Attached files
file | filename |
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10-Q - FORM 10-Q - Coca-Cola Consolidated, Inc. | g24279e10vq.htm |
EX-12 - EX-12 - Coca-Cola Consolidated, Inc. | g24279exv12.htm |
EX-32 - EX-32 - Coca-Cola Consolidated, Inc. | g24279exv32.htm |
EX-4.3 - EX-4.3 - Coca-Cola Consolidated, Inc. | g24279exv4w3.htm |
EX-4.2 - EX-4.2 - Coca-Cola Consolidated, Inc. | g24279exv4w2.htm |
EX-31.2 - EX-31.2 - Coca-Cola Consolidated, Inc. | g24279exv31w2.htm |
EX-31.1 - EX-31.1 - Coca-Cola Consolidated, Inc. | g24279exv31w1.htm |
EX-10.2 - EX-10.2 - Coca-Cola Consolidated, Inc. | g24279exv10w2.htm |
EX-10.1 - EX-10.1 - Coca-Cola Consolidated, Inc. | g24279exv10w1.htm |
Exhibit 4.1
This Third Amended and Restated Promissory Note is an amendment and restatement of, and
not a prepayment or novation of, the Second Amended and Restated Promissory Note, dated as of
August 25, 2005 (the Prior Note). Upon the execution of this Third Amended and Restated Promissory
Note and delivery thereof to the Holder, the Prior Note shall be deemed to be replaced by this
Third Amended and Restated Promissory Note.
THIRD AMENDED AND RESTATED PROMISSORY NOTE
$100,000,000.00 | June 16, 2010 |
FOR VALUE RECEIVED, the undersigned PIEDMONT COCA-COLA BOTTLING PARTNERSHIP, a Delaware
general partnership (the Company), hereby promises to pay to COCA-COLA BOTTLING CO. CONSOLIDATED,
a Delaware corporation or its successors and assigns (Holder), the principal amount of One
Hundred Million and 00/100 Dollars ($100,000,000.00), or the lesser amount of outstanding Loans (as
defined below) made by Holder to the Company, in accordance with the terms set forth in this Third
Amended and Restated Promissory Note (this Note).
1. Revolving
Credit Loans. (a) Subject to the terms and conditions set forth in this
Note, Holder agrees to make revolving credit loans (each, a Loan and collectively, the
Loans) to the Company from time to time from the date of this Note through December 31, 2015 (the
Maturity Date) as requested by Company in accordance with the terms of Section 1(b) below;
provided that, the aggregate principal amount of all outstanding revolving credit loans at any
time (after giving effect to any amount requested) shall not exceed $100,000,000.00.
(b) As of the date of this Note, all principal and interest outstanding under the Prior Note
shall become outstanding principal and interest under this Note. So long as no Event of Default (as
defined in Section 4) is continuing and subject to the limitations set forth herein, the Company
may make additional requests for Loans from time to time upon notice to Holder.
(c) Subject to the terms and conditions hereof, the Company may borrow, repay and reborrow
Loans hereunder until the Maturity Date. The Company may prepay this Note in whole or in part at
any time, without premium or penalty. All principal and interest outstanding under any Loan
hereunder will become due and payable on the Maturity Date.
2. Payments of Interest. The Company further promises to pay interest on the unpaid
principal amount of each Loan from the date of the relevant Loan until such Loan is paid in
full, at a rate per annum equal to Holders average monthly cost of borrowing (taking into account all
indebtedness of Holder and its consolidated subsidiaries), determined as of the last business
day of each calendar month, plus one-half of one percent (0.5%) quarterly on the last business day
of each calendar month of each year (each, a Payment Date), commencing with the Payment Date
next succeeding the date hereof. Interest on the unpaid principal balance of the Loans
pursuant hereto shall continue to accrue until the principal interest thereon shall have been paid in
full.
3. Manner of Payment. All payments of principal and accrued interest on the Loans
shall be made by the Company to Holder in immediately available funds and in lawful money of the
United States of America at the address set forth in Section 11 or to such account as is designated
by Holder in writing to the Company.
4. Events of Default. The following shall constitute Events of Default with respect
to this Note:
(a) Failure of the Company to pay when due, in the manner provided herein, the
principal or interest with respect to any Loan under this Note; or
(b) The Company shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts as they become due, or shall file a voluntary
petition for relief under Title 11 of the United States Code (the Bankruptcy Code), or
shall file any other petition or similar request with a court or governmental agency having
competent jurisdiction for voluntary relief, looking to reorganization, arrangement,
composition, readjustment, liquidation, custodianship, dissolution, winding-up or similar
relief under the Bankruptcy Code or any other similar present or future statute, law or
regulation, or shall file any answer admitting or not contesting the material allegations of
a petition filed against it in any such proceeding, or shall in any such proceeding seek or
consent to or acquiesce in the appointment of any trustee, receiver, custodian or liquidator
of it or of all or any substantial part of its properties; or
(c) The filing against the Company of an involuntary petition for relief under the
Bankruptcy Code or the commencement of any proceeding against the Company in a court or
before a governmental agency having competent jurisdiction, looking to reorganization,
arrangement, composition, readjustment, liquidation, custodianship, dissolution or similar
relief under the Bankruptcy Code or any other similar present or future statute, law or
regulation, and such petition or proceeding shall not have been vacated, dismissed or stayed
within sixty (60) days thereafter, or if there is appointed in any such proceeding, without
the consent or acquiescence of the Company, any trustee, receiver, custodian, liquidator, or
other similar official for it or for all or any substantial part of its properties, and such
appointment shall not have been vacated, dismissed or stayed within sixty (60) days
thereafter; or
(d) The Company shall default in the due observance or performance of any
covenant, condition or agreement contained herein and such default shall continue
unremedied for a period of thirty (30) days.
5. Consequences of Event of Default. Upon the occurrence of any such Event of
Default and during the continuation thereof, Holder, by written notice to the Company, may
terminate its commitment to make Loans pursuant to Section 1 and declare the unpaid principal
balance of all Loans and accrued and unpaid interest thereon to be immediately due and payable
notwithstanding the Maturity Date thereof. Upon any such declaration of acceleration, such
principal and interest shall become immediately due and payable and Holder shall have all
other rights and remedies provided by applicable law.
2
6. Costs of Collection. In the event that any amounts due under this Note are not paid
when due, the Company shall also pay or reimburse Holder for all reasonable costs and expenses of
collection, including, without limitation, reasonable attorneys fees.
7. Certain Acceleration Events. Upon a Sale, Holder may, by notice to the Company,
terminate its commitment to make Loans pursuant to Section 1 hereof and declare the unpaid
principal balance of all Loans under this Note and accrued and unpaid interest thereon to be
immediately due and payable, whereupon the same shall become immediately due and payable
notwithstanding the Maturity Date thereof. For purposes of this Section 7, a Sale means (a) a
sale of all or substantially all of the assets of the Company or (b) any extraordinary corporate
transaction, such as a merger, consolidation, issuance of capital stock or other business
combination involving the Company pursuant to which any person or group of persons acquires at
least 50% of the voting power of the Company, or in which the Company is not the surviving
corporation.
8. Governing Law. This Note shall be governed by and construed in accordance with the
laws of the State of North Carolina, other than the conflicts of law provisions thereof.
9. Waiver. The Company waives presentment for payment, demand, protest, notice of
dishonor, notice of protest, diligence on bringing suit against any party hereto, and all defenses
on the ground of any extension of the time of payment that may be given by Holder to it.
10. No Right of Set-Off. As of the date hereof, the Company represents that it has no
claims or offsets against Holder in breach of contract, negligence or for any other type of legal
action under this Note.
11. Notices. Any notice pursuant to this Note must be in writing and will be deemed
effectively given to another party on the earliest of the date (a) three business days after such
notice is sent by registered U.S. mail, return receipt requested, (b) upon receipt of confirmation
if such notice is sent by facsimile, (c) one business day after delivery of such notice into the
custody and control of an overnight courier service for next day delivery, (d) upon delivery of
such notice in person and (e) such notice is received by that party; in each case to the
appropriate address below (or to such other address as a party may designate by notice to the other
party):
The Company:
Piedmont Coca-Cola Bottling Partnership
c/o Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
4100 Coca-Cola Plaza (28211-3481)
P.O. Box 31487
Charlotte, North Carolina 28231-1487
Attention: Chief Financial Officer
Telecopy No.: (704) 557-4451
c/o Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
4100 Coca-Cola Plaza (28211-3481)
P.O. Box 31487
Charlotte, North Carolina 28231-1487
Attention: Chief Financial Officer
Telecopy No.: (704) 557-4451
3
Holder:
Coca-Cola Bottling Co. Consolidated
Coca-Cola Corporate Center
4100 Coca-Cola Plaza (28211-3481)
P.O. Box 31487
Charlotte, North Carolina 28231-1487
Attention: Chief Financial Officer
Telecopy No.: (704) 557-4451
Coca-Cola Corporate Center
4100 Coca-Cola Plaza (28211-3481)
P.O. Box 31487
Charlotte, North Carolina 28231-1487
Attention: Chief Financial Officer
Telecopy No.: (704) 557-4451
12. Severability. Any provision of this Note that is determined by any court of
competent jurisdiction to be invalid or unenforceable will not affect the validity or
enforceability of any other provision hereof or the invalid or unenforceable provision in any other
situation or in any other jurisdiction. Any provision of this Note held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not held invalid or
unenforceable.
* * * * *
4
IN WITNESS WHEREOF, the Company and Holder have caused this Note to be executed by their
duly authorized officer as of the day and year first above written.
Company | ||||||
PIEDMONT COCA-COLA BOTTLING PARTNERSHIP |
||||||
By: COCA-COLA BOTTLING CO. CONSOLIDATED, its Manager |
||||||
By: Name: |
/s/ James E. Harris
|
|||||
Title: | Sr VP & CFO | |||||
Holder | ||||||
COCA-COLA BOTTLING CO. CONSOLIDATED | ||||||
By: Name: |
/s/ Clifford M. Deal |
|||||
Title: | VP & Treasurer |