BANK OF OKLAHOMA N.A.
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
June 30, 1997
Xxxxxxx X. Xxxxxxx
Vice President
DRK Enterprises, Inc. dba Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter agreement amends and restates in its entirety
that letter agreement dated July 8, 1996 and amended March 17,
1997 (as amended and restated the "Agreement"). Subject to the
terms and conditions of this letter agreement ("Agreement"), Bank
of Oklahoma, N.A. ("Lender") hereby agrees to lend to DRK
Enterprises, Inc., an Oklahoma corporation, the aggregate
principal sum of Three Million One Hundred Forty-Four Thousand
Four Hundred Forty-One and 83/100 Dollars ($3,144,441.83)
composed of the following:
(A) a term loan in the current principal sum of $644,441.83
("Term Note") with a maturity date of August 17, 1999; and
(B) a revolving line of credit ("Line") in the principal
sum of $2,500,000.00 (the "Commitment") which the Borrower
may borrow, repay and reborrow from time to time, subject to
the Borrowing Base limitation as set forth below, until the
earlier of (i) June 30, 1998, or (ii) the date upon which
Lender accelerates Borrower's obligation after an Event of
Default, as defined below (the "Commitment Termination
Date").
The rate of interest on the Line shall be Chase Manhattan Prime.
"Chase Manhattan Prime" is the fluctuating prime rate of interest
announced by The Chase Manhattan Bank from time to time at its
New York, New York office for the guidance of its loan officers;
it is not necessarily the lowest rate of interest The Chase
Manhattan Bank is charging its customers. The rate of interest on
the Term shall be eight and one-quarter percent (8.25%) per annum
fixed.
1. The Term Note
1.1 Subject to the terms and conditions of this Agreement,
the Lender has previously agreed to and has loaned to
Borrower the original principal sum of $651,750.00 pursuant
to the terms of a promissory note maturing August 17, 1999,
with a current outstanding principal balance of $644,441.83;
a copy of the promissory note is attached hereto as
Exhibit "A-1", (which together with any extensions, renewals
and changed in form thereof, is hereafter referred to as
"Term Note").
2. The Note and the Borrowing Base
2.1 Subject to the terms and conditions of this Agreement,
the Lender agrees to lend Borrower such amounts up to the
maximum of $2,500,000.00 as Borrower may from time to time
request as evidenced by a promissory note, in the form
attached hereto Exhibit "A-2", maturing on June 30, 1998,
(which, together with any extensions, renewals and changes
in form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term Note"
as the "Notes"), provided that the aggregate principal
balance at any time outstanding under the Line Note shall
not exceed the lesser of (i) the Commitment or (ii) the sum
of the following:
2.1.1 An amount equal to 80% of Qualified Accounts
Receivable (as hereafter defined); plus
2.1.2 An amount equal to the lesser of (i) 50% of
Qualified Inventory or (ii) $1,250,000.00.
2.2 In connection with the determination of the above
formula (hereafter the "Borrowing Base"), the Borrower shall
furnish a completed Borrowing Base Certificate in the form
of Exhibit "B" attached hereto effective as of the end of
each month for each month that the Line Note is outstanding,
which Borrowing Base Certificate shall be delivered to the
Lender by the 15th day of the following calendar month.
Qualified Accounts Receivable data that are reported on the
Borrowing Base Certificate shall be current as of the last
business day of the preceding calendar month. Qualified
Inventory shall be valued according to book value as of the
most recent month end, in a form satisfactory to Lender
2.3 Notwithstanding the face amount of the Line Note, the
aggregate principal balance outstanding under the Line Note
at any given time shall be the aggregate of all advances
theretofore made by Lender, less all payments of principal
theretofore received by Lender on the Line Note. The Line
Note is subject to the terms of this Agreement. The Line
Note and this Agreement set forth only one obligation (and
not two separate obligations) to repay amounts advanced by
Lender and to pay interest thereon. Principal and interest
shall be payable as set forth in the Line Note and in this
Agreement. The Line Note is a renewal.
2.4 In connection with the Borrowing Base and the
determination thereof by the Lender, Borrower hereby agrees
that:
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2.4.1 In the event the Lender shall make advances in
excess of the Borrowing Base, any such advance shall,
nevertheless, be secured pursuant to all Security
Agreement (as defined below).
2.4.2 Borrower will notify the Lender in writing
promptly of any accounts receivable or inventory which
originally were Qualified Accounts Receivable or
Qualified Inventory but have ceased to remain as such
within the definition of such terms.
2.4.3 The Borrower will at all times maintain
hereunder a Borrowing Base which will at least equal
the sum of (i) the aggregate unpaid balance of all
advances made under the Line Note plus (ii) the
aggregate face amount of all outstanding Letters of
Credit; and, if the Borrower fails to do so, the
Borrower will immediately remit the amount necessary to
reduce such aggregate unpaid balance to meet the
aforesaid requirement.
3. Requests for Advances and Credit Extensions. Advances shall
be made based. upon the following terms and conditions:
3.1 For each Advance requested by Borrower, Borrower shall
give notice in writing to Bank in the form and substance of
the "Request for Advance" (each referred to herein as a
"Request for Credit Extension" and collectively as "Requests
for Credit Extensions") attached hereto as Exhibit "C", duly
completed, dated and signed by an officer of Borrower
designated in writing by Borrower as authorized to make
Requests for Credit Extensions (or by telephone confirmed in
writing in the foregoing manner). Any Request for Credit
Extension for an Advance shall be received by Lender no
later than 12:00 noon on the date on which the requested
Advance is to be made. In consideration of Lender permitting
Borrower to make Requests for Advances and Credit Extensions
by telephone or by other non-written means, Borrower states
that it is fully aware of the risks attendant thereto, and
agrees to accept all such risks and to hold Lender harmless
from any loss which Borrower may incur by reason of any such
non-written request, other than such as result from Lender's
gross negligence or its wanton disregard.
3.2 After receiving a request for advance from Borrower,
Lender shall deposit the amount of such advance to
Borrower's demand deposit account with Lender, or otherwise
pay out such funds as may be requested by Borrower;
PROVIDED, HOWEVER, LENDER SHALL NOT BE OBLIGATED TO MAKE ANY
ADVANCE (i) AFTER. THE COMMITMENT TERMINATION DATE, (ii) IF
TO DO SO WOULD CAUSE THE AGGREGATE PRINCIPAL. BALANCE
OUTSTANDING UNDER THE LINE NOTE TO EXCEED TIE BORROWING
BASE, OR (iii) IF ANY EVENT OF DEFAULT (AS DEFINED BELOW),
OR ANY EVENT WHICH WITH THE GIVING OF NOTICE OR THE PASSAGE
OF TIME WOULD BECOME AN EVENT OF DEFAULT, HAS OCCURRED AND
IS CONTINUING. BORROWER MAY FROM TDVIE TO TIME PREPAY
WITHOUT PENALTY OR PREMIUM ALL OR ANY PART OF THE LINE NOTE.
Amounts prepaid on the Note prior to the Commitment
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Termination Date shall (subject to the other provisions of
this Agreement) be available for redrawing as one or more
advances. Each request for an advance shall constitute a
reaffirmation of all covenants, representations and
warranties made by Borrower under this Agreement, the Line
Note and the Security Agreement.
4. Qualified Accounts Receivable
The term "Qualified Accounts Receivable" as used herein
means an account owing to the Borrower which meets the
following specifications at the time it comes into existence
and continues to meet the same until it is collected in
full:
4.1 The account is due and payable not more than thirty
(30) days from the date of the invoice and is not over
ninety (90) days outstanding,
4.2 The account debtor is not an officer, shareholder,
employee, director or agent of the Borrower,
4.3 The account arose from a bona fide outfight sale of
goods by the Borrower or from the performance of services by
the Borrower and the Borrower has possession of or has
delivered to the Lender shipping and delivery receipts
evidencing shipment of the goods, and, if representing
services, the services have been fully performed for the
respective account debtor.
4.4 The account is not subject to, nor has the Borrower
received notice of any claim, set-off, allowance or
adjustment by the account debtor or any counterclaim,
including but not limited to any claim, set-off, allowance
or adjustment based upon any violation of or failure to
comply with any applicable federal or state consumer credit
law.
4.5 The account debtor has not returned any of the goods
from the sale of which the account arose.
4.6 The account is not subject to any assignment, claim,
lien or security interest of any character, or subject to
any attachment, levy, garnishment or other judicial process,
except the security interest in favor of the Lender.
4.7 The account arose in the ordinary course of the
Borrower's business, and no notice of bankruptcy, insolvency
or adverse change in the financial condition of the account
debtor has been received by Borrower.
4.8 The account is not evidenced by judgment, an
instrument, or chattel paper.
4.9 The account is not backed by a letter of credit
covering goods which have not yet been shipped.
4.10 The account debtor is not a State, Federal or foreign
government agency, nor an agent acting for or on behalf of
any State, Federal or foreign government.
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4.11 Not more than 5% of the face value of the account
debtor's outstanding account receivables due and payable to
the Borrower shall have been outstanding for ninety (90)
days or more.
4.12 The account debtor's accounts to Borrower do not
exceed $250,000.00 at any one time, Amounts in excess of
$250,000.00 shall be excluded from the definition of
Qualified Accounts Receivable.
5. Qualified Inventory
The term "Qualified Inventory" as used herein means
inventory in the possession of Borrower and to which
Borrower has title, excluding raw materials and work-in-
process, valued at the lower of cost or market value,
determined on a first-in-first-out basis. Qualified
Inventory shall not include inventory which is, in Lender's
good faith opinion, obsolete, slow moving or unmerchantable
or inventory which Lender, in its sole good faith
discretion, deems ineligible inventory, based on such
considerations as Lender may from time to time deem
appropriate including, without limitation, whether the
inventory is subject to a perfected, first priority security
interest in favor of Lender.
6. Conditions Precedent
Prior to funding the Commitment, the Borrower shall have
satisfied the following conditions:
6.1 Borrower shall execute and deliver to Lender the Line
Note.
6.2 Lender shall have received a certified copy of the
resolutions of Borrower's governing body authorizing the
execution, delivery and performance of this Agreement, the
Note, the Security Agreement, and such additional supporting
documents as Lender or its counsel may reasonably request.
6.3 Borrower shall execute and deliver to Lender a security
agreement (the "Security Agreement") granting and assigning
to Lender a fast and prior security interest in all of
Borrower's rights in the following, whether now owned or
acquired hereafter, and all proceeds thereof):
6.3.1 inventory;
6.3.2 accounts, instruments, documents, general
intangibles, and contract rights;
6.3.3 equipment and fixtures;
6.3.4 intellectual property rights;
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6.3.5 first and prior mortgages of the real property
described on the attached Exhibit "E" (the "Premises");
6.3.6 All proceeds of the foregoing.
6.4 Borrower shall execute and deliver to Lender such
financing statements and other documents and instruments as
Lender may reasonably request pursuant to the Security
Agreement.
6.5 Lender shall have received in substance and form
satisfactory to Lender all other certificates, affidavits,
schedules, supplemental security agreements and other
documents provided for or referred to herein, or which
Lender may reasonably request.
6.6 Borrower shall deliver to Lender a fully executed copy
of a Guaranty Agreement in the form of Exhibit "D" attached
hereto executed by each of the following persons: Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxxx, The Xxx Xxxxxxx Revocable Trust and
the Xxxxx Xxxxxxx Revocable Trust, and Xxxxx Xxxxxxx
(collectively, the "Guarantors"). Provided, however, that
the guaranties shall be limited in amount (after application
of all other amounts received from any source against
indebtedness evidenced by the Note) as set forth in the
guaranty agreements.
6.7 Lender shall have received satisfactory original
certificates of insurance as required by the Security
Agreement. Such policies will be in a form, and written by
companies, satisfactory to Lender. The certificates of
coverage will be kept current by Borrower, and shall provide
for thirty days notice to Lender of any cancellation or
material change of such policies.
7. Covenants
Borrower, in addition to other terms, provisions, and
covenants contained herein, and in the Note, Security
Agreement or any other agreement between Borrower and
Lender, agrees, represents and warrants as follows:
7.1 Borrower will provide to Lender an unaudited balance
sheet and operating statement prepared for internal use for
each of its fiscal quarters, as well as audited financial
statements for the period ending September 30, 1996 and each
fiscal year thereafter. These statements will be provided
within 45 days of the end of the applicable reporting
quarterly period, except for the audited annual statement,
which will be provided within 120 days of the end of the
applicable fiscal year.
7.2 Except as previously disclosed to Lender in writing:
7.2.1 No material adverse change has occurred in
Borrower's condition, financial or otherwise, since the
date of the last annual financial statement submitted
to Lender.
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7.2.2 The Borrower has not incurred, either in any
single case or in the aggregate, any material
liabilities or made any material investments or
guarantees (direct or contingent) since the date of its
last annual financial statement outside the ordinary
course of business.
7.3 Borrower will do or cause to be done all things
necessary to preserve, renew and keep in full force and
effect its corporate existence, rights, licenses, permits
and franchises and comply with all laws and regulations
applicable to Borrower.
7.4 Borrower will duly discharge and pay all taxes,
assessments and other governmental charges imposed on it or
its properties, as well as all proper claims for labor,
materials or supplies which if unpaid might by law become a
lien or charge upon any property of Borrower.
7.5 Borrower will not create or incur any indebtedness for
borrowed money or become liable as surety, guarantor,
accommodation endorser, or otherwise, for or upon the
obligation of any person or entity in excess of $150,000.00
in the aggregate in any one fiscal year except: (a) trade
debt incurred in the ordinary course of Borrower's business;
or (b) obligations to the Lender.
7.6 Borrower will at all times hereafter maintain a minimum
net worth (after deduction of the outstanding principal
balance of all loans to shareholders) of $3,000,000.00. Net
worth shall be determined in accordance with generally
accepted accounting principals, consistently applied, less
notes receivable from shareholders.
7.7 Borrower shall permit Lender to perform field audits of
Borrower's books and records twice per year at a mutually
agreeable time.
7.8 Borrower will give Lender prompt notice of any material
litigation affecting Borrower, any substantial dispute which
may exist between Borrower and any governmental body or
agency, any labor controversy resulting or threatening to
result in a strike, or any event of default under the terms
of this Agreement, the Note, the Security Agreement, or any
other agreement between Borrower and Lender.
7.9 Borrower has all material permits, licenses,
certificates, consents and franchises necessary to carry on
his business as now being conducted. All such permits,
licenses, certificates, consents, and franchises are valid
and current, and the Borrower is not in material violation
thereof.
7.10 To the best of the Borrower's knowledge, it has not
violated any applicable statute, regulation or ordinance of
the United States of America or any foreign country, or any
state, municipality or any other jurisdiction, or of any
agency thereof in any material respect adversely affecting
the business, property, assets, operations, or condition,
financial or otherwise, of Borrower. Borrower is using its
best efforts to comply with all statutes, rules and
regulations relating to environmental standards and controls
in all jurisdictions where it is presently doing business.
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7.11 Borrower will not violate any term or condition of any
of its loan agreements or other agreements with any other
lender.
7.12 The Borrower shall permit the representatives of the
Lender to make reasonable inspections at any time during
normal business hours of the Borrower's facilities,
activities, books and records, and cause its officers and
employees to give full cooperation and assistance in
connection therewith.
7.13 The Borrower shall not (1) merge or consolidate with
any other entity, (2) sell, lease, transfer or otherwise
dispose of any substantial part of its properties, or any
part of its properties which are essential to the conduct of
its business or operations, (3) make any material change in
its name, structure or identity, or (4) enter into any
agreement to do any of the, foregoing.
7.14 No investigation at any time made by or on behalf of
Lender will diminish Lender's right to, rely on Borrower's
covenants, representations and warranties made herein. All
statements contained in any certificate or other instrument
delivered by or on behalf of Borrower under or pursuant to
this Agreement or in connection with the transactions
contemplated hereby shall constitute representations and
warranties made by Borrower hereunder.
7.15 At Lender's request, Borrower will promptly cure any
defect in the issuance of the Notes or any other instruments
or documents referred to herein, and immediately execute and
deliver to Lender upon request all such other instruments as
may from time to time be reasonably requested by Lender in
compliance with or in accomplishment of Borrower's
obligations under this Agreement or any other instruments or
documents referred to herein, or correct any omission in any
exhibits thereto, or to perfect any security interests or
liens, make any recordings, file any notices, or obtain any
consents, all as may be necessary or appropriate.
7.16 Lender shall have received an appraisal on the
Premises, pursuant to the Federal Financial Institution
Reform Recovery Enforcement Act of 1989 (FIRREA TITLE XI).
All costs associated with the Appraisal shall be paid by the
borrower.
7.17 Lender shall have received satisfactory original
certificates of insurance as required by the Security
Agreements. Such policies will be in a form, and written by
companies, satisfactory to Lender. The certificates of
coverage will be kept current by Borrower, and shall provide
for thirty days notice to Lender of any cancellation or
change of such policies.
7.18 Lender shall have received either (i) satisfactory
evidence that the Premises are not situated within an area
identified by the Secretary of Housing and Urban Development
or any other governmental agency as an area having special
flood or mud slide hazards and that no flood insurance is
required by any regulations governing Lender, or
(ii) satisfactory policies of flood insurance.
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8. Warranties
Borrower represents and warrants to the Lender that:
8.1 Borrower is duly organized, legally existing and in
good standing under the laws of the State of Oklahoma and to
the best of its knowledge, Borrower is duly qualified as a
corporation in all jurisdictions where it does business or
owns or leases real estate except to the extent that failure
to so qualify would not have a materially adverse affect on
Borrower.
8.2 The execution and delivery of this Agreement, the Note,
the Security Agreement and all other agreements and
instruments executed in connection herewith by Borrower and
its performance of its obligations hereunder and thereunder
(a) are within its enumerated powers; (b) are duly
authorized by its governing body (and if necessary, its
owners); (c) are not in contravention of any law or of the
terms of its organizational documents nor of any provision,
indenture, agreement or undertaking to which it or any of
its property is bound; (d) do not require any consent or
approval (including governmental) which has not been given;
(e) do not contravene any statute, rule or regulation or any
contractual or governmental restriction; (f) are not subject
to the jurisdiction of any state or federal agency or
regulatory authority; and (g) will not result in the
imposition of liens, charges or encumbrances on any of
Borrower's properties or assets other than those
contemplated under this Agreement.
8.3 This Agreement, the Notes, and all other documents
executed and delivered by the Borrower to Lender are legal,
valid and binding obligations of Borrower, enforceable in
accordance with their terms, except as may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally.
8.4 Subject to any limitation stated herein, any balance
sheets, earnings statements and other financial data which
have been or shall hereafter be furnished to Lender to
induce it to make loans, do, or as to subsequent financial
statements will, fairly represent the financial condition of
Borrower as of the dates for which the same are furnished,
have been prepared in accordance with generally accepted
accounting principles consistently applied; reports and
other papers and data furnished to Lender are and will be,
at the time the same are so furnished, accurate and correct
in all material respects and complete insofar as
completeness may be necessary to give Lender a true and
accurate knowledge of the subject matter.
8.5 Except as previously disclosed to Lender in writing,
there is not now pending against Borrower, nor to the
knowledge of Borrower, is there threatened any litigation,
legal or administrative proceeding, investigation or any
other action of any nature against it or affecting it, the
outcome of which might materially and adversely affect the
financial condition or business of Borrower.
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8.6 Except as otherwise previously disclosed to Lender in
writing, all collateral hypothecated to Lender is, and will
be, owned by Borrower free and clear of all material liens,
claims or encumbrances whatsoever, except for the rights
herein granted to Lender hereto, and Borrower has good right
to cause such collateral to be hypothecated to Lender as
security for Borrower's obligations to the Lender.
8.7 All tax returns required to be filed and all taxes
shown thereon to be due, including interest and penalties,
if any have been paid, or adequate reserves for the payment
thereof have been provided.
9. Costs and Expenses
Borrower agrees to pay all costs, expenses and fees
(including reasonable attorney fees) incurred by Lender in
connection with the completion, implementation or
enforcement of this Agreement, the Notes, or the Security
Agreement.
10. Events of Default
In addition to, and notwithstanding, the terms of the Note
or other instrument evidencing indebtedness from Borrower to
Lender, the occurrence of any of the following events shall
constitute an "Event of Default":
10.l The nonpayment within 3 days of the scheduled due date
due of any amount owed under the Note or the nonpayment
within twenty (20) days of when due of any other sums
payable by Borrower to Lender.
10.2 The entry against Borrower or any Guarantor of any
judgment in an amount of $75,000.00 or more on a claim not
covered by insurance or which has not been stayed with
appeal pending, or the entry against Borrower or any
Guarantor of such judgments totaling in excess of $75,000.00
in any six (6) month period (unless discharged or released
within twenty (20) days after entry of judgment).
10.3 Borrower's or any Guarantor's application for or
consent to the appointment of a receiver, trustee or
liquidator of itself or of all or a substantial part of its
assets, or to a general assignment for the benefit of its
creditors.
10.4 Borrower's or any Guarantor's failure or admission of
an inability generally to pay its debts as they fall due.
10.5 Borrower's or any Guarantor's filing of a voluntary
petition in bankruptcy or of a petition or answer seeking
reorganization or an arrangement with creditors or
attempting to take advantage of any insolvency law, or
Borrower's or any Guarantor's or Pledgor's admission (by
answer, default or otherwise) of the material allegations of
a petition filed against it in any bankruptcy,
reorganization, arrangement or insolvency proceeding.
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10.6 The entry of any order, judgment or decree by any
court of competent jurisdiction adjudicating Borrower or any
Guarantor bankrupt or insolvent, or, (with or without
Borrower's or any Guarantor's application, approval or
consent) approving a petition seeking Borrower's or any
Guarantor's reorganization or appointing a receiver,
trustee, custodian or liquidator with respect to all or a
substantial part of its assets.
10.7 The condemnation, seizure or appropriation of
substantially all, or such as in Lender's good faith opinion
constitutes a material portion, of Borrower's or any
Guarantor's assets.
10.8 Borrower's voluntary or involuntary suspension of
business for more than ten (10) Business Days in any thirty
(30) day period.
10.9 The existence of any default under any loan or similar
agreement to which Borrower or any Guarantor is now or
hereafter becomes a party, or of any other event pursuant to
which any holder or holders of Borrower's or any Guarantor's
indebtedness may declare the same due and payable, or
Borrower's or any Guarantor's to pay any such indebtedness
when due (or before the end of any grace or curative period
provided with respect thereto).
10.10 A notice of lien, levy, or assessment is filed or
recorded with respect to all or a substantial part of the
property pledged as collateral for the Notes or a lien, levy
or assessment which relates to current taxes not yet due and
payable and the applicable claim is not discharged or
satisfied within 45 days of Borrower's actual or
constructive knowledge of such filing or recordation; or all
or a substantial part of the property pledged as collateral
for the Notes is attached, seized, subjected to a writ or
distress warrant, or is levied upon, or becomes within the
possession of any receiver, trustee, custodian or assignee
for the benefit of creditors.
10.11 The existence, in any warranty or representation made
by Borrower or any Guarantor in connection with this
Agreement, or any associated instrument or document, or in
any financial statement or otherwise, of any materially
false or misleading statement.
10.12 The breach of, or default under, any covenant,
agreement, term, condition, provision, representation or
warranty contained in this Agreement, the Security Agreement
or in any related instrument or document, but not
specifically referred to in this Section, if breach or
default is not cured within forty-five (45) days of its
occurrence.
Should an Event of Default occur, (i) Borrower shall be
deemed to be in default under the terms of this Agreement
and of the Security Agreement, and (ii) fender shall be
entitled to the remedies set forth in the Notes and the
Security Agreement, and all other remedies at law. Lender
may treat any default under this Letter Agreement or the
Notes as a default under any other agreement or note between
Borrower and Lender.
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11. General Provisions
11.1 No delay on the part of Lender or the holders of the
Note in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial
exercise by any of them of any right, power or remedy
preclude other or further exercise thereof, or the exercise
of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any
provision of this Agreement or the Notes shall in any event
be effective unless the same shall be in writing and signed
by the parties hereto, and then any such amendment,
modification, waiver or consent shall be effective only in
the specific instance, for the specific purpose and for the
specific time period for which given. No officer, agent or
employee of Lender has authority to modify this agreement
orally or to waive the provisions of this subsection.
11.2 All notices, requests and demands shall be given in
writing, or by telecopy confirmed in writing, at the
following address or at such other address as any party may
later designate for itself in writing to the other parties;
Borrower:
DRK Enterprises, Inc. dba Tulsat
Attn: Xxxxxxx X. Xxxxxxx
0000 X. Xxxx
Xxxxxx Xxxxx, Xx 00000
Lender:
Bank of Oklahoma, N.A.
Attn: Xxxxxxx X. Xxxxxxxx
X.X. Xxx 0000
Xxxxx, Xx 00000
Such notice shall be effective when placed in the United
States mails, postage prepaid, certified mail, return
receipt requested or, if given by other means, when actually
received.
11.3 This Agreement shall be deemed executed, delivered and
accepted in, and shall be governed by the internal laws (and
not the law of conflicts) of, the State of Oklahoma. The
Note shall be deemed an "instrument" and a "note" under
Article 3 of the Uniform Commercial Code as enacted in
Oklahoma.. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any
provision is, prohibited or invalid thereunder, it (or the
invalid portion thereof) shall be ineffective to the extent
only of such prohibition or invalidity, without invalidating
the remainder of any such provision or of this Agreement,
which shall be given effect the same as if the invalid
provision had not been included. Borrower hereby waives all
objections to venue and consents and submits to the
jurisdiction of any state or federal court sitting in Tulsa,
Oklahoma, or in any state or county in which real property
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securing the Note is located, in connection with any action
instituted by the Lender by reason of or arising out of the
execution, delivery or performance of this Agreement.
11.4 Borrower shall not assign any of Borrower's rights and
interests hereunder without the prior written consent of the
Lender.
11.5 All covenants, agreements, undertakings, indemnities,
representations and warranties made herein shall survive
until full and final payment of all obligations of Borrower
and the Lender has no further Commitment, and, except as
otherwise indicated, shall not be affected by any
investigation made by any party.
11.6 The parties have discussed this Agreement over a
considerable time period. THIS AGREEMENT, TOGETHER WITH THE
ASSOCIATED DOCUMENTS DESCRIBED HEREIN, CONSTITUTE THE ENTIRE
AGREEMENT OF THE PARTIES WITH RESPECT TO THE EXTENSIONS OF
CREDIT DESCRIBED HEREIN. ALL DISCUSSIONS AND NEGOTIATIONS
ARE MERGED INTO THIS AGREEMENT. LENDER HAS NOT MADE ANY
ORAL AGREEMENTS, PROMISES, OR "SIDE DEALS".
If this Agreement meets with your approval, please sign below.
Very truly yours,
By:
/S/Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President
Agreed and Accepted this 7th day of July, 1997.
DRK Enterprises, Inc. dba Tulsat
By: /S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President
"GUARANTORS"
/S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
13
/S/Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, Trustee
for The Xxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, Trustee
for the Xxxxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
14
BANK OF OKLAHOMA N.A.
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
September 25, 1997
Xxxxxxx X. Xxxxxxx, Vice President
DRK Enterprises, Inc. dba Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the first amendment
to the amended and restated letter agreement dated June 30, 1997
(as amended September 25, 1997) by and between Bank of Oklahoma,
N.A. ("Lender") and DRK Enterprises, Inc., an Oklahoma
corporation ("Borrower") (referred to hereafter as the
"Agreement").
WHEREAS, the Borrower has requested and the Lender has
agreed to increase the Line from $2,500,000.00 to $3,000,000.00.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Subparagraph (B) of the preamble to the Agreement shall
be amended to read as follows:
(B) a revolving line of credit ("Line") in the principal
sum of $3,000,000.00 (the "Commitment") which the Borrower
may borrow, repay and reborrow from time to time, subject to
the Borrowing Base limitation as set forth below, until the
earlier of (i) June 30, 1998, or (ii) the date upon which
Lender accelerates Borrower's obligation after an Event of
Default, as defined below (the "Commitment Termination
Date").
2. Paragraph 2.1 of the Agreement shall amended to read as
follows:
2.1 Subject to the terms and conditions of this
Agreement, the Lender agrees to lend Borrower such
amounts up to the maximum of $3,000,000.00 as Borrower
may from time to time request as evidenced by a
promissory note, in the form attached hereto
Exhibit "A-2", maturing on June 30, 1998, (which,
together with any extensions, renewals and changes in
form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term
Note" as the "Notes"), provided that the aggregate
principal balance at any time outstanding under the
Line Note shall not exceed the lesser of (i) the
Commitment or (ii) the sum of the following:
2.1.1 An amount equal to 80% of Qualified Accounts
Receivable (as hereafter defined); plus
2.1.2 An amount equal to the lesser of (i) 50% of
Qualified Inventory or (ii) $1,500,000.
3. Exhibit "A-2" of the Agreement is hereby replaced by the
Exhibit "A-2" attached hereto.
4. All other terms and conditions of this Agreement,
including but not limited to the Security Agreements and
Guaranty Agreements, shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please so indicated by signing in the spaces provided below.
Sincerely,
By: /S/ Xxxxxx X. Short
-------------------
Xxxxxx X. Short
Its: Vice President
Agreed and accepted this ___ day of ___________, 1997.
"Borrower"
DRK ENTERPRIESES, INC. DBA TULSAT
By: /S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President
"Guarantors"
/S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
2
/S/Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, Trustee
for The Xxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, Trustee
for the Xxxxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
3
BANK OF OKLAHOMA N.A.
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
February 28, 1998
Xxxxxxx X. Xxxxxxx, Vice President
DRK Enterprises, Inc. dba Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the second amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997 and February 28, 1998, by and
.between Bank of Oklahoma, N.A. ("Lender") and DRK Enterprises,
Inc., an Oklahoma corporation ("Borrower") (referred to hereafter
as the "Agreement").
WHEREAS, the Borrower has requested and the Lender has
agreed to increase the Line from $3,000,000.00 to $3,500,000.00
and extend the maturity date to February 28, 1999.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Subparagraph (B) of the preamble to the Agreement shall
be amended to read as follows:
(B) a revolving fine of credit ("Line") in the
principal sum of $3,500,000.00 (the "Commitment") which
the Borrower may borrow, repay and reborrow from time
to time, subject to the Borrowing Base limitation as
set forth below, until the earlier of (i) February 28,
1999, or (ii) the date upon which Lender accelerates
Borrower' s obligation after an Event of Default, as
defined below (the "Commitment Termination Date").
2. Paragraph 2.1 of the Agreement shall amended to read as
follows:
2.l Subject to the terms and conditions of this
Agreement, the Lender agrees to lend Borrower such
amounts up to the maximum of $3,500,000.00 as Borrower
may from tune to time request as evidenced by a
promissory note, in the form attached hereto
Exhibit "A-2", maturing on February 28, 1999, (which,
together with any extensions, renewals and changes in
form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term
Note" as the "Notes"), provided that the aggregate
principal balance at any time outstanding under the
Line Note shall not exceed the lesser of (i) the
Commitment or (ii) the sum of the following:
2.1.1 An amount equal to 80% of Qualified
Accounts Receivable (as hereafter defined); plus
2.1.2 An amount equal 25% of Qualified Inventory
(the "Qualified Inventory Borrowing Base
Limitation");
and further provided that at no time may the amount
attributable to the Qualified Inventory Borrowing Base
Limitation exceed fifty percent (50%) of the Borrowing
Base.
3. Exhibit "A-2" of the Agreement is hereby replaced by the
Exhibit "A-2" attached hereto.
4. All other terms and conditions of this Agreement,
including but not limited to the Security Agreements and
Guaranty Agreements, shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please so indicated by signing in the spaces provided below.
Sincerely,
By: /S/ Xxxxxx X. Short
-------------------
Xxxxxx X. Short
Its: Vice President
Agreed and accepted this 4th day of March, 1998
"Borrower"
DRK ENTERPRISES, INC. DBA TULSAT
By: /S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President
2
"Guarantors"
/S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
/S/Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, Trustee
for The Xxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, Trustee
for the Xxxxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
3
BANK OF OKLAHOMA N.A.
Bank of Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
August 31, 1998
Xxxxxxx X. Xxxxxxx, Vice President
DRK Enterprises, Inc. d/b/a Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the third amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997 and on February 28 (as amended, the
"Agreement), 1998. by and between Bank of Oklahoma, N.A.
("Lender") and DRK Enterprises. Inc., an Oklahoma corporation
("Borrower").
WHEREAS, the Borrower has requested and the Lender has
agreed to increase the Line from $3,500,000.00 to $4,500,000.00,
extend the maturity date to August 31, 1999, and amend the
Qualified Inventory Borrowing Base percentage to 60% of the
Borrowing; Base.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Subparagraph (B) of the preamble to the Agreement shall
be amended to read as follows:
(B) a revolving line of credit ("Line") in the
principal sum of $4,500,000.00 (the "Commitment") which
the Borrower may borrow, repay and re-borrow from time
to time, subject to the Borrowing Base limitation as
set forth below, until the earlier of (i) August 31, or
(ii) the date upon which Lender accelerates Borrower' s
obligation after an Event of Default, as defined below
(the "Commitment Termination Date").
2. Paragraph 2.1 of the Agreement shall amended to read as
follows:
2.1 Subject to the terms and conditions of this
Agreement, the Lender agrees to lend Borrower such
amounts up to the maximum of $4,500,000.00 as Borrower
may from time to time request as evidenced by a
promissory note, in the form Attached hereto
Exhibit "A-2", maturing on February 28, 1999, (which,
together with any extensions, renewals and changes in
form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term
Note" as the "Notes"), provided that the aggregate
principal balance at any time outstanding under the
Line Note shall not exceed the lesser of (i) the
Commitment or (ii) the sum of the following:
2.1.1 An amount equal to 80% of Qualified
Accounts Receivable (as hereafter defined); plus
2.1.2 An amount equal 25% of Qualified Inventory
(the "Qualified Inventory Borrowing Base
Limitation");
Further provided that at no time may the amount
attributable to the Qualified Inventory Borrowing Base
Limitation exceed sixty percent (60%) of the Borrowing
Base,
3. The Exhibit "A-2" attached hereto hereby replaces
exhibit "A-2" of the Agreement.
4. Paragraph 7.1 shall be amended to add the following:
7.1 Borrower acknowledges that irrespective of Lender's
previous waivers of the request that Borrower provide
audited financial statements as provided herein
paragraph, Borrower agrees to provide Lender audited
financial statements for each fiscal year end within
120 days of the end of the applicable fiscal year.
4. Paragraph 7.19 shall be added to the Agreement as
follows:
7.19 Until the indebtedness evidenced herein is equal to or
less than the aggregate of $2,500,000.00, Borrower will
furnish Lender with subordination of all owner's debt
and interest payable to owners will be accrued and not
paid to such
5. All other terms and conditions of this Agreement,
including but not limited to the Security Agreements and
Guaranty Agreements, shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please so indicated by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/ Xxxxxx X. Short
-------------------------------
Xxxxxx X. Short, Vice President
2
Agreed and accepted this 30th day of September, 0000
"Xxxxxxxx"
XXX Enterprises, Inc. d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
"Guarantors"
/S/Xxxxxxx X. Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
/S/Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx, Trustee
for The Xxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, Trustee
for the Xxxxx Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx
3
August 2, 1999
Xxxxxxx X. Xxxxxxx, Vice President
DRK Enterprises, Inc. d/b/a Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Re: Fourth Amendment to the Letter Agreement between DRK
Enterprises, Inc. d/b/a Tulsat
as "Borrower" and Bank of Oklahoma, N. A. as "Lender" dated June
30, 1997
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the fourth amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997, February 28, 1998, and August 31,
1998 (as amended, the "Agreement") by and between Bank of
Oklahoma, N.A. ("Lender") and DRK Enterprises, Inc., an Oklahoma
corporation, which does business as Tulsat ("Borrower").
WHEREAS, the Borrower has requested, and the Lender has
agreed to: (i) extend the maturity of the Line commitment set
forth in the Agreement from August 31, 1999, to June 30, 2000;
(ii) to extend the maturity date of the Term Loan as set forth in
the Agreement from August 17, 1999 to June 30, 2004; (iii) to
amend the terms of the Agreement and the Term Note such that the
rate of interest due and payable on the Term obligation set forth
in the Agreement and the Term Note which evidences such
obligation shall be charged and payable at a fixed rate of
interest equal to eight percent (8%) per annum; (iv) to amend the
terms of the Agreement and the Line Note such that the rate of
interest due and payable on the Line obligation set forth in the
Agreement and the Line Note which evidences such obligation shall
vary on an annual basis in accordance with a ratio the numerator
of which shall be the amount of principal plus accrued but unpaid
interest outstanding on the Line and Term obligations of the
Borrower under the Agreement plus any other outstanding amounts
of principal and interest owed by the Borrower to any other
financial institution (the "Borrower's Funded Bank Debt"), and
the denominator of which shall be the Borrower's earnings before
interest, taxes, depreciation, and amortization ("EBITDA") such
ratio hereafter described as "Funded Bank Debt to EBITDA Ratio"
all as more particularly set forth below; and, (v) to amend the
terms of the Guaranty Agreements, Exhibit "D" to the Agreement to
reflect the terms stated in Exhibits "D-1" and "D-2" attached
hereto, all of which the Lender has agreed to do.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The preamble to the Agreement shall be amended to read as
follows:
(B) a revolving line of credit ("Line") in the
principal sum of $4,500,000.00 (the "Commitment") which
the Borrower may borrow, repay and re-borrow from time
to time, subject to the Borrowing Base limitation as
set forth below, until the earlier of (i) June 30,
2000, or (ii) the date upon which Lender accelerates
Borrower's obligation after an Event of Default, as
defined below (the "Commitment Termination Date").
The rate of interest on the Line shall vary on an annual
basis beginning on a date to be determined by the Lender and
Borrower and thereafter, annually, on the date the Lender
elects to renew its Line Commitment, if it so chooses, and
shall be based upon the Borrower's Funded Bank Debt to
EBITDA Ratio which is defined as the ratio the numerator of
which is the amount of principal plus accrued but unpaid
interest outstanding on the Line and Term obligations of the
Borrower under this Agreement plus any other outstanding
amounts of principal and interest owed by the Borrower to
any other financial institution (the "Borrower's Funded Bank
Debt"), and the denominator of which is the Borrower's
earnings before interest, taxes, depreciation, and
amortization ("EBITDA") as demonstrated by the financial
statement of the Borrower at the time of the determination
of such ratio, the ratio being hereafter identified as
"Funded Bank Debt to EBITDA Ratio".
Where the Borrower"s Funded Bank Debt to EBITDA Ratio is
equal to or less than the ratio of 1.01 to 1, then the
interest rate payable to Lender on the Line Note (hereafter
defined) for the next ensuing annual period shall be equal
to the rate announced by The Chase Manhattan Bank, N.A., for
the guidance of its lending officers as its prime lending
rate for commercial loans as in effect from time to time at
its principal office in New York, N.Y., which may not be the
lowest rate of interest available to its customers ("The
Chase Manhattan Bank Prime Rate of Interest") less 50 basis
points. In the event The Chase Manhattan Bank, N.A. shall
cease to exist or shall no longer publish a prime lending
rate for commercial loans, Lender shall select another
commercial bank, in its sole discretion, which shall be
substituted for The Chase Manhattan Bank herein. The rate
of interest shall not at any time exceed the maximum rate of
interest permitted under the laws of the State of Oklahoma
for loans of the type and character evidenced by the Line
Note.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than or equal to the ratio of 1.01 to 1 but is less than the
ratio of 1.51 to 1, then the interest rate payable to Lender
on the Line Note for the next ensuing annual period shall be
equal to The Chase Manhattan Bank Prime Rate of Interest
minus 25 basis points.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than or equal to the ratio of 1.51 to 1 but is less than or
equal to the ratio of 2.00 to 1, then the interest rate
payable to Lender on the Line Note for the next ensuing annual
period shall be equal to The Chase Manhattan Bank Prime Rate
of Interest.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than or equal to the ratio of 2.00 to 1, then the interest
rate payable to Lender on the Line Note for the next ensuing
annual period shall be equal to The Chase Manhattan Bank
Prime Rate of Interest plus 25 basis points.
The rate of interest on the Term shall be fixed at the rate
of eight percent per annum (8%).
2. The initial annual rate of interest on the Line is _____
(_%).
3. Paragraph 1.1 of the Agreement is amended to read as follows:
1.1 Subject to the terms and conditions of this Agreement,
the Lender has previously agreed to and has loaned the
Borrower the original principal sum of $651,750,00 pursuant
to the terms of a promissory note originally maturing on
August 17, 1999, but which note has been amended to mature
on June 30, 2004, and which note, as of August 1, 1999, has
a current outstanding balance of $579,204.00; a copy of the
promissory note is attached hereto as Exhibit "A-1" (which
together with any extensions, renewals, and changes in form
thereof is hereafter referred to as the "Term Note".)
4. The Exhibit "A-1" attached hereto shall and does replaces
Exhibit "A-1" of the Agreement.
5. Paragraph 2.1 of the Agreement is amended to read as follows:
2.1 Subject to the terms and conditions of this Agreement,
the Lender agrees to lend Borrower such amounts up to the
maximum of $4,500,000.00 as Borrower may from time to time
request as evidenced by a promissory note, in the form
Attached hereto Exhibit "A-2", maturing on June 30, 2000,
(which, together with any extensions, renewals and changes
in form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term Note"
as the "Notes"), provided that the aggregate principal
balance at any time outstanding under the Line Note shall
not exceed the lesser of (i) the Commitment or (ii) the sum
of the following:
6. The Exhibit "A-2" attached hereto shall and does replaces
Exhibit "A-2" of the Agreement.
7. Exhibit "D-1" and "D-2" attached hereto shall replace Exhibit
"D" to the Agreement.
8. All other terms and conditions of this Agreement, including
but not limited to the Security Agreements, the Guaranty
Agreements (as amended) and all other related agreements and
documents shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please so indicated by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/ Xxxxxx X. Short
-------------------------------
Xxxxxx X. Short, Vice President
Agreed and accepted this _____ day of ________, 1999.
"Borrower"
DRK Enterprises, Inc., d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
"Guarantors"
/S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, individually
/S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx as Trustee of
the Xxxxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992
/S/Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, individually
/S/Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx as Trustee of
the Xxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
September 23, 1999
Xxxxxxx X. Xxxxxxx, Vice President
DRK Enterprises, Inc. d/b/a Tulsat
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, Manager
Chymiak Investments, L.L.C.
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Re: Fifth Amendment to the Letter Agreement between DRK
Enterprises, Inc. d/b/a Tulsat as "Borrower" and Bank of Oklahoma,
N. A. as "Lender" dated June 30, 1997; agreement of Chymiak
Investments, L.L.C., to assume the obligations of Borrower for the
Term Loan and Term Note, as set forth in the Agreement; additional
Guaranty Agreements by the current Guarantors; and, Assignment of
Lease (in Support of Mortgage).
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the fifth amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997, February 28, 1998, August 31,
1998, and August 2, 1999, (as amended, the "Agreement") by and
between Bank of Oklahoma, N.A. ("Lender") and DRK Enterprises,
Inc., an Oklahoma corporation, which does business as Tulsat
("Borrower"), and shall also evidence the agreement of the
Guarantors of the obligations set forth in the Agreement to this
amendment and the agreement of Chymiak Investments, L.L.C. to
assume the obligations of the Borrower with respect to the term
loan facility under such Agreement.
WHEREAS, the Borrower has previously entered into the
Agreement setting forth, among other obligations, the obligation
of the Borrower to repay the Lender the amount advanced by the
Lender to the Borrower under a term loan facility (the "Term
Loan") in the original principal amount of $651,750.00, which
Term Loan is evidenced by an original promissory note of the
Borrower to the Lender in the same amount dated March 17, 1997,
maturing on August 17, 1999, (the "Term Note"), and which Term
Note was subsequently renewed pursuant to the amendment to the
Agreement dated August 2, 1999, in which the date of maturity of
the Term Note was extended until June 30, 2004, and the interest
payable on the Term Note was reduced from eight and one-half
percent per annum (8 1/2%) to eight percent per annum (8%); and
which Agreement also evidences the obligation of the Lender to
make advances and the Borrower to repay such advances under a
line of credit facility (the "Line Loan"); and,
WHEREAS, the Borrower has granted to the Lender a mortgage
of real property described as Lot Five (5), Block One (1),
Sentinel Industrial Park, an Addition in Tulsa County, Oklahoma,
according to the Recorded Plat thereof, which mortgage is
recorded in the records of the County Clerk of Tulsa County,
Oklahoma at Book 5902 at Page 215 and which mortgage evidences a
first lien in and to the property described therein in favor of
the Lender, and was made to secure the obligations of the
Borrower to repay the Term Loan and Term Note as set forth in the
Agreement and Term Note (the "Mortgage"); and,
WHEREAS, the Borrower has requested, and the Lender has
agreed: (i) that it be allowed to sell the real property
described in the Mortgage and referenced above to Chymiak
Investments, L.L.C. ("Chymiak"); and (ii) to be relieved of all
obligations with respect to the Agreement and the Term Note
insofar as the Agreement and Term Note sets forth obligations of
the Borrower to repay the Term Loan and Term Note; and, the
Borrower and Chymiak intend to enter into a lease agreement under
which the Borrower shall lease the property subject to the
Mortgage from Chymiak, all of which Lender has agreed to do upon
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained and subject to the conditions set
forth below, the parties hereto agree that the Agreement is
amended such that the Borrower and Guarantors set forth therein
and in the Guaranty Agreement which are exhibits to the Agreement
are hereby relieved of all obligations to repay indebtedness
described therein as the Term Loan and Term Note, and in the
Guaranty Agreements attached thereto as Exhibits, insofar as such
Guaranty Agreements evidence the obligation of the Guarantors to
repay the Term Loan and Term Note indebtedness of the Borrower to
the Lender, but not otherwise.
Conditions Precedent: Prior to this amendment to the
Agreement having effect:
1. Borrower shall have caused Chymiak to enter into an
Assumption Agreement by and between Borrower, Lender, and Chymiak
the form of which is attached hereto as Exhibit "A", under which
Assumption Agreement, Chymiak shall assume all obligations of the
Borrower to the Lender for repayment of the Term Loan and Term
Note;
2. Borrower shall cause Guarantors under the Agreement to enter
into new and additional guaranty agreements the form of which are
attached hereto as Exhibits "B-1", "B-2", and "B-3" under which
Guarantors guaranty the repayment of the indebtedness of Chymiak
to the Lender as more particularly provided for therein;
3. Guarantors under the Agreement shall acknowledge this
amendment to the Agreement and by their execution hereof, shall
ratify their respective guaranties, guaranteeing the continued
obligations of the Borrower to the Lender set forth in the
Agreement, as amended, and to repay the Lender the obligations
owed on the Line Loan and the Line Note;
4. Lender shall have received a certified copy of the recorded
general warranty deed from the Borrower to Chymiak conveying the
property referenced in the Mortgage to Chymiak subject to the
Mortgage;
5. Borrower and Chymiak shall enter into a lease agreement
under which Chymiak shall lease to Borrower the property
described in the Mortgage and which lease agreement shall
obligate Borrower to make lease payments to Chymiak in the amount
of ___ for a term of no less than_______ months, which lease
agreement shall be approved by the Lender; Chymiak shall assign
such lease to the Lender as collateral for the repayment of the
obligations it assumes under the Term Loan, Term Note, and
Mortgage, which assignment shall be in the form attached hereto
as Exhibit "C";
6. Chymiak shall execute this amendment to the Agreement
evidencing its agreement to be bound by the terms of the
Agreement, insofar as such terms concern the Term Loan and Term
Note, as well as its agreement to the terms contained herein.
If the foregoing sets forth your agreement with the Lender,
please so indicated by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/ Xxxxxx X. Short
-------------------------------
Xxxxxx X. Short, Vice President
Agreed and accepted this _____ day of ________, 1999.
"Borrower"
DRK Enterprises, Inc., d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
"Chymiak"
Chymiak Investments, L.L.C.
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Manager
"Guarantors", who by their execution hereof demonstrate their
agreement to the amendment made to the Agreement, and adopt and
ratify their guarantees of the indebtedness of the Borrower as
set forth in their respective Guaranty Agreements
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx, individually Xxxxx X. Xxxxxxx, individually
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx as Trustee of Xxxxx X. Xxxxxxx as Trustee of
the Xxxxxxx X. Xxxxxxx Revocable the Xxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992 Trust dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
EXHIBIT "A"
ASSUMPTION AGREEMENT
THIS AGREEMENT, made this 28th day of September, 1999 by, between
and among Bank of Oklahoma, N.A. a national association bank
(hereinafter called "Mortgagee"), DRK Enterprises, Inc., d/b/a
Tulsat, an Oklahoma corporation (hereinafter called "Mortgagor"),
and Chymiak Investments, L.L.C., an Oklahoma limited liability
company (hereinafter called "Grantee"), with respect to the
following:
A. Mortgagor is indebted to Mortgagee under a certain
Promissory Note dated March 17, 1997, in the stated principal
face amount of $651,750.00, as such note was subsequently renewed
on August 2, 1999 (hereinafter called "Note"), which Note is
secured by a Real Estate mortgage dated March 17, 1999, filed
April 7, 1997, in Book 5902 at Page 215 of the records of Tulsa
County, Oklahoma (hereinafter called the "Mortgage"), and by a
Security Agreement dated June 30, 1997 (hereinafter called
"Security Agreement"), and by Financing Statements filed:
September 10, 1996 with the County Clerk of Oklahoma County,
Oklahoma, and recorded as registration number 047493; July 30,
1996 with the County Clerk of Oklahoma County, Oklahoma, and
recorded as registration number 9604539 (hereinafter collectively
called "Financing Statements").
B. Mortgagor has sold, transferred and conveyed to Grantee
all of the real property described in Exhibit "A" attached hereto
and made a part hereof, and all buildings, improvements and
personal property located thereon.
C. Grantee is willing to assume the payment of the
mortgaged indebtedness due and owing from Mortgagor to Mortgagee
and assume all obligations past, present or future, arising out
of or by reason of the Mortgage, between Mortgagor and Grantee.
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, and upon the express
condition that the liens of the aforesaid Mortgage held by
Mortgage are valid, first and subsisting liens on the real
estate, improvements, fixtures and personal property now existing
or hereafter created or acquired and that the execution of this
Agreement will not impair such liens, it is hereby agreed as
follows:
1. The "WHEREAS" clauses of this Agreement which are, by
reference, incorporated into and made a part of the body of this
Agreement as if set out in full, shall be deemed and held to be
contractual in nature and not mere recitals.
2. Grantee hereby covenants, promises and agrees (a) to
pay the Note at the times, and in the manner in all respects as
therein provided, as same may be modified or amended from time to
time, (b) to perform each and all of the covenants, agreements
and obligations of the Note, the Mortgage and the other Loan
Documents to be performed by the Mortgagor therein, at the time,
and in the manner in all respects as therein provided, as same
may be modified or amended from time to time, and (c) to
indemnify, save and hold Mortgagor harmless from any in
personal liability arising by a foreclosure of the Mortgage or
other Loan Documents now held by Mortgagee.
3. All the real property described in the Mortgage shall
remain in all respects subject to the lien, charge or encumbrance
of the Mortgage and other Loan Documents, and nothing herein
contained and nothing done pursuant hereto, shall affect or be
construed to affect the lien, charge or encumbrance of, or
warranty of title in, or conveyance affected by the Mortgage, the
Security Agreement and the Financing Statements, or the priority
thereof over other liens, charges, encumbrances or conveyances,
nor shall anything herein contained or done in pursuance hereof
affect or be construed to affect any other security or instrument
held by Mortgagee as security for or evidence of the other
indebtedness owed Mortgagee by Mortgagor.
4. Grantee waives any and all rights, claims or setoffs,
if any, against Mortgagee, its successors and assigns, arising
out of or by reason of the Note, the Mortgage and the other Loan
Documents described herein.
5. Notwithstanding anything herein to the contrary, this
Agreement shall not affect or impair any representation in regard
to and/or warranty of title heretofore made by Mortgagor, all of
which shall remain in force and inure to the benefit of Mortgagee
and any insurer of the title to said property or the lien of the
Mortgage thereon.
6. All of the grants, covenants, terms, conditions and
agreements hereof shall be binding upon and inure to the benefit
of all of the heirs, executors, administrators, assigns and
successors in interest of the parties hereto.
7. Neither this Agreement nor any provision hereof may be
changed, altered, waived, amended, discharged or terminated
orally, but only by an instrument reduced to writing, signed by
all parties hereto.
EXECUTED the date and year first written hereinabove.
"Grantee"
CHYMIAK INVESTMENTS, L.L.C.
By:________________________
Its:_______________________
"Mortgagor"
DRK ENTERPRISES, INC. d/b/a TULSAT
By: _______________________
Its:_______________________
"Mortgagee"
BANK OF OKLAHOMA, N.A.
By: _______________________
Its:_______________________
Exhibit "B-1"
GUARANTY AGREEMENT
Date:
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Chymiak Investments, L.L.C. Bank of Oklahoma, N.A.
1605 East Xxxx Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000-0000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains unpaid
and regardless as to which indebtedness such sums were
intended to be applied; (9) release any one or more of the
undersigned, any other guarantor or any other party liable
upon or for any indebtedness or other obligation guaranteed,
and such release will not affect the liability under this
Agreement of any of the undersigned or any other party not
so released; (10) add or release the primary or secondary
liability of principals, guarantors or other parties, and/or
(11) obtain additional collateral security.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Two
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection
of, a security interest in collateral; and (6) any event, or
any act or omission of the Lender (except acts or omissions
in bad faith) which materially increases the scope of the
undersigned's risk as guarantor, including the manner of
administration of the loan and changes in the form or manner
in which any party does business or in their financial
condition any notice of any such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount of percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
$150,000.00
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement. The rights granted by
this paragraph shall be in addition to the rights of the
Lender under any statutory banker's lien or common law right
of offset.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Three
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by
shall continue until all indebtedness, including loan
commitments, existing at the time of the receipt of such
notice, and renewals or extensions of indebtedness to which
the undersigned consents, is fully paid. After
any such revocation, Lender may exercise any rights granted
in this Agreement without releasing the undersigned from
liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a close watch on that financial
condition as long as this Guaranty Agreement is outstanding
and that they are not relying on the Lender to provide
information on the Debtor's financial condition, now or in
the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except
by an agreement in writing signed by both the undersigned
and the Lender. No condition as to the effectiveness or
enforcement of this Guaranty Agreement exists except as
stated in this Guaranty Agreement. Regardless of any other
provision of this Guaranty Agreement to the
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Four
contrary, and unless otherwise specifically released or
modified by this Guaranty Agreement, all other obligations
of the undersigned to Lender evidenced by a note, loan
agreement, guaranty or other written agreement remain in
force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
The Xxxxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992
/S/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, Trustee
/S/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx, individually
Exhibit "B-2"
GUARANTY AGREEMENT
Date:
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Chymiak Investments, L.L.C. Bank of Oklahoma, N.A.
1605 East Xxxx Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000-0000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains unpaid
and regardless as to which indebtedness such sums were
intended to be applied; (9) release any one or more of the
undersigned, any other guarantor or any other party liable
upon or for any indebtedness or other obligation guaranteed,
and such release will not affect the liability under this
Agreement of any of the undersigned or any other party not
so released; (10) add or release the primary or secondary
liability of principals, guarantors or other parties, and/or
(11) obtain additional collateral security.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Two
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection
of, a security interest in collateral; and (6) any event, or
any act or omission of the Lender (except acts or omissions
in bad faith) which materially increases the scope of the
undersigned's risk as guarantor, including the manner of
administration of the loan and changes in the form or manner
in which any party does business or in their financial
condition any notice of any such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount of percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
$150,000.00
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement. The rights granted by
this paragraph shall be in addition to the rights of the
Lender under any statutory banker's lien or common law right
of offset.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Three
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by shall continue until all
indebtedness, including loan commitments, existing at the time
of the receipt of such notice, and renewals or extensions of
indebtedness to which the undersigned consents, is fully paid.
After any such revocation, Lender may exercise any rights
granted in this Agreement without releasing the undersigned
from liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a close watch on that financial
condition as long as this Guaranty Agreement is outstanding
and that they are not relying on the Lender to provide
information on the Debtor's financial condition, now or in
the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except
by an agreement in writing signed by both the undersigned
and the Lender. No condition as to the effectiveness or
enforcement of this Guaranty Agreement exists except as
stated in this Guaranty Agreement. Regardless of any other
provision of this Guaranty Agreement to the
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Four
contrary, and unless otherwise specifically released or
modified by this Guaranty Agreement, all other obligations
of the undersigned to Lender evidenced by a note, loan
agreement, guaranty or other written agreement remain in
force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
The Xxxxx Xxxxxxx Revocable Trust
dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
-------------------------
Xxxxx X. Xxxxxxx, Trustee
/S/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx, individually
Exhibit "B-3"
GUARANTY AGREEMENT
Date:
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Chymiak Investments, L.L.C. Bank of Oklahoma, N.A.
1605 East Xxxx Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000-0000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains unpaid
and regardless as to which indebtedness such sums were
intended to be applied; (9) release any one or more of the
undersigned, any other guarantor or any other party liable
upon or for any indebtedness or other obligation guaranteed,
and such release will not affect the liability under this
Agreement of any of the undersigned or any other party not
so released; (10) add or release the primary or secondary
liability of principals, guarantors or other parties, and/or
(11) obtain additional collateral security.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Two
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection of, a security
interest in collateral; and (6) any event, or any act or
omission of the Lender (except acts or omissions in bad
faith) which materially increases the scope of the
undersigned's risk as guarantor, including the manner of
administration of the loan and changes in the form or manner
in which any party does business or in their financial
condition any notice of any such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount of percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
$300,000.00
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement. The rights granted by
this paragraph shall be in addition to the rights of the
Lender under any statutory banker's lien or common law right
of offset.
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Three
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by shall continue until all
indebtedness, including loan commitments, existing at the
time of the receipt of such notice, and renewals or
extensions of indebtedness to which the undersigned consents,
is fully paid. After any such revocation, Lender may
exercise any rights granted in this Agreement without releasing
the undersigned from liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a close watch on that financial
condition as long as this Guaranty Agreement is outstanding
and that they are not relying on the Lender to provide
information on the Debtor's financial condition, now or in
the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except
by an agreement in writing signed by both the undersigned
and the Lender. No condition as to the effectiveness or
enforcement of this Guaranty Agreement exists except as
stated in this Guaranty Agreement. Regardless of any other
provision of this Guaranty Agreement to the
Guaranty Agreement
Chymiak Investments, L.L.C.
Page Four
contrary, and unless otherwise specifically released or
modified by this Guaranty Agreement, all other obligations
of the undersigned to Lender evidenced by a note, loan
agreement, guaranty or other written agreement remain in
force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
/S/ Xxxxx X. Xxxxxxx
---------------------
Xxxxx X. Xxxxxxx
Exhibit "C"
ASSIGNMENT OF LEASE (IN SUPPORT OF MORTGAGE)
This Assignment is made this______ day of September, 1999,
by and between Chymiak Investments, L.L.C., an Oklahoma limited
liability company ("Assignor") and Bank of Oklahoma, N.A.
("Assignee").
RECITALS
Assignor has assumed the obligations of DRK Enterprises,
Inc., ("DRK") to Assignee under that certain promissory note
dated March 17, 1997, in the stated principal face amount of
$651,750.00, as such note was subsequently renewed on August 2,
1999 (hereinafter called "Note"), which Note is secured by a Real
Estate mortgage dated March 17, 1999, filed April 7, 1997, in
Book 5902 at Page 215 of the records of Tulsa County, Oklahoma,
covering real estate situated in the County of Tulsa, State of
Oklahoma, described in Exhibit A attached hereto (hereinafter
called the "Mortgage"), and the buildings, improvements and
fixtures now or hereafter located thereon, the real estate and
buildings and improvements thereon covered by the Mortgage are
hereinafter referred to as the "Mortgaged Premises." and by a
Security Agreement dated June 30, 1997 (hereinafter called
"Security Agreement"), and by Financing Statements filed:
September 10, 1996 with the County Clerk of Oklahoma County,
Oklahoma, and recorded as registration number 047493; July 30,
1996 with the County Clerk of Oklahoma County, Oklahoma, and
recorded as registration number 9604539 (hereinafter collectively
called "Financing Statements")
One of the conditions precedent to allowing the sale of the
Real Estate by DRK to Assignor, and assumption of the Note,
Mortgage and loan evidenced by the Note is that the Assignor
execute this Assignment to the Assignee.
Accordingly, in consideration of the premises and of the
mutual agreements herein contained, the Assignor does hereby
presently grant, transfer and assign to Assignee all of the
right, title and interest of Assignor in and to (i) that certain
lease between Assignor, as lessor, and DRK, as lessee, dated as
of , 19 , (the "Lease"), (ii) all Assignor's rights
of possession, interest and reversion as lessor in and to the
premises and property described in and covered by the Lease, and
(iii) all rents, issues, profits and other payments of every kind
due or payable and to become due or payable to the assignor under
the Lease (all of which are hereinafter collectively referred to
as "Rentals"), whether such Rentals accrue before or after
foreclosure of the Mortgage and the security interest created by
the Security Agreement and Financing Statements or during any
period of redemption thereof, for the purpose of securing payment
of all indebtedness evidenced by the Note and all other sums
secured by the Mortgage.
A. Assignor hereby represents and warrants to Assignee as
follows:
1. The Assignor has good and lawful right and full power
and authority under applicable law to execute this
Assignment and to perform its obligations hereunder,
and Assignor is not bound by any law or agreement which
might prevent Assignee from exercising any of its
powers or rights under this Assignment or which limits
the Assignee in such exercise.
2. The Assignor has not executed any prior assignment of
its right, title and interest in the Lease or in the
Rentals and has not otherwise encumbered the Lease or
the Rentals.
B. To protect the security of this Assignment, Assignor hereby
agrees as follows:
1. Assignee shall have the immediate and continuing right
to collect and receive all Rentals directly from the
Lessee, as the same become due and payable under the
Lease, regardless of whether or not any event of
default exists under the Note or the Mortgage, and to
apply the Rentals, less reasonable costs and expenses
incurred by Assignee in collecting the same, to the
payment of the installments then due and payable under
the Note, but, provided no event of default under the
Note or the Mortgage has happened and is continuing,
remitting to Assignor any surplus.
2. The Assignor hereby irrevocably authorizes, directs and
instructs the Lessee to pay the rentals at the time and
in the amounts specified in the Lease to the Assignee.
3. Assignor irrevocably constitutes and appoints the
Assignee its attorney-in-fact in its name or in
Assignee's own name to use such measures, legal or
equitable, as in its discretion may be deemed necessary
or appropriate to enforce payment of the Rentals.
4. Assignor will not: (i) modify or in any way alter the
terms of the Lease, (ii) terminate the term of the
Lease or accept a surrender thereof unless required to
do so by the terms of the Lease, (iii) waive, condone
or in any manner release or discharge the Lessee of or
from the obligations, covenants, conditions and
agreements by the Lessee to the performed under the
Lease, including the obligations to pay the rent called
for thereunder in the manner and at the time specified
therein, or (iv) collect or seek to collect the Rentals
from the Lessee or direct the Lessee to pay the Rentals
and surrender unto Assignee, Assignor's rights, power
and authority to do any of the foregoing and any
attempt on the part of the Assignor to exercise any
such right without the written authority and consent of
the Assignee thereto being first had and obtained shall
constitute a breach of the terms hereof entitling the
Assignee to declare all sums secured hereby immediately
due and payable.
5. The Assignee shall not be obligated to collect or
attempt any Rentals which are not in fact paid to it or
its agent. Further, the Assignee shall not be
obligated to perform or discharge, nor does it hereby
undertake to perform or discharge, any obligation, duty
or liability under the Lease, or under or by reason of
this Assignment, and the Assignor shall and does hereby
agree to indemnify the Assignee against and hold it
harmless from any and all liability, loss or damage
which it may or might incur under the Lease or under or
by reason of the Assignment and of and from any and all
claims and demands whatsoever which may be asserted
against it by reason of any alleged obligation or
undertaking on its part to perform or discharge any of
the terms, covenants or agreements contained in the
Lease, or by reason of the exercise of any of its
rights or remedies hereunder; should Assignee incur any
such liability, loss or damage under the lease or under
or by reason of this Assignment, or in defense of any
such claims or demands, the amount thereof, including
costs, expenses and reasonable attorneys' fees,
together with interest thereon at the rate provided in
the Note or such extension or renewal of the note as
may then be outstanding, shall be secured hereby and by
the Mortgage, and Assignor shall reimburse Assignee
therefor immediately upon demand, and upon failure of
Assignor so to do the Assignee shall have the option to
declare all sums secured hereby immediately due and
payable.
6. Assignor will promptly execute, upon written request of
the Assignee, any and all instruments requested by the
Assignee to carry this Assignment into effect or to
accomplish any other purposes deemed by the Assignee to
be reasonable necessary or appropriate in connection
with this Assignment.
C. It is further mutually agreed as follows:
1. Upon payment in full of all sums secured hereby, as
evidenced by the recording of an instrument of
satisfaction or full release of the Mortgage, unless
there shall have been recorded another mortgage in
favor of Assignee for the benefit of the Assignee
covering the whole or any part of the Mortgaged
Premises, this Assignment shall become and be void and
of no effect.
2. Assignee shall have all rights and remedies available
under the law in effect at the time such rights and
remedies are sought to be enforced, whether or not they
are available under current law.
3. This Agreement shall be construed and enforced
according to the laws of the State of Oklahoma.
4. This Assignment embodies the entire agreement and
understanding between the parties relating to the
subject matter hereof and may not be amended or waived
except by an instrument in writing executed by the
party against whom enforcement of such amendment or
waiver is sought. If any clauses or provisions herein
contained would invalidate this Assignment in whole or
in part, such clauses or provisions only shall be
invalid, and the remainder of this Assignment will
remain in full force and effect.
5. This Assignment shall be binding upon and shall inure
to the benefit of the parties hereto and their
respective successors and assigns.
6. Any delay by Assignee in exercising any right, remedy
or power described or referred to in this Assignment
shall neither be a waiver of nor preclude the exercise
of such right or remedy. All such rights, remedies and
powers shall be distinct and cumulative and may be
exercised singly or serially (in any order) or
concurrently, and as often as the occasion therefor
arises.
7. This Assignment is given as security in addition to the
security of the Mortgage, and not as part of the
security of the Mortgage. All rights and remedies
herein conferred may be exercised whether or not
foreclosure proceedings are pending under the Mortgage.
Assignee shall not be required to resort first to the
security of this Assignment or of the Mortgage before
resorting to the security of the other, and Assignee
may exercise the security hereof and of the Mortgage
concurrently or independently and in any order of
preference.
8. All notices or demands which are required or permitted
to be given or served hereunder shall be in writing and
sent by certified or registered mail addressed as
follows:
To Assignee:
Xxxxxx X. Short, Vice President
Bank of Oklahoma, N.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
To Assignor:
Xxxxxxx X. Xxxxxxx, Manager
Chymiak Investments, L.L.C.
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Either party may designate a change of address by
written notice to the other, given at least 10 days
before such change of address is to become effective.
9. This Assignment may be executed in any number of
counterparts, each of which shall be an original but
all of which shall constitute one instrument.
IN WITNESS WHEREOF, the Assignor has caused this Assignment
to be duly executed as of the day and year first above written.
"Assignor"
Chymiak Investments, L.L.C.
/S/ Xxxxxxx X. Xxxxxxx
---------------------------------
By, its: Xxxxxxx X. Xxxxxxx,
Manager
"Assignee"
BANK OF OKLAHOMA, N.A.
/S/ Xxxxxx X. Short
-------------------------------
Xxxxxx X. Short, Vice President
STATE OF OKLAHOMA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of September, 1999, by Xxxxxxx X. Xxxxxxx, in the capacity of
Manager on behalf of Chymiak Investments, L.L.C., an Oklahoma
limited liability company.
Notary Public
My commission expires:
[SEAL]
STATE OF OKLAHOMA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 1999, by Xxxxxx X. Short, Vice-President on
behalf of Bank of Oklahoma, N.A., a national banking association.
Notary Public
My commission expires:
[SEAL]
Exhibit "A"
to the
Assignment of Lease (in Support of Mortgage)
Lot Five (5), Block One (1), Sentinel Industrial Park, an
Addition in Tulsa County, Oklahoma, according to the Recorded
Plat thereof, as such property is further referred to in that
certain mortgage recorded in the records of the County Clerk of
Tulsa County, Oklahoma at Book 5902 at Page 215.
January 11, 2000
Xxxxxxx X. Xxxxxxx, Vice President
Tulsat Corporation
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Re: Sixth Amendment to the Letter Agreement between DRK
Enterprises, Inc. d/b/a Tulsat, which has changed its name to
Tulsat Corporation, "Borrower" and Bank of Oklahoma, N. A. as
"Lender" dated June 30, 1997; additional Guaranty Agreement by
ADDvantage;
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the sixth amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997, February 28, 1998, August 31,
1998, August 2, 1999, and September 23, 1999, (as amended, the
"Agreement") by and between Bank of Oklahoma, N.A.
("Lender") and Tulsat Corporation, formerly DRK Enterprises,
Inc., an Oklahoma corporation doing business as Tulsat
("Borrower"), and shall also serve to amend the Agreement to
add ADDvantage Technologies Group, Inc., ("ADDvantage") as
Guarantor of the obligations set forth in the Agreement.
WHEREAS, the Borrower has previously entered into the
Agreement setting forth, among other obligations, the obligation
of the Borrower to repay the Lender the amount advanced by the
Lender to the Borrower under a line of credit loan facility (the
"Line Loan") in the amount of $4,500,000.00, which Line Loan is
evidenced by an original promissory note of the Borrower to the
Lender in the same amount dated August 8, 1999, maturing on June
30, 2000, (the "Line Note"); and,
WHEREAS, the Borrower has requested, and the Lender has
agreed to increase the Commitment for the set forth in the
Agreement from $4,500,000.00 to $6,000,000.00; to increase the
amount which may qualify to be borrowed on the Line by amending
the Qualified Inventory Borrowing Base Limitation from an amount
equal to 25% of the Qualified Inventory to an amount equal to
30% of the Qualified Inventory; and, to add ADDvantage as an
additional guarantor of the obligations of Borrower set forth in
the Agreement, which the Lender has agreed to do.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The preamble to the Agreement is hereby amended, in part, to
read as follows:
(B) a revolving line of credit ("Line") in the principal
sum of $6,000,000.00 (the "Commitment") which the
Borrower may borrow, repay and re-borrow from time to
time, subject to the Borrowing Base limitation as set
forth below, until the earlier of (i) June 30, 2000,
or (ii) the date upon which Lender accelerates
Borrower's obligation after an Event of Default, as
defined below (the "Commitment Termination Date").
The remaining provisions of the preamble as set forth in the
Fifth Amendment to the Agreement dated September 23, 1999, to
continue unamended.
2. Paragraph 2.1 of the Agreement is amended, in part, to read as
follows:
2.1 Subject to the terms and conditions of this Agreement,
the Lender agrees to lend Borrower such amounts up to the
maximum of $6,000,000.00 as Borrower may from time to time
request as evidenced by a promissory note, in the form
Attached hereto Exhibit "A-2", maturing on June 30, 2000,
(which, together with any extensions, renewals and changes
in form thereof, is hereinafter referred to as the "Line
Note", or individually and collectively with the "Term Note"
as the "Notes"), provided that the aggregate principal
balance at any time outstanding under the Line Note shall
not exceed the lesser of (i) the Commitment or (ii) the
sum of the following:
The remaining provisions of such paragraph, as previously
amended, to continue as previously set forth.
3. The Exhibit "1" attached hereto shall and does replaces
Exhibit "A-2" of the Agreement.
4. Paragraph 2.1.2 of the Agreement is amended, to read as
follows:
2.1.2 An Amount equal to 30% of the Qualified Inventory
(the "Qualified Inventory Borrowing Base Limitation");
The remaining provisions of paragraph 2.1, as previously
amended, to continue as previously set forth.
5. ADDvantage shall guaranty the obligations of the Borrower to
the Lender and all references to "Guarantors" made within the
Agreement, and in particular paragraph 6.6 thereof, shall be
deemed to include reverence to ADDvantage; Exhibit "2" to the
amendment, the guaranty agreement of ADDvantage, shall be added
to the Agreement as Exhibit "D-3" thereof and shall be executed
by ADDvantage and delivered to the Lender. Guarantors, Xxxxx X.
Xxxxxxx, both individually and as Trustee of the Xxxxx X.
Xxxxxxx Revocable Trust dated March 4, 1992; Xxxxxxx X. Xxxxxxx, both
individually and as Trustee of the Xxxxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992; and Xxxxx X. Xxxxxxx shall execute and
deliver to Lender amended Guaranty Agreements that reflect that
the Borrower's name has changed from DRK Enterprises, Inc., d/b/a
Tulsat to Tulsat Corporation in the form of Exhibits "3" and
"4" to this amendment, which shall replace Exhibits "D-1" and "D-2"
to the Agreement. Guarantors, by executing this amendment and
executing and delivering to the Lender their respect Guaranty
Agreements, acknowledge that they will receive a direct benefit
from the extension of credit to the Borrower and that the
extension of such credit, and the increase in the Line loan
evidenced by this amendment represents new consideration to the
Guarantors in support of the guaranty of ADDvantage and the
amended guaranties of the other Guarantors.
6. Paragraph 7.19 of the Agreement shall be amended to read as
follows:
7.19 Until the indebtedness evidenced herein is equal
to or less than the aggregate of $5,000,000, Borrower
will furnish Lender with subordinations of all owner's
debt and interest payable to owners will be accrued
and not paid to such owners during the period of
time the indebtedness exceeds the amount of
$5,000,000.
7. All other terms and conditions of this Agreement, including
but not limited to the Security Agreements, the Guaranty
Agreements (as amended) and all other related agreements and
documents shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please indicate by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/ Xxxxxx X. Short
-------------------------------
Xxxxxx X. Short, Vice President
Agreed and accepted this _____ day of January, 2000.
"Borrower"
Tulsat Corporation, formerly DRK Enterprises, Inc., d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
Additional "Guarantor"
ADDvantage Technologies Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx (President)
"Guarantors", by their execution hereof demonstrate their
acknowledgement and agreement with respect to this sixth
amendment to the Agreement, adopt and ratify their guaranties,
and acknowledge the receipt of additional consideration in
support of the amendment to existing guaranties and new guaranty
of the indebtedness of the Borrower.
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx, individually Xxxxx X. Xxxxxxx, individually
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx as Trustee of Xxxxx X. Xxxxxxx as Trustee of
the Xxxxxxx X. Xxxxxxx Revocable the Xxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992 Trust dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
ADDvantage Technologies Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------,
Xxxxxxx X. Xxxxxxx (President)
AMENDED PROMISSORY NOTE
Variable/Commercial
DEBTOR(S) NAME & ADDRESS NOTE NUMBER DATE OF MATURITY PRINCIPAL
0001 NOTE DATE AMOUNT
1/11/2000 06/30/2000 $6,000,000.00
Tulsat Corporation
p/k/a DRK Enterprises,
Inc., dba Tulsat
0000 Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
CUSTOMER NUMBER [ ] NEW LOAN OFFICER
1845500 [X] RENEWAL OF LOAN SPM
NUMBER 0001
[ ] FIXED INTEREST RATE OF:
[X] VARIABLE INTEREST RATE: CHASE MANHATTAN PRIME
LESS 1/2% PER ANNUM, INTEREST PAYABLE: MONTHLY
SSN/TIN
COLLATERAL CATEGORIES NUMBER
Accounts, Inventory, Equipment 00-0000000
PAYMENT TERMS: PURPOSE
Accrued interest due and payable Working
MONTHLY, beginning 1/30/2000 Capital
and MONTHLY thereafter, with
outstanding principal balance
plus unpaid accrued interest due
and payable on 06/30/2000
FOR VALUE RECEIVED, the undersigned Debtor(s), jointly and
severally if more than one, agree to the terms of this Note and
promise to pay to the order of Lender named below at its place of
business as indicated herein or at such other place as may be
designated in writing by holder, the Principal amount of this
Note together with interest until maturity at the per annum
interest rate or rates stated above. If the writing above
indicates that the per annum interest rate is to vary with
changes made from time to time in the base or prime rate of
Lender or other financial institution, each change in the rate
will become effective without notice to Debtor on the same day
such base or prime rate is change, unless a different effective
date is specified above. The base or prime rate set forth above
is determined by the named Financial Institution in its sole
discretion primarily on a basis of its cost of funds, is not
necessarily the lowest or highest rate the named Financial
Institution is charging its customer, and is not necessarily a
published rate. In the event the named Financial Institution
fixing the base or prime rate ceases to exist or ceases to
announce such a rate, lender may specify a new Financial
Institution to fix such rate, in its sole discretion. Interest
on this Note is calculated on the actual number of days elapsed
on a basis of a 360 day year unless otherwise indicated herein.
For purposes of computing such interest and determining the date
principal and interest payments are received, all payments made
under this Note will not be deemed to have been made until such
payments are received in collected funds.
PAYMENTS NOT MADE WHEN DUE. Any principal and/or interest amount
not paid when due shall bear interest at a rate six percent (6%)
per annum greater than the per annum interest rate prevailing on
this Note at the time the unpaid amount become due, but in no
event at a rate less than fifteen percent (15%) per annum. In
addition or in the alternative to the interest rate provided for
in this paragraph lender may assess a charge of ten dollars
($10.00) times the number of days late to cover cost of past due
notices and other expenses. In no event shall the interest rate
and related charges either before or after maturity be greater
than permitted by law.
ALL PARTIES PRINCIPALS. All parties liable for payment hereunder
shall each be regarded as a principal and each party agrees that
any party hereto with approval of holder and without notice to
other parties may from time to time renew this Note or consent to
one or more extensions or deferrals of Maturity Date for any term
or terms, and all parties shall be liable in same manner as on
original note. All parties liable for payment hereunder waive
presentment, notice of dishonor and protest and consent to
partial payments, substitutions or release of collateral and to
addition or release of any party or guarantor.
ADVANCES AND PAYMENTS. It is agreed that the sum of all advances
under this Note may exceed the Principal Amount as shown above,
but the unpaid balance shall never exceed said Principal Amount.
Advances and payments on Note shall be recorded on records of
Lender and such records shall be prima facie evidence of such
advances, payments and unpaid principal balance. Subsequent
advances and the procedures described herein shall not be
construed or interpreted as granting a continuing
line of credit for Principal Amount. Lender reserves the right
to apply any payment by Debtor, or for account of Debtor, toward
this Note or any other obligation of Debtor to Lender.
COLLATERAL. This Note and all other obligations of Debtor to
Lender, and all renewals or extensions thereof, are secured by
all collateral securing this Note and by all other security
interests heretofore or hereafter granted to Lender as more
specifically described in Security Agreements and other securing
documentation.
ACCELERATION. At option of holder, the unpaid balance of this
Note and all other obligations of Debtor to holder, whether
direct or indirect, absolute or contingent, now existing or
hereafter arising, shall become immediately due and payable
without
notice or demand upon the occurrence or existence of any of the
following events or conditions: (a) Any payment required by this
Note or by any other note or obligation of Debtor to holder or to
others is not made when due or the occurrence or existence of any
event which results in acceleration of the maturity of any
obligation of Debtor to holder or to others under any promissory
note, agreement or undertaking; (b) Debtor defaults in
performance of any covenant, obligation, warranty or provision
contained in any loan agreement or in the instrument or document
securing or relating to this Note or any other note or obligation
of Debtor to holder or to others; (c) any warranty,
representation, financial information or statement made or
furnished to Lender by or in behalf of Debtor proves to have been
false in any material respect when made or furnished; (d) The
making of any levy against or seizure, garnishment or attachment
of any collateral; (e) Any time Lender in good faith determines
prospect of payment of this Note is impaired; (f) when in the
judgment of Lender, the collateral, if any, becomes
unsatisfactory or insufficient either in character or value and
upon request, Debtor fails to provide additional collateral as
required by Lender; (g) Loss, theft, substantial damage or
destruction of collateral, if any; (h) Death, dissolution, change
in senior management, or termination of existence of any Debtor,
or (i) Appointment of a receiver over any part of the property of
any Debtor, the assignment of property by any Debtor for the
benefit of creditors, or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against any party
liable, directly or indirectly, hereunder.
WAIVERS. No waiver by holder of any payment or other right under
this Note or any related agreement or documentation shall operate
as a waiver of any other payment or right.
GOVERNING LAW. This Note and the obligations evidenced hereby
are made, entered into, to be construed and governed by the laws
of the state indicated in the address of Lender shown below.
Debtor(s) consent to the jurisdiction and venue of any Court
sitting in the State indicated in the address of Lender.
COLLECTION COSTS. All parties liable for payment hereunder agree
to pay reasonable costs of collection, including an attorney's
fee of a minimum of fifteen percent (15%) of all sums due upon
default.
RIGHT OF OFFSET. Any indebtedness due from holder hereof to
Debtor or any party hereto including, but without limitation, any
deposits or credit balances due from holder, is pledged to secure
payment of this Note and any other obligation to holder of Debtor
or any party hereto, and may at any time while the whole or any
part of such obligation remains unpaid, either before or after
Maturity hereof, be appropriated, held or applied toward the
payment of this Note or any other obligation to holder of Debtor
or any part hereto.
PURPOSE. Debtor affirms that the proceeds of this Note are to be
used for a business or agricultural purpose and not for personal,
family or household purposes.
ENTIRE AGREEMENT. All parties acknowledge that this Note and
related documents contain the complete and entire agreement
between Debtor and Lender and no variation, modification, changes
or amendments to this Note or related documents shall be binding
unless in writing and signed by all parties. No legal
relationship is created by the execution of this Note and related
documents except that of debtor and creditor or as stated in
writing.
LENDER NAME AND ADDRESS DEBTOR(S) SIGNATURE(S)
Tulsat Corporation p/k/a DRK
ENTERPRISES, INC.
dba Tulsat
Bank of Oklahoma, X.X.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
By: /S/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx( President )
EXHIBIT 2 TO THE SIXTH AMENDMENT
EXHIBIT D-3 TO THE AGREEMENT
GUARANTY AGREEMENT
Date: January 11, 2000
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Tulsat Corporation Bank of Oklahoma, N.A.
1605 East Xxxx Xxxx Xxxxxx Xxx 0000
Xxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxxx 00000-0000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains unpaid
and regardless as to which indebtedness such sums were
intended to be applied; (9) release any one or more of the
undersigned, any other guarantor or any other party liable
upon or for any indebtedness or other obligation guaranteed,
and such release will not affect the liability under this
Agreement of any of the undersigned or any other party not
so released; (10) add or release the primary or secondary
liability of principals, guarantors or other parties, and/or
(11) obtain additional collateral security.
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection of, a
security interest in collateral; and (6) any event, or any
act or omission of the Lender (except acts or omissions in
bad faith) which materially increases the scope of the
undersigned's risk as guarantor, including the manner of
administration of the loan and changes in the form or manner
in which any party does business or in their financial
condition any notice of any such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount or percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement. The rights granted by
this paragraph shall be in addition to the rights of the
Lender under any statutory banker's lien or common law right
of offset.
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by shall continue until all
indebtedness, including loan commitments, existing at the
time of the receipt of such notice, and renewals or
extensions of indebtedness to which the undersigned
consents, is fully paid. After any such revocation, Lender
may exercise any rights granted in this Agreement without
releasing the undersigned from liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a close watch on that financial
condition as long as this Guaranty Agreement is outstanding
and that they are not relying on the Lender to provide
information on the Debtor's financial condition, now or in
the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except
by an agreement in writing signed by both the undersigned
and the Lender. No condition as to the effectiveness or
enforcement of this Guaranty Agreement exists except as
stated in this Guaranty Agreement. Regardless of any other
provision of this Guaranty Agreement to the contrary, and
unless otherwise specifically released or modified by this
Guaranty Agreement, all other obligations of the undersigned
to Lender evidenced by a note, loan agreement, guaranty or
other written agreement remain in force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
ADDvantage Technologies Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, ( President)
AMENDED GUARANTY AGREEMENT
Date: January 11, 2000
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Tulsat Corporation, p/k/a Bank of Oklahoma, N.A.
DRK Enterprises, Inc. Xxxx Xxxxxx Xxx 0000
x/x/x/ Xxxxxx Xxxxx, Xxxxxxxx 00000-0000
0000 Xxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains unpaid
and regardless as to which indebtedness such sums were
intended to be applied; (9) release any one
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Two
or more of the undersigned, any other guarantor or any other
party liable upon or for any indebtedness or other
obligation guaranteed, and such release will not affect the
liability under this Agreement of any of the
undersigned or any other party not so released; (10) add or
release the primary or secondary liability of principals,
guarantors or other parties, and/or (11) obtain additional
collateral security.
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection of, a security
interest in collateral; and (6) any event, or any act or
omission of the Lender (except acts or omissions in bad faith)
which materially increases the scope of the undersigned's risk
as guarantor, including the manner of administration of the
loan and changes in the form or manner in which any party does
business or in their financial condition any notice of any
such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount of percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
$500,000.00
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Three
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement. The rights granted by
this paragraph shall be in addition to the rights of the
Lender under any statutory banker's lien or common law right
of offset.
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by shall continue until all
indebtedness, including loan commitments, existing at
the time of the receipt of such notice, and renewals or
extensions of indebtedness to which the undersigned consents,
is fully paid. After any such revocation, Lender may
exercise any rights granted in this Agreement without releasing
the undersigned from liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Four
close watch on that financial condition as long as this
Guaranty Agreement is outstanding and that they are not
relying on the Lender to provide information on the Debtor's
financial condition, now or in the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except
by an agreement in writing signed by both the undersigned
and the Lender. No condition as to the effectiveness or
enforcement of this Guaranty Agreement exists except as
stated in this Guaranty Agreement. Regardless of any other
provision of this Guaranty Agreement to the contrary, and
unless otherwise specifically released or modified by this
Guaranty Agreement, all other obligations of the undersigned
to Lender evidenced by a note, loan agreement, guaranty or
other written agreement remain in force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
The Xxx Xxxxxxx Revocable Trust
dated Xxxxx 0, 0000
Xxxxxxx X. Xxxxxxx, Trustee
---------------------------------
Xxxxxxx X. Xxxxxxx, individually
The Xxxxx Xxxxxxx Revocable Trust
dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
-------------------------
Xxxxx X. Xxxxxxx, Trustee
/S/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, individually
AMENDED GUARANTY AGREEMENT
Date: January 11, 2000
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
Tulsat Corporation p/k/a Bank of Oklahoma, N.A.
DRK Enterprises, Inc. Xxxx Xxxxxx Xxx 0000
x/x/x/ Xxxxxx Xxxxx, Xxxxxxxx 00000-0000
0000 Xxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
A. To induce the Lender to extend credit to the Debtor and for
other good and valuable consideration, the receipt of which
is acknowledged, and for the purpose of enabling the Debtor
to obtain or renew loans, credit and other financial
accommodation from the Lender named above, each of the
undersigned as a primary obligor, jointly and severally and
unconditionally: (1) guarantees to the Lender that Debtor
will fully and promptly pay or otherwise discharge all
indebtedness and other obligations upon which Debtor now is
or may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other capacity,
and whether joint or several liability or liability created
by direct dealing with Lender or through transfer from
others, and regardless of the nature and form of
indebtedness and whether due or not due; (2) agrees, without
the Lender first having to proceed against Debtor or any
other party liable or to liquidate any security, to pay on
demand all sums due and to become due to Lender from Debtor,
and all losses, costs, attorney fees or expenses which may
be suffered or incurred by Lender by reason of Debtor's
default or the default of the undersigned; (3) except as
setoff is waived, agrees to be bound by and on demand to pay
any deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by Lender,
with or without notice to the undersigned; (4) agrees that
liability under this Agreement will not be affected or
impaired by any failure, neglect or omission, including a
failure or delay to perfect or maintain perfection of a
security interest, either in relation to the collection of
the indebtedness or the protection of the security given,
and regardless of whether the Lender fails or omits to seek
or is precluded from seeking a judgment against Debtor; and
(5) further agrees that the liability of the undersigned
shall not be affected by any lack of validity or
enforceability due to defense, claim, discharge or otherwise
of any indebtedness guaranteed by this Agreement or the
security of the indebtedness (collectively, "indebtedness").
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the undersigned,
and upon any terms and conditions the Lender may elect: (1)
change the manner place or terms of payment or extend the
time of payment of any indebtedness of Debtor to Lender; (2)
renew, increase or alter any indebtedness of Debtor to
Lender; (3) raise or lower the interest rate or rates
charged Debtor; (4) sell, exchange, release, surrender,
realize upon or otherwise deal or not deal with in any
manner and in any order any property at any time pledged to
secure or securing the indebtedness of Debtor to Lender or
any liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness or
liabilities; (5) exercise or refrain from exercising any
rights against Debtor or others, or otherwise act or refrain
from acting; (6) settle or compromise any indebtedness
guaranteed or incurred; (7) subordinate the payment of all
or part of any indebtedness of Debtor to Lender to the
payment of any liabilities which may be due Lender or
others; (8) apply any sums paid by or for account of Debtor
to any indebtedness of Debtor to Lender regardless of what
indebtedness or liability of Debtor to Lender remains
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Two
unpaid and regardless as to which indebtedness such sums
were intended to be applied; (9) release any one or more of
the undersigned, any other guarantor or any other party
liable upon or for any indebtedness or other obligation
guaranteed, and such release will not affect the liability
under this Agreement of any of the undersigned or any other
party not so released; (10) add or release the primary or
secondary liability of principals, guarantors or other parties,
and/or (11) obtain additional collateral security.
C. The undersigned waives: (1) any and all acceptance of this
Guaranty Agreement; (2) notice of the creation of any
indebtedness; (3) any presentment, demand for payment,
notice of default or non-payment, notice of acceleration,
notice of disposition of security, notice of dishonor or
protest to or upon any party and all other notices
whatsoever whether required or permits by this Guaranty
Agreement, any other agreement, course of dealing, usage of
trade, course of performance and, to the extent allowed, the
law; (4) any exercise of any remedy which the Lender now has
or later acquires against the Debtor or any other party; (5)
any impairment of collateral, including, but not limited to,
the failure to perfect, or maintain perfection of, a security
interest in collateral; and (6) any event, or any act or
omission of the Lender (except acts or omissions in bad faith)
which materially increases the scope of the undersigned's risk
as guarantor, including the manner of administration of the
loan and changes in the form or manner in which any party
does business or in their financial condition any notice of
any such change.
D. This Guaranty Agreement shall be absolute, unconditional and
continuing guaranty of payment and not of collection and
shall be binding upon the undersigned, heirs or successors
of the undersigned, and the estate or estates of the
undersigned: (1) regardless of the death or cessation of
existence of any of the undersigned or of any guarantor or
any other party liable upon any indebtedness or other
obligation hereby guaranteed; (2) irrespective of any
defenses, claim or discharge available to the Debtor under
law or under any agreement with the Lender; and (3)
irrespective of any failure or delay by the Lender to
perfect or keep perfected any lien or security interest in
any collateral. This Guaranty Agreement is an independent
obligation which is separately enforceable from the
obligation of the Debtor.
E. All rights of the Lender are cumulative and not alternative
to other rights. Suit may be brought against the
undersigned or other parties liable, jointly and severally,
and against any one or more of them, and against all or less
than all, without impairing the rights of the Lender, its
successors or assigns, against others of the undersigned.
The Lender may settle with any one of the undersigned or any
other party for such sum or sums as it may see fit and
release such of the undersigned or other parties from all
further liability to the Lender for such indebtedness
without impairing the right of the Lender to demand and
collect the balance of such indebtedness from others of the
undersigned not so released.
F. The Lender may assigned this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such assignee
any of the security for the indebtedness. In the event of
such assignment, the assignee shall have the same rights and
remedies as if originally named in this Agreement in place
of Lender, and the Lender shall thereafter be fully
discharged form all responsibility with respect to any such
indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth in
this Guaranty Agreement, it is understood to be unlimited in
amount. If limited, it is understood the limit means a
fixed amount of percentage of any indebtedness before
application of the actual proceeds of the disposition of any
security applied to any unguaranteed portion of the
indebtedness.
$1,000,000.00
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Three
H. Until the indebtedness of the Debtor have been paid in full,
the undersigned agrees to provide to the Lender from time to
time upon demand such financial statements, copies of tax
returns, and other information as to the undersigned as the
Lender may reasonably require.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and all
liabilities of the undersigned to the Lender arising under
the terms of this Guaranty Agreement.
The rights granted by this paragraph shall be in addition to
the rights of the Lender under any statutory banker's lien
or common law right of offset.
J. Until the obligations of the Debtor have been paid in full,
the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the Lender has recourse, and
all rights of reimbursement or contribution from other
parties, whether principals or sureties, accommodation or
guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred to
Lender after the time of receipt of such notice by Lender.
The liability and other agreements of the undersigned shall
not be otherwise affected by shall continue until all
indebtedness, including loan commitments, existing at
the time of the receipt of such notice, and renewals or
extensions of indebtedness to which the undersigned consents,
is fully paid. After any such revocation, Lender may exercise
any rights granted in this Agreement without releasing the
undersigned from liability.
L. Notwithstanding the provisions of any not or obligation to
which this Guaranty Agreement applies, it is the intention
of the parties, and it is here provided, that a Guarantor
shall not be liable for interest charges in excess of the
maximum amount permitted under the law applicable to this
Guaranty Agreement.
M The undersigned specifically waives any right to setoff
under 12 O.S. -S- 686, 150.S -S- 341, or any like statutes,
and agree that the Lender may apply the actual proceeds from
the disposition of any security first to any unguaranteed
portion of the indebtedness. Any part to this Guaranty
Agreement has right to waive trial by jury and waives all
objections to venue in any action instituted by the Lender
arising out of this Guaranty Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the Federal
Bankruptcy Code, which the undersigned might have or acquire
against the Debtor arising from the existence or performance
of the undersigned's obligations under this Guaranty
Agreement, and to that extent that the undersigned is not a
creditor of the Debtor. In addition to the waiver of the
status of creditor, it is agreed that the indebtedness
guaranteed under this Guaranty Agreement excludes all
portions of the indebtedness paid by the Debtor during the
period of time within one year prior to the filing of any
bankruptcy, reorganization or insolvency proceedings by or
against the Debtor. If any payment made by the Debtor to
the Lender is determined to be avoidable under applicable
state law or the Federal Bankruptcy Code, to that extent, if
demanded by the Lender, this Guaranty Agreement is deemed to
be reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
O. The undersigned, by signing below, acknowledge having read
this Guaranty Agreement, having reviewed it to the extent
desired with their legal counsel, and receiving a copy of it
and also receiving an explanation of any questions. The
undersigned also have read any cosigner notice provided by
Lender. The undersigned understand that the undersigned may
have to pay any indebtedness or obligation covered by this
Guaranty Agreement in the event the Debtor fails or refuses
to do so. The undersigned also represent that they are
aware of the financial condition of Debtor and acknowledge a
responsibility to maintain a
Guaranty Agreement
Tulsat Corporation p/k/a
DRK Enterprises, Inc.
Page Four
close watch on that financial condition as long as this
Guaranty Agreement is outstanding and that they are not
relying on the Lender to provide information on the Debtor's
financial condition, now or in the future.
P. This Guaranty Agreement and the obligations evidence in it
are to be construed and governed by the laws of the state
indicated in the address of Lender shown above.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended
except by an agreement in writing signed by both the
undersigned and the Lender. No condition as to the
effectiveness or enforcement of this Guaranty Agreement exists
except as stated in this Guaranty Agreement. Regardless of
any other provision of this Guaranty Agreement to the
contrary, and unless otherwise specifically released or
modified by this Guaranty Agreement, all other
obligations of the undersigned to Lender evidenced by a
note, loan agreement, guaranty or other written agreement
remain in force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
/S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
June 30, 2000
Xxxxxxx X. Xxxxxxx, Vice President
Tulsat Corporation
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Re: Seventh Amendment to the Letter Agreement between DRK
Enterprises, Inc. d/b/a Tulsat, which has changed its name to
Tulsat Corporation, "Borrower" and Bank of Oklahoma, N. A. as
"Lender" dated June 30, 1997;
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the seventh amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997, February 28, 1998, August 31,
1998, August 2, 1999, September 23, 1999, and January 11, 2000
(as amended, the "Agreement") by and between Bank of Oklahoma,
N.A. ("Lender") and Tulsat Corporation, formerly DRK Enterprises,
Inc., an Oklahoma corporation doing business as Tulsat
("Borrower").
WHEREAS, the Borrower has previously entered into the
Agreement setting forth, among other obligations, the obligation
of the Borrower to repay the Lender the amount advanced by the
Lender to the Borrower under a line of credit loan facility (the
"Line Loan") in the amount of $6,000,000.00, which Line Loan is
evidenced by a promissory note of the Borrower to the Lender in
the same amount dated January 11, 2000, maturing on June 30,
2000, (the "Line Note"); and,
WHEREAS, the Borrower has requested to renew and extend the
obligations set forth in the Agreement by extending the
Commitment Termination Date stated therein from June 30, 2000,
until June 30, 2001, and ahs requested that the Lender modify
the Borrowing Base so that the limitation relating to Borrower's
ability to borrow based upon Borrower's Qualified Inventory is
modified from the limitation that borrowings based upon Qualified
Inventory shall not exceed 60% of the Borrowing Base to a
limitation that borrowings based upon Qualified Inventory be
limited such that they not exceed 60% of the Commitment.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The preamble to the Agreement is hereby amended, in part, to
read as follows:
(B) a revolving line of credit ("Line") in the principal
sum of $6,000,000.00 (the "Commitment") which the
Borrower may borrow, repay and re-borrow from time to
time, subject to the Borrowing Base limitation as set
forth below, until the earlier of (i) June 30, 2001, or
(ii) the date upon which Lender accelerates Borrower's
obligation after an Event of Default, as defined below
(the "Commitment Termination Date").
The remaining provisions of the preamble as set forth in the
Fifth Amendment to the Agreement dated September 23, 1999, to
continue unamended.
2. Paragraph 2.1 of the Agreement is amended to read as follows:
2.1 Subject to the terms and conditions of this Agreement,
the Lender agrees to lend Borrower such amounts up to the
maximum of $6,000,000.00 as Borrower may from time to time
request as evidenced by a promissory note, in the form
Attached hereto Exhibit "A-2", maturing on June 30, 2001,
(which, together with any extensions, renewals and changes
in form thereof, is hereinafter referred to as the "Line
Note", or collectively with the "Term Note" as the "Notes"),
provided that the aggregate principal balance at any time
outstanding under the Line Note shall not exceed the lesser
of (i) the Commitment or (ii) the sum of the following:
2.1.1 An amount equal to 80% of Qualified Accounts
Receivable (as hereafter defined); plus
2.1.2 An amount equal to 30% of Qualified Inventory
(the "Qualified Inventory Borrowing Base Limitation");
Further provided that at no time may the amount attributable
to the Qualified Inventory Borrowing Base Limitation exceed
sixty percent (60%) of the Commitment.
3. The Exhibit "1" attached hereto shall and does replace Exhibit
"A-2" of the Agreement.
4. Guarantors, by executing this amendment, acknowledge this
amendment, confirm that they will receive a direct benefit from
the renewal and extension of the existing credit to the Borrower
and that such renewal and extension represents new consideration
to the Guarantors in support of their respective guarantees, they
further ratify and confirm such Guaranties.
5. All other terms and conditions of the Agreement, as well as
all other documents executed in conjunction therewith, including
but not limited to the Security Agreements, the Guaranty
Agreements (as amended) and all other related agreements and
documents shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please indicate by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx, Senior Vice President
Agreed and accepted this _____ day of June, 2000.
"Borrower"
Tulsat Corporation, formerly DRK Enterprises, Inc., d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
"Guarantors", who, by their execution hereof, demonstrate their
acknowledgement and agreement with respect to this seventh
amendment to the Agreement, adopt and ratify their respective
guaranties, and acknowledge the receipt of new and additional
consideration in support such guaranties.
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx, individually Xxxxx X. Xxxxxxx, individually
/S/ Xxxxxxx X. Xxxxxxx /S/ Xxxxx X. Xxxxxxx
--------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx as Trustee of Xxxxx X. Xxxxxxx as Trustee of
the Xxxxxxx X. Xxxxxxx Revocable the Xxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992 Trust dated March 4, 1992
/S/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
ADDvantage Technologies Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxx,
------------------------------
Xxxxxxx X. Xxxxxxx (President)
EXHIBIT 1
(the Line Note)
AMENDED PROMISSORY NOTE
Variable/Commercial
DEBTOR(S) NAME & ADDRESS NOTE NUMBER DATE OF MATURITY PRINCIPAL
0001 NOTE DATE AMOUNT
1/11/2000 06/30/2000 $6,000,000.00
Tulsat Corporation
p/k/a DRK Enterprises,
Inc., dba Tulsat
0000 Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
CUSTOMER NUMBER [ ] NEW LOAN OFFICER
1845500 [X] RENEWAL OF LOAN SPM
NUMBER 0001
[X] FIXED INTEREST RATE OF:
[ ] VARIABLE INTEREST RATE:
SSN/TIN
COLLATERAL CATEGORIES NUMBER
Accounts, Inventory, Equipment 00-0000000
PAYMENT TERMS: PURPOSE
Accrued interest due and payable Working
MONTHLY, beginning 7/31/2000 Capital
and MONTHLY thereafter, with
outstanding principal balance
plus unpaid accrued interest due
and payable on 06/30/2001
FOR VALUE RECEIVED, the undersigned Debtor(s), jointly and
severally if more than one, agree to the terms of this Note and
promise to pay to the order of Lender named below at its place of
business as indicated herein or at such other place as may be
designated in writing by holder, the Principal amount of this
Note together with interest until maturity at the per annum
interest rate or rates stated above. If the writing above
indicates that the per annum interest rate is to vary with
changes made from time to time in the base or prime rate of
Lender or other financial institution, each change in the rate
will become effective without notice to Debtor on the same day
such base or prime rate is change, unless a different effective
date is specified above. The base or prime rate set forth above
is determined by the named Financial Institution in its sole
discretion primarily on a basis of its cost of funds, is not
necessarily the lowest or highest rate the named Financial
Institution is charging its customer, and is not necessarily a
published rate. In the event the named Financial Institution
fixing the base or prime rate ceases to exist or ceases to
announce such a rate, lender may specify a new Financial
Institution to fix such rate, in its sole discretion. Interest
on this Note is calculated on the actual number of days elapsed
on a basis of a 360 day year unless otherwise indicated herein.
For purposes of computing such interest and determining the date
principal and interest payments are received, all payments made
under this Note will not be deemed to have been made until such
payments are received in collected funds.
PAYMENTS NOT MADE WHEN DUE. Any principal and/or interest amount
not paid when due shall bear interest at a rate six percent (6%)
per annum greater than the per annum interest rate prevailing on
this Note at the time the unpaid amount become due, but in no
event at a rate less than fifteen percent (15%) per annum. In
addition or in the alternative to the interest rate provided for
in this paragraph lender may assess a charge of ten dollars
($10.00) times the number of days late to cover cost of past due
notices and other expenses. In no event shall the interest rate
and related charges either before or after maturity be greater
than permitted by law.
ALL PARTIES PRINCIPALS. All parties liable for payment hereunder
shall each be regarded as a principal and each party agrees that
any party hereto with approval of holder and without notice to
other parties may from time to time renew this Note or consent to
one or more extensions or deferrals of Maturity Date for any term
or terms, and all parties shall be liable in same manner as on
original note. All parties liable for payment hereunder waive
presentment, notice of dishonor and protest and consent to
partial payments, substitutions or release of collateral and to
addition or release of any party or guarantor.
ADVANCES AND PAYMENTS. It is agreed that the sum of all advances
under this Note may exceed the Principal Amount as shown above,
but the unpaid balance shall never exceed said Principal Amount.
Advances and payments on Note shall be recorded on records of
Lender and such records shall be prima facie evidence of such
advances, payments and unpaid principal balance. Subsequent
advances and the procedures described herein shall not be
construed or interpreted as granting a continuing
line of credit for Principal Amount. Lender reserves the right
to apply any payment by Debtor, or for account of Debtor, toward
this Note or any other obligation of Debtor to Lender.
Tulsat Corporation p/k/a DRK Enterprises, Inc.,
dba Tulsat, Line Note page 2 dated June 30, 2000.
COLLATERAL. This Note and all other obligations of Debtor to
Lender, and all renewals or extensions thereof, are secured by
all collateral securing this Note and by all other security
interests heretofore or hereafter granted to Lender as more
specifically described in Security Agreements and other securing
documentation.
ACCELERATION. At option of holder, the unpaid balance of this
Note and all other obligations of Debtor to holder, whether
direct or indirect, absolute or contingent, now existing or
hereafter arising, shall become immediately due and payable
without notice or demand upon the occurrence or existence of any
of the following events or conditions: (a) Any payment required
by this Note or by any other note or obligation of Debtor to holder
or to others is not made when due or the occurrence or existence
of any event which results in acceleration of the maturity
of any obligation of Debtor to holder or to others under any
promissory note, agreement or undertaking; (b) Debtor defaults in
performance of any covenant, obligation, warranty or provision
contained in any loan agreement or in the instrument or document
securing or relating to this Note or any other note or obligation
of Debtor to holder or to others; (c) any warranty,
representation, financial information or statement made or
furnished to Lender by or in behalf of Debtor proves to have been
false in any material respect when made or furnished; (d) The
making of any levy against or seizure, garnishment or attachment
of any collateral; (e) Any time Lender in good faith determines
prospect of payment of this Note is impaired; (f) when in the
judgment of Lender, the collateral, if any, becomes
unsatisfactory or insufficient either in character or value and
upon request, Debtor fails to provide additional collateral as
required by Lender; (g) Loss, theft, substantial damage or
destruction of collateral, if any; (h) Death, dissolution, change
in senior management, or termination of existence of any Debtor,
or (i) Appointment of a receiver over any part of the property of
any Debtor, the assignment of property by any Debtor for the
benefit of creditors, or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against any party
liable, directly or indirectly, hereunder.
WAIVERS. No waiver by holder of any payment or other right under
this Note or any related agreement or documentation shall operate
as a waiver of any other payment or right.
GOVERNING LAW. This Note and the obligations evidenced hereby
are made, entered into, to be construed and governed by the laws
of the state indicated in the address of Lender shown below.
Debtor(s) consent to the jurisdiction and venue of any Court
sitting in the State indicated in the address of Lender.
COLLECTION COSTS. All parties liable for payment hereunder agree
to pay reasonable costs of collection, including an attorney's
fee of a minimum of fifteen percent (15%) of all sums due upon
default.
RIGHT OF OFFSET. Any indebtedness due from holder hereof to
Debtor or any party hereto including, but without limitation, any
deposits or credit balances due from holder, is pledged to secure
payment of this Note and any other obligation to holder of Debtor
or any party hereto, and may at any time while the whole or any
part of such obligation remains unpaid, either before or after
Maturity hereof, be appropriated, held or applied toward the
payment of this Note or any other obligation to holder of Debtor
or any part hereto.
PURPOSE. Debtor affirms that the proceeds of this Note are to be
used for a business or agricultural purpose and not for personal,
family or household purposes.
ENTIRE AGREEMENT. All parties acknowledge that this Note and
related documents contain the complete and entire agreement
between Debtor and Lender and no variation, modification, changes
or amendments to this Note or related documents shall be binding
unless in writing and signed by all parties. No legal relationship
is created by the execution of this Note and related documents
except that of debtor and creditor or as stated in writing.
LENDER NAME AND ADDRESS DEBTOR(S) SIGNATURE(s)
Tulsat Corporation p/k/a DRK
ENTERPRISES, INC.
dba Tulsat
Bank of Oklahoma, X.X.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
By: /S/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx ( President )
November 3, 2000
Xxxxxxx X. Xxxxxxx, Vice President
Tulsat Corporation
0000 X. Xxxx
Xxxxxx Xxxxx, XX 00000
Re: Eighth Amendment to the Letter Agreement between DRK
Enterprises, Inc. d/b/a Tulsat, which has changed its name to
Tulsat Corporation, "Borrower" and Bank of Oklahoma, N. A. as
"Lender" dated June 30, 1997;
Dear Xx. Xxxxxxx:
This letter agreement shall constitute the eighth amendment
to the amended and restated letter agreement dated June 30, 1997,
as amended September 25, 1997, February 28, 1998, August 31,
1998, August 2, 1999, September 23, 1999, January 11, 2000, and
June 30, 2000 (as amended, the "Agreement") by and between Bank
of Oklahoma, N.A. ("Lender") and Tulsat Corporation, formerly DRK
Enterprises, Inc., an Oklahoma corporation doing business as
Tulsat ("Borrower").
WHEREAS, the Borrower has previously entered into the
Agreement setting forth, among other obligations, the obligation
of the Borrower to repay the Lender the amount advanced by the
Lender to the Borrower under a line of credit loan facility (the
"Line Loan") in the amount of $6,000,000.00, which Line Loan is
evidenced by a promissory note of the Borrower to the Lender in
the same amount dated June 30, 2000, maturing on June 30, 2001,
(the "Line Note") as well as a term loan facility (the "Term
Loan"); and,
WHEREAS, the Borrower has requested that the Lender modify
the terms of the Agreement by:
1. Providing for a new revolving credit facility in the amount
of $2,000,000.00, ("Line 2") which Borrower may use to acquire
assets (which assets, when acquired shall be made subject to
appropriate pledge to secure Borrowers repayment of obligations
to the Lender) to be evidenced by an additional promissory note
in such amount (the "Line Note 2") maturing on June 30, 2001,
which credit facility shall provide for interest and payments as
set forth herein and in Line Note 2, and which Line 2 facility
and all current or future credit facilities between the Lender
and the Borrower shall be cross collateralized with collateral
pledged as security for other obligations of the Borrower to the
Lender and shall also be subject to cross default such that a
default in any credit facility shall be deemed to be a default
in all other facilities between the Lender and the Borrower;
2. modifying the interest rate payable on all existing and
future notes by decreasing the amount due by 75 basis points, as
established by the Borrower's Funded Debt to EBITDA Ratio as
further provided in the Agreement.
3. releasing the guarantees of Xxxxxxx X. Xxxxxxx, both
individually and as Trustee of the Xxxxxxx X. Xxxxxxx Revocable
Trust dated March 4, 1992, Xxxxx X. Xxxxxxx, both individually
and as Trustee of the Xxxxx X. Xxxxxxx Revocable Trust dated
March 4, 1992 and Xxxxx X. Xxxxxxx of the obligations of the
Borrower to the Lender;
4. modifying the Borrowing Base so that there shall be no
limitation of the Borrower's ability to borrow up to the
Commitment based upon Borrower's Qualified Inventory, with the
exception of the advance rate on inventory limitation;
5. modifying the advance rate on the Borrower's Qualified
Inventory from 30% of Borrower's Qualified Inventory to 40% of
Borrower's Qualified Inventory;
6. removing the requirement that stockholder debt be
subordinated to the debt owed to the Lender; and,
7. modifying the Agreement to provide that the Borrower shall
maintain a minimum net worth of no less than $14,000,000.00, and
shall maintain a minimum net income, per year, of no less than
$2,000,000.00 both according to GAAP as set forth in the
Agreement;
all of which Lender has agreed to do.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein
contained, the parties hereto agree as follows:
1. The preamble to the Agreement is hereby amended, in part, to
read as follows:
(B) a revolving line of credit ("Line 1") in the principal
sum of $6,000,000.00 (the "Line 1 Commitment") which the
Borrower may borrow, repay and re-borrow from time to time,
subject to the Borrowing Base limitation as set forth below,
until the earlier of (i) June 30, 2001, or (ii) the date
upon which Lender accelerates Borrower's obligation after an
Event of Default, as defined below (the "Commitment
Termination Date").
(C) a second revolving line of credit ("Line 2") in the
principal sum of $2,000,000.00 (the "Line 2 Commitment")
which the Borrower may borrow, repay and re-borrow from time
to time until the earlier of (i) June 30, 2001, or (ii) the
Commitment Termination Date.
The rate of interest on Line 1 and Line 2 shall vary on an
quarterly basis beginning on a date to be determined by the
Lender and Borrower and thereafter with quarterly adjustment,
and shall be based upon the Borrower's Funded Bank Debt to
EBITDA Ratio which is defined as the ratio the numerator of
which is the amount of principal plus accrued but unpaid
interest outstanding on the both of the Line obligations plus the
Term obligation of the Borrower under this Agreement plus
any other outstanding amounts of principal and interest owed
by the Borrower to any other financial institution (the
"Borrower's Funded Bank Debt"), and the denominator of which
is the Borrower's earnings before interest, taxes,
depreciation, and amortization ("EBITDA") as demonstrated by
the financial statement of the Borrower at the time of the
determination of such ratio, the ratio being hereafter
identified as "Funded Bank Debt to EBITDA Ratio".
Where the Borrower's Funded Bank Debt to EBITDA Ratio is
equal to or less than the ratio of 1.01 to 1, then the
interest rate payable to Lender on the Line Notes (hereafter
defined) for the next ensuing annual period shall be equal
to the rate announced by The Chase Manhattan Bank, N.A., for
the guidance of its lending officers as its prime lending
rate for commercial loans as in effect from time to time at
its principal office in New York, N.Y., which may not be the
lowest rate of interest available to its customers ("The
Chase Manhattan Bank Prime Rate of Interest") less 125 basis
points. In the event The Chase Manhattan Bank, N.A. shall
cease to exist or shall no longer publish a prime lending
rate for commercial loans, Lender shall select another
commercial bank, in its sole discretion, which shall be
substituted for The Chase Manhattan Bank herein. The rate
of interest shall not at any time exceed the maximum rate of
interest permitted under the laws of the State of Oklahoma
for loans of the type and character evidenced by the Line
Notes.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than the ratio of 1.01 to 1 but is less than or equal to the
ratio of 1.51 to 1, then the interest rate payable to Lender
on the Line Notes for the next ensuing annual period shall
be equal to The Chase Manhattan Bank Prime Rate of Interest
minus 100 basis points.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than the ratio of 1.51 to 1 but is less than or equal to the
ratio of 2.00 to 1, then the interest rate payable to Lender
on the Line Notes for the next ensuing annual period shall
be equal to The Chase Manhattan Bank Prime Rate of Interest
minus 75 basis points.
Where the Borrower's Funded Bank Debt to EBITDA is greater
than or equal to the ratio of 2.00 to 1, then the interest
rate payable to Lender on the Line Notes for the next
ensuing annual period shall be equal to The Chase Manhattan
Bank Prime Rate of Interest minus 50 basis points.
2. Paragraph 2.1 of the Agreement is amended to read as follows:
2.1 Subject to the terms and conditions of this Agreement,
the Lender agrees to lend Borrower such amounts up to the
maximum of $6,000,000.00 as Borrower may from time to time
request as evidenced by a promissory note in the form
attached hereto as Exhibit
"A-2", maturing on June 30, 2001, (which, together with any
extensions, renewals and changes in form thereof, is
hereinafter referred to as the "Line Note 1"); and agrees to
lend Borrower such amounts up to the maximum of
$2,000,000.00 as Borrower may from time to time request as
evidenced by a promissory note in the form attached hereto
Exhibit "A-3", maturing on June 30, 2001, (which, together
with any extensions, renewals and changes in form thereof,
is hereinafter referred to as the "Line Note 2").
Collectively Line Note 1 and Line Note 2 are referred to as
the "Line Notes" and with the "Term Note" are hereafter
referred to as the "Notes"), provided that the aggregate
principal balance at any time outstanding under Line Note 1
shall not exceed the (i) the Line 1 Commitment or (ii) the
sum of the following:
2.1.1 An amount equal to 80% of Qualified Accounts
Receivable (as hereafter defined); plus
2.1.2 An amount equal to 40% of Qualified Inventory (the
"Qualified Inventory Borrowing Base Limitation");
3. The Exhibit "1" attached hereto shall and does replace
Exhibit "A-2" of the Agreement; Exhibit "2" attached hereto shall
be appended to the Agreement as a new exhibit designated as
Exhibit "A-3".
4. References to the "Line Note" in paragraph 2.3 of the
Agreement is hereby amended to "Line Notes" and further amended
to reflect that the Line Notes constitute two (2) separate
obligations. The last reference in said paragraph to the Line
Note is amended to reflect that such reference is to Line Note 1.
The references to Line Note in the Agreement contained in
paragraphs 3.2 and 6.1 are amended to refer instead to Line
Notes, references in the Agreement to Note are hereby amended to
Notes.
5. Paragraph 3.1 of the Agreement is amended to provide that
the Borrower agrees to designate on any Request for Credit
Extension submitted pursuant to the terms of such paragraph that
in addition to the information otherwise contained on such
Request, Borrower will designate whether the Request is for a
credit extension under the Line 1 facility or the Line 2
facility.
6. All references to any requirement that the Borrower provide
the Lender with guaranty agreements executed by Xxxxxxx X.
Xxxxxxx, both individually and as Trustee of the Xxxxxxx X.
Xxxxxxx Revocable Trust dated March 4, 1992, Xxxxx X. Xxxxxxx,
both individually and as Trustee of the Xxxxx X. Xxxxxxx
Revocable Trust dated March 4, 1992, and Xxxxx X. Xxxxxxx are
hereby struck and the Lender, by its execution of this Amendment,
hereby releases Xxxxxxx X. Xxxxxxx, both individually and as
Trustee of the Xxxxxxx X. Xxxxxxx Revocable Trust dated March 4,
1992, Xxxxx X. Xxxxxxx, both individually and as Trustee of the
Xxxxx X. Xxxxxxx Revocable Trust dated March 4, 1992, and Xxxxx X.
Xxxxxxx from their respective obligations as guarantors of the debts
of the Borrower as evidenced by the Guaranty Agreements previously
executed by such parties in conjunction with the Agreement.
7. Paragraph 7.6 of the Agreement is hereby stricken and in its
palace the following paragraph shall be inserted:
7.6 Borrower will at all times hereafter maintain a minimum
net worth (after deduction of the outstanding principal
balance of all loans to shareholders) of $14,000,000.00.
Net worth shall be determined in accordance with generally
accepted principals consistently applied ("GAAP"), less
notes receivable from shareholders; the Borrower further
agrees to maintain a minimum annual net income in an amount
greater than $2,000,000.00 measured in accordance with GAAP.
8. Paragraph 7.19 of the Agreement which requires subordination
of shareholder debt in the event Borrower's indebtedness under
the terms of the Agreement exceeds $2,500,000.00, is deleted in
its entirety.
9. All other terms and conditions of the Agreement, as well as
all other documents executed in conjunction therewith, including
but not limited to the Security Agreements, the Guaranty
Agreements (as amended) and all other related agreements and
documents shall remain in full force and effect.
If the foregoing sets forth your agreement with the Lender,
please indicate by signing in the spaces provided below.
Sincerely,
Bank of Oklahoma, N.A.
By: /S/Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx, Assistant Vice President
Agreed and accepted this _____ day of November, 2000.
"Borrower"
Tulsat Corporation, formerly DRK Enterprises, Inc., d/b/a Tulsat
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
"Guarantor", by its execution hereof demonstrates its
acknowledgement and agreement with respect to this eighth
amendment to the Agreement, adopt and ratify its guaranty, and
acknowledge the receipt of additional consideration in support of
the amendment to existing guaranty of the indebtedness of the
Borrower.
ADDvantage Technologies Group, Inc.
By: /S/ Xxxxxxx X. Xxxxxxx,
-------------------------------
Xxxxxxx X. Xxxxxxx (President)
AMENDED PROMISSORY NOTE
Variable/Commercial
DEBTOR(S) NAME & ADDRESS NOTE NUMBER DATE OF MATURITY PRINCIPAL
0001 NOTE DATE AMOUNT
11/03/2000 06/30/2001 $6,000,000.00
Tulsat Corporation
p/k/a DRK Enterprises,
Inc., dba Tulsat
0000 Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
CUSTOMER NUMBER [ ] NEW LOAN OFFICER
1845500 [X] RENEWAL OF LOAN SPM
NUMBER 0001
[ ] FIXED INTEREST RATE OF:
[X] VARIABLE INTEREST RATE: based upon Debtor's
Funded bank Debt to EBITDA ratio as set forth below.
The initial rate of interest due hereon shall be
8.25%.
SSN/TIN
COLLATERAL CATEGORIES NUMBER
Accounts, Inventory, Equipment 00-0000000
PAYMENT TERMS: PURPOSE
Accrued interest due and payable Working
MONTHLY, beginning 11/30/2000 Capital
and MONTHLY thereafter, with
outstanding principal balance
plus unpaid accrued interest due
and payable on 06/30/2001
FOR VALUE RECEIVED, the undersigned Debtor(s), jointly and
severally if more than one, agree to the terms of this Note and
promise to pay to the order of Lender named below at its place of
business as indicated herein or at such other place as may be
designated in writing by holder, the Principal amount of this
Note together with interest until maturity at the per annum
interest rate or rates stated above. If the writing above
indicates that the per annum interest rate is to vary with
changes made from time to time in the base or prime rate of
Lender or other financial institution, each change in the rate
will become effective without notice to Debtor on the same day
such base or prime rate is change, unless a different effective
date is specified above. The base or prime rate set forth above
is determined by the named Financial Institution in its sole
discretion primarily on a basis of its cost of funds, is not
necessarily the lowest or highest rate the named Financial
Institution is charging its customer, and is not necessarily a
published rate. In the event the named Financial Institution
fixing the base or prime rate ceases to exist or ceases to
announce such a rate, lender may specify a new Financial
Institution to fix such rate, in its sole discretion. Interest
on this Note is calculated on the actual number of days elapsed
on a basis of a 360 day year unless otherwise indicated herein.
For purposes of computing such interest and determining the date
principal and interest payments are received, all payments made
under this Note will not be deemed to have been made until such
payments are received in collected funds.
INTEREST DUE. The rate of interest on this Note shall vary on an
quarterly basis beginning on a date to be determined by the
Lender and Borrower and thereafter, quarterly, and shall be based
upon the Borrower's Funded Bank Debt to EBITDA Ratio which is
defined as the ratio the numerator of which is the amount of
principal plus accrued but unpaid interest outstanding on the
Line and Term obligations of the Borrower under this Agreement
plus any other outstanding amounts of principal and interest owed
by the Borrower to any other financial institution (the
"Borrower's Funded Bank Debt"), and the denominator of which is
the Borrower's earnings before interest, taxes, depreciation, and
amortization ("EBITDA") as demonstrated by the financial
statement of the Borrower at the time of the determination of
such ratio, the ratio being hereafter identified as "Funded Bank
Debt to EBITDA Ratio".
Where the Borrower's Funded Bank Debt to EBITDA Ratio is equal to
or less than the ratio of 1.01 to 1, then the interest rate
payable to Lender on this Note (hereafter defined) for the next
ensuing annual period shall be equal to the rate announced by The
Chase Manhattan Bank, N.A., for the guidance of its lending
officers as its prime lending rate for commercial loans as in
effect from time to time at its principal office in New York,
N.Y., which may not be the lowest rate of interest available to
its customers ("The Chase Manhattan Bank Prime Rate of Interest")
less 125 basis points. In the event The Chase Manhattan Bank,
N.A. shall cease to exist or shall no longer publish a prime
lending rate for commercial loans, Lender shall select another
commercial bank, in its sole discretion, which shall be
substituted for The Chase Manhattan Bank herein. The rate of
interest shall not at any time exceed the maximum rate of
interest permitted under the laws of the State of Oklahoma for
loans of the type and character evidenced by this Note.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
the ratio of 1.01 to 1 but is less than or equal to the ratio of
1.51 to 1, then the interest rate payable to Lender on this Note
for the next ensuing annual period shall be equal to The Chase
Manhattan Bank Prime Rate of Interest minus 100 basis points.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
or equal to the ratio of 1.51 to 1 but is less than or equal to
the ratio of 2.00 to 1, then the interest rate payable to Lender
on this Note for the next ensuing annual period shall be equal to
The Chase Manhattan Bank Prime Rate of Interest minus 75 basis
points.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
or equal to the ratio of 2.00 to 1, then the interest rate
payable to Lender on this Note for the next ensuing annual period
shall be equal to The Chase Manhattan Bank Prime Rate of Interest
minus 50 basis points.
Debtor agrees that the Lender may affix to this Note a schedule
of the applicable interest rate calculated according to the
manner set forth above, which schedule shall be prima facie
evidence of the of applicable interest rate payable on this Note
for any period or periods for which there is any principal or
accrued but unpaid interest outstanding.
PAYMENTS NOT MADE WHEN DUE. Any principal and/or interest amount
not paid when due shall bear interest at a rate six percent (6%)
per annum greater than the per annum interest rate prevailing on
this Note at the time the unpaid amount become due, but in no
event at a rate less than fifteen percent (15%) per annum. In
addition or in the alternative to the interest rate provided for
in this paragraph lender may assess a charge of ten dollars
($10.00) times the number of days late to cover cost of past due
notices and other expenses. In no event shall the interest rate
and related charges either before or after maturity be greater
than permitted by law.
ALL PARTIES PRINCIPALS. All parties liable for payment hereunder
shall each be regarded as a principal and each party agrees that
any party hereto with approval of holder and without notice to
other parties may from time to time renew this Note or consent to
one or more extensions or deferrals of Maturity Date for any term
or terms, and all parties shall be liable in same manner as on
original note. All parties liable for payment hereunder waive
presentment, notice of dishonor and protest and consent to
partial payments, substitutions or release of collateral and to
addition or release of any party or guarantor.
ADVANCES AND PAYMENTS. It is agreed that the sum of all advances
under this Note may exceed the Principal Amount as shown above,
but the unpaid balance shall never exceed said Principal Amount.
Advances and payments on Note shall be recorded on records of
Lender and such records shall be prima facie evidence of such
advances, payments and unpaid principal balance. Subsequent
advances and the procedures described herein shall not be
construed or interpreted as granting a continuing line of credit
for Principal Amount. Lender reserves the right to apply any
payment by Debtor, or for account of Debtor, toward this Note or
any other obligation of Debtor to Lender.
COLLATERAL. This Note and all other obligations of Debtor to
Lender, and all renewals or extensions thereof, are secured by
all collateral securing this Note and by all other security
interests heretofore or hereafter granted to Lender as more
specifically described in Security Agreements and other securing
documentation.
ACCELERATION. At option of holder, the unpaid balance of this
Note and all other obligations of Debtor to holder, whether
direct or indirect, absolute or contingent, now existing or
hereafter arising, shall become immediately due and payable
without notice or demand upon the occurrence or existence of any
of the following events or conditions: (a) Any payment required
by this Note or by any other note or obligation of Debtor to holder
or to others is not made when due or the occurrence or existence
of any event which results in acceleration of the maturity
of any obligation of Debtor to holder or to others under any
promissory note, agreement or undertaking; (b) Debtor defaults in
performance of any covenant, obligation, warranty or provision
contained in any loan agreement or in the instrument or document
securing or relating to this Note or any other note or obligation
of Debtor to holder or to others; (c) any warranty,
representation, financial information or statement made or
furnished to Lender by or in behalf of Debtor proves to have been
false in any material respect when made or furnished; (d) The
making of any levy against or seizure, garnishment or attachment
of any collateral; (e) Any time Lender in good faith determines
prospect of payment of this Note is impaired; (f) when in the
judgment of Lender, the collateral, if any, becomes
unsatisfactory or insufficient either in character or value and
upon request, Debtor fails to provide additional collateral as
required by Lender; (g) Loss, theft, substantial damage or
destruction of collateral, if any; (h) Death, dissolution, change
in senior management, or termination of existence of any Debtor,
or (i) Appointment of a receiver over any part of the property of
any Debtor, the assignment of property by any Debtor for the
benefit of creditors, or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against any party
liable, directly or indirectly, hereunder.
WAIVERS. No waiver by holder of any payment or other right under
this Note or any related agreement or documentation shall operate
as a waiver of any other payment or right.
GOVERNING LAW. This Note and the obligations evidenced hereby
are made, entered into, to be construed and governed by the laws
of the state indicated in the address of Lender shown below.
Debtor(s) consent to the jurisdiction and venue of any Court
sitting in the State indicated in the address of Lender.
COLLECTION COSTS. All parties liable for payment hereunder agree
to pay reasonable costs of collection, including an attorney's
fee of a minimum of fifteen percent (15%) of all sums due upon
default.
RIGHT OF OFFSET. Any indebtedness due from holder hereof to
Debtor or any party hereto including, but without limitation, any
deposits or credit balances due from holder, is pledged to secure
payment of this Note and any other obligation to holder of Debtor
or any party hereto, and may at any time while the whole or any
part of such obligation remains unpaid, either before or after
Maturity hereof, be appropriated, held or applied toward the
payment of this Note or any other obligation to holder of Debtor
or any part hereto.
PURPOSE. Debtor affirms that the proceeds of this Note are to be
used for a business or agricultural purpose and not for personal,
family or household purposes.
ENTIRE AGREEMENT. All parties acknowledge that this Note and
related documents contain the complete and entire agreement
between Debtor and Lender and no variation, modification, changes
or amendments to this Note or related documents shall be binding
unless in writing and signed by all parties. No legal relationship
is created by the execution of this Note and related documents
except that of debtor and creditor or as stated in writing.
LENDER NAME AND ADDRESS DEBTOR(S) SIGNATURE(S)
Tulsat Corporation p/k/a DRK
ENTERPRISES, INC. dba Tulsat
Bank of Oklahoma, X.X.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
By: /S/ Xxxxxxx X. Xxxxxxx, (Vice President)
----------------------------------------------
EXHIBIT 2
(Line Note 2)
PROMISSORY NOTE
DEBTOR(S) NAME & ADDRESS NOTE NUMBER DATE OF MATURITY PRINCIPAL
0002 NOTE DATE AMOUNT
11/03/2000 06/30/2001 $2,000,000.00
Tulsat Corporation
p/k/a DRK Enterprises,
Inc., dba Tulsat
0000 Xxxx Xxxx
Xxxxxx Xxxxx, XX 00000
CUSTOMER NUMBER NEW LOAN OFFICER
1845500 SPM
[ ] FIXED INTEREST RATE OF:
[X] VARIABLE INTEREST RATE: based upon Debtor's
Funded bank Debt to EBITDA ratio as set forth below.
The initial rate of interest due hereon shall be
8.25%.
SSN/TIN
COLLATERAL CATEGORIES NUMBER
Accounts, Inventory, Equipment 00-0000000
PAYMENT TERMS: PURPOSE
Accrued interest due and payable Working
MONTHLY, beginning 11/30/2000 Capital
and MONTHLY thereafter, with
outstanding principal balance
plus unpaid accrued interest due
and payable on 06/30/2001
FOR VALUE RECEIVED, the undersigned Debtor(s), jointly and
severally if more than one, agree to the terms of this Note and
promise to pay to the order of Lender named below at its place of
business as indicated herein or at such other place as may be
designated in writing by holder, the Principal amount of this
Note together with interest until maturity at the per annum
interest rate or rates stated above. If the writing above
indicates that the per annum interest rate is to vary with
changes made from time to time in the base or prime rate of
Lender or other financial institution, each change in the rate
will become effective without notice to Debtor on the same day
such base or prime rate is change, unless a different effective
date is specified above. The base or prime rate set forth above
is determined by the named Financial Institution in its sole
discretion primarily on a basis of its cost of funds, is not
necessarily the lowest or highest rate the named Financial
Institution is charging its customer, and is not necessarily a
published rate. In the event the named Financial Institution
fixing the base or prime rate ceases to exist or ceases to
announce such a rate, lender may specify a new Financial
Institution to fix such rate, in its sole discretion. Interest
on this Note is calculated on the actual number of days elapsed
on a basis of a 360 day year unless otherwise indicated herein.
For purposes of computing such interest and determining the date
principal and interest payments are received, all payments made
under this Note will not be deemed to have been made until such
payments are received in collected funds.
INTEREST DUE. The rate of interest on this Note shall vary on an
quarterly basis beginning on a date to be determined by the
Lender and Borrower and thereafter, quarterly, and shall be based
upon the Borrower's Funded Bank Debt to EBITDA Ratio which is
defined as the ratio the numerator of which is the amount of
principal plus accrued but unpaid interest outstanding on the
Line and Term obligations of the Borrower under this Agreement
plus any other outstanding amounts of principal and interest owed
by the Borrower to any other financial institution (the
"Borrower's Funded Bank Debt"), and the denominator of which is
the Borrower's earnings before interest, taxes, depreciation, and
amortization ("EBITDA") as demonstrated by the financial
statement of the Borrower at the time of the determination of
such ratio, the ratio being hereafter identified as "Funded Bank
Debt to EBITDA Ratio".
Where the Borrower's Funded Bank Debt to EBITDA Ratio is equal to
or less than the ratio of 1.01 to 1, then the interest rate
payable to Lender on this Note (hereafter defined) for the next
ensuing annual period shall be equal to the rate announced by The
Chase Manhattan Bank, N.A., for the guidance of its lending
officers as its prime lending rate for commercial loans as in
effect from time to time at its principal office in New York,
N.Y., which may not be the lowest rate of interest available to
its customers ("The Chase Manhattan Bank Prime Rate of Interest")
less 125 basis points. In the event The Chase Manhattan Bank,
N.A. shall cease to exist or shall no longer publish a prime
lending rate for commercial loans, Lender shall select another
commercial bank, in its sole discretion, which shall be
substituted for The Chase Manhattan Bank herein. The rate of
interest shall not at any time exceed the maximum rate of
interest permitted under the laws of the State of Oklahoma for
loans of the type and character evidenced by this Note.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
the ratio of 1.01 to 1 but is less than or equal to the ratio of
1.51 to 1, then the interest rate payable to Lender on this Note
for the next ensuing annual period shall be equal to The Chase
Manhattan Bank Prime Rate of Interest minus 100 basis points.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
or equal to the ratio of 1.51 to 1 but is less than or equal to
the ratio of 2.00 to 1, then the interest rate payable to Lender
on this Note for the next ensuing annual period shall be equal to
The Chase Manhattan Bank Prime Rate of Interest minus 75 basis
points.
Where the Borrower's Funded Bank Debt to EBITDA is greater than
or equal to the ratio of 2.00 to 1, then the interest rate
payable to Lender on this Note for the next ensuing annual period
shall be equal to The Chase Manhattan Bank Prime Rate of Interest
minus 50 basis points.
Debtor agrees that the Lender may affix to this Note a schedule
of the applicable interest rate calculated according to the
manner set forth above, which schedule shall be prima facie
evidence of the of applicable interest rate payable on this Note
for any period or periods for which there is any principal or
accrued but unpaid interest outstanding.
PAYMENTS NOT MADE WHEN DUE. Any principal and/or interest amount
not paid when due shall bear interest at a rate six percent (6%)
per annum greater than the per annum interest rate prevailing on
this Note at the time the unpaid amount become due, but in no
event at a rate less than fifteen percent (15%) per annum. In
addition or in the alternative to the interest rate provided for
in this paragraph lender may assess a charge of ten dollars
($10.00) times the number of days late to cover cost of past due
notices and other expenses. In no event shall the interest rate
and related charges either before or after maturity be greater
than permitted by law.
ALL PARTIES PRINCIPALS. All parties liable for payment hereunder
shall each be regarded as a principal and each party agrees that
any party hereto with approval of holder and without notice to
other parties may from time to time renew this Note or consent to
one or more extensions or deferrals of Maturity Date for any term
or terms, and all parties shall be liable in same manner as on
original note. All parties liable for payment hereunder waive
presentment, notice of dishonor and protest and consent to
partial payments, substitutions or release of collateral and to
addition or release of any party or guarantor.
ADVANCES AND PAYMENTS. It is agreed that the sum of all advances
under this Note may exceed the Principal Amount as shown above,
but the unpaid balance shall never exceed said Principal Amount.
Advances and payments on Note shall be recorded on records of
Lender and such records shall be prima facie evidence of such
advances, payments and unpaid principal balance. Subsequent
advances and the procedures described herein shall not be
construed or interpreted as granting a continuing
line of credit for Principal Amount. Lender reserves the right
to apply any payment by Debtor, or for account of Debtor, toward
this Note or any other obligation of Debtor to Lender.
COLLATERAL. This Note and all other obligations of Debtor to
Lender, and all renewals or extensions thereof, are secured by
all collateral securing this Note and by all other security
interests heretofore or hereafter granted to Lender as more
specifically described in Security Agreements and other securing
documentation.
ACCELERATION. At option of holder, the unpaid balance of this
Note and all other obligations of Debtor to holder, whether
direct or indirect, absolute or contingent, now existing or
hereafter arising, shall become immediately due and payable
without notice or demand upon the occurrence or existence of any
of the following events or conditions: (a) Any payment required
by this Note or by any other note or obligation of Debtor to
holder or to others is not made when due or the occurrence or
existence of any event which results in acceleration of the
maturity of any obligation of Debtor to holder or to others
under any promissory note, agreement or undertaking; (b) Debtor
defaults in performance of any covenant, obligation, warranty
or provision contained in any loan agreement or in the instrument
or document securing or relating to this Note or any other note or
obligation of Debtor to holder or to others; (c) any warranty,
representation, financial information or statement made or
furnished to Lender by or in behalf of Debtor proves to have been
false in any material respect when made or furnished; (d) The
making of any levy against or seizure, garnishment or attachment
of any collateral; (e) Any time Lender in good faith determines
prospect of payment of this Note is impaired; (f) when in the
judgment of Lender, the collateral, if any, becomes
unsatisfactory or insufficient either in character or value and
upon request, Debtor fails to provide additional collateral as
required by Lender; (g) Loss, theft, substantial damage or
destruction of collateral, if any; (h) Death, dissolution, change
in senior management, or termination of existence of any Debtor,
or (i) Appointment of a receiver over any part of the property of
any Debtor, the assignment of property by any Debtor for the
benefit of creditors, or the commencement of any proceedings
under any bankruptcy or insolvency laws by or against any party
liable, directly or indirectly, hereunder.
WAIVERS. No waiver by holder of any payment or other right under
this Note or any related agreement or documentation shall operate
as a waiver of any other payment or right.
GOVERNING LAW. This Note and the obligations evidenced hereby
are made, entered into, to be construed and governed by the laws
of the state indicated in the address of Lender shown below.
Debtor(s) consent to the jurisdiction and venue of any Court
sitting in the State indicated in the address of Lender.
COLLECTION COSTS. All parties liable for payment hereunder agree
to pay reasonable costs of collection, including an attorney's
fee of a minimum of fifteen percent (15%) of all sums due upon
default.
RIGHT OF OFFSET. Any indebtedness due from holder hereof to
Debtor or any party hereto including, but without limitation, any
deposits or credit balances due from holder, is pledged to secure
payment of this Note and any other obligation to holder of Debtor
or any party hereto, and may at any time while the whole or any
part of such obligation remains unpaid, either before or after
Maturity hereof, be appropriated, held or applied toward the
payment of this Note or any other obligation to holder of Debtor
or any part hereto.
PURPOSE. Debtor affirms that the proceeds of this Note are to be
used for a business or agricultural purpose and not for personal,
family or household purposes.
ENTIRE AGREEMENT. All parties acknowledge that this Note and
related documents contain the complete and entire agreement
between Debtor and Lender and no variation, modification, changes
or amendments to this Note or related documents shall be binding
unless in writing and signed by all parties. No legal relationship
is created by the execution of this Note and related documents
except that of debtor and creditor or as stated in writing.
LENDER NAME AND ADDRESS DEBTOR(S) SIGNATURE(S)
Tulsat Corporation p/k/a DRK
ENTERPRISES, INC. dba Tulsat
Bank of Oklahoma, X.X.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxxxxx 00000-0000
By: /S/ Xxxxxxx X. Xxxxxxx, (Vice President)
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