Exhibit 10.5(c)
---------------
CONTINUING GUARANTY & WAIVER
Reference is made to the Security Agreement (herein "AGREEMENT") dated APRIL 17,
1997 and entered into between AMERICAN FIRE RETARDANT CORPORATION (herein
"COMPANY") and PRIVATE CAPITAL, INCORPORATED (herein PURCHASER)
For valuable consideration and to induce PURCHASER to enter into AGREEMENT, the
undersigned agree as follows:
1. GUARANTY OF OBLIGATION: The undersigned, jointly and severally,
unconditionally guaranty to PURCHASER full payment and prompt and faithful
performance by the company of all its present and future indebtness and
obligations to PURCHASER which may arise pursuant to AGREEMENT. The words
"indebtedness" and "obligations" are used herein their most comprehensive sense
and include any and all advances, debts, obligations, and liabilities of the
Company heretofore, whether due or not due, absolute or contingent, liquidated
or unliquidated, determined, or undetermined, and whether the Company any be
liable individually or jointly with others, or whether recovery may be or
hereafter become barred by any statue of limitations or otherwise become
unenforceable. Said indebtedness and obligations guaranteed hereunder shall be
collectively referred to herein as "Obligations".
2. RIGHTS ARE INDEPENDENT: The Obligations of the undersigned are
independent of the obligations of the Company under AGREEMENT, or separate
action or actions may be brought and prosecuted by PURCHASER against the
undersigned whether or not an action is brought against the Company or whether
the Company is joined in any such action or actions.
3. WAIVER OF DEFENSE: The undersigned waive any right to require PURCHASER
to proceed against the Company, the account-debtor or customer of the Company,
or any other person, or proceed against or exhaust any security, or pursue any
other remedy in PURCHASER'S power.
4. CONTINUING GUARANTY: It is the intention of the undersigned that this
Agreement shall constitute a continuing guaranty of the Obligations of the
Company under AGREEMENT and addendums or modifications thereto.
5. DEFAULT: Any one or more or the following shall be a default hereunder:
(a) any default in payment or performance of any instrument, or of the
Obligations hereby guaranteed: or (b) any warranty, representation, statement,
or report made or delivered to PURCHASER by or on behalf of the Company, or the
undersigned, is incorrect, false, untrue or misleading when given in any
material respect whatever: or (c) there shall occur the dissolution of the
Company of the transfer, hypothecation or liquidation of all or substantially
Page 1
all of the Company's assets: or (d) the undersigned shall sell, transfer, convey
or in any manner alienate its interest in the Company. In the event of any of
the foregoing, the obligations hereby guaranteed shall become, for the purpose
of the Agreement, due and payable by the undersigned forthwith without demand or
notice.
6. AUTHORITY OF OFFICERS: It is not necessary for PURCHASER co inquire into
the powers of the Company or the officers, directors, agents, acting or
purporting to act in its behalf and any obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.
7. PARTNERSHIP OF ASSOCIATION: When the Company is a partnership or other
association, the Agreement is to extend to the person or persons for the time
being and from time to time carrying on the business now conducted by the
Company, notwithstanding any change or changes in the name, structure and/or
membership of the Company.
8. FINANCIAL CONDITION OF COMPANY: The undersigned represent to PURCHASER
that they are now and will be completely familiar with the business, waive and
relinquish any duty on the part of PURCHASER to disclose any matter, fact or
thing relating to the business, operation or financial condition of the Company
now known or hereafter known by PURCHASER.
9. GUARANTOR'S DIRECT BENEFIT: The undersigned hereby represent and warrant
that it is in the undersigned's direct interest to assist the Company because of
the undersigned's position(s) and in economic relation(s) with the Company.
10. ATTORNEY'S FEES: Whether or not suit be instituted, the undersigned
agree to pay reasonable attorney's fees and all other costs and expenses
incurred by PURCHASER in enforcing this Agreement and in any action or
proceedings arising out of or relating to this Agreement.
11. SUCCESSORS AND ASSIGNS: This Agreement shall bind the successors and
assigns of the undersigned and shall inure to PURCHASER'S successors and
assigns.
12. GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with the laws of the state of
13. SEVERABILITY; In case any right of PURCHASER herein shall be held to be
invalid, illegal, or unenforceable, such invalidity, illegality and/or
unenforceability, shall not affect any other right granted hereby.
14. JOINT AND SEVERAL: All of the obligations of the undersigned hereunder
shall be joint and several.
Page 2
Executed on this 17th day of April 1997 at ____ (city), ____ (state)
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxx
-------------------------------- ---------------------------------------
Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
Page 3
