EXHIBIT 3.6
GUARANTY
THIS GUARANTY ("GUARANTY") is made as of November 1, 2006, by UNITED
MONEYCORP, INC., a Texas corporation ("GUARANTOR"), in favor of XXXXXXX
FINANCIAL GROUP, L.L.C., an Illinois limited liability company ("LENDER").
RECITALS
A. Pursuant to the terms of the Note and Warrant Purchase Agreement, dated
as of the date hereof, between United Medicorp, Inc. (the "BORROWER"), and
Lender (the "PURCHASE AGREEMENT"), Lender has agreed to purchase from Borrower a
secured promissory note in a principal amount of Seventy Six Thousand Dollars
($76,000) (the "NOTE"), provided that (i) Borrower enters into a security
agreement dated as of the date hereof giving Lender a security interest in all
of Borrower's personal property (the "SECURITY AGREEMENT"), (ii) Borrower makes
a Deed of Trust for the benefit of Lender (the "DEED OF TRUST") and (iii)
Guarantor guarantees Borrower's obligations relating to the Note as provided
herein.
B. Guarantor is willing to enter into and perform in accordance with this
Guaranty.
GUARANTOR THEREFORE GUARANTIES AND AGREES AS FOLLOWS:
1. DEFINITIONS AND TERMS.
(a) Definitions. For purposes of this Guaranty, the following terms
shall have the following definitions:
(i) "BORROWER" shall include both of the named Borrower and any
other Person at any time assuming or otherwise becoming primarily liable for all
or any part of the obligations of the named Borrower under the Transaction
Documents, including, but not limited to, the trustee and the
debtor-in-possession in any bankruptcy or similar proceeding involving the named
Borrower.
(ii) "COLLATERAL" shall mean the Collateral (as defined in the
Security Agreement and the Mortgaged Property (as defined in the Deed of Trust).
(iii) "PURCHASE AGREEMENT" means the Note and Warrant Purchase
Agreement described in Recital A hereto, all concurrent and subsequent riders to
said Note and Warrant Agreement, and all extensions, addenda, supplements,
amendments, and modifications to said Note and Warrant Agreement and/or to any
said rider.
(b) Other Terms. All other capitalized terms used herein without
definition shall have the meanings assigned to them in the Security Agreement.
2. GUARANTY. Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Lender the due and punctual payment, performance and discharge
(whether upon acceleration or otherwise in accordance with the terms thereof) of
all Obligations; provided, however, that Guarantor's liability hereunder with
respect to the Obligations shall not exceed at
any time One Hundred percent (100%) of such Obligations outstanding (the
"GUARANTY LIMIT"). Subject to the Guaranty Limit, this guaranty of the
Obligations includes in all cases all such Obligations which arise after the
filing of a bankruptcy petition with respect to Borrower and all such
Obligations which would become due but for the operation of the (i) automatic
stay under Section 362(a) of the Bankruptcy Code, (ii) Section 502(b) of the
Bankruptcy Code, or (iii) Section 506(b) of the Bankruptcy Code, including, but
not limited to, interest accruing under the Transaction Documents after the
filing of a bankruptcy petition, whether or not allowed or allowable as a claim
in the bankruptcy proceeding. This Guaranty is a guaranty of prompt and punctual
payment of the Obligations, whether at stated maturity, by acceleration or
otherwise, and is not merely a guaranty of collection.
3. RIGHTS OF LENDER. Guarantor authorizes Lender, without giving notice to
Guarantor or obtaining Guarantor's consent and without affecting the liability
of Guarantor for the Obligations to the extent described in Section 2 hereof,
from time to time to:
(a) compromise, settle, renew, extend the time for payment, change the
manner or terms of payment, discharge the performance of, decline to enforce, or
release all or any of the Obligations; grant other indulgences to Borrower in
respect thereof; or modify in any manner any documents (other than this
Guaranty) relating to the Obligations;
(b) declare all Obligations due and payable upon the occurrence of an
Event of Default;
(c) take and hold security for the performance of the Obligations and
exchange, enforce, waive and release any such security;
(d) apply and reapply such security and direct the order or manner of
sale thereof as Lender, in its sole discretion, may determine;
(e) release, surrender or exchange any deposits or other Collateral
securing the Obligations or on which Lender at any time may have a Lien;
release, substitute or add any one or more endorsers or guarantors of the
Obligations; or compromise, settle, renew, extend the time for payment,
discharge the performance of, decline to enforce, or release all or any
obligations of any such endorser or guarantor or other Person who is now or may
hereafter be liable on any Obligations or release, surrender or exchange any
deposits or other Property of any such Person;
(f) apply payments received by Lender from Borrower to any
Obligations, in such order as Lender shall determine, in its sole discretion,
whether or not any such Obligations are covered by this Guaranty;
(g) file one or more financing statements describing the Collateral
with the Secretary of State of the State of Delaware and the Secretary of State
of the State of Texas; and
(h) assign this Guaranty in whole or in part.
4. GUARANTOR'S WAIVERS.
2
(a) Guarantor waives:
(i) any defense based upon any legal disability or other defense
of Borrower, or by reason of the cessation or limitation of the liability of
Borrower from any cause (other than full payment of all Obligations), including
failure of consideration, breach of warranty, statute of frauds, statute of
limitations, accord and satisfaction, and usury;
(ii) any defense based upon any legal disability or other defense
of any other guarantor or other Person;
(iii) any defense based upon any lack of authority of the
officers, directors, partners or agents acting or purporting to act on behalf of
Borrower or any principal of Borrower or any defect in the formation of Borrower
or any principal of Borrower;
(iv) any defense based upon the application by Borrower of the
proceeds of the Note for purposes other than the purposes represented by
Borrower to Lender or intended or understood by Lender or Guarantor;
(v) any defense based on Guarantor's rights, under statute or
otherwise, to require Lender to xxx Borrower or otherwise to exhaust its rights
and remedies against Borrower or any other Person or against any collateral
before seeking to enforce this Guaranty;
(vi) any defense based on Lender's failure at any time to require
strict performance by Borrower of any provision of the Transaction Documents or
by Guarantor of this Guaranty. Guarantor agrees that no such failure shall
waive, alter or diminish any right of Lender thereafter to demand strict
compliance and performance therewith. Nothing contained herein shall prevent
Lender from foreclosing on the Lien of any deed of trust, mortgage or other
security agreement, or exercising any rights available to Lender thereunder, and
the exercise of any such rights shall not constitute a legal or equitable
discharge of Guarantor;
(vii) any defense arising from any act or omission of Lender
which changes the scope of Guarantor's risks hereunder;
(viii) any defense based upon Lender's election of any remedy
against Guarantor or Borrower or both; any defense based on the order in which
Lender enforces its remedies;
(ix) any defense based on (A) Lender's surrender, release,
exchange, substitution, dealing with or taking any additional collateral, (B)
Lender's abstaining from taking advantage of or realizing upon any Lien or other
guaranty, and (C) any impairment of collateral securing the Obligations,
including, but not limited to, Lender's failure to perfect, or maintain the
perfection or priority of, a Lien in such collateral;
(x) any defense based upon Lender's failure to disclose to
Guarantor any information concerning Borrower's financial condition or any other
circumstances bearing on Borrower's ability to pay the Obligations;
3
(xi) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
any other respects more burdensome than that of a principal;
(xii) any defense based upon Lender's election, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b)(2)
of the Bankruptcy Code or any successor statute;
(xiii) any defense based upon any borrowing or any grant of a
Lien under Section 364 of the Bankruptcy Code;
(xiv) any defense based on Lender's failure to be diligent or to
act in a commercially reasonable manner, or to satisfy any other standard
imposed on a secured party, in exercising rights with respect to collateral
securing the Obligations;
(xv) notice of acceptance hereof; notice of the existence,
creation or acquisition of any Obligation; notice of any Event of Default;
notice of the amount of the Obligations outstanding from time to time; notice of
any other fact which might increase Guarantor's risk; diligence; presentment;
demand of payment; protest; filing of claims with a court in the event of
Borrower's receivership or bankruptcy and all other notices and demands to which
Guarantor might otherwise be entitled (and agrees the same shall not have to be
made on Borrower as a condition precedent to Guarantor's obligations hereunder);
(xvi) any defense based on errors and omissions by Lender in
connection with its administration of any of the Transaction Documents;
(xvii) any defense based on application of fraudulent conveyance
or transfer law or shareholder distribution law to any of the Obligations or the
security therefor;
(xviii) any defense based on Lender's failure to seek relief from
stay or adequate protection in Borrower's bankruptcy proceeding or any other act
or omission by Lender which impairs Guarantor's prospective subrogation rights;
(xix) any defense based on legal prohibition of Lender's
acceleration of the maturity of the Obligations during the occurrence of an
Event of Default or any other legal prohibition on enforcement of any other
right or remedy of Lender with respect to the Obligations and the security
therefor; and
(xx) the benefit of any statute of limitations affecting the
liability of Guarantor hereunder or the enforcement hereof.
(b) Guarantor agrees that the payment of all sums payable under the
Transaction Documents or any part thereof or other act which tolls any statute
of limitations applicable to the Transaction Documents shall similarly operate
to toll the statute of limitations applicable to Guarantor's liability
hereunder.
(c) Guarantor understands that Lender's exercise of certain rights and
4
remedies contained in a deed of trust, mortgage or other security agreement
(collectively, "SECURITY INSTRUMENT") may impair or eliminate Guarantor's right
of subrogation against the trustor/mortgagor/obligor under such Security
Instrument, and that Guarantor may therefore incur a partially or totally
non-reimbursable liability hereunder. Guarantor nevertheless authorizes Lender
to exercise, in its sole discretion, any right, remedy or combination thereof
which may then be available to Lender, since it is Guarantor's intent that the
Obligations be absolute, independent and unconditional obligations of Guarantor
under all circumstances. Without limiting the generality of the foregoing or any
other provision hereof, Guarantor expressly waives all benefits which might
otherwise be available to Guarantor to the maximum extent permitted by law.
Notwithstanding any foreclosure of the Lien of any Security Instrument, with
respect to any or all of any Collateral secured thereby, whether by the exercise
of the power of sale contained therein, by an action for judicial foreclosure or
by an acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound
under this Guaranty.
5. SUBROGATION. Guarantor shall not exercise any rights which it may
acquire by reason of any payment made hereunder, whether by way of subrogation,
reimbursement or otherwise, until the prior payment, in full and in cash, of all
Obligations. Any amount paid to Guarantor on account of any payment made
hereunder prior to the payment in full of all Obligations shall be held in trust
for the benefit of Lender hereunder. So long as any Obligations remain
outstanding, Guarantor shall refrain from taking any action or commencing any
proceeding against Borrower, whether in connection with a bankruptcy proceeding
or otherwise, to recover any amounts in respect of payments made to Lender under
this Guaranty.
6. GUARANTOR'S ACKNOWLEDGMENT. Guarantor acknowledges that Lender would not
purchase the Note but for this Guaranty.
7. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor represents and
warrants to Lender, as an inducement to Lender to enter into the Transaction
Documents, that:
(a) the execution, delivery and performance by Guarantor of this
Guaranty (i) do not contravene any law or any contractual restriction binding on
or affecting Guarantor or by which Guarantor's Collateral may be affected; and
(ii) do not require any authorization or approval or other action by, or any
notice to or filing with, any other Person except such as have been obtained or
made;
(b) there are no conditions precedent to the effectiveness of this
Guaranty, and this Guaranty shall be in full force and effect and binding on
Guarantor as of the date hereof, regardless of whether Lender obtains collateral
or any guaranties from others or takes any other action contemplated by
Guarantor;
(c) this Guaranty constitutes the legal, valid and binding obligation
of Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be subject to or limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating to or
affecting the rights of creditors generally and by general principles of equity;
(d) there is no action, suit or proceeding affecting Guarantor pending
or
5
threatened before any court, arbitrator, or governmental authority, which may
materially adversely affect Guarantor's ability to perform his obligations under
this Guaranty;
(e) Guarantor has established adequate means of obtaining from sources
other than Lender, on a continuing basis, financial and other information
pertaining to Borrower's financial condition, Borrower's Collateral and
Borrower's activities relating thereto and the status of Borrower's performance
of obligations imposed by the Transaction Documents, and Guarantor agrees to
keep adequately informed from such means of any facts, events or circumstances
which might in any way affect Guarantor's risks hereunder and Lender has made no
representation or warranty to Guarantor as to any such matters;
(f) there are not now pending any material court or administrative
proceedings or undischarged judgments against Guarantor, and no tax liens have
been filed or threatened against Guarantor. Guarantor is not in default, or
alleged to be in default, under any agreement for borrowed money; and
(g) Lender has made no representation or warranty to Guarantor
regarding any collateral for the Obligations, including its value and/or its
transferability in the event Lender exercises its remedies under the Transaction
Documents.
8. COVENANTS OF GUARANTOR. For as long as the Note is outstanding,
Guarantor shall deliver to Lender as soon as practicable after the end of each
calendar month, and in any event within twenty (20) days thereafter, an
unaudited balance sheet of Guarantor as of the end of such month, cash flow
statements and an unaudited statement of operations of Guarantor for the portion
of the fiscal year ended with such month prepared in accordance with GAAP and
certified by Guarantor's chief executive officer, subject, however, to the
exclusion of footnotes and to normal year-end audit adjustments. Guarantor shall
immediately give Lender written notice of any material adverse change in its
financial condition, including litigation commenced, tax liens filed, defaults
claimed under Guarantor's indebtedness for borrowed money or bankruptcy
proceedings commenced by or against Guarantor.
9. BANKRUPTCY OF BORROWER. In any bankruptcy or other proceeding in which
the filing of claims is required by law, Guarantor shall file all claims which
Guarantor may have against Borrower relating to any indebtedness of Borrower to
Guarantor and shall assign to Lender all rights of Guarantor thereunder. If
Guarantor does not file any such claim, Lender, as attorney-in-fact for
Guarantor, is hereby authorized to do so in the name of Guarantor or, in
Lender's discretion, to assign the claim to a nominee and to cause a proof of
claim to be filed in the name of Lender's nominee. The foregoing power of
attorney is coupled with an interest and cannot be revoked. Lender or its
nominee shall have the right, in its reasonable discretion, to accept or reject
any plan proposed in such proceeding and to take any other action which a party
filing a claim is entitled to take. In all such cases, whether in
administration, bankruptcy or otherwise, the Person or Persons authorized to pay
such claim shall pay to Lender the amount payable on such claim and, to the full
extent necessary for that purpose, Guarantor hereby assigns to Lender all of
Guarantor's rights to any such payments or distributions; provided, however,
that Guarantor's obligations hereunder shall not be satisfied except to the
extent that Lender receives cash by reason of any such payment or distribution.
If Lender receives anything hereunder other than cash, the same shall be held as
collateral for amounts due under this
6
Guaranty.
10. MARSHALING OF ASSETS. Lender shall be under no obligation to marshal
any assets in favor of Guarantor, Borrower or any other guarantor or other
Person liable for the Obligations or against or in payment of any Obligations.
11. LENDER RECORDS. Guarantor agrees that Lender's books and records with
respect to the Obligations shall be admissible in evidence in any action or
proceeding, shall be binding upon Guarantor for purposes of establishing the
items therein set forth and shall constitute prima facie proof thereof,
irrespective of whether any Obligation is also evidenced by a note or other
instrument.
12. ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. Guarantor's
obligations hereunder shall be in addition to, and shall not limit or in any way
affect, Guarantor's obligations under any other existing or future guaranties
unless said other guaranties are expressly modified or revoked in writing. This
Guaranty is independent of the obligations of Borrower under the Transaction
Documents. Lender may bring a separate action to enforce the provisions hereof
against Guarantor without taking action against Borrower or any other Person or
joining Borrower or any other Person as a party to such action.
13. TERM; REVIVAL.
(a) This Guaranty is irrevocable by Guarantor. It is a continuing
guaranty and shall terminate only upon the full satisfaction of the Obligations.
If, notwithstanding the foregoing, Guarantor shall have any nonwaivable right
under applicable law or otherwise to terminate or revoke this Guaranty,
Guarantor agrees that such termination or revocation shall not be effective
until Lender receives written notice of such termination or revocation. Such
notice shall not affect Lender's right and power to enforce rights arising prior
to receipt thereof. If Lender makes advances or takes any other action after
Guarantor's termination or revocation but prior to receipt of the requisite
notice, Lender's rights with respect thereto shall be the same as if such
termination or revocation had not occurred.
(b) Guarantor's liability hereunder shall be reinstated and revived,
and Lender's rights shall continue, with respect to any amount at any time paid
by Borrower on account of the Transaction Documents which Lender shall be
required to restore or return upon the bankruptcy, insolvency or reorganization
of Borrower or for any other reason, whether by court order, administrative
order or settlement, all as though such amount had not been paid and this
Guaranty shall be reinstated if all of the Obligations had been satisfied prior
to the restoration or return of the payment.
14. ATTORNEYS' FEES; ENFORCEMENT. If any attorney is engaged by Lender to
enforce, construe or defend any provision of (i) this Guaranty or (ii) in
connection with the enforcement, construction or defense of this Guaranty, any
of the other Transaction Documents, or as a consequence of any Event of Default,
with or without the filing of any legal action or proceeding, Guarantor shall
pay to Lender, immediately upon demand, the amount of all attorneys' fees and
costs incurred by Lender in connection therewith, together with interest thereon
from the date of such demand at the rate of interest applicable to the Note.
7
15. HEADINGS. All headings appearing in this Guaranty are for convenience
only and shall be disregarded in construing this Guaranty.
16. CHOICE OF LAW AND JURISDICTION. This Guaranty shall be governed by and
construed in accordance with the internal laws of the State of Illinois, without
giving effect to conflicts of law principles. Guarantor and Lender agree that
all actions or proceedings arising in connection with this Guaranty shall be
tried and litigated only in the state and federal courts located in the County
of Xxxx, State of Illinois, or, at the option of Lender, any court in which
Lender shall initiate legal or equitable proceedings and which has subject
matter jurisdiction over the matter in controversy.
17. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EACH HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
GUARANTY.
18. NOTICES. All notices, demands and other communications which Guarantor
or Lender may desire, or may be required to, give to the other shall be in
writing and shall be personally delivered or sent by recognized overnight
delivery service, certified mail, postage prepaid, return receipt requested, or
by telefacsimile and shall be addressed to the party to be notified as follows:
If to Guarantor:
United Moneycorp, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with copy, which shall not constitute notice to Guarantor, to:
Xxxxx & Associates, P.C.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
8
If to Lender:
Xxxxxxx Financial Group, L.L.C.
000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
with copy, which shall not constitute notice to Lender, to:
DLA Piper US LLP
1999 Avenue of the Stars, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
The parties hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the other.
19. ASSIGNMENT; BINDING EFFECT. Guarantor may not assign this Guaranty
without Lender's prior written consent. This Guaranty shall be binding upon
Guarantor, its legal representatives, and permitted assigns, and shall inure to
the benefit of Lender and its successors, transferees and assigns.
20. ENTIRE AGREEMENT; MODIFICATIONS. This Guaranty is intended by Guarantor
and Lender to be the final, complete and exclusive expression of the agreement
between them. This Guaranty supersedes all prior and contemporaneous oral and
written agreements relating to the subject matter hereof. No modification,
rescission, waiver, release or amendment of any provision of this Guaranty shall
be made, except by a written agreement signed by Guarantor and Lender.
21. SEVERABILITY. If any provision of this Guaranty shall be determined by
a court of competent jurisdiction to be invalid, illegal or unenforceable, that
portion shall be deemed severed from this Guaranty and the remaining parts shall
remain in full force as though the invalid, illegal or unenforceable portion had
never been part of this Guaranty.
22. WAIVERS; REMEDIES. No failure on the part of Lender to exercise, no
delay in exercising and no course of dealing with respect to, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
9
IN WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned
as of the date first written above.
GUARANTOR
United Moneycorp, Inc.,
a Texas corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
President
