WAIVER AND CONSENT
THIS WAIVER AND CONSENT, dated August 29, 1997, is made and
entered into by and among Xxxxxx Bottling Company, a Delaware corporation
("BBC"), All-American Bottling Corporation, a Delaware corporation
("AABC"), Xxxxxxx X. Xxxxxx, Oklahoma Properties Partnership, an Oklahoma
general partnership, Tennessee Properties Partnership, an Oklahoma general
partnership, Xxxxxx and Xxxxxx Partners, an Oklahoma general partnership,
Xxxxxxx X. Xxxxxx, as Trustee of the Xxxxxxx Xxxxxx Xxxxxx Trust
(collectively, "Xxxxxx") and Colinvest Bottling Corp., a corporation
("Colinvest") and Records Investments, L.L.C., an Oklahoma limited
liability company ("Records").
WHEREAS, BBC, AABC, Xxxxxx and others entered into a certain
warrantholders agreement dated as of August 23, 1993 (the "Warrantholders
Agreement"); and
WHEREAS, subsequent to the execution of the Warrantholders
Agreement, BBC issued and there are presently issued and outstanding
unexercised warrants (the "Warrants") to purchase an aggregate of 21,360
shares (the "Warrant Shares") of Common Stock, par value $.01 per share
(the "Common Stock") issued by BBC; and
WHEREAS, Xxxxx is the beneficial owner of Warrants to purchase an
aggregate of 10,872 Warrant Shares, representing more than fifty percent
(50%) of the outstanding Warrants; and
WHEREAS, Xxxxx and Colinvest, together, beneficially own more
than 90% of all outstanding shares of Common Stock; and
WHEREAS, pursuant to Section 17 of the Warrantholders Agreement,
the holders of a majority of the outstanding Warrants and the holders of at
least sixty percent (60%) of the outstanding shares of Common Stock have
the right to waive the application of the Warrantholders Agreement; and
WHEREAS, Colinvest proposes to sell and transfer all (84,228
shares) of the Common Stock beneficially owned by Colinvest to Records; and
WHEREAS, the parties hereto desire to waive the applicability of
the provisions of Sections 6(a) and (b) of the Warrantholders Agreement
with respect to the proposed sale of Common Stock by Colinvest to Records;
and
WHEREAS, except with respect to the sale by Colinvest of shares
of Common Stock to Records, the parties do not desire to further waive the
applicability of the Warrantholders Agreement;
THEREFORE, IN CONSIDERATION of the premises and the mutual
benefits and burdens herein contained, the parties agree as follows:
1. WAIVER. Xxxxxx, AABC, BBC and Colinvest hereby waive the
application of the provisions of Section 6(a) and 6(b) of the
Warrantholders Agreement to the sale of 84,228 shares of Common Stock by
Colinvest to Records effective as of August 29, 1997.
2. CONSENT OF RECORDS. Pursuant to Section 2 of the
Warrantholders Agreement, Records consents to be bound to the terms and
conditions of the Warrantholders Agreement.
3. COUNTERPARTS. This Waiver and Consent may be executed in
one or more counterparts, any one of which shall be considered an original.
All counterparts shall constitute one agreement and shall be binding upon
and inure to the benefit of each party who executes any counterpart, and
upon his heirs, personal representatives, and permitted successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have set their respective
hands this 29th day of August, 1997.
BBC: XXXXXX BOTTLING COMPANY, a Delaware
corporation
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, President
AABC: ALL-AMERICAN BOTTLING CORPORATION, a
Delaware corporation
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, President
XXXXXX:
XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, individually and as a
General Partner of Oklahoma Properties
Partnership, Tennessee Properties
Partnership, Xxxxxx and Xxxxxx Partners,
and as Trustee of the Xxxxxxx Xxxxxx
Xxxxxx Trust
COLINVEST: COLINVEST BOTTLING CORP., S.A.
By: XXXXXXXXX X. XXXXX
Xxxxxxxxx X. Xxxxx, President
RECORDS: RECORDS INVESTMENTS, L.L.C.
By: X.X. RECORDS, JR.
X.X. Records, Jr., President
