mis_8k1130ex109.htm


    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 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 XGen III, Ltd., 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 Embrescia to Magnetech hereunder,
      which
      security may be taken without notice to Embrescia.  The liability of
      Embrescia 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.  Embrescia 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 Embrescia 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 Embrescia 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.

    
 

    
      
        	
                Thomas
                  J. Embrescia

              	 
	 	 
	 	 
	/s/
                Thomas J. Embrescia	 
	
                Thomas
                  J. Embrescia

                3029
                  Prospect Ave

                Cleveland Ohio 44115

                 

              	 


      

       

      
        

          
            	
                    COUNTY
                      OF CUYAHOGA

                  	
                    )

                  
	 	
                    )SS:

                  
	
                    STATE
                      OF OHIO

                  	
                    )

                  


          



        Before
          me, the undersigned, a Notary
          Public in and for said County and State, personally appeared Thomas J.
          Embrescia, who acknowledged the execution of the foregoing Instrument on
          the
          date of its execution set forth above.

        


        WITNESS
          my hand and Seal this 29th day of November, 2007.

      

    

    
 

    
      
        	 	
                My
                  Commission Expires:

              	 	/s/
                Amy J. Gary	
                ,
                  Notary Public

              
	 	November
                9, 2008	 	 	 
	 	 	 	 	
                [SEAL]

              
	 	 	 	
                Resident
                  of Cuyahoga County, Ohio