EXECUTION COPY
GUARANTY
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THIS GUARANTY, dated as of September 29, 2000, is made by
COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation ("Guarantor"), in
favor of COCA-COLA ENTERPRISES INC., a Delaware corporation ("Enterprises").
W I T N E S S E T H:
WHEREAS, as of this date Enterprises has purchased from The
Coca-Cola Bottling Company of West Virginia, Inc. ("CCBCWV"), Coca-Cola Bottling
Company of Roanoke, Inc. ("CCBCR"), WVBC, Inc. ("WVBC"), and ROBC, Inc. ("ROBC")
(CCBCWV, CCBCR, WVBC, and ROBC are sometimes hereinafter individually referred
to as a "Seller" and collectively referred to as the "Sellers") certain assets
relating to the Sellers' businesses of distributing carbonated and
non-carbonated soft drinks and packaged water within portions of the States of
Ohio and Kentucky pursuant to that certain Asset Acquisition Agreement by and
among CCBCWV, CCBCR and Enterprises and that certain Franchise Acquisition
Agreement by and among WVBC, ROBC and Enterprises (the "Agreements");
WHEREAS, Guarantor directly or indirectly owns 100% of the
outstanding equity interests of each Seller and will derive direct and indirect
economic benefits from the transactions contemplated by the Agreements (the
"Transactions"); and
WHEREAS, in connection with the Transactions and as a
condition precedent thereto, Enterprises is requiring that Guarantor shall have
executed and delivered this Guaranty;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce Enterprises to enter into the
Agreements, it is agreed as follows:
ARTICLE I
GUARANTY
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1.01 Guaranty of Obligations of Sellers. Guarantor hereby
irrevocably and unconditionally guarantees the due and punctual performance by
each Seller of all of its covenants and obligations under the Agreements (the
"Obligations") including without limitation the due and punctual payment of any
Claims payable by the Sellers to Buyer's Protected Parties under the indemnity
provisions of each Agreement. Guarantor hereby waives every kind of notice
(including without limitation any notice required by N.C.G.S. ss. 26-7(a)),
technical requirement, possible irregularity and formality that might otherwise
be required or used or raised to release or diminish this Guaranty in any way or
to hinder Enterprises' collection in full from Guarantor -- including, but not
limited to, lack of enforceability of any obligation against any Seller,
acceptance and notice of acceptance of this Guaranty, demand, presentment,
protest and notice of protest and notice of nonpayment by any Seller. Guarantor
hereby consents to any and
all extensions, renewals, modifications and releases of any obligations of any
Seller. No delay, failure, neglect, act or omission on Enterprises' part in
enforcing or not enforcing payment of any obligation of any Seller under the
Agreements, or any other rights against any Seller, shall diminish the liability
of Guarantor under this Guaranty. Enterprises shall not be obligated to marshal
assets, or to exhaust its recourse against any Seller, before being entitled to
payment in full from Guarantor under this Guaranty. Without limiting the
foregoing, Guarantor hereby waives any and all rights it may have pursuant to
Sections 26-7 through 26-9 of the North Carolina General Statutes.
1.02 Continuing Guaranty.
(a) Guarantor agrees that this Guaranty is a continuing
guaranty and shall remain in full force and effect until the payment and
performance in full of the Obligations.
(b) This Guaranty shall remain in full force and effect and
continue to be effective in the event any petition be filed by or against any
Seller or the Guarantor for liquidation or reorganization, in the event any
Seller or the Guarantor becomes insolvent or makes an assignment for the benefit
of creditors or in the event a receiver or trustee be appointed for all or any
significant part of Guarantor's or any Seller's assets, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by Enterprises, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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To induce Enterprises to enter into the Agreements, Guarantor
makes the following representations and warranties to Enterprises, each and all
of which shall survive the execution and delivery of this Guaranty:
2.01 Organization and Authorization.
(a) Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b)
(c) The execution, delivery and performance by Guarantor of this Guaranty are
within Guarantor's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) Guarantor's certificate of
incorporation or by-laws, or (ii) any
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law, rule, regulation or contractual restriction in any material contract or any
other contract binding on or affecting Guarantor.
(d)
(e) No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery and performance by Guarantor of this Guaranty.
(f)
(g) This Guaranty is a legal, valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms.
(h)
ARTICLE III
MISCELLANEOUS
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3.01 Good Faith; Further Assurances; Further Cooperation.
Guarantor shall in good faith undertake to perform its obligations under this
Guaranty, to satisfy all conditions and to cause the transactions contemplated
by this Guaranty to be carried out promptly in accordance with the terms of this
Guaranty. Upon the execution of this Guaranty and thereafter, Guarantor shall do
such things as may be reasonably requested by Enterprises in order more
effectively to consummate or document the transactions contemplated by this
Guaranty.
3.02 Assignment. This Guaranty shall bind the Guarantor and
shall inure to the benefit of Enterprises and its successors and permitted
assigns. The Guarantor may not assign this Guaranty.
3.03 Captions; Definitions. The titles or captions of
articles, sections and subsections contained in this Guaranty are inserted only
as a matter of convenience and for reference and in no way define, limit, extend
or describe the scope of this Guaranty or the intent of any provision hereof and
shall not be considered in the interpretation or construction of this Guaranty
in any proceeding. Capitalized terms used in this Guaranty have the meanings
assigned to them in the Agreements unless otherwise defined herein.
3.04 Controlling Law; Amendment; Waiver. This Guaranty shall
be construed in accordance with and governed by the Laws of the State of North
Carolina, without giving effect to the principles of conflicts of law thereof.
This Guaranty may not be altered or amended except in writing signed by
Enterprises and Guarantor. The failure of Enterprises at any time to require
performance of any provisions hereof shall in no manner affect the right to
enforce the same. No waiver by Enterprises of any condition, or of the breach of
any term, provision, warranty, representation, agreement or covenant contained
in this Guaranty, whether by conduct or otherwise, in any one or more instances
shall be deemed or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or of the breach of any
other term, provision, warranty, representation, agreement or covenant herein
contained.
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3.05 No Third-Party Beneficiaries. With the exception of
Enterprises and Guarantor and each of their legal representatives, heirs,
successors and permitted assigns, there shall exist no right of any person to
claim a beneficial interest in this Guaranty or any rights arising by virtue of
this Guaranty.
3.06 Entire Agreement. This Guaranty together with the
Agreements and all other agreements and undertakings provided for hereunder or
thereunder shall constitute the entire agreement of Enterprises and Guarantor
and supersedes any and all prior agreements, oral or written, with respect to
the subject matter contained herein. There are no other agreements,
representations, warranties or other understandings between Enterprises and
Guarantor in connection with the Transactions and this Guaranty which are not
set forth in this Guaranty.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date first above written.
COCA-COLA BOTTLING CO. CONSOLIDATED
By:________________________________
Name:______________________________
Title:______________________________
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