Exhibit 10.41
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") is made as of February 24, 2000, by
and among PIEDMONT COCA-COLA BOTTLING PARTNERSHIP, a Delaware general
partnership (the "Borrower"), the lending institutions signatory hereto (the
"Lenders"), and GENERAL ELECTRIC CAPITAL CORPORATION, as agent (the "Agent", or
in its capacity as a Lender, "GECC"). Capitalized terms not otherwise defined
herein shall be ascribed the meanings set forth in the Loan Agreement (defined
hereafter).
WHEREAS, Borrower has heretofore entered into that certain Loan Agreement,
dated as of May 28, 1996, with the Lenders and LTCB Trust Company ("LTCB"), as
agent (the "Loan Agreement"), pursuant to which the Lenders have agreed to make
term loans in the amount of $195,000,000 (the "Loan") to the Borrower; and
WHEREAS, effective October 6, 1999, LTCB has assigned all of its interests
as a Lender under the Loan Agreement to GECC and LTCB has resigned its position
as agent under the Loan Agreement; and
WHEREAS, effective October 6, 1999, the Agent has been appointed by the
Required Banks to serve as agent under the Loan Agreement in replacement of
LTCB; and
WHEREAS, in light of the change in agent under the Loan Agreement from LTCB
to Agent, the Borrower has requested that the Agent and the Lenders agree to
amend certain definitions contained in the Loan Agreement and make certain other
modifications to the Loan Agreement and the other Loan Documents as more
particularly set forth below; and
WHEREAS, the Agent and the Lenders signing this Amendment are willing to
amend such definitions and make certain other modifications to the Loan
Agreement all upon the terms and conditions set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment of Definitions. Subject to the terms and conditions of this
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Amendment, the Loan Agreement and the other Loan Documents are hereby
amended as follows:
(a) The definition of "LIBOR" in Section 1.01 of the Loan Agreement is
hereby deleted in its entirety and the following is inserted in lieu
thereof:
"'LIBOR' shall mean, for any Interest Period, the rate
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per annum, as determined by the Agent (rounded upwards,
if necessary, to the nearest 1/16 of 1%) to be the rate
for deposits in Dollars for the applicable Interest
Period which appears on the Telerate Page 3750 at
approximately 11:00 a.m. London time, two Business Days
prior to the first day of such Interest Period having a
term comparable to such
Interest Period and in an amount comparable to the
principal amount of the Loan scheduled to be
outstanding for such Interest Period. If, for any
reason, such rate is not available, then 'LIBOR' shall
mean the rate per annum at which, in the opinion of the
Agent, Dollars in an amount comparable to the principal
amount of the Loan scheduled to be outstanding are
being offered to leading banks for settlement in the
London interbank market at approximately 11:00 a.m.
London time, two Business Days prior to the first day
of such Interest Period having a term comparable to
such Interest Period."
(b) The definition of "Prime Rate" in Section 1.01 of the Loan Agreement
is hereby deleted in its entirety and the following is inserted in
lieu thereof
"'Prime Rate' shall mean the rate of interest from day
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to day announced by the Agent as the higher on that day
of (i) the rate publicly quoted from time to time by
The Wall Street Journal in the Money Rates section as
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the 'prime rate' (or, if The Wall Street Journal ceases
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quoting a prime rate, the highest per annum rate of
interest published by the Federal Reserve Board in
Federal Reserve statistical release H.15 (519) entitled
'Selected Interest Rates' as the bank prime loan rate
or its equivalent), and (ii) the weighted average of
the interest rates on overnight federal funds
transactions among members of the Federal Reserve
System plus fifty (50) basis points per annum. Each
change in any interest rate provided for herein or in
the Notes based upon the Prime Rate resulting from a
change in the Prime Rate shall take effect at the time
of such change in the Prime Rate."
(c) The definition of "Reference Banks" in Section 1.01 is hereby deleted
in its entirety. Any reference to the term "Reference Banks" elsewhere
in the Loan Documents shall be deemed to be a reference to Agent.
(d) Any reference in any of the Loan Documents to LTCB shall be deemed to
be a reference to GECC.
2. Change of Notice Address; Lending Offices. The notice address for each of
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Agent and GECC shall be as follows:
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Address: 0000 Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telex No.:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Ms. Xxxxxx Xxxxx, Senior Vice President
The Lending Office (LIBOR) of GECC shall be as follows:
Address: 0000 Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
The Lending Office (Base Rate) of GECC shall be as follows:
Address: 0000 Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
3. Representations and Warranties. The Borrower hereby represents and warrants
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to the Agent and the Lenders that (a) this Amendment has been duly
authorized, executed and delivered by the Borrower, (b) no Default or Event
of Default has occurred and is continuing as of this date, and (c) all of
the representations and warranties made by the Borrower Sections 7.01
through 7.03, 7.07 through 7.14, 7.16, 7.19 through 7.21, and 7.24 through
7.25 of the Loan Documents are true and correct in all material respects on
and as of the date of this Amendment (except to the extent that any such
representations or warranties expressly referred to a specific prior date).
Any breach by the Borrower of any of the representations and warranties
contained in this Section shall be an Event of Default for all purposes
under the Loan Agreement and the other Loan Documents.
4. Conditions Precedent. The effectiveness of the amendments in Section 1 of
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this Amendment shall be conditioned upon receipt by the Agent of the
following (or upon the written waiver thereof approved and executed by the
Agent and the Required Banks, in their respective discretion):
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(a) The Agent shall have received a certificate of an appropriate officer
of the Borrower, in form and substance satisfactory to the Agent, with
respect to (i) the organizational documents of the Borrower, (ii) the
resolutions authorizing the execution, delivery and performance of
this Amendment and all documents executed and delivered to the Agent
in connection therewith and (iii) the incumbency of officers of such
Credit Party authorized to execute and deliver this Amendment.
(b) The Agent shall have received evidence satisfactory to it of the
Borrower's existence and good standing in its jurisdiction of
formation.
(c) The Agent shall have received an opinion of counsel to the Borrower
regarding (i) the due authorization and execution of the this
Amendment, (ii) the enforceability of this Amendment and (iii) such
other matters as may be requested by the Agent or the Required Banks,
all in form and substance satisfactory to the Agent and the Required
Banks.
(d) The Agent shall have received such other documents, certificates and
instruments as the Agent may reasonably request.
(e) The Agent shall have received all fees and expenses incurred by the
Agent in connection with the negotiation, preparation and execution of
this Amendment including, without limitation, the legal fees and other
out of pocket expenses of the Agent.
5. Ratification. The Borrower hereby ratifies and reaffirms each and every
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term, covenant and condition set forth in the Loan Agreement and all other
documents delivered by the Borrower in connection therewith (including
without limitation the other Loan Documents to which the Borrower is a
party), effective as of the date hereof.
6. Estoppel. To induce the Agent and the Lenders to enter into this Amendment,
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the Borrower hereby acknowledges and agrees that, as of the date hereof,
there exists no right of offset, defense or counterclaim in favor of the
Borrower as against the Agent or any Lender with respect to the obligations
of the Borrower to the Agent or any Lender under the Loan Agreement or the
other Loan Documents, either with or without giving effect to this
Amendment. The Borrower hereby confirms its obligation to repay the entire
outstanding principal balance of the Loan, together with all interest
accrued thereon, and any other charges and fees now due or hereafter
becoming due to Agent or any Lender, all in accordance with the provisions
of the Loan Agreement and the other Loan Documents.
7. Effectiveness of this Amendment. All of the provisions of this Amendment
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shall be effective immediately upon the delivery to the Agent of this
Amendment executed by the Borrower, the Agent and the requisite number of
Lenders whose consent is required under the Loan Agreement to effect the
amendments herein.
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8. Reimbursement of Expenses. The Borrower agrees that it shall reimburse the
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Agent on demand for all costs and expenses (including, without limitation,
reasonable attorney's fees) actually incurred by the Agent in connection
with the negotiation, preparation and execution of the Amendment and all
documents executed and delivered to the Agent in connection therewith. The
reimbursement obligations under this Amendment shall constitute Obligations
under the Loan Agreement.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. Severability of Provisions. Any provision of this Amendment which is
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prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by applicable law, the Borrower
hereby waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
11. Successors and Assigns; Counterparts; Facsimile Delivery. This Amendment
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shall be binding upon all parties hereto, their successors and permitted
assigns. This Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original but all of which together shall
be deemed to be one instrument. This Amendment may be delivered by
facsimile transmission with the same effect as if originally executed
counterparts of this Amendment were delivered to all parties hereto.
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12. Entire Agreement. The Loan Agreement and the other Loan Documents, as
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amended by this Amendment, embody the entire agreement among the parties
hereto relating to the subject matter hereof and supersede all prior
agreements, representations and understandings, if any, relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER: AGENT:
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PIEDMONT COCA-COLA BOTTLING COMPANY GENERAL ELECTRIC CAPITAL CORPORATION
PARTNERSHIP, a Delaware general
partnership,
By: Coca Cola Bottling Co. Consolidated,
a Delaware corporation, being the Manager
of the Borrower, duly authorized by each
of the general partners of the Borrower
By: /s/ XXXXXXXX X. DEAL, III By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxxxx X. Deal, III Name: Xxxxxx X. Xxxxx
Title: VP & Treasurer Title: SVP
GENERAL ELECTRIC CAPITAL CORPORATION, COMMERZBANK AG, as Lender
as Lender NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX /s/ W. XXXXX XXXXXXX
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Name: XXXXXX X. XXXXX Name: Xxxxx X. Xxxxxx W. Xxxxx Xxxxxxx
Title: SVP Title: SVP & Manager Vice President
W. XXXXX XXXXXXX
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W. Xxxxx Xxxxxxx
Vice President
CREDIT SUISSE FIRST BOSTON, as Lender DEUTSCHE BANK AG, New York and/or
Cayman Islands branches, as Lender
By: /s/ XXXXXX X. XXXXXX XXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Managing Director Vice President Title: Director
/s/ XXXXXXXXX XXXXX
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Xxxxxxxxx Xxxxx
Assistant Vice President
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DG BANK, as Lender FLEET NATIONAL BANK, as Lender
By: /s/ X.X. XXXXXX /s/ XXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
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Name: X.X. Xxxxxx Xxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Title: S.V.P. Vice President Title: Sr. Vice President
INDUSTRIAL BANK OF JAPAN, LTD., as Lender KBC BANK, as Lender
By: /s/ MINAMI MICRA By: /s/ XXXXXX XXXXXXXX /s/ XXXXXXX X. XXXXXXXX
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Name: Minami Micra Name: Xxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Title: Vice President Title: First Vice President Vice President
SOCIETE GENERALE, as Lender WACHOVIA BANK OF NORTH
CAROLINA, N.A., as Lender
By: /s/ XXXXXX XXXXXXXX By: /s/ XXXXXXXXXXX X. XXXXXXX
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Name: Xxxxxx Xxxxxxxx Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President Title: Senior Vice President
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