EXHIBIT 10.29
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IT
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
Number R1 CUSIP 698657AE3
THE PANTRY, INC.
10 1/4% SENIOR SUBORDINATED NOTE DUE 2007
The Pantry, Inc., a Delaware corporation (the "Company", which term
includes any successor corporation), for value received promises to pay to Cede
& Co. or registered assigns the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000), on October 15, 2007.
Interest Payment Dates: April 15 and October 15, commencing April 15, 1998
Record Dates: April 1 and October 1
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication shall have been executed by the Trustee by its
manual signature.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized Officers.
THE PANTRY, INC.
By:
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Name: William T. Flyg
Title: Senior Vice President, Finance,
Chief Financial Officer and
Secretary
By:
--------------------------------------
Name: Jon D. Ralph
Title: Assistant Secretary
Certificate of Authentication:
This is one of the 10 1/4% Senior
Subordinated Notes due 2007 referred to in
the within-mentioned indenture
Dated:
United States Trust Company of New York,
as Trustee
By:___________________________
Authorized Signatory
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THE PANTRY, INC.
10 1/4% SENIOR SUBORDINATED NOTE DUE 2007
1. INTEREST.
The Pantry, Inc., a Delaware corporation (the "Company"), promises to pay
interest on the principal amount of this Note semiannually on April 15 and
October 15 of each year (each an "Interest Payment Date"), commencing on April
15, 1998, at the rate of 10 1/4% per annum. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance of the Notes.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate equal
to 2% per annum in excess of the rate borne by the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph 1
above (except defaulted interest) to the person who is the registered Holder of
this Note at the close of business on the April 1st or October 1st preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Company may pay principal, premium,
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if any, and interest by check payable in such money. They may mail an interest
check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to the Holders of the Notes. Neither the Company nor any of its Subsidiaries or
Affiliates may act as Paying Agent but may act as Registrar.
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of October 23,
1997 (the "Indenture") among the Company, the Guarantors and the Trustee. The
terms of this Note include those stated in the Indenture and those made part of
the Indenture by reference to the
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Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on
the date of the Indenture. This Note is subject to all such terms, and the
Holder of this Note is referred to the Indenture and said trust Indenture Act
for a statement of them. All capitalized terms in this Note, unless otherwise
defined, have the meanings assigned to them by the Indenture.
The Notes are general, unsecured obligations of the Company limited to
$200,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of capital stock by Subsidiaries of the
Company, mergers and sale of assets, the payments of dividends on, or the
repurchase of, capital stock of the Company and its Restricted Subsidiaries,
certain other restricted payments by the Company and its Restricted
Subsidiaries, certain transactions with, and investments in, its affiliates,
certain sale and lease-back transactions and a provision regarding change-of-
control transactions.
5. SUBORDINATION.
The Indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness as defined in the Indenture,
and this Note is issued subject to such provisions. Each Holder of this Note,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose; provided, however, that the Indebtedness evidenced by
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this Note shall cease to be so subordinate and subject in right of payment upon
any defeasance of this Note referred to in Paragraph 17 below.
6. OPTIONAL REDEMPTION.
The Company, at its option, may redeem the Notes, in whole at any time or
in part from time to time, at any time on or after October 15, 2002 upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount), set forth below, plus accrued and unpaid
interest to the Redemption Date, if redeemed during the twelve month period
beginning on October 15 of each year listed below:
Year Redemption Price
- ---- ----------------
2002....................................... 105.125%
2003....................................... 103.417%
2004....................................... 101.708%
2005 and thereafter........................ 100.000%
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Notwithstanding the foregoing, the Company may redeem in the aggregate up
to 35% of the original principal amount of Notes at any time and from time to
time prior to October 15, 2000 at a redemption price equal to 110.25% of the
aggregate principal amount so redeemed, plus accrued and unpaid interest, if
any, to the Redemption Date out of the Net Proceeds of one or more Public Equity
Offerings; provided that at least $130,000,000 of the principal amount of Notes
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originally issued remain outstanding immediately after the occurrence of any
such redemption and that any such redemption occurs within 60 days following the
closing of any such Public Equity Offering.
7. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30 days
but not more than 60 days prior to the Redemption Date to each Holder of Notes
to be redeemed at its registered address as it shall appear on the register of
the Notes maintained by the Registrar. On and after any Redemption Date,
interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
8. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Company is also required to make an offer to purchase Notes upon
the occurrence of a Change of Control in accordance with procedures set forth in
the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of $1,000
and integral multiples thereof. A holder may register the transfer or exchange
of Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer of or exchange any Note selected
for redemption or register the transfer of or exchange any Note for a period of
15 days before the mailing of notice of redemption of Notes to be redeemed or
any Note after it is called for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it for
all purposes.
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11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its written request. After that, Holders entitled to
money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be modified,
amended or supplemented by the Company, the Guarantors and the Trustee with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding and any existing default or compliance with any provision may
be waived in a particular instance with the consent of the Holders of a majority
in principal amount of the Notes then outstanding. Without the consent of
Holders, the Company, the Guarantors and the Trustee may amend the Indenture or
the Notes or supplement the Indenture for certain specified purposes including
providing for uncertificated Notes in addition to certificated Notes, and curing
any ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its predecessor
under the Notes and the Indenture and immediately before and thereafter no
Default exists and certain other conditions are satisfied, the predecessor
corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of Default
(other than an Event of Default pursuant to Section 6.01(6) or (7) of the
Indenture with respect to the Company) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, may declare to be immediately
due and payable the entire principal amount of all the Notes then outstanding
plus accrued but unpaid interest to the date of acceleration and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Senior Credit Facility, such
amounts shall become due and payable upon the first to occur of an acceleration
of amounts outstanding under or in respect of the Senior Credit Facility or five
Business Days after receipt by the Company and the representative under the
Senior Credit Facility of a notice of acceleration; provided, however, that
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after such acceleration but before judgment or decree based on such acceleration
is obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes may, under certain
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circumstances, rescind and annul such acceleration and its consequences if all
existing Events of Default, other than the nonpayment of principal, premium or
interest that has become due solely because of the acceleration, have been cured
or waived and if the recission would not conflict with any judgment or decree.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default specified in Section 6.01(6) or
(7) of the Indenture with respect to the Company occurs, such principal amount,
together with premium, if any, and interest with respect to all of the Notes,
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE COMPANY
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company,
any Guarantor or their Affiliates, and may otherwise deal with the Company, any
Guarantor or their Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer, employee or
stockholder, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or any Guarantor under the Notes or
the Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire indebtedness
on this Note and for defeasance of certain covenants in the Indenture upon
compliance by the Company with certain conditions set forth in the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be sued in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company has caused CUSIP Numbers to be printed on
the Notes
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and have directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Holders of the Notes. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
20. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
NOTE.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: THE PANTRY,
INC., 1801 Douglas Drive, Post Office Box 1410, Sanford, North Carolina 27330,
Attention: Chief Financial Officer.
21. GUARANTEES.
The Notes will be entitled to the benefits of certain Guarantees made
for the benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantors, the Trustee and the Holders.
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OPTION OF HOLDER TO ELECT PURCHASE
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If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.10 or Section 4.18 of the Indenture, check the
appropriate box:
[_] Section 4.10 [_] Section 4.18
If you want to have only part of the Note purchased by the Company pursuant
to Section 4.10 or Section 4.18 of the Indenture, state the amount you elect to
have purchased:
$___________________________
Date: ______________________
Your Signature: ______________________________________________
(Sign exactly as your name appears on the face
of this Note)
____________________________
Signature Guaranteed
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. numbers)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_____________________________________________________________________________
_____________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date:_______________________ Your Signature: ______________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ___________________________________________________
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GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as of
October 23, 1997 by and among The Pantry Inc., as issuer, the Guarantors, as
guarantors, and United States Trust Company of New York, as Trustee (as amended,
restated or supplemented from time to time, 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 Noteholders or the Trustee, all
in accordance with the terms set forth in Article 11 of the Indenture, and (b)
in 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, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
11 of the Indenture and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee.
SANDHILLS, INC.
By: _______________________________
Name: William T. Flyg
Title: Vice President
LIL' CHAMP FOOD STORES, INC.
By: _______________________________
Name: William T. Flyg
Title: Executive Vice President
and Assistant Secretary
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