencing the Chapter 11 Case was
filed.
1.69. Plan means this first amended plan of reorganization,
as amended, modified, restated or supplemented from time to time.
1.70. Post-Restructuring Board means the Board of Directors
of the Reorganized Debtor as of the Effective Date, as provided
in Section 7.12 hereof.
1.71. Priority Tax Claim means a Claim, other than an
Administrative Expense Claim, of a governmental unit of the kind
entitled to priority under section 507(a)(7) of the Bankruptcy
Code.
1.72. Reorganized Debtor means the Debtor from and after
the Effective Date.
1.73. Restated Certificate of Incorporation means the
restated certificate of incorporation of the Debtor,
substantially in the form of Exhibit E to the Plan, which shall,
among other things, (a) authorize the issuance of 5.5 million
shares of New Common Stock and 1.0 million shares of New
Preferred Stock, (b) provide for the cancellation of the Old
Equity Interests and (c) prohibit the issuance of non-voting
equity securities to the extent required by section 1123(a)(6) of
the Bankruptcy Code.
<PAGE>
1.74. Schedules means the schedules of assets and
liabilities and the statement of financial affairs Filed by the
Debtor pursuant to section 521 of the Bankruptcy Code, as
amended, modified, restated or supplemented from time to time.
1.75. Secured Claim means any Claim against the Debtor held
by any Entity, including, without limitation, an Affiliate or
judgment creditor of the Debtor, to the extent such Claim
constitutes a secured Claim under sections 506(a) or 1111(b) of
the Bankruptcy Code.
1.76. Securities Purchase Agreement means an agreement
between the Debtor and GEI, substantially in the form of
Exhibit F to the Plan, pursuant to which the Reorganized Debtor
will raise an aggregate of $10.0 million of new capital through
the issuance to GEI of 465,000 shares of New Common Stock, which
shall constitute 15% of the New Common Stock outstanding on the
Effective Date.
1.77. Shelf Registration Statement means a "shelf"
registration statement filed by the Reorganized Debtor on any
appropriate form pursuant to the Securities Act of 1933, as
amended, and/or any similar rule that may be adopted by the
Securities and Exchange Commission, in accordance with Section
12.02 hereof.
1.78. Supplement means the Debtor's supplement to the
Disclosure Statement, dated October 28, 1994, as amended,
modified, restated or supplemented from time to time, pertaining
to the Plan.
1.79. Trade Claim means any Claim of any Entity against the
Debtor for goods provided and/or services rendered in the
ordinary course by such Entity to the Debtor.
<PAGE>
ARTICLE II.
ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.01. Administrative Expense Claims and Priority Tax
Claims. Each holder of an Allowed Administrative Expense Claim
and each holder of an Allowed Priority Tax Claim shall be paid in
full in cash on the later of (a) the Effective Date and (b) the
date on which such Claim becomes Allowed, unless such holder
shall agree to a different treatment of such Claim (including,
without limitation, any different treatment that may be provided
for in any documentation, statute or regulation governing such
Claim); provided, however, that Trade Claims and Employee Claims
shall be paid by the Debtor or assumed and paid by the
Reorganized Debtor in the ordinary course of business and in
accordance with any terms and conditions of the particular
transaction, and any agreements relating thereto.
ARTICLE III.
CLASSIFICATION
For purposes of the Plan, Claims and Interests are
classified as provided below. A Claim or Interest is classified
in a particular Class only to the extent that such Claim or
Interest qualifies within the description of such Class and is
classified in a different Class to the extent that such Claim or
Interest qualifies within the description of such different
Class.
3.01. Class 1: Other Priority Claims. Class 1 consists of
all Other Priority Claims.
3.02. Class 2: Miscellaneous Secured Claims. Class 2
consists of all Lease Secured Claims and all Secured Claims,
other than the Banks' Secured Claims.
3.03. Class 3: Banks' Secured Claims. Class 3 consists of
the Banks' Secured Claims.
3.04. Class 4: Old Senior Floating Rate Note Claims and Old
Senior Fixed Rate Note Claims. Class 4 consists of all Old
Senior Floating Rate Note Claims and all Old Senior Fixed Rate
Note Claims.
3.05. Class 5: Old Subordinated Debenture Claims. Class 5
consists of all Claims of the holders of Old Subordinated
Debentures.
3.06. Class 6: General Unsecured Claims. Class 6 consists
of all Claims (including, without limitation, Employee Claims and
Trade Claims), other than Claims that are otherwise classified
hereby, Administrative Expense Claims or Priority Tax Claims.
3.07. Class 6A: Deferred Compensation Claims. Class 6A
consists of all Deferred Compensation Claims.
<PAGE>
3.08. Class 7: Old Series B Preferred Stock. Class 7
consists of all Interests of the holders of Old Series B
Preferred Stock, and all Claims arising from recision of a
purchase or sale of such stock, or for damages arising from such
a purchase or sale.
3.09. Class 8: Old Series C Preferred Stock. Class 8
consists of all Interests of the holders of the Old Series C
Preferred Stock, and all Claims arising from recision of a
purchase or sale of such stock, or for damages arising from such
a purchase or sale.
3.10. Class 9: Old Common Stock. Class 9 consists of all
Interests of the holders of Common Stock, and all Claims arising
from recision of a purchase or sale of such stock, or for damages
arising from such a purchase or sale.
3.11. Class 10: Old Options. Class 10 consists of all
Interests of the holders of the Old Options, and all Claims
arising from recision of a purchase or sale of the Old Options,
or for damages arising from such a purchase or sale.
ARTICLE IV.
TREATMENT OF UNIMPAIRED CLASSES
4.01. Class 1 (Other Priority Claims). Each holder of an
Allowed Class 1 Claim shall be paid in full in cash the amount of
its Allowed Class 1 Claim on the later of (a) the Effective Date
and (b) the date on which such Claim becomes Allowed, unless such
holder shall agree to a different treatment of such Claim
(including, without limitation, any different treatment that may
be provided for in any documentation governing such Claim).
4.02. Class 2 (Miscellaneous Secured Claims). With respect
to each Allowed Class 2 Claim, unless the holder thereof shall
agree to a different treatment of such Claim, such holder shall
receive one of the following alternative treatments, at the
election of the Debtor made on or prior to the Effective Date:
(a) The legal, equitable and contractual rights to
which such Claim entitles the holder thereof shall be
unaltered by the Plan.
(b) Such Claim shall receive the treatment described
in section 1124(2) of the Bankruptcy Code.
(c) All collateral securing such Claim shall be
transferred and surrendered to such holder, without
representation or warranty by or recourse against the
Debtor.
<PAGE>
With respect to any Claim which receives the treatment
described in clause "a" or "b" above, the Debtor's failure to
object to such Claim in the Chapter 11 Case shall be without
prejudice to the Debtor's right to contest or otherwise defend
against such Claim in an applicable nonbankruptcy forum when and
if such Claim is sought to be enforced by the holder thereof
after the Effective Date.
4.03. Class 6 (General Unsecured Claims). With respect to
each Allowed Class 6 Claim, unless the holder thereof shall agree
to a different treatment, such holder shall receive one of the
following alternative treatments, at the election of the Debtor
made on or prior to the Effective Date:
(a) The legal, equitable and contractual rights to
which such Claim entitles the holder thereof shall be
unaltered by the Plan.
(b) Such Claim shall receive the treatment described
in section 1124(2) of the Bankruptcy Code.
With respect to any Claim which receives the treatment
described in clause "a" or "b" above, the Debtor's failure to
object to such Claim in the Chapter 11 Case shall be without
prejudice to the Debtor's right to contest or otherwise defend
against such Claim in an applicable nonbankruptcy forum when and
if such Claim is sought to be enforced by the holder thereof
after the Effective Date.
4.04. Class 6A (Deferred Compensation Claims). With
respect to each Allowed Deferred Compensation Claim, subject to
the application of section 502(b)(7) of the Bankruptcy Code, the
legal, equitable and contractual rights to which such Claim
entitles the holder thereof shall be unaltered by the Plan.
4.05. Unimpaired Classes. By virtue of the foregoing
provisions of this Article IV, the Claims in Classes 1, 2, 6 and
6A are not impaired by the Plan. Pursuant to section 1126(f) of
the Bankruptcy Code, such Classes and each holder of a Claim in
such Classes are conclusively presumed to have accepted the Plan,
and solicitation of acceptances of holders in such Classes is not
required.
ARTICLE V.
TREATMENT OF IMPAIRED CLASSES
5.01. Class 3 (Banks' Secured Claims). On the Effective
Date, in exchange for their Claims, the holders of the Banks'
Secured Claims shall receive each of the following (and each of
the following events shall occur):
(a) All Eligible Interest Rate Contracts (as such term
is defined in the Credit Agreement) not previously assumed
<PAGE>
by the Debtor shall be assumed by the Reorganized Debtor as
of the Effective Date, with payments to be made thereunder
in accordance with the terms thereof;
(b) All Letters of Credit (as such term is defined in
the Credit Agreement) shall be either (i) terminated by
surrender of the applicable letter of credit to the Bank
which is the issuer thereof (without any drawing having
occurred thereunder for which such issuer has not received
reimbursement in full in cash) or (ii) provided for in a
manner acceptable to the Banks;
(c) All conditions to the funding of loans under the
New Bank Credit Agreement shall have been satisfied; and
(d) The Agent (as such term is defined in the Credit
Agreement) shall receive for the benefit of the Banks (for
distribution in accordance with the Credit Agreement) both
of the following:
(i) Secured promissory notes issued by the
Reorganized Debtor under the New Bank Credit Agreement
in an aggregate principal amount of $35,000,000 secured
by all assets of the Reorganized Debtor and otherwise
in accordance with the New Bank Credit Agreement; and
(ii) An amount of cash equal to the excess of
(A) the aggregate amount of the Banks' Secured Claims
as of the Effective Date over (B) the sum of
(1) $35,000,000 less the Banks' share of the amount of
unfunded Revolving Loan commitments under the New Bank
Credit Agreement as of the Effective Date, (2) the
aggregate maximum amount then available for funding
under the Letters of Credit as of the Effective Date
(which amount shall be satisfied as provided above in
this Section 5.01) other than Letters of Credit which
are assumed or replaced with letters of credit under
the New Bank Credit Agreement, and (3) the amounts
payable under Eligible Interest Rate Contracts which
are assumed (as provided above in this Section 5.01).
5.02. Class 4 (Old Senior Floating Rate Note Claims and Old
Senior Fixed Rate Note Claims). On the Effective Date, each
holder of an Allowed Old Senior Floating Rate Note Claim and each
holder of an Allowed Old Senior Fixed Rate Note Claim shall
receive, in exchange for its Claim, AT SUCH HOLDER'S ELECTION,
(a) an amount of New Senior Floating Rate Notes equal
to 100% of such Claim, or
(b) an amount of New Senior Fixed Rate Notes equal to
100% of such Claim, or
<PAGE>
(c) an amount of New Senior Floating Rate Notes and an
amount of New Senior Fixed Rate Notes equal, in the
aggregate, to 100% of such Claim.
Each holder of Old Senior Floating Rate Notes and each holder of
Old Senior Fixed Rate Notes as of the Ballot Record Date shall be
entitled to make the election enumerated above in this Section
5.02 by marking its Ballot completely in accordance with the
instructions thereon and returning such Ballot to the Ballot
Agent prior to the Ballot Return Date. Each such holder that
does not submit a Ballot in respect of its Old Senior Floating
Rate Notes and/or Old Senior Fixed Rate Notes, or does not mark
its Ballot in complete accordance with the instructions set forth
on such Ballot, shall be deemed conclusively to have elected
option (a) enumerated above in this Section 5.02.
FROM AND AFTER THE BALLOT RETURN DATE, THE ELECTION MADE, OR
DEEMED TO HAVE BEEN MADE, BY EACH HOLDER OF OLD SENIOR FLOATING
RATE NOTES AND EACH HOLDER OF OLD SENIOR FIXED RATE NOTES
PURSUANT TO THIS SECTION 5.02 SHALL BE BINDING UPON ANY AND ALL
SUCCESSORS, ASSIGNS AND/OR TRANSFEREES OF EACH SUCH HOLDER.
5.03. Class 5 (Old Subordinated Debenture Claims). On the
Effective Date, each holder of an Allowed Class 5 Claim shall
receive, in exchange for its Claim, subject to Section 7.18
hereof, 25.095 shares of New Common Stock for each $1,000 of
principal amount of Old Subordinated Debentures owned by such
holder. The holders of Allowed Class 5 Claims shall receive in
the aggregate 85% of the New Common Stock outstanding on the
Effective Date.
5.04. Class 7 (Old Series B Preferred Stock). No
distributions shall be made in respect of Class 7. Each Old
Equity Interest included in Class 7 shall be cancelled, and any
Claims in Class 7 shall be discharged.
5.05. Class 8 (Old Series C Preferred Stock). No
distributions shall be made in respect of Class 8. Each Old
Equity Interest included in Class 8 shall be cancelled, and any
Claims in Class 8 shall be discharged.
5.06. Class 9 (Old Common Stock). No distributions shall
be made in respect of Class 9. Each Old Equity Interest included
in Class 9 shall be cancelled, and any Claims in Class 9 shall be
discharged.
5.07. Class 10 (Old Options). No distributions shall be
made in respect of Class 10. Each Old Option shall be cancelled,
and any Claims in Class 10 shall be discharged.
<PAGE>
5.08. Impaired Classes and Interests. By virtue of the
foregoing provisions of this Article V, Classes 3, 4, 7, 8, 9 and
10 are impaired under the Plan. Pursuant to section 1126(a) of
the Bankruptcy Code, holders in Classes 3, 4 and 5 are entitled
to vote to accept or reject the Plan. Pursuant to section
1126(g) of the Bankruptcy Code, holders in Classes 7, 8, 9 and 10
are deemed to reject the Plan.
ARTICLE VI.
NO BAR DATE; DISPUTED CLAIMS; OBJECTIONS TO CLAIMS
6.01. No Bar Date; Disputed Claims; Objections to Claims.
No bar date pursuant to Bankruptcy Rule 3003(c)(3) shall be fixed
as a deadline for the filing of proofs of Claim against the
Debtor. Only Claims that are Allowed shall be entitled to
distributions under the Plan. The Debtor reserves the right to
contest and object to any Claims (excluding the Banks' Secured
Claims), including, without limitation, those Claims that are
specifically referenced herein, are not listed in the Schedules,
are listed therein as disputed, contingent and/or unliquidated in
amount, or are listed therein at a lesser amount than asserted by
the holder of such Claim. Unless otherwise ordered by the
Bankruptcy Court, all objections to Claims (other than
Administrative Expense Claims) shall be Filed and served upon
counsel to the Debtor, counsel to the Creditors' Committee,
counsel to the Bondholder Committee and the holder of the Claim
objected to on or before the later of (a) the Effective Date and
(b) 25 days after the date (if any) on which a proof of claim is
Filed in respect of such Claim. The last day for filing
objections to Administrative Expense Claims shall be set pursuant
to an order of the Bankruptcy Court. All disputed Claims shall
be resolved by the Bankruptcy Court, except to the extent that
(y) the Debtor may otherwise elect consistent with the Plan and
the Bankruptcy Code or (z) the Bankruptcy Court may otherwise
order.
ARTICLE VII.
IMPLEMENTATION OF THE PLAN
7.01. Securities Purchase. As of the Effective Date, the
Reorganized Debtor shall, in accordance with the Plan, enter into
the Securities Purchase Agreement.
7.02. Restated Certificate of Incorporation. The
Reorganized Debtor shall be deemed to have adopted the Restated
Certificate of Incorporation on the Effective Date and shall
promptly thereafter cause the same to be filed with the Secretary
of State of the State of Delaware. Except to the extent
prohibited by the terms and provisions of the New Bank Credit
Agreement, the New Indentures and/or the Plan, after the
<PAGE>
Effective Date, the Reorganized Debtor may amend the Restated
Certificate of Incorporation and may amend its by-laws, in
accordance with the Restated Certificate of Incorporation, such
by-laws and applicable state law.
7.03. Issuance of New Notes and New Common Stock. On the
Effective Date, the Reorganized Debtor shall, in accordance with
the Plan, (a) enter into the New Indentures and issue the New
Notes thereunder to the holders of the Allowed Old Senior
Floating Rate Note Claims and the Allowed Old Senior Fixed Rate
Note Claims and (b) issue for distribution or sale the New Common
Stock to the holders of the Allowed Class 5 Claims and GEI,
respectively.
7.04. New Management Services Agreement. As of the
Effective Date, the Reorganized Debtor shall, in accordance with
the Plan, enter into the New Management Services Agreement.
7.05. New Bank Credit Agreement. On the Effective Date,
the Reorganized Debtor shall, in accordance with the Plan, enter
into the New Bank Credit Agreement.
7.06. Effectiveness of Securities, Instruments and
Agreements. On the Effective Date, all securities, instruments
and agreements entered into pursuant to the Plan, including,
without limitation, (a) the New Indentures, (b) the New Notes,
(c) the New Common Stock, (d) the New Management Services
Agreement, (e) the Securities Purchase Agreement, (f) the New
Bank Credit Agreement and (g) any security, instrument or
agreement entered into in connection with any of the foregoing
shall become effective and binding in accordance with their
respective terms and conditions upon the parties thereto and
shall be deemed to become effective simultaneously.
7.07. Cancellation of Credit Agreement. On the Effective
Date, except as otherwise provided herein or as contemplated by
the New Bank Credit Agreement, the Credit Agreement shall be
deemed cancelled and terminated, and the obligations of the
Debtor relating to, arising under, in respect of or in connection
with the Credit Agreement shall be discharged; provided, however,
that except as otherwise provided herein, notes and other
evidences of the Banks' Secured Claims shall, effective upon the
Effective Date, represent the right to participate in the
distributions contemplated by the Plan in respect of the Banks'
Secured Claims.
7.08. Cancellation of Securities, Instruments and
Agreements Relating to Impaired Claims and Interests. On the
Effective Date, except as otherwise provided herein, all
securities, instruments and agreements governing any Claims and
Interests impaired hereby, including, without limitation, (a) the
Old Equity Interests, (b) the Old Warrant Agreements, (c) the Old
Notes, (d) the Old Indentures, (e) the Old Stock Option Plan,
(f) the Old Stockholders' Agreement, (g) the Old Management
Services Agreements and (h) any security, instrument or agreement
<PAGE>
entered into in connection with any of the foregoing, in each
case, shall be deemed cancelled and terminated, and the
obligations of the Debtor relating to, arising under, in respect
of or in connection with such securities, instruments and
agreements shall be discharged; provided, however, that except as
otherwise provided herein, notes and other evidences of Claims
shall, effective upon the Effective Date, represent the right to
participate, to the extent such Claims are Allowed, in the
distributions contemplated by the Plan.
7.09. Waiver of Subordination. The distributions under the
Plan take into account the relative priority of each class in
connection with any contractual subordination provisions relating
thereto. Accordingly, the distributions under this Plan shall
not be subject to levy, garnishment, attachment or other legal
process by any holder (a "Senior Creditor") of a Claim or
Interest purporting to be entitled to the benefits of such
contractual subordination. On the Effective Date, all Senior
Creditors shall be deemed to have waived any and all contractual
subordination rights which they may have with respect to such
distribution, and shall be permanently enjoined from enforcing or
attempting to enforce any such rights with respect to the
distributions under the Plan.
7.10. Surrender of Securities. Each holder of a promissory
note or other instrument evidencing a Claim impaired hereby shall
surrender the same to the Debtor or the Reorganized Debtor, and
the Reorganized Debtor shall distribute or shall cause to be
distributed to the holders thereof the appropriate distribution
of property hereunder. No distribution of property hereunder
shall be made to or on behalf of any such holder unless and until
such promissory note or other instrument is received by the
Debtor or the Reorganized Debtor, or the unavailability of such
note or other instrument is established to the satisfaction of
the Debtor or the Reorganized Debtor. Any such holder that fails
to surrender or cause to be surrendered such promissory note or
other instrument, or to execute and deliver an affidavit of loss
and indemnity satisfactory to the Debtor or the Reorganized
Debtor, and, in the event that the Debtor or the Reorganized
Debtor so requests with respect to the Old Notes, fails to
furnish a bond in form and substance (including, without
limitation, with respect to amount) reasonably satisfactory to
the Debtor or the Reorganized Debtor, within two years after the
Confirmation Date, shall be deemed to have forfeited all Claims
against the Debtor represented by such note or other instrument
and shall not participate in any distribution hereunder in
respect of such note or other instrument and all property in
respect of such forfeited distribution, including (if applicable)
interest accrued thereon, shall revert to the Reorganized Debtor.
Notwithstanding the foregoing, all Claims shall be discharged and
all Interests shall be terminated by this Plan to the extent
provided herein regardless of whether and when any surrender,
indemnity or bond required by this Section is provided, and
<PAGE>
regardless of whether the Reorganized Debtor makes a distribution
hereunder in the absence of compliance by any holder of a Claim
with the requirements of this Section. The Debtor or the
Reorganized Debtor may waive the requirements of this Section.
7.11. Releases. (a) On the Effective Date, the Reorganized
Debtor, on its own behalf and as representative of the Debtor's
estate, releases unconditionally, and hereby is deemed to release
unconditionally (i) each of the Debtor's officers, directors,
shareholders, employees, consultants, attorneys, accountants and
other representatives, (ii) the Creditors' Committee and, solely
in their capacity as members or representatives of the Creditors'
Committee, each member, consultant, attorney, accountant or other
representative of the Creditors' Committee, (iii) the Bondholder
Committee and, solely in their capacity as members or
representatives of the Bondholder Committee, each member,
consultant, attorney, accountant or other representative of the
Bondholder Committee, (iv) the Banks and, solely in their
capacity as representatives of the respective Banks, each of the
Banks' respective officers, directors, employees, consultants,
attorneys, accountants and other representatives, and
(v) NationsBank of Florida, N.A., as trustee under the Old Senior
Floating Rate Note Indenture (the Entities specified in clauses
(i), (ii), (iii), (iv) and (v) are referred to collectively as,
the "Releasees"), from any and all claims, obligations, suits,
judgments, damages, rights, causes of action and liabilities
whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, based
in whole or in part upon any act or omission, transaction, event
or other occurrence taking place on or prior to the Effective
Date in any way relating to the Releasees, the Debtor, the
Chapter 11 Case or the Plan.
(b) On the Effective Date, each holder of a Claim (i) who
has accepted the Plan, (ii) whose Claim is in a Class that has
accepted or is deemed to have accepted the Plan pursuant to
section 1126 of the Bankruptcy Code or (iii) who may be entitled
to receive a distribution of property pursuant to the Plan, shall
be deemed to have unconditionally released the Releasees, from
any and all rights, claims, causes of action, obligations, suits,
judgments, damages and liabilities whatsoever which any such
holder may be entitled to assert, whether known or unknown,
foreseen or unforeseen, existing or hereafter arising, in law,
equity or otherwise, based in whole or in part upon any act or
omission, transaction, event or other occurrence taking place on
or before the Effective Date in any way relating to the Debtor,
the Chapter 11 Case or the Plan, provided however, that the
foregoing shall not apply to all rights, claims and obligations
created by or arising under the Plan.
(c) Notwithstanding the foregoing, if and to the extent
that the Bankruptcy Court concludes that the Plan cannot be
confirmed with any portion of the foregoing releases, then the
Plan may be confirmed with that portion excised so as to give
effect as much as possible to the foregoing releases without
precluding confirmation of the Plan.
<PAGE>
(d) All amounts required to be held in a special account
pursuant to Section 613 of the Old Senior Floating Rate Note
Indenture are hereby apportioned to NationsBank of Florida, N.A.,
in its capacity as a Bank.
7.12. Management of the Reorganized Debtor. On the
Effective Date, the operation of the Reorganized Debtor shall
become the general responsibility of the Post-Restructuring
Board, in accordance with applicable law. However, in the event
that any such officer or director is unwilling or unable to take
office at that time, the resulting vacancy shall be filled by
action of the Post-Restructuring Board.
7.13. Setoffs. The Debtor may, but shall not be required
to, set off against any Claim and the distributions to be made
pursuant to the Plan in respect of such Claim, any claims of any
nature whatsoever which the Debtor may have against the holder of
such Claim, but neither the failure to do so nor the allowance of
any Claim hereunder shall constitute a waiver or release of any
such claim the Debtor may have against such holder.
7.14. Distribution of Unclaimed Property. Any distribution
of property under the Plan which is unclaimed after two years
following the Effective Date shall irrevocably revert to the
Reorganized Debtor.
7.15. Saturday, Sunday or Legal Holiday. If any payment or
act under the Plan is required to be made or performed on a date
that is not a Business Day, then the making of such payment or
the performance of such act may be completed on the next
succeeding Business Day, but shall be deemed to have been
completed as of the required date.
7.16. Corporate Action. Upon entry of the Confirmation
Order by the Clerk of the Bankruptcy Court, all actions
contemplated by the Plan shall be authorized and approved in all
respects (subject to the provisions of the Plan), including,
without limitation, the following: (a) the adoption and filing
with the Secretary of State of the State of Delaware of the
Restated Certificate of Incorporation, (b) the issuance by the
Reorganized Debtor of the New Notes and the New Common Stock, and
(c) the execution, delivery and performance of the New
Indentures, the New Management Services Agreement, the Securities
Purchase Agreement, the New Bank Credit Agreement and all
documents and agreements relating to any of the foregoing. All
matters provided for under the Plan involving the corporate
structure of the Debtor and/or the Reorganized Debtor in
connection with the Plan, and any corporate action required by
the Debtor and/or the Reorganized Debtor in connection with the
Plan, shall be deemed to have occurred and shall be in effect
pursuant to section 303 of the Delaware General Corporation Law
and the Bankruptcy Code, without any requirement of further
action by the stockholders or directors of the Debtor and/or the
Reorganized Debtor. On the Effective Date, the appropriate
<PAGE>
officers of the Reorganized Debtor and members of the Post-
Restructuring Board are authorized and directed to execute and
deliver the agreements, documents and instruments contemplated by
the Plan and the Disclosure Statement in the name of and on
behalf of the Reorganized Debtor.
7.17. Retiree Benefits. On and after the Effective Date,
to the extent required by section 1129(a)(13) of the Bankruptcy
Code, the Reorganized Debtor shall continue to pay all retiree
benefits (if any), as that term is defined in section 1114 of the
Bankruptcy Code, maintained or established by the Debtor prior to
the Effective Date, without prejudice to the Reorganized Debtor's
rights under applicable non-bankruptcy law to modify, amend or
terminate the foregoing arrangements.
7.18. Fractional Shares. The New Common Stock shall not be
issued in fractional shares. If, but for this Section, an Entity
would be entitled to receive a fractional share, then such Entity
shall be issued in lieu thereof either no share (if such fraction
is less than one-half) or one whole share (if such fraction is
equal to or greater than one-half).
7.19. Timing of Distributions. Notwithstanding anything to
the contrary herein, (a) any distribution required by the Plan to
be made on the Effective Date in respect of a Claim shall be made
as soon as practicable after (but in any event within 30 days of)
the later of (i) the Effective Date and (ii) the date on which
such Claim becomes Allowed and any other conditions to
distribution with respect to such Claim shall have been
satisfied, and (b) any distribution required by the Plan to be
made on a date subsequent to the Effective Date shall be made on
the later of (i) such date and (ii) as soon as practicable after
(but in any event within 30 days of) the date on which the
pertinent Claim becomes Allowed and any other conditions to
distribution with respect to such Claim shall have been
satisfied; provided, however, that this Section 7.19 shall not
apply to the Banks' Secured Claims and any Claims arising under
the DIP Facility.
7.20. Final Order. Any requirement in the Plan for a Final
Order may be waived by the Debtor, with the consent of the
Bondholder Committee, or, in the event that the Bondholder
Committee is reconstituted as the Creditors' Committee, the
Creditors' Committee, upon written notice to the Bankruptcy
Court; provided, however, that nothing contained herein shall
prejudice the right of any party in interest to seek a stay
pending appeal with respect to such Final Order.
7.21. Ballot Record Date; Distribution Record Date. The
Reorganized Debtor shall distribute, or cause to be distributed,
all distributions of property to be made pursuant to the Plan to
the record holders of Allowed Old Senior Floating Rate Note
Claims, Allowed Old Senior Fixed Rate Note Claims and Allowed
Class 5 Claims as of the Ballot Record Date, unless, prior to the
Distribution Record Date, the holder of any such Claim furnishes
<PAGE>
(or causes its transferee to furnish) the Debtor, or its agent,
with sufficient evidence (in the Debtor's or its agent's sole and
absolute discretion) of the transfer of such Claim, in which
event the Reorganized Debtor shall distribute, or cause to be
distributed, all distributions of property to the holder of such
Claim as of the Distribution Record Date. As of the close of
business on the Distribution Record Date, the transfer ledgers
with respect to the Old Notes shall be closed and the Debtor, the
Reorganized Debtor and the indenture trustees with respect to the
Old Indentures shall have no obligation to recognize any transfer
of the Old Notes occurring thereafter.
ARTICLE VIII.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.01. Generally. Effective on and as of the Effective
Date, all executory contracts and unexpired leases that exist
between the Debtor and any Entity are hereby specifically
assumed, except for any executory contracts and unexpired leases
that have been specifically rejected by the Debtor with the
approval of the Bankruptcy Court on or before the Effective Date
or in respect of which a motion for rejection has been Filed on
or before the Effective Date.
8.02. Assumption. Entry of the Confirmation Order by the
Clerk of the Bankruptcy Court shall constitute approval of all
executory contracts and unexpired leases to be assumed by the
Debtor in accordance with Section 8.01 hereof pursuant to section
365(a) of the Bankruptcy Code.
8.03. Rejection. Claims created by or arising in
connection with the rejection of executory contracts and
unexpired leases of the Debtor must be Filed no later than 20
days after the entry of a Final Order authorizing such rejection.
Any such Claims not Filed within such time shall be forever
barred from assertion against the Debtor, the Reorganized Debtor
and their property and estate. Each Claim resulting from such
rejection shall constitute a Class 2 Claim if secured or a Class
6 Claim if unsecured.
8.04. Officers' and Directors' Indemnification Rights.
Notwithstanding any other provisions of the Plan, the obligations
of the Debtor to indemnify its or its Affiliates' (if any)
directors, officers and employees as of the Petition Date against
any obligations, liabilities, costs or expenses pursuant to the
certificate of incorporation or by-laws of the Debtor, applicable
state law or specific agreement, or any combination of the
foregoing, shall survive confirmation of the Plan, remain
unaffected thereby, and not be discharged, regardless of whether
indemnification is owed in connection with an event occurring
prior to, upon or subsequent to the commencement of the Chapter
11 Case.
<PAGE>
8.05. Compensation and Benefit Programs. All employee
compensation and benefit plans, policies and programs of the
Debtor applicable generally to its employees as in effect on the
Effective Date, including, without limitation, all savings plans,
retirement plans, health care plans, disability plans, severance
benefit plans, incentive plans and life, accidental death and
dismemberment insurance plans, shall continue in full force and
effect, without prejudice to the Reorganized Debtor's rights
under applicable non-bankruptcy law to modify, amend or terminate
any of the foregoing arrangements.
ARTICLE IX.
CONDITIONS PRECEDENT
9.01. Conditions to Effective Date. The Plan shall not
become effective unless and until the following conditions shall
have been satisfied or waived pursuant to Section 9.02 hereof:
(a) The Confirmation Order shall have become a Final
Order.
(b) The New Indentures and all documents contemplated
by such documents to be executed simultaneously therewith
shall have been executed by the respective parties thereto
and all of the conditions precedent to the effectiveness of
such documents and agreements (other than that the Plan be
effective) shall have been satisfied in full or duly waived.
(c) The New Bank Credit Agreement shall have been
executed by the respective parties thereto, all of the
conditions precedent to the effectiveness of the New Bank
Credit Agreement (other than that the Plan be effective)
shall have been satisfied in full or duly waived, and the
Bondholder Committee, or, in the event that the Bondholder
Committee is reconstituted as the Creditors' Committee, the
Creditors' Committee, shall have delivered to the Debtor a
writing indicating its approval of the terms and provisions
of the New Bank Credit Agreement.
(d) The Debtor shall have received $10 million from
GEI in accordance with the Securities Purchase Agreement.
(e) The Debtor shall have concurrently satisfied all
of its obligations under the DIP Facility and the DIP
Facility shall have been concurrently cancelled.
(f) The fees to be paid by the Debtor or the
Reorganized Debtor to Donaldson, Lufkin & Jenrette
Securities Corporation, as financial advisor to the Debtor
with respect to the Debtor's restructuring, shall have been
approved by the Bondholder Committee (or, in the event the
Bondholder Committee is reconstituted as the Creditors'
Committee, the Creditors' Committee).
<PAGE>
(g) All other actions required by Article VII and
Section 12.01 hereof to occur on or before the Effective
Date shall have occurred.
9.02. Waiver of Conditions. The Debtor, with the consent of
the Bondholder Committee, or, in the event that the Bondholder
Committee is reconstituted as the Creditors' Committee, the
Creditors' Committee, may waive any of the conditions set forth
in Section 9.01 hereof, with the exception of Sections 9.01(c)
and 9.01(e), the waiver of which, in addition, will require the
consent of the Banks.
9.03. Notice to Bankruptcy Court. The Debtor shall notify
the Bankruptcy Court in writing promptly after the Effective Date
that the Plan shall have become effective.
ARTICLE X.
MODIFICATION, REVOCATION OR WITHDRAWAL OF THE PLAN
10.01. Modification of Plan. The Debtor, with the consent
of the Banks and the Bondholder Committee, or, in the event that
the Bondholder Committee is reconstituted as the Creditors'
Committee, the Creditors' Committee, may alter, amend or modify
the Plan pursuant to section 1127 of the Bankruptcy Code at any
time prior to the time that the Bankruptcy Court has signed the
Confirmation Order. After such time and prior to the substantial
consummation of the Plan, the Debtor may, so long as the
treatment of holders of Claims and Interests under the Plan is
not adversely affected, institute proceedings in Bankruptcy Court
to remedy any defect or omission or to reconcile any
inconsistencies in the Plan, the Disclosure Statement or the
Confirmation Order and any other matters as may be necessary to
carry out the purposes and effects of the Plan; provided,
however, prior notice of such proceedings shall be served in
accordance with Bankruptcy Rule 2002.
10.02. Revocation or Withdrawal of Plan.
(a) Right to Revoke. The Debtor reserves the right to
revoke or withdraw the Plan at any time prior to the Confirmation
Date.
(b) Effect of Withdrawal or Revocation. If the Debtor
revokes or withdraws the Plan prior to the Confirmation Date,
then the Plan shall be deemed null and void. In such event,
nothing contained herein shall be deemed to constitute a waiver
or release of any claims by or against the Debtor or any other
Entity or to prejudice in any manner the rights of the Debtor or
any Entity in any further proceedings involving the Debtor.
10.03. Nonconsensual Confirmation. The Debtor shall
request that the Bankruptcy Court confirm the Plan pursuant to
section 1129(b) of the Bankruptcy Code with respect to Classes 7,
8, 9 and 10, on the basis that the Plan is fair and equitable and
does not discriminate unfairly with respect to such Classes.
<PAGE>
ARTICLE XI.
RETENTION OF JURISDICTION
11.01. Jurisdiction of Bankruptcy Court.
(a) Following the Effective Date, the Bankruptcy Court will
retain exclusive jurisdiction of the Chapter 11 Case for the
following purposes:
(i) To hear and determine any pending applications for
the rejection of executory contracts or unexpired leases,
and the allowance of Claims resulting therefrom.
(ii) To determine any adversary proceedings,
applications, contested matters and other litigated matters
pending on the Effective Date.
(iii) To ensure that distributions to holders of
Allowed Claims are accomplished as provided herein.
(iv) To hear and determine object-ions to or requests
for estimation of Claims, including any objections to the
classification of any Claim, and to allow, disallow and/or
estimate any Claim, in whole or in part.
(v) To enter and implement such orders as may be
appropriate in the event the Confirmation Order is for any
reason stayed, revoked, modified or vacated.
(vi) To issue any appropriate orders in aid of
execution of the Plan or to enforce the Confirmation Order
and/or the discharge, or the effect of such discharge,
provided to the Debtor.
(vii) To hear and determine any ap-plications to
modify the Plan, to cure any defect or omission or to
reconcile any inconsistency in the Plan or in any order of
the Bankruptcy Court, including, without limitation, the
Confirmation Order.
(viii) To hear and determine all ap-plications for
compensation and reimbursement of expenses of professionals
of the Debtor and the Creditors' Committee (and, if
applicable, the Bondholder Committee), and for reimbursement
of expenses of members of the Creditors' Committee (and if
applicable, the Bondholder Committee) under sections 330,
331, 503(b) and/or 1103 of the Bankruptcy Code.
(ix) To hear and determine disputes arising in
connection with the interpretation, implementation or
enforcement of the Plan; provided, however, that nothing
herein shall be construed to vest in the Bankruptcy Court
<PAGE>
jurisdiction to hear and determine disputes arising in
connection with the interpretation, implementation or
enforcement of the instruments and securities being issued
under the Plan.
(x) To hear and determine other issues presented or
arising under the Plan.
(xi) To hear and determine any ot-her matters related
hereto and not inconsistent with chapter 11 of the
Bankruptcy Code.
(xii) To enter a final decree clos-ing the Chapter 11
Case.
(xiii) To hear and determine the allowance of any
Deferred Compensation Claim which is asserted against the
Debtor prior to the Effective Date or the Reorganized Debtor
thereafter.
(b) Following the Effective Date, the Bankruptcy Court will
retain non-exclusive jurisdiction of the Chapter 11 Case for the
following purposes:
(i) To recover all assets of the Debtor and property
of the estate, wherever located.
(ii) To hear and determine any mo-tions or contested
matters involving taxes, tax refunds, tax attributes and tax
benefits and similar or related matters with respect to the
Debtor or its estate arising prior to the Effective Date or
relating to the period of administration of the Chapter 11
Case, including, without limitation, matters concerning
state, local and federal taxes in accordance with sections
346, 505 and 1146 of the Bankruptcy Code.
(iii) To hear any other matter not inconsistent with
the Bankruptcy Code.
11.02. Failure of Bankruptcy Court to Exercise
Jurisdiction. If the Bankruptcy Court abstains from exercising
or declines to exercise jurisdiction over any matter arising
under, arising in or related to the Chapter 11 Case, including
with respect to the matters set forth above in Sections 11.01(a)
and (b) hereof, this Article shall not prohibit or limit the
exercise of jurisdiction by any other court having competent
jurisdiction with respect to such subject matter.
<PAGE>
ARTICLE XII.
MISCELLANEOUS PROVISIONS
12.01. Payment of Statutory Fees. All fees payable
pursuant to section 1930 of title 28 of the United States Code,
as determined by the Bankruptcy Court at the hearing pursuant to
section 1128 of the Bankruptcy Code, shall be paid on or before
the Effective Date.
12.02. Shelf Registration. Within four months after the
Effective Date, or such longer time as may be required to prepare
the necessary financial statements, the Reorganized Debtor shall
file, at its expense, the Shelf Registration Statement. The
Reorganized Debtor shall use its best efforts to have the Shelf
Registration Statement declared effective as soon as practicable
after such filing and to keep the Shelf Registration Statement
continuously effective until the third anniversary date of the
effective date thereof. No securities other than the New Common
Stock shall be included in the Shelf Registration Statement
unless the holders of a majority of the outstanding New Common
Stock consent to such inclusion. The Reorganized Debtor shall
also, if necessary, supplement or make amendments to the Shelf
Registration Statement, if required.
12.03. Discharge of Debtor. Except as otherwise expressly
provided herein, the confirmation of the Plan shall, provided
that the Effective Date shall have occurred, discharge all Claims
and terminate all Interests, to the fullest extent authorized or
provided for by the Bankruptcy Code, including, without
limitation, to the extent authorized or provided for by sections
524 and 1141 thereof.
12.04. Injunction. Except as otherwise expressly provided
herein, the entry of the Confirmation Order shall, provided that
the Effective Date shall have occurred, permanently enjoin all
Entities that have held, currently hold or may hold a Claim, or
other debt or liability that is discharged pursuant to the Plan
or who have held, currently hold or may hold an Interest that is
terminated pursuant to the Plan from taking any of the following
actions in respect of such discharged Claim, debt or liability or
such terminated Interest: (a) commencing, conducting or
continuing in any manner, directly or indirectly, any suit,
action or other proceeding of any kind against the Debtor, the
Reorganized Debtor or their property; (b) enforcing, levying,
attaching, collecting or otherwise recovering in any manner or by
any means, whether directly or indirectly, any judgment, award,
decree or order against the Debtor, the Reorganized Debtor or
their property; (c) creating, perfecting or enforcing in any
manner, directly or indirectly, any lien or encumbrance of any
kind against the Debtor, the Reorganized Debtor or their
property; (d) asserting any setoff, right of subrogation or
recoupment of any kind, directly or indirectly, against any debt,
<PAGE>
liability or obligation due to the Debtor, the Reorganized Debtor
or their property; and (e) proceeding in any manner in any place
whatsoever that does not conform to or comply with or is
inconsistent with the provisions of the Plan.
12.05. Revesting. Except as otherwise expressly provided
herein, on the Effective Date, all property and assets of the
estate of the Debtor shall revest in the Reorganized Debtor, free
and clear of all Claims, liens, encumbrances, charges, Interests
and other interests of creditors and equity security holders
arising on or before the Effective Date except as otherwise
provided in the New Bank Credit Agreement, and the Reorganized
Debtor may operate its business, from and after the Effective
Date, free of any restrictions imposed by the Bankruptcy Code or
the Bankruptcy Court.
12.06. Exculpation. Neither the Reorganized Debtor, the
Banks, the Creditors' Committee, nor the Bondholder Committee,
nor any of their respective members, officers, directors,
shareholders, employees, agents, attorneys, accountants or other
advisors, shall have or incur any liability to any holder of a
Claim or Interest for any act or failure to act in connection
with, or arising out of, the pursuit of confirmation of the Plan,
the consummation of the Plan or the administration of the Plan or
the property to be distributed under the Plan, except for any act
or failure to act that constitutes willful misconduct or reck-
less-ness as determined pursuant to a Final Order; and in all
respects, such Entities (a) shall be entitled to rely upon the
advice of counsel with respect to their duties and responsibili-
ties under the Plan, and shall be fully protected from liability
in acting or in refraining from action in accordance with such
advice and (b) shall be fully protected from liability with
respect to any act or failure to act that is approved or ratified
by the Bankruptcy Court.
12.07. Rights of Action. Any rights or causes of action
(including, without limitation, any and all avoidance actions)
accruing to the Debtor shall remain assets of the Reorganized
Debtor. The Reorganized Debtor may pursue such rights of action,
as appropriate, in accordance with what is in its best interests
and for its benefit.
12.08. Creditors' Committee. The appointment of each
official statutory committee appointed in the Chapter 11 Case
shall terminate on the Effective Date.
12.09. Governing Law. Except to the extent the Bankruptcy
Code, the Bankruptcy Rules or other federal laws are applicable,
the laws of the State of Delaware shall govern the construction
and implementation of the Plan and all rights and obligations
arising under the Plan.
<PAGE>
12.10. Withholding and Reporting Requirements. In
connection with the Plan and all instruments issued in connection
therewith and distributions thereon, the Debtor and the
Reorganized Debtor shall comply with all withholding, reporting,
certification and information requirements imposed by any
federal, state, local or foreign taxing authority and all
distributions hereunder shall, to the extent applicable, be
subject to any such withholding, reporting, certification and
information requirements. Entities entitled to receive
distributions hereunder shall, as a condition to receiving such
distributions, provide such information and take such steps as
the Reorganized Debtor may reasonably require to ensure
compliance with such withholding and reporting requirements, and
to enable the Reorganized Debtor to obtain the certifications and
information as may be necessary or appropriate to satisfy the
provisions of any tax law.
12.11. Time. Unless otherwise specified herein, in
computing any period of time prescribed or allowed by the Plan,
the day of the act or event from which the designated period
begins to run shall not be included. The last day of the period
so computed shall be included, unless it is not a Business Day,
in which event the period runs until the end of the next
succeeding day which is a Business Day.
12.12. Section 1146 Exemption. Pursuant to section 1146(c)
of the Bankruptcy Code, (a) the issuance, transfer or exchange of
any security under the Plan or the making or delivery of any
instrument of transfer pursuant to, in implementation of, or as
contemplated by the Plan, or the revesting, transfer or sale of
any real or personal property of the Debtor pursuant to, in
implementation of, or as contemplated by the Plan, (b) the
making, delivery, creation, assignment, amendment or recording of
any note, line of credit or other obligation for the payment of
money or any mortgage, deed of trust or other security interest
under, in furtherance of, or in connection with the Plan, the
issuance, renewal, modification or securing of indebtedness by
such means or by other means, the borrowing, repayment and re-
borrowing of sums thereunder and the making of any future
advances thereunder, and (c) the making, delivery or recording of
any deed or other instrument of transfer under, in furtherance
of, or in connection with, the Plan, including, without
limitation, the Confirmation Order shall not be subject to any
document recording tax, stamp tax, conveyance fee, recurring or
non-recurring intangibles or other similar tax, mortgage tax,
real estate transfer tax, mortgage recording tax or other similar
tax or governmental assessment. Consistent with the foregoing,
each recorder of deeds or similar official for any county, city
or governmental unit in which any instrument hereunder is to be
recorded shall, pursuant to the Confirmation Order, be ordered
and directed to accept such instrument, without requiring the
payment of any documentary stamp tax, deed stamps, stamp tax,
transfer tax, intangible tax or similar tax.
<PAGE>
12.13. Severability. In the event that any provision of
the Plan is determined to be unenforceable, such determination
shall not limit or affect the enforceability and operative effect
of any other provisions of the Plan. To the extent that any
provision of the Plan would, by its inclusion in the Plan,
prevent or preclude the Bankruptcy Court from entering the
Confirmation Order, the Bankruptcy Court, on the request of the
Debtor, may modify or amend such provision, in whole or in part
as necessary to cure any defect or remove any impediment to the
confirmation of the Plan existing by reason of such provision;
provided, however, that such modification shall not be effected
except in compliance with Section 10.01 of the Plan.
12.14. Binding Effect. The provisions of the Plan shall
bind all holders of Claims and Interests, whether or not they
have accepted the Plan.
12.15. Plan Controls. In the event and to the extent that
any provision of the Plan is inconsistent with the provisions of
the Disclosure Statement, or any other instrument or agreement
contemplated to be executed pursuant to the Plan, the provisions
of the Plan shall control and take precedence.
12.16. Bondholder Committee. In the event that the
Bondholder Committee is not reconstituted as the Creditors'
Committee, the Debtor shall, subject to the approval of the
Bankruptcy Court, compensate and reimburse the expenses of the
professionals and members of the Bondholder Committee.
Dated: Wilmington, Delaware
December 12, 1994
Respectfully submitted,
KASH N' KARRY FOOD STORES, INC.
Debtor and Debtor-in-Possession
By__________________________________
Kramer, Levin, Naftalis, Young, Conaway, Stargatt
Nessen, Kamin & Frankel & Taylor
Counsel to the Debtor Counsel to the Debtor
and Debtor-in-Possession and Debtor-in-Possession
919 Third Avenue 11th Floor -- Rodney Square
New York, New York 10022 P.O. Box 391
Wilmington, Delaware 19899
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;
<PAGE>
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.
<PAGE>
(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.
<PAGE>
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.
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
[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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
