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EXHIBIT 10(c)(5)
MODIFICATION AND/OR EXTENSION AGREEMENT
THE STATE OF TEXAS:
COUNTY OF XXXXXX:
WHEREAS, BODYBILT SEATING, INC., a Texas Corporation, acting by and
through its duly authorized President, Xxxx X. XxXxxxxx (hereinafter referred
to as "Borrower", whether one or more), whose mailing address is 0000 Xxxxxx
Xxxxx Xxxxxxx, Xxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, is indebted to FIRST NATIONAL
BANK OF XXXXX (herein referred to as "Lender"), pursuant to a promissory note
dated May 26, 1994, in the original principal sum of FIVE HUNDRED SEVENTY-ONE
THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($571,500), executed by Borrower and
payable to Lender (herein referred to as "Note") which Note is secured by the
following:
(1) Deed of Trust from Borrower to XXXXXXX X. XXXXXXX, Trustee
for the benefit of Lender, dated May 26, 1994, and recorded
in Volume 743, Page 451 of the Official Records of XXXXXX
County, Texas, (herein referred to as "Deed of Trust")
covering the following described real property, to-wit:
Being 7.45 acres of land, more or less, being partly out of
the X. XXXXX SURVEY, Abstract No. 55 and partly out of the
X. XXXXXX SURVEY, Abstract No. 2 and also being known as a
part of Xxx 0, Xxxxx 0, XxXXXXXX XXXXXXXX XXXXXX
XXXXXXXXXXX, Xxxx of Navasota, Xxxxxx County, Texas,
according to map or plat thereof recorded in Volume 380,
Page 37, Real Property Records of Xxxxxx County, Texas, and
being more particularly described on Exhibit "A" attached
hereto and made a part hereof for all purposes (hereinafter
referred to as "Property"); and
(2) Assignment of Rents, Leases and Other Benefits dated May
26, 1994, executed by Bodybilt Seating, Inc., as Assignor
and First National Bank of Bryan, as Assignee (herein
referred to as "Assignment");
(3) Security Agreement (herein referred to as "Security
Agreement") dated May 26, 1994 executed by BODYBILT
SEATING, INC., as Debtor, to FIRST NATIONAL BANK OF XXXXX,
as Secured Party, together with UCC-1 Financing Statements
filed of record in the UCC (Personal Property) Records of
Xxxxxx County, Texas and with the Secretary of State's
Office, against the following personal property:
a. Any and all present and future personal property,
furniture, furnishings, goods, equipment (save and except
inventory and manufacturing equipment unless otherwise
secured), heating and air conditioning equipment, carpet,
rugs, shades, blinds, draperies, plumbing pipes and
fixtures, bathroom facilities, lighting, ventilating,
refrigerating, cooking and laundry equipment, stoves,
hoods, disposals, refrigerators, swimming pool equipment
and related apparatus, yard care machinery, and such other
goods and chattels and personal property now owned by
Debtor or hereafter acquired by Debtor, as are ever used or
furnished in operating of the building or buildings or the
activities conducted therein located on the Property and/or
ever used or furnished in the operation of the Property,
and all renewals or replacements thereof, or articles in
substitution therefor, whether or not the same are or shall
be attached to the said building or buildings in any
manner.
b. Any and all plans and specifications for development or
construction of the Improvements on the Property or for the
repair or remodeling of the Improvements on the Property.
c. Any and all contracts and subcontracts and tenant leases
including but not limited to that certain Lease Agreement
dated May 24, 1979, by and between Xxxxxxxxxx Brothers,
Inc., as Lessee, and Xxxxxxx XxXxxxxx, as Lessor,
subsequently assigned to Debtor, relating to the Property.
d. Any and all accounts, contract rights, instruments,
documents, general intangibles and chattel paper arising
from or by virtue of any transactions related to the
Property.
e. Any and all permits, licenses, franchises, certificates
and other rights and privileges obtained in connection with
the Property.
f. All rights, title and interests of Debtor in and to the
name "Navasota Shopping Center" for use as the trade name
of the Property hereinafter described.
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g. Any and all proceeds arising from or by virtue of the
sale, lease or other disposition of any of the foregoing
property and items set forth in paragraphs (a) through (f)
above.
h. Any and all proceeds payable or to be payable under each
policy of insurance relating to the item set forth in
paragraphs (a) through (f) and the Property.
i. Any and all proceeds arising from the taking of all or a
part of the Property for any public or quasi-public use
under any law, or by right of eminent domain, or by private
or other purchase in lieu thereof.
j. All building materials or equipment now or hereafter
delivered to the land herein described and intended to be
installed thereon or in any improvements erected or to be
erected thereon.
k. All future replacements and substitution for betterments
of, and accessions and additions to the property described
or referred to in paragraphs (a) through (j).
l. All other interest of every kind and character that Debtor
now has or at any time hereafter acquires in and to the
property described or referred to in paragraphs (a) through
(k) above, and all property that is used or useful in
connection with the Property.
m. All proceeds arising from or by virtue of the sale,
lease or other disposition of all or any part of the
Property, including oil, gas and other minerals.
n. All rents, revenues, lease payments, charges, purchase
price profits, insurance proceeds arising from or payable
under that certain Lease as to a part of the Property,
being that Lease in writing dated May 24, 1979, entered
into by and between Xxxxxxxxxx Brothers, Inc., as Lessee,
and Xxxxxxx XxXxxxxx, as Lessor, and all amendments and
addendums thereto, which has been transferred and assigned
to Debtor; and
(herein collectively referred to as "Property")
WHEREAS, said Note is additionally secured by a Security Agreement
(herein included in the reference term "Security Agreement") dated May 26, 1994
executed by BODYBILT SEATING, INC., as Debtor, to FIRST NATIONAL BANK OF XXXXX,
as Secured Party, together with UCC-1 Financing Statements filed of record in
the UCC (Personal Property) Records of Xxxxxx County, Texas and with the
Secretary of State's Office, against the following personal property:
Life Insurance Policy No. 0008636700 issued by XXXXXXX NATIONAL LIFE
INSURANCE COMPANY of Lansing, Michigan on December 20, 1990 insuring
the life of XXXX XXXXX XxXXXXXX, and all cash value, dividends and
proceeds therefrom (referred included in the reference term
"Property");
WHEREAS, XXXX X. XxXXXXXX, (herein referred to as "Guarantor"), by
instrument dated May 26, 1994 guaranteed payment of the herein described Note;
and
WHEREAS, Borrower and Guarantor have requested Lender and Lender has
agreed to modify, renew and extend said Note, Deed of Trust, Assignment,
Security Agreement and any other security instruments or loan documents
executed and delivered relative to said Note, as to payments, dates of
payments, maturity date, interest rate, and other terms as hereinafter provided
and Borrower further desires to acknowledge the validity and enforceability,
and the renewal and extension of all liens and security interests against the
Property and/or other collateral granted to Lender to secure said Note and
other indebtednesses therein referenced.
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) paid by Borrower and Guarantor to Lender receipt and
sufficiency of which is hereby acknowledged and in consideration of the
premises and the further consideration of the advantages to accrue to all
parties of this Agreement, Lender and Borrower and Guarantor hereby covenant
and agree as follows:
I.
Borrower and Guarantor hereby acknowledge that the unpaid principal
balance of the Note as of May 31, 1995 is FOUR
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HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($490,000.00).
II.
The parties hereto, Borrower, Guarantor, and Lender, agree to revise,
modify, rearrange, change and/or extend the terms, covenants and provisions of
the Note, Deed of Trust, Assignment, Security Agreement, and any other
security instruments and/or loan documents of Lender, as follows, which
provisions shall be effective as of the 31st day of May, 1995:
Interest on the principal balance hereof from time to time
remaining unpaid prior to maturity shall accrue at a varying rate of
interest per annum, equal to the lesser of (a) the Maximum Lawful Rate,
or (b) THREE-FOURTHS percent (0.75%) plus the Prime Rate of First
National Bank of Bryan, Bryan, Brazos County, Texas in effect from day
to day calculated, unless otherwise provided herein, on the basis of
three hundred sixty (360) days per year. PROVIDED HOWEVER, in no event
shall the interest rate charged on the unpaid principal balance of this
Note exceed eighteen percent (18%) per annum. As used herein, the term
"Maximum Lawful Rate" means the greatest of the non-usurious rates of
interest from time to time permitted under applicable United States
Federal law and Texas law. To the extent of the applicability of
Chapter One ("Chapter One") of Title 79, Texas Revised Civil Statutes
1925 as amended (the "Texas Credit Code"), the Maximum Lawful Rate
shall be the highest permitted rate based upon the indicated rate
ceiling (as defined in Chapter One). The Maximum Lawful Rate shall be
applied by taking into account all amounts characterized by applicable
law or interest on the debt evidenced by the Note, so that the aggregate
of all interest does not exceed the maximum non-usurious amount
permitted by applicable law. If the Maximum Lawful Rate is increased or
removed by statute or other governmental actions subsequent to the date
of this Note, then the new Maximum Lawful Rate, if any, will be
applicable to this Note from the effective date of the new Maximum
Lawful Rate unless such application is precluded by statute or
governmental action or by the general law of the jurisdiction governing
this Note. The term "Prime Rate" means the interest rate established and
quoted from time to time by First National Bank of Bryan, Bryan, Brazos
County, Texas, as its prime commercial loan rate, whether or not such
rate is charged in each instance. Any change in the interest rate
resulting from a change in Prime Rate or in the Maximum Rate, as the
case may be, shall be effective, without notice to Maker, on the same
date as such change. If a published annual prime interest rate ceases to
be made available by the First National Bank of Bryan, or by any
successor thereto, the Note Holder will set the Note interest rate by
using a comparable index.
Interest computed on the unpaid principal balance is payable
monthly as it accrues on the same dates as and in addition to the
installments of principal.
The principal shall be due and payable in monthly installments
of TWO THOUSAND SEVEN HUNDRED TWENTY-TWO AND 23/100 DOLLARS ($2,722.23)
each, on or before the 31st day of each and every calendar month,
beginning the 30th day of June, 1995 and continuing regularly and
monthly thereafter until the 31st day of May, 2000, when all unpaid
principal and accrued unpaid interest shall be due and payable in full.
Interest computed on the unpaid principal balance is payable
monthly as it accrues on the same dates as and in addition to the
installments of principal.
Any principal of and to the extent permitted by applicable law,
any interest on this Note which is not paid within fifteen (15) days
from the date due, shall bear interest, from the date due and payable
until paid, payable on demand, at a varying rate per annum equal to the
lesser of (i) the Maximum Lawful Rate as defined above or (ii) the Past
Due Rate.
The term "Past Due Rate" as used in this Note means on any day,
a rate per annum equal to eighteen percent (18%) computed using the
annual basis described below.
FUNDS FOR TAXES AND INSURANCE. Subject to applicable law or to
a written waiver by Lender, Borrower shall pay to Lender on the 31st
day of each month beginning June 30, 1995, in addition to any monthly
payments of principal and interest payable under the Note, until the
Note is paid in full, a sum (herein "Funds") equal to one-twelfth of
the yearly taxes and assessments against the above described Property
which may attain priority over this Deed of Trust which secures the Note
and any Modification and/or Extension Agreement and ground rents on the
Property, if any, plus one-twelfth of yearly premium installments for
hazard insurance, if any, if required by Lender, all as reasonably
estimated initially and from time to time by Lender on the basis of
assessments and bills and reasonable estimates thereof. Lender
acknowledges granting to Borrower a waiver of the escrow for hazard
insurance premiums by written letter of even date therewith until such
time as Lender may in the future exercise its right to require such
hazard insurance escrow payment by giving Borrower written notice.
The Funds shall be held in an institution the deposits or
accounts of which are insured or guaranteed by a Federal or state
agency (including Lender if Lender is such an institution). Lender
shall apply the Funds to pay said taxes, assessments, insurance
premiums and ground rents. Lender may not charge for so holding and
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applying the Funds, analyzing said account or verifying and compiling
said assessments and bills, unless Lender pays Borrower interest on
the Funds, and applicable law permits Lender to make such a charge.
Borrower and Lender may agree in writing at the time of execution of
this Modification and/or Extension Agreement that interest on the Funds
shall be paid to Borrower, and unless such agreement is made or
applicable law requires such interest to be paid, Lender shall not be
required to pay Borrower any interest or earnings on the Funds. Lender
shall give to Borrower without charge, an accounting of the Funds
showing credits and debits to the Funds and the purpose for which each
debit to the Funds was made. The Funds are pledged as additional
security for the sums secured by the Deed of Trust and this
Modification and/or Extension Agreement.
If the amount of the Funds held by lender, together with the
future monthly installments of Funds payable prior to the due dates of
taxes, assessments, insurance premiums and ground rents, shall exceed
the amount required to pay said taxes, assessments, insurance premiums
and ground rents as they fall due, such excess shall be, at Borrower's
option, either promptly repaid to Borrower or credited to Borrower on
monthly installments of Funds. If the amount of the Funds held by
Lender shall not be sufficient to pay taxes, assessments, insurance
premiums and ground rents as they fall due, Borrower shall pay to
Lender any amount necessary to make up the deficiency within thirty
(30) days from the date notice is mailed by Lender to Borrower
requesting payment thereof.
Upon payment in full of all sums secured by the Deed of Trust
and this Modification and/or Extension Agreement, Lender shall promptly
refund to Borrower any Funds held by Lender. If, however, the Property
is sold under the foreclosure provision of the Deed of Trust or the
Property is otherwise acquired by Lender, Lender shall apply,
immediately prior to the sale of the Property or its acquisition by
Lender, any Funds held by Lender at the time of application as a credit
against the sums secured by the Deed of Trust and this Modification
an/or Extension Agreement.
NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY,
IN NO EVENT SHALL THE INTEREST RATE CHARGED ON THE UNPAID PRINCIPAL
BALANCE OF THIS NOTE EXCEED EIGHTEEN PERCENT (18%) PER ANNUM.
For the purposes of this agreement, "Bank", Note Holder",
"Holder" and "Lender" shall mean FIRST NATIONAL BANK OF BRYAN or anyone
who takes the Note by transfer and who is entitled to receive payments
under the Note. Borrower shall mean BODYBILT SEATING, INC., a Texas
Corporation, acting by and through its duly authorized President, Xxxx
X. XxXxxxxx. Guarantor shall mean XXXX X. XxXXXXXX.
III.
The Note herein modified and/or extended as well as this instrument has
been executed and delivered and shall be construed in accordance with and
governed by the laws of the State of Texas and the United States of America,
except that Texas Revised Civil Statutes Annotated, Art. 5069, Chp. 5, as
amended, (which regulates certain revolving credit loan accounts and revolving
tri-party accounts), shall not apply hereto.
IV.
It is understood and agreed by Borrower and Guarantor that, except as
to such changes and modification made herein, said Note, as originally written,
shall remain in all respects unchanged, and that the balance owing thereon
shall be due and payable in the manner therein set out and, except as
otherwise modified by this instrument, the Guaranty Agreement, the said Deed of
Trust, Assignment, Security Agreement and any and all other security
instruments and loan documents executed and delivered relative to said Note,
therein described and herein described securing the payment of said Note, as
well as all liens, and security interest against the Property and/or other
collateral, and the terms, covenants, provisions and conditions therein
contained, shall remain and continue in full force and effect until the full
and final payment of said Note and all indebtedness of Borrower evidenced by
said instruments.
V.
That Lender hereby agrees to the modification and/or extension of the
terms of the Note to the extent herein specifically set forth, but only on the
condition that this Modification and/or Extension shall not prejudice any
present or future rights, remedies or powers belonging or accruing to Lender
under the terms of the Note as hereby modified, rearranged and/or extended or
the Guaranty
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Agreement or the Deed of Trust, Assignment, Security Agreement, or any other
security instrument and loan documents executed and delivered to Lender
relative to said Note. Provided further, Borrower hereby agrees that this
Modification and/or Extension Agreement is in no way given as a release or
taken in extinguishment of any part of the indebtedness represented by the
Note, the Guaranty Agreement, the Deed of Trust, Assignment, Security Agreement
and/or other security instruments and loan documents and/or the liens and
security interest securing said indebtedness.
VI.
By these presents, Borrower and Guarantor reaffirm and agree to pay and
discharge all of the original obligations of Borrower under the Note, Deed of
Trust, Assignment, Security Agreement and other security instruments and loan
documents executed and delivered relative thereto after the date hereof as
modified and/or extended hereby. Borrower hereby agrees that the Deed of Trust,
Assignment, Security Agreement and all other security instruments and loan
documents creating liens and/or security interests against the above described
Property or other collateral described therein to secure the Note and all
indebtedness evidenced by the Note, Deed of Trust, Assignment, Security
Agreement or other security instrument or loan document and this Agreement,
herein described, are valid and subsisting and that all such liens and security
interests thereto are hereby in all things renewed, extended and carried
forward to secure the Note, and the indebtedness evidenced by the Deed of
Trust, Assignment, Security Agreement, other security instruments and loan
documents and this Agreement and Borrower further agrees that all terms,
covenants, provisions, and conditions of the Deed of Trust, Assignment,
Security Agreement and all other security instruments and loan documents
creating and/or affixing liens and/or security interest against the above
described Property and/or other collateral therein described securing said Note
and indebtedness are valid and remain in full force and effect and are hereby
so renewed and extended.
Borrower and Guarantor hereby confirm, adopt, reaffirm, and establish
that Borrower and Guarantor are legally obligated to pay the Note and all
indebtedness evidenced by the Note, Deed of Trust, Assignment, Security
Agreement and other security instruments as modified and/or renewed and
extended hereby and confirms Borrower's and Guarantor's liability for payment
of the same and if Borrower and Guarantor are not presently primarily liable
for the payment of said indebtedness and Note, then Borrower and Guarantor do
hereby expressly assume the payment thereof.
Borrower further reaffirms and confirms that the Deed of Trust,
Assignment, Security Agreement and other security instruments and the liens and
security interests created thereby against the Property and collateral herein
and therein described as renewed and extended herein shall additionally secure
all funds hereafter advanced by Lender to or for the benefit of Borrower, as
contemplated by any covenant or provision contained in the Deed of Trust,
Assignment, Security Agreement and/or other security instruments or for any
other purpose, and shall secure all other indebtedness, of whatever kind or
character, now owing or which may hereafter become owing by Borrower to Lender,
whether such indebtedness is evidenced by note, open account, overdraft,
endorsement, surety agreement, guaranty or otherwise, it being contemplated that
Borrower may hereafter become indebted to Lender in a further sum or sums. All
such indebtedness secured shall be payable to Lender, at the address herein
given, or at such other address as the Lender may in writing direct; and unless
otherwise provided in the instruments evidencing said indebtedness, the
indebtedness shall bear interest at the same rate per annum as the said Note
bears, from date of accrual of said indebtedness and/or indebtednesses until
paid.
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VII.
Borrower covenants and warrants that the Note, Deed of Trust,
Assignment, Security Agreement and other security instruments and loan documents
are not in default after giving effect to this modification and/or extension
herein granted either with or without notice or lapse of time or both; that
there are no oral agreements, defenses, counterclaims or offsets to the Note,
Deed of Trust, Assignment, Security Agreement, Guaranty Agreement, and/or other
security instruments and/or loan documents. Borrower also acknowledges that
Borrower has no present or future claims against Lender for any representations,
misrepresentations, actions or inactions, arising out of or associated with the
Note, Deed of Trust, Assignment, Security Agreement, and/or other security
documents or transactions associated or related therewith. For and in
consideration of this modification and/or extension by Lender, Borrower and
Guarantor further hereby release, relinquish and forever discharge Lender as
well as its predecessors, successors, assigns, agents, officers, directors,
employees, attorneys and representatives, of and from any and all claims,
demands, actions and causes of actions of any and every kind or character,
whether known or unknown, present or future, which Borrower and/or Guarantor may
have against Lender, its predecessors, successors, assigns, agents, officers,
directors, employees, attorneys and representatives arising out of or with
respect to any and all transactions relating to the Note, Deed of Trust,
Assignment, Security Agreement, Guaranty Agreement and/or other loan documents
and/or security instruments, occurring prior to the date hereof, including, but
not limited to, the right to claim that Lender or any other party has charged,
collected, and/or received usurious interest under the Note, Deed of Trust,
Assignment, Security Agreement and/or other security documents and loan
documents, and any other loss, expense and/or detriment, of any kind or
character, growing out of or in any way connected with or in any way resulting
from the acts, actions or omissions of Lender and its predecessors, successors,
assigns, agents, officers, directors, employees, attorneys, and representatives,
on or prior to the date hereof, and including any loss, cost or damage in
connection with any breach of fiduciary duty, breach of any duty of fair
dealing, breach of confidence, breach of funding commitment, undue influence,
duress, economic coercion, conflict of interest, negligence, bad faith,
malpractice, violations of the Racketeer Influence and Corruption Organizations
Act, intentional or negligent infliction of mental duress, distress, tortious
interference with contractual relations, tortious interference with corporate
governance or perspective business advance, breach of contract, deceptive trade
practices, libel, or slander.
VIII.
The parties hereto intend to conform strictly to the applicable usury
laws. In no event, whether by reason of acceleration of the maturity hereof or
otherwise, shall the amount paid or agreed to be paid to Lender for the use,
forbearance or detention of money hereunder or otherwise exceed the maximum
amount permissible under applicable law. If fulfillment of any provision
hereof or of the Note or any mortgage, Deed of Trust, Assignment, Security
Agreement, Guaranty Agreement, security instrument, loan agreement or other
document now or hereafter evidencing, securing or pertaining to the Note or
this agreement, 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 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, an
amount equal to any amount which would have been excessive interest shall be
applied to the reduction of the principal amount owing on the Note and/or this
Agreement in the inverse order of its maturity and not to the payment of
interest, or if such amount which would have been excessive interest exceeds
the
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unpaid balance of principal, such excess shall be refunded to Borrower. All
sums paid or agreed to be paid to Lender for the use, forbearance or detention
of the Note to 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.
IX.
Borrower and Guarantor agree to pay and/or reimburse to Lender all
costs incurred in connection with the execution and consummation of this
Agreement, including without limitation, all recording costs, title policy
premiums, and fees and expenses of attorneys incurred by Lender, if any.
X.
The execution of this Agreement by Borrower and Guarantor shall not be
construed as a waiver of any right or options which Lender may have in the
event of default by Borrower under the terms of the Note, as modified and/or
extended herein, the Deed of Trust, Assignment, Security Agreement, the
Guaranty Agreement, or other security instruments, loan documents, guaranties,
or under any other instruments securing or guaranteeing the payment thereof or
executed and delivered in connection therewith.
XI.
Time is of the essence in the performance of the covenants contained
herein and under the terms of the Note, Deed of Trust, Assignment, Security
Agreement and/or other security instruments, loan documents, guaranties, and
liens and security interests.
XII.
THE EXECUTION OF THIS MODIFICATION, REARRANGEMENT AND/OR EXTENSION
AGREEMENT DOES NOT OBLIGATE LENDER TO MAKE ANY FURTHER RENEWAL, EXTENSION OR
OTHER MODIFICATION OF THE NOTE. BORROWER AND GUARANTOR ACKNOWLEDGE THAT THERE
EXISTS NO OBLIGATION BY LENDER TO FURTHER MODIFY, RENEW, AND/OR EXTEND THE
TERMS OF THE NOTE. BORROWER AND GUARANTOR ACKNOWLEDGE THAT ANY OTHER REQUESTED
RENEWALS, EXTENSIONS OR MODIFICATIONS OF THE NOTE ARE ONLY UPON THE SOLE
APPROVAL AND THE SOLE DISCRETION OF THE LENDER AND BY EXECUTION HEREOF,
BORROWER AND GUARANTOR ACKNOWLEDGE THAT IF NOT OTHERWISE HEREAFTER MODIFIED,
REARRANGED AND/OR EXTENDED BY THE LENDER, THE UNPAID PRINCIPAL AND UNPAID
ACCRUED INTEREST OF THIS NOTE SHALL BE DUE AND PAYABLE IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPH II OF THIS AGREEMENT, WITH THE FINAL PAYMENT OF ALL
UNPAID PRINCIPAL AND UNPAID ACCRUED INTEREST BEING DUE ON MAY 31, 2000.
XIII.
As used in this Agreement, whenever the context so requires, the
masculine, feminine or
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neuter gender, and the singular or plural number, shall each be deemed to
include the others.
XIV.
The terms of this Modification and/or Extension Agreement shall inure
to the benefit of and be binding upon the parties hereto, their respective
heirs, personal and legal representatives, executors, administrators,
successors and assigns.
XV.
NOTICE TO CONSUMER: UNDER TEXAS LAW, IF YOU CONSENT TO THIS
AGREEMENT, YOU MAY BE SUBJECT TO A FUTURE RATE AS HIGH AS EIGHTEEN PERCENT (18%)
PER YEAR.
In testimony hereof the undersigned have caused this instrument to be
executed effective as of May 31, 1995.
BORROWER:
BODYBILT SEATING, INC.
By: /s/ XXXX X. XXXXXXXX
----------------------------
Xxxx X. XxXxxxxx
President
GUARANTOR:
/s/ XXXX X. XXXXXXXX
-------------------------------
XXXX X. XxXXXXXX
LENDER:
ATTEST: FIRST NATIONAL BANK OF XXXXX
Name: By:
---------------------------------- -----------------------------
Name: Name:
Title: Title:
GUARANTOR'S CONSENT AND APPROVAL
The undersigned, being a Guarantor of that certain Promissory Note
("Note") described herein in the original principal sum of $571,500.00, dated
May 26, 1994, executed by Borrowers and made payable to FIRST NATIONAL BANK OF
XXXXX, having signed a Guaranty Agreement dated May 26, 1994 do hereby consent
to, approve and ratify the foregoing Modification and/or Extension Agreement of
said Note and the Deed of Trust, Assignment and/or Security Agreement which
secures the same and does hereby agree to all of the terms, covenants and
conditions of the above and foregoing Modification and/or Extension Agreement,
and further declares and agrees that the terms, provisions and conditions of
his Guaranty Agreement shall and does hereby include the terms and provisions
of this Modification and/or Extension Agreement, and is in full force and
effect and enforceable, and shall continue to be in full force and effect and
enforceable until such time as the said Note and all other indebtednesses so
guaranteed have been paid
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in full and the terms, provisions and conditions of this Agreement and the
Deed of Trust, Assignment and/or Security Agreement securing said Note and
indebtedness have been performed in full and/or has been released in full by
the Holder of said Note.
EXECUTED effective May 31, 1995. /s/ XXXX X. XXXXXXXX
---------------------------
XXXX X. XxXXXXXX
THE STATE OF TEXAS:
COUNTY OF BRAZOS :
This instrument was acknowledged before me on this the 1st day of
June, 1995, by XXXX X. XxXXXXXX, individually and as President of BODYBILT
SEATING, INC., a Texas Corporation, on behalf of said Corporation and in the
capacity therein stated.
/s/ XXXXXXXX X. XXXXXXXX
---------------------------
NOTARY PUBLIC in and for
The State of Texas
THE STATE OF Texas:
COUNTY OF Brazos:
This instrument was acknowledged before me on this the
_________ day of May, 1995, by _________________________________,
_____________________________ of FIRST NATIONAL BANK OF XXXXX, a Banking
Corporation, on behalf of said Corporation and in the capacity therein stated.
---------------------------------
NOTARY PUBLIC in and for
The State of Texas
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EXHIBIT A
Page 1 of 2 Pages
Vol 743 Page 460
FIELD NOTES
All that certain tract or parcel of land lying and being situated in Xxxxxx
County, Texas and being a part of the X. XXXXX SURVEY, Abstract No. 55, also
being out of a called 15.00 acre tract described in a Deed from Xxxxxxx X.
Xxxxxx, Trustee, to Xxxxxxx XxXxxxxx dated May 8, 1979, of record in Vol. 378,
Page 460, Real Property Records of Xxxxxx County, Texas and more fully
described as follows.
BEGINNING at a found 3/8 inch iron rod for the NE corner of called 15.00 acre
tract mentioned above in the West R.O.W. line of the Xxxxx Xxxxxxx #0 Xxxxxx
Xxxx and the SE corner of a called 12.656 acre tract described in a Deed from
Xxxx Xxxxxx Stoneham, et al, to Xxxxxxx XxXxxxxx dated May 13, 1981, of record
in Vol. 420, Page 639, Real Property Records of Xxxxxx County, Texas.
THENCE S 8 deg. 57 min. 21 sec. E, 582.02 ft., along the West R.O.W. line of
the Xxxxx Xxxxxxx #0 Xxxxxx Xxxx xxx Xxxx line of called 15.00 acre tract to a
found 3/8 inch iron rod for the SE corner of the tract of land herein
described.
THENCE S 81 deg. 35 min. 08 sec. W, 650.52 ft., along the South line of the
tract of land herein described to a set 1/2 inch iron rod for its SW corner.
THENCE N 8 deg. 57 min. 36 sec. W, 444.50 ft. along the West line of called
15.00 acre tract and West line of the tract of land herein described to a set
1/2 inch iron rod for its NW corner in the South line of called 12.656 acre
tract.
THENCE N 69 deg. 37 min. 37 sec. E, 663.66 ft., along the North line of called
15.00 acre tract and South line of called 12.656 acre tract to THE PLACE OF
BEGINNING CONTAINING 7.665 acres of land.
DATED this the 9 day of May, 1994
SIGNED: /s/ XXXXXX XXX XXXXX, XX.
------------------------------------------
Xxxxxx Xxx Xxxxx, Xx.
Registered Professional Land Surveyor
State of Texas No. 3927
RECORDER'S MEMORANDUM
AT THE TIME OF RECORDATION THIS INSTRUMENT WAS FOUND TO BE INADEQUATE FOR THE
BEST PHOTOGRAPHIC REPRODUCTION BECAUSE OF ILLEGIBILITY, CARBON, OR PHOTO COPY,
DISCOLORED PAPER, ETC. ALL BLOCKOUTS, ADDITIONS AND CHANGES WERE PRESENT AT THE
TIME THE INSTRUMENT WAS FILED AND RECORDED.
11
EXHIBIT A
Page 2 of 2 Pages
SURVEY MAP
VOL 743 PAGE 461
The undersigned does hereby certify that this survey was this day made on the
ground of the property located in Xxxxxx County, Texas and being a part of the
X. XXXXX SURVEY, Abstract No. 55, also being out of a called 15.00 acre tract
described in a Deed from Xxxxxxx X. Xxxxxx, Trustee, to Xxxxxxx XxXxxxxx, dated
May 8, 1979, of record in Vol. 378, Page 460, Real Property Records of Xxxxxx
County, Texas, that there are no overlappings of improvements, encroachments,
easements, except as shown hereon and that the property shown above as 7.665
acres is located within a Special Flood Hazard Area according to the Flood
Hazard Boundary Map, Community Panel No. 480265 0005A, dated February 4, 1988
for the City of Navasota, Texas. However, according to said Flood Hazard
Boundary Map the property shown above is located in an Area known as Zone A and
by the Legend on said Map there were no elevations run by The Federal Emergency
Management Agency to determine the base Flood Elevations of the property shown
above or any other Areas shown as Zone A.
DATED this the 9 day of May, 1994
SIGNED: XXXXXX XXX XXXXX, XX.
-----------------------------------------
Xxxxxx Xxx Xxxxx, Xx.
Registered Professional Land Surveyor
State of Texas No. 3927
[STATE OF TEXAS LAND SURVEYOR SEAL]
RECORDER'S MEMORANDUM
AT THE TIME OF RECORDATION THIS INSTRUMENT WAS FOUND TO BE INADEQUATE FOR THE
BEST PHOTOGRAPHIC REPRODUCTION BECAUSE OF ILLEGIBILITY, CARBON, OR PHOTO COPY,
DISCOLORED PAPER, ETC. ALL BLOCKOUTS, ADDITIONS AND CHANGES WERE PRESENT AT THE
TIME THE INSTRUMENT WAS FILED AND RECORDED.
