EXHIBIT 2.1
-----------
AGREEMENT FOR THE PURCHASE OF ARIZONA PACIFIC MATERIALS, LLC
This Agreement for the purchase of Arizona Pacific Materials, LLC ("AGREEMENT")
is entered into on September 8, 2004, by and between WESTERN POWER & EQUIPMENT
CORP., a Delaware corporation (hereinafter referred to as "WPEC"), as Purchaser,
and BASALITE CONCRETE PRODUCTS, LLC, a Nevada limited liability company
(hereinafter referred to as "BASALITE"), and the Xxxxx Xxxxxxxxx Irrevocable
Trust (hereinafter referred to as the "XXXXXXXXX TRUST"), collectively as
Seller, and ADVANCED MINERAL TECHNOLOGY of NEVADA, Inc., a Nevada corporation
(hereinafter referred to as "AMT"), as Guarantor, with respect to the following
facts:
RECITALS
A. WHEREAS, BASALITE and the XXXXXXXXX TRUST (hereinafter jointly
referred to as the "MEMBERS") are the owners of all the membership interests in
Arizona Pacific Materials, LLC, an Arizona Limited Liability Company
(hereinafter referred to as "ARIZONA PACIFIC").
B. WHEREAS, WPEC desires to purchase and the MEMBERS desire to sell
their entire membership interests in ARIZONA PACIFIC thereby effectively
transferring all rights, benefits, interests, liabilities, obligations and
burden in and to its assets, real and personal.
C. NOW, THEREFORE, for and in consideration of the mutual agreements
set forth herein, and subject to the terms and conditions set forth below, the
parties agree as follows:
AGREEMENT
1. Sale of Membership Interests: The MEMBERS shall sell and transfer
to WPEC, and WPEC shall purchase and acquire from the MEMBERS, all of the
outstanding membership interests of ARIZONA PACIFIC, thereby effectively
transferring all rights, benefits, interests, liabilities, obligations and
burden in and to its assets, both real and personal. The MEMBERS own the
following percentage interests in ARIZONA PACIFIC:
Basalite Concrete Products, LLC 50.1%
Xxxxx Xxxxxxxxx Irrevocable Trust 49.9%
2. Purchase Price: WPEC shall pay to the MEMBERS a total of Three
Million Dollars ($3,000,000.00) payable according to the following schedule:
2.1 The sum of Five Hundred Thousand Dollars
($500,000.00) upon execution by WPEC of this Agreement;
2.2 The balance of the purchase price shall be evidenced
in the form of a Two Million Five Hundred Thousand Dollar ($2,500,000.00)
promissory note (the "NOTE") in substantially the same form as Exhibit D
attached hereto and incorporated by this reference and guaranteed by AMT and
paid in two (2) installments, one installment due and payable within thirteen
(13) months of the Closing (as hereinafter defined) in the amount of Two Million
Dollars ($2,000,000.00) and the second installment due and payable within
nineteen (19) months of the Closing in the amount of the outstanding principal
and accrued interest. The Note shall accrue simple interest at the rate of Five
percent (5%) per annum which interest shall commence accumulating from the
Closing.
3. Closing: The Closing of this transaction shall take place on or
before the close of the fifth (5th) business day after execution of the
Agreement by WPEC at Sacramento, California (the "CLOSING") or at such other
time and place as the parties shall mutually agree after all conditions
precedent to the Closing have been satisfied. At the Closing, the MEMBERS shall
transfer to WPEC, free and clear of all encumbrances, 100% of the
membership interests in ARIZONA PACIFIC along with such membership certificates,
if any, evidencing the membership interests and any assignments of such
interests as may be required by law to transfer said interests.
4. The MEMBERS' Representations and Warranties: The MEMBERS
represent, covenant, and warrant that as of this date and the date of the
Closing:
4.1 Good Standing:
4.1.1 ARIZONA PACIFIC is a limited liability
company duly organized and validly existing under the laws of the State of
Arizona, and is in good standing in such state; that the company has filed all
returns with respect to state and Federal income, franchise, employee, and other
taxes of ARIZONA PACIFIC, which, to the actual knowledge of the MEMBERS, are
required to be filed for and with respect to all previous years since
incorporation up to the present and current fiscal year; and that the MEMBERS
have paid all taxes shown to be due on such returns. For purposes of this
paragraph, "the actual knowledge of the MEMBERS" shall mean the actual knowledge
of Xxxxx X. Xxxxxxx who the MEMBERS represent is the Officer of ARIZONA PACIFIC
who is most familiar with such filings and operational documents of ARIZONA
PACIFIC without any imputation of knowledge as a result of agency or
constructive knowledge principles, and without any obligation to undertake any
investigation or take any affirmative action to acquire any knowledge.
4.1.2 BASALITE is a Nevada limited liability
company duly organized and validly existing under the laws of the State of
Nevada, and is in good standing in such state; that the company has filed all
returns with respect to state and Federal income, franchise, employee, and other
taxes of BASALITE, which to the actual knowledge of BASALITE, are required to be
filed, for and with respect to all previous years since incorporation up to the
present and current fiscal year; and that BASALITE has paid all taxes shown to
be due on such returns. For purposes of this paragraph, "the actual knowledge of
BASALITE" shall mean the actual knowledge of Xxxxx X. Xxxxxxx who BASALITE
represents is the officer of BASALITE who is most familiar with such filings and
operational documents of BASALITE without any imputation of knowledge as a
result of agency or constructive knowledge principles, and without any
obligation to undertake any investigation or take any affirmative action to
acquire any knowledge.
4.1.3. The XXXXXXXXX TRUST is an existing
trust, all of whose existing agent shall execute this Agreement on behalf of
said trust. The trust has filed all returns with respect to state and Federal
income, franchise, employee, and other taxes of the trust, which to the actual
knowledge of the agent, are required to be filed, for and with respect to all
previous years since establishment of the trust up to the present and current
fiscal year; and that the trust has paid all taxes shown to be due on such
returns. The agent executing this Agreement is authorized to act on behalf of
the trust and, if requested, shall provide WPEC with a Certification of Trust
and related agency documents in a form satisfactory to WPEC. For purposes of
this paragraph, "the actual knowledge of the agent" shall mean the actual
knowledge of Xxxxxx Xxxxxxxxx, Duly Authorized Agent, who is most familiar with
such filings and operational documents of the trust without any imputation of
constructive knowledge principles, and without any obligation to undertake any
investigation or take any affirmative action to acquire any knowledge.
4.2 Membership Interests of ARIZONA PACIFIC: The
membership interests of ARIZONA PACIFIC owned by the MEMBERS are free and clear
of all liens and encumbrances; the MEMBERS have the unrestricted and unlimited
right and authority to sell, transfer, and deliver such membership interests;
the total interests of ARIZONA PACIFIC are owned by the MEMBERS.
4.3 Balance Sheet: ARIZONA PACIFIC is the owner of the
assets listed in the March 31, 2004, Balance Sheet attached hereto as Exhibit A.
The MEMBERS further represent that the assets listed in the Balance Sheet are
free and clear of any liens, encumbrances or claims for payment and that all
debts or liabilities of ARIZONA PACIFIC listed in the aforementioned Balance
Sheet have been, or will be, paid or assumed by the MEMBERS excepting the
reclamation bond recorded against that certain real property located in the
unicorporated area of Pinal County (the "QUEEN CREEK PROPERTY").
4.4 Debts and Obligations of ARIZONA PACIFIC: It is
specifically agreed and understood that, except for the reclamation bond
provided for in Section 4.5, below, all debts and obligations of ARIZONA PACIFIC
shall be paid prior to the Closing or assumed by the MEMBERS and WPEC shall have
no obligations for the payments of any debts, accounts, or other obligations
incurred by ARIZONA PACIFIC prior to the Closing.
4.5 Reclamation Bond: The reclamation bond recorded
against the Queen Creek Property shall remain in place until WPEC obtains a bond
in its own name. However, the obligations of the MEMBERS and/or its predecessor
in interest, PACIFIC COAST BUILDING PRODUCTS, INC., a California corporation
("PCBP"), under said bond shall be assumed by WPEC upon the transfer of ARIZONA
PACIFIC to WPEC and WPEC shall indemnify and hold the MEMBERS and PCBP harmless
from any and all expenses, costs, obligations, and other liabilities under the
terms of that bond which occur or accrue after the Closing.
4.6 Operating Permits: The Members represent that to
their actual knowledge all operating permits required to operate the Queen Creek
and Flagstaff operations, including, but not limited to, Arizona state land use
permits and air quality permits have been validly issued and are currently
valid. For purposes of this paragraph, "the actual knowledge of BASALITE" shall
mean the actual knowledge of Xxxxx X. Xxxxxxx who BASALITE represents is the
officer of BASALITE who is most familiar with such filings and operational
documents of BASALITE without any imputation of knowledge as a result of agency
or constructive knowledge principles, and without any obligation to undertake
any investigation or take any affirmative action to acquire any knowledge. The
MEMBERS shall indemnify and hold WPEC harmless from any and all expenses, costs,
obligations, and other liabilities under the terms of all permits which occur or
accrue prior to the Closing. The MEMBERS represent and warrant that WPEC's
purchase of the MEMBERS' Ownership Interests will not result in a breach of, a
default in, or an invalidation of any of the permits, in whole or in part.
4.7 Property Leases, Contracts, and Agreements: The
MEMBERS represent to their actual knowledge that all property leases, contracts,
and agreements (and all amendments thereto) for the Queen Creek and Flagstaff
operations, including, but not limited to, the BLM Contract, the Flagstaff Lease
Agreement, the Arizona State land Mineral Lease, and the CAP Water Contract are
valid and enforceable contracts and that no default or violation exists under
any of these leases, contracts, and agreements. For purposes of this paragraph,
"the actual knowledge of BASALITE" shall mean the actual knowledge of Xxxxx X.
Xxxxxxx who BASALITE represents is the officer of BASALITE who is most familiar
with such filings and operational documents of BASALITE without any imputation
of knowledge as a result of agency or constructive knowledge principles, and
without any obligation to undertake any investigation or take any affirmative
action to acquire any knowledge. The MEMBERS shall indemnify and hold WPEC
harmless from any and all expenses, costs, obligations, and other liabilities
under the terms of all such leases, contracts, and agreements which occur or
accrue prior to the Closing. The MEMBERS represent and warrant that WPEC's
purchase of the MEMBERS' Ownership Interests will not result in a breach of, a
default in, or an invalidation of any of the leases, contracts, and agreements,
in whole or in part.
4.8 Changes in Balance Sheet or Business: There will be
no material changes in the assets or liabilities or financial condition of
ARIZONA PACIFIC nor shall any contractual arrangement or obligation, other than
those in the normal course of business, be undertaken prior to the Closing
except as may be otherwise listed and provided for in this Agreement; and all
wages, salaries, commissions, indebtedness, and obligations of ARIZONA PACIFIC
to its members, managers, employees, and agents have been or will be discharged
at the Closing.
4.9 Pending Suits: No material suits, actions, or
proceedings are pending, or to the knowledge of the MEMBERS are threatened
against or affecting ARIZONA PACIFIC or its property.
4.10 Financial Statements: The profit and loss
statement, balance sheet and other financial documents supplied to WPEC are true
and correct and fairly represent the financial condition of ARIZONA PACIFIC, and
were prepared in accordance with generally accepted accounting principals and
practice.
5. WPEC's Representations and Warranties:
5.1 Good Standing of WPEC: WPEC is a corporation duly
organized and validly existing under the laws of the State of Delaware, and is
in good standing in such state; that the company has filed all returns with
respect to state and Federal income, franchise, employee, and other taxes of the
corporation, which, to the actual knowledge of the President, are required to be
filed for and with respect to all previous years since incorporation up to the
present and current fiscal year; and that the corporation has paid all taxes
shown to be due on such returns. For purposes of this paragraph, "the actual
knowledge of the President" shall mean the actual knowledge of C. Xxxx XxXxxx
who is the officer of the corporation who is most familiar with such filings and
operational documents of WPEC without any imputation of knowledge as a result of
agency or constructive knowledge principles, and without any obligation to
undertake any investigation or take any affirmative action to acquire any
knowledge.
5.2 Balance Sheet: WPEC is the owner of the assets
listed in the April 30, 2004, Balance Sheet attached hereto as Exhibit B.
5.3 Reclamation Bond: The reclamation bond recorded
against the Queen Creek Property shall remain in place. However, the obligations
of the MEMBERS and/or its predecessor in interest, PCBP, under said bond shall
be assumed by WPEC upon the transfer of ARIZONA PACIFIC to WPEC and WPEC shall
indemnify and hold the MEMBERS and PCBP harmless from any and all expenses,
costs, obligations, and other liabilities under the terms of that bond which
occur or accrue after the Closing. In furtherance of such assumption of
obligation, WPEC agrees to executed any other documentation required to
accurately reflect that WPEC has agreed to assume such reclamation obligations,
including but not limited to, replacing the current bond with one in the name of
WPEC.
5.4 Changes in Balance Sheet or Business: There will be
no material changes in the assets or liabilities or financial condition of WPEC
prior to the Closing except as may be otherwise listed and provided for in this
Agreement.
5.5 Pending Suits: No material suits, actions, or
proceedings are pending, or are threatened against or affecting WPEC or its
property.
5.6 Financial Statements: The profit and loss statement,
balance sheet and other financial documents supplied to the MEMBERS are true and
correct and fairly represent the financial condition of WPEC, and were prepared
in accordance with generally accepted accounting principals and practice.
6. AMT's Representations and Warranties:
6.1 Good Standing of AMT : AMT is a publicly-traded
corporation duly organized and validly existing under the laws of the State of
Nevada, and is in good standing in such state; that the corporation has filed
all returns with respect to state and Federal income, franchise, employee, and
other taxes of the corporation, which, to the actual knowledge of the President,
are required to be filed for and with respect to all previous years since
incorporation up to the present and current fiscal year; and that the
corporation has paid all taxes shown to be due on such returns. For purposes of
this paragraph, "the actual knowledge of the President" shall mean the actual
knowledge of H. Xxxxxx Xxxx who the shareholders represent is the officer of AMT
who is most familiar with such filings and operational documents of AMT without
any imputation of knowledge as a result of agency or constructive knowledge
principles, and without any obligation to undertake any investigation or take
any affirmative action to acquire any knowledge.
6.2 Balance Sheet: AMT is the owner of the assets listed
in the April 30, 2004, Balance Sheet attached hereto as Exhibit C.
6.3 Reclamation Bond: AMT recognizes and acknowledges
that the reclamation bond recorded against the Queen Creek Property shall remain
in place until WPEC is able to obtain a replacement bond in its own name.
However, the obligations of the MEMBERS and/or its predecessor in interest,
PCBP, under said bond
shall be assumed by WPEC and guaranteed by AMT upon the transfer of ARIZONA
PACIFIC to WPEC and WPEC and AMT shall jointly and severally indemnify and hold
the MEMBERS and PCBP harmless from any and all expenses, costs, obligations, and
other liabilities under the terms of that bond which occur or accrue after the
Closing.
6.4 Changes in Balance Sheet or Business: There will be
no material changes in the assets or liabilities or financial condition of AMT
prior to the Closing except as may be otherwise listed and provided for in this
Agreement.
6.5 Pending Suits: No suits, actions, or proceedings are
pending, or are threatened against or affecting AMT or its property.
6.6 Financial Statements: The profit and loss statement,
balance sheet and other financial documents supplied to the MEMBERS are true and
correct and fairly represent the financial condition of AMT, and were prepared
in accordance with generally accepted accounting principals and practice.
7. Documents at Closing: The Parties shall deliver or cause to be
delivered to the other at the closing the following:
7.1 The MEMBERS shall deliver:
7.1.1 Assignments or transfers acceptable to
WPEC of all membership interests in ARIZONA PACIFIC transferring all of the
interests in ARIZONA PACIFIC , including all of the voting rights, rights to
receive income, and management rights.
7.1.2 The original or a copy of the
Certificate of Limited Liability Company of ARIZONA PACIFIC, any minute books,
and all books, records, and documents pertaining to ARIZONA PACIFIC and its
affairs.
7.1.3 The original membership certificates,
if any, issued to each ARIZONA PACIFIC member.
7.1.4 The resignation in writing of all
managers of ARIZONA PACIFIC to be effective as of the date of the Closing.
7.1.5 Bills of sale, certificates of title,
and other documents evidencing title to all assets held by ARIZONA PACIFIC along
with evidence satisfactory to WPEC of payment or assumption by the MEMBERS of
ARIZONA PACIFIC obligations pursuant to paragraph 4.4 above.
7.1.6 A copy of the latest federal form 941
quarterly payroll tax return and Arizona state unemployment and payroll
quarterly tax returns for ARIZONA PACIFIC.
7.1.7 A list, as of the day prior to the
closing, of all employees of ARIZONA PACIFIC showing name, address, job title,
job description, and pay rate.
7.2 WPEC shall deliver to the MEMBERS the Note executed
by WPEC for the balance of the purchase price in a form substantially the same
as that attached hereto as Exhibit D. Upon execution of a ground lease between
ARIZONA PACIFIC and Arizona Block, WPEC shall execute a UCC-1 in favor of the
MEMBERS, or its assigns, to secure this Note. The Note shall include a provision
that if WPEC defaults on payment of the Note, WPEC will immediately assign all
rights under the Mineral Lease with the Bureau of Land Management to the MEMBERS
as attached hereto in Exhibit F and incorporated by this reference.
7.3 AMT shall deliver:
7.3.1 A fully executed guaranty of the Note
in a form substantially the same as that attached hereto as Exhibit E; and
7.3.1 A copy of the corporate resolutions
authorizing AMT to enter into the guaranty of the Note.
8. Indemnifications:
8.1 Indemnification by the MEMBERS: The MEMBERS shall
fully indemnify, protect, reimburse, and hold harmless WPEC and
ARIZONA PACIFIC and their successors from and against any and all damages,
liabilities, and claims which might exist on account of and by reason of failure
or default of any of the covenants, agreements, or warranties of the MEMBERS
hereunder, all known debts of ARIZONA PACIFIC at the Closing and which are not
disclosed or set forth in this Agreement, and any and all amounts which might be
claimed, asserted, or established as deficiencies in or with respect to Federal
or state income taxes, or franchise and other taxes and charges against ARIZONA
PACIFIC arising out of or related to the returns herein represented to have been
filed before Closing, and the operations of ARIZONA PACIFIC for or during all
fiscal years of ARIZONA PACIFIC before Closing, and all such deficiencies with
respect to operations and business of ARIZONA PACIFIC during such current fiscal
year up to the date of the Closing in excess of any amounts which have otherwise
been herein provided for. If any claim for which the MEMBERS shall be obligated
to WPEC pursuant to the foregoing provisions shall be asserted against ARIZONA
PACIFIC, or WPEC, or either of them, the MEMBERS shall, within ten (10) days
after receiving written notice of such claim, notify WPEC in writing whether the
MEMBERS object to the payment of such claim. A failure to notify WPEC of any
objection to the payment of such claim within ten (10) days after receiving
written notice of the claim shall be deemed consent to WPEC's payment of such
claim. The MEMBERS shall not object to the payment of any such claim unless the
MEMBERS shall at the same time inform WPEC in writing that the MEMBERS dispute
such claim, in whole or in part, and promptly initiate proper proceedings to
contact the same or undertake the appropriate defense thereof at the MEMBERS'
sole cost and expense in a manner which will effect fully to protect against any
liability and expense in connection therewith. If within such ten (10) day
notice period the MEMBERS have no objections to the payment of such claim, the
MEMBERS shall be obligated to pay such claim within five (5) days after the
expiration of the ten (10) day notice period. The failure of the MEMBERS to so
pay the claim and to obtain a release of ARIZONA PACIFIC and WPEC shall
constitute full authority for WPEC and/or ARIZONA PACIFIC to either contest the
claim or pay the claim and to obtain a release of ARIZONA PACIFIC, WPEC, and the
MEMBERS. In such event, WPEC shall be entitled to reimbursement from the MEMBERS
of the amount paid and all costs of defense including reasonable attorneys'
fees, and the MEMBERS shall, in such event, have no right to contest the
validity of the creditor's claim against ARIZONA PACIFIC or WPEC, as the case
may be. In the event the MEMBERS shall, within the ten (10) day notice period,
object in writing to the payment of such claim, and shall promptly initiate
proper proceedings to contact same or undertake the appropriate defense thereof,
WPEC shall not have the authority to pay such claim as hereinabove provided,
unless and until the claim, in whole or in part, is finally determined to be due
and owing, in which event WPEC and the MEMBERS shall be bound by the foregoing
provisions with respect to the payment of claims.
8.2 Indemnification by WPEC: WPEC, ARIZONA PACIFIC and
AMT shall, jointly and severally, fully indemnify, protect, reimburse, and hold
harmless the MEMBERS and their successors from and against any and all damages,
liabilities, and claims which might exist on account of and by reason of failure
or default of any of the covenants, agreements, or warranties of WPEC and/or AMT
hereunder, all debts of ARIZONA PACIFIC arising after the Closing, and any and
all amounts which might be claimed, asserted, or established as deficiencies in
or with respect to Federal or state income taxes, or franchise and other taxes
and charges against ARIZONA PACIFIC arising out of or related to the returns to
be filed after Closing, and the operations of ARIZONA PACIFIC for or during all
fiscal years of ARIZONA PACIFIC after Closing, and all such deficiencies with
respect to operations and business of ARIZONA PACIFIC during such current fiscal
year after the Closing. If any claim for which WPEC or ARIZONA PACIFIC shall be
obligated to the MEMBERS pursuant to the foregoing provisions shall be asserted
against the MEMBERS, then WPEC, ARIZONA PACIFIC and/or AMT shall, within
ten (10) days after receiving written notice of such claim, notify the MEMBERS
in writing whether WPEC, ARIZONA PACIFIC or AMT has any objection to the payment
of such claim. A failure to notify the MEMBERS of any objection to the payment
of such claim within ten (10) days after receiving written notice of the claim
shall be deemed consent to the MEMBERS' payment of such claim. WPEC, ARIZONA
PACIFIC and/or AMT shall not object to the payment of any such claim unless
WPEC, ARIZONA PACIFIC or AMT shall at the same time inform the MEMBERS in
writing that WPEC, ARIZONA PACIFIC and/or AMT dispute such claim, in whole or in
part, and promptly initiate proper proceedings to contact the same or undertake
the appropriate defense thereof at WPEC's, ARIZONA PACIFIC's and/or AMT's sole
cost and expense in a manner which will effect fully to protect against any
liability and expense in connection therewith. If within such ten (10) day
notice period WPEC, ARIZONA PACIFIC and/or AMT have no objections to the payment
of such claim, WPEC, ARIZONA PACIFIC and/or AMT shall be obligated to pay such
claim within five (5) days after the expiration of the ten (10) day notice
period. The failure of WPEC, ARIZONA PACIFIC and/or AMT to so pay the claim and
to obtain a release of the MEMBERS shall constitute full authority for the
MEMBERS to either contest the claim or pay the claim and to obtain a release of
ARIZONA PACIFIC, WPEC, AMT and the MEMBERS. In such event, the MEMBERS shall be
entitled to reimbursement from WPEC, ARIZONA PACIFIC and/or AMT of the amount
paid and all costs of defense including reasonable attorneys' fees, and WPEC,
ARIZONA PACIFIC and/or AMT shall, in such event, have no right to contest the
validity of the creditor's claim against the MEMBERS. In the event WPEC, ARIZONA
PACIFIC and/or AMT shall, within the ten (10) day notice period, object in
writing to the payment of such claim, and shall promptly initiate proper
proceedings to contact same or undertake the appropriate defense thereof, the
MEMBERS shall not have the authority to pay such claim as hereinabove provided,
unless and until the claim, in whole or in part, is finally determined to be due
and owing, in which event WPEC, ARIZONA PACIFIC, and the MEMBERS shall be bound
by the foregoing provisions with respect to the payment of claims.
9. Proration of Personal and Real Property Taxes: Personal and real
property taxes shall be prorated between the parties hereto as of the Closing.
If, after the Closing, a personal or real property tax xxxx becomes due, the
party receiving the xxxx shall immediately calculate the amount due from each
party and xxxx the other party for its share of the xxxx providing the other
party with a copy of the appropriate tax xxxx. The party receiving the prorated
xxxx shall pay to the party receiving the xxxx the amount due within thirty (30)
days of receipt of the prorated tax xxxx.
10. Finder's or Broker's Fees: Each of the parties represents and
warrants that it has dealt with no broker or finder in connection with any of
the transactions contemplated by this Agreement, and, insofar as it knows, no
broker or other person is entitled to any commission or finder's fees in
connection with any of these transactions.
11. Expenses: Each of the parties shall pay its own costs and
expenses incurred or to be incurred by it in negotiating and preparing this
Agreement and in Closing and carrying out the transactions contemplated by this
Agreement.
12. Effect of Headings; Schedules and Exhibits: The subject headings
of the sections of this Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of its
provisions. All schedules and exhibits to this Agreement are incorporated herein
in their entirety.
13. Entire Agreement; Modification; Waiver: This Agreement
constitutes the entire agreement between the parties pertaining to the subject
matter contained herein, except for any agreements referenced herein. This
Agreement supersedes all prior and contemporaneous agreements (other than these
entered into in writing contemporaneously with this Agreement), representations,
and understandings of the parties. No supplement, modification, or amendment to
this Agreement shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of this Agreement shall be deemed, or shall constitute, a
waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
14. Counterparts and Facsimile Signatures: This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
15. Parties in Interest: Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their respective
successors and assigns. Nothing in this Agreement is intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third person any right of
subrogation or action over or against any party to this Agreement.
16. Attorneys' Fees: If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in that action or proceeding, in addition to any other relief to which it or
they may be entitled.
17. Severability: Each term, covenant, condition or provision of
this Agreement shall be viewed as separate and distinct, and in the event that
any term, covenant, condition or provision shall be held by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue in full
force and effect.
18. Necessary Acts: Each party to this Agreement agrees to perform
any further acts and execute and deliver any further documents that may be
reasonably necessary to carry out the provision of this Agreement.
19. Construction: In any construction to be made of this Agreement,
the same shall not be construed for or against any of the parties but according
to the plain language and meaning thereof.
20. Interpretation: Should any dispute arise between the parties in
which interpretation of a clause or provisions of this Agreement is an issue,
the legal assumption that interpretation of an ambiguity shall be construed
against the drafter of the Agreement shall be ignored and it shall be assumed
that the parties to this Agreement jointly negotiated its provisions and
participated equally in its drafting.
21. Notices: All notices, requests, demands, directions, and other
communications (collectively "NOTICES" and singularly "NOTICE") under the
provisions of this Agreement shall be in writing (including communication by
facsimile machine) unless otherwise expressly permitted hereunder and shall be
sent by registered mail, return receipt requested, by overnight courier service,
or by facsimile transmission with confirmation in writing mailed first-class, in
all cases charges prepaid, and any such properly given Notice shall be effective
upon the earlier of receipt or (a) when delivered by hand or, (b) the third
business day after the mailing, or (c) the following business day if sent by
overnight courier, or when sent by facsimile, answer back received, all to be
addressed as follows:
If to the MEMBERS: If to AMT:
XXXXX XXXXXXX XXXXXX XXXX
BASALITE CONCRETE PRODUCTS, LLC ADVANCED MINERAL
00000 Xxxxx Xxxx Xx., #000 TECHNOLOGY OF NEVADA, INC.
Xxxxxx Xxxxxxx, XX 00000 Xxxxx 0, Xxx 0000
Fax: (000) 000-0000 Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to WPEC:
XXXX XXXXXX
WESTERN POWER & EQUIPMENT CORP.
0000-X X.X. 000xx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
All Notices shall be sent to the applicable party at the address
above or in accordance with the last unrevoked written direction from such party
to the other party hereto.
22. Governing Law: This Agreement and the rights and obligations of
the parties shall be governed and interpreted in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, the parties have duly executed this Agreement:
SELLER:
BASALITE CONCRETE PRODUCTS,
LLC, A NEVADA LIMITED LIABILITY COMPANY
Date: August 23, 2004 By: /s/ Xxxxx Xxxxxxx
--------------------------
XXXXX XXXXXXX
Its: Secretary
XXXXX XXXXXXXXX IRREVOCABLE TRUST
Date: August 24, 2004 By: /s/ Xxxxxx Xxxxxxxxx
--------------------------
XXXXXX XXXXXXXXX
Its: Duly Authorized Agent
PURCHASER:
WESTERN POWER & EQUIPMENT
CORPORATION, A DELAWARE CORPORATION
Date: September 8, 2004 By: /s/ C. Xxxx XxXxxx
--------------------------
C. XXXX XXXXXX
Its: President
GUARANTOR:
ADVANCED MINERAL TECHNOLOGY
OF NEVADA, INC., A NEVADA CORPORATION
Date: August 23, 2004 By: /s/ H. Xxxxxxx Xxxx
--------------------------
H. XXXXXXX XXXX
Its: President
EXHIBIT A
BALANCE SHEET DATED MARCH 31, 2004, OF
ARIZONA PACIFIC MATERIALS, LLC
EXHIBIT B
BALANCE SHEET DATED APRIL 30, 2004 OF
WESTERN POWER & EQUIPMENT CORP.
EXHIBIT C
BALANCE SHEET DATED APRIL 30, 2004, OF
ADVANCED MINERAL TECHNOLOGY OF NEVADA, INC.
EXHIBIT D
FORM OF NOTE
EXHIBIT E
FORM OF GUARANTY
EXHIBIT F
BUREAU OF LAND MANAGEMENT MINERAL LEASE
