ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made this 27th day of February,
1998, by TOBY B. TINDELL and CRISTIE R. TINDELL, husband and wife
("Seller"), and INTERSTATE TRAVEL FACILITIES, INC., an Oklahoma corporation
("Buyer").
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. SALE. Subject to all the terms and conditions in this
Agreement, Seller hereby sells to Buyer, and Buyer hereby buys from Seller
the following:
1.1 REAL PROPERTY. The tracts of real property, together
with any improvements thereon, located at 6800 N. I-35 Industrial
Boulevard, Edmond, I-35 and Seward Road, Guthrie, Oklahoma, and I-35 and
Waterloo Road, Edmond, Oklahoma, which properties are more particularly
described on EXHIBIT "A-1", "A-2", AND "A-3" attached to this Agreement
(collectively, the "Real Property"); and
1.2 BUSINESS ASSETS. All other assets, tangible and
intangible, located at, or used in conjunction with the operation of the
gas stations/convenience stores ("Stores") operated on, the Real Property,
including, but not limited to, equipment, inventory, accounts receivable,
contract rights, and goodwill (the "Business Assets") (hereinafter, the
Real Property and Business Assets shall be collectively referred to as the
"Property").
2. PURCHASE PRICE. The purchase price for the Property shall
be $2,060,875.54. Buyer shall pay the purchase price in the following
manner:
2.1 PROMISSORY NOTE. At Closing, Buyer shall execute and
deliver to Seller a promissory note, in the form of EXHIBIT "B" attached to
this Agreement (the "Note"), in the amount of $543,750.
2.2 STOCK. At Closing, Buyer shall deliver to Seller 6,250
shares of Buyer's $1.00 par value common stock.
2.3 ASSUMPTION OF DEBT. Buyer shall assume all debts owed
by Seller which are secured by the Property as listed in SCHEDULE 2.3.
Buyer and Seller acknowledge and agree that the amount of such debt is
$1,335,875.54. Seller shall hold Buyer harmless from and indemnify Buyer
against the payment of any amount owed by Seller in excess of
$1,335,875.54.
3. CONDITION OF PROPERTY. Buyer has inspected the Property.
Buyer will rely only on its inspection of the Property, the advice of
Buyer's agents and employees, and the representations of Seller in this
Agreement. Seller represents to Buyer that Seller has no actual knowledge
of any material latent defect in the Property.
4. CLOSING. The consummation of the sale of the Property by
Seller to Buyer pursuant to the terms of this Agreement (the "Closing")
shall occur at 3:00 p.m. in the offices of McAfee & Taft, on February 27,
1998. At Closing, Seller and Buyer shall each take such actions and
deliver to the other, as appropriate, such instruments, items, and
documents as are necessary to carry out the purposes of this Agreement.
The actions to be performed and the instruments, items, and documents to be
delivered at Closing shall include, but not be limited to, those described
in this Section 4.
4.1 SELLER'S ACTS AND DELIVERIES. Seller shall deliver the
following:
4.1.1 Duly executed and acknowledged warranty deeds,
in the form of EXHIBITS "C", "D", AND "E", conveying to Buyer fee simple
marketable title to the Real Property free and clear of any lien, claim,
encumbrance, or restriction, except as otherwise provided therein, but
without a warranty regarding title or rights to oil, gas, casinghead gas,
distillate, coal, metallic ores, and other minerals in or on the Property
and all rights pertaining thereto;
4.1.2 Possession of the Real Property;
4.1.3 A duly executed affidavit, in the form of
EXHIBIT "F", from Seller regarding the non-foreign status of Seller
sufficient to relieve Buyer of its withholding obligation under
Section 1445 of the Internal Revenue Code of 1986, as amended, and the
regulations relating thereto;
4.1.4 A duly executed assignment, bill of sale and
assumption of contracts, in the form of EXHIBIT "G", by which Seller will
convey and deliver to Buyer all of the Business Assets; and
4.1.5 Possession of the Business Assets;
4.2 BUYER'S ACTS AND DELIVERIES. Buyer shall deliver the
following:
4.2.1 The duly executed Note;
4.2.2 6,250 shares of $1.00 par value common stock
of Buyer.
4.3 ACT OF BUYER AND SELLER. Buyer and Seller shall
execute a Nominee Agreement in the form attached hereto as EXHIBIT "H".
5. REPRESENTATIONS AND WARRANTIES. Each party hereby
represents, warrants and covenants, as applicable, as follows:
5.1 TITLE TO ASSETS AND ABSENCE OF ENCUMBRANCES. Seller
owns and has good and marketable title to the Real Property free and clear
of all liens and encumbrances of every kind and nature, except as indicated
in the warranty deeds attached as EXHIBITS "C", "D", AND "E". Seller owns
and has good and marketable title to the Business Assets free and clear of
all liens and encumbrances of every kind and nature except the liens and
encumbrances listed on SCHEDULE 5.1 (the "Permitted Liens"). There are not
any judgments, tax liens, encumbrances, actions or proceedings pending in
any court against the Property or any facts existing which would give rise
to any judgments, tax liens, encumbrances, actions or proceedings in any
court against such Property. Seller has not received any notice of
violation of any laws, regulations or ordinances relating to the Property.
5.2 NO VIOLATIONS. To the best of each party's knowledge
and except for violations which have been waived by consent, the execution
and delivery by a party of this Agreement does not and will not, and the
consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, constitute or result in (i) a violation of the
certificate of incorporation or by-laws of the parties, as applicable, (ii)
a violation of any law, rule or regulation or judgment, decree, order or
award to which a party or the property of a party is subject, or (iii) a
breach of or default under any material contract or other agreement of a
party. For the purposes of this Section 5.2, the term "default" shall
include any event triggering, or triggering a right to, termination,
acceleration of payment by a party, the creation of a lien or other
encumbrance on any properties of a party or any other change in the rights
and obligations of a party, or any other person under such agreements or
authorizations which is adverse to a party.
5.3 CONSENTS. Except for consents received from Stillwater
National Bank, and Stuckey's Management Group, L.L.C., no consent,
approval, or authorization from any governmental authority or other third
party is required to be obtained by either party in connection with the
execution, delivery, and performance of this Agreement.
5.4 COMPLIANCE WITH LAWS. Seller represents and warrants
that, to Seller's knowledge, during Seller's ownership of the Property,
Seller has complied in all material respects with all laws, ordinances,
permits, licenses, orders, statutes, rules, permitting and licensing
requirements, and regulations promulgated or issued by any municipal,
local, city, county, state or federal court, agency, board, council,
legislature, commission, or other legislative, judicial, administrative or
regulatory body in connection with Seller's use, occupancy, ownership,
management, and/or operation of the Property.
5.5 MATERIAL ADVERSE EFFECT. To the knowledge of Seller,
there has not occurred any event or other occurrence which has had or could
reasonably be expected to have a material adverse effect on the Property or
the operation of the businesses thereon.
5.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall survive
the Closing and the consummation of the transactions contemplated by this
Agreement.
6. COSTS. Buyer agrees to pay all the costs of this
transaction, including recording fees, documentary stamp tax, and sales
tax.
7. PRORATIONS. Seller shall be responsible for the payment of
all ad valorem taxes assessed against the Real Property for the years prior
to the year of the Closing; such taxes for the year of the Closing shall be
prorated as of the Closing, with Seller paying the day of the Closing.
Seller shall pay in full all special assessments against the Real Property
prior to the Closing.
8. MISCELLANEOUS.
8.1 INTEGRATION; MODIFICATION; WAIVER. This Agreement
constitutes the complete and final expression of the agreement of the
parties relating to the Property and supersedes all previous contracts,
agreements, and understandings of the parties, either oral or written,
relating to the Property. This Agreement cannot be modified, or any of the
terms hereof waived, except by an instrument in writing (referring
specifically to this Agreement) executed by the party against whom
enforcement of the modification or waiver is sought.
8.2 BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of Seller and Buyer and their respective
successors and assigns. Buyer may not assign its rights hereunder without
the prior consent of Seller. Except as expressly provided herein, nothing
in this Agreement is intended to confer on any person, other than the
parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
8.3 FURTHER ACTS. In addition to the acts recited in this
Agreement to be performed by Seller and Buyer, Seller and Buyer agree to
perform or cause to be performed at the Closing or after the Closing any
and all such further acts as may be reasonably necessary to consummate the
transactions contemplated hereby.
8.4 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
EXECUTED the day and year first written above.
SELLER: TOBY B. TINDELL
Toby B. Tindell, individual
CRISTIE R. TINDELL
Cristie R. Tindell, individual
BUYER: INTERSTATE TRAVEL FACILITIES, INC., an
Oklahoma corporation
By HERB MEE, JR.
Herb Mee, Jr., Vice-President-Finance
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
This instrument was acknowledged before me on February 27, 1998,
by Toby B. Tindell.
SUE BARNARD
Notary Public Sue Barnard
[SEAL] My commission expires: 11/5/99
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
This instrument was acknowledged before me on February, 1998, by
Cristie R. Tindell.
SUE BARNARD
Notary Public Sue Barnard
[SEAL] My commission expires: 11/5/99
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
This instrument was acknowledged before me on February 27, 1998,
by Herb Mee, Jr., as Vice-President-Finance of Interstate Travel
Facilities, Inc., an Oklahoma corporation.
SUE BARNARD
Notary Public Sue Barnard
[SEAL] My commission expires: 11/5/99
EXHIBIT "A-1"
[Legal Description]
EXHIBIT "A-2"
[Legal Description]
EXHIBIT "A-3"
[Legal Description]
EXHIBIT "B"
[Promissory Note]
EXHIBIT "C"
[Warranty Deed]
EXHIBIT "D"
[Warranty Deed]
EXHIBIT "E"
[Warranty Deed]
EXHIBIT "F"
[Non-Foreign Status Affidavit]
EXHIBIT "G"
[Assignment, Bill of Sale and Assumption of Contracts]
EXHIBIT "H"
[Nominee Agreement]
SCHEDULE 5.1
LIENS AGAINST THE BUSINESS ASSETS
Security interest of Stillwater National Bank and Trust Company.
SCHEDULE 2.3
ASSUMED DEBTS
The outstanding balance due at the date of Closing pursuant to the Wrap
Around Promissory Note from Tindell Enterprises, Inc. in favor of Stuckey's
Management Corp., L.L.C., which amount is $547,217.07.
The outstanding balance due at the date of Closing pursuant to the $675,000
Adjustable Rate Note from Toby B. and Cristie R. Tindell in favor of
Stillwater National Bank and Trust Company, which amount is $660,150.88.
The outstanding balance due at the date of Closing pursuant to the $128,000
Promissory Note from Toby B. and Cristie R. Tindell in favor of Stillwater
National Bank and Trust Company, which amount is $128,507.59.