EXHIBIT 4.4
THIRD SUPPLEMENTAL INDENTURE
BETWEEN THE PANTRY, INC.
AND
IBJ XXXXXXXX BANK & TRUST COMPANY
THIS THIRD 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"), LIL' CHAMP FOOD STORES, INC., a Florida
corporation ("Lil' Champ"), and IBJ XXXXXXXX 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, a Supplemental Indenture dated December 4, 1995 and a Second
Supplemental Indenture dated as of October 23, 1997 (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 has entered into certain financing and related
transactions (the "Transactions") which benefit the Company and its
Subsidiaries; and
WHEREAS, it is a requirement of the Transactions that the Subsidiaries of
the Company guarantee the obligations of the Company under the Indenture; and
WHEREAS, Lil' Champ has become a Subsidiary of the Company as of the date
hereof; and
WHEREAS, the Boards of Directors of the Company and Lil' Champ have
determined that it is in the best interests of the Company and Lil' Champ to
make Lil' Champ a guarantor of the obligations of the Company under the
Indenture; and
WHEREAS, Article XIV of the Indenture provides for the terms and conditions
of the guarantee of the obligations of the Company under the Indenture by the
Subsidiaries of the Company.
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. For value received, Lil' Champ 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. Lil' Champ
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.
2. Upon the execution and delivery of this Supplemental Indenture by the
Company, Lil' Champ 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. 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 of Counsel to the effect set forth in Section
9.6 of the Indenture, the amendments set forth herein shall become operative.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
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8. 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.
9. 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.
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/ XXX X. XXXXX By: /s/ XXXXXXX X. XXXX
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Asst. Secretary Title: Senior Vice President
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Guarantors:
LIL' CHAMP FOOD STORES, INC.,
[CORPORATE SEAL]
Attest: /s/ XXX X. XXXXX By: /s/ XXXXXXX X. XXXX
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Asst. Secretary Title: Executive Vice President
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Trustee:
IBJ XXXXXXXX BANK & TRUST COMPANY
Attest: By: /s/ XXXXXXX X. XXXXXXXXX
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By: /s/ Title: Assistant Vice President
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