Guaranty Agreement
WHEREAS, the undersigned has requested WACHOVIA BANK OF NORTH CAROLINA, N.A.
(herein called "Bank") to extend credit or make certain financial
accommodations to SOUTH ATLANTIC CANNERS, INC., a South Carolina
corporation (herein called "Borrower") or to renew or extend, in whole
or in part, existing indebtedness or financial accommodations of the
Borrower to the Bank, and the Bank has extended credit or extended
or renewed existing indebtedness or made financial accommodations and/or
may in the future extend credit or extend or renew existing indebtedness
or make certain financial accommodations by reason of such request and in
reliance upon this guaranty:
NOW, THEREFORE, in consideration of such credit extended or renewed and/or
to be extended or renewed or such financial accommodations made or to be
made in its discretion by the Bank to the Borrower (whether to the same,
greater or lesser extent than any limit, if applicable, of this guaranty),
in consideration of $5.00 and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the undersigned
hereby unconditionally guarantees to the Bank and any of "Bank's Affiliates",
as herein defined (the Bank and the Bank's Affiliates being hereinafter
collectively and/or individually, as the context shall require, referred
to as "Lender"), and their successors, endorsees, transferees and
assigns, the punctual payment when due, whether by acceleration or otherwise,
and at all times thereafter of (a) all debts, liabilities and obligations
whatsoever of the Borrower to the Lender, now existing or hereafter coming
into existence, whether joint or several, whether created directly or acquired
by endorsement, assignment or otherwise, whether absolute or contingent,
secured or unsecured, due or not due, including but not being limited to notes,
checks, drafts, credits, advances and obligations to reimburse draws against
letters of credit; (b) accrued but unpaid interest on such debts, liabilities
and obligations, whether accruing before or after any maturity(ies) thereof;
and (c) reasonable attorneys' fees (not to exceed 15% of the then outstanding
principal and interest of the indebtedness, to the extent not prohibited
by law) if any such debts, liabilities or obligations of the Borrower are
collected, or the liability of the undersigned hereunder enforced, by or
through any attorney at law (all of (a), (b) and (c) being hereinafter referred
to as the "Obligations"). As used herein, "Bank's Affiliates" means any entity
or entities now or hereafter directly or indirectly controlled by Wachovia
Corporation or any successor thereto. References herein to Borrower shall
be deemed to include any successor corporations to Borrower, if Borrower
is a corporation, or any reconstituted partnerships of Borrower,
if Borrower is a partnership.
The undersigned consents that, at any time, and from time to time, either
with or without consideration, the whole or any part of any security
now or hereafter held for any Obligations may be substituted, exchanged,
compromised, impaired, released, or surrendered with or without consideration;
the time or place of payment of any Obligations or of any security thereof
may be changed or extended, in whole or in part, to a time certain or
otherwise, and may be renewed or accelerated, in whole or in part; the
Borrower may be granted indulgences generally; any of the provisions
of any note or other instrument evidencing any Obligations or any security
therefor may be modified or waived; any party liable for the payment thereof
(including but not being limited to any co-guarantor) may be granted
indulgences or released; neither the death, termination of existence,
bankruptcy, incapacity, lack of authority nor disability of the Borrower
or any one or more of the guarantors, including any of the undersigned, shall
affect the continuing obligation of any other guarantor, including any of the
undersigned, and that no claim need be asserted against the personal
representative, guardian, custodian, trustee or debtor in bankruptcy
or receiver of any deceased, incompetent, bankrupt or insolvent
guarantor; any deposit balance to the credit of the Borrower or any other
party liable for the payment of the Obligations or liable upon any security
therefor may be released, in whole or in part, at, before and/or after the
stated, extended or accelerated maturity of any Obligations; and the Lender
may release, discharge, compromise or enter into any accord and satisfaction
with respect to any collateral for the Obligations, or the liability of the
Borrower or any of the undersigned, or any liability of any other person
primarily or secondarily liable on any of the Obligations, all without
notice to or further assent by the undersigned, who shall remain bound
hereon, notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence, release, discharge or
accord and satisfaction.
Without limiting any of the foregoing, in the event of death, incompetency,
or dissolution of the Borrower, or should the Borrower become insolvent
(as defined by the North Carolina Uniform Commercial Code as in effect
at the time), or if a petition in bankruptcy be filed by or against the
Borrower, or if a receiver be appointed for any part of the property or assets
of the Borrower, of if any final judgment for money damages be entered against
the Borrower in a court of competent jurisdiction and remain unsatisfied for
a period of sixty (60) days or more in the amount of $250,000 or more.
The undersigned expressly waives: (a) notice of acceptance of this guaranty
and of all extensions or renewals of credit or other financial
accommodations to the Borrower; (b) presentment and demand for payment
of any of the Obligations; (c) protest and notice of dishonor or of
default to the undersigned or to any other party with respect to any
of the Obligations or with respect to any security therefor; (d) any
invalidity or disability in whole or in part at the time of the
acceptance of, or at any time with respect to, any security for the
Obligations or with respect to any party primarily or secondarily
liable for the payment of the Obligations to the Lender; (e) the fact
that any security for the Obligations may at any time or from time to time
be in default or be inaccurately estimated or may deteriorate in value
for any cause whatsoever; (f) any diligence in the creation or perfection
of a security interest or collection or protection of or realization upon
the Obligations or any security therefor, any liability hereunder, or any
party primarily or secondarily liable for the Obligations or any lack of
commercial reasonableness in dealing with any security for the Obligations;
(g) any duty or obligation on the part of the Lender to ascertain the extent
or nature of any security for the Obligations, or any insurance or other
rights respecting such security, or the liability of any party primarily
or secondarily liable for the Obligations, or to take any steps or action
to safeguard, protect, handle, obtain or convey information respecting,
or otherwise follow in any manner, any such security, insurance or other
rights; (h) any duty or obligation on the Lender to proceed to collect
the Obligations from, or to commence an action against, the Borrower,
any other guarantor, or any other person, or to resort to any security
or to any balance of any deposit account or credit on the books of the
Lender in favor of the Borrower or any other person, despite any notice
or request of the undersigned to do so; (i) any rights of the undersigned
pursuant to North Carolina General Statute Section 26-7 or any similar
or subsequent law; (j) to the extent not prohibited by law, the right
to assert any of the benefits under any statute providing appraisal
or other rights which may reduce or prohibit any deficiency judgments
in any foreclosure or other action; (k) all other notices to which
the undersigned might otherwise be entitled; and (l) demand for payment
under this guaranty.
This is a guaranty of payment and not of collection. The liability of the
undersigned on this guaranty shall be continuing, direct and immediate
and not conditional or contingent upon either the pursuit of any remedies
against the Borrower or any other person or foreclosure of any security
interests or liens available to the Lender, its successors, endorsees or
assigns. The Lender may accept any payment(s), plan for adjustment or debts,
plan for reorganization or liquidation, or plan of composition or
extension proposed by, or on behalf of, the Borrower or any other guarantor
without in any way affecting or discharging the liability of the undersigned
hereunder. If the Obligations are partially paid, the undersigned shall
remain liable for any balance of such Obligations. This guaranty shall be
revived and reinstated in the event that any payment received by Lender
on any Obligation is required to be repaid or rescinded under present or
future federal or state law or regulation relating to bankruptcy, insolvency
or other relief of debtors. The undersigned agrees to furnish promptly to the
Bank annual financial statements and such other current financial information
as the Bank may reasonably request from time to time.
The undersigned expressly represents and acknowledges that loans
and other financial accommodations by the Lender to the Borrower are
and will be to the direct interest and advantage of the undersigned.
The Lender may, without notice of any kind, sell, assign or transfer all or
any of the Obligations, and in such event each and every immediate and
successive assignee, transferee, or holder of all or any of the Obligations
shall have the right to enforce this guaranty, by suit or otherwise, for the
benefit of such assignee, transferee or holder, as fully as if such assignee,
transferee or holder were herein by name specifically given such rights,
powers and benefits, but the Lender shall have an
unimpaired right, prior and superior to that of any such assignee, transferee
or holder, to enforce this guaranty for the benefit of the Lender, as to
so much of the Obligations as it has not sold, assigned or transferred.
No delay or failure on the part of the Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
For the purpose of this guaranty, the Obligations shall include all debts,
liabilities and obligations of the Borrower to the Lender, notwithstanding any
right or power of the Borrower or anyone else to assert any claim or defense
as to the invalidity or unenforceability thereof, and no such claim or defense
shall impair or affect the obligations and liabilities of the undersigned
hereunder. Without limiting the generality of the foregoing, if the Borrower
is a corporation, partnership, joint venture, trust or other form of business
organization, this guaranty covers all Obligations purporting to be made in
behalf of such organization by any officer or agent of the same, without
regard to the actual authority of such officer or agent. The term
"corporation" shall include associations of all kinds and all purported
corporations, whether or not correctly and legally chartered and organized.
To the extent not prohibited by law, the undersigned hereby grants to the
Lender a security interest in and security title and hereby assigns, pledges,
transfers and conveys to Lender (i) all property of the undersigned of every
kind or description now or hereafter in the possession or control of the
Lender, exclusive of any such property in the possession or control of the
Lender as a fiduciary other than as agent, for any reason including, without
limitation, all cash, stock or other dividends and all proceeds thereof, and
all rights to subscribe for securities incident thereto and any substitutions
or replacements therefor and (ii) any balance or deposit accounts of the
undersigned, whether such accounts be general or special, or individual or
multiple party, and upon all drafts, notes, or other items deposited for
collection or presented for payment by the undersigned with the Lender,
exclusive of any such property in the possession or control of the Lender as
a fiduciary other than as agent, and the Lender may at any time, without
demand or notice, appropriate and apply any of such to the payment of any of
the Obligations, whether or not due, except for other indebtedness,
obligations and liabilities owing to Lender or any of Lender's Affiliates
that constitute open-end credit under, or are subject to, the requirements
of the Truth-in-Lending Act and Federal Reserve Board Regulation Z and any
applicable state consumer laws.
Any amount received by the Lender from whatever source and applied by it
toward the payment of the Obligations shall be applied in such order of
application as the Lender may from time to time elect.
This guaranty shall bind and inure to the benefit of the Lender, its
successors and assigns, and likewise shall bind and inure to the benefit
of the undersigned, their heirs, executors, administrators, successors and
assigns. If more than one person shall execute this guaranty or a similar,
contemporaneous guaranty, the term "undersigned," shall mean, as used herein,
all parties executing this guaranty and such similar guaranties and all such
parties shall be liable, jointly and severally, one with the other and with
the Borrower, for each of the undertakings, agreements, obligations, covenants
and liabilities provided for herein with respect to the undersigned. This
guaranty contains the entire agreement and there is no understanding that any
other person shall execute this or a similar guaranty. Furthermore, no course
of dealing between the parties, no usage of trade, and no parol or extrinsic
evidence shall be used to supplement or modify any terms of this guaranty;
nor are there any conditions to the complete effectiveness of this guaranty.
This guaranty shall be deemed accepted by Lender in the State of North
Carolina. The parties agree that this guaranty shall be deemed, made,
delivered, performed and accepted by Lender in the State of North Carolina
and shall be governed by the laws of the State of North Carolina. Wherever
possible each provision of this guaranty shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this guaranty shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this guaranty.
The undersigned (a) submits to personal jurisdiction in the State of North
Carolina, the courts thereof and any United States District Court sitting
therein, for the enforcement of this guaranty, (b) waives any and all personal
rights under the law of any jurisdiction to object on any basis (including,
without limitation, inconvenience of forum) to jurisdiction or venue within
the State of North Carolina for the purpose of litigation to enforce this
guaranty, and (c) agrees that service of process may be made upon the
undersigned by first class postage prepaid mail, addressed to the undersigned
at the latest address of the undersigned known to the Bank (or at such other
address as the undersigned may specify for the purpose by notice to the Bank).
Nothing herein contained, however, shall prevent the Lender from bringing
any action or exercising any rights against any security and against the
Borrower personally, and against any assets of the Borrower, within any other
state or jurisdiction.
This guaranty shall remain in full force and effect as to each of the
undersigned unless and until terminated as to one or more of the undersigned
by notice to that effect actually received by the Bank, by registered mail,
addressed to Bank at 301 N. Main St., Suite 32092, Winston-Salem, NC 27101,
but no such notice shall affect or impair the liabilities hereunder of such
of the undersigned who gives or on whose behalf is given any such notice for the
Obligations existing at the date of receipt by the Bank of such notice, any
renewals, modifications, or extensions thereof (whether made before or after
such notice is received), any interest thereon, or any costs or expenses,
including without limitation, reasonable attorneys fees incurred in the
collection thereof or any future advances made by Lender to Borrower as
required or permitted pursuant to the terms of the instruments, documents
or agreements evidencing or providing for the Obligations. Any such notice
of termination by or on behalf of any of the undersigned shall affect only
that person and shall not affect or impair the liabilities and obligations
hereunder of any other person.
The terms and provisions of any addendum attached hereto are incorporated
herein by reference and made a part hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this guaranty
under seal, this 22nd day of July, 1994
Witness: ________________________________(Seal)
(Individual Guarantor)
_________________________________ ________________________________(Seal)
(Individual Guarantor)
_________________________________
COCA-COLA BOTTLING CO. CONSOLIDATED
Attest: --------------------------------------
(Signature of Patricia A. Gill By (Signature of Brenda B. Jackson
appears here) appears here)
- - --------------------------------- ---------------------------------(Seal)
Title Assistant Secretary Title Vice President and Treasurer
--------------------------- ---------------------------------
[Corporate Seal]
- - ----------------------------------------------------------WACHOVIA---------
Addendum to Guaranty Agreement
This document, upon its acceptance below by WACHOVIA BANK OF NORTH CAROLINA,
N.A. (hereinafter referred to as the "Bank"), shall constitute an addendum to
the Guaranty Agreement, dated July 22, 1994 (herein referred to as the
"Guaranty Agreement") from COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware
corporation (herein referred to as the "Guarantor(s)") which provides for the
guaranty by Guarantor(s) of the Obligations of SOUTH ATLANTIC CANNERS, INC., a
South Carolina/corporation (herein referred to as "Borrower") to Lender, and
shall be incorporated in the Guaranty Agreement by reference and made a part
thereof. All capitalized terms used in this Addendum which are defined in the
Guaranty Agreement shall have the meanings given such terms in the Guaranty
Agreement. Only those sections below which have been checked and completed are
included in the Addendum.
( ) Notwithstanding any contrary provision of the Guaranty Agreement,
the liability of the Guarantor(s) under the Guaranty Agreement for the
Obligations of the Borrower shall not exceed at any one time an aggregate of
$__________________________; provided, however, that this limitation shall
not apply (a) to that portion of the Obligations of the Borrower which consists
of accrued but unpaid interest and attorneys' fees incurred in the collection
of the Obligations or the enforcement of liability of the Guarantor(s) under
the Guaranty Agreement and (b) to the liabilities of the Guarantor(s) under any
other guaranties executed by the Guarantor(s) for the benefit of the Lender,
the guaranty of the Guarantor(s) under the Guaranty Agreement being cumulative
with all such other guaranties.
(X) Notwithstanding any contrary provision of the Guaranty Agreement, the
liability of the Guarantor(s) under the Guaranty Agreement for the Obligations
of the Borrower shall be limited to the principal and interest of that certain
promissory note dated July 22, 1994, payable to the Bank, in the original
principal amount of $15,000,000.00, and any modifications, renewals or
extensions thereof, plus (a) reasonable attorneys' fees if such note is
collected, or the liability of the Guarantor(s) under the Guaranty Agreement
is enforced, by or through any attorney-at-law and (b) the Obligations of the
Borrower under any collateral documents securing such promissory note.
( ) To secure the liabilities of the Guarantor(s) to the Lender under the
Guaranty Agreement, together with any other indebtedness, liabilities and
obligations of Guarantor(s), or any of them, to the Lender, now existing
or hereafter incurred or arising, except for other indebtedness, obligations
and liabilities owing to Lender or any of Lender's Affiliates that constitute
open-end credit under, or are subject to, the disclosure requirements of the
Truth-in-Lending Act and the Federal Reserve Board Regulation Z or any
applicable state consumer protection laws, the Guarantor(s) each hereby
grant to the Lender a security interest in and security title to, and
does hereby assign, pledge, transfer and convey to Lender a continuing
general primary lien upon, the following described property in addition to
that granted in the Guaranty;
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Each Guarantor agrees that the security interest and security title granted
hereby shall remain in full force and effect and shall not be released until
all Obligations of the Borrower and all indebtedness, liabilities and
obligations of the Guarantor(s) secured hereby have been indefeasibly paid
in full and such payments are no longer subject to rescission, recovery or
repayment upon the bankruptcy, insolvency, reorganization, moratorium,
receivership or similar proceeding affecting the Borrower, the Guarantor(s)
or any other person.
Witness: ________________________________(Seal)
(Individual Guarantor)
_________________________________ ________________________________(Seal)
(Individual Guarantor)
_________________________________
Attest: COCA-COLA BOTTLING CO. CONSOLIDATED
--------------------------------------
(Name of Corporation or Partnership)
(Signature of Patricia A. Gill By (Signature of Brenda B. Jackson
appears here) appears here)
- - --------------------------------- --------------------------------(Seal)
Title Assistant Secretary Title Vice President and Treasurer
--------------------------- --------------------------------
[Corporate Seal] Accepted
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By (Signature of Kenneth R. Smith, Jr.
appears here)
--------------------------------------
Title Senior Vice President
--------------------------------