GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of June 24, 1998, is
among THE XXXXX COMPANY, an Oklahoma corporation ("Guarantor"),
and CRC XX. 0 XXX, XXX XX. 0 XXX, XXX XX. 0 LLC, CRC XX. 0 XXX,
XXX XX. 0 XXX, XXX XXX XX. 0 LLC, each of which is a Delaware
limited liability company (individually, a "Company" and
collectively, the "Companies").
Recitals
A. Each of the Companies has entered into a Coal Fines
Extraction and Beneficiation Agreement dated as of June 24, 1998
(the "Beneficiation Agreement") with Xxxxx Technologies, Inc.
("Xxxxx"), pursuant to which Xxxxx will dredge, extract,
beneficiate, and deliver coal fines.
B. Each of the Companies has entered into an Operation
and Maintenance Agreement dated as of June 24, 1998 (the "O&M
Agreement") with Xxxxx, pursuant to which Xxxxx will operate,
manage, and maintain a coal briquetting facility that will
produce briquettes from the coal fines delivered under the
Company's Beneficiation Agreement.
C. For convenience, the parties entered into a single
document as the Beneficiation Agreement, which is to be construed
and enforced as six separate Beneficiation Agreements, each of
which is between Xxxxx and a different Company; and the parties
entered into a single document as the O&M Agreement, which is to
be construed and enforced as six separate O&M Agreements, each of
which is between Xxxxx and a different Company.
X. Xxxxx is a wholly-owned subsidiary of Guarantor.
F. The Companies have requested that Guarantor
guarantee the obligations of Xxxxx to each of the Companies under
the Beneficiation Agreement and under the O&M Agreement, and
Guarantor is willing to do so upon the terms and conditions of
this Guaranty Agreement.
Agreement
1. In consideration of the foregoing and for value
received, Guarantor hereby unconditionally guarantees the prompt
performance of all obligations of Xxxxx to each of the Companies
under the Beneficiation Agreement and under the O&M Agreement,
provided, that Guarantor shall have no liability to any Company
hereunder with respect to the non-performance by Xxxxx of its
obligations under, and/or any breach of any representation,
warranty, covenant or agreement provided in, the Beneficiation
Agreement and the O&M Agreement except to the extent such non-
performance arises from or is attributable to (i) Xxxxx'x xxxxx
negligence or willful misconduct, (ii) Xxxxx'x breach of any of
the provisions of the Beneficiation Agreement or the O&M
Agreement relating to the receipt, remittance, handling or
disbursement of funds, or (iii) Xxxxx'x failure to refund to any
Company the amount of any overpayment by such Company to Xxxxx
under the Beneficiation Agreement or the O&M Agreement, as the
case may be.
2. Guarantor hereby expressly waives (a) notice of the
acceptance of this guaranty, (b) notice of the existence or
creation of any of the obligations guaranteed hereby, and (c) all
presentments, demands for performance, notices of non-
performance, protests, and all other notices whatsoever.
3. No delay or neglect on the part of a Company in the
exercise of any right or remedy existing under law or by virtue
of this Guaranty Agreement shall operate as a waiver thereof, but
such rights and remedies shall continue in full force and effect
until specifically waived or released by an instrument executed
by the Company. No single or partial exercise by a Company of
any right or remedy shall preclude the further exercise thereof
or the exercise of any other right or remedy.
4. The respective obligations of the Companies under
the Beneficiation Agreement and the O&M Agreement are several,
and nothing in this Guaranty Agreement shall be deemed to make
those obligations joint and several.
5. All notices and other required communications
hereunder shall be in writing, addressed as follows:
If to a Company (specifying the
applicable Company):
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
If to Guarantor:
The Xxxxx Company
0000 Xxxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxx, Xx.
Facsimile Number: (000) 000-0000
Notices shall be given (a) by personal delivery to the other
party, (b) by facsimile, with confirmation sent by registered or
certified mail, return receipt requested, or (c) by registered or
certified mail, return receipt requested. All notices shall be
effective and deemed delivered (i) if by personal delivery, on
the date of delivery if during business hours, otherwise the next
business day, (ii) if by facsimile, on the date the facsimile is
received if received during business hours, otherwise the next
business day and (iii) if solely by mail, upon receipt by the
addressee. A party may change its address by notice to the other
party.
6. Any provision of this Guaranty Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render the provision
unenforceable in any other jurisdiction.
7. This Guaranty Agreement shall in all respects be
governed by and construed in accordance with the laws of the
State of New York, without regard to its choice of law rules, and
Guarantor chooses New York law to govern this Guaranty Agreement
pursuant to N.Y. Gen. Oblig. Law Section 5-14-1 (Consol. 1995).
8. For convenience, the parties desire that all the
Companies be parties to this Guaranty Agreement, but that this
Agreement be construed and enforced as six separate agreements,
each of which shall be between Guarantor and a different Company.
References to a "Company" or "the Companies" shall be deemed to
refer to the applicable Company, and references to other defined
terms shall be deemed to refer to such terms insofar as they
relate to the applicable Company, as the context requires.
9. This Guaranty Agreement shall be a continuing,
absolute, and unconditional guaranty and shall continue in full
force and effect and be binding upon and inure to the benefit of
the parties hereto and their successors and assigns.
10. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original
instrument, but all of which together shall constitute one and
the same instrument.
EXECUTED to be effective as set forth in this
Agreement.
THE XXXXX COMPANY
By: XXXX XXX, XX.
Name: Xxxx Xxx, Xx.
Title: President
CRC XX. 0 XXX
XXX XX. 0 XXX
XXX XX. 0 LLC
CRC XX. 0 XXX
XXX XX. 0 XXX
XXX XX. 0 LLC
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
