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EXHIBIT 10(b)(1)
AGREEMENT
This agreement made and entered into by and between FIRST NATIONAL
BANK OF XXXXX, Bryan, Texas (hereinafter referred to as "Lender") and BODYBILT
SEATING, INC., a Texas Corporation (hereinafter referred to as "Borrower") and
XXXX X. XxXXXXXX of Bryan, Brazos County, Texas (hereinafter referred to as
"Guarantor") relative to a loan ("Loan") in the original principal amount of
ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) from Lender to Borrower.
WHEREAS, Borrower has in existence with Lender at this time, on a line of
credit loan, which is in the original principal amount of FOUR HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($450,000.00) which is evidenced by a promissory
note dated April 15, 1994, executed by the Borrower (formerly known as Chair
Works, Inc.) and payable to Lender, in the original principal amount of
$450,000.00, which note is more fully described and secured by a Security
Agreement and UCC-1 Financing Statements dated on or about March 1, 1993; and
WHEREAS, Borrower desires to renew and extend the unpaid balance on said
Loan which is $437,500.00, at this date, and to increase the line of credit
loan limit to a total of $1,000,000.00; and
WHEREAS, as part of the consideration for Lender's renewal and extension
of said credit limit and for the increase in said line
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of credit to $1,000,000.00, Borrower has agreed that it shall pay to Lender
quarterly, a fee equal to the sum of one-half of one percent (1/2 of 1.00%)
per annum times the average of the unused portion of the principal balance of
the $1,000,000 line of credit note, which Borrower does not request an advance
and draw thereon, based upon and calculated over each quarter of each calendar
year during the term of this Loan, to be paid by Borrower to Lender, at the end
of each quarter;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, for and in consideration
of the premises, the sum of TEN AND NO/100 DOLLARS ($10.00) cash and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by Borrower, Borrower agrees to the following:
I.
Borrower hereby agrees and shall pay to Lender a sum equal to one-half of
one percent (1/2 of 1%) per annum as herein provided, on the average unused and
un-advanced portion of the principal balance of the $1,000,000 line of credit
Loan, such average to be calculated over each quarter of each calendar year,
during the term of this Loan, beginning with the 15 day of June, 1995, and
continuing regularly and quarter-annually thereafter on the 30 day of June
1995, the 30 day of September 1995, the 31 day of December 1995, and the 31 day
of March 1996, of each calendar year. Said sum shall be due and payable at the
end of each quarter on demand of Lender, and Borrower hereby authorizes Lender
to
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deduct from and said sum shall be deducted and withdrawn from Borrower's
designated checking account with Lender at the end of each quarter during each
calendar year of the term of this Loan, the first such payment being due on or
before the 30 day of June, 1995.
II.
The Borrower, and any surety, endorser, guarantor and all other parties
liable hereunder, waive demand, notice of intent to demand, presentment for
payment, notice of non-payment, protest, notice of protest, grace, notice of
dishonor, notice of intent to accelerate maturity, notice of acceleration of
maturity, and diligence in collection.
III.
All past due payments hereunder, if permitted by applicable law, shall
bear interest from maturity until paid at a rate of interest per annum, which
from day to day shall be equal to the lesser of (i) the Maximum Lawful Rate as
is defined in the $1,000,000.00 Promissory Note of even date herewith, executed
by Borrower to Lender; or (ii) an interest rate of eighteen percent (18%) per
annum.
IV.
This agreement shall be governed by and construed in accordance with the
Texas law and applicable federal law. The parties hereto intend to conform
strictly to the applicable usury laws. In no event, shall the amount paid or
agreed to be paid to Lender exceed the maximum amount permissible under
applicable law,
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taking into consideration the interest payable under that certain Promissory
Note in the original principal amount of $1,000,000 hereinabove referenced to,
executed by Borrower and made payable to Lender of even date herewith. If
fulfillment of any provision hereof or of any mortgage, loan agreement or other
document now or hereafter executed or entered into in connection herewith
and/or securing or pertaining to the indebtedness evidenced hereby, or in said
promissory note in the original principal amount of $1,000,000 at the time
performance of such provision shall be due, would involve transcending the
limit of validity prescribed by law, then the obligation to be fulfilled
herein, shall be reduced automatically to the limit of such validity. If
Lender shall ever receive anything of value deemed interest under applicable
law, which would exceed interest at the highest lawful rate, in an amount equal
to an amount which would have been excessive interest, shall be refunded to
Borrower. All sums paid or agreed to be paid to Lender for the use,
forbearance or detention of the indebtedness of Borrower to Lender, shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full stated term of such indebtedness so that the amount
of interest on account of such indebtedness does not exceed the maximum
permitted by applicable law. The provisions of this paragraph shall control all
existing and future agreements between Borrower and Lender.
V.
Borrower and Guarantor hereby acknowledge and agree that the
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agreement is on a parity with a certain Note of even date herewith in the
original principal sum of $1,000,000.00 executed by BODYBILT SEATING, INC., a
Texas Corporation, payable to FIRST NATIONAL BANK OF XXXXX, and the undersigned
agrees that default in the $1,000,000.00 note or in the payment of the amount
due under this agreement shall, at the option of First National Bank of Bryan,
ipso facto constitute default in the other.
VI.
This agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, successors and assigns.
EXECUTED this the 15 day of June, 1995.
BORROWER:
BODYBILT SEATING, INC. formerly THE
CHAIR WORKS, INC.
By: /s/ XXXX X. XxXXXXXX
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Xxxx X. XxXxxxxx,
President
GUARANTOR:
/s/ XXXX X. XxXXXXXX
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Xxxx X. XxXxxxxx, individually
LENDER:
ATTEST:
FIRST NATIONAL BANK OF XXXXX
/s/ XXX XXXXX By: /s/ D'XXXXX XXXXXXXXXXX
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Name: Xxx Xxxxx Name: D'Xxxxx Xxxxxxxxxxx
Title: Vice Chairman Title: Sr. V.P.
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