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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q/A
(Amendment No. 1)
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED DECEMBER 30, 1999
COMMISSION FILE NUMBER 33-72574
THE PANTRY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 56-1574463
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1801 DOUGLAS DRIVE, SANFORD, NORTH CAROLINA
(Address of principal executive offices)
27330
(Zip Code)
(919) 774-6700
(Registrant's telephone number, including area code)
N/A
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES [ X ] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
COMMON STOCK, $0.01 PAR VALUE 18,111,474 SHARES
(Class) (Outstanding at February 7, 2000)
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THE PANTRY, INC.
FORM 10-Q/A
(Amendment No. 1)
DECEMBER 30, 1999
TABLE OF CONTENTS
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<S> <C>
Part II -- Other Information
Item 6. Exhibits and Reports on Form 8-K.................................. 1
</TABLE>
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The Registrant hereby amends Item 6 of its Quarterly Report on Form 10-Q for
the quarterly period ended December 30, 1999, filed with the Securities and
Exchange Commission on February 14, 2000, to add Exhibits 10.37 (Second
Amendment to Credit Agreement) and 10.38 (Third Amendment to Credit
Agreement). The remainder of the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended December 30, 1999 remains unchanged.
PART II--OTHER INFORMATION.
ITEM 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
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<S> <C>
10.37 Second Amendment to Credit Agreement dated as of October 27, 1999 and entered into by and
among The Pantry, the financial institutions listed on the signature page thereof, First Union
National Bank, as administrative agent for Lenders (as defined therein), Canadian Imperial Bank
of Commerce, assyndication agent for Lenders, and Bank of America, N.A. (formerly known
as NationsBank, N.A.), as documentation agent for Lenders, and, for purposes of Section 5
thereof, the Credit Support Parties (as defined therein) listed on the signature pages thereof.
10.38 Third Amendment to Credit Agreement dated as of November 30, 1999 and entered into by and
among The Pantry, the financial institutions listed on the signature page thereof, First Union
National Bank, as administrative agent for Lenders, Canadian Imperial Bank of Commerce, as
syndication agent for Lenders, and Bank of America, N.A. (formerly known as NationsBank,
N.A.), as documentation agent for Lenders, and, for purposes of Section 5 thereof, the Credit
Support Parties (as defined therein) listed on the signature pages thereof.
27.1* Financial Data Schedule.
99.1* Risk Factors.
</TABLE>
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*Previously filed.
(b) Reports on Form 8-K.
(1) On October 5, 1999, The Pantry filed a Current Report on Form 8-K/A
(Amendment No. 1) which provided the following financial statements for the
acquisition of 100% of the outstanding capital stock of R&H Maxxon, Inc
("Maxxon") on July 22, 1999:
Audited financial statements of Maxxon as of June 30, 1999, 1998 and
1997, and for each of the three years in the period ended June 30, 1999:
(1) Report of Independent Certified Public Accountants
(2) Balance Sheets
(3) Statements of Income
(4) Statements of Changes in Stockholders' Equity
(5) Statements of Cash Flows
(6) Notes to Financial Statements
Unaudited pro forma consolidated financial data:
(1) Introduction to Unaudited Pro Forma Data
(2) Unaudited Pro Forma Balance Sheet Data as of June 24, 1999
(3) Notes to Unaudited Pro Forma Balance Sheet Data
(4) Unaudited Pro Forma Statement of Operations Data for the Nine-
Month Period Ended June 24, 1999
1
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(5) Unaudited Pro Forma Statement of Operations Data for the Year
Ended September 24, 1998
(6) Notes to Unaudited Pro Forma Statement of Operations Data
(2) On November 25, 1999, The Pantry filed a Current Report on Form 8-K
announcing its acquisition of 100% of the outstanding stock of Kangaroo,
Inc ("Kangaroo") on November 11, 1999.
(3) On January 3, 2000, The Pantry filed a Current Report on Form 8-K/A
(Amendment No. 2) to amend and restate Item 7 to its Current Report on Form
8-K/A, filed on October 5, 1999, to revise footnote (k) to the Notes to
Unaudited Pro Forma Statement of Operations Data to reflect an accounting
adjustment to third quarter financial results for The Pantry.
(4) On January 25, 2000, The Pantry filed a Current Report on Form 8-K/A
(Amendment No. 1) which provided the following financial statements for the
acquisition of 100% of the outstanding capital stock of Kangaroo on
November 11, 1999:
Audited financial statements of Kangaroo as of October 31, 1999 and 1998,
and for each of the two years in the period ended October 31, 1999:
(1) Report of Independent Auditor's Report
(2) Balance Sheets
(3) Statements of Income and Retained Earnings
(4) Statements of Cash Flows
(5) Notes to Financial Statements
Unaudited pro forma financial data:
(1) Introduction to Unaudited Pro Forma Financial Data
(2) Unaudited Pro Forma Balance Sheet Data as of September 30, 1999
(3) Notes to Unaudited Pro Forma Balance Sheet Data
(4) Unaudited Pro Forma Statement of Operations Data for the Year
Ended September 30, 1999
(5) Notes to Unaudited Pro Forma Statements of Operations Data
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Amendment No. 1 to be signed on its behalf by
the undersigned thereunto duly authorized.
THE PANTRY, INC.
Date: February 17, 2000
/s/ WILLIAM T. FLYG
By: _________________________________
William T. Flyg
Senior Vice President Finance and
Secretary
(Authorized Officer and Principal
Financial Officer)
3
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EXHIBIT INDEX
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Exhibit No. Description of Document
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<C> <S>
10.37 Second Amendment to Credit Agreement dated as of October 27, 1999
and entered into by and
among The Pantry, the financial institutions listed on the
signature page thereof, First Union
National Bank, as administrative agent for Lenders (as defined
therein) , Canadian Imperial Bank of Commerce, assyndication agent
for Lenders, and Bank of America, N.A. (formerly known as
NationsBank, N.A.), as documentation agent for Lenders, and, for
purposes of Section 5 thereof, the Credit Support Parties (as
defined therein) listed on the signature pages thereof.
10.38 Third Amendment to Credit Agreement dated as of November 30, 1999
and entered into by and
among The Pantry, the financial institutions listed on the
signature page thereof, First Union
National Bank, as administrative agent for Lenders, Canadian
Imperial Bank of Commerce, as
syndication agent for Lenders, and Bank of America, N.A. (formerly
known as NationsBank,
N.A.), as documentation agent for Lenders, and, for purposes of
Section 5 thereof, the Credit
Support Parties (as defined therein) listed on the signature pages
thereof.
27.1* Financial Data Schedule.
99.1* Risk Factors.
</TABLE>
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*Previously filed.
4
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Exhibit 10.37
THE PANTRY, INC.
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of October 27, 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 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 (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 desires to borrow, and Lenders desire to lend,
tranche C term loans ("Tranche C Term Loans") in an aggregate principal amount
of $75,000,000 and Company desires to use the proceeds of such Tranche C Term
Loans to (1) voluntarily prepay all Acquisition Term Loans outstanding as of the
last funding date of Tranche C Term Loans 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 (2) make Permitted
Acquisitions during the period from the last funding date of Tranche C Term
Loans to the earlier of (x) the date on which Company notifies Administrative
Agent that it has applied or will apply all such proceeds to the making of one
or more Permitted Acquisitions, (y) the date on which Company elects not to
apply such proceeds to the making of Permitted Acquisitions and use such
proceeds to prepay the Tranche C Term Loans, or (z) the one-year anniversary of
the last funding date of Tranche C Term Loans; 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:
1
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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 "Applicable Base Rate
Margin", "Applicable Eurodollar Rate Margin", "Class", "Notes", "Pro Rata
Share", "Requisite Class Lenders", "Requisite Lenders", "Term Loans" and "Type"
in their entirety and substituting the following therefor:
"`Applicable Base Rate Margin' means, as of any date of
determination, the following:
(x) with respect to Acquisition Term Loans, Tranche A Term Loans
and Revolving Loans, 1.50% per annum;
(y) with respect to Tranche B Term Loans, 2.00% per annum; and
(z) with respect to Tranche C Term Loans, 2.25% per annum or
such higher rate as may be established by Agents in their sole
discretion pursuant to arrangements agreed upon by Agents and Company;
provided that if a higher rate is established by Agents, such higher
--------
rate shall be specified in a written notice from Agents to Company and
Lenders.
`Applicable Eurodollar Margin' means, as of any date of determination,
the following:
(x) with respect to Acquisition Term Loans, Tranche A Term Loans
and Revolving Loans, 3.00% per annum;
(y) with respect to Tranche B Term Loans, 3.50% per annum; and
(z) with respect to Tranche C Term Loans, 3.75% per annum or
such higher rate as may be established by Agents in their sole
discretion pursuant to arrangements agreed upon by Agents and Company;
provided that if a higher rate is established by Agents, such higher
--------
rate shall be specified in a written notice from Agents to Company and
Lenders.
`Class' means, with respect to Lenders, the following five classes of
Lenders: (i) Lenders having Acquisition Term Loan Exposure, (ii) Lenders
having Tranche A Term Loan Exposure, (iii) Lenders having Tranche B Term
Loan Exposure, (iv) Lenders having Tranche C Term Loan Exposure, and (v)
Lenders having Revolving Loan Exposure.
`Notes' means one or more of the Acquisition Term Notes, Tranche A
Term Notes, Tranche B Term Notes, Tranche C Term Notes, Revolving Notes or
Swing Line Note or any combination thereof.
2
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`Pro Rata Share' means:
(i) with respect to all payments, computations and other
matters relating to the Acquisition Term Loan Commitment or the
Acquisition Term Loans of any Lender, the percentage obtained by
dividing (x) the Acquisition Term Loan Exposure of that Lender by
-------- --
(y) the aggregate Acquisition Term Loan Exposure of all Lenders;
(ii) with respect to all payments, computations and other
matters relating to the Tranche A Term Loan Commitment or the Tranche
A Term Loan of any Lender, the percentage obtained by dividing (x) the
--------
Tranche A Term Loan Exposure of that Lender by (y) the aggregate
--
Tranche A Term Loan Exposure of all Lenders;
(iii) with respect to all payments, computations and other
matters relating to the Tranche B Term Loan Commitment or the Tranche
B Term Loan of any Lender, the percentage obtained by dividing (x) the
--------
Tranche B Term Loan Exposure of that Lender by (y) the aggregate
--
Tranche B Term Loan Exposure of all Lenders;
(iv) with respect to all payments, computations and other
matters relating to the Tranche C Term Loan Commitment or the Tranche
C Term Loan of any Lender, the percentage obtained by dividing (x) the
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Tranche C Term Loan Exposure of that Lender by (y) the aggregate
--
Tranche C Term Loan Exposure of all Lenders;
(v) with respect to all payments, computations and other
matters relating to the Revolving Loan Commitment or the Revolving
Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or any participations in any Swing
Line Loans purchased by any Lender, the percentage obtained by
dividing (x) the Revolving Loan Exposure of that Lender by (y) the
-------- --
aggregate Revolving Loan Exposure of all Lenders; and
(vi) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Acquisition Term
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Loan Exposure of that Lender plus the Tranche A Term Loan Exposure of
----
that Lender plus the Tranche B Term Loan Exposure of that Lender plus
---- ----
the Tranche C Term Loan Exposure of that Lender plus the Revolving
----
Loan Exposure of that Lender by (y) the sum of the aggregate
--
Acquisition Term Loan Exposure of all Lenders plus the aggregate
----
Tranche A Term Loan Exposure of all Lenders plus the aggregate Tranche
----
B Term Loan Exposure of all Lenders plus the aggregate Tranche C Term
----
Loan Exposure of all Lenders plus the aggregate Revolving Loan
----
Exposure of all Lenders, in any such case as the applicable percentage
may be adjusted by assignments permitted pursuant to subsection 10.1.
3
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The Pro Rata Share of each Lender for purposes of each of clauses (i),
(ii), (iii), (iv), (v) and (vi) of the preceding sentence is set forth
opposite the name of that Lender in Schedule 2.1 annexed hereto (as amended
------------
on the Second Amendment Effective Date).
`Requisite Class Lenders' means, at any time:
(i) for Class Lenders having Acquisition Term Loan Exposure,
Lenders having or holding 66-2/3% of the aggregate Acquisition Term Loan
Exposure of all Lenders;
(ii) for Class Lenders having Tranche A Term Loan Exposure, Lenders
having or holding 66-2/3% of the aggregate Tranche A Term Loan Exposure of
all Lenders;
(iii) for Class Lenders having Tranche B Term Loan Exposure, Lenders
having or holding 66-2/3% of the aggregate Tranche B Term Loan Exposure of
all Lenders;
(iv) for Class Lenders having Tranche C Term Loan Exposure, Lenders
having or holding 66-2/3% of the aggregate Tranche C Term Loan Exposure of
all Lenders; and
(v) for Class Lenders having Revolving Loan Exposure, Lenders
having or holding 66-2/3% of the aggregate Revolving Loan Exposure of all
Lenders.
`Requisite Lenders' means Lenders having or holding more than 50% of
the sum of the aggregate Acquisition Term Loan Exposure of all Lenders, the
aggregate Tranche A Term Loan Exposure of all Lenders, the aggregate
Tranche B Term Loan Exposure of all Lenders, the aggregate Tranche C Term
Loan Exposure of all Lenders and the aggregate Revolving Loan Exposure of
all Lenders.
`Term Loans' means the Acquisition Term Loans, Tranche A Term Loans,
Tranche B Term Loans or Tranche C Term Loans or any combination thereof.
`Type' means (i) with respect to a Loan, a Term Loan, a Revolving Loan
or a Swing Line Loan (each of which is a 'Type' of Loan) and (ii) with
respect to a Term Loan, an Acquisition Term Loan, a Tranche A Term Loan, a
Tranche B Term Loan or a Tranche C Term Loan (each of which is a 'Type' of
Term Loan)."
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:
"`Final Tranche C Term Loan Funding Date' means the earlier to occur
of (x) the Tranche C Term Loan Funding Date on which all remaining
available Tranche C Term Loans are borrowed by Company, or (y) the fourth
Tranche C Term Loan Funding Date; provided, however, that the Final Tranche
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C Term Loan Funding Date shall be no later than November 30, 1999.
`Retained Tranche C Term Loan Proceeds' has the meaning assigned to
that term in subsection 6.12.
4
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`Second Amendment Effective Date' means the date on which that certain
Second Amendment to Credit Agreement dated as of October 27, 1999 by and
among Company, Lenders, Administrative Agent, Syndication Agent and
Documentation Agent becomes effective in accordance with its terms.
`Tranche C Term Loan Commitment' means the commitment of a Lender to
make a Tranche C Term Loan to Company pursuant to subsection 2.1A(iii-b),
and 'Tranche C Term Loan Commitments' means such commitments of all Lenders
in the aggregate.
`Tranche C Term Loan Exposure' means, with respect to any Lender as of
any date of determination (i) prior to the termination of all of the
Tranche C Term Loan Commitments, the sum of (a) that Lender's Tranche C
Term Loan Commitment plus (b) the aggregate outstanding principal amount of
----
the Tranche C Term Loan of the Lender and (ii) after the termination of the
Tranche C Term Loan Commitments, the aggregate outstanding principal amount
of the Tranche C Term Loan of the Lender.
`Tranche C Term Loan Funding Date' means the date of a funding of a
Tranche C Term Loan; provided that there shall be (i) no more than four (4)
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Tranche C Term Loan Funding Dates and (ii) no Tranche C Term Loan Funding
Date after the Final Tranche C Term Loan Funding Date.
`Tranche C Term Loan Proceeds Certification Date' means the earlier to
occur of the following:
(1) the date on which Company delivers an Officers' Certificate
to Administrative Agent certifying that Company has applied or will
apply, together with the proceeds of any requested borrowing of
Acquisition Term Loans, all of the Retained Tranche C Term Loan
Proceeds to the making of one or more Permitted Acquisitions; or
(2) the date on which Company (x) delivers an Officers'
Certificate to Administrative Agent certifying that Company has
elected not to apply any unutilized Retained Tranche C Term Loan
Proceeds to the making of any Permitted Acquisitions and summarizing
in reasonable detail the uses of the Retained Tranche C Term Loan
Proceeds during the period prior to such date of delivery of such
Officers' Certificate and the amount of any unutilized Retained
Tranche C Term Loan Proceeds as of such date, and (y) prepays the
Tranche C Term Loans as required pursuant to subsection 6.12; or
(3) the date which is the one-year anniversary of the Final
Tranche C Term Loan Funding Date and on which Company (x) delivers an
Officers' Certificate summarizing in reasonable detail the uses of the
Retained Tranche C Term Loan Proceeds during the prior one-year period
and the amount of any unutilized Retained Tranche C Term Loan Proceeds
as of such date, and (y) prepays the Tranche C Term Loans or delivers
the Officers' Certificate with
5
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respect to the Committed Acquisition (as defined in subsection 6.12),
in each case as required pursuant to subsection 6.12.
`Tranche C Term Loans' means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii-b).
`Tranche C Term Notes' means (i) the promissory notes of Company
issued pursuant to subsection 2.1E(i)(d) on the Second 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
Tranche C Term Loan Commitments or Tranche C Term Loans of any Lenders, in
each case substantially in the form of Exhibit VI-B annexed hereto, as they
------------
may be amended, supplemented or otherwise modified from time to time."
1.2 Amendments to Section 2: Amounts and Terms of Commitments and Loans.
-------------------------------------------------------------------
A. Commitments. Subsection 2.1A of the Credit Agreement is hereby
amended by deleting in its entirety the reference to "subsections 2.1A(i),
2.1A(ii), 2.1A(iii) and/or 2.1A(iv)" set forth in the introductory paragraph
contained therein and substituting "subsections 2.1A(i), 2.1A(ii), 2.1A(iii),
2.1A(iii-b) and/or 2.1A(iv)" therefor.
B. 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. Subject to the provisions set forth in
----------------------
subsection 7.7(vi), each Lender having an Acquisition Term Loan Commitment
severally agrees to lend to Company from time to time (x) during the period
from and after the Second Amendment Effective Date to but excluding the
Final Tranche C Term Loan Funding Date and (y) during the period from and
after the Tranche C Term Loan Proceeds Certification Date 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 Second Amendment Effective Date is set forth opposite its name on
Schedule 2.1 annexed hereto (as amended on the Second Amendment Effective
------------
Date) and the aggregate amount of the Acquisition Term Loan Commitments as
of the Second Amendment Effective Date is $38,000,000 and, in the event
that Company voluntarily prepays all of the Acquisition Term Loans
outstanding immediately prior to the Final Tranche C Term Loan Funding Date
from the Retained Tranche C Term Loan Proceeds pursuant to subsection
2.4B(i), the amount of each Lender's Acquisition Term Loan Commitment as of
the Final Tranche C Term Loan Funding Date shall be set forth opposite its
name on a revised Schedule 2.1 to be delivered by Administrative Agent to
------------
Company and Lenders, and the aggregate amount of the Acquisition Term Loan
Commitments as of the Final Tranche C Term Loan Funding Date shall be
$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
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the amount of the Acquisition Term Loan
6
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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. Except as otherwise
provided in this subsection 2.1A(i) with respect to the reinstatement of
Acquisition Term Loan Commitments in an aggregate amount of $50,000,000
upon the prepayment of outstanding Acquisition Term Loans from the Retained
Tranche C Term Loan Proceeds, amounts borrowed under this subsection
2.1A(i) and subsequently repaid or prepaid may not be reborrowed."
C. Tranche C Term Loans. Subsection 2.1A of the Credit Agreement
is hereby further amended by adding the following as a new subsection 2.1A(iii-
b) immediately after subsection 2.1A(iii):
"(iii-b) Tranche C Term Loans. Each Lender having a Tranche C Term
--------------------
Loan Commitment severally agrees to lend to Company on each Tranche C Term
Loan Funding Date an aggregate amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche C Term Loan Commitments to be used for
the purposes identified in subsection 2.5B; provided, however, that the
-------- -------
aggregate principal amount of Tranche C Term Loans made prior to the Final
Tranche C Term Loan Funding Date shall not exceed $50,000,000. The amount
of each Lender's Tranche C Term Loan Commitment as of the Second Amendment
Effective Date is set forth opposite its name on Schedule 2.1 annexed
------------
hereto (as amended on the Second Amendment Effective Date) and the
aggregate amount of the Tranche C Term Loan Commitments as of the Second
Amendment Effective Date is $75,000,000; provided that the Tranche C Term
--------
Loan Commitments of Lenders shall be adjusted to give effect to any
assignments of the Tranche C Term Loan Commitments pursuant to subsection
10.1B. The Tranche C Term Loan Commitment of each Lender having a Tranche
C Term Loan Commitment (i) shall be reduced by an amount equal to the
principal amount of the Tranche C Term Loan made by such Lender on each
Tranche C Term Loan Funding Date, immediately after giving effect thereto,
and (ii) to the extent unused, shall expire on the close of business on
November 30, 1999. Amounts borrowed under this subsection 2.1A(iii-b) and
subsequently repaid or prepaid may not be reborrowed."
D. The Register. Subsection 2.1D of the Credit Agreement is
hereby amended by deleting subsections 2.1D(ii) and 2.1D(iii) in their entirety
and substituting the following therefor:
"(ii) Administrative Agent shall record in the Register the
Acquisition Term Loan Commitment, Tranche A Term Loan Commitment, Tranche B
Term Loan Commitment, Tranche C Term Loan Commitment and Revolving Loan
Commitment and the Acquisition Term Loans, Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans and Revolving Loans from time to time of
each Lender, the Swing Line Loan Commitment and the Swing Line Loans from
time to time of Swing Line Lender, and each repayment or prepayment in
respect of the principal amount of the Acquisition
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Term Loans, Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans or Revolving Loans of each Lender or the Swing Line Loans of Swing
Line Lender. Any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest error; provided that failure to
--------
make any such recordation, or any error in such recordation, shall not
affect any Lender's Commitments or Company's Obligations in respect of any
applicable Loans.
(iii) Each Lender shall record on its internal records (including
the Notes held by such Lender) the amount of any Acquisition Term Loan,
Tranche A Term Loan, Tranche B Term Loan, Tranche C Term Loan and Revolving
Loan made by it and each payment in respect thereof. Any such recordation
shall be conclusive and binding on Company, absent manifest error; provided
--------
failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitments or Company's Obligations in
respect of any applicable Loans; and provided, further that in the event of
-------- -------
any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern absent manifest error."
E. Notes. Subsection 2.1E of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
"E. Notes. Company shall execute and deliver on the Effective
Date, First Amendment Effective Date and/or Second Amendment Effective
Date, as the case may be, (i) to each Lender having a Commitment for that
Type of Loan (or to Administrative Agent for that Lender) (a) an
Acquisition Term Note substantially in the form of Exhibit IV annexed
----------
hereto to evidence that Lender's Acquisition Term Loans, in the principal
amount of that Lender's Acquisition Term Loan Commitment and with other
appropriate insertions, (b) a Tranche A Term Note substantially in the form
of Exhibit V annexed hereto to evidence that Lender's Tranche A Term Loan,
------- -
in the principal amount of that Lender's Tranche A Term Loan Commitment and
with other appropriate insertions, (c) a Tranche B Term Note substantially
in the form of Exhibit VI annexed hereto to evidence that Lender's Tranche
----------
B Term Loan, in the principal amount of that Lender's Tranche B Term Loan
Commitment and with other appropriate insertions, (d) a Tranche C Term Note
substantially in the form of Exhibit VI-B annexed hereto to evidence that
------------
Lender's Tranche C Term Loan, in the principal amount of that Lender's
Tranche C Term Loan Commitment and with other appropriate insertions, and
(e) a Revolving Note substantially in the form of Exhibit VII annexed
-----------
hereto to evidence that Lender's Revolving Loans, in the principal amount
of that Lender's Revolving Loan Commitment and with other appropriate
insertions, and (ii) to Swing Line Lender (or to Administrative Agent for
Swing Line Lender) a Swing Line Note substantially in the form of Exhibit
-------
VIII annexed hereto to evidence Swing Line Lender's Swing Line Loans, in
----
the principal amount of the Swing Line Loan Commitment and with other
appropriate insertions."
F. Interest Periods. Subsection 2.2B is hereby amended as
follows:
(1) by deleting the introductory paragraph of subsection 2.2B in
its entirety and substituting the following therefor:
8
<PAGE>
"B. Interest Periods. In connection with each Eurodollar Rate
Loan, Company may, pursuant to the applicable Notice of Borrowing or Notice
of Conversion/Continuation, as the case may be, select an interest period
(each an "Interest Period") to be applicable to such Loan, which Interest
Period shall be, at Company's option, either a one, two, three or six month
period, or, subject to the limitations set forth in clause (ix) below, a
one, two or three week period (such one, two or three week period being a
"Special Interest Period"); provided that:";
--------
(2) by deleting subsection 2.2B(v) in its entirety and
substituting the following therefor:
"(v) no Interest Period with respect to any portion of the
Acquisition Term Loans shall extend beyond January 31, 2004, no Interest
Period with respect to any portion of the Tranche A Term Loans shall extend
beyond January 31, 2004, no Interest Period with respect to any portion of
the Tranche B Term Loans shall extend beyond January 31, 2006, no Interest
Period with respect to any portion of the Tranche C Term Loans shall extend
beyond July 31, 2006 and no Interest Period with respect to any portion of
the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;";
(3) by deleting the reference to "and" immediately following
subsection 2.2B(vii);
(4) by deleting the "." at the end of subsection 2.2B(viii) and
substituting "; and" therefor; and
(5) adding the following as a new subsection 2.2B(ix) immediately
following subsection 2.2B(viii):
"(ix) during the 120 day period after the Second Amendment
Effective Date (or such shorter period as may be established by Agents in
their sole discretion), Company shall select, at the direction of Agents,
either a Special Interest Period or an Interest Period of one month with
respect to Tranche C Term Loans that are Eurodollar Rate Loans."
G. Fees. Subsection 2.3 of the Credit Agreement is hereby
amended by (i) renumbering subsection 2.3C as 2.3D and (ii) adding as a new
subsection 2.3C immediately after subsection 2.3B the following:
"C. Tranche C Term Loan Commitments. Company agrees to pay to
Administrative Agent, for distribution to each Tranche C Term Loan Lender
in proportion to that Tranche C Term Loan Lender's Pro Rata Share of the
Tranche C Term Loan Commitments, commitment fees for the period from and
including the Second Amendment Effective Date to and excluding the Final
Tranche C Term Loan Funding Date (or, if earlier, the date of termination
of the Tranche C Term Loan Commitments in their entirety) equal to (x) the
aggregate original principal amount of the Tranche C Term Loan Commitments
over the aggregate principal amount of outstanding Tranche C Term Loans
multiplied by (y) 0.50% per annum, such commitment fees to be calculated on
-------------
the
9
<PAGE>
basis of a 360-day year and the actual number of days elapsed and to be
payable on the Final Tranche C Term Loan Funding Date."
H. Scheduled Payments of Tranche C Term Loans. Subsection 2.4A
of the Credit Agreement is hereby amended by adding the following new subsection
2.4A(iv) immediately after subsection 2.4A(iii):
"(iv) Scheduled Payments of Tranche C Term Loans. Company shall
------------------------------------------
make principal payments on the Tranche C Term Loans in installments on the
dates and in the amounts set forth below:
<TABLE>
<CAPTION>
Scheduled Repayment of
Tranche C Term Loans
----------------------
Date
----
<S> <C>
January 31, 2000 $ 187,500
April 30, 2000 $ 187,500
July 31, 2000 $ 187,500
October 31, 2000 $ 187,500
January 31, 2001 $ 187,500
April 30, 2001 $ 187,500
July 31, 2001 $ 187,500
October 31, 2001 $ 187,500
January 31, 2002 $ 187,500
April 30, 2002 $ 187,500
July 31, 2002 $ 187,500
October 31, 2002 $ 187,500
January 31, 2003 $ 187,500
April 30, 2003 $ 187,500
July 31, 2003 $ 187,500
October 31, 2003 $ 187,500
January 31, 2004 $ 187,500
April 30, 2004 $ 187,500
July 31, 2004 $ 187,500
October 31, 2004 $ 187,500
January 31, 2005 $ 187,500
April 30, 2005 $ 187,500
July 31, 2005 $ 187,500
October 31, 2005 $ 187,500
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
January 31, 2006 $ 187,500
April 30, 2006 $35,156,250
July 31, 2006 $35,156,250
-----------
$75,000,000
</TABLE>
; provided that the scheduled installments of principal of the Tranche C
--------
Term Loans shall be reduced in connection with any voluntary or mandatory
prepayments of the Tranche C Term Loans in accordance with subsection
2.4B(iv); and provided, further that the Tranche C Term Loans and all other
-------- -------
amounts owed hereunder with respect to the Tranche C Term Loans shall be
paid in full no later than July 31, 2006, and the final installment payable
by Company in respect of the Tranche C 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 Tranche C Term Loans."
I. Mandatory Prepayments and Reductions in Commitments.
Subsection 2.4B(iii) is hereby amended by adding the following as a new
subsection 2.4B(iii)(g) immediately after subsection 2.4B(iii)(f):
"(g) Certain Prepayments of Tranche C Term Loans. Company shall
-------------------------------------------
prepay the Tranche C Term Loans at the times and in the amounts required by
subsection 6.12."
J. Application of Prepayments. Subsections 2.4B(iv)(a) and
2.4B(iv)(b) of the Credit Agreement are hereby amended by deleting each such
subsection in its entirety and substituting the following therefor:
"(a) Application of Voluntary Prepayments by Type of Loans and
---------------------------------------------------------
Order of Maturity. Any voluntary prepayments pursuant to subsection
-----------------
2.4B(i) shall be applied as specified by Company in the applicable notice
of prepayment; provided that (i) any voluntary prepayments of any Tranche A
--------
Term Loan, Tranche B Term Loan or Tranche C Term Loan shall be applied
ratably to the Tranche A Term Loans, Tranche B Term Loans and the Tranche C
Term Loans and shall be applied to the scheduled installments thereof in
the inverse order of maturity; (ii) any voluntary prepayments of the
Acquisition Term Loans shall be applied first in forward order of maturity
to reduce scheduled installments thereof due in the next succeeding twelve
months and thereafter shall be applied to the scheduled installments
thereof in the inverse order of maturity; and (iii) in the event Company
fails to specify the Loans to which any such prepayment shall be applied,
such prepayment shall be applied first to repay outstanding Swing Line
-----
Loans to the full extent thereof, second to repay the outstanding Revolving
------
Loans to the full extent thereof; third to repay outstanding Acquisition
-----
Term Loans to the full extent thereof; and fourth to repay outstanding
------
Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans to the
full extent thereof.
(b) Application of Mandatory Prepayments by Type of Loans. Any
-----------------------------------------------------
amount (the "Applied Amount") required to be applied as a mandatory
prepayment of (x) the Loans and/or a reduction of the Revolving Loan
Commitments and/or the Acquisition
11
<PAGE>
Term Loan Commitments pursuant to subsections 2.4B(iii)(a)-(d) shall be
applied first to the ratable prepayment of the Tranche A Term Loans,
-----
Tranche B Term Loans and the Tranche C Term Loans to the full extent
thereof, second, to the extent of any remaining portion of the Applied
------
Amount, to the prepayment of the Acquisition Term Loans to the full extent
thereof, and third, to the extent of any remaining portion of the Applied
-----
Amount, to the prepayment of the Revolving Loans and to permanently reduce
the Revolving Loan Commitment to the full extent thereof, or (y) the
Tranche C Term Loans pursuant to subsection 6.12 shall be applied to the
prepayment of the Tranche C Term Loans to the full extent thereof; provided
--------
that the Company may elect to offer the Lenders with Tranche B Term Loans
and/or Tranche C Term Loans outstanding the opportunity to waive the right
to receive the amount of such mandatory prepayment, and if any such Lender
so elects, 100% of the amount that would otherwise have been applied as a
mandatory prepayment of such Lender's Tranche B Term Loan and/or Tranche C
Term Loan shall be applied to the prepayment of the Tranche A Term Loans."
K. Use of Proceeds. Subsection 2.5B of the Credit Agreement is
hereby amended by adding the following immediately at the end thereof:
"The proceeds of the Tranche C Term Loans shall be applied by Company
exclusively (1) to prepay outstanding Acquisition Term Loans pursuant to
subsection 2.4B(i) and outstanding Tranche C Term Loans pursuant to
subsection 6.12, (2) to make Permitted Acquisitions pursuant to subsection
7.7(vi), and (3) to repay outstanding Revolving Loans and for working
capital and general corporate purposes in an aggregate principal amount not
to exceed $6,000,000."
1.3 Amendments to Section 4: Conditions to Loans and Letters of Credit.
-------------------------------------------------------------------
Section 4 of the Credit Agreement is hereby amended by adding the
following as a new subsection 4.4 immediately after subsection 4.3:
"4.4 Conditions to Tranche C Loans.
-----------------------------
The obligations of Lenders to make Tranche C Term Loans on
each Tranche C Term Loan Funding Date are, in addition to the conditions
precedent specified in subsection 4.2, subject to the further condition
precedent that, on or before such Tranche C Term Loan Funding Date,
Administrative Agent shall have received an Officers' Certificate of
Company to the effect that, as of such Tranche C Term Loan Funding Date,
the Consolidated Fixed Charge Coverage Ratio (as defined in the Senior
Subordinated Note Indenture) is at least 2.0 to 1.0, which certificate
shall include a calculation of such Fixed Charge Coverage Ratio
establishing that Company and its Subsidiaries may incur the Indebtedness
evidenced by the Tranche C Term Loans to be made on such Tranche C Term
Loan Funding Date hereunder under the terms of the Senior Subordinated Note
Indenture."
12
<PAGE>
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 (xix) of such subsection
6.1 in its entirety and substituting the following therefor:
"(xix) Retained Tranche C Term Loan Proceeds Certificate: on the
-------------------------------------------------
applicable Tranche C Term Loan Proceeds Certification Date, the Officers'
Certificate required to be delivered to Administrative Agent pursuant to
subsection 6.12; and"
B. Matters Relating to Additional Real Property Collateral.
Subsection 6.9 of the Credit Agreement is hereby amended by (i) deleting the
third reference to "Administrative Agent" in the introductory paragraph of
subsection 6.9A and substituting "Agents" therefor, (ii) deleting each reference
to "270" in the introductory paragraph of subsection 6.9A and substituting "180"
therefor, and (iii) adding the following as a new subsection 6.9C and as a new
subsection 6.9D immediately after subsection 6.9B:
"C. With respect to each Mortgage existing as of the Second Amendment
Effective Date encumbering the Real Property Assets of Company or any
Subsidiary Guarantor (the "Existing Mortgages"), Company and each such
Subsidiary Guarantor shall deliver to Administrative Agent (i) fully
executed and notarized counterparts or amendments to such Existing
Mortgages, in each case in form and substance satisfactory to
Administrative Agent and its counsel, together with evidence that such
counterparts or such amendments to Mortgages have been duly recorded in all
appropriate places in all applicable jurisdictions to the extent necessary
or desirable, in the judgment of Administrative Agent, so as to effectively
continue the perfection of the First Priority Lien of such Existing
Mortgages on such Real Property Assets, subject only to Permitted
Encumbrances, and (ii) such other documents and instruments that
Administrative Agent reasonably deems necessary or desirable to perfect or
to continue the perfection of the First Priority Liens created by the
Existing Mortgages. With respect to 50% of the Existing Mortgages, Company
shall deliver such counterparts, amendments, evidence and other documents
and instruments and otherwise comply with this subsection 6.9C within sixty
(60) days after the Second Amendment Effective Date, and with respect to
the remaining 50% of the Existing Mortgages, Company shall deliver such
counterparts, amendments, evidence and other documents and instruments and
otherwise comply with this subsection 6.9C within ninety (90) days after
the Second Amendment Effective Date.
D. With respect to each Real Property Asset of Company or any
Subsidiary Guarantor existing as of the Second Amendment Effective Date in
which Company or such Subsidiary Guarantor has a fee interest and which is
not subject to an Existing Mortgage (each an "Unencumbered Property" and
collectively the "Unencumbered Properties"), each such Unencumbered
Property (other than any such Unencumbered Property the encumbrancing of
which requires the consent of any applicable then-existing senior
lienholder, where Company and its Subsidiaries are unable to obtain such
senior lienholder's consent) is deemed to be an Additional Mortgaged
Property and Company and each such Subsidiary Guarantor shall (x) execute
and deliver each of the documents and instruments required to be executed
and delivered under subsection 6.9A, including without limitation
Additional Mortgages, legal opinions, Additional Mortgage Policies and
title reports, and (y) perform all other actions required to be performed
under subsection 6.9A, including
13
<PAGE>
without limitation the recordation of such Additional Mortgages, and
otherwise satisfy all other requirements set forth in subsection 6.9A. With
respect to 50% of the Unencumbered Properties, Company shall execute and
deliver such documents and instruments and perform all other actions, in
each case required by subsection 6.9A, within sixty (60) days after the
Second Amendment Effective Date, and with respect to the remaining 50% of
the Unencumbered Properties, Company shall execute and deliver such
documents and instruments and perform all other actions, in each case
required by subsection 6.9A, within ninety (90) days after the Second
Amendment Effective Date."
C. Retained Tranche C Term Loan Proceeds. Section 6 of the Credit
Agreement is hereby amended by adding the following as a new subsection 6.12
immediately after subsection 6.11:
"6.12 Retained Tranche C Term Loan Proceeds.
-------------------------------------
All of the proceeds of the Tranche C Term Loans (the "Retained
Tranche C Term Loan Proceeds") shall be retained for the exclusive purposes
set forth in subsection 2.5B and, pending the application of such Retained
Tranche C Term Loan Proceeds, such proceeds shall be held in an interest
bearing blocked account (the "Tranche C Blocked Account") with
Administrative Agent. The Retained Tranche C Term Loan Proceeds shall only
be released by Administrative Agent (i) upon delivery by Company of an
Officers' Certificate to Administrative Agent certifying that the amount of
the Retained Tranche C Term Loan Proceeds specified in such Officers'
Certificate will be applied by Company, immediately upon such release, to
the making of one or more Permitted Acquisitions and/or the prepayment of
Acquisition Term Loans, Tranche C Term Loans and/or Revolving Loans, in
each case to the extent permitted under subsection 2.5B, or (ii) on the
Tranche C Term Loan Certification Date; provided that in the event Company
--------
delivers the Officers' Certificate described in either clause (2) or clause
(3) of the definition of 'Tranche C Term Loan Certification Date', on the
date of such delivery of such Officers' Certificate, Company shall prepay
the Tranche C Term Loans in an aggregate amount equal to the unused portion
of such Retained Tranche C Term Loan Proceeds; provided, however, that in
-------- -------
the event that on the one-year anniversary of the Final Tranche C Term Loan
Funding Date (x) Company has entered into a binding, written letter of
intent, commitment or other similar agreement, which letter, commitment or
agreement has been delivered to Agents and shall be satisfactory to Agents,
with respect to one or more Permitted Acquisitions (the "Committed
Acquisition") and (y) Company delivers to Administrative Agent an Officers'
Certificate certifying that Company will apply the amount of the Retained
Tranche C Term Loan Proceeds specified in such Officers' Certificate,
immediately upon consummation of such Committed Acquisition, to the making
of such Committed Acquisition, then such amount of Retained Tranche C Term
Loan Proceeds shall not be required to be repaid pursuant to the
immediately preceding proviso and such proceeds may be retained in the
Tranche C Blocked Account pending application of such proceeds; provided,
--------
however, that if such Committed Acquisition is not consummated, then
-------
Company shall prepay the Tranche C
14
<PAGE>
Term Loans in an aggregate amount equal to such unused portion of such
Retained Tranche C Term Loan Proceeds."
1.4 Amendments to Section 7: Company's Negative Covenants.
-----------------------------------------------------
Subsection 7.8 of the Credit Agreement is hereby amended by deleting
the table contained therein in its entirety and substituting the following
therefor:
"Period Maximum Consolidated
------
Capital Expenditures
--------------------
Fiscal Year 1999 $ 46,000,000
Fiscal Year 2000 and each $ 43,000,000"
Fiscal Year thereafter
1.5 Substitution of Schedules.
-------------------------
A. Schedule 2.1. 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.
------------ -------
B. Schedule 5.5. Schedule 5.5 to the Credit Agreement is hereby
------------
amended by deleting said Schedule 5.5 in its entirety and substituting in place
------------
thereof a new Schedule 5.5 in the form of Annex B annexed hereto, which new
------------ -------
Schedule 5.5 shall identify, in addition to the matters required under
subsection 5.5 of the Credit Agreement, whether each Real Property Asset of
Company and its Subsidiaries is a fee property or a leasehold property and
whether such Real Property Asset that is a fee property is or will be subject to
a Mortgage.
1.6 Amendments to Exhibits.
----------------------
A. Notice of Borrowing. Exhibit I to the Credit Agreement is
---------
hereby amended by deleting it in its entirety and substituting therefor a new
Exhibit I in the form of Annex C annexed hereto.
- --------- -------
B. Notice of Continuation/Conversion. Exhibit II to the Credit
----------
Agreement is hereby amended by deleting it in its entirety and substituting
therefor a new Exhibit II in the form of Annex D annexed hereto.
---------- -------
C. Form of Tranche C Term Note. The Exhibits to the Credit
Agreement are hereby amended by adding a new Exhibit VI-B in the form of Annex E
------------ -------
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 "Second Amendment Effective Date"):
15
<PAGE>
A. Company Documents. On or before the Second 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 Second
Amendment Effective Date:
1. Resolutions of its Board of Directors approving and authorizing
the execution, delivery, and performance of this Amendment and the Tranche C
Term Notes (the "Tranche C Term Notes"), substantially in the form of Annex
-----
E annexed hereto, drawn to the order of each applicable Lender and with
-
appropriate insertions, such resolutions certified as of the Second
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 Tranche C Term Notes; and
3. Executed copies of this Amendment and the Tranche C Term Notes.
B. Execution of Amendment by Lenders. On or before the Second
Amendment Effective Date, Requisite Lenders and all Lenders having Acquisition
Term Loan Exposure shall have executed and delivered copies of this Amendment to
Administrative Agent.
C. Legal Opinions. On or before the Second 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 F annexed hereto, dated as of the Second Amendment Effective Date, and as
- -------
to such other matters as Administrative Agent acting on behalf of Lenders may
reasonable request.
D. Financial Statements. On or before the Second Amendment
Effective Date, Administrative Agent and Lenders shall have received (1) pro
forma internal financial statements of Company and its Subsidiaries for the
Fiscal Year ended September 30, 1999, consisting of balance sheets and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flows for such period, prepared in accordance with GAAP and in
reasonable detail and certified by the chief financial officer of Company that
they fairly present the financial condition of Company and its Subsidiaries as
at the date indicated and the results of their operations and their cash flows
for the period indicated, subject to changes resulting from audit and normal
year-end adjustments and (2) projected consolidated and consolidating financial
statements of Company and its Subsidiaries for the five-Fiscal Year period after
October 1, 1999, consisting of consolidated and consolidating balance sheets and
the related consolidated and consolidating statements of income, shareholders'
equity and cash flows, which projected financial statements shall be in form and
substance satisfactory to Administrative Agent.
E. Fees. On or before the Second Amendment Effective Date, Company
shall pay (x) to each Lender which executes and delivers this Amendment on or
before the Second Amendment Effective Date an amendment fee equal to 0.200% of
the sum of such Lender's Tranche A Term Loan Exposure, Tranche B Term Loan
Exposure, Acquisition Term
16
<PAGE>
Loan Exposure 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 set forth in that certain fee letter dated as of the date hereof by and
among Agents and Company.
F. Other Proceedings. On or before the Second 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 Tranche
C Term 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 Tranche C Term Notes.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the Tranche C Term Notes, the performance of the Amended Agreement
and the Tranche C Term Notes and the payment of the Tranche C Term 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 Tranche C Term Notes and the performance by Company of the
Amended Agreement and the Tranche C Term 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 Second Amendment
Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by Company of
this Amendment and the Tranche C Term Notes and the performance by Company of
the Amended Agreement and the Tranche C Term 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
17
<PAGE>
governmental authority or regulatory body (other than filings or recordings
required by the transactions contemplated hereunder).
E. Binding Obligation. This Amendment, the Tranche C Term 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 Second 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.
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
18
<PAGE>
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
Tranche C Term 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 Second 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 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 Second 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
19
<PAGE>
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.
F. Further Assurances. Company agrees that from time to time, at
the expense of Company, Company will promptly execute and deliver any additional
amendments and related documents that Agents may reasonably request, in order to
effectuate this Amendment and the transactions contemplated hereunder.
[Remainder of page intentionally left blank]
20
<PAGE>
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: Senior Vice President
LIL' CHAMP FOOD STORES, INC.,
as a Credit Support Party
By: /s/ W. T. Flyg
___________________________________
Title: Executive Vice President
SANDHILLS, INC.,
as a Credit Support Party
By: /s/ Joseph J. Duncan
___________________________________
Title: President
GLOBAL COMMUNICATIONS, INC.,
as a Credit Support Party
By: /s/ W. T. Flyg
___________________________________
Title: Vice President
MILLER ENTERPRISES, INC.,
as a Credit Support Party
By: /s/ W. T. Flyg
___________________________________
Title: Executive Vice President
S-1
<PAGE>
AUCILLA PROPERTIES, INC.,
as a Credit Support Party
By: /s/ W. T. Flyg
___________________________________
Title: Assistant Secretary
PENINSULAR PETROLEUM COMPANY,
as a Credit Support Party
By: /s/ W. T. Flyg
___________________________________
Title: Assistant Secretary
S-2
<PAGE>
LENDERS:
FIRST UNION NATIONAL BANK, individually and as
Administrative Agent
By: /s/ Mark B. Felker
Title: Sr. Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, as Syndication
Agent
By: /s/ Katherine Bass
Title: Executive Director
CIBC INC., as a Lender
By: /s/ Katherine Bass
Title: Executive Director
BANK OF AMERICA, N.A. (formerly NationsBank,
N.A.),
individually and as Documentation Agent
By: /s/ David H. Strickert
Title: Principal
ROYAL BANK OF CANADA,
as a Lender
By: /s/ John Crawford
Title: Lender
S-3
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Attila Koc
Title: Senior Vice President
THE PROVIDENT BANK,
as a Lender
By: /s/ Terrence 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/ Dale E. Christiansen
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET
DE L' UNION EUROPEENNE, as a Lender
By: /s/ Anthony Rock
Title: Vice President
By: /s/ Sean Mounier
Title: First Vice President
S-4
<PAGE>
DRESDNER BANK, AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: ___________________________________
Title: ___________________________________
By: ___________________________________
Title: ___________________________________
S-5
<PAGE>
NORTH AMERICAN SENIOR FLOATING RATE FUND, as a
Lender
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
By: /s/ Peter K. Merrill
Title: Managing Director
CYPRESSTREE INVESTMENT FUND, LLC,
as a Lender
By: CypressTree Investment Management Company,
Inc., its Managing Member
By: /s/ Peter K. Merrill
Title: Managing Director
CYPRESSTREE INSTITUTIONAL FUND, LLC, as a Lender
By: CypressTree Investment Management Company,
Inc., its Managing Member
By: /s/ Peter K. Merrill
Title: Managing Director
S-6
<PAGE>
KZH CYPRESSTREE-1 LLC,
as a Lender
By: /s/ James J. Fevola
___________________________________
Title: Authorized Agent
KZH CNC LLC, as a Lender
By: /s/ James J. Fevola
___________________________________
Title: Authorized Agent
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC., as
a Lender
By: /s/ Paul Travers
___________________________________
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO, as a Lender
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ Paul Travers
___________________________________
Title: Authorized Signatory
MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST, as
a Lender
By: /s/ Shiela Finnerty
___________________________________
Title: Senior Vice President
S-7
<PAGE>
VAN KAMPEN SENIOR FLOATING RATE FUND, as a Lender
By: /s/ Darvin D. Pierce
___________________________________
Title: Vice President
VAN KAMPEN PRIME RATE INCOME TRUST, as a Lender
By: /s/ Darvin D. Pierce
___________________________________
Title: Vice President
S-8
<PAGE>
INDOSUEZ CAPITAL FUNDING IIA, LIMITED, as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
___________________________________
Title: Vice President
INDOSUEZ CAPITAL FUNDING III, LIMITED, as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
___________________________________
Title: Vice President
INDOSUEZ CAPITAL FUNDING IV, L.P.,
as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
___________________________________
Title: Vice President
S-9
<PAGE>
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 M. Finke
___________________________________
Title: Managing Director
S-10
<PAGE>
ATHENA CDO, LIMITED, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general partner
By: ___________________________________
Title: ___________________________________
DELANO COMPANY, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general partner
By: ___________________________________
Title: ___________________________________
CAPTIVA III FINANCE, LTD., as a Lender,
as advised by Pacific Investment Management
Company
By: ___________________________________
Title: ___________________________________
S-11
<PAGE>
STEIN ROE & FARNHAM INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE COMPANY, as a
Lender
By: /s/ Brian W. Good
___________________________________
Title: Vice President and Portfolio Manager
STEIN ROE FLOATING RATE LIMITED LIABILITY COMPANY,
as a Lender
By: /s/ Brian W. Good
___________________________________
Title: Vice President
ML CBO IV (CAYMAN) LTD.,
as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Todd Travers
___________________________________
Title: Senior Portfolio Manager
S-12
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE, as a Lender
By: /s/ Katherine Bass
___________________________________
Title: Executive Director
SRV HIGHLAND, INC., as a Lender
By: /s/ Kelly C. Walker
___________________________________
Title: Vice President
S-13
<PAGE>
Exhibit 10.38
THE PANTRY, INC.
THIRD AMENDMENT
TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of November 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 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 and
that certain Second Amendment to Credit Agreement dated as of October 27, 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 increase the aggregate
principal amount of the Tranche B Term Loan facility by an additional
$25,000,000; and
WHEREAS, Company and Lenders desire to amend the Credit Agreement to
(i) permit the transaction described above, (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: Provisions Relating to Defined Terms.
--------------------------------------------------------------
A. Amendments to Existing Definitions. Subsection 1.1 of the Credit
Agreement is hereby amended by deleting the definitions "Final Tranche C Term
Loan Funding Date", "Tranche B Term Notes" and "Tranche C Term Loan Funding
Date" in their entirety and substituting the following therefor:
"'Final Tranche C Term Loan Funding Date' means the earlier to occur
of (x) the Tranche C Term Loan Funding Date on which all remaining
available Tranche C Term Loans are borrowed by Company, or (y) the fourth
Tranche C Term Loan Funding
1
<PAGE>
Date; provided, however, that the Final Tranche C Term Loan Funding Date
-------- -------
shall be no later than January 31, 2000.
'Tranche B Term Notes' means (i) the promissory notes of Company
issued pursuant to subsection 2.1E(i)(c) on the Effective Date, (ii) the
promissory notes of Company issued pursuant to subsection 2.1E(i)(d) on the
Third Amendment Effective Date and (iii) any promissory notes issued by
Company pursuant to the last sentence of subsection 10.1B(i) in connection
with assignments of the Tranche B Term Loan Commitments or Tranche B Term
Loans of any Lenders, in each case substantially in the form of Exhibit VI
----------
annexed hereto or Exhibit VI-A annexed hereto, as the case may be, as they
------------
may be amended, supplemented or otherwise modified from time to time.
'Tranche C Term Loan Funding Date' means the date of a funding of a
Tranche C Term Loan; provided that there shall be (i) no more than [four
--------
(4)] Tranche C Term Loan Funding Dates, and (ii) no more than one (1)
Tranche C Term Loan Funding Date after November 30, 1999."
B. Amendments to Existing Definitions. Subsection 1.1 of the Credit
Agreement is hereby further amended by
(i) deleting the reference to "2.1E(i)(d)" contained in the
definition of "Revolving Notes" and substituting "2.1E(i)(f)" therefor;
(ii) deleting the reference to "2.1E(i)(d)" contained in the
definition of "Tranche C Term Notes" and substituting "2.1E(i)(e)"
therefor;
(iii) deleting clause (z) contained in the definition of "Applicable
Base Rate Margin" in its entirety and substituting the following therefor:
"(z) with respect to Tranche C Term Loans, 2.25% per annum."; and
(iii) deleting clause (z) contained in the definition of "Applicable
Eurodollar Margin" in its entirety and substituting the following therefor:
"(z) with respect to Tranche C Term Loans, 3.75% per annum."
C. 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:
"'Designated Term Loan Proceeds' has the meaning assigned to that term
in subsection 6.12.
'Third Amendment Effective Date' means the date on which that certain
Third Amendment to Credit Agreement dated as of November 30, 1999 by and
among Company, Lenders, Administrative Agent, Syndication Agent and
Documentation Agent becomes effective in accordance with its terms."
2
<PAGE>
D. Deletion of Definitions. Subsection 1.1 of the Credit
Agreement is hereby further amended by deleting the definition of "Retained
Tranche C Term Loan Proceeds" in its entirety.
1.2 Global Amendments of Certain Defined Terms.
------------------------------------------
The Credit Agreement is hereby amended by (i) deleting each reference
to "Retained Tranche C Term Loan Proceeds" in its entirety and substituting
"Designated Term Loan Proceeds" therefor and (ii) deleting each reference to
"Tranche C Blocked Account" in its entirety and substituting "Designated Term
Loan Blocked Account" therefor.
1.3 Amendments to Section 2: Amounts and Terms of Commitments and Loans.
-------------------------------------------------------------------
A. Tranche B Term Loans. Subsection 2.1A(iii) of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting the
following therefor:
"(iii) Tranche B Term Loans. Each Lender having a Tranche B Term
--------------------
Loan Commitment on the Third Amendment Effective Date severally agrees to
lend to Company on the Third Amendment Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Tranche B Term
Loan Commitments outstanding on the Third Amendment Effective Date to be
used for the purposes identified in subsection 2.5B. The amount of each
Lender's Tranche B Term Loan Commitment as of the Third Amendment Effective
Date is set forth opposite its name on Schedule 2.1 annexed hereto (as
------------
amended on the Third Amendment Effective Date), the aggregate amount of the
Tranche B Term Loan Commitments as of the Third Amendment Effective Date is
$25,000,000, and the aggregate principal amount of Tranche B Term Loans of
Lenders outstanding immediately prior to the Third Amendment Effective Date
is $156,393,733.35; provided that the Tranche B Term Loan Commitments of
--------
Lenders shall be adjusted to give effect to any assignments of the Tranche
B Term Loan Commitments pursuant to subsection 10.1B. Amounts borrowed
under this subsection 2.1A(iii) and subsequently repaid or prepaid may not
be reborrowed."
B. Tranche C Term Loans. Subsection 2.1A(iii-b) of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting the
following therefor:
"(iii-b) Tranche C Term Loans. Each Lender having a Tranche C Term
--------------------
Loan Commitment severally agrees to lend to Company on each Tranche C Term
Loan Funding Date an aggregate amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche C Term Loan Commitments to be used for
the purposes identified in subsection 2.5B; provided, however, that Tranche
-------- -------
C Term Loans in an aggregate principal amount equal to $50,000,000 shall be
made to Company on or prior to November 30, 1999; provided, further that
-------- -------
the aggregate principal amount of Tranche C Term Loans made on or prior to
November 30, 1999 shall not exceed $50,000,000. The amount of each Lender's
Tranche C Term Loan Commitment as of the Third Amendment Effective Date is
set forth opposite its name on Schedule 2.1 annexed hereto (as amended on
------------
the Third Amendment Effective Date) and the original aggregate amount of
the Tranche C Term Loan Commitments is $75,000,000; provided that the
--------
Tranche C Term
3
<PAGE>
Loan Commitments of Lenders shall be adjusted to give effect to any
assignments of the Tranche C Term Loan Commitments pursuant to subsection
10.1B. The Tranche C Term Loan Commitment of each Lender having a Tranche C
Term Loan Commitment (i) shall be reduced by an amount equal to the
principal amount of the Tranche C Term Loan made by such Lender on each
Tranche C Term Loan Funding Date, immediately after giving effect thereto,
and (ii) to the extent unused, shall expire on the close of business on
January 31, 2000. Amounts borrowed under this subsection 2.1A(iii-b) and
subsequently repaid or prepaid may not be reborrowed."
C. Notes. Subsection 2.1E of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
"E. Notes. Company shall execute and deliver on the Effective Date,
First Amendment Effective Date, Second Amendment Effective Date and/or
Third Amendment Effective Date, as the case may be, (i) to each Lender
having a Commitment for that Type of Loan (or to Administrative Agent for
that Lender) (a) an Acquisition Term Note substantially in the form of
Exhibit IV annexed hereto to evidence that Lender's Acquisition Term Loans,
----------
in the principal amount of that Lender's Acquisition Term Loan Commitment
and with other appropriate insertions, (b) a Tranche A Term Note
substantially in the form of Exhibit V annexed hereto to evidence that
---------
Lender's Tranche A Term Loan, in the principal amount of that Lender's
Tranche A Term Loan Commitment and with other appropriate insertions, (c) a
Tranche B Term Note substantially in the form of Exhibit VI annexed hereto
----------
to evidence that Lender's Tranche B Term Loan, in the principal amount of
that Lender's Tranche B Term Loan Commitment and with other appropriate
insertions, (d) a Tranche B Term Note substantially in the form of Exhibit
-------
VI-A annexed hereto to evidence that Lender's Tranche B Term Loan, in the
----
principal amount of that Lender's Tranche B Term Loan Commitment and with
other appropriate insertions, (e) a Tranche C Term Note substantially in
the form of Exhibit VI-B annexed hereto to evidence that Lender's Tranche C
------------
Term Loan, in the principal amount of that Lender's Tranche C Term Loan
Commitment and with other appropriate insertions, and (f) a Revolving Note
substantially in the form of Exhibit VII annexed hereto to evidence that
-----------
Lender's Revolving Loans, in the principal amount of that Lender's
Revolving Loan Commitment and with other appropriate insertions, and (ii)
to Swing Line Lender (or to Administrative Agent for Swing Line Lender) a
Swing Line Note substantially in the form of Exhibit VIII annexed hereto to
------------
evidence Swing Line Lender's Swing Line Loans, in the principal amount of
the Swing Line Loan Commitment and with other appropriate insertions."
D. Scheduled Payments of Tranche B Term Loans. Subsection
2.4A(iii) of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting the following therefor:
"(iii) Scheduled Payments of Tranche B Term Loans. Company shall
------------------------------------------
make principal payments on the Tranche B Term Loans in installments on the
dates and in the amounts set forth below:
4
<PAGE>
Scheduled Repayment of
Date Tranche B Term Loans
---- --------------------
April 30, 1999 $ 400,000.00
July 31, 1999 $ 400,000.00
October 31, 1999 $ 400,000.00
January 31, 2000 $ 473,529.41
April 30, 2000 $ 473,529.41
July 31, 2000 $ 473,529.41
October 31, 2000 $ 473,529.41
January 31, 2001 $ 473,529.41
April 30, 2001 $ 473,529.41
July 31, 2001 $ 473,529.41
October 31, 2001 $ 473,529.41
January 31, 2002 $ 473,529.41
April 30, 2002 $ 473,529.41
July 31, 2002 $ 473,529.41
October 31, 2002 $ 473,529.41
January 31, 2003 $ 473,529.41
April 30, 2003 $ 473,529.41
July 31, 2003 $ 473,529.42
October 31, 2003 $ 473,529.42
January 31, 2004 $ 473,529.42
April 30, 2004 $ 18,500,000.00
July 31, 2004 $ 18,500,000.00
October 31, 2004 $ 18,500,000.00
January 31, 2005 $ 18,500,000.00
April 30, 2005 $ 25,437,500.00
July 31, 2005 $ 25,437,500.00
October 31, 2005 $ 25,437,500.00
January 31, 2006 $ 25,437,500.00
---------------
$185,000,000.00
; provided that the scheduled installments of principal of the Tranche B
--------
Term Loans shall be reduced in connection with any voluntary or mandatory
prepayments of the Tranche B Term Loans in accordance with subsection
2.4B(iv); and provided, further that the Tranche B Term Loans and all other
-------- -------
amounts owed hereunder with respect to the Tranche B Term Loans shall be
paid in full no later than January 31, 2006, and the final
5
<PAGE>
installment payable by Company in respect of the Tranche B 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 Tranche B Term Loans."
E. Scheduled Payments of Tranche C Term Loans. Subsection 2.4A(iv)
of the Credit Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
"(iv) Scheduled Payments of Tranche C Term Loans. Company shall make
------------------------------------------
principal payments on the Tranche C Term Loans on each January 31, April
30, July 31 and October 31, in an aggregate amount equal to 0.25% of the
aggregate amount of the Tranche C Term Loans outstanding on the Final
Tranche C Term Loan Funding Date (after giving effect to any Tranche C Term
Loans made on such date), commencing on April 30, 2000 through and
including January 31, 2006, and in an aggregate amount equal to 47.0% of
the Tranche C Term Loans outstanding on the Final Tranche C Term Loan
Funding Date (after giving effect to any Tranche C Term Loans made on such
date), commencing on April 30, 2006 through and including July 31, 2006;
provided that the scheduled installments of principal of the Tranche C Term
--------
Loans shall be reduced in connection with any voluntary or mandatory
prepayments of the Tranche C Term Loans in accordance with subsection
2.4B(iv); and provided, further that the Tranche C Term Loans and all other
--------- -------
amounts owed hereunder with respect to the Tranche C Term Loans shall be
paid in full no later than July 31, 2006, and the final installment payable
by Company in respect of the Tranche C 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 Tranche C Term Loans."
F. Use of Proceeds. Subsection 2.5B of the Credit Agreement is
hereby amended by adding the following immediately at the end thereof:
"The proceeds of the Tranche B Term Loans made on the Third Amendment
Effective Date and the proceeds of the Tranche C Term Loans shall be
applied by Company exclusively (1) to prepay outstanding Acquisition Term
Loans pursuant to subsection 2.4B(i) and outstanding Tranche C Term Loans
pursuant to subsection 6.12, (2) to make Permitted Acquisitions pursuant to
subsection 7.7(vi), and (3) to repay outstanding Revolving Loans and for
working capital and general corporate purposes in an aggregate principal
amount not to exceed $6,000,000."
1.4 Amendments to Section 4: Conditions to Loans and Letters of Credit.
-------------------------------------------------------------------
Section 4 of the Credit Agreement is hereby amended by adding the
following as a new subsection 4.5 immediately after subsection 4.4:
"4.5 Conditions to Tranche B Loans on Third Amendment Effective Date.
---------------------------------------------------------------
The obligations of Lenders with Tranche B Term Loan Commitments
outstanding on the Third Amendment Effective Date to make Tranche B Term
Loans on the Third Amendment Effective Date are, in addition to the
conditions precedent
6
<PAGE>
specified in subsection 4.2, subject to the further condition precedent
that, on or before the Third Amendment Effective Date, Administrative Agent
shall have received an Officers' Certificate of Company to the effect that,
as of the Third Amendment Effective Date, the Consolidated Fixed Charge
Coverage Ratio (as defined in the Senior Subordinated Note Indenture) is at
least 2.0 to 1.0, which certificate shall include a calculation of such
Fixed Charge Coverage Ratio establishing that Company and its Subsidiaries
may incur the Indebtedness evidenced by the Tranche B Term Loans to be made
on the Third Amendment Effective Date hereunder under the terms of the
Senior Subordinated Note Indenture."
1.5 Amendments to Section 6: Company's Affirmative Covenants.
---------------------------------------------------------
Subsection 6.12 of the Credit Agreement is hereby amended by deleting
the first sentence contained therein and substituting the following therefor:
"All of the proceeds of the Tranche B Term Loans made on the Third
Amendment Effective Date and all of the proceeds of the Tranche C Term
Loans (collectively, the 'Designated Term Loan Proceeds') shall be utilized
for the exclusive purposes set forth in subsection 2.5B and, pending the
application of such Designated Term Loan Proceeds, such proceeds shall be
held in an interest bearing blocked account (the 'Designated Term Loan
Blocked Account') with Administrative Agent."
1.6 Amendments to Schedules.
-----------------------
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.
- ------------ --------
1.7 Amendments to Exhibits.
----------------------
The Exhibits to the Credit Agreement are hereby amended by a new
Exhibit VI-A in the form of Annex B 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 "Third Amendment Effective Date"):
A. Company Documents. On or before the Third 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 Third
Amendment Effective Date:
1. Resolutions of its Board of Directors approving and authorizing
the execution, delivery, and performance of this Amendment, the new Tranche
B Term Notes (the "New Tranche B Term Notes"), substantially in the form of
Annex B annexed
-------
7
<PAGE>
hereto, drawn to the order of each applicable Lender and with appropriate
insertions, and the Master Assignment Agreement, substantially in the form
of Annex C, such resolutions certified as of the Third 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, the New Tranche B Term Notes and the Master Assignment
Agreement; and
3. Executed copies of this Amendment, the New Tranche B Term Notes
and the Master Assignment Agreement.
B. Execution of Amendment by Lenders. On or before the Third
Amendment Effective Date, Requisite Lenders and all Lenders with Tranche B Term
Loan Commitments outstanding on the Third Amendment Effective Date shall have
executed and delivered copies of this Amendment to Administrative Agent.
C. Execution of Master Assignment Agreement. On or before the Third
Amendment Effective Date, Lenders which will be assigned Tranche C Term Loan
Commitments and/or Tranche C Term Loans shall have executed and delivered copies
of the Master Assignment Agreement to Administrative Agent.
D. Legal Opinions. On or before the Third 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 D
-------
annexed hereto, dated as of the Third Amendment Effective Date, and as to such
other matters as Administrative Agent acting on behalf of Lenders may reasonable
request.
E. Fees. On or before the Third Amendment Effective Date, Company
shall pay to each Agent such fees as set forth in that certain fee letter dated
as of the date hereof by and among Agents and Company.
F. Other Proceedings. On or before the Third 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
Tranche B Term Notes and
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<PAGE>
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 Tranche B Term Notes.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the New Tranche B Term Notes, the performance of the Amended
Agreement and the New Tranche B Term Notes and the payment of the New Tranche B
Term 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 Tranche B Term Notes and the performance by Company of the
Amended Agreement and the New Tranche B Term 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
Third Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by Company of
this Amendment and the New Tranche B Term Notes and the performance by Company
of the Amended Agreement and the New Tranche B Term 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 (other than filings or recordings required by the transactions
contemplated hereunder).
E. Binding Obligation. This Amendment, the New Tranche B Term 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 Third 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.
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<PAGE>
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.
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 Tranche
B Term 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 Third 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.
10
<PAGE>
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 Third 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
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<PAGE>
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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<PAGE>
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: Senior Vice President
--------------------------------------
LIL' CHAMP FOOD STORES, INC.,
as a Credit Support Party
By: /s/ W.T. Flyg
--------------------------------------
Title: Executive Vice President
--------------------------------------
SANDHILLS, INC.,
as a Credit Support Party
By: /s/ W.T. Flyg
--------------------------------------
Title: Vice President
--------------------------------------
GLOBAL COMMUNICATIONS, INC.,
as a Credit Support Party
By: /s/ W.T. Flyg
--------------------------------------
Title: Vice President
--------------------------------------
MILLER ENTERPRISES, INC.,
as a Credit Support Party
By: /s/ W.T. Flyg
--------------------------------------
Title: Executive Vice President
--------------------------------------
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<PAGE>
AUCILLA PROPERTIES, INC.,
as a Credit Support Party
By: /s/ W.T. Flyg
-----------------------------------
Title: Assistant Secretary
-----------------------------------
PENINSULAR PETROLEUM COMPANY,
as a Credit Support Party
By: /s/ W.T. Flyg
-----------------------------------
Title: Assistant Secretary
-----------------------------------
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<PAGE>
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: Executive Director
-----------------------------------
CIBC INC., as a Lender
By: /s/ Katherine Bass
-----------------------------------
Title: Executive Director
-----------------------------------
BANK OF AMERICA, N.A. (formerly NationsBank,
N.A.),
individually and as Documentation Agent
By: /s/ David H. Strickert
-----------------------------------
Title: Principal
-----------------------------------
ROYAL BANK OF CANADA,
as a Lender
By: /s/ John Crawfor
-----------------------------------
Title: Senior Manager
-----------------------------------
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<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Attila Koc
-----------------------------------
Title: Senior Vice President
-----------------------------------
THE PROVIDENT BANK,
as a Lender
By:
-----------------------------------
Title:
-----------------------------------
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/ Dale E. Christiansen
-----------------------------------
Title: Vice President
-----------------------------------
COMPAGNIE FINANCIERE DE CIC ET
DE L' UNION EUROPEENNE, as a Lender
By: /s/ Anthony Rock
-----------------------------------
Title: Vice President
-----------------------------------
By: /s/ Sean Mounier
-----------------------------------
Title: First Vice President
-----------------------------------
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<PAGE>
DRESDNER BANK, AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ John W. Sweeney
___________________________________
Title: Vice President
By: /s/ John R. Morrison
___________________________________
Title: Vice President
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<PAGE>
NORTH AMERICAN SENIOR FLOATING RATE FUND, as a
Lender
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
By: /s/ Catherine C. McDermott
___________________________________
Title: Principal
CYPRESSTREE INVESTMENT FUND, LLC,
as a Lender
By: CypressTree Investment Management Company,
Inc., its Managing Member
By: /s/ Catherine C. McDermott
___________________________________
Title: Principal
CYPRESSTREE INSTITUTIONAL FUND, LLC, as a Lender
By: CypressTree Investment Management Company,
Inc., its Managing Member
By: /s/ Catherine C. McDermott
___________________________________
Title: Principal
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<PAGE>
KZH CYPRESSTREE-1 LLC,
as a Lender
By: /s/ Peter Chin
___________________________________
Title: Authorized Agent
KZH CNC LLC, as a Lender
By: /s/ Peter Chin
___________________________________
Title: Authorized Agent
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<PAGE>
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC., as
a Lender
By: /s/ Paul Travers
-----------------------------------
Title: Authorized Signatory
-----------------------------------
MERRILL LYNCH PRIME RATE PORTFOLIO, as a Lender
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ Paul Travers
-----------------------------------
Title: Authorized Signatory
-----------------------------------
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<PAGE>
MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST, as
a Lender
By: /s/ Shiela Finnerty
-----------------------------------
Title: Senior Vice President
-----------------------------------
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<PAGE>
VAN KAMPEN SENIOR FLOATING RATE FUND, as a Lender
By: /s/ Darwin D. Pierce
-----------------------------------
Title: Vice President
-----------------------------------
VAN KAMPEN PRIME RATE INCOME TRUST, as a Lender
By: /s/ Darwin D. Pierce
-----------------------------------
Title: Vice President
-----------------------------------
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<PAGE>
INDOSUEZ CAPITAL FUNDING IIA, LIMITED, as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
-----------------------------------
Title: Vice President
-----------------------------------
INDOSUEZ CAPITAL FUNDING III, LIMITED, as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
-----------------------------------
Title: Vice President
-----------------------------------
INDOSUEZ CAPITAL FUNDING IV, L.P., as a Lender
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Melissa Marano
-----------------------------------
Title: Vice President
-----------------------------------
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<PAGE>
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/ Sheryl Rothman
___________________________________
Title: Senior 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/ Joel Serebransky
___________________________________
Title: Senior Vice President
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<PAGE>
ELC (CAYMAN) LTD.,
as a Lender
By: /s/ Mark B. Mahoney
___________________________________
Title: President
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<PAGE>
ATHENA CDO, LIMITED, as a Lender
By: Pacific Investment Management Company,
as its investment advisor
By: PIMCO Management Inc., a general partner
By: /s/ Raymond Kennedy
__________________________________________
Title: Senior 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/ Raymond Kennedy
__________________________________________
Title: Senior Vice President
CAPTIVA III FINANCE, LTD., as a Lender,
as advised by Pacific Investment Management
Company
By: /s/ David Dyer
___________________________________________
Title: Director
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<PAGE>
STEIN ROE & FARNHAM INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE COMPANY, as a
Lender
By: /s/ Kathleen A. Zarn
___________________________________________
Title: Vice President
STEIN ROE FLOATING RATE LIMITED LIABILITY COMPANY,
as a Lender
By: /s/ Kathleen A. Zarn
___________________________________________
Title: Vice President, as Advisor to the Stein
Roe Floating Rate Limited Liability Company
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<PAGE>
ML CBO IV (CAYMAN) LTD.,
as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Todd Travers
___________________________________
Title: Senior Portfolio Manager
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<PAGE>
FIRST DOMINION FUNDING II, as a Lender
By: /s/ Andrew H. Marshak
___________________________________
Title: ___________________________________
S-17
<PAGE>
SRV-HIGHLAND, INC., as a Lender
By: /s/ Kelly C. Walker
___________________________________
Title: Vice President
S-18
<PAGE>
BEDFORD CDO, LIMITED, as a Lender
By: Pacific Investment Management Company,
as its Investment Advisor
By: ___________________________________
Title: ___________________________________
S-19
<PAGE>
STEIN ROE & FARNHAM CLO I LTD., as a Lender
By: Stein Roe & Farnham Incorporated,
as Portfolio Manager
By: ___________________________________
Title: ___________________________________
S-20
<PAGE>
MONUMENT CAPITAL LTD.,
as a Lender
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: ___________________________________
Title: ___________________________________
S-21
