ex43.htm


    Exhibit
4.3

     

    GUARANTY

    


    


    THIS GUARANTY is made this 1st day
of October, 2008, by LEE OIL
COMPANY, INC., a
Virginia corporation, LEE’S
FOOD MART’S, LLC, a Tennessee limited liability company, and MOUND TECHNOLOGIES, INC., a
Nevada corporation (collectively “Guarantors”), in
favor of CHOICE FINANCIAL
GROUP, a North Dakota state bank (“Lender”).

    


    WHEREAS, Lender has agreed to loan
$3,250,000 (the “Loan”) to Heartland,
Inc., a Maryland corporation (“Borrower”);

    


    WHEREAS, the Loan will be evidenced by
a Promissory Note of even date herewith payable to the order of Lender in the
original principal amount of $3,250,000 (the “Note”) (the Note, the
Mortgage (as defined below) and the other documents executed in connection with
the Loan are collectively referred to as the “Loan
Documents”);

    


    WHEREAS, payment of the Note is be
secured, among other things, by (i) a mortgage lien evidenced by a Third Party
Mortgage, Security Agreement and Fixture Financing Statement on the fee interest
in certain real property located in Springboro, Ohio (the “Ohio Property”) owned
by Mound Technologies, Inc., a Nevada corporation (the “Ohio Mortgage”), (ii)
a mortgage lien evidenced by a Third Party Mortgage, Security Agreement and
Fixture Financing Statement on the fee interest in certain real property located
in _____________, Kentucky (the “Kentucky Property”)
owned by Lee’s Food Mart’s, LLC, a Tennessee limited liability company (the
“Kentucky
Mortgage”), and (iii) a mortgage lien evidenced by a Third Party Deed of
Trust, Security Agreement and Fixture Financing Statement on the fee interest in
certain real property located in ______________, Virginia (the “Virginia Property”)
owned by Lee Oil Company, Inc., a Virginia corporation (the “Virginia Deed of
Trust”) (the Ohio Property, the Kentucky Property and the Virginia
Property are collectively referred to as the “Property” and the
Ohio Mortgage, the Kentucky Mortgage and the Virginia Deed of Trust are
collectively referred to as the “Mortgage”);
and

    


    WHEREAS, Guarantors are related or
affiliated with Borrower and/or will benefit from the Loan to
Borrower;

    


    WHEREAS, Lender, as a condition to
making the Loan, has required the execution of this Guaranty;

    


    NOW, THEREFORE, in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Guarantors hereby agree as
follows:

    


    1. Guarantors
hereby absolutely, unconditionally and jointly and severally guarantee to Lender
the full and prompt payment when due, whether at maturity or earlier by reason
of acceleration or otherwise, of (i) the payment of all funds disbursed under
and evidenced by the Note (and all interest thereon) and any extensions or
renewals thereof and substitutions therefor; (ii) each and every sum secured by
the Loan Documents; and (iii) each and every other of the obligations in
connection with the Loan or sum now or hereafter owing under any agreement now
or hereafter entered into between Lender and Borrower in connection with the
Loan or the Property, including, without limitation, all of the indemnification
provisions of the Loan Documents (all of said sums being hereinafter called the
“Indebtedness”); and Guarantors agree pay all costs, expenses and attorneys’
fees paid or incurred by Lender in endeavoring to collect the Indebtedness and
in enforcing this Guaranty.  The obligations of Guarantors shall be
joint and several with all other parties liable for the
Indebtedness.

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    
 

    2. Each
Guarantor shall jointly and severally defend and indemnify Lender and its
shareholders, directors, officers, employees, agents, attorneys, insurers,
contractors, licensees, invitees, successors and assigns (collectively
“Indemnified Parties”) from and against, shall hold the Indemnified Parties
harmless from, and shall reimburse the Indemnified Parties for any and all
costs, directly or indirectly incurred by the Indemnified Parties, including
attorneys’ and consultants’ fees resulting from any violation of any
Accessibility Regulation.  This Indemnity shall be deemed continuing
for the benefit of the Indemnified Parties, including any purchaser at a
foreclosure or other sale under the Mortgage, any transferee of the title from
Lender, and any subsequent owner of the Property, and shall survive the
satisfaction or release of the Mortgage, any foreclosure of or other sale under
the Mortgage and/or any acquisition of title to the Property or any part thereof
by Lender, or anyone claiming by, through or under Lender, by deed in lieu of
foreclosure or otherwise, and also shall survive the repayment or any other
satisfaction of the Loan.  Any amounts covered by the foregoing
indemnification shall bear interest from the date incurred at the highest rate
payable pursuant to the Note including any default rate, as therein defined, and
shall be payable on demand.  Each Guarantor agrees that its
obligations under this Agreement are separate from, independent of, and in
addition to its obligations, if any, under the Mortgage and other documents
which secure the Loan.

    


    As used herein, the following terms
shall have the following meanings:

    


    
      	
               
      

            	
              (a)

            	
              “Accessibility
      Regulation” means a Law relating to accessibility of facilities or
      properties for disabled, handicapped and/or physically challenged persons,
      including, without limitation, the Americans With Disabilities Act of
      1991, as amended.

            


    

    


    
      	
               
      

            	
              (b)

            	
              “Law”
      means any federal, state or local law, statute, code, ordinance, rule,
      regulation or requirement.

            


    

    


    3. Indebtedness
of Borrower under the Note or otherwise may be created and continued in any
amount without affecting or impairing the liability of Guarantors hereunder, and
Lender may pay (or allow for the payment of) the excess out of any sums received
by or available to Lender on account of any Indebtedness from Borrower or any
other person (except Guarantors), from their properties, out of any collateral
security or from any other source, and such payment (or allowance) shall not
reduce, affect or impair the liability of Guarantors hereunder.

    


    4. No act or
thing need occur to establish the liability of Guarantors hereunder, and with
the exception of full payment, no act or thing (including, but not limited to, a
discharge in bankruptcy of the Indebtedness, and/or the running of the statute
of limitations) relating to the Indebtedness which but for this provision could
act as a release of the liabilities of Guarantors hereunder, shall in any way
exonerate Guarantors, or affect, impair, reduce or release this Guaranty and the
liability of Guarantors hereunder; and this shall be a continuing, absolute,
unconditional and joint and several guaranty and shall be in force and be
binding upon Guarantors until the Indebtedness is fully paid.

    


    5. The
liability of Guarantors hereunder shall not be affected or impaired in any way
by any of the following acts or things (which Lender is hereby expressly
authorized to do, omit or suffer from time to time without notice to or consent
of anyone): (i) any acceptance of collateral security, guarantors, accommodation
parties or sureties for any or all Indebtedness; (ii) any extension or
renewal of any Indebtedness (whether or not for longer than the original period)
or any modification of the interest rate, maturity or other terms of any
Indebtedness; (iii) any waiver or indulgence granted to Borrower, any delay or
lack of diligence in the enforcement of the Note or any other 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,
compromise or settlement with, or agreement not to sue, Borrower or any other
guarantor or other person liable on any Indebtedness or the death of any other
guarantor or obligor on any Indebtedness; (v) any release, surrender,
cancellation or other discharge of any Indebtedness or the acceptance of any
instrument in renewal or substitution for any instrument evidencing
Indebtedness; (vi) any failure to obtain collateral security (including rights
of setoff) for any Indebtedness, or to see to the proper or sufficient creation
and perfection thereof, or to establish the priority thereof, or to preserve,
protect, insure, care for, exercise or enforce any of the Loan Documents or any
other collateral security for any of the Indebtedness; (vii) any modification,
alteration, substitution, exchange, surrender, cancellation, termination,
release or other change, impairment, limitation, loss or discharge of any of the
Loan Documents or any other collateral security for any of the Indebtedness;
(viii) any assignment, sale, pledge or other transfer of any of the
Indebtedness; or (ix) any manner, order or method of application of any payments
or credits on any Indebtedness.  Guarantors waive any and all defenses
and discharges available to a surety, guarantor, or accommodation co-obligor,
dependent on their character as such.

    


    6. Guarantors
waive any and all defenses, claims, setoffs, and discharges of Borrower, or any
other obligor, pertaining to the Indebtedness, except the defense of discharge
by payment in full.  Without limiting the generality of the foregoing,
Guarantors will not assert against Lender any defense of waiver, release,
discharge in bankruptcy, res judicata, statute of frauds, anti-deficiency
statute, fraud, ultra vires acts, usury, illegality or unenforceability which
may be available to Borrower in respect of the Indebtedness, or any setoff
available against Lender to Borrower, whether or not on account of a related
transaction, and Guarantors expressly agree that each Guarantor shall be and
remain liable for any deficiency remaining after foreclosure of the Mortgage or
other security interest securing any Indebtedness, notwithstanding provisions of
applicable law that may prevent Lender from enforcing such deficiency against
Borrower.  The liability of Guarantors shall not be affected or
impaired by any voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar event or proceeding affecting, Borrower or any of its
assets.  Guarantors will not assert against Lender any claim, defense
or setoff available to Guarantors against Borrower.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    
 

    7. Guarantors
also hereby waive:  (i) presentment, demand for payment, notice of
dishonor or nonpayment, and protest of the Indebtedness; (ii) notice of the
acceptance hereof by Lender and of the creation and existence of all
Indebtedness; and (iii) notice of any amendment to or modification of any of the
terms and provisions of the Note, the Loan Documents or any other agreement
evidencing any Indebtedness.  This is a guaranty of payment, not
merely of collection.  Lender shall not be required to first resort
for payment of the indebtedness to Borrower or other persons or business
entities, their properties or estates, or to any collateral, property, liens or
other rights or remedies whatsoever.

    


    8. Whenever,
at any time or from time to time, Guarantors shall make any payment to Lender
hereunder, Guarantors shall notify Lender in writing that such payment is made
under this Guaranty for such purpose.  If any payment applied by
Lender to the 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.

    


    9. No
payment by any Guarantor pursuant to any provision hereof shall entitle any
Guarantor, by subrogation to the rights of Lender or otherwise, to any payment
by Borrower or out of the property of Borrower until all of the Indebtedness
(including interest) and all costs, expenses and attorneys’ fees paid or
incurred by Lender in endeavoring to collect the Indebtedness and enforcing this
Guaranty have been fully paid.  Guarantors will not exercise or
enforce any right or contribution, reimbursement, recourse or subrogation
available to Guarantors as to any Indebtedness, or against any person liable
therefor, or as to any collateral security therefor, unless and until all such
Indebtedness shall have been fully paid and discharged.

    


    10. All
existing and future indebtedness of Borrower to Guarantors is hereby
subordinated to all indebtedness hereby guaranteed and, without the prior
written consent of Lender, which consent may be withheld at Lender’s sole
discretion, shall not be paid or withdrawn in whole or in part nor will
Guarantors accept any payment of or on account of any such indebtedness or as a
withdrawal of capital while this Guaranty is in effect.  Any
withdrawal (in cash or in kind) of any amounts invested in Borrower by any
Guarantor shall be deemed such a withdrawal of capital.  Each payment
by Borrower to any Guarantor in violation of this Guaranty shall be
received by such Guarantor in trust for Lender and shall be paid to Lender
immediately on account of the indebtedness of Borrower to Lender.  No
such payment shall reduce or impair in any manner the liability of Guarantors
under this Guaranty.

    


    11. Guarantors
hereby acknowledge and agree that upon any default by Borrower in connection
with the Loan, Lender may charge or setoff (i) all sums owed to Lender under
this Guaranty, or (ii) any claims of any Guarantor against Lender, against any
and all of any Guarantor’s deposits, credits and accounts (including, without
limitation, all certificates of deposit, debt instruments, securities and any
other deposit, credit or account) with Lender and/or at Lender’s option, to
administratively freeze all such deposits, credits and accounts to facilitate
such charge or setoff.  Such right shall exist whether or not Lender
shall have made any demand hereunder, whether or not said sums, or any part
thereof, or deposits, credits or accounts held for the account of any Guarantor
is or are matured or unmatured, and regardless of the existence or adequacy of
any collateral, guaranty or any other security, right or remedy available to
Lender.  Nothing in this Guaranty shall be deemed a waiver or
prohibition of or restriction on Lender to all rights of banker’s lien, setoff
and counterclaim available pursuant to law.

    


    12. Guarantors
represent, warrant and covenant to and with the Lender that:

    


    
      	
               
      

            	
              (a)

            	
              There
      is no action or proceeding or investigation pending or, to the knowledge
      of any Guarantor, threatened against such Guarantor before any court or
      administrative agency or governmental authority which might result in any
      material adverse change in the business or financial condition of such
      Guarantor or in the property of such
Guarantor;

            


    

    


    
      	
               
      

            	
              (b)

            	
              Each
      Guarantor has filed all federal and state income tax returns which such
      Guarantor has been required to file, and has paid all taxes as shown on
      said returns and on all assessments received by such Guarantor to the
      extent that such taxes have become
due;

            


    

    


    
      	
               
      

            	
              (c)

            	
              Neither
      the execution nor delivery of this Guaranty nor fulfillment of nor
      compliance with the terms and provisions hereof will conflict with, or
      result in a breach of the terms, conditions or provisions of, or
      constitute a default under, or result in the creation of any lien, charge
      or encumbrance upon any property or assets of any Guarantor under any
      agreement or instrument to which any Guarantor is now a party or by which
      any Guarantor may be bound;

            


    

    


    
      	
               
      

            	
              (d)

            	
              This
      Guaranty is a valid and legally binding agreement of Guarantors and
      is enforceable against Guarantors in accordance with its
      terms;

            


    

    


    
      	
               
      

            	
              (e)

            	
              Guarantors
      have either examined the Loan Documents or has had an opportunity to
      examine the Loan Documents and has waived the right to examine
      them;

            


    

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    
 

    
      	
               
      

            	
              (f)

            	
              Guarantors
      have the full power, authority, and legal right to execute and deliver
      this Guaranty;

            


    

    


    
      	
               
      

            	
              (g)

            	
              All
      financial statements and other business and financial information
      previously provided to Lender by or on behalf of each Guarantor is true,
      correct and complete in all material respects, and does not omit to state
      any fact which is necessary to make the statements made therein not
      misleading; and without limitation of the foregoing, all contingent
      liabilities of each Guarantor are shown or noted on such financial
      statements; and

            


    

    


    
      	
               
      

            	
              (h)

            	
              Each
      Guarantor either owns, directly or indirectly, an interest in Borrower (or
      is the spouse of an owner of such an interest), and/or expects to benefit
      from the making of the Loan to
Borrower.

            


    

    


    13. GUARANTORS
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT
MAY BE WAIVED AND THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY A JURY MAY
EXCEED THE TIME AND EXPENSE REQUIRED FOR TRIAL WITHOUT A
JURY.  GUARANTORS, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO
CONSULT) WITH LEGAL COUNSEL OF GUARANTORS’ CHOICE, KNOWINGLY AND VOLUNTARILY,
AND FOR THE MUTUAL BENEFIT OF LENDER AND GUARANTORS, WAIVE ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR
IN ANY WAY RELATED TO, THIS GUARANTY, ANY RELATED AGREEMENTS OR OBLIGATIONS
THEREUNDER.  GUARANTORS HAVE READ ALL OF THIS GUARANTY AND UNDERSTAND
ALL OF THE PROVISIONS OF THIS GUARANTY.  GUARANTORS ALSO AGREE THAT
COMPLIANCE BY LENDER WITH THE EXPRESS PROVISIONS OF THIS GUARANTY SHALL
CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED REASONABLE FOR ALL
PURPOSES.

    


    14. This
Guaranty shall be binding upon the heirs, beneficiaries, legal representatives,
successors and assigns of Guarantors, and shall inure to the benefit of the
successors and assigns of Lender.  This Guaranty contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements, discussions and understandings.

    


    15. Guarantors
(i) consent to the exclusive personal jurisdiction of the state and federal
courts located in the State of North Dakota in connection with any controversy
related in any way to this Guaranty, (ii) waive any argument that venue in such
forums is not convenient, (iii) agree that any litigation initiated by
Guarantors against Lender relating in any way to the Note and/or this Guaranty
shall be venued in either the state or federal courts in the State of North
Dakota, and (iv) agree that this Guaranty shall be governed, construed and
interpreted in accordance with North Dakota law.

    


    16. Each
Guarantor agrees that notwithstanding the existence of other security interests
or liens held by Lender with respect to the Loan, Lender shall have the right to
determine the order in which all or any portion of the collateral or other
security for payment of the Indebtedness shall be subjected to the remedies
provided in the Loan Documents or applicable law.  Lender shall have
the right to determine the order in which any or all portions of the obligations
of Borrower are satisfied from the proceeds realized upon the exercise of such
remedies.  Each Guarantor waives any and all right to require any
marshalling of assets by Lender.

    


    17. This
Guaranty may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but a single instrument.

    


    


    [signature
page to follow]

     

     

     

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    
 

    


    IN WITNESS WHEREOF, this Guaranty has
been executed as of the date and year first above written.

     

    
      
        	LEE
      OIL COMPANY , INC.	 	 	LEE’S
      FOOD MART’S, LLC	 
	 	 	 	 	 
	 	 	 	 	 
	
                /s/

              	 	 	
                /s/
      

              	 
	
                Name

              	 	 	
                Name 

              	 
	
                Title 

              	 	 	
                Title

              	 


      


      
        	MOUND
      TECHNOLOGIES, INC.	 	 	 	 
	 	 	 	 	 
	
                /s/

              	 	 	
                 

              	 
	
                Name

              	 	 	
                 

              	 
	
                Title 

              	 	 	
                 

              	 


      

    

                                               

                  

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	STATE OF	 	)	 
	 	 	) ss	 
	COUNTY OF	 	)	 


    

     

    


    The
foregoing instrument was acknowledged before me this ___ day of ____________,
2008, by __________________, the ________________ of Lee Oil Company, Inc., a
Virginia corporation, on behalf of the corporation.

     

     

    
      
        	
                 

              	
                 

              	 	 
	 	 	Notary
      Public	 


      

       

      
        
          	
                  STATE
      OF

                	 
      	
                  )

                	 
      
	 
      	 
      	
                  )
      ss

                	 
      
	
                  COUNTY
      OF

                	 
      	
                  )

                	 
      


        

        
 

      

    

    The
foregoing instrument was acknowledged before me this ___ day of ____________,
2008, by __________________, the ________________ of Lee’s Food Mart’s, LLC, a
Tennessee limited liability company, on behalf of the company.

     

    
      
        	 
      	 
      	 
      	 
      
	 
      	 
      	
                Notary
      Public

              	 
      


      

       

      
        
          	
                  STATE
      OF

                	 
      	
                  )

                	 
      
	 
      	 
      	
                  )
      ss

                	 
      
	
                  COUNTY
      OF

                	 
      	
                  )

                	 
      


        

      

       

    

    


    The
foregoing instrument was acknowledged before me this ___ day of ____________,
2008, by __________________, the ________________ of Mound Technologies, Inc., a
Nevada corporation, on behalf of the corporation.

     

     

    
      
        	 
      	 
      	 
      	 
      
	 
      	 
      	
                Notary
      Public

              	 
      


      

       

      


       

    

    6