GUARANTY OF EMBRESCIAGuarantee Agreement |
|
|
You are currently viewing: This Guarantee Agreement involves
MISCOR GROUP, LTD. | My Commission. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Guarantee Agreement by:
Exhibit
10.9
EMBRESCIA
GUARANTY
This
Continuing Guaranty of Payment (“Guaranty”) is made and delivered this 30th day
of November, 2007, by Thomas J. Embrescia (“Embrescia”).
RECITALS:
A. 3-D
Service, Ltd. (“3-D”) has been engaged in the business of selling, repairing,
remanufacturing and maintaining industrial electrical and mechanical equipment
from its locations at 800 Nave Road SE in Massillon, Ohio, and at 870
Crescentville Road in Cincinnati, Ohio.
B. Embrescia
has been the Chairman of Board of 3-D since its inception. Through
XGen III, Ltd., an Ohio limited liability company owned 90% by XGEN Ltd. and
10%
by Venture Equity & Derivative Investment, LLC (“XGen”), Embrescia has also
had an ownership or beneficial interest in 3-D since its inception.
C. Pursuant
to the 3-D Membership Interest Purchase Agreement (the “Membership Interest
Purchase Agreement”), executed on November 30, 2007, Magnetech Industrial
Services, Inc. (“Magnetech”) has purchased all of the Membership Interest Units
of 3-D, including all Units owned by XGen III, Ltd.
D. Magnetech
would not have been willing to enter into the Membership Interest Purchase
Agreement without the agreement of Embrescia to execute this Guaranty, along
with the execution of a similar agreement by Bernard L. DeWees
(“DeWees”).
E. The
consummation by Magnetech of the transactions contemplated by the Membership
Interest Purchase Agreement is in reliance upon the assurance of Embrescia
that
he will comply fully with all of the terms and conditions of this
Guaranty.
NOW,
THEREFORE, in consideration of the payments, promises and other benefits made
to
or conveyed to Embrescia, directly or indirectly, through the Membership
Interest Purchase Agreement, and as an inducement to Magnetech to enter into
the
Membership Interest Purchase Agreement, Embrescia hereby agrees as
follows:
Embrescia
hereby promises and guarantees to Magnetech that upon failure of XGen III,
Ltd.,
to promptly and fully pay any and all Indebtedness (as defined below),
Embrescia, subject to the limitations of the Cap, hereinafter defined, shall
pay
all Indebtedness to Magnetech on demand together with all expenses of enforcing
this Guaranty, including attorneys’ fees, expenses and all other costs of
collection under this Guaranty. This Guaranty constitutes and is an
absolute, unconditional and continuing guarantee of payment and shall apply
to
each and every default in payment by XGen III, Ltd., which gives rise to
Indebtedness. Subject to the limits of the Cap, it is understood that repeated
and successive demands may be made and recoveries had hereunder.
In
this
Guaranty, “Indebtedness” means all indebtedness and obligations of XGen III,
Ltd., now or hereafter owing to Magnetech under Section 8.02 of the Membership
Interest Purchase Agreement, whether such indebtedness or obligations be direct
or indirect, absolute or contingent, or primary or secondary.
The
aggregate amount of Embrescia’ guaranty obligations for any and all Indebtedness
shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000.00)
(the
“Cap”), provided that the Cap shall not apply to any Indebtedness
related to any willful or fraudulent breach by XGen III, Ltd., of the Membership
Interest Purchase Agreement or any document, instrument or agreement ancillary
to the Membership Interest Purchase Agreement.
The
liability of Embrescia hereunder shall be discharged and this Guar
