1
EXHIBIT 30.4
BB&T
GUARANTY AGREEMENT
BRANCH BANKING AND TRUST COMPANY April 17, 2001
HICKORY, NORTH CAROLINA
Dear Sirs:
As an inducement to Branch Banking and Trust Company ("Bank") to extend
credit to and to otherwise deal with PF MANAGEMENT INC ("Borrower"), and in
consideration thereof, the undersigned (and each of the undersigned jointly and
severally if more then one) hereby absolutely and unconditionally guarantees to
Bank 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 Borrower, at any time, now or hereafter,
incurred with or held by Bank, 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
undersigned is a guarantee of payment and not of collection.
The undersigned is Bank's debtor for all indebtedness, obligations and
liabilities for which this Guaranty is made, and Bank shall also at all times
have a lien on and security interest in all stocks, bonds and other securities
of the undersigned at any time in Bank's possession and the same shall at
Bank's option be held, administered and disposed of as collateral to any such
indebtedness, obligation or liability of the Borrower, and Bank shall also at
all times have the right of set-off against any deposit account of the
undersigned with Bank in the same manner and to the same extent that the right
of set-off may exist against the Borrower.
It is understood that any such notes, drafts, debts, obligations and
liabilities may be accepted or created by or with Bank at any time and from time
to time without notice to the undersigned, and the undersigned 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.
Bank 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 undersigned and
without in any manner affecting the obligation and liability of the undersigned
hereby created. The undersigned agrees that Bank 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 this Guaranty is made.
This obligation and liability on the part of the undersigned shall be a
primary, and not a secondary, obligation and liability, payable immediately upon
demand without recourse first having been had by Bank against the Borrower or
any other guarantor, person, firm or corporation, and without first resorting to
any property held by Bank as collateral security; and the undersigned 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
undersigned on account of obligation and liability hereunder until judgment be
obtained therefor against the Borrower and execution thereon returned
unsatisfied, or until it is shown that the Borrower 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 undersigned hereby
agrees to indemnity the Bank for all costs of collection, including but not
limited to the costs of repossession, foreclosure, reasonable attorneys' fees,
and court costs incurred by the Bank in the event that the Bank should first be
required by the undersigned to resort to any property held by the Bank or in
which the Bank has a security interest or to obtain execution or other
satisfaction of a judgment against the Borrower on account of Borrower's
obligation and liability for its indebtedness guaranteed hereby; and the
undersigned further agrees that the undersigned is responsible for any
obligation or debt, or portion thereof, of the Borrower to the Bank which has
been paid by the Borrower to the Bank and which the Bank is subsequently
required to return to the Borrower or a trustee for the Borrower in any
bankruptcy or insolvency proceeding; and the undersigned further agrees that
none of the undersigned shall have any right of subrogation, reimbursement or
indemnity whatsoever, nor any right of recourse to security for the debts and
obligations of the Borrower to Bank unless and until all of the debts and
obligations of the Borrower to Bank have been paid in full. The undersigned
hereby waives, to the extent avoidable under any provision of the Bankruptcy
Code, any right arising upon payment by the undersigned of any obligation under
this Guaranty to assert a claim against the bankruptcy estate of the Borrower.
Check applicable box:
[X] This Guaranty is unlimited and applies to all indebtedness of Borrower,
whether now existing or hereafter arising.
[ ] This Guaranty applies to all indebtedness of Borrower evidenced by its
promissory note number ________________dated ______________ (including all
extensions, renewals, and modifications thereof) in the principal amount of
$ _____________.
[ ] This Guaranty is limited to an amount of $______ plus accrued interest, late
fees, costs of collection including attorneys' fees) and all other
obligations and indebtedness may accrue or be incurred with respect
to the Borrower's indebtedness and obligations to Bank.
To secure the payment of all obligations of the undersigned hereunder,
the undersigned hereby grants a security interest and lien in the following
goods and property owned by the undersigned: ___________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________("Collateral").
The undersigned hereby agrees to execute and deliver to Bank any security
agreement, deed of trust, mortgage, UCC financing statement. or other document
required by the Bank in order to protect its security interest or lien in the
Collateral. This document shall constitute a security agreement under the
Uniform Commercial Code of North Carolina (*Code"), and in addition to having
all other legal rights and remedies, the Bank shall have all rights and remedies
of a secured party under the Code.
INITIALS: /s/ ▇.▇.
PAGE 1 OF 2
2
This agreement shall inure to the benefit of Bank, 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 Bank; but such revocation shall not release the
undersigned from liability to Bank, 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 Borrower 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 undersigned. The undersigned 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 Borrower. The undersigned shall be responsible for and
shall reimburse the Bank for all costs and expenses (including reasonable
attorneys' fees) incurred by the Bank in connection with the enforcement of this
Guaranty or the protection or preservation of any right or claim of the Bank in
connection herewith, including without limitation costs and expenses incurred by
the Bank in connection with its attempts to collect the indebtedness,
obligations, and liabilities guaranteed hereby.
If the Borrower is a corporation, this instrument covers all
indebtedness, obligations and liabilities to Bank purporting to be made or
undertaken on behalf of such corporation by any such officer or agent of said
corporation without regard to the actual authority of such officer or agent. The
term "corporation" shall include associations of all kinds and all purported
corporations, whether correctly and legally chartered and organized.
The undersigned covenants, warrants, and represents to the Bank that:
(i) this guaranty is enforceable against the undersigned 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 undersigned is a party; (iii)
that there is no litigation, claim, action or proceeding pending or, to the best
knowledge of the undersigned, threatened against the undersigned which would
materially adversely affect the financial condition of the undersigned or his
ability to fulfill his obligations hereunder; and (iv) that the undersigned has
knowledge of the Borrower's financial condition and affairs.
This Guaranty is made in and shall be construed in accordance with the
laws and judicial decisions of the State of North Carolina. The undersigned
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 undersigned hereby submits to the jurisdiction of the state
and/or federal courts of North Carolina. The undersigned 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 each of the undersigned.
WITNESS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------------(SEAL)
SIGNATURE OF ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
----------------------------- -----------------------------------(SEAL)
Address of Guarantor(s): ▇▇▇ ▇ ▇▇▇▇ ▇▇.
-----------------------------------
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------
North Carolina: Catawba County
-------
I, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public of Catawba County, do hereby
------------------- -------
certify that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------------------------
_______________________________________________________________________________
_______________________________________________________________________________
personally appeared before me this day and acknowledged the due execution of the
foregoing instrument in writing.
Witness my hand and seal, this 17 day of April, 2001.
-- -----------
My Commission Expires: October 9, 2001 /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------- --------------------------------------
NOTARY PUBLIC
Page 2 of 2