EXHIBIT 8.2.4.
GENERAL CONTINUING GUARANTY
---------------------------
FOR CONSIDERATION, THE ADEQUACY AND SUFFICIENCY OF WHICH IS
ACKNOWLEDGED, the undersigned ("Guarantors") unconditionally jointly and
severally guaranty and promise (a) to pay to Xxxxxx Xxxxxxxx, Inc. (the
"Lender") on demand, in lawful United States money, all Obligations to eChex,
Inc. ("Borrower") and (b) to perform all undertakings of Borrower in connection
with the Obligations.
1. GUARANTEED OBLIGATIONS. "Obligations" is used in its most
comprehensive sense and includes any and all debts, liabilities, rental
obligations, and other obligations and liabilities of every kind of Borrower to
Lender, whether made, incurred or created previously, concurrently or in the
future, whether voluntary or involuntary and however arising, whether incurred
directly or acquired by Lender by assignment or succession, whether due or not
due, absolute or contingent, liquidated or unliquidated, legal or equitable,
whether Borrower is liable individually or jointly or with others, whether
incurred before, during or after any bankruptcy, reorganization, insolvency,
receivership or similar proceeding ("Insolvency Proceeding"), and whether
recovery thereof is or becomes barred by a statute of limitations or is or
becomes otherwise unenforceable, together with all expenses of, for and
incidental to collection, including reasonable attorneys' fees.
2. CONTINUING NATURE/REVOCATION/REINSTATEMENT. This Guaranty is in
addition to any other guaranties of the Obligations, is continuing and covers
all Obligations, including those arising under successive transactions which
continue or increase the Obligations from time to time, renew all or part of the
Obligations after they have been satisfied, or create new Obligations.
Revocation by one or more signers of this Guaranty or any other guarantors of
the Obligations shall not (a) affect the obligations under this Guaranty of a
non-revoking Guarantors; (b) apply to Obligations outstanding when Lender
receives written notice of revocation, or to any extensions, renewals,
readvances, modifications, amendments or replacements of such Obligations; or
(c) apply to Obligations, arising after Lender receives such a notice of
revocation, which are created pursuant to a commitment existing at the time of
the revocation, whether or not there exists an unsatisfied condition to such
commitment or Lender has another defense to its performance. All of Lender's
rights pursuant to this Guaranty continue with respect to amounts previously
paid to Lender on account of any Obligations which are thereafter restored or
returned by Lender, whether in an Insolvency Proceeding of Borrower or for any
other reason, all as though such amounts had not been paid to Lender: and
Guarantors' liability under this Guaranty (and all its terms and provisions)
shall be reinstated and revived, notwithstanding any surrender or cancellation
of this Guaranty. Lender, at its sole discretion, may determine whether any
amount paid to it must be restored or returned; provided, however, that if
Lender elects to contest any claim for return or restoration, Guarantors agrees
to indemnify and hold Xxxxxx harmless from and against all costs and expenses,
including reasonable attorneys' fees, expended or incurred by Lender in
connection with any such contest. No payment by Guarantors shall reduce the
Guarantied Liability Amount hereunder unless, at or prior to the time of that
payment, Xxxxxx receives Guarantors' written notice to that effect. If any
Insolvency Proceeding is commenced by or against Borrower or Guarantors, at
Xxxxxx's election, Guarantors' obligations under this Guaranty shall immediately
and without notice or demand become due and payable, whether or not then
otherwise due and payable.
1
3. AUTHORIZATION. Guarantors authorizes Lender, without notice and
without affecting Guarantors' liability under this Guaranty, from time to time,
whether before or after any revocation of this Guaranty, to (a) renew,
compromise, extend, accelerate, release, subordinate, waive, amend and restate,
or otherwise amend or change the interest rate, time or place for payments or
any other terms of all or any part of the Obligations; (b) accept delinquent or
partial payments on the Obligations; (c) take or not take security or other
credit support for this Guaranty or for all or any part of the Obligations, and
exchange, enforce, waive, release, subordinate, fail to enforce or perfect,
sell, or otherwise dispose of any such security or credit support; (d) apply
proceeds of any such security or credit support and direct the order or manner
of its sale or enforcement as Lender, at its sole discretion, may determine; and
(e) release or substitute Borrower or any guarantor or other person or entity
liable on the Obligations.
4. WAIVERS. To the maximum extent permitted by law, Guarantors waives
(a) all rights to require Lender to proceed against Borrower or proceed against,
enforce or exhaust any security for the Obligations or to xxxxxxxx assets or to
pursue any other remedy in Xxxxxx's power whatsoever; (b) all defenses arising
by reason of any disability or other defense of Borrower, the cessation for any
reason of the liability of Borrower, any defense that any other indemnity,
guaranty or security was to be obtained, any claim that Xxxxxx has made
Guarantors' obligations more burdensome or more burdensome than Borrower's
obligations, and the use of any proceeds of the Obligations other than as
intended or understood by Xxxxxx or Guarantors; (c) all presentments, demands
for performance, notices of nonperformance, protests, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty and of the existence
or creation of new or additional Obligations, and all other notices or demands
to which Guarantors might otherwise be entitled; (d) all conditions precedent to
the effectiveness of this Guaranty; (e) all rights to file a claim in Connection
with the Obligations in an Insolvency Proceeding filed by or against Borrower;
(f) all rights to require Lender to enforce any of its remedies; and (g) until
the Obligations are satisfied or fully paid, with such payment not subject to
return, (i) all rights of subrogation, indemnification or reimbursement, (ii)
all rights of recourse to tiny assets or property of Borrower, or to any
collateral or credit support for the Obligations, (iii) all rights to
participate in or benefit from any security or credit support Lender may have or
acquire, and (iv) all rights, remedies and defenses Guarantors may have or
acquire against Borrower. Lender may foreclose, either by judicial foreclosure
or by exercise of power of sale, any deed of trust which secures any
Obligations, and even though such foreclosure or exercise may destroy or
diminish Guarantors' rights against Borrower, Guarantors shall remain liable for
any part of the Obligations remaining unpaid after foreclosure.
5. GUARANTORS TO KEEP INFORMED. Guarantors warrants having established
with Borrower adequate means of obtaining, on an ongoing basis, such information
as Guarantors may require concerning all matters bearing on the risk of
nonpayment or nonperformance of the Obligations. Guarantors assume sole,
continuing responsibility for obtaining such information from sources other than
from Lender. Lender has no duty to provide any information to Guarantors until
Lender receives Guarantors' written request or specific information in Lender's
possession and Borrower has authorized Lender to disclose such information to
Guarantors.
2
6. SUBORDINATION. All obligations of Borrower to Guarantors which
presently or in the future may exist ("Guarantors' Claims") are hereby
subordinated to the Obligations. At Lender's request. Guarantors' Claims will be
enforced and performance thereon received by Guarantors only as a trustee for
Lender, and Guarantors will promptly pay over to Lender all proceeds recovered
for application to the Obligations without reducing or affecting Guarantors'
liability under other provisions of this Guaranty.
7. SECURITY. To secure Guarantors' performance under this Guaranty,
other than for payment of Obligations which are subject to the disclosure
requirements of the United States Truth in Lending Act, Guarantors grants Lender
a security interest in all of Guarantors' stock in eChex, Inc.
8. AUTHORIZATION. If Borrower is a corporation, partnership or other
entity, Lender need not inquire into or verify the powers of Borrower or
authority of those acting or purporting to act on behalf of Borrower, and this
Guaranty shall be enforceable with respect to any Obligations Lender grants or
creates in reliance on the purported exercise of those powers or authority.
9. ASSIGNMENTS. Without notice to Guarantors, Lender may assign the
Obligations and this Guaranty in whole or in part, and may disclose to any
prospective or actual purchaser of all or part of the Obligations any and all
information Lender has or acquires concerning Guarantors, this Guaranty and any
security for this Guaranty.
10. COUNSEL FEES AND COSTS. The prevailing party shall be entitled to
attorneys' fees (including a reasonable allocation for Xxxxxx's internal
counsel) and all other costs and expenses which it may incur in connection with
the enforcement or preservation of its rights under, or defense of, this
Guaranty or in connection with any other dispute or proceeding relating to this
Guaranty whether or not incurred in any Insolvency Proceeding. arbitration,
litigation or other proceeding.
11. MARRIED GUARANTORS. By executing this Guaranty, a Guarantor who is
married agrees that recourse may be had against his or her separate and
community property for all his or her obligations under this Guaranty.
12. MULTIPLE GUARANTORS/BORROWERS. When there is more than one Borrower
named herein or when this Guaranty is executed by more than one Guarantor, then
the words "Borrower" and "Guarantor(s)", respectively, shall mean all and any
one or more of them, and their respective successors and assigns, including
debtors-in-possession and bankruptcy trustees; words used herein in the singular
shall be considered to have been used in the plural where the context and
construction so requires in order to refer to more than one Borrower or
Guarantor, as the case may be.
3
13. PROVISIONAL REMEDIES, SELF-HELP, AND FORECLOSURE. No provision of
or the exercise of any rights under this Guaranty shall limit the right of any
party to exercise self-help remedies such as setoff, to foreclose against any
real or personal property collateral, or to obtain provisional or ancillary
remedies such as injunctive relief or the appointment of a receiver from a court
having jurisdiction before, during or after the pendency of any arbitration. At
Lender's option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of trust or
mortgage, or by judicial foreclosure.
14. INTEGRATION/SEVERABILITY/AMENDMENTS. This Guaranty is intended by
Guarantor and Xxxxxx as the complete, final expression of their agreement
concerning its subject matter. It supersedes all prior understandings or
agreements with respect thereto and may be changed only by a writing signed by
Guarantors and Xxxxxx. No course of dealing, or parole or extrinsic evidence
shall be used to modify or supplement the express terms of this Guaranty. If any
provision of this Guaranty is found to be illegal, invalid or unenforceable,
that provision shall be enforced to the maximum extent permitted, but if fully
unenforceable, that provision shall be severable, and this Guaranty shall be
construed as if that provision had never been a part of this Guaranty, and the
remaining provisions shall continue in full force and effect.
15. JOINT AND SEVERAL OBLIGATIONS. If more than one Guarantor signs
this Guaranty, the obligations of each Guarantor under this Guaranty are joint
and several, and independent of the Obligations and of the obligations of any
other person or entity. A separate action or actions may be brought and
prosecuted against any one or more guarantors, whether action is brought against
Borrower or other guarantors of the Obligations, and whether Borrower or others
are joined in any such action.
16. NOTICE. Any notice, including notice of revocation, given by any
party under this Guaranty shall be effective only upon its receipt by the other
party and only if (a) given in writing and (b) personally delivered or sent by
United States mail, postage prepaid, and addressed to Lender or Guarantors at
their respective addresses for notices indicated below. Guarantors and Lender
may change the place to which notices, requests, and other communications are to
be sent to them by giving written notice of that change to the other.
17. CALIFORNIA LAW TO APPLY. Subject to paragraph 14 of this Guaranty,
this Guaranty shall be governed by and construed according to the laws of
California, and Guarantors submits to the non-exclusive jurisdiction of the
state or federal courts in California.
4
Executed on January 21, 2005
GUARANTORS ACKNOWLEDGE HAVING RECEIVED A COPY OF THIS GUARANTY AND
HAVING MADE EACH WAIVER CONTAINED IN THIS GUARANTY WITH FULL KNOWLEDGE OF ITS
CONSEQUENCES.
"LENDER"
XXXXXX BEAUMONT, INC.,
a Nevada corporation
By: _______________________________________
Xxxxx Xxxxxx, Chief Executive Officer
"GUARANTORS"
____________________________________________
XXXXXXXXX XXXXXX, an individual
____________________________________________
XXXXXX XXXXXX, an individual
____________________________________________
XXXXXX XXXXXXXX, an individual
5
