This Guaranty, dated as of August 13, 1997, is made by Meteor Industries,
Inc., a Colorado corporation (the "Guarantor") for the benefit of Norwest
Business Credit, Inc., a Minnesota corporation (with its participants,
successors and assigns, the "Lender").
The Lender and Xxxxxxxxx Oil Company, Inc., a Wyoming corporation (the
"Borrower"), are parties to a Credit and Security Agreement of even date
herewith pursuant to which the Lender may make advances and extend other
financial accommodations to the Borrower.
As a condition to extending such credit to the Borrower, the Lender has
required the execution and delivery of this Guaranty.
ACCORDINGLY, the Guarantor, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
1. Definitions. All terms defined in the Credit Agreement that are not
otherwise defined herein shall have the meanings given them in the Credit
Agreement.
2. Guaranty. The Guarantor hereby absolutely and unconditionally guarantees
to the Lender the full and prompt payment when due, whether at maturity or
earlier by reason of acceleration or otherwise, of (i) the Obligations and
(ii) each and every other sum now or hereafter owing to the Lender by the
Borrower, including but not limited to, debts, liabilities and obligations
arising out of loans, credit transactions, financial accommodations,
discounts, purchases of property or other transactions with the Borrower or
for the Borrower's account or out of any other transaction or event, owed to
the Lender or owed to others by reason of participations granted to or
interests acquired or created for or sold to them by the Lender, in each case
whether now existing or hereafter arising, whether arising directly in a
transaction or event involving the Lender or acquired by the Lender from
another by purchase or assignment or as collateral security, whether owed by
the Borrower as drawer, maker, endorser, accommodation party, guarantor,
principal, surety or as a member of any partnership, syndicate, association or
group or in any other capacity, whether absolute or contingent, direct or
indirect, primary or secondary, sole, joint, several or joint and several,
secured or unsecured, due or not due, contractual, tortious or statutory,
liquidated or unliquidated, arising by agreement or imposed by law or
otherwise (all of said sums being hereinafter called the "Indebtedness").
3. Guarantor's Representations and Warranties. The Guarantor represents and
warrants to the Lender that:
i) the Guarantor is a corporation, duly organized and existing in good
standing and has full power and authority to make and deliver this Guaranty;
ii) the execution, delivery and performance of this Guaranty by the
Guarantor have been duly authorized by all necessary action of its directors
and shareholders and do not and will not violate the provisions of, or
constitute a default under, any presently applicable law or its articles of
incorporation and bylaws or any agreement presently binding on it;
iii) this Guaranty has been duly executed and delivered by the
authorized officer of the Guarantor and constitutes its lawful, binding and
legally enforceable obligation; and
iv) the authorization, execution, delivery and performance of this
Guaranty do not require notification to, registration with, or consent or
approval by, any federal, state or local regulatory body or administrative
agency. The Guarantor represents and warrants to the Lender that the Guarantor
has a direct and substantial economic interest in the Borrower and expects to
derive substantial benefits therefrom and from any loans, credit transactions,
financial accommodations, discounts, purchases of property and other
transactions and events resulting in the creation of the Indebtedness
guarantied hereby, and that this Guaranty is given for a business purpose. The
Guarantor agrees to rely exclusively on the right to revoke this Guaranty
prospectively as to future transactions, in accordance with paragraph 4, if at
any time, in the opinion of the directors or officer, the benefits then being
received by the Guarantor in connection with this Guaranty are not sufficient
to warrant the continuance of this Guaranty as to the future Indebtedness of
the Borrower. Accordingly, so long as this Guaranty is not revoked
prospectively in accordance with paragraph 4, the Lender may rely conclusively
on a continuing warranty, hereby made, that the Guarantor continues to be
benefitted by this Guaranty and the Lender shall have no duty to inquire into
or confirm the receipt of any such benefits, and this Guaranty shall be
effective and enforceable by the Lender without regard to the receipt, nature
or value of any such benefits.
4. Unconditional Nature. No act or thing need occur to establish the
Guarantor's liability hereunder, and no act or thing, except full payment and
discharge of all of the Indebtedness, shall in any way exonerate the Guarantor
hereunder or modify, reduce, limit or release the Guarantor's liability
hereunder. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Guarantor, whether or not all of the Indebtedness is paid in full,
until this Guaranty is revoked prospectively as to future transactions, by
written notice actually received by the Lender, and such revocation shall not
be effective as to the amount of Indebtedness existing or committed for at the
time of actual receipt of such notice by the Lender, or as to any renewals,
extensions, refinancings or refundings thereof.
5. Dissolution or Insolvency of Guarantor. The dissolution or adjudication
of bankruptcy of the Guarantor shall not revoke this Guaranty, except upon
actual receipt of written notice thereof by the Lender and only prospectively,
as to future transactions, as herein set forth. If the Guarantor shall be
dissolved or shall be or become insolvent (however defined), then the Lender
shall have the right to declare immediately due and payable, and the Guarantor
will forthwith pay to the Lender, the full amount of all of the Indebtedness
whether due and payable or unmatured. If the Guarantor voluntarily commences
or there is commenced involuntarily against the Guarantor a case under the
United States Bankruptcy Code, the full amount of all Indebtedness, whether
due and payable or unmatured, shall be immediately due and payable without
demand or notice thereof.
6. Subrogation. The Guarantor will not exercise or enforce any right of
contribution, reimbursement, recourse or subrogation available to the
Guarantor as to any of the Indebtedness, or against any person liable
therefor, or as to any collateral security therefor, unless and until all of
the Indebtedness shall have been fully paid and discharged.
7. Enforcement Expenses. The Guarantor will pay or reimburse the Lender for
all costs, expenses and attorneys' fees paid or incurred by the Lender in
endeavoring to collect and enforce the Indebtedness and in enforcing this
Guaranty.
8. Lender's Rights. The Lender shall not be obligated by reason of its
acceptance of this Guaranty to engage in any transactions with or for the
Borrower. Whether or not any existing relationship between the Guarantor and
the Borrower has been changed or ended and whether or not this Guaranty has
been revoked, the Lender may enter into transactions resulting in the creation
or continuance of the Indebtedness and may otherwise agree, consent to or
suffer the creation or continuance of any of the Indebtedness, without any
consent or approval by the Guarantor and without any prior or subsequent
notice to the Guarantor. The Guarantor's liability shall not be affected or
impaired by any of the following acts or things (which the Lender is expressly
authorized to do, omit or suffer from time to time, both before and after
revocation of this Guaranty, without consent or approval by or notice to the
Guarantor):
i) any acceptance of collateral security, guarantors, accommodation
parties or sureties for any or all of the Indebtedness;
ii) one or more extensions or renewals of the Indebtedness (whether or
not for longer than the original period) or any modification of the interest
rates, maturities, if any, or other contractual terms applicable to any of the
Indebtedness or any amendment or modification of any of the terms or
provisions of any loan agreement or other agreement under which the
Indebtedness or any part thereof arose;
iii) any waiver or indulgence granted to the Borrower, any delay or lack
of diligence in the enforcement of the Indebtedness or any failure to
institute proceedings, file a claim, give any required notices or otherwise
protect any of the Indebtedness;
iv) any full or partial release of, compromise or settlement with, or
agreement not to xxx, the Borrower or any guarantor or other person liable in
respect of any of the Indebtedness;
v) any release, surrender, cancellation or other discharge of any evidence
of the Indebtedness or the acceptance of any instrument in renewal or
substitution therefor;
vi) any failure to obtain collateral security (including rights of setoff)
for the Indebtedness, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to preserve,
protect, insure, care for, exercise or enforce any collateral security; or any
modification, alteration, substitution, exchange, surrender, cancellation,
termination, release or other change, impairment, limitation, loss or
discharge of any collateral security;
vii) any collection, sale, lease or disposition of, or any other
foreclosure or enforcement of or realization on, any collateral security;
viii) any assignment, pledge or other transfer of any of the Indebtedness
or any evidence thereof;
ix) any manner, order or method of application of any payments or credits
upon the Indebtedness; and
x) any election by the Lender under Section 1111(b) of the United States
Bankruptcy Code. The Guarantor waives any and all defenses and discharges
available to a surety, guarantor or accommodation co-obligor.
9. Waivers by Guarantor. The Guarantor waives any and all defenses, claims,
setoffs and discharges of the Borrower, or any other obligor, pertaining to
the Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantor will not assert, plead
or enforce against the Lender any defense of waiver, release, discharge or
disallowance in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Borrower or any
other person liable in respect of any of the Indebtedness, or any setoff
available against the Lender to the Borrower or any other such person, whether
or not on account of a related transaction. The Guarantor expressly agrees
that the Guarantor shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing the
Indebtedness, whether or not the liability of the Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The liability of the Guarantor shall not be affected or impaired by
any voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all of the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar event or proceeding affecting, the Borrower or any of its
assets. The Guarantor will not assert, plead or enforce against the Lender any
claim, defense or setoff available to the Guarantor against the Borrower. The
Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment and protest of any instrument evidencing the Indebtedness. The
Lender shall not be required first to resort for payment of the Indebtedness
to the Borrower or other persons, or their properties, or first to enforce,
realize upon or exhaust any collateral security for the Indebtedness, before
enforcing this Guaranty.
10. If Payments Set Aside, etc. If any payment applied by the Lender to the
Indebtedness is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of the Borrower or any other obligor), the
Indebtedness to which such payment was applied shall for the purpose of this
Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Indebtedness as
fully as if such application had never been made.
11. No Duties Owed by Lender. The Guarantor acknowledges and agrees that the
Lender
i) has not made any representations or warranties with respect to,
ii) does not assume any responsibility to the Guarantor for, and
iii) has no duty to provide information to the Guarantor regarding, the
enforceability of any of the Indebtedness or the financial condition of the
Borrower or any guarantor. The Guarantor has independently determined the
creditworthiness of the Borrower and the enforceability of the Indebtedness
and until the Indebtedness is paid in full will independently and without
reliance on the Lender continue to make such determinations.
12. Additional Obligation of Guarantor. The Guarantor's liability under this
Guaranty is in addition to and shall be cumulative with all other liabilities
of the Guarantor to the Lender as guarantor, surety, endorser, accommodation
co-obligor or otherwise of any of the Indebtedness or obligation of the
Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
13. Miscellaneous. This Guaranty shall be effective upon delivery to the
Lender, without further act, condition or acceptance by the Lender, shall be
binding upon the Guarantor and the successors and assigns of the Guarantor and
shall inure to the benefit of the Lender and its participants, successors and
assigns. Any invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and application
thereof, and to this end the provisions of this Guaranty are declared to be
severable. This Guaranty may not be waived, modified, amended, terminated,
released or otherwise changed except by a writing signed by the Guarantor and
the Lender. This Guaranty shall be governed by and construed in accordance
with the substantive laws (other than conflict laws) of the State of Colorado.
The Guarantor hereby
i) consents to the personal jurisdiction of the state and federal courts
located in the State of Colorado in connection with any controversy related to
this Guaranty;
ii) waives any argument that venue in any such forum is not convenient,
iii) agrees that any litigation initiated by the Lender or the Guarantor
in connection with this Guaranty shall be venued in either the District Court
of the City and County of Denver, Colorado, or the United States District
Court, District of Colorado; and
iv) agrees that a final judgment in any such suit, action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
14. Waiver of Jury Trial. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF, BASED ON OR PERTAINING TO THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantor the date first written above.
METEOR INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxx
Its Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
STATE OF COLORADO )
)
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 13th day of
August, April 8, 1998 by Xxxxxx X. Xxxxx, the Treasurer of Meteor Industries,
Inc., a Colorado corporation, on behalf of the corporation.
/s/ Notary Public
Notary Public
