Exhibit 10.37.2
EXECUTION VERSION
AMENDMENT NO. 1
AMENDMENT NO. 1 (this “Amendment No. 1”) dated as of October 17, 2008 among COCA-COLA ENTERPRISES INC (the “Company”), COCA-COLA ENTERPRISES (CANADA) BOTTLING FINANCE COMPANY (“Finco”), COCA-COLA BOTTLING COMPANY (“CCBC”), BOTTLING HOLDINGS (LUXEMBOURG) COMMANDITE S.C.A (“BHL”, and together with the Company, Finco and CCBC, the “Borrowers”), the Lenders executing this Amendment No. 1 on the signature pages hereto and Citibank, N.A., in its capacity as administrative agent (the “Administrative Agent”) under the Credit Agreement referred to below.
WHEREAS, the Borrowers, the Lenders party thereto and the Administrative Agent are parties to a Five Year Credit Agreement dated as of August 3, 2007 (as amended and supplemented and in effect immediately prior to the date hereof, the “Credit Agreement”), providing, subject to the terms and conditions thereof, for revolving credit loans to the Borrowers.
NOW, THEREFORE, the parties hereto wish now to amend the Credit Agreement in certain respects, and, accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment No. 1, terms defined in the Credit Agreement are used herein as defined herein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent specified in Section 4 below, but effective as of the date hereof, the Credit Agreement shall be amended as follows:
2.01 References Generally. References in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and hereby”) shall be deemed to be references to the Credit Agreement as amended hereby.
2.02 Leverage Ratio. Section 5.02(b) of the Credit Agreement is hereby amended by amending Section 5.02(b) contained therein to read in its entirety as follows:
“(b) Leverage Ratio. Permit Consolidated Indebtedness less Cash to be more than 75% of Total Capital. For purposes of this Section 5.02(b), the term “Cash” means cash and cash equivalents and interest bearing assets with maturities of one year or less; and the term “Total Capital” means the sum of Shareholders’ Equity, Deferred Income Taxes and Consolidated Debt, less Cash, plus the Impairment Charge. The term “Impairment Charge” means the $5.3 billion non-cash impairment charge taken by the Company during the second calendar quarter of 2008 to reduce the carrying amount of its
North American franchise license intangible assets and goodwill to their estimated fair value. The terms Shareholders’ Equity, Deferred Income Taxes and Consolidated Debt shall be as they appear on the Company’s published Consolidated financial statements and calculated under the GAAP applied by the Company on the date hereof in the preparation of its Consolidated financial statements.”
Section 3. Representatives and Warranties. Each Borrower represents and warrants to the Lenders and the Administrative Agent, as to itself and each of its subsidiaries that (a) the representations and warranties set forth in Article IV of the Credit Agreement (except the representations and warranties set forth in the last sentence of Section 4.01(e) and in clause (i) of Section 4.01(f) are true and correct in all material respects on the date hereof as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct in all material respects as of such specific date) and as if each reference in said Article IV to “this Agreement” included reference to this Amendment No. 1 and (b) no Default or Event of Default has occurred and is continuing.
Section 4. Conditions Precedent. The amendments set forth in Section 2 hereof shall become effective, as of the date hereof, upon satisfaction of the following conditions:
4.01 Execution. The Administrative Agent shall have received counterparts of this Amendment No. 1 executed by the Borrowers and the Lenders party to the Credit Agreement constituting the Required Lenders.
4.02 Fees and Expenses. The Borrowers shall have paid in full the costs, expenses and fees as set forth in Section 9.04(a) of the Credit Agreement.
Section 5. Miscellaneous. Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect. This Amendment No. 1 may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument and any of the parties hereto may execute this Amendment No. 1 by signing any such counterpart. Delivery of a counterpart by electronic transmission shall be effective as delivery of a manually executed counterpart hereof. This Amendment No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed by their respective authorized officers as of the day and year first above written.
|
COCA-COLA ENTERPRISES, INC. |
|
COCA-COLA ENTERPRISES (CANADA) | ||
|
|
|
BOTTLING FINANCE COMPANY | ||
|
|
|
|
| |
|
|
|
|
| |
|
By: |
/s/ Joyce King-Lavinder |
|
By: |
/s/ Joyce King-Lavinder |
|
|
Name: Joyce King-Lavinder |
|
|
Name: Joyce King-Lavinder |
|
|
Title: Vice President and Treasurer |
|
|
Title: Vice President and Treasurer |
|
|
|
|
|
|
|
COCA-COLA BOTTLING COMPANY |
|
BOTTLING HOLDINGS (LUXEMBOURG) | ||
|
|
|
COMMANDITE S.C.A. | ||
|
|
|
| ||
|
|
|
|
|
|
|
By: |
/s/ Joyce King-Lavinder |
|
By: |
/s/ Joyce King-Lavinder |
|
|
Name: Joyce King-Lavinder |
|
|
Name: Joyce King-Lavinder |
|
|
Title: Vice President and Treasurer |
|
|
Title: Vice President and Treasurer |
|
|
|
|
|
|
|
CITIBANK, N.A., |
|
Citibank, N.A., Canadian branch | ||
|
as Administrative Agent |
|
| ||
|
|
|
| ||
|
|
|
|
|
|
|
By: |
/s/ Andrew Sidford |
|
By: |
/s/ Niyousha Zarinpour |
|
|
Name: Andrew Sidford |
|
|
Name: Niyousha Zarinpour |
|
|
Title: Vice President |
|
|
Title: Authorized Signer |
|
|
|
|
|
|
|
CITIBANK, N.A., |
|
|
| |
|
Name of Lender |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Andrew Sidford |
|
|
|
|
|
Name: Andrew Sidford |
|
|
|
|
|
Title: Vice President |
|
|
|
|
DEUTSCHE BANK AG NEW YORK BRANCH as Lender |
|
DEUTSCHE BANK AG CANADA BRANCH | ||
|
|
|
as Canadian Prime Rate Lender | ||
|
|
|
| ||
|
|
|
|
|
|
|
By: |
/s/ Heidi Sandquist |
|
By: |
/s/ Robert Johnson |
|
|
Name: Heidi Sandquist |
|
|
Name: Robert Johnson |
|
|
Title: Vice President |
|
|
Title: Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Ming K. Chu |
|
By: |
/s/ Marcellus Leung |
|
|
Name: Ming K. Chu |
|
|
Name: Marcellus Leung |
|
|
Title: Vice President |
|
|
Title: Assistant Vice President |
|
|
|
|
|
|
|
BANK OF AMERICA, N.A. |
|
BNP Paribas | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ William F. Sweeney |
|
By: |
/s/ Fikret Durmus |
|
|
Name: William F. Sweeney |
|
|
Name: Fikret Durmus |
|
|
Title: Senior Vice President |
|
|
Title: Vice President |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Nader Tannous |
|
|
|
|
|
Name: Nader Tannous |
|
|
|
|
|
Title: Vice President |
|
|
|
|
|
|
|
BNP Paribas (Canada) |
|
JP MORGAN CHASE BANK, N.A. | ||
|
Name of Lender |
|
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Andrew Schlater |
|
By: |
/s/ Tony Yung |
|
|
Name: Andrew Sclater |
|
|
Name: Tony Yung |
|
|
Title: Vice President |
|
|
Title: Vice President |
|
|
|
|
|
|
|
By: |
/s/ Don R. Lee |
|
|
|
|
|
Name: Don R. Lee |
|
|
|
|
|
Title: Managing Director |
|
|
|
|
Credit Suisse, Cayman Islands Branch |
|
HSBC Bank USA, N.A. | ||
|
|
|
| ||
|
|
|
| ||
|
By: |
/s/ Karl Studer |
|
By: |
/s/ Bradley A. Olsen |
|
|
Name: Karl Studer |
|
|
Name: Bradley A. Olsen |
|
|
Title: Director |
|
|
Title: Assistant Vice President |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Jay Chall |
|
|
|
|
|
Name: Jay Chall |
|
|
|
|
|
Title: Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wachovia Bank, National Association |
|
ABN AMRO Bank N.V. | ||
|
Name of Lender |
|
|
| |
|
|
|
|
| |
|
|
|
|
|
|
|
By: |
/s/ Dennis Waltrich |
|
By: |
/s/ Michele Costello |
|
|
Name: Dennis Waltrich |
|
|
Name: Michele Costello |
|
|
Title: Vice President |
|
|
Title: Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Nick Zorin |
|
|
|
|
|
Name: Nick Zorin |
|
|
|
|
|
Title: Assistant Vice President |
|
|
|
|
|
|
|
Suntrust Bank |
|
WELLS FARGO BANK, N.A. | ||
|
Name of Lender |
|
| ||
|
|
|
| ||
|
|
|
|
|
|
|
By: |
/s/ Robert Maddox |
|
By: |
/s/ David Corts |
|
|
Name: Robert Maddox |
|
|
Name: David Corts |
|
|
Title: Director |
|
|
Title: Vice President |
|
|
|
|
|
|
|
Fifth Third Bank |
|
PNC BANK, N.A. | ||
|
Name of Lender |
|
| ||
|
|
|
| ||
|
|
|
|
|
|
|
By: |
/s/ Christopher C. Motley |
|
By: |
/s/ David B. Gookin |
|
|
Name: Christopher C. Motley |
|
|
Name: David B. Gookin |
|
|
Title: Vice President |
|
|
Title: Senior Vice President |
|
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank Nederalnd”, New York Branch |
|
TORONTO DOMINION (TEXAS) LLC | ||
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Kimberly English |
|
By: |
/s/ Debbie L. Bri |
|
|
Name: Kimberly English |
|
|
Name: Debbie L. Bri (illegible) |
|
|
Title: Executive Director |
|
|
Title: Authorized (illegible) |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Brett Delfino |
|
|
|
|
|
Name: Brett Delfino |
|
|
|
|
|
Title: Executive Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Bank N.A. |
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Michael P. Dickman |
|
|
|
|
|
Name: Michael P. Dickman |
|
|
|
|
|
Title: Vice President |
|
|
|