1
EXHIBIT 7.4
GUARANTY AGREEMENT
GUARANTY dated as of April 17, 2001, by XXXXX X. XXXXXXXXX, a citizen
and resident of Newton, North Carolina ("Guarantor") in favor of PIERRE FOODS,
INC., a North Carolina corporation ("Lender").
1. As an inducement to Lender to extend credit in the amount of Seven
Hundred Five Thousand Four Hundred Ninety-three and no/100 Dollars ($705,493.00)
(the "Indebtedness") to and to otherwise deal with Columbia Hill, LLC
("Debtor"), and in consideration thereof, the Guarantor hereby absolutely and
unconditionally guarantees to Lender and its successors and assigns the due and
punctual payment of any and all notes, drafts, debts, obligations and
liabilities, primary or secondary (whether by way of endorsement or otherwise),
of Debtor made pursuant to the Indebtedness, at any time, now or hereafter
incurred, with or held by Lender, together with interest, as and when the same
become due and payable, whether by acceleration or otherwise, in accordance with
the terms of any such notes, drafts, debts, obligations or liabilities or
agreements evidencing any such indebtedness, obligation or liability including
all renewals, extensions and modifications thereof. The obligation of the
Guarantor is a guarantee of payment and not of collection.
2. The Guarantor is Lender's debtor for all indebtedness, obligations
and liabilities for which the Guaranty is made, and Lender shall also at all
times have a lien on and security interest in all stocks, bonds and other
securities of the Guarantor which may be at any time and from time to time given
by the Guarantor to the Lender as further security for the Indebtedness, when
such remains in Lender's possession, and the same shall at Lender's option be
held, administered and disposed of as collateral to any such indebtedness,
obligation or liability of the Debtor.
3. It is understood that any such notes, drafts, debts, obligations and
liabilities may be accepted or created by or with Lender at any time and from
time to time without notice to the Guarantor, and the Guarantor hereby expressly
waives presentment, demand, protest, and notice of dishonor of any such notes,
drafts, debts, obligations and liabilities or other evidences of any such
indebtedness, obligation or liability.
4. Lender may receive and accept from time to time any securities or
other property as a collateral to any such notes, drafts, debts, obligations and
liabilities and may surrender, compromise, exchange and release absolutely the
same or any part thereof at any time without notice to the Guarantor and without
in any manner affecting the obligation and liability of the Guarantor hereby
created. The Guarantor agrees that Lender shall have no obligation to protect,
perfect, secure or insure any security interests, liens or encumbrances now or
hereafter held for the indebtedness, obligations and liabilities for which the
Guaranty is made.
5. This obligation and liability of the Guarantor shall be a primary,
and not a secondary, obligation and liability, payable immediately upon demand
without recourse first having been had by Lender against the Debtor or any other
guarantor, person, firm or corporation, and without first resorting to any
property held by Lender as collateral security; and the Guarantor hereby waives
the benefits of all provisions of law, including but not limited to the
provisions of N.C.G.S. Section 26-7 or its successor, for stay or delay of
execution or sale of property or other satisfaction of judgment against the
Guarantor on account of the obligation and liability
2
hereunder until judgment be obtained therefor against the Debtor and execution
thereon returned unsatisfied, or until it is shown that the Debtor has no
property available for the satisfaction of the indebtedness, obligation or
liability guaranteed hereby, or until any other proceedings can be had; and the
Guarantor hereby agrees to indemnify the Lender for all costs of collection,
including but not limited to the costs of repossession, foreclosure, reasonable
attorneys' fees, and court costs incurred by the Lender in the event that the
Lender should first be required by the Guarantor to resort to any property held
by the Lender or in which the Lender has a security interest or to obtain
execution or other satisfaction of a judgment against the Debtor on account of
Debtor's obligation and liability for its indebtedness guaranteed hereby; and
the Guarantor further agrees that the Guarantor is responsible for any
obligation or debt, or portion thereof, of the Debtor or a trustee for the
Debtor in any bankruptcy or insolvency proceeding; and the Guarantor further
agrees that the Guarantor shall not have any right of subrogation, reimbursement
or indemnity whatsoever, nor any right of recourse to security for the debts and
obligations of the Debtor to Lender unless and until all of the debts and
obligations of the Debtor to Lender have been paid in full. The Guarantor hereby
waives, to the extent avoidable under any provision of the Bankruptcy Code, any
right arising upon payment by the Guarantor of any obligation under this
Guaranty to assert a claim against the bankruptcy estate of the Debtor.
6. This Guaranty is of the Debtor's Promissory Note dated February 28,
1997 in the face amount of Seven Hundred Five Thousand Four Hundred Ninety-three
Dollars ($705,493.00) (the "Note"), and is limited to the amount of the
Indebtedness, plus accrued interest, late fees, costs of collection (including
attorneys' fees) and all other obligations and indebtedness which may accrue or
be incurred with respect to the Note or the Indebtedness, and Debtor's
obligations thereunder to Lender.
7. This Agreement shall inure to the benefit of Lender, its successors
and assigns, and the owners and holders of any of the indebtedness, obligations
and liabilities hereby guaranteed, and shall remain in force until a written
notice revoking it has been received by Lender but such revocation shall not
release the Guarantor from liability to Lender, its successors and assigns, or
the owners and holders of any of the indebtedness, obligations and liabilities
hereby guaranteed, for any indebtedness, obligation or liability of the Debtor
which is hereby guaranteed and then in existence or from any renewals,
extensions or modifications thereof in whole or in part, whether such renewals,
extensions or modifications are made before or after such revocation, with or
without notice to the Guarantor. The Guarantor waives presentment, demand,
protest and notices of every kind and assents to any one or more extensions,
modifications, renewals or postponements of the time or amount of payment or any
other indulgences given to Debtor. The Guarantor shall be responsible for and
shall reimburse the Lender for all costs and expenses (including reasonable
attorneys' fees) incurred by the Lender in connection with the enforcement of
this Guaranty or the protection or preservation of any right or claim of the
Lender in connection herewith, including without limitation costs and expenses
incurred by the Lender in connection with its attempts to collect the
indebtedness, obligations, and liabilities guaranteed hereby.
8. As the Debtor is a limited liability company (LLC) , this instrument
covers all indebtedness, obligations and liabilities to Lender purporting to be
made or undertaken on behalf of such LLC by any such officer or agent of said
LLC without regard to the actual authority of such officer or agent. The term
"LLC" shall include associations of all kinds and purported LLCs, whether
correctly and legally chartered and organized.
9. The Guarantor covenants, warrants, and represents to the Lender
that: (i) this Guaranty is enforceable
3
against the Guarantor in accordance with its terms; (ii) the execution and
delivery of this Guaranty does not violate or constitute a breach of any
agreement to which the Guarantor is a party; (iii) that there is no litigation,
claim, action or proceeding pending or, to the best knowledge of the Guarantor,
threatened against the Guarantor which would materially adversely affect the
financial condition of the Guarantor or the Guarantor's ability to fulfill the
Guarantor's obligations hereunder; and (iv) that the Guarantor has knowledge of
the Debtor's financial condition and affairs.
10. This Guaranty is made in and shall be construed in accordance with
the laws and judicial decisions of the State of North Carolina. The Guarantor
agrees that any dispute arising out of this Guaranty shall be adjudicated in
either the state or federal courts of North Carolina and in no other forum. For
that purpose, the Guarantor hereby submits to the jurisdiction of the state
and/or federal courts of North Carolina. The Guarantor waives any defense that
venue is not proper for any action brought in any federal or state court in the
State of North Carolina.
WITNESS the signature and seal of the Guarantor, the day and year first
above set forth.
/s/ Xxxxx X. Xxxxxxxxx (SEAL)
-----------------------------
XXXXX X. XXXXXXXXX, GUARANTOR
STATE OF NORTH CAROLINA
COUNTY OF CATAWBA
I, Xxxxxxxxx X. XxXxxx a Notary Public for said County and State, do
hereby certify that Xxxxx X. Xxxxxxxxx personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
Witness my hand and seal, this the 17th day of April, 2001.
/s/ Xxxxxxxxx X. XxXxxx
---------------------------
NOTARY PUBLIC
My Commission Expires:
October 9, 2001
----------------------
