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EXHIBIT 7.3
GUARANTY AGREEMENT
GUARANTY dated as of April 17, 2001, by XXXXX X. XXXXX, a citizen and
resident of Hickory, 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 hereunder until judgment be
obtained therefor against the Debtor and execution thereon returned unsatisfied,
or
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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 against the Guarantor in
accordance with its terms; (ii) the execution and delivery of this Guaranty does
not
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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. Xxxxx
----------------------------(SEAL)
XXXXX X. XXXXX, 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. Xxxxx personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
Witness my hand and seal, this the 17 day of April, 2001.
/s/ Xxxxxxxxx X. XxXxxx
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NOTARY PUBLIC
My Commission Expires:
October 9, 2001
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