EXECUTION COPY
EXHIBIT 4.13
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COCA-COLA BOTTLING CO. CONSOLIDATED
as Borrower
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LOAN AGREEMENT
Dated as of November 20, 1995
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The financial institutions identified herein
as Banks
and
LTCB TRUST COMPANY
as Agent
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TABLE OF CONTENTS
Page
Section 1. Definitions and Accounting Matters............................................................1
1.01 Certain Defined Terms.........................................................................1
1.02 Certain Definitions Relating to Trigger Events...............................................10
1.03 Accounting Terms.............................................................................14
1.04 Compliance Certificates and Opinions.........................................................14
Section 2. Commitments and Loans................................................................................15
2.01 Commitments..................................................................................15
2.02 Borrowings...................................................................................15
2.03 Fees.........................................................................................16
2.04 Lending Offices..............................................................................16
2.05 Loan Accounts................................................................................16
2.06 Notes........................................................................................16
2.07 Several Obligations and Remedies.............................................................17
Section 3. Payments of Principal and Interest...........................................................17
3.01 Repayment of Loans...........................................................................17
3.02 Interest.....................................................................................17
3.03 Prepayments of the Loans.....................................................................18
3.04 Limitation on Interest.......................................................................19
Section 4. Payments and Computations....................................................................19
4.01 Payments.....................................................................................19
4.02 Computations.................................................................................20
4.04 Sharing of Payments..........................................................................20
Section 5. Yield Protection and Illegality..............................................................21
5.01 Additional Costs.............................................................................21
5.02 Changes in Circumstances.....................................................................22
5.03 Illegality...................................................................................23
5.04 Compensation.................................................................................23
5.05 Taxes........................................................................................24
5.06 Prepayments..................................................................................25
Section 6. Conditions Precedent.........................................................................25
6.01 Conditions Precedent to the Initial Borrowing................................................25
6.02 Each Borrowing...............................................................................26
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Page
Section 7. Representations and Warranties...............................................................26
7.01 Corporate Existence..........................................................................26
7.02 Financial Condition..........................................................................27
7.03 Litigation...................................................................................27
7.04 No Breach....................................................................................27
7.05 Corporate Action.............................................................................28
7.06 Approvals....................................................................................28
7.07 Use of Loans.................................................................................28
7.08 ERISA........................................................................................28
7.09 Taxes........................................................................................28
7.10 Ownership....................................................................................29
7.11 Ranking......................................................................................29
7.12 Investment Company Act.......................................................................29
7.13 Public Utility Holding Company Act...........................................................29
7.14 Compliance with Laws.........................................................................29
7.15 Voting Agreement.............................................................................29
7.16 Ownership of Property; Licenses. ...........................................................30
7.17 Nature of Business...........................................................................30
7.18 Bottle Contracts and Allied Bottle Contracts.................................................30
7.19 Debt Instruments.............................................................................30
Section 8. Covenants of the Company.....................................................................30
8.01 Financial Statements.........................................................................31
8.02 Corporate Existence, Etc.....................................................................32
8.03 Use of Proceeds..............................................................................33
8.04 Mergers and Consolidations...................................................................33
8.05 Restrictions on Debt.........................................................................34
8.06 Restrictions on Sales and Leasebacks.........................................................35
8.07 Ranking......................................................................................37
8.08 Business.....................................................................................37
8.09 New Revolving Credit Agreement...............................................................37
Section 9. Events of Default............................................................................37
Section 10. The Agent....................................................................................40
10.01 Appointment, Powers and Immunities...........................................................40
10.02 Reliance by Agent............................................................................41
10.03 Defaults.....................................................................................41
10.04 Rights as a Bank.............................................................................41
10.05 Indemnification..............................................................................41
10.06 Non-Reliance on Agent and other Banks........................................................42
10.07 Failure to Act...............................................................................42
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Page
10.08 Resignation or Removal of Agent..............................................................42
10.09 Agent's Office...............................................................................43
Section 11. Miscellaneous................................................................................43
11.01 Waiver.......................................................................................43
11.02 Notices......................................................................................43
11.03 Expenses.....................................................................................43
11.04 Amendments...................................................................................44
11.05 Successors and Assigns.......................................................................44
11.06 Assignments and Participations...............................................................44
11.07 Survival.....................................................................................45
11.08 Captions.....................................................................................46
11.09 Counterparts.................................................................................46
11.10 GOVERNING LAW................................................................................46
11.11 JURISDICTION AND SERVICE OF PROCESS..........................................................46
11.12 Severability.................................................................................47
11.13 Waiver of Stay or Extension Law..............................................................47
Schedule 1 Principal Subsidiaries
Schedule 2 Litigation
Schedule 3 Employee Disputes
Schedule 4 Ownership
Schedule 5 Bottle Contracts and Allied Bottle Contracts
Schedule 6 Debt Instruments
Exhibit A Form of Note
Exhibit B Form of Opinion of Company's Counsel
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LOAN AGREEMENT, dated as of November 20, 1995, among COCA-COLA
BOTTLING CO. CONSOLIDATED, a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company"); the financial
institutions named herein as lenders (the "Banks"); and LTCB TRUST COMPANY, a
trust company organized under the laws of the State of New York, as agent on
behalf of the Banks (in such capacity, the "Agent").
WHEREAS, the Company has requested the Banks to make term
loans to the Company in an aggregate principal amount up to but not exceeding
$170,000,000 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.
1.01 Certain Defined Terms. As used herein, the following
terms 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):
"Affiliate" shall mean, as to any Person, any Subsidiary of
such 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,
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
"controlled" have corresponding meanings.
"Allied Bottle Contracts" shall mean, collectively, any
contract between the Company or any of its Subsidiaries and The Coca-Cola
Company providing for the Company or such Subsidiary to purchase its
requirements of concentrates and syrups for Allied Products from The Coca-Cola
Company and/or granting to the Company or such Subsidiary exclusive distribution
rights with respect to Allied Products in the Company's or such Subsidiary's res
pective territories, in each case as amended or supplemented from time to time.
"Allied Products" shall mean all products of The Coca-Cola
Company, other than Coca-Cola Trademark Beverages.
"Applicable Lending Office" shall mean, for any Bank, the
Lending Office 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 Loan is to be made and maintained .
"Applicable Margin" shall mean 0.45%; provided that, at any
time when the Senior Debt Rating of the Company with S&P shall be below BBB- and
the Senior Debt Rating of the Company with ▇▇▇▇▇'▇ shall be below Baa3 (or at
any time when neither S&P nor ▇▇▇▇▇'▇ has a Senior Debt Rating for the Company),
the Applicable Margin shall be 0.55% (such change in the Applicable Margin shall
not prejudice any rights that the Agent or any Bank may have with respect to any
Trigger Event that may occur in connection with such rating)
"Attributable Debt" shall mean, as to any particular lease
under which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining primary term thereof,
discounted from the respective due date thereof to such date at a rate per annum
equal to the weighted average interest rate applicable to the Loans. The
weighted average interest rate applicable to the Loans shall be calculated at
any time by dividing the aggregate of the annual interest payments required on
the Loans (calculated as if the interest rate on the Loans then in effect were
to be applied to a year of 365 days) by the aggregate principal amount of the
Loans outstanding on such date. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable by
the lessee with respect to such period, after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Board of Directors" shall mean either the board of directors
of the Company or any duly authorized committee of the board.
"Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Agent and the Banks.
"Bottle Contracts" shall mean, collectively, any contract
between the Company or any of its Subsidiaries and The Coca-Cola Company
providing for the Company or such Subsidiary to purchase its requirements of
concentrates and syrups for Coca-Cola Trademark Beverages from The Coca-Cola
Company and/or granting to the Company or such Subsidiary exclusive distribution
rights with respect to Coca-Cola Trademark Beverages in the Company's or such
Subsidiary's respective territories, in each case as amended or supplemented
from time to time.
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"Business Day" shall mean any day (but not a Saturday or
Sunday) on 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.
"Capital Stock", as applied to the stock of any corporation,
shall 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.
"Coca-Cola Trademark Beverages" shall mean all products
identified as such in the Company's Form 10-K filed with the SEC for the fiscal
year of the Company ended January 1, 1995 or in any other Form 10-K filed for
any subsequent fiscal year, and any other beverage products produced or marketed
by The Coca-Cola Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, with respect to each Bank, the
obligation of such Bank to make a Loan to the Company on each borrowing date
pursuant to Section 2.01 hereof, all such Loans to be in an aggregate 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 December 29, 1995.
"Common Stock" shall mean any and all Capital Stock of the
Company that is not Preferred Stock, being on the date hereof designated "Common
Stock", "Class B Common Stock" and "Class C Common Stock".
"Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets of the Company and its consolidated Subsidiaries (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles. For purposes of this definition, any leasehold
interest of the Company or any Restricted Subsidiary shall be deemed to be a
tangible asset if the rental obligations thereunder are included in Funded Debt.
"Corporation" includes corporations, associations, companies
and business trusts.
"Debt" shall mean, with respect to any Person, all
indebtedness and other obligations of such Person of the type described in
clauses (a) and (b) of the definition of "Indebtedness" in this Section 1.01,
and all Guarantees and Hypothecations of such Person in respect of such
indebtedness and other obligations.
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"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designated Event" shall have the meaning assigned to that
term in Section 1.02 hereof.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Environmental Laws" shall mean all Governmental Requirements
relating to health, safety, industrial hygiene, pollution or environmental
matters, including Governmental Requirements relating to emissions, discharges,
releases, or threatened releases of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes 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
or industrial, toxic or hazardous substances (including, without limitation,
asbestos) or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as the Company or is under common
control (within the meaning of Section 414(c) of the Code) with the Company.
"Event of Default" shall have the meaning assigned to that
term in Section 9 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Term Loan Agreements" shall mean, collectively, (i)
the Loan Agreement, dated as of June 28, 1990, among the Company, the financial
institutions named therein as "Banks", and LTCB Trust Company, as agent on
behalf of such banks, as heretofore amended, and (ii) the Loan Agreement, dated
as of February 20, 1992, among the Company, the financial institutions named
therein as "Banks", LTCB Trust Company, as agent on behalf of such banks, and
Trust Company Bank, as lead manager, as heretofore amended.
"FDA" shall mean the United States Food and Drug
Administration, and any successor thereto.
"Funded Debt" shall mean (i) all Debt having a maturity of
more than 12 months from the date as of which the amount thereof is to be
determined or having a maturity of 12 months or less but by its terms being
renewable or extendable beyond 12 months from such date at the option of the
borrower, and (ii) all rental obligations payable more than 12 months from such
date under Capital Leases (such rental obligations to be included as Funded Debt
as the
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amount so capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Governmental Authority" shall mean (a) the government of any
federal, state, municipal or other political subdivision in which property of
the Company or any of its Sub sidiaries 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, codes, rules, regulations, orders, decrees and judgments of any
Governmental Authority.
"Health Laws" shall mean all Governmental Requirements,
whether 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 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, or under acceptance facilities, 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 by such
Person, with or without recourse, or discount of any notes or accounts
receivable of such Person;
(c) all obligations of such Person under leases or other
contractual arrange ments which have been, or should be, recorded as
capital leases in accordance with generally accepted accounting
principles (collectively, "Capital Leases");
(d) all obligations of such Person under direct or indirect
guarantees (includ ing, without limitation, agreements to "keep well")
in respect of, and obligations, contin gent or otherwise, to purchase
or acquire or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to
above in clause (a), (b) or (c)(collectively, "Guarantees"); and
(e) all indebtedness and other obligations referred to above
in clauses (a), (b), (c) or (d) secured by (or for which the holder of
such indebtedness or other obligation has a right, contingent or
otherwise, to be secured by) any Mortgage upon or in property
(including, without limitation, contract rights and accounts
receivable) owned by such Person even though such Person has not
assumed or become liable beyond the value of
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the property pledged for the payment of such indebtedness or other
obligation (collectively, "Hypothecations").
"Interest Period" shall mean, with respect to each Loan, each
successive period commencing on the date on which such Loan is made 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 November 20, 2002; provided
that if 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.
"LIBOR" shall mean, for any Interest Period, the rate per
annum, as 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
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.
"Loan(s)" shall mean the loans provided for by Section 2.01
hereof.
"Loan Documents" shall mean this Agreement, the Notes and the
fee letter dated November 20, 1995 between the Agent and the Company.
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"LTCB" shall mean The Long-Term Credit Bank of Japan, Limited;
provided that for purposes of Section 10.04 hereof, "LTCB" shall mean each of
The Long-Term Credit Bank of Japan, Limited and LTCB Trust Company.
"Maturity Date" shall mean November 20, 2003; provided that if
such date is not a Business Day, the 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 Maturity Date shall be the next preceding
Business Day.
"Mortgage" shall mean, with respect to any asset, revenue or
other property, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, revenue or other property, and
any other arrangement having the practical effect of any of the foregoing.
"Multiemployer Plan" shall mean a Plan defined as such 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.
"NationsBank Revolving Credit Agreement" shall mean the
Revolving Credit Agreement dated as of March 17, 1992 among the Company, the
financial institutions identified therein as lenders, and NationsBank N.A., as
agent for such lenders, as such agreement may be amended, supplemented,
extended, restated, replaced or refinanced (by a New Revolving Credit Agreement)
from time to time.
"New Revolving Credit Agreement" shall mean a revolving credit
agreement dated after the date hereof among the Company and the banks named
therein, which replaces or refinances the NationsBank Revolving Credit
Agreement, as such credit agreement may be amended, supplemented, extended,
restated, replaced or refinanced from time to time.
"Note(s)" shall mean the promissory notes provided for by
Section 2.06 hereof to further evidence the Loans and, collectively, any
promissory note or notes issued in substitution therefor.
"Officers' Certificate" shall mean a certificate addressed to
the Agent and the Banks signed by the Chairman of the Board, a Vice Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secre tary or an Assistant
Secretary, of the Company, and delivered to the Agent and the Banks.
"Opinion of Counsel" shall mean a written opinion addressed to
the Agent and the Banks of counsel, who may (except as otherwise provided in
this Agreement) be counsel for, or an employee of, the Company, and who shall be
acceptable to the Agent.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
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"Person" shall mean an individual, a corporation, a company, a
voluntary associa tion, a partnership, a trust, an unincorporated organization
or a government or any agency, instrumentality or political subdivision thereof.
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and which is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of
any Loan or any interest thereon under this Agreement or the Notes which is not
paid when due (whether at stated maturity, by acceleration or otherwise), a rate
per annum during the period commencing on the due date to but excluding the date
on which such amount is paid in full equal to 2% above the Prime Rate as in
effect from time to time; provided that, if such amount in default is principal
of a Loan and the due date is a day other than the last day of an Interest
Period therefor, the "Post-Default Rate" for such principal shall be, for the
period commencing on the due date and ending on the last day of the then current
Interest Period therefor, 2% above the interest rate for such Loan as provided
in Section 3.02(a) hereof and, thereafter, the rate provided for above in this
definition.
"Preferred Stock", as applied to the Capital Stock of any
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.
"Principal Property" shall mean any building, structure or
other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for the bottling, canning or packaging
of soft drinks or soft drink products or warehousing and distributing of such
products, owned or leased by the Company or any Subsidiary of the Com pany, the
gross book value (without deduction of any depreciation reserves) of which on
the date as of which the determination is being made exceeds 3% of Consolidated
Net Tangible Assets, other than any such building, structure or other facility
or portion thereof which, in the reasonable opinion of the Board of Directors of
the Company, is not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety.
"Reference Banks" shall mean the principal London offices of
LTCB, Societe Generale and Credit Lyonnais.
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"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.
"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.
"Required Banks" shall mean, at any time, Banks then holding
more than 50% of the aggregate outstanding principal amount of the Loans, or if
no Loans are then outstanding, which hold more than 50% of the aggregate amount
of the Commitments, or if no Loans or Commitments are then outstanding, which
held more than 50% of the Loans immediately prior to the payment thereof in
full.
"Restricted Subsidiary" shall mean a Subsidiary of the Company
which (i) owns a Principal Property as of the date hereof, or (ii) acquires a
Principal Property after the date hereof from the Company or a Restricted
Subsidiary other than for cash equal to such property's fair market value as
determined by the Board of Directors of the Company, or (iii) acquires a
Principal Property after the date hereof by purchase with funds substantially
all of which are provided by the Company or a Restricted Subsidiary or with the
proceeds of indebtedness for money borrowed, which indebtedness is guaranteed in
whole or in part by the Company or a Restricted Subsidiary, or (iv) is a party
to any contract with respect to the bottling, canning, packaging or distribution
of soft drinks or soft drink products, other than any such contract which in the
reasonable opinion of the Board of Directors of the Company is not of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety, and in any event includes each of the Subsidiaries listed in
Schedule 1 as of the date hereof.
"SEC" shall mean the Securities and Exchange Commission, or
any successor thereto.
"Senior Debt Rating" shall mean the rating assigned by S&P or
Moody's, as the case may be, to the Company's senior medium-term debt
obligations.
"Subsidiary" shall mean any corporation, partnership or other
Person of which at least a majority of the outstanding Voting Shares is at the
time directly or indirectly owned or controlled by the Company or one or more of
the Subsidiaries or by the Company and one or more of the Subsidiaries.
"Trigger Event" shall mean the occurrence and continuance of
any Designated Event and, at any time when any securities of the Company that
are rated by either Rating Agency are outstanding, a Rating Decline also has
occurred and is continuing.
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"Voting Shares" shall mean Capital Stock of the class or
classes having general voting power under ordinary circumstances for the
election of the board of directors, managers or trustees of a corporation
(irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
1.02 Certain Definitions Relating to Trigger Events.
"Designated Event" shall mean any of the following:
(i) a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act) other than a Permitted
Holder (as defined below) becoming the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of Voting Shares (as defined
below in this definition) of the Company entitled to exercise more than
25% (or, in the case of any person or group consisting solely of one or
more Company Employee Benefit Plans (as defined below), 35%) of the
total voting power of all outstanding Voting Shares of the Company
(calculated in accordance with Rule 13d-3 under the Exchange Act); or
(ii) a change in the Board of Directors of the Company
in which the individuals who constituted the Board of Directors of the
Company at the beginning of the two-year period immediately preceding
such change (together with any other director whose election by the
Board of Directors of the Company or whose nomination for election by
the shareholders of the Company was approved by a vote of at least
two-thirds of the directors then in office who either were directors at
the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the directors then in office; or
(iii) any consolidation of the Company with, or merger
of the Company into, any other person, any merger of another Person
into the Company, or any sale, lease, conveyance or transfer of all or
substantially all of the assets of the Company to another Person (other
than (x) a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common
Stock of the Company, or (y) a merger which is effected solely to
change the jurisdiction of incorporation of the Company); or
(iv) the purchase or other acquisition by the Company
or any Subsidiary of the Company, directly or indirectly, of beneficial
ownership of its Voting Shares if the Voting Shares of the Company
acquired in such acquisition and all other such acquisitions effected
after the date of the making of the Loans under this Agreement and
within the 12-month period ending on the date of such acquisition were
entitled to exercise in the aggregate more than 30% of the total voting
power of all Voting Shares outstanding on the day before the first such
acquisition during such period (taking into account any stock split,
stock dividend or similar transaction effected during such period and
calculating the voting power of Voting Shares so acquired based on the
voting power thereof immediately before being so acquired); or
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(v) either (x) the distribution by the Company,
directly or indirectly, of cash, securities or other property in
respect of its Common Stock (other than a distribution paid solely in
its Common Stock or rights to acquire its Common Stock), or (y) the
purchase or other acquisition by the Company or any Subsidiary of the
Company, directly or indirectly, of any Common Stock of the Company
(other than an acquisition of Common Stock of the Company (1) by the
Company from any wholly-owned Subsidiary of the Company, (2) by any
wholly-owned Subsidiary of the Company from the Company or another
wholly-owned Subsidiary of the Company or (3) solely in exchange for or
upon conversion of Common Stock of the Company), if the sum of the
Applicable Equity Percentages (as defined below) for such distribution
or acquisition and all other such distributions and acquisitions
effected after the date of the making of the Loans under this Agreement
and during the 12-month period ending on the date on which such
distribution or acquisition is effected exceeds 30%.
For purposes of this definition: "Applicable Equity
Percentage" shall mean, for any distribution or acquisition, the percentage
equal to (x) the Fair Market Value (as defined below) on the Valuation Date (as
defined below) of the cash, securities and other property distributed in respect
of, or paid or otherwise exchanged to acquire, Common Stock of the Company in
such distribution or acquisition divided by (y) the Fair Market Value on the
Reference Date (as defined below) of the Common Stock of the Company outstanding
on such Reference Date; "Valuation Date" shall mean (x) for any distribution,
the record date therefor or (y) for any acquisition, the date thereof; and
"Reference Date" shall mean (x) for any distribution, the day before the
earlier of the record date for such distribution and the first date on which the
relevant common stock trades the regular way without the right to receive such
distribution, or (y) for any acquisition, the day before the date of such
acquisition. "Voting Shares" shall mean (solely for purposes of this Section
1.02) all outstanding shares of any class or classes (however designated) of
capital stock entitled to vote generally in the election of members of the Board
of Directors of the Company. "Permitted Holder" shall mean (i) J. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. or J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III, (ii) any heir, executor, administrator,
testamentary trustee, legatee, beneficiary or distributee of J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇. or J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III, (iii) any trust, the beneficiaries of which
include only J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III or any person
described in clause (ii) hereof and (iv) The Coca-Cola Company.
In addition, so long as any Person (a "Holding Company") owns,
directly or indirectly, Voting Shares of the Company entitled to exercise 50% or
more of the total voting power of all outstanding Voting Shares of the Company,
any references to the "Company" in clauses (i) through (v) above and in any
related definitions shall be deemed to refer to the Company and such Holding
Company (from and after the date on which such Holding Company first became such
an owner of Voting Shares of the Company) as one entity.
A "Rating Decline" shall be deemed to exist for any Designated
Event if either (i) on any date within the Comparison Period (as defined below)
for such Designated Event:
(a) in the event any medium-term notes or other medium-term
securities of the Company that are rated by either of the Rating
Agencies at such time ("Rated
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Medium-Term Notes") are rated Investment Grade (as defined below) by
either or both of the Rating Agencies on the Rating Date (as defined
below) for such Designated Event, the rating of the Rated Medium-Term
Notes by each Rating Agency rating the Rated Medium-Term Notes shall be
below Investment Grade; or
(b) in the event that no Rated Medium-Term Notes of the
Company are rated Investment Grade by either of the Rating Agencies on
the Rating Date for such Desig nated Event, the rating of any
outstanding Rated Medium-Term Notes of the Company by each Rating
Agency shall be (or be lower than) the Full-Category-Lower Rating (as
defined below) for the rating of such Rated Medium-Term Notes of the
Company by such Rating Agency on such Rating Date; or
(c) in the event that there are no medium-term notes or
medium-term securities of the Company that are rated by either Rating
Agency at such time and any short-term notes or other short-term
securities of the Company that are rated by either of the Rating
Agencies ("Rated Short-Term Notes") (Rated Medium-Term Notes and Rated
Short-Term Notes hereafter referred to collectively as "Rated Notes")
are rated Investment Grade (as defined below) by either or both of the
Rating Agencies on the Rating Date (as defined below) for such
Designated Event, the rating of the Rated ShortTerm Notes by each
Rating Agency rating the Rated Short-Term Notes shall be below
Investment Grade; or
(ii) on the last day of such Comparison Period for
such Designated Event either (A) no notes or other securities
of the Company are rated by Moody's or S&P, or (B) notes or
other securities of the Company are rated by either (but not
both) of ▇▇▇▇▇'▇ and S&P, but are not rated by either Duff's
or Fitch's.
"Investment Grade" shall mean, (A) for medium-term securities,
a rating of at least Baa3, in the case of a rating by Moody's, a rating of at
least BBB-, in the case of a rating by S&P, a rating of at least BBB- in the
case of a rating by Duff's, and a rating of at least BBB-, in the case of a
rating by Fitch's and (B) for short-term securities, a rating of at least A-3,
in the case of a rating by Moody's, a rating of at least P-3, in the case of a
rating by S&P, a rating of at least D-3, in the case of a rating by Duff's, and
a rating of at least F-3, in the case of a rating by Fitch's.
"Comparison Period" shall mean, for any Designated Event, the
period (i) com mencing on the date of the occurrence of such Designated Event
and (ii) ending on the 90th day after the first public announcement of such
occurrence or, if on such 90th day the rating of the Rated Notes by Moody's
shall be listed on the "Watchlist" of Moody's with a designation of "down" or
"uncertain" (or on such similar list with such similar designations as may be
maintained by Moody's from time to time) or the rating of the Rated Notes by S&P
shall be listed on the "Creditwatch" of S&P with a designation of "negative
implications" or "developing" (or on such similar list with such similar
designations as may be maintained by S&P from time to time), or the rating of
the Rated Notes by Duff's shall be listed on the "DP Watchlist" of Duff's with a
designation of "down" or "up/down" (or such similar list with such
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similar designations as may be maintained by Duff's from time to time) or the
rating of the Rated Notes by Fitch's shall be listed on the "FitchAlert" of
Fitch's with a designation of "declining" or "uncertain" (or such similar list
with such similar designations as may be maintained by Fitch's from time to
time) the day 5 days after the first date thereafter on which the rating of the
Rated Notes by each Rating Agency rating the Rated Notes shall not be so listed.
"Rating Date", for any Designated Event, shall mean the
earlier of:
(i) the date that is either (x) the 90th day prior
to the date of the earlier of (a) the first public announcement of an
intention to effect such Designated Event and (b) the occurrence of
such Designated Event, or (y) if the Rated Notes are not rated by both
Rating Agencies on such 90th day, the next preceding day on which the
Rated Notes are so rated (or, if such 90th day is before the date of
the first issuance of any Rated Note, the date of such first issuance);
or
(ii) if during the 180-day period ending on the
date referred to in clause (i) an intention to effect any other
Designated Event was first publicly announced but such other Designated
Event did not occur, the date that is the earliest of the Rating Dates
for any such other Designated Events.
"Full-Category-Lower Rating", for any rating of the Rated
Notes by any Rating Agency on any Rating Date, shall mean the rating of the next
lower Rating Category as compared to such rating by such Rating Agency on such
Rating Date, modified by the same gradation (if applicable) within such next
lower Rating Category as the gradation within the Rating Category of such rating
by such Rating Agency on such Rating Date ("gradation" in the case of
medium-term ratings meaning + and - for S&P, Duff's and Fitch's and 1, 2 and 3
for Moody's; and the "Rating Category" of any rating shall mean (from highest to
lowest), with respect to a medium-term rating by S&P, BB, B, CCC, CC, C and D,
or, with respect to a medium-term rating by ▇▇▇▇▇'▇, ▇▇, B, Caa, Ca and C, or,
with respect to a medium-term rating by Duff's, BB, B and CCC, or, with respect
to a medium-term rating by Fitch's, BB, B, CCC, CC, C, DDD, DD and D). For
example, the Full-Category-Lower Ratings for the S&P medium-term ratings of
"BB-" and "CCC-" are "B-" and "CC", respectively.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, together with its
successors.
"S&P" means Standard & Poor's Corporation, together with its
successors.
"Duff's" means Duff & ▇▇▇▇▇▇ Inc., together with its
successors.
"Fitch's" means Fitch's Investors' Service, Inc., together
with its successors.
"Rating Agencies" means, at any time, ▇▇▇▇▇'▇ and S&P;
provided that if at such time either (but not both) of Moody's or S&P shall no
longer be rating any of the applicable notes or other securities of the Company
(medium-term notes and securities in the case of clauses (a) and (b) of the
definition of Rating Decline, and short-term notes and securities in the
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case of clause (c) thereof), then "Rating Agencies" shall mean the one that is
still rating such securities and either (i) Duff's (if it is rating such
securities) or (ii) if Duff's is not rating such securities but Fitch's is
rating such securities, Fitch's.
"Company Employee Benefit Plan" shall mean any employee
benefit plan (as defined in Section 3(3) of ERISA) maintained by the Company or
any Subsidiary.
"Fair Market Value" of any item shall mean the fair market
value of the subject item as determined in good faith by the Board of Directors
of the Company.
1.03 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 as are generally accepted in the United States at the date
of such computation.
1.04 Compliance Certificates and Opinions. Except as otherwise
expressly provided by this Agreement, upon any application or request by the
Company to the Agent and the Banks to take any action under any provision of
this Agreement, the Company shall furnish to the Agent an Officers' Certificate
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 stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or cove nant 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.
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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
Business Day on or prior to November 20, 1995, and to make one additional loan
to the Company on any Business Day on or prior to the Commitment Termination
Date, which loans collectively shall be in an aggregate principal amount up to
but not exceeding the respective Commitment amount specified opposite such
Bank's name on the signature pages hereof. Each such borrowing of Loans shall be
made by the Banks pro rata in accordance with their respective Commitments.
2.02 Borrowings. The Company shall give the Agent written
notice of each requested borrowing of the Loans not later than 10:00 a.m. (New
York time) on the date that is not less than five Business Days prior to the
date of such requested borrowing. Each such notice of borrowing shall specify
the aggregate principal amount of the Loans to be borrowed (which shall not, in
the aggregate, exceed $120,000,000 on the occasion of the initial borrowing
hereunder, and shall not, in the aggregate, exceed $50,000,000 on the occasion
of the second (and final) borrowing hereunder), the date of borrowing (which
shall be a Business Day not later than November 20, 1995, in the case of the
initial borrowing hereunder, and the Commitment Termination Date in the case of
the second (and final) borrowing hereunder) and the initial Interest Period that
will apply to the Loans borrowed as part of such borrowing. Each such notice of
borrowing shall be irrevocable and shall be effective upon receipt thereof by
the Agent. Promptly after the Agent's receipt of any notice of borrowing (and in
any event not later than the date three Business Days prior to the date of the
requested borrowing), the Agent shall give each Bank notice of the contents
thereof and of each Bank's pro rata share of the aggregate principal amount of
the requested borrowing.
Not later than 10:00 a.m. New York time on the date of each
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.
04 203606 maintained at Bankers Trust Company, New York, New York, ABA no.
▇▇▇▇▇▇▇▇▇, ref: "Coca-Cola Bottling Co. Consolidated". Not later than 3:00 p.m.
(New York time), 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. 001240985 "Coca-Cola Bottling Co. Consolidated" maintained with NationsBank
of North Carolina, N.A., One NationsBank Plaza, Charlotte, North Carolina, ABA
no. ▇▇▇▇▇▇▇▇▇; provided, that, notwithstanding the foregoing, the Borrower
hereby irrevocably authorizes and instructs the Agent to apply the proceeds of
the Loans made on the occasion of the initial borrowing hereunder to repay or
prepay in full, on the borrowing date of the initial Loans, any outstanding
principal amount of the loans under the Existing Term Loan Agreements. The
second borrowing of the Loans shall be the final borrowing, and accordingly
shall terminate any Commitments that remain unborrowed. Any portion of the
Commitments not utilized on December 29, 1995 will terminate on such date.
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2.03 Fees. (a) The Company shall pay to the Agent, for the
account of each Bank, a commitment fee at a rate of 0.15% per annum on the
average daily unutilized amount of the Commitment of such Bank, from and
including the date of this Agreement to but not including the Commitment
Termination Date; provided, that if the initial borrowing of Loans occurs on or
prior to November 20, 1995, no such commitment fee shall be payable with respect
to the portion of the Commitments (up to an aggregate Commitment amount of
$120,000,000) borrowed on such date, for the period from the signing date of
this Agreement to but not including such borrowing date. Accrued commitment fee
shall be payable in arrears on the Commitment Termination Date or, if earlier,
the date on which the Commitments are borrowed or otherwise are terminated in
full.
(b) In the event that any portion of the Commitments remains
in effect at any time after 10:00 a.m. (New York time) on the Commitment
Termination Date, or in the event that any portion of the Commitments is
terminated for any reason on any day prior to the Commitment Termination Date,
the Borrower shall pay to the Agent for the account of each Bank a commitment
termination fee in an amount equal to 0.125% of the amount of such remaining
Commitment of such Bank or the portion so terminated, as the case may be. Such
fee shall be payable on the Commitment Termination Date or, in the case of any
earlier termination, the date of such termination.
(c) The Company shall pay to the Agent for its own account
such fees in such amounts and at the times set forth in the letter dated
November 20, 1995 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 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 by the Company hereunder and under the
Notes, and such records shall be rebuttably presumptive evidence of the
Company's obligations in respect of such amounts. 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 rebuttably presumptive evidence of
the Company's obligations in respect of such amounts; provided 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. A separate note shall
evidence the Loan made by each Bank on the occasion of each borrowing of Loans.
Each Note to the order of a Bank shall be dated the date of the borrowing of the
respective Loan hereunder to be evidenced by such Note, shall be
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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).
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.
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
installments, the first of which shall be in the aggregate principal amount of
$85,000,000 for all of the Banks and shall be payable on the Interim Maturity
Date, and the second of which shall be in the aggregate principal amount of
$85,000,000 for all of the Banks (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. For the avoidance of doubt, (i) assuming that the
Commitments are fully drawn, the installment of principal of each Loan made by
each Bank that the Company shall be obligated to pay on the Interim Maturity
Date shall be one-half of the original principal amount of such Loan, with the
full remaining balance of the principal amount of such Loan to be payable on the
Maturity Date, and (ii) in the event that less than all of the Commitments are
drawn, the aggregate initial installment of the Loans payable on the Interim
Maturity Date shall be $85,000,000 for all of the Banks, and the second (and
final) aggregate installment of the Loans payable on the Maturity Date shall be
the remaining aggregate principal balance of the Loans outstanding on such 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 the date of such Loan to but excluding the
date on which such installment shall be paid in full, at a rate per annum, for
each Interest Period for such Loan equal to the LIBOR
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for such Interest Period plus the Applicable Margin in effect from time to time
during such Interest Period.
(b) Notwithstanding the foregoing, the Company will pay to
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
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 the Loans and the Notes shall be
payable on the last day of each Interest Period and upon the payment or
prepayment of the Loans, 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) The Company shall select 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. The Company shall select the duration of each
subsequent Interest Period for each Loan by giving written notice to the Agent,
and such Interest Period shall apply to all Loans then outstanding that were
made as part of the same borrowing. 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 Interest Period. In the event that the Company fails to
select the duration of any Interest Period for any Loans within the time period
and otherwise as provided in this Section 3.02, such Interest Period shall have
a duration of one month. The Agent shall promptly notify the Banks of the
duration of each Interest Period.
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 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 $5,000,000 or, if higher, an integral multiple of
$1,000,000), 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), 5.03 or 5.06 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) Any portion of the Loans prepaid, whether pursuant to this
Section 3.03, Section 5.03 or otherwise, may not be reborrowed.
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(c) No portion of the Commitments may be voluntarily reduced
or terminated by the Company.
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. 04 203606 at Bankers Trust
Company, New York, New York ABA no. ▇▇▇▇▇▇▇▇▇, ref.: "CocaCola Bottling Co.
Consolidated" (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.
(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 ordinary deposit account of the
Company with the Agent or such Bank or any affiliate of the Agent or such Bank
(with subsequent written notice to the Company).
(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 or of commitment fee or commitment termination fee 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.
-19-
4.02 Computations. Interest on the Loans and the Notes and on
interest thereon and all commitment fees 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.
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 Com pany (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 commencing on the date such amount was so
made available by the Agent until the date on which the Agent recovers such
amount at a rate per annum equal to the effective federal funds rate for such
day (as determined by the Agent).
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.
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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 main taining of any of its Loans or its obligation
to make such 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 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. The relevant Bank
will notify the Company (with a copy to the Agent) of any event occurring after
the date of this Agreement which will entitle such Bank to compensation pursuant
to this Section 5.01(a) as promptly as practicable after it obtains knowledge
thereof and determines, in the light of its then prevailing policies, to request
such compensation. Notwithstanding the foregoing provisions of this Section
5.01(a), in no event shall any Bank requesting payment of any Additional Costs
under this Section 5.01(a) be entitled to payment of such Additional Costs to
the extent that such Additional Costs arose with respect to any period prior to
the date of the first such request. Further, each Bank will designate a dif
ferent 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
-21-
Applicable Margin) shall thereafter be the rate at which such Loans
bear interest pursuant to Section 3.02 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 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 be deemed to be an election by
the Company to prepay the Loans of such Bank in accordance with Section
3.03 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 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 com pensation 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);
provided that in no event shall any Bank requesting payment of any compensation
under this Section 5.01(c) be entitled to payment of such compensation to the
extent that such compensation is for such costs with respect to any period prior
to the date of the first such request. Such Bank will notify the Company (with a
copy to the Agent) that it is entitled to compensation pursuant to this Section
5.01(c) as promptly as practicable after it determines, in light of its then
prevailing policies, to request such compensation. 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 Loan for any Interest Period therefor either (i) the Agent determines (which
determination shall be conclusive)
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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 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 Loan or Loans for such Interest Period, then such Bank shall give
the Agent and the Company prompt written notice thereof; and, if such Loan has
not then been made, the obligation of the Banks to make the 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"), 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 Loans (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 the
Loans bear interest pursuant to Section 3.02 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 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 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 Loans of the Banks in accordance with Section
3.03 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, 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 shall immediately terminate,
and if the Loans have been made, the Company shall prepay the 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
-23-
amounts as shall be sufficient (in the reasonable opinion of the Agent or such
Bank) to com pensate it for any loss, cost or expense which the Agent or such
Bank determines are attributable to:
(a) any payment or prepayment of any Loan for any reason
(including, without limitation, any prepayment or acceleration of the
Loans pursuant to Section 3.03, 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 for the designated Interest Period; or
(b) 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.
Without limiting the effect of the first sentence of this Section 5.04, such
compensation to any Bank shall not include the amount attributable to the
Applicable Margin but shall include an amount equal to the excess, if any, of
(i) the amount of interest which otherwise would have ac crued 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).
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 addi tional
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
-24-
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 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.
5.06 Prepayments. If the Company becomes obligated to pay any
Bank Additional Costs, compensation or additional amounts pursuant to Section
5.01 hereof, the Company may prepay the Loans of such Bank non-ratably in
accordance with the terms of Section 3.03 hereof.
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
initial 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) An Officers' Certificate (which shall include the
signature thereon of the Secretary of the Company) containing certified
copies of the certificate of incorporation and bylaws and all other
organizing documents of the Company and all corporate action taken by
the Company approving this Agreement, the Notes, the borrowing by the
Company of the full amount of the Commitments hereunder and the
performance of its obligations hereunder and thereunder (including,
without limitation, a certificate setting forth the resolutions of the
Board of Directors of the Company adopted in respect of the
transactions contemplated hereby and thereby and any shareholder action
taken in respect thereof) and good standing certificates for the
Company from the States of Delaware, Tennessee, Virginia, North
Carolina and South Carolina and good standing certificates for each of
the Subsidiaries listed in Schedule 1 hereto from the states of their
respective incorporation and from each state in which such Subsidiary
is doing business, as set forth in said Schedule 1.
(b) An Officers' Certificate (which shall include the
signature thereon of the Secretary of the Company) in respect of each
of the officers who is authorized to sign this Agreement and the Notes
on its behalf.
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(c) An Officers' Certificate to the effect set forth in
Section 6.02 hereof.
(d) An opinion of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to
the Company, substantially in the form of Exhibit B hereto.
(e) The Notes in respect of the initial Loans, duly executed
and delivered by the Company to the order of each Bank and otherwise
appropriately completed.
(f) Evidence of the payment of the fee described in Section
2.03(c) hereof.
(g) An Officers' Certificate stating that the Senior Debt
Rating of the Company by ▇▇▇▇▇'▇ is at least Baa3 and by S&P is at
least BBB-.
(h) Evidence that all principal of and interest on all loans
outstanding under the Existing Term Loan Agreements 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 Term Loan
Agreements.
(i) Such other opinions and other documents as the Agent or
any Bank may reasonably request.
6.02 Each Borrowing. The obligation of the Banks to make the
Loans to the Company upon the occasion of each borrowing hereunder (including,
without limitation, the initial borrowing) is subject to the further condition
precedent that, as of the date of the Loans to be made as part of such borrowing
and after giving effect thereto: (a) no Default or Rating Decline shall have
occurred and be continuing; and (b) the representations and warranties made by
the Company in 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 the Company shall, on the date of
each borrowing hereunder (including, without limitation, the date of the second
(and final) borrowing), furnish an Officer's Certificate with respect to
compliance by the Company with clauses (a) and (b) above; and (c) in the case of
the second (and final) borrowing hereunder, the Agent shall have received the
Notes in respect of such Loans, duly executed and delivered by the Company to
the order of each Bank and otherwise appropriately completed, and evidence of
the payment of all fees described in Section 2.03 hereof.
Section 7. Representations and Warranties. The Company
represents and warrants to the Agent and each Bank that:
7.01 Corporate Existence. Each of the Company and each of its
Subsidiaries: (a) is a corporation duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation; (b) has all requisite
corporate power, and has all governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being
conducted; and (c) is qualified to do business in all jurisdictions in which the
nature
-26-
of the business conducted by it makes such qualification necessary. The Company
is qualified to do business in Virginia, Tennessee, North Carolina and South
Carolina, and each of the Subsidiaries listed in Schedule 1 is qualified to do
business in the states indicated for such Subsidiary in Schedule 1.
7.02 Financial Condition. The audited consolidated balance
sheet of the Company and the consolidated Subsidiaries as at January 2, 1995 and
the related consolidated statements of operations, cash flows and changes in
shareholders' equity of the Company and the consolidated Subsidiaries for the
fiscal year ended on said date, with the opinion thereon of Price Waterhouse &
Co., and the unaudited consolidated balance sheet of the Company and the
consolidated Subsidiaries as at July 2, 1995 and the related consolidated
statements of operations, cash flows and changes in Shareholders' equity of the
Company and the consolidated Subsidiaries for the six-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 the
consolidated Subsidiaries as at said dates and the consolidated results of their
operations for the fiscal year and six-month period ended on said dates,
subject, in the case of such financial statements as at July 2, 1995, to normal
year-end adjustments all in conformity with generally accepted accounting
principles applied on a consistent basis. 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 generally accepted accounting principles and practices to be
disclosed on the financial statements referred to herein. Since January 2, 1995,
there has been no material adverse change in the consolidated financial
condition or operations, or the prospects or business taken as a whole, of the
Company and its consolidated Subsidiaries from that set forth in said financial
statements as at said date.
7.03 Litigation. Except as disclosed in Schedule 2 hereto,
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 against the Company or any Subsidiary that
could reasonably be expected to have a material adverse effect on the
consolidated financial condition, business or results of operations taken as a
whole, of the Company and its consolidated Subsidiaries or on the Company's
ability to perform its obligations hereunder and under the Notes.
7.04 No Breach. None of the execution and delivery of this
Agreement or the Notes, the consummation of the 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 certificate of incorporation or bylaws of the Company, (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 Subsidiary 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
-27-
properties of the Company or any Subsidiary pursuant to the terms of any such
agreement or instrument.
7.05 Corporate Action. The Company has all necessary corporate
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 corporate action on its part; and 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 Company's
legal, valid and binding obligation, enforceable 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,
and no filings or registrations with, any governmental or regulatory authority
or agency are necessary for the execution, delivery or performance by the
Company of this Agreement or the Notes or for the validity or enforceability
thereof.
7.07 Use of Loans. Neither the Company nor any Subsidiary 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 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, the proceeds of the initial borrowing of the Loans
will be used solely to refinance the loans outstanding under the Existing Term
Loan Agreements.
7.08 ERISA. Each of the Company and the ERISA Affiliates has
fulfilled all obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan, has paid, or, in accordance with ERISA and the
Code, has accrued a liability for, all contributions requested on behalf of each
Multiemployer 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 any Plan or
Multiemployer Plan except for claims for benefits or requirements for
contributions, in either case made in accordance with the terms of such Plan or
Multi-Employer Plan. Except as disclosed in Schedule 3 hereto, there are no
disputes relating to ERISA or employee benefits or relations to which the
Company or any of its Restricted Subsidiaries is a party and which if adversely
determined would subject the Company or any of its Restricted Subsidiaries to
any material liability.
7.09 Taxes. United States Federal income tax returns of the
Company and the Subsidiaries have been examined and closed through the fiscal
year of the Company ended December 31, 1987 (except with respect to Sunbelt
Coca-Cola Bottling Company, Inc., which
-28-
income tax returns have been examined and closed through the fiscal year ended
December 31, 1988 and Coca-Cola Bottling Company Affiliated, Inc., which income
tax returns have been examined and closed through the fiscal year ended December
31, 1989). Each of the Company and the Subsidiaries has filed all United States
Federal income tax returns and all other material tax returns which are required
to be filed by it and has paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any Subsidiary. The
charges, accruals and reserves on the books of the Company and the Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate.
7.10 Ownership. 29.67% of the shares of the Common Stock of
the Company issued and outstanding as of the date hereof are owned, both
beneficially and of record and free and clear of all Mortgages, directly by The
Coca-Cola Company. All such shares of Common Stock have been legally and validly
issued and are fully paid and non-assessable. Except as disclosed in Schedule 4
hereto, there are no outstanding options, warrants, rights, agreements,
contracts, calls, commitments or demands of any character obligating or
entitling either the Company or The Coca-Cola Company to sell, issue, redeem or
repurchase any Capital Stock of the Company.
7.11 Ranking. The obligations of the Company under this
Agreement and the Notes rank at least pari passu in right of payment and in all
other respects with all other Indebtedness of the Company, except that any Debt
of the Company, secured to the extent permitted by clauses (1), (2), (3), (4)(a)
or (5) of Section 8.05 hereof, and any renewal of such Debt renewed and secured
in accordance with clause (6) of said Section 8.05, may, solely with respect to
the collateral securing such Debt, rank senior in right of security to the
obligations of the Company under this Agreement and the Notes.
7.12 Investment Company Act. Neither the Company nor any of
its Subsidiaries is, nor is any of them "controlled by", an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
7.13 Public Utility Holding Company Act. Neither the Company
nor any of its 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.
7.14 Compliance with Laws. To the best of the Company's
knowledge the Company is in compliance with all applicable laws, ordinances and
regulations, including, without limitation, all Environmental Laws and Health
Laws, the failure to comply with which could have a material adverse effect on
the business, operations or financial condition of the Company or any of its
Subsidiaries.
7.15 Voting Agreement. Based upon information furnished to the
Company by the parties to the Voting Agreement (as defined below in this Section
7.15), pursuant to the terms of a voting agreement among The Coca-Cola Company,
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III and ▇▇▇▇ ▇. ▇▇▇▇▇▇, in his
capacity as co-trustee of certain trusts holding shares of the
-29-
Company's Class B Common Stock, dated January 27, 1989 (the "Voting Agreement"),
The Coca-Cola Company granted an irrevocable proxy with respect to any shares of
Class B Common Stock or Common Stock owned by The Coca-Cola Company and any
shares of Common Stock into which shares of Class B Common Stock are converted
or exchanged to J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, III, for life, and thereafter to J. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. Schedule 4 hereto contains a true and complete (in all material
respects) description of the Voting Agreement.
7.16 Ownership of Property; Licenses. Each of the Company and
each of its Restricted Subsidiaries has good record and marketable title to, or
a valid leasehold interest in, all of its respective Principal Properties as
shown on the financial statements referred to in Section 7.02 hereof and is
licensed to use all relevant patents, trademarks, tradenames, technical
information, technology, know-how, licenses, franchises and processes necessary
for the normal operation and business of the Company or such Subsidiary.
7.17 Nature of Business. The Company and its Restricted
Subsidiaries are engaged primarily in the business of bottling, canning,
marketing and distribution of soft drinks, primarily products of The Coca-Cola
Company and other beverages and activities related thereto (it being understood
that certain Subsidiaries of the Company organized under the laws of the State
of Delaware merely hold Bottle Contracts or Allied Bottle Contracts as their
principal asset and are not operating Subsidiaries); provided, that
notwithstanding the foregoing, the Company has acquired other businesses, assets
and properties related or incidental to the foregoing which it may operate on a
temporary or permanent basis. 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 The Coca-Cola Company and
activities related thereto.
7.18 Bottle Contracts and Allied Bottle Contracts. The
agreements identified in Schedule 5 are all of the material Bottle Contracts and
Allied Bottle Contracts to which the Company or any Restricted Subsidiary is a
party as of the date hereof. Each Bottle Contract and Allied Bottle Contract is
in full force and effect and the Company and each of its Restricted Subsidiaries
are in substantial compliance with the terms and conditions applicable to them
contained in such Bottle Contracts and Allied Bottle Contracts.
7.19 Debt Instruments. The agreements identified in Schedule 6
are all of the agreements, bonds, debentures, notes and other instruments
evidencing Debt in an original principal amount of greater than or equal to
$5,000,000 of the Company or any of its Restricted Subsidiaries and in respect
of which any of them is obligated, directly or contingently, as of the date
hereof. Each of the Company and each of its Subsidiaries is in full compliance
with the terms and conditions applicable to them contained in each such
agreement, bond, debenture, note or other instrument.
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:
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8.01 Financial Statements. The Company shall deliver to the
Agent, with a sufficient number of copies for each of the Banks:
(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, unaudited consolidated statements of
income, retained earnings and changes in financial position of the
Company and the 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 an Officers' Certificate (which shall
include the signature thereon of the chief financial officer 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 the consolidated Subsidiaries in
accordance with generally accepted accounting principles, 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).
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, audited consolidated
statements of income, retained earnings and changes in financial
position of the Company and the 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 & Co. 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 the
consolidated Subsidiaries as at the end of, and for, such fiscal year,
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.
(c) at the time the Company furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, an Officers'
Certificate (which shall include the signature thereon of the chief
financial officer of the Company) (i) to the effect that, during the
most recent fiscal quarter reported on such financial statement, no
Default, Designated Event or Rating Decline has occurred and is
continuing (or, if any Default, Designated Event or Rating Decline has
occurred and is continuing, describing the same in reasonable detail),
(ii) as long as the Revolving Credit Agreement is in effect, stating
that the Company has during the most recent fiscal quarter complied
with all of the terms of the NationsBank Credit Agreement (including,
without limitation, any New Revolving Credit Agreement), (or if the
Company has failed to comply in any respect with any of the foregoing,
describing such failure to comply in reasonable detail) and (iii)
setting forth in reasonable detail the computations necessary to
determine whether the Company is in compliance with Sections 8.04, 8.05
and 8.06 hereof as of the end of the respective fiscal quarter or
fiscal year.
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(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which the
Company 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 Company's operations or financial
condition issued by the Company or any of its Subsidiaries.
(e) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed.
(f) promptly (and in any event not later than 15 days) after
the President or Chief Financial Officer of the Company knows that any
Default has occurred, a notice of such Default, Designated Event or
Rating Decline, stating that it is a "Notice of Default", "Notice of
Designated Event" or "Notice of Rating Decline", as the case may be,
and describing the same in reasonable detail.
(g) promptly (and in any event no later than 2 days) after any
officer of the Company knows of any change in (or withdrawal or
elimination of) the Company's Senior Debt Rating by either S&P or
Moody's, notice of such change.
(h) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of the
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
8.02 Corporate Existence, Etc. The Company shall, and shall
cause each Subsidiary to: (a) preserve and maintain its corporate existence and
all of its rights, privileges and franchises, provided that the Company shall
not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole,
and provided further that the foregoing shall not prevent the Company from
engaging in a merger or consolidation permitted by Section 8.04 hereof; (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) the failure to comply with which
would have a material adverse effect on the business or financial condition of
the Company and its Subsidiaries, taken as a whole; (c) pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its property prior to the date on which penalties
attach thereto, 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 except that the failure to pay
or discharge any such tax, assessment, governmental charge or levy in an amount
or amounts which in the aggregate would not have material adverse effect on the
business or financial condition of the Company and its Subsidiaries, taken as a
whole, shall not be deemed to be a breach of this covenant; (d) maintain all of
its Principal Properties used or useful in its business in good working order
and condition, ordinary wear and tear excepted and except to the extent that
failure to maintain any of such Principal Properties in good working order and
condition would not have a material adverse effect on the business or financial
condition of the Company and its
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Subsidiaries, taken as a whole; (e) maintain proper books and records of account
and 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, all to
the extent reasonably requested by the Agent or such Bank with reasonable
notice; and (f) keep insured by reputable insurers all property of a character
usually insured by corporations of similar size 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.
8.03 Use of Proceeds. The Company shall use the proceeds of
the Loans made as part of the initial borrowing hereunder solely to refinance
the entire principal amount of the loans outstanding under the Existing Term
Loan Agreements and shall use the proceeds of the Loans made as a part of any
subsequent borrowing solely for the Company's general corporate purposes (which
shall include, without limitation, the repurchase of debt securities outstanding
on the date of this Agreement), and in any event all proceeds of the Loans shall
be used solely in compliance with Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System.
8.04 Mergers and Consolidations. The Company shall not
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, unless:
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or transfer the assets, revenues and other properties of the Company
substantially as an entirety (the "Surviving Entity") shall be a
corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Agent for the benefit of the Agent and the Banks in
form satisfactory to the Agent, the due and punctual payment of the
principal of and interest on all the Loans and Notes and all other
amounts payable under this Agreement and the Notes and the performance
and observance of every covenant of this Agreement on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing, nor shall any Rating Decline be likely to occur as an
immediate consequence of such transaction (in the reasonable judgment
of the Company's Board of Directors) and, without limiting the
foregoing, The Coca-Cola Company shall directly own and continue to
own, both beneficially and of record and free and clear of all
Mortgages, and control at least 20% of the Common Stock of the
Surviving Entity; and
(c) the Company has delivered to the Agent for the
benefit of the Agent and the Banks an Officers' Certificate and an
Opinion of Counsel in form and substance reasonably satisfactory to the
Agent, each stating that such consolidation,
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merger, conveyance or transfer and such supplemental indenture comply
with this Section 8.04 and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Anything in this Section 8.04 to the contrary notwithstanding,
no such consolidation, merger, conveyance or transfer shall be entered into or
made by the Company with or to another corporation which has outstanding any
obligations secured by a Mortgage if, as a result of such consolidation, merger,
conveyance or transfer, any Principal Property of the Company or any Restricted
Subsidiary would be subjected to the lien of such Mortgage and such Mortgage is
not expressly excluded from the restrictions or permitted by the provisions of
Section 8.05 unless simultaneously therewith or prior thereto effective
provision shall be made for the securing of all the Loans and the Notes
(together with, if the Company shall so determine, any other Debt of the Company
now existing or hereafter created which is not subordinated to the Loans and the
Notes), equally and ratably with (or, at the option of the Company, prior to)
the obligations secured by such Mortgage by a lien upon such Principal Property.
8.05 Restrictions on Debt. The Company will not itself, and
will not permit any Subsidiary to, incur, issue, assume or guarantee any Debt,
whether or not evidenced by negotiable instruments or securities, or any notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed,
secured by any Mortgage on any Principal Property of the Company or any
Subsidiary, or on any shares of Capital Stock or Debt of any Subsidiary, without
effectively providing that the Loans and the Notes (together with, if the
Company shall so determine, any other Debt of the Company or such Subsidiary
then existing or thereafter created which is not subordinate to the Loans and
the Notes) shall be secured equally and ratably with (or, at the option of the
Company, prior to) such secured Debt, so long as such secured Debt shall be so
secured, and will not permit any Subsidiary to, incur, issue, assume or guaranty
any unsecured Debt or to issue any Preferred Stock, in each instance unless the
aggregate amount of (A) all such Debt, (B) the aggregate preferential amount to
which such Preferred Stock would be entitled on any involuntary distribution of
assets and (C) Attributable Debt of the Company and its Subsidiaries in respect
of sale and leaseback transactions (as defined in Section 8.06) would not exceed
10% of Consolidated Net Tangible Assets; provided, however, that this Section
8.05 shall not apply to, and there shall be excluded from Debt in any
computation under this Section 8.05:
(1) Debt secured by Mortgages on property of, or on
any shares of Capital Stock or Debt of, any corporation, and unsecured
Debt of any corporation, existing at the time such corporation becomes
a Subsidiary;
(2) Debt secured by Mortgages in favor of the Company
or any Subsidiary and unsecured Debt payable to the Company or any
Subsidiary;
(3) Debt secured by Mortgages in favor of the United
States of America, or any agency, department or other instrumentality
thereof, to secure progress, advance or other payments pursuant to any
contract or provision of any statute;
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(4) (a) Debt secured by Mortgages on property
(including, without limitation, shares of Capital Stock or Debt of any
Subsidiary held by the Company existing at the time of acquisition
thereof (including, without limitation, acquisition through merger or
consolidation)) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any Debt
incurred prior to, at the time of, or within 120 days after, the
acquisition of such property (or shares of Capital Stock or Debt) or
the completion of any such construction for the purpose of financing
all or any part of the purchase price or construction cost thereof, and
(b) unsecured Debt incurred to finance the acquisition of any property
(or shares of Capital Stock or Debt) other than shares of Capital Stock
or Debt of the Company, or to finance construction on property incurred
prior to, at the time of, or within 120 days after the later of the
acquisi tion of such property or the completion of construction
thereon;
(5) Debt secured by Mortgages securing obligations
issued by a state, territory or possession of the United States, or any
political subdivision of any of the foregoing or the District of
Columbia, to finance the acquisition of or construction on property,
and on which the interest is not, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by the
Internal Revenue Service, includable in gross income of the holder by
reason of Section 103(a)(1) of the Code (or any successor to such
provision) as in effect at the time of the issuance of such
obligations; and
(6) any extensions, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or in
part, of any Debt referred to in the foregoing clauses (1) to (5),
inclusive; provided, that (i) such extension, renewal or replacement,
in the case of Debt secured by a Mortgage, shall be limited to all or a
part of the same property, shares of Capital Stock or Debt that secured
the Mortgage extended, renewed or replaced (plus improvements on such
property), and (ii) the Debt secured by such Mortgage at such time is
not increased;
and provided, further, that this Section 8.05 shall not apply to any issuance of
Preferred Stock by a Subsidiary to the Company or another Subsidiary, provided
that such Preferred Stock shall not thereafter be transferable to any Person
other than the Company or a Subsidiary.
8.06 Restrictions on Sales and Leasebacks. The Company will
not itself, and will not permit any Restricted Subsidiary to, enter into any
transaction after the date hereof with any bank, insurance company, lender or
other investor, or to which any such bank, insurance company, lender or investor
is a party, providing for the leasing by the Company or a Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such bank, insurance company, lender or
investor, or to any person to whom funds have been or are to be advanced by such
bank, insurance company, lender or investor on the security of such Principal
Property (herein referred to as a "sale and leaseback transaction") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt with
respect to such transactions plus all Debt to which Section 8.05 is applicable
would not exceed 10% of Consolidated Net Tangible Assets. This covenant shall
not
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apply to, and there shall be excluded from Attributable Debt in any computation
under this Section 8.06, Attributable Debt with respect to any sale and
leaseback transaction if:
(1) the lease in such sale and leaseback transaction
is for a period, including renewal rights, of not in excess of three
years, or
(2) the Company or a Restricted Subsidiary, within
180 days after the sale or transfer shall have been made by the Company
or by a Restricted Subsidiary, applies an amount not less than the
greater of the net proceeds of the sale of the Principal Property
leased pursuant to such arrangement or the fair market value of the
Principal Property so leased at the time of entering into such
arrangement (as determined in any manner approved by the Board of
Directors) to (a) the retirement of Funded Debt of the Company ranking
on a parity with the Loans or the retirement of Funded Debt of a
Restricted Subsidiary; provided, however, that the amount to be applied
to the retirement of such Funded Debt of the Company or a Restricted
Subsidiary shall be reduced by (x) the principal amount of the Loans or
Notes (or other notes or debentures constituting such Funded Debt) that
are prepaid in accordance with Section 3.03 hereof or are delivered
within such 180-day period to the applicable trustee for retirement and
cancellation and (y) the principal amount of such Funded Debt, other
than items referred to in the preceding clause (x), voluntarily retired
by the Company or a Restricted Subsidiary within 180 days after such
sale; and provided, further, that, notwithstanding the foregoing, no
retirement referred to in this clause (a) may be effected by payment at
maturity or pursuant to any mandatory sinking funds payment or any
mandatory prepayment provision, or (b) the purchase of other property
which will constitute a Principal Property having a fair market value,
in the opinion of the Board of Directors of the Company, at least equal
to the fair market value of the Principal Property leased in such sale
and leaseback transaction less the amount of any Funded Debt retired
pursuant to clause (a) of this subsection, or
(3) such sale and leaseback transaction is entered
into prior to, at the time of, or within 180 days after the later of
the acquisition of the Principal Property or the completion of
construction thereon, or
(4) the lease in such sale and leaseback transaction
secures or relates to obligations issued by a state, territory or
possession of the United States, or any polit ical subdivision of any
of the foregoing, or the District of Columbia, to finance the
acquisition of or construction on property, and on which the interest
is not, in the opinion of tax counsel of recognized standing or in
accordance with a ruling issued by the Internal Revenue Service,
includable in gross income of the holder by reason of Section 103(a)(1)
of the Code (or any successor to such provision) as in effect at the
time of the issuance of such obligations, or
(5) such sale and leaseback transaction is entered
into between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries.
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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 in all other respects with all other Indebtedness
of the Company, except that any Debt of the Company, secured to the extent
permitted by clauses (1), (2), (3), (4)(a) or (5) of Section 8.05 hereof, and
any renewal of such Debt renewed and secured in accordance with clause (6) of
said Section 8.05, may, solely with respect to the collateral securing such
Debt, 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 Restricted Subsidiaries to, engage primarily in any business other than
that described in the first sentence of Section 7.17 hereof and the Company
shall, and shall cause each of its Restricted Subsidiaries to, maintain in full
force and effect each Bottle Contract disclosed in Schedule 5 hereof; provided,
however, that the Company may, in the normal course of its business, modify,
amend or replace any such Bottle Contract or any term thereof if, in the
discretion of the Company's Board of Directors, such modification, amendment or
replacement is desirable and in furtherance of the business of the Company and
would not have a material adverse effect on the business or financial condition
of the Company and its Subsidiaries, taken as a whole; and, provided further,
that notwithstanding the terms of this Section 8.08 the Company may, through
acquisition, either temporarily or permanently, acquire other businesses, assets
and properties, related or incidental to its business described in the first
sentence of Section 7.17 hereof.
8.09 New Revolving Credit Agreement. At a reasonable time
prior to the execution thereof, the Company shall deliver to the Agent and the
Banks a copy of any proposed New Revolving Credit Agreement.
Section 9. Events of Default. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
(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 30 days after the date
when due; or
(b) The Company or any Restricted Subsidiary 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 $1,000,000 (or its equivalent in other
currencies) or more and such failure shall continue after the expiry of
any grace period; or any event of 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 Indebtedness of the Company or any of its Restricted
Subsidiaries is declared to be or otherwise becomes due prior to its
stated maturity; provided, however, that if such default or
acceleration under such evidence of Indebtedness, indenture or other
instrument shall be cured by the
-37-
Company, or be waived by the holders of such indebtedness, in each case
as may be permitted by such evidence of Indebtedness, indenture or
other instrument, the Event of Default hereunder by reason of such
default shall be deemed likewise to have been thereupon cured or waived
; provided, further, that, for purposes of this Section 9(b), the term
"Indebtedness" shall in any event include the NationsBank Revolving
Credit Agreement, irrespective of the aggregate outstanding principal
amount of loans outstanding thereunder; or
(c) Any representation or warranty made herein by the Company
or any officer of the Company or in any certificate furnished to the
Agent or any Bank pursuant to the provisions hereof or thereof, shall
have been false or misleading as of the time made or furnished in any
material respect; or
(d) The Company shall default in the performance of any of its
obligations under Section 8.01(f), 8.02(a), 8.03 or 8.04, 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 60 days after written notice (by registered
or certified mail) of such default is given to the Company; or
(e) The Company or any Restricted Subsidiary shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or li quidator 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 con trovert 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 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 or any Restricted Subsidiary, 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 or such Subsidiary or
of all or any substantial part of its assets, or (iii) similar relief
in respect of the Company or such Subsidiary 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 or
any Subsidiary shall be entered in an involuntary case under any
relevant bankruptcy code or similar law (as now or hereafter in
effect); or
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(g) A final judgment or judgments for the payment of money in
excess of $10,000,000 in the aggregate shall be rendered by a court or
courts against the Company and/or any Restricted Subsidiary and the
same shall not be discharged (or bona fide negotiations in good faith
shall not be in progress seeking such discharge), or a stay of
execution thereof shall not be procured, within 60 days from the date
of entry thereof and the Company or the relevant Subsidiary shall not,
within said period of 60 days, or such longer period during which
execution of the same shall have been stayed, appeal there from and
cause the execution thereof to be stayed during such appeal; or
(h) The Coca-Cola Company shall fail to directly own, both
beneficially and of record and free and clear of all Mortgages, and
control at least 20% of the Common Stock of the Company and such
failure shall continue unremedied for a period of 90 days after the
date on which such failure occurred; or
(i) Any Trigger Event shall occur and shall continue for a
period of 40 days after the occurrence thereof;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (e), (f), or (i) of this Section 9, the Agent may, and upon instructions
from Banks holding 25% of the aggregate outstanding principal amount of the
Loans 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
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; and (3) in the case of an Event of Default referred to in
clause (i) of this Section 9, on the date 80 days after notice by the Agent to
the Company of the occurrence of such Event of Default, whether or not such
Event of Default shall then be continuing, the Commitments shall be
automatically cancelled and the principal amount then outstanding of, and
accrued interest on, the Loans and all other amounts payable by the Company
hereunder and under the Notes shall become automatically due and payable without
presentment, demand, protest or other formalities of any kind (other than the
notice expressly provided for above in this subclause (3)), all of which are
hereby expressly waived by the Company. In the event that the Agent gives notice
to the Company of the occurrence of an Event of Default referred to in clause
(i) of this Section 9 and, during the 80-day period following the giving of such
notice, another Event of Default shall occur under any of the clauses of this
Section 9, the Agent and the Banks shall have all remedies available to them in
respect of such subsequent Event of Default under subclause (1) or (2) of the
preceding sentence, under applicable law or otherwise without regard to such
80-day period.
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At any time after such a declaration of acceleration (but not
after an acceleration pursuant to clause (2) or (3) of the preceding sentence)
has been made and before a judgment or decree for payment of the money due has
been obtained by the Agent or any Bank, the Banks, by written notice to the
Company and the Agent, may (but shall not be obligated to) rescind and annul
such declaration and its consequences if:
(1) the Company has paid
(A) all overdue interest on all Loans and
Notes,
(B) to the extent that payment of such
interest is lawful, interest upon overdue principal and
interest at the rate or rates prescribed therefor in this
Agreement, and
(C) all sums paid or advanced by the Agent
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Agent, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment
of principal which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 11.04
hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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 specifi cally 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): (a) shall 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 mis-
-40-
conduct. 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. 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 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 Com pany 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
(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
-41-
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 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 and other Banks. Each Bank agrees
that it has, independently and without reliance on the Agent 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 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. The Agent shall
not 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, the
Agent shall not 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 its 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), 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
-42-
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.
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.
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.
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 the Banks, and of all other outside counsels to
the Agent and the Banks) in connection with (i) 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)
and (ii) any amendment, modification or waiver of any of the terms of this
Agreement or the Notes; (b) all reasonable out-of-pocket costs and expenses of
the Agent and each Bank (including, without limitation, the reasonable fees and
expenses of all outside counsels to the Agent or such Bank and all court costs)
in connection with the enforcement of or exercise or preservation of any rights
of the Agent or such Bank under this
-43
Agreement or the Notes; (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; (d) all normal administrative costs and expenses of the
Agent incident to the performance of its agency duties hereunder; and (e) all
reasonable fees and expenses of counsel to the Agent and the Banks in connection
with the syndication (whether by assignment or participation), after the date on
which the Loans are made, of its Commitment and Loans under this Agreement. The
Company hereby agrees to indemnify the Agent and each Bank and its respective
directors, officers, employees, counsels and agents from, and hold each of them
harmless 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, 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 (unless 25% of the Banks shall theretofore have given
notice to the Agent of their instructions to cancel the Commitments and/or
declare all amounts due hereunder immediately due and payable pursuant to
Section 9 hereof) waived, but only in writing signed by the Company, the Agent
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, or (d) 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.
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 without the
consent of the Company or the Agent; 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. Prior and as a condition
-44-
precedent to the effectiveness of any such assignment, the Bank that is the
assignor of such assignment shall pay to the Agent 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.
(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. 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'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 Loan or other amounts payable hereunder or under the Notes held by such
Bank, (ii) the reduction of any payment of principal thereof or other amounts
payable hereunder or under 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 other Affiliates in the possession of such
Bank (other than, without the prior written consent of the Company, any
information with respect to Piedmont Coca-Cola Bottling Partnership) 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.
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.
-45-
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 NORTH 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 OR 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
OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE
-46-
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 perfor ▇▇▇▇▇ 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,
-47-
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.
COCA-COLA BOTTLING CO. CONSOLIDATED
By
Title:
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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LTCB TRUST COMPANY, as Agent
By
Title:
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: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-49-
$ 40,000,000.00 LTCB TRUST COMPANY, as lender
By
Title:
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-50-
$ 33,000,000.00 SUNTRUST BANK, as lender
By
Title:
By
Title:
Lending Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 544210 TRUSCO INT ATL
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇
Vice President
-51-
$ 18,000,000.00 THE SAKURA BANK, LIMITED, as lender
By
Title:
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇. ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
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$ 15,000,000.00 COMMERZBANK AG, as lender
By
Title:
By
Title:
Lending Office:
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Address for Notices:
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Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
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$ 14,000,000.00 DG BANK, as lender
By
Title:
By
Title:
Lending Office:
DG Bank Building
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Address for Notices:
DG Bank Building
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
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$ 10,000,000.00 THE CHUO TRUST & BANKING CO., LTD., as lender
By
Title:
Lending Office:
2 World ▇▇▇▇▇ ▇▇▇▇▇▇
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Address for Notices:
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Vice President
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$ 10,000,000.00 CREDIT LYONNAIS, as lender
By
Title:
Lending Office:
One Peachtree Center
Suite 4400
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Address for Notices:
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇
Vice President
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$ 10,000,000.00 SOCIETE GENERALE, as lender
By
Title:
Lending Office:
4800 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
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Address for Notices:
4800 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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$ 10,000,000.00 THE CHIBA BANK, LTD., as lender
By
Title:
Lending Office:
1133 Avenue of the ▇▇▇▇▇▇▇▇
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Address for Notices:
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
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$ 10,000,000.00 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY, as lender
By
Title:
Lending Office:
One Ninety One Peachtree Tower
Suite 3600
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Address for Notices:
One Ninety One Peachtree Tower
Suite 3600
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Business Operations Department
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EXHIBIT A
PROMISSORY NOTE
$_____________ ____________, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, Coca-Cola Bottling Co. Consolidated, a
Delaware corporation (the "Company"), hereby promises to pay to the order of
[Name of Bank] (the "Bank"), for account of its Applicable Lending Office
provided for in the Loan Agreement referred to below, at account no. 04 203606
of LTCB Trust Company, as agent for the Bank (in such capacity, the "Agent") at
Bankers Trust Company, New York, New York, ABA No. ▇▇▇▇▇▇▇▇▇, ref.: "Coca-Cola
Bottling Co. Consolidated" (or at such other account or at such other place in
New York City as the Agent may notify the Company from time to time), the
principal sum of _____________ Dollars, in lawful money of the United States of
America and in immediately available funds, without set-off, counterclaim or
deduction of any kind, in two equal, consecutive installments, the first of
which shall be in the amount of _____________ ($_________) (or such lesser
amount as shall equal the full remaining principal amount of the Loans of the
Bank outstanding under the Loan Agreement) and shall be payable on ___________,
2002 (or if such day is not a Business Day, as defined in the Loan Agreement, on
the next succeeding Business Day, unless such next succeeding Business Day falls
in a different calendar month, in which case the next preceding Business Day),
and the second of which shall be in the amount of _______________
($_________)(or such other amounts as shall equal the full remaining principal
amount of the Loans of the Bank outstanding under the Loan Agreement) and shall
be payable on _________, 2003 (or if such day is not a Business Day, as defined
in the Loan Agreement, on the next succeeding Business Day, unless such next
succeeding Business Day falls in a different calendar month, in which case the
next preceding Business Day), and to pay interest on the unpaid principal amount
of this Note, at such office, in like money, manner and funds, for the period
commencing on the date of this Note until this Note shall be paid in full, at
the rates per annum and on the dates provided in the Loan Agreement.
The duration of each Interest Period for the Loan evidenced
hereby and the amount of each payment or prepayment made on account of the
principal thereof shall be recorded by the Bank on its books and, prior to any
transfer of this Note, endorsed by the Bank on the schedule attached hereto or
any continuation thereof; provided that no failure by the Bank to make, or delay
in making, such recording or endorsement shall affect the obligations of the
Company under this Note.
This Note is one of the Notes referred to in the Loan
Agreement dated as of November __, 1995 (as amended and in effect from time to
time, the "Loan Agreement") among the Company, the banks named therein
(including the Bank), and LTCB Trust Company, as Agent, providing for Loans to
the Company in Dollars, and evidences a Loan made by the Bank thereunder. Except
as otherwise expressly defined in this Note, capitalized terms used in this Note
have the respective meanings assigned to them in the Loan Agreement.
-1-
The Loan Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of the Loans upon the terms and conditions specified therein.
The Company agrees to pay all costs of collection in case
default is made in any payment under this Note.
The Company hereby waives diligence, presentment, protest and
all notices and demands whatsoever in respect of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
COCA-COLA BOTTLING CO.
CONSOLIDATED
By
Title:
-2-
LOAN
Amount Unpaid
Paid or Interest Principal Notation
Prepaid Period Amount Made By
-3-
EXHIBIT B
[Form of Opinion of Counsel to the Company]
_____________, 19__
To the Agent and Banks
parties to the Loan
Agreement referred
to below
Gentlemen:
We have acted as counsel to Coca-Cola Bottling Co.
Consolidated, a Delaware corporation (the "Company"), in connection with the
Loan Agreement dated as of November ___, 1995 (the "Loan Agreement") among the
Company, the banks named therein (the "Banks") and LTCB Trust Company as agent
for the Banks (in such capacity, the "Agent"), which provides, among other
things, for loans to be made to the Company in the aggregate principal amount of
up to $170,000,000. Capitalized terms used herein and not defined herein have
the meanings assigned to them by or pursuant to the terms of the Loan Agreement.
In rendering the opinion hereinafter set forth, we have
examined executed copies of the Loan Agreement and the Notes and we have
examined and relied upon originals or photo static or certified copies of such
corporate records, certificates of officers of the Company, certificates or
telexes of public officials, and such other agreements, documents and
instruments as we have deemed relevant and necessary as the basis for the
opinions hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures of all parties (other than those on behalf of the
Company to the extent we have witnessed them), the conformity to original
documents of all copies submitted to us as certified, conformed or photostatic
copies and the legal competence of each individual (other than officers of the
Company) executing any document. As to any opinion below relating to the
existence, qualification or good standing of any corporation in any
jurisdiction, our opinion relies entirely upon and is limited by those
certificates of public or governmental officials obtained in connection
therewith and delivered to you and assumes that such certificates were accurate
and properly given.
We have relied, in whole or in part, upon representations of
the management of the Company and have assumed, without independent inquiry, the
completeness and accuracy of those representations as to all matters of fact
(including factual conclusions and characterizations and descriptions of
purpose, intention or other state of mind) regarding the Company relevant to:
-1-
the opinion as to breach, default or creation of any Mortgage expressed in
paragraph 2; the opinion as to the execution and delivery of the Loan Agreement
and the Notes (only insofar as we have not witnessed the same, and not as to the
capacity of the signing officers) expressed in paragraph 3; the opinion
expressed in paragraph 4, other than as to proceedings of which we are aware;
and the facts supporting the legal conclusions in paragraphs 6 and 7.
The opinions herein are limited to the federal laws of the
United States, the laws of the States of Tennessee and North Carolina and the
corporate laws of the State of Delaware, and without limiting the foregoing, no
opinion is expressed herein with respect to the laws of any other jurisdiction
or with respect to the effect of any such laws on the matters with respect to
which opinions are given herein. We are opining solely on those items expressly
stated herein and no opinion should otherwise be implied from the text hereof.
Except as otherwise expressly provided herein, we are relying solely on the
written documents effectuating the transaction and are neither considering nor
expressing an opinion regarding the effects, if any, of any parol evidence, oral
or written, that a court might consider. When the opinions expressed herein are
subject to a knowledge standard, this means the actual knowledge of our
attorneys.
Each opinion set forth below relating to the enforceability of
any agreement or instrument against the Company is subject to the following
general qualifications:
(i) as to any instrument delivered by the Company, we assume
that the Company has received the agreed upon consideration therefor;
(ii) as to any agreement to which the Company is a party, we
assume that such agreement has been duly executed by and is the binding
obligation of each other party thereto;
(iii) the validity, binding nature or enforceability of any
obligation of the Company may be limited by bankruptcy, insolvency,
reorganization, moratorium, marshalling or other laws affecting the
enforcement generally of creditors' rights and remedies (including such
as may deny giving effect to waivers of debtors' or guarantors'
rights);
(iv) the validity, binding nature or enforceability of any
obligation or term of the Loan Agreement or the Notes may be subject to
general principles of equity, whether at law or in equity; and
(v) the acceptance by the North Carolina courts of the
jurisdiction of the courts of New York and the waiver of the right to
jury trial, and the necessity of the Agent or the Banks to qualify to
do business in North Carolina in order to enforce the Loan Agreement or
the Notes may be subject to the discretion of the court before which
any proceeding raising such issues may be brought.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, is duly
qualified to transact business in the States of Delaware, Tennessee, Virginia,
North Carolina and South Carolina and has the
-2-
necessary corporate power to make and perform the Loan Agreement and the Notes
and to borrow under the Loan Agreement.
2. The making and performance by the Company of the Loan
Agreement and the Notes, the borrowing of the full amount of the Commitments
under the Loan Agreement and the consummation of the other transactions
contemplated by each of the foregoing have been duly authorized by all necessary
corporate action (including, without limitation, any necessary shareholder
action); do not and will not violate any provision of its certificate of
incorporation or bylaws; do not violate any provision of law or regulation
applicable to the Company or any of its assets, revenues or other properties;
and do not and will not result in the breach of, or constitute a default or
require any consent under, or result in the creation of any Mortgage upon any of
the assets, revenues or other properties of the Company or any of its
Subsidiaries pursuant to, any indenture, loan or credit agreement, guaranty,
mortgage, security agreement, bond, note or other agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or its respective assets, revenues or other properties may be bound
where the occurrence of which either individually or in the aggregate could
reasonably be expected to have a material adverse effect on the business,
operations, properties, assets or financial condition of the Company.
3. Each of the Loan Agreement and the Notes has been duly
executed and delivered by the Company and, if North Carolina law were to be
applied to the Loan Agreement and the Notes notwithstanding the choice of New
York law to apply thereto, constitutes the legal, valid and binding obligation
of the Company enforceable in accordance with its respective terms.
4. Except as disclosed in Schedule 2 to the Loan Agreement,
there are no legal or arbitral proceedings, and no proceedings by or before any
governmental or regulatory authority or agency, pending or (to the best of our
knowledge) threatened against or affecting the Company or any Subsidiary, or any
properties or rights of the Company or any Subsidiary, which could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under the Loan Agreement or the Notes.
5. No authorizations, consents, approvals or licenses of, or
filings or registrations with, any governmental or regulatory authority or
agency are required in connection with the execution, delivery or performance by
the Company of the Loan Agreement or the Notes.
6. Neither the Company nor any of its Subsidiaries is, nor is
any of them "controlled by", an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
7. Neither the Company nor any of its Subsidiaries is a
"holding company", nor is any of them a "subsidiary company" of a "holding
company", within the meaning of the
-3-
Public Utility Holding Company Act of 1935, as amended, nor is any of them a
public utility under any North Carolina law.
8. In accordance with current interpretations of applicable
North Carolina law and assuming that the Agent and each Bank only have executed,
delivered and performed under the Loan Agreement and the Notes and have taken no
other actions pursuant to the transactions herein discussed or otherwise which
would require them to qualify to do business in the State of North Carolina, in
order for the Agent or any Bank to enforce its rights under the Loan Agreement
and the Notes in the North Carolina courts, it is not necessary for the Agent or
any Bank to qualify to do business, as a foreign bank or otherwise, in the State
of North Carolina, nor will any of them be deemed to be doing business in North
Carolina solely by reason of the execution, delivery or performance by any party
of the Loan Agreement or the Notes.
9. In accordance with current interpretations of applicable
North Carolina law, the choice of New York law to govern the Loan Agreement and
the Notes is a valid choice of law and should be given effect by the courts of
North Carolina.
We point out the enforceability of the indemnity provisions
contained in the Loan Agreement may be limited by applicable securities laws or
public policy.
The opinion set forth above is solely for the benefit of the
Agent and the Banks and that of their respective counsels, successors and
assigns, may not be quoted, circulated or published, in whole or in part, or
furnished to or relied upon in any manner by any other Person without our prior
written authorization. Furthermore, this opinion is given to you as of the date
hereof and we assume no obligation to advise you of changes that may hereafter
be brought to our attention.
Very truly yours,
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