Exhibit 4.2
THIS NOTE IS SUBJECT TO A SUBORDINATION AGREEMENT, DATED AS OF MAY 23, 2002 (THE
"SUBORDINATION AGREEMENT"), AMONG PIEDMONT COCA-COLA BOTTLING PARTNERSHIP,
COCA-COLA BOTTLING CO. CONSOLIDATED AND GENERAL ELECTRIC CAPITAL CORPORATION, AS
AGENT. THIS NOTE IS SUBORDINATED IN RIGHT AND TIME OF PAYMENT TO THE PRIOR
PAYMENT IN FULL IN CASH OF ALL SENIOR DEBT (AS DEFINED THEREIN) IN ACCORDANCE
WITH, AND TO THE EXTENT SPECIFIED IN, THE SUBORDINATION AGREEMENT AND EACH
HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY
THE TERMS AND PROVISIONS OF THE SUBORDINATION AGREEMENT. THIS NOTE IS ALSO
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THE SUBORDINATION
AGREEMENT.
SUBORDINATED PROMISSORY NOTE
$97,500,000.00 May 23, 2002
FOR VALUE RECEIVED, the undersigned PIEDMONT COCA-COLA BOTTLING
PARTNERSHIP, a Delaware general partnership (the "Company"), hereby promises to
pay to COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation or its
successors and assigns ("Holder"), the principal amount of Ninety-Seven Million
Five Hundred Thousand and 00/100 Dollars ($97,500,000.00) in accordance with the
terms set forth in this Subordinated Promissory Note (this "Note").
1. Payments of Principal. If not prepaid pursuant to Section 3 or
otherwise, the Company promises to pay the principal amount hereof on May 28,
2004.
2. Payments of Interest. Subject to the provisions of Section 4, the
Company further promises to pay interest on the unpaid principal amount hereof,
from the date hereof, at a rate per annum equal to Holder's average monthly cost
of borrowing (taking into account all indebtedness of Holder and its
consolidated subsidiaries), determined as of the last business day of each
calendar month, plus one-half of one percent (0.5%) quarterly on the last
business day of each calendar month of each year (each, a "Payment Date"),
commencing with the Payment Date next succeeding the date hereof; provided, that
such rate shall not exceed nine percent (9%) so long as any Senior Indebtedness
remains outstanding. Interest on the unpaid principal balance hereof shall
continue to accrue until the principal hereof and interest hereon shall have
been paid in full.
3. Prepayment; Manner of Payment. Subject to the provisions of Section 4,
the Company may prepay this Note in whole or in part at any time, without
premium or penalty. All payments of principal and accrued interest shall be made
by the Company to Holder in immediately available funds and in lawful money of
the United States of America at the address set forth in Section 12 or to such
account as is designated by Holder in writing to the Company.
4. Subordination. Notwithstanding anything to the contrary contained
herein, the obligations under this Note are subject to the Subordination
Agreement.
5. Events of Default. The following shall constitute "Events of Default"
with respect to this Note:
(a) Failure of the Company to pay when due, in the manner provided
herein, the principal or interest on this Note; or
(b) The Company shall make an assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts as they become
due, or shall file a voluntary petition for relief under Title 11 of the
United States Code (the "Bankruptcy Code"), or shall file any other
petition or similar request with a court or governmental agency having
competent jurisdiction for voluntary relief, looking to reorganization,
arrangement, composition, readjustment, liquidation, custodianship,
dissolution, winding-up or similar relief under the Bankruptcy Code or any
other similar present or future statute, law or regulation, or shall file
any answer admitting or not contesting the material allegations of a
petition filed against it in any such proceeding, or shall in any such
proceeding seek or consent to or acquiesce in the appointment of any
trustee, receiver, custodian or liquidator of it or of all or any
substantial part of its properties; or
(c) The filing against the Company of an involuntary petition for
relief under the Bankruptcy Code or the commencement of any proceeding
against the Company in a court or before a governmental agency having
competent jurisdiction, looking to reorganization, arrangement,
composition, readjustment, liquidation, custodianship, dissolution or
similar relief under the Bankruptcy Code or any other similar present or
future statute, law or regulation, and such petition or proceeding shall
not have been vacated, dismissed or stayed within sixty (60) days
thereafter, or if there is appointed in any such proceeding, without the
consent or acquiescence of the Company, any trustee, receiver, custodian,
liquidator, or other similar official for it or for all or any substantial
part of its properties, and such appointment shall not have been vacated,
dismissed or stayed within sixty (60) days thereafter; or
(d) The Company shall default in the due observance or performance of
any covenant, condition or agreement contained herein and such default
shall continue unremedied for a period of thirty (30) days.
6. Consequences of Event of Default. Subject to the provisions of Section
4, upon the occurrence of any such Event of Default and during the continuation
thereof, Holder, by written notice to the Company, may declare the unpaid
principal balance of this Note and accrued and unpaid interest hereon to be
immediately due and payable notwithstanding the stated maturity or due date
thereof. Upon any such declaration of acceleration, such principal and interest
shall become immediately due and payable and Holder shall have all other rights
and remedies provided by applicable law.
7. Costs of Collection. In the event that this Note is not paid when due,
the Company shall also pay or reimburse Holder for all reasonable costs and
expenses of collection, including, without limitation, reasonable attorneys'
fees.
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8. Certain Acceleration Events. Subject to the provisions of Section 4,
upon a Sale, Holder may, by notice to the Company, declare the unpaid principal
balance of this Note and accrued and unpaid interest thereon to be immediately
due and payable, whereupon the same shall become immediately due and payable
notwithstanding the stated maturity or due date thereof. For purposes of this
Section 8, a "Sale" means (a) a sale of all or substantially all of the assets
of the Company or (b) any extraordinary corporate transaction, such as a merger,
consolidation, issuance of capital stock or other business combination involving
the Company pursuant to which any person or group of persons acquires at least
50% of the voting power of the Company, or in which the Company is not the
surviving corporation.
9. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of North Carolina, other than the
conflicts of law provisions thereof.
10. Waiver. The Company waives presentment for payment, demand, protest,
notice of dishonor, notice of protest, diligence on bringing suit against any
party hereto, and all defenses on the ground of any extension of the time of
payment that may be given by Holder to it.
11. No Right of Set-Off. As of the date hereof, the Company represents that
it has no claims or offsets against Holder in breach of contract, negligence or
for any other type of legal action under this Note.
12. Notices. Any notice pursuant to this Note must be in writing and will
be deemed effectively given to another party on the earliest of the date (a)
three business days after such notice is sent by registered U.S. mail, return
receipt requested, (b) upon receipt of confirmation if such notice is sent by
facsimile, (c) one business day after delivery of such notice into the custody
and control of an overnight courier service for next day delivery, (d) upon
delivery of such notice in person and (e) such notice is received by that party;
in each case to the appropriate address below (or to such other address as a
party may designate by notice to the other party):
The Company:
Piedmont Coca-Cola Bottling Partnership
c/o Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
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Holder:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
0000 Xxxx-Xxxx Xxxxx (28211-3481)
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
13. Severability. Any provision of this Note that is determined by any
court of competent jurisdiction to be invalid or unenforceable will not affect
the validity or enforceability of any other provision hereof or the invalid or
unenforceable provision in any other situation or in any other jurisdiction. Any
provision of this Note held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
* * * * *
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IN WITNESS WHEREOF, the Company has caused this Note to be executed by
its duly authorized officer as of the day and year first above written.
PIEDMONT COCA-COLA BOTTLING
PARTNERSHIP
By: COCA-COLA BOTTLING CO.
CONSOLIDATED, its Manager
By: /s/ XXXXX X. XXXXXX
------------------------
Name: Xxxxx X. Xxxxxx
Title: EVP and Chief Financial Officer
