EXHIBIT 4.5
AMENDMENT NO. 1
Dated as of September 9, 1997
AMENDMENT NO. 1 among Coca-Cola Enterprises Inc., a Delaware
corporation (the "Company"), Coca-Cola Enterprises Great Britain plc (formerly
known as Bottling Holdings (Great Britain) Limited), a corporation organized
under the laws of England ("UK Holdings" and, together with the Company, the
"Borrowers"), the banks, financial institutions and other institutional lenders
parties to the Credit Agreement referred to below (collectively, the "Lenders")
and Citibank International plc, as agent (the "Agent") for the Lenders, and Bank
of America NT&SA, Deutsche Bank AG, New York Branch, NationsBank, N.A. and Union
Bank of Switzerland, as co-agents (the "Co-Agents") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Lenders, the Agent and the Co-Agents have
entered into a Five Year Credit Agreement dated as of November 4, 1996 (the
"Credit Agreement"). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit Agreement.
(2) The Borrowers and the Majority Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) The definition of "Interest Period" is amended by deleting the
phrase "and, if acceptable to all Lenders, nine or twelve months".
(b) Section 2.02(a) is amended (i) by deleting the word "and"
immediately preceding clause (iv), (ii) by deleting from clause (iv) the
phrase "initial Interest Period" and substituting therefor the phrase "the
Interest Period" and (iii) by adding immediately after such clause (iv) a
new clause (v) to read as follows:
, and (v) in the case of a Syndicated Borrowing consisting of
Base Rate Loans, a maturity date for repayment of each Base Rate
Loan which may not be later than the earlier of (I) 180 days
after the date of such Syndicate Borrowing and (II) the
Termination Date.
(c) Section 2.06 is amended in full to read as follows:
SECTION 2.06 Maturity of Loans. (a) Each Syndicated Loan
other than Base Rate Loans shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest
Period applicable to such Loan.
(b) Each Base Rate Loan and Competitive Bid Loan shall
mature, and the principal amount thereof shall be
due and payable, on the maturity date specified in the Notice of
Syndicated Borrowing or (as the case may be) the Notice of
Competitive Bid Borrowing applicable to such Loan.
(c) If not sooner paid, each Borrower shall repay to the
Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Loans then outstanding
in respect of such Borrower.
(d) Each Lender agrees to use its reasonable best efforts to
return to the Company the Syndicated Note corresponding to each
Syndicated Loan repaid within ten Business Days after such
repayment.
(d) Section 2.08(e)(ii)(B) is amended by inserting immediately after
the phrase "Converted into a Base Rate Loan" the phrase "with a maturity
date of the earlier of (I) 180 days after the date of such Conversion and
(II) the Termination Date".
(e) Section 3.03 is amended (i) by redesignating clause (b) as clause
(c) and (ii) by adding a new clause (b) to read as follows:
(b) on or before the date of such Syndicated Borrowing, but prior
to such Syndicated Borrowing, the Agent shall have received a
Syndicated Note payable to the order of each Lender, in a
principal amount equal to such Lender's portion of the Syndicated
Loan to be evidenced thereby;
(f) Exhibit A-1 is amended in full to read as set forth on
Exhibit A-1 to this Amendment.
(g) Exhibit B-1 is amended in full to read as set forth on Exhibit B-
1 to this Amendment.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when the Agent shall
have received counterparts of this Amendment executed by the Borrower and the
Majority Lenders or, as to any of the Lenders, advice satisfactory to the Agent
that such Lender has executed this Amendment. This Amendment is subject to the
provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction indicated in the
recital of parties to this Amendment.
(b) The execution, delivery and performance by each Borrower of this
Amendment and the performance by each Borrower of each of the Credit
Agreement and the Notes, as amended hereby, to which it is a party are
within such Borrower's corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (i) such Borrower's
charter or by-laws (or equivalent constitutive documents) or (ii) any law,
rule, regulation or contractual restriction in any material contract or, to
the knowledge of the Chief Financial Officer of the Company, any other
contract the breach of which would limit the ability of any Borrower to
perform its obligations under the Credit Agreement or the Notes, as amended
hereby, binding on or affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery or performance by such Borrower of this
Amendment or the performance by each Borrower of each of the Credit
Agreement or the Notes, as amended hereby, to which it is a party.
(d) This Amendment has been duly executed and delivered by such
Borrower. This Amendment and each of the Credit Agreement and the Notes, as
amended hereby, to which such Borrower is a party are legal, valid and
binding obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms.
(e) There is no pending or, to the best of each Borrower's knowledge,
threatened action or proceeding involving any Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator (i) which
is likely to materially adversely affect the financial condition or
operations of the Company and its Subsidiaries taken as a whole or (ii)
purports to affect the legality, validity or enforceability of this
Amendment or the Credit Agreement and the Notes, as amended hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes to
"the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
COCA-COLA ENTERPRISES INC.
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President and Treasurer
COCA-COLA ENTERPRISES GREAT
BRITAIN PLC (formerly known as
Bottling Holdings (Great Britain)
Limited)
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President and Treasurer
CITIBANK N.A.
as Agent and as Lender
By S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Attorney-in-Fact
CITIBANK INTERNATIONAL PLC.
as Agent and as Lender
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
BANK OF AMERICA NT&SA,
as Co-Agent and as Lender
By S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Managing Director
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISALNDS BRANCH
as Co-Agent and as Lender
By S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Director
By S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
NATIONSBANK, N.A.,
as Co-Agent and as Lender
By S/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
------------------------------------
Title: Senior Vice President
UNION BANK OF SWITZERLAND,
as Co-Agent and as Lender
By S/ ▇▇▇▇ ▇. TURNBACK
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Title: Assistant Treasurer
By S/ ▇. ▇. ▇▇▇▇▇▇▇▇
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Title: Director
ABN AMRO BANK N.V.
By S/ ▇▇▇▇▇▇ ▇. HIPEMAS
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Title: Vice President
By S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Group Vice President
BANK BRUSEELS ▇▇▇▇▇▇▇,
NEW YORK BRANCH
By S/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President and Manager
By S/ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
CIBC, INC.
By S/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director, CIBC Wood Gundy
Securities Corp. AS AGENT
THE DAI-ICHI KANGYO BANK, LTD.
By S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Joint General Manager
THE FIRST NATIONAL BANK OF
CHICAGO
By S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Authorized Agent
THE NORTHERN TRUST COMPANY
By S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
SUNTRUST BANK, ATLANTA
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
WACHOVIA BANK N.A.
By S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
MIDLAND BANK PLC
By S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Corporate Banking Manager
TEXAS COMMERCE BANK N.A.
By S/ ▇▇▇▇▇ ▇. RAWALT
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Title: Vice President
SWISS BANK CORPORATION,
NEW YORK BRANCH
By S/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Director, Banking Finance Support
By S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Director, Credit Risk Management
SOCIETE GENERALE
By S/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President and Manager
KREDIETBANK N.V.
By S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
BANQUE NATIONALE DE ▇▇▇▇▇
▇▇▇▇▇▇▇ AGENCY
By S/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
CRESTAR BANK
By S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Title: Vice President
EXHIBIT A-1 - FORM OF
SYNDICATED
PROMISSORY NOTE
U.S. $ __________
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a __________
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of __________
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) on [maturity date] the aggregate
outstanding principal amount of the Syndicated Loan made on the date hereof by
the Lender to the Borrower pursuant to the Five Year Credit Agreement dated as
of November 4, 1996 among the Borrower and certain other borrowers parties
thereto, the Lender and certain other lenders parties thereto, Citibank
International plc, as Agent, for the Lender and such other lenders (as amended
or modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined).
The Borrower promises to pay interest on the unpaid principal amount
of the Syndicated Loan made on the date hereof from the date of such Syndicated
Loan until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Syndicated Loan (i) in
Dollars are payable in lawful money of the United States of America to Citibank
International plc, as Agent, at its account maintained at Citibank, N.A., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, in same day funds and (ii) in any
Primary Currency are payable in such currency at the applicable Payment Office
in same day funds. The Syndicated Loan evidenced by this Promissory Note owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Syndicated Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Syndicated Loans by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the Dollar amount first above mentioned or the Equivalent
thereof in one or more Primary Currencies, the indebtedness of the Borrower
resulting from each such Syndicated Loan being evidenced by this Promissory
Note, (ii) contains provisions for determining the Dollar Equivalent of
Syndicated Loans denominated in Primary Currencies and (iii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This promissory note shall be governed by, and construed in
accordance with the laws of the State of New York.
[NAME OF BORROWER]
By________________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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| | | | | Amount of | | |
| | | Amount of | | Principal | Unpaid | |
| | Type of | Loan in | Interest | Paid | Principal | Notation |
| Date | Loan | Relevant Currency | Rate | or Prepaid | Balance | Made By |
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EXHIBIT B-1 - FORM OF NOTICE OF
SYNDICATED BORROWING
Citibank International plc, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ House
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Citibank, N.A., as US Sub-Agent
for said Lenders
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of November 4, 1996 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain other Borrowers parties
thereto, certain Lenders parties thereto and Citibank International plc, as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Syndicated Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Syndicated Borrowing (the "Proposed
Syndicated Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The date of the Proposed Syndicated Borrowing is _______________.
(ii) The Type of Loans comprising the Proposed Syndicated Borrowing is
[Base Rate Loans] [Eurocurrency Rate Loans].
(iii) The aggregate amount of the Proposed Syndicated Borrowing is
[$ _______________] [for a Syndicated Borrowing in a Primary Currency, list
currency and amount of Syndicated Borrowing].
[(iv) The Interest Period for each Eurocurrency Rate Loan made
as part of the Proposed Syndicated Borrowing is ________ month[s].]
[(v) The maturity date for each Base Rate Loan made as a part of the
Proposed Syndicated Borrowing is _________________________.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Syndicated
Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement (except the representations set forth in the last sentence
of subsection (e) thereof and in subsection (f) thereof (other than clause
(ii) thereof)), are correct in all material respects, before and after giving
effect to the Proposed Syndicated Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Syndicated Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By____________________________________
Name:
Title:
