Collateral Repurchase Agreement - Robert L. McCoy, Gulf Florida Doughnut Corp d/b/a Krispy Kreme Doughnut Co., Krispy Kreme Doughnut Corp. and Branch Banking and Trust Co.
COLLATERAL REPURCHASE AGREEMENT
THIS COLLATERAL REPURCHASE AGREEMENT, made as of the 22nd day of
October, 1996, by and among ROBERT L. McCOY, a resident of Tampa, Florida; Gulf
Florida Doughnut Corp d/b/a Krispy Kreme Doughnut Co. (collectively, the
"Borrower"); KRISPY KREME DOUGHNUT CORPORATION, a North Carolina corporation
(the "Company"); and BRANCH BANKING AND TRUST COMPANY, a national banking
institution ("BB&T").
R E C I T A L S :
A. BB&T has on this date extended credit to the Borrower in the
aggregate principal sum of One Hundred Eighty Thousand and no/100 Dollars
($180,000.00) (the "Indebtedness"), evidenced by a Promissory Note of even date
herewith executed and delivered by the Borrower to BB&T.
B. The Indebtedness is secured, in part, by a pledge by Robert L. McCoy
("Pledgor") of all of the common voting stock of the Company owned by Pledgor
(the "Pledged Stock"), pursuant to a pledge agreement of even date herewith
executed by and between Pledgor and BB&T (the "Pledge Agreement," and all other
documents, instruments and agreements executed to evidence, create or secure the
Indebtedness are herein called the "Loan Documents").
C. The Pledged Stock is subject to a stock purchase agreement (the
"Stock Purchase Agreement"), dated July 1, 1984 executed by and among the
Company and its shareholders (as it may be amended), which Stock Purchase
Agreement has been consented and agreed to by Pledgor.
D. In order to induce BB&T to make the loans giving rise to the
Indebtedness, the Company has agreed to purchase all or part of the Pledged
Stock in the event of a default under the Note or any of the Loan Documents in
accordance with the terms of this Agreement.
E. BB&T has required the execution and delivery of this Agreement by
the parties hereto as a condition to making the loans comprising the
Indebtedness.
NOW, THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Election by BB&T to Cause the Company to Purchase the Pledged Stock.
Upon a default under the Note or any of the Loan Documents (hereinafter referred
to as a "Default"), BB&T may give notice to the Company and the Borrower,
requiring the Company to purchase, and the Pledgor to sell, the Pledged Stock in
the following manner and upon the following terms. The notice shall specify
whether the purchase is to be made (a) from the Pledgor prior to the
commencement of proceedings by BB&T to exercise its rights and remedies
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as a secured party against the Pledged Stock, or (b) at a private sale ("Private
Sale") conducted pursuant to the terms of the Pledged Agreement and applicable
law. For purposes of determining the time as of which such purchase price is to
be determined, the Pledgor and BB&T agree that such notice shall constitute
written notice of a proposed transfer, disposition or sale of its Pledged Stock
under paragraph 2(a) of the Stock Purchase Agreement. At the Closing (as defined
in paragraph 3 hereof), the Company shall pay to BB&T and not to the Borrower or
Pledgor, in United States dollars and in immediately available funds, a purchase
price determined in accordance with the Stock Purchase Agreement. If the
purchase price of the Pledged Stock is greater than the then outstanding
Indebtedness (including accrued but unpaid interest and all other sums owed by
Borrower to BB&T pursuant to the terms of the Note and the Loan Documents), then
the Company shall be required to purchase hereunder only so much of the Pledged
Stock as is necessary to pay in full the Indebtedness. In consideration of the
purchase price received by BB&T, the Pledgor shall transfer title to the Pledged
Stock (or so much there for as shall be purchased) to the Company or in the
event the sale is at a Private Sale, BB&T shall deliver to Company the
certificates evidencing the Pledged Stock (or so much thereof as shall be
purchased) together with stock powers executed in blank by the Pledgor. In
either case, BB&T shall release its security interest in the Pledged Stock
purchased by the Company upon receipt of the purchase price. The Borrower and
the Company hereby acknowledge that the Pledged Stock is subject to the terms
and provisions of the Stock Purchase. Agreement which provides, in part, an
option to purchase the Pledged Stock in favor of the Company and each of its
shareholders in the event Pledgor desires to transfer, sell or dispose of all or
any portion of the Pledged Stock. Accordingly, and given the difficulty of
obtaining a reasonable price for the Pledged Stock at a public sale or auction
and the difficulty of selling the Pledged Stock at a public sale or auction in
compliance with the Stock Purchase Agreement and applicable federal and state
securities laws, the Company, the Pledgor and the Borrower specifically agree
that a Private Sale at which the Company shall purchase any or all of the
Pledged Stock pursuant to the terms of this Agreement shall have been conducted
in a commercially reasonable manner, and, to the extent permitted by applicable
law, the Company, the Pledgor and the Borrower hereby waive any claim or defense
to any such sale arising under Section 9504(3) of the Uniform Commercial Code as
in effect in the applicable jurisdiction.
2. Other Purchasers. In the event of a default under any of the Loan
Documents, BB&T agrees not to purchase all or any part of the Pledged Stock or
allow any other person (other than the Company) to do so, without the prior
written consent of the Company, unless the Company shall, within thirty (30)
days after BB&T's request for performance hereunder, fail, refuse or be unable
to perform its obligations hereunder.
3. The Closing. If purchase of the Pledged Stock is to be made from the
Pledgor, or the Borrower, as the case may be, the Closing shall take place at a
time and place selected by BB&T within fifteen (15) days after the date of
BB&T's notice to the Company and the Borrower requiring that the Company
purchase the Pledged Stock. If purchase of the Pledged Stock is to take place
pursuant to a Private Sale, Closing shall take place at a time and in the manner
as provided for by applicable law or in the Pledge Agreement, as the case may
be, or as may be provided for in any notice given by BB&T pursuant thereto for
the Private Sale provided, however, that the Closing and delivery of the Pledged
Stock purchased by the Company shall
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occur at the principal office of BB&T in Winston-Salem, North Carolina, at no
expense to BB&T.
4. Surplus. If all proceeds ever received by BB&T, either before or
after the Closing, from any sale or other disposition of any collateral, or
part therefor, for the Indebted ness, or the exercise of any other remedy
pursuant to the Note or any of the Loan Documents, together with the aggregate
purchase price actually received by BB&T for the Pledged Stock to be purchased
pursuant to this Agreement, shall exceed the aggregate amount of the
Indebtedness, interest thereon, the costs and expenses incurred or other sums
thereunder owed by the Borrower to BB&T pursuant to any of the Note or the Loan
Documents, and the costs and expenses incurred in the enforcement of the
Borrower's obligations under this Agreement, including reasonable attorneys'
fees, the amount of such excess shall be remitted to or for the account of the
Borrower, subject however, to the rights and claims of others having a prior
interest in or a lien upon any such proceeds.
5. Assignment by Borrower. Borrower hereby assigns all of its right,
title and interest in and to this Agreement to BB&T as collateral security for
the Indebtedness and agrees to execute and deliver Uniform Commercial Code
Financing Statements with respect thereto as BB&T may request.
6. Continuing Obligations. The obligations of the Company under this
Agreement shall be continuing, and the Company agrees that its obligations
hereunder shall not be modified, diminished, extinguished or released by reason
that the whole or any part of any security or collateral for the Indebtedness
now or hereafter held may be exchanged, compromised, impaired, released, or
surrendered from time to time, that the time or place of payment of any
Indebtedness or of any security therefor may be exchanged or extended, in whole
or in part, to a time certain or otherwise, and may be renewed or accelerated,
in whole or in part, that the Borrower may be granted indulgences generally,
that any of the provisions of any note or other instrument evidencing any debt
of the Borrower or any security therefor, including, without limitation, the
Note and the Loan Documents, may be modified or waived, or that any party liable
for the payment thereof (including but not limited to any guarantor, surety or
endorser) may be granted indulgences or released, all of which are hereby
expressly consented to by the Company, provided, however, that the original
principal amount of the Note may not be increased nor may additional amounts be
advanced or readvanced under the Note. Neither the death, disability,
bankruptcy, or insolvency of any one or more of the Borrower or any guarantor,
surety or endorser shall affect the continuing obligation of the Company. No
claim need be asserted against the personal representative, guardian,
custodian, trustee, debtor in bankruptcy, or receiver of any deceased,
incompetent, bankrupt or insolvent borrower, guarantor, surety or endorser. Any
deposit balance to the credit of the Borrower or any other party liable for the
payment of the Indebtedness 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 Indebtedness. All of the foregoing may be done
without notice to or further assent by the Company, which shall remain bound
hereon notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence or release. The Company
expressly waives notice of acceptance of this Agreement and of all extensions of
credit to the Borrower, presentment and demand for payment of the
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Indebtedness, protest and any notice of dishonor or of default to the Company or
to any other party with respect to any of the Indebtedness or with respect to
any security or collateral therefor and all other notices to which the Company
might otherwise be entitled. The obligations of the Company under this Agreement
shall be 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 interest or liens available to BB&T, it successors, endorsees or
assigns, the Company hereby waiving any rights to require that any action be
brought against the Borrower or any other person or to require that resort be
had to any security or to any balance of any deposit account or credit on the
books of BB&T in favor of the Borrower or any other person, and the Company
hereby waiving any rights of the Company pursuant to North Carolina General
Statutes Section 26-7 or any similar or subsequent law. If the Indebtedness is
partially paid through the election of BB&T, its successors, endorsees or
assigns, to pursue any of the remedies mentioned herein, in the Note, or in the
Loan Document or if such Indebtedness is otherwise partially paid, the Company
shall nevertheless remain fully liable and obligated under and pursuant to the
terms of this Agreement. The Borrower and BB&T agree to provide the Company
with copies of all Loan Documents and modifications thereof.
7. No Credit; Waiver of Defenses. The Company shall not be entitled to
provide for the payment of the purchase price either for the Pledged Stock (or
any part thereof) by the issuance of credit or credits to or for the account of
the Borrower, the Pledgor or either of them. Nor shall any portion of any
purchase price for the Pledged Stock be subject to offset, reduction or
diminution by reason of any disputed or undisputed claim, suit or demand which
the Company may have against the Borrower, the Pledgor or either of them, or by
reason of any disputed or undisputed unpaid accounts or liabilities of or
amounts otherwise owed by the Borrower, the Pledgor or either of them to the
Company. Nothing herein shall prohibit the Company from purchasing the Pledged
Stock over and above the amounts necessary to satisfy the Borrower's obligations
to BB&T and applying the proceeds thereof to any obligation of the Borrower to
the Company.
8. Notification of Stock Purchase Agreement. Nothing herein shall
prevent or restrict the Company and the Pledgor from amending or terminating the
Stock Purchase Agreement provided that, in the event of the termination or
modification of the Stock Purchase Agreement, the Company and the Pledgor shall
remain obligated to comply with paragraph 1 above as if the Stock Purchase
Agreement remained in force (unmodified) as it is as of the date hereof.
9. Choice of Law. The parties hereby acknowledge and agree that this
Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina.
10. Modification of Collateral Repurchase Agreement. This Agreement may
not be changed, amended or modified orally or by implication but only by a
written instrument signed by each of the parties hereto, and no obligation of
the Company or the Borrower or the Pledgor shall be released, waived or modified
by BB&T or any officer or agent of BB&T except by a writing signed by a duly
authorized officer of BB&T and bearing the seal of BB&T. This Agreement shall be
irrevocable by the Company, the Borrower and the Pledgor until the Indebt-
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edness has been completely repaid and all other obligations and undertakings of
the Borrower under, or by reason of, or pursuant to the Note or any of the Loan
Documents have been completely performed and satisfied.
11. Notices. Any and all notices or demands permitted or required to be
made under this Agreement shall be in writing, signed by the party giving such
notice or demand, and shall be delivered personally or by a nationally
recognized courier service or sent by registered or certified United States
mail, postage prepaid, to the other party(ies) at the addressees) set forth
below, or at such other address as may have been designated in writing. The
effective date of such notice or demand shall be date of personal service or the
date on which the notice or demand is deposited in the mails.
The address of the Borrower is: Robert L. McCoy
4810 Culbreath Isles Road
Tampa, FL 33629
Gulf Florida Doughnut Corp. d/b/a
Krispy Kreme Doughnut Co.
8425 N. Florida Avenue
Tampa, FL 33604
The address of the Company is: Krispy Kreme Doughnut Corporation
1814 Ivy Avenue
Winston-Salem, NC 27105
Attn: John L. Barber
The address of BB&T is: Branch Banking and Trust Company
Post Office Box 15008
Winston-Salem, NC 27113-5008
Attn: Christopher Verwoerdt
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but taken together shall
constitute but one Agreement.
13. Benefit. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective legal representatives,
heirs, successors and assigns.
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IN WITNESS WHEREOF, the parties have either hereunto set his hand and
seal or caused this Agreement to be executed as of the day and year first above
written.
/s/ Robert L. McCoy
GULF FLORIDA DOUGHNUT CORP.
d/b/a KRISPY KREME DOUGHNUT CORP.
By: /s/ Robert L. McCoy
President
Attest:
/s/ Donna C. Hollingsworth
Secretary
(CORPORATE SEAL)
KRISPY KREME DOUGHNUT
CORPORATION
By: /s/ J.A. McAleer, Jr.
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Randy S. Casstevens
Secretary
(CORPORATE SEAL)
BRANCH BANK AND TRUST COMPANY
By: /s/ Christopher E. Verwoerdt
Asst. Vice President
Attest:
/s/ _______________________
Asst. Secretary
(CORPORATE SEAL)
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CONSENT AND AGREEMENT
FOR VALUE RECEIVED, the undersigned, who is a party to the Stock Purchase
Agreement (the "Stock Purchase Agreement") referred to and described in the
foregoing Collateral Repurchase Agreement (the "Collateral Repurchase
Agreement"), hereby acknowledges and consents to the Collateral Repurchase
Agreement. The undersigned hereby agrees that, (a) in the event of any default
by Borrower under the terms of any documents evidencing, securing or otherwise
relating to the Note (as defined in the Collateral Repurchase Agreement), Branch
Bank and Trust Company (the "Bank") shall of Borrower's right, title interest
under the Stock Purchase Agreement, and that, (b) in the event of any default by
Borrower under the terms of any documents evidencing, securing or otherwise
relating to the Note, the undersigned shall continue its performance under the
Stock Purchase Agreement on behalf of the Bank, and that (c) the undersigned may
modify or terminate the Stock Purchase Agreement only in accordance with the
terms of the Collateral Repurchase Agreement of even date herewith by and among
the Bank, the undersigned and the Borrower, or otherwise upon the prior written
consent of the Bank, and that (d) the undersigned is not a party to any other
agreements intended as a substitute for or modification or amendment of the
Stock Purchase Agreement (except for the Collateral Repurchase Agreement), true,
complete and correct copies of which are attached hereto.
WITNESS the hand and seal of the undersigned, as of the day and year
set forth.
KRISPY KREME DOUGHNUT
CORPORATION
By: /s/ J.A. McAleer, Jr.
Chairman of the Board and
Chief Executive Officer
10/31/96
Date Signed
Attest:
/s/ Randy S. Casstevens
Secretary
(CORPORATE SEAL)
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