EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
BETWEEN THE PANTRY, INC.
AND
IBJ SCHRODER BANK & TRUST COMPANY
THIS SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is made
as of the 23rd day of October, 1997 by and between THE PANTRY, INC., a Delaware
corporation (hereinafter the "Company"), SANDHILLS, INC., a Delaware corporation
("Sandhills"), and IBJ SCHRODER BANK & TRUST COMPANY, a banking company
organized under the laws of the State of New York, as trustee (hereinafter the
"Trustee").
R E C I T A L S:
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WHEREAS, the Company and the Trustee have entered into an Indenture dated
November 4, 1993 and a Supplemental Indenture dated December 4, 1995 (as so
amended, the "Indenture"; all terms defined in the Indenture shall have the same
meaning in this Supplemental Indenture unless otherwise defined herein); and
WHEREAS, the Company is entering into certain financing and related
transactions (the "Transactions") which will benefit the Company and its
Subsidiaries; and
WHEREAS, it is a condition to the Transactions that the Subsidiaries of the
Company guarantee the obligations of the Company under the Indenture; and
WHEREAS, Sandhills is the only Subsidiary of the Company as of the date
hereof; and
WHEREAS, the Boards of Directors of the Company, and Sandhills have
determined that it is in the best interests of the Company and Sandhills to make
Sandhills a guarantor of the obligations of the Company under the Indenture; and
WHEREAS, Article IX of the Indenture provides a manner by which the
Indenture may be amended, and by which compliance with the provisions of the
Indenture may be waived, with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Securities, by written act of
said Holders delivered to the Company and the Trustee; and
WHEREAS, the Holders of a majority in aggregate principal amount of the
outstanding Securities have delivered said consents to the Trustee and the
Company; and
WHEREAS, pursuant to and in accordance with Section 9.2 of the Indenture,
and with the consent of the Holders of a majority in aggregate principal amount
of the outstanding Securities, the Company and Trustee have agreed to enter into
this Supplemental Indenture;
NOW THEREFORE, each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's 12% Senior Notes due 2000:
1. Subject to Section 10 hereof, compliance by the Company with Section
4.17 of the Indenture is hereby waived, insofar as it would require that a
favorable opinion by an investment banking firm of national standing be
delivered to the Trustee as to the fairness to the Company or to PH Holding
Corporation, an Unrestricted Subsidiary ("PHC") of the assignment to, and
assumption by, the Company of that certain Stock Purchase Agreement dated as of
August 26, 1997 providing for the acquisition of Lil' Champ Food Stores, Inc., a
Florida corporation, and the use in the consummation of such acquisition of
$4,000,000 placed in escrow for such purpose by PHC. As a result of such
waiver, no such opinion shall be required in respect of such acquisition or such
use of funds.
2. Subject to Section 10 hereof, the definition of "Consolidated EBITDA"
contained in Section 1.1 of the Indenture is hereby amended to read in its
entirety as follows:
"Consolidated EBITDA" means, with respect to any person, for any
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period, the Consolidated Net Income of such person for such period adjusted
to add thereto (to the extent deducted from revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
Income Tax Expense, (ii) Consolidated Depreciation and Amortization Expense
and (iii) Consolidated Fixed Charges; provided that in calculating the
"Consolidated Fixed Charges Coverage Ratio" for purposes of Subsection
4.10(c)(i) only, Consolidated Net Income shall be further adjusted by
adding thereto (without duplication) (iv) any other non-cash charges of
such person in such period.
3. Subject to Section 10 hereof, the definition of "Permitted Liens"
contained in Section 1.1 of the Indenture is hereby amended to read in its
entirety as follows:
"Permitted Liens" means any of the following:
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(a) Liens arising by reason of any judgment, decree or order of any
court only to the extent, for an amount and for a period not resulting in
an Event of Default with respect thereto and so long as such Lien is being
contested in good faith and is adequately bonded, and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally determined or the
period within which such proceedings may be initiated shall not have
expired;
(b) security for payment of worker's compensation or other federal or
state mandated insurance made in the ordinary course of business consistent
with past practices;
(c) security for the performance of bids, tenders, trade contracts
(other than contracts for the payment of money) or leases, public or
statutory obligations,
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surety or appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business consistent with past
practice;
(d) Liens for taxes, assessments or other governmental charges not yet
due or which are being contested in good faith and by appropriate
proceedings by the Company or the applicable Subsidiary if adequate
reserves with respect thereto are maintained on the books of the Company or
such Subsidiary, as the case may be, in accordance with GAAP;
(e) Liens of carriers, warehousemen, mechanics, landlords,
materialmen, repairmen or other like Liens arising by operation of law in
the ordinary course of business and consistent with past practices and
Liens on deposits made to obtain the release of such Liens if (i) the
underlying obligations are not overdue for a period of more than 30 days or
(ii) such Liens are being contested in good faith and by appropriate
proceedings by the Company or the applicable Subsidiary and adequate
reserves with respect thereto are maintained on the books of the Company or
such Subsidiary, as the case may be, in accordance with GAAP;
(f) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred in the ordinary course
of business and consistent with past practices which, in the aggregate, are
not substantial in amount, and which do not in any case materially detract
from the value of the property subject thereto (as such property is used by
the Company or such Subsidiary) or interfere with the ordinary conduct of
the business of the Company or such Subsidiary or any of their
Subsidiaries; provided, that any such Liens are not incurred in connection
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with any borrowing of money or any commitment to loan any money or to
extend any credit;
(g) Liens incurred in connection with the incurrence of Refinancing
Indebtedness in compliance with the Indenture with respect to Indebtedness
secured by Liens, which are no more adverse to the interests of holders of
the Notes than the Liens replaced or extended thereby;
(h) Permitted PP&E Liens securing Indebtedness incurred pursuant to
and in accordance with paragraph (d) of the covenant "Limitation on the
Incurrence of Additional Indebtedness and the Issuance of Disqualified
Capital Stock";
(i) Liens in existence and outstanding on the Issue Date after giving
effect to the Offering and the application of the net proceeds thereof;
(j) Liens which secure Acquired Indebtedness, provided that such Liens
do not extend to or cover any other property or assets and were not put in
place in connection with or in anticipation of such acquisition; and
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(k) Liens securing Indebtedness incurred in accordance with paragraph
(b) or paragraph (c) of the second paragraph of the covenant "Limitation on
the Incurrence of Additional Indebtedness and the Issuance of Disqualified
Capital Stock."
4. Subject to Section 10 hereof, the definition of "Restricted
Investment" contained in Section 1.1 of the Indenture is hereby amended to read
in its entirety as follows:
"Restricted Investment" means any Investment other than (a) Cash
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Equivalents, (b) investments in, or loans or advances made to employees,
officers and directors of the Company or its Subsidiaries in the ordinary
course of business consistent with past practices, which loans or advances
are reasonably related to their duties on behalf of the Company or its
Subsidiaries, (c) recourse loans of up to an aggregate of $1 million
outstanding at any time to employees of the Company or its Subsidiaries
made in connection with the purchase of Qualified Capital Stock of the
Company, (d) contributions of up to $5 million in the aggregate to one
particular Unrestricted Subsidiary of the Company, provided, to the extent
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that such Unrestricted Subsidiary has distributed, returned or otherwise
delivered cash or Cash Equivalents to, or for the benefit or account of,
the Company, directly or indirectly, the amount of such distribution,
return or delivery will be deemed to reduce the amount theretofore
contributed pursuant to this clause (d) for the purposes of the $5 million
limit, (e) Investments in any Subsidiary or any person which, as a result
of such Investment, becomes a Subsidiary and (f) Investments by any
Subsidiary in the Company or in any other Subsidiary of the Company.
5. Subject to Section 10 hereof, Section 4.10 of the Indenture is hereby
amended to read in its entirety as follows:
Section 4.10 Limitation on Incurrence of Additional Indebtedness and the
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Issuance of Disqualified Capital Stock.
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Except as set forth below in this Section 4.10, the Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly,
issue, assume, guaranty, incur, become directly or indirectly liable with
respect to (including as a result of an acquisition, merger or
consolidation), extend the maturity of, or otherwise become responsible
for, contingently or otherwise (individually and collectively, to "incur,"
or, as appropriate, an "incurrence"), any Indebtedness or any Disqualified
Capital Stock from and after the Issue Date.
(a) If (i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect, on a pro
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forma basis, to such incurrence of Indebtedness or issuance of Disqualified
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Capital Stock, and (ii) on the date of the incurrence of such Indebtedness
or issuance of Disqualified Capital
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Stock (the "Incurrence Date"), the Consolidated Fixed Charges Coverage
Ratio of the Company for the Reference Period immediately preceding the
Incurrence Date, after giving effect, on a pro forma basis, to such
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incurrence of Indebtedness or issuance of Disqualified Capital Stock, would
be at least 2.00 to 1, if the Incurrence Date is prior to November 15,
1998, or 2.50 to 1, if the Incurrence Date is on or subsequent to November
15, 1998, then the Company may incur Indebtedness or issue Disqualified
Capital Stock which, in either case, has an Average Life greater than the
Notes.
(b) (i) The Company and its Subsidiaries may incur revolving credit
Indebtedness and letters of credit Indebtedness, in an aggregate principal
amount at any one time outstanding (including any Indebtedness issued to
refinance, replace or refund such Indebtedness) not to exceed $45 million,
less the amount of Net Proceeds of Asset Sales that have been applied to
permanently reduce borrowing and commitments under any such facilities;
provided that the proceeds of such Indebtedness are used for working
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capital and other general corporate purposes; and provided further, that
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$15 million of the Indebtedness that may be incurred under this paragraph
(b) may be incurred only for working capital purposes and/or letters of
credit Indebtedness and (ii) the Company's Subsidiaries may incur
Indebtedness consisting of guarantees of such Indebtedness of the Company.
(c) (i) The Company and its Subsidiaries may incur Indebtedness in an
aggregate principal amount at any one time outstanding (including any
Indebtedness issued to refinance, replace or refund such Indebtedness) not
to exceed $50 million; provided that after giving effect, on a pro forma
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basis, to the incurrence of such Indebtedness, the Consolidated Fixed
Charges Ratio of the Company for the Reference Period immediately preceding
the Incurrence Date would be at least 1.70 to 1; and provided further that
the proceeds of such Indebtedness are used for the acquisition of Capital
Stock or convenience store assets of a person that is not affiliated with
the Company and that is engaged in a Related Business; and (ii) the
Company's Subsidiaries may incur Indebtedness consisting of guarantees of
such Indebtedness of the Company.
(d) The Company may incur Indebtedness evidenced by the Notes and
other obligations pursuant to this Indenture up to the amounts specified
herein as of the Issue Date, and the Company's Subsidiaries may incur
Indebtedness consisting of guarantees of such Indebtedness of the Company.
(e) The Company and its Subsidiaries may incur (i) Indebtedness of
Lil' Champ consisting of Capital Lease Obligations of Lil' Champ existing
at the date of its acquisition by the Company in an aggregate principal
amount not to exceed $14 million and (ii) Permitted PP&E Financing,
provided, that the aggregate principal amount of Indebtedness incurred
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pursuant to this subparagraph (e)(ii) (including any Indebtedness issued to
refinance, replace or refund such Indebtedness) shall not
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exceed an amount equal to ten percent (10%) of the Company's Consolidated
Total Tangible Assets as of the end of the fiscal quarter for which
financial information is available most recently preceding the date of
determination, determined in accordance with GAAP, and shall not constitute
more than 100% of the cost (reportable on the balance sheet (including all
appropriate notes thereto) of such consolidated entity in accordance with
GAAP) of the PP&E so purchased or leased.
(f) The Company may incur Indebtedness evidenced by up to $200.0
million in aggregate principal amount of its Senior Subordinated Notes due
2007 and other obligations pursuant to the Indenture related thereto, and
the Company's Subsidiaries may incur Indebtedness consisting of guarantees
of such Indebtedness of the Company.
(g) The Company and its Subsidiaries may incur Indebtedness solely in
respect of performance bonds (to the extent that such incurrence does not
result in the incurrence of any obligation for the payment of borrowed
money of others), all in the ordinary course of business, in amounts and
for the purposes customary in the Company's industry for operations similar
to those of the Company; provided, that the aggregate principal amount
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outstanding of such Indebtedness (including any Indebtedness issued to
refinance, refund or replace such Indebtedness) shall at no time exceed
$1.0 million.
(h) Indebtedness of any Wholly-Owned Subsidiary of the Company to the
Company or any other Wholly-Owned Subsidiary of the Company or Indebtedness
of the Company to any Wholly-Owned Subsidiary of the Company.
(i) The Company (and in the case of (b), (e) (g) and (h), its
Subsidiaries) may incur Refinancing Indebtedness with respect to any
Indebtedness or Disqualified Capital Stock, as applicable, described in
clauses (a) through (h) of this covenant so long as, in the case of
Indebtedness used to refinance, refund, or replace Indebtedness in clauses
(b), (e), (g) and such Refinancing Indebtedness is of the character that
satisfies the applicable requirements of such clauses.
(j) The Company and its Subsidiaries may incur Indebtedness
representing the balance deferred and unpaid of the purchase price of any
property or services used in the ordinary course of their business that
would constitute ordinarily a trade payable to trade creditors (other than
accounts payable or other obligations to trade creditors arising in the
ordinary course of business which have remained unpaid for greater than 90
days, except those which are being contested in good faith and for which
adequate reserves have been established in accordance with GAAP).
6. Subject to Section 10 hereof, Section 1.1 of the Indenture is hereby
amended by the addition thereto of the following definitions.
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"Consolidated Total Tangible Assets" means, with respect to any
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person, the total assets as would appear on a consolidated balance sheet of
such person minus unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights and all other items
which would be treated as intangibles on the consolidated balance sheet of
the Company and its Subsidiaries prepared in accordance with GAAP.
"Guarantee" means, as the context may require, individually, a
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guarantee, or collectively, any and all guarantees, of the Obligations of
the Company with respect to the Notes by each Guarantor pursuant to the
terms of Article XIV hereof, substantially in the form set forth in Exhibit
D.
"Guarantor" means all direct and indirect Subsidiaries of the Company
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listed on the signature pages hereto and each Subsidiary which guarantees
payment of the Notes pursuant to Section 14.5 and "Guarantors" means such
entities, collectively.
7. Subject to Section 10 hereof, the Indenture is hereby amended by the
addition thereto of Article XIV, to read in its entirety as follows:
ARTICLE XIV
GUARANTEE
Section 14.1 Guarantee.
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Subject to the provisions of this Article XIV, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder and to the
Trustee, (i) the due and punctual payment of the principal of, and premium,
if any, and interest on each Note, when and as the same shall become due
and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of, and premium, if
any, and interest on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders
or the Trustee (including, without limitation amounts due the Trustee under
Section 7.7) all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will
be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, at stated maturity, by acceleration or
otherwise. Each Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such
Note or this Indenture, any failure to enforce the provisions of any such
Note or this Indenture, any waiver, modification or indulgence granted to
the Company with respect thereto by the Holder of such Note or the Trustee,
or any other circumstances
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which may otherwise constitute a legal or equitable discharge of a surety or
such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Note or the Indebtedness evidenced thereby and
all demands whatsoever, and covenants that this Guarantee will not be discharged
as to any such Note except by payment in full of the principal thereof, premium
if any, and interest thereon and as provided in Section 8.1 hereof. Each
Guarantor further agrees that, as between such Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such obligations as provided in Article VI hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of this Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of any acceleration under Article VI hereof,
either the Trustee or the Holders of not less than twenty-five percent (25%) in
aggregate principal amount of the then outstanding Securities may make a demand
for payment on the Notes under the Guarantee provided for in this Article XIV
and not discharged.
The Guarantee set forth in this Section 14.1 shall not be valid or become
obligatory for any purpose with respect to a Note until the certificate of
authentication on such Note shall have been signed by or on behalf of the
Trustee by its manual signature.
Section 14.2 Execution and Delivery of Guarantees.
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To evidence the Guarantee set forth in this Article XIV, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form
included in Exhibit D hereto shall be placed on each Note authenticated and made
available for delivery by the Trustee to the Registrar and that this Guarantee
shall be executed on behalf of each Guarantor by the manual or facsimile
signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in Section
14.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
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If an Officer of a Guarantor whose signature is on the Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which the
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee to the Registrar, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 14.3 Limitation of Guarantee.
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The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the Adjusted Net Assets of each Guarantor.
Section 14.4 Additional Guarantors.
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The Company covenants and agrees that it shall cause any Person which is or
becomes, on or after October ___, 1997, a subsidiary of the Company, to execute
a supplemental indenture and guarantee satisfactory in form and substance to the
Trustee pursuant to which such Subsidiary shall guarantee the obligations of the
Company under the Notes and this Indenture in accordance with this Article XIV
with the same effect and to the same extent as if such Person had been named
herein as a Guarantor. Each additional guarantee shall be substantially in the
form of Exhibit D hereto, shall reference the Note to which it relates in a
manner sufficiently specific to identify such Note and shall be authenticated
and made available for delivery by the Trustee to the Registrar on or after the
date of such supplemental indenture.
Section 14.5 Release of Guarantor.
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A guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its assets or the
Company and its Subsidiaries have sold all of the Capital Stock of the
Guarantor owned by them, in each case in a transaction in compliance
with Sections 4.13 and 5.1 hereof; or
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(ii) the Guarantor merges with or into or consolidates with, or transfers
all or substantially all of its assets to, the Company or another
Guarantor in a transaction in compliance with Section 5.1 hereof;
and in each such case, such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 14.6 Trustee Duties, Notice, etc.
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Any provision in this Article XIV or elsewhere in the Indenture
allowing the Trustee to request information or to take any action
authorized by, or on behalf of any Guarantor or Holder, shall be permissive
and shall not be obligatory on the Trustee except as the Holders may direct
in accordance with the provisions of this Indenture. The Trustee shall be
under no obligation to marshal in favor of any Guarantor any other
guarantees or other security or any moneys or other assets that the Trustee
may be entitled to receive or upon which the Trustee or the Holders may
have a claim. The Trustee shall not be bound by any representation,
warranty or promise now, or at any time hereafter, made to any Guarantor.
8. Subject to Section 10 hereof, the Indenture is hereby amended by the
addition thereto of Exhibit D and the form of Note to be issued pursuant to the
Indenture is hereby amended by the addition thereto of the following provision,
in each case to read in its entirety as follows:
This Guarantee Agreement (this "Guarantee") is dated as of __________
and made by [each of] the undersigned in favor of the holder of Note No.
___ of the 12% Senior Notes due 2000 of The Pantry, Inc. (the "Company")
issued pursuant to the Indenture dated as of November 4, 1993 as
supplemented by the Supplemental Indenture dated as of December 4, 1995 and
the Second Supplemental Indenture dated as of October __, 1997 and
____________ under which IBJ Schroder Bank & Trust Company acts as trustee
(the "Indenture"). Capitalized terms used in this Guarantee without
definition will have the meanings set forth for such terms in the
Indenture.
[Each of] the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, with all other Guarantors thereof, to
the extent set forth in the Indenture, and subject to the provisions of the
Indenture, (a) the due and punctual payment of the principal of, and
premium, if any, and interest on the Notes, when and as the same shall
become due and payable, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest, and the due and
punctual performance of all other obligations of the Company to the Holders
or the Trustee, all in accordance with the terms set forth in Article XIV
of the Indenture, and (b) in case of any extension of time of payment or
renewal of any Notes or any
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of such other obligations, that the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
XIV of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
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By:
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Name:
Title:
9. Subject to Section 10 hereof, for value received, Sandhills hereby
agrees to become a party to the Indenture as a Guarantor under and pursuant to
Article XIV of the Indenture and to jointly and severally unconditionally
guarantee to the Holders of the Securities (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Securities, when and
as the same shall become due and payable, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on overdue principal of,
and premium and, to the extent permitted by law, interest, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee, all in accordance with the terms set forth in Article XIV of the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Securities or any of such other obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Sandhills
further agrees to waive and not in any manner whatsoever claim or take the
benefit or advantage of any rights of reimbursement, indemnity or subrogation or
any other rights against the Company or any other Subsidiary as a result of any
payment by such Subsidiary under its Guarantee.
10. Upon the execution and delivery of this Supplemental Indenture by the
Company, Sandhills and the Trustee, the Indenture shall be supplemented in
accordance herewith, and this Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby; provided, however, that Sections 1 through 9 hereof shall become
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operative upon the satisfaction (or waiver by the Company) of the conditions set
forth in the Offer to Purchase and Consent Solicitation Statement, dated
September 18, 1997, that was provided to Holders of Securities in connection
with the Company's solicitation of consents by such Holders to the waiver and
amendments set forth herein. Upon the receipt by the Trustee of (i) an
Officers' Certificate certifying that such conditions have been satisfied, or
waived by the Company, and (ii) an Opinion
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of Counsel to the effect set forth in Section 9.6 of the Indenture, the
amendments set forth herein shall become operative.
11. Except as supplemented hereby, all provisions in the Indenture shall
remain in full force and effect. This Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture, and the Indenture and
this Supplemental Indenture shall henceforth be read and construed together.
The Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
12. If any provision of this Supplemental Indenture limits, qualifies or
conflicts with any provision of the Trust Indenture Act that is required under
such Act to be part of and govern any provision of this Supplemental Indenture,
the provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
13. In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
14. Nothing in this Supplemental Indenture, the Indenture or the
Securities, express or implied, shall give to any Person, other than the parties
hereto and thereto and their successors hereunder and thereunder and the Holders
of Securities, any benefit of any legal or equitable right, remedy or claim
under the Indenture, this Supplemental Indenture or the Securities.
15. The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
16. This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles thereof.
17. This Supplemental Indenture may be executed in counterparts, each of
which, when so executed, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
Company:
THE PANTRY, INC.
[CORPORATE SEAL]
Attest: /s/ JON D. RALPH By: /s/ WILLIAM T. FLYG
---------------------- ----------------------------
Assistant Secretary Senior Vice President
Title: ---------------------
Guarantors:
SANDHILLS, INC.,
[CORPORATE SEAL]
Attest: /s/ JON D. RALPH By: /s/ WILLIAM T. FLYG
---------------------- ---------------------------
Assistant Secretary Title: Executive Vice President
------------------------
Trustee:
IBJ SCHRODER BANK & TRUST
COMPANY
Attest: /s/ By: /s/ STEPHEN J. GIURLANDO
---------------------- --------------------------
Assistant Vice President
----------------------, Secretary Title: -------------------------
Stephen J. Giurlando
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