UNCONDITIONAL GUARANTY
For and in consideration of Xxxxx Xxxxxx and Yeffet Security Consultants,
Inc. ("Claimants") entry into Amendment No. 1 to the Confidential Settlement
Agreement and Mutual Release, dated as of January 30, 2007 (the "Amendment")
with HiEnergy Technologies, Inc. (the "Company"), the undersigned, Xxxxxxx X.
Xxxxx, an adult individual residing in the District of Columbia at the address
set forth on the signature page hereof (the "Guarantor"), hereby unconditionally
and irrevocably guarantees the prompt and complete payment of the Installment
Payments (as defined in the Amendment) owed by the Company to Claimants pursuant
to the Amendment (the "Obligations"). For sake of clarification, the Claimants
agree and understand that the Obligations guaranteed by this Guarantee encompass
only the payment of the five Installment Payments of $20,000 each as set forth
in the Amendment and do not extend to any other requirements or obligations of
the Company. The Guarantor hereby expressly agrees with and covenants to the
Claimants as follows:
1. If Company does not perform the Obligations, or any of them, the Guarantor
shall, within five (5) business days following written notice of such
failure from Claimants to the address or fax number set forth on the
signature page hereof, pay and otherwise perform all of the Obligations.
2. The obligations of the Guarantor hereunder are independent of and distinct
from the Obligations of the Company, and a separate action or actions may
be brought and prosecuted against the Guarantor whether action is
previously or simultaneously brought against the Company, and/or whether
the Company may thereafter be joined in any such action or actions. The
Guarantor waives the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof, to the extent permitted by
law.
3. Guarantor waives any right to require the Claimants to (a) proceed against
Company or any other person; (b) proceed against or exhaust any security
held from Company; or (c) pursue any other remedy in the Claimants' power
whatsoever. Claimants may, at their election, exercise or decline or fail
to exercise any right or remedy they may have against Company or any
security held by the Claimants including without limitation the right to
foreclose upon any such security by judicial or nonjudicial sale, without
affecting or impairing in any way the liability of Guarantor hereunder.
Guarantor waives any defense arising by reason of any disability or other
defense of Company or by reason of the cessation from any cause whatsoever
of the liability of the Company, and waives any and all other defenses of
any kind or nature now or hereafter available to a surety. Guarantor
waives any setoff, defense or counterclaim that Company may have against
Claimants. Guarantor waives any defense arising out of the absence,
impairment or loss of any right of reimbursement or subrogation or any
other rights against the Company. Guarantor waives all rights to
participate in any security now or hereafter held by the Claimants.
Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional indebtedness. Guarantor assumes the
responsibility for being and keeping itself informed of the financial
condition of Company and of all other circumstances bearing upon the risk
of nonpayment of any indebtedness or nonperformance of the Obligations,
and agrees that Claimants shall have no duty to advise Guarantor of
information known to Claimants regarding such condition or any such
circumstances
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4. If Company becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar relief
under any present or future provision of the United States Bankruptcy
Code, or if such a petition is filed against Company, and in any such
proceeding some or all of the Obligations are terminated, rejected,
modified or abrogated, or if the Obligations are otherwise avoided for any
reason, Guarantor agrees that Guarantor's liability hereunder shall not
thereby be affected or modified and such liability shall continue in full
force and effect as if no such action or proceeding had occurred. This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if any payment must be returned by Claimants upon the insolvency,
bankruptcy or reorganization of Company, Guarantor, any other guarantor or
surety, or otherwise, as though such payment had not been made.
5. No terms or provisions of this Guaranty may be changed, waived, revoked or
amended without the prior written consent of the parties. Should any
provision of this Guaranty be determined by a court of competent
jurisdiction to be unenforceable, all of the other provisions shall remain
effective. This Guaranty, together with any agreements (including without
limitation any security agreements or any pledge agreements) executed in
connection with this Guaranty, embodies the entire agreement among the
parties hereto with respect to the matters set forth herein, and
supersedes all prior agreements among the parties with respect to the
matters set forth herein. No course of prior dealing among the parties, no
usage of trade, and no parole or extrinsic evidence of any nature shall be
used to supplement, modify or vary any of the terms hereof. There are no
conditions to the full effectiveness of this Guaranty.
6. Guarantor represents and warrants to the Claimants that (i) Guarantor is
an adult individual, with full power and capacity to enter into, execute
and perform this Guaranty, (ii) execution, delivery and performance of
this Guaranty do not conflict with or result in a breach of or constitute
a default under any documents or agreements to which he is party or by
which he is bound, and (iii) this Guaranty constitutes a valid and binding
obligation, enforceable against Guarantor in accordance with its terms.
7. GUARANTOR WAIVES ANY RIGHT 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 THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. This Guaranty
shall be governed by and construed in accordance with the internal laws of
the State of New Jersey applicable to the performance and enforcement of
contracts made within such state, without giving effect to the law of
conflicts of laws applied thereby. In the event that the Claimants shall
be forced to bring any legal action to enforce, protect or defend
Claimants' rights under this Guarantee, then the Claimants shall be
entitled to reimbursement from the Guarantor of all reasonable fees, costs
and other expenses (including, without limitation, the reasonable expenses
of counsel ) in such action.
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
as of this 30th day of January 2007.
XXXXXXX X. XXXXX
/S/ XXXXXXX X. XXXXX
----------------------------------------
Address for Notice:
Xxxxxxx X. Xxxxx
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 2007
Agreed:
/S/ XXXXX XXXXXX
---------------------------
Xxxxx Xxxxxx
Yeffet Security Consultants, Inc.
By: /S/ XXXXX XXXXXX
------------------------
Xxxxx Xxxxxx
President
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