Exhibit 4.1
CONSENT
THIS CONSENT (this "Consent"), is entered into as of January 25, 2002 by
Piedmont Coca-Cola Bottling Partnership, a Delaware corporation (the
"Borrower"), General Electric Capital Corporation, as Agent and assignee of LTCB
Trust Company (the "Agent"), and such number of the Banks (defined hereafter)
signatory to the Loan Agreement (defined hereafter) as may be required pursuant
to that certain Loan Agreement dated as of May 28, 1996 (as amended from time to
time, the "Loan Agreement") among Borrower, Agent, the banks party thereto from
time to time (the "Banks") and the following co-agents: Deutsche Bank AG, New
York Branch, DG Bank Deutsche Genossenschaftsbank, Cayman Islands Branch and The
Industrial Bank of Japan, Limited, Atlanta Agency. Capitalized terms not
otherwise defined herein shall be ascribed the meaning set forth for such term
in the Loan Agreement.
WHEREAS, pursuant to the Loan Agreement, the Banks made available to the
Borrower certain credit facilities;
WHEREAS, the Borrower is required to pay to the Banks a principal
installment of $97,500,000 on the Interim Maturity Date (the "Scheduled
Principal Installment");
WHEREAS, in order to facilitate the Borrower's payment of the Scheduled
Principal Installment, the Borrower may desire to borrow up to $97,500,000 from
Coca-Cola Bottling Co. Consolidated ("Consolidated"), an affiliate of Borrower
(such loan being referred to herein as the "Intercompany Loan");
WHEREAS, Borrower has requested that the Agent and the Banks consent to
the making of the Intercompany Loan; and
WHEREAS, the Agent and the Banks executing this Consent are willing to
consent to the Intercompany Loan under the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained and for other valuable consideration, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1. Consent to Intercompany Loan.
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1.1 The Agent and the Banks executing this Consent hereby consent to
the making of the Intercompany Loan and the performance by the Borrower of its
obligations with respect thereto, so long as the following conditions are
satisfied:
(a) The obligations of the Borrower under the Intercompany Loan must
be subordinated to the obligations of the Borrower under the Loan
Documents, which subordination shall be effected by a
subordination agreement (the "Subordination Agreement") to be
executed by Consolidated and Agent (and acknowledged by
Borrower), all upon such terms as may be acceptable to Agent, in
its sole
discretion (including, without limitation, a prohibition on any
payments by Borrower to Consolidated with respect to the
Intercompany Loan other than regularly scheduled interest
payments, at the non-default rate, payable only at such time as no
Event of Default exists under the Loan Documents). The
Subordination Agreement shall expressly prohibit any modification
of the Intercompany Loan Documentation (defined hereafter) without
the prior written consent of the Agent, in its sole discretion.
(b) The Intercompany Loan shall not be secured by any liens or
security interests in any property of Borrower or any other
Person, and the Borrower's obligations thereunder shall not be
guarantied by any other Person.
(c) The Intercompany Loan shall not (i) exceed $97,500,000, (ii)
require principal payments prior to the date that is at least one
year after the Maturity Date or (iii) have an annual interest rate
greater than nine percent. The Intercompany Loan will be made in a
single advance to Borrower by Consolidated.
(d) Immediately upon receipt of the proceeds of the Intercompany Loan
by Borrower, Borrower must deliver all of such proceeds to Agent
in immediately available funds for distribution to the Lenders
against payment of the Scheduled Principal Installment.
(e) The promissory note and all other documentation evidencing or
relating to the Intercompany Loan (collectively, the "Intercompany
Loan Documentation") must be approved by Agent, in its sole
discretion, and fully executed copies of all Intercompany Loan
Documentation must be provided to Agent.
(f) On both the date the Borrower executes the Intercompany Loan
Documentation and the date the proceeds of the Intercompany Loan
are advanced to the Borrower, no Default or Event of Default shall
exist.
(g) The Intercompany Loan Documentation shall be executed and
delivered by all parties thereto, and the Borrower shall have
received the proceeds thereof, no later than the Interim Maturity
Date.
1.2 So long as the Intercompany Loan is made in accordance with the
conditions set forth in Section 1.1 of this Consent, the Agent and the Banks
hereby waive the following provisions of the Loan Agreement for the sole purpose
of allowing Borrower to (i) execute and deliver the Intercompany Loan
Documentation, (ii) receive the proceeds of the Intercompany Loan, and (iii)
perform its obligations under the Intercompany Loan Documentation, subject
however to compliance with the terms of the Subordination Agreement (and such
waiver shall not extend to any other or subsequent events, loans or
transactions):
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(a) Section 8.05 of the Loan Agreement (and the Intercompany Loan
shall not be counted against the Indebtedness basket provided
in Section 8.05(f) of the Loan Agreement); and
(b) Section 8.10 of the Loan Agreement.
1.3 The Borrower hereby represents and warrants to the Agent and
the Banks that, after giving effect to the waivers set forth in Section 1.2
above, the Intercompany Loan and the Intercompany Loan Documentation comply in
all respects with the requirements of the Loan Agreement and the other Loan
Documents and that the consummation of the Intercompany Loan and the performance
by the Borrower of its obligations under the Intercompany Loan Documentation
will not cause a Default or an Event of Default under any Loan Document. This
Consent is limited to its terms as expressly set forth herein and shall not be
considered a waiver of any other provisions of the Loan Agreement or any other
Loan Document.
SECTION 2. Effectiveness of Consent. This Consent shall not be deemed
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effective until (i) the Agent shall have executed and delivered to the Borrower
a copy of this Consent and (ii) the Agent shall have one or more copies of this
Consent, originally executed by Borrower and such number of the Banks as may
constitute the Required Banks.
SECTION 3. Miscellaneous.
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3.1 No Waiver. Except to the extent that a provision of the Loan
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Agreement and the other Loan Documents is expressly modified by this Consent,
nothing in this Consent shall constitute a modification of the provisions of the
Loan Agreement or any other Loan Document or a waiver by the Agent or Banks of
their rights and remedies under the Loan Documents. No act or omission by the
Agent or any Bank shall constitute a waiver of any of their rights and remedies
under the Loan Documents unless such waiver is in writing, signed by the Agent
and the requisite Banks required for approval of such modification under the
Loan Agreement and then only to the extent specifically set forth therein.
Nothing in this Consent shall be deemed to modify or affect any obligations that
the Borrower, Consolidated, or any other affiliate of the Borrower or
Consolidated, may have to Agent or any Lender with respect to any credit
facility or other financial arrangements other than those evidenced by the
Credit Agreement.
3.2 Reaffirmation. The Borrower hereby acknowledges that all terms
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and conditions of the Loan Agreement and the other Loan Documents are and shall
remain in full force and effect. The Borrower hereby reaffirms the outstanding
Loans. This Consent is incorporated into the Loan Agreement by reference and
shall constitute a part thereof as if fully set forth therein. In the event that
any of the terms or the provisions of the Loan Agreement are inconsistent with
or contradictory of the terms hereof, the terms of this Consent shall control.
Borrower hereby agrees to pay promptly all costs and expenses incurred by Agent
(including, without limitation, the fees and expenses of Agent's counsel) in
connection with the preparation, negotiation and execution of this Consent.
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3.3 Release. The Borrower acknowledges and agrees that, as of the
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date hereof, it does not have any claim, defense or set-off right against the
Agent or any Bank or their respective officers, directors, employees, agents,
successors, assigns or affiliates, nor any claim, defense or set-off right to
the enforcement by the Agent or any Bank of the full amount of the Loans. The
Borrower hereby forever expressly waives, releases relinquishes, satisfies,
acquits and discharges the Agent and the Banks, and their respective 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,
which occurred or arose on or prior to the date hereof.
3.4 Counterparts. This Consent may be executed simultaneously in
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several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Consent may be
delivered by facsimile transmission with the same force and effect as if
originally executed copies of this Consent were delivered to all parties hereto.
3.5 Severability. The invalidity or unenforceability of any one or
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more phrases, sentences, clauses or Sections contained in this Consent shall not
affect the validity or enforceability of the remaining portions of this Consent,
or any part thereof.
3.6 Governing Law. This Consent shall be governed by and
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construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have each caused this Consent to
be duly executed by their duly authorized representatives as of the date first
above written.
PIEDMONT COCA-COLA BOTTLING COMPANY 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: ___________________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL GENERAL ELECTRIC CAPITAL CORPORATION,
CORPORATION, as Agent as Lender
By:_________________________________ By:_____________________________________
Name: Name:
Title: Title:
SIGNATURE PAGE TO CONSENT
CREDIT SUISSE FIRST BOSTON, as
Lender
By: ______________________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
DEUTSCHE BANK AG, NEW YORK
BANK, as Co-Agent and Lender
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
COMMERZBANK AG, as Lender
By: ______________________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
DZ BANK DUETSCHE
GENOSSENSCHAFTSBANK, CAYMAN
ISLANDS BRANCH, as Co-Agent and Lender
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
FLEET NATIONAL BANK, as Lender
By: ______________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
INDUSTRIAL BANK OF JAPAN, LTD., as
Lender
By: _________________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
KBC BANK, as Lender
By: ____________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
SOCIETE GENERALE, as Lender
By: _____________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT
WACHOVIA BANK OF NORTH
CAROLINA, N.A., as Lender
By: _____________________________
Name:
Title:
SIGNATURE PAGE TO CONSENT