Exhibit 10.40
EXECUTION COPY
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PIEDMONT COCA-COLA BOTTLING PARTNERSHIP
as Borrower
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LOAN AGREEMENT
Dated as of May 28, 1996
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The financial institutions identified herein
as Banks
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LTCB TRUST COMPANY
as Agent
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CREDIT LYONNAIS ATLANTA AGENCY
DEUTSCHE BANK AG, NEW YORK BRANCH
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, and
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY
as Co-Agents
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LOAN AGREEMENT, dated as of May 28, 1996, among PIEDMONT COCA-COLA
BOTTLING PARTNERSHIP, a general partnership duly organized and validly existing
under the laws of the State of Delaware (the "Company"); the financial
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institutions named herein as lenders (the "Banks"); LTCB TRUST COMPANY, a trust
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company organized under the laws of the State of New York, as agent on behalf of
the Banks (in such capacity, the "Agent"); and CREDIT LYONNAIS ATLANTA AGENCY,
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DEUTSCHE BANK AG, NEW YORK BRANCH, DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN
ISLANDS BRANCH and THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY as
co-agents (in such capacity, the "Co-Agents").
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WHEREAS, the Company has requested the Banks to make term loans to
the Company in an aggregate principal amount up to but not exceeding
$195,000,000 for the purpose of refinancing certain existing indebtedness of the
Company and for other general corporate purposes of the Company;
WHEREAS, the Banks are willing to make such loans to the Company on
the terms and conditions of this Agreement; and
WHEREAS, the Agent has been requested to act as agent for the Banks,
and the Agent is willing to act as such agent on the terms and conditions of
this Agreement,
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms. As used herein, the following terms
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shall have the following meanings (all terms defined in this Section 1 or in
other provisions of this Agreement in the singular shall have the same meanings
when used in the plural and vice versa):
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"Affiliate" shall mean, as to any Person, any Subsidiary of such
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Person and any other Person which, directly or indirectly, controls, is
controlled by, or is under direct or indirect common control with, such Person.
For purposes of this definition "control" of a Person means the possession,
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directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
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"controlled" have corresponding meanings. Each of the Partners, Consolidated and
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Coca-Cola in any event shall be deemed to be Affiliates of the Company.
"Applicable Lending Office" shall mean, for any Bank, the Lending
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Office or Lending Offices of such Bank (or of an affiliate of such Bank)
designated on the signature pages hereof or such other office or offices of such
Bank (or of an affiliate of such Bank) as such Bank may from time to time
specify to the Company and the Agent in writing as the office or offices at
which all or a portion of its LIBOR Loans or its Base Rate Loans, as the case
may be, are to be made and maintained.
"Applicable Margin" shall mean, for any day, the percentage rate per
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annum set forth below in the column below such term in the row corresponding to
the "Level" status in existence on such day:
Applicable Margin
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▇▇▇▇▇ ▇ 0.50%
▇▇▇▇▇ ▇ 0.60%
▇▇▇▇▇ ▇ ▇.▇▇%
▇▇▇▇▇ ▇ (▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇).
Each change in the Applicable Margin resulting from a change in the Level status
(which shall change simultaneously with a change in the Company's Corporate
Credit Rating) shall take effect on the earlier of (i) the date on which the
Company is required to give notice of such change to the Agent and the Banks
pursuant to Section 8.01 (g) hereof, and (ii) the date on which the Agent and
the Banks receive such notice; provided, that if at any time any notice from the
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Company to the Agent pursuant to Sections 8.01 (c) or (g) indicates that the
Corporate Credit Rating of the Company changed on a date prior to the date of
such notice, such change shall be effective with regard to the Applicable Margin
as follows:
(i) if such notice was received by the Agent and the Banks
on a timely basis as required by said Sections 8.01(c) or (g), any
change in the Applicable Margin by reason of such notice shall be
effective on the date of the Agent's receipt of such notice; and
(ii) if such notice was not received by the Agent and the
Banks on a timely basis as required by said Sections 8.01 (c) or
(g), then without prejudice to any other remedies that the Agent or
any Bank may have, (A) if such notice indicates that there should
have been an increase in the Applicable Margin, such increase shall
be retroactive to the date on which such notice was required to have
been delivered pursuant to the respective Section, and (B) if such
notice indicates that there should have been a decrease in the
Applicable Margin, such decrease shall be effective on the date of
the Agent's receipt of such notice.
"Base Rate" shall mean, for any day, a rate per annum equal to the
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higher of (i) the Prime Rate for such day or (ii) the sum of 1% plus the Federal
Funds Effective Rate for such day. Each change in the Base Rate resulting from a
change in the Prime Rate or the Federal Funds Effective Rate shall take effect
on the date when such change in the Prime Rate or the Federal Funds Effective
Rate, as the case may be, occurs.
"Base Rate Loan" shall mean a Loan made or to be made by a Bank
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bearing interest on the basis of the Base Rate in accordance with Section
3.02(a)(ii) hereof.
"Business Day" shall mean any day (but not a Saturday or Sunday) on
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which commercial banks are not authorized or required to close in New York City,
and which is also a day on which dealings in Dollar deposits are carried out in
the London interbank market.
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"Capital Stock", as applied to the stock of any Corporation, shall
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mean the capital stock of every class whether now or hereafter authorized,
regardless of whether such capital stock shall be limited to a fixed sum or
percentage with respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such Corporation.
"Carolina" shall mean Carolina Coca-Cola Bottling Investments, Inc.,
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a Delaware corporation and a wholly-owned Subsidiary of Coca-Cola, and its
successors.
"Coca-Cola" shall mean The Coca-Cola Company, a Delaware
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corporation, and its successors.
"Coca-Cola Ventures" shall mean Coca-Cola Ventures, Inc., a Delaware
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corporation and a wholly-owned Subsidiary of Consolidated, and its successors.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Commitment" shall mean, with respect to each Bank, the obligation
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of such Bank to make a Loan to the Company on the borrowing date pursuant to
Section 2.01 hereof, such Loan to be in a principal amount up to but not
exceeding the amount set forth opposite such Bank's name on the signature pages
hereof, on the terms and conditions of this Agreement.
"Commitment Termination Date" shall mean June 30,1996.
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"Common Stock" shall mean, with respect to any Person, any and all
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Capital Stock of such Person that is not Preferred Stock. In the case of
Consolidated, all Common Stock is, on the date hereof, designated "Common
Stock", "Class B Common Stock" and "Class C Common Stock".
"Consolidated" shall mean Coca-Cola Bottling Co. Consolidated, a
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Delaware corporation, and its successors.
"Container Supply Cooperatives" shall mean Southeastern Container,
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Inc., a North Carolina corporation, and each other cooperative Corporation or
other Person in which the Company holds Equity Interests, that supplies cans and
other containers to the Company.
"Corporate Credit Rating" shall mean S&P's "corporate credit
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rating", which rating (i) is S&P's most widely known rating product, (ii)
describes a company's overall creditworthiness, (iii) applies to all of such
Company's senior unsecured debt obligations, whether short-term or long-term,
without the benefit of any third-party credit enhancement (including, without
limitation, the Loans under this Agreement) and (iv) is currently denoted by the
symbols "AAA", "AA", "A", "BBB", "BB" and the like.
"Corporation" includes corporations, associations, companies,
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limited liability companies and business trusts.
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"Default" shall mean an Event of Default or an event which with
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notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, lease, sublease or
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other disposition of any asset, revenue or other property (including, without
limitation, any such transaction effected by way of merger or consolidation by
the Company and any investment or other injection of cash into a Subsidiary of
the Company or any other Person).
"Dollars" and "$" shall mean lawful money of the United States of
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America.
"Employee Benefit Plan" shall mean at any time an employee benefit
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plan within the meaning of Section 3(3) of ERISA, providing for current,
post-retirement or other benefits, and includes, without limitation, any
Multiemployer Plan and any plan subject to Section 4063 of ERISA.
"Environmental Claims" shall mean any and all administrative,
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regulatory or judicial actions, suits, demands, demand letters, directives,
claims, Liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or Health Law or any
permit issued, or approval given, under any Environmental Law or Health Law,
including, without limitation, any of the foregoing (a) for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law or Health Law, and (b) by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with any alleged injury or threat of injury to
health, safety or the environment.
"Environmental Laws" shall mean the Comprehensive Environmental
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Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq., the Clean Air Act, 42
U.S.C. 7401, et seq., the Clean Water Act, 33 U.S.C. 1251, et seq., the Toxic
Substances Control Act, 15 U.S.C. 2601, et seq., the Safe Drinking Water Act, 42
U.S.C. 3803, et seq., the Oil Pollution Act of 1990, 33 U.S.C. 2701, et seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001,
et seq., the Hazardous Material Transportation Act, 49 U.S.C. 1801, et seq., the
Occupational Safety and Health Act, 29 U.S.C. 651, et seq., and all other
federal, state, local and foreign statutes, laws, ordinances, regulations,
rules, codes, binding and enforceable guidelines, binding and enforceable
written policies, rules of common law, orders and permits now or hereafter in
effect, and any judicial or administrative consent decrees, judgments and
interpretations) relating to the protection or clean-up of the environment (or
of human health in connection with the environment), employee health and safety,
industrial hygiene or Hazardous Materials, or relating to emissions, discharges
or other Releases or threatened Releases of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes or other Hazardous
Materials into the environment (including, without limitation, air, surface
water, ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals, wastes or industrial, toxic or
hazardous substances or other Hazardous Materials.
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"Environmental Liabilities" shall mean all liabilities, obligations,
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responsibilities, obligations to conduct Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, expert and consulting fees and costs of investigations and
feasibility studies), fines, penalties, and monetary sanctions, interest, direct
or indirect, known or unknown, absolute or contingent, past, present or future,
resulting from any claim or demand, by any Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
including any Environmental Law or Health Law, arising from on-site
environmental, health or safety conditions, or the Release or threatened Release
into the environment, as a result of past, present or future operations of the
Company or any previous owners or lessees of any properties.
"Environmental Licenses" shall mean all licenses, approvals,
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notifications, registrations or permits required by applicable Environmental
Laws or Health Laws, including, without limitation, all lawful orders and
directives of governmental authorities with respect to the foregoing.
"Equity Interests" of any Person shall mean the aggregate amount
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invested in all shares of stock (whether common or preferred), partnership or
membership interests in such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended, or any successor statute.
"ERISA Affiliate" shall mean any member of the ERISA Group and any
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other "affiliate" as defined in Section 407(d)(7) of ERISA.
"ERISA Group" shall mean the Company, Consolidated and all members
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of a controlled group of Corporations, and all trades or businesses (whether or
not incorporated) under common control which, together with the Company and/or
Consolidated, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Reserve Percentage" shall mean for any day that
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percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirement in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on LIBOR Loans is determined
or any category of extensions of credit or other assets which includes loans by
a non-United States office of any Bank to United States residents).
"Event of Default" shall have the meaning assigned to that term in
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Section 9 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
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"Executive Committee" shall mean the Executive Committee of the
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Company, as provided in the Partnership Agreement.
"Existing Credit Agreement" shall mean the Credit Agreement, dated
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as of August 31, 1993, among the Company, the financial institutions named
therein, and Bank of America, National Trust & Savings Association, as agent on
behalf of such banks, as heretofore amended.
"FDA" shall mean the United States Food and Drug Administration, and
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any successor thereto.
"Federal Funds Effective Rate" shall mean, for any day, the rate per
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annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the New York
Business Day next succeeding such day; provided that (i) if such day is not a
New York Business Day, the Federal Funds Effective Rate for such day shall be
such rate on such transactions on the next preceding New York Business Day as so
published on the next succeeding New York Business Day, and (ii) if no such rate
is so published on such next succeeding New York Business Day, the Federal Funds
Effective Rate for such day shall be the rate per annum determined by the Agent
to be the average of the rates quoted to the Agent on such day on such
transactions by at least three independent federal funds brokers in New York
City selected by the Agent. For purposes of this definition, "New York Business
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Day" means any day, except a Saturday, Sunday or other day on which commercial
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banks in New York City are authorized or required by law to close.
"GAAP" has the meaning set forth in Section 1.02.
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"Governmental Authority" shall mean (a) the government of any
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federal, state, municipal or other political subdivision in which property of
the Company or any of its Subsidiaries is located and (b) any other government
exercising jurisdiction over the Company or any of its Subsidiaries, including
all agencies and instrumentalities of such government.
"Governmental Requirements" shall mean laws, ordinances, statutes,
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codes, rules, regulations, orders, decrees and judgments of any Governmental
Authority.
"Guarantee" by any Person shall mean any obligation, contingent or
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otherwise, of such Person directly or indirectly guaranteeing or otherwise
providing (by direct agreement, by causing a bank to issue a letter of credit,
or otherwise) for the payment of any indebtedness, lease, dividend or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) any such indebtedness, lease, dividend or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, accounts, receivables, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise)
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or (ii) entered into for the purpose of assuring in any other manner the obligee
of such indebtedness, lease, dividend or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in part)
or (iii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor; provided
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that the term Guarantee shall not include endorsements of instruments for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
For purposes of this Agreement, the amount of a Guarantee shall be
(A) if such Guarantee states a maximum principal amount of obligations
Guaranteed thereby, such maximum principal amount, and (B) if such Guarantee
does not state such a maximum principal amount of obligations Guaranteed
thereby, the maximum principal amount of all Indebtedness or other obligations
that are the subject of such Guarantee from time to time.
"Hazardous Materials" shall mean (a) any regulated petroleum or
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petroleum products, radioactive materials, asbestos that is or could become
friable, urea formaldehyde, polychlorinated biphenyls ("PCBs") and any
transformers or other equipment that contain dielectric fluid containing PCBs,
ammonia- and hydrochloroflurocarbons, radon gas, and (b) any chemicals,
flammable materials, acids, solvents, waste waters, and all other materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous waste", "hazardous materials", "extremely hazardous substances",
"restricted hazardous waste", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar import, under any applicable
Environmental Law or Health Law, and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority under, or which otherwise may form the basis of liability
(whether for cleanup or otherwise) under, any Environmental Law or Health Laws.
"Health Laws" shall mean all Governmental Requirements, whether
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promulgated by the FDA, any state agency charged with the supervision of public
health or related matters or otherwise, in any way relating to the production,
marketing or distribution of beverages (including, without limitation, any
thereof relating to labeling of containers).
"Indebtedness" shall mean, with respect to any Person (but without
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duplication):
(a) all indebtedness and other obligations of such Person for
borrowed money or for the deferred purchase price of property or services,
and without duplication, all obligations of such Person evidenced by
bonds, debentures, promissory notes or other similar evidences of
indebtedness;
(b) all indebtedness and other obligations of such Person arising
under interest rate and currency swaps and other similar hedging
arrangements, the full face amount of all bankers acceptances issued for
the account of such Person, and the full stated amount of all letters of
credit issued for account of such Person and, without duplication, all
drafts drawn thereunder, and all obligations of such Person arising in
respect of the sale
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by such Person, with or without recourse, or discount of any notes, leases
or accounts receivable of such Person;
(c) all obligations of such Person under leases or other
contractual arrangements which have been, or should be, recorded as
capital leases in accordance with GAAP;
(d) all shares of capital stock and other interests of such
Person (or warrants therefor) that are redeemable in whole or in part at
the election of the holder thereof for cash or any other property (other
than for other shares of capital stock of such Person);
(e) all Guarantees of such Person; and
(f) all indebtedness and other obligations referred to above in
clauses (a), (b), (c), (d) or (e) secured by (or for which the holder of
such indebtedness or other obligation has a right, contingent or
otherwise, to be secured by) any Lien upon or in property (including,
without limitation, contract rights and accounts receivable) owned by such
Person, whether or not such Person has assumed or become liable beyond the
value of the property pledged for the payment of such indebtedness or
other obligation.
"Interest Period" shall mean, with respect to each LIBOR Loan, each
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successive period commencing on the date on which such Loan is made or converted
from a Loan of another Type or (in the case of Interest Periods for such Loan
after the initial Interest Period therefor) the last day of the next preceding
Interest Period for such Loan, and ending on the numerically corresponding day
in the first, second, third or sixth calendar month thereafter, as the Company
may select as provided in Section 3.02(d) hereof, except that each Interest
Period which commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding the foregoing: (i) each Interest
Period which would otherwise end on a day which is not a Business Day shall end
on the next succeeding Business Day, unless such next succeeding Business Day
falls in a subsequent calendar month, in which case such Interest Period shall
end on the next preceding Business Day; and (ii) each Interest Period which
would otherwise commence before and end after the Interim Maturity Date or the
Maturity Date shall end on the Interim Maturity Date or the Maturity Date, as
the case may be.
"Interim Maturity Date" shall mean May 28, 2002; provided, that if
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such date is not a Business Day, the Interim Maturity Date shall be the next
succeeding Business Day, unless such next succeeding Business Days falls in a
subsequent calendar month, in which case the Interim Maturity Date shall be the
next preceding Business Day.
"Letter of Authorization" has the meaning assigned to that term in
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Section 6.01 (r) hereof.
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"Level" shall mean, for any day, the level set forth below based on
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the Company's Corporate Credit Rating with S&P on such day:
Level S&P Rating
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Level 1 BBB or higher
▇▇▇▇▇ ▇ ▇▇▇-
▇▇▇▇▇ ▇ BB+
Level 4 Below BB+ or not rated by S&P.
"LIBOR" shall mean, for any Interest Period, the rate per annum, as
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determined by the Agent (rounded upwards, if necessary, to the nearest 1/16 of
1%) to be the arithmetic mean of the interest rates per annum quoted by each of
the Reference Banks at approximately 11:00 a.m. London time (or as soon
thereafter as practicable) two Business Days prior to the first day of such
Interest Period for the offering by such Reference Bank to leading banks in the
London interbank market of Dollar deposits having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the Loan
of such Reference Bank scheduled to be outstanding for such Interest Period;
provided that if any Reference Bank is not scheduled to have a Loan outstanding
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for such Interest Period, the LIBOR for such Interest Period shall be determined
by such Reference Bank by reference to such principal amount as the Agent shall
determine. If any Reference Bank does not timely furnish information for
determination of the LIBOR for any Interest Period, the Agent shall determine
the LIBOR for such Interest Period on the basis of information timely furnished
by the remaining Reference Bank or Reference Banks.
"LIBOR Loan" shall mean a Loan made or to be made by a Bank bearing
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interest on the basis of LIBOR in accordance with Section 3.02(a)(i) hereof.
"Lien" shall mean, with respect to any asset, revenue or other
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property, any mortgage, lien, pledge, charge, security interest, attachment,
right of set off or other encumbrance of any kind (whether consensual or arising
by operation of law) in respect of such asset, revenue or property, the filing
of any financing statement or any similar document in any jurisdiction with
respect thereto (except for precautionary filings in connection with operating
leases of personal property), or any other type of preferential arrangement that
has the practical effect of any of the foregoing, and any agreement to grant any
of the foregoing. For the purposes of this Agreement, a Person shall be deemed
to own subject to a Lien any asset, revenue or other property which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset, revenue or other property, and any receivable or other
account that has been sold with full or partial recourse.
"Loans(s)" shall mean the loans provided for by Section 2.01 hereof.
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"Loan Documents" shall mean this Agreement, the Notes and the fee
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letters dated April 12, 1996 and May 17, 1996 between the Agent and the Company.
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"LTCB" shall mean The Long-Term Credit Bank of Japan, Limited;
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provided, that for purposes of Section 10.04 hereof, "LTCB" shall mean each of
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The Long-Term Credit Bank of Japan, Limited and LTCB Trust Company.
"Management Agreement" shall mean the Management Agreement, made and
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entered into as of the 2nd day of July 1993, by and among Consolidated, as
Manager, the Company, CCBC of Wilmington, Inc., Carolina, Coca-Cola Ventures and
Palmetto Bottling Company, as amended and in effect from time to time.
"Manager" shall mean the Person from time to time appointed as
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manager of the Company pursuant to the Partnership Agreement.
"Master Bottling Agreement" has the meaning assigned to that term in
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Section 7.17 hereof.
"Material Adverse Effect" shall mean a material adverse effect on
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the business, properties, operations, condition (financial or otherwise) results
of operations or prospects of the Company, or on the legality, validity or
enforceability of this Agreement or the Notes, or on the Company's ability to
perform its obligations under this Agreement or the Notes.
"Maturity Date" shall mean May 28, 2003; provided, that if such date
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is not a Business Day, the Maturity Date shall be the next preceding Business
Day.
"Multiemployer Plan" shall mean, at any time, a Plan defined as such
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in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and which is covered by Title IV of ERISA, and an
employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA
to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding six plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such six-year period.
"Note(s)" shall mean the promissory notes provided for by Section
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2.06 hereof to further evidence the Loans and, collectively, any promissory note
or notes issued in substitution therefor.
"Occupying Person(s)" shall mean any and all Persons under contract
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(either directly or indirectly) with the Company or any of its Subsidiaries or
any of the Partners or the Manager and who are constructing, occupying or
conducting operations on properties owned or leased by the Company or any of its
Subsidiaries.
"Partners" shall mean, collectively, each of Carolina and Coca-Cola
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Ventures, and any other Person that hereafter becomes a partner in the Company
pursuant to the Partnership Agreement or that otherwise owns Voting Interests in
the Company.
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"Partnership Agreement" shall mean the Partnership Agreement of
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Carolina Coca-Cola Bottling Partnership dated as of the 2nd day of July 1933
between Carolina Coca-Cola Bottling Ventures, Inc., Coca-Cola Ventures, Inc.,
Coca-Cola Bottling Co. Affiliated, Inc., Fayetteville Coca-Cola Bottling Company
and Palmetto Bottling Company, as amended on August 5, 1993 and August 12, 1993
and as otherwise amended or modified from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
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entity succeeding to any or all of its functions under ERISA.
"Permitted Corporate Conversion" has the meaning assigned to that
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term in Section 8.02(a) hereof.
"Person" shall mean an individual, a Corporation, a company, a
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limited liability company, a voluntary association, a partnership, a limited
liability partnership, a trust, an unincorporated organization or a government
or any agency, instrumentality or political subdivision thereof, or any other
type of entity or organization.
"Plan" shall mean at any time an Employee Benefit Plan which either
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(i) is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within the
preceding six years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group, and in any event shall include each
Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to 2% above
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the Base Rate as in effect from time to time
"Preferred Stock", as applied to the Capital Stock of any
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Corporation, shall mean Capital Stock ranking prior to the shares of any other
class of Capital Stock of said Corporation as to the payment of dividends or the
distribution of assets on any voluntary or involuntary liquidation.
"Prime Rate" shall mean the rate of interest from time to time
----------
announced by LTCB at its New York Branch as its prime commercial lending rate
for extensions of credit in Dollars, which rate is not necessarily the lowest
rate of interest charged by LTCB. Each change in any interest rate provided for
herein or in the Notes based upon the Prime Rate resulting from a change in the
Prime Rate shall take effect at the time of such change in the Prime Rate.
"Reference Banks" shall mean the principal London offices of LTCB,
---------------
DG Bank Deutsche Genossenschaftsbank and Credit Lyonnais.
"Regulation D" shall mean Regulation D of the Board of Governors of
------------
the Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
-11-
"Regulation G" shall mean Regulation G of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time.
"Regulation T" shall mean Regulation T of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time.
"Regulation U" shall mean Regulation U of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time.
"Regulation X" shall mean Regulation X of the Board of Governors of
------------
the Federal Reserve System, as in effect from time to time.
"Regulatory Change" shall mean (i) any change after the date of this
-----------------
Agreement in Japanese, United States Federal or state, or foreign law or
regulations (including, without limitation, Regulation D) or (ii) the adoption
or making after such date of any interpretations, directives or requests
applying to a class of banks including LTCB or any of the Banks, of or under any
Japanese, United States Federal or state, or foreign law or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Release" shall mean any release, spilling, leaking, pumping,
-------
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
deposit, dispersal, dumping, disposing or migrating into earth, air, water or
other parts of the environment, including, without limitation, the movement of
any Hazardous Materials through the air, soil, surface waters, groundwater or
property.
"Remedial Actions" shall mean all actions required by any
----------------
Governmental Authority or Environmental Law or Health Law to (i) clean up,
remove, treat or in any other way adjust Hazardous Materials in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release or minimize
the further Release of Hazardous Materials so that they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment; or (iii) perform pre-remedial studies and investigations
and post-remedial monitoring and care.
"Required Banks" shall mean, at any time, Banks then holding 51 % or
--------------
more of the aggregate outstanding principal amount of the Loans, or if no Loans
are then outstanding, which hold 51% or more of the aggregate amount of the
Commitments, or if no Loans or Commitments are then outstanding, which held 51 %
of more of the aggregate principal amount of the Loans immediately prior to the
payment thereof in full.
"Reserve-Adjusted LIBOR" shall mean, with respect to any Interest
----------------------
Period, a rate per annum (expressed as a percentage) equal to LIBOR for such
Interest Period, multiplied by a fraction, the numerator of which is 100%, and
the denominator of which is 100% minus the Euro-Dollar Reserve Percentage, if
any, for such Interest Period.
-12-
"Restricted Payment" shall mean, for any Person, (a) the payment,
------------------
distribution or application of its funds or other assets or properties for any
dividend or other distribution (in cash, property or obligations) on or with
respect to any shares of any class of capital stock, partnership interests,
membership interests or other comparable interests (now or hereafter
outstanding) of such Person or on any warrants, options or other rights with
respect to any such shares or other interests, and (b) the purchase, redemption
or other retirement of any such shares, interests, warrants, options or other
rights.
"S&P" shall mean Standard & Poor's, and its successors.
---
"SEC" shall mean the Securities and Exchange Commission, or any
---
successor thereto.
"Senior Financial Officer" shall mean, with respect to the Company,
------------------------
the chief financial officer or the treasurer of the Manager.
"Subsidiary" of any Person shall mean any Corporation, partnership,
----------
limited liability company or other entity of which at least a majority of the
outstanding Voting Interests is at the time directly or indirectly owned or
controlled by such Person and/or one or more of its Subsidiaries.
"Type" of any Loan refers to such Loan being a LIBOR Loan or a Base
----
Rate Loan.
"Voting Interests" in any Person shall mean securities of or other
----------------
ownership interests in such Person having ordinary voting power to elect members
of the board of directors, managers, trustees or other persons performing
similar functions of such Person.
"Voting Power" in any Person shall mean the exclusive ability to
------------
control, through the ownership of shares of capital stock, partnership
interests, membership interests or otherwise, the election of members of the
board of directors or other similar governing body of such Person, and the
holding of a designated percentage of Voting Power of a Person means the
ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively
the election of that percentage of the members of the board of directors or
similar governing body of such Person.
1.02 Accounting Terms. All accounting terms not otherwise defined
----------------
herein have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles and practices as are generally accepted in the United
States at the date of such computation ("GAAP").
1.03 Compliance Certificates and Opinions. Except as otherwise
------------------------------------
expressly provided by this Agreement, upon any application or request by the
Company to the Agent and
-13-
the Banks to take any action under any provision of this Agreement, the Company
shall furnish to the Agent a certificate of a Senior Financial Officer on behalf
of the Company stating that all conditions precedent, if any, provided for in
this Agreement relating to the proposed action have been complied with and, if
reasonably requested by the Agent, an opinion of counsel selected by the Company
and satisfactory to the Agent and the Banks stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.04 Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 2. Commitments and Loans.
---------------------
2.01 Commitments. Each Bank severally agrees, subject to the terms
-----------
and conditions of this Agreement, to make one loan to the Company on any one
Business Day on or prior to the Commitment Termination Date, which loan shall be
in a principal amount up to but not exceeding the respective Commitment amount
specified opposite such Bank's name on the signature pages hereof. The Loans
shall be made by the Banks pro rata in accordance with their respective
--- ----
Commitments. No portion of the Commitments may be voluntarily reduced or
terminated by the Company.
The obligations of the Banks to make the Loans are several and not
joint, and no Bank shall be responsible for the failure of any other Bank to
make its Loan hereunder.
2.02 Borrowing. The Company shall give the Agent written notice of
---------
the requested borrowing of the Loans not later than 10:00 a.m. (New York time)
on the date that is not less than three Business Days prior to the date of such
requested borrowing. Such notice of
-14-
borrowing shall specify the aggregate principal amount of the Loans to be
borrowed (which shall not, in the aggregate, exceed $195,000,000), the date of
borrowing (which shall be a Business Day not later than the Commitment
Termination Date), the Type of such Loans (LIBOR or Base Rate) and, if LIBOR
Loans, the initial Interest Period that will apply to the Loans. Such notice of
borrowing shall be irrevocable and shall be effective upon receipt thereof by
the Agent. Promptly after the Agent's receipt of such notice of borrowing, the
Agent shall give each Bank notice of the contents thereof and of each Bank's pro
---
rata share (based on the Commitments of the Banks) of the aggregate principal
----
amount of the requested borrowing.
Not later than 10:00 a.m. New York time on the date of the requested
borrowing, each Bank shall make available to the Agent the principal amount of
such Bank's Loan to be made as part of such borrowing by paying the same, in
Dollars and in immediately available funds, to the Agent's account no.
▇▇-▇▇▇-▇▇▇ maintained at Bankers Trust Company, New York, New York, ABA no.
▇▇▇▇▇▇▇▇▇, ref. "Piedmont Coca-Cola Bottling Partnership". Not later than 3:00
p.m. (New York time) on the date of the requested borrowing, the Agent shall,
subject to the terms and conditions of this Agreement, make available to the
Company the amounts so received from the Banks by depositing the same, in
immediately available funds, in the Company's account no. ▇▇▇▇▇▇▇▇▇▇ "Piedmont
Coca-Cola Bottling Partnership" maintained with Wachovia Bank of North Carolina,
N.A., Charlotte, North Carolina, ABA no. ▇▇▇▇▇▇▇▇▇; provided, that,
--------
notwithstanding the foregoing, the Company hereby irrevocably authorizes and
instructs the Agent (A) first, to pay directly to Bank of America, National
Trust and Savings Association (pursuant to wire transfer instructions to be
notified to the Agent prior to the date of such borrowing) a portion of the
proceeds of the Loans in such amount (but not exceeding the aggregate proceeds
of the Loans) as may be necessary to repay or prepay (as the case may be) in
full, on the borrowing date of the Loans, the principal amount of the loans then
outstanding under the Existing Credit Agreement, together with all interest
accrued to the date of repayment and all fees and other amounts then due
thereunder, for application to such payment or prepayment, and (B) if any
proceeds of the Loans remain after making such payment and application, to pay
the remaining proceeds of the Loans directly to Consolidated (pursuant to wire
transfer instructions to be notified to the Agent prior to the date of such
borrowing) for application to the repayment or prepayment of loans outstanding
from Consolidated to the Company. The borrowing of the Loans shall terminate any
Commitments that remain unborrowed. Any portion of the Commitments not utilized
on June 30, 1996 will terminate on such date.
2.03 Fees. The Company shall pay to the Agent for its own account
----
such fees in such amounts and at the times set forth in the letters dated April
12, 1996 and May 17, 1996 between the Agent and the Company.
2.04 Lending Offices. Each Bank shall make and maintain its Loans
---------------
at such Bank's Applicable Lending Office(s) or at such other Applicable Lending
Office(s) as such Bank may select in accordance with the definition of such term
in Section 1.01 hereof.
2.05 Loan Accounts. Each Bank shall record on its internal records
-------------
the amount of the Loans made by it and each payment of principal, interest, fees
and other amounts payable
-15-
by the Company hereunder and under the Notes, and such records shall be
reputably presumptive evidence of the Company's obligations in respect of such
amounts; provided that the failure of any Bank to make any such recordation
--------
shall not affect the obligations of the Company hereunder or under the Notes.
The Agent also shall record on its internal records the amount of all Loans of
the Banks and each payment of principal, interest, fees and other amounts
payable by the Company hereunder and under the Notes, and such records shall be
reputably presumptive evidence of the Company's obligations in respect of such
amounts; provided that the failure of the Agent to make any such recordation
--------
shall not affect the obligations of the Company hereunder or under the Notes;
and provided, further, that in the event of any discrepancy between the records
-------- -------
of the Agent and the records of any Bank, the records of such Bank shall
prevail.
2.06 Notes.
-----
(a) Without limiting the provisions of Section 2.05 hereof, each
Loan made by each Bank shall be further evidenced by a promissory note of the
Company in substantially the form of Exhibit A hereto. Each Note to the order of
a Bank shall be dated the date of the borrowing of the Loans hereunder, shall be
payable to the order of such Bank in a principal amount equal to the amount of
such Loan and shall be otherwise duly completed, executed and delivered. Any
payments and prepayments made on account of the principal of each Note shall be
recorded by the Bank holding such Note on its books and, prior to any transfer
of such Note, endorsed by such Bank on the schedule attached to such Note or any
continuation thereof; but no failure by such Bank to make, or delay in making,
such recording or endorsement shall affect the obligations of the Company under
this Agreement or such Note.
(b) Each Bank shall be entitled to have its Notes subdivided, by
exchange for promissory notes in minimum denominations of $10,000,000 (in the
aggregate amount of all Notes of such Bank).
(c) The Company agrees to issue new Notes to any Bank to reflect
any assignment made by such Bank pursuant to Section 11.06(b) or if such Bank
certifies to the Company that its Note or Notes have been mutilated or
destroyed.
2.07 Several Obligations and Remedies. The obligations of the
--------------------------------
Banks under this Agreement are several, and neither the Agent nor any other Bank
shall be responsible for the failure of any Bank to make its Loans hereunder.
The rights of the Banks also are several, and the amounts payable by the Company
at any time under this Agreement and the Notes to each Bank shall be a separate
and independent debt. Each Bank shall be entitled separately to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Bank or the Agent to consent to, or be joined as an
additional party in, any proceedings for such purpose.
-16-
Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans. The Company will pay to the Agent for the
------------------
account of each Bank the unpaid principal amount of each Loan in full in two
equal consecutive annual installments, the first of which shall be in the
principal amount of one-half of the original principal amount of such Loan and
shall be payable on the Interim Maturity Date, and the second of which shall be
in the aggregate principal amount of one-half of the original principal amount
of such Loan (or such other amount as shall equal the aggregate principal amount
of all Loans that are then outstanding) and shall be payable on the Maturity
Date.
3.02 Interest.
--------
(a) The Company will pay to the Agent for the account of each
Bank interest on the unpaid principal amount of each installment of each Loan
and Note for the period commencing on and including the date of such Loan to but
excluding the date on which such installment shall be paid in full, as follows:
(i) at such times when the Loans are LIBOR Loans, the
Company will pay interest on each such Loan for each Interest Period
at a rate per annum equal to the Reserve-Adjusted LIBOR for such
Interest Period plus the Applicable Margin in effect from time to
time during such Interest Period; and
(ii) at such times when the Loans are Base Rate Loans, the
Company will pay interest on each such Loan at a rate per annum
equal to the Base Rate in effect from time to time.
(b) Notwithstanding the foregoing, the Company will pay to the
Agent for the account of each Bank interest at the Post-Default Rate on any
principal of the Loans and (to the fullest extent permitted by law) on interest
on the Loans and each other amount that may be or become payable hereunder or
under the Notes, which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period commencing on the due
date thereof to but excluding the date on which the same is paid in full.
(c) Accrued interest on each Loan and Note shall be payable:
(i) in the case of LIBOR Loans (A) on the last day of each
Interest Period for such Loans, (B) on the date on which such Loan
or any installment thereof shall become due (whether at stated
maturity, by acceleration or otherwise), (C) on the date on which
such Loan or any installment thereof shall be paid in full, and (D)
additionally, if such Interest Period is longer than three months,
on the dates that fall at three-month intervals after the first day
of such Interest Period, and
(ii) in the case of Base Rate Loans, (A) on the last Business
Day of each calendar month, (B) on the date on which such Loan or
any installment thereof
-17-
shall become due (whether at stated maturity, by acceleration or
otherwise), and (C) on the date on which such Loan or any
installment thereof shall be paid in full;
except that interest payable on any amount at the Post-Default Rate shall be
payable from time to time on demand by the Agent or any Bank.
(d) (i) The Company shall select the Type and, if LIBOR Loans,
the duration of the initial Interest Period for each Loan in the notice of
borrowing for such Loan given pursuant to Section 2.02 hereof. Thereafter, the
Company may elect to continue a Loan of one Type as the same Type, or to convert
a Loan of one Type to another Type, in each case by giving written notice to the
Agent in accordance with this Section 3.02(d). Each such election shall apply to
all Loans then outstanding. Such election shall be made by giving written notice
to the Agent specifying (A) the Business Day on which the continuation or
conversion shall be effective (which Business Day, in the case of a continuation
of LIBOR Loans as LIBOR Loans or a conversion of LIBOR Loans into Base Rate,
shall be the last day of the Interest Period then in effect for the Loans), (B)
the Type of Loans to be in effect after such continuation or conversion, and (C)
if the Loans are to be continued as or converted into LIBOR Loans, the duration
of the Interest Period therefor. Each such notice with respect to any Interest
Period shall be irrevocable and shall be effective only if received by the Agent
not later than 10:00 a.m. New York time on the date three Business Days prior to
the first day of such proposed Interest Period. In the event that, by 10:00 a.m.
New York time on the date three Business Days prior to the last day of any
Interest Period the Company fails to select the Type or, if LIBOR Loans, the
duration of any Interest Period for, the Loans as provided in this Section 3.02,
all Loans shall be continued as, or convert into (as the case may be), Base Rate
Loans on the last day of such Interest Period.
(ii) Anything in this Agreement to the contrary notwithstanding,
the Company may not select Reserve-Adjusted LIBOR as the interest basis for the
Loans at any time when a Default has occurred and is continuing, or, without
limiting the generality of the foregoing, when the Company does not have a
Corporate Credit Rating by S&P.
(iii) The Agent shall promptly notify the Banks of the Type of
Loans elected by the Company and the duration of each Interest Period.
(e) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Company and the
Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
3.03 Prepayments, of the Loans.
-------------------------
(a) The Company shall have the right to prepay the Loans in full
or in part at any time or from time to time; provided, that: (i) the Company
--------
shall give the Agent written notice of each such prepayment, which notice shall
be irrevocable, shall specify the aggregate
-18-
principal amount of the Loans of all the Banks to be prepaid (which, if less
than the full unpaid principal amount of the Loans, shall be at least $1,000,000
or, if higher, an integral multiple of $500,000), and the date of prepayment,
and shall be effective only if received by the Agent not later than 10:00 a.m.
New York time on the date 10 days prior to the requested date of such
prepayment, (ii) such prepayment shall be accompanied by all amounts that may be
required to be paid to each Bank pursuant to Section 5.04 hereof, (iii) except
in the case of non-ratable prepayments pursuant to Sections 5.01 (b) or 5.03
hereof, such prepayment shall be applied ratably to the Loans of all the Banks
in accordance with the unpaid principal amount of the respective Loans then held
by each of them, and (iv) such prepayment shall be applied to the installments
of the Loans in the inverse order of their maturity. The Agent shall promptly
notify the Banks of each notice of prepayment.
(b) On the date of each Disposition of assets of the Company or
any Subsidiary of the Company other than pursuant to clauses (a), (b), (c), (d)
or (e) of Section 8.09 hereof, the Company shall prepay the Loans in an amount
equal to the proceeds of such sale (net of reasonable costs and taxes incurred
by the Company or such Subsidiary in connection with such sale). Such prepayment
shall be (i) accompanied by all amounts that may be required pursuant to Section
5.04 hereof, (ii) applied ratably to the Loans of all the Banks in accordance
with the unpaid principal amount of the respective Loans then held by each of
them, and (iii) applied to the installments of the Loans in the inverse order of
their maturity.
(c) Any portion of the Loans prepaid, whether pursuant to this
Section 3.03, Section 5.01 or 5.03 or otherwise, may not be reborrowed.
3.04 Limitation on Interest. Anything in this Agreement or in any
----------------------
Note to the contrary notwithstanding, in no event shall any Bank be entitled to
take, charge, collect or receive interest on the Loans or the Notes in excess of
the maximum rate permitted under applicable law.
Section 4. Payments and Computations.
-------------------------
4.01 Payments.
--------
(a) All payments of principal of the Loans, interest thereon and
all other fees, indemnities and other amounts to be paid by the Company under
this Agreement and the Notes shall be made in Dollars, in immediately available
funds, to the Agent at its account No. ▇▇-▇▇▇-▇▇▇ at Bankers Trust Company, New
York, New York ABA no. ▇▇▇▇▇▇▇▇▇, ref.: "Piedmont Coca-Cola Bottling
Partnership-1996 Term Loan Facility" (or at such other account or at such other
place in New York City as the Agent may notify the Company from time to time),
for account of each Bank's Applicable Lending Office not later than 10:00 a.m.
New York time on the date on which such payment shall become due. Each such
payment made after such time on any such due date shall be deemed to have been
made on the next succeeding Business Day, and interest shall accrue thereon as
provided in Section 3.02(b). Each payment received by the Agent under this
Agreement or any Note for account of a Bank shall be paid promptly to such Bank,
in immediately available funds, for account of such Bank's Applicable Lending
Office.
-19-
(b) All payments and prepayments of principal of the Loans shall
be accompanied by interest on the Loans accrued to the date of payment or
prepayment.
(c) All payments shall be made without set-off, counterclaim or
deduction of any kind. Upon the occurrence and during the continuance of a
Default, then in addition to any rights that the Agent or any Bank may have
under applicable law, the Agent and each Bank may (but shall not be obligated
to) debit the amount of any such payment to any deposit account (whether
ordinary or special, time deposit or otherwise) of the Company with the Agent or
such Bank or any affiliate of the Agent or such Bank and whether denominated in
Dollars or any other currency and, in the case of time deposits, whether or not
such time deposit shall then be matured, and apply the proceeds of such debit to
the payment of all amounts then due hereunder and under the Notes. The Agent or
any Bank effecting such debit and application shall give written notice thereof
to the Company promptly thereafter, but the failure to give any notice to the
Company shall not affect the validity of such debit and application.
(d) If the stated due date of any payment under this Agreement or
the Notes would otherwise fall on a day which is not a Business Day, such date
shall be extended to the next succeeding Business Day and interest shall be
payable for any principal so extended for the period of such extension.
(e) Each payment or prepayment of principal of or interest on the
Loans shall be made to the Agent for the account of the Banks pro rata in
accordance with the respective unpaid principal amounts of their respective
Loans.
4.02 Computations. Interest on the Loans and the Notes and on any
------------
other amounts hereunder shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable, except that interest calculated by
reference to the Prime Rate shall be computed on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed.
4.03 Non-Receipt of Funds by the Agent. Unless the Agent shall
---------------------------------
have been notified by a Bank or the Company prior to the date on which such Bank
or the Company (as the case may be) is scheduled to make any payment to the
Agent of any amount required to be paid under this Agreement or any Note (such
payment being herein called a "Required Payment"), which notice shall be
----------------
effective upon receipt, that it does not intend to make the Required Payment to
the Agent, the Agent may assume that the Required Payment has been made and may,
in reliance upon that assumption (but shall not be required to), make the amount
of such Required Payment available to the intended recipient(s) on such date. If
such Bank or the Company (as the case may be) has not in fact made the Required
Payment to the Agent, the recipient(s) of such payment shall, on demand, repay
to the Agent the amount so made available together with interest thereon in
respect of each day during the period from and including the date such amount
was so made available by the Agent to but not including the date on which the
Agent recovers such amount at a rate per annum equal to (i) in the case of
payments due from the Banks, the Federal Funds Effective Rate for such day (as
determined by the Agent) for the first two Business Days after the date on which
such payment was due to be made and thereafter at
-20-
the Base Rate in effect from time to time, and (ii) in the case of payments due
from the Company, the Base Rate in effect from time to time for the first two
Business Days after the date on which such payment was due to be made, and
thereafter at the Post-Default Rate.
4.04 Sharing of Payments. If any Bank shall obtain payment of any
-------------------
principal of or interest on any Loan through the exercise of any right of
set-off, banker's lien, counterclaim or similar right or otherwise, and, as a
result of such payment, such Bank shall have received a greater percentage of
the principal or interest then due hereunder to such Bank than the percentage
received by any other Banks, it shall promptly purchase from such other Banks
participations in the Loans made by such other Banks in such amounts, and make
such other adjustments from time to time as shall be equitable, to the end that
all the Banks shall share the benefit of such excess payment (net of any
expenses which may be incurred by such Bank in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal of and/or
interest on the Loans held by each of the Banks. To such end, all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such excess payment is rescinded or must
otherwise be restored. The Company agrees that any Bank so purchasing a
participation in the Loans made by other Banks may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Bank were a direct holder of the Loans in the
amount of such participation. Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Company or any of its Affiliates. If under any
applicable bankruptcy, insolvency or other similar law, any Bank receives a
secured claim in lieu of a right of set-off to which this Section 4.04 applies,
such Bank shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Banks entitled
under this Section 4.04 to share in the benefits of any recovery on such secured
claim.
Section 5. Yield Protection and Illegality.
-------------------------------
5.01 Additional Costs.
----------------
(a) The Company shall pay to the Agent for the account of each
Bank from time to time such amounts as such Bank may reasonably determine to be
necessary to compensate it for any costs which such Bank determines are
attributable to its making or maintaining of any of its Loans or its obligation
to make Loans hereunder or any reduction in any amount receivable by such Bank
from the Company hereunder or under the Notes in respect of its Loans or such
obligation (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change which:
----------------
(i) changes the basis of taxation of any amounts payable to the Agent or such
Bank by the Company under this Agreement or any Note (other than taxes imposed
on the overall net income of such Bank or of its Applicable Lending Office by
the jurisdiction in which such Bank has its principal office or such Applicable
Lending Office); or (ii) imposes or modifies any reserve, special deposit,
minimum capital, capital ratio or similar requirements, or increases the rate of
any such requirements, relating to any extensions of credit or other assets of,
or any deposits with or other liabilities of, such Bank (including any of such
Bank's Loans or any deposits referred to in the
-21-
definition of "LIBOR' in Section 1.01 hereof), or the Commitments or the Notes;
or (iii) imposes any other condition affecting this Agreement or the Notes (or
any of such extensions of credit or liabilities) or the Commitments.
Notwithstanding the foregoing provisions of this Section 5.01(a), in no event
may any Bank requesting payment of Additional Costs under this Section 5.01 (a)
be entitled to payment of any Additional Costs to the extent that such
Additional Costs arose with respect to periods prior to the date 18 months prior
to the date of the first such request. Each Bank will designate a different
Applicable Lending Office for its Loans if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the opinion of
such Bank, be disadvantageous to such Bank in any material respect. Each Bank
will furnish the Company (with a copy to the Agent) with a certificate setting
forth in reasonable detail the basis and amount of each request for compensation
under this Section 5.01(a).
(b) Without limiting the effect of the provisions of Section
5.01(a) hereof (but without duplication), in the event that, by reason of any
Regulatory Change, any Bank becomes subject to restrictions on the amount of any
category of liabilities or assets (relating to any Loan held by it or its
funding), then, if such Bank so elects by notice to the Company (with a copy to
the Agent), the following provisions shall apply:
(x) During the 30-day period following the date of any such
notice (the "Negotiation Period"), such Bank and the Company will
------------------
negotiate in good faith (through the Agent) to agree upon a substitute
basis (the "Substitute Basis") for determining the rate of interest to be
----------------
applicable to the Loans held by such Bank (including, if appropriate,
alternative periods for such determinations). If so agreed, the Substitute
Basis (plus the Applicable Margin) shall thereafter be the rate at which
such Loans bear interest pursuant to Section 3.02(a) hereof (subject to
Section 3.04) and shall be retroactive to, and take effect from, the
beginning of the then current Interest Period for each Loan.
(y) If at the expiry of the Negotiation Period a Substitute Basis
shall not have been agreed upon, such Bank shall notify the Company from
time to time (with a copy to the Agent) of the cost (as reasonably
determined by such Bank) of funding its Loans (plus the Applicable Margin)
and the interest payable to such Bank on such Loans, and the Company shall
be obligated to pay all such costs and interest in the amounts and at the
rates (plus the Applicable Margin) specified by such Bank. The failure of
the Company and such Bank to agree upon a Substitute Basis at the expiry
of the Negotiation Period shall, so long as no Default has occurred and is
continuing, be deemed to be an election by the Company to prepay the Loans
of such Bank in accordance with Section 3.03(a) hereof on the date 30 days
after such expiry (or, if earlier, on the last day of the then current
Interest Period), subject to Section 5.04 hereof.
(c) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay to the Agent
for the account of each Bank from time to time on request by such Bank (with a
copy to the Agent) such amounts as such Bank may reasonably determine to be
necessary to compensate such Bank for any costs which it determines are
attributable to the maintenance by such Bank (or any Applicable Lending Office),
pursuant to any law or regulation or any interpretation, directive or request
(whether or not having the
-22-
force of law) of any court or governmental or monetary authority, by reason of
any Regulatory Change, of capital in respect of the Commitment, the Loans or the
Notes held by it (such compensation to include, without limitation, an amount
equal to any reduction of the rate of return on assets or equity of such Bank
(or any Applicable Lending Office) to a level below that which such Bank (or any
Applicable Lending Office) could have achieved but for such law, regulation,
interpretation, directive or request). Notwithstanding the foregoing provisions
of this Section 5.01(c), in no event may any Bank requesting payment of
compensation under this Section 5.01 (c) be entitled to payment of such
compensation to the extent that such compensation is for costs with respect to
periods prior to the date 18 months prior to the date of the first such request.
Each Bank will furnish the Company with a certificate setting forth in
reasonable detail the basis and amount of each request for compensation under
this Section 5.01(c).
(d) Determinations and allocations by each Bank for purposes of
this Section 5.01 of the effect of any Regulatory Change pursuant to Section
5.01 (a) or (b) hereof, or of the effect of capital maintained pursuant to
Section 5.01 (c) hereof, on its costs or rate of return of maintaining its Loans
or its obligation to make its Loans, or on amounts receivable by it in respect
of its Loans, and of the amounts required to compensate such Bank under this
Section 5.01, shall be conclusive, provided that such determinations and
allocations are reasonable.
5.02 Changes in Circumstances. Anything herein to the contrary
------------------------
notwithstanding, if, on or prior to the determination of the interest rate for
any LIBOR Loan for any Interest Period therefor either (i) the Agent determines
(which determination shall be conclusive) that quotations of interest rates for
the deposits referred to in the definition of "LIBOR" in Section 1.01 hereof are
not being provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such LIBOR Loan as provided
herein, then the Agent shall give the Company and the Banks prompt written
notice thereof, or (ii) any Bank determines that the LIBOR for such Interest
Period will not adequately reflect the cost to such Bank of funding its LIBOR
Loan or LIBOR Loans for such Interest Period, then such Bank shall give the
Agent and the Company prompt written notice thereof; and, if such LIBOR Loan has
not then been made, the obligation of the Banks to make the LIBOR Loans shall
immediately terminate, and if such Loan has been made, the following provisions
shall apply:
(a) During the 30-day period following the date of any such
notice (the "Negotiation Period"), all of the Banks and the Company will
------------------
negotiate in good faith (through the Agent) to agree upon a substitute
basis (the "Substitute Basis") for determining the rate of interest to be
----------------
applicable to the LIBOR Loans (including, if appropriate, alternative
periods for such determinations). If agreed among the Company and all of
the Banks, the Substitute Basis (plus the Applicable Margin) shall
thereafter be the rate at which the LIBOR Loans bear interest pursuant to
Section 3.02(a) hereof (subject to Section 3.04) and shall be retroactive
to, and take effect from, the beginning of the then current Interest
Period.
(b) If at the expiry of the Negotiation Period a Substitute Basis
shall not have been agreed upon, each Bank shall notify the Company from
time to time (with a copy to
-23-
the Agent) of the cost (as reasonably determined by such Bank) of funding
its LIBOR Loans (plus the Applicable Margin) and the interest payable to
such Bank on such LIBOR Loans, and the Company shall be obligated to pay
all such costs and interest in the amounts and at the rates (plus the
Applicable Margin) specified by such Bank. The failure of the Company and
the Banks to agree upon a Substitute Basis at the expiry of the
Negotiation Period shall be deemed to be an election by the Company to
prepay the LIBOR Loans of the Banks in accordance with Section 3.03(a)
hereof on the date 30 days after such expiry (or, if earlier, the last day
of the then current Interest Period), subject to Section 5.04 hereof.
5.03 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to make or maintain its Loans hereunder as LIBOR Loans, then such
Bank shall promptly notify the Company and the Agent and, if the Loans have not
then been made, the obligation of such Bank to make its Loans as LIBOR Loans
shall immediately terminate, and if the Loans have been made, the Company shall
prepay the LIBOR Loans of such Bank in full on the last day of the then current
Interest Period therefor, or on such earlier date as such Bank may reasonably
require in light of the applicable legal requirements. Such Bank agrees that it
will designate a different Applicable Lending Office for its Loans if such
designation will avoid the illegality that is the reason for the required
prepayment pursuant to this Section 5.03 and will not, in the opinion of such
Bank, be disadvantageous to such Bank in any material respect.
5.04 Compensation. Whether or not any Loan is made, the Company
------------
shall pay to the Agent for its own account or for the account of each Bank (as
the case may be), immediately upon the request of the Agent or such Bank from
time to time, such amount or amounts as shall be sufficient (in the reasonable
opinion of the Agent or such Bank) to compensate it for any loss, cost or
expense which the Agent or such Bank determines are attributable to:
(a) any payment or prepayment of any LIBOR Loan for any reason
(including, without limitation, any prepayment or acceleration of the
Loans pursuant to Section 3.03, 5.01, 5.03 or 9 hereof for any reason) on
a date other than the last day of an Interest Period for such Loan or any
failure to continue a LIBOR Loan as a LIBOR Loan or to convert a Base Rate
Loan into a LIBOR Loan for the designated Interest Period on the date
scheduled for such conversion or continuation; or
(b) any failure of the Company for any reason to make a
prepayment on a date for which notice of such prepayment has been given in
accordance with this Agreement; or
(c) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow the Loans on any date
scheduled for the borrowing thereof.
-24-
Without limiting the effect of the first sentence of this Section 5.04, such
compensation to any Bank shall include an amount equal to the excess, if any, of
(i) the amount of interest which otherwise would have accrued on the principal
amount so paid, prepaid or not borrowed for the period from the date of such
payment, prepayment or failure to borrow to the last day of the then current
Interest Period for the respective Loans (or, in the case of a failure to
borrow, the Interest Period for such Loans which would have commenced on the
date specified for such borrowing) at the applicable rate of interest for such
Loan provided for herein over (ii) the interest component of the amount such
Bank would have bid in the London interbank market for Dollar deposits of
leading banks in amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such Bank). Each Bank
will furnish the Company with a certificate setting forth in reasonable detail
the basis and amount of each request for compensation under this Section 5.04.
5.05 Taxes. All payments of principal, interest, fees and other
-----
amounts under this Agreement or the Notes paid or payable to the Agent or any
Bank (as used in this Section 5.05, "Payments") shall be made free and clear of,
--------
and without deduction by reason of, any and all taxes, duties, assessments,
withholdings, retentions or other similar charges whatsoever imposed, levied,
collected, withheld or assessed by any jurisdiction or any agency or taxing
authority thereof or therein (as used in this Section 5.05, "Taxes"), all of
-----
which shall be paid by the Company for its own account not later than the date
when due. If the Company is required by law or regulation to deduct or withhold
any Taxes from any Payment, the Company shall: (a) make such deduction or
withholding; (b) pay the amount so deducted or withheld to the appropriate
taxing authority not later than the date when due; (c) deliver to the Agent,
promptly and in any event within 15 days after the date on which such Taxes
become due, original tax receipts and other evidence satisfactory to, the Agent
of the payment when due of the full amount of such Taxes; and (d) pay to the
Agent for the account of itself or of the respective Bank, forthwith upon any
request by the Agent or such Bank therefor from time to time, such additional
amounts as may be necessary so that the Agent or such Bank receives, free and
clear of all Taxes, the full amount of such Payment stated to be due under this
Agreement or the Notes as if no such deduction or withholding had been made. The
Company hereby indemnifies the Agent and each Bank and holds each of them
harmless for any loss, cost, damage, penalty or expense whatsoever arising from
any failure of the Company to make, or delay in making, any deduction or
withholding of Taxes, or its failure to pay when due the amount so deducted or
withheld to the appropriate taxation authority or its failure otherwise to
comply with the terms and conditions of this Section 5.05. Each Bank will
designate a different Applicable Lending Office for its Loans if such
designation will avoid the need for, or reduce the amount of, any additional
amount that the Company is required to pay to such Bank under this Section 5.05
and will not, in the opinion of such Bank, be disadvantageous to such Bank in
any material respect.
Each Bank that is organized under the laws of a jurisdiction other
than the United States or any state or other political subdivision, district or
territory thereof agrees that it will deliver to the Company on the date of its
execution of this Agreement and thereafter as may be required from time to time
by applicable law or regulation United States Internal Revenue Service Form 4224
or 1001 (or any successor form) or such other form as from time to time may be
required to, demonstrate that payments made by the Company to such Bank under
this
-25-
Agreement and the Notes either are exempt from United States Federal
withholding taxes or are payable at a reduced rate (if any) specified in any
applicable tax treaty or convention.
Section 6. Conditions Precedent.
--------------------
6.01 Conditions Precedent to the Initial Borrowing. The obligation
---------------------------------------------
of each Bank to make its Loan hereunder on the occasion of the borrowing under
Section 2.02 hereof is subject to the receipt by the Agent of the following
documents, each of which shall be satisfactory to the Agent in form and
substance, and with sufficient copies for the Agent and each Bank:
(a) this Agreement, duly executed and delivered by all parties
provision for whose signature is made on the signature pages hereof;
(b) the Notes, duly executed and delivered by the Company to the
order of each Bank and otherwise appropriately completed.
(c) (i) a certificate of partnership good standing dated as of a
recent date for the Company from the Secretary of State of Delaware, to
the extent available from such Secretary of State; (ii) a long-form
certificate of good standing dated as of a recent date for each Subsidiary
of the Company, each of the Partners and Consolidated from the Secretary
of State or other comparable officer of the State of its respective
incorporation; and (iii) a short-form certificate of good standing dated
as of a recent date for the Company, each Subsidiary of the Company, each
of the Partners and Consolidated from the Secretary of State or other
comparable officer of each other jurisdiction in which the Company, such
Subsidiary, such Partner or Consolidated, respectively, is qualified to do
business as a foreign corporation or partnership;
(d) a copy of the Partnership Agreement (including, without
limitation, all amendments, modifications, supplements and extensions
thereto), certified as being true, correct, complete and up-to-date by the
Secretary of the Manager on behalf of the Company and by the Secretary of
Coca-Cola Ventures;
(e) a copy of any by-laws and other organizational documents of
the Company, certified as being true, correct, complete and up-to-date by
the Secretary of the Manager on behalf of the Company;
(f) a copy of the certificate of incorporation of each Subsidiary
of the Company, each of the Partners and Consolidated, certified as of a
recent date by the Secretary of State of the jurisdiction in which the
relevant Subsidiary, Partner or Consolidated, as the case may be, is
organized;
(g) a copy of the by-laws and any other organizational documents
of each of the Partners and of Consolidated, certified by the Secretary of
such Partner or Consolidated, as the case may be;
-26-
(h) a copy, certified by the Secretary of the Manager on behalf
of the Company, of the resolutions of the Executive Committee of the
Company and of all other action taken by the Company to authorize the
execution, delivery and performance by the Company of this Agreement and
the Notes and the Management Agreement, the borrowing of the full amount
of the Commitments, the performance of each of the Company's obligations
hereunder and thereunder, and the consummation of each of the other
transactions contemplated by this Agreement and by the Management
Agreement;
(i) a copy, certified by the Secretary of each of the Partners,
of the resolutions of the board of directors of each of the Partners and
of all other corporate action taken by such Partner to authorize the
execution, delivery and performance of this Agreement and the Notes, the
borrowing by the Company of the full amount of the Commitments hereunder,
the performance by such Partner of each of the obligations of the Company
hereunder and thereunder, and the consummation of each of the other
transactions contemplated by this Agreement, and to the extent necessary,
copies of any shareholder action taken in respect of the foregoing, which
certificate shall include authentication by the President or another
senior executive officer of the relevant Partner of the signature and
office of the Secretary who signed such certificate;
(j) a copy, certified by the Secretary of Consolidated, of the
resolutions of the board of directors of Consolidated and of all other
corporate action taken by Consolidated to authorize the execution,
delivery and performance of the Management Agreement, the performance by
Consolidated of each of its obligations thereunder, and the consummation
of each of the other transactions contemplated thereby, and to the extent
necessary, copies of any shareholder action taken in respect of the
foregoing, together with such authentication of the signature of the
officer or officers that executed the Management Agreement on behalf of
Consolidated in form and substance satisfactory to the Agent;
(k) a certificate of incumbency executed by the Secretary of the
Company setting forth the name, title and specimen signature of each
officer of the Company: (1) who has signed this Agreement on behalf of the
Company, (2) who will sign the Notes on behalf of the Company, or (3) who
will, until replaced by another officer or representative duly authorized
for that purpose, act as the representative of the Company for the
purposes of signing documents and giving notices and other communications
by the Company in connection with this Agreement and the transactions
contemplated hereby, which certificate shall include authentication by the
President of the Company of the signature and office of the Secretary who
signed such certificate;
(1) evidence of the acceptance by the process agent referred to
in Section 11.11 hereof of its appointment as such;
(m) the certificates referred to in Section 6.02 hereof;
-27-
(n) an opinion of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to
the Company and Coca-Cola Ventures, substantially in the form of Exhibit
B-1 hereto, and as to such other matters related to this Agreement as the
Agent or any Bank may reasonably request;
(o) an opinion of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to
Consolidated, substantially in the form of Exhibit B-2 hereto, and as to
such other matters related to the Management Agreement as the Agent or any
Bank may reasonably request;
(p) copies, certified by the Secretary of the Manager on behalf
of the Company, of each of the Management Agreement, the sample master
bottle contract referred to in Section 7.17 hereof and the Letter of
Authorization (including, without limitation, all amendments thereto to
and including the borrowing date);
(q) evidence of the payment of the fees described in Section 2.03
hereof;
(r) evidence that the Company has delivered to S&P a letter of
authorization (as amended and in effect and as supplemented and replaced
from time to time, the "Letter of Authorization") providing for (i) S&P to
-----------------------
provide a Corporate Credit Rating for the Company that applies to the
Loans under this Agreement, and (ii) S&P to be authorized throughout the
life of this Agreement to report the Corporate Credit Rating of the
Company to the Agent (for itself and the Banks) and to notify the Agent
(for itself and the Banks) of any decline or other change in such
Corporate Credit Rating; and evidence that pursuant to such Letter of
Authorization, S&P shall have assigned a Corporate Credit Rating to the
Company that applies to the Loans under this Agreement of not less than
BB+;
(s) Evidence that all commitments under the Existing Credit
Agreement have been terminated and that all principal of and interest on
all loans outstanding under the Existing Credit Agreement and any other
amounts that may be or become due and payable thereunder have been or,
simultaneously with the making of the Loans hereunder are being,
irrevocably paid in full, together with such broken funding payments and
other costs as may be provided for in the Existing Credit Agreement (such
evidence to include, without limitation, (1) a copy of a written notice to
the agent under the Existing Credit Agreement terminating the commitments
thereunder and giving notice of repayment or prepayment of all loans
outstanding thereunder, and (2) a written statement from said agent to the
Agent setting forth the principal amount of all loans outstanding under
the Existing Credit Agreement, the full amount of interest, fees and all
other amounts that are required to repay the Existing Credit Agreement in
full, and stating that upon receipt of such payment the Existing Credit
Agreement will be terminated); and
(t) such other certificates, opinions and other documents as the
Agent or any Bank may reasonably request.
-28-
Except as otherwise expressly stated in this Section 6.01, each of
the foregoing documents shall be dated the date of the borrowing of the Loans.
6.02 Further Conditions Precedent to the Borrowing. The obligation
---------------------------------------------
of the Banks to make the Loans to the Company upon the occasion of the borrowing
hereunder is subject to the further condition precedent that, as of the date of
the Loans to be made as part of such borrowing, and both before and after giving
effect thereto: (a) no Default shall have occurred and be continuing; and (b)
the representations and warranties made by the Company in this Agreement and by
the Company, each Partner and Consolidated in each certificate or other document
delivered in connection with this Agreement, shall be true and correct in all
material respects on and as of the date of the making of such Loans, with the
same force and effect as if made on and as of such date and a Senior Financial
Officer on behalf of the Company and the chief financial officer of Coca-Cola
Ventures shall have furnished to the Agent and the Banks a certificate with
respect to compliance with clauses (a) and (b) above.
Section 7. Representations and Warranties. The Company represents
------------------------------
and warrants to the Agent and each Bank that:
7.01 Existence. The Company is a general partnership duly
---------
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Subsidiary of the Company is a corporation duly organized and
incorporated, validly existing and in good standing under the laws of its
jurisdiction of organization. Each of the Partners and Consolidated is a
corporation duly organized and incorporated, validly existing and in good
standing under the laws of the State of Delaware. Each of the Company and each
of its Subsidiaries and each of the Partners: (a) has all requisite partnership
or corporate power, as the case may be, and has all governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being conducted; and (b) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary. Without limiting the generality of the preceding
sentence, Carolina is qualified to do business as a foreign corporation in the
States of Georgia, North Carolina, South Carolina and Virginia, Coca-Cola
Ventures is qualified to do business as a foreign corporation in the States of
Georgia, North Carolina, South Carolina and Virginia, and the Subsidiary of the
Company is qualified to do business in the States of North Carolina and
Virginia.
7.02 Financial Condition. (a) The audited consolidated balance
-------------------
sheet of the Company and its consolidated Subsidiaries as at December 31, 1995
and the related consolidated statements of operations, cash flows and changes in
partners' equity of the Company and its consolidated Subsidiaries for the fiscal
year ended on said date, with the opinion thereon of Price Waterhouse LLP, and
the unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at March 31, 1996 and the related consolidated statements of
operations, cash flows and changes in partners' equity of the Company and its
consolidated Subsidiaries for the three-month period ended on such date,
heretofore furnished to the Agent and each Bank, are complete and correct and
fairly present the consolidated financial condition of the Company and its
consolidated Subsidiaries as at said dates and the consolidated results of their
operations for the fiscal year and three-month period, respectively, ended on
said dates, in
-29-
accordance with GAAP consistently applied (subject, in the case of such
financial statements as at March 31, 1996, to normal year-end adjustments) all
in conformity with GAAP applied on a consistent basis, except that the footnotes
to such financial statements omitted reference to the Amended and Restated
Guaranty Agreement referred to in item #4 of Schedule 7.19 hereto (which
omission will be corrected in future financial statements). As at such dates,
neither the Company nor any of its Subsidiaries had any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets as at said dates
and except as are not required by GAAP to be disclosed on the financial
statements referred to herein. Since December 31, 1995, there has been no
material adverse change in the business, properties, operations, condition
(financial or otherwise) or prospects of the Company and its consolidated
Subsidiaries or of either of the Partners from that set forth in said financial
statements as at said date.
(b) The audited consolidated balance sheet of Consolidated and
its consolidated Subsidiaries as at December 31, 1995 and the related
consolidated statements of operations, cash flows and changes in shareholders'
equity of Consolidated and its consolidated Subsidiaries for the fiscal year
ended on said date, with the opinion thereon of Price Waterhouse LLP, and the
unaudited consolidated balance sheet of Consolidated and its consolidated
Subsidiaries as at March 31, 1996 and the related consolidated statements of
operations, cash flows and changes in shareholders' equity of Consolidated and
its consolidated Subsidiaries for the three-month period ended on such date,
heretofore furnished to the Agent and each Bank, are complete and correct and
fairly present the consolidated financial condition of Consolidated and its
consolidated Subsidiaries as at said dates and the consolidated results of their
operations for the fiscal year and three-month period, respectively, ended on
said dates (subject, in the case of such financial statements as at March 31,
1996, to normal year-end adjustments) all in conformity with GAAP applied on a
consistent basis. As at such dates, neither Consolidated nor any of its
Subsidiaries had any material contingent liabilities, liabilities for taxes,
unusual forward or long-terms commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or provided
for in said balance sheets as at said dates and except as are not required by
GAAP to be disclosed on the financial statements referred to herein. Since
December 31, 1995, there has been no material adverse change in the business,
properties, operations, condition (financial or otherwise) or prospects of
Consolidated and its consolidated Subsidiaries from that set forth in said
financial statements as at said date.
The representations and warranties in this Section 7.02 (other than
the last sentence of each of clauses (a) and (b)) shall be deemed to be
automatically repeated on the last day of each quarter of each fiscal year of
the Company, with respect to the financial statements of the Company and
Consolidated, as the case may be, for the fiscal year then most recently ended
and for the one-, two- or three-fiscal quarter period, as the case may be, then
ended.
7.03 Litigation. There are no legal or arbitral proceedings or any
----------
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the best knowledge of the Company) threatened by or against the
Company or any of its Subsidiaries or
-30-
either of the Partners which, individually or in the aggregate, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of this
---------
Agreement or the Notes, the borrowing of the Loans, the consummation of the
other transactions herein or therein contemplated and compliance with the terms
and provisions hereof and thereof will conflict with or result in a breach of,
or require any consent under, (i) the Partnership Agreement or other
organizational documents of the Company or either of its Partners, (ii) any
applicable law, rule or regulation, or any order, writ, injunction or decree of
any court or governmental authority or agency, or (iii) any agreement or other
instrument to which the Company or any of its Subsidiaries or either of the
Partners is a party or by which its respective assets, revenues or other
properties may be bound, or constitute a default under any such agreement or
instrument, or result in the creation or imposition of any Lien upon any of the
assets, revenues or other properties of the Company or any of its Subsidiaries
or either of the Partners pursuant to the terms of any such agreement or
instrument.
7.05 Partnership and Corporate Action. Each of the Company and the
--------------------------------
Partners has all necessary power and authority to execute, deliver and perform
its obligations under this Agreement and the Notes and to borrow the full amount
of the Commitments; and the execution, delivery and performance by the Company
of this Agreement and the Notes and the borrowing of the full amount of the
Commitments have been duly authorized by all necessary partnership or corporate
action, as the case may be, on the part of the Company and each of the Partners
and, to the extent necessary, all shareholder action on the part of the
shareholders of the Partners. This Agreement has been duly and validly executed
and delivered by the Company and constitutes, and the Notes when executed and
delivered for value will constitute, the legal, valid and binding obligation of
the Company and each of the Partners, enforceable against the Company and each
of the Partners in accordance with their respective terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or consents of or
---------
licenses from, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary for the execution, delivery or
performance by the Company or either of the Partners of this Agreement or the
Notes or for the validity or enforceability thereof, or for the borrowing of the
Loans.
7.07 Use of Proceeds. Neither the Company nor any of its
---------------
Subsidiaries nor either of the Partners is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying margin stock
(within the meaning of Regulation G, U or X of the Board of Governors of the
Federal Reserve System) and no part of the proceeds of the Loans hereunder will
be used to buy or carry any margin stock. Without prejudice to the foregoing, a
portion of the proceeds of the borrowing of the Loans equal to at least
$190,000,000 will be used solely to refinance the
-31-
loans outstanding under the Existing Credit Agreement and to pay all accrued
interest, fees and other amounts in connection therewith, and any remaining
proceeds of the Loans will be used solely to refinance loans outstanding from
Consolidated, and all such proceeds in any event will be used for working
capital and other general corporate purposes of the Company.
7.08 ERISA. The Company has no employees (all Persons working at
-----
the Company being employed by Consolidated as Manager). Each of the Company,
Consolidated and the ERISA Affiliates have fulfilled all obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan, is in
compliance in all substantial respects with all applicable provisions of ERISA
and the Code, and has not incurred any liability to the PBGC in excess of
$25,000, except for premiums due, or in the case of any Plan except for claims
for benefits or requirements for contributions, in either case made in
accordance with the terms of such Plan. Neither the Company nor Consolidated nor
any of the ERISA Affiliates is party to any Multiemployer Plan. There are no
disputes relating to ERISA or employee benefits or relations to which the
Company, Consolidated or any of the ERISA Affiliates is a party and which, even
if adversely determined, would subject the Company to any liability. Each Plan
qualifies under Section 401 of the Internal Revenue Code. With respect to each
Plan, there is: (i) no accumulated funding deficiency (within the meaning of
ERISA and the Internal Revenue Code) with respect to any Plan under Title IV of
ERISA; (ii) no termination of any Plan or trust which could result in any
material liability to the PBGC; (iii) no "reportable event" (as that term is
defined in ERISA) which could reasonably be expected to constitute grounds for
termination of any Plan or trust by the PBGC; and (iv) no "prohibited
transaction" (as that term is defined in Section 406 of ERISA and Section 4975
of the Internal Revenue Code) which could result in any liability to the
Company. The Company does not have any liabilities with respect to welfare plans
of any member of the ERISA Group and has no liabilities for post-retirement
welfare benefits of any Person.
7.09 Taxes. United States Federal income tax returns of the
-----
Company and the Subsidiaries and Coca-Cola Ventures have been filed for all
fiscal years of the Company ended on or prior to January 1, 1995. None of those
tax returns is under examination or otherwise is the subject of any audit or
other proceedings. The Company and its Subsidiaries and Coca-Cola Ventures have
filed all United States Federal income tax returns, all applicable state income
tax returns and all other material tax returns which are required to be filed by
each of them and have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Company or any such Subsidiary or Coca-Cola
Ventures. The charges, accruals and reserves on the books of the Company and its
Subsidiaries and Coca-Cola Ventures, respectively, in respect of taxes and other
governmental charges are, in the opinion of the Company and its independent
auditors, adequate.
7.10 Ownership. (a) 29.67% of the shares of the Common Stock of
---------
Consolidated issued and outstanding as of the date hereof are owned and
controlled, both beneficially and of record and free and clear of all Liens,
directly by Coca-Cola. All such shares of Common Stock have been legally and
validly issued and are fully paid and non-assessable. Except as disclosed in
Schedule 7.10 hereto, there are no outstanding options, warrants, rights,
agreements, contracts, calls, commitments or demands of any character obligating
or entitling
-32-
either Consolidated or Coca-Cola to sell, issue, redeem or repurchase any
Capital Stock of Consolidated.
(b) 100% of the shares of the Common Stock of Carolina issued and
outstanding as of the date hereof are owned and controlled, both beneficially
and of record and free and clear of all Liens, by Coca-Cola indirectly through
one or more wholly-owned Subsidiaries. All such shares of Common Stock have been
legally and validly issued and are fully paid and non-assessable. There are no
outstanding options, warrants, rights, agreements, contracts, calls, commitments
or demands of any character obligating or entitling either Coca-Cola or Carolina
to sell, issue, redeem or repurchase any Capital Stock of Carolina.
(c) 100% of the shares of the Common Stock of Coca-Cola Ventures
issued and outstanding as of the date hereof are owned and controlled, both
beneficially and of record and free and clear of all Liens, by Consolidated
indirectly through one or more wholly-owned Subsidiaries. All such shares of
Common Stock have been legally and validly issued and are fully paid and
non-assessable. There are no outstanding options, warrants, rights, agreements,
contracts, calls, commitments or demands of any character obligating or
entitling either Consolidated or Coca-Cola Ventures to sell, issue, redeem or
repurchase any Capital Stock of Coca-Cola Ventures.
(d) 50% of the Voting Interests in the Company are directly owned
and controlled by Carolina, and 50% of such Voting Interests are directly owned
and controlled by Coca-Cola Ventures, in each case both beneficially and of
record and free and clear of all Liens. There are no outstanding options,
warrants, rights, agreements, contracts, calls, commitments or demands of any
character obligating or entitling either Partner or the Company to sell, issue,
redeem or repurchase any Voting Interests of the Company.
7.11 Ranking. The obligations of the Company under this Agreement
-------
and the Notes rank and will rank at least pari passu in right of payment and of
---- -----
security and in all other respects with all other unsubordinated Indebtedness
and other obligations of the Company and, each of the Partners, except that any
Indebtedness of the Company, secured to the extent permitted by Section 8.06
hereof, may, solely with respect to the collateral securing such Indebtedness,
rank senior in right of security to the obligations of the Company under this
Agreement and the Notes with respect to the collateral securing such
Indebtedness.
7.12 Investment Company Act. Neither of the Partners nor the
----------------------
Company nor any of their respective Subsidiaries is, nor is any of them
"controlled by", an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, nor is any of them subject to regulation under
said Act.
7.13 Public Utility Holding Company Act. Neither the Company nor
----------------------------------
either of the Partners nor any of their respective Subsidiaries is a "holding
company" nor is any of them a "subsidiary company" of a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended, nor
is any of them a public utility under any applicable state law.
-33-
7.14 Compliance with Laws. Each of the Company and each of its
--------------------
Subsidiaries and each of the Partners is in compliance with all applicable laws,
ordinances and regulations, including, without limitation, all Environmental
Laws and Health Laws, except to the extent that the failure to comply with any
such laws, ordinances and regulations, individually or in the aggregate, could
not have a Material Adverse Effect or impose any liability whatsoever on the
Agent, any of the Co-Agents or any of the Lenders.
7.15 Ownership of Property; Licenses. Each of the Company and each
-------------------------------
of its Subsidiaries and each of the Partners has good record and marketable
title to, or a valid leasehold interest in, all of its respective properties as
shown on the financial statements referred to in Section 7.02 hereof and owns or
is licensed to use all relevant copyrights, patents, trademarks, tradenames,
technical information, technology, know-how, and all other intellectual
property, licenses, franchises and processes necessary for the normal operation
and business of the Company or such Subsidiary or such Partner, in each case
without any known conflict with the rights of any other Person. All such assets,
revenues and other properties (including, without limitation, all such
intellectual property, licenses, franchises and processes, and the partnership
interests in the Company) are free and clear of Liens except for Liens permitted
by Section 8.06 hereof.
7.16 Nature of Business. The Company and its Subsidiaries are
------------------
engaged solely in the business of bottling, canning, marketing and distribution
of soft drinks, primarily products of Coca-Cola and other beverages and
activities directly related thereto. Not less than 80% of the annual revenues of
the Company and its consolidated Subsidiaries are derived from the bottling,
canning, marketing and distribution of products of Coca-Cola.
7.17 Master Bottling Agreement. The Company is party to master
-------------------------
bottle contracts with Coca-Cola that cover all territories in which the Company
sells or distributes Coca-Cola products (collectively, as amended and in effect
from time to time, the "Master Bottling Agreement"). A true, correct, complete
-------------------------
and up-to-date copy of a sample of one such master bottle contract has been
delivered to the Agent, and all master bottle contracts with Coca-Cola are in
substantially the same form as such sample. The Master Bottling Agreement is in
full force and effect and the Company and each of its Subsidiaries are in
substantial compliance with the terms and conditions applicable to them
contained therein.
7.18 Management Agreement. The Company is party to the Management
--------------------
Agreement with Consolidated, and has delivered to the Agent and each Bank a
true, correct, complete and up-to-date copy thereof. The Management Agreement is
in full force and effect and the Company and each of its Subsidiaries are in
substantial compliance with all of the terms and conditions applicable to them
contained therein. The Manager is duly authorized to take all actions under or
in connection with this Agreement on behalf of the Company.
7.19 Debt Instruments. The agreements identified in Schedule 7.19
----------------
are all of the agreements, bonds, debentures, notes and other instruments
evidencing Indebtedness of the Company or any of its Subsidiaries. Each of the
Company and each of its Subsidiaries is in full
-34-
compliance with the terms and conditions applicable to them contained in each
such agreement, bond, debenture, note or other instrument.
7.20 Subsidiaries. The Company has no Subsidiaries other than CCBC
------------
of Wilmington, Inc., a Delaware corporation.
7.21 Partners. Each of the Partners is a special purpose
--------
corporation, owning no assets other than the partnership interests in the
Company, engaging in no business other than the ownership of such partnership
interests, and having no liabilities other than its obligations under the
Partnership Agreement and its joint and several liability by operation of law
for the Indebtedness and other obligations of the Company.
7.22 Solvency. Neither the Company nor either of the Partners is
--------
entering into the arrangements contemplated hereby, or intends to make any
transfer or incur any obligations hereunder, with actual intent to hinder, delay
or defraud either present or future creditors. On the date of the making of the
Loans, on a pro forma basis after giving effect to such Loans:
--- -----
(i) no judgments against the Company or either of the Partners
arising out of any pending or threatened litigation will be rendered at a
time when, or in an amount such that, the Company or such Partner, as the
case may be will be unable to satisfy such judgments promptly in
accordance with their terms (taking into account the maximum reasonable
amount of such judgments in any such actions and the earliest reasonable
time at which such judgments might be rendered);
(ii) the cash available to the Company and each of the Partners,
as the case may be, after taking into account all other anticipated uses
of the cash of the Company, is anticipated to be sufficient to pay all
such judgments promptly in accordance with their terms;
(iii) the sum of the present realizable value of the assets of the
Company will exceed the probable liability of the Company on its debts,
and the sum of the present realizable value of the assets of each of the
Partners will exceed the probable liability of such Partner on its debts;
(iv) neither the Company nor either of the Partners intends to, or
believe that it will, incur debts beyond its ability to pay such debts as
such debts mature (taking into account the timing and amounts of cash to
be received by the Company from any source, and of amounts to be payable
on or in respect of debts of the Company and the amounts referred to in
clause (i));
(v) the cash available to the Company, after taking into account
all other anticipated uses of the cash of the Company, is anticipated to
be sufficient to pay all such amounts on or in respect of debts of the
Company, when such amounts are required to be paid, and the cash available
to each of the Partners, after taking into account all other anticipated
uses of the cash of such Partner, is anticipated to be sufficient to pay
all such
-35-
amounts on or in respect of debts of such Partner, when such amounts are
required to be paid; and
(vi) the Company will have sufficient capital with which to
conduct its present and proposed business and the property of the Company
does not constitute unreasonably small capital with which to conduct its
present or proposed business, and each of the Partners will have
sufficient capital with which to conduct its present and proposed business
and the property of such Partner does not constitute unreasonably small
capital with which to conduct its present or proposed business.
For purposes of this Section 7.22 "debt" means any liability on a claim, and
"claim" means (y) right of payment whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (z) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
7.23 Environmental Matters. (a) The Company and each of its
---------------------
Subsidiaries and each of the Partners comply, and each of the properties and
operations of each of them complies, in all material respects with all
applicable Environmental Laws and Health Laws;
(b) The Company has obtained or made timely application for all
Environmental Licenses which, to the best of the Company's knowledge, are
necessary for the operation of the Company and each of its Subsidiaries and each
of its Partners of its respective business and properties. All such
Environmental Licenses previously obtained are in full force and effect or
timely application for renewal thereof is pending, and no action to revoke the
same is pending and the period to appeal such Environmental Licenses has
expired, and each of the Company and each of its Subsidiaries and each of the
Partners is in compliance with all terms and conditions of each such
Environmental License;
(c) With respect to property currently or formerly owned or
operated by it, none of the Company or its Subsidiaries or the Partners is
subject to any outstanding written notice or order from, or agreement with, any
Governmental Authority or other Person in respect to which the Company or any of
its Subsidiaries or either of the Partners (i) is required to take any Remedial
Action or (ii) would be reasonably likely to incur any Environmental Liabilities
arising from any Release or threatened Release;
(d) Neither the Company nor any of its Subsidiaries nor either of
the Partners has received written notification pursuant to Environmental Laws or
Health Laws that any of its current or past operations, or any by-product
thereof, is related to or subject to any investigation by any Governmental
Authority evaluating whether any Remedial Action is needed to respond to a
Release or threatened Release; and
-36-
(e) Neither the Company nor any of its Subsidiaries nor either of
the Partners has filed any notice under any applicable Environmental Law or
Health Law reporting a Release which is reasonably possible to lead to any
Governmental Authority or any other Person having to take Remedial Action or
having to incur Environmental Liabilities.
(f) Neither the Company nor any of its Subsidiaries nor either of
the Partners is subject to any suit, action or proceeding by or before any
court, arbitrator or administrative authority alleging violations by any of them
of any Environmental Law or Health Law or seeking to impose on any of them any
Environmental Liability.
7.24 No Default. No Default or Event of Default has occurred and
----------
is continuing.
7.25 Disclosure. All written information furnished by or on behalf
----------
of the Company or any of its Subsidiaries or either of the Partners or
Consolidated to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is true and accurate in all
material respects. No such information contained, contains or will contain any
material misstatement of fact or omitted, omits or will omit to state any
material fact necessary to make the statements therein not misleading in light
of the circumstances existing at the time.
Section 8. Covenants of the Company. The Company agrees that, so
------------------------
long as any Commitment is in effect and until payment in full of the Loans
hereunder, all interest thereon and all other amounts payable by the Company
hereunder and under the Notes:
8.01 Information. The Company shall deliver directly to each Bank
-----------
and also to the Agent:
(a) as soon as available and in any event within 60 days after
the end of each of the first three fiscal quarterly periods of each fiscal
year of the Company, (i) unaudited consolidated statements of operations,
cash flows and changes in partners' equity of the Company and its
consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet as at the end of such period, setting
forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a Senior Financial Officer on behalf of the Company, which
certificate shall state that said financial statements fairly present the
consolidated financial condition and results of operations of the Company
and its consolidated Subsidiaries in accordance with GAAP consistently
applied (except for changes to which the Company's auditors have agreed),
as at the end of, and for, such period (subject to normal year-end audit
adjustments), and (ii) unaudited consolidated statements of operations,
cash flows and changes in shareholders' equity of Consolidated and its
consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet as at the end of such period, setting
forth in each case in comparative form the
-37-
corresponding figures for the corresponding period in the preceding fiscal
year, accompanied by an certificate of the chief financial officer of
Consolidated, which certificate shall state that said financial statements
fairly present the consolidated financial condition and results of
operations of Consolidated and its consolidated Subsidiaries in accordance
with GAAP consistently applied (except for changes to which the auditors
of Consolidated have agreed), as at the end of, and for, such period
(subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, (i) audited consolidated
statements of operations, cash flows and changes in partners' equity of
the Company and its consolidated Subsidiaries for such year and the
related consolidated balance sheet as at the end of such year, setting
forth in each case in comparative form the corresponding figures for the
preceding fiscal year, and accompanied by an opinion thereon of Price
Waterhouse LLP or other comparable independent public accountants of
recognized national standing, which opinion shall state that said
financial statements fairly present the consolidated financial condition
and results of operations of the Company and its consolidated Subsidiaries
as at the end of, and for, such fiscal year, in accordance with GAAP
consistently applied, and a certificate of such accountants stating that,
in making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default and (ii) audited
consolidated statements of operations, cash flows and changes in
shareholders' equity of Consolidated and its consolidated Subsidiaries for
such year and the related consolidated balance sheet as at the end of such
year, setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, and accompanied by an opinion
thereon of Price Waterhouse LLP or other comparable independent public
accountants of recognized national standing, which opinion shall state
that said financial statements fairly present the consolidated financial
condition and results of operations of Consolidated and its consolidated
Subsidiaries as at the end of, and for, such fiscal year in accordance
with GAAP consistently applied;
(c) at the time the Company furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, a certificate of a
Senior Financial Officer on behalf of the Company to the effect that,
during the most recent fiscal quarter reported on such financial
statement, no Default has occurred and is continuing (or, if any Default
has occurred and is continuing, describing the same in reasonable detail)
and a certification as to the Corporate Credit Rating of the Company in
effect at the end of the period covered by such financial statements and
at the time of such certificate;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which
Consolidated shall have filed with the SEC (or any governmental agency
substituted therefor) or any national securities exchange, and copies of
all press releases material to the operations or financial condition of
the Company or Consolidated issued by the Company or any of its
Subsidiaries or by Consolidated;
-38-
(e) not later than 60 days prior to the last day of each fiscal
year of the Company, a copy of the Company's annual business plan (annual
operating budget);
(f) promptly (and in any event not later than 3 Business Days)
after the occurrence of any Default, a notice of such Default stating that
it is a "Notice of Default", and describing the same in reasonable detail
and the actions which the Company is taking and proposes to take with
respect to such Default;
(g) promptly (and in any event no later than 3 Business Days)
after the occurrence of any decline or other change in the Corporate
Credit Rating (including, without limitation, any withdrawal or
elimination thereof), notice of such decline or other change;
(h) promptly (and in any event no later than 3 Business Days)
after the occurrence thereof, notice of all other events or matters which
the Company would be required to report to the SEC on a Form 8-K if the
Company were a reporting company under the Exchange Act;
(i) promptly after the filing thereof by Consolidated or any of
the other ERISA Affiliates with the Internal Revenue Service, a copy of
each annual report (form 5500 or any successor form) required to be filed
with the Internal Revenue Service with respect to each Employee Benefit
Plan that has been established by or contributed to or is maintained by
the Company, Consolidated or any other ERISA Affiliate, together with the
audited annual report of such Plan and ERISA footnotes;
(j) as soon as possible, and in any event within ten days after
the Company or the Manager knows or has reason to know that any of the
events or conditions specified below with respect to any Plan has occurred
or exists, a statement signed by a Senior Financial Officer on behalf of
the Company setting forth details respecting such event or condition and
the action, if any, which the Company, Consolidated or any other ERISA
Affiliate proposes to take with respect thereto (and a copy of any report
or notice given by, or required to be filed with or given to PBGC, the
Internal Revenue Service or the United States Department of Labor by the
Company, Consolidated or any other ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, with respect to a Plan;
(ii) the filing under ERISA of a notice of intent to terminate any
Plan or the termination of any Plan;
(iii) the institution by PBGC or any other Person of proceedings
for the termination of any Plan, or the appointment of a trustee to
administer any Plan;
-39-
(iv) the complete or partial withdrawal by the Company,
Consolidated or any other ERISA Affiliate under ERISA from a Plan;
and
(v) the failure of the Company, Consolidated or any other ERISA
Affiliate to make a required contribution to any Plan if such
failure, individually or in the aggregate, could reasonably be
expected to give rise to a Lien under ERISA;
(vi) any action by the Company, Consolidated or any other ERISA
Affiliate which, individually or in the aggregate, could reasonably
be expected to result in the imposition of a Lien or require the
Company or any of its Subsidiaries to furnish a bond or security in
connection with any Plan;
(viii) the incurrence of any "accumulated funding deficiency" (as
such term is defined in Section 302 of ERISA), whether or not
waived; and
(ix) any event that, individually or in the aggregate, could
reasonably be expected to result in a material liability (contingent
or otherwise) under ERISA or the Internal Revenue Code (as it
relates to ERISA);
(k) promptly upon the creation or acquisition of any Subsidiary, a
notice of such creation, identifying such Subsidiary, the jurisdiction of
its incorporation, its address and nature of its business, and a pro forma
--- -----
balance sheet showing its assets and liabilities as at such time;
(1) promptly, and in any event within 10 days after the Company
becomes aware thereof, notice of all court or arbitral proceedings, audits
and other investigations before any governmental or regulatory authority,
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting the Company or any of its Subsidiaries (whether as
plaintiff, defendant, appellant, appellee or otherwise), except
proceedings or investigations which, if adversely determined, could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(m) promptly, and in any event within 10 days after the Company
becomes aware thereof, notice of any change in the beneficial or record
ownership or control of any of the Voting Interests or Equity Interests of
the Company or of any Subsidiary in the chain of ownership between
Coca-Cola or Consolidated (as the case may be) and the Company;
(n) immediately upon becoming aware thereof, notice of any actual or
proposed amendment or supplement to or waiver of or termination of any
provision of the Partnership Agreement, the Management Agreement, the
Master Bottling Agreement or the Letter of Authorization; and
(o) from time to time such other information regarding the business,
properties, operations, condition (financial or otherwise) or prospects of
the Company or
-40-
any of its Subsidiaries or any of the Partners as the Agent or any of the
Banks may reasonably request.
8.02 Existence, Etc. The Company shall, and shall cause each of
---------------
its Subsidiaries to:
(a) preserve and maintain its existence as a partnership and all
of its rights, licenses, privileges and franchises; provided, that, in
--------
accordance with the provisions of the Partnership Agreement, and without
changing the material terms and conditions thereof, the Partners may form
or cause to be formed a corporation under the laws of a state of the
United States of America and contribute thereto, in exchange for Capital
Stock of such corporation, their respective partnership interests in the
Company in the same proportions as the partnership interests for which
capital stock will be issued (the corporate conversion described in this
Section 8.02(a) being called the "Permitted Corporate Conversion"), but
------------------------------
only if (1) no Default has occurred and is continuing and the
representations and warranties of the Company in this Agreement and in
each other certificate or other document delivered pursuant to this
Agreement are true and correct both before and immediately after the
consummation of the Permitted Corporate Conversion, (2) the resulting
corporation shall have assumed in writing satisfactory to the Agent and
each Bank all of the obligations and duties of the Company under this
Agreement and the Notes and any related documents, (3) the Company shall
have furnished to the Agent and the Banks satisfactory evidence of the
corporate existence, good standing, corporate power and authority of the
new corporate borrower and of its due execution and delivery of all
relevant documents, together with such incumbency and signature
certificates and legal opinions as the Agent or any Bank may reasonably
request, (4) the Management Agreement, the Master Bottling Agreement and
the Letter of Authorization shall remain in full force and effect with
respect to the new corporate borrower, and a senior officer, respectively,
of Consolidated, Coca-Cola and S&P shall have so certified to the Agent
and the Banks, (5) the Company, the Agent and the Banks shall have entered
into an amendment to this Agreement and the Notes containing such
technical changes as may be required to reflect the new name, corporate
status and share ownership of the new corporate borrower; and (6) each of
the Partners shall have executed and delivered to the Agent and the Banks
an unconditional, irrevocable guarantee of all of the obligations of the
new corporate borrower under this Agreement and the Note, each in form and
substance satisfactory to the Agent and each Bank, together with such
evidence of the corporate existence, good standing, corporate power and
authority of such Partner as guarantor and of its due execution and
delivery of such guarantee and any other relevant documents, together with
such incumbency and signature certificates and legal opinions as the Agent
or any Bank may reasonably request in connection with such guarantee;
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities
(including, without limitation, all Environmental Laws and all Health
Laws), except to the extent that the failure to comply with therewith,
individually or in the aggregate, could not reasonably be expected to have
-41-
a Material Adverse Effect or impose any liability on the Agent, any of the
Co-Agents or any Bank;
(c) pay and discharge when due all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits
or on any of its property, sales or revenues, except for any such tax,
assessment, charge or levy the payment of which is being contested in good
faith and by proper proceedings and against which adequate reserves are
being maintained and in connection with which execution of any Lien has
been stayed and an adverse decision in which proceedings, individually or
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect;
(d) maintain all of its properties used or useful in its business
in good repair, working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to do so, individually or
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; maintain title to and ownership of, or a valid license to,
all copyrights, patents, trademarks, tradenames, technical information,
technology, know-how, and all other intellectual property, licenses,
franchises and processes necessary for the normal operation and business
of the Company or such Subsidiary (other than intellectual property,
licenses, franchises and processes the failure of which to be owned by or
licensed to the Company, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect), in each case
without any conflict, with the rights of any other Person;
(e) maintain proper books of record and account in accordance
with sound business practices and applicable law reflecting all of their
respective dealings, transactions and other business affairs in accordance
with GAAP, and, at the Company's expense, permit representatives of the
Agent and each Bank, during normal business hours, to examine and make
extracts from its books and records, to inspect its properties, and to
discuss its business and affairs with its officers and officers of the
Manager and with its independent public accountants, all to the extent
reasonably requested by the Agent or such Bank with reasonable notice;
(f) keep insured by reputable insurers all property of a
character usually insured by Corporations engaged in the same or similar
business against loss or damage of the kinds and in the amounts
customarily insured against by such Corporations and carry such other
insurance as is usually carried by such Corporations (including, without
limitation, general liability and products liability insurance); and
(g) comply in all material respects with all leases of real and
personal property necessary in the operation of the business of the
Company or any of its Subsidiaries.
8.03 Use of Proceeds. The Company shall use a portion of the
---------------
proceeds of the Loans equal to at least $190,000,000 solely to refinance the
loans outstanding under the Existing Credit Agreement and to pay all accrued
interest, fees and other amounts in connection therewith, and shall use any
remaining proceeds of the Loans solely to refinance loans
-42-
outstanding from Consolidated, and in any event shall use all such proceeds for
the Company's working capital and other general corporate purposes; and in any
event shall use all proceeds of the Loans solely in compliance with Regulations
G, T, U and X and all other applicable laws, rules and regulations. The Company
shall not use the proceeds of any of the Loans to purchase, acquire or carry any
margin stock (within the meaning of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System).
8.04 Mergers and Consolidations. The Company will not, and will
--------------------------
not permit any of its Subsidiaries to, consolidate with or merge into any other
Person or convey or transfer all or substantially all of its assets, revenues
and other properties as an entirety to any Person, whether in a single
transaction or in a series of related transactions, except for (a) the Permitted
Corporate Conversion and (b) a merger of the Company with another Person
organized under the laws of a state of the United States of America so long as
the Company is the entity that survives such merger and, both before and
immediately after the consummation of such merger, the Company is in compliance
with all terms, conditions and covenants in this Agreement and no Default has
occurred and is continuing.
8.05 Restrictions on Indebtedness. The Company will not, and will
----------------------------
not permit any Subsidiary to, create, incur, issue, assume, suffer to exist or
Guarantee any Indebtedness (including, without limitation, Indebtedness owed to
Consolidated or its Affiliates), whether or not evidenced by negotiable
instruments or securities, or any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed, except for:
(a) trade indebtedness incurred by the Company in the ordinary
course of the Company's business on ordinary trade terms and not past due;
(b) the Loans under this Agreement,
(c) unsecured Guarantees by the Company of Indebtedness of
Container Supply Cooperatives, provided that the aggregate principal
amount of all Indebtedness Guaranteed thereby does not exceed $10,000,000
at any time outstanding;
(d) unsecured interest rate swaps and other similar interest rate
hedging arrangements entered into by the Company with one or more Banks or
other creditworthy counterparties, which swaps or other arrangements
protect the Company against interest rate fluctuations in specific
liabilities that appear on the balance sheet of the Company in accordance
with GAAP, and which are not entered into for speculative purposes;
(e) unsecured letters of credit backing obligations of the
Company or any of its Subsidiaries in respect of workmen's compensation,
unemployment insurance and other similar obligations (not constituting
Indebtedness) arising in the ordinary course of the Company's or such
Subsidiary's business; provided, that the aggregate stated amount of all
such letters of credit outstanding at any time, together with all
unreimbursed drawings thereunder at such time, shall not exceed
$5,000,000; and
-43-
(f) additional Indebtedness of the Company in an aggregate
principal amount up to but not exceeding $20,000,000 at any time
outstanding;
provided, that (1) no Subsidiary of the Company shall create, incur, assume,
--------
issue, suffer to exist or Guarantee any Indebtedness, except for Indebtedness
owed to the Company and (2) in no event may the Company or any Subsidiary sell,
factor or otherwise make any Disposition of receivables, leases, notes or other
accounts, with or without recourse.
8.06 Limitation on Liens. The Company will not, and will not
-------------------
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien with respect to any of its assets, revenues or other properties, whether
now owned or hereafter acquired, other than:
(i) Liens existing on the date of this Agreement and listed in
Schedule 8.06 hereto;
(ii) easements, rights-of-way, minor defects or irregularities in
title and other similar encumbrances on real property having no material
effect on the use or value of such real property or on the conduct of the
business of the Company or any of its Subsidiaries and not securing
Indebtedness;
(iii) unexercised Liens for taxes not delinquent or being contested
in good faith by appropriate proceedings and for which reserves adequate
under GAAP are being maintained;
(iv) mechanics', suppliers', materialmen's and similar Liens
arising in the ordinary course of business (and not securing Indebtedness)
which are being contested by the Company or its applicable Subsidiary, as
the case may be, in good faith by appropriate action and in connection
with which adequate reserves are being maintained and so long as execution
of such Liens has been stayed;
(v) deposits to secure workmen's compensation, unemployment
insurance and other similar items to the extent required by applicable law
and not securing Indebtedness;
(vi) (a) purchase money liens on any property acquired by the
Company after the date hereof for use in the ordinary course of business
of the Company solely to secure the purchase price of such property or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition of such property, so long as (1) such Lien extends to no other
assets, revenues or other properties and secures no other Indebtedness and
(2) such Indebtedness is in a principal amount not in excess of the
purchase price of the relevant property so acquired, and (b) Liens
existing on property at the time of its acquisition by the Company or any
Subsidiary of the Company and not created in anticipation of such
acquisition; provided, that the aggregate principal amount of all
--------
Indebtedness secured as permitted by this clause (vi) shall not exceed
$10,000,000 at any time outstanding; and
-44-
(vii) other Liens, in addition to the Liens permitted under clauses
(i), (ii), (iii), (iv), (v) and (vi) of this Section 8.06, securing
Indebtedness in an aggregate principal amount not exceeding $5,000,000 at
any time outstanding.
It is understood that any Lien permitted under this Section 8.06 shall, if it
secures Indebtedness, be permitted only to the extent that such Indebtedness is
permitted to be incurred under Section 8.05 hereof.
8.07 Ranking. The Company will ensure that at all times its
-------
obligations under this Agreement and the Notes continue to rank at least pari
----
passu in right of payment and security and in all other respects with all other
-----
Indebtedness and other obligations of the Company and each of the Partners,
except that any Indebtedness of the Company, secured to the extent permitted by
Section 8.06 hereof may, solely with respect to the collateral securing such
Indebtedness, rank senior in right of security to the obligations of the Company
under this Agreement and the Notes.
8.08 Business. The Company will not, and will not permit any of
--------
its Subsidiaries to, engage in any business other than that described in Section
7.16 hereof and the Company shall, and shall cause each of its Subsidiaries to,
maintain in full force and effect the Master Bottling Agreement covering all
territories in which the Company distributes Coca-Cola products.
8.09 Dispositions of Assets. The Company will not, and will not
----------------------
permit any of its Subsidiaries to, make any Disposition of any of its assets,
revenues or other properties, whether in one or in a series of transactions,
other than:
(a) sales of inventory in the ordinary course of business;
(b) sales for cash of obsolete, worn-out or surplus equipment, no
longer used or useful in the Company's business, all in the ordinary
course of the Company's business;
(c) sales of equipment to the extent that (1) such equipment is
exchanged for credit against the purchase price of similar replacement
equipment of at least equal usefulness to the Company or any Subsidiary,
or (2) substantially simultaneously with such sale, the proceeds of such
sale are applied to the purchase of replacement equipment of at least
equal usefulness to the Company or any Subsidiary;
(d) the sale or other transfer of assets by the Company to any of
its wholly-owned Subsidiaries or by a Subsidiary of the Company to another
wholly-owned Subsidiary of the Company not in the ordinary course of
business; provided, that prior to such sale or transfer the transferee
--------
Subsidiary shall have executed and delivered to the Agent and the Banks a
guarantee, in form and substance satisfactory to the Agent and each of the
Banks, pursuant to which such Subsidiary guarantees the payment when due
of each of the obligations of the Company under this Agreement and the
Notes, together with such corporate documents, authorizing resolutions,
incumbency certificates, opinions of
-45-
counsel and other certificates and documents that the Agent or any Bank
may reasonably request; and provided, further, that, after giving effect
-------- -------
to such transfer, the consolidated total assets of all Subsidiaries of the
Company shall not exceed 20% of the consolidated total assets of the
Company and its consolidated Subsidiaries at such time;
(e) the sale, whether or not in the ordinary course of business,
of other assets of the Company or any of its Subsidiaries having an
aggregate fair market value, calculated for each asset at the time of sale
of each thereof, of not more than $5,000,000 during the term in which this
Agreement is in effect (from the date hereof until the date on which all
Loans and other obligations hereunder and under the Notes have been paid
in full) in each case so long as such sale is an arm's-length transaction
for fair market value; and
(f) the sale for cash of assets of the Company or any of its
Subsidiaries not otherwise permitted by the foregoing clauses (a) through
(e) of this Section 8.09; provided that, simultaneously with such sale the
--------
Company shall prepay the Loans in an aggregate principal amount at least
equal to the proceeds of such sale (net of reasonable .costs and taxes
incurred by the Company or such Subsidiary in connection with such sale)
in accordance with Section 3.03(b) hereof, together with interest accrued
on the principal so prepaid and all other amounts in connection therewith.
Notwithstanding the foregoing, in no event may the Company or any of its
Subsidiaries sell, factor or otherwise make any Disposition of receivables,
leases, notes or other accounts, with or without recourse.
8.10 Transactions with Affiliates. The Company will not, and will
----------------------------
not permit any of its Subsidiaries to, directly or indirectly, pay any funds to
or for the account of, make any investment in or loan to, lease, sell, transfer
or otherwise dispose of any assets, tangible or intangible, to, or participate
in, or effect any other transaction with, any of its Affiliates, except on fair
and reasonable terms that are no less favorable to the Company or such
Subsidiary than those that would obtain in an arm's length transaction with a
Person not an Affiliate of the Company.
8.11 Basic Documents. The Company will maintain in full force and
---------------
effect, and comply in all material respects with, each of the Management
Agreement, the Partnership Agreement, the Master Bottling Agreement and the
Letter of the Authorization, and will not permit any such agreement to be
amended, modified, supplemented, replaced, assigned or terminated in any way
that could adversely affect the interests of the Agent or any Bank.
8.12 Restricted Payments. The Company shall not declare or make
-------------------
any Restricted Payment at any time when a Default has occurred and is continuing
or would occur immediately after the declaration or making of such Restricted
Payment, except for payments of management fees and expenses pursuant to
Sections 5.01 and 5.02 of the Management Agreement incurred by Consolidated for
value received in the ordinary course of managing the Company's business.
-46-
8.13 Limitation on Certain Clauses. The Company will not, and will
-----------------------------
not permit any of its Subsidiaries to, enter into any agreement with any Person
(a) that prohibits or limits the ability of the Company or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien in favor of
the Agent or the Lenders, or (b) that prohibits or limits the ability of any of
the Subsidiaries of the Company to declare or pay any Restricted Payments to the
Company.
8.14 Environmental Matters. The Company will, and will cause each
---------------------
of its Subsidiaries to, and will use its best efforts to cause all Occupying
Persons (in connection with such Occupying Persons' operations on property owned
or leased by the Company or any of its Subsidiaries) to:
(a) comply, and ensure compliance of all properties owned, leased
or operated by the Company or its Subsidiaries to comply, in all material
respects with all Environmental Laws and Health Laws and Environmental
Licenses now or hereafter applicable thereto;
(b) obtain, at or prior to the time required by applicable
Environmental Laws and Health Laws, all Environmental Licenses for the
operations of the Company and its Subsidiaries, and the construction,
operations and maintenance of all facilities and other properties of the
Company and its Subsidiaries, and maintain such Environmental Licenses in
full force and effect;
(c) not generate, use, treat, recycle, store, Release or dispose
of, or permit the generation, use, treatment, recycling, storage, Release
or disposal of Hazardous Materials at any of the facilities or other
properties of the Company or any of its Subsidiaries (whether owned or
leased), or transport or permit the transportation of Hazardous Materials
to or from such facilities or properties, other than in compliance with
all applicable Environmental Laws and Health Laws;
(d) undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials Released at, on,
in, under, adjoining or emanating from the any facilities or other
properties (whether owned, leased or operated) of the Company or any of
its Subsidiaries, in accordance with all applicable Environmental Laws and
Health Laws; and
(e) provide the Banks (through the Agent) with written notice of
(i) any fact, circumstance, condition, occurrence or release at, on, in,
under, adjoining or emanating from any of the facilities or other
properties (whether owned, leased or operated) of the Company or any of
its Subsidiaries that results in non-compliance with any Environmental
Law, Health Law or Environmental License or that has resulted or may
result in personal injury or property damage or in any Lien on any asset,
revenue or other property of the Company or any of its Subsidiaries or any
Partner, such notice to be given promptly after the condition is
discovered or such Release or occurrence takes place, and (ii) any pending
or threatened Environmental Claim against the Company or any of its
Subsidiaries or any Occupying Person (whether owned, leased or operated)
of the
-47-
Company or of any of its Subsidiaries, such notice to be given promptly
after the Company becomes aware that such Environmental Claim is commenced
or threatened. All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, incident, or occurrence and
the Company's response thereto.
8.15 Furnish Information to S&P. The Company will from time to
--------------------------
time furnish to S&P, as and when required by S&P, all information regarding the
Company, its Subsidiaries, the Partners and Consolidated and their respective
business, operations, properties, condition (financial or otherwise) or
prospects necessary for the issuance and maintenance by S&P of a Corporate
Credit Rating that applies to the Loans under this Agreement. The Company will
maintain the Letter of Authorization in full force and effect, and will not
amend, modify, waive or terminate the Letter of Authorization or any provision
thereof. Immediately upon any request therefor by the Agent or any Bank, the
Company will deliver to S&P written authorization and instructions to report the
Corporate Credit Rating of the Company and any changes therein and any other
information in connection therewith to the Agent.
8.16 No Change in Fiscal Year. The Company will not change its
------------------------
fiscal year from that which is in effect on the date hereof.
8.17 ERISA. The Company will not, and will not permit any of its
-----
Subsidiaries or any of the other ERISA Affiliates to, become party to or make
contributions to any Multiemployer Plan.
8.18 Manager. The Company will at all times maintain Consolidated
-------
as the Manager of the Company.
Section 9. Events of Default. If one or more of the following
-----------------
events (herein called "Events of Default") shall occur and be continuing
-----------------
unremedied:
(a) The Company shall fail to pay any principal of the Loans or
Notes when due; or the Company shall fail to pay any interest or any other
amount payable by it under this Agreement or under the Notes and such
failure shall not be fully remedied within five Business Days after the
date when due; or
(b) The Company or any Partner or any Subsidiary of any thereof
shall fail to pay when due any principal of or interest on any bond,
debenture, note or other Indebtedness (other than under this Agreement)
having an aggregate principal amount of $2,000,000 (or its equivalent in
other currencies) or more and such failure shall continue unremedied after
the expiry of any grace period under the agreement or instrument
evidencing or relating to such Indebtedness; or any default specified in
any bond, debenture, note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the effect
of such event is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause, such Indebtedness to become due prior to its stated maturity; or
any
-48-
Indebtedness of the Company or any of the Partners or any of their
respective Subsidiaries is declared to be or otherwise becomes due prior
to its stated maturity; or
(c) Any representation or warranty made or deemed made herein by
the Company, or by any officer of the Company or the Manager or by any
other Person in any certificate or other document furnished to the Agent
or any Bank pursuant to any of the provisions hereof, shall have been
inaccurate, incorrect, false, incomplete or misleading in any material
respect as of the time made, deemed made or furnished; or
(d) The Company shall default in the performance of any of its
obligations under Section 8.01(f), 8.01(g), 8.01(1), 8.02(a), 8.03, 8.04,
8.05, 8.06, 8.07, 8.09, 8.11 or 8.12, hereof; or the Company shall default
in the performance of any of its other obligations in this Agreement and
such default shall continue unremedied for a period of 30 days after the
occurrence of such default; or
(e) The Company, any Partner, Consolidated, or any Subsidiary of
any of the foregoing shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under any relevant bankruptcy code or similar law (as now
or hereafter in effect), (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under any relevant
bankruptcy code or similar law (as now or hereafter in effect), or (vi)
admit in writing its inability to pay its debts generally as they become
due, or (vii) take any corporate or partnership action for the purpose of
effecting any of the foregoing; or
(f) A proceeding or case shall be commenced, without the
application or consent of the Company, any Partner, Consolidated, or any
Subsidiary of any of the foregoing in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Company, such
Partner, Consolidated or such Subsidiary, as the case may be, or of all or
any substantial part of its assets, or (iii) similar relief in respect of
the Company, such Partner, Consolidated or such Subsidiary, as the case
may be, under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 60 days; or an order for relief against the
Company, any Partner, Consolidated or any Subsidiary of any of the
foregoing shall be entered in an involuntary case under any relevant
bankruptcy code or similar law (as now or hereafter in effect); or
-49-
(g) A final judgment or judgments for the payment of money in
excess of $2,000,000 in the aggregate shall be rendered by a court or
courts against the Company and/or any Subsidiary and/or any Partner, and
the same shall not be appealed from and a stay of execution thereof
pending appeal shall not be procured, within 30 days from the date of
entry thereof; or
(h) Coca-Cola shall fail to directly own, both beneficially and
of record and free and clear of all Liens, at least 20% of the Common
Stock of Consolidated and such failure shall continue unremedied for a
period of 90 days after the date on which such failure occurred; or
(i) Coca-Cola shall fail to own and control, both beneficially
and of record and free and clear of all Liens, either directly or through
one or more wholly-owned Subsidiaries, 100% of the Common Stock of
Carolina; or Consolidated shall fail to own and control, both beneficially
and of record and free and clear of all Liens, either directly or through
one or more wholly-owned Subsidiaries, 100% of the Common Stock of
Coca-Cola Ventures; or
(j) Carolina and Coca-Cola Ventures shall fail to directly own
and control, both beneficially and of record and free and clear of all
Liens, at least 40% and 50%, respectively, of the outstanding Voting Power
of the Company and at least 40% and 50%, respectively, of the outstanding
Equity Interests of the Company; or
(k) Consolidated shall, for any reason whatsoever, no longer be
the Manager of the Company;
(1) the Company or any of its ERISA Affiliates shall fail to pay
when due any amount or amounts which it shall have become liable to pay
under ERISA or under the Internal Revenue Code as it relates to ERISA; or
any notice of intent to terminate one or more Plans having unfunded
accrued pension liabilities shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Plan having unfunded accrued pension
liabilities; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Plan must be
terminated; in the case of any or all of the foregoing matters, if the
aggregate amount of the payment(s) so due, or of the unfunded accrued
pension liabilities so incurred, or of the liabilities imposed, or the
current payment obligation so incurred, collectively shall exceed
$2,000,000 in the aggregate; or
(m) any of the Partners, Consolidated, Coca-Cola or any of their
respective Affiliates shall Guarantee, secure or otherwise provide for the
payment of any other Indebtedness of the Company without equally and
ratably Guaranteeing, securing or
-50-
otherwise providing for the payment of the obligations of the Company
under this Agreement and the Notes; or
(n) any event shall occur that could result in the termination of
the Company or the Partnership Agreement, or the Executive Committee shall
take any action in anticipation of such termination (except for the
Permitted Corporate Conversion); or
(o) the Company's Corporate Credit Rating by S&P shall be below
BB+ or S&P shall have no Corporate Credit Rating for the Company that
applies to the Loans under this Agreement; or
(p) there shall occur any amendment or modification of,
supplement to, or waiver or termination of, any provision of the
Partnership Agreement, the Management Agreement, the Master Bottling
Agreement or the Letter of Authorization which, in each case, the Required
Banks determine to have a material adverse effect on the interests of the
Banks; or
(q) there shall occur any default by any of the Partners or by
Consolidated or any of their respective Affiliates, as the case may be,
under the Partnership Agreement, the Master Bottling Agreement or the
Management Agreement, or any of those agreements or the Letter of
Authorization shall not be in full force and effect;
THEREUPON: (1) in the case of an Event of Default other than one referred
to in clause (e) or (f) of this Section 9, the Agent may, and upon
instructions from the Required Banks shall, by written notice to the
Company, cancel the Commitments and/or declare the principal amount then
outstanding of and the accrued interest on the Loans and the Notes and all
other amounts payable by the Company hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of
any kind (other than the notice expressly provided for above in this
subclause (1)), all of which are hereby expressly waived by the Company;
and (2) in the case of an Event of Default referred to in clause (e) or
(f) of this Section 9, the Commitments shall be automatically canceled and
the principal amount then outstanding of, and the accrued interest on, the
Loans and the Notes and all other amounts payable by the Company hereunder
and under the Notes shall become automatically immediately due and payable
without presentment, demand, protest or other formalities of any kind, all
of which are hereby expressly waived by the Company.
Section 10. The Agent.
---------
10.01 Appointment, Powers and Immunities. Each Bank hereby
----------------------------------
irrevocably appoints and authorizes the Agent to act as its agent hereunder with
such powers as are specifically delegated to the Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.05 and the
first sentence of Section 10.06 hereof shall include reference to its affiliates
and its own and its affiliates' officers, directors, employees and agents) and
the Co-Agents: (a) shall
-51-
have no duties or responsibilities except those expressly set forth in this
Agreement, and shall not by reason of this Agreement be a trustee or other
fiduciary for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, any
Note or any other document referred to or provided for herein or therein or for
any failure by the Company or any other Person to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
document or instrument referred to or provided for herein or in connection
herewith, except for its own gross negligence or willful misconduct. The Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. The Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent.
10.02 Reliance by Agent. The Agent shall be entitled to rely upon
-----------------
any certification, notice or other communication (including any thereof by
telephone, telex, telegram, facsimile or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
10.03 Defaults. The Agent shall not be deemed to have knowledge of
--------
the occurrence of a Default (other than the nonpayment of principal of or
interest on the Loans) unless the Agent has received notice from a Bank or the
Company specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the occurrence
of a Default, the Agent shall give prompt notice thereof to the Banks (and shall
give each Bank prompt notice of each such nonpayment). The Agent shall (subject
to Section 10.07 hereof) take such action with respect to such Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Banks.
10.04 Rights as a Bank. (a) With respect to the Commitment, Loans
----------------
and Notes held by it, LTCB (and any, successor acting as Agent), in its capacity
as a Bank hereunder, shall have the same rights and powers hereunder as any,
other Bank and may exercise the same as though it (or its affiliates) were not
acting as the Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. LTCB (and any
successor acting as Agent) and its affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to and generally engage
in any kind of banking, trust or
-52-
other business with the Company (and any of its affiliates) as if it (or its
affiliate) were not acting as the Agent, and LTCB and its affiliates may accept
fees and other consideration from the Company for services in connection with
this Agreement or otherwise without having to account for the same to the Banks.
(b) With respect to the Commitment, Loans and Notes held by it,
each of the Co-Agents, in its capacity as a Bank hereunder, shall have the same
rights and powers hereunder as any, other Bank and may exercise the same as
though it (or its affiliates) were not acting as a Co-Agent, and the term "Bank"
or "Banks" shall, unless the context otherwise indicates, include each of the
Co-Agents in its individual capacity. Each of the Co-Agents and its affiliates
may (without having to account therefor to any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Company (and any of its affiliates) as if it (or its affiliate) were
not acting as a Co-Agent hereunder, and each Co-Agent and its affiliates may
accept fees and other consideration from the Company for services in connection
with this Agreement or otherwise without having to account for the same to the
Banks.
10.05 Indemnification. The Banks agree to indemnify the Agent and
---------------
each of the Co-Agents (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Company under said Section 11.03),
ratably in accordance with the aggregate principal amount of the Loans held by
the Banks (or, if no Loans are at the time outstanding, ratably in accordance
with their respective Commitments, or, if no Loans or Commitments are then
outstanding, ratably in accordance with the principal amount of the Loans held
by each of them immediately prior to the payment thereof in full), for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Agent or any Co-Agent in
any way relating to or arising out of this Agreement or any other documents
contemplated by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the Company is
obligated to pay under Section 11.03 hereof) or the enforcement of any of the
terms hereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Agent, Co-Agents and other Banks. Each Bank
------------------------------------------------
agrees that it has, independently and without reliance on the Agent, any of the
Co-Agents or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of the Company and its
Affiliates and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent, any of the Co-Agents or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. Neither the Agent nor any of
the Co-Agents shall be required to keep itself informed as to the performance or
observance by the Company of this Agreement or any other document referred to or
provided for herein or to inspect the properties or books of the Company or any
of its Affiliates. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder, neither the Agent nor
-53-
any of the Co-Agents shall have any duty or responsibility to provide any Bank
with any credit or other information concerning the affairs, financial condition
or business of the Company or any of its Affiliates which may come into the
possession of the Agent or any of the Co-Agents or any of their respective
affiliates.
10.07 Failure to Act. Except for action expressly required of the
--------------
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall be indemnified to its satisfaction by
the Banks against any and all liabilities and expenses which may be incurred by
it by reason of taking or continuing to take any such action.
10.08 Resignation or Removal of Agent. Subject to the appointment
-------------------------------
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Banks and the Company and the Agent may
be removed at any time with or without cause by the Required Banks. Upon any
such resignation or removal, the Required Banks shall have the right, with the
consent of the Company (which consent shall not be unreasonably withheld, but in
any event shall not be required at any time when a Default has occurred and is
continuing), to appoint a successor Agent. If no successor Agent shall have been
so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or the
Required Banks' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a bank which has
an office in New York, New York and which has a combined capital and surplus of
at least $100,000,000. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section 10 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
10.09 Agent's Office. The Agent acts initially through the New York
--------------
office of LTCB Trust Company, but may hereafter change the office at which it
performs its functions as Agent to any other office of itself or any of its
affiliates (including, without limitation, to any office of LTCB) by giving
prompt subsequent notice to the Company and the Banks.
10.10 Co-Agents. None of the Co-Agents, in their respective
---------
capacities as such, shall have any duties, liabilities or other obligations
under this Agreement or any of the Notes.
Section 11 Miscellaneous.
-------------
11.01 Waiver. No failure on the part of the Agent or any Bank to
------
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or the Notes shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or the Notes preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
-54-
11.02 Notices. All notices and other communications provided for
-------
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement or the Notes) shall be given or made by telex,
telecopy, telegraph, cable or in writing and telexed, telecopied, telegraphed,
cabled, mailed or delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a notice to
the other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by telex
or telecopier, delivered to the telegraph or cable office or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid; provided that any such communication which is not
--------
received during normal business hours of the recipient shall be deemed to be
duly given at the opening of business on its next business day. Except as
otherwise provided in this Agreement, all notices and other communications by or
to the Company shall be given by or to (as the case may be) the Manager on
behalf of the Company.
11.03 Expenses. Whether or not any Loan is made hereunder, the
--------
Company agrees, promptly upon request by the Agent or any Bank therefor from
time to time, to pay or reimburse the Agent and each Bank for paying:
(a) all reasonable out-of-pocket costs and expenses of the
Agent (including, without limitation, the reasonable fees and
expenses of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New York counsel to the Agent,
and of all other outside counsels to the Agent and the Banks) in
connection with the preparation, execution and delivery of this
Agreement and the Notes and the making of the Loans hereunder and
the consummation of the transactions contemplated hereby and
thereby, and any costs or expenses of the Agent in connection with
the syndication of this Agreement (whether before or after the date
of the initial borrowing hereunder);
(b) all reasonable out-of-pocket costs and expenses of the
Agent and each Bank in connection with (i) any amendment,
modification or waiver of any of the terms of this Agreement or the
Notes, or (ii) the enforcement of or exercise or preservation of any
rights of the Agent or such Bank under this Agreement or the Notes
(including, without limitation, the reasonable fees and expenses of
all outside counsels to the Agent or such Bank and all court costs);
(c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue
authority in any jurisdiction in respect of this Agreement or the
Notes or any other document referred to herein; and
(d) all normal administrative costs and expenses of the
Agent incident to the performance of its agency duties hereunder.
The Company hereby further agrees to indemnify the Agent and each Bank and its
respective directors, officers, employees, counsels and agents from, and hold
each of them harmless
-55-
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to any actual or proposed use by the Company or any of its
Affiliates of the proceeds of the Loans or any Environmental Claim or any claim
arising out of (i) any violation or alleged violation of any Environmental Law,
Health Law or Environmental License, (ii) the presence, handling, use,
transportation or disposal, or allegation thereof, of Hazardous Materials, (iii)
the imposition of Environmental Liabilities on the Company or any of its
Subsidiaries, in each case including, without limitation, the reasonable fees
and expenses of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred solely by reason of the gross negligence or
willful misconduct of the Person to be indemnified).
11.04 Amendments. Any provision of this Agreement may be modified,
----------
amended or waived, but only in writing signed by the Company and the Required
Banks; provided, that any modification, amendment or waiver that would (a)
extend the date fixed for the payment of principal of or interest on any of the
Loans or any other amounts payable hereunder or under the Notes, (b) reduce any
payment of principal of or interest on any of the Loans or any other amounts
payable hereunder or under the Notes, (c) reduce the rate at which interest is
payable hereunder or under the Notes, (d) increase the amount of any Bank's
Commitment, or (e) change this Section 11.04 or the definition of "Required
Banks" in Section 1.01 hereof or otherwise change the number of parties hereto
whose approval or consent is necessary for any modification, amendment or waiver
of any of the terms of, or any other action under, this Agreement or the Notes,
shall be in writing signed by the Company, the Agent and all of the Banks. The
Agent or any Bank may grant or withhold its consent to any requested
modification, amendment or waiver at its sole discretion, and provided, further,
-------- -------
that any modification, amendment or waiver that would affect the rights, duties
or liabilities of the Agent shall require the prior written consent of the
Agent.
11.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.06 Assignments and Participations.
------------------------------
(a) The Company may not assign its rights or obligations
hereunder or under the Notes without the prior written consent of the Agent and
all of the Banks.
(b) Any Bank may assign to any bank or other financial
institution all or any portion of its Commitment, Loans or Notes with the prior
written consent of the Company and the Agent (which consent in either case shall
not be unreasonably withheld or delayed), except that no such consent shall be
required for an assignment to another Bank or to an affiliate of any Bank or to
any Federal Reserve Bank; provided, that any assignment of less than the full
--------
Commitment, Loans or Notes held by a Bank shall be in an aggregate principal
amount of not less than $10,000,000, except that no such requirement shall apply
to an assignment to another Bank or to an affiliate of any Bank or to any
Federal Reserve Bank. Any such assignment shall
-56-
be effected pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit C hereto (each an "Assignment and Assumption Agreement").
-----------------------------------
Prior and as a condition precedent to the effectiveness of any such assignment
(including, without limitation, an assignment by a Bank to its own affiliate,
but excluding an assignment to another Bank or to any Federal Reserve Bank), the
Agent shall have received for its own account a non-refundable recordation fee
of $3,000. Each assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment), the obligations, rights and benefits of
a "Bank" hereunder holding the Commitment and Loans (or portions thereof)
assigned to it.
By entering into an Assignment and Assumption Agreement, the
assignor shall be deemed to have represented and warranted to the assignee
thereunder that: (1) such assignor has full power and authority, and has taken
all action necessary, to execute and deliver such Assignment and Assumption
Agreement and any other documents contemplated thereby, to fulfill its
obligations thereunder and to fully consummate the transactions contemplated
thereby, and that no governmental or other consents are necessary in connection
with the foregoing, (2) such Assignment and Assumption Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms and that it is not in breach of any of its obligations under this
Agreement, (3) such assignor owns, and is assigning, the Loans that are the
subject of such Assignment and Assumption Agreement free and clear or all
adverse claims. Such assignor shall not be deemed to have made any other
representation or warranty with respect to any statements, warranties or
representations made in or in connection with this Agreement, the Notes or any
other documents contemplated hereby or the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any thereof and shall not
be deemed to have made any representation or warranty as to the financial
condition of the Company or any of its Subsidiaries or any of the Partners or
Consolidated or the performance or observance by the Company or any of the
Partners or Consolidated of any of their respective obligations under this
Agreement, the Notes or any other document.
By entering into such Assignment and Assumption Agreement the
assignee shall be deemed to have represented, warranted, acknowledged and
affirmed to the assignor thereunder that: (i) it has full power and authority,
and has taken all action necessary, to execute and deliver such Assignment and
Assumption Agreement and any other documents contemplated thereby, to fulfill
its obligations thereunder and to consummate the transactions contemplated
thereby, and that no governmental or other consents are necessary in connection
with the foregoing, (ii) that such Assignment and Assumption Agreement
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms, (iii) it has received copies of this Agreement, the
Note held by the assignor, the financial statements most recently delivered by
the Company pursuant to this Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision with
respect to its participation in the transactions contemplated hereby, (iv) it
will continue to make its own credit and other decisions with respect to taking
or not taking any action under this Agreement independent of and without
reliance upon the Agent, the Co-Agents, such assignor or
-57-
any other Bank and based on such documents and information as it shall deem
appropriate at the time.
(c) Any Bank may sell to one or more other banks or financial
institutions a participation in all or any part of its Commitment, Loans and
Notes. Such Bank shall remain responsible for its performance under this
Agreement, shall remain the holder of its Note for all purposes under this
Agreement, and the Agent and the Company shall continue to deal solely and
directly with such Bank, in connection with such Bank's rights and obligations
under this Agreement. Such Bank shall be entitled to collect on behalf of its
participant and pass through to such participant payment of all costs, expenses,
indemnities and other amounts provided by Sections 5.01, 5.04, 5.05 and 11.03
hereof calculated as if such participant were a "Bank" hereunder and a direct
lender to the Company, provided that no participant shall be entitled to receive
--------
any greater payment pursuant to Section 5.01 or 5.05 hereof than the Bank
selling such participant's participation would have been entitled to receive
with respect to the rights subject to the relevant participation. The
participant also shall have all rights under Section 8.01 hereof as if such
participant were a "Bank" holding a "Loan" to the Company. The participant's
rights against the Bank selling such participant's participation in respect of
such participation shall be those set forth in the agreement (the "Participation
-------------
Agreement") executed by such Bank in favor of such participant. In no event
---------
shall a Bank grant a participation that conveys to the participant the right to
vote under this Agreement, except that a Bank may agree in the Participation
Agreement that it will not, without the consent of the participant, agree to (i)
the extension of any date fixed for the payment of principal of or interest on
the Loans or under the Notes held by such Bank, (ii) the reduction of any
payment of principal of the Loans or the Notes held by such Bank, or (iii) the
reduction of the rate at which interest is payable thereon to a level below the
rate at which the participant is entitled to receive interest or fee (as the
case may be) in respect of such participation.
(d) Any Bank may furnish any information concerning the Company
or any of its Subsidiaries or Partners or Consolidated, or any of their
respective Affiliates, in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants).
(e) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 11.06, any Bank may assign or
pledge all or any portion of its Loans and its Notes to any Federal Reserve
Bank, as collateral security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System or any operating circular issued by such Federal
Reserve Bank or otherwise.
11.07 Survival. Without limiting the survival of any other
--------
provisions of this Agreement or the Notes, the obligations of the Company under
Sections 5.01, 5.04, 5.05 and 11.03 hereof and of the Banks under Section 10.05
hereof shall survive the repayment of the Loans and the termination of the
Commitments.
-58-
11.08 Captions. Captions and section headings appearing herein are
--------
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
-------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11.11 JURISDICTION AND SERVICE OF PROCESS. (A) ANY SUIT, ACTION OR
-----------------------------------
PROCEEDING AGAINST THE COMPANY WITH RESPECT TO THIS AGREEMENT, THE LOANS
OR THE NOTES OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF MAY
BE BROUGHT IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW
YORK, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, OR IN ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF NORTH
CAROLINA OR IN THE STATE OF SOUTH CAROLINA (COLLECTIVELY, THE "SUBJECT
-------
COURTS"), AS THE AGENT OR ANY BANK MAY ELECT IN ITS SOLE DISCRETION AND
------
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF EACH OF THE SUBJECT COURTS FOR THE PURPOSE OF ANY SUCH SUIT, ACTION,
PROCEEDING OR JUDGMENT. THE COMPANY HEREBY AGREES THAT SERVICE OF ALL
WRITS, PROCESS AND SUMMONSES IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN THE STATE OF NEW YORK MAY BE MADE UPON CT CORPORATION SYSTEM
(THE "NEW YORK PROCESS AGENT"), CURRENTLY LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
----------------------
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. THE COMPANY HEREBY IRREVOCABLY APPOINTS THE NEW YORK
PROCESS AGENT AS ITS AGENT TO ACCEPT SERVICE OF ANY AND ALL SUCH WRITS,
PROCESS AND SUMMONSES, AND AGREES THAT THE FAILURE OF SUCH PROCESS AGENT
TO GIVE NOTICE OF ANY SUCH SERVICE TO THE COMPANY SHALL NOT IMPAIR OR
AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT BASED THEREON. THE
COMPANY HEREBY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN
ANY SUIT, ACTION OR PROCEEDING IN ANY OF THE SUBJECT COURTS BY THE MAILING
THEREOF BY THE AGENT OR ANY BANK BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE COMPANY ADDRESSED AS PROVIDED IN SECTION 11.02 HEREOF.
NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE
AGENT OR ANY BANK TO SERVE ANY WRITS, PROCESS
-59-
OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO BRING
PROCEEDINGS AGAINST THE COMPANY IN ANY COMPETENT COURT OF ANY OTHER
JURISDICTION OR JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE PERMITTED BY
APPLICABLE LAW.
(B) THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO TRIAL BY JURY
IN, AND ANY OBJECTION WHICH IT NOW OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF, ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR
ANY NOTE BROUGHT IN ANY OF THE SUBJECT COURTS, AND HEREBY FURTHER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY OF THE SUBJECT COURTS
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11.12 Severability. Any provision of this Agreement or the Notes
------------
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
11.13 Waiver of Stay or Extension Law. The Company covenants (to
-------------------------------
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Agreement or
the Notes; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Agent or any Bank,
-60-
but will suffer and permit the execution of every such power as though no such
law had been enacted.
The parties hereto have caused this Agreement to be duly executed as
of the day and year first above written.
PIEDMONT COCA-COLA BOTTLING PARTNERSHIP, a
Delaware general partnership,
By: COCA-COLA BOTTLING CO. CONSOLIDATED, a
Delaware corporation, being the Manager of the
Company, duly authorized for these purposes by
each of the general partners of the Company
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Title: VP & TREASURER
Address for Notices:
c/o Coca-Cola Bottling Co. Consolidated
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
and Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
-61-
LTCB TRUST COMPANY, as Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: SVP
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex No.: 425722 LTCB UI
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
--------------
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-62-
CREDIT LYONNAIS ATLANTA AGENCY,
as Co-Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CAYMAN
ISLANDS BRANCH, as Co-Agent
By /s/ ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇
-----------------------------------
Title: AVP
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: AVP
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY, as Co-Agent
By /s/ Shusai Nagai
-----------------------------------
Shusai Nagai
General Manager
-63-
$ 25,000,000 LTCB TRUST COMPANY, as lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Senior Vice President
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex No.: 425722 LTCB UI
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
--------------
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-64-
$ 17,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY, as lender
By /s/ Shusai Nagai
-----------------------------------
Shusai Nagai
Title: General Manager
Lending Office (LIBOR):
One Ninety One Peachtree Tower
- Suite 3600
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Lending Office (Base Rate):
One Ninety One Peachtree Tower
- Suite 3600
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
One Ninety One Peachtree Tower
- Suite 3600
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
For Credit Matters:
------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
For Operations Matter:
---------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
-65-
$ 17,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
Lending Office (LIBOR):
Cayman Islands Branch
c/o Deutsche Bank AG
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: FCP
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-66-
$ 17,000,000 DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CAYMAN
ISLANDS BRANCH, as lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Assistant Vice President
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
For Credit Matters:
------------------
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
For Operations Matters:
----------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/1550
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-67-
$ 17,000,000 CREDIT LYONNAIS ATLANTA AGENCY,
as lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Matters:
------------------
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. Edge
For Operations Matters:
----------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇▇
-68-
$ 12,500,000 THE SAKURA BANK, LIMITED, ATLANTA
AGENCY, as lender
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: V.P. and Senior Manager
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Matters:
------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Hutch ▇▇▇▇▇▇▇
For Operations Matters:
----------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
-69-
$ 12,500,000 THE TOKAI BANK, LIMITED, ATLANTA
AGENCY, as lender
By
-----------------------------------
Title: Deputy General Manage & SVP
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. .
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
-------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Matters:
------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
For Operations Matters:
----------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, U.S. Corporate
Loans Administrator
-70-
$ 12,000,000 CREDIT SUISSE, as lender
By /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇
Title: Member of Senior Management
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Associate
Lending Office (LIBOR):
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
For Credit Matters:
------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇
For Operations Matters:
----------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
--------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-71-
$ 11,500,000 THE FUJI BANK LIMITED, ATLANTA
AGENCY, as lender
By /s/ T. MITSUI
-----------------------------------
Toshiro Mitsui
Title: Vice President and Manager
Lending Office (LIBOR):
Marquis One Tower, Suite, 2100
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
Marquis One Tower, Suite 2100
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Marquis One Tower, Suite 2100
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Matters:
------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
For Operations Matters:
----------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
-72-
$ 11,500,000 SOCIETE GENERALE, as lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
Lending Office (LIBOR):
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
For Credit Matters:
------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
For Operations Matters:
----------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-73-
$ 11,500,000 WACHOVIA BANK OF NORTH CAROLINA,
N.A., as lender
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office (LIBOR):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
For Credit Matters:
------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
For Operations Matters:
----------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
-74-
$ 11,500,000 KREDIETBANK N.V., GRAND CAYMAN BRANCH,
as lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office (LIBOR):
Grand Cayman Branch
c/o New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
Grand Cayman Branch
c/o New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
For Credit Matters:
------------------
Atlanta Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
For Operations. Matters:
-----------------------
Grand Cayman Branch
c/o New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇/0658
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Loan Administration
-75-
$ 11,500,000 THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY, as lender
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Joint General Manager
Lending Office (LIBOR):
Atlanta Agency
Marquis Two Tower, Suite 2400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office (Base Rate):
Atlanta Agency
Marquis Two Tower, Suite 2400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Atlanta Agency
Marquis Two Tower, Suite 2400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
First Vice President
Second Contact:
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
-76-
$ 7,500,000 COMMERZBANK AG, ATLANTA AGENCY,
as lender
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Title: Senior Vice President
and Manager
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Assistant Vice President
Lending Office (LIBOR):
Promenade Two, Suite 3500
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Lending Office (Base Rate):
Promenade Two, Suite 3500
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Address for Notices:
For Credit Matters:
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Promenade Two, Suite 3500
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Attention: ▇▇▇▇ Kagere, Corporate Banking
For Operations Matters:
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Commerzbank AG New York Branch
2 World Financial Center
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