EXHIBIT 10.11
THE PANTRY, INC.
FOURTH AMENDMENT AND LIMITED WAIVER
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT AND LIMITED WAIVER TO AMENDED AND RESTATED
CREDIT AGREEMENT (this "Amendment") is dated as of November 7, 2001 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 BANK OF
AMERICA, N.A. (formerly known as 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, by and among
Company, Lenders, Administrative Agent, Syndication Agent and Documentation
Agent, as amended by that certain First Amendment to Credit Agreement dated as
of April 30, 1999, that certain Second Amendment to Credit Agreement dated as of
October 27, 1999, and that certain Third Amendment to Credit Agreement dated as
of November 30, 1999 (as so amended, the "Credit Agreement"). Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
(i) amend the financial covenants as set forth herein, (ii) amend certain of the
defined terms contained therein, and (iii) 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:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Amendments to Existing Definitions.
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A. Amendments to Existing Definitions. Subsection 1.1 of the Credit
Agreement is hereby amended by deleting the definitions "Applicable Base
Rate Margin," "Applicable Eurodollar Margin" and "Consolidated EBITDA" in
their entirety and substituting the following therefor:
"'Applicable Base Rate Margin' means, as of any date of determination,
with respect to each Type of Loan, the percentage set forth in the table
below beneath such Type of Loan and opposite the Consolidated Pro Forma
Leverage Ratio for the four-Fiscal
1
Quarter period for which the applicable Compliance Certificate has
been delivered pursuant to subsection 6.1(iv):
-------------------------- ----------------------- ------------------- -----------------
Consolidated Pro Acquisition Loans, Tranche B Tranche C
Forma Leverage Revolving Loans Term Loans Term Loans
Ratio and Tranche A Term
Loans
-------------------------- ----------------------- ------------------- -----------------
Greater than or equal 2.00% 2.50% 2.75%
to 4.50:1:00
-------------------------- ----------------------- ------------------- -----------------
Less than 1.75% 2.25% 2.50%
4.50:1.00
-------------------------- ----------------------- ------------------- -----------------
Upon delivery of each Compliance Certificate by Company to
Administrative Agent pursuant to subsection 6.1(iv), the Applicable
Base Rate Margin shall automatically be adjusted in accordance with
such Compliance Certificate, such adjustment to become effective on
the next succeeding Business Day following the receipt by
Administrative Agent of such Compliance Certificate; provided that
--------
upon the Fourth Amendment Effective Date and until the delivery of the
first Compliance Certificate by Company to Administrative Agent after
the occurrence of the Fourth Amendment Effective Date, the Applicable
Base Rate Margin for Acquisition Loans, Revolving Loans and Tranche A
Term Loans shall be 2.00% per annum, for Tranche B Term Loans shall be
2.50% and for Tranche C Term Loans shall be 2.75% per annum; provided
--------
further that, if at any time a Compliance Certificate is not delivered
at the time required pursuant to subsection 6.1(iv), from the time
such Compliance Certificate was required to be delivered until
delivery of such Compliance Certificate, the Applicable Base Rate
Margin shall be the maximum percentage amount for the relevant Loan
set forth above.
'Applicable Eurodollar Margin' means, as of any date of
determination with respect to each Type of Loan, the percentage set
forth in the table below beneath such Type of Loan and opposite the
Consolidated Pro Forma Leverage Ratio for the four-Fiscal Quarter
Period for which the applicable Compliance Certificate has been
delivered pursuant to subsection 6.1(iv):
-------------------------- ----------------------- ------------------- -----------------
Consolidated Pro Acquisition Loans, Tranche B Tranche C
Forma Leverage Revolving Loans Term Loans Term Loans
Ratio and Tranche A Term
Loans
-------------------------- ----------------------- ------------------- -----------------
Greater than or equal 3.50% 4.00% 4.25%
to 4.50:1:00
-------------------------- ----------------------- ------------------- -----------------
Less than 3.25% 3.75% 4.00%
4.50:1.00
-------------------------- ----------------------- ------------------- -----------------
2
Upon delivery of each Compliance Certificate by Company to Administrative
Agent pursuant to subsection 6.1(iv), the Applicable Eurodollar Margin
shall automatically be adjusted in accordance with such Compliance
Certificate, such adjustment to become effective on the next succeeding
Business Day following the receipt by Administrative Agent of such
Compliance Certificate; provided that upon the Fourth Amendment Effective
--------
Date and until the delivery of the first Compliance Certificate by Company
to Administrative Agent after the occurrence of the Fourth Amendment
Effective Date, the Applicable Eurodollar Margin for Acquisition Loans,
Revolving Loans and Tranche A Term Loans shall be 3.50% per annum, for
Tranche B Term Loans shall be 4.00% and for Tranche C Term Loans shall be
4.25% per annum; provided further that, if at any time a Compliance
--------
Certificate is not delivered at the time required pursuant to subsection
6.1(iv), from the time such Compliance Certificate was required to be
delivered until delivery of such Compliance Certificate, the Applicable
Eurodollar Margin shall be the maximum percentage amount for the relevant
Loan set forth above.
'Consolidated EBITDA' means, for any period, the sum of the amounts
for such period of (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) provisions for taxes based on income, (iv) the amount of the
call premiums paid in connection with the redemption of the Senior Notes up
to a maximum aggregate amount of $2.0 million, (v) total depreciation
expense, (vi) total amortization expense, including but not limited to
goodwill, organization costs and other intangibles, (vii) other non-cash
items reducing Consolidated Net Income less other non-cash items increasing
----
Consolidated Net Income, and (viii) non-recurring cash restructuring
charges in an aggregate amount not to exceed $4,500,000 related to the
consolidation of the Company's and Lil' Champ's support centers in Fiscal
Year 2001, all of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP."
B. Addition of New Definitions. Subsection 1.1 of the Credit Agreement
is hereby further amended by adding thereto the following definition, which
shall be inserted in proper alphabetical order:
"'Fourth Amendment Effective Date' means the date on which that
certain Fourth Amendment and Limited Waiver to Amended and Restated Credit
Agreement dated as of November 7, 2001 by and among Company, Lenders,
Administrative Agent, Syndication Agent and Documentation Agent becomes
effective in accordance with its terms."
1.2 Amendments to Subsection 2.5: Use of Proceeds.
---------------------------------------------
A. Revolving Loans; Swing Line Loans. Subsection 2.5C of the Credit
Agreement is hereby amended by adding the following sentence to the end thereof:
"In no event may the proceeds of any Revolving Loan or Swing Line Loan
be used by the Company to finance any acquisitions of assets (other than
Capital Expenditures in the ordinary course of business) or businesses,
including any Permitted Acquisitions."
3
1.3 Amendments to Subsection 3.1: Issuance of Letters of Credit.
-----------------------------------------------------------
A. Letters of Credit. Subsection 3.1A of the Credit Agreement is
hereby amended by deleting clause (ii) of such subsection 3.1A in its
entirety and substituting the following therefor:
"(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed $30,000,000;"
1.4 Amendments to Section 6: Company's Affirmative Covenants.
--------------------------------------------------------
A. Financial Statements and Other Reports. 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) Monthly Financials: as soon as available and in any event within
------------------
30 days after the end of each month ending after the Fourth Amendment
Effective Date, the consolidated balance sheet of Company and its
Subsidiaries as at the end of such month and the related consolidated
statements of income, stockholders' equity and cash flows of Company and
its Subsidiaries for such month and for the period from the beginning of
the then current Fiscal Year to the end of such month, setting forth in
each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the Financial Plan for the current Fiscal Year, to the extent
prepared on a monthly basis, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments;"
1.5 Amendments to Section 7: Company's Negative Covenants.
-----------------------------------------------------
A. Minimum Coverage Ratio. Subsection 7.6A is hereby amended by
deleting the table set forth therein beginning with the provisions relating to
Fiscal Year 2002 through and including the end thereof and by substituting
therefor the following:
Minimum
"Period Coverage Ratio
------- --------------
As of the last day of the first Fiscal Quarter in Fiscal
Year 2002 1.50:1.00
As of the last day of the second Fiscal Quarter in Fiscal
Year 2002 1.45:1.00
As of the last day of the third Fiscal Quarter in Fiscal
Year 2002 1.45:1.00
4
As of the last day of the fourth Fiscal Quarter in Fiscal 1.40:1.00
Year 2002
As of the last day of the first Fiscal Quarter in Fiscal 1.40:1.00
Year 2003
As of the last day of the second Fiscal Quarter in Fiscal 1.45:1.00
Year 2003
As of the last day of the third Fiscal Quarter in Fiscal 1.50:1.00
Year 2003
As of the last day of the fourth Fiscal Quarter in Fiscal 1.50:1.00
Year 2003
As of the last day of the first Fiscal Quarter in Fiscal 1.50:1.00
Year 2004
As of the last day of the second Fiscal Quarter in Fiscal 1.50:1.00
Year 2004
As of the last day of the third Fiscal Quarter in Fiscal 1.50:1.00
Year 2004
As of the last day of the fourth Fiscal Quarter in Fiscal 1.50:1.00
Year 2004
As of the last day of each Fiscal Quarter in Fiscal Year 1.75:1.00
2005
As of the last day of each Fiscal Quarter in Fiscal Year 1.85:1.00"
2006, and as of the last day of each Fiscal Quarter
thereafter
B. Maximum Consolidated Pro Forma Leverage Ratio. Subsection 7.6B is
hereby amended by deleting the table set forth therein beginning with the
provisions relating to Fiscal Year 2002 through and including the end thereof
and substituting therefor the following:
Maximum
Consolidated Pro Forma
"Period Leverage Ratio
------- --------------
As of the last day of the first Fiscal Quarter in Fiscal 4.85:1.00
Year 2002
As of the last day of the second Fiscal Quarter in Fiscal 5.10:1.00
Year 2002
As of the last day of the third Fiscal Quarter in Fiscal 5.35:1.00
Year 2002
5
As of the last day of the fourth Fiscal Quarter in Fiscal 5.25:1.00
Year 2002
As of the last day of the first Fiscal Quarter in Fiscal 5.25:1.00
Year 2003
As of the last day of the second Fiscal Quarter in Fiscal 5.00:1.00
Year 2003
As of the last day of the third Fiscal Quarter in Fiscal 4.75:1.00
Year 2003
As of the last day of the fourth Fiscal Quarter in Fiscal 4.50:1.00
Year 2003
As of the last day of the first Fiscal Quarter in Fiscal 4.50:1.00
Year 2004
As of the last day of the second Fiscal Quarter in Fiscal 4.50:1.00
Year 2004
As of the last day of the third Fiscal Quarter in Fiscal 4.50:1.00
Year 2004
As of the last day of the fourth Fiscal Quarter in Fiscal 3.85:1.00
Year 2004
As of the last day of each Fiscal Quarter in Fiscal Year 3.00:1.00
2005
As of the last day of each Fiscal Quarter in Fiscal Year 2.50:1.00"
2006, and as of the last day of each Fiscal Quarter
thereafter
C. Minimum Consolidated Pro Forma EBITDA. Subsection 7.6C is hereby
amended by deleting the table set forth therein beginning with the provisions
relating to Fiscal Year 2002 through and including the end thereof and
substituting therefor the following:
Minimum
Consolidated Pro
"Period Forma EBITDA
------- ------------
As of the last day of the first Fiscal Quarter in Fiscal $110,000,000
Year 2002
As of the last day of the second Fiscal Quarter in Fiscal $105,000,000
Year 2002
As of the last day of the third Fiscal Quarter in Fiscal $100,000,000
Year 2002
6
As of the last day of the fourth Fiscal Quarter in Fiscal $ 95,000,000
Year 2002
As of the last day of the first Fiscal Quarter in Fiscal $100,000,000
Year 2003
As of the last day of the second Fiscal Quarter in Fiscal $100,000,000
Year 2003
As of the last day of the third Fiscal Quarter in Fiscal $105,000,000
Year 2003
As of the last day of the fourth Fiscal Quarter in Fiscal $105,000,000
Year 2003
As of the last day of the first Fiscal Quarter in Fiscal $105,000,000
Year 2004
As of the last day of the second Fiscal Quarter in Fiscal $105,000,000
Year 2004
As of the last day of the third Fiscal Quarter in Fiscal $105,000,000
Year 2004
As of the last day of the fourth Fiscal Quarter in Fiscal $110,000,000
Year 2004
As of the last day of each Fiscal Quarter in Fiscal Year $115,000,000
2005
As of the last day of each Fiscal Quarter in Fiscal Year $120,000,000"
2006, and as of the last day of each Fiscal Quarter
thereafter
D. Restriction on Fundamental Changes; Asset Sales and Acquisitions.
Subsection 7.7(vi) is hereby amended by adding the following clause (f) to the
end thereof:
"(f) the aggregate consideration paid by Company and its Restricted
Subsidiaries in connection with such proposed acquisition and any other
acquisitions made during the same Fiscal Year (including without limitation
earn outs or deferred compensation or non-competition arrangements and the
amount of Indebtedness or other liability assumed by Company or any of its
Subsidiaries) shall not exceed (x) for Fiscal Year 2002, the sum of (1)
$3,000,000 plus (2) the net proceeds of any Indebtedness permitted under
subsection 7.1(vii) received during such Fiscal Year and utilized to
consummate such acquisition plus (3) the net proceeds of any issuance of
equity securities received during such Fiscal Year (after taking into
account the amount required to be prepaid on the Loans under subsection
2.4B(iii)(b)) and utilized to consummate such acquisition plus (4) the
amount of any equity securities issued as consideration for any such
acquisition during such Fiscal Year, and (y) for Fiscal Year 2003, the sum
of (1)
7
$15,000,000 plus (2) the net proceeds of any Indebtedness permitted under
subsection 7.1(vii) received during such Fiscal Year and utilized to
consummate such acquisition plus (3) the net proceeds of any issuance of
equity securities received during such Fiscal Year (after taking into
account the amount required to be prepaid on the Loans under subsection
2.4B(iii)(b)) and utilized to consummate such acquisition plus (4) the
amount of any equity securities issued as consideration for any such
acquisition during such Fiscal Year; and"
E. 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:
Maximum Consolidated
"Period Capital Expenditures
------- --------------------
Fiscal Year 1999 $46,000,000
Fiscal Years 2000 and 2001 $43,000,000
Fiscal Year 2002 $27,500,000
Fiscal Year 2003 $30,000,000
Fiscal Year 2004 $32,500,000
Fiscal Year 2005 and each Fiscal Year thereafter $35,000,000"
1.6 Amendments to Exhibits.
----------------------
Exhibit IX (Compliance Certificate) to the Credit Agreement is hereby
----------
amended by deleting it in its entirety and substituting therefor a new Exhibit
-------
IX in the form of Annex A annexed to this Amendment.
-- -------
Section 2. LIMITED WAIVER.
2.1 Waiver.
------
Subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of Company herein contained, Lenders
hereby waive any Event of Default or Potential Event of Default arising prior to
the Fourth Amendment Effective Date (as hereinafter defined) and resulting
solely from (a) the inclusion in the calculation of Company's Consolidated
EBITDA of certain non-recurring cash restructuring charges in an amount not to
exceed $4,500,000 related to the consolidation of Company's and Lil' Champ's
support centers in Fiscal Year 2001, or (b) any failure of Company to comply
with subsection 7.6A or subsection 7.6B of the Credit Agreement as at the end of
the fourth Fiscal Quarter of Fiscal Year 2001.
8
2.2 Limitation Of Waiver.
--------------------
Without limiting the generality of the provisions of subsection 10.6
of the Credit Agreement, the waivers set forth above shall be limited precisely
as written and relate solely to the defaults by Company in the manner and to the
extent described above, and nothing in this Amendment shall be deemed to:
(a) constitute a waiver of any other default of Company with respect
to (i) the inclusion of any other cash charges in the definition of
Consolidated EBITDA or (ii) any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to therein;
or
(b) prejudice any right or remedy that Administrative Agent or any
Lender may now have (except to the extent such right or remedy was based
upon existing defaults that will not exist after giving effect to this
Amendment) or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement (as amended hereby) and the other Loan
Documents shall remain in full force and effect and in all other respects are
hereby ratified and confirmed.
Section 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Fourth
Amendment Effective Date"):
A. Company Documents. On or before the Fourth 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 Fourth
Amendment Effective Date:
1. Signature and incumbency certificates of its officers executing
this Amendment; and
2. Copies of this Amendment executed by each of the Loan Parties.
B. Execution of Amendment by Lenders. On or before the Fourth
Amendment Effective Date, Requisite Lenders shall have executed and delivered
copies of this Amendment to Administrative Agent.
C. Fees. On or before the Fourth Amendment Effective Date, Company
shall pay (i) to Administrative Agent such fees as may have been agreed upon in
writing between Administrative Agent and Company and (ii) to Administrative
Agent for distribution to each Lender consenting to this Amendment on or prior
to the Fourth Amendment Effective Date, an amendment fee in an amount equal to
0.20% of the sum of such consenting Lender's outstanding
9
Term Loans and Revolving Loan Commitments, after taking into account the
Company's prepayment of the Acquisition Term Loans as provided in subsection 3D
hereof.
D. Prepayment of Acquisition Term Loans. On or before the Fourth
Amendment Effective Date, Company shall prepay the outstanding Acquisition Term
Loans in an amount not less than $9,000,000.
E. Other Proceedings. On or before the Fourth 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 and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement 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 performance by Company of the Amended Agreement 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
Fourth Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by Company of
this Amendment and the performance by Company of the Amended Agreement do not
and will not require any registration with, consent or approval of, or notice
to, or other action to, with or by,
10
any federal, state or other governmental authority or regulatory body (other
than filings or recordings required by the transactions contemplated hereunder).
E. Binding Obligation. This Amendment 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 Fourth Amendment Effective Date (after giving effect
to this Amendment) 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. After giving effect to this Amendment, 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.
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.
11
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 Fourth Amendment Effective Date (after giving effect to this
Amendment) 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 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 Fourth 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 without modification or amendment 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 Administrative Agent and its 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.
12
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.
[Remainder of page intentionally left blank]
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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/ W T Flyg
------------
Title: Vice President
R&H MAXXON, INC.,
as a Credit Support Party
By: /s/ W T Flyg
------------
Title: Executive Vice President
KANGAROO, INC.,
as a Credit Support Party
By: /s/ W T Flyg
------------
Title: Executive Vice President
ANNEX A-1
LENDERS: FIRST UNION NATIONAL BANK, individually
and as Administrative Agent
By: /s/ Xxxx Xxxxxxxx
-----------------
Title: Director
CANADIAN IMPERIAL BANK OF
COMMERCE, as Syndication Agent
By: /s/ Xxxxxxxxx Xxxx
------------------
Title: Executive Director
CIBC INC., as a Lender
By: /s/ Xxxxxxxxx Xxxx
------------------
Title: Executive Director
BANK OF AMERICA, N.A. (formerly
NationsBank, N.A.), individually and as
Documentation Agent
By: ____________________________________
Title: _________________________________
TYLER TRADING, INC., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: President
ANNEX A-2
TORONTO DOMINION (NEW YORK), INC., as
a Lender
By: ____________________________________
Title: _________________________________
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxx
_______________________
Title: Vice President - Portfolio Manager
THE PROVIDENT BANK, as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxx Xxxxx
--------------
Title: Investment Banking Officer
XXXXX FARGO BANK, N.A., as a Lender
By: /s/ S. Xxxxxxx St. Geme
-----------------------
Title: Vice President
ANNEX A-3
COMPAGNIE FINANCIERE DE CIC ET
DE L' UNION EUROPEENNE, as a Lender
By: /s/ Xxxxxxx Xxxx
----------------
Title: Vice President
By: /s/ Xxxx Xxxxxxx
----------------
Title: First Vice President
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Title: Associate
By: /s/ Xxxxx Xxxx
--------------
Title: Vice President
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY, as a Lender
By: /s/ P. Xxxxxxx Xxxx
-------------------
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS I,
LTD., as a Lender
By: /s/ P. Xxxxxxx Xxxx
-------------------
Title: Principal
ANNEX A-4
BLUE SQUARE FUNDING LIMITED SERIES 3,
as a Lender
By: _____________________________________
Title: __________________________________
EMERALD ORCHARD LIMITED, as a Lender
By: _____________________________________
Title: __________________________________
GLENEAGLES TRADING LLC, as a Lender
By: _____________________________________
Title: __________________________________
HIGHLAND LEGACY LIMITED, as a Lender
By: _____________________________________
Title: __________________________________
HIGHLAND LOAN FUNDING V LTD., as a Lender
By: _____________________________________
Title: __________________________________
KZH HIGHLAND 2 LLC, as a Lender
By: _____________________________________
Title: __________________________________
XXXXX X- 0
XXX PAMCO LLC, as a Lender
By:_____________________________________
Title:__________________________________
SRV-HIGHLAND, INC., as a Lender
By:_____________________________________
Title:__________________________________
KZH CNC LLC, as a Lender
By: /s/ Xxxxx Xxx
--------------
Title: Authorized Agent
WINGED FOOT FUNDING TRUST, as a Lender
By: /s/ Xxx X. Xxxxxx
------------------
Title: Authorized Agent
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By: /s/ Xxxxxxx Xxxxxx
-------------------
Title: Authorized signatory
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES, as a Lender
By: /s/ Xxxxxxx Xxxxxx
-------------------
Title: Authorized signatory
ANNEX A-6
LONGHORN CDO (CAYMAN) LTD., as a Lender
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Authorized signatory
XXXXXX XXXXXXX PRIME INCOME TRUST,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Title: Executive Director
XXX XXXXXX CLO I LIMITED, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Executive Director
XXX XXXXXX SENIOR FLOATING RATE FUND,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Executive Director
XXX XXXXXX PRIME RATE INCOME TRUST,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: Executive Director
ANNEX A-7
INDOSUEZ CAPITAL FUNDING IIA, LIMITED,
as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Xxxx X. Xxxxx
-----------------
Title: Vice President and Portfolio Manager
INDOSUEZ CAPITAL FUNDING III, LIMITED,
as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Xxxx X. Xxxxx
-----------------
Title: Vice President and Portfolio Manager
INDOSUEZ CAPITAL FUNDING IV, L.P.,
as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Xxxx X. Xxxxx
-----------------
Title: Vice President and Portfolio Manager
INDOSUEZ CAPITAL FUNDING VI, LIMITED,
as a Lender
By: /s/ Xxxx X. Xxxxx
-----------------
Title:Vice President and Portfolio Manager
XXXXXXX FUNDING LLC,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Asst. Vice President
ANNEX A-8
MONUMENT CAPITAL LTD., as a Lender
By: /s/ Sverker M.M. Johansson
--------------------------
Title: Vice President
UBS XXXXXXX CBO LIMITED, as a Lender
By: /s/ Xxx Xxxxxx
--------------
Title: Associate Director
ELC (CAYMAN) LTD., as a Lender
By: /s/ XX Xxxxxxxx
---------------
Title: Managing Director
ELC (CAYMAN) LTD. 1999-III, as a Lender
By: /s/ XX Xxxxxxxx
---------------
Title: Managing Director
ELC (CAYMAN) LTD. 2000-1, as a Lender
By: /s/ XX Xxxxxxxx
---------------
Title: Managing Director
ELC (CAYMAN) LTD. CDO SERIES 1999-1,
as a Lender
By: /s/ XX Xxxxxxxx
---------------
Title: Managing Director
ANNEX A-9
XXXXX CLO LTD. 2000-1, as a Lender
By: /s/ XX Xxxxxxxx
---------------
Title: Managing Director
ADDISON CDO, LIMITED, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
ATHENA CDO, LIMITED, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general
partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
DELANO COMPANY, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general
partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
ANNEX A-10
CAPTIVA III FINANCE, LTD., as a Lender,
as advised by Pacific Investment Management
Company
By: /s/ Xxxxx Xxxx
--------------
Title: Director
CATALINA CDO LTD., as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
JISSEKIKUN FUNDING LTD., as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
ROYALTON COMPANY, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Title: Executive Vice President
NOVA CDO 2000, LTD., as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Director
AIMCO CDO SERIES 2000-A, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Authorized Signatories
By: /s/ Xxxxxx X Xxxxx
------------------
Title: Authorized Signatories
ANNEX A-11
ALLSTATE LIFE INSURANCE COMPANY, as
a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Authorized Signatories
By: /s/ Xxxxxx X Xxxxx
------------------
Title: Authorized Signatories
MUIRFIELD TRADING LLC, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Asst. Vice President
OLYMPIC FUNDING TRUST SERIES 1999-1,
as a Lender
By: /s/ Xxx X. Xxxxxx
-----------------
Title: Authorized Agent
SEQUILS-CUMBERLAND I, LTD., as a Lender
By: /s/ Xxxx Xxxxxxxx
-----------------
Title Vice President
XXXXXXXXXXX SENIOR FLOATING RATE FUND,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
------------------
Title: A.V.P.
XXXXXXX XXXX FLOW FUND II, as a Lender
By: /s/ ______________________________
ANNEX A-12
Title: Managing Director
ANNEX A-13
ANNEX A
-------
EXHIBIT IX
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) We are the duly elected [Title] and [Title] of The Pantry, Inc., a
Delaware corporation ("Company");
(2) We have reviewed the terms of that certain Amended and Restated
Credit Agreement dated as of January 28, 1999 as amended, supplemented
or otherwise modified to the date hereof (said Amended and Restated
Credit Agreement, as so amended, supplemented or otherwise modified,
being the "Credit Agreement", the terms defined therein and not
otherwise defined in this Certificate (including Attachment No. 1
annexed hereto and made a part hereof) being used in this Certificate
as therein defined), by and among Company, the financial institutions
listed therein as Lenders, First Union National Bank, as
Administrative Agent, Canadian Imperial Bank of Commerce, as
Syndication Agent, and Bank of America, N.A. (formerly known as
NationsBank, N.A.), as Documentation Agent, and the terms of the other
Loan Documents, and we have made, or have caused to be made under our
supervision, a review in reasonable detail of the transactions and
condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements; and
(3) The examination described in paragraph (2) above did not disclose,
and we have no knowledge of, the existence of any condition or event
which constitutes an Event of Default or Potential Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except as
set forth below.
Set forth below are all exceptions to paragraph (3) above listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which Company has taken, is taking, or proposes to take
with respect to each such condition or event:
________________________________________________________________________________
ANNEX A-1
The foregoing certifications, together with the computations set forth
in Attachment No. 1 annexed hereto and made a part hereof and the financial
statements delivered with this Certificate in support hereof, are made and
delivered this __________ day of _____________, ____ pursuant to subsection
6.1(iv) of the Credit Agreement.
THE PANTRY, INC.
By: ____________________________
Title: _________________________
By: ____________________________
Title: _________________________
ANNEX A-2
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ____ and pertains to the period from
____________, ____ to ____________, ____. Subsection references herein relate to
subsections of the Credit Agreement.
A. Indebtedness
1. Aggregate amount of Indebtedness in respect of
Capital Leases permitted under subsection 7.1(iii)
and other Indebtedness incurred in the ordinary
course of business to finance the cost of
acquisition of assets used in the business of
Company and its Restricted Subsidiaries permitted
under subsection 7.1(iii): $_____________
2. Maximum amount permitted under subsection
7.1(iii): $ 30,000,000
3. Aggregate principal amount of the Senior
Subordinated Notes: $_____________
4. Maximum permitted under subsection 7.1(vi): $200,000,000
5. Indebtedness of Company permitted under subsection
7.1(vii): $_____________
6. Maximum permitted under subsection 7.1(vii): $ 50,000,000
7. Indebtedness of Company and its Restricted
Subsidiaries permitted under subsection 7.1(viii): $_____________
8. Maximum permitted under subsection 7.1(viii): $ 5,000,000
B. Liens
1. Indebtedness secured by Liens permitted under
subsection 7.2A(v): $_____________
2. Maximum permitted under subsection 7.2A(v): $ 3,000,000
C. Investments
1. Aggregate amount of investments in Unrestricted
Subsidiaries made after the Closing Date permitted
under subsection 7.3(vi): $_____________
2. Maximum permitted under subsection 7.3(vi): $ 4,500,000
ANNEX A-3
3. Loans of Company and its Restricted Subsidiaries
to their employees permitted under subsection
7.3(viii): $_____________
4. Maximum permitted under subsection 7.3(viii): $ 1,000,000
5. Investments of Company and its Restricted
Subsidiaries permitted under subsection 7.3(ix): $_____________
6. Maximum permitted under subsection 7.3(ix): $ 1,000,000
D. Contingent Obligations
1. Contingent Obligations under guarantees of
obligations of suppliers, customers, franchisees
and licensees permitted under subsection 7.4(iv): $_____________
2. Maximum permitted under subsection 7.4(iv): $ 3,000,000
3. Contingent Obligations of Company and its
Restricted Subsidiaries permitted under subsection
7.4(viii): $_____________
4. Maximum permitted under subsection 7.4(viii): $ 3,000,000
E. Restricted Junior Payments
1. Restricted Junior Payments made by Company as
permitted under subsection 7.5(ii): $_____________
2. Maximum permitted under subsection 7.5(ii): $ 500,000
F. Minimum Coverage Ratio (for the four consecutive Fiscal
Quarter period ending _____________, ____)
1. Consolidated Net Income: $_____________
2. Consolidated Interest Expense: $_____________
3. Provisions for taxes based on income: $_____________
4. Total depreciation expense: $_____________
5. Total amortization expense: $_____________
6. Amount of redemption premiums paid on Senior Notes
(up to $2,000,000): $_____________
ANNEX A-4
7. Other non-cash items reducing Consolidated Net
Income: $_____________
8. Other non-cash items increasing Consolidated Net
Income: $_____________
9. Permitted non-recurring cash restructuring items
related to the consolidation of the Company's and
Lil' Champ's support centers in Fiscal Year 2001,
up to an aggregate of $4,500,000: $_____________
10. Consolidated EBITDA
(1+2+3+4+5+6+7-8+9): $_____________
11. Consolidated Rental Payments: $_____________
12. Coverage Ratio (10+11):(2+11): ____:1.00
13. Minimum ratio required under subsection 7.6A:
____:1.00
G. Maximum Consolidated Pro Forma Leverage Ratio (as of
_____________, ____)
1. Consolidated Total Debt: $_____________
2. Consolidated EBITDA (for the four $_____________
consecutive Fiscal Quarter period ending as of
_________, ____) (F.10 above)
3. For any business acquired during such Four Fiscal
Quarter period and after the Effective Date, (i)
EBITDA of such acquired business determined as
though such business were acquired as of the first
day of such period by Company and its
Subsidiaries, plus (ii) the amount of any
historical extraordinary or nonrecurring costs or
expenses or other verifiable costs or expenses
that will not continue after the acquisition date,
plus (iii) any reasonable operating expenses to be
eliminated that are approved by the Administrative
Agent: $_____________
4. Adjustments for such period (if any) set forth on
Schedule 1.1 to the Agreement
5. Consolidated Pro Forma EBITDA (2+3+4): $_____________
6. Consolidated Leverage Ratio (1):(5): ____:1.00
7. Maximum ratio permitted under subsection 7.6B: ____:1.00
ANNEX A-5
H. Minimum Consolidated Pro Forma EBITDA for the four
consecutive Fiscal Quarter period ending
------------, ----
1. Consolidated Pro Forma EBITDA (G.5): $_____________
2. Minimum required under subsection 7.6C: $_____________
I. Fundamental Changes
1. Aggregate fair market value of assets sold by
Company and its Restricted Subsidiaries in Asset
Sales permitted under subsection 7.7(v)(a): $_____________
2. Maximum permitted under subsection 7.7(v)(a): $ 10,000,000
3. Aggregate consideration paid by Company and its
Restricted Subsidiaries in connection with an
acquisition or any related series of acquisitions
(including without limitation earn outs or
deferred compensation or non-competition
arrangements and the amount of Indebtedness or
Liabilities assumed by Company or any of its
Subsidiaries): $_____________
4. Maximum permitted under subsection 7.7(vi)(e): $ 50,000,000
5. Aggregate consideration paid by Company and its
Restricted Subsidiaries in connection with all
acquisitions (including without limitation earn
outs or deferred compensation or non-competition
arrangements and the amount of Indebtedness or
other liabilities assumed by Company or any of its
Subsidiaries) during current Fiscal Year not
including subordinated debt or equity proceeds: $_____________
6. Subordinated debt proceeds: $_____________
7. 50% of equity proceeds: $_____________
8. Equity issued as consideration: $_____________
9. Aggregate acquisition consideration paid (I.5 +
I.6 + I.7+I.8): $_____________
10. Maximum permitted under subsection 7.7(vi)(f): $_____________
ANNEX A-6
11. The aggregate fair market value of all property or
assets transferred by Company and its Restricted
Subsidiaries during this Fiscal Year in connection
with asset exchanges permitted under subsection
7.7(vii): $_____________
12. Maximum permitted under subsection 7.7(vii): $ 20,000,000
J. Consolidated Capital Expenditures
1. Consolidated Capital Expenditures of Company and
its Restricted Subsidiaries for Fiscal
Year-to-date: [compare against J.6 below] $_____________
2. Maximum Consolidated Capital Expenditures Amount
permitted for the previous Fiscal Year (prior to
any adjustment in accordance with the proviso in
subsection 7.8): $_____________
3. Actual amount of Consolidated Capital Expenditures
for such previous Fiscal Year: $_____________
4. Difference (if positive) of Maximum Consolidated
Capital Expenditures Amount over the actual amount
of Consolidated Capital Expenditures, in each case
for such previous Fiscal Year (2-3): $_____________
5. Maximum amount of Consolidated Capital
Expenditures for this Fiscal Year permitted in the
table set forth in subsection 7.8: $_____________
6. Maximum amount of Consolidated Capital
Expenditures for this Fiscal Year permitted under
subsection 7.8 (5 + 4): $_____________
K. Sale and Lease-Backs
1. The aggregate consideration received for all
properties or assets sold under clause (ii) of
subsection 2.4B(iii)(a) after the Closing Date: $_____________
2. Maximum permitted under subsection 7.9: $ 40,000,000
3. The aggregate consideration received during this
Fiscal Year for all properties or assets sold
under clause (ii) of subsection 2.4B(iii)(a) after
the Closing Date: $_____________
ANNEX A-7
4. Maximum permitted under subsection 7.9: $ 15,000,000
5. a. List all properties acquired since the date of
the last compliance certificate:
___________________________________________
___________________________________________
___________________________________________
b. List all properties for which sale/leasebacks
have been completed since the date of the last
compliance certificate:
___________________________________________
___________________________________________
___________________________________________
L. Net Asset Sale Proceeds
1. The aggregate amount of Net Asset Sale Proceeds
held for reinvestment pursuant to clause (iv) of
subsection 2.4B(iii)(a) as of Fiscal Quarter ended
__________ (compare against L.2 below): $_____________
2. Maximum amount of Net Asset Sale Proceeds
permitted to be held at any time for reinvestment
pursuant to clause (iv) of subsection
2.4B(iii)(a): $ 10,000,000
ANNEX A-8
