ex10_1.htm


    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).

       

      ARTICLE
        I - GUARANTY

       

      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.

       

       

      
        
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      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 aforementioned
        court
        in any such action or proceeding by, in addition to such other methods as
        are
        permitted under applicable laws, the delivery of copies at the address and
        in
        the manner required by Article IV hereof.  Guarantor hereby
        irrevocably waives any objection to such service of process and further
        irrevocably waives and agrees not to plead or claim in any action or proceeding
        commenced hereunder that service of process was in any way invalid or
        ineffective.  Nothing herein shall affect the right of the Committee
        and/or the IRS to serve process in any other manner permitted by law or to
        commence legal proceedings or otherwise proceed against Guarantor in any
        other
        jurisdiction.

       

      Section
        2.03 Waiver
        of
        Objection to Venue; Forum Non Conveniens.  Guarantor hereby
        irrevocably waives any objection which it may now or hereafter have to the
        laying of venue of any of the aforesaid actions or proceedings arising out
        of or
        in connection with this Guaranty or the Plan brought in the court referred
        to in
        Section 2.02 above and hereby further irrevocably waives and agrees not to
        plead
        or claim in any such court that any such action or proceeding brought in
        any
        such court has been brought in an inconvenient forum.

       

      Section
        2.04 Waiver
        of Right
        to Jury Trial; Waiver of Statute of Limitations.  GUARANTOR AND
        THE COMMITTEE/IRS EACH WAIVE ALL RIGHTS TO TRIAL BY JURY OF ANY SUITS, CLAIMS,
        COUNTERCLAIMS, ACTIONS OR OTHER PROCEEDINGS OF ANY KIND ARISING UNDER OR
        RELATING TO THIS GUARANTY AND THE PLAN (INCLUDING, WITHOUT LIMITATION, ANY
        PRESENT OR FUTURE MODIFICATION THEREOF) OR IN ANY WAY CONNECTED WITH OR RELATED
        OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
        TO THE PLAN (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT
        OR
        AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH, OR THE TRANSACTIONS
        RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING,
        AND
        WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.  GUARANTOR AND THE
        COMMITTEE/IRS EACH ACKNOWLEDGES THAT THIS IS A WAIVER OF A LEGAL RIGHT AND
        REPRESENTS TO THE OTHER THAT THIS WAIVER IS MADE KNOWINGLY AND
        VOLUNTARILY.  GUARANTOR AND THE COMMITTEE/IRS EACH AGREE THAT ALL SUCH
        SUITS, CLAIMS COUNTERCLAIMS, ACTIONS OR OTHER PROCEEDINGS SHALL BE TRIED
        BEFORE
        A JUDGE OF A COURT OF COMPETENT JURISDICTION, WITHOUT A
        JURY.  GUARANTOR AND THE COMMITTEE/IRS EACH AGREE THAT THIS PARAGRAPH
        CONSTITUTES WRITTEN CONSENT THAT TRIAL BY JURY SHALL BE WAIVED IN ANY SUCH
        SUIT,
        CLAIM, COUNTERCLAIM, ACTION OR OTHER PROCEEDING AND AGREE THAT GUARANTOR
        AND THE
        COMMITTEE/IRS EACH SHALL HAVE THE RIGHT AT ANY TIME TO FILE THIS GUARANTY
        OR THE
        PLAN WITH THE CLERK OR JUDGE OF ANY COURT IN WHICH ANY SUCH SUIT, CLAIM,
        COUNTERCLAIM, ACTION OR OTHER PROCEEDING MAY BE PENDING AS STATUTORY WRITTEN
        CONSENT TO WAIVER OF TRIAL BY JURY.  GUARANTOR HEREBY WAIVES THE
        BENEFIT OF ANY STATUTE OF LIMITATIONS AFFECTING THE LIABILITY OF GUARANTOR
        UNDER
        THIS GUARANTY.

       

       

      
        
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      ARTICLE
        III - FURTHER
        AGREEMENTS OF PARTIES

       

      Section
        3.01 Rights
        of the
        Committee and/or the IRS.  The Committee and/or the IRS shall
        have the right without demand of or notice to Guarantor to deal in any manner
        with the Liabilities, including without limitation the right to resort to
        Guarantor for payment of all or any of the Liabilities, whether or not the
        Committee and/or the IRS shall have resorted first to any property of Hidden
        Splendor or shall have proceeded against any other guarantors or any other
        party
        primarily or secondarily liable with respect to any of the
        Liabilities.  The obligations of Guarantor hereunder shall not be
        released, discharged or affected in any way, nor shall Guarantor have any
        recourse against the Committee and/or the IRS by reason of any action which
        the
        Committee and/or the IRS may take or omit to take under these powers or
        otherwise existing with respect to the Liabilities.

       

      ARTICLE
        IV - NOTICES

       

      Any
        notice which any party hereto may desire or may be required to give to any
        other
        party shall be in writing and either (a) mailed by certified mail, return
        receipt requested, or (b) sent by a nationally recognized overnight carrier
        which provides for a return receipt.  Any such notice shall be sent to
        the respective party’s addresses as set forth below or to such other address as
        such party may, by notice in writing, designate as its address:

       

      America
        West Resources, Inc.

      57
        West 200 South, Suite 400

      Salt
        Lake City,
        Utah  84101

      


      


      The
        Official Committee of Unsecured Creditors

      Michael
        J. Roeschenthaler, Esq.

      McGuireWoods
        LLP

      625
        Liberty Avenue, 23rd
        Floor

      Pittsburgh,
        Pennsylvania 15222

      


      


      United
        States Internal Revenue Service


     

    
      

    

    
      
        

      

    

    
      
        

      

    

     

    Any
      such
      notice shall constitute service of notice hereunder three (3) days after the
      mailing thereof by certified mail or one (1) day after the sending thereof
      by
      overnight carrier.

     

    ARTICLE
      V - MISCELLANEOUS

     

    Section
      5.01 Successors
      and
      Assigns.  This Guaranty cannot be assigned by the Guarantor
      absent the express written consent of the Committee and the IRS. Notwithstanding
      the foregoing, Guarantor
      may, without
      express written consent
      of the Committee and the
      IRS,  enter into a change of control transaction,
      so long as (i) the
      controlling entity agrees to assume the obligations
      under this Guaranty, (ii)
      the change of control transaction is
      an arms length transaction, (iii) the
      change of control transaction is
      an exchange of reasonably equivalent
      value, (iv) the change of control
      does not result in the
      insolvency of the Guarantor and/or (v)the change
      of control transaction does not
      leave the
      Guarantor with  insufficient
      funds or capital to


     

    
       

      
        
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        pay
          its debts as they become due. 
(The guarantor agrees
          that conditions (i) through (v) do not constitute awaiver,
          or otherwise limit, the Committee's
          and IRS's rights in law or equity).  
          This Guaranty shall bind Guarantor and the heirs, devisees, personal
          representatives, successors and assigns of Guarantor and shall inure to
          the
          benefit of the holders of Allowed Class 7 Claims and the IRS, all successors
          and
          assigns of the holders of Allowed Class 7 Claims and/or the IRS and all
          transferees of the holders of Allowed Class 7 Claims and/or the IRS’ interests
          under the Plan and this Guaranty; it being agreed that the holders of Allowed
          Class 7 Claims and/or the IRS may, without notice of any kind, sell, assign
          or
          transfer all or any of the Liabilities and in such event, each and every
          immediate and successor assignee, transferee or holder of all or any of
          the
          Liabilities, shall have the rights under this Guaranty if such assignee,
          transferee or holder were herein by name specifically given such, rights,
          powers
          and benefits; provided that the Committee and/or the IRS shall have the
          unimpaired right, prior and superior to that of any such assignee, transferee
          or
          holder, to enforce this Guaranty for the benefit of the holders of Allowed
          Class
          7 Claims and/or the IRS as to the remaining Liabilities.

      

    

     

    Section
      5.02 No
      Waiver.  No delay on the part of the Committee and/or the IRS
      in the exercise of any right or remedy shall operate as a waiver thereof, and
      no
      single or partial exercise by the Committee and/or the IRS of any right or
      remedy shall preclude any other or further exercise thereof or the exercise
      of
      any other right or remedy.  No action of the Committee and/or the IRS
      permitted hereunder shall in any way impair or affect this
      Guaranty.

     

    Section
      5.03 Governing
      Law.  This Guaranty shall be governed by and construed and
      interpreted in accordance with the laws of the State of Nevada.

     

    Section
      5.04 Severability.  If
      any provision hereof is determined to be held illegal, unenforceable or void
      for
      any reason, the validity of the remaining provisions hereof shall not be
      affected thereby.

     

    Section
      5.05 Captions.  The
      captions used in this Guaranty are for convenience only and shall not be deemed
      part of the text of the respective Sections and shall not vary, by implication
      or otherwise, any of the provisions of this Guaranty.

     

    Section
      5.06 No
      Oral
      Modification.  No waiver, amendment, release or modification of
      this Guaranty shall be made orally or shall be established by conduct, custom
      or
      course of dealing, but only by an instrument in writing duly executed by each
      the Committee, the IRS and the Guarantor.

     

    Section
      5.07 Costs
      and
      Expense.  Guarantor agrees to pay all reasonable attorneys’
fees and other costs and expenses which may be incurred by the Committee
      and/or
      the IRS in the enforcement of this Guaranty, including without limitation those
      incurred in connection with any case, action, proceeding, claim or otherwise
      under Chapters 7, 11 or 13 of the Bankruptcy Code or any successor statute
      or
      statutes thereto whether the same be commenced or filed by Hidden Splendor,
      Guarantor or any other person or entity.

     

    Section
      5.08 No
      Modifications.  No term or provision of this Guaranty may be
      changed, waived, revoked or amended without the Committee and/or the IRS’s prior
      express written consent.  This Guaranty is irrevocable absent payment
      of the payment of the Liabilities in strict accordance with the
      Plan.

     

    
       

      
        
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    Section
      5.09 Counterparts.  This
      Guaranty may be executed by the parties hereto in any number of counterparts
      and
      each such counterpart shall be deemed to be an original and all of which
      together shall constitute one and the same agreement.

     

    Section
      5.10 Termination.  Upon
      payment of the Liabilities in strict accordance with the Plan, this Guaranty
      shall be of no further force or effect.

     

    Section
      5.11 Time
      of
      Essence.  Time is of the essence in the performance of each and
      every provision of this Guaranty.

     

    Section
      5.12 Recitals,
      Exhibits, Etc.  The recitals set forth in this Guaranty and all
      exhibits and attachments to this Guaranty are incorporated herein and shall
      be deemed an integral part of this Guaranty.

     

    THIS
      GUARANTY is being executed and
      delivered as of the day and year first above written.

     

    GUARANTOR:

    


    AMERICA
      WEST RESOURCES, INC.,

    a
      Nevada
      corporation

    


    


    By:______________________________

     
      Name:____________________________

    Title:_____________________________

    


     

    
 

    
      
        
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    EXHIBIT
      A

     

    Joint-Consolidated
      Hidden Splendor Resources, Inc. / Mid-State Services, Inc. Plan

     

    


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