EXHIBIT 4.12
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment") is made as of February ____,
2000, by and among COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation
(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 November 20, 1995, with the Lenders and LTCB Trust
Company ("LTCB"), as agent (the "Original Loan Agreement"), pursuant to which
the Lenders have agreed to make term loans in the amount of $170,000,000 (the
"Loan") to the Borrower; and
WHEREAS, the Original Loan Agreement was amended by that certain
Amendment No. 1 dated as of July 22, 1997 (the "First Amendment") among the
Borrower, LTCB, as agent, and the Lenders party thereto. The Original Loan
Agreement, as amended by the First Amendment, is the "Loan Agreement".
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
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 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 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 the 'prime rate' (or, if The Wall Street
Journal ceases 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 OFFICE. The notice address for each
of Agent and GECC shall be as follows:
Address: 0000 Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxx 000
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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 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 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 in
Sections 7.01 through 7.03, 7.07 through 7.14, 7.17, and 7.19 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 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):
(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
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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
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, 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 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.
8. REIMBURSEMENT OF EXPENSES. The Borrower agrees that it shall reimburse
the 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
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. SEVERABILITY OF PROVISIONS. Any provision of this Amendment which is
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
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provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
11. SUCCESSORS AND ASSIGNS; COUNTERPARTS; FACSIMILE DELIVERY. This
Amendment 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.
12. ENTIRE AGREEMENT. The Loan Agreement and the other Loan Documents, as
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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COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware GENERAL ELECTRIC CAPITAL CORPORATION
corporation,
By: By:
------------------------------ -----------------------------
Name: Name:
Title: Title:
GENERAL ELECTRIC CAPITAL CORPORATION, as Lender DG BANK, as Lender
By: By:
------------------------------ -------------------------------
Name: Name:
Title: Title:
FLEET NATIONAL BANK, as Lender INDUSTRIAL BANK OF JAPAN, LTD., as
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
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SOCIETE GENERALE, as Lender WACHOVIA BANK OF NORTH CAROLINA, N.A., as Lender
By:
By: -------------------------------
------------------------------ Name:
Name: Title:
Title:
SUNTRUST BANK, as Lender CHIBA BANK, LTD., as Lender
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
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