EXHIBIT 10(ee)
ASSUMPTION AND MODIFICATION AGREEMENT
This Assumption Agreement, made and entered into
effective the 18th day of November, 1999, by and among the
STILLWATER NATIONAL BANK AND TRUST COMPANY OF STILLWATER,
OKLAHOMA, Party of the First Part, hereinafter referred to
as "SNB", INTERSTATE TRAVEL FACILITIES, INC., Party of the
Second Part, hereinafter referred to as "ITF", and ToeJoe,
L.L.C., Party of the Third Part, hereinafter referred to as "TJ".
W I T N E S S E T H:
WHEREAS, ITF is indebted to SNB under four (4)
Promissory Notes which are secured by separate Real Estate
Mortgages as hereinafter set forth; and
WHEREAS, ITF has on deposit with SNB Certificates of
Deposit Nos. 136,357, 136,358, 130,004 and 133,707
(hereinafter collectively the "CD") in the Principal amounts
of $84,374.00, $18,169.00, $81,000.00 and $93,527.16
respectively, each of which is issued to ITF by SNB as a
compensating deposit as previously agreed to by ITF and SNB; and
WHEREAS, TJ and ITF have entered into an agreement
whereby TJ will acquire ALL OF ITF'S interest in the four
(4) tracts of real estate together with the improvements
thereon and appurtenances thereunto belonging, subject to
the four (4) Mortgages hereinafter described in favor of SNB
and, at the request of ITF, has agreed to allow TJ to assume
and agree to pay the obligations secured thereby in favor of
SNB subject to and under the terms and conditions thereof
and hereof; and
WHEREAS, SNB, ITF and TJ have negotiated an agreement
mutually acceptable to each party hereto, pursuant to which,
and in consideration of SNB allowing the assumption by TJ,
certain covenants were required by SNB and agreed to by TJ
as hereinafter set forth.
NOW, THEREFORE, it is agreed by and between the parties
hereto as follows:
1. The obligations subject to this Assumption
agreement are as follows:
(a) Note A: Promissory Note of XXXX X. XXXXXXX and
XXXXXXX X. XXXXXXX, husband and wife, (hereinafter
"TINDELLS") in favor of XXX, Xx. 00000 dated
November 24, 1997, maturing December 24, 2010, in
the original principal sum of $128,000.00. The
payment of Note A was assumed by ITF effective
October 28, 1998. Note A was originally payable
in 156 consecutive monthly payments of $1,514.12
each, at a variable rate of interest equal to the
published Wall Street Journal Prime Rate
(hereinafter "WSJPR"), plus 2%, adjusted date of
change. Note A was modified on November 3, 1998
to change the interest rate to WSJPR, adjusted
annually on November 3 of each year. On September
20, 1999, Note A had an unpaid principal balance
of $116,669.53, and interest accrued and unpaid
through September 20, 1999, in the amount of
$700.17. (A copy of Note A is attached hereto as
"EXHIBIT A"). Note A is secured by a First Real
Estate Mortgage from TINDELLS in favor of SNB
covering three (3) tracts of land located in
Oklahoma County, Oklahoma, a true and correct copy
of said Mortgage, containing the legal
descriptions and recording information is attached
hereto as "EXHIBIT E". The payment of Note A was
assumed by ITF effective October 28, 1998.
(b) Note B: Promissory Note of TINDELLS in favor
of XXX, Xx. 00000 dated April 3, 1997, maturing
April 3, 2012, in the original principal sum of
$675,000.00. Said Note was originally payable in
180 consecutive monthly payments of $6,947.04
each, at a variable rate of interest equal to the
published WSJPR, plus 1%, adjusted annually on the
3rd day of April of each year. Note B was
modified on November 3, 1998 to change the
interest rate to WSJPR, adjusted annually on
November 3 of each year, which Note, on September
20, 1999, has an unpaid principal balance of
$615,701.70, plus interest accrued and unpaid in
the amount of $2,325.98. (A copy of Note B is
attached hereto as "EXHIBIT B"). Note B is
secured by a First Real Estate Mortgage from
TINDELLS in favor of SNB covering a tract of land
located in Oklahoma County, Oklahoma, a true and
correct copy of said Mortgage, containing the
legal descriptions and recording information is
attached hereto as "EXHIBIT F". The payment of
Note B was assumed by ITF effective October 28, 1998.
(c) Note C: Promissory Note of ITF in favor of
XXX, Xx. 00000 dated May 20, 1998, maturing May
20, 2013, in the original principal sum of
$675,750.00. Said Note was originally payable in
179 consecutive monthly payments of $6,704.99
each, and one (1) final payment in the amount of
the remaining principal and accrued and unpaid
interest, with interest at a variable rate equal
to the published WSJPR adjusted date of change,
which was modified effective May 20, 1998 to
WSJPR adjusted annually on May 20. On September
20, 1999, Note C had an unpaid principal balance
of $632,464.50, and interest accrued and unpaid in
the amount of $4,220.82. (A copy of Note C is
attached hereto as "EXHIBIT C"). Note C is
secured by a First Real Estate Mortgage from ITF
in favor of SNB covering four (4) lots land
located in Creek County, Oklahoma, a true and
correct copy of said Mortgage, containing the
legal descriptions is attached hereto as "EXHIBIT G".
(d) Note D: Promissory Note of ITF in favor of
XXX, Xx. 00000 dated June 23, 1998, maturing June
23, 2013, in the original principal sum of
$785,600.00. Said Note was originally payable in
179 consecutive monthly payments of $7,793.93 each
and one (1) final payment in the amount of the
remaining principal and accrued and unpaid
interest, with interest at a variable rate equal
to the published WSJPR, adjusted annually on the
23rd day of June of each year. On September 20,
1999, Note D had an unpaid principal balance of
$753,110.39, plus interest accrued and unpaid in
the amount of $4,540.76. (A copy of Note D is
attached hereto as "EXHIBIT D"). Note D is
secured by a First Real Estate Mortgage from ITF
in favor of SNB covering a two (2) tracts of land
located in Xxxxx, Oklahoma, a true and correct
copy of said Mortgage, containing the legal
descriptions and filing information is attached
hereto as "EXHIBIT H".
2. The current interest rate for Note A is 8% per
annum and on the effective date hereof will increase to
8.25% per annum. The rate for Note A shall change to the
then WSJPR on November 24, 1999 and on the same date of each
year thereafter. The current interest rate for Note B is 8%
per annum and on the effective date hereof will increase to
8.25% per annum. The rate for Note B shall change to the
then WSJPR on April 3, 2000 and on the same date of each
year thereafter. The current interest rate for Note C is
7.75 per annum and on the effective date hereof will
increase to 8.25% per annum. The rate for Note C shall
change to the then WSJPR on May 20, 2000 and on the same
date of each year thereafter. The current interest rate for
Note D is 7.75% per annum and on the effective date hereof
will increase to 8.25% per annum. The rate for Note D shall
change to the then WSJPR on June 23, 2000, and on the same
date of each year thereafter. SNB shall have the right, on
any interest adjustment or change date to, and TJ agrees
that if reqested by SNB, change the monthly payment amount
of any Note to an amount that will amortize the then unpaid
principal balance at the then interest rate over the
remaining term of the Note. Interest shall be calculated on
a 360-day year basis for the actual number of days elapsed.
WSJPR is the annual rate of interest from time to time
published in the Wall Street Journal under the Column
heading "Money Rates" as the "Prime Rates" being stated as
the base rate on corporate loans posted by at least 75% of
the nation's thirty (30) largest banks. If for any reason
the Wall Street Journal should cease to publish a Prime
Rate, WSJPR shall mean, for the purposes of Note A, Note B,
Note C and Note D, such variable annual rate of interest
generally published or announced by a major New York, New
York, bank which, in the good faith judgment of SNB, shall
be the nearest practical equivalent of the WSJPR (which
shall be the same rate charged by SNB to other customers
whose rates are tied to the WSJPR). Such prime rate of
interest will not necessarily be the lowest or most
favorable rate of interest at any time being charged by any
bank or banks or SNB in respect of loans made or
administered by such SNB or SNBs or SNB with respect to
which a "prime rate" of interest is a factor.
3. Subject to the terms and conditions of this
Assumption and Modification Agreement, TJ hereby assumes the
obligations of ITF under Note A, Note B, Note C and Note D
and agrees to pay all of the outstanding principal and
interest of Note A, Note B, Note C and Note D reflected on
the books of SNB in the name of ITF as of the effective date
hereof, the "Assumption Date".
4. TJ'S obligations to SNB shall be evidenced by the
currently existing Promissory Note Nos. 35738, 31672, 35763
and 35764, this Assumption and Modification Agreement, the
mortgages securing the Notes and all other security granted
SNB by ITF or TJ, except as may hereinafter be specifically
released.
5. The rights of the parties hereto and the
obligations of SNB are subject to the following conditions
precedent:
(a) Each representation and warranty made in
paragraph 6 shall be true and correct on the date
hereof;
(b) There shall not exist any Event of Default
under Section 5.1 of this Agreement or any event which,
with the giving of notice or the lapse of time (or
both) would become an Event of Default thereunder; and
(c) The TJ shall have delivered to SNB:
(1) A certified copy of the Deeds from
ITF to TJ, conveying all of the property
described in the mortgages, EXHIBITS E, F, G,
and H from ITF to TJ, with each Deed
containing a clause providing the grantee
assumes and agrees to pay the mortgages as
part of the consideration;
(2) A Security Agreement (the "Security
Agreement") in form and substance
satisfactory to SNB, including "EXHIBIT J"
granting SNB a security interests in all
present and future inventory, equipment,
accounts, contract rights, debt instruments
and other rights to payment and general
intangibles of TJ, duly executed by TJ which
shall be a first lien on the property therein
described and such financing statements as
SNB may reasonably require, all duly approved
by all necessary persons or entities and all
executed by TJ.
(3) Mortgagee Title Insurance Policy
or Policies, or endorsements or continuations
of existing Policies, in favor of SNB,
issued by companies satisfactory to SNB, not
containing any exceptions or exclusions not
satisfactory to SNB, reflecting TJ to be the
owner of the property covered by the
Mortgages, insuring SNB'S first lien position
on the Property, including the real estate,
improvements and fixtures in the amount of
the balance of the original mortgage. The
cost of the Mortgagee title insurance or
guaranty policy or policies shall be paid by
TJ, and shall be in addition to the amounts
reimbursed SNB hereunder.
(4) XXXX XXXXXXX and XXX XXXXXXXXX,
shall each have delivered to SNB his
unconditional guaranty of payment of the Note
in the form annexed hereto as "EXHIBIT I".
(5) Certified copies of minutes of the
meeting of the directors of TJ which
authorized the execution, delivery and
performance of this Agreement and all other
instruments reasonably required by SNB, on
behalf of TJ, all in conformity with the
Articles of Organization, Operating
Agreement, the Law of Oklahoma and any
agreement binding on TJ and such other
documentation as SNB may reasonably require
to establish the authority of TJ to execute
this Agreement and the other documents.
(6) A certified copy of the Articles of
Organization, the Operating Agreement of TJ,
a Certificate of Good Standing issued by the
Secretary of State of the State of Oklahoma,
a copy of any other agreement binding on or
effecting its right to enter into this
Agreement and execute the instruments
required by this Agreement, all currently
certified by its members or Secretary,
together with an incumbency certificate.
(7) Certified copies of minutes of the
meeting of the Directors of ITF which
authorized the transfer of the property to
TJ, execution, delivery and performance of
this Agreement and all other instruments
reasonably required by SNB, on behalf of ITF,
all in conformity with the Articles of
Incorporation, By-Laws, the Law of Oklahoma
and any agreement binding on ITF and such
other documentation as SNB may reasonably
require to establish the authority of ITF to
execute this Agreement and the other documents.
6. TJ represents and warrants to and covenants with
SNB that:
(a) TJ is a Limited Liability Company, duly
organized and existing and in good standing under
the laws of the State of Oklahoma, and registered
and authorized to do business in each jurisdiction
where such registration and authorization is
necessary. TJ is duly authorized and empowered to
execute, deliver and perform this Agreement and
perform its obligations hereunder and under the
Notes and Mortgages. The Federal Employers
Identification Number for TJ is 00-0000000.
(b) The execution and delivery of this
Agreement, and the performance by TJ of its
obligations do not and will not conflict with any
provision of law, or the Articles of Organization
or Operating Agreement of TJ or of any agreement
binding on it. The execution and delivery of this
Agreement has been duly authorized by all
necessary action of the members and managers of TJ.
(c) This Agreement has in fact been both
duly executed and delivered by TJ in Oklahoma and
constitutes its lawful and binding obligation,
legally enforceable against it in accordance with
its terms.
(d) No litigation, tax claims or
governmental proceedings are pending or are
threatened against ITF or TJ and no judgment or
order of any court or administrative agency is
outstanding against ITF or TJ.
(e) The authorization, execution, delivery
and performance of this Agreement by both ITF and
TJ are not and will not be subject to the
jurisdiction, approval or consent of, or to any
requirement of registration with or notification
to, any federal, state or local regulatory body or
administrative agency.
(f) Except for the Mortgages, EXHIBITS E,
F, G and H, the properties described in EXHIBITS
E, F, G and H are free and clear of all liens,
security interests and encumbrances.
(g) All financial statements furnished to SNB
were prepared in accordance with generally accepted
accounting principals consistently applied, except as
expressly therein set forth and present fairly the
financial condition of ITF as of the dates thereof.
The financial statements disclose fully all material
liabilities of ITF, whether or not contingent, with
respect to any pension plan. Since the date of the
most recent financial statement, there has been no
material adverse change in the financial condition of ITF.
(h) ITF and TJ and the operating entities
operating on the properties described in EXHIBITS E, F,
G and H have complied with, and their businesses,
operations, assets, equipment, property, and other
facilities are in compliance with the provisions of all
federal, state and local environmental, health and
safety laws, codes and ordinances, and all rules and
regulations promulgated thereunder. ITF has been
issued and all people in possession of the property
described in EXHIBITS E, F, G and H have been issued
and will maintain, except wherein the failure to do so
would not have a material adverse effect, all required
state and local permits, licenses, certificates and
approvals relating to: (i) their emission; (ii)
discharged as surface water or ground water; (iii)
noise emissions; (iv) solid or liquid waste disposals;
(v) the use, generation, storage, transportation, or
disposal of toxic or hazardous substances (as defined
below) or waste (intended hereby and hereafter to
include any and all such material listed in any
federal, state or local law, code or ordinance, and all
rules and regulations promulgated thereunder as
hazardous or potentially hazardous); or (vi) other
environmental, health or safety matters. Neither ITF,
TJ or, to ITF'S or TJ'S knowledge, the parties in
possession of the real estate described in EXHIBITS E,
F, G and H, have not received and have no knowledge of
and does not suspect facts which might constitute any
violation of any federal, state, or local
environmental, health or safety law, code or ordinance,
or any rule or regulation promulgated thereunder, with
respect to its business, operations, assets, equipment,
property, leasehold, or other facilities. Except as
allowed by law, or in accordance with valid
governmental permits, to ITF'S knowledge, and to the
knowledge of TJ, there has been no emissions, spills,
releases or discharges into or upon: (1) the air; (2)
soils or any improvement located thereon; (3)
surface or ground water; or (4) the sewer, septic
system or waste treatment, storage or disposal system
servicing the property of any toxic or hazardous
substance or waste at or from the property described in
EXHIBITS E, F, G and H; sufficient to cause or give
rise to a reasonable likelihood of a material adverse
effect and to the best of ITF'S knowledge, the property
of ITF is free of all such toxic hazards, substances
and wastes. Neither ITF nor TJ have received, nor have
any knowledge of, any complaint, order, directive,
claim, citation, or notice by any governmental
authority or any person or entity with respect to: (1)
air emission; (2) spills, releases, or discharges of
hazardous substances as defined in the Comprehensive
Environmental Response, Compensation and Liability Act,
42 U.S., Sec. 9601, et seq, or any other act (hazardous
substance) to soil or improvements located thereon,
surface water, ground water or the sewer, septic system
or waste treatment, storage or disposal system
servicing the premises; (3) noise emission; (4) solid
or liquid waste disposal; (5) the use, generation,
storage, transportation or disposal of toxic or
hazardous substances or wastes; or (6) any
environmental, health or safety matter affecting ITF or
its business, operations, assets, equipment, property
or other facilities, and ITF does not have any
indebtedness, obligation or liability, absolute or
contingent, matured or non-matured, with respect to the
storage, treatment, cleanup or disposal of any solid
waste, hazardous waste, or other toxic or hazardous
substances, (including without limitation, any such
indebtedness, obligation or liability with respect to
any current regulation, law or statute regarding such
storage, treatment, cleanup or disposal) wherever located.
(i) Neither ITF or TJ is in default with
respect to the performance, observance or fulfillment
of any of its obligations, covenants or conditions
contained in any agreement, indenture, loan, credit
agreement, lease or other instrument, charter or
corporate restriction which would have a material
adverse effect on its ability to carry out its
obligations under such instrument or to which it is a party.
(j) The execution, delivery and performance of
this Agreement and the documents relating thereto by
ITF and the assumption of the obligations by TJ will
not require consent or approval of the stockholders of
ITF or any officer or director or any corporation or
organization, except as hereinbefore received by ITF
and except for the failure to obtain such approval or
consent will not have a material adverse effect on its
ability to perform its obligations under this
Agreement, and will not contravene or violate any
provision of any loan, rule, regulation, order, writ,
judgment, injunction, decree or determination presently
in effect having applicability to ITF, except where the
contribution or violation will not have a material
adverse effect on its ability to perform its
obligations under this Agreement.
(k) For the purpose of this Agreement,
material adverse effect means a material adverse effect
on the business, property, operations or financial or
other condition of TJ.
(l) So long as the obligations under NOTES A,
B, C and D shall remain unpaid, TJ will:
(1) Preserve and maintain its
existence in good standing in the State of
Oklahoma and qualify and remain qualified in
each jurisdiction where the failure to so
qualify would have a material adverse effect.
(2) Keep accurate records and books
of account, in which complete entries will be
made in accordance with GAAP consistently
applied;
(3) Maintain, keep and preserve all
of its material properties (tangible and
intangible) necessary or useful and the
proper conduct of its business in good
working order and condition, ordinary wear
and tear accepted;
(4) Continue to engage in a business
of the same or related to the general type as
now conducted by it on the date of this Agreement;
(5) Maintain or cause to be
maintained, insurance with financially sound
and reputable insurance companies or
associations in such amounts and covering
such risks as are usually carried by
companies engaged in the same or a similar
business and similarly situated, which
insurance may provide for a reasonable
deductibility from coverage thereof;
(6) Comply in all material respects
with all applicable laws, rules, regulations
and orders, the non-compliance with which
would reasonably be expected to have a
material adverse effect, such compliance to
include, without limitations, paying before
the same become delinquent, all taxes,
assessments, and governmental charges imposed
upon it or imposed upon its property except
such as may be contested in good faith or as
to which a bonafide dispute may exist;
(m) So long as any Promissory Note shall
remain unpaid, TJ will not, without the prior
written consent of SNB, create, incur, assume or
suffer to exist any (i) indebtedness or liability
for borrowed money; (ii) obligations evidenced by
any bonds, debentures, notes or other similar
instruments; (iii) obligations for the deferred
purchase price of property or services; (iv)
obligations as lessee under capital leases; (v)
current liabilities in respect of unfunded vested
benefits under plans covered by ERISA; (vi)
obligations under letters of credit; (vii)
obligations under an acceptance facility; (viii)
all guaranties, endorsements (other than for
collection of checks and drafts in the ordinary
course of business) and all other contingent
obligations to purchase, to provide funds for
payment, to supply funds to invest in a person or
entity or otherwise to insure a debtor against
loss; and (ix) obligations secured by any liens,
whether or not obligations have been assumed;
(n) Without consent of SNB, sell,
transfer or otherwise dispose of any real or
personal property to any person and thereafter
directly or indirectly lease back the same or
similar property;
(o) Without the consent of SNB, sell,
lease, assign, transfer or otherwise dispose of
any of its now owned or hereafter acquired assets
except (i) inventory and supplies disposed of or
used in the ordinary course of its business; (ii)
the sale or other disposition of assets no longer
used or useful in the conduct of its business;
(iii) the sale or other disposition of assets to
the extent such assets are exchanged for credit
against the purchase price of similar replacement
assets or the net proceeds of such sale are
reasonably promptly applied to the purchase price
of such replacement assets;
(p) Assume, guarantee, endorse, or
otherwise be, or become directly or contingently
responsible or liable (including, but not limited
to) under an agreement to purchase any obligation,
stock, asset, goods or services, or to supply or
to advance any funds, assets, goods or services,
or an agreement to maintain or cause such persons
to maintain a minimum working capital or net
worth, or otherwise to assure the creditors of any
person against loss (for obligations of any
person, except guaranties by endorsement of
negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business).
(q) TJ and ITF are in compliance in all
material respects with all applicable provisions
of ERISA. Neither a reportable event nor a
prohibited transaction has occurred and is
continuing with respect to any plan; no notice of
intent to terminate a plan has been filed, nor has
any plan been terminated; no circumstances exist
which constitute grounds entitling the PBGC
(Pension Benefit Guaranty Corporation) to
institute proceedings to terminate, or appoint a
Trustee to administer a plan, nor has the PBGC
instituted any such proceedings; Neither TJ or ITF
has completely or partially withdrawn from a multi-
employer plan; both TJ and ITF have met its
minimum funding requirements under ERISA with
respect to all of its plans, and the present value
of all vested benefits under each plan exceeds the
fair market value of all plan assets allocable to
such benefits, as determined on the most recent
valuation date of the plan, and in accordance with
the provisions of ERISA; and neither TJ or ITF has
incurred any liability to the PBGC under ERISA.
(r) Payment of all Indebtedness of TJ to SNB
arising under this Agreement has or will have been
guaranteed by XXXX XXXXXXX and XXX XXXXXXXXX,
pursuant to the Guaranty or Guaranties, which have
been duly executed and delivered, are lawful and
valid, and are legally enforceable by SNB
(without further act and without condition) in
accordance with their stated terms.
(s) To the best knowledge of TJ and ITF,
both have complied with, and its business, operations,
assets, equipment, property, leasehold, or other
facilities are in compliance with, the provisions of
all federal, state and local laws, codes and
ordinances, and all rules and regulations promulgated
thereunder. Each has been issued or will obtain and
will maintain all required federal, state and local
permits, licenses, certificates and approvals relating
to its business.
7.1 TJ covenants and agrees that it will:
(a) Pay all taxes, assessments and
governmental charges prior to the time when any
penalties or interest accrue, unless contested in
good faith with an adequate reserve for payment.
(b) Conduct its business; maintain all
rights, licenses and franchises; comply with all
applicable laws and regulations and maintain and
not violate any of the terms or provisions of its
agreements with any petroleum distributor.
(c) Maintain its property in good working
order and condition; make all needful and proper
repairs, replacements, additions and improvements
thereto.
(d) Deliver to SNB and to any participant
designated by SNB:
(1) As soon as available and in any
event within thirty (30) days after the end
of each calendar month balance sheets as of
the end of such month, statements of income
and retained earnings for the period
commencing at the end of the previous month
and ending with the end of such month, and
statements of changes in financial position
for the portion of the month ended with the
last day of such month, all in reasonable
detail and stating in comparative form the
respective figures for the corresponding date
and period in the previous fiscal year and
all prepared in accordance with GAAP
consistently applied and certified by TJ.
(2) As soon as available and in any
event within ninety (90) days after the end
of each fiscal year copies of statements of
the financial condition of TJ as of the end
of such fiscal year with comparative figures
for the preceding fiscal year accompanied by
(i) a copy of any correspondence addressed by
said accountants to the entity being audited
pertaining to the financial statements, and
(ii) a signed statements of said accountants,
addressed to SNB describing all Events of
Default under Section V and all events which
with the giving of notice or lapse of time
(or both) would constitute such an Event of
Default, which came to the attention of said
accountants in the preparation of the
financial statements or stating that no such
Event of Default was noted.
(3) Within forty-five (45) days after
the end of each fiscal year of TJ, a
certificate of the chief financial officer of
TJ certifying that to the best of his
knowledge no Default or Event of Default has
occurred and is continuing or, if a Default
or Event of Default has occurred and is
continuing, a statement as to the nature
thereof and the action which is proposed to
be taken with respect thereto.
(4) Promptly after the commencement
thereof, notice of all actions, suits and
proceedings before any court or governmental
department, commission, board, bureau,
agency, or instrumentality, domestic or
foreign, affecting TJ which, if determined
adversely to TJ, could have a material
adverse effect on the financial condition,
properties, or operations of TJ.
(5) As soon as possible and in any
event within ten (10) days after the
occurrence of each Default or Event of
Default, a written notice setting forth the
details of such Default or Event of Default
and the action which is proposed to be taken
by TJ with respect thereto.
(6) On or before February 15th of each
year, copies of the federal and Oklahoma
income tax returns for the previous fiscal year.
(7) From time to time, any and all
other financial information, schedules and
other material, reports, records or
information reasonably required by SNB or any
participant.
(8) At least annually Then current
statements reflecting the financial condition
of each Guarantor together with the then most
recent year federal income tax return of each
Guarantor.
(e) To the extent reasonably required to
protect the interest of SNB or to allow SNB to
obtain information necessary for its business
permit any officer, employee, attorney or
accountant for the SNB or for any participant
designated by the SNB, to review, make extracts
from, or copy any and all financial books and
records and visit the properties of TJ at all
times during ordinary business hours and discuss
the affairs, finances and accounts of TJ with any
of its officers, members or managers.
(f) (1) TJ, at its expense, shall at all
times during the term of this Agreement, and so
long as any of the debt is outstanding, procure
and maintain such insurance as hereinafter
specified, and in any event, no less than the
following:
(i) Property insurance (or builder's
risk insurance during any period of
construction) on its building(s) and contents
against loss or damage by fire, lightning and
all other risks covered by the usual all-
risks policy form, all in an amount not less
than ninety percent (90%) of the replacement
cost thereof.
(ii) Workers' Compensation insurance in
statutory amounts on all employees.
(iii) Comprehensive or Commercial
General Liability Insurance for any claims or
losses arising or resulting from the
business, with combined single limits of
$1,000,000 per each occurrence for bodily
injury and property damage. If the General
Liability coverages are provided by a
Commercial General Liability policy form, the
General Aggregate Limit shall be not less
than $2,000,000, and it shall apply in total
to all properties only by specific
endorsement. Such insurance shall be on an
occurrence policy form and shall include
premises and operations, independent
contractors, blanket contractual, products
and completed operations, advertising injury,
employees as additional insureds, broad form
property damage, personal injury, incidental
medical malpractice, severability of
interests, innkeeper's and safe deposit box
liability, and explosion, collapse and
underground coverage during any construction.
(iv) Business Auto Liability including
owned, non-owned and hired vehicles for
combined single limits of bodily injury and
property damage of not less than $1,000,000
each occurrence.
(2) The following general insurance
requirements will be satisfied by TJ:
(i) All insurance shall, by
endorsement, specifically name SNB as
unrestricted additional insureds.
(ii) Any deductibles with any insurance
policy or policies required hereunder shall
not exceed $25,000.00, or such higher amounts
as may be approved in writing in advance by SNB.
(iii) All insurance purchased in
compliance herewith shall be placed with
insurance companies reasonably acceptable to
SNB and licensed, authorized or registered to
do business in the State of Oklahoma.
(iv) All insurance required hereunder
shall be specifically endorsed to provide
that the coverage will be primary in that any
insurance carried by any additional insured
shall be excess and non-contributory.
(v) All insurance required hereunder
shall contain an endorsement whereby the
policies shall not be canceled or materially
changed without at least thirty (30) days
prior written notice to SNB.
(vi) TJ shall deliver to SNB,
Attention: XXXXX X. XXXXX, a certificate of
insurance (or certified copy of such
insurance policy if requested by SNB)
evidencing the coverages required herein and
setting forth deductibles and the amount
thereof, if any. Renewal certificates of
insurance (or certified copies of such
insurance policy if requested by SNB) shall
be delivered to SNB not less than ten (10)
days prior to their respective inception dates.
(g) Do, make, procure, execute and deliver
at its expense all acts, things, writings and
assurances which the SNB may at any time
reasonably request in order to protect, assure, or
enforce the interests, rights and remedies of the
SNB created by, provided in or emanating from this
Agreement, the Security Agreements or the Mortgages.
(h) Be and remain in compliance with the
provisions of all federal, state, and local
environmental, health and safety laws, codes and
ordinances, and all rules and regulations issued
thereunder; TJ will notify SNB immediately of any
notice of a hazardous discharge or environmental
complaint received from any governmental agency or
any other party; notify the SNB of any hazardous
discharge from or affecting TJ'S premises;
immediately contain and remove the same, in
compliance with all applicable laws; promptly pay
any fine or penalty assessed in connection
therewith; permit the SNB to inspect the premises,
to conduct tests thereon, and to inspect all
books, correspondence and records pertaining
thereto; and at the SNB'S request, and at TJ'S
expense, provide a report of a qualified
environmental engineer, satisfactory in scope,
form and content, to the SNB, with such other and
further assurances reasonably satisfactory to SNB
that the condition has been corrected.
(i) Not sell, lease, or otherwise dispose of
all or any substantial part of its property, other
than in the ordinary course of its business.
(j) Not, without the consent of SNB, enter
into any agreement which guarantees repayment of
any capital contributions or provides for a
guaranteed return on capital, nor redeem any
Members interests or otherwise distribute any of
its property on account of its capital accounts to
any member.
(k) Notify the SNB promptly of any change in
the persons constituting its members and/or managers.
(l) Be and remain in compliance with the
provisions of all federal, state, and local laws,
codes and ordinances, and all rules and
regulations issued thereunder applicable to its business.
7.2 TJ further covenants and agrees that it will
notify the SNB in writing promptly, and in any event within
ten (10) business days, in the event of the occurrence of
any Event of Default defined or described in Section 9 or
the occurrence of any event which, with the giving of notice
or lapse of time (or both), would become such an Event of Default.
8. Without the express written consent of SNB, TJ
covenants and agrees that it will not:
(a) Become or remain liable in any manner in
respect of any Indebtedness or contractual
liability (including, without limitation, notes,
bonds, debentures, loans, guaranties, and pension
liabilities, whether or not contingent and whether
or not subordinated) in excess of $50,000.00 in
the aggregate, except:
(1) Indebtedness arising under this
Agreement;
(2) Outstanding secured indebtedness,
if any and only to the extent disclosed on
the financial statement furnished SNB by TJ
in connection with its application for the
credit established in this Agreement;
(3) Presently outstanding unsecured
indebtedness, if any, to the extent disclosed
in the financial statements previously
furnished SNB;
(4) Unsecured indebtedness, other than
for ordinary and normal operating expenses
incurred in the ordinary course of its
business, and other than for money borrowed
for the purpose of acquiring a capital asset;
(b) Create, incur or cause to exist any
mortgage, security interest, encumbrance, lien or
other charge of any kind upon any of its property
or assets, whether now owned or hereafter
acquired, except:
(1) The security interests and mortgage
liens created by the Security Agreements;
(2) Liens for taxes or assessments not
yet due or contested in good faith by
appropriate proceedings;
(3) Security interests approved by the
SNB in writing, at its sole discretion;
(4) Other liens, charges and
encumbrances incidental to the conduct of its
business or the ownership of its property
which were not incurred in connection with
the borrowing of money or the purchase of
property on credit and which do not in the
aggregate materially detract from the value
of its property or materially impair the use
thereof in its business; and
(5) Purchase money security interest
and finance leases for equipment utilized by
TJ in the ordinary course of its business and
the unpaid balance of which does not exceed
the fair market value of the security.
(c) Expend or contract to expend funds
during any fiscal year for the purchase or lease
of any property, whether real, personal or mixed,
except current assets purchased in the ordinary
course of business.
(d) Other than in the ordinary course of
business, sell, lease, or otherwise dispose of all
or any substantial part of its property.
(e) Consolidate or merge with, acquire
substantially all of the assets of any corporation
or business.
(f) Substantially alter the nature of the
business in which it is engaged.
(g) Purchase stock or securities of, extend
credit to or make investments in, become liable as
surety for, or guarantee or endorse any obligation
of, any person, firm or corporation in excess of
$50,000.00, except direct obligations of the
United States and commercial SNB deposits and
except loans presently outstanding and previously
disclosed in writing to the SNB.
(h) In any manner transfer any property
without prior or present receipt of full and
adequate consideration.
(i) Permit any default or event of default
to occur under any note, loan agreement, lease,
mortgage, contract for deed, security agreement or
other contractual obligation binding upon TJ or
any Subsidiary.
(j) Permit in excess of $25,000.00 to be
owing to TJ by any member or manager.
9.1 Each of the following occurrences shall constitute
an Event of Default:
(a) TJ shall fail to make any payment on the
Note and such failure shall continue for ten (10)
calendar days after notice from SNB that the
payment was not made when due.
(b) TJ shall fail to perform or observe any
of the non-payment covenants of this Agreement,
and such failure shall continue for a period of
thirty (30) calendar days after notice from SNB of
such failure.
(c) Any representation or warranty contained
herein shall prove to have been materially false
or misleading as of this date or (except to the
extent of changes caused by transactions permitted
under this Agreement); or any other representation
or warranty made by or on behalf of TJ to SNB
(whether made in this Agreement, in any financial
statement, report or certificate furnished
pursuant to this Agreement, or otherwise in any
manner) shall prove to have been false or
materially misleading as of the time as of which
such representation or warranty was made.
(d) Subject to any applicable cure period,
TJ shall fail to pay when due any substantial
liability or liabilities other than the Note; or
the maturity of any such liability or liabilities
shall be accelerated; or any breach, default or
event of default shall occur under any indenture,
loan agreement, note or agreement pertaining to
any such liability, entitling a creditor or
representative of creditors of TJ, acting with or
without the consent or concurrence of other
creditors and with or without notice or a period
of grace, to accelerate the maturity of or demand
payment of any such liability, whether such
breach, default or event of default is waived by
the creditor so entitled. "Substantial" for these
purposes, means in excess of $25,000.00.
(e) Any breach, subject to any applicable
cure period, any default or any event of default
shall occur under the Security Agreements or under
any other agreement, conveyance or instrument now
in effect or hereafter made for the benefit of SNB
in connection with or as security for indebtedness
arising under this Agreement.
(f) TJ shall have procured, permitted or
suffered, voluntarily or involuntarily, any
creditor to obtain a lien not permitted herein
(excepting liens which remain in effect for less
than thirty (30) days and/or which TJ is
contesting in good faith) upon all or any
substantial part of the Property or any of its
other property by operation of law or the
appointment by any court or public authority
(other than a bankruptcy court) of any receiver or
trustee to take charge of, or the sequestration
of, all or any substantial part of its property;
or shall commit an act of bankruptcy under the
United States Bankruptcy Act (as now or hereafter
amended); or shall file or have filed against it,
voluntarily or involuntarily, a petition in
bankruptcy or for reorganization or the adoption
of an arrangement under the United States
Bankruptcy Act (as now or hereafter amended); or
shall initiate or have initiated against it,
voluntarily or involuntarily, any act, process or
proceeding for liquidation, dissolution,
arrangement, composition or reorganization or
under any insolvency law or other statute or law
providing for a modification or adjustment of the
rights of creditors.
(g) Any event or reportable event which SNB
in good faith determines to constitute potential
grounds for the termination of any employee
benefit plan or other plan maintained for
employees of TJ or any Subsidiary of TJ or for the
appointment of a trustee to administer any such
plan, shall have occurred and be continuing ten
(10) calendar days after written notice to such
effect shall have been given by SNB to TJ; or any
such plan shall be terminated; or a trustee shall
be appointed to administer any such plan; or the
PGBC shall institute proceedings to terminate any
such plan or to appoint a trustee to administer
any such plan.
(h) Any guarantor under a guaranty shall
repudiate, shall purport to revoke, or shall fail
to perform any obligations under a guaranty.
(i) XXXX XXXXXXX or XXX XXXXXXXXX shall
cease, by reason of death, retirement, or
resignation or any other event, to carry on all or
any substantial part of the duties or functions
now delegated to or exercised by either for TJ..
(j) Loss, theft, substantial damage to or
destruction of the collateral which loss, theft,
substantial damage or destruction is not covered
by insurance.
(k) The making of any levy against or seizure,
garnishment or attachment of any collateral, the
consensual encumbrance thereof by TJ, or the sale,
lease or other disposition of collateral by TJ
without the prior written consent of SNB as
required elsewhere in this Agreement, except
inventory sold in the ordinary course of business.
9.2 Upon the occurrence of an Event of Default or at
any time thereafter until such Event of Default is waived in
writing pursuant to Section 5.3 or, if capable of being
cured, is cured to the written satisfaction of SNB, SNB at
its option may exercise one or more of all of the following
rights and remedies:
(a) Terminate the obligations of SNB under this
Agreement; and
(b) Declare the indebtedness evidenced by
any Note or all Notes to be immediately due and
payable, and the same shall thereupon be
immediately due and payable, without notice or
presentment or other demand, and SNB thereupon may
exercise and enforce all rights and remedies
available to it to collect the indebtedness
evidenced by the Note against TJ, the guarantors,
or any of them or any other party; and
(c) Exercise and enforce all rights and
remedies accorded upon default to a secured party; and
(d) Without notice to or demand upon TJ or
any other person, offset any indebtedness then
owed by SNB to TJ, whether or not such
indebtedness is then due, against the indebtedness
evidenced by the Note (including, without
limitation indebtedness transferred by SNB to a
third party by participation, negotiation,
assignment, succession or otherwise) and any other
indebtedness then owed by TJ to SNB, whether or
not then due, and exercise any and all other
rights of setoff, application, or banker's lien
available to SNB by law or agreement; and
In consideration of Ten Dollars ($10.00) and other valuable
consideration receipt of which is hereby acknowledged, the
parties agree that, notwithstanding any provision of
Exhibits A, B, C, D, E, F, G, H, I, J, or K or herein to the
contrary TJ, XXXX XXXXXXX or XXX XXXXXXXXX being in default
under any obligation in favor of SNB other than the
obligations involved in this Assumption and Modification
Agreement shall not constitute an Event of Default
hereunder. If TJ fails to pay any sum due hereunder which
constitutes an Event of Default, SNB shall give TJ, XXXX
XXXXXXX and XXX XXXXXXXXX written notice of the Event of
Default and ten (10) days within which to cure the Default
prior to declaring a Default and pursuing its remedies
provided for herein or in the Exhibits hereto. If TJ has
caused a non-payment Event of Default to exist, SNB shall
give TJ, XXXX XXXXXXX and XXX XXXXXXXXX written notice of
the Event of Default and thirty (30) days within which to
cure the Default prior to declaring a Default and pursuing
its remedies provided for herein or in the Exhibits hereto.
9.3 Any Event of Default may be waived in writing by
SNB, but not otherwise; and the failure to exercise the
rights and remedies referred to in Section 5.2 shall not
operate as a waiver or otherwise preclude enforcement of
such rights and remedies. A waiver shall be effective only
in the specific instance and for the specific purpose given.
The rights and remedies of SNB shall be cumulative and the
exercise or enforcement of any one right or remedy shall
neither be a condition to nor bar the exercise and
enforcement of any other.
9.4 TJ agrees to pay SNB, on demand, the amount of all
reasonable out-of-pocket expenses reasonably incurred,
including the reasonable fees and disbursements of legal
counsel for SNB, incurred or paid by SNB in connection with
or as a result of the exercise or enforcement of any right
or remedy referred to herein, except to the extent payment
of the same by TJ may be prohibited by law.
10.1 Upon execution of this Agreement and satisfying
the conditions precedent set out in paragraph 5, hereof, SNB shall:
(a) Release IFT of any of its obligations to pay
Note A, Note B, Note C or Note D.
(b) Release its security interest in any property
of ITF not transferred to TJ, and sign such documents
as may be reasonably requested by ITF to release its
security interest in any property of ITF not
transferred to TJ;
(c) Release all Certificates of Deposit of ITF
from any requirement that same be maintained as
compensating balances for Note A, Note B, Note C or
Note D or any other obligations of ITF to SNB and
return any of the Certificates of Deposit in possession
of SNB to ITF;
(d) Release ITF of its obligations to SNB under
the Assumption and Modification Agreement between SNB,
ITF, Xxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx dated
October 28, 1998; and
(e) This Section 10.1 shall not be affected by
SNB'S exercise of its rights against TJ pursuant to
Section 9.2 hereof.
10.2. SNB agrees that when this Agreement requires its
consent to any action, that its consent will not be
unreasonably withheld.
10.3 SNB hereby gives consent to XXX XXXXXXXXX
transferring all or any part of his membership interest or
units in JT to his son, XXXX XXXXXXXXX. Such transfer will
not release XXX XXXXXXXXX of any obligation to SNB
hereunder, or under any agreement, including, but not
limited to his guaranty.
10.4 All notices to be given to or by TJ hereunder
shall be sufficiently given if sent in writing by certified
or registered mail, addressed to TJ, 0000 X. X-00 Xxxxxxxxxx
Xxxx., Xxxxxx, XX 00000, ATTN: XXXX XXXXXXX or Faxed at 405-
348-1753 and to SNB at X.X. Xxx 0000, Xxxxxxxxxx, XX 00000,
ATTN: XXXXX X. XXXXX, Senior Vice President, or Faxed at 405-
742-1820 or addressed to such other address or to the
attention of such other address or to the attention of such
other person as any party may from time to time designate in
written notice to the other party.
10.5 The obligations of TJ under this Agreement shall
in no way be affected or impaired by any failure, delay or
omission in enforcing payment of the indebtedness or
applying any security to the indebtedness, or in exercising
any right or power in respect thereto, or by any compromise,
waiver, settlement, change, subordination, modification or
disposition of all or any part of the indebtedness or of any
security for the indebtedness. There shall be no obligation
on the part of the SNB, at any time, to resort for payment
to TJ or any guarantor, to seek or obtain a deficiency
judgment against TJ or to proceed against any other security
or collateral for the indebtedness and SNB shall have the
absolute, unconditional and continuing right to enforce this
Agreement irrespective of whether or not other proceedings
or steps are being taken against any property securing the
indebtedness or any guarantor or any other party primarily
or secondarily liable on any of the indebtedness. TJ
expressly and voluntarily waives and relinquishes all set
offs, rights and remedies accorded by applicable law to
sureties, including without limitation, any and all offsets,
set offs, rights, remedies or defenses accorded thereto by
any provision of Title 15 of the Oklahoma Statutes or by
Title 12 of the Oklahoma Statutes or otherwise.
10.6 This Agreement shall inure to the benefit of,
extend to and be binding upon the respective successors and
assigns of the TJ, ITF and SNB. "SNB" as used herein,
includes any participant of SNB and any subsequent holder of
the Notes. This Agreement cannot be modified, amended,
waived, cancelled, terminated or otherwise changed without
the advance written consent of the parties hereto.
10.7 This Agreement and all documents were negotiated
and executed in the State of Oklahoma and the Note was
issued and is payable in the State of Oklahoma and each
shall be governed and construed by the substantive laws of
the State of Oklahoma. If any provision of this Agreement
is held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not
affect other provisions which can be given effect, and this
Agreement shall be given effect, and shall be construed as
if such invalid or illegal or unenforceable provision had
never been contained herein. All representations and
warranties contained in this Agreement shall survive the
execution and delivery of this Agreement and the issuance of
the Notes.
IN WITNESS WHEREOF, we the undersigned have
executed this Agreement the date and year first above
written.
STILLWATER NATIONAL BANK AND
TRUST COMPANY OF STILLWATER,
OKLAHOMA
By XXXXX X. XXXXX
XXXXX X. XXXXX, Senior
Vice President
"SNB"
INTERSTATE TRAVEL FACILITIES,
INC.
By XXXX XXX, XX.
Xxxx Xxx, Xx., Vice President
"ITF"
ToeJoe, L.L.C.
By: XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, Member
and Manager
By: XXX XXXXXXXXX
Xxx Xxxxxxxxx, Member
"TJ"
"INDEX TO EXHIBITS AND SCHEDULES"
EXHIBIT A NOTE 35738
EXHIBIT B NOTE 31672
EXHIBIT C NOTE 35763
EXHIBIT D NOTE 35764
EXHIBIT E MORTGAGE SECURING NOTE A
EXHIBIT F MORTGAGE SECURING NOTE B
EXHIBIT G MORTGAGE SECURING NOTE C
EXHIBIT H MORTGAGE SECURING NOTE D
EXHIBIT I FORM OF GUARANTY
EXHIBIT J FORM OF SECURITY AGREEMENT
