EXHIBIT 10.8
[EXECUTION COPY]
FIRST AMENDMENT TO CREDIT AGREEMENT, LINE OF CREDIT NOTE
AND MORTGAGE, AND REAFFIRMATION OF TERM NOTE, SECURITY AGREEMENT,
GUARANTY AGREEMENT AND ADDENDUM TO GUARANTY AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, LINE OF CREDIT
NOTE AND MORTGAGE, AND REAFFIRMATION OF TERM NOTE, SECURITY
AGREEMENT, GUARANTY AGREEMENT AND ADDENDUM TO GUARANTY AGREEMENT
(the "Amendment"), made as of March 31, 1995, by and among SOUTH
ATLANTIC CANNERS, INC. (together with its successors and assigns,
the "Borrower"), COCA-COLA BOTTLING CO. CONSOLIDATED (together
with its successors and assigns,"Consolidated") and WACHOVIA BANK
OF NORTH CAROLINA, N.A. (together with endorsees, successors and
assigns, the "Bank").
BACKGROUND
The Bank agreed to make a line of credit loan to the Borrower in
the maximum principal amount of $5,000,000 as evidenced by that
certain Line of Credit Note dated July 22, 1994 (the "1994 Line
of Credit Note") and to make a term loan to the Borrower (in one
or more advances) in the principal amount of $15,000,000 as
evidenced by that certain Term Note dated July 22, 1994, both
loans being made on the terms and subject to the conditions set
forth in that certain Credit Agreement dated as of July 22, 1994
(the "1994 Agreement").
In order to induce the Bank to make the Loans, the Borrower,
contemporaneously with the execution and delivery of the 1994
Agreement, executed and delivered the other Loan Documents.
Consolidated manages the day-to-day operations of the
Borrower as more fully set forth in the Management Agreement.
The Bank agreed to make the Loans, and agrees to the
modifications contained herein, including without limitation the
extension of additional credit to the Borrower, in reliance on
the continuation of the Management Agreement.
The Bank and the Borrower have agreed to modify the terms
and conditions of the Line of Credit Loan, and to extend
additional credit to the Borrower under the Line of Credit Loan
on the terms and subject to the conditions set forth below.
Consolidated has agreed to affirm its existing Unconditional
Guarantee and to execute and deliver to the Bank the Line of
Credit Guarantee, on the terms and conditions set forth therein.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, including the covenants, terms
and conditions hereinafter appearing, and to induce the Bank to
extend
additional credit, the parties hereby covenant and agree
as follows:
Section 1. Definitions. All defined terms used and not
defined herein are used as defined in the 1994 Agreement and the
1994 Mortgage (as defined below). As used herein and in the 1994
Agreement, the following terms shall have the meanings specified
herein (to be equally applicable to both the singular and plural
forms of the terms defined), and the definitions of any of the
following terms which appear in the 1994 Agreement are hereby
deleted in their entirety:
"Agreement" shall mean the 1994 Agreement, as amended
by this Amendment and as subsequently amended, modified or
supplemented from time to time in accordance with its terms.
"Commitment" shall mean the commitment to lend set
forth in Section 2.01 of the Agreement, as amended by this
Amendment.
"Line of Credit Guarantee" shall mean the Guarantee
Agreement and Addendum to Guarantee by Consolidated of even date
herewith, guaranteeing the additional portion of the Line of
Credit Loan, as subsequently amended, modified or supplemented
from time to time in accordance with its terms.
"Line of Credit Note" shall mean the 1994 Line of
Credit Note as amended by this Amendment and as subsequently
amended, modified or supplemented from time to time in accordance
with its terms.
"Loan Documents" means the Agreement, as amended by
this Amendment, the Notes, the Security Agreement, the Mortgage,
the Unconditional Guarantee, the Line of Credit Guarantee, and
any other document evidencing or securing the Loans, and all
other instruments, certificates, financing statements or other
documents executed or delivered in connection with the
transactions contemplated hereby or thereby.
"Modification of Mortgage" shall mean the Modification
of Mortgage dated March 31, 1995 executed by the Borrower in
favor of the Bank.
"Mortgage" shall mean the 1994 Mortgage as amended by
this Amendment and as subsequently amended, modified,
supplemented, renewed or extended from time to time in accordance
with its terms.
"1994 Agreement" shall have the meaning set forth in
the recitals hereto.
"1994 Line of Credit Note" shall have the meaning set
forth in the recitals hereto.
2
"1994 Mortgage" shall mean the Corporate Mortgage of
Real Property executed by the Borrower in favor of the Bank dated
July 21, 1994, as recorded in Lee County, South Carolina on
July 22, 1994 at Book 168, Page 214.
"Term Loan" shall have the meaning set forth in
Section 3 of this Amendment.
Section 2. Line of Credit Loan. Subject to the terms and
conditions contained herein and in the 1994 Agreement, through
the Termination Date, the Bank will make Advances to the Borrower
under the Line of Credit Loan of up to TEN MILLION DOLLARS
($10,000,000) (as such figure may be reduced from time to time as
provided in the Agreement, the "Commitment"). In all other
respects, the terms of Section 2.01 of the 1994 Agreement shall
remain in full force and effect.
Section 3. Term Loan. Subject to the terms and conditions
contained herein and in the 1994 Agreement, Section 2.02 of the
1994 Agreement is hereby amended as follows:
(a) Section 2.02(a) of the 1994 Agreement is deleted in its
entirety and the following provision is substituted therefor:
(a) Subject to the terms and conditions
hereinafter set forth, on and after the Closing
Date through and including December 30, 1994, at
the Borrower's request the Bank agreed to lend to
the Borrower, in one or more advances, the sum of
FIFTEEN MILLION DOLLARS ($15,000,000) (the "Term
Loan"). Due to the principal repayment of $375,000
made pursuant to Section 2.02(c) of this Agreement
on December 30, 1994, availability under the Term
Loan has been permanently reduced to $14,625,000.
From December 30, 1994 through and including
March 31, 1995, at the Borrower's request, the
Bank agrees to lend to the Borrower, in one or
more advances (each, an "Advance"), and the
Borrower agrees to borrow from the Bank, the sum
of FOURTEEN MILLION SIX HUNDRED TWENTY-FIVE
THOUSAND DOLLARS ($14,625,000); provided, that the
Borrower is obligated to take Advances under the
Term Loan aggregating $14,625,000 in principal on
or before March 31, 1995; and provided, further,
that each Advance under the Term Loan shall be in
the minimum principal amount of $500,000, that no
more than four (4) Advances shall be made by the
Bank between December 30, 1994 and March 31, 1995,
and that the Advances made on or before March 31,
1995 must total $14,625,000 in principal. The
Term Loan shall be a Euro-Dollar Loan.
3
(b) Section 2.02(d)(iii) of the 1994 Agreement is amended
by deleting the date "November 30, 1994" in the first line
thereof and substituting the date "March 31, 1995."
(c) In all other respects, the terms of Section 2.02 of the
1994 Agreement shall remain in full force and effect.
Section 4. Fees. Subject to the terms and conditions
contained herein and in the 1994 Agreement, Section 2.08 of the
1994 Agreement is amended as follows:
(a) Section 2.08(b) is deleted in its entirety and the
following provision is substituted therefor:
(b) From and after the date hereof to and
including March 31, 1995, the Borrower shall pay
to the Bank a commitment fee at the rate of one-
eighth (1/8) of one percent (0.125%) per annum on
the average daily balance of the undrawn portion
of the Term Loan principal. The Bank shall
calculate the amount of such fee on or after
November 30, 1994 and again on or after March 31,
1995. In each case, such fee shall be due and
payable by the Borrower within five (5) Domestic
Business Days after receipt of a written invoice
from the Bank setting forth the amount of such
fee.
(b) In all other respects, the terms of Section 2.08 of the
1994 Agreement shall remain in full force and effect.
Section 5. Information for Stub Accounting Period.
(a) Subject to the terms and conditions contained herein and in
the 1994 Agreement, Section 6.01 of the 1994 Agreement is amended
by deleting the parenthetical, "including without limitation for
any stub accounting period running from August 31, 1994 through
the fiscal year end of Consolidated)" in the second through
fourth lines thereof, and substituting the following
parenthetical therefor:
(except the short Fiscal Year of the Borrower
ended January 1, 1995)
(b) Section 6.01 of the 1994 Agreement is amended by adding
the following subsection (h) thereto:
(h) as soon as available and in any event
within 90 days after the end thereof, (i) a
balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of
the stub accounting period running from
August 31, 1994 through January 1, 1995 and
the related statement of income and statement
of cash
4
flows for such period and for the portion of the
Fiscal Year ended at the end of such stub accounting
period, all certified (subject to normal year-end
adjustments) as to fairness of presentation and
consistency with past practice of the Borrower's
auditors by the chief financial officer or the
treasurer of Consolidated, and (ii) simultaneously
with the delivery of information set forth in
clause (i) above, a certificate of the chief
financial officer or the treasurer of Consolidated
stating whether any Default exists on the date of
such certificate, and if any Default then exists,
setting forth the details thereof and the action
which the Borrower is taking or proposes to take
with respect thereto.
(c) In all other respects, the terms of Section 6.01 of the
1994 Agreement shall remain in full force and effect.
Section 6. Operating Leases. Subject to the terms and
conditions contained herein and in the 1994 Agreement, Section
6.03 of the 1994 Agreement is amended by deleting the dollar
amount "$800,000" in the fourth line thereof and substituting
therefor the dollar amount "$600,000."
Section 7. Conditions to Actions Set Forth Herein. (a) It
is a condition precedent that prior to the extension of
additional credit to the Borrower as contemplated hereby, and
prior to the effectiveness of the amendments contained herein,
the Borrower shall have furnished to the Bank, in form and
substance satisfactory to the Bank, the following:
(i) Four executed counterparts of this Amendment;
(ii) The executed Modification of Mortgage;
(iii) Four executed counterparts of the Line of Credit
Guarantee;
(iv) Officer's Certificate of the Borrower;
(v) Certificates of the existence and good standing of
the Borrower and Consolidated issued by the Secretaries
of State of the jurisdiction of organization and each
jurisdiction where each is required to qualify to do
business as a foreign corporation, each dated within
ten (10) days prior to the date hereof;
(vi) A certificate of the President or Secretary of the
Borrower certifying: (i) that attached thereto is a
true
5
and complete copy of the Bylaws of the Borrower as
in effect on the date hereof; and (ii) that attached
thereto is a true and complete copy of resolutions
adopted by the Board of Directors of the Borrower
approving the execution, delivery and performance of
this Amendment and the Modification of Mortgage on
behalf of the Borrower, and the transactions contem-
plated herein and therein, and authorizing duly
appointed representatives of Consolidated to execute
this Amendment and the Modification of Mortgage on the
Borrower's behalf, and that those resolutions remain in
full force and effect. The Bank may rely on such
certificate as to authorized persons until it receives
another certificate of the Borrower canceling or amend-
ing the prior certificate;
(vii) Copies of tax, lien and judgment search reports
satisfactory to the Bank, in such jurisdictions as the
Bank may determine, covering the Realty and all
personal property of the Borrower;
(viii) A certificate of a vice president and assistant
secretary of Consolidated certifying: (i) that
attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of
Consolidated approving the execution, delivery and
performance of this Amendment and the Line of Credit
Guarantee, and that those resolutions remain in full
force and effect; (ii) the names and signatures of
those persons authorized on behalf of Consolidated to
execute this Amendment and the Modification of Mortgage
on behalf of the Borrower and the other documents and
certificates to be delivered pursuant thereto and to
sign the Line of Credit Guarantee on behalf of
Consolidated; (iii) that all of the representations and
warranties contained in Article V of the 1994
Agreement and contained in this Amendment and in the
Line of Credit Guarantee are true and correct in all
respects as of the date hereof; and (iv) that no event
has occurred and is continuing, or would result from
the consummation of the transactions contemplated
hereby and by the other documents delivered in
connection herewith, which constitutes or would
constitute a Default or an Event of Default. The Bank
may rely on such certificate as to authorized persons
until it receives another certificate of the Borrower
canceling or amending the prior certificate;
(ix) An opinion of counsel for the Borrower and
Consolidated dated the date hereof in form and
substance acceptable to the Bank as to the matters set
forth on ADDENDUM I hereto;
6
(x) Executed waivers and consents from each of the
members of the Borrower with respect to the Security
Agreement dated _______________ among the Borrower and
its members;
(xi) Four executed originals of the Reaffirmation
Agreement of American National Can Company, Inc.; and
(xii) Such other documentation as the Bank may request.
(b) It is also a condition precedent that prior to the
extension of additional credit to the Borrower as contemplated
hereby, and prior to the effectiveness of the amendments
contained herein, the following additional conditions shall be
satisfied:
(i) No Default or Event of Default shall exist as of
the date of such funding;
(ii) The Borrower shall have performed and complied
with all agreements and conditions contained herein, in
the 1994 Agreement and in each of the other Loan
Documents which are required to be performed or
complied with by the Borrower;
(iii) As of the date of such funding, no event shall
have occurred that could reasonably be expected to
cause a Material Adverse Effect;
(iv) The representations and warranties contained
herein and in Article V of the 1994 Agreement and in
each of the other Loan Documents shall be true and
correct in all respects as of the date of such funding;
(v) The following documents shall have been recorded
in all appropriate jurisdictions and the Bank shall
have received acknowledgment copies thereof, or in lieu
thereof other evidence reasonably satisfactory to the
Bank that such recordations have been made:
(A) Memorandum of Lease between the Borrower and
the Town of Bishopville; and
(vi) Such other action shall have been taken as the
Bank may reasonably request.
(c) It is a condition subsequent to the transactions
contemplated hereby that within thirty (30) days after the
closing of such transactions, the Borrower shall have recorded
the following in all appropriate jurisdictions and the Bank shall
have received acknowledgment copies thereof, in form satisfactory
to the Bank:
7
(i) Easement in favor of the Borrower from the
Town of Bishopville with respect to encroachments
of sewers;
(ii) Easement in favor of the Borrower from the
Town of Bishopville with respect to an
encroachment of a sanitary sewer; and
(iii) UCC termination statements executed by
NationsBank (formerly Citizens and Southern
National Bank).
(d) It is a condition subsequent to the transactions
contemplated hereby that within sixty (60) days after the closing
of such transactions, the Borrower shall have furnished to the
Bank, in form and substance satisfactory to the Bank, the
following:
(i) Additional corporate resolutions of the
Borrower authorizing the transactions contemplated
hereby;
(ii) Substitute opinion of McDermott, Will &
Emery, counsel to the Borrower, dated the date
hereof, as to matters set forth on Addendum I
hereto; and
(iii) Consents and estoppels in favor of the Bank
from the following equipment lessors:
(A) Illinois Tool Works Inc.; and
(b) Riverwood International USA, Inc.
Section 8. Additional Representations, Warranties and
Covenant. In order to induce the Bank to enter into this
Amendment, the Borrower reaffirms the representations and
warranties contained in the 1994 Agreement as of the date hereof
(subject only to the changes set forth in the Schedules attached
to this Amendment), and makes the additional representations and
warranties set forth below:
(a) Each of the Borrower and Consolidated is duly organized,
validly existing and in good standing under the laws of the state
of its incorporation and is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such
qualification is necessary.
(b) Each of the Borrower and Consolidated has all corporate
powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
8
(c) Each of the Borrower and Consolidated has full power and
authority to enter into this Amendment, and Consolidated has full
power and authority to enter into the Line of Credit Guarantee,
all such action having been duly authorized by all proper and
necessary corporate action.
(d) Neither the execution of this Amendment or the Line of
Credit Guarantee, nor the fulfillment of or compliance with their
respective provisions and terms, will (A) conflict with, or
result in a breach of the terms, conditions or provisions of, or
constitute a violation of or default under, or require any
approval under, any applicable law, regulation, judgment, writ,
order or decree binding on the Borrower or Consolidated, or the
certificate of incorporation, bylaws or other organizational
documents of the Borrower or Consolidated, or any agreement or
instrument to which the Borrower or Consolidated is now a party
or by which either of them or any of their respective properties
are bound or affected, or (B) create any lien, charge or
encumbrance upon any of the property or assets of the Borrower or
Consolidated pursuant to the terms of any agreement or instrument
to which the Borrower or Consolidated is a party or by which
either of them or any of their respective properties are bound
except as contemplated hereby.
(e) This Amendment and the Line of Credit Guarantee have
each been duly executed and delivered by each of the Borrower and
Consolidated, as the case may be, and each is the legal, valid
and binding obligation of each of the Borrower and Consolidated,
as the case may be, enforceable against each of them in
accordance with its terms.
(f) The Collateral is not subject to any liens or
encumbrances as of the date hereof except the lien of the Bank
and except as otherwise referred to on Schedule 1.01 of the
Agreement (as amended by Schedule 1.01 attached to this
Amendment).
(g) There is no action, suit or proceeding pending or
threatened against or affecting the Borrower or Consolidated
before any court or arbitrator or any governmental authority
which could materially adversely affect the business,
consolidated financial position or consolidated results of
operations of the Borrower and Consolidated, or which in any
manner draws into question the validity of, or could materially
impair the ability of the Borrower to perform its obligations
under the Agreement or the ability of Consolidated to perform its
obligations under the Unconditional Guarantee or the Line of
Credit Guarantee.
(h) Except as otherwise disclosed on Schedule 1.01 to the
1994 Agreement (as amended by Schedule 1.01 attached to this
Amendment), the Bank continues to hold a valid first priority
lien on all of the Collateral, including without limitation the
Realty, free and clear of all defects and encumbrances (except
Permitted
9
Encumbrances and those exceptions to title listed in
the title policy delivered to the Bank on the Closing Date).
(i) The audited consolidated financial statements of
Consolidated for the fiscal year ended January 1, 1995, and the
unaudited financial statements of the Borrower for the four
months ended January 1, 1995, copies of which have been furnished
to the Bank, are correct and complete and present fairly the
financial condition and results of operations of the Borrower and
Consolidated as of the dates and for the periods referred to
therein. Neither the Borrower nor Consolidated has any material
direct or contingent liabilities as of the date of this Amendment
which are not provided for or reflected in such financial
statements or referred to in notes thereto, except for
(a) liabilities contemplated by this Amendment, (b) borrowings
under the Loan Documents since January 1, 1995 and
(c) liabilities incurred in the ordinary course of business since
January 1, 1995. The financial statements of the Borrower have
been prepared on a basis consistent with the most recent audited
consolidated financial statements of the Borrower previously
delivered to the Bank. There has been no material adverse change
in the business, properties or condition, financial or otherwise,
of the Borrower or Consolidated since July 22, 1994.
(j) Neither this Amendment nor the Line of Credit Guarantee
nor any reports, schedules, certificates, agreements or
instruments heretofore delivered to the Bank by the Borrower or
Consolidated or delivered simultaneously with the execution of
this Amendment contain any misrepresentation or untrue statement
of a material fact or omit to state any material fact necessary
to make this Amendment, the Line of Credit Guarantee or any such
reports, schedules, certificates, agreements or instruments not
misleading.
(k) The Borrower is Solvent, and after consummation of this
Amendment and the transactions contemplated hereby and giving
effect to all Debt incurred by the Borrower, will be Solvent.
(l) All representations and warranties by the Borrower and
Consolidated made herein and in the 1994 Agreement and the other
Loan Documents shall survive the delivery of this Amendment and
the further extension of credit by the Bank, and any
investigation at any time made by or on behalf of the Bank shall
not diminish the Bank's rights to rely thereon.
(m) The Borrower shall notify the Bank as to any equipment
leases entered into after the date hereof and shall provide
copies of the same to the Bank. At the request of the Bank, the
Borrower shall within sixty (60) days of any such request obtain
a consent and estoppel in favor of the Bank from the lessee under
any such equipment lease, in form and substance satisfactory to
the Bank.
10
Section 9. Line of Credit Note. The principal amount of
the 1994 Line of Credit Note is hereby amended to be stated as,
"$10,000,000." The 1994 Line of Credit Note continues to be the
valid and binding obligation of the Borrower, is in full force
and effect and remains secured by the lien of the Bank pursuant
to the Mortgage and the Security Agreement. This is an amendment
and reaffirmation of the 1994 Line of Credit Note and is not a
novation thereof. This Amendment and the 1994 Line of Credit
Note together constitute the Line of Credit Note, and are one and
the same instrument.
Section 10. Term Note. The Term Note continues to be the
valid and binding obligation of the Borrower, is in full force
and effect, remains secured by the lien of the Bank pursuant to
the Mortgage and the Security Agreement, and remains secured by
the Unconditional Guarantee. This is a reaffirmation of the Term
Note and is not a novation thereof.
Section 11. Security Agreement. The security interest and
lien of the Bank granted pursuant to the Security Agreement
continues to secure in full the payment and performance of the
Obligations, including without limitation the full amount of
advances outstanding at any time under the Line of Credit Loan
and the Line of Credit Note, and subject to the foregoing, the
Security Agreement is hereby reaffirmed in all respects.
Section 12. Unconditional Guaranty. Consolidated hereby
reaffirms in all respects the Unconditional Guaranty of all
Obligations arising under the Term Note, on the terms and
conditions set forth in the Unconditional Guaranty.
Section 13. Mortgage. The 1994 Mortgage is hereby amended
by deleting the recital on the first page thereof in its entirety
and substituting the following:
WHEREAS, Borrower is indebted to Lender
in the principal sum of not more than Twenty-
Five Million Dollars ($25,000,000), which
indebtedness is evidenced by that certain
Line of Credit Note dated July 22, 1994 as
amended by that certain First Amendment to
Credit Agreement, Line of Credit Note and
Mortgage and Reaffirmation of Term Note,
Security Agreement, Guarantee Agreement and
Addendum to Guarantee dated March 31, 1995
made by Borrower to the order of Lender in
the amount of $10,000,000; that certain Term
Note dated July 22, 1994 made by Borrower to
the order of Lender in the amount of
$15,000,000; and all other obligations of
Borrower arising in connection with that
certain Credit Agreement dated July 22, 1994
between Borrower and
11
Lender, as amended by that certain First Amendment
to Credit Agreement, Line of Credit Note and Mortgage
and Reaffirmation of Term Note, Security Agreement,
Guarantee Agreement and Addendum to Guarantee dated
March 31, 1995 (collectively, the "Credit Agreement,"
all of the foregoing collectively referred to herein
as the "Note"), providing for repayment of principal
and interest, with the balance of the indebtedness,
if not sooner paid, due and payable on
September 30, 2004.
Section 14. Bank's Expenses. The Borrower agrees to
reimburse the Bank on demand for the Bank's costs and expenses
incurred in connection with this Amendment and the transactions
contemplated hereby, including, without limitation, the
reasonable fees and expenses of the Bank's counsel.
Section 15. Confirmation of Debt. The Borrower hereby
affirms all of its indebtedness, liabilities and obligations to
the Bank under the Notes, and that such indebtedness, liabilities
and obligations are owed to the Bank in full. The Borrower and
Consolidated agree that the obligations due under the Notes shall
include all costs and expenses incurred by the Bank in connection
with this Amendment and the transactions contemplated hereby
(including without limitation the reasonable fees and expenses of
counsel) which are not reimbursed upon demand by the Bank.
Section 16. Release. The Borrower and Consolidated
acknowledge and agree that, as of the date hereof, neither has
any claim, defense or set-off right against the Bank, its
officers, directors, employees, agents, successors, assigns or
affiliates, nor any claim, defense or set-off right to the
enforcement by the Bank of the full amount of the obligations due
under the Notes. The Borrower and Consolidated hereby forever
expressly waive, release, relinquish, satisfy, acquit and
discharge the Bank, its 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.
Section 17. No Waiver. Except as expressly provided
herein, neither the Bank's entering into this Amendment, nor its
course of dealing, shall operate as a waiver of any event of
default previously or hereafter occurring, or any right or
remedy.
Section 18. Conflicting Terms; No Other Modifications. To
the extent that any of the terms and conditions of this Amendment
are inconsistent with the terms and conditions of the 1994
Agreement or any other Loan Document, the terms and conditions of
this Amendment shall control. Otherwise, unless expressly
modified or superseded herein, all of the terms and conditions of
the 1994
12
Agreement and the other Loan Documents shall remain
unaffected and in full force and effect.
Section 19. Further Assurances. The Borrower and
Consolidated agree to execute and deliver all documents and to
take all actions as the Bank may require to carry out the
purposes of this Amendment.
Section 20. This Amendment.
(a) Incorporation by Reference. The provisions of
this Amendment are incorporated into the 1994 Agreement and made
a part thereof as if fully set forth therein.
(b) Effect of Delay and Waivers; Amendments. No delay
or omission by the Bank to exercise any right or power accruing
upon any default, omission or failure of performance hereunder
shall impair any such right or power or shall be construed to be
a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Bank to exercise any remedy now or hereafter
existing at law or in equity or by statute, it shall not be
necessary to give any notice, other than such notice as may be
expressly required. In the event any provision contained in this
Amendment should be breached by any party and thereafter waived
by the other party so empowered to act, such waiver shall be
limited to the particular breach hereunder. No waiver,
amendment, release or modification of this Amendment shall be
established by conduct, custom or course of dealing, but solely
by an instrument in writing duly executed by the parties
thereunto duly authorized by this Amendment.
(c) Counterparts. This Amendment 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.
(d) Severability. The invalidity or unenforceability
of any one or more phrases, sentences, clauses or Sections
contained in this Amendment shall not affect the validity or
enforceability of the remaining portions of this Amendment, or
any part thereof.
(e) Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of
North Carolina.
(f) References. The words "herein," "hereof,"
"hereunder" and other words of similar import when used in this
Amendment refer to this Amendment as a whole, and not to any
particular article, section or subsection.
13
Section 21. Schedules. Schedules 1.01, 5.14 and 5.15 of
the 1994 Agreement are amended as set forth on Schedules 1.01,
5.14 and 5.15 attached hereto, incorporated herein and in the
1994 Agreement by reference as if fully set forth herein and
therein.
IN WITNESS WHEREOF, the parties have caused this
Amendment to be executed in their respective names and their
respective seals to be hereunto affixed and attested by their
duly authorized representatives, all as of the date first above
written.
SOUTH ATLANTIC CANNERS, INC.
By COCA-COLA BOTTLING CO.
CONSOLIDATED, as Manager
ATTEST:
By:
___________ Secretary Name:
Title:
(CORPORATE SEAL)
COCA-COLA BOTTLING CO. CONSOLIDATED
ATTEST:
By:
___________ Secretary Name:
Title:
(CORPORATE SEAL)
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By:
Name:
Title:
293\145975
14
ADDENDUM I TO FIRST AMENDMENT TO CREDIT AGREEMENT, LINE OF
CREDIT NOTE AND MORTGAGE, AND REAFFIRMATION OF TERM NOTE,
SECURITY AGREEMENT, GUARANTY AGREEMENT AND ADDENDUM TO
GUARANTY AGREEMENT
An opinion of counsel for the Borrower and Consolidated as
to the following matters:
(i) each of the Borrower and Consolidated is duly organized,
validly existing and in good standing under the laws of the state
of its incorporation and is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such
qualification is necessary;
(ii) each of the Borrower and Consolidated has all corporate
powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted;
(iii) each of the Borrower and Consolidated has full power and
authority to enter into this Amendment, and Consolidated has full
power and authority to enter into the Line of Credit Guarantee,
all such action having been duly authorized by all proper and
necessary corporate action;
(iv) to the best knowledge of such counsel, neither the execution
of this Amendment or the Line of Credit Guarantee, nor the
fulfillment of or compliance with their respective provisions and
terms, will (A) conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a violation of
or default under, or require any approval under, any applicable
law, regulation, judgment, writ, order or decree binding on the
Borrower or Consolidated, or the certificate of incorporation,
bylaws or other organizational documents of the Borrower or
Consolidated, or any agreement or instrument to which the
Borrower or Consolidated is now a party or by which either of
them or any of their respective properties are bound or affected,
or (B) create any lien, charge or encumbrance upon any of the
property or assets of the Borrower or Consolidated pursuant to
the terms of any agreement or instrument to which the Borrower or
Consolidated is a party or by which either of them or any of
their respective properties are bound except as contemplated
hereby;
(v) this Amendment and the Line of Credit Guarantee have each
been duly executed and delivered by each of the Borrower and
Consolidated, as the case may be, and each is the legal, valid
and binding obligation of each of the Borrower and Consolidated,
as the case may be, enforceable against each of them in
accordance with its terms;
(vi) the Collateral is not subject to any liens or encumbrances
as of the date hereof except the lien of the Bank and except as
otherwise referred to on Schedule 1.01 of the Agreement;
(vii) to the best knowledge of such counsel, there is no action,
suit or proceeding pending or threatened against or affecting the
Borrower or Consolidated before any court or arbitrator or any
governmental authority which could materially adversely affect
the business, consolidated financial position or consolidated
results of operations of the Borrower and Consolidated, or which
in any manner draws into question the validity of, or could
materially impair the ability of the Borrower to perform its
obligations under the Agreement or the ability of Consolidated to
perform its obligations under the Unconditional Guarantee or the
Line of Credit Guarantee; and
(viii) the Bank continues to hold a valid first priority lien on
all of the Collateral, including without limitation the Realty,
free and clear of all defects and encumbrances (except Permitted
Encumbrances and those exceptions to title listed in the title
policy delivered to the Bank on the Closing Date).
293\145975