DeWees Guaranty
Exhibit
10.10
▇▇▇▇▇▇
Guaranty
This
Continuing Guaranty of Payment (“Guaranty”) is made and delivered this 30th day
of November, 2007, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“▇▇▇▇▇▇”).
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 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ in Massillon, Ohio, and at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ in Cincinnati, Ohio.
▇. ▇▇▇▇▇▇
has been the President of 3-D since its inception. BDeWees, Inc., an
Ohio corporation which is wholly owned by ▇▇▇▇▇▇, has owned fifty percent (50%)
of 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 BDeWees, Inc.
D. Magnetech
would not have been willing to enter into the Membership Interest Purchase
Agreement without the agreement of DeWees to execute this Guaranty, along with
the execution of a similar agreement by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(“Embrescia”).
E. The
consummation by Magnetech of the transactions contemplated by the Membership
Interest Purchase Agreement is in reliance upon the assurance of ▇▇▇▇▇▇ 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 DeWees, directly or indirectly, through the Membership Interest
Purchase Agreement, and as an inducement to Magnetech to enter into the
Membership Interest Purchase Agreement, DeWees hereby agrees as
follows:
▇▇▇▇▇▇
hereby promises and guarantees to Magnetech that upon failure of BDeWees, Inc.,
to promptly and fully pay any and all Indebtedness (as defined below), ▇▇▇▇▇▇,
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 BDeWees, Inc., 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 BDeWees,
Inc., 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 ▇▇▇▇▇▇’ 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 BDeWees, Inc., of the Membership
Interest Purchase Agreement or any document, instrument or agreement ancillary
to the Membership Interest Purchase Agreement.
The
liability of ▇▇▇▇▇▇ hereunder shall be discharged and this Guaranty shall
terminate 120 days after payment in full of the Indebtedness if within such
120-day period no petition is filed by or against BDeWees, Inc., pursuant to
the
United States Bankruptcy Code, as amended from time to time, or under any
similar law of any jurisdiction. If such a petition is filed within
said 120-day period, this Guaranty shall continue and shall remain in full
force
and effect until such time as the Indebtedness has been paid in full and is
no
longer subject to repayment by, or recovery from, Magnetech under any such
law.
Magnetech
may take new, additional or substitute security for the Indebtedness without
releasing or impairing the obligation of DeWees to Magnetech hereunder, which
security may be taken without notice to ▇▇▇▇▇▇. The liability of
▇▇▇▇▇▇ hereunder shall not be affected or impaired by any irregularity in or
amendment of the Membership Interest Purchase Agreement or any documents or
instruments executed in connection therewith. ▇▇▇▇▇▇ agrees that this
instrument shall be binding on his heirs, personal representatives, successors
and assigns to the extent that such persons receive any portion of the proceeds
▇▇▇▇▇▇ receives, directly or indirectly, from the Membership Interest Purchase
Agreement, and that the rights and benefits of this Guaranty shall inure to
the
benefit of the successors and assigns of Magnetech.
Magnetech
shall have the right to apply all amounts received hereunder, in such amounts
and in such proportions as Magnetech in its sole discretion shall determine,
to
the costs and expenses of enforcement and collection under this Guaranty and
to
the full or partial satisfaction of the Indebtedness. Demand for
payment under this Guaranty shall be effective upon Magnetech placing notice
in
the United States mail addressed to ▇▇▇▇▇▇ at the addresses stated below by
first class, registered, or certified mail.
This
Guaranty shall be interpreted, construed and governed by the laws of the State
of Ohio, without regard to conflicts of law principles. The parties
expressly consent to exclusive personal jurisdiction and venue in the federal
and state courts of the State of Ohio. Wherever possible, each provision
of this Guaranty shall be interpreted in such manner as to be effective and
valid under applicable law, and any provision of this Guaranty prohibited or
unenforceable under applicable law shall be ineffective only to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions of this Guaranty.
So
Agreed
and signed this 30th day of November, 2007.
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▇. ▇▇▇▇▇▇
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| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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COUNTY
OF ▇▇▇▇▇
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)SS:
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STATE
OF OHIO
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Before
me, the undersigned, a Notary
Public in and for said County and State, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
who acknowledged the execution of the foregoing Instrument on the date of its
execution set forth above.
WITNESS
my hand and Seal this 30th day of November, 2007.
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My
Commission Expires:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
,
Notary Public
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[SEAL]
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Resident
of ▇▇▇▇▇ County,
Ohio
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