UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended OCTOBER 1, 1995
Commission File Number 0-9286
COCA-COLA BOTTLING CO. CONSOLIDATED
(Exact name of registrant as specified in its charter)
DELAWARE 56-0950585
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1900 REXFORD ROAD, CHARLOTTE, NORTH CAROLINA 28211
(Address of principal executive offices) (Zip Code)
(704) 551-4400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at November 3, 1995
Common Stock, $1 Par Value 7,958,059
Class B Common Stock, $1 Par Value 1,336,362
PART I - FINANCIAL INFORMATION
Item l. Financial Statements.
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
In Thousands (Except Share Data)
Oct. 1, Jan. 1, Oct. 2,
1995 1995 1994
ASSETS
Current Assets:
Cash $ 2,723 $ 1,812 $ 2,200
Accounts receivable, trade, less allowance for
doubtful accounts of $401, $400 and $419 11,180 7,756 7,522
Accounts receivable from The Coca-Cola Company 6,337 4,514 5,991
Due from Piedmont Coca-Cola Bottling Partnership 1,457 1,383 1,907
Accounts receivable, other 4,577 7,232 6,583
Inventories 33,447 31,871 30,320
Prepaid expenses and other current assets 5,538 5,054 5,269
Total current assets 65,259 59,622 59,792
Property, plant and equipment, less accumulated
depreciation of $152,271, $141,419 and $138,022 189,118 185,633 179,008
Investment in Piedmont Coca-Cola Bottling Partnership 66,629 67,729 68,801
Other assets 24,258 23,394 22,369
Identifiable intangible assets, less accumulated
amortization of $83,068, $75,667 and $73,200 250,450 257,851 260,318
Excess of cost over fair value of net assets of
businesses acquired, less accumulated
amortization of $23,407, $21,689 and $21,117 68,212 69,930 70,502
Total $663,926 $664,159 $660,790
See Accompanying Notes to Consolidated Financial Statements
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
In Thousands (Except Share Data)
Oct. 1, Jan. 1, Oct. 2,
1995 1995 1994
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Portion of long-term debt payable within one year $ 174 $ 300 $ 376
Accounts payable and accrued liabilities 52,812 59,413 51,634
Accounts payable to The Coca-Cola Company 3,470 2,930 1,993
Accrued compensation 3,464 4,246 3,314
Accrued interest payable 4,886 11,275 5,593
Total current liabilities 64,806 78,164 62,910
Deferred income taxes 99,269 89,531 88,302
Other liabilities 38,364 29,512 21,630
Long-term debt 419,827 432,971 454,392
Total liabilities 622,266 630,178 627,234
Shareholders' Equity:
Convertible Preferred Stock, $100 par value:
Authorized-50,000 shares; Issued-None
Nonconvertible Preferred Stock, $100 par value:
Authorized-50,000 shares; Issued-None
Preferred Stock, $.01 par value:
Authorized-20,000,000 shares; Issued-None
Common Stock, $1 par value:
Authorized-30,000,000 shares;
Issued-10,090,859 shares 10,090 10,090 10,090
Class B Common Stock, $1 par value:
Authorized-10,000,000 shares;
Issued-1,964,476 shares 1,965 1,965 1,965
Class C Common Stock, $1 par value:
Authorized-20,000,000 shares; Issued-None
Capital in excess of par value 123,057 130,028 132,351
Accumulated deficit (71,902) (86,552) (87,590)
Minimum pension liability adjustment (3,904) (3,904) (5,614)
59,306 51,627 51,202
Less-Treasury stock, at cost:
Common-2,132,800 shares 17,237 17,237 17,237
Class B Common-628,114 shares 409 409 409
Total shareholders' equity 41,660 33,981 33,556
Total $663,926 $664,159 $660,790
See Accompanying Notes to Consolidated Financial Statements
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
In Thousands (Except Per Share Data)
Third Quarter Nine Months
1995 1994 1995 1994
Net sales (includes sales to Piedmont of
$19,355, $23,121, $55,664 and $67,932) $ 203,559 $ 188,418 $ 582,412 $ 552,927
Cost of products sold, excluding depreciation
shown below (includes $16,715, $19,679,
$48,599 and $59,785 related to sales to
Piedmont) 120,832 112,554 340,477 328,979
Gross margin 82,727 75,864 241,935 223,948
Selling expenses 41,831 37,524 119,918 111,473
General and administrative expenses 13,868 13,565 40,839 39,732
Depreciation expense 6,786 5,895 19,756 17,659
Amortization of goodwill and intangibles 3,058 3,081 9,173 9,235
Income from operations 17,184 15,799 52,249 45,849
Interest expense 8,312 7,999 25,205 23,358
Other income (expense), net (1,099) 761 (2,656) 474
Income before income taxes and effect of
accounting change 7,773 8,561 24,388 22,965
Federal and state income taxes 3,134 3,662 9,738 9,856
Income before effect of accounting change 4,639 4,899 14,650 13,109
Effect of accounting change (2,211)
Net income $ 4,639 $ 4,899 $ 14,650 $ 10,898
Income per share:
Income before effect of accounting change $ .50 $ .53 $ 1.58 $ 1.41
Effect of accounting change (.24)
Net income $ .50 $ .53 $ 1.58 $ 1.17
Cash dividends per share:
Common Stock $ .25 $ .25 $ .75 $ .75
Class B Common Stock .25 .25 .75 .75
Weighted average number of Common and
Class B Common shares outstanding 9,294 9,294 9,294 9,294
See Accompanying Notes to Consolidated Financial Statements
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY (UNAUDITED)
In Thousands
Capital Minimum
Class B in Pension
Common Common Excess of Accumulated Liability Treasury
Stock Stock Par Value Deficit Adjustment Stock
Balance on
January 2, 1994 $10,090 $ 1,965 $139,322 $ (98,488) $ (5,614) $ 17,646
Net income 10,898
Cash dividends
declared (6,971)
Balance on
October 2, 1994 $10,090 $ 1,965 $132,351 $ (87,590) $ (5,614) $ 17,646
Balance on
January 1, 1995 $10,090 $ 1,965 $130,028 $ (86,552) $ (3,904) $ 17,646
Net income 14,650
Cash dividends
declared (6,971)
Balance on
October 1, 1995 $10,090 $ 1,965 $123,057 $ (71,902) $ (3,904) $ 17,646
See Accompanying Notes to Consolidated Financial Statements
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
In Thousands
Nine Months
1995 1994
Cash Flows from Operating Activities
Net income $14,650 $10,898
Adjustments to reconcile net income to net cash provided
by operating activities:
Effect of accounting change 2,211
Depreciation expense 19,756 17,659
Amortization of goodwill and intangibles 9,173 9,235
Deferred income taxes 9,738 9,856
(Gains) losses on sale of property, plant and equipment 1,037 (1,432)
Amortization of debt costs 344 341
Undistributed (earnings) loss of Piedmont Coca-Cola Bottling
Partnership 1,100 (401)
Increase in current assets less current liabilities (18,084) (24,361)
Increase in other noncurrent assets (1,076) (2,353)
Increase (decrease) in other noncurrent liabilities 6,944 (301)
Other 132 490
Total adjustments 29,064 10,944
Net cash provided by operating activities 43,714 21,842
Cash Flows from Financing Activities
Proceeds from the issuance of long-term debt 21,246
Payments on long-term debt (13,144) (1,213)
Cash dividends paid (6,971) (6,971)
Other 1,721 (1,260)
Net cash provided by (used in) financing activities (18,394) 11,802
Cash Flows from Investing Activities
Additions to property, plant and equipment (26,304) (36,748)
Proceeds from the sale of property, plant and equipment 1,895 4,042
Net cash used in investing activities (24,409) (32,706)
Net increase in cash 911 938
Cash at beginning of period 1,812 1,262
Cash at end of period $ 2,723 $ 2,200
See Accompanying Notes to Consolidated Financial Statements
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
1. Accounting Policies
The consolidated financial statements include the accounts of Coca-Cola
Bottling Co. Consolidated and its majority owned subsidiaries (the
"Company"). All significant intercompany accounts and transactions have
been eliminated.
The information contained in the financial statements is unaudited. The
statements reflect all adjustments which, in the opinion of management,
are necessary for a fair statement of the results for the interim
periods presented. Except for the accounting change discussed in Note 2,
all such adjustments are of a normal, recurring nature.
The accounting policies followed in the presentation of interim
financial results are the same as those followed on an annual basis.
These policies are presented in Note 1 to the consolidated financial
statements included in the Company's Annual Report on Form 10-K for the
year ended January 1, 1995 filed with the Securities and Exchange
Commission.
Certain prior year amounts have been reclassified to conform to current
year classifications.
2. Accounting Change
In November 1992, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 112, "Employers'
Accounting for Postemployment Benefits" ("SFAS 112"). SFAS 112 requires
the accrual, during the years that employees render service, of the
expected cost of providing postemployment benefits if certain criteria
are met. The Company adopted the provisions of SFAS 112 in the first
quarter of 1994, effective January 3, 1994. As a result, the Company
recorded a one-time, after-tax charge of $2.2 million. This charge
appears within the caption "Effect of accounting change."
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
3. Summarized Income Statement Data of Piedmont Coca-Cola Bottling
Partnership
On July 2, 1993, the Company and The Coca-Cola Company formed Piedmont
Coca-Cola Bottling Partnership ("Piedmont") to distribute and market
soft drink products primarily in portions of North Carolina and South
Carolina. The Company and The Coca-Cola Company, through their
respective subsidiaries, each beneficially own a 50% interest in
Piedmont. The Company provides a portion of the soft drink products to
Piedmont at cost and receives a fee for managing the business of
Piedmont pursuant to a management agreement. Summarized income statement
data for Piedmont is as follows:
Third Quarter Nine Months
In Thousands 1995 1994 1995 1994
Net sales $ 59,396 $ 51,837 $ 163,856 $ 149,470
Gross margin 23,627 22,534 66,337 64,313
Income from operations 1,777 2,576 5,312 6,397
Net income (loss) (758) 1,612 (2,200) 802
4. Inventories
Inventories are summarized as follows:
Oct. 1, Jan. 1, Oct. 2,
In Thousands 1995 1995 1994
Finished products $20,429 $17,621 $18,272
Manufacturing materials 11,585 12,638 10,444
Used bottles and cases 1,433 1,612 1,604
Total inventories $33,447 $31,871 $30,320
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
5. Long-Term Debt
Long-term debt is summarized as follows:
Fixed(F) or
Interest Variable Interest Oct. 1, Jan. 1, Oct. 2,
In Thousands Maturity Rate (V) Rate Paid 1995 1995 1994
Lines of Credit 1997 5.93% - V Varies $ 85,601 $ 93,420 $114,601
6.83%
Term Loan Agreement 2000 6.38% V Semi- 60,000 60,000 60,000
annually
Term Loan Agreement 2001 6.39% V Semi- 60,000 60,000 60,000
annually
Medium-Term Notes 1998 6.39% V Quarterly 10,000 10,000 10,000
Medium-Term Notes 1999 7.99% F Semi- 66,500 66,500 66,500
annually
Medium-Term Notes 2000 10.00% F Semi- 57,000 57,000 57,000
annually
Medium-Term Notes 2002 8.56% F Semi- 66,500 66,500 66,500
annually
Notes acquired in
Sunbelt acquisition 2001 8.00% F Quarterly 217 5,327 5,421
Capital leases and
other notes payable 1995 - 6.85% - F Varies 14,183 14,524 14,746
2001 12.00%
420,001 433,271 454,768
Less: Portion of long-
term debt payable
within one year 174 300 376
Long-term debt $419,827 $432,971 $454,392
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
5. Long-Term Debt (cont.)
As of October 1, 1995, the Company was in compliance with all of the
covenants of its various borrowing agreements.
It is the Company's intent to renew its lines of credit, commercial
paper borrowings and borrowings under the revolving credit facility
as they mature. To the extent that these borrowings do not exceed
the amount available under the Company's $170 million revolving
credit facility, they are classified as noncurrent liabilities.
A $100 million commercial paper program was established in January
1990 with funds to be used for general corporate purposes. There
were no balances outstanding under this program on October 1, 1995,
January 1, 1995 or October 2, 1994.
In June 1992, the Company entered into a three-year arrangement
under which it has the right to sell an undivided interest in a
designated pool of trade accounts receivable for up to a maximum of
$40 million. The Company had sold trade receivables of $35 million
as of October 1, 1995, January 1, 1995 and October 2, 1994. This
arrangement has been amended to extend the arrangement to June 1998
on terms substantially similar to those previously in place.
On October 12, 1994, a $400 million shelf registration for debt and
equity securities filed with the Securities and Exchange Commission
became effective and the securities thereunder became available for
issuance. On November 1, 1995, the Company issued $100 million of
6.85% debentures due 2007 pursuant to such registration. The net
proceeds from this issuance will be used principally for refinancing
of existing indebtedness with the remainder to be used for general
corporate purposes. As of November 10, 1995, $36.3 million of
medium-term notes due 1999 with a coupon rate of 7.99% and $26
million of medium-term notes due 2000 with a coupon rate of 10.00%
had been repurchased.
The Company has guaranteed a portion of the debt for two
cooperatives in which the Company is a member. The amounts
guaranteed were $34 million, $31 million and $27 million as of
October 1, 1995, January 1, 1995 and October 2, 1994, respectively.
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
6. Derivative Financial Instruments
The Company uses derivative financial instruments to cost
effectively modify risk from interest rate fluctuations in its
underlying debt. The Company has historically altered its
fixed/floating interest rate mix based upon anticipated operating
cash flows of the Company relative to its debt level and the
Company's ability to absorb increases in interest rates. These
derivative financial instruments are not used for trading purposes.
The Company has entered into interest rate swaps that resulted in
weighted average interest rates for the debt portfolio of
approximately 7.3%, 7.0% and 6.6% as of October 1, 1995, January 1,
1995 and October 2, 1994, respectively. The Company's overall
weighted average interest rate on its long-term debt increased from
an average of 6.6% during the first nine months of 1994 to an
average of 7.4% during the first nine months of 1995. After taking
into account the effect of all of the interest rate swap activities,
approximately 53%, 47% and 55% of the total debt portfolio was
subject to changes in short-term interest rates as of October 1,
1995, January 1, 1995 and October 2, 1994, respectively.
A rate increase of 1% would have increased interest expense for the
first nine months of 1995 by approximately $1.7 million and net
income for the nine months ended October 1, 1995 would have been
reduced by approximately $1 million. Interest coverage as of October
1, 1995 would have been 3.0 times (versus 3.2 times) if interest
rates had increased by 1%.
Derivative financial instruments were as follows:
Oct. 1, 1995 Jan. 1, 1995 Oct. 2,1994
Remaining Remaining Remaining
In Thousands Amount Term Amount Term Amount Term
Interest rate swaps-floating $ 60,000 8 years $221,600 6-9 years $221,600 6-9 years
Interest rate swaps-fixed 60,000 8 years 215,000 1-9 years 215,000 1-9 years
Interest rate caps - - 110,000 .5 year 110,000 1 year
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
6. Derivative Financial Instruments (cont.)
The table below summarizes interest rate swap activity.
Third Quarter Nine Months
In Thousands 1995 1995
Total swaps, beginning of period $ 383,600 $ 436,600
New swaps - 25,000
Terminated swaps (263,600) (341,600)
Expired swaps - -
Total swaps, end of period $ 120,000 $ 120,000
Deferred gains on terminated interest rate swap contracts were $6.2
million, $4.2 million and $4.4 million on October 1, 1995, January
1, 1995 and October 2, 1994, respectively.
The carrying amounts and fair values of the Company's balance sheet
and off-balance-sheet instruments were as follows:
Oct. 1, 1995 Jan. 1, 1995
Carrying Fair Carrying Fair
In Thousands Amount Value Amount Value
Balance Sheet Instruments
Public debt $200,000 $217,209 $200,000 $201,119
Non-public variable
rate long-term debt 205,601 205,601 213,420 213,420
Non-public fixed
rate long-term debt 14,400 15,190 19,851 19,030
Off-Balance-Sheet Instruments
Interest rate swaps (5,102) (11,123)
The fair values of the interest rate swaps represent the estimated
amounts the Company would have had to pay to terminate these
agreements.
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
7. Supplemental Disclosures of Cash Flow Information
Changes in current assets and current liabilities affecting cash, net of
the effect of an accounting change, were as follows:
Nine Months
In Thousands 1995 1994
Accounts receivable, trade, net $ (3,424) $ (2,562)
Due from Piedmont Coca-Cola Bottling Partnership (74) 547
Accounts receivable, other 832 4,882
Inventories (1,576) (2,787)
Prepaid expenses and other current assets (484) (1,944)
Portion of long-term debt payable within one year (126) (335)
Accounts payable and accrued liabilities (6,061) (18,755)
Accrued compensation (782) 1,108
Accrued interest payable (6,389) (4,515)
Increase in current assets less current liabilities $ (18,084) $ (24,361)
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Introduction
The following discussion presents management's analysis of the results
of operations for the third quarter and first nine months of 1995
compared to the third quarter and first nine months of 1994 and changes
in financial condition from October 2, 1994 and January 1, 1995 to
October 1, 1995.
The Company reported net income of $4.6 million or $.50 per share for
the third quarter of 1995 compared with net income of $4.9 million or
$.53 per share for the same period in 1994. For the first nine months of
1995, net income was $14.7 million or $1.58 per share compared with net
income of $10.9 million or $1.17 per share for the first nine months of
1994. In the first quarter of 1994, the Company recorded a one-time,
after-tax noncash charge of $2.2 million or $.24 per share related to
the adoption of Statement of Financial Accounting Standards No. 112,
"Employers' Accounting for Postemployment Benefits."
The results for interim periods are not necessarily indicative of the
results to be expected for the year due to seasonal factors.
Results of Operations
For the third quarter of 1995, net franchise sales increased
approximately 13% over the same quarter in 1994, reflecting higher net
selling prices and a volume increase of slightly more than 9%. Net
franchise sales for the first nine months of 1995 increased
approximately 9% over the 1994 period. This increase was due principally
to increased net selling prices but also reflected a volume increase of
almost 4%. Selling prices were increased in early 1995 in order to cover
the anticipated increased cost of raw materials, primarily aluminum
cans.
In the third quarter of 1995, gross margin on net franchise sales
increased by approximately 10.5% over the same period in 1994. As a
percentage of net franchise sales, gross margin was 46.6%, a slight
decrease from the same measurement for the 1994 period. For the first
nine months of 1995, gross margin on net franchise sales increased
approximately 8.5% over the comparable 1994 period and was slightly
lower as a percentage of net franchise sales. Cost of goods sold related
to net franchise sales increased due to increases in packaging costs,
but selling price increases more than offset the increased cost of goods
sold. Although the cost of cans increased during the first nine months
of 1995, agreements currently in place with suppliers ensure that the
cost of cans will not increase further this year and may decline from
current pricing if aluminum ingot prices decrease below a specified
level. Effective November 7, 1995, the Company entered into a can supply
agreement with a major can supplier. This agreement, which has an
initial term of five years commencing January 1, 1996, will effectively
place upper and lower limits on the cost of cans for certain production
facilities which the Company owns or manages (approximately 70% of the
Company's total can requirements) during such period. The Company
intends to conclude similar agreements with one or more suppliers with
respect to the remainder of its can requirements. Plastic bottles have
also contributed to the increase in cost of goods sold. Average resin prices
increased more than 10% during the first nine months of 1995 as compared
with the first nine months of 1994.
For the third quarter of 1995, selling expenses increased almost 11.5%
over the comparable 1994 period. Selling expenses increased 7.6% for the
first nine months of 1995 as compared to the first nine months of 1994.
As a percentage of net sales, selling expenses increased from 19.9% in
the third quarter of 1994 to 20.5% in the third quarter of 1995 and from
20.2% during the first nine months of 1994 to 20.6% during the first
nine months of 1995. Selling expenses related to net franchise sales
increased approximately 14% and 10% over the 1994 third quarter and nine
month periods, respectively, due primarily to higher employment costs
and increased expenses related to sales development programs and
marketing costs. During the third quarter of 1995, selling expenses also
increased due to a number of under the crown promotions. The impact of
these promotions is reflected in the third quarter volume increase. The
Company has begun a multi-year program to increase volume of certain
carbonated beverage products of The Coca-Cola Company through various
marketing efforts.
General and administrative expenses increased 2.8% for the first nine
months of 1995 over the same 1994 period due to increased employment
costs. The increased employment costs were partially offset by
reductions in other general and administrative expenses. As a percentage
of net sales, general and administrative expenses declined for both the
first nine months and third quarter of 1995 as compared to the same
periods in 1994.
Depreciation expense increased approximately 11.9% between the first
nine months of 1994 and the first nine months of 1995. The third quarter
1995 depreciation expense increased 15.1% over the comparable 1994
period. These increases reflect the high level of capital expenditures
during 1994 and the timing of placing assets in service. During 1994,
certain capital improvements were made at the manufacturing facilities
to produce new packages.
Interest expense increased 7.9% from the first nine months of 1994 to
the first nine months of 1995 due to higher short-term interest rates.
During the third quarter of 1995, interest expense increased 3.9% over
the same period in 1994. Outstanding long-term debt decreased
approximately $35 million from October 2, 1994 to October 1, 1995. The
Company's weighted average interest rate increased from an average of
6.6% during the first nine months of 1994 to an average of 7.4% during
the first nine months of 1995.
The change in "other income (expense), net" between the first nine
months of 1994 and the first nine months of 1995 was due primarily to a
third quarter 1994 gain of approximately $1.3 million on the sale of one
of the Company's aircraft and a first quarter 1994 gain on the sale of
an idle production facility. For the first nine months of 1995, losses
of approximately $1.0 million on sales of property, plant and equipment
were included in "other income (expense), net." Gains of approximately
$1.4 million on sales of property, plant and equipment were included in
"other income (expense), net" for the first nine months of 1994. In
addition, the discount on sales of trade accounts receivable increased
almost $.6 million from the first nine months of 1994 to the first nine
months of 1995 due to higher short-term rates associated with this
arrangement.
Changes in Financial Condition
Working capital increased $19.0 million from January 1, 1995 and $3.6
million from October 2, 1994 to October 1, 1995. The increase from
January 1, 1995 was due principally to scheduled payments of accrued
interest and seasonal increases in trade accounts receivable and
inventories. The increased cost of cans and bottles also contributed to
the higher inventory balances. The increase in working capital from
October 2, 1994 was due to volume related increases in accounts
receivable and inventories as well as increased costs of items held in
inventory.
Capital expenditures in the first nine months of 1995 were $26.3 million
compared to $36.7 million in the first nine months of 1994. Expenditures
for 1995 capital additions are expected to be significantly lower than
expenditures for 1994 capital additions. In 1995, the Company resumed
its vehicle leasing program. Additions to the Company's fleet were
purchased rather than leased during 1994.
Long-term debt decreased approximately $35 million from October 2, 1994
and more than $13 million from January 1, 1995. During this period, cash
flow has exceeded dividend, capital expenditure and working capital
requirements. As of October 1, 1995, the Company was in compliance with
all of the covenants of its various borrowing agreements.
It is the Company's intent to renew any borrowings under its $170
million revolving credit facility and the informal lines of credit as
they mature and, to the extent that any borrowings under the revolving
credit facility, the informal lines of credit and commercial paper
program do not exceed the amount available under the Company's $170
million revolving credit facility, they are classified as noncurrent
liabilities. As of October 1, 1995, the Company had no amounts
outstanding under the revolving credit facility or the commercial paper
program and had approximately $86 million outstanding under the informal
lines of credit. The Company had sold trade accounts receivable of $35
million as of October 1, 1995, January 1, 1995 and October 2, 1994.
The Company uses derivative financial instruments to modify risk from
interest rate fluctuations. Derivative financial instruments are not
used for trading purposes. As of October 1, 1995, the debt portfolio had
a weighted average interest rate of approximately 7.3% and approximately
53% of the total portfolio of $420 million was subject to changes in
short-term interest rates.
On October 12, 1994, a $400 million shelf registration for debt and
equity securities filed with the Securities and Exchange Commission
became effective and the securities thereunder became available for
issuance. On November 1, 1995, the Company issued $100 million of 6.85%
debentures due 2007 pursuant to such registration. The net proceeds from
this issuance will be used principally for refinancing of existing
indebtedness with the remainder to be used for general corporate
purposes. As of November 10, 1995, $36.3 million of medium-term notes
due 1999 with a coupon rate of 7.99% and $26 million of medium-term
notes due 2000 with a coupon rate of 10.00% had been repurchased. These
refinancing activities extend the Company's debt maturities and reduce
future interest expense. In the fourth quarter of 1995, the Company
expects to record an extraordinary charge related to the premuium
associated with the debt repurchases.
Management believes that the Company, through the generation of cash
flow from operations and the utilization of unused borrowing capacity,
has sufficient financial resources available to maintain
its current operations and provide for its current capital expenditure
requirements. The Company considers the acquisition of additional
franchise territories on an ongoing basis.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit
Number Description
1.1 Underwriting Agreement, dated November 1,
1995, among the Company, Citicorp Securities,
Inc. and Salomon Brothers Inc.
4.1 Form of the Company's 6.85% Debentures Due
2007.
10.1 Lease Funding No. 95008, dated as of July
18, 1995, of a Master Equipment Lease
between the Company and Coca-Cola
Financial Corporation covering various
vending machines.
10.2 Lease Funding No. 95009, dated as of August
14, 1995, of a Master Equipment Lease
between the Company and Coca-Cola Financial
Corporation covering various vending
machines.
10.3 Lease Funding No. 95010, dated as of
September 8, 1995, of a Master Equipment
Lease between the Company and Coca-Cola
Financial Corporation covering various
vending machines.
10.4 Lease Schedule No. 012, dated as of June
21, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.5 Lease Schedule No. 013, dated as of June 21,
1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.6 Lease Schedule No. 014, dated as of July
27, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.7 Lease Schedule No. 015, dated as of August
7, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.8 Lease Schedule No. 016, dated as of August
24, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.9 Lease Schedule No. 017, dated as of August
24, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.10 Lease Schedule No. 18-Revised, dated as of August
29, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.11 Lease Schedule No. 019, dated as of August
7, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
Item 6. Exhibits and Reports on Form 8-K (Cont.)
10.12 Lease Schedule No. 020, dated as of August
7, 1995, of a Lease Agreement dated as of
December 15, 1994 between the Company and
BA Leasing & Capital Corporation covering
various vehicles.
10.13 Lease Funding No. 95011, dated as of
September 15, 1995, of a Master Equipment
Lease between the Company and Coca-Cola
Financial Corporation covering various
vending machines.
10.14 Lease Funding No. 95012, dated as of
October 10, 1995, of a Master Equipment
Lease between the Company and Coca-Cola
Financial Corporation covering various
vending machines.
10.15 Lease Funding No. 95013, dated as of
October 18, 1995, of a Master Equipment
Lease between the Company and Coca-Cola
Financial Corporation covering various
vending machines.
10.16 Can Supply Agreement, dated November 7,
1995, between the Company and American
National Can Company.
27 Financial data schedule for period ended
October 1, 1995.
(b) Reports on Form 8-K
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COCA-COLA BOTTLING CO. CONSOLIDATED
(REGISTRANT)
Date: November 14, 1995 By: /s/ David V. Singer
David V. Singer
Principal Financial Officer of the Registrant
and
Vice President - Chief Financial Officer
EXHIBIT 1.1
Coca-Cola Bottling Co. Consolidated
UNDERWRITING AGREEMENT
New York, New York
November 1, 1995
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Coca-Cola Bottling Co. Consolidated, a Delaware
corporation (the "Company"), proposes to sell to the underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, (1) the principal
amount, if any, of its debt securities (including debt securities
convertible into common stock or preferred stock of the Company
("Convertible Debt") identified in Schedule I hereto (such debt
securities, including Convertible Debt, the "Debt Securities"), to be
issued under an indenture (the "Indenture") dated as of July 20, 1994,
between the Company and NationsBank of Georgia, National Association, as
trustee (the "Trustee"), as supplemented and restated by a Supplemental
Indenture dated March 3, 1995 between the Company and the Trustee (all
references herein to the "Indenture" are to the Indenture as so
supplemented, and all references to the "Trustee" are to Citibank, N.A.,
which succeeded to all of the rights, powers, duties and obligations of
the initial Trustee under the Indenture by agreement of all parties,
effective September 15, 1995); (2) the shares of common stock, $1.00 par
value, of the Company, if any, identified in Schedule I hereto (the
Common Stock"); (3) the shares of Class C common stock, $1.00 par value,
of the Company, if any, identified in Schedule I hereto (the "Class C
Common Stock"); (4) the shares of preferred stock, $0.01 par value, of
the Company, if any, identified in Schedule I hereto (the "Preferred
Stock"); (5) the shares of convertible preferred stock, $100.00 par
value, of the
2
Company, if any, identified in Schedule I hereto (the "Convertible Preferred
Stock"); and/or (6) the shares of non-convertible preferred stock, $100.00 par
value, of the Company, if any, identified in Schedule I hereto (the
"Nonconvertible Preferred Stock"). The Debt Securities, Common Stock, Class C
Common Stock, Preferred Stock, Convertible Preferred Stock, and Nonconvertible
Preferred Stock may be sold either separately or as units (the "Units") together
with any of the foregoing. The Debt Securities, Common Stock, Class C Common
Stock, Preferred Stock, Convertible Preferred Stock, and Nonconvertible
Preferred Stock described in Schedule I hereto shall collectively be referred to
herein as the "Securities". The Common Stock, Class C Common Stock, Preferred
Stock, Convertible Preferred Stock, and Nonconvertible Preferred Stock described
in Schedule I hereto shall collectively be referred to herein as the "Equity
Securities." If the firm or firms listed in Schedule II hereto include only the
firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph (i)
below is applicable and, if the offering of the Securities is a
Non-Delayed Offering (as so specified), paragraph (ii) below is
applicable.
(i) The Company meets the
requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and
has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set
forth in Schedule I hereto) on such Form,
including a basic prospectus, for
registration under the Act of the offering
and sale of the Securities. The Company may
have filed one or more amendments thereto,
and may have used a Preliminary Final
Prospectus, each of which has previously been
furnished to you. Such registration
statement, as so amended, has become
effective. The offering of the
3
Securities is a Delayed Offering and,
although the Basic Prospectus may not include
all the information with respect to the
Securities and the offering thereof required
by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic
Prospectus includes all such information
required by the Act and the rules thereunder
to be included therein as of the Effective
Date. The Company will next file with the
Commission pursuant to Rules 415 and
424(b)(2) or (5) a final supplement to the
form of prospectus included in such
registration statement relating to the
Securities and the offering thereof. As
filed, such final prospectus supplement shall
include all required information with respect
to the Securities and the offering thereof
and, except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Company has advised you,
prior to the Execution Time, will be included
or made therein.
(ii) The Company meets the
requirements for the use of Form S-3 under
the Act and has filed with the Commission a
registration statement (the file number of
which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for
registration under the Act of the offering
and sale of the Securities. The Company may
have filed one or more amendments thereto,
including a Preliminary Final Prospectus,
each of which has previously been furnished
to you. The Company will next file with the
Commission either (x) a final prospectus
supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or
(4), or (y) prior to the effectiveness of
such registration statement, an amendment to
4
such registration statement, including the
form of final prospectus supplement. In the
case of clause (x), the Company has included
in such registration statement, as amended at
the Effective Date, all information (other
than Rule 430A Information) required by the
Act and the rules thereunder to be included
in the Final Prospectus with respect to the
Securities and the offering thereof. As
filed, such final prospectus supplement or
such amendment and form of final prospectus
supplement shall contain all Rule 430A
Information, together with all other such
required information, with respect to the
Securities and the offering thereof and,
except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Company has advised you,
prior to the Execution Time, will be included
or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance Rule 424(b) and on the Closing Date,
the Final Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of
the Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the requirements of
the Trust Indenture Act and the rules thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b)
5
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a
document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used
prior to filing of the Final Prospectus. "Final Prospectus"
shall mean the prospectus supplement relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of
a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to
the Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents,
6
exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in
which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date
of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be
included in such registration statement at the effective date
thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule
415 need be included in such registration statement at the
effective date thereof with respect to the securities so
offered. Whether the
7
offering of the Securities is a Non-Delayed Offering or a Delayed
Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price set forth in Schedule I hereto the
principal amount or number of shares or Units of Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, in
the case of Debt Securities, if Schedule I hereto provides for the sale
of such Debt Securities pursuant to delayed delivery arrangements, the
respective principal amount of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are
herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase Securities
from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"), substantially in the form of Schedule II hereto
but with such changes therein as the Company may authorize or approve.
The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule I hereto of the principal amount of the Debt
Securities for which such Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all cases where
such sales of Contract Securities arranged by the Underwriters have been
approved by the Company (it being understood that the Company may
reasonably withhold such approval) but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount set forth in Schedule I hereto and
the
8
aggregate principle amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity
or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule
II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such
reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount
of Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriter's Securities shall be made on the date and at the time
specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 8 hereof
(such date and time of delivery and payment for the Underwriter's
Securities being herein called the "Closing Date"). Delivery of the
Underwriter's Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or official
bank check or checks drawn on or by a New York Clearing House bank and
payable in next day funds. Delivery of the Underwriter's Securities
shall be made at such location as the Representatives shall reasonably
designate at least one business day in advance of the Closing Date and
payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriter's Securities shall
be registered in such names and in such denominations as the
Representatives may request not less than three full business days in
advance of the Closing Date.
The Company agrees to have the Underwriter's
Securities available for inspection, checking and packaging
9
by the Representatives in New York, New York, not later than 1:00 PM on the
business day prior to the Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time,
and any amendment thereto, to become effective. Prior to the
termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company
has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time,
and any amendment thereto, shall have become effective, (ii)
when the Final Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
10
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will (i)
prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities and any Debt Securities, Common Stock, Class C
Common Stock, Preferred Stock, Convertible Preferred Stock, or
Nonconvertible Preferred Stock that may be issuable pursuant to
the exercise, conversion or exchange, as the case may be, of
the Securities offered by the Company, for sale under the laws
of such jurisdictions as the Representatives may designate
(provided, however, that in connection therewith, the Company
will
11
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction where it is
not then so subject), will maintain such qualifications in
effect so long as required for the distribution of the
Securities, will arrange for the determination of the legality
of the Securities for purchase by institutional investors, and
will pay the fee of the National Association of Securities
Dealers, Inc., in connection with its review, if any, of the
offering.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the
Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering
of, any securities issued or guaranteed by the Company (other
than the Securities) and other than (i) as specified in
Schedule I, or (ii) sales of Equity Securities to The Coca-Cola
Company pursuant to its rights under the Stock Rights and
Restrictions Agreement (the "Stock Agreement") dated as of
January 27, 1989.
(g) The Company will arrange for the listing of any Equity
Securities upon notice of issuance on any national securities exchange
or automated quotation system designated in Schedule I hereto.
(h) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business
with Cuba, and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Securities and Exchange Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba
or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable
to the Department.
12
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the Execution Time and
the Closing Date, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time,
on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b),
the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Witt, Gaither & Whitaker, P.C., counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of the Company, Coca-Cola Bottling Co.
Affiliated, Inc., Coca-Cola Bottling Company of
Mobile, Inc., Coca-Cola Bottling Company of Nashville,
Inc., Coca-Cola Bottling Company of Roanoke, Inc.,
Columbus Coca-Cola Bottling Company, Panama City
Coca-Cola Bottling Company, Tennessee Soft Drink
Production Company, The Coca-Cola Bottling Company of
West Virginia, Inc., Metrolina Bottling Company, COBC,
Inc., ECBC, Inc., MOBC, Inc., NABC, Inc., PCBC, Inc.,
ROBC, Inc., WCBC, Inc., and WVBC, Inc. (individually a
"Subsidiary" and collectively the "Subsidiaries"),
13
is duly incorporated and validly exists as a corporation in
good standing under the laws of the jurisdiction in
which it is chartered or organized, with full
corporate power and authority to own, lease and
operate its properties, and conduct its business as
described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and
is in good standing under the laws of each
jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts
material business, other than jurisdictions, except
where the failure so to qualify would not have a
material adverse effect.
(ii) the Company's 50% owned general partnership,
Piedmont Coca-Cola Bottling Partnership ("Piedmont")
is duly organized and validly existing under the laws
of the State of Delaware, with full power and
authority to own, lease and operate its properties,
and to conduct its business as described in the Final
Prospectus and each of its corporate partners is duly
registered and qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction which requires such qualification wherein
Piedmont owns or leases material properties or
conducts material business, other than jurisdictions,
except where the failure so to qualify would not have
a material adverse effect.
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries and the 50%
partnership interest in Piedmont are owned by the
Company either directly or through wholly owned
subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after
due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform to the
14
description thereof contained in the Final Prospectus;
and, if the Securities are to be listed on any
securities exchange or automated quotation system,
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with such securities exchange or automated quotation
system and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(v) in the case of an offering of Debt Securities,
the Indenture has been duly authorized, executed and
delivered, and has been duly qualified under the Trust
Indenture Act; the Indenture constitutes a legal,
valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer,
moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally from time
to time in effect and by general equitable principles,
including, without limitation, concepts of
materiality, reasonableness, good faith and fair
dealing, regardless of whether such enforceability is
considered in equity or at law); and the Debt
Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations
of the Company, be convertible or exercisable for
other securities of the Company in accordance with
their terms as set forth in the Final Prospectus, as
the case may be, and will be entitled to the benefits
of the Indenture; if the Debt Securities are
convertible or exercisable into Equity Securities, the
shares of Equity Securities issuable upon such
conversion
15
or exercise will have been duly authorized and
reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding shares
of such Equity Securities will have been duly
authorized and issued, will be fully paid and
nonassessable and will conform to the description
thereof contained in the Final Prospectus; and the
holders of outstanding capital stock of the Company
have no preemptive rights with respect to any of such
shares of Equity Securities issuable upon such
conversion, except as provided in the Stock Agreement;
(vi) in the case of an offering of Common Stock or
Class C Common Stock, the shares of Common Stock or
Class C Common Stock have been duly and validly
authorized and, when issued and delivered and paid for
by the Underwriters pursuant to this agreement, will
be fully paid and nonassessable and will conform to
the description thereof contained in the Final
Prospectus; the Common Stock has been duly authorized
for listing, subject to official notice of issuance,
on the National Association of Securities Dealers
Automated Quotation National Market System; the
certificates for the Common Stock or Class C Common
Stock are in valid and sufficient form; and the
holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights
to subscribe for the Common Stock or Class C Common
Stock, except as provided in the Stock Agreement.
(vii) in the case of an offering of Preferred Stock,
Convertible Preferred Stock or Nonconvertible
Preferred Stock, the Company has authorized capital
stock as set forth in the Final Prospectus; the shares
of Preferred Stock, Convertible Preferred Stock, or
Nonconvertible Preferred Stock being delivered at such
Closing Date have been duly and validly authorized
and, when issued and delivered and paid for by the
Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the shares of Preferred Stock,
Convertible Preferred Stock, or Nonconvertible
Preferred Stock conform to the descriptions thereof
contained in the Final
16
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to any of such shares
of Preferred Stock, Convertible Preferred Stock or
Nonconvertible Preferred Stock, except as provided in
the Stock Agreement. If the shares of Preferred Stock
or Convertible Preferred Stock being delivered at such
Closing Date are convertible or exchangeable into
Common Stock or other securities (including
Securities), such shares of Preferred Stock or
Convertible Preferred Stock are, and the Contract
Securities, when so issued, delivered and sold, will
be, convertible or exchangeable into Common Stock or
such other securities in accordance with their terms;
the shares of such Common Stock or other securities
initially issuable upon conversion or exchange of such
shares of Preferred Stock or Convertible Preferred
Stock will have been duly authorized and reserved for
issuance upon such conversion or exchange and, when
issued upon such conversion or exchange, will be duly
issued, fully paid and nonassessable; the outstanding
shares of such Common Stock have been duly authorized
and issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Final Prospectus;
(viii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries or Piedmont, of a character required
to be disclosed in the Registration Statement which is
not adequately disclosed in the Final Prospectus, and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company, its subsidiaries and Piedmont fairly
summarize such matters;
(ix) the Registration Statement has become
effective under the Act; any required filing of
17
the Basic Prospectus, any Preliminary Final Prospectus and the
Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to
the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other
than the financial statements and other financial and
statistical information contained therein as to which
such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(x) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
are valid and binding agreements of the Company
enforceable in accordance with their terms (subject,
as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws relating to or
affecting the enforcement of creditors' rights
generally from time to time in effect and by general
equitable principles, including, without limitation,
concepts of materiality, good faith and fair dealing,
regardless of whether such enforceability is
considered in equity or at law);
18
(xii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the
Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(xiii) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or
by-laws of the Company or the terms of any indenture
or other agreement or instrument known to such counsel
and to which the Company or any of its subsidiaries or
Piedmont is a party or bound or any judgment, order or
decree known to such counsel to be applicable to the
Company or any of its subsidiaries or Piedmont of any
court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries or
Piedmont;
(xiv) the information, if any, in the Final
Prospectus under "Taxation", has been reviewed by them
and constitutes a complete and accurate summary of the
matters disclosed thereunder;
(xv) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement; and
(xvi) such other legal opinions as are set
forth on Schedule I hereto.
In rendering such opinion, Witt, Gaither & Whitaker, P.C. may rely (A)
as to matters involving the application of laws of any jurisdiction
other than the States of Delaware and Tennessee or the United States,
to the extent deemed proper and specified in such
19
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus
and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent
financial statements included in the Final
20
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition
(financial or other), earnings, business affairs,
properties or business prospects of the Company and
its subsidiaries or Piedmont, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Price Waterhouse shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable published
rules and regulations thereunder and that they have performed
the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial
information in accordance with, and as described in, Statement
of Auditing Standards No. 71 for the latest unaudited financial
statements in or incorporated in the Registration Statement or
the Final Prospectus and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules and any
pro forma financial statements of the Company and its
subsidiaries and of Piedmont included or incorporated
in the Registration Statement and the Final Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements
of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; their limited review in
accordance with standards established by the American
Institute of Certified Public Accountants under
Statement of Auditing Standards No. 71, of the
unaudited interim financial information of the Company
and its subsidiaries; carrying out certain specified
procedures (but not
21
an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal
matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and the
executive, finance, audit, pension and compensation
committees of the Company and the Subsidiaries and of
the partnership proceedings of Piedmont; and inquiries
of certain officials of the Company and Piedmont who
have responsibility for financial and accounting
matters of the Company and its subsidiaries and of
Piedmont as to transactions and events subsequent to
the date of the most recent audited financial
statements in or incorporated in the Final Prospectus,
nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
comply in form in all material respects with
applicable accounting requirements and with
the published rules and regulations of the
Commission with respect to financial
statements included or incorporated in
quarterly reports on Form 10-Q under the
Exchange Act; or that said unaudited
financial statements are not in conformity
with generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus;
(2) with respect to the period
subsequent to the date of the most recent
financial statements (other than any capsule
information), audited or unaudited, in or
incorporated in the Registration Statement
and the Final Prospectus, there were any
increases, at a specified date not more than
five business days prior to the date of the
letter, in the long-term debt of the Company
and its subsidiaries and of Piedmont or
capital stock of the Company, or decreases in
the stockholders' equity of the Company as
22
compared with the amounts shown on the most
recent consolidated balance sheet included or
incorporated in the Registration Statement
and the Final Prospectus, or for the period
from the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final
Prospectus to such specified date there were
any decreases, as compared with the
corresponding period in the preceding year in
net sales, gross margin, income from
operations, income before income taxes and
effect of accounting changes or in total or
per share amounts of net income applicable to
common stockholders of the Company and its
subsidiaries, except in all instances for
changes or decreases set forth in such
letter, in which case the letter shall be
accompanied by an explanation by the Company
as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives;
(3) the information included in the
Registration Statement and Prospectus in
response to Regulation S-K, Item 301
(Selected Financial Data), Item 302
(Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited
"capsule" information included or
incorporated in the Registration Statement
and the Final Prospectus do not agree with
the amounts set forth in the unaudited
financial statements for the same periods or
were not determined on a basis substantially
consistent with that of the corresponding
amounts in the audited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an
23
accounting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting
records of the Company, its subsidiaries and Piedmont)
set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion
and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company, its
subsidiaries and Piedmont, excluding any questions of
legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement
and the Final Prospectus, on the basis of a reading of
the unaudited pro forma financial statements, carrying
out certain specified procedures, inquiries of certain
officials of the Company and the acquired company who
have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Price Waterhouse shall have furnished to the Representatives a
letter or letters, dated
24
as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section
5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties
of the Company, its subsidiaries and Piedmont the effect of
which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical
rating organization" (as defined for purpose of Rule 436(g)
under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible
change.
(h) At the Execution Time, the Company shall have
furnished to the Representatives a letter from each officer and
director of the Company and certain major shareholders
specified in Schedule I hereto, addressed to the
Representatives, in which each such person agrees not to offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce an offering of, any shares of Equity
Securities beneficially owned by such person or any securities
convertible into, or exchangeable for, shares of such
Securities for a period specified in Schedule I hereto
following the Execution Time without the prior written consent
of the Representatives.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further legal opinions,
information, certificates and documents as the Representatives
may reasonably request.
25
(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section
5 shall be delivered at the office of Cravath, Swaine & Moore, counsel
for the Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York,
New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of one
Underwriters' counsel and one local counsel in each juris-
diction) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each Under-
writer, the directors, officers, employees and agents of
each Underwriter and each person who controls any Under-
writer within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law
26
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein, and (ii)
such indemnity with respect to any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as supplemented), excluding documents
incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such
delivery is required by the Act and the untrue statement or omission of
a material fact contained in such Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as
supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the
27
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page, under
the heading "Underwriting" or "Plan of Distribution" and, if Schedule I
hereto provides for sales of Securities pursuant to delayed delivery
arrangements, in the last sentence under the heading "Delayed Delivery
Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the Representatives,
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ one separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or
28
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and
the Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no such case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable
29
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to
be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or
the Underwriters. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each
person who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite
their names in Schedule II hereto bears to the aggregate amount or
number of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate amount or number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount or number of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all,
30
but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 8, the Closing Date shall
be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in
the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in the Company's Common
Stock or Class C Common Stock shall have been suspended by the New York
Stock Exchange or National Association of Securities Dealers Automated
Quotation National Market System or trading in securities generally on
the New York Stock Exchange or National Association of Securities
Dealers Automated Quotation National Market System shall have been
suspended or limited or minimum prices shall have been established on
[either of] such Exchange or market system, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities
or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war or other calamity or crisis the effect of which on financial markets
is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the
31
Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telecopied and confirmed
to them, at the address specified in Schedule I hereto; or, if sent to
the Company, will be mailed, delivered or telecopied and confirmed to it
at 1900 Rexford Road, Charlotte, NC 28211, attention of the Treasurer,
with a copy sent to the Company's counsel, Witt, Gaither & Whitaker,
P.C., at 1100 American National Bank Building, Chattanooga, Tennessee
37402.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York
without reference to principles of conflicts of laws.
32
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
Coca-Cola Bottling Co.
Consolidated,
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Citicorp Securities, Inc.
Salomon Brothers Inc
By: Citicorp Securities, Inc.
By:
Name:
Title:
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated November 1, 1995
Registration Statement No. 33-54657
Representative(s): Citicorp Securities, Inc.
Salomon Brothers Inc
Title, Purchase Price and Description of Securities:
Title: 6.85% Debentures Due 2007
Principal Amount: $100,000,000
Purchase price (include accrued
interest or amortization, if
any): $99,420,138.89 (100% of Principal Amount, less
a discount of 0.675%, plus accrued interest of
$95,138.89).
Sinking fund provisions: None
Redemption provisions: None
Other provisions: Notwithstanding Section 3, payment
will be mady by wire transfer of immediately
available funds
Closing Date, Time and Location: 10:00 a.m. New York City
Time on November 6, 1995 at the offices of Cravath, Swaine &
Moore, 825 Eighth Avenue, New
York, New York 10019
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company without the consent
of the Representative(s): November 15, 1995
Modification of items to be covered by the letter from Price
Waterhouse LLP delivered pursuant to Section 5(e) at
the Execution Time: None
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Citicorp Securities, Inc. $ 50,000,000
Salomon Brothers Inc 50,000,000
Total.............................................................................. $100,000,000
II-1
EXHIBIT 4.1
Unless this certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
COCA-COLA BOTTLING CO. CONSOLIDATED
6.85% DEBENTURES DUE 2007
CUSIP No. 191098AB8
(Hereinafter "Securities")
$100,000,000
COCA-COLA BOTTLING CO. CONSOLIDATED, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Million Dollars
($100,000,000) on November 1, 2007, and to pay interest thereon from November
1,1995 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on May 1 and November 1 in each year,
commencing May 1, 1996 at the rate of 6.85% per annum, until the principal
hereof is paid or made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of 6.85% per
annum on any overdue principal and premium and on any overdue installment of
interest. Interest payments on this Security will be calculated on the basis of
a 360-day year consisting of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 11 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register.
This Security is one of a duly authorized issue of securities of the
Company, issued and to be issued in one or more series under an Indenture, dated
as of July 20, 1994, as supplemented and restated by a Supplemental Indenture
dated March 3, 1995 (as supplemented, herein called the "Indenture"), between
the Company and NationsBank of Georgia, National Association, as Trustee (herein
called the "Trustee", which term includes Citibank, N.A., which succeeded to all
of the rights, powers, duties and obligations of the initial trustee under the
Indenture by agreement of all parties, effective September 15, 1995, as well as
any subsequent successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof limited in aggregate
principal amount to $100,000,000.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the right of the Holder of this
Security, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiples of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: November 6, 1995
CERTIFICATE OF AUTHENTICATION: COCA-COLA BOTTLING CO.
CONSOLIDATED
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
CITIBANK, N.A., AS TRUSTEE By: __________________________
David V. Singer
Chief Financial Officer
By: ____________________________
Authorized Officer Attest:
------------------------------
Patricia A. Gill
Assistant Secretary
[SEAL]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Name and address of assignee, including zip code, must be printed
or typewritten)
the within Debenture, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Debenture on the books of the within Company, with
full power of substitution in the premises.
Dated:__________________ _______________________________
NOTICE: The signature to this assignment must
correspond with the name as it
appears upon the face of the within
or attached Debenture in every
particular, without alteration
or enlargement or any change
whatever.
EXHIBIT 10.1
TREASURY BOND 6.45%
RENTAL FACTOR 3.12368%
LEASE FUNDING NO: 95008
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-COLA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 18th day of July, 1995 ("Lease
Commencement Date"); and will continue for a term of one hundred eight (108)
months ending on 18th day of July, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $1,495,957.32, payable in arrears in thirty-six (36) quarterly
installments of $41,554.37 each, beginning on October 18, 1995 and continuing
on the same day of each calendar quarter thereafter during the Initial Term,
with the final such installment being due and payable on July 18, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid prior
to the Lease Commencement Date, until the Lease Commencement Date. Interim Rent
shall be calculated from the date of such payment on the basis of a rate which
shall be the lesser of (i) a daily rate of .00037 per dollar so paid by Lessor,
(which rate is based on the rate implied by the Basic Rent amount set forth
above), or (ii) a per annum rate applied to the amount so paid by Lessor equal
to the "Prime Rate" as published in The Wall Street Journal on the last
business day prior to the date of such payment by Lessor. Interim Rent shall
be payable in full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent, Lessee
shall pay Lessor all Supplemental Rent provided for in the Master Lease
including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on Exhibit "A"
attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and
installation notification subject to this Lease Supplement. The supporting
equipment invoices, installation notifications and equipment serial numbers
are summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any particular
date of computation, shall be determined with reference to Exhibit "B" attached
hereto by multiplying the original cost of such item of Equipment as stated
on Exhibit "A" hereto by the percentage of the cost of such item set forth
opposite the applicable month number on Exhibit "B" hereto. For this purpose
the applicable month number means the number of months or partial months
elapsed since the Lease Commencement Date. If only a portion of an item of
Equipment is affected by any event causing calculation of "Stipulated Loss
Value" as specified in the Master Lease, and the cost of such portion of the
Equipment cannot be readily determined from the original cost of such item
set forth on Exhibit A, then the Stipulated Loss Value for such portion of
the Equipment shall be as reasonably calculated by Lessor, with written
notice of such amount being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant
to the terms of the Master Lease, and this Lease Supplement shall be deemed
to be a part of, and shall be governed by the terms and conditions of the
Master Lease. For purposes of this Lease Supplement, capitalized terms which
are used herein but which are not otherwise defined herein shall have
the meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 18th day
of July, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Attest: (Signature of Patricia A. Gill) Title: Vice President & Treasurer
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 26th day of July, 1995
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: (Signature of Andre Balfour)
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and
pursuant to the terms of that certain Master Equipment Lease dated February
9, 1993 (the "Lease") between Coca-Cola Financial Corporation ("Lessor") and
Coca-Cola Bottling Co. Consolidated ("Lessee"). This Certificate of Acceptance
shall be deemed to be a part of, and shall be governed by, the terms and
conditions of the Lease and words and phrases defined in the Lease shall have
the same meanings in this Certificate of Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees that
the Equipment described on the manufacturers' invoices summarized on the
attached Exhibit "A", has been delivered to Lessee and installed and has been
accepted by the Lessee under and pursuant to and subject to all terms and
conditions of the Lease, and that such Equipment is in good order and
condition and is of the manufacture, design and capacity selected by Lessee
and is suitable for Lessee's purposes. Lessee understands that Lessor is
relying on the foregoing certification in its purchase of such Equipment
and, to induce Lessor to purchase such Equipment, Lessee agrees that it will
settle all claims, defenses, set-offs and counterclaims it may have with
the manufacturer directly with the manufacturer and will not assert any
thereof against Lessor, that its obligation to Lessor is absolute, and that
Lessor is neither the manufacturer, distributor nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate or
detract from any rights or claims against any manufacturer or vendor of the
Equipment including, but not limited to, any warranties or representations
written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance
to be executed and delivered by its duly authorized officers, the 18th
day of July, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: (Signature of Patricia A. Gill) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Title: Assistant Secretary Title: Vice President & Treasurer
EXHIBIT 10.2
TREASURY BOND 6.79%
RENTAL FACTOR 3.16478%
LEASE FUNDING NO: 95009
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-COLA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 14th day of August, 1995 ("Lease
Commencement Date"); and will continue for a term of one hundred eight (108)
months ending on 14th day of August, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $2,128,819.68, payable in arrears in thirty-six (36) quarterly
installments of $59,133.88 each, beginning on November 14, 1995 and continuing
on the same day of each calendar quarter thereafter during the Initial Term,
with the final such installment being due and payable on August 14, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid prior
to the Lease Commencement Date, until the Lease Commencement Date. Interim
Rent shall be calculated from the date of such payment on the basis of a rate
which shall be the lesser of (i) a daily rate of .00037 per dollar so paid by
Lessor, (which rate is based on the rate implied by the Basic Rent amount set
forth above), or (ii) a per annum rate applied to the amount so paid by Lessor
equal to the "Prime Rate" as published in THE WALL STREET JOURNAL on the last
business day prior to the date of such payment by Lessor. Interim Rent shall
be payable in full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent, Lessee
shall pay Lessor all Supplemental Rent provided for in the Master Lease
including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on Exhibit
"A" attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and installation
notification subject to this Lease Supplement. The supporting equipment
invoices, installation notifications and equipment serial numbers are
summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any particular
date of computation, shall be determined with reference to Exhibit "B" attached
hereto by multiplying the original cost of such item of Equipment as stated on
Exhibit "A" hereto by the percentage of the cost of such item set forth
opposite the applicable month number on Exhibit "B" hereto. For this purpose
the applicable month number means the number of months or partial months
elapsed since the Lease Commencement Date. If only a portion of an item of
Equipment is affected by any event causing calculation of "Stipulated
Loss Value" as specified in the Master Lease, and the cost of such portion
of the Equipment cannot be readily determined from the original cost of
such item set forth on Exhibit A, then the Stipulated Loss Value for such
portion of the Equipment shall be as reasonably calculated by Lessor, with
written notice of such amount being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant to the
terms of the Master Lease, and this Lease Supplement shall be deemed to be a
part of, and shall be governed by the terms and conditions of the Master
Lease. For purposes of this Lease Supplement, capitalized terms which are
used herein but which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 14th day
of August, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Attest: (Signature of Patricia A. Gill) Title: Vice President & Treasurer
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 14th day of August, 1995.
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: (Signature of Andre Balfour)
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and pursuant
to the terms of that certain Master Equipment Lease dated February 9, 1993 (the
"Lease") between Coca-Cola Financial Corporation ("Lessor") and Coca-Cola
Bottling Co. Consolidated ("Lessee"). This Certificate of Acceptance shall be
deemed to be a part of, and shall be governed by, the terms and conditions of
the Lease and words and phrases defined in the Lease shall have the same
meanings in this Certificate of Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees that the
Equipment described on the manufacturers' invoices summarized on the attached
Exhibit "A", has been delivered to Lessee and installed and has been accepted
by the Lessee under and pursuant to and subject to all terms and conditions of
the Lease, and that such Equipment is in good order and condition and is of the
manufacture, design and capacity selected by Lessee and is suitable for
Lessee's purposes. Lessee understands that Lessor is relying on the foregoing
certification in its purchase of such Equipment and, to induce Lessor to
purchase such Equipment, Lessee agrees that it will settle all claims, defenses,
set-offs and counterclaims it may have with the manufacturer directly with the
manufacturer and will not assert any thereof against Lessor, that its obligation
to Lessor is absolute, and that Lessor is neither the manufacturer, distributor
nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate or
detract from any rights or claims against any manufacturer or vendor of the
Equipment including, but not limited to, any warranties or representations
written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance to be
executed and delivered by its duly authorized officers, the 14th day of
August, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: /s/ Patricia A. Gill By: /s/ Brenda B. Jackson
Brenda B. Jackson
Title: Assistant Secretary Title: Vice President & Treasurer
Exhibit 10.3
TREASURY BOND 6.33%
RENTAL FACTOR 3.08927%
LEASE FUNDING NO: 95010
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-C0LA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 8TH day of September, 1995
("Lease Commencement Date"); and will continue for a term of one hundred
eight (108) months ending on 8th day of September, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $1,107,408.96, payable in arrears in thirty-six (36)
quarterly installments of $30,761.36 each, beginning on December 8, 1995
and continuing on the same day of each calendar quarter thereafter during
the Initial Term, with the final such installment being due and payable
on September 8, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid
prior to the Lease Commencement Date, until the Lease Commencement Date.
Interim Rent shall be calculated from the date of such payment on the basis
of a rate which shall be the lesser of (i) a daily rate of .00037 per dollar
so paid by Lessor, (which rate is based on the rate implied by the Basic
Rent amount set forth above), or (ii) a per annum rate applied to the amount
so paid by Lessor equal to the "Prime Rate" as published in THE WALL STREET
JOURNAL on the last business day prior to the date of such payment by Lessor.
Interim Rent shall be payable in full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent,
Lessee shall pay Lessor all Supplemental Rent provided for in the Master
Lease including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on
Exhibit "A" attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and
installation notification subject to this Lease Supplement. The supporting
equipment invoices, installation notifications and equipment serial numbers
are summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any
particular date of computation, shall be determined with reference to
Exhibit "B" attached hereto by multiplying the original cost of such
item of Equipment as stated on Exhibit "A" hereto by the percentage of
the cost of such item set forth opposite the applicable month number
on Exhibit "B" hereto. For this purpose the applicable month number means
the number of months or partial months elapsed since the Lease Commencement
Date. If only a portion of an item of Equipment is affected by any event
causing calculation of "Stipulated Loss Value" as specified in the Master
Lease, and the cost of such portion of the Equipment cannot be readily
determined from the original cost of such item set forth on Exhibit A, then
the Stipulated Loss Value for such portion of the Equipment shall be as
reasonably calculated by Lessor, with written notice of such amount
being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant
to the terms of the Master Lease, and this Lease Supplement shall be deemed
to be a part of, and shall be governed by the terms and conditions of the
Master Lease. For purposes of this Lease Supplement, capitalized terms
which are used herein but which are not otherwise defined herein shall
have the meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 8th day of
September, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By: /s/ Brenda B. Jackson
Brenda B. Jackson
Attest: /s/ Patricia A. Gill Title: Vice President & Treasurer
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 18th day of September, 1995.
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: /s/ Andre Balfour
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and
pursuant to the terms of that certain Master Equipment Lease dated February 9,
1993 (the "Lease") between Coca-Cola Financial Corporation ("Lessor") and
Coca-Cola Bottling Co. Consolidated ("Lessee"). This Certificate of
Acceptance shall be deemed to be a part of, and shall be governed by, the
terms and conditions of the Lease and words and phrases defined in the
Lease shall have the same meanings in this Certificate of Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees
that the Equipment described on the manufacturers' invoices summarized on
the attached Exhibit "A", has been delivered to Lessee and installed and
has been accepted by the Lessee under and pursuant to and subject to all
terms and conditions of the Lease, and that such Equipment is in good
order and condition and is of the manufacture, design and capacity
selected by Lessee and is suitable for Lessee's purposes. Lessee understands
that Lessor is relying on the foregoing certification in its purchase of
such Equipment and, to induce Lessor to purchase such Equipment, Lessee
agrees that it will settle all claims, defenses, set-offs and counterclaims
it may have with the manufacturer directly with the manufacturer and will
not assert any thereof against Lessor, that its obligation to Lessor is
absolute, and that Lessor is neither the manufacturer, distributor
nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate
or detract from any rights or claims against any manufacturer or vendor
of the Equipment including, but not limited to, any warranties or
representations written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance
to be executed and delivered by its duly authorized officers, the 8th
day of September, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: /s/ Patricia A. Gill By: /s/ Brenda B. Jackson
Brenda B. Jackson
Title: Assistant Secretary Title: Vice President & Treasurer
EXHIBIT 10.4
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 012
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units (i)
have been fully inspected by qualified agents of Lessee and are in good order,
operating condition and repair, (ii) have been properly installed (subject
only to any minor undischarged obligations of suppliers, manufacturers or
installers thereof to promptly update and conform the same as provided by
their respective agreements and warranties), (iii) meet all recommended
or applicable safety standards, (iv) are, as of the Delivery Date set forth
below, available for use and service by Lessee and Lessor, and (v) have
been marked or labeled showing Lessor's interest in the form and to the extent
required by the Lease and (C) Lessee must pay the rent and all other sums
provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
June 21, 1995. The Scheduling Date of the Units is June 21, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of an
Interim Term that begins on the Delivery Date and continues until September
15, 1995 (the "Base Date") and a Base Term that begins on the Base Date and
continues until September 15, 2003.
4. RENT. The total rents for the Units is $49,199.56, comprised of Base
Rent payable in 32 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth
in Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart
has been prominently marked "Lessee's Copy". Only the counterpart marked
"Lessor's Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule
and Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ Sonia Delen By: /s/ Brenda B. Jackson
Title: Assistant Vice President Title: Brenda B. Jackson
By: /s/ Gail D. Smedal Vice President & Treasurer
Title: Vice President
EXHIBIT 10.5
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 013
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as in
the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units (i)
have been fully inspected by qualified agents of Lessee and are in good order,
operating condition and repair, (ii) have been properly installed (subject
only to any minor undischarged obligations of suppliers, manufacturers or
installers thereof to promptly update and conform the same as provided by their
respective agreements and warranties), (iii) meet all recommended or applicable
safety standards, (iv) are, as of the Delivery Date set forth below, available
for use and service by Lessee and Lessor, and (v) have been marked or labeled
showing Lessor's interest in the form and to the extent required by the
Lease and (C) Lessee must pay the rent and all other sums provided for in
the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is June
21, 1995. The Scheduling Date of the Units is June 21, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until
September 15, 1995 (the "Base Date") and a Base Term that begins on the Base
Date and continues until September 15, 2003.
4. RENT. The total rents for the Units is $143,185.92, comprised of Base
Rent payable in 32 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule and
Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule
and Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ Sonia Delen By: /s/ Brenda B. Jackson
Title: Assistant Vice President Title: Vice President & Treasurer
LESSEE'S COPY
By: /s/ Gail D. Smedal
Title: Vice President
EXHIBIT 10.6
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 014
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING
CO. CONSOLIDATED, as Lessee (together with the Appendix thereto, the
"Lease"; capitalized terms not otherwise defined herein having the same
meanings as in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lease confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under,
and constitutes "Units" subject to and governed by, the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same as
provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery Date
set forth below, available for use and service by Lessee and Lessor, and
(v) have been marked or labeled showing Lessor's interest in the form and to
the extent required by the Lease and (C) Lessee must pay the rent and all other
sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units
is July 27, 1995. The Scheduling Date of the Units is July 27, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised
of an Interim Term that begins on the Delivery Date and continues until
October 15, 1995 (the "Base Date") and a Base Term that begins on the
Base Date and continues until October 15, 2002.
4. RENT. The total rents for the Units is $405,776.88, comprised of
Base Rent payable in 28 consecutive quarterly installments, with the first
such installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth
in Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease
Schedule and Acceptance Certificate have been executed by the parties hereto.
One counterpart has been prominently marked "Lessor's Copy". One counterpart
has been prominently marked "Lessee's Copy". Only the counterpart marked
"Lessor's Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease
Schedule and Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ Sonia Delen By: /s/ Stephen D. Westphal
Title: Assistant Vice President Title: VP--Controller
By: /s/ Gail D. Smedal
Title: Vice President
EXHIBIT 10.7
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 015
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING
CO. CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under,
and constitutes "Units" subject to and governed, by the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same
as provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery
Date set forth below, available for use and service by Lessee and Lessor,
and (v) have been marked or labeled showing Lessor's interest in the form
and to the extent required by the Lease and (C) Lessee must pay the rent
and all other sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 7, 1995. The Scheduling Date of the Units is August 7, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised
of an Interim Term that begins on the Delivery Date and continues until
November 1, 1995 (the "Base Date") and a Base Term that begins on the
Base Date and continues until November 1, 1998.
4. RENT. The total rents for the Units is $511,170.66, comprised
of Base Rent payable in 12 consecutive quarterly installments, with the
first such installment due three months following the Base Date. The
Base Rent installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth
in Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule
and Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: /s/ Sonia Delen By: /s/ Brenda B. Jackson
Brenda B. Jackson
Title: Assistant Vice President Title: Vice President & Treasurer
By: /s/ Gail D. Smedal
Title: Vice President
EXHIBIT 10.8
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 016
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same
as provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery
Date set forth below, available for use and service by Lessee and Lessor,
and (v) have been marked or labeled showing Lessor's interest in the form
and to the extent required by the Lease and (C) Lessee must pay the rent and
all other sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 24, 1995. The Scheduling Date of the Units is August 24, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until
November 15, 1995 (the "Base Date") and a Base Term that begins on the Base
Date and continues until November 15, 2003.
4. RENT. The total rents for the Units is $32,785.48, comprised of Base
Rent payable in 32 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule and
Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: (Signature of Sonia Delen By: (Signature of Brenda B.
appears here) Jackson appears here)
Brenda B. Jackson
Title: Assistant Vice President Title: Vice President & Treasurer
By: (Signature of Gail D. Smedal appears here)
Title: Vice President
EXHIBIT 10.9
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 017
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as in
the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units (i)
have been fully inspected by qualified agents of Lessee and are in good order,
operating condition and repair, (ii) have been properly installed (subject
only to any minor undischarged obligations of suppliers, manufacturers or
installers thereof to promptly update and conform the same as provided by their
respective agreements and warranties), (iii) meet all recommended or applicable
safety standards, (iv) are, as of the Delivery Date set forth below, available
for use and service by Lessee and Lessor, and (v) have been marked or labeled
showing Lessor's interest in the form and to the extent required by the Lease
and (C) Lessee must pay the rent and all other sums provided for in the Lease
with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 24, 1995. The Scheduling Date of the Units is August 24, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until November
15, 1995 (the "Base Date") and a Base Term that begins on the Base Date and
continues until November 15, 2002.
4. RENT. The total rents for the Units is $77,268.02, comprised of Base
Rent payable in 28 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule
and Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
/s/ Sonia Delen /s/ Brenda B. Jackson
By:_____________________________ By: _______________________________
Assistant Vice President Vice President & Treasurer
Title: _________________________ Title: ____________________________
/s/ Gail D. Smedal
By:_____________________________
Vice President
Title: _________________________
EXHIBIT 10.10
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 18-REVISED
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same
as provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery
Date set forth below, available for use and service by Lessee and Lessor,
and (v) have been marked or labeled showing Lessor's interest in the form
and to the extent required by the Lease and (C) Lessee must pay the rent and
all other sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 29, 1995. The Scheduling Date of the Units is August 29, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until
November 15, 1995 (the "Base Date") and a Base Term that begins on the Base
Date and continues until November 15, 1998.
4. RENT. The total rents for the Units is $641,012.70, comprised of Base
Rent payable in 12 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule and
Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: (Signature of Sonia Delen By: (Signature of Brenda B.
appears here) Jackson appears here)
Title: Assistant Vice President Title: Vice President & Treasurer
By: (Signature of Gail D. Smedal
appears here)
Title: Vice President
EXHIBIT 10.11
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 019
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same
as provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery
Date set forth below, available for use and service by Lessee and Lessor,
and (v) have been marked or labeled showing Lessor's interest in the form
and to the extent required by the Lease and (C) Lessee must pay the rent and
all other sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 7, 1995. The Scheduling Date of the Units is September 27, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until
December 15, 1995 (the "Base Date") and a Base Term that begins on the Base
Date and continues until December 15, 1998.
4. RENT. The total rents for the Units is $382,090.43, comprised of Base
Rent payable in 12 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule and
Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: (Signature of Sonia Delen By: (Signature of Brenda B.
appears here) Jackson appears here)
Brenda B. Jackson
Title: Assistant Vice President Title: Vice President & Treasurer
By: (Signature of Gail D. Smedal
appears here)
Title: Vice President
EXHIBIT 10.12
Lease No. 940148
LEASE SCHEDULE AND ACCEPTANCE CERTIFICATE NO. 020
Reference is made to the Lease Agreement dated as of December 15, 1994
between BA LEASING & CAPITAL CORPORATION, as Lessor, and COCA-COLA BOTTLING CO.
CONSOLIDATED, as Lessee (together with the Appendix thereto, the "Lease";
capitalized terms not otherwise defined herein having the same meanings as
in the Lease). The Lease is incorporated herein by reference.
1. ACCEPTANCE; CONFIRMATIONS. Lessee confirms that (A) the equipment
described in Annex A to this Lease Schedule (the "Units") has been delivered
to, is in the possession of and is accepted by Lessee for leasing under, and
constitutes "Units" subject to and governed by, the Lease, (B) the Units
(i) have been fully inspected by qualified agents of Lessee and are in good
order, operating condition and repair, (ii) have been properly installed
(subject only to any minor undischarged obligations of suppliers,
manufacturers or installers thereof to promptly update and conform the same
as provided by their respective agreements and warranties), (iii) meet all
recommended or applicable safety standards, (iv) are, as of the Delivery
Date set forth below, available for use and service by Lessee and Lessor,
and (v) have been marked or labeled showing Lessor's interest in the form
and to the extent required by the Lease and (C) Lessee must pay the rent and
all other sums provided for in the Lease with respect to such Units.
2. DELIVERY DATE; SCHEDULING DATE. The Delivery Date of the Units is
August 7, 1995. The Scheduling Date of the Units is September 27, 1995.
3. TERM. The Term of the Lease with respect to the Units is comprised of
an Interim Term that begins on the Delivery Date and continues until
December 15, 1995 (the "Base Date") and a Base Term that begins on the Base
Date and continues until December 15, 2002.
4. RENT. The total rents for the Units is $152,977.06, comprised of Base
Rent payable in 28 consecutive quarterly installments, with the first such
installment due three months following the Base Date. The Base Rent
installments are set forth in Annex B hereto.
5. CASUALTY VALUES. The Casualty Values for the Units are set forth in
Annex B hereto.
6. CHATTEL PAPER COUNTERPARTS. Two counterparts of this Lease Schedule
and Acceptance Certificate have been executed by the parties hereto. One
counterpart has been prominently marked "Lessor's Copy". One counterpart has
been prominently marked "Lessee's Copy". Only the counterpart marked "Lessor's
Copy" shall evidence a monetary obligation of Lessee.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Schedule and
Acceptance Certificate as of the Delivery Date set forth above.
Lessor: Lessee:
BA LEASING & CAPITAL CORPORATION COCA-COLA BOTTLING CO. CONSOLIDATED
By: (Signature of Sonia Delen By: (Signature of Brenda B.
appears here) Jackson appears here)
Brenda B. Jackson
Title: Assistant Vice President Title: Vice President & Treasurer
By: (Signature of Gail D. Smedal appears here)
Title: Vice President
EXHIBIT 10.13
TREASURY BOND 6.15%
RENTAL FACTOR 3.06212%
LEASE FUNDING NO: 95011
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-COLA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 15TH day of September, 1995
("Lease Commencement Date"); and will continue for a term of one hundred
eight (108) months ending on 15th day of September, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $1,235,106.36, payable in arrears in thirty-six (36)
quarterly installments of $34,308.51 each, beginning on December 15,
1995 and continuing on the same day of each calendar quarter thereafter
during the Initial Term, with the final such installment being due and
payable on September 15, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid
prior to the Lease Commencement Date, until the Lease Commencement Date.
Interim Rent shall be calculated from the date of such payment on the
basis of a rate which shall be the lesser of (i) a daily rate of .00037
per dollar so paid by Lessor, (which rate is based on the rate implied
by the Basic Rent amount set forth above), or (ii) a per annum rate
applied to the amount so paid by Lessor equal to the "Prime Rate" as
published in The Wall Street Journal on the last business day prior to
the date of such payment by Lessor. Interim Rent shall be payable in
full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent,
Lessee shall pay Lessor all Supplemental Rent provided for in the Master
Lease including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on Exhibit
"A" attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and
installation notification subject to this Lease Supplement. The
supporting equipment invoices, installation notifications and equipment
serial numbers are summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any
particular date of computation, shall be determined with reference to
Exhibit "B" attached hereto by multiplying the original cost of such
item of Equipment as stated on Exhibit "A" hereto by the percentage of
the cost of such item set forth opposite the applicable month number on
Exhibit "B" hereto. For this purpose the applicable month number means
the number of months or partial months elapsed since the Lease
Commencement Date. If only a portion of an item of Equipment is affected
by any event causing calculation of "Stipulated Loss Value" as specified
in the Master Lease, and the cost of such portion of the Equipment
cannot be readily determined from the original cost of such item set
forth on Exhibit A, then the Stipulated Loss Value for such portion of
the Equipment shall be as reasonably calculated by Lessor, with written
notice of such amount being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant to the
terms of the Master Lease, and this Lease Supplement shall be deemed to
be a part of, and shall be governed by the terms and conditions of the
Master Lease. For purposes of this Lease Supplement, capitalized terms
which are used herein but which are not otherwise defined herein shall
have the meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 15th day of
September, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By (Signature of Brenda B. Jackson)
Brenda B. Jackson
Attest: (Signature of Patricia A. Gill) Title: Vice President & Treasurer
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 27th day of October, 1995.
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: (Signature of Andre Balfour appears here)
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and
pursuant to the terms of that certain Master Equipment Lease dated
February 9, 1993 (the "Lease") between Coca-Cola Financial Corporation
("Lessor") and Coca-Cola Bottling Co. Consolidated ("Lessee"). This
Certificate of Acceptance shall be deemed to be a part of, and shall be
governed by, the terms and conditions of the Lease and words and phrases
defined in the Lease shall have the same meanings in this Certificate of
Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees
that the Equipment described on the manufacturers' invoices summarized
on the attached Exhibit "A", has been delivered to Lessee and installed
and has been accepted by the Lessee under and pursuant to and subject to
all terms and conditions of the Lease, and that such Equipment is in good
order and condition and is of the manufacture, design and capacity
selected by Lessee and is suitable for Lessee's purposes. Lessee
understands that Lessor is relying on the foregoing certification in its
purchase of such Equipment and, to induce Lessor to purchase such
Equipment, Lessee agrees that it will settle all claims, defenses,
set-offs and counterclaims it may have with the manufacturer directly
with the manufacturer and will not assert any thereof against Lessor,
that its obligation to Lessor is absolute, and that Lessor is neither
the manufacturer, distributor nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate or
detract from any rights or claims against any manufacturer or vendor of
the Equipment including, but not limited to, any warranties or
representations written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance
to be executed and delivered by its duly authorized officers, the 15th
day of September, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: (Signature of Patricia A. Gill) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Title: Assistant Secretary Title: Vice President & Treasurer
EXHIBIT 10.14
TREASURY BOND 6.24%
RENTAL FACTOR 3.07898%
LEASE FUNDING NO: 95012
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-COLA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 10th day of October, 1995 ("Lease
Commencement Date"); and will continue for a term of one hundred eight
(108) months ending on 10th day of October, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $911,266.20, payable in arrears in thirty-six (36)
quarterly installments of $25,312.95 each, beginning on January 10,
1996 and continuing on the same day of each calendar quarter thereafter
during the Initial Term, with the final such installment being due and
payable on October 10, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid
prior to the Lease Commencement Date, until the Lease Commencement Date.
Interim Rent shall be calculated from the date of such payment on the
basis of a rate which shall be the lesser of (i) a daily rate of .00037
per dollar so paid by Lessor, (which rate is based on the rate implied
by the Basic Rent amount set forth above), or (ii) a per annum rate
applied to the amount so paid by Lessor equal to the "Prime Rate" as
published in The Wall Street Journal on the last business day prior to
the date of such payment by Lessor. Interim Rent shall be payable in
full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent,
Lessee shall pay Lessor all Supplemental Rent provided for in the Master
Lease including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on Exhibit
"A" attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and
installation notification subject to this Lease Supplement. The
supporting equipment invoices, installation notifications and equipment
serial numbers are summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any
particular date of computation, shall be determined with reference to
Exhibit "B" attached hereto by multiplying the original cost of such
item of Equipment as stated on Exhibit "A" hereto by the percentage of the
cost of such item set forth opposite the applicable month number on
Exhibit "B" hereto. For this purpose the applicable month number means
the number of months or partial months elapsed since the Lease
Commencement Date. If only a portion of an item of Equipment is affected
by any event causing calculation of "Stipulated Loss Value" as specified
in the Master Lease, and the cost of such portion of the Equipment
cannot be readily determined from the original cost of such item set
forth on Exhibit A, then the Stipulated Loss Value for such portion of
the Equipment shall be as reasonably calculated by Lessor, with written
notice of such amount being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant to
the terms of the Master Lease, and this Lease Supplement shall be deemed
to be a part of, and shall be governed by the terms and conditions of
the Master Lease. For purposes of this Lease Supplement, capitalized
terms which are used herein but which are not otherwise defined herein
shall have the meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 10th day
of October, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Attest: (Signature of Patricia A. Gill) Title: Vice President & Treasurer
Patricia A. Gill
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 27th day of October, 1995.
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: (Signature of Andre Balfour)
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and
pursuant to the terms of that certain Master Equipment Lease dated
February 9, 1993 (the "Lease") between Coca-Cola Financial Corporation
("Lessor") and Coca-Cola Bottling Co. Consolidated ("Lessee"). This
Certificate of Acceptance shall be deemed to be a part of, and shall be
governed by, the terms and conditions of the Lease and words and phrases
defined in the Lease shall have the same meanings in this Certificate of
Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees
that the Equipment described on the manufacturers' invoices summarized
on the attached Exhibit "A", has been delivered to Lessee and installed
and has been accepted by the Lessee under and pursuant to and subject to
all terms and conditions of the Lease, and that such Equipment is in
good order and condition and is of the manufacture, design and capacity
selected by Lessee and is suitable for Lessee's purposes. Lessee
understands that Lessor is relying on the foregoing certification in its
purchase of such Equipment and, to induce Lessor to purchase such
Equipment, Lessee agrees that it will settle all claims, defenses,
set-offs and counterclaims it may have with the manufacturer directly
with the manufacturer and will not assert any thereof against Lessor,
that its obligation to Lessor is absolute, and that Lessor is neither
the manufacturer, distributor nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate or
detract from any rights or claims against any manufacturer or vendor of
the Equipment including, but not limited to, any warranties or
representations written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance to
be executed and delivered by its duly authorized officers, the 10th day
of October, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: (Signature of Patricia A. Gill) By: (Signature of Brenda B. Jackson)
Patricia A. Gill Brenda B. Jackson
Title: Assistant Secretary Title: Vice President & Treasurer
EXHIBIT 10.15
TREASURY BOND 6.11%
RENTAL FACTOR 3.05875%
LEASE FUNDING NO: 95013
LEASE SUPPLEMENT TO
MASTER EQUIPMENT LEASE (the "Master Lease")
BETWEEN
COCA-COLA FINANCIAL CORPORATION ("Lessor")
AND
COCA-COLA BOTTLING CO. CONSOLIDATED ("Lessee")
DATED: February 9, 1993
1. Term
The "Initial Term" shall commence on the 18th day of October, 1995
("Lease Commencement Date"); and will continue for a term of one hundred
eight (108) months ending on 18th day of October, 2004.
2. Rent
(a) BASIC RENT: As Basic Rent hereunder, Lessee shall pay an aggregate
rental charge of $1,138,905.36, payable in arrears in thirty-six (36)
quarterly installments of $31,636.26 each, beginning on January 18, 1996
and continuing on the same day of each calendar quarter thereafter
during the Initial Term, with the final such installment being due and
payable on October 18, 2004.
(b) INTERIM RENT: Lessee shall pay Lessor Interim Rent on all payments
made by Lessor for Equipment from the date of Lessor's payment, if paid
prior to the Lease Commencement Date, until the Lease Commencement Date.
Interim Rent shall be calculated from the date of such payment on the
basis of a rate which shall be the lesser of (i) a daily rate of .00037
per dollar so paid by Lessor, (which rate is based on the rate implied
by the Basic Rent amount set forth above), or (ii) a per annum rate
applied to the amount so paid by Lessor equal to the "Prime Rate" as
published in The Wall Street Journal on the last business day prior to
the date of such payment by Lessor. Interim Rent shall be payable in
full on the Lease Commencement Date.
(c) SUPPLEMENTAL RENT: In addition to Basic Rent and Interim Rent,
Lessee shall pay Lessor all Supplemental Rent provided for in the Master
Lease including, without limitation, all applicable sales and use taxes.
3. Location of the Equipment
The location(s) of the Equipment leased is (are) set forth on Exhibit
"A" attached hereto.
4. Equipment Leased
The Equipment leased is described on each equipment invoice and
installation notification subject to this Lease Supplement. The
supporting equipment invoices, installation notifications and equipment
serial numbers are summarized on Exhibit "A" attached hereto.
5. Stipulated Loss Value
The "Stipulated Loss Value" of each item of Equipment, as of any
particular date of computation, shall be determined with reference to
Exhibit "B" attached hereto by multiplying the original cost of such
item of Equipment as stated on Exhibit "A" hereto by the percentage of
the cost of such item set forth opposite the applicable month number on
Exhibit "B" hereto. For this purpose the applicable month number means
the number of months or partial months elapsed since the Lease
Commencement Date. If only a portion of an item of Equipment is affected
by any event causing calculation of "Stipulated Loss Value" as specified
in the Master Lease, and the cost of such portion of the Equipment
cannot be readily determined from the original cost of such item set
forth on Exhibit A, then the Stipulated Loss Value for such portion of
the Equipment shall be as reasonably calculated by Lessor, with written
notice of such amount being sent to Lessee by Lessor.
6. Lease
This Lease Supplement is executed and delivered under and pursuant to
the terms of the Master Lease, and this Lease Supplement shall be deemed
to be a part of, and shall be governed by the terms and conditions of the
Master Lease. For purposes of this Lease Supplement, capitalized terms
which are used herein but which are not otherwise defined herein shall
have the meanings ascribed to such terms in the Master Lease.
IN WITNESS WHEREOF, Lessee has caused this Lease Supplement to be duly
executed and delivered by its duly authorized officers, this 18th day of
October, 1995.
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
(CORPORATE SEAL) By: (Signature of Brenda B. Jackson)
Brenda B. Jackson
Attest: (Signature of Patricia A. Gill) Title: Vice President & Treasurer
Patricia A. Gill
Title: Assistant Secretary
Accepted in Atlanta, Georgia, this 2nd day of November, 1995.
LESSOR:
COCA-COLA FINANCIAL CORPORATION
By: (Signature of Andre Balfour appears here)
Title: Operations Manager
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is executed and delivered under and
pursuant to the terms of that certain Master Equipment Lease dated
February 9, 1993 (the "Lease") between Coca-Cola Financial Corporation
("Lessor") and Coca-Cola Bottling Co. Consolidated ("Lessee"). This
Certificate of Acceptance shall be deemed to be a part of, and shall be
governed by, the terms and conditions of the Lease and words and phrases
defined in the Lease shall have the same meanings in this Certificate of
Acceptance.
The undersigned, the Lessee under the Lease, acknowledges and agrees
that the Equipment described on the manufacturers' invoices summarized
on the attached Exhibit "A", has been delivered to Lessee and installed
and has been accepted by the Lessee under and pursuant to and subject to
all terms and conditions of the Lease, and that such Equipment is in
good order and condition and is of the manufacture, design and capacity
selected by Lessee and is suitable for Lessee's purposes. Lessee
understands that Lessor is relying on the foregoing certification in its
purchase of such Equipment and, to induce Lessor to purchase such
Equipment, Lessee agrees that it will settle all claims, defenses,
set-offs and counterclaims it may have with the manufacturer directly
with the manufacturer and will not assert any thereof against Lessor,
that its obligation to Lessor is absolute, and that Lessor is neither
the manufacturer, distributor nor seller of such Equipment.
This Certificate of Acceptance does not and shall not limit, abrogate or
detract from any rights or claims against any manufacturer or vendor of
the Equipment including, but not limited to, any warranties or
representations written or oral, statutory, express or implied.
IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance to
be executed and delivered by its duly authorized officers, the 18th day
of October, 1995.
(CORPORATE SEAL) LESSEE: COCA-COLA BOTTLING CO.
CONSOLIDATED
Attest: (Signature of Patricia A. Gill By: (Signature of Brenda B. Jackson
appears here) appears here)
Patricia A. Gill Brenda B. Jackson
Title: Title:
Assistant Secretary Vice President & Treasurer
EXHIBIT 10.16
CAN SUPPLY AGREEMENT
This Agreement is made this 7th day of November, 1995 between AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation, with its principal offices
at 8770 W. Bryn Mawr Avenue, Chicago, Illinois 60631 ("ANC"), and
COCA-COLA BOTTLING COMPANY CONSOLIDATED, with its principal offices at
1900 Rexford Road, Charlotte, NC 28211-3481 ("Buyer"), and covers the
manufacture and supply by ANC to Buyer and the purchase by Buyer of
two-piece aluminum beverage can bodies and ends (herein collectively
referred to as "cans" or "containers") of the specifications and
quantities referred to hereinbelow.
WHEREAS, the parties are desirous of entering into a long-term supply
agreement covering certain of Buyer's requirements of Containers; and
WHEREAS, the parties are desirous of establishing pricing for the
containers to be purchased and sold hereunder, with a floor and ceiling
cost for aluminum ingot ("Ingot Band") which will, over the term of this
Agreement, limit the extreme volatility which both parties have
experienced in the recent past with respect to can pricing and
particularly with respect to aluminum costs; and
WHEREAS, in order to accomplish this goal of predictability of pricing,
the parties are willing to commit themselves to purchase and sell, as
the case may be, the quantity of containers stated herein utilizing
aluminum covered by an Ingot Band, and the parties recognize that each
of them has the ability to protect itself against the fluctuation in the
cost of aluminum above or below the Ingot Band by purchasing the
appropriate downside or upside protection, which is available in the
marketplace.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Description of Products. This Agreement relates to containers of the
specifications set forth on Exhibit A attached hereto, required by Buyer
at its can filling location(s) set forth on Exhibit B (and at any
additional or substitute facilities where Buyer may fill cans if this
contract covers all of Buyer's can requirements).
2. Term. The initial term of this Agreement shall be five (5) years
commencing January 1, 1996 and terminating December 31, 2000. This
Agreement shall be automatically extended for one additional year beyond
the initial term (i.e., until December 31, 2001) if, during the period
July 1, 1999 through December 31, 1999, the daily London Metal Exchange
cash settlement price for aluminum ingot plus the Midwest premium for
that ingot (the "Midwest Ingot Price") is outside of the Ingot Band
referenced on Exhibit C attached hereto, on more than 75% of the dates
when the market is open.
3. Volume.
(a) Buyer agrees to buy and ANC agrees to sell, in each calendar year
during the term of this Agreement: choose one (i) 70% of Buyer's total
requirements of cans; or (ii) million cans. Can bodies and ends shall be
purchased by Buyer and supplied by ANC in substantially equal volumes.
(b) The foregoing annual volume of containers to be purchased hereunder
may not be changed by Buyer during the terms of this Agreement without
the written consent of ANC although ANC will use its commercially
reasonable best efforts to accommodate year over year changes hereafter
requested by Buyer in its annual volume.
(c) ANC will not be required to provide more than 55% of Buyer's annual
band-priced volume hereunder in either of the following six month
periods throughout the term hereof: (i) April 1 through September 30;
(ii) October 1 through March 31.
4. Pricing
(a) Prices under this Agreement shall be established and adjusted in
accordance with the terms, conditions and limitations set forth on
Exhibit C attached hereto. In addition to the price adjustment
mechanisms set forth on Exhibit C, any changes in the specifications of
containers supplied hereunder may result in an upward or downward price
adjustment.
(b) ANC will in no event be required to meet competitive band formulas
or other competitive offers driven by lower metal costs; however, and
notwithstanding the foregoing, ANC intends to be competitive with
specific offers not driven by lower metal costs.
(c) Buyer and ANC recognize and agree that fluctuations in the price of
aluminum may drive the spot price of aluminum above the ceiling price or
below the floor price of the Ingot Band, as such ceiling and floor
prices may be adjusted from time to time in accordance with Exhibit C.
However, Buyer and ANC agree to purchase and sell the quantities agreed
to hereunder with aluminum ingot costs no higher than such ceiling
prices nor lower than such floor prices notwithstanding any such
fluctuations. The parties recognize that protection against any such
market fluctuation is available to be purchased in the marketplace.
5. Payment Terms. Payment terms shall be: 1% 10, net 30 days. Interest
shall be assessed on all past-due amounts at the annual rate of two (2%)
percent above the prime rate of interest at the First National Bank of
Chicago, Chicago, Illinois.
6. Delivery. Buyer shall advise ANC, prior to October 31, of its annual
requirements of containers under this Agreement for the upcoming
calendar year (the "Forecasted Volume"). ANC shall not be required under
any circumstances to sell band priced containers to Buyer in excess of
such Forecasted volume. If the Forecasted Volume is in excess of or less
than the volume referred to in subparagraph 3(a) above, ANC shall only
be required to use its commercially reasonable best efforts to provide
such excess to Buyer or accommodate such shortfall. In the event that
the Forecasted Volume is in excess of the volume referenced in
subparagraph 3(a), ANC shall first attempt to secure metal within the
then current band pricing range. If ANC is unsuccessful in securing band
pricing for such excess, then pricing for the excess volume will be
based on the Midwest Ingot Price on the date ANC purchases metal to
satisfy Buyer's excess requirements.
7. Effect of Termination. Upon termination of this Agreement, for any
reason, Buyer shall accept all completed, specially fabricated or
lithographed containers and related items previously ordered, acquired
or committed for by ANC in reasonable quantities in anticipation of
Buyer's normal can requirements.
8. Warranties, Claims and Limitation of Liability.
(a) ANC hereby warrants to Buyer that the containers to be manufactured
and sold to Buyer hereunder shall be free from defects in workmanship
and materials, and shall conform to the specifications set forth in
Exhibit A attached hereto. EXCEPT AS EXPRESSLY STATED ABOVE, THERE ARE
NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(b) ANC shall not be liable to Buyer or to any other person where the
claimed damages result from: (1) Buyer's faulty assembly or closure of
the can body and loose end; (2) rust or outside corrosion on containers
occurring after Buyer's receipt, except when caused by ANC's faulty
workmanship or imperfect materials; (3) the failure of Buyer (or any
other party from time to time having custody or control of allegedly
defective goods) to exercise reasonable care in conveying, warehousing,
using, packing, handling, distributing or storing filled or unfilled
containers; or (4) the failure of empty or filled containers exported or
used in foreign countries unless a special warranty has been
specifically approved by ANC to cover such exported containers.
(c) Seller shall give immediate consideration to settlement of Buyer's
claims, but in no event shall Seller be liable on any claim unless
notice thereof is received by ANC by the earliest of: (i) 30 days after
discovery of an alleged defect; (ii) 60 days after the alleged defect
reasonably should have been discovered; and (iii) 365 days after Buyer's
filling of allegedly defective containers. Failure to assert a claim
within such period shall constitute a waiver of the claim, and shall
discharge Seller from any responsibility.
(d) ANC's liability to Buyer hereunder shall be limited to Buyer's cost
of the defective containers, cost of the contents of the containers lost
as a direct result of the defect, and the reasonable cost of recovery
and disposition of defective containers (but as to the latter, only to
the extent reasonably required). ANC shall also be responsible for the
defense of claims by third parties to the extent arising out of a
container defect provided that ANC is given adequate advance notice of
such claim and the opportunity to defend such claim by counsel of its
own choosing.
9. Force Majeure. Except for the payment of money due hereunder, ANC and
Buyer shall be excused for failure to perform under this Agreement where
such failure results from circumstances beyond the affected party's
reasonable control including, without limitation, such circumstances as
fire, storm, flood, earthquake, strikes, work stoppages or slowdowns,
delay or failure of transportation or suppliers, acts of the public
enemy, acts of God or acts, regulations, priorities or actions of the
United States, a state or any local government or agents or
instrumentalities thereof.
10. Notices. All notices, requests or other communications shall be in
writing, and shall be deemed given when delivered personally or
deposited in the United States mail, postage
prepaid, or to a courier service and properly addressed to Buyer at:
1900 Rexford Road, Charlotte, NC 28211-3481 and to ANC at: 8770 W. Bryn
Mawr Ave., Chicago, IL 60631, Attn: Sales Department, or to such other
address as either party may, from time to time, designate to the other
in writing.
11. Assignability. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto
including, without limitation, a purchaser, transferee or successor by
merger of substantially all of the business or assets of either Buyer or
ANC. Buyer hereby agrees to require the purchaser or transferee of all
or any portion of its can filling operations to assume that portion of
this requirements contract that relates to the portion of its operations
being sold or transferred.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
AMERICAN NATIONAL COCA-COLA BOTTLING
CAN COMPANY COMPANY CONSOLIDATED
By: (sig of James R. Turner) By: (sig of David V. Singer)
James R. Turner David V. Singer
Title: Title: Vice President and Chief
Senior Vice President, Sales Financial Officer
5
1,000
9-MOS
DEC-31-1995
OCT-01-1995
2,723
0
11,581
401
33,447
65,259
341,389
152,271
663,926
64,806
419,827
12,055
0
0
29,605
663,926
582,412
582,412
340,477
340,477
189,686
0
25,205
24,388
9,738
14,650
0
0
0
14,650
1.58
0
