GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty") is given by XXXX XXXX HOLDINGS
COMPANY LIMITED, a Hong Kong corporation (the "Guarantor"), for the benefit of
the purchasers ("Investors") of the shares of Series B Convertible Preferred
Stock to be offered by eVISION XXX.XXX, INC., a Colorado corporation ("Issuer"),
pursuant to a confidential offering memorandum. In consideration of the
substantial direct and indirect benefits, the Guarantor, as a major beneficial
shareholder of the Issuer, will derive therefrom, the Guarantor gives the
following guaranty to the Investors.
Section 1. The Guaranty. The Guarantor hereby UNCONDITIONALLY AND
IRREVOCABLY GUARANTEES the full and punctual payment by the Issuer to Investors
when due of all cash dividends on the Series B Convertible Preferred Stock
through October 31, 2003. As used in this Guaranty, the term "Obligations" shall
refer to the obligations of payment, which the Guarantor has undertaken and
assumed pursuant to this Guaranty.
Section 2. Nature of the Guaranty. This Guaranty: (a) is (i) irrevocable;
(ii) absolute and unconditional; (iii) direct, immediate and primary; and (iv)
one of payment and not just collection; and (b) makes the Guarantor a surety to
Investors and primarily liable with the Issuer.
Section 3. Investors Need Not Pursue Other Rights Before Enforcing
Guaranty. Investors shall be under no obligation to pursue their rights against
the Issuer or against any other guarantor or any other person that is now or
hereafter liable upon or in connection with any of the obligations of the
Guarantor or the Issuer to Investors.
Section 4. Waivers by the Guarantor. The Guarantor hereby waives any and
all notices whatsoever with respect to this Guaranty or with respect to any of
the obligations of the Issuer to Investors, including, but not limited to,
notice of: (i) Investors' acceptance hereof or Investors' intention to act, or
Investors' action, in reliance hereon; (ii) the present existence or future
incurring of any of the Obligations of the Issuer to Investors or any terms or
amounts thereof or any change therein; and (iii) any default by the Issuer.
Section 5. Unenforceability of Obligations of the Issuer. This Guaranty
shall be valid, binding, and enforceable even if the obligations of the Issuer
to Investors, which are guaranteed hereby, are now or hereafter become invalid
or unenforceable for any reason.
Section 6. No Conditions Precedent. This Guaranty shall be effective and
enforceable immediately upon its execution. The Guarantor acknowledges that no
unsatisfied conditions precedent to the effectiveness and enforceability of this
Guaranty exist as of the date of its execution and that the effectiveness and
enforceability of this Guaranty are not in any way conditioned or contingent
upon any event, occurrence, or happening, or upon any condition existing or
coming into existence either before or after the execution of this Guaranty.
Section 7. Obligations Unconditional. The payment and performance of the
Obligations shall be the absolute and unconditional duty and obligation of the
Guarantor, and shall be independent of any defense or any rights of set-off,
recoupment or counterclaim which the Guarantor might otherwise have against
Investors, and the Guarantor shall pay and perform the Obligations, free of any
deductions and without abatement, diminution or set-off; and until such time as
the Obligations have been fully paid and performed, the Guarantor: (a) shall not
suspend or discontinue any payments provided for in this Guaranty; (b) shall
perform and observe all of the covenants and agreements contained in this
Guaranty; and (c) shall not terminate or attempt to terminate this Guaranty for
any reason. No delay by Investors in making demand on the Guarantor for
satisfaction of the Obligations shall prejudice or in any way impair Investors'
ability to enforce this Guaranty.
Section 8. Defenses Against Issuer. The Guarantor waives any right to
assert against Investors any defense (whether legal or equitable), claim,
counterclaim, or right of set-off or recoupment which the Guarantor may now or
hereafter have against the Issuer.
Section 9. Expenses of Collection and Attorneys' Fees. The Guarantor shall
pay all reasonable costs and expenses incurred by Investors in collecting sums
due under this Guaranty, including, without limitation, the costs of any lien,
judgment or other record searches, appraisals, travel expenses and the like.
Section 10. Enforcement During Bankruptcy. Enforcement of this Guaranty
shall not be stayed or in any way delayed, as a result of the filing of a
petition under the United States Bankruptcy Code, as amended, or other similar
statutory scheme, by or against the Issuer. Should Investors be required to
obtain an order of the United States Bankruptcy Court or other court of
competent jurisdiction to begin enforcement of this Guaranty after the filing of
a petition under the United States Bankruptcy Code, as amended, or other similar
statutory scheme, by or against the Issuer, the Guarantor hereby consents to
this relief and agrees to file or cause to be filed all appropriate pleadings to
evidence and effectuate such consent and to enable Investors to obtain the
relief requested.
Section 11. Remedies Cumulative. All of Investors' rights and remedies
shall be cumulative and any failure of Investors to exercise any right hereunder
shall not be construed as a waiver of the right to exercise the same or any
other right at any time, and from time to time, thereafter.
Section 12. Discharge of Guaranty. This Guaranty shall not be discharged
and the Guarantor shall not be released from liability until all Obligations
have been satisfied in full and the satisfaction of the Obligations is not
subject to challenge or contest. If all or any portion of the Obligations are
satisfied and Investors are required for any reason to pay to any person the
sums used to satisfy the Obligations, the Obligations shall remain in effect and
enforceable to the extent thereof.
Section 13. Termination. This Guaranty may be terminated only in writing by
the Investors.
Section 14. Choice of Law. The laws of the State of Colorado (excluding,
however, conflict of law principles) shall govern and be applied to determine
all issues relating to this Guaranty and the rights and obligations of the
Guarantor, including the validity, construction, interpretation, and
enforceability of this Guaranty and its various provisions and the consequences
and legal effect of all transactions and events which resulted in the issuance
of this Guaranty or which occurred or were to occur as a direct or indirect
result of this Guaranty having been executed.
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Section 15. Consent to Jurisdiction; Agreement as to Venue. The Guarantor
irrevocably consents to the non-exclusive jurisdiction of the federal and state
courts located in the State of Colorado. The Guarantor agrees that venue shall
be proper in any such courts.
Section 16. Invalidity of Any Part. If any provision or part of any
provision of this Guaranty shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions or the remaining part of any effective
provisions of this Guaranty, and this Guaranty shall be construed as if such
invalid, illegal, or unenforceable provision or part thereof had never been
contained herein, but only to the extent of its invalidity, illegality, or
unenforceability.
Section 17. Amendment or Waiver. This Guaranty may be amended only by a
writing. No waiver by any of the Investors of any of the provisions of the
Guaranty or any of the rights or remedies of Investors with respect hereto shall
be effective or enforceable unless in writing.
Section 18. Binding Nature. This Guaranty shall inure to the benefit of and
be enforceable by Investors and their successors and assigns, including any
person to whom any of the Investors may transfer their Series B Preferred Stock,
and shall be binding upon and enforceable against the Guarantor and the
Guarantor's successors and permitted assigns.
Section 19. Assignability. Without any notice to Guarantor, this Guaranty
shall automatically be assigned whenever an Investor transfers Series B
Convertible Preferred Stock. Upon such assignment, the person who is assigned
the Series B Convertible Preferred Stock shall be deemed to be an Investor as
such term is defined in this Guaranty and shall have all of the rights and
obligations as an Investor.
Section 20. Notices. Any notice or demand required or permitted by or in
connection with this Guaranty, without implying the obligation to provide any
notice or demand, shall be in writing at the address set forth below or to such
other address as may be hereafter specified by written notice to Investors by
the Guarantor. Any such notice or demand shall be deemed to be effective as of
the date of hand delivery or facsimile transmission, one (1) day dispatch if
sent by overnight delivery, express mail or federal express, or five (5) days
after mailing if sent by first class mail with postage prepaid.
Section 21. Final Agreement. This Guaranty contains the final and entire
agreement of the Guarantor with respect to the guaranty by the Guarantor of the
Issuer's obligations to Investors. There are no separate oral or written
understanding between Investors and the Guarantor with respect thereto.
Section 22. Tense, Gender, Defined Terms, Captions. As used herein, the
plural shall refer to and include the singular, and the singular, the plural,
and the use of any gender shall include and refer to any other gender. All
captions are for the purpose of convenience only.
Section 23. Seal and Effective Date. This Guaranty is an instrument
executed under seal and is effective and enforceable as of the date set forth
below, independent of the date of actual execution.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed, under seal, by one of its duly authorized officers as of the 5th day
of May, 1999.
WITNESS XXXX XXXX HOLDINGS COMPANY LIMITED
/s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxx
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Xxx X. Xxxx, Managing Director
Address:
Xxxx Xxxx Holdings Company Limited
10th Floor, Lippo Protective Tower
000 -000 Xxxxxxxxxx Xxxx
Xxx Xxxx, Xxxx Xxxx
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