EXHIBIT 2.3
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GUARANTY AGREEMENT
1. Obligation Guaranteed. For valuable consideration, the
undersigned ("Guarantor") unconditionally guarantees to BASALITE CONCRETE
PRODUCTS, LLC, a Nevada limited liability company, and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
IRREVOCABLE TRUST ("Obligees") the following obligation of WESTERN POWER &
EQUIPMENT CORPORATION, a Delaware corporation, ("Obligor"), the payment of any
and all indebtedness of Obligor to Obligees. The word "indebtedness" is used in
its most comprehensive sense and includes any and all advances, debts,
obligations, and liabilities of Obligor or any one or more of them, whenever
made, incurred, or created, whether voluntary or involuntary and however
arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Obligor may be liable
individually or jointly with others, or whether recovery may be or become barred
by any statute of limitations or otherwise become unenforceable.
2. Death, Insolvency or Bankruptcy of Obligor. Guarantor
unconditionally guarantees the payment of any and all indebtedness of Obligor to
Obligees, whether or not due or payable by Obligor, upon (a) the death,
dissolution, insolvency, or business failure of, or any assignment for the
benefit of creditors by, or commencement of any bankruptcy, reorganization,
arrangement, moratorium, or other debtor relief proceedings by or against
Obligor or Guarantors, or (b) the appointment of a receiver for, or the
attachment, restraint of, or making or levying of any court order or legal
process affecting the property of Obligor or Guarantors, and jointly and
severally unconditionally promise to pay this indebtedness to Bank, or order, on
demand, in lawful money of the United States.
3. Extent of Liability. The liability Guarantor shall not exceed at
any one time the sum of Two Million Five Hundred Thousand Dollars
($2,500,000.00) for principal, together with all interest on the indebtedness or
any part not exceeding the foregoing limitation, and attorneys' fees, costs, and
expenses as provided in Paragraph 9 of this Agreement. This guarantee may be
terminated with regard to future transactions provided Guarantor gives written
notice of termination to Obligees. Notice shall be deemed effective as of noon
of the next succeeding business day following receipt of notice by Obligees. No
such notice shall release Guarantor from any liability as to any guaranteed
indebtedness that may be owing to or held by Obligees or in which Obligees may
have an interest or for which Obligees may be obligated at the time of receiving
notice, and all extensions or renewals. The liability of Guarantor under this
Agreement is exclusive and independent of any security for or other guarantee of
the indebtedness of Obligor, whether executed by Guarantor or any other party,
and the liability of Guarantor under this Agreement is not affected or impaired
by (a) any indebtedness exceeding Guarantor's liability; (b) any direction of
application by Obligor or any other party; (c) any other continuing or other
guaranty, undertaking, or maximum liability of Guarantor or of any other party
as to the indebtedness of Obligor; (d) any payment on or in reduction of any
other guaranty or undertaking; (e) any notice of termination of this Agreement
as to future transactions given by, or the death or termination of, or the
revocation or release of any obligations under this Agreement of the Guarantor;
(f) any dissolution, termination, or increase, decrease, or changes of personnel
of any of the Guarantor; or (g) any payment made to the Obligees on the
indebtedness that Obligees repay to Obligor pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium, or other debtor relief
proceeding; Guarantor waives any right to the deferral or modification of
Guarantor's obligations by virtue of any such proceeding.
4. Joinder of Parties. The obligations of Guarantor is independent
of the obligations of Obligor, and a separate action or actions may be brought
and prosecuted against Guarantor, whether action is brought against Obligor or
whether Obligor be joined in any such action or actions. Guarantor waives, to
the fullest extent permitted by law, the benefit of any statute of limitations
affecting their liability under this Agreement or the enforcement of this
Agreement. Any payment by Obligor or other circumstance that operates to toll
any statute of limitations as to Obligor shall also operate to toll the statute
of limitations as to Guarantor.
5. Change of Obligation. Guarantor authorizes Obligees (whether or
not after revocation or termination of this guaranty) without notice or demand
(except any notice or demand that is required by statute and cannot be waived)
and without affecting or impairing their liability, from time to time to (a)
renew, compromise, extend, accelerate, or otherwise change the time for
performance of, or otherwise change the terms of the obligation including, but
not limited to, increasing or decreasing the rate of interest; (b) take and hold
security for the performance of this guaranty or the obligation guaranteed, and
exchange, enforce, waive, and release any security;
(c) apply security and direct the order or manner of sale of security as
Obligees in its discretion may determine; and (d) release or substitute the
Guarantor. Obligees may without notice assign this guaranty in whole or in part.
6. Capacity and Authority of Obligor. It is not necessary for
Obligees to inquire into the capacity or powers of Obligor or the officers,
directors, partners, or agents acting or purporting to act on their behalf, and
any indebtedness made or created in reliance on the professed exercise of those
powers shall be guaranteed under this Agreement. If one or more of the Obligor
is a partnership, the words "Obligor" and "indebtedness" as used in this
Agreement include all successor partnerships and their liabilities to Obligees.
7. Subordination. Any indebtedness of Obligor now or later held by
Guarantor is subordinated to the indebtedness of Obligor to Obligees, and all
indebtedness of Obligor to Guarantors, if Obligees so requests, shall be
collected, enforced, and received by Guarantors as trustees for Obligees and be
paid over to Obligees on account of the indebtedness of Obligor to Obligees,
without affecting or impairing in any manner the liability of Guarantors under
the other provisions of this guaranty. Any instruments now or later evidencing
any indebtedness of Obligor to the undersigned shall be marked with a legend
that they are subject to this guaranty, and, if Obligees so request, shall be
delivered to Obligees.
8. Waiver of Defenses.
a. Guarantor waives any right to require Obligees to (a)
proceed against Obligor; (2) proceed against or exhaust any security held from
Obligor; or (3) pursue any other remedy in Obligees' power whatsoever.
b. Guarantor waives any defense based on or arising out
of any defense of Obligor other than payment in full of the indebtedness,
including without limitation any defense based on or arising out of the
disability of Obligor, the unenforceability of the indebtedness from any cause,
or the cessation from any cause of the liability of Obligor other than payment
in full of the indebtedness.
c. Obligees may, at either of their sole and separate
election, foreclose on any security held by Obligees by one or more judicial
sales, whether or not every aspect of any sale is commercially reasonable, or
exercise any other right or remedy Obligees may have against Obligor, or any
security, without affecting or impairing in any way the liability of Guarantor
under this Agreement, except to the extent that the indebtedness has been paid.
d. Guarantor waives all rights and defenses arising out
of an election of remedies by Obligees, even though that election of remedies,
such as nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantor's rights of subrogation and reimbursement
against the principal by operation of Code of Civil Procedure Section 580d or
otherwise.
e. Until all indebtedness of Obligor to Obligees is paid
in full, even though that indebtedness is in excess of Guarantor's liability
under this Agreement, Guarantor shall have no right of subrogation, shall waive
any right to enforce any remedy that Obligees now have or may later have against
Obligor, and shall waive any benefit of, and any right to, participation in any
security now or later held by Obligor. Guarantor waives all presentments,
demands for performance, notices of protest, notices of dishonor, notices of
acceptances of this guaranty, and notices of the existence, creation, or
incurring of new or additional indebtedness.
f. Guarantor assumes all responsibility for keeping
themselves informed of Obligor' financial condition and assets, and of all other
circumstances bearing on the risk of nonpayment of the indebtedness and the
nature, scope, and extent of the risks that Guarantor assumes and incurs under
this Agreement, and agrees that Obligees shall have no duty to advise Guarantors
of information known to it regarding those circumstances or risks.
9. Attorneys' Fees and Costs. In addition to the amounts guaranteed
under this Agreement, Guarantor agrees to pay reasonable attorneys' fees and all
other costs and expenses incurred by Obligees in enforcing this guaranty in any
action or proceeding arising out of, or relating to, this guaranty.
10. Liens and Setoffs. In addition to all liens on, and rights to
setoff against the money, securities, or other property of Guarantor given to
Obligees by law, Obligees shall have a lien on and a right of setoff against all
money, securities, and other property of Guarantor now or later in the
possession of Obligees, whether held in a general or specific account, or for
safekeeping or otherwise; and every lien and right of setoff may be exercised
without demand on or notice to Guarantors.
11. Nonwaiver of Rights of Obligees. No right or power of Obligees
under this Agreement shall be deemed to have been waived by any act or conduct
on the part of Obligees, or by any neglect to exercise that right or power, or
by any delay in so doing; and every right or power shall continue in full force
and effect until specifically
waived or released by an instrument in writing executed by Obligees.
12. Meaning of Terms. In all cases where there is but a single
Obligor or a single Guarantor, all words used in the plural shall be deemed to
have been used in the singular where the context and construction so require;
and when there is more than one Obligor, or when this guaranty is executed by
more than one Guarantor, the word "Obligor" and the word "Guarantors"
respectively shall mean all and any one or more of them.
13. Effect on Heirs and Assigns. This guaranty and the liability and
obligations of Guarantor under this Agreement are binding on Guarantor and its
respective successors, transferees and assigns, and inure to the benefit of and
are enforceable by Obligor and their successors, transferees, and assigns.
14. Governing Law and Modification. This guaranty shall be deemed to
be made under, and shall be governed by, the laws of the State of California in
all respects, including matters of construction, validity, and performance, and
its terms and provisions may not be waived, altered, modified, or amended except
in writing duly signed by an authorized officer of Obligees and by Guarantor.
15. Invalidity. If any provision of this guaranty contravenes or is
held invalid under the laws of any jurisdiction, this guaranty shall be
construed as though it did not contain that provision, and the rights and
liabilities of the parties to this Agreement shall be construed and enforced
accordingly.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty on August _____, 2004.
GUARANTOR:
ADVANCED MINERAL TECHNOLOGY OF
NEVADA, Inc., a Nevada Corporation
By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇
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H. ▇▇▇▇▇▇▇ ▇▇▇▇
Its: President