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Exhibit
10.9
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.
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