Exhibit 4.1
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COCA-COLA BOTTLING CO. CONSOLIDATED
Issuer
$17,000,000
5.75% Installment Notes Due 2006
INDENTURE
Dated as of _________ __, 1999
FIRST UNION NATIONAL BANK
Trustee
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CROSS-REFERENCE TABLE
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TIA Section Indenture Section
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310(a)(1) 6.10
(a)(2) 6.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 6.10
(b) 6.08; 6.10
(c) N.A.
311(a) 6.11
(b) 6.11
(c) N.A.
312(a) 2.03
(b) 8.03
(c) 8.03
313(a) 6.06
(b)(1) N.A.
(b)(2) 6.06
(c) 8.02
(d) 6.06
314(a) 4.04; 8.02
(b) N.A.
(c)(1) 8.04
(c)(2) 8.04
(c)(3) N.A.
(d) N.A.
(e) 8.05
(f) N.A.
315(a) 6.01
(b) 6.05; 8.02
(c) 6.01
(d) 6.01
(e) 5.11
316(a)(last sentence) 8.06
(a)(1)(A) 5.05
(a)(1)(B) 5.04
(a)(2) N.A.
(b) 5.07
316(c) 7.04
317(a)(1) 5.08
(a)(2) 5.09
(b) 2.04
318(a) 8.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE........................................1
SECTION 1.01. Definitions........................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..................4
SECTION 1.03. Rules of Construction..............................................4
ARTICLE 2 THE INSTALLMENT NOTES.............................................................5
SECTION 2.01. Formand Dating.....................................................5
SECTION 2.02. Execution and Authentication.......................................6
SECTION 2.03. Registrar and Paying Agent.........................................7
SECTION 2.04. Paying Agent To Hold Money in Trust................................8
SECTION 2.05. Transfer and Exchange..............................................8
SECTION 2.06. Replacement Installment Notes......................................8
SECTION 2.07. Outstanding Installment Notes......................................9
SECTION 2.08. Cancellation; Set-Off Rights.......................................9
SECTION 2.10. Payment of Principal..............................................10
SECTION 2.11. Transfers, etc....................................................10
ARTICLE 3 REDEMPTION.......................................................................10
SECTION 3.01. Notices to Trustee................................................10
SECTION 3.02. Notices to Holders................................................11
SECTION 3.03. Deposit of Redemption Price.......................................12
SECTION 3.04. Partial Redemption of an Installment Note.........................12
ARTICLE 4 COVENANTS........................................................................12
SECTION 4.01. Payment of Installment Notes......................................12
SECTION 4.02. Maintenance of Office or Agency...................................12
SECTION 4.03. Money for the Installment Notes to be Held in Trust...............13
SECTION 4.04. TIA Reports.......................................................13
SECTION 4.05. Further Instruments and Acts......................................13
ARTICLE 5 DEFAULTS AND REMEDIES............................................................13
SECTION 5.01. Events of Default.................................................13
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SECTION 5.02. Acceleration......................................................14
SECTION 5.03. Other Remedies....................................................14
SECTION 5.04. Waiver of Past Defaults...........................................15
SECTION 5.05. Control by Majority...............................................15
SECTION 5.06. Limitation on Suits...............................................15
SECTION 5.07. Rights of Holders To Receive Payment..............................16
SECTION 5.08. Collection Suit by Trustee........................................16
SECTION 5.09. Trustee May File Proofs of Claim..................................16
SECTION 5.10. Priorities........................................................16
SECTION 5.11. Undertaking for Costs.............................................17
ARTICLE 6 TRUSTEE..........................................................................17
SECTION 6.01. Duties of Trustee.................................................17
SECTION 6.02. Rights of Trustee.................................................18
SECTION 6.03. Individual Rights of Trustee......................................19
SECTION 6.04. Trustee's Disclaimer..............................................19
SECTION 6.05. Notice of Defaults................................................19
SECTION 6.06. Reports by Trustee to Holders.....................................19
SECTION 6.07. Compensation and Indemnity........................................20
SECTION 6.08. Replacement of Trustee............................................20
SECTION 6.09. Successor Trustee by Merger.......................................21
SECTION 6.10. Eligibility; Disqualification.....................................22
SECTION 6.11. Preferential Collection of Claims Against Issuer..................22
SECTION 6.12. Trustee's Application for Instructions from the Issuer............22
ARTICLE 7 AMENDMENTS.......................................................................22
SECTION 7.01. Without Consent of Holders........................................22
SECTION 7.02. With Consent of Holders...........................................23
SECTION 7.03. Compliance with Trust Indenture Act...............................23
SECTION 7.04. Revocation and Effect of Consents and Waivers.....................23
SECTION 7.05. Notation on or Exchange of Installment Notes......................24
SECTION 7.06. Trustee To Sign Amendments........................................24
SECTION 7.07. Payment for Consent...............................................24
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ARTICLE 8 MISCELLANEOUS....................................................................24
SECTION 8.01. Trust Indenture Act Controls......................................24
SECTION 8.02. Notices...........................................................25
SECTION 8.03. Communication by Holders with Other Holders.......................25
SECTION 8.04. Certificate and Opinion as to Conditions Precedent................26
SECTION 8.05. Statements Required in Certificate or Opinion.....................26
SECTION 8.06. When Installment Notes Disregarded................................26
SECTION 8.07. Rules by Trustee, Paying Agent and Registrar......................26
SECTION 8.08. Legal Holidays....................................................27
SECTION 8.09. Governing Law.....................................................27
SECTION 8.10. No Recourse Against Others........................................27
SECTION 8.11. Successors, Assigns and Transferees...............................27
SECTION 8.12. Multiple Originals................................................27
SECTION 8.13. Table of Contents, Headings.......................................27
SECTION 8.14. Severability......................................................28
SECTION 8.15. Further Instruments and Acts......................................28
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EXHIBITS
Exhibit A - Form of Installment Note (Included as Annex B to the
Proxy Statement/Prospectus forming a part of this
Registration Statement)
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INDENTURE
INDENTURE dated as of _________ __, 1999, between Coca-Cola Bottling Co.
Consolidated, a Delaware corporation (the "Issuer"), and First Union National
Bank, a national banking association (the "Trustee").
RECITALS
The Issuer has duly authorized the creation and issue of its 5.75%
Installment Notes due 2006 (the "Installment Notes") of substantially the tenor
and amount hereinafter set forth and, to provide therefor, the Issuer has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Installment Notes, when executed by the
Issuer and authenticated and delivered by the Trustee hereunder and duly issued
by the Issuer, the valid obligations of the Issuer, and to make this Indenture a
valid instrument of the Issuer, in accordance with their respective terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that for and in consideration
of the premises and the purchase of the Installment Notes by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Installment Notes, as follows;
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person, including any director or executive officer
of such specified Person.
"Agreement and Plan of Merger" means the Agreement and Plan of Merger,
dated as of March 26, 1999, by and among the Issuer, Sumter Merger Corporation,
Inc. and Carolina Coca-Cola Bottling Company, Inc.
"Board of Directors" means, as the context requires, the Board of
Directors or comparable governing body of the Issuer, or any committee thereof
duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of a resolution certified pursuant to an
Officers' Certificate to have been duly adopted by the Board of Directors of the
Issuer, and to be in full force and effect, and delivered to the Trustee.
"Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of Charlotte, North Carolina or is a day
on which banking institutions therein located are authorized or required by law
or other governmental action to close.
"Corporate National Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office is, at the date of execution of this
Indenture, located at 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Corporate Trust Group (Coca-Cola Bottling Co.
Consolidated 5.75% Installment Notes Due 2006).
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Default Rate" means eight percent (8%) per annum.
"Defaulted Interest" means any interest on any Installment Note which is
payable, but is not paid or duly provided for, on any Interest Payment Date.
"Event of Default" has the meaning assigned to it in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date.
"Holder" or "Noteholder" means the Person in whose name an Installment
Note is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Installment Notes" has the meaning assigned to it in the recitals
hereto.
"Interest Payment Date" means each quarterly Interest Payment Date on
March 31, June 30, September 30, and December 31 of each year, commencing June
30, 1999, in respect of the Installment Notes.
"Interest Record Date" means, for the interest payable on any Interest
Payment Date, the date specified in Section 2.09 hereof.
"Issue Date" means the date on which the Installment Notes are
originally issued.
"Issuer" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
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"Issuer Order" means a written order signed in the name of the Issuer by
(i) the Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer or any Vice President of the Issuer and (ii) the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Issuer, and
delivered to the Trustee.
"Legal Holiday" has the meaning assigned to it in Section 8.08.
"Legend" has the meaning assigned to it in Section 2.01.
"Note Register" has the meaning assigned to it in Section 2.03.
"Notice of Default" has the meaning assigned to it in Section 5.01.
"Officer" means the Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer, any Vice President, Treasurer, or Secretary
of the Issuer.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee.
"Paying Agent" has the meaning assigned to it in Section 2.03.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal Payment Date" means each Principal Payment Date on December
31, 2001, December 31, 2002, December 31, 2003, December 31, 2004 and _________
__, 2006, in respect of the Installment Notes.
"Principal Record Date" means, for the principal payable on any
Principal Payment Date, the date specified in Section 2.10 hereof.
"Redemption Date" means, when used with respect to any Installment Note
or part thereof to be redeemed hereunder, the date fixed for redemption of such
Installment Note pursuant to the terms of the Installment Notes and this
Indenture.
"Redemption Price" means, when used with respect to any Installment Note
or part thereof to be redeemed hereunder, the price fixed for redemption of such
Installment Note pursuant to the terms of the Installment Notes and this
Indenture, plus accrued and unpaid interest thereon, if any, to the Redemption
Date.
"Registrar" has the meaning assigned to it in Section 2.03.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders' Representatives" means those persons appointed as such
pursuant to Section 7.13 of the Agreement and Plan of Merger.
"Subsidiary" means, in respect of any Person, any corporation, limited
liability company, association, partnership or other business entity of which
more than fifty percent (50%) of the total voting stock or other interests
(including partnership and membership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer in the Corporate National Trust Office
of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Uniform Commercial Code" means the North Carolina Uniform Commercial
Code in effect from time to time.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes; "indenture security holder"
means a Noteholder; "indenture to be qualified" means this Indenture; "indenture
trustee" or "institutional trustee" means the Trustee;
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
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(a) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(b) "or" is not exclusive;
(c) "including" means including without limitation; and
(d) words in the singular include the plural and words in the plural
include the singular.
ARTICLE 2
THE INSTALLMENT NOTES
SECTION 2.01. Form and Dating.
(a) The Installment Notes and the certificate of authentication of the
Trustee thereon shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made a part of this Indenture.
(b) The Installment Notes may have such letters, numbers or other marks
of identification and such legends and endorsements, stamped, printed,
lithographed or engraved thereon, (i) as the Issuer may deem appropriate and as
are not inconsistent with the provisions of this Indenture, (ii) as may be
required to comply with this Indenture or any law and (iii) as may be necessary
to conform to customary usage. Each Installment Note shall be dated the date of
its authentication by the Trustee. The Installment Notes shall be issued only in
fully registered form, without coupons.
(c) The following legends (the "Legend") shall appear on each
Installment Note:
THIS INSTALLMENT NOTE IS SUBJECT TO THE TERMS OF AN INDENTURE DATED
_________ __, 1999, (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, THE
"INDENTURE") BETWEEN COCA-COLA BOTTLING CO. CONSOLIDATED AND FIRST UNION
NATIONAL BANK, AS TRUSTEE (THE "TRUSTEE"). THE TERMS OF THIS INSTALLMENT
NOTE INCLUDE THOSE STATED IN THE INDENTURE AND THOSE MADE PART OF THE
INDENTURE BY REFERENCE TO THE TRUST INDENTURE ACT OF 1939, AS AMENDED
(THE "TRUST INDENTURE ACT").
THIS INSTRUMENT IS REGISTERED AS TO BOTH PRINCIPAL AND INTEREST WITH THE
ISSUER AND TRANSFER HEREOF MAY BE EFFECTED ONLY BY THE SURRENDER OF THE
OLD INSTRUMENT AND THE ISSUANCE OF A NEW INSTRUMENT BY THE ISSUER TO THE
NEW HOLDER. THE HOLDER HEREOF IS HEREBY NOTIFIED THAT
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THIS INSTRUMENT IS NOT LISTED NOR IS IT READILY TRADABLE ON ANY
ESTABLISHED SECURITIES MARKET.
Additionally, the Installment Notes issued to certain Holders shall bear
the legends required by those Affiliate Agreements entered into pursuant Section
8.3(f) of the Agreement and Plan of Merger, copies of which have been delivered
to the Trustee prior to the date hereof.
SECTION 2.02. Execution and Authentication. The Installment Notes will
be issued in one series. The aggregate principal amount of Installment Notes
outstanding at any time shall not exceed $17,000,000 except as provided in
Section 2.06 hereof. The Installment Notes shall be executed on behalf of the
Issuer by its Chief Executive Officer, President, Chief Operating Officer,
Treasurer or any Vice President, and shall be attested by the Issuer's Secretary
or one of its Assistant Secretaries, in each case by manual or facsimile
signature.
The Installment Notes shall be authenticated by manual signature of an
authorized signatory of the Trustee and shall not be valid for any purpose
unless so authenticated.
In case any officer of the Issuer whose signature shall have been placed
upon any of the Installment Notes shall cease to be such officer of the Issuer
before authentication of such Installment Notes by the Trustee and the issuance
and delivery thereof, such Installment Notes may, nevertheless, be authenticated
by the Trustee and issued and delivered with the same force and effect as though
such Person had not ceased to be such an officer of the Issuer.
The Trustee shall, upon receipt of an Issuer Order requesting such
action, authenticate Installment Notes for original issue up to the aggregate
principal amount not to exceed $17,000,000 outstanding at any given time. Such
Issuer Order shall specify the amount of Installment Notes to be authenticated
and the date on which the Installment Notes are to be authenticated and shall
further provide instructions concerning registration, amounts for each Holder
and delivery.
An Installment Note shall not be valid or entitled to any benefits under
this Indenture or obligatory for any purpose unless executed by the Issuer and
authenticated by the manual signature of one of the authorized signatories of
the Trustee as provided herein. Such signature upon any Installment Note shall
be conclusive evidence, and the only evidence, that such Installment Note has
been duly authenticated and delivered under this Indenture and is entitled to
the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Issuer to authenticate the Installment Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate the Installment Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. Any
authenticating agent of the Trustee shall have the same rights hereunder as any
Registrar or Paying Agent.
Notwithstanding the foregoing, if any Installment Note shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such
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Installment Note to the Trustee for cancellation as provided in Section 2.10
together with a written statement (which need not be accompanied by an Opinion
of Counsel) stating that such Installment Note has never been issued and sold by
the Issuer, for all purposes of this Indenture such Installment Note shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
SECTION 2.03. Registrar and Paying Agent. The Issuer shall maintain,
pursuant to Section 4.02 hereof, an office or agency where the Installment Notes
may be presented for registration of transfer or for exchange (the "Registrar"),
an office or agency where Installment Notes may be presented for payment (the
"Paying Agent") and an office or agency where notices and demands to or upon the
Issuer in respect of the Installment Notes and this Indenture may be served.
The Issuer shall cause to be kept at such office a register (the "Note
Register") in which the Issuer shall provide for the registration of Installment
Notes and of transfers of Installment Notes entitled to be registered or
transferred as provided herein. The Trustee, at its Corporate National Trust
Office, is initially appointed Registrar for the purpose of registering
Installment Notes and transfers of Installment Notes as herein provided. The
Issuer may, upon written notice to the Trustee, change the designation of the
Trustee as Registrar and appoint another Person to act as Registrar for purposes
of this Indenture. If any Person other than the Trustee acts as Registrar, the
Trustee shall have the right at any time, upon reasonable notice, to inspect or
examine the Note Register and to make such inquiries of the Registrar as the
Trustee shall in its discretion deem necessary or desirable in performing its
duties hereunder. Furthermore, the Issuer shall require such Registrar to
provide to the Trustee at intervals of not more than six months, the names and
addresses of the Noteholders.
The Issuer shall enter into an appropriate agency agreement with any
Person designated by the Issuer as Registrar or Paying Agent that is not a party
to this Indenture, which agreement shall incorporate the provisions of the TIA
and shall implement the provisions of this Indenture that relate to such
Registrar or Paying Agent. Prior to the designation of any such Person, the
Issuer shall, by written notice (which notice shall include the name and address
of such Person), inform the Trustee of such designation. The Trustee, at its
Corporate National Trust Office, is initially appointed Paying Agent under this
Indenture. If the Issuer fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
Subject to Section 2.05 hereof, upon surrender for registration of
transfer of any Installment Note at an office or agency of the Issuer designated
for such purpose, the Issuer shall execute, and the Trustee shall authenticate
and make available for delivery, in the name of the designated transferee or
transferees, one or more new Installment Notes of any authorized denomination or
denominations, of like tenor and aggregate principal amount, all as requested by
the transferor.
Every Installment Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer, the Trustee or the
Registrar) be duly endorsed, or be accompanied by a duly executed instrument of
transfer in form satisfactory to the Issuer, the
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Trustee and the Registrar, by the Holder thereof or such Holder's attorney duly
authorized in writing.
SECTION 2.04. Paying Agent To Hold Money in Trust. On or prior to each
due date of payment of principal or interest with respect to any Installment
Note, the Issuer shall deposit with the Paying Agent a sum sufficient to pay
such principal or interest when so becoming due.
The Issuer shall require each Paying Agent (other than the Trustee) to
agree in writing that such Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by such Paying Agent for the payment of
principal or interest with respect to the Installment Notes, shall notify the
Trustee of any default by the Issuer in making any such payment and at any time
during the continuance of any such default, upon the written request of the
Trustee, shall forthwith pay to the Trustee all sums held in trust by such
Paying Agent.
The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by such Paying
Agent. Upon complying with this Section 2.04, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05. Transfer and Exchange.
(a) A Holder may transfer an Installment Note only upon the surrender of
such Installment Note for registration of transfer. No such transfer shall be
effected until, and the transferee shall succeed to the rights of a Holder only
upon, final acceptance and registration of the transfer in the Note Register by
the Registrar. When Installment Notes are presented to the Registrar with a
request to register the transfer of, or to exchange, such Installment Notes, the
Registrar shall register the transfer or make such exchange as requested if any
applicable requirements hereunder or under the Installment Note are satisfied.
To permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate and deliver Installment Notes at the Registrar's
request.
(b) No service charge shall be made for any registration of transfer or
exchange of Installment Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer of Installment Notes.
(c) All Installment Notes issued upon any registration of transfer or
exchange pursuant to the terms of this Indenture will evidence the same debt and
will be entitled to the same benefits under this Indenture as the Installment
Notes surrendered for such registration of transfer or exchange.
SECTION 2.06. Replacement Installment Notes. If a mutilated Installment
Note is surrendered to the Registrar or if the Holder of an Installment Note
claims that the Installment Note has been lost, destroyed or wrongfully taken,
the Issuer shall issue and the Trustee shall authenticate a replacement
Installment Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
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Trustee. If required by the Trustee or the Issuer, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Issuer and the Trustee to
protect the Issuer, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Installment Note is
replaced. The Issuer and the Trustee may charge the Holder for their expenses in
replacing a Installment Note.
Every replacement Installment Note is an additional obligation of the
Issuer.
SECTION 2.07. Outstanding Installment Notes. Installment Notes
outstanding at any time are all Installment Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
redeemed pursuant to Article 3 and those described in this Section as not
outstanding. An Installment Note does not cease to be outstanding because the
Issuer or an Affiliate of the Issuer holds the Installment Note.
If an Installment Note is replaced pursuant to Section 2.06, it ceases
to be outstanding unless the Trustee and the Issuer receive proof satisfactory
to them that the replaced Installment Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Installment
Notes (or portions thereof) to be redeemed or maturing, as the case may be, and
the Paying Agent is not prohibited from paying such money to the Noteholders on
that date pursuant to the terms of this Indenture, then on and after that date
such Installment Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.08. Cancellation; Set-Off Rights. (a) The Issuer at any time
may deliver Installment Notes to the Trustee for cancellation (including in
connection with the exercise of its set-off rights pursuant to Article VI of the
Agreement and Plan of Merger). The Registrar and the Paying Agent shall forward
to the Trustee any Installment Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Installment Notes surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Issuer unless
the Issuer directs the Trustee to deliver canceled Installment Notes to the
Issuer; PROVIDED, that the Trustee shall not be required to destroy any
Installment Notes. The Issuer may not issue new Installment Notes to replace
Installment Notes it has redeemed, paid or delivered to the Trustee for
cancellation.
(b) Pursuant to Article VI of the Agreement and Plan of Merger, the
Issuer may be entitled to set-off certain of its damages suffered in connection
with the Agreement and Plan of Merger (including damages arising from the breach
of representations and warranties contained in any shareholder's transmittal
letter delivered in connection with the Agreement and Plan of Merger) against
amounts owed pursuant to the Installment Notes. If the Issuer exercises any such
set-off rights with respect to the Installment Notes, such exercise shall be
effected by the Issuer delivering the applicable Installment Notes to the
Trustee for cancellation along with an Issuer Order containing information as
to:
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(i) the amount of the claim as to which the Issuer is exercising
its set-off rights;
(ii) the reduction in principal amount of the Installment Notes
as to which such set-off rights have been exercised (it being understood
that all set-off amounts will be applied against principal only and not
accrued interest);
(iii) the effective date of any such reduction in principal
amount;
(iv) instructions as to the issuance of replacement Installment
Notes.
SECTION 2.09. Payment of Interest. Interest on any Installment
Note which is payable, and is paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Installment Note is
registered at the close of business on the Interest Record Date for such
interest payment, which shall be the March 15, June 15, September 15, or
December 15 (whether or not a Business Day) immediately preceding such Interest
Payment Date.
Each Installment Note delivered under this Indenture upon registration
of transfer of, or in exchange for, or in lieu of, any other Installment Note,
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Installment Note.
SECTION 2.10. Payment of Principal. Principal on any Installment Note
which is payable, and is paid or duly provided for, on any Principal Payment
Date shall be paid to the Person in whose name such Installment Note is
registered at the close of business on the Principal Record Date, which shall be
the December 15 (whether or not a Business Day) immediately preceding such
Principal Payment Date.
SECTION 2.11. Transfers, etc. Each Holder of an Installment Note agrees
to indemnify the Issuer and the Trustee against any liability that may result
from the transfer, exchange or assignment by such Holder of such Holder's
Installment Note in violation of any provision of this Indenture and/or
applicable U.S. Federal or state securities law.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Issuer desires to make an offer
to redeem, the Issuer shall notify the Trustee in writing of the Redemption
Date, the principal amount of Installment Notes the Issuer desires to redeem and
the Redemption Price.
The Issuer shall give each notice to the Trustee provided for in this
Section 3.01 not less than thirty (30) days nor more than sixty (60) days before
the Redemption Date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers' Certificate
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and an Opinion of Counsel from the Issuer to the effect that such redemption
will comply with the conditions herein.
SECTION 3.02. Notices to Holders. Within ten (10) days after the date
the Trustee receives the notice specified in Section 3.01, the Trustee shall
send to each Holder by first-class mail, postage prepaid, a notice prepared by
the Issuer stating:
(a) that a redemption offer is being made pursuant to the terms of this
Indenture, that the Holder has the right (but not the obligation to accept such
offer) and that all Installment Notes that are timely tendered will be accepted
for payment, subject to proration by the Trustee if the principal amount of
Installment Notes that the Issuer offers to redeem is less than the aggregate
principal amount of all Installment Notes timely tendered pursuant to the
redemption offer;
(b) the Redemption Price, the principal amount of Installment Notes that
the Issuer offers to redeem and the Redemption Date;
(c) that any Installment Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(d) that, unless the Issuer defaults in the payment of the Redemption
Price with respect thereto, all Installment Notes or portions thereof accepted
for payment pursuant to the redemption offer shall cease to accrue interest from
and after the Redemption Date;
(e) that any Holder electing to have any Notes or portions thereof
purchased pursuant to the redemption offer will be required to surrender such
Notes to the Paying Agent at the address specified in the notice prior to the
close of business on the Redemption Date;
(f) that any Holder electing to have Installment Notes purchased
pursuant to the redemption offer must specify the principal amount that is being
tendered for purchase;
(g) that any Holder of Installment Notes whose Installment Notes are
being purchased only in part will be issued new Installment Notes equal in
principal amount to the unpurchased portion of the Installment Note or Notes
surrendered; and
(h) any other information necessary to enable any Holder to tender
Installment Notes and to have such Installment Notes purchased pursuant to this
Section 3.02.
SECTION 3.03. Deposit of Redemption Price. On the Redemption Date, the
Issuer shall (i) accept for payment any Installment Notes or portions thereof
properly tendered and selected for purchase pursuant to the redemption offer and
Section 3.02 hereof; (ii) irrevocably deposit with the Paying Agent, by 10:00
a.m., Charlotte time, on such date, in immediately available funds, an amount
equal to the Redemption Price in respect of all Installment Notes or portions
thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee
the Installment Notes so accepted together with an Officers' Certificate listing
the Installment Notes or portions thereof tendered to the Issuer and accepted
for payment. The Paying Agent shall
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promptly send by first class mail, postage prepaid, to each Holder or portions
thereof so accepted for payment the Redemption Price for such Installment Notes
or portions thereof. For purposes of this Section 3.03, the Trustee shall act as
the Paying Agent.
SECTION 3.04. Partial Redemption of an Installment Note. Upon surrender
and cancellation of an Installment Note that is purchased in part, the Issuer
shall promptly issue and the Trustee shall authenticate and deliver to the
surrendering Holder of such Installment Note, a new Installment Note equal in
principal amount to the unpurchased portion of such surrendered Installment
Note.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Installment Notes. The Issuer shall promptly
pay the principal of and interest on the Installment Notes on the dates and in
the manner provided in the Installment Notes and in this Indenture. Principal
and interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Noteholders on that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal and Defaulted
Interest (without regard to any applicable grace period) at the Default Rate.
The Issuer's obligation pursuant to the previous sentence shall apply whether
such overdue amount is due at its maturity or otherwise.
All payments with respect to an Installment Note (including principal
and interest) will be required to be made by sending via first-class mail,
postage prepaid, a check to each such Holders' registered address.
SECTION 4.02. Maintenance of Office or Agency. The Issuer shall maintain
an office or agency where Installment Notes may be presented or surrendered for
payment, where Installment Notes may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Issuer in respect of
the Installment Notes and this Indenture may be served, which office shall be
initially the Corporate National Trust Office. The Issuer shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Issuer shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate National Trust Office of the Trustee, and the Issuer
hereby appoints the Trustee its agent to receive all presentations, surrenders,
notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Installment Notes may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations. The Issuer shall give prompt written notice to
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the Trustee of any such designation and any change in the location of any such
other office or agency.
The Issuer hereby designates the Corporate National Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.03 hereof.
SECTION 4.03. Money for the Installment Notes to be Held in Trust. If
the Issuer, any Subsidiary of the Issuer or any of their respective Affiliates
shall at any time act as Paying Agent with respect to the Installment Notes,
such Paying Agent shall, on or before each due date of the principal or interest
on any of the Installment Notes, segregate and hold in trust for the benefit of
the Persons entitled thereto money sufficient to pay the principal or interest
so becoming due until such money shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents with respect to
the Installment Notes, it shall, prior to 10:00 a.m. Charlotte time on each due
date of the principal or interest on any of the Installment Notes, deposit with
a Paying Agent a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal or interest and (unless such Paying Agent is the Trustee) the
Paying Agent shall promptly notify the Trustee of the Issuer's action or failure
so to act.
SECTION 4.04. TIA Reports. The Issuer shall comply with the
provisions of TIA Section 314(a).
SECTION 4.05. Further Instruments and Acts. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default. The term "Event of Default,"
wherever used herein with respect to the Installment Notes, means any one of
the following events:
(a) the Issuer's failure to pay or perform any obligation, liability or
indebtedness of the Issuer to the Noteholders under the Installment Notes as and
when due (whether upon demand, at maturity or by acceleration, and subject to
the terms of the Installment Notes, the Indenture and the Agreement and Plan of
Merger);
(b) the commencement of a proceeding by or against the Issuer for
dissolution (other than administrative dissolution where prompt re-instatement
efforts are initiated and followed through to completion);
(c) the insolvency of or the business failure of the Issuer;
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(d) the appointment of a custodian, trustee, liquidator or receiver for
a material portion of the property of the Issuer;
(e) an assignment for the benefit of creditors of a material portion of
the property of the Issuer; or
(f) the filing of a petition under any bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition, or extension by or against the Issuer.
A Default under the preceding clauses is not an Event of Default until
the Trustee or the Holders of at least twenty percent (20%) in principal amount
of the Installment Notes notify the Issuer of the Default and the Issuer does
not cure such Default within three (3) days after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default."
SECTION 5.02. Acceleration. If an Event of Default occurs and is
continuing, the Trustee by written notice to the Issuer, or the Holders of at
least twenty (20%) in principal amount of the Installment Notes by written
notice to the Issuer and the Trustee, may declare the principal of and accrued
but unpaid interest on all the Installment Notes to be due and payable. Upon
such a declaration, such principal and interest shall be due and payable
immediately. The Holders of a majority in principal amount of the Installment
Notes by notice to the Trustee and the Issuer may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of such
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 5.03. Other Remedies. The Issuer covenants that if an Event of
Default specified in Section 5.01(a) occurs, is continuing and has not been
cured within three (3) days after the notice described in Section 5.01 is
delivered, the Issuer shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders, the whole amount then due and payable on the
Installment Notes for principal and interest and, to the extent that payment of
such interest shall be legally enforceable, interest upon the overdue principal
and upon Defaulted Interest at the Default Rate and, in addition thereto, if
such Event of Default is not cured within fifteen (15) days of written notice to
Issuer of such Event of Default, such further reasonable amount as shall be
sufficient to cover the reasonable costs of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, reasonable
attorney's fees and all other amounts due to the Trustee pursuant to Section
6.07 hereof.
If an Event of Default specified in Section 5.01(f) occurs, then all
outstanding principal and accrued interest on the Installment Notes shall
immediately become due and payable, without any notice to the Issuer or any
action by the Trustee or any Holder.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on the
Installment Notes or to enforce
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the performance of any provision of the Installment Notes or this Indenture. The
Trustee may maintain a proceeding even if it does not possess any of the
Installment Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.04. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Installment Notes by notice to the Trustee
may, on behalf of the Holders of all the Installment Notes, waive an existing
Default or Event of Default and its consequences except a continuing Default or
Event of Default (i) in the payment of the principal or interest on an
Installment Note (except a payment default resulting from an acceleration that
has been rescinded) or (ii) in respect of a provision that under Section 7.02
cannot be amended without the consent of each Noteholder affected.
SECTION 5.05. Control by Majority. The Holders of not less than a
majority in principal amount of the Installment Notes may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 6.01, that the Trustee determines is unduly
prejudicial to the rights of other Noteholders or would involve the Trustee in
personal liability; PROVIDED, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 5.06. Limitation on Suits. Except as provided in Section 5.07, a
Noteholder may not pursue any remedy with respect to this Indenture or the
Installment Notes unless:
(a) the Holder has previously given to the Trustee written notice
stating that an Event of Default is continuing;
(b) the Holders of at least twenty percent (20%) in principal amount of
the Installment Notes have made a written request to the Trustee to pursue the
remedy in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against any loss, liability or expense to be incurred in
compliance with such request;
(d) the Trustee has not complied with the request within sixty (60) days
after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the Installment
Notes have not given the Trustee a direction inconsistent with the request
during such sixty (60) day period.
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A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 5.07. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal and interest on the Installment Notes held by such Holder, on or after
the respective due dates expressed in the Installment Notes, or the Redemption
Dates or purchase dates provided for therein or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default
specified in Section 5.01(a) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer
for the whole amount then due and owing on the Installment Notes for principal
and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal and upon Defaulted Interest and
the amounts provided for in Section 6.07.
SECTION 5.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders allowed
in any judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 6.07.
SECTION 5.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 5, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 6.07;
SECOND: to Noteholders for amounts due and unpaid on the
Installment Notes for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Installment Notes for principal and interest,
respectively; and
THIRD: to the Issuer.
The Trustee may fix a Record Date and payment date for any payment to
Noteholders pursuant to this Section 5.10. At least fifteen (15) days before
such Record Date, the Issuer shall mail to each Noteholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
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SECTION 5.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 5.11 does not apply to a suit initiated
by the Trustee, a suit initiated by a Holder pursuant to Section 5.07 or a suit
initiated by Holders of more than ten percent (10%) in principal amount of the
Installment Notes.
ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent Person would exercise
or use under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligence in taking any action or negligently failing to take action or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
17
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.05.
(d) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.01 and to the provisions of the TIA.
SECTION 6.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on any
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, that the Trustee's conduct does not constitute willful
misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Installment Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
18
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
SECTION 6.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Installment
Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Installment Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Installment Notes, and it shall not be responsible for any
statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Installment Notes or in the Installment Notes
other than the Trustee's certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Noteholder notice of the Default within 15 days after it occurs. Except in the
case of a Default in the payment of principal or interest on any Installment
Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 6.06. Reports by Trustee to Holders. As promptly as practicable
after each May 15 beginning with May 15, 2000, and in any event prior to July 15
in each year, the Trustee shall mail to each Noteholder a brief report dated as
of May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the SEC.
SECTION 6.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services as the Issuer
and the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents and counsel. The Issuer shall indemnify the
Trustee against any reasonable loss, liability or expense (including reasonable
attorneys' fees) incurred by it in connection with the administration of this
trust and the performance of its duties hereunder. The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuer shall
19
not relieve the Issuer of its obligations hereunder. The Issuer shall defend the
claim and the Trustee shall cooperate in the defense of the claim; PROVIDED that
the Trustee may have separate counsel and the Issuer shall pay the reasonable
fees and expenses of such counsel if the actual or potential defendants in, or
the targets of, any such claim include both the Trustee and the Issuer and the
Trustee shall have reasonably concluded that there may be legal defenses
available to it which are different from or additional to those available to the
Issuer. The Trustee will not, without the prior written consent of the Issuer,
settle or compromise or consent to the entry of any judgment with respect to any
claim in respect of which indemnification may be sought hereunder. The Issuer
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee's own willful misconduct,
negligence or bad faith.
To secure the Issuer's payment obligations in this Section 6.07, the
Trustee shall have a lien prior to the Installment Notes on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal and interest on particular Installment Notes.
The Issuer's payment obligations pursuant to this Section 6.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 5.01(c), (d),(e) or (f) with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under the bankruptcy law.
SECTION 6.08. Replacement of Trustee. The Trustee may resign at any time
by so notifying the Issuer. The Holders of not less than a majority in principal
amount of the Installment Notes may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Issuer shall remove the Trustee
if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the Holders of a
majority in principal amount of the Installment Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
20
Noteholders. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 6.07.
If a successor Trustee does not take office within thirty (30) days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of not less than ten percent (10%) in principal amount of the
Installment Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section
6.08, the Issuer's obligations under Section 6.07 shall continue for the benefit
of the retiring Trustee.
SECTION 6.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including the trust created by this
Indenture) to, another corporation or banking association, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Installment Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Installment Notes so
authenticated; and in case at that time any of the Installment Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Installment Notes either in the name of any predecessor hereunder or in the name
of the successor to the Trustee, and in all such cases such certificates shall
have the full force which it is anywhere in the Installment Notes or in this
Indenture provided that the certificate of authentication of the Trustee shall
have.
SECTION 6.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 6.11. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.12. Trustee's Application for Instructions from the Issuer.
Any application by the Trustee for written instructions from the Issuer may, at
the option of the Trustee, be set forth in writing and shall state any action
proposed to be taken or omitted by the
21
Trustee under this Indenture and the date on and/or after which such action
shall be taken or such omission shall be effective. The Trustee shall not be
liable for any action taken by, or omission of, the Trustee in accordance with a
proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the
date any Officer of the Issuer actually receives such application, unless any
such Officer shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an omission),
the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
ARTICLE 7
AMENDMENTS
SECTION 7.01. Without Consent of Holders. The Issuer and the Trustee may
amend this Indenture or the Installment Notes without notice to or consent of
any Noteholder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants of the Issuer for the benefit of the Holders
or to surrender any right or power herein conferred upon the Issuer;
(c) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the TIA;
or
(d) to make any change that does not adversely affect the rights of any
Noteholder.
After an amendment under this Section 7.01 becomes effective, the Issuer
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 7.01.
SECTION 7.02. With Consent of Holders. The Issuer and the Trustee may
amend this Indenture or the Installment Notes without notice to any Noteholder
but with the written consent of the Holders of at least a majority in principal
amount of the Installment Notes then outstanding and any past Default or
compliance with any provisions may also be waived with the consent of the
Holders of not less than a majority of the principal amount of Installment Notes
then outstanding. However, without the consent of each Noteholder affected, an
amendment may not:
(a) reduce the amount of Installment Notes whose Holders must consent to
an amendment;
(b) reduce the rate of or extend the time for payment of interest on any
Installment Note;
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(c) reduce the principal of, change the time for payment of principal
of, or change the stated maturity of any Installment Note;
(d) make any Installment Note payable in money other than that stated in
the Installment Note; or
(e) make any change in Section 5.04 or 5.07 or the second sentence of
this Section 7.02.
It shall not be necessary for the consent of the Holders under this
Section 7.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 7.02 becomes effective, the Issuer
shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.
SECTION 7.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Installment Notes shall comply with the TIA as then in
effect.
SECTION 7.04. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of an Installment Note shall bind the
Holder and every subsequent Holder of that Installment Note or portion of the
Installment Note that evidences the same debt as the consenting Holder's
Installment Note, even if notation of the consent or waiver is not made on the
Installment Note. However, any such Holder or subsequent Holder may revoke the
consent or waiver as to such Holder's Installment Note or portion of the
Installment Note if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective. Except as set forth in Section
7.02, after an amendment or waiver becomes effective, it shall bind every
Noteholder. An amendment or waiver becomes effective upon the execution of such
amendment or waiver by the Trustee.
The Issuer may, but shall not be obligated to, fix a Record Date for the
purpose of determining the Noteholders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a Record Date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such Record Date.
SECTION 7.05. Notation on or Exchange of Installment Notes. If an
amendment changes the terms of an Installment Note, the Trustee may require the
Holder of the Installment Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Installment Note regarding the changed
terms and return it to the Holder. Alternatively, if the Issuer or the Trustee
so determines, the Issuer in exchange for the Installment Note shall issue and
the Trustee shall authenticate and deliver a new Installment Note that reflects
the changed
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terms. Failure to make the appropriate notation or to issue a new Installment
Note shall not affect the validity of such amendment.
SECTION 7.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 7 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
constitutes the legal, valid and binding obligation of the Issuer, subject to
customary exceptions.
SECTION 7.07. Payment for Consent. Neither the Issuer nor any Affiliate
of the Issuer shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Installment Notes unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 8.02. Notices. Any notice or communication by the Issuer or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the other's address
If to the Issuer: Coca-Cola Bottling Co. Consolidated
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxx, Xx.
If to the Trustee: First Union National Bank
000 Xxxxx Xxxxx Xxxxxx
XX 1179, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Corporate Trust Group
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The Issuer or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar, with copies to (a) the Shareholders' Representatives at the
addresses specified in the Agreement and Plan of Merger and (b) Xxxxxxxxxx
Xxxxxx & Xxxxxxx, LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, telecopy:
(000) 000-0000, attention: Xxxxxx X. Xxxxx, Xx. Any notice or communication
shall also be so mailed to any Person described in TIA Section 313(c), to the
extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to Holders, it shall mail
a copy to the Trustee at the same time.
SECTION 8.03. Communication by Holders with Other Holders. Noteholders
may communicate pursuant to TIA Section 312(b) with other Noteholders with
respect to their rights under this Indenture or the Installment Notes. The
Issuer, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 8.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Issuer to the Trustee to take or refrain from
taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 8.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
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(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(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 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 or not, in the opinion of such individual,
such covenant or condition has been complied with.
SECTION 8.06. When Installment Notes Disregarded. In determining whether
the Holders of the required principal amount of Installment Notes have concurred
in any direction, waiver or consent, Installment Notes owned by the Issuer or by
any Affiliate of the Issuer shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Installment Notes which the Trustee knows are so owned shall be so disregarded.
Also, subject to the foregoing, only Installment Notes outstanding at the time
shall be considered in any such determination.
SECTION 8.07. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Noteholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 8.08. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions are not required to be open in the State
of North Carolina. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 8.09. Governing Law. (a) THIS INDENTURE AND THE INSTALLMENT
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID
STATE.
(b) The Issuer and the Trustee hereby (i) agree that any suit, action or
proceeding against it arising out of or relating to this Indenture or the
Installment Notes, as the case may be, may be instituted in the United States
District Court sitting in Columbia, South Carolina, (ii) waives, to the extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding, and any claim that
any suit, action or proceeding in such a court has been brought in an
inconvenient forum, (iii) irrevocably submits to the non-exclusive jurisdiction
of such courts in any suit, action or proceeding, (iv) agrees that final
judgment in any such suit, action or proceeding brought in such a court shall be
conclusive and binding upon each and may be enforced in the courts of the
jurisdiction of which
26
each is subject, respectively, by a suit upon judgment, and (v) agrees that
service of process by mail to the addressed specified in Section 8.02 hereof
shall constitute personal service of such process on it in any such suit, action
or proceeding.
SECTION 8.10. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Issuer shall have any liability for
any obligations of the Issuer under the Installment Notes or this Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation, solely by reason of its status as a director, officer, employee,
incorporator or stockholder of the Issuer. By accepting an Installment Note,
each Holder waives and releases all such liability (but only such liability) as
part of the consideration for issuance of such Installment Note to such Holder.
SECTION 8.11. Successors, Assigns and Transferees. All agreements of the
Issuer in this Indenture and the Installment Notes shall bind their respective
successors and assigns. All agreements of the Trustee in this Indenture shall
bind their respective successors, assigns and transferees.
SECTION 8.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 8.13. Table of Contents, Headings. The table of contents,
cross-reference table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 8.14. Severability. In case any provision in this Indenture or
in the Installment Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 8.15. Further Instruments and Acts. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
COCA-COLA BOTTLING CO.
CONSOLIDATED, as Issuer
By:________________________________
Name:______________________________
Title:_____________________________
FIRST UNION NATIONAL BANK, not in its
individual capacity but solely as Trustee
By:_________________________________
Name:_______________________________
Title:______________________________
