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EXHIBIT 10(c)(3)
FIRST NATIONAL BANK OF XXXXX
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
SPECIFIC GUARANTY
WHEREAS, BODYBILT SEATING, INC., a Texas Corporation, acting by and
through its duly authorized President, XXXX X. XxXXXXXX, hereinafter called
"Borrower", contemplates becoming indebted to FIRST NATIONAL BANK OF XXXXX, a
Banking Corporation with offices and Banking quarters at 0000 Xxxxx Xxxxxx
Xxxxx, Xxxxx, Xxxxx 00000, hereinafter called "Lender", on account of loans,
discounts, overdrafts and bills of exchange or other transactions Borrower may
have with Lender; and
WHEREAS, the undersigned, XXXX X. XxXXXXXX, hereinafter called
"Guarantor", in consideration of the extension of such credit, now or
hereafter, and for value received, has and does hereby guarantee the payment to
the extent herein and hereinafter stated.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That in consideration
of the premises:
1. Guarantor unconditionally guarantees the prompt payment to
Lender, its successors and assigns, of the following described promissory note
executed by Borrower payable to the order of Lender together with any and all
renewals, extensions and/or rearrangements thereof, whether with or without
notice to Guarantor:
Promissory Noted dated May 26, 1994, in the original principal amount
of FIVE HUNDRED SEVENTY-ONE THOUSAND FIVE HUNDRED AND NO/100
($571,500.00), executed by BODYBILT SEATING, INC., a Texas
Corporation, acting by and through its duly authorized President, XXXX
X. XxXXXXXX, and payable to the order of FIRST NATIONAL BANK OF XXXXX;
together with such interest as may accrue on such note, according to its tenor
and effect, and reasonable fees if such claim, demand or indebtedness be placed
with an attorney for collection, or if collected through the probate or
bankruptcy court, receivership proceedings or any proceedings in federal court,
and reorganization in any federal court proceeding, or suit, or suits,
hereinafter referred to as "Indebtedness".
2. This guaranty is an absolute, unconditional completed and
continuing one, and no notice of the Indebtedness or any extension of credit
already or hereafter contracted by or extended to the Borrower need be given to
the Guarantor. Borrower and Lender may rearrange, extend and/or renew the
Indebtedness without notice to the Guarantor and in such event Guarantor will
remain fully bound hereunder on such Indebtedness. The Guarantor hereby
expressly waives presentment, demand, protest and notice of protest and
dishonor on any and all forms of such Indebtedness, and also notice of
acceptance of this guaranty, acceptance on the part of Lender being
conclusively presumed by its request for this guaranty and deliver of the same
to it.
3. Guarantor authorizes Lender, without notice or demand and
without affecting its liability hereunder, to take and hold security for the
payment of this guaranty and/or the Indebtedness guaranteed, and exchange,
enforce, waive and release any such security; and to apply such security and
direct the order or manner of sale thereof as Lender in its discretion may
determine; and to obtain a guaranty of the Indebtedness from any one or more
other persons, corporations or entities whomsoever and at any time or times to
enforce, waive, rearrange, modify, limit or release such other persons,
corporations or entities from their obligations under such guaranties.
4. Guarantor waives any right to require Lender to (a) proceed
against the borrower, (b) proceed against or exhaust any security held from the
Borrower, or (c) pursue any other remedy in Lender's power whatsoever.
Guarantor waives any defense arising by reason of any disability, lack of
corporate authority or power, or other defense of the Borrower or any other
Guarantor of the Indebtedness, and shall remain liable hereon regardless of
whether Borrower or any other guarantor be found not liable thereon for any
reason. Until all the Indebtedness shall have been paid in full, Guarantor
shall have no right of subrogation, and waives any right to enforce any remedy
which Lender now has or may hereafter have against the Borrower, and waives any
benefit of and any right to participate in any security now or hereafter held
by Lender.
5. Guarantor will within five (5) days from date of notice from
Lender of Borrower's failure to pay any of the Indebtedness at maturity, pay to
Lender the amount due and unpaid by said Borrower. The failure of Lender to
give notice shall not in any way release Guarantor hereunder. Guarantor agrees
that if the maturity of any Indebtedness hereby guaranteed is accelerated by
bankruptcy or otherwise, such maturity shall also be deemed accelerated for the
purpose of this guaranty without demand or notice to Guarantor.
6. It is expressly agreed that the liability of the Guarantor for
the payment of the Indebtedness secured hereby shall be primary and not
secondary.
7. As security for its obligation hereunder, the Guarantor hereby
grants to the Lender a security interest in, a general lien upon and/or right
of set-off of, the following (herein referred to as the Security): the balance
of every deposit account, now or hereafter existing, of the Guarantor with the
Lender and any other claim of the Guarantor against the Lender, now or
hereafter existing, and all money, instruments, securities, documents, chattel
paper, credits, claims, demands and any other property, rights and
interest of the Guarantor, which at any time shall come into the possession or
custody or under the control of the Lender or any of its agents or affiliates,
for any purposes, and shall include the proceeds, products and accessions of
and to any thereof. The Lender shall be deemed to have possession of any of the
Security in transit to or set apart for it or any of its agents or affiliates.
The right is expressly granted to the Lender, at its discretion, to file one or
more financing statements under the Uniform Commercial Code naming the
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Guarantor as Debtor and the Lender as Secured Party and indicating
therein the types or describing the items of security herein specified. The
Lender shall not be required to take any steps necessary to preserve any rights
against prior parties to any of the Security.
8. In the event of default under this guaranty, the Lender may
sell or cause to be sold in the City of Bryan, Texas, or elsewhere, in one or
more sales or parcels, at such price as the Lender may deem best, and for cash
or on credit or for future delivery, without assumption of any credit risk, all
or any of the Security at any broker's board or at public or private sale,
without demand or performance or notice of intention to sell or of time or
place of sale (except such notice as is required by applicable statute and
cannot be waived), and the Lender or anyone else may be the purchaser of any or
all of the Security so sold and thereafter hold the same absolutely, free from
any claim or right of whatsoever kind, including any equity of redemption, of
the Guarantor, any such demand, notice or right and equity being hereby
expressly waived and released.
9. The grant of the above security interest and lien shall not in
anywise limit or be construed as limiting Lender to collect payment of any
liability of Guarantor incurred hereby only out of the Security, but it is
expressly understood and provided that all such liability shall constitute the
absolute and unconditional obligation of Guarantor.
10. In the event Guarantor is a corporation, the undersigned
signing for and on behalf of Guarantor hereby represents and warrants to Lender
that he is duly authorized and empowered to execute this guaranty for and on
behalf of Guarantor and that this guaranty is a valid, binding and enforceable
obligation of Guarantor and does not violate any provisions of its articles or
certificate of incorporation or its by-laws or any law, rule, regulations,
contract or agreement enforceable against Guarantor.
11. In all instances herein, the singular shall be construed to
include the plural and the masculine to include the feminine. In the event more
than one party executes this agreement as a guarantor, then each Guarantor
agrees to be jointly and severally liable for the Indebtedness.
12. This guaranty is and shall be in every particular
available to the successors and assigns of Lender and is and shall always be
fully binding upon the heirs, administrators, successors and assigns of
Guarantor. This Guaranty shall be enforceable against each person signing this
Guaranty, even if only one person signs and regardless of any failure of other
persons to sign this Guaranty. If there be more than one signer, all agreements
and promises herein shall be construed to be and are hereby declared to be,
joint and several, in each and every particular, and shall be fully binding
upon and enforceable against either, any and all of the Guarantors on this
Indebtedness. This Guaranty shall be effective upon delivery to Lender and
without further act, condition or acceptance by Lender.
13. In the event the Borrower is a corporation and Guarantor is an
individual, it is understood and agreed that notwithstanding anything herein
contained to the contrary, Guarantor shall never be liable on this guarantee
for any sums as interest in excess of the highest legal rate payable as
interest under the laws of the State of Texas by an individual guaranteeing the
obligation of a corporation.
WITNESS THE EXECUTION HEREOF, this the 26 day of May, 1994.
/s/ XXXX X. XxXXXXXX
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XXXX X. XxXXXXXX
THE STATE OF TEXAS :
COUNTY OF BRAZOS :
This instrument was acknowledged before me on this the 26 day of
May, 1994 by XXXX X. XxXXXXXX.
/s/ XXXX XXXXXX
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NOTARY PUBLIC in and for
The State of Texas
[SEAL]
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