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EXHIBIT 8.4
GUARANTY
BLUEFIELD , WV
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(City) (State)
APRIL 17, 2001
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce FIRST CENTURY BANK, N.A., 000
XXXXXXX XX., XXXXXXXXX, XX 00000 (herein, with its participants, successors and
assigns, called "Lender"), at its option, at any time or from time to time to
make loans or extend other accommodations to or for the account of PF
MANAGEMENT, INC. (herein called "Borrower") or to engage in any other
transactions with Borrower, the Undersigned hereby absolutely and
unconditionally guarantees to Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
debts, liabilities and obligations described as follows:
A. If this [X] is checked, the Undersigned guarantees to Lender
the payment and performance of the debt, liability or
obligation of Borrower to Lender evidenced by or arising out
of the following: PF MANAGEMENT, INC. NOTE IN THE AMOUNT OF
$5,255,000.00 DATED 04/17/01 and any extensions, renewals or
replacements thereof (hereinafter referred to as the
"Indebtedness").
B. If this [ ] is checked, the Undersigned guarantees to Lender
the payment and performance of each and every debt, liability
and obligation of every type and description which Borrower
may now or at any time hereafter owe to Lender (whether such
debt, liability or obligation now exists or is hereafter
created or incurred, and whether it is or may be direct or
indirect, due or to become due, absolute or contingent,
primary or secondary, liquidated or unliquidated, or joint,
several, or joint and several; all such debts, liabilities
and obligations being hereinafter collectively referred to as
the "Indebtedness"). Without limitation, this guaranty
includes the following described debt(s):____________________.
The term "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date
hereof (including any extensions, renewals or replacements of such
obligations) for which Borrower meets the Lender's standard of
creditworthiness based on Borrower's own assets and income without the
addition of a guaranty, or for which a guaranty is required but
Borrower chooses someone other than the joint Undersigned to guaranty
the obligation.
The Undersigned further acknowledges and agrees with Lender that:
1. No act or thing need occur to establish the liability of the
Undersigned hereunder, and no act or thing, except full payment and discharge of
all indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Undersigned, whether or not all Indebtedness is paid in full, until
this guaranty is revoked by written notice actually received by the Lender, and
such revocation shall not be effective as to Indebtedness existing or committed
for at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof. If there be more than one
Undersigned, such revocation shall be effective only as to the one so revoking.
The death or incompetence of the Undersigned shall not revoke this guaranty,
except upon actual receipt of written notice thereof by Lender and then only as
to the decedent or the incompetent and only prospectively, as to future
transactions, as herein set forth.
3. If the Undersigned shall be dissolved, shall die, or shall be or
become insolvent (however defined) or revoke this guaranty, then the Lender
shall have the right to declare immediately due and payable, and the
Undersigned will forthwith pay to the Lender, the full amount of all
Indebtedness, whether due and payable or unmatured. If the Undersigned
voluntarily commences or there is commenced involuntarily against the
Undersigned a case under the United States Bankruptcy Code, the full amount of
all Indebtedness, whether due and payable or unmatured, shall be immediately
due and payable without demand or notice thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of $5,255,000.00 (if unlimited or if no amount is stated, the
Undersigned shall be liable for all Indebtedness, without any limitation as to
amount), plus accrued interest thereon and all attorneys' fees, collection costs
and enforcement expenses referable thereto. Indebtedness may be created and
continued in any amount, whether or not in excess of such principal amount,
without affecting or impairing the liability of the Undersigned hereunder. The
Lender may apply any sums received by or available to Lender on account of the
Indebtedness from Borrower or any other person (except the Undersigned), from
their properties, out of any collateral security or from any other source to
payment of the excess. Such application of receipts shall not reduce, affect or
impair the liability of the Undersigned hereunder. If the liability of the
Undersigned is limited to a stated amount pursuant to this paragraph 4, any
payment made by the Undersigned under this guaranty shall be effective to reduce
or discharge such liability only if accompanied by a written transmittal
document, received by the Lender, advising the Lender that such payment is made
under this guaranty for such purpose.
5. The Undersigned will pay or reimburse Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
Lender in connection with the protection, defense or enforcement of this
guaranty in any litigation or bankruptcy or insolvency proceedings.
THIS GUARANTY INCLUDES THE ADDITIONAL PROVISIONS ON PAGE 2, ALL OF WHICH ARE
MADE A PART HEREOF.
This guaranty is [X] unsecured; [ ] secured by a mortgage or security agreement
dated ______________; [ ] secured by __________________________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the
Undersigned the day and year first above written.
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
"Undersigned" shall refer to all
persons who sign this guaranty,
severally and jointly.
(page 1 of 2)
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ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which Lender is expressly authorized to do, omit or
suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver, adjustment, forbearance, compromise or
indulgence granted to Borrower, any delay or lack of diligence in the
enforcement of Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness; (iv) any
full or partial release of, settlement with, or agreement not to xxx, Borrower
or any other guarantor or other person liable in respect of any Indebtedness;
(v) any discharge of any evidence of Indebtedness or the acceptance of any
instrument in renewal thereof or substitution therefor; (vi) any failure to
obtain collateral security (including rights of setoff) for Indebtedness, or to
see to the proper or sufficient creation and perfection thereof, or to establish
the priority thereof, or to protect, insure, or enforce any collateral security;
or any release, modification, substitution, discharge, impairment,
deterioration, waste, or loss of any collateral security; (vii) any foreclosure
or enforcement of any collateral security; (viii) any transfer of any
Indebtedness or any evidence thereof; (ix) any order of application of any
payments or credits upon Indebtedness; (x) any election by the Lender under
ss. 1111(b)(2) of the United States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges
of Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against Lender any
defense of waiver, release, statute of limitations, res judicata, statute of
frauds, fraud, incapacity, minority, usury, illegality or unenforceability which
may be available to Borrower or any other person liable in respect of any
Indebtedness, or any setoff available against Lender to Borrower or any such
other person, whether or not on account of a related transaction.(*) The
Undersigned expressly agrees that the Undersigned shall be and remain liable, to
the fullest extent permitted by applicable law, for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The
undersigned shall remain obligated, to the fullest extent permitted by law, to
pay such amounts as though the Borrower's obligations had not been discharged.
8. The Undersigned further agrees that the Undersigned shall be and
remain obligated to pay Indebtedness even though any other person obligated to
pay Indebtedness, including Borrower, has such obligation discharged in
bankruptcy or otherwise discharged by law. "Indebtedness" shall include
post-bankruptcy petition interest and attorneys' fees and any other amounts
which Borrower is discharged from paying or which do not otherwise accrue to
Indebtedness due to Borrower's discharge, and the Undersigned shall remain
obligated to pay such amounts as though Borrower's obligations had not been
discharged.
9. If any payment applied by Lender to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Undersigned waives any claim, remedy or other right which the
Undersigned may now have or hereafter acquire against Borrower or any other
person obligated to pay Indebtedness arising out of the creation or performance
of the Undersigned's obligation under this guaranty, including, without
limitation, any right of subrogation, contribution, reimbursement,
indemnification, exoneration, and any right to participate in any claim or
remedy the Undersigned may have against the Borrower, collateral, or other party
obligated for Borrower's debts, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law.
11. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
Lender shall not be required first to resort for payment of the Indebtedness to
Borrower or other persons or their properties, or first to enforce, realize upon
or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12. The liability of the Undersigned under this guaranty is in addition
to and shall be cumulative with all other liabilities of the Undersigned to
Lender as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
13. This guaranty shall be enforceable against each person signing this
guaranty, even if only one person signs and regardless of any failure of other
persons to sign this guaranty. If there be more than one signer, all agreements
and promises herein shall be construed to be, and are hereby declared to be,
joint and several in each of every particular and shall be fully binding upon
and enforceable against either, any or all the Undersigned. This guaranty shall
be effective upon delivery to Lender, without further act, condition or
acceptance by Lender, shall be binding upon the Undersigned and the heirs,
representatives, successors and assigns of the Undersigned and shall inure to
the benefit of Lender and its participants, successors and assigns. Any
invalidity or unenforceability of any provision or application of this guaranty
shall not affect other lawful provisions and application hereof, and to this end
the provisions of this guaranty are declared to be severable. Except as
authorized by the terms herein, this guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed by
the Undersigned and Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of Lender's
acceptance hereof.
*7. Specifically, without limiting the generality of the foregoing, the
Undersigned waives any defense which might arise as a result of any event or
circumstance which might operate under applicable law to discharge the liability
of the Undersigned hereunder or might otherwise constitute or give rise to a
defense available to the Borrower, the Undersigned or any other guarantor of any
of the Indebtedness, including, without limitation, any right conferred by
Sections 26-7, et seq, of the North Carolina General Statutes.
(page 2 of 2)
/s/ DC
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