**Exhibit 10.23**

** **

**LEASE GUARANTY**

 

THIS LEASE GUARANTY (“Guaranty”)is made this    7    day of  March             , 2008, by the undersigned(hereinafter referred to as “Guarantor”, whether one or more) in favorof Alliance Gateway No. 23, Ltd., a Texas limited partnership (“Landlord”).

 

FOR VALUE RECEIVED, Guarantorhereby unconditionally, irrevocably and absolutely guarantees to Landlord theprompt and full payment and performance, when due, subject to any notice andcure rights of Tenant set forth in the Lease, of all obligations and covenantsof ENTECH, Inc. (“Tenant”), fixed or contingent, arising out of theLease Agreement dated                                                                ,2008, executed by and between Tenant and Landlord and any and all renewals,extensions, amendments, and modifications thereof (collectively, the “Lease”),or which Tenant, or its successors or assigns, may in any other manner now orat any time hereafter owe Landlord in connection with the Lease, including, butnot limited to, rent, taxes, insurance, operating expenses, maintenance costs,damages and expenses resulting from Tenant’s default under the Lease, interestand collection costs (collectively, the “Obligations”).

 

1.             **CONTINUING GUARANTY**.  This is a continuing Guaranty and shall applyto the Obligations and any renewals, extensions, amendments, modifications,waivers and transfers thereof.

 

2.             **OTHER REMEDIES**.  Landlord shall not be required to pursue anyother remedies before invoking the benefits of this Guaranty; specifically,Landlord shall not be required to take any action against Tenant or any otherperson, to exhaust its remedies against any other guarantor of the Obligations,any collateral or other security, or to resort to any balance of any depositaccount or credit on the books of Landlord in favor of Tenant or any otherperson.

 

3.             **OBLIGATIONS NOT IMPAIRED**.  Prior to performance and satisfaction in fullof the Obligations, the liability of Guarantor under this Guaranty shall not bereleased or impaired without the prior written consent of Landlord, except asprovided in Section 18 hereof. Without limiting the generality of the foregoing, the liability ofGuarantor shall not be released or impaired on account of any of the followingevents:

 

(a)           the voluntary or involuntaryliquidation, sale or other disposition of all or substantially all of theassets of Tenant, or any receivership, insolvency, bankruptcy, reorganizationor other similar proceedings affecting Tenant or any of its assets;

 

(b)           the addition of a new guarantor orguarantors;

 

(c)           any bankruptcy or insolvencyproceedings against or by Tenant, its property, or its estate or anymodification, discharge or extension of the Obligations resulting from theoperation of any present or future provision of the United States BankruptcyCode or any other similar federal or state statute, or from the decision of anycourt, it being the intention hereof that Guarantor shall remain liable on theObligations notwithstanding any act, omission, order, judgment or event whichmight, but for the provisions hereof, otherwise operate as a legal or equitabledischarge of Guarantor;

 

 

 

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(d)           Landlord’s failure to use diligencein preserving the liability of any person on the Obligations, or in bringingsuit to enforce collection of the Obligations;

 

(e)           the substitution or withdrawal ofcollateral, or release of collateral, or the exercise or failure to exercise byLandlord of any right conferred upon it herein or in any collateral agreement;

 

(f)            if Tenant is not liable for any ofthe Obligations because the act of creating the Obligations is ultra vires, orthe officers or persons creating the Obligations acted in excess of theirauthority, or for any reason the Obligations cannot be enforced against Tenant;

 

(g)           any payment by Tenant to Landlord ifsuch payment is held to constitute a preference under the bankruptcy laws, orif for any other reason Landlord is required to refund such payment to Tenantor pay the amount thereof to any other party;

 

(h)           if this Guaranty is ever deemedinvalid or unenforceable as to the Guarantor;

 

(i)            any extension, renewal, amendment,or modification of the Lease; or

 

(j)            any assignment of the Lease orsubletting of all or any portion of the premises leased pursuant to the Leaseexcept as expressly permitted therein without Landlord’s consent.

 

4.             **BENEFIT TO GUARANTOR**.  Guarantor acknowledges and warrants that itderives or expects to derive financial and other advantage and benefit,directly or indirectly, from the Lease, the Obligations and the release ofcollateral or other relinquishment of legal rights made or granted or to bemade or granted by Landlord to Tenant. Guarantor acknowledges that, in entering into the Lease, Landlord isrelying on Guarantor’s agreements contained in this Guaranty and on Guarantor’screditworthiness.  Guarantor acknowledgesthat Landlord would not have entered into the Lease without Guarantor’sguarantee of the Obligations pursuant to the terms hereof.

 

5.             **JOINT AND SEVERALLIABILITY**.  Unless thecontext clearly indicates otherwise, “Guarantor” shall mean the guarantorhereunder, or any of them, if more than one. The obligations of said guarantors hereunder if more than one, shall bejoint and several.  Suit may be broughtagainst said guarantors jointly and severally, and against any one or more ofthem, or less than all, without impairing the rights of Landlord against theothers of said guarantors; and Landlord may compromise with any one of saidguarantors for such sums or sum as it may see fit and release such of saidguarantors from all further liability to Landlord for such indebtedness withoutimpairing the right of Landlord to demand and collect the balance of suchindebtedness from others of said guarantors not so released; but it is agreedamong said guarantors themselves, however, that such compromising and releaseshall not impair the rights and obligations of said guarantors as amongthemselves.

 

6.             **CHANGE INCOMPOSITION**.  Should thestatus, composition, structure or name of Tenant change, including, but notlimited to, by reason of a merger, dissolution, 

 

 

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consolidation orreorganization, this Guaranty shall continue and also cover the indebtednessand Obligations of Tenant under the new status, composition structure or nameaccording to the terms hereof.  If Tenantis a general or limited partnership, no termination of said partnership, norwithdrawal therefrom by, or termination of any ownership interest therein ownedby, any general or limited partner of such partnership shall alter, limit ormodify Guarantor’s obligations set forth in this Guaranty or otherwise affectthis Guaranty in any manner whatsoever, all of which obligations of Guarantorshall remain in effect as herein written.

 

7.             **WAIVER ANDSUBROGATION OF GUARANTOR’S RIGHTS AGAINST TENANT**.  Until all of Tenant’s obligations under theLease are fully performed, Guarantor

 

a.                                       waivesany rights that Guarantor may have against Tenant by reason of any one or morepayments or acts in compliance with the obligations of Guarantor under this Guaranty;and

 

b.                                      subordinatesany liability or indebtedness of Tenant held by Guarantor to the obligations ofTenant to Landlord under the Lease.

 

8.             **DEATH OR DISSOLUTION OFGUARANTOR**.  Upon thedeath, dissolution or bankruptcy of Guarantor, the liability of Guarantor shallcontinue against its assets as to all Obligations which shall have beenincurred by Tenant.

 

9.             **FINANCIAL STATEMENTS**.  The Guarantor warrants and represents toLandlord that all financial statements heretofore delivered by Guarantor to Landlordare true and correct in all material respects and there are no material adversechanges with respect thereto as of the date hereof.  Guarantor further agrees to deliver true,correct and complete current, audited financial statements (which shall include,at a minimum, a balance sheet, profit and loss statement), bank references andDun & Bradstreet reports on Guarantor, if available within ten (10) daysafter the same are publicly released and ten (10) business days writtennotice from Landlord.

 

10.           **WAIVER OF NOTICE**.  Guarantor waives diligence on the part ofLandlord in the collection and enforcement of the Obligations, protest, and allextensions that may be granted to Tenant with respect thereto.  Guarantor waives notice of acceptance of thisGuaranty.  Guarantor additionally waivesgrace, demand, presentment, notice of demand and all other notices (to theextent allowed by law).

 

11.           **LIMITATION ON INTEREST**.  To the extent that any law limiting theamount of interest that may be contracted for, charged or received isapplicable to the indebtedness of Guarantor under this Guaranty, no provisionof this Guaranty shall require the payment or permit the collection of any sumin excess of the maximum lawful amount of interest applicable to Guarantor’sindebtedness under this Guaranty.  If anysum in excess of the maximum lawful amount applicable to Guarantor’sindebtedness under this Guaranty is provided for herein, the provision of thisparagraph shall govern, and Guarantor shall not be obligated to pay any sum inexcess of the maximum lawful amount applicable to Guarantor’s indebtednessunder this Guaranty.  The intention ofGuarantor and Landlord hereunder is to comply with all laws applicable to thisGuaranty and Guarantor’s liability hereunder.

 

 

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12.           **MODIFICATION OR CONSENT**.  No modification, consent or waiver of anyprovision of this Guaranty, nor consent to any departure by Guarantortherefrom, shall be effective unless the same shall be in writing and signed byLandlord, and then shall be effective only in the specific instance and for thepurpose for which given.  No notice to ordemand on Guarantor, in any case shall, of itself, entitle Guarantor to any otheror further notice or demand in similar or other circumstances.  No delay or omission by Landlord inexercising any power or right hereunder shall impair any such right or power orbe construed as a waiver thereof or any acquiescence therein, nor shall anysingle or partial exercise of any such power preclude other or further exercisethereof or the exercise of any other right or power hereunder.  All rights and remedies of Landlord hereunderare cumulative of each other and of every other right or remedy which Landlordmay otherwise have at law or in equity or under any other contract or document,and the exercise of one or more rights or remedies shall not prejudice orimpair the concurrent or subsequent exercise of other rights or remedies.

 

13.           **INDUCEMENT TO LANDLORD**.  Guarantor acknowledges that this Guaranty isgiven to induce Landlord to enter into the Lease and to extend credit to Tenantwhich would not be extended except in reliance upon this Guaranty.

 

14.           **ATTORNEYS’ FEES**.  If a lawsuit is instituted in connection withthis Guaranty, then Guarantor agrees to pay to Landlord all expenses incurredin connection with such lawsuit (including, but not limited to, reasonableattorneys’ fees and costs of court).

 

15.           **SUCCESSORS AND ASSIGNS**.  This Guaranty is for the benefit of Landlord,and its successors or assigns.  Landlordmay assign its rights hereunder in whole or in part; and, upon any suchassignment, all the terms and provisions of this Guaranty shall inure to thebenefit of such assignee, to the extent so assigned.  The liability of Guarantor hereunder shall bebinding upon all heirs, estates, executors, administrators, legalrepresentatives, successors and assigns of Guarantor.

 

16.           **HEADINGS**.  The section headings hereof are inserted forconvenience of reference only and shall not alter, define or be used inconstruing the text of this instrument.

 

17.           **PLACE OF PERFORMANCE**.  Guarantor agrees that this agreement isperformable in Tarrant County, Texas. Suit on this Guaranty may be brought in any state or federal court inTarrant County, Texas and Guarantor waives the right to be sued elsewhere.  This Guaranty shall be deemed to have beenmade under and shall be governed by the laws of the State of Texas in allrespects.

 

18.           **TERM**.  This Guaranty shall terminate only when allof the Obligations have been fully performed and satisfied.

 

19.           **GUARANTY OF PAYMENT ANDPERFORMANCE**.  This is aguaranty of payment and performance and not a guaranty of collection.

 

20.           **PAST DUE AMOUNTS**.  All past due payments of the Obligationsshall bear interest at the lesser of (a) the maximum lawful rate, or (b) eighteenpercent (18%).

 

 

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21.           **REPRESENTATIONS**.  Guarantor represents and warrants to Landlordthat (i) Guarantor has executed this Guaranty of its free will and accord;(ii) Guarantor has read and understands the terms of this Guaranty and theLease; (iii) Guarantor has had the opportunity to have this Guaranty andthe Lease reviewed by an attorney of Guarantor’s choice; and (iv) thisGuaranty is duly authorized and valid, and is binding upon and enforceableagainst Guarantor.

 

22.           **ENTIRE AGREEMENT**.  Guarantor acknowledges and agrees that thisGuaranty accurately represents and contains the entire agreement betweenGuarantor and Landlord with respect to the subject matter hereof, thatGuarantor is not relying, in the execution of this Guaranty, on anyrepresentations (whether written or oral) made by or on behalf of Landlordexcept as expressly set forth in this Guaranty, and that any and all priorstatements and/or representations made by or on behalf of Landlord to Guarantor(whether written or oral) in connection with the subject matter hereof aremerged herein.  This Guaranty shall notbe waived, altered, modified or amended as to any of its terms or provisionsexcept in writing duly signed by Landlord and Guarantor.

 

23.           **SEVERABILITY**.  A determination that any provision of thisGuaranty is unenforceable or invalid shall not affect the enforceability orvalidity of any other provision.

 

24.           **WAIVER OF RIGHT TOJURY TRIAL**.  GUARANTOR, TOTHE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY,INTENTIONALLY, IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY, WITH AND UPON THEADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES ALL RIGHTTO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM BASED UPON,ARISING OUT OF, OR IN ANY WAY RELATING TO THIS GUARANTY OR THE LEASE OR ANYCONDUCT, ACT, FAILURE TO ACT OR OMISSION OF OR BY LANDLORD OR GUARANTOR, OR ANYOF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTSOR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LANDLORD OR GUARANTOR, INEACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE,OR IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS GUARANTY OR THELEASE.  IT IS AGREED AND UNDERSTOOD THATTHIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALLPARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHOARE NOT PARTIES TO THIS GUARANTY.  THISWAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTORHEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BYANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFYOR NULLIFY ITS EFFECT.  GUARANTOR FURTHERREPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THISGUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HASHAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OFITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVERWITH COUNSEL.  Neither this provision norany provision in the Lease regarding waiver of jury trial or submission to jurisdictionor venue in any court is intended or shall be construed to be in derogation ofany provision herein or in the Lease for arbitration of any controversy orclaim.

 

 

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25.           **STATE SPECIFICPROVISIONS**.  To the extentallowed by law, this Guaranty shall be effective as a waiver of, and Guarantorwaives, any and all rights to which Guarantor may otherwise have been entitledunder any suretyship laws or similar laws in effect from time to timeincluding, but not limited to, Chapter 34 of the *TexasBusiness and Commerce Code*, Rule 31 of the *Texas Rules of Civil Procedure*, and Section 17.001of the *Texas Civil Practice &Remedies Code*.

 

[signatures on the following page]

 

 

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IN WITNESS WHEREOF, Guarantorhas executed this Guaranty as of the day and year first written above.

 
|                              |   | **GUARANTOR:**                                  |
|-----------------------------------|--------|-------------------------------------------------|
|                              |   |                                            |
| ADDRESS OF GUARANTOR:             |   | WorldWater & Solar Technologies Corp., |
|                              |   | a Delaware corporation                          |
|                              |   |                                            |
|                              |   |                                            |
|                              |   | By:                                             | /s/ Larry L. Crawford |
| 200 Ludlow Drive, Ewing, NJ 08638 |   | Name:                                           |   |
|                              |   | Title:                                          |   |
|                              |   |                                            |
| THE STATE OF                      |   | §                                          |   |   |
|                              |   | §                                          |   |   |
| COUNTY OF                         |   | §                                          |   |   |
|                                   |        |                                                 |  |  |  |  |  |  |

 

This instrument wasacknowledged before me on the         day of                        ,2008, by                                                                                                                            of WorldWater & Solar Technologies Corp., on behalf of saidcorporation.

 

|                   |   |                                   |
|------------------------|--------|----------------------------------------|
|                   |   | Notary Public, State of ______________ |
|                   |   |                                   |
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| My Commission Expires: |   | Notary’s Printed/Typed Name       |
|                   |   |                                   |
|                   |   |                                   |   |
|                        |        |                                        |  |

 

 

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