EXHIBIT 8.2.3.
STOCK PLEDGE AGREEMENT
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THIS STOCK PLEDGE AGREEMENT (this "Agreement") is entered into as of
January 21, 2005, among Xxxxxx Beaumont, Inc., a Nevada corporation ("Lender"),
eChex, Inc., a California corporation ("Borrower"), Xxxxxxxxx Xxxxxx, an
individual, Xxxxxx Xxxxxx, an individual and Xxxxxx Xxxxxxxx, an individual
(collectively, "Guarantors"), with reference to the following.
RECITALS
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A. Lender desires to make a loan to Borrower and Borrower desires to
borrow funds from Lender pursuant to that certain Secured Promissory Note, of
even date herewith and including any future loans or promissory notes between
Borrower and Lender (the "Note").
B. Guarantors are the majority shareholders of Borrower and
collectively own 13,000,000 shares of Borrower's common stock which represents
54.3% of Borrower's outstanding shares (the "Stock").
C. Guarantors desire to pledge the Stock as collateral for the Note and
Lender desires to accept such collateral (the "Collateral").
D. Borrower and Lender desire to enter into this Agreement to evidence
the terms under which the Stock will be pledged as collateral for the Note.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises, the
provisions set forth below and other good and valuable consideration, the
parties agree as follows.
3. STOCK PLEDGE. Guarantors hereby grant to Lender a security interest
in, assign, transfer to and pledge with and to Lender, all of their right, title
and interest in and to the Stock, as defined as a Collateral above, to ensure
the payment of the Note in accordance with its terms and Borrower's other
obligations to Lender.
4. WARRANTIES. Guarantors hereby represent, warrant and covenant to
Lender that Guarantors are the owners of the Collateral and has the right to
pledge the Collateral and that the Collateral is free and clear of all liens and
encumbrances and other security interests.
5. ESCROW DELIVERY. Guarantors shall deliver the Collateral along with
executed stock powers, to the law firm of Xxxx & Xxxxx, LLP ("B & C") within
five (5) days of the date of this Agreement. B & C shall maintain possession and
custody of the Collateral until either repayment of the Note and all of
Borrower's obligations to Lender or an event of default under such agreements.
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All parties agree to indemnify and hold B & C harmless for, from, and against
any and all liabilities related to the possession, delivery and release of the
Collateral. Each of the parties acknowledges and consents to the fact that B & C
is acting as counsel for Lender and B & C has no attorney-client relationship or
any type of duty, fiduciary, or otherwise to Guarantors or Borrower.
6. RIGHTS AND POWERS. Lender may, without obligation to do so, exercise
at any time and from time to time one or more of the following rights and powers
with respect to any or all of the Collateral:
(a) Accept in its discretion other property of the undersigned
in exchange for all or part of the Collateral and release Collateral to the
undersigned to the extent necessary to effect such exchange, and in such event
the money, property or securities received in the exchange shall be held by
Lender as substitute security for the Note and all other indebtedness secured
hereunder;
(b) Perform such acts as are necessary to preserve and protect
the Collateral and the rights, powers and remedies granted with respect to such
Collateral by this Agreement; and
(c) Transfer record ownership of the Collateral to Lender or
its nominee and receive, endorse and give receipt for, or collect by legal
proceedings or otherwise, dividends or other distributions made or paid with
respect to the Collateral, provided and only if there exists at the time an
outstanding event of default under this Agreement or the Note.
So long as there exists no event as referenced above, Guarantors may
exercise all shareholder voting rights and be entitled to receive any cash
distribution with respect to the Collateral. Accordingly, until such time as an
even of default occurs under this Agreement, all proxy statements and other
shareholders materials which Lender receives with respect to the Collateral
shall be delivered to Guarantors at the address indicated below.
7. DUTY TO DELIVER. All new, additional or different securities which
may now or hereafter become distributions with respect to the Collateral by
reason of a stock dividend, stock split or reclassification of the capital stock
of Borrower or by reason of a merger, consolidation or other reorganization
affecting the capital structure of Borrower shall, upon receipt by Guarantors,
be promptly delivered to and deposited with Lender as part of the Collateral
hereunder. Such securities shall be accompanied by one or more properly endorsed
stock power assignments.
8. CARE OF COLLATERAL. Lender shall exercise reasonable care in the
custody and preservation of the Collateral, but Lender and Escrow Agent shall
have no obligation to initiate any action with respect to, or otherwise inform
Borrower or Guarantors of any conversion, call, exchange right, preemption
right, subscription right, purchase offer or other right of privilege relating
to or affecting the Collateral. Lender and Escrow Agent shall have no duty to
preserve the rights of Borrower or Guarantors against adverse claims or to
protect the Collateral against the possibility of a decline in market value.
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Lender and Escrow Agent shall not be obligated to take any action with respect
to the Collateral requested by Guarantors unless the request is made in writing
and Lender determines that the requested action will not unreasonably jeopardize
the value of the Collateral as security for the Note and other indebtedness
secured hereunder.
Lender may at any time deliver all or part of the Collateral
to Guarantors, and the receipt thereof by Guarantors shall constitute a complete
and full acquittance for the Collateral so delivered. Lender and Escrow Agent
shall accordingly be discharged from any further liability or responsibility for
the delivered Collateral.
9. PAYMENT OF TAXES AND OTHER CHARGES. Guarantors shall pay, prior to
the delinquency date, all taxes, liens, assessments and other charges against
the Collateral, and in the event of Guarantors' failure to do so, Lender may at
its election pay any or all of such taxes and charges without contesting the
validity or legality thereof. The payments so made shall become part of the
indebtedness secured hereunder and shall bear interest at the same rate as
provided for in the Note.
10. TRANSFER OF COLLATERAL. In connection with the transfer or
assignment of the Note (whether by negotiation, discount or otherwise), Lender
may transfer all or any part of the Collateral, and the transferee shall
thereupon succeed to all the rights, powers and remedies granted Lender
hereunder with respect to the Collateral so transferred. Upon such transfer,
Lender and Escrow Agent shall be fully discharged from all liability and
responsibility for the transferred Collateral.
11. RELEASE OF COLLATERAL.
(a) Within thirty (30) days after repayment by Borrower (or
payment upon acceleration) of the entire unpaid principal balance and all
accrued interest and other amounts due under the Note, Lender shall instruct
Escrow Agent to release and return to Guarantors all shares of common stock and
other Collateral at the time held hereunder.
(b) There shall also be released at the same time any
additional Collateral which may hereafter be pledged and deposited with Lender,
pursuant to the requirements of this Agreement, with respect to the shares of
Lender's stock to be released.
12. EVENTS OF DEFAULT. The occurrence of one or more of the following
events shall constitute an event of default under this Agreement.
(a) Failure of Borrower to pay when due under the Note
principal or accrued interest;
(b) The occurrence of any event of default specified in the
Note or the Loan Agreement;
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(c) The failure of Borrower to perform any material obligation
imposed upon Borrower by reason of this Agreement; or
(d) The breach of any material warranty of Borrower contained
in this Agreement;
Upon the occurrence of any such even of default, Lender may, at its
election, declare the Note and all other indebtedness secured hereunder to
become immediately due and payable and, may exercise any or all of the rights
and remedies granted to a secured party under the provision of the California
Uniform Commercial Code, at Lenders election, (as now or hereafter in effect),
including, without limitation, the power to dispose of the Collateral by public
or private sale or to accept the Collateral in full payment of the Note and all
other indebtedness secured hereunder. Any proceeds realized from the disposition
of the Collateral pursuant to the power of sale hereby granted Lender shall
first be applied to the payment of expenses incurred by Lender in connection
with the disposition, and the balance shall be applied to the payment of the
Note thereafter to any Senior Indebtedness (as defined in the Note) and finally,
to any other indebtedness secured hereunder in such order of application as
Lender shall deem appropriate. Any surplus proceeds shall be paid over to
Borrower. In the event such proceeds prove insufficient to satisfy all
indebtedness secured hereunder, then Borrower be liable for the deficiency.
13. ATTORNEYS' FEES. If any arbitration, litigation, action, suit or
other proceeding is instituted to remedy, prevent or obtain relief from a breach
of this Agreement, in relation to a breach of this Agreement or pertaining to a
declaration of rights under this Agreement, and prevailing party will recover
all such party's attorneys' fees incurred in each and every such action, suit or
other proceeding, including any and all appeals or petitions therefrom. As used
in this Agreement, attorneys' fees will be deemed to be the full and actual
costs of any legal services actually performed in connection with the matters
involved, including those related to any appeal or the enforcement of any
judgment, calculated on the basis of the usual fee charged by attorneys
performing such services, and will not be limited to "reasonable attorneys'
fees" as defined in any statute or rule of court.
14. NOTICES. Any notice to be given hereunder shall be given (except as
otherwise expressly set forth herein) by registered or certified mail, postage
prepaid, by cable, telex or facsimile, or may be delivered by hand or by
messenger and shall be deemed to have been received as follows: if given by
registered or certified mail, five business days after posting; if given by
cable, two business days after dispatch; if given by telex or facsimile, one
business day after dispatch; and if delivered by hand or by messenger and
receipted for by or on behalf of the party to whom the notice is directed, at
the time of such delivery. Any notice shall be sent to the address set forth
below or to such other address as the relevant party may notify to the other.
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If to Borrower or Guarantors: eChex, Inc.
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
If to Lender: Xxxxxx Beaumont, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
15. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original but all of which shall be constituted one and the
same instrument.
16. INTERPRETATION. The language in all parts of this Agreement shall
be in all cases construed simply according to its fair meaning and not strictly
for or against any party. Whenever the context requires, all words used in the
singular shall be construed to have been used in the plural and vice versa and
each gender will include any other gender. The captions of the paragraphs of
this Agreement are for convenience only and shall not affect the construction or
interpretation of any of the provisions herein.
17. MODIFICATIONS, AMENDMENTS AND WAIVERS. No provision of this
Agreement or the documents referred to herein may be altered, amended, canceled,
revoked, or otherwise modified, and no addition to this Agreement may be made,
unless in writing signed by each of the parties. There can be no waiver with
respect to this Agreement of any provision of this Agreement by any party will
be, nor will it be deemed to be, a waiver of the right of any other party to
enforce strict compliance with the provisions hereof.
18. SEVERABILITY. Each provision of this Agreement is intended to be
severable and if any term or provision herein is determined invalid or
unenforceable for any reason, such illegality or invalidity will not affect the
validity of the remainder of this Agreement and, wherever possible, intent will
be given to the invalid or unenforceable provision.
19. MERGER. The terms of this Agreement and the agreements contemplated
hereby are intended by the parties as a final expression of their agreement with
respect to such terms and may not be contradicted by evidence of any prior
agreement or contemporaneous oral agreement, and this agreement and the
agreements referenced herein constitute the complete and exclusive statement of
its terms and no extrinsic evidence whatsoever may be introduced in any judicial
or arbitration proceeding, if any, involving this Agreement.
20. MISCELLANEOUS. The recitals and all exhibits, attachments or other
documents referenced in this Agreement are fully incorporated into this
Agreement by reference. Unless expressly set forth otherwise herein, all
references herein to a "day, month" or "year" will be deemed to be a reference
to a calendar day, month or year, as the case may be. Unless expressly set forth
otherwise herein, all cross-references herein will refer to provisions within
this Agreement, and will not be deemed to be references to the overall
transaction or to any other agreement or documents.
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IN WITNESS WHEREOF, this Agreement is entered into by the parties as of
the date set forth above.
"BORROWER"
eCHEX, Inc.,
a California corporation
By: _______________________________________
Its: President
By: _______________________________________
Its: Secretary
"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
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EXHIBIT "D"
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USE OF PROCEEDS
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EXHIBIT "E"
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STATEMENT OF LIABLITIES
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