GUARANTY
Exhibit
10.4
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GUARANTOR
NAME AND ADDRESS
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LENDER
NAME AND ADDRESS
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MFB
FINANCIAL
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NUMBER
70-0028852
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0000
X. XXXXXX XXXXXX
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0000
XXXXXX XXXXX XXXXXXX,
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SOUTH
BEND, IN 46619
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SUITE
300
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AMOUNT
5,000,000.00
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XXXXXXXXX,
IN 46545
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DATE
FEBRUARY 28, 2007
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DATE.
The
date of this Guaranty is March 9, 2007.
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Lender (with its participants, successors and
assigns), at its option, at any time or from time to time to make loans or
extend other accommodations to or for the account of HK
ENGINE COMPONENTS, LLC
(Borrower or to engage in any other transactions with Borrower, the Guarantor
hereby absolutely and unconditionally guarantees to the Lender the full and
prompt payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, of the debts, liabilities and obligations described
as follows:
INDEBTEDNESS.
£ Specific
Debts.
The
Guarantor guarantees to Lender the payment and performance of the debt,
liability or obligation of Borrower to Lender evidenced by or arising out of
the
following: _____________________________________________________ and any
extensions, renewals or replacements thereof (Indebtedness).
T All
Debts.
Except
as this Guaranty may otherwise provide, the Guarantor guarantees to Lender
the
payment and performance of each and every debt, liability and obligation of
every type and description which Borrower may now or at any time hereafter
owe
to Lender (whether such debt, liability or obligation now exists or is hereafter
created or incurred, and whether it is or may be direct or indirect, due or
to
become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several, or joint and several; all such debts,
liabilities and obligations (indebtedness)). Without limitation, this Guaranty
includes the following described debt(s):
PROMISSORY
NOTE #70-0028852 DATED 2/28/07 IN THE AMOUNT OF $5,000,000.00
Exclusions.
£ Guarantor
will be liable for $___________________ of the principal amount of the
Indebtedness outstanding at default and for all of the accrued interest, and
the
expenses of collection, enforcement or protection of Xxxxxx’s rights and
remedies under this Guaranty, including reasonable attorneys’ fees.
£ Guarantor’s
liability will not exceed ____________% of the Indebtedness outstanding at
default and all of the accrued interest, and the expenses of collection,
enforcement or protection of Xxxxxx’s rights and remedies under this Guaranty,
including reasonable attorneys’ fees.
£ Indebtedness
Excludes:
SECURITY
£ the
Guaranty is unsecured.
T secured
by SECURITY
AGREEMENT DATED OF EVEN DATE HEREWITH, AND ALL SECURITY AGREEMENTS GIVEN IN
THE
FUTURE OF GUARANTOR IN FAVOR OF XXXXXX, REGARDLESS OF WHETHER SUCH SECURITY
AGREEMENTS STATE THAT THEY SECURE THIS GUARANTY .
SIGNATURES.
By signing under seal, Xxxxxxxxx agrees to the terms contained in this Guaranty
(including those on page 2). Guarantor also acknowledges receipt of a copy
of
this Guaranty.
ADDITIONAL
PROVISIONS
The
Guarantor further acknowledges and agrees with Xxxxxx that:
1. No
act or
thing need occur to establish the liability of the Guarantor hereunder, and
no
act or thing, except full payment and discharge of all Indebtedness, shall
in
any way exonerate the Guarantor or modify, reduce, limit or release the
liability of the Guarantor hereunder.
2. This
is
an absolute, unconditional and continuing Guaranty of payment of the
Indebtedness and will continue to be enforceable against the Guarantor, whether
or not all Indebtedness is paid in full, until this Guaranty Is revoked by
written notice actually received by the Lander. Any revocation shall not be
effective as to any Indebtedness existing or committed to at the time of actual
receipt of notice by the Lender, or as to any renewals, extensions and
refinancings thereof.
The
Guarantor represents and warrants to the Lender that the Guarantor has a direct
and substantial economic interest in Borrower and expects to derive substantial
benefits therefrom and from any loans and financial accommodations resulting
from the creation of Indebtedness guaranteed hereby, and that this Guaranty
is
given for a business purpose. The Guarantor agrees to rely exclusively on its
right to revoke this Guaranty prospectively as to future transactions, by
written notice actually received by Xxxxxx if at any time, the benefits then
being received by the Guarantor in connection with this Guaranty are not
sufficient to warrant its continuance as a Guarantor as to future Indebtedness.
Accordingly, the Lender may rely conclusively on a continuing warranty, hereby
made, that the Guarantor continues to be benefited by this Guaranty and that
the
Lender has no duty to inquire into or confirm the receipt of any benefits,
and
that this Guaranty will be enforceable without regard to the receipt, nature
or
value of any such benefits,
3. If
the
Guarantor is dissolved or becomes insolvent, however defined, or revokes this
Guaranty, than the Lander has the right to declare the full amount of all
Indebtedness immediately due and payable, and the Guarantor will forthwith
pay
the Lender. If the Guarantor voluntarily commences or there is commenced
involuntarily against the Guarantor a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or unmatured,
will become immediately due and payable without demand or notice
thereof.
4. The
Guarantor will be liable for all Indebtedness, without any limitation as to
amount, plus accrued interest thereon and all attorneys’ fees, collection costs
and enforcement expenses referable thereto. Indebtedness may be created and
continued in any amount, whether or not in excess of such principal amount,
without affecting or impairing the liability of the Guarantor hereunder. The
Lender may apply any sums received by or available to the Lender on account
of
the indebtedness from Borrower or any other person (except the Guarantor),
from
their properties, out of any collateral security or from any other source to
payment of the excess. Such application of receipts will not reduce, affect
or
impair the liability of the Guarantor hereunder. If the liability of the
Guarantor is limited pursuant to this paragraph 4, any payment made by the
Guarantor under this Guaranty will be effective to reduce or discharge its
liability only if accompanied by a written transmittal document, received by
the
Lender, advising that such payment is made under this Guaranty for that
purpose.
5. The
Guarantor will pay or reimburse the Lender for all costs and expenses (including
reasonable attorneys’ fees and legal expenses) incurred by the Lender in
connection with the protection, defense or enforcement of this Guaranty in
any
litigation or bankruptcy or insolvency proceedings.
6. Whether
or not any existing relationship between the Guarantor and Borrower has been
changed or ended and whether or not this Guaranty has been revoked, the Lender
may, but shall not be obligated to, enter into transactions resulting in the
creation or continuance of Indebtedness, without any consent or approval by
the
Guarantor and without any notice to the Guarantor. The liability of the
Guarantor will not be affected or impaired by any of the following acts or
things (which the Lender is expressly authorized to do, omit or suffer from
time
to time, both before and after revocation of this Guaranty, without notice
to or
approval by the Guarantor): (i)
any
acceptance of collateral security, Guarantor’s, accommodation parties or
sureties for any or all Indebtedness; (ii)
any one
or more extensions or renewals of Indebtedness (whether or not for longer than
the original period) or any modification of the interest rates, maturities
or
other contractual terms applicable to any Indebtedness; (iii)
any
waiver adjustment, forbearance, compromise or indulgence granted to Borrower,
any delay or lack of diligence in the enforcement of Indebtedness, or any
failure to institute proceedings, file a claim, give any required notices or
otherwise protect any Indebtedness; (iv)
any full
or partial release of, settlement with, or agreement not [missing
text]
7. [missing
text] waiver,
release, estoppel, statute of limitations, res judicata, statute of frauds,
fraud, forgery, incapacity, minority, usury, illegality or unenforceability
which may be available to Borrower or any other person liable in respect of
any
Indebtedness, or any setoff available against the Lender to Borrower or any
such
other person, whether or not on account of a related transaction. The Guarantor
expressly agrees that the Guarantor will be liable, to the fullest extent
permitted by applicable law, for any deficiency remaining after foreclosure
of
any mortgage or security interest securing Indebtedness, whether or not the
liability of Borrower or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision. The Guarantor shall remain obligated,
to the fullest extent permitted by law, to pay such amounts as though Borrower’s
obligations had not been discharged.
8. The
Guarantor further agree(s) that Guarantor will be obligated to pay Indebtedness
even though any other person obligated to pay Indebtedness, Including Borrower,
has such obligation discharged in bankruptcy or otherwise discharged by law.
“Indebtedness” shall include post-bankruptcy petition interest and attorneys’
fees and any other amounts which Borrower is discharged from paying or which
do
not accrue to Indebtedness due to Borrower’s discharge, and Guarantor will be
obligated to pay such amounts as fully as if Borrower’s obligations had not been
discharged,
9. If
any
payment applied by the Lender to Indebtedness is thereafter set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of Borrower
or
any other obligor), the Indebtedness to which such payment was applied will
for
the purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty will be enforceable as
to
such Indebtedness as fully as if such application had never been
made.
10. The
Guarantor waive(s) any claim, remedy or other right which the Guarantor may
now
have or hereafter acquire against Borrower or any other person obligated to
pay
Indebtedness arising out of the creation or performance of the Guarantor’s
obligation under this Guaranty, including, without limitation, any right of
subrogation, contribution, reimbursement, indemnification, exoneration or any
right to participate in any claim or remedy the Guarantor may have against
the
Borrower, collateral, or other party obligated for Borrower’s debt, whether or
not such claim, remedy, or right arises In equity, or under contract, statute
or
common law.
11. The
Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment, and protest of any instrument evidencing Indebtedness. The Lender
will not be required first to resort for payment of the Indebtedness to Borrower
or other persons or their properties, or first to enforce, realize upon or
exhaust any collateral security for Indebtedness, before enforcing this
Guaranty.
12. The
liability of the Guarantor under this Guaranty is in addition to and is
cumulative with all other liabilities of the Guarantor to the Lander as
Guarantor or otherwise, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
13. To
induce
Xxxxxx to enter into the Loan, Guarantor makes these representations and
warranties for as long as Guaranty is in effect. Guarantor is duty organized,
validly existing and in good standing under the laws in the jurisdiction where
Guarantor was organized and is duty qualified, validly existing and in good
standing in all jurisdictions in which Guarantor operates or Guarantor owns
or
leases property. Guarantor has the power and authority to enter into this
transaction and to carry on Guarantor’s business or activity as now conducted.
The execution, delivery and performance of this Guaranty and the obligation
evidenced by this Guaranty: are within Guarantor’s duly authorized powers; has
received all necessary governmental approval; will not violate any provision
of
law or order of court or governmental agency; and will not violate any agreement
to which Guarantor is a party or to which Guarantor is or any of Guarantor’s
property is subject. Other than previously disclosed in writing to Lender,
Guarantor has not changed Guarantor’s name or principal place of business within
the last ton years and has not used any other trade or fictitious name. Without
Xxxxxx’s prior written consent, Guarantor does not and will not use any other
name and will preserve Guarantor’s existing name, trade names and franchises.
Guarantor owns or leases all property that Guarantor needs to conduct
Guarantor’s business and activities. All of Guarantor’s property is free and
clear of all liens, security interests, encumbrances and other adverse claims
and interests, except those Xxxxxx previously agreed to in writing. Guarantor
is
not violating any laws, regulations, rules, orders, judgments or decrees
applicable to [missing
text]
Schedule
of Additional Guaranty Agreements
In
reliance on Instruction 2 to Regulation S-K, Item 601, MISCOR is not filing
additional Guaranties Agreements that are identical to the one filed herewith,
except for the parties. MISCOR signed a Guaranty guaranteeing the obligations
of
each of the following subsidiaries:
1.
Magnetech Industrial Services, Inc.
2.
Magnetech Power Services, LLC
3.
Xxxxxxx Electric, LLC
Each
of
the following signed a Guaranty guaranteeing the obligations of
MISCOR:
1.
HK
Engine Components, LLC
2.
Magnetech Industrial Services, Inc.
3.
Magnetech Power Services, LLC
4.
Xxxxxxx Electric, LLC
