THE PANTRY, INC.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of April 30, 1999 and entered into by and among THE PANTRY, INC., a Delaware
corporation ("Company"), the financial institutions listed on the signature
pages hereof ("Lenders"), FIRST UNION NATIONAL BANK, as administrative agent for
Lenders (in such capacity, the "Administrative Agent"), CANADIAN IMPERIAL BANK
OF COMMERCE, as syndication agent for Lenders (in such capacity, the
"Syndication Agent"), and NATIONSBANK, N.A., as documentation agent for Lenders
(in such capacity, the "Documentation Agent"), and, for purposes of Section 5
hereof, the Credit Support Parties (as defined in Section 5 hereof) listed on
the signature pages hereof, and is made with reference to that certain Amended
and Restated Credit Agreement dated as of January 28, 1999 (the "Credit
Agreement"), by and among Company, Lenders, Administrative Agent, Syndication
Agent and Documentation Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company has commenced an initial public offering (the
"IPO") of shares of the Common Stock of Company and Company desires (1) to use
not more than $17,500,000 of the net Cash proceeds from such IPO (the "Net IPO
Proceeds") to redeem Company Preferred Stock and to use not more than $7,000,000
of such proceeds to pay accrued dividends thereon, (2) to use not more than
$19,000,000 of the Net IPO Proceeds to voluntarily prepay all Acquisition Term
Loans outstanding as of the close of the IPO and to increase the Acquisition
Term Loan Commitments by the amount of Acquisition Term Loans so prepaid so as
to permit Company to borrow the original $50,000,000 available under the
Acquisition Term Loan Commitments after such repayment, and (3) to retain up to
$50,500,000 of the remaining amount of Net IPO Proceeds (the "Retained IPO
Proceeds") for the purpose of making Permitted Acquisitions during the
nine-month period after the close of the IPO; and
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
(i) permit the transactions described above, (ii) amend certain of the defined
terms contained therein, (iii) amend certain of the financial covenants
contained therein and (iv) make certain other amendments as set forth below:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
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Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms
A. Amendments to Existing Definitions. Subsection 1.1 of the Credit
Agreement is hereby amended by deleting the definitions "Acquisition Term Loan
Commitment Termination Date" and "Acquisition Term Notes" in their entirety and
substituting the following therefor:
"'Acquisition Term Loan Commitment Termination Date' means the date
which is the two-year anniversary of the First Amendment Effective Date.
'Acquisition Term Notes' means (i) the promissory notes of Company
issued pursuant to subsection 2.1E(i)(a) on the Effective Date or on the
First Amendment Effective Date and (ii) any promissory notes issued by
Company pursuant to the last sentence of subsection 10.1B(i) in connection
with assignments of the Acquisition Term Loan Commitments or Acquisition
Term Loans of any Lenders, in each case substantially in the form of
Exhibit IV annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time."
B. Addition of New Definitions. Subsection 1.1 of the Credit
Agreement is hereby further amended by adding thereto the following definitions,
which shall be inserted in proper alphabetical order:
"'First Amendment Effective Date' means the date on which that
certain First Amendment to Credit Agreement dated as of April 30, 1999 by
and among Company, Lenders, Administrative Agent, Syndication Agent and
Documentation Agent becomes effective in accordance with its terms, which
date shall be specified in a written notice from Administrative Agent to
Company and Lenders and shall be no later than July 15, 1999.
'IPO' means the initial public offering of common stock of
Company.
'Net IPO Proceeds' means the Cash proceeds (net of underwriting
discounts and commissions and other reasonable costs and expenses
associated therewith) from the issuance of the common stock of Company
pursuant to the IPO.
'Retained IPO Proceeds' has the meaning assigned to that term in
subsection 2.4B(iii)(b)."
1.2 Amendments to Section 2: Amounts and Terms of Commitments and
Loans
A. Acquisition Term Loans. Subsection 2.1A(i) of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting
the following therefor:
"(i) Acquisition Term Loans. Each Lender having an Acquisition Term
Loan Commitment severally agrees, subject to the provisions set forth in
subsection 7.7(vi), to
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lend to Company from time to time during the period from and after the
earlier to occur of (i) Company's delivery of an Officers' Certificate to
Administrative Agent certifying that Company has utilized or will utilize,
together with the proceeds of any requested borrowing of Acquisition Term
Loans, all of the Retained IPO Proceeds for Permitted Acquisitions or (ii)
Company's delivery of an Officers' Certificate pursuant to subsection
6.1(xix) on the nine-month anniversary of the First Amendment Effective
Date and the occurrence of the related prepayment of Loans and/or
permanent reduction of Revolving Loan Commitments and/or Acquisition Term
Loan Commitments required pursuant to subsection 2.4B(iii)(b), to but
excluding the Acquisition Term Loan Commitment Termination Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the
Acquisition Term Loan Commitments to be used for the purposes identified
in subsection 2.5A. The amount of each Lender's Acquisition Term Loan
Commitment as of the First Amendment Effective Date is set forth opposite
its name on Schedule 2.1 annexed hereto (as amended on the First Amendment
Effective Date) and the aggregate amount of the Acquisition Term Loan
Commitments as of the First Amendment Effective Date is $50,000,000;
provided that the Acquisition Term Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Acquisition Term Loan
Commitments pursuant to subsection 10.1B; and provided, further that the
amount of the Acquisition Term Loan Commitment of any Lender shall be
reduced from time to time by the amount of any Acquisition Term Loan made
by such Lender and shall be further reduced from time to time by the
amount of any reductions thereto made pursuant to subsections 2.4B(ii) and
2.4B(iii). Each Lender's Acquisition Term Loan Commitment shall expire on
the Acquisition Term Loan Commitment Termination Date and all outstanding
Acquisition Term Loans on such date shall be repaid in accordance with
subsection 2.4A. Amounts borrowed under this subsection 2.1A(i) and
subsequently repaid or prepaid may not be reborrowed."
B. Scheduled Payments of Acquisition Term Loans. Subsection
2.4A(i) of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting the following therefor:
"(i) Scheduled Payments of Acquisition Term Loans. Company shall
make principal payments on the Acquisition Term Loans in installments on
each January 31, April 30, July 31 and October 31, commencing on July 31,
2001, in an amount equal to 9.0%, or 10.0% with respect to the installment
payable on January 31, 2004, of the aggregate amount of the Acquisition
Term Loans outstanding on the Acquisition Term Loan Commitment Termination
Date; provided that the scheduled installments of principal of the
Acquisition Term Loans shall be reduced in connection with any voluntary
or mandatory prepayments of the Acquisition Term Loans in accordance with
subsection 2.4B(iv); and provided, further that the Acquisition Term Loans
and all other amounts owed hereunder with respect to the Acquisition Term
Loans shall be paid in full no later than January 31, 2004, and the final
installment payable by Company in respect of the Acquisition Term Loans on
such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by Company under
this Agreement with respect to the Acquisition Term Loans."
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C. Prepayments and Reductions Due to Issuance of Equity Securities.
Subsection 2.4B(iii)(b) of the Credit Agreement is hereby amended by deleting it
in its entirety and substituting the following therefor:
"(b) Prepayments and Reductions Due to Issuance of Equity
Securities. No later than the first Business Day after the date of receipt
by Company of the Cash proceeds (any such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses, being
"Net Securities Proceeds") from the issuance of any equity Securities of
Company after the Effective Date (other than issuances of equity to
management employees pursuant to agreements or stock option plans
permitted under subsection 7.11), Company shall prepay the Loans and/or
the Revolving Loan Commitments and/or the Acquisition Term Loan
Commitments shall be permanently reduced in an aggregate amount equal to
50% of such Net Securities Proceeds; provided, however, that, in the event
Company voluntarily prepays all of the Acquisition Term Loans outstanding
immediately prior to the First Amendment Effective Date from the Net IPO
Proceeds pursuant to subsection 2.4B(i), the remaining Net IPO Proceeds
received by Company shall be excluded from the requirements of this
subsection 2.4B(iii)(b) to the extent: (1) not more than $24,500,000 of
such Net IPO Proceeds are used for the redemption of not more than
$17,500,000 of Preferred Stock and the payment of approximately $7,000,000
of accrued dividends thereon, in each case within five (5) Business Days
of the First Amendment Effective Date as permitted under subsection 7.5;
and (2) after such voluntary prepayment of Acquisition Term Loans and
redemption of Preferred Stock and payment of dividends thereon from such
Net IPO Proceeds, the remaining amount of Net IPO Proceeds are retained
for the exclusive purpose of making Permitted Acquisitions (the "Retained
IPO Proceeds") during the nine-month period after the First Amendment
Effective Date; provided that the aggregate amount of such Retained IPO
Proceeds shall not exceed $50,500,000, and in the event that the aggregate
amount of such Net IPO Proceeds less the amount of Net IPO Proceeds
applied in accordance with the preceding clauses (1) and (2) exceeds
$50,500,000, then Company shall prepay the Loans and/or the Revolving Loan
Commitments and/or the Acquisition Term Loan Commitments shall be
permanently reduced in an aggregate amount equal to such excess amount in
accordance with subsection 2.4B(iv)(b); provided, further that pending
application of such Retained IPO Proceeds to the making of Permitted
Acquisitions, such Retained IPO Proceeds shall be held in an interest
bearing blocked account with Administrative Agent (the "Blocked Account")
and such Retained IPO Proceeds shall only be released by Administrative
Agent to Company (i) upon Company's delivery of an Officers' Certificate
to Administrative Agent certifying that such Retained IPO Proceeds will be
applied by Company, immediately upon such release, to the making of a
Permitted Acquisition or (ii) upon the nine-month anniversary of the First
Amendment Effective Date; and provided, further that on such nine-month
anniversary Company shall prepay the Loans and/or the Revolving Loan
Commitments and/or the Acquisition Term Loan Commitments shall be
permanently reduced in an aggregate amount equal to such unused portion of
such Retained IPO Proceeds in accordance with subsection 2.4B(iv)(b)."
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1.3 Amendments to Section 6: Company's Affirmative Covenants
A. Monthly Financials. Subsection 6.1 of the Credit Agreement
is hereby amended by deleting clause (i) of such subsection 6.1 in its
entirety and substituting the following therefor:
"(i) [INTENTIONALLY OMITTED]"
B. Retained IPO Proceeds Certificate. Subsection 6.1 of the Credit
Agreement is hereby further amended by (a) deleting the reference to "and"
immediately after clause (xviii) of such subsection 6.1, (b) renumbering clause
(xix) as the new clause (xx) of such subsection 6.1, and (c) adding as the new
clause (xix) of such subsection 6.1 the following:
"(xix) Retained IPO Proceeds Certificate: on the nine-month
anniversary of the First Amendment Effective Date, an Officers'
Certificate summarizing in reasonable detail the uses of the Retained IPO
Proceeds during the prior nine-month period and the amount of any
unutilized Retained IPO Proceeds as of the nine-month anniversary of the
First Amendment Effective Date; and"
1.4 Amendments to Section 7: Company's Negative Covenants
A. Restricted Junior Payments. Subsection 7.5 of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting
the following therefor:
"7.5 Restricted Junior Payments.
Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, declare, order, pay, make or set
apart any sum for any Restricted Junior Payment; provided that (i) Company
may make regularly scheduled payments of interest in respect of the Senior
Subordinated Notes and of any Subordinated Indebtedness issued in
accordance with subsection 7.1(vii) hereof in accordance with the terms
of, and only to the extent required by, and subject to the subordination
provisions contained in, the Senior Subordinated Indenture or the
indenture pursuant to which such other Subordinated Indebtedness is
issued, as the case may be, in each case, as such indenture may be amended
from time to time to the extent permitted under subsection 7.14B, (ii)
Company may make Restricted Junior Payments pursuant to and in accordance
with stock option plans, stock purchase plans or other benefit plans for
management or employees of Company or any Subsidiary including the
redemption or purchase of shares of common stock of Company held by former
employees of Company or any Subsidiary following the termination of their
employment, in an amount not to exceed $500,000 (net of any amounts
received by Company after the Effective Date and prior to making such
Restricted Junior Payment from the issuance of additional shares of its
common stock to members of management or employees of Company and its
Subsidiaries), and (iii) subject to subsection 2.4B(iii)(b), Company may
use (x) not more than $17,500,000 of the Net IPO Proceeds to redeem
Company Preferred Stock within five (5) Business Days of the First
Amendment Effective Date and (y) not more than $7,000,000 of the Net IPO
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Proceeds to pay the accrued dividends on such Company Preferred Stock
within five (5) Business Days of the First Amendment Effective Date."
B. Minimum Consolidated Pro Forma Leverage Ratio. Subsection 7.6B of
the Credit Agreement is hereby amended by deleting the table contained therein
in its entirety and substituting the following therefor:
Maximum Consolidated Pro
"Period Forma Leverage Ratio
------- ---------------------
As of the last day of the second, third and
fourth Fiscal Quarters in Fiscal Year 1999 4.75:1.00
As of the last day of each Fiscal Quarter in
Fiscal Year 2000 4.75:1.00
As of the last day of each Fiscal Quarter in
Fiscal Year 2001 4.25:1.00
As of the last day of each Fiscal Quarter in
Fiscal Year 2002 4.00:1.00
As of the last day of each Fiscal Quarter in
Fiscal Year 2003 3.50:1.00
As of the last day of each Fiscal Quarter in
Fiscal Year 2004, and as of the last day of
each Fiscal Quarter thereafter 3.25:1.00"
C. Restriction on Fundamental Changes; Asset Sales and Acquisitions.
Subsection 7.7 of the Credit Agreement is hereby amended by deleting the "." at
the end of clause (vii) of such subsection 7.7 and substituting the following
therefor:
"; and
(viii) Company may amend its Certificate of Incorporation (x) to
authorize the issuance of "blank check" preferred stock of Company and (y)
to create and issue classes or series of preferred stock pursuant thereto;
provided that any class or series of preferred stock issued under such
authorized "blank check" preferred stock shall be in form and substance
satisfactory to Requisite Lenders."
D. Consolidated Capital Expenditures. Subsection 7.8 of the
Credit Agreement is hereby amended by deleting the table contained therein in
its entirety and substituting the following therefor:
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Maximum Consolidated
"Period Capital Expenditures
------- --------------------
Fiscal Year 1999 $46,000,000
Fiscal Year 2000 and each
Fiscal Year thereafter $40,000,000"
1.5 Substitution of Schedule
Schedule 2.1 to the Credit Agreement is hereby amended by deleting
said Schedule 2.1 in its entirety and substituting in place thereof a new
Schedule 2.1 in the form of Annex A annexed hereto.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions, which shall be specified in a written notice
from Administrative Agent to Company and Lenders, being referred to herein as
the "First Amendment Effective Date"):
A. Company Documents. On or before the First Amendment Effective
Date, Company shall deliver to Lenders (or to Administrative Agent for Lenders
with sufficient originally executed copies, where appropriate, for each Lender
and its counsel) the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
1. Resolutions of its Board of Directors approving and authorizing
the execution, delivery, and performance of this Amendment and the new
Acquisition Term Notes (the "New Notes"), substantially in the form of
Annex B annexed hereto, drawn to the order of each applicable Lender and
with appropriate insertions, such resolutions certified as of the First
Amendment Effective Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment;
2. Signature and incumbency certificates of its officers executing
this Amendment and the New Notes; and
3. Executed copies of this Amendment and the New Notes.
B. Execution of Amendment by Lenders; Exchange of Existing
Acquisition Term Notes. On or before the First Amendment Effective Date, all
Lenders shall have executed and delivered copies of this Amendment to
Administrative Agent. On or before the First Amendment Effective Date, each
Lender holding an outstanding Acquisition Term Note (each an "Existing Note" and
collectively the "Existing Notes") shall have delivered to Administrative Agent
its Existing Note for cancellation and, promptly upon receipt, Administrative
Agent shall cancel all Existing Notes. Promptly after receipt of the duly
executed New Notes, Administrative Agent shall deliver such New Notes to the
applicable Lenders.
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C. IPO and Net IPO Proceeds. On or before the First Amendment
Effective Date, Company shall have consummated the IPO and received not less
than $65,000,000 in Net IPO Proceeds from the IPO and Administrative Agent shall
have received an Officers' Certificate, in form and substance reasonably
satisfactory to Agents, to such effect and (i) in the event Company has applied
Net IPO Proceeds to the voluntary prepayment of all outstanding Acquisition Term
Loans pursuant to subsection 2.4B(i), together with accrued and unpaid interest
thereon, Company shall deposit the Retained IPO Proceeds in a blocked account
with Administrative Agent and (ii) in the event Company has not applied the Net
IPO Proceeds to the voluntary prepayment of the outstanding Acquisition Term
Loans, the Net IPO Proceeds shall be applied to the mandatory prepayment of the
Loans and/or the permanent reduction of the Revolving Loan Commitments and/or
the Acquisition Term Loan Commitments as required pursuant to subsection
2.4B(iii)(b) of the Credit Agreement.
D. Legal Opinions. On or before the First Amendment Effective Date,
Lenders shall have received originally executed copies of one or more favorable
written opinions of counsel for Company, substantially in the form of Annex C
annexed hereto, dated as of the First Amendment Effective Date, and as to such
other matters as Agents acting on behalf of Lenders may reasonable request.
E. Fees. On or before the First Amendment Effective Date, Company
shall pay (x) to each Lender which executes and delivers this Amendment on or
before the First Amendment Effective Date an amendment fee equal to 0.100% of
the sum of such Lender's Tranche A Term Loan Exposure, Tranche B Term Loan
Exposure, Acquisition Term Loan Exposure (after giving effect to this Amendment)
and Revolving Loan Exposure, all such amendment fees to be paid to
Administrative Agent for distribution to Lenders, and (y) to each Agent such
fees as have been agreed upon in writing among Agents and Company.
F. Other Proceedings. On or before the First Amendment Effective
Date, all corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby and all documents incidental thereto
not previously found acceptable by Agents, acting on behalf of Lenders, shall be
reasonably satisfactory in form and substance to Agents, and Agents shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
Section 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Company has all requisite
corporate power and authority to enter into this Amendment, to issue the New
Notes and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement") and the New Notes.
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B. Authorization of Agreements. The execution and delivery of this
Amendment and the New Notes, the performance of the Amended Agreement and the
New Notes and the payment of the New Notes have been duly authorized by all
necessary corporate action on the part of Company.
C. No Conflict. The execution and delivery by Company of this
Amendment and the New Notes and the performance by Company of the Amended
Agreement and the New Notes do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the First Amendment Effective Date
and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by Company of
this Amendment and the New Notes and the performance by Company of the Amended
Agreement and the New Notes do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment, the New Notes and the Amended
Agreement have been duly executed and delivered by Company and are the legally
valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
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Section 5. ACKNOWLEDGEMENT AND CONSENT
Company is a party to a Collateral Account Agreement and a certain
Company Security Agreement, Company Pledge Agreement, Company Trademark Security
Agreement and Mortgages pursuant to which Company has created Liens in favor of
Administrative Agent on certain Collateral to secure the Obligations. Each
Subsidiary Guarantor is a party to a Subsidiary Guaranty and certain Subsidiary
Security Agreements, Subsidiary Pledge Agreements, Subsidiary Trademark Security
Agreements and Mortgages pursuant to which such Subsidiary Guarantors have (i)
guarantied the Obligations and (ii) created Liens in favor of Administrative
Agent on certain Collateral to secure the obligations of such Subsidiary
Guarantors under the Subsidiary Guaranty. Company and Subsidiary Guarantors are
collectively referred to herein as the "Credit Support Parties", and the
Subsidiary Guaranty and all such Collateral Documents referred to above are
collectively referred to herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment and consents
to the amendment of the Credit Agreement effected pursuant to this Amendment.
Each Credit Support Party hereby confirms that each Credit Support Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Company and the Subsidiary Guarantors now or hereafter existing
under or in respect of the Amended Agreement. Without limiting the generality of
the foregoing, each Credit Support Party hereby acknowledges and confirms the
understanding and intent of such party that, upon the effectiveness of this
Amendment, and as a result thereof, the definition of "Obligations" contained in
the Amended Agreement includes the obligations of Company under the New Notes.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the First Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be
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deemed to require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
Section 6. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the
Other Loan Documents.
(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all reasonable
costs, fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Agents and their respective counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
THE PANTRY, INC.
By: /s/ William T. Flyg
------------------------------------
Title: Senior Vice President/Finance/Secretary
----------------------------------
LIL' CHAMP FOOD STORES, INC.,
as a Credit Support Party
By: /s/ William T. Flyg
---------------------------------------
Title: Executive Vice President/Assistant
Secretary
------------------------------------
SANDHILLS, INC.,
as a Credit Support Party
By: /s/ William T. Flyg
--------------------------------------
Title: Vice President
-----------------------------------
GLOBAL COMMUNICATIONS, INC.,
as a Credit Support Party
By: /s/ William T. Flyg
---------------------------------------
Title: Vice President & Secretary
------------------------------------
MILLER ENTERPRISES, INC.,
as a Credit Support Party
By: /s/ William T. Flyg
--------------------------------------
Title: Executive Vice President
-----------------------------------
S-1
AUCILLA PROPERTIES, INC.,
as a Credit Support Party
By: /s/ William T. Flyg
---------------------------------------
Title: Assistant Secretary
------------------------------------
PENINSULAR PETROLEUM COMPANY,
as a Credit Support Party
By: /s/ William T. Flyg
--------------------------------------
Title: Assistant Secretary
-----------------------------------
S-2
LENDERS:
FIRST UNION NATIONAL BANK, individually
and as Administrative Agent
By: /s/ Mark B. Felker
--------------------------------------
Title: Senior Vice President
-----------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE, as
Syndication Agent
By: /s/ Katherine Bass
-------------------------------------
Title: Authorized Signatory
----------------------------------
CIBC INC., as a Lender
By: /s/ Katherine Bass
-------------------------------------
Title: Executive Director
----------------------------------
NATIONSBANK, N.A.,
individually and as Documentation Agent
By: /s/ David H. xxxx
--------------------------------------
Title: Vice President
-----------------------------------
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Mxxxx
--------------------------------------
Title: Senior Manager
-----------------------------------
S-3
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/
--------------------------------------
Title: Vice President
-----------------------------------
THE PROVIDENT BANK,
as a Lender
By: /s/ D. E. O'Grady
--------------------------------------
Title: Vice President
-----------------------------------
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ J. William Bloore
--------------------------------------
Title: Vice President
-----------------------------------
WELLS FARGO BANK, N.A.,
as a Lender
By: /s/ Kevin McKlee
--------------------------------------
Title: Vice President
-----------------------------------
COMPAGNIE FINANCIERE DE CIC ET
DE L' UNION EUROPEENNE, as a Lender
By: /s/ Anthony Rock
--------------------------------------
Title: Vice President
-----------------------------------
S-4
By: /s/ Marcus Edwards
--------------------------------------
Title: Vice President
-----------------------------------
REPUBLIC NATIONAL BANK OF MIAMI,
as a Lender
By:
--------------------------------------
Title:
-----------------------------------
DRESDNER BANK, AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ John W. Sweeney
--------------------------------------
Title: Vice President
-----------------------------------
By: /s/ Thomas J. Nadramia
--------------------------------------
Title: Vice President
-----------------------------------
S-5
KZH CYPRESSTREE-1 LLC,
as a Lender
By:
--------------------------------------
Title:
-----------------------------------
NORTH AMERICAN SENIOR FLOATING RATE FUND,
as a Lender
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: Catherine J. McDermott
--------------------------------------
Title: Principal
-----------------------------------
CYPRESSTREE INVESTMENT FUND, LLC,
as a Lender
By: CypressTree Investment Management
Company, Inc., its Managing Member
By: Catherine J. McDermott
--------------------------------------
Title: Principal
-----------------------------------
CYPRESSTREE INSTITUTIONAL FUND, LLC, as a
Lender
By: CypressTree Investment Management
Company, Inc., its Managing Member
By: Catherine J. McDermott
--------------------------------------
Title: Principal
-----------------------------------
S-6
KZH CNC LLC, as a Lender
By:
--------------------------------------
Title:
-----------------------------------
MERRILL LYNCH SENIOR FLOATING RATE FUND,
INC., as a Lender
By: /s/ George D. Pelose
--------------------------------------
Title: Authorized Signatory
-----------------------------------
MERRILL LYNCH PRIME RATE PORTFOLIO, as a
Lender
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ George D. Pelose
--------------------------------------
Title: Authorized Signatory
-----------------------------------
MORGAN STANLEY DEAN WITTER PRIME INCOME
TRUST, as a Lender
By: /s/ Sheila A. Finnerty
--------------------------------------
Title: Vice President
-----------------------------------
VAN KAMPEN SENIOR FLOATING RATE FUND, as
a Lender
By: /s/ Lisa M. Mincheski
--------------------------------------
Title: Vice President
-----------------------------------
S-7
VAN KAMPEN PRIME RATE INCOME
TRUST, as a Lender
By: /s/ Lisa M. Mincheski
--------------------------------------
Title: Vice President
-----------------------------------
INDOSUEZ CAPITAL FUNDING IIA, LIMITED, as
a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Mana
--------------------------------------
Title: Vice President
-----------------------------------
INDOSUEZ CAPITAL FUNDING III, LIMITED, as
a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Mana
--------------------------------------
Title: Vice President
-----------------------------------
INDOSUEZ CAPITAL FUNDING IV, L.P.,
as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Mana
--------------------------------------
Title: Vice President
-----------------------------------
S-8
ALLIANCE INVESTMENT OPPORTUNITIES FUND,
L.L.C., as a Lender
By: ALLIANCE INVESTMENT
OPPORTUNITIES MANAGEMENT,
L.L.C., as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT
L.P., as Managing Member
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, as General Partner
By: /s/ L. I. Savitri Alex
--------------------------------------
Title: Vice President
-----------------------------------
OAK MOUNTAIN LIMITED,
as a Lender
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ L. I. Savitri Alex
--------------------------------------
Title: Vice President
-----------------------------------
ELC (CAYMAN) LTD.,
as a Lender
By: /s/ Thomas
--------------------------------------
Title: Managing Director
-----------------------------------
S-9
ATHENA CDO, LIMITED, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general
partner
By: /s/ Mohan V. Phansalkar
--------------------------------------
Title: Senior Vice President
-----------------------------------
CAPTIVA III FINANCE, LTD., as a Lender,
as advised by Pacific Investment
Management Company
By:
--------------------------------------
Title:
-----------------------------------
DELANO COMPANY, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general
partner
By: /s/ Mohan V. Phansalkar
--------------------------------------
Title: Senior Vice President
-----------------------------------
STEIN ROE & FARNHAM INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE
COMPANY, as a Lender
By:
--------------------------------------
Title:
-----------------------------------
S-10
STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY, as a Lender
By:
--------------------------------------
Title:
-----------------------------------
HIGHLAND CAPITAL MANAGEMENT,
as a Lender
By:
--------------------------------------
Title:
-----------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Lender
By:
--------------------------------------
Title:
-----------------------------------
S-11