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EXHIBIT 10.1
GUARANTY
FOR VALUE RECEIVED, and in order to induce Natural Fuels Corporation
("Buyer"), to consummate the transactions contemplated by the Asset Purchase
Agreement, dated as of June 27, 1997 (including any amendments thereto, the
"Agreement"), between Buyer and Xxxxxx Fuel Systems, Inc., DVCO Fuel Systems,
Inc. and Xxxxxx CNG Systems, Inc. (collectively, "Seller"), Xxxxxx Natural Gas
Services, Inc. ("Guarantor"), agrees as follows:
1. Definitions. Capitalized terms used herein, unless otherwise
defined herein, will have the meanings ascribed to them in the
Agreement.
2. Representations and Warranties of Guarantor. Guarantor represents
and warrants to Buyer as follows:
a. Guarantor is a corporation duly formed, validly existing and in
good standing under the laws of the State of Delaware, and has
all requisite power and authority to own and operate its
properties and to carry on its business as currently conducted.
b. The execution and delivery by Guarantor of this Guaranty and
the performance by Guarantor of its obligations under this
Guaranty:
i. Are within Guarantor's corporate power and authority;
ii. Have been duly authorized by all necessary corporate
action of Guarantor;
iii. Have received all necessary governmental approval, if any
is required; and
iv. Do not and will not contravene or conflict with any
provision of any law, regulation or rule, the charter or
bylaws of Guarantor, any license, agreement, or
instrument to which Guarantor is a party or by which
Guarantor or any of Guarantor's property may be bound or
affected, or any judgment, order or decree of any court
or any federal, state, or local commission, board, or
other administrative agency by which Guarantor or any of
Guarantor's property may be bound or affected.
c. This Guaranty is the legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its
terms, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization,
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enforceable against Guarantor in accordance with its terms,
except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to the enforcement of creditors'
rights generally or by principles governing the availability of
equitable remedies.
3. Guaranty. Guarantor hereby absolutely, irrevocably and
unconditionally guaranties (i) the performance by Seller when due
of all covenants, agreements, and obligations of every nature
under the Agreement and (ii) subject only to the limitations
thereon specifically set forth in the Agreement, the accuracy and
completeness of all representations and warranties of Seller under
the Agreement. Without limiting the generality of the foregoing,
Guarantor hereby absolutely, irrevocably and unconditionally
guaranties any and all of Seller's indemnification obligations
under Section 11 of the Agreement, including without limitation
the full and prompt payment when due of any and all monies which
may become due or payable at any time under or pursuant to such
indemnification provisions. (The performance and indemnification
obligations of Seller under the Agreement are herein, individually
and collectively, referred to as the "Obligations".) Guarantor
further agrees that the following terms and conditions will apply
to this Guaranty:
a. This Guaranty is in all respects continuing, absolute, and
unconditional.
b. This Guaranty is a guaranty of both performance and payment
when due, and not of collection.
c. Buyer may, from time to time, at Buyer's sole discretion and
without notice to Guarantor, take any or all of the following
actions:
i. Obtain or accept a security interest in any property to
secure payment of any or all of the Obligations;
ii. Obtain the primary or secondary obligation of any third
party in addition to Guarantor with respect to any or all
of the Obligations;
iii. Release, compromise, extend, alter, or modify any of the
Obligations or any obligation of any nature of any other
obligor with respect to any of the Obligations;
iv. Release, compromise, or extend any obligation of
Guarantor hereunder;
v. Release any security interest in, or surrender, release,
or permit any
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substitution or exchange for, all or any part of any
property securing any of the Obligations or any
obligation hereunder, or release, compromise, extend,
alter, or modify any obligation of any nature of any
obligor with respect to any such property; and
vi. Resort to or proceed against Guarantor for performance or
payment of any of the Obligations whether or not Buyer
has proceeded against Seller or any other obligor
primarily or secondarily obligated with respect to any of
the Obligations, has resorted to any property securing
any of the Obligations or any obligation hereunder, or
has pursued any other remedy.
d. As between Buyer and Guarantor, any amounts received by Buyer
from whatsoever source on account of any Obligation (arising by
whatever means) may be applied by Buyer toward the payment of
any Obligation then due and payable, in such order of
application as Buyer may from time to time elect; and,
notwithstanding any performance or payments made by or for the
account of Guarantor pursuant to this Guaranty, Guarantor will
not be subrogated to any rights of Buyer until such time as
Buyer has received performance and payment in full of all of
the Obligations and performance of all obligations of Guarantor
hereunder. Without limiting the generality of the foregoing,
Guarantor agrees and acknowledges that if Buyer is required at
any time to return all or any part of any payment applied by
Buyer to the payment of the Obligations or any costs or
expenses covered by this Guaranty, whether by virtue of the
insolvency, bankruptcy, or reorganization of the Seller or
otherwise, the Obligations to which the returned payment was
applied will be deemed to have continued in existence and this
Guaranty will continue to be effective or to be reinstated, as
the case may be, as to such Obligations, as though such payment
had not been received and such application by Buyer had not
been made.
e. Guarantor hereby expressly waives: (i) notice of the acceptance
by Buyer of this Guaranty; (ii) notice of the existence,
creation, release, compromise, extension, alteration,
modification, non-performance, or non-payment of any or all of
the Obligations; (iii)presentment, demand, notice of dishonor,
protest, and all other notices whatsoever; and (iv) all
diligence in collection of or realization upon any payments on,
or assurance of performance of, any of the Obligations or any
obligation hereunder, or in collection on, realization upon, or
protection of any security for, or guaranty of, any of the
Obligations or any obligation hereunder.
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f. As between Guarantor and Buyer, Buyer may assign or otherwise
transfer the right to receive performance of or payment of any
of the obligations of Seller and/or from Guarantor to any third
party.
4. Notices. All notices and communications under this Guaranty will
be in writing and will be deemed to have been duly given when
delivered by messenger, by overnight delivery service, or by
facsimile (receipt confirmed), or mailed by first class certified
mail, return receipt requested; if to Guarantor addressed to
Seller's address set forth in the Agreement; and if to Buyer,
addressed to Buyer's address set forth in the Agreement; or in
each case to such other address respectively as the party has
specified by notice to the other.
5. Integration, Assignment, Modification, Payment of Expenses and
Construction. This Guaranty constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes any prior written or oral agreements between Guarantor
and Buyer. This Guaranty may not be assigned by Guarantor without
the prior written consent of Buyer. Subject to the foregoing, this
Guaranty will inure to the benefit of Buyer, and be binding upon
Guarantor, and their respective successors and assigns. This
Guaranty may be amended or modified only by a writing signed by
Guarantor and Buyer. Buyer and Guarantor will each pay its own
costs and expenses in connection with the negotiation and
execution of this Guaranty. Guarantor agrees to pay all of Buyer's
expenses (including, without limitation, costs and expenses of
litigation and reasonable attorneys' fees) in enforcing or
endeavoring to realize upon this Guaranty or in endeavoring to
collect any amount payable under this Guaranty which is not paid
when due. The unenforceability or invalidity of any provision of
this Guaranty or the Agreement will not affect the validity of the
remainder of this Guaranty.
6. Waiver. The failure of Buyer to insist upon strict performance of
any of the terms, conditions, agreements, or covenants in this
Guaranty in any one or more instances will not be deemed to be a
waiver by Buyer of its rights to enforce thereafter any of such
terms, conditions, agreements, or covenants. Any waiver by Buyer
of any of the terms, conditions, agreements, or covenants in this
Guaranty must be in writing signed by Buyer.
7. Applicable Law. This Guaranty will be governed by, and construed
and interpreted in accordance with, the internal laws of the State
of Colorado, without regard to the conflicts of laws rules of such
state.
8. Section Headings. The section headings used in this Guaranty are
for the convenience of Buyer and Guarantor only and will not
affect the construction or interpretation of the provisions of
this Guaranty.
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Guarantor has caused this Guaranty to be executed by a duly
authorized officer as of June 27, 1997.
XXXXXX NATURAL GAS SERVICES, INC.
By: /s/ A. XXXXXXX XXXXXXX
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Name: A. Xxxxxxx Xxxxxxx
Title: Executive Vice President
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