Exhibit 10.4
Drawn by and mail after recording to:
Moore & Van Allen PLLC (EBR)
100 North Tryon Street, Suite 4700
Charlotte, North Carolina 28202-4003
THIS MORTGAGE: (A) SECURES CREDIT PARTY OBLIGATIONS (DEFINED HEREIN) THAT
INCLUDE THE NOTES (DEFINED HEREIN) WITH VARIABLE RATES OF INTEREST AND SECURES
THE ORIGINAL PRINCIPAL AMOUNT OF THE NOTE IN THE AMOUNT OF $348,250,000 AND ANY
FUTURE ADVANCES (DEFINED HEREIN) UP TO A MAXIMUM PRINCIPAL AMOUNT OF EIGHT
HUNDRED SEVENTY-FIVE MILLION DOLLARS ($875,000,000); AND (B) SHALL BE DEEMED TO
CONSTITUTE A PERFECTED FIXTURE FINANCING STATEMENT FILED TO PERFECT A SECURITY
INTEREST IN GOODS HEREIN GRANTED, WHICH ARE OR ARE TO BECOME FIXTURES PURSUANT
TO IND. CODE 26-1-9.1-502 AND 26-1-9.1-515 AND THE TERMS AND PROVISIONS HEREOF,
AND IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS, AND ALSO TO BE
INDEXED IN THE INDEX OF FIXTURE FINANCING STATEMENTS UNDER THE NAME OF THE
MORTGAGOR, AS "DEBTOR", AND ADMINISTRATIVE AGENT, AS "SECURED PARTY" AND THE
ADDITIONAL INFORMATION SET FORTH HEREIN, IN THE OFFICE OF THE RECORDER OF
COUNTY, INDIANA. DEBTOR'S ORGANIZATIONAL IDENTIFICATION
NO.: 213800.
COUNTY
OBLIGATIONS SECURED HEREBY PROVIDE FOR
A FLUCTUATING INTEREST RATE
MULTISTATE
AMENDED AND RESTATED MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING (INDIANA)
by and from
THE PANTRY, INC., "Mortgagor"
to
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Agent, "Mortgagee"
Dated as of January 9, 2008
THE SECURED PARTY (MORTGAGEE) DESIRES THIS FIXTURE FILING
TO BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE
DESCRIBED HEREIN
AMENDED AND RESTATED MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND LEASES AND FIXTURE FILING (INDIANA)
THIS AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
LEASES AND FIXTURE FILING (INDIANA) (this "Mortgage") is dated as of January 9,
2008, by and among THE PANTRY, INC., a Delaware corporation ("Mortgagor"), whose
address is 1801 Douglas Drive, Sanford, North Carolina 27330 and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Administrative Agent ("Agent") for the lenders party to
the Credit Agreement (defined below) (such lenders, together with their
respective successors and assigns, collectively, the "Lenders"), having an
address at 201 South College Street, CP-8, Charlotte, North Carolina 28288-0680
(Agent, together with its successors and assigns, "Mortgagee").
RECITALS
A. Mortgagee is the assignee, owner and holder of those certain mortgages
described on Exhibit B hereto (the "Original Mortgages") and the obligations
secured thereby, which encumber the properties described on Exhibit A hereto.
Mortgagee's address is set forth above.
B. Mortgagor and Mortgagee now desire to amend and restate the Original
Mortgages to contain all of the terms and conditions contained herein and in the
Credit Agreement.
NOW, THEREFORE, Mortgagor and Mortgagee hereby amend and restate the Original
Mortgages in their entirety to provide as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used herein without definition
shall have the respective meanings ascribed to them in that certain Third
Amended and Restated Credit Agreement, dated as of May 15, 2007 (as may be
further amended, supplemented or otherwise modified from time to time,