Exhibit 4.3
GUARANTY
BANK OF BROOKHAVEN
000 XXXXXXXX XXXX.
BEOOICHAVEN, MS 39601
BROOKHAVEN MISSISSIPPI
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(City) (State)
April 27, 2005
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce BANK OF
BROOKHAVEN
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(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
Knobias, Inc.
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(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 end 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:
LOAN NO. 79897 DATED APRIL 27, 2005 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, end
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 Xxxxxx 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 refinancing 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 Xxxxxx 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, with due amount 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 $ 300,360.00 (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
end enforcement expenses referable thereto. Indebtedness may be created and
continued in any amount, whether or not in excess of such principal amount,
without effecting 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 shell 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 (or 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 unsecured; secured by a mortgage or security agreement
dated (X) secured by FINANCIAL STATEMENT
IN WITNESS WHEREOF, this guaranty has been duly executed by the
Undersigned the day and year first above written.
/s/ XXX XXXXX
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Xxx Xxxxx
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 sue, 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; (xi) 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 judiceta, 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 Xxxxxxxx'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
shell 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 Xxxxxx's
acceptance hereof.
