-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, kgvIQRJ5HvbzBaJKXaan6gtpGlDN3V/BExsA9gG9MB2WQS5V6kFK/RwzbOZf4Zx4 VKfIAe4BvkJlx8cOK3PKkQ== 0000842913-94-000011.txt : 19941215 0000842913-94-000011.hdr.sgml : 19941215 ACCESSION NUMBER: 0000842913-94-000011 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19941030 FILED AS OF DATE: 19941214 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: KASH N KARRY FOOD STORES INC CENTRAL INDEX KEY: 0000842913 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-GROCERY STORES [5411] IRS NUMBER: 954161591 STATE OF INCORPORATION: DE FISCAL YEAR END: 0730 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 033-25621 FILM NUMBER: 94564796 BUSINESS ADDRESS: STREET 1: 6422 HARNEY RD CITY: TAMPA STATE: FL ZIP: 33610 BUSINESS PHONE: 8136210276 10-Q 1 BODY OF 10-Q DOCUMENT 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. 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. 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. 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. 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. 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. 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. 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. 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. 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; (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). 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). 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). 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). 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). 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). 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). 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. 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 EX-27 2 FINANCIAL DATA SCHEDULES
5 1,000 3-MOS JUL-30-1995 AUG-01-1994 OCT-30-1994 12,622 0 6,439 0 74,171 95,774 251,880 86,101 387,032 128,911 312,327 28 4,650 0 (69,801) 387,032 240,147 240,147 191,732 238,306 0 0 10,560 (8,719) 0 (8,719) 0 0 0 (8,719) 0 0 EPS is meaningless.
EX-2 3 EXHIBIT 2 10/30/94 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 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 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. 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 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. 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. 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 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. 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. 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. 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. 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. 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. 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 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 (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. 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 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 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 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. (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 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 (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. 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). (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. 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 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. 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, 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. 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. 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 EX-4 4 EXHIBIT 4(3)(B) 10/30/94 AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of November 8, 1994, by and among KASH N' KARRY FOOD STORES, INC., a corporation duly organized and existing under the laws of Delaware and having its principal office at 6422 Harney Road, Tampa, Florida 33610 (the "Company"), NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, a national banking association having its principal corporate trust office at 400 N. Ashley Street, Tampa, Florida 33602 (the "Resigning Trustee"), and IBJ SCHRODER BANK & TRUST COMPANY, a bank-ing corporation duly organized and existing under the laws of the State of New York and having its principal corporate trust office at One State Street, New York, New York 10004 (the "Successor Trustee"). RECITALS: WHEREAS, there was originally authorized and issued $85,000,000 aggregate principal amount of the Company's Senior Floating Rate Notes due August 2, 1996 (the "Senior Notes") under a Trust Indenture dated as of September 14, 1989, by and between the Company and NCNB National Bank of Florida, a national banking association (the "In-denture"); WHEREAS, the Resigning Trustee is the successor to NCNB National Bank of Florida as Trustee under the Indenture; WHEREAS, Section 610(b) of the Indenture provides that the Trustee may resign at any time by giving written notice of such resignation to the Company, effective upon the acceptance by a successor Trustee of its appointment as a successor Trustee; WHEREAS, on July 15, 1994, the Resigning Trustee gave written notice to the Company of its resignation as Trustee under the Indenture, a copy of which resignation is attached hereto as Exhibit A; WHEREAS, Section 610(e) of the Indenture provides that, if the Trustee shall resign, the Company, by a Board Resolution, shall promptly appoint a successor Trustee; WHEREAS, Section 611 of the Indenture provides that any successor Trustee appointed in accordance with the Indenture shall execute, acknowledge and deliver to the Company and to its predecessor Trustee an instrument accepting such appointment under the Indenture, and thereupon the resignation of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the predecessor Trustee; WHEREAS, pursuant to Sections 305 and 614 of the Indenture, NCNB National Bank of Florida was appointed Senior Note Registrar and Paying Agent, respectively; WHEREAS, the Resigning Trustee is the successor to NCNB National Bank of Florida as Paying Agent and Senior Note Registrar under the Indenture; WHEREAS, the Company desires to appoint the Successor Trustee as Trustee, Paying Agent and Senior Note Registrar to succeed the Resigning Trustee in such capacities under the Indenture; and WHEREAS, the Successor Trustee is willing to accept such appointment as successor Trustee, Paying Agent and Senior Note Registrar under the Indenture; NOW, THEREFORE, the Company, the Resigning Trustee and the Successor Trustee, for and in consideration of the premises and of other good and valuable consideration, the receipt and suf- ficiency of which are hereby acknowledged, hereby consent and agree as follows: ARTICLE I THE RESIGNING TRUSTEE SECTION 1.01 Pursuant to Section 614 of the Indenture, the Resigning Trustee hereby notifies the Company that the Resigning Trustee is hereby resigning as Senior Note Registrar and Paying Agent under the Indenture. SECTION 1.02 The Resigning Trustee hereby represents and warrants to the Successor Trustee that: (a) No covenant or condition contained in the Indenture has been waived by the Resigning Trustee or, to the best knowledge of responsible officers of the Resigning Trustee's corporate trust department, by the Holders of the percentage in aggregate principal amount of the Senior Notes required by the Indenture to effect any such waiver. (b) There is no action, suit or proceeding pending or, to the best knowledge of responsible officers of the Resigning Trustee's corporate trust department, threatened against the Resigning Trustee before any court or any governmental authority arising out of any act or omission of the Resigning Trustee as Trustee under the Indenture. (c) As of the effective date of this Agreement, the Resign- ing Trustee will hold no moneys or property under the Indenture. (d) Pursuant to Section 303 of the Indenture, the Resigning Trustee duly authenticated and delivered, on September 14, 1989, $85,000,000 aggregate principal amount of Senior Notes, of which $85,000,000 are outstanding as of the effective date hereof. (e) Each person who so authenticated the Senior Notes was duly elected, qualified and acting as an officer of the Resigning Trustee and empowered to authenticate the Senior Notes at the respective times of such authenti- cation and the signature of such person or persons appearing on such Senior Notes is each such person's genuine signature. (f) This Agreement has been duly authorized, executed and delivered on behalf of the Resigning Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. (g) To the best knowledge of responsible officers of the Resigning Trustee's corporate trust department, but without further inquiry, no event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under Section 501 of the Indenture, except for the Company's failure to pay interest due under the Senior Notes on August 2, 1994, which default is continuing. Notwithstanding anything to the contrary in this subsection (g), the responsible officers of the Resigning Trustee's corporate trust department are fully chargeable with knowledge of the contents of any written statement or Officers' Certificate delivered by the Company to the Resigning Trustee under Section 1012 of the Indenture before the effective date of this Agreement. SECTION 1.03 The Resigning Trustee hereby assigns, trans- fers, delivers and confirms to the Successor Trustee all right, title and interest of the Resigning Trustee in and to the trust under the Indenture, all the rights, powers and trusts of the Trustee under the Indenture, and all property and money held by the Resigning Trustee under the Indenture. The Resigning Trustee shall execute and deliver such further instruments and shall do such other things as the Successor Trustee may reasonably require so as to more fully and certainly vest and confirm in the Successor Trustee all the rights, powers and trusts hereby assigned, transferred, delivered and confirmed to the Successor Trustee as Trustee, Paying Agent and Senior Note Registrar. SECTION 1.04 Notwithstanding the foregoing, the Resigning Trustee reserves its rights, if any, to indemnification from the Company pursuant to Section 607(c) of the Indenture. ARTICLE II THE COMPANY SECTION 2.01 The Company hereby accepts the resignation of the Resigning Trustee as Trustee, Paying Agent and Senior Note Registrar under the Indenture. SECTION 2.02 The Company hereby certifies that Exhibit B annexed hereto is a copy of the Board Resolution which was duly adopted by the Board of Directors of the Company, which is in full force and effect on the date hereof, and which authorizes certain officers of the Company to: (a) accept the Resigning Trustee's resignation as Trustee, Paying Agent and Senior Note Registrar under the Indenture; (b) appoint the Successor Trustee as Trustee, Paying Agent and Senior Note Registrar under the Indenture; and (c) execute and deliver such agreements and other instruments as may be necessary or desirable to effectuate the succession of the Successor Trustee as Trustee, Paying Agent and Senior Note Registrar under the Indenture. SECTION 2.03 The Company hereby appoints the Successor Trustee as Trustee, Paying Agent and Senior Note Registrar under the Indenture to succeed to, and hereby vests the Successor Trustee with, all the rights, powers, duties and obligations of the Resigning Trustee under the Indenture with like effect as if originally named as Trustee, Paying Agent and Senior Note Registrar in the Indenture. SECTION 2.04 Promptly after the effective date of this Agreement, the Company shall execute and deliver to the Successor Trustee a notice substantially in the form of Exhibit C annexed hereto, for further delivery by the Successor Trustee in accordance with Section 3.04 hereof. SECTION 2.05 The Company hereby represents and warrants to the Resigning Trustee and the Successor Trustee that: (a) The Company is a corporation duly and validly organized and existing pursuant to the laws of the State of Delaware. (b) The Indenture was validly and lawfully executed and delivered by the Company and the Senior Notes were validly issued by the Company. (c) Except as described in the next succeeding paragraph, the Company has performed or fulfilled prior to the date hereof, and will continue to perform and fulfill after the date hereof, each covenant, agreement, condition, obligation and responsibility under the Indenture. (d) Except for the Company's failure to pay interest due under the Senior Notes due on August 2, 1994, which default is continuing, no event has occurred and is continuing which is, or after notice or lapse of time would become, an Event of Default under Section 501 of the Indenture. (e) No covenant or condition contained in the Indenture has been waived by the Company or, to the best of the Company's knowledge, by Holders of the percentage in aggregate principal amount of the Senior Notes required to effect any such waiver. (f) There is no action, suit or proceeding pending or, to the best of the Company's knowledge, threatened against the Company before any court or any governmental authority arising out of any act or omission of the Company under the Indenture. (g) This Agreement has been duly authorized, executed and delivered on behalf of the Company and constitutes its legal, valid and binding obligation, en-forceable in accordance with its terms. (h) All conditions precedent relating to the appointment of IBJ SCHRODER BANK & TRUST COMPANY as successor Trustee, Paying Agent and Senior Note Registrar under the Indenture have been complied with by the Company. ARTICLE III THE SUCCESSOR TRUSTEE SECTION 3.01 The Successor Trustee hereby represents and warrants to the Resigning Trustee and to the Company that: (a) The Successor Trustee is not disqualified under the provisions of Section 608 and is eligible under the provisions of Sections 609 and 614 of the Indenture to act as Trustee and Paying Agent under the Indenture. (b) This Agreement has been duly authorized, executed and delivered on behalf of the Successor Trustee and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms. SECTION 3.02 The Successor Trustee hereby accepts its appointment as successor Trustee, Paying Agent and Senior Note Registrar under the Indenture and accepts the rights, powers, duties and obligations of the Resigning Trustee as Trustee, Paying Agent and Senior Note Registrar under the Indenture, upon the terms and conditions set forth therein, with like effect as if originally named as Trustee, Paying Agent and Senior Note Registrar under the Indenture. SECTION 3.03 References in the Indenture to "corporate trust office" or other similar terms shall be deemed to refer to the principal corporate trust office of the Successor Trustee, which is presently located at One State Street, New York, New York 10004. SECTION 3.04 Promptly after the effective date of this Agreement, the Successor Trustee shall cause a notice, substantially in the form of Exhibit C annexed hereto, to be sent to each Holder of the Senior Notes in accordance with the provisions of Sections 610 and 614 of the Indenture. ARTICLE IV MISCELLANEOUS SECTION 4.01 Except as otherwise expressly provided herein or unless the context otherwise requires, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. SECTION 4.02 This Agreement and the resignation, ap- pointment and acceptance effected hereby shall be effective as of the opening of business on November 8, 1994 (the "Effective Date"). SECTION 4.03 The Resigning Trustee hereby acknowledges payment or provision for payment in full by the Company under Section 607 of the Indenture of com-pensation for all services rendered by the Resigning Trustee and reimbursement in full by the Company of the expenses, disbursements and advances incurred or made by the Resigning Trustee in accordance with the provisions of the Indenture. The Company acknowledges its obligation set forth in Section 607 of the Indenture to indemnify the Resigning Trustee for, and to hold the Resigning Trustee harmless against, any loss, liability and expense incurred without negligence or bad faith on the part of the Resigning Trustee and arising out of or in connection with the acceptance or administration of the trust evidenced by the Indenture (which obligation shall survive the execution hereof). It is understood and agreed that this Agreement does not constitute a waiver by any of the parties hereto of any obligation or liability which the Resigning Trustee may have incurred in connection with its serving as Trustee, Paying Agent or Senior Note Registrar under the Indenture. SECTION 4.04 This Agreement shall be governed by and construed in accordance with the laws of the State of New York. SECTION 4.05 This Agreement may be executed in any number of counterparts each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. SECTION 4.06 The Company, the Resigning Trustee and the Successor Trustee hereby acknowledge receipt of an executed and acknowledged counterpart of this Agreement and the effectiveness thereof. SECTION 4.07 The Resigning Trustee agrees that it will be responsible for all fees, costs and expenses incurred by it in connection with the negotiation and preparation of this Agreement and the transfer of the duties described herein, including, without limitation, compensation for services rendered by John S. Hiott in connection therewith. Nothing herein shall be deemed to relieve the Company of its obligations under Section 607 of the Indenture to pay compensation to the Resigning Trustee for services rendered in periods prior to the Effective Date, to the extent such services were unrelated to the transfer of the duties described herein. SECTION 4.08 The parties hereto agree that this Agreement does not constitute an assumption by the Successor Trustee of any liability of the Resigning Trustee arising out of any breach by the Resigning Trustee of its duties or obligations under the Indenture (a "Prior Liability"). The parties hereto further agree that, notwithstanding any provision hereof, the Resigning Trustee shall remain liable for any Prior Liabilities. The Resigning Trustee and Successor Trustee have entered into an Indemnity Agreement of even date herewith, which Agreement shall control any claim for indemnity with respect to a Prior Liability asserted by the Successor Trustee against the Resigning Trustee. SECTION 4.09 The parties hereto agree that, as of the Effective Date, all references to the Resigning Trustee as trustee in the Indenture shall be deemed to refer to the Successor Trustee. After the Effective Date, all notices or payments which were required by the terms of the Indenture to be given or paid to the Resigning Trustee, as trustee, shall be given or paid to: IBJ Schroder Bank & Trust Company One State Street New York, New York 10004 Attn: Corporate Trust & Agencies Administration SECTION 4.10 Nothing contained in this Agreement shall in any way affect the obligations or rights of the Company, the Resigning Trustee or any holder of the Senior Notes under the Indenture. This Agreement shall be binding upon and inure to the benefit of the Company, the Resigning Trustee and the Successor Trustee, and their respective successor and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Resignation, Appointment and Acceptance to be duly executed and acknowledged and their respective seals to be affixed hereunto and duly attested all as of the day and year first above written. [SEAL] KASH N' KARRY FOOD STORES, INC., as the Company Attest: By: /s/ R. P. Springer Name: R. P. Springer /s/ Richard D. Coleman Title: Executive Vice President Name: Richard D. Coleman Title: Secretary [SEAL] NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, as Resigning Trustee Attest: By: /s/ John S. Hiott Name: John S. Hiott /s/ Shari B. Sawyers Title: Vice President Name: Shari B. Sawyer Title: Vice President [SEAL] IBJ SCHRODER BANK & TRUST COMPANY, as Successor Trustee Attest: By: /s/ Nancy Besse' Name: Nancy Besse' /s/ Thomas McCutcheon Title: Vice President Name: Thomas McCutcheon Title: Assistant Secretary 13/K94/K9596RES.ARF STATE OF FLORIDA ) : ss: COUNTY OF HILLSBOROUGH) On the 8th day of November, 1994, before me personally came R. P. Springer to me known, who, being by me duly sworn, did depose and say that he resides at ; that he is Exec. V.P. of KASH N' KARRY FOOD STORES, INC., one of the corporations described in and which executed the above in- strument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. /s/ Brenda L. Uhlenhopp Notary Public STATE OF SOUTH CAROLINA) : ss: COUNTY OF ) On the 3rd day of November, 1994, before me personally came JOHN S. HIOTT, to me known, who, being by me duly sworn, did depose and say that he resides at 114 South Waccamaw Avenue, Columbia, Richmond County, South Carolina; that he is a Vice President of NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority. /s/ Beverly M. Miles Notary Public 13/K94/K9596RES.ARF STATE OF NEW YORK ) : ss: COUNTY OF ) On the 3rd day of November, 1994, before me personally came Nancy Besse' to me known, who, being by me duly sworn, did depose and say that he/she resides at 375 South End Ave., N.Y.C., N.Y; that he/she is Vice President of IBJ SCHRODER BANK & TRUST COMPANY, one of the corpo-rations described in and which executed the above instrument; that he/she knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by the authority of the Board of Direc-tors of said corporation; and that he/she signed his/her name thereto by like authority. /s/ Jane Shaheen Notary Public 13/K94/K9596RES.ARF EXHIBIT B RESOLUTIONS OF THE BOARD OF DIRECTORS OF KASH N' KARRY FOOD STORES, INC. RESOLVED, that KASH N' KARRY FOOD STORES, INC. (the "Company") appoints IBJ SCHRODER BANK & TRUST COMPANY (the "Successor Trustee") as successor Trustee, Paying Agent and Senior Note Registrar under the Indenture dated as of September 14, 1989, by and between the Company and NCNB National Bank of Florida, as Trustee (the "Indenture"), pursuant to which the Company issued $85,000,000 aggregate principal amount of the Company's Senior Floating Rate Notes due August 2, 1996, and accepts the resignation of NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, the successor to NCNB National Bank of Florida (the "Resigning Trustee"), as Trustee, Paying Agent and Senior Note Registrar under the Indenture, such resignation and appointment to be effective upon the execution, delivery and effectiveness of an instrument or instruments pursuant to which the Successor Trustee accepts appointment as successor Trustee under the Indenture, in substantially the form attached hereto as Exhibit "A"; AND FURTHER RESOLVED, that the Chairman of the Board, the President, any Executive Vice President, or the Secretary of the Company be, and each of them hereby is, authorized, empowered and directed to execute and deliver in the name and on behalf of the Company an instrument or instruments appointing the Successor Trustee as the successor Trustee and accepting the resignation of the Resigning Trustee; AND FURTHER RESOLVED, that the proper officers of the Company are hereby authorized, empowered and directed to do or cause to be done all such acts or things, and to execute and deliver, or cause to be executed or delivered, any and all such other agreements, amendments, instruments, certificates, documents or papers (including, without limitation, any and all notices and certificates required or permitted to be given or made on behalf of the Company to the Successor Trustee or to the Resigning Trustee), under the terms of any of the executed instruments in connection with the resignation of the Resigning Trustee, and the appointment of the Successor Trustee, in the name and on behalf of the Company as any of such officers, in his/her discretion, may deem necessary or advisable to effectuate or carry out the purposes and intent of the foregoing resolutions; and to perform any of the Company's obligations under the instruments and agreements executed on behalf of the Company in connection with the resignation of the Resigning Trustee and the appointment of the Successor Trustee. EXHIBIT C [ON LETTERHEAD OF THE COMPANY] To the Holders of Senior Floating Rate Notes due August 2, 1996 of Kash n' Karry Food Stores, Inc. NOTICE IS HEREBY GIVEN, pursuant to Sections 610 and 614 of the Indenture (the "Indenture") dated as of September 14, 1989, by and between Kash n' Karry Food Stores, Inc. (the "Company") and NCNB National Bank of Florida, as Trustee, that NationsBank of Florida, National Association, as successor to NCNB National Bank of Florida, has resigned as Trustee, Paying Agent and Senior Note Registrar under the Indenture. Pursuant to Section 611 of the Indenture, IBJ Schroder Bank & Trust Company, a corporation duly organized and existing under the laws of the State of New York, has accepted appointment as Trustee, Paying Agent and Senior Note Registrar under the Indenture. The address of the principal corporate trust office of IBJ Schroder Bank & Trust Company is One State Street, New York, New York, 10004. The resignation of NationsBank of Florida as Trustee, Paying Agent and Senior Note Registrar, and the appointment of IBJ Schroder Bank & Trust Company as successor Trustee, Paying Agent and Senior Note Registrar, were effective as of the opening of business on _______________ 1994. Date: New York, New York ________________, 1994 Very truly yours, KASH N' KARRY FOOD STORES, INC. By: Richard D. Coleman, Secretary -----END PRIVACY-ENHANCED MESSAGE-----