Exhibit 10.1
GUARANTY
THIS GUARANTY (the “ Guaranty ”) is made as
of this __ day of December, 2008 by AMERICA WEST RESOURCES,
INC. , a Nevada Corporation, having a place of business at 57
West 200 South, Suite 400, Salt Lake City, Utah 84101 (the “
Guarantor ”), in favor of the OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF HIDDEN SPLENDOR RESOURCES, INC., AND
MID-STATE SERVICES, INC ., appointed by the United States
Trustee in the below-referenced bankruptcy case on October 30, 2007
as representative of the General Unsecured Creditors (the “
Committee ”) and the UNITED STATES INTERNAL REVENUE
SERVICE (the “ IRS ”).
RECITALS
A.
Reference is hereby made to the Joint-Consolidated Hidden Splendor
Resources, Inc. / Mid-State Services, Inc. Plan filed on November
18, 2008 in the United States Bankruptcy Court for the District of
Nevada (the “ Court ”) at Jointly Administered
Case No. BK-N-07-51378-GWZ, as amended (the “ Plan
”). For purposes of this Guaranty, the capitalized
terms used herein without definition shall have the respective
meanings set forth for such terms in the Plan, a copy of which is
attached hereto and incorporated herein as Exhibit A
.
B.
Guarantor is the owner of all of the issued and outstanding stock
of Hidden Splendor Resources, Inc., a Nevada corporation and debtor
in the above-referenced bankruptcy case (“ Hidden
Splendor ”) and the parent company of Hidden
Splendor.
C.
Pursuant to Article V(A)(1)(B) of the Plan, after the initial
distribution under the Plan, Guarantor has agreed to guarantee (i)
the Plan payment obligations to General Unsecured Creditors up to
the next twenty-five percent (25%) of the collective amount of
allowed Class 7 Claims, and (ii) the Plan payment obligations to
the IRS up to the next twenty-five percent (25%) of its Allowed
Priority Claim (pre-petition).
Section 1.01
The Guaranty.
In consideration of the
IRS’s consent to the terms of the Plan and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Guarantor, in accordance with the Plan, hereby
unconditionally and irrevocably guarantees: (i) the payment, after
the ten percent (10%) initial distribution is made to the holders
of Allowed Class 7 Claims under the Plan on the Distribution Date,
of the next twenty-five percent (25%) of the collective amount of
Allowed Class 7 Claims; and (ii) the payment, after the ten percent
(10%) initial distribution is made to the IRS under the Plan on the
Distribution Date, of the next twenty-five percent (25%) of the
IRS’s prepetition Allowed Priority Claim (such guaranteed
obligations being hereinafter referred to as the “
Liabilities ”).
Section 1.02
Liabilities
Guaranteed. In
the event Hidden Splendor fails to timely pay any part or all of
the Liabilities guaranteed when due in strict accordance with the
Plan, Guarantor, upon demand of the Committee and/or the IRS, shall
pay the Liabilities in the same manner as if they constituted the
direct and primary obligation of Guarantor.
ARTICLE II
- WAIVERS AND CONSENTS
Section 2.01 General Waivers of Guarantor.
Guarantor hereby waives
each of the following:
(i) any requirement that the Committee and/or the
IRS institute suit or other action, or otherwise exhaust their
rights or remedies against Hidden Splendor or against any other
person, guarantor, or under any security agreement or other
collateral guaranteeing or securing all or any part of the
Liabilities, prior to enforcing any rights it has
under this Guaranty or otherwise against Guarantor;
(ii) any defenses arising out of the absence,
impairment or loss of any right of reimbursement or subrogation or
other right or remedy of Guarantor against Hidden Splendor or
against any security resulting from the exercise or election of any
remedy or remedies by the Committee and/or the IRS, and any defense
arising by reason of any disability or other defense of Hidden
Splendor or by reason of the cessation, from any cause other than
full payment of the Liabilities in strict accordance with the Plan,
of the liability of Hidden Splendor;
(iii) any defense based upon failure by any entity to
disclose to Guarantor any information concerning Hidden
Splendor’s financial condition or any other circumstances
bearing on Hidden Splendor’s ability to pay all sums payable
under the Plan;
(iv) any defense based upon any legal disability or
other defense of Hidden Splendor, or by reason of the cessation or
limitation of the liability of Hidden Splendor from any cause other
than full payment of the Liabilities in strict accordance with the
Plan;
(v) any defense based upon any lack of authority of
the officers, directors, partners or agents acting or purporting to
act on behalf of Hidden Splendor or any principal of Hidden
Splendor or any defect in the formation of Hidden Splendor or any
principal of Hidden Splendor;
(vi) any defense based upon the
modification of the Plan, default on the Plan, the filing of a
petition under Title 11 of the United States Code by or against the
reorganized Debtor, commencement of a case under Title 11 of the
United States Code by or against the reorganized Debtor, the
appointment of a receiver, conservator or similar court officer, an
assignment for the benefit of creditors, or any other insolvency
proceeding ;
(vii) any defense based upon the failure to take any
action permitted hereunder, or the waiver of any conditions
hereinabove set forth by the Committee and/or the IRS or any person
acting on behalf of the Committee and/or the IRS; and
(viii) the rights, benefits and defenses arising
from alteration, impairment or suspension in any
respect or by any means of any of Hidden Splendor’s
obligations under the Plan or any of the Committee’s and/or
the IRS’ rights or remedies under the Plan without
Guarantor’s prior consent.
Section 2.02
Consent to
Jurisdiction. Guarantor hereby expressly agrees
that any legal action or proceeding with respect to this Guaranty
may be brought in the United States Bankruptcy Court for the
District of Nevada, and, by execution and delivery of this
Guaranty, Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction to the aforesaid court. Guarantor hereby
further irrevocably waives any claim that such court lacks personal
jurisdiction over the Guarantor, and agrees not to plead or claim,
in any legal action or proceeding with respect to this Guaranty or
the Plan brought in the aforementioned court, that such court lacks
personal jurisdiction over the Guarantor. Guarantor
further irrevocably consents to the service of process out of the
aforem
