Exhibit 4.1
EXECUTION COPY
AMENDMENT NO. 1, dated as of July 22, 1997, to the LOAN AGREEMENT,
dated as of November 20, 1995 (the "Loan Agreement"), 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
therein 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, pursuant to the Loan Agreement, the Banks have made loans to
the Borrower in an aggregate principal amount of $170,000,000;
WHEREAS, the Company has requested that the Banks agree to extend the
maturity of said loans; and
WHEREAS, the Banks are willing to extend such maturity on the terms
and conditions set forth in this Amendment No. 1;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. Certain Defined Terms. Except as otherwise expressly
provided in this Amendment No. 1, capitalized terms defined in the Loan
Agreement and used herein shall have their respective defined meanings when used
herein.
SECTION 2. Amendments. Effective upon the Amendment No. 1 Effective
Date (as defined in Section 3 of this Amendment No. 1), the Loan Agreement is
hereby amended as follows:
1. In Section 1.01 of the Loan Agreement, the definition of the term
"Indebtedness" shall be amended to add to the end of clause (a) thereof but
before the semicolon the following phrase:
, except that indebtedness and obligations of the Company or any
Subsidiary of the type described in this clause (a), to the extent
held by the Company or another Subsidiary, shall not be included in
the definition of "Indebtedness" for any purpose of this Agreement
other than Sections 7.11 and 8.07 hereof
2. In Section 1.01 of the Loan Agreement, the definition of the term
"Interim Maturity Date" shall be amended to read in its entirety as follows:
"Interim Maturity Date" shall mean July 22, 2004; 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
Day falls in a subsequent
calendar month, in which case the Interim Maturity Date shall be the
next preceding Business Day.
3. In Section 1.01 of the Loan Agreement, the definition of the term
"Loan Documents" shall be amended to read in its entirety as follows:
"Loan Documents" shall mean this Agreement (including, without
limitation, Amendment No. 1 hereto), the Notes, the fee letter dated
November 20, 1995 between the Agent and the Company, and the Letter of
Authorization dated April 11, 1997 between the Agent and the Company.
4. In Section 1.01 of the Loan Agreement, the definition of the term
"Maturity Date" shall be amended to read in its entirety as follows:
"Maturity Date" shall mean July 22, 2005; 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 Day
falls in a subsequent calendar month, in which case the Maturity Date
shall be the next preceding Business Day.
5. In Section 1.01 of the Loan Agreement, the definition of "Voting
Shares" shall be amended to read in its entirety as follows:
"Voting Shares" shall mean (a) with respect to a corporation,
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 or similar governing body thereof
(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); (b) with respect to a limited
partnership or a general partnership, the interest of each general
partner therein; (c) with respect to a limited liability company, such
membership interests as are empowered either to vote with respect to
the management of such limited liability company or to elect or
appoint the manager of the limited liability company; and (d) with
respect to any other type of entity, such voting interests therein as
may be comparable to the Capital Stock of a corporation of the class
or classes described in clause (a) of this definition (irrespective of
whether at the time interests of any other class or classes shall have
or might have voting power by reason of the happening of any
contingency).
6. In Section 7.02 of the Loan Agreement, each reference to "January
2, 1995" shall be amended to read "December 29, 1996", and each reference to
"July 2, 1995" shall be amended to read "March 30, 1997".
7. Section 7.01 of the Loan Agreement shall be amended to read
in its entirety as follows:
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7.01 Existence. Each of the Company and each of its Subsidiaries:
(a) if it is a corporation, is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
and if it is any other type of entity, is duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it has been established; (b) has all requisite 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) if it is (1) a limited partnership or a general
partnership, either it or its general partner or general partners (as
required by the law of each applicable jurisdiction) is qualified to
do business in all jurisdictions in which the nature of the business
conducted by the Company or such Subsidiary, as the case may be, makes
such qualification necessary, and (2) any other type of business
entity (including, without limitation, a corporation or a limited
liability company), it is qualified to do business in all
jurisdictions in which the nature 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.
8. Sections 7.03, 7.08, 7.10, 7.15, 7.18 and 7.19 of the Loan
Agreement are hereby replaced in their entirety as follows:
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.
7.08 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.
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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.
7.15 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. Xxxxx Xxxxxxxx, Xx., J. Xxxxx Xxxxxxxx, III
and Xxxx X. Xxxxxx, in his capacity as co-trustee of certain trusts
holding shares of the 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. Xxxxx Xxxxxxxx, III, for life, and thereafter to J.
Xxxxx Xxxxxxxx, Xx. Schedule 4 hereto contains a true and complete (in
all material respects) description of the Voting Agreement.
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.
9. In Section 8.01(a) of the Loan Agreement, the words "the chief
financial officer of the Company" shall be amended to read "the chief financial
officer or (if authorized by the Company for such function) the vice
president/treasurer of the Company".
10. In Section 8.01(c) of the Loan Agreement, the words "the chief
financial officer of the Company" shall be amended to read "the chief financial
officer or (if authorized by the Company for such function) the vice
president/treasurer of the Company".
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11. The heading of Section 8.02 of the Loan Agreement shall be changed
to read "Legal Existence, Etc.", and in clause (a) of said Section, the words
"its corporate existence" shall be amended to read "its legal existence as a
corporation, general partnership, limited partnership or limited liability
company, as the case may be for the Company or such Subsidiary,".
12. The proviso to the first sentence of Section 11.06(b) of the Loan
Agreement shall be amended to read in its entirety as follows:
provided that any assignment of less than the full Commitment, Loans
or Notes held by a Bank, if made to a Person that was not a Bank (or
an affiliate of a Bank) immediately prior to such assignment, shall be
in an aggregate principal amount of not less than $10,000,000.
13. Schedules 1, 2, 3, 4, 5 and 6 to the Loan Agreement are hereby
replaced by Schedules 1, 2, 3, 4, 5, and 6, respectively, to this Amendment No.
1.
14. Each reference in the Loan Agreement to "this Agreement" and the
words "hereof", "herein", "hereto" and the like shall be deemed to refer to the
Loan Agreement as amended by this Amendment No. 1, but references to "the date
hereof" and "the date of this Agreement" shall continue to refer to the date of
the Loan Agreement (being November 20, 1995), except that in the definition of
"Common Stock" in Section 1.01, and in Sections 7.10, 7.18 and 7.19 of the Loan
Agreement, references to "the date hereof" shall refer to the date of this
Amendment No. 1, and in the definition of "Restricted Subsidiary" in Section
1.01, the last reference to "the date hereof" shall refer to the date of this
Amendment No. 1.
SECTION 3. Conditions Precedent. The effectiveness of the amendments
set forth in Section 2 of this Amendment No. 1 is subject to the fulfillment of
the following conditions precedent to the satisfaction of the Agent Bank (the
date on which all of the foregoing conditions are so fulfilled being called the
"Amendment No. 1 Effective Date"):
A. The Agent Bank shall have received each of the following documents,
each of which shall be satisfactory to the Agent in form and substance, and
(except for the New Notes, as defined below) shall be accompanied by sufficient
copies for the Agent and each Bank.
1. Counterparts of this Agreement which, when taken together, bear the
signatures of the Company, the Agent and all of the Banks.
2. New Notes in substantially the form of Exhibit A to this Amendment
No. 1, duly executed and delivered by the Company to the order of each Bank
and otherwise appropriately completed (said Notes being referred to in this
Amendment No. 1 as the "New Notes").
3. An Officers' Certificate (which shall include the signature thereon
of the Secretary of the Company), dated the Amendment No. 1 Effective Date,
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
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Amendment No. 1, the Loan Agreement as amended hereby and the New
Notes 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). The foregoing corporate documents and/or
corporate action shall include evidence of the authority of the vice
president/treasurer of the Company to issue the certificates contemplated
by Sections 8.01(a) and 8.01(c) of the Loan Agreement as amended hereby.
4. 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 to
the Loan Agreement 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.
5. An Officers' Certificate (which shall include the signature thereon
of the Secretary of the Company), dated the Amendment No. 1 Effective Date,
in respect of each of the officers who is authorized to sign this Amendment
No. 1 and the New Notes on its behalf.
6. An Officers' Certificate to the effect set forth in Section 3(B)
hereof.
7. An opinion of Xxxx, Xxxxxxx & Xxxxxxxx, special counsel to the
Company, substantially in the form of Exhibit B hereto.
8. Evidence of the payment to the Agent of all fees described in the
Letter of Authorization dated April 11, 1997 between the Agent and the
Company.
9. An Officers' Certificate stating that the Senior Debt Rating of the
Company by Xxxxx'x is at least Baa3 and by S&P is at least BBB-.
10. Such other opinions and other documents as the Agent or any Bank
may reasonably request.
B. On and as of the Amendment No. 1 Effective Date, and both before
and after giving effect to the amendments provided for in Section 2 hereof, 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
the Agreement as remade pursuant in Section 4 of this Amendment No.
1 shall be true and correct in all material respects.
SECTION 4. Representations and Warranties. The Borrower hereby
remakes, on and as of the Amendment No. 1 Effective Date, both before and after
giving effect to each of the amendments provided for in this Amendment No. 1,
each of the representations and warranties of the Borrower in the Loan Agreement
as amended hereby and in each other document referred to herein or therein.
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SECTION 5. Miscellaneous.
1. Acknowledgment of Principal Amount of Debt. The Company hereby
acknowledges that the Banks have made Loans to it under the Loan Agreement in
the aggregate principal amount of $170,000,000, all of which aggregate principal
amount is outstanding and unpaid on the date hereof.
2. Governing Law. This Amendment No. 1 and the Loan Agreement as
amended hereby shall be governed by, and construed in accordance with, the laws
of the State of New York.
3. Counterparts. This Amendment No. 1 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 executed this Amendment No. 1 by
signing any such counterpart.
4. Full Force and Effect. Except as expressly provided in Section 2 of
this Amendment No. 1, the Loan Agreement shall remain unmodified and in full
force and effect.
5. Expenses. Without limiting the obligations of the Company under the
Loan Agreement, the Company agrees to pay and to reimburse the Agent for paying,
forthwith upon any request therefor by the Agent, all fees and disbursements of
special counsel to the Agent in connection with the preparation, execution,
delivery and administration of this Amendment No. 1, the Loan Agreement as
amended hereby and each of the other documents contemplated hereby and thereby
(including, without limitation, all drafts of documents, whether or not
utilized) and the consummation of the transactions contemplated hereby and
thereby.
6. New Notes. The Company acknowledges and agrees that the New Notes
are "Notes" as defined in the Loan Agreement as amended hereby, and are subject
to all the benefits thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 1 as of the day and year first above written.
COCA-COLA BOTTLING CO. CONSOLIDATED
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
LTCB TRUST COMPANY, as Agent
By /s/ Xxxx X. Xxxx
Title: Senior Vice President
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LTCB TRUST COMPANY, as lender
By /s/ Xxxx X. Xxxx
Title: Senior Vice President
SUNTRUST BANK, as lender
By /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxx
Title: Group Vice President
THE SAKURA BANK, LIMITED, as lender
By /s/ Xxxxxxxxx Xxxxx
Title: Joint General Manager
DEUTSCHE GENOSSENSCHAFTSBANK, as lender
By /s/ Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
By /s/ Xxxxx Xxxx Xxxxxx, Jr.
Title: Assistant Vice President
CREDIT LYONNAIS CAYMAN ISLANDS
BRANCH, as lender
By /s/ Xxxxx X. Cause
Title: First Vice President
SOCIETE GENERALE, as lender
By /s/ Xxxxxxx X. Xxxxx
Title: Vice President
THE CHIBA BANK, LTD., as lender
By /s/ Xxxxxxxxx Xxx
Title: General Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY, as lender
By /s/ Xxxxx Xxxx
Title: General Manager
