EXHIBIT 4.1
LIMITED WAIVER AND CONSENT
THIS LIMITED WAIVER AND CONSENT (this "Waiver"), is entered into as of
March 25, 2003, by Coca-Cola Bottling Co. Consolidated, a Delaware corporation
(the "Borrower"), General Electric Capital Corporation, as Agent and assignee of
LTCB Trust Company (the "Agent"), and such number of the Banks (defined
hereafter) signatory to the Loan Agreement (defined hereafter) as may be
required pursuant to that certain Loan Agreement dated as of November 20, 1995
(as amended from time to time, the "Loan Agreement") among Borrower, Agent, and
the banks party thereto from time to time (the "Banks"). Capitalized terms not
otherwise defined herein shall be ascribed the meaning set forth for such term
in the Loan Agreement.
WHEREAS, pursuant to the Loan Agreement, the Banks made available to the
Borrower certain credit facilities;
WHEREAS, the Borrower desires to make a partial prepayment (the
"Prepayment") of the Loans in the principal amount of up to $50,000,000, as
permitted by and subject to the conditions of Section 3.03 of the Loan
Agreement;
WHEREAS, the Borrower has requested that the Agent and the Banks consent
to the application of the Prepayment to the next-scheduled installment of
principal due on the Loans and waive the provisions of the Loan Agreement
prohibiting such application; and
WHEREAS, the Agent and the Banks executing this Waiver are willing to
waive such provisions and consent to such application of the Prepayment under
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained and for other valuable consideration, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. Waiver and Consent to Application of Prepayment.
1.1 The Agent and the Banks executing this Waiver hereby consent to
the Prepayment and waive Section 3.03(a)(iv) of the Loan Agreement so as to
permit the application of the Prepayment to the next-scheduled installment of
principal due on the Loans, so long as (a) the conditions of Section 3.03 of the
Loan Agreement are satisfied, including, without limitation, the payment of all
amounts due to the Banks pursuant to Section 5.04 of the Loan Agreement, but
excluding any notice requirement stated therein, notice having been deemed
received by the Agent, (b) on or within 10 Business Days after the date hereof,
the Prepayment is delivered to Agent in immediately available funds for
distribution to the Lenders against payment of such next scheduled installment,
and (c) on the date hereof and the date on which the Prepayment is received by
the Agent, no Default or Event of Default exists.
1.2 Notwithstanding Section 3.03(a)(iv) of the Loan Agreement, so
long as the Prepayment is made in accordance with the conditions set forth in
Section 1.1 hereof, the Agent and the Banks hereby waive such Section and
consent to the application of the Prepayment to the next scheduled installment
of principal due on the Loans; provided, however, that such waiver and consent
is hereby expressly limited to the terms hereof as set forth herein and shall
not extend to any other or subsequent payments, prepayments or repayments of any
kind or be considered a waiver of any provision of the Loan Agreement or any
other Loan Document.
1.3 The Borrower hereby represents and warrants to the Agent and the
Banks that the Prepayment (and the incurrence of indebtedness giving rise to the
Prepayment) comply in all respects with the requirements of the Loan Agreement
and the other Loan Documents and that the consummation of the incurrence of such
indebtedness and the performance by the Borrower of its obligations under such
indebtedness will not cause a Default or an Event of Default under any Loan
Document.
SECTION 2. Effectiveness of Waiver. This Waiver shall not be deemed
effective until (i) the Agent shall have executed and delivered to the Borrower
a copy of this Waiver and (ii) the Agent shall have one or more copies of this
Waiver, executed by Borrower and such number of the Banks as may constitute the
Required Banks.
SECTION 3. Miscellaneous.
3.1 No Waiver. Except to the extent that a provision of the Loan
Agreement and the other Loan Documents is expressly modified by this Waiver,
nothing in this Waiver shall constitute a modification of the provisions of the
Loan Agreement or any other Loan Document or a waiver by the Agent or Banks of
their rights and remedies under the Loan Documents. No act or omission by the
Agent or any Bank shall constitute a waiver of any of their rights and remedies
under the Loan Documents unless such waiver is in writing, signed by the Agent
and the requisite Banks required for approval of such modification under the
Loan Agreement and then only to the extent specifically set forth therein.
Nothing in this Waiver shall be deemed to modify or affect any obligations that
the Borrower or any other affiliate of the Borrower may have to Agent or any
Lender with respect to any credit facility or other financial arrangements other
than those evidenced by the Loan Agreement.
3.2 Reaffirmation. The Borrower hereby acknowledges that all terms
and conditions of the Loan Agreement and the other Loan Documents are and shall
remain in full force and effect. The Borrower hereby reaffirms the outstanding
Loans. This Waiver is incorporated into the Loan Agreement by reference and
shall constitute a part thereof as if fully set forth therein. In the event that
any of the terms or the provisions of the Loan Agreement are inconsistent with
or contradictory of the terms hereof, the terms of this Waiver shall control.
Borrower hereby agrees to pay promptly all costs and expenses incurred by Agent
(including, without limitation, the fees and expenses of Agent's counsel) in
connection with the preparation, negotiation and execution of this Waiver.
3.3 Release. The Borrower acknowledges and agrees that, as of the
date hereof, it does not have any claim, defense or set-off right against the
Agent or any Bank or their respective
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officers, directors, employees, agents, successors, assigns or affiliates, nor
any claim, defense or set-off right to the enforcement by the Agent or any Bank
of the full amount of the Loans. The Borrower hereby forever expressly waives,
releases relinquishes, satisfies, acquits and discharges the Agent and the
Banks, and their respective officers, directors, employees, agents, successors,
assigns and affiliates, from any and all defenses to payment or other defenses,
set-offs, claims, counterclaims, liability and causes of action, accrued or
unaccrued, whether known or unknown, which occurred or arose on or prior to the
date hereof.
3.4 Counterparts. This Waiver may be executed simultaneously in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Waiver may be
delivered by facsimile transmission with the same force and effect as if
originally executed copies of this Waiver were delivered to all parties hereto.
3.5 Severability. The invalidity or unenforceability of any one or
more phrases, sentences, clauses or Sections contained in this Waiver shall not
affect the validity or enforceability of the remaining portions of this Waiver,
or any part thereof.
3.6 Governing Law. This Waiver shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have each caused this Waiver to
be duly executed by their duly authorized representatives as of the date first
above written.
BORROWER:
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
AGENT:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
SUNTRUST BANK
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
DZ BANK AG DEUTESCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT AM
MAIN (formerly DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG), as a Lender
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
THE INDUSTRIAL BANK OF JAPAN, LIMITED
ATLANTA AGENCY
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
THE CHIBA BANK, LTD.
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
FLEET NATIONAL BANK
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
SOCIETE GENERALE
By:
-------------------------
Name:
Title:
SIGNATURE PAGE TO WAIVER
