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EXHIBIT 8.5
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 CENTRAL 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 [XX] 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):
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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 [XX] unsecured; [ ] secured by a mortgage or security
agreement dated ; [ ] secured by
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IN WITNESS WHEREOF, this guaranty has been duly executed by the Undersigned the
day and year first above written.
/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
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"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/ JT
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