exv10w5






Exhibit 10.5




	 	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	P.O. Box 1734

	 

	 	December 10, 2001
	 	Atlanta, GA 30301

	 

	 	 	 	 	 	404.676.2121






Coca-Cola Bottling Co. Consolidated

4100 Coca-Cola Plaza

Charlotte, NC 28211-3481





	 	Attn:  	 	William B. Elmore, Jr.

President and Chief Operating Officer





Gentlemen:




     This letter is submitted by The Coca-Cola Company (the “Company”) in response to the specific
request of Coca-Cola Bottling Co. Consolidated and its directly and indirectly controlled
subsidiaries and affiliates that are engaged in the production or sale of beverages pursuant to
Contracts (as defined below) with the Company (collectively, “Consolidated”), in connection with
the execution by Consolidated of the Marketing and Distribution Agreements for Dasani® covering the
licensed bottling territories of Consolidated (the “Dasani MDAs”).



     The Company and Consolidated acknowledge that the Dasani MDAs are considered “Contracts” as
defined in that certain letter agreement dated December 14, 1994 between the Company and
Consolidated, a copy of which is attached hereto. Accordingly, the Company hereby confirms,
consistent with paragraph 3 of such letter agreement, that as applied solely to Coca-Cola Bottling
Co. Consolidated, the Company hereby waives the right under Paragraph 26 of the Dasani MDAs that
would otherwise exist upon the occurrence of the event of default defined in subparagraph 26(a)(ii)
or (iii) of the Dasani MDAs. The foregoing waiver will terminate immediately should Coca-Cola
Bottling Co. Consolidated cease to be a public company. As stated in such paragraph 3, except as
expressly set forth therein as applied solely to Coca-Cola Bottling Co. Consolidated, the Company
expressly reserves and does not waive any other rights of the Company under the Dasani MDAs or any
of the other Contracts or any other contract or agreement.



     Please indicate your agreement with the foregoing by executing two copies of this letter
agreement and returning them to us.



	 	 	 	 	 
	 	
The Coca-Cola Company,

Coca-Cola North America Division

 	 
	 	By:  	/s/ Paul W. Wood
 	 
	 	 	Title: VP Bottler Business Development 	 
	 	 	 	 



 









 






	 	 	 	 	 



December 10, 2001

Page 2




Accepted and agreed to:





	 	 	Coca-Cola Bottling Co. Consolidated, on behalf of itself


and its subsidiaries and affiliates described above






	 	 	 	 	 
	 	By:  	/s/ Umesh M. Kasbekar
 	 
	 	 	Title:  Vice President 	 
	 	 	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 

	 

	 	 	 	CONFIDENTIAL
	 
	 	 	 	 
	JOHN J. CULHANE
	 	 	 	 
	GENERAL COUNSEL

	 	 	 	ADDRESS REPLY TO
	COCA-COLA USA

	 	 	 	ATLANTA, GA 3O3OI
	LEGAL DIVISION

	 	December 14, 1994
	 	—
	 

	 	 	 	404-818-5888
	 

	 	 	 	FAX: 404-515-4128






Coca-Cola Battling Co. Consolidated

Tallan Building, Suite 901

Chattanooga, Tennessee 37402




     Attention: Reid M. Henson



Gentlemen:




     This letter is submitted by The Coca-Cola Company (the “Company”) in response to the specific
request of Coca-Cola Bottling Co. Consolidated (“Consolidated”)1 in
recognition of the special circumstances affecting Consolidated, including certain issues raised by
Consolidated’s status as a publicly traded company. In consideration of the execution by
Consolidated, now and in the future, of the new Marketing and Distribution Agreement such as the
one offered in October, 1994 for “POWERADE” (the “Contracts”), and in recognition of the fact that
Consolidated is and will be in the future executing the Contracts in reliance upon this agreement,
the Company agrees that:





 




			
	1 	 	Except with respect to paragraph 3 below,
for purposes of this Agreement, the term “Consolidated” shall include Coca-Cola
Bottling Co, Consolidated and its directly and indirectly controlled
subsidiaries existing at any time during the term of this Agreement which are
engaged in the production or sale of beverages pursuant to Contracts with the
Company.




 









 










Coca-Cola Bottling Co Consolidated

December 14, 1994

Page 2




1. The Company acknowledges that the exercise of its rights under the Contracts will require
consideration, as appropriate to each particular situation, of such criteria as: (i) the
performance of Consolidated as distributors relative to that of other comparable distributors who
are parties to similar contracts; (ii) the nature of the competition and the identity of and
resources of the major competitors within the respective Territories of Consolidated, as well as
the competitive activity in those Territories; (iii) the price trends of the Beverages sold by the
Company to consolidated relative to other competitive factors and market conditions in the
Territories, including Consolidated’s prices to retailers for Beverages; (iv) such other criteria
as shall in the reasonable opinion of the Company be relevant and material to the exercise by the
Company of its rights under the contracts; provided, however, that it is understood that while
these criteria are to be considered, the Company’s exercise of its rights under the Contracts shall
not be limited or mandated by any one or more of such criteria, and that the Company is free to
exercise its rights in accordance with its reasonable business judgment in view of all relevant
factors, including the Company’s situation.




2. The Company agrees that in the event the Company enters into a written amendment to similar
contracts between the Company and any other distributor of Beverages in a territory in the United
States which amendment is of a material, substantive term or condition of those similar contracts
(other than an agreement relating to the transfer of ownership of a particular distributor such as
that of Paragraph 3 below) which term or condition as amended could have application to
Consolidated, the Company will offer such amendment in its entirety to Consolidated on the same
terms and conditions as exist in the written amendment between the Company and such other
distributor. The parties agree that no such written amendment shall be deemed to exist by virtue of
any action, inaction or course of dealing undertaken by the company with respect to marketing,
planning, quality control or other matters which are contemplated by the terms and conditions of
those similar contracts.




3. As applied solely to Coca-Cola Bottling Co. Consolidated, the Company hereby waives the right
under Paragraph 25 of the contracts between Coca-Cola Bottling Co. Consolidated and the company
that would otherwise exist upon the occurrence of the event of default defined in subparagraph
25(a)(ii) or (iii) of such Contracts. The foregoing waiver shall terminate immediately should
Coca-Cola Bottling Co. Consolidated cease to be a public company.
Except as expressly set forth in this paragraph 3 as applied solely to Coca-Cola Bottling Co.
Consolidated, the Company expressly reserves and does not waive any other rights of the company
under the Contracts or any other contract or agreement.




4. The company agrees that a default by Consolidated under the terms of the Contracts will not, in
and of itself, create a default under the terms of the Master Bottle Contracts, Allied Bottle
Contracts or other contracts between the Company and Consolidated, and that such default, in and of
itself, will not give the Company the right to terminate such other contracts.




 









 








Coca-Cola Bottling Co Consolidated

December 14, 1994

Page 3




5. The provisions in the Contracts to the effect that the Contracts encompass all agreements
between the parties and supersede all prior agreements shall not have any effect on the validity
and continuance of the provisions of this Agreement, which shall have the same term as the
contracts. The parties agree that the Contracts and this Agreement constitute the entire agreement
between Coca-Cola Bottling Co. Consolidated and the Company. All prior agreements, arrangements,
communications or understandings, whether oral or written, with respect to the Contracts or this
Agreement between the parties and their legal predecessors, if any, are canceled
hereby. The parties further agree that no such prior agreements, drafts, arrangements,
correspondence, communications or understandings, whether oral or written, shall be used in any
legal proceeding that may arise with respect to the application, construction or interpretation of
the contracts or this Agreement.




6. As used herein, “similar contracts” shall mean contracts which contain” substantially the same
terns and are in substantially the same form as the Contracts.




7. This Agreement shall be binding upon the successors, if any, of the Company or Consolidated.




8. Company and Consolidated agree that the contents of this Agreement are confidential and that
neither party may discuss or disclose any of the provisions herein without the express written
permission of the other party.




Please indicate your agreement with the foregoing by executing two copies of this Agreement.




	 	 	 	 	 
	 	Very truly yours,



COCA-COLA COMPANY

 	 
	 	By:  	/s/ John J. Culhane
 	 
	 	 	Title: General Counsel 	 
	 	 	 	 



ACCEPTED AND AGREED TO:




COCA-COLA BOTTLING Co. CONSOLIDATED,


on behalf of itself and its directly and indirectly controlled
subs.




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Reid M. Henson
 	 
	 	 	Title: Vice Chairman