Exhibit 10.17
WACHOVIA
Amended and Restated
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Guaranty Agreement
Wachovia Bank, N.A.
WHEREAS, the undersigned has requested WACHOVIA BANK, 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 review 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,* 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 hereinafter 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*** 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.
*under the terms of the Credit Agreement
**arising under the terms of the Credit Agreement
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 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 or if any final judgment
or judgments for money damages be entered against the Borrower in a court of
competent jurisdiction and remain unsatisfied for a period of sixty (60) days of
more, **** or if the Lender shall deem itself insecure with respect to the
Obligations and whether or not such event occurs at a time when any of such
Obligations are otherwise due and payable, the undersigned agrees to pay to the
Lender upon demand, the full amount which would be payable hereunder by the
undersigned if all such Obligations were then due and payable.
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 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 Obligation 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,
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 debt 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 note 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 deficient
judgments in any foreclosure or other action; (k) all other notices to which the
undersigned might otherwise be entitled; and (1) 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 or 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 Lender, its successors, endorses or assigns. The Lender may accept
any payment(s), plan for adjustment of debts, plan for reorganization or
liquidation, or plan 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 reinstated in the event any payment received by the
Lender on any Obligation is required to be repaid or rescinded under present or
future federal or state law or resolution 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 successor
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
assigned
*** determined without regard to any statutory presumption and based upon the
standard hourly rates of attorneys performing the work
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 of 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.
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; and notwithstanding any payments made by
or for the account of the undersigned pursuant to this guaranty, the undersigned
shall not be subrogated to any rights of the Lender until such time as this
guaranty shall have been discontinued as to all of the undersigned and the
Lender shall have received payment of the full amount of all of the Obligations
and all of the obligations of the undersigned hereunder.
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 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 000 X. Xxxx Xx., Xxxxx 00000, Xxxxxxx-Xxxxx, XX 00000, 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 **. Any such notice of terminated 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.
*determined as set forth hereinabove
**Credit Agreement or any other Loan Document (as defined
therein).
IN WITNESS WHEREOF, each of the undersigned has executed this guaranty under
seal, this __________________________, _________________________.
Witness: __________________________________ (Seal)
(Individual Guarantor)
/s/ Xxxxxxx X. Xxxxxx
------------------------------------- __________________________________ (Seal)
Xxxxxx X. Patient (Individual Guarantor)
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Attest: COCA-COLA BOTTLING CO. CONSOLIDATED
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/s/ Xxxxx X. X'Xxxxxxx (Name of Corporation or Partnership)
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Title Assistant Secretary
_____________________________________ By /s/ Xxxxxxxx X. Deal, III
[Corporate Seal] --------------------------------- (Seal)
Xxxxxxxx X. Deal, III
Title Vice President and Treasurer
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[Corporate Seal]
*** The term "Credit Agreement" as used herein means the Amended and Restated
Credit Agreement of even date herewith between the Bank and the Borrower.
