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U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL
BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
Riverside Parkway, Inc.
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(Name of Small Business Issuer in its charter)
Oklahoma 73-1399055
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
221 S. Broadway, P.O. Box 802 Cleveland, Oklahoma 74020
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number, (918) 358-3331
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Securities to be registered under Section 12(b) of the act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Securities to be registered under Section 12(g) of the Act:
Common Stock
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(Title of class)
- --------------------------------------------------------------------------------
(Title of class)
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TABLE OF CONTENTS
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PART I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BUSINESS AND PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
OFFICERS AND KEY PERSONNEL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PRINCIPAL STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
MANAGEMENT RELATIONSHIPS, TRANSACTIONS AND REMUNERATION . . . . . . . . . . . . . . . . . . . . . . . . . . 20
LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
MISCELLANEOUS FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CERTAIN RELEVANT FACTORS . . . . . . . . . . . . . . . . . . . . . 23
PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
MARKET PRICE OF AND DIVIDENDS ON THE COMPANY'S COMMON EQUITY AND OTHER SHAREHOLDER MATTERS . . . . . . . . . 25
RECENT SALES OF UNREGISTERED SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
INDEMNIFICATION OF DIRECTORS AND OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART F/S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
PART III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1
INDEX TO EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2
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PART I
THE COMPANY
1. Exact corporate name: Riverside Parkway, Inc.
State and date of incorporation: Oklahoma, April 16, 1987
Street address of principal office: 221 S. Broadway, P.O. Box 802
Cleveland Oklahoma 74020 Company telephone number: (918) 358-3331
Fiscal Year: 6 30
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(month) (day)
Person(s) to contact at Company with respect to this registration: L.
William Hiser, Jr. or Stephen L. Lower
Telephone number (if different from above): ( ) Same
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BUSINESS AND PROPERTIES
3. WITH RESPECT TO THE BUSINESS OF THE COMPANY AND ITS PROPERTIES:
(a) DESCRIBE IN DETAIL WHAT BUSINESS THE COMPANY DOES AND PROPOSES
TO DO, INCLUDING WHAT PRODUCTS OR GOODS ARE OR WILL BE
PRODUCED OR SERVICES THAT ARE OR WILL BE RENDERED.
The Company has acquired and is renovating or intends to renovate the
various properties and facilities listed below, all of which are
located in northeast and northcentral Oklahoma. The intended
renovation of these properties and facilities are the main parts of
the Company's plan to establish a tourism and recreational industry in
northeast and northcentral Oklahoma.
Opera House. The Company owns and has partially restored a
two-story building located in Ralston, Oklahoma. The second
floor of the building contains a theater known as the Ralston
Opera House (the "Opera House"). The Opera House is
approximately 4,000 square feet and contains approximately 300
seats. The Opera House portion of the two-story building was
built around 1900 and is registered with the National Register
of Historic Places. The Company plans to sponsor various
theatrical performances and musicals in the Opera House
beginning November 1996.
Hardware Store. The Company has also partially restored a
circa 1900, 2,000 square feet hardware store (the "Hardware
Store") located on the ground floor of the two-story building
containing the Opera House. It is expected that the Hardware
Store will serve both as a place of business within the local
community and as a tourist attraction in the area. The
Hardware Store features Southwestern artifacts and antiques.
General Store. Also located on the ground floor of the
two-story building containing the Opera House is a general
store (the "General Store"). The Company has partially
restored the circa 1900, 2,000 square feet General Store to
serve as both a tourist attraction and a place of business.
The General Store features antique items for sale to the
public.
Trading Post. Located across the street from the building
containing the Opera House are two buildings that the Company
owns and plans to renovate. Those buildings were built around
1900 and have a total of 3,840 square feet. The Company
proposes to renovate those buildings to serve as an authentic
Indian trading post. The trading post will feature
Southwestern and Indian art for sale to the public.
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Phantom's Restaurant. The Company owns a building located
next to the building containing the Opera House, the Hardware
Store and the General Store. This building is a circa 1900,
2,500 square feet building which the Company intends to
renovate and use as a restaurant to serve local residents and
tourists. The restaurant, to be known as "Phantom's
Restaurant," will offer a menu consistent with the 1900's
theme of the geographic area. Phantom's Restaurant will also
have staging capabilities for theater dining. It is expected
that Phantom's Restaurant will initially only open during
performances at the Opera House.
Tallchief Theater. The Company owns a historic building known
as the Tallchief Theater. The Tallchief Theater is located in
Fairfax, Oklahoma, which is approximately five miles from
Ralston, Oklahoma. The Company anticipates that, once
renovated, the Tallchief Theater will stage various musical
and theatrical productions.
Smith-Williams Hotel. The Company owns a 40-room, historic
hotel which is located across the street from the Tallchief
Theater. The Company anticipates that, once renovated, the
Smith-Williams Hotel will offer accommodations to the public.
The intended restoration of the hotel is expected to reflect
its circa 1920's origin.
Triangle Building. The Company owns a building located in
Pawhuska, Oklahoma, which is known as the Triangle Building
(Pawhuska is approximately 28 miles from Ralston, and 23 miles
from Fairfax). The Triangle Building is located in the center
of downtown Pawhuska and is listed on the National Register of
Historic Places. The Triangle Building is a circa 1914,
20,475 square foot, five story building. It is anticipated
that the first floor will be opened as an art gallery, soda
fountain and gift shop to cater to local residents and
tourists. The Company is in the process of renovating the
building and has leased the second floor to Shadow Mountain
Hospital of Bartlesville, Oklahoma. Proceeds of the lease
with Shadow Mountain Hospital of Bartlesville, Oklahoma are
pledged as collateral for the Company's loan from First
National Bank in Pawhuska.
As described in more detail in the response to Answer 3(g),
the Company's only revenues during 1996 (and only foreseeable
revenues until one or more of the above-described projects is
completed), were rentals received from a tenant in the
Triangle Building. The annual rentals to be received by the
Company from this tenant is $17,232, which amount is not
sufficient to complete the renovations of any of the
above-described properties. As a result, unless the Company
is able to raise additional working capital from loans or
through the sale of capital stock, the Company will not be
able to complete any of the above-described projects.
(b) DESCRIBE HOW THESE PRODUCTS OR SERVICES ARE TO BE PRODUCED OR
RENDERED AND HOW AND WHEN THE COMPANY INTENDS TO CARRY OUT ITS
ACTIVITIES. IF THE COMPANY PLANS TO OFFER A NEW PRODUCT(S),
STATE THE PRESENT STAGE OF DEVELOPMENT, INCLUDING WHETHER OR
NOT A WORKING, PROTOTYPE(S) IS IN EXISTENCE. INDICATE IF
COMPLETION OF DEVELOPMENT OF THE PRODUCT WOULD REQUIRE A
MATERIAL AMOUNT OF THE RESOURCES OF THE COMPANY, AND THE
ESTIMATED AMOUNT. IF THE COMPANY IS OR IS EXPECTED TO BE
DEPENDENT UPON ONE OR A LIMITED NUMBER OF SUPPLIERS FOR
ESSENTIAL RAW MATERIALS, ENERGY OR OTHER ITEMS, DESCRIBE.
DESCRIBE ANY MAJOR EXISTING SUPPLY CONTRACTS.
Opera House. Upon completion of renovations, the Company
plans to stage various theatrical and musical productions at
the Opera House by utilizing local, national and international
performers. The Company is planning to produce a minimum of
five productions during the initial 1996-1997 season. The
estimated amount to complete renovations of the Opera House is
$34,000.
Hardware Store; General Store; Phantom's Restaurant; Trading
Post; and the Triangle Building. Upon completion of
applicable renovations, these locations will be opened and
operated by the Company to transact business consistent with
the description of business
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listed in response to Question 3(a). The estimated amounts to
complete renovations to the Hardware Store and the General
Store, Phantom's Restaurant, the Trading Post and the Triangle
Building are $20,000, $137,000, $140,000 and $470,000,
respectively, for a total estimated amount of $767,000.
Tallchief Theater and Smith-Williams Hotel. Upon completion
of the renovations of these locations, the Company will open
the locations to transact business consistent with the
descriptions listed in response to Question 3(a) above. The
estimated amounts to complete renovations to the Tallchief
Theater and the Smith-Williams Hotel are $300,000 and
$500,000, respectively, for a total estimated amount of
$800,000.
Because the Company's current revenues are insufficient to
permit it to complete the above-described projects, the
Company will need a substantial amount of additional capital.
In order to raise additional capital, the Company will have to
issue additional Common Stock or obtain additional loans from
its shareholders or others.
(c) DESCRIBE THE INDUSTRY IN WHICH THE COMPANY IS SELLING OR
EXPECTS TO SELL ITS PRODUCTS OR SERVICES AND, WHERE
APPLICABLE, ANY RECOGNIZED TRENDS WITHIN THAT INDUSTRY.
DESCRIBE THAT PART OF THE INDUSTRY AND THE GEOGRAPHIC AREA IN
WHICH THE BUSINESS COMPETES OR WILL COMPETE.
INDICATE WHETHER COMPETITION IS OR IS EXPECTED TO BE BY PRICE,
SERVICE, OR OTHER BASIS. INDICATE (BY ATTACHED TABLE IF
APPROPRIATE) THE CURRENT OR ANTICIPATED PRICES OR PRICE RANGES
FOR THE COMPANY'S PRODUCTS OR SERVICES, OR THE FORMULA FOR
DETERMINING PRICES, AND HOW THESE PRICES COMPARE WITH THOSE OF
COMPETITORS' PRODUCTS OR SERVICES, INCLUDING A DESCRIPTION OF
ANY VARIATIONS IN PRODUCT OR SERVICE FEATURES. NAME THE
PRINCIPAL COMPETITORS THAT THE COMPANY HAS OR EXPECTS TO HAVE
IN ITS AREA OF COMPETITION. INDICATE THE RELATIVE SIZE AND
FINANCIAL AND MARKET STRENGTHS OF THE COMPANY'S COMPETITORS IN
THE AREA OF COMPETITION IN WHICH THE COMPANY IS OR WILL BE
OPERATING. STATE WHY THE COMPANY BELIEVES THAT IT CAN
EFFECTIVELY COMPETE WITH THESE AND OTHER COMPANIES IN ITS AREA
OF COMPETITION.
The Company plans to compete in the tourism industry by
staging live theatrical and musical productions and by
offering antiques, art works, and other consumer products for
sale to the local and tourism populations. The Company also
expects to sponsor canoe float trips and raft races in
Ralston. The properties and businesses described in response
to question 3(a) are located within a two-county area of
northeast Oklahoma.
It is expected that the Company's tourism businesses will
compete against other recreational areas located within a one
hundred fifty mile radius of Ralston, Oklahoma. The Company
intends to compete on the basis of available attractions,
price and service.
The Company expects its principal competitors will be Silver
Dollar City, a theme park located in Branson, Missouri; a
popular tourist town in northwest Arkansas known as Eureka
Springs; and various smaller tourist attractions in southeast
Kansas, northwest Arkansas and northeast Oklahoma.
The Company plans to charge between five and twenty dollars
for the musical and theatrical productions to be staged at the
Opera House and the Tallchief Theater. The Company plans to
offer rooms at the Smith-Williams Hotel for eighteen to
twenty-five dollars per night. The prices of merchandise
offered at the Hardware Store, the General Store and the
Trading Post will vary on an item-by-item basis. Phantom's
Restaurant will offer a full range of food services at
competitive market prices.
Due to the depressed economic conditions in the
Ralston/Fairfax/Pawhuska area, labor and other services
required by the Company are expected to be generally less
expensive than in other more economically developed areas. As
a result, the Company expects that its prices will be
generally lower than its competitors.
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Although most of the Company's principal competitors will be
of greater size and will have greater financial and market
strength than that of the Company, the Company knows of no
other entity in Oklahoma which will offer the same variety of
services and recreational activities as will the Company.
(d) DESCRIBE SPECIFICALLY THE MARKETING STRATEGIES THE COMPANY IS
EMPLOYING OR WILL EMPLOY IN PENETRATING ITS MARKET OR IN
DEVELOPING A NEW MARKET. SET FORTH IN RESPONSE TO QUESTION 4
BELOW THE TIMING AND SIZE OF THE RESULTS OF THIS EFFORT WHICH
WILL BE NECESSARY IN ORDER FOR THE COMPANY TO BE PROFITABLE.
INDICATE HOW AND BY WHOM ITS PRODUCTS OR SERVICES ARE OR WILL
BE MARKETED (SUCH AS BY ADVERTISING, PERSONAL CONTACT BY SALES
REPRESENTATIVES, ETC.), HOW ITS MARKETING STRUCTURE OPERATES
OR WILL OPERATE AND THE BASIS OF ITS MARKETING APPROACH
INCLUDING ANY MARKET STUDIES. NAME ANY CUSTOMERS THAT ACCOUNT
FOR, OR BASED UPON EXISTING ORDERS WILL ACCOUNT FOR, A MAJOR
PORTION (20% OR MORE) OF THE COMPANY'S SALES. DESCRIBE ANY
MAJOR EXISTING SALES CONTRACTS.
The Company's marketing strategies include the following:
a. Use of Chambers of Commerce in target
metropolitan areas throughout a one hundred fifty mile radius
market area. This will be accomplished through distribution
of maps, project information, and specific information
designed to reach certain target groups.
b. Direct mailing, which is believed will be
particularly effective when directed to those who have
previously visited the Ralston/Fairfax/Pawhuska area, by
informing recipients of new events that may be upcoming in the
Ralston/Fairfax/Pawhuska area.
c. Radio, television and newspaper advertising.
d. Localized telephone advertising and marketing.
It is anticipated that immediate and substantial marketing
efforts will be required in order for the Company to be
profitable because the local populations of Ralston, Fairfax
and Pawhuska are not sufficient to maintain the businesses
that are planned by the Company. The Company must draw
individuals from larger, nearby metropolitan areas, such as
Tulsa and Oklahoma City, Oklahoma; Joplin and Springfield,
Missouri; and Wichita, Kansas. It is anticipated that the
Company will target its marketing strategies to individuals,
principally to adults, over the age of twenty-one. The
Company does not, however, currently have the financial
resources to effectively market its properties and projects.
(e) STATE THE BACKLOG OF WRITTEN FIRM ORDERS FOR PRODUCTS AND
SERVICES AS OF A RECENT DATE (WITHIN THE LAST 90 DAYS) AND
COMPARE IT WITH THE BACKLOG OF A YEAR AGO FOR THAT DATE.
Not applicable.
(f) STATE THE NUMBER OF THE COMPANY'S PRESENT EMPLOYEES AND THE
NUMBER OF EMPLOYEES IT ANTICIPATES IT WILL HAVE WITHIN THE
NEXT 12 MONTHS. ALSO, INDICATE THE NUMBER BY TYPE OF EMPLOYEE
(I.E., CLERICAL, OPERATIONS, ADMINISTRATIVE, ETC.) THE COMPANY
WILL USE, WHETHER OR NOT ANY OF THEM ARE SUBJECT TO COLLECTIVE
BARGAINING AGREEMENTS, AND THE EXPIRATION DATE(S) OF ANY
COLLECTIVE BARGAINING AGREEMENT(S). IF THE COMPANY'S
EMPLOYEES ARE ON STRIKE, OR HAVE BEEN IN THE PAST THREE YEARS,
OR ARE THREATENING TO STRIKE, DESCRIBE THE DISPUTE. INDICATE
ANY SUPPLEMENTAL BENEFITS OR INCENTIVE ARRANGEMENTS THE
COMPANY HAS OR WILL HAVE WITH ITS EMPLOYEES.
The Company, at present, has three full-time employees and
four part-time employees. After the Company begins operations
of its various properties, the Company anticipates employing
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between fifty and sixty full and part-time employees on both a
temporary and permanent basis, generally as follows:
Opera House, Hardware Store and General Store. The
Opera House is expected to employ three full-time employees,
consisting of a manager, an administrator and a technician.
Up to thirty-five part-time employees could be employed as
required in connection with the staging of performances, such
as performers, technicians and set maintenance, and ticketing
personnel. The Hardware Store portion of the Opera House
building is expected to employ two full-time employees: a
cashier/bookkeeper and a store manager. The General Store
portion of the Opera House building is expected to employ one
full-time manager/clerk.
Phantom's Restaurant. Phantom's Restaurant is
expected to employ ten people, including a full-time manager,
a maitre d', a chef, two cooks, two bus persons, two wait
persons and a cashier. The manager will probably be the only
full-time employee since, initially, Phantom's Restaurant will
only open in conjunction with performances at the Opera House.
Trading Post. The Trading Post is expected to
initially employ one manager and one other full-time
employee.
Smith-Williams Hotel. The Smith-Williams Hotel is
expected to initially employ a full-time manager, in addition
to (on a part-time basis) desk personnel, at least one
cleaning person and maintenance personnel.
Tallchief Theater. The Tallchief Theater is expected
to initially employ a full-time manager and one other
full-time employee. Additional part-time and temporary
personnel will vary depending on the performances.
Triangle Building. The art gallery, soda fountain
and gift shop in the Triangle Building are expected to employ
a manager and various service and sales persons.
No employment agreements or collective bargaining agreements
exist or are anticipated.
The Company has reserved 150,000 shares of its Common Stock
for the purpose of funding a non-qualified employee stock
option plan, of which the Company has issued 130,000 shares at
$1.00 per share. The Company does not intend to issue shares
to employees under the stock option plan at prices which are
less than the fair market value of the Common Stock at the
time the shares are issued.
(g) DESCRIBE GENERALLY THE PRINCIPAL PROPERTIES (SUCH AS REAL
ESTATE, PLANT AND EQUIPMENT, PATENTS, ETC.) THAT THE COMPANY
OWNS, INDICATING ALSO WHAT PROPERTIES IT LEASES AND A SUMMARY
OF THE TERMS UNDER THOSE LEASES, INCLUDING THE AMOUNT OF
PAYMENTS, EXPIRATION DATES AND THE TERMS OF ANY RENEWAL
OPTIONS. INDICATE WHAT PROPERTIES THE COMPANY INTENDS TO
ACQUIRE IN THE IMMEDIATE FUTURE, THE COST OF SUCH ACQUISITIONS
AND THE SOURCES OF FINANCING IT EXPECTS TO USE IN OBTAINING
THESE PROPERTIES, WHETHER BY PURCHASE, LEASE OR OTHERWISE.
As stated above, the Company currently owns properties in
Ralston, Oklahoma, as follows: the building which contains
the Opera House, the General Store and the Hardware Store; the
building which contains the Phantom's Restaurant; and the
buildings which are expected to contain the Trading Post.
Those properties are subject to mortgages as indicated in the
attached financial statements.
The Company currently owns properties in Fairfax, Oklahoma as
follows: the Smith-Williams Hotel and the Tallchief Theater.
Those properties are subject to mortgages as indicated in the
attached financial statements.
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The Company currently owns the Triangle Building located in
Pawhuska, Oklahoma. The Triangle Building is subject to
mortgages as indicated in the attached financial statements.
The Company has one tenant in the Triangle Building for which
a lease agreement is in effect. The lease agreement requires
monthly rentals of $1,436. The lease terminates on December
31, 1997. The proceeds of such lease are pledged as
collateral to secure the Company's loan from First National
Bank in Pawhuska. A copy of such lease is attached as an
exhibit.
The Company's principal place of business is located in
Cleveland, Oklahoma. The Company's office space is rented
from Landmark Restoration Company Limited Partnership, for
which the Company, L. William Hiser, Jr. and Stephen L. Lower
are the general partners. There is no written lease agreement
and there are no lease payments.
(h) INDICATE THE EXTENT TO WHICH THE COMPANY'S OPERATIONS DEPEND
ON OR ARE EXPECTED TO DEPEND UPON PATENTS, COPYRIGHTS, TRADE
SECRETS, NO-HOW OR OTHER PROPRIETARY INFORMATION AND THE STEPS
UNDERTAKEN TO SECURE AND PROTECT THIS INTELLECTUAL PROPERTY,
INCLUDING ANY USE OF CONFIDENTIALITY AGREEMENTS, COVENANTS NOT
TO COMPETE AND THE LIKE. SUMMARIZE THE PRINCIPAL TERMS AND
EXPIRATION DATES OF ANY SIGNIFICANT LICENSE AGREEMENTS.
INDICATE THE AMOUNTS EXPENDED BY THE COMPANY FOR RESEARCH AND
DEVELOPMENT DURING THE LAST FISCAL YEAR, THE AMOUNT EXPECTED
TO BE SPENT THIS YEAR AND WHAT PERCENTAGE OF REVENUES RESEARCH
AND DEVELOPMENT EXPENDITURES WERE FOR THE LAST FISCAL YEAR.
Not Applicable.
(i) IF THE COMPANY'S BUSINESS, PRODUCTS OR PROPERTIES ARE SUBJECT
TO MATERIAL REGULATION (INCLUDING ENVIRONMENTAL REGULATION) BY
FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCIES, INDICATE THE
NATURE AND EXTENT OF REGULATION AND ITS EFFECTS OR POTENTIAL
EFFECTS UPON THE COMPANY.
The operation of the hotel at the Smith-Williams Hotel and all
of the Company's food and beverage facilities will be
regulated by local and state agencies. The Company will need
various food and beverage licenses, as well as various other
licenses, to operate Phantom's Restaurant, the food and
beverage facilities at the Triangle Building, and the
Smith-Williams Hotel. None of these licenses have been
obtained.
(j) STATE THE NAMES OF ANY SUBSIDIARIES OF THE COMPANY, THEIR
BUSINESS PURPOSES AND OWNERSHIP, AND INDICATE WHICH ARE
INCLUDED IN THE FINANCIAL STATEMENTS ATTACHED HERETO. IF NOT
INCLUDED, OR IF INCLUDED BUT NOT CONSOLIDATED, PLEASE EXPLAIN.
Not Applicable.
(k) SUMMARIZE THE MATERIAL EVENTS IN THE DEVELOPMENT OF THE
COMPANY (INCLUDING ANY MATERIAL MERGERS OR ACQUISITIONS)
DURING THE PAST FIVE YEARS, OR FOR WHATEVER LESSER PERIOD THE
COMPANY HAS BEEN IN EXISTENCE. DISCUSS ANY PENDING OR
ANTICIPATED MERGERS, ACQUISITIONS, SPIN-OFFS OR
RECAPITALIZATION. IF THE COMPANY HAS RECENTLY UNDERGONE A
STOCK SPLIT, STOCK DIVIDEND OR RECAPITALIZATION IN
ANTICIPATION OF THIS OFFERING, DESCRIBE (AND ADJUST HISTORICAL
PER SHARE FIGURES ELSEWHERE IN THIS DISCLOSURE DOCUMENT
ACCORDINGLY).
The Company was incorporated under the laws of the State of
Oklahoma on April 16, 1987 under the name Ralston Opera
Company. The initial, primary focus of the Company was to
produce plays at the Opera House. Initial funding for the
Company's operations was from numerous private investors,
with substantial funding by L. William Hiser, Jr., the
previous owner of the building containing the Opera House, the
Hardware Store, and the General Store.
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The Ralston Opera House Restoration Limited Partnership (the
"Opera House Partnership") was formed on January 1, 1990, by
Mr. Hiser with the intent of restoring the building containing
the Opera House, the Hardware Store and the General Store.
Mr. Hiser contributed that building to the Opera House
Partnership in February 1991, and funds provided by the six
initial investors in the Opera House Partnership allowed for
the Opera House to be partially restored. The building
containing the Opera House, the Hardware Store and the General
Store and other assets of the Opera House Partnership were
then acquired by the Company on or about February 14, 1991 in
exchange for 270,626 shares of the Common Stock of the
Company, plus debt issuance and assumption of $73,798, for a
total consideration of $344,424.
Following the Company's acquisition of the building containing
the Opera House, the Hardware Store and the General Store, the
name of the Company was changed to Ralston/Fairfax Riverside
Parkway, Inc. and its focus was broadened to include the
various projects set forth in Answer 3 above.
On February 9, 1993, Mr. Hiser, Stephen L. Lower and Timothy
Tall Chief incorporated an Oklahoma not-for-profit
corporation known as the Ralston Opera Company, which is
expected to serve as the production company for the Opera
House's theatrical productions.
On March 31, 1993, the Triangle Restoration Company A Limited
Partnership (the "Triangle Partnership") was formed by Mr.
Lower with the intent of using the Triangle Partnership to
restore the Triangle Building in Pawhuska, Oklahoma. The
Company contributed the Triangle Building to the Triangle
Partnership in 1993, and funds provided by the investors in
the Triangle Partnership permitted the Triangle Building to be
partially restored. The Triangle Building and other assets of
the Triangle Partnership were then reacquired by the Company
effective December 1, 1995, in exchange for 192,411 shares of
the Common Stock of the Company and assumption of liabilities
of $23,602.
In March 1995, the name of the Company was changed to
Riverside Parkway, Inc.
The Company has recently become the general partner of a
newly-formed Oklahoma limited partnership known as Landmark
Restoration Company Limited Partnership. Landmark Restoration
Company Limited Partnership purchased, restored the property
at which the Company maintains its principal place of business
in Cleveland, Oklahoma. The Company expects that, upon the
complete restoration and capitalization of Landmark
Restoration Company Limited Partnership, the Company will
acquire the assets of Landmark Restoration Company Limited
Partnership in exchange for Common Stock of the Company. It
is expected that the Company will acquire those assets for
approximately 150,000 shares of its Common Stock.
4.
(a) IF THE COMPANY WAS NOT PROFITABLE DURING ITS LAST FISCAL YEAR,
LIST BELOW IN CHRONOLOGICAL ORDER THE EVENTS WHICH IN
MANAGEMENT'S OPINION MUST OR SHOULD OCCUR OR THE MILESTONES
WHICH IN MANAGEMENT'S OPINION THE COMPANY MUST OR SHOULD REACH
IN ORDER FOR THE COMPANY TO BECOME PROFITABLE, AND INDICATE
THE EXPECTED MANNER OF OCCURRENCE OR THE EXPECTED METHOD BY
WHICH THE COMPANY WILL ACHIEVE THE MILESTONES.
The Company's current lack of revenues and other financial
resources will make it extremely difficult to achieve the
following milestones. The Company will need substantially
more capital in order to complete the following milestones.
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<TABLE>
<CAPTION>
EXPECTED MANNER OF
OCCURRENCE OR METHOD
EVENT OR MILESTONE OF ACHIEVEMENT PERIOD/TIME OF ACHIEVEMENT
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<S> <C> <C>
PROJECT 1: (OPENING OF OPERA
HOUSE, HARDWARE STORE AND GENERAL
STORE)
1. Obtain release of mortgage Cash payment to mortgagee, NBC November 1996 (dependent upon
Bank, in the approximate amount availability of funds)
of $20,000
2. Completion of renovations Renovations to light and sound November 1996 (dependent upon
systems availability of funds)
3. Commencement of First performance December 1996 (dependent upon
productions at the Opera availability of funds)
House
PROJECT 2: (OPENING OF PHANTOM'S
RESTAURANT)
1. Completion of restorations Obtain funding to complete December 1997 (dependent upon
electrical, plumbing, and availability of funds)
heating and air conditioning
systems repairs and
renovations; make substantial
repairs and renovations to the
kitchen; and purchase
decorations and furnishings
2. Opening Staffing, advertising, stocking Dependent upon availability of
of food and supplies funds
PROJECT 3: (OPENING OF SMITH-
WILLIAMS HOTEL)
1. Obtain release of mortgage Cash payment to mortgagee, June 1997 (dependent upon
First State Bank, in the availability of funds)
approximate amount of $11,000
2. Restore property Obtain funding to complete As funds are available
electrical, plumbing, and
heating and air conditioning
systems repairs and
renovations; make substantial
repairs and renovations to the
floors and windows; and
purchase decorations
3. Opening Staffing, advertising and June 1998 (dependent upon
promotion availability of funds)
</TABLE>
8
<PAGE> 11
<TABLE>
<CAPTION>
EXPECTED MANNER OF
OCCURRENCE OR METHOD
EVENT OR MILESTONE OF ACHIEVEMENT PERIOD/TIME OF ACHIEVEMENT
------------------ -------------- --------------------------
<S> <C> <C>
PROJECT 4: (OPENING OF THE TRADING
POST)
1. Completion of restorations Obtain funds to complete June 1998 (dependent upon
electrical, plumbing, and availability of funds)
heating and air conditions
systems repairs and
renovations; make substantial
repairs to the roof, floors,
and windows; purchase
decorations; and complete
masonry work
2. Opening Staffing, advertising, stocking Dependent upon availability of
funds
PROJECT 5: (OPENING OF THE
TALLCHIEF THEATER)
1. Obtain release of mortgage Cash payment to mortgagee, June 1997 (dependent upon
First State Bank, in the availability of funds)
approximate amount of $12,000
2. Restore property Obtain funds to complete As funds are available
electrical, plumbing, and
heating and air conditioning
systems repairs and
renovations; make substantial
repairs and renovations to the
floors, windows and balcony;
and purchase decorations
3. Opening theater First performance Following completion of
renovations and restorations
PROJECT 6: (OPENING OF THE
TRIANGLE BUILDING)
1. Obtain release of mortgage Cash payment to John Guthrie June 1997 (dependent upon
and mortgagee, First National availability of funds)
Bank in Pawhuska, in the
aggregate approximate amount of
$50,000
</TABLE>
9
<PAGE> 12
<TABLE>
<CAPTION>
EXPECTED MANNER OF
OCCURRENCE OR METHOD
EVENT OR MILESTONE OF ACHIEVEMENT PERIOD/TIME OF ACHIEVEMENT
------------------ -------------- --------------------------
<S> <C> <C> <C>
2. Restore first and second Obtain funds to complete March 1997 (dependent upon
floors electrical, plumbing, and availability of funds)
heating and air conditioning
systems repairs and
renovations; make substantial
repairs and renovations to the
floors and windows; and
purchase soda fountain and
other fixtures decorations
3. Opening Staffing, advertising and Following completion of
promotion restoration
</TABLE>
4. (b) STATE THE PROBABLE CONSEQUENCES TO THE COMPANY OF DELAYS IN
ACHIEVING EACH OF THE EVENTS OR MILESTONES WITHIN THE ABOVE
TIME SCHEDULE, AND PARTICULARLY THE EFFECT OF ANY DELAYS UPON
THE COMPANY'S LIQUIDITY IN VIEW OF THE COMPANY'S THEN
ANTICIPATED LEVEL OF OPERATING COSTS. (SEE QUESTION NOS. 11
AND 12).
The Company could experience substantial delays in completing
restoration of the Opera House building due to the Company's
lack of funds. The Company will need additional capital in
order to complete its intended restorations to the Opera
House. In addition, there could be substantial delays due to
the completion of renovations to the Opera House and the other
properties of the Company due to factors such as weather
conditions, availability of skilled personnel, etc. Delays in
opening the Opera House for productions would defer revenues
which the Company anticipates to generate during the first
season of productions at the Opera House. This deferral in
revenue would make it less likely that the Company would have
sufficient funds to complete renovations and open the
Phantom's Restaurant. Lack of revenues from operations could
further delay restoration work on the other projects. The
Company will also need funds to stay current in payments to
its various lenders that hold mortgages on the Company's
properties.
11. INDICATE WHETHER THE COMPANY IS HAVING OR ANTICIPATES HAVING WITHIN
THE NEXT 12 MONTHS ANY CASH FLOW OR LIQUIDITY PROBLEMS AND WHETHER OR
NOT IT IS IN DEFAULT OR IN BREACH OF ANY NOTE, LOAN, LEASE OR OTHER
INDEBTEDNESS OR FINANCING ARRANGEMENT REQUIRING THE COMPANY TO MAKE
PAYMENTS. INDICATE IF A SIGNIFICANT AMOUNT OF THE COMPANY'S TRADE
PAYABLES HAVE NOT BEEN PAID WITHIN THE STATED TRADE TERM. STATE
WHETHER THE COMPANY IS SUBJECT TO ANY UNSATISFIED JUDGMENTS, LIENS OR
SETTLEMENT OBLIGATIONS AND THE AMOUNTS THEREOF. INDICATE THE
COMPANY'S PLANS TO RESOLVE ANY SUCH PROBLEMS.
The Company has significant cash flow and liquidity problems
considering that the Company had a net lost of $234,445 for the
eighteen months ending December 31, 1995; a net loss of $32,654 for
the three months ending March 31, 1996; and a net loss of $95,422 for
the six months ended June 30, 1996.
The Company does not foresee resolving its cash flow problems unless
and until it raises substantial capital, completes the projects
described in Answer 4, and those projects are profitable.
10
<PAGE> 13
DESCRIPTION OF SECURITIES
14. THE SECURITIES BEING REGISTERED HEREBY ARE:
[X] Common Stock
[ ] Preferred or Preference Stock
[ ] Notes or Debentures
[ ] Units of two or more types of securities, composed of:
---------------------------------------------------------------
[ ] Other:
---------------------------------------------------------
15. THESE SECURITIES HAVE:
Yes No
[ ] [X] Cumulative voting rights
[ ] [X] Other special voting rights
[ ] [X] Preemptive rights to purchase in new issues of shares
[ ] [X] Preference as to dividends or interest
[ ] [X] Preference upon liquidation
[ ] [X] Other special rights or preferences (specify):
--------
Explain:
-------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
16. ARE THE SECURITIES CONVERTIBLE? [ ] Yes [X] No
Although the securities being registered in this Form 10-SB are not
convertible, the Company has issued $376,311 of 8% Convertible
Promissory Notes which permit the holders thereof to convert all
principal and accrued interest into shares of Common Stock on a ratio
of one share of Common Stock for each dollar of principal and accrued
interest owed to such noteholder. As of June 30, 1996, the total
principal and accrued interest on those 8% Convertible Promissory
Notes was $437,553.
If so, state conversion price or formula. Not Applicable
--------------------------
Date when conversion becomes effective: / /
---- ---- ----
Date when conversion expires: / /
---- ---- ----
17. IF SECURITIES ARE NOTES OR OTHER TYPES OF DEBT SECURITIES:
Not Applicable
18. IF SECURITIES ARE PREFERENCE OR PREFERRED STOCK: Not Applicable
Are unpaid dividends cumulative? [ ] Yes [ ] No
Are securities callable? [ ] Yes [ ] No
Explain:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
19. IF SECURITIES ARE CAPITAL STOCK OF ANY TYPE, INDICATE RESTRICTIONS ON
DIVIDENDS UNDER LOAN OR OTHER FINANCING ARRANGEMENTS OR OTHERWISE:
None
-----------------------------------------------------------------------
20. CURRENT AMOUNT OF ASSETS AVAILABLE FOR PAYMENT OF DIVIDENDS (IF
DEFICIT MUST BE FIRST MADE UP, SHOW DEFICIT IN PARENTHESIS): There was
a stockholders' equity deficit of ($754,868) as of June 30, 1996.
11
<PAGE> 14
DIVIDENDS, DISTRIBUTIONS AND REDEMPTIONS
28. IF THE COMPANY HAS WITHIN THE LAST FIVE YEARS PAID DIVIDENDS, MADE
DISTRIBUTIONS UPON ITS STOCK OR REDEEMED ANY SECURITIES, EXPLAIN HOW
MUCH AND WHEN:
Not applicable.
OFFICERS AND KEY PERSONNEL OF THE COMPANY
29. CHIEF EXECUTIVE OFFICER: TITLE: Chairman of the Board/Chief
Executive Officer
NAME: L. Wm. Hiser, Jr. AGE: 71
OFFICE STREET ADDRESS: TELEPHONE NO.:
1502 S. Boulder (918) 582-7522
Tulsa, Oklahoma 74119
NAME OF EMPLOYERS, TITLES AND DATES OF POSITIONS HELD DURING PAST FIVE
YEARS WITH AN INDICATION OF JOB RESPONSIBILITIES.
Mr. Hiser has been principally engaged in the restoration of
the Opera House since 1984. From 1972 to 1984, he served as
Vice-President and Agency Director of several insurance
companies. From 1969 to 1972, Mr. Hiser served as a director
and co-chairman of the Board with the former New Mexico
Governor John F. Simms in the formation of First Life
Corporation, a New Mexico Holding Corporation, and of Century
Roof Tile Corporation, a company that became the nation's
second largest manufacturer of cement roof tile. Messrs.
Hiser and Simms also formed Time Deposit Corporation, which
purchased various life insurance companies in New Mexico,
Arizona, Oklahoma and Arkansas. Mr. Hiser has also served as
a corporate and financial consultant for various start-up
corporations and, in that regard, held various corporate
offices and directorships. In 1992, Mr. Hiser was awarded
Oklahoma's State Historic Preservation Officer's Citation of
Merit for his restoration of the Ralston Opera House and, in
1996, Mr. Hiser and Mr. Stephen L. Lower received the
Preservation Oklahoma, Inc. award for Best Individual
Contribution to Historic Preservation for their work in
restoring the Opera House.
EDUCATION (DEGREES, SCHOOLS, AND DATE):
From 1946 to 1950, Mr. Hiser attended the University of
Colorado and Morningside College. Mr. Hiser graduated from
the University of Colorado with a business degree in 1950. In
1964, Mr. Hiser was graduated from the graduate school at
Purdue University with a graduate degree in business.
ALSO A DIRECTOR OF THE COMPANY [ X ] YES [ ] NO
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS THAN
FULL TIME:
Mr. Hiser spends his full time working for the Company.
30. CHIEF OPERATING OFFICER: TITLE: President
NAME: Stephen L. Lower AGE: 44
OFFICE STREET ADDRESS: TELEPHONE NO.:
1100 W. Fulton Street (918) 455-9257
Broken Arrow, Oklahoma 74012
12
<PAGE> 15
NAME OF EMPLOYERS, TITLES AND DATES OF POSITIONS HELD DURING PAST FIVE
YEARS WITH AN INDICATION OF JOB RESPONSIBILITIES.
Mr. Lower has been with the Company since October 1990. Mr.
Lower has been involved with Mr. Hiser in several corporations
including Century Roof Tile Corporation and Public Energy,
Inc. His duties have included assisting structuring and
capitalizing corporations. Mr. Lower is a member of the
Carpenters and Joiner Union and has been a Journeyman since
1976. From 1982 to 1989, Mr. Lower was a self-employed
construction contractor. Having experience in the commercial
and residential construction industry, Mr. Lower has been
directly involved in the restoration projects of the Company.
In 1996, Messrs. Lower and Hiser received the Preservation
Oklahoma, Inc. award for Best Individual Contribution to
Historic Preservation for their work in restoring the Opera
House.
EDUCATION (DEGREES, SCHOOLS, AND DATE):
In 1970, Mr. Lower attended Independence Community College in
Independence, Kansas, and majored in Business Administration.
In 1971, Mr. Lower attended Neosho County Community College in
Chanute, Kansas, and majored in Music and Musical Production.
ALSO A DIRECTOR OF THE COMPANY [ X ] YES [ ] NO
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS THAN
FULL TIME:
Mr. Lower works full time for the Company.
31. CHIEF FINANCIAL OFFICER: TITLE: Treasurer/Secretary
NAME: Agnes W. Warren AGE: 77
OFFICE STREET ADDRESS: TELEPHONE NO.:
3212 Blue Sage Drive (405) 256-2634
Woodward, Oklahoma 73801
NAME OF EMPLOYERS, TITLES AND DATES OF POSITIONS HELD DURING PAST FIVE
YEARS WITH AN INDICATION OF JOB RESPONSIBILITIES.
Mrs. Warren was born and raised in Nazareth, Texas. In 1954,
Mrs. Warren and her husband moved to Woodward, Oklahoma where
they purchased Warren's Modern Appliance. They owned and
operated that appliance store until Mr. Warren's retirement in
1983. Mrs. Warren was employed by the Woodward Memorial
Hospital beginning in 1955 and worked as the hospital's
surgical nurse from 1957 until her retirement in 1972. Mrs.
Warren is active in the Senior Citizens organization of
Woodward and is a long-standing member in the Oklahoma Chapter
of the American Red Cross.
EDUCATION (DEGREES, SCHOOLS, AND DATE):
Mrs. Warren completed her nurse's training in Hereford, Texas
in 1954.
ALSO A DIRECTOR OF THE COMPANY [ X ] YES [ ] NO
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS THAN
FULL TIME:
Mrs. Warren does not spend a significant amount of time on
Company matters. She spends such time on Company matters as
is necessary to perform her duties as Treasurer/Secretary and
a director of the Company.
13
<PAGE> 16
32. OTHER KEY PERSONNEL:
NAME: Franklin G. Stecher AGE: 81
TITLE: Executive Vice President
OFFICE STREET ADDRESS: TELEPHONE NO.:
P.O. Box 1742 (405) 256-5068
Woodward, Oklahoma 73802
NAME OF EMPLOYERS, TITLES AND DATES OF POSITIONS HELD DURING PAST FIVE
YEARS WITH AN INDICATION OF JOB RESPONSIBILITIES.
From the 1950's through 1991, Mr. Stecher was the
owner-operator of Stecher Mortuary in Woodward, Oklahoma. Mr.
Stecher is a member of the First Baptist Church of Woodward,
The Lions Club, The Elks Club, the VFW, and the National
Funeral Directors Association. He is the leader of the
Woodward Alzheimer's Support Group, president of the local
American Red Cross Chapter and a driver for American Red Cross
Blood Bank. Mr. Stecher is also a Charter member of The
Plains Indian and Pioneer Historical Foundation and a Charter
Member of Camp Supply Historical Foundation at Fort Supply,
Oklahoma. Mr. Stecher has been retired for more than the
past five years.
EDUCATION (DEGREES, SCHOOLS, AND DATE):
In the early 1950's, Mr. Stecher attended Williams Institute
of Mortuary, Kansas City, Kansas.
ALSO A DIRECTOR OF THE COMPANY [ X ] YES [ ] NO
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS THAN
FULL TIME:
Mr. Stecher does not spend a significant amount of his time on
Company matters. However, he spends such time on Company
matters as is necessary to perform his duties as the Executive
Vice President and a director of the Company.
DIRECTORS OF THE COMPANY
33. NUMBER OF DIRECTORS: 9 . IF DIRECTORS ARE NOT ELECTED ANNUALLY, OR
ARE ELECTED UNDER A VOTING TRUST OR OTHER ARRANGEMENTS, EXPLAIN:
(A) NAME: T.M. Rhoton AGE: 80
OFFICE STREET ADDRESS: TELEPHONE NO.:
P.O. Box 1742 (405) 225-3486
Woodward, Oklahoma 73802
After Mr. Rhoton's graduation from high school and his
father's death in 1934, Mr. Rhoton and his mother moved to
Cheyenne, Oklahoma to operate his family farm, which has been
in the Rhoton family for three generations. Mr. Rhoton has
been retired for more than the past five years.
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS
THAN FULL TIME:
Mr. Rhoton does not spend a significant amount of his time on
Company matters. However, he spends such time on Company
matters as is necessary to perform his duties as a director of
the Company.
14
<PAGE> 17
(B) NAME: Myrtle A. Moody AGE: 82
OFFICE STREET ADDRESS: TELEPHONE NO.:
2210 Western Drive (405) 255-9581
Duncan, Oklahoma 73533
Mrs. Myrtle A. Moody was born in Hanna, Oklahoma and moved to
Oklahoma City at an early age. In June 1993, Mrs. Moody
purchased the Health Food Store in Duncan, Oklahoma. The
store is managed by her nephew and niece.
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS
THAN FULL TIME:
Mrs. Moody does not spend a significant amount of her time on
Company matters. However, she spends such time on Company
matters as is necessary to perform her duties as a director of
the Company.
(C) NAME: Robert J. Williams AGE: 71
OFFICE STREET ADDRESS: TELEPHONE NO.:
Route 3, Box 240 (316) 331-0781
Independence, Kansas 67301
Mr. Williams resides in Independence, Kansas, and is active in
various fraternal organizations, including the Veterans of
Foreign Wars, the American Legion, Masons and the Mirza Temple
Shriners. Mr. Williams is a member of the Independence
Petroleum Club, the Eastern Kansas Oil and Gas Association,
and is the owner of Bob Williams Enterprises. Since 1972, he
has served as President of Culpepper Oil Company. Mr.
Williams does not have any formal education beyond the primary
level, but has gained substantial knowledge and experience
through his business enterprises.
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS
THAN FULL TIME:
Mr. Williams does not spend a significant amount of his time
on Company matters. However, he spends such time on Company
matters as is necessary to perform his duties as a director of
the Company.
(D) NAME: Raymond A. Theis, II AGE: 64
OFFICE STREET ADDRESS: TELEPHONE NO.:
2640 S.E. Evergreen Drive (918) 333-4073
Bartlesville, Oklahoma 74006
In the early 1990's, Mr. Theis retired from Phillips Petroleum
Company in the Research and Development Department and managed
and operated a million dollar land and cattle ranch. He
served in the U.S. Army in Korea as an Army aviator, has a
commercial pilot's license, and is knighted in the Order of
the Campagnons de l'Hypoccas, Foix, France. Mr. Theis is a
council Member of the Osage National Council and on the Board
of Trustees of the Osage Tribal Museum. He is also the
President/CEO of the Osage Cultural Exchange and Chairman of
the Indian Summer Festival in 1995. Mr. Theis belongs to the
Elks Club and is a 32nd Degree Mason.
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS
THAN FULL TIME:
Mr. Theis does not spend a significant amount of his time on
Company matters. However, he spends such time on Company
matters as is necessary to perform his duties as a director of
the Company.
15
<PAGE> 18
(E) NAME: Mark J. Simms AGE: 45
OFFICE STREET ADDRESS: TELEPHONE NO.:
1111 S. Osage (918) 336-5942
Bartlesville, Oklahoma 74003
Mr. Simms is a Bartlesville resident and holds the
distinguished title of Second Speaker of the Osage Nation and
is a Council member of the Osage National Council. In 1972,
Mr. Simms received an Associate Degree in bookkeeping from
Oklahoma State Tech in Okmulgee. From 1970 to 1974, he
attended Oklahoma State University, majoring in business
administration and minoring in psychology. Since 1980, Mr.
Simms has been a business consultant, consulting approximately
seventeen small businesses in the Kansas, Texas and Oklahoma
areas. Mr. Simms has been president and owner of Accent Pest
Control, Inc. since 1984 and is a member of the Bartlesville
Chamber of Commerce. Mr. Simms is also a partner in a rental
house business that owns twenty-one houses in the Bartlesville
area. Mr. Simms has significant experience in dealings with
Native Americans.
INDICATE AMOUNT OF TIME TO BE SPENT ON COMPANY MATTERS IF LESS
THAN FULL TIME:
Mr. Simms does not spend a significant amount of his time on
Company matters. However, he spends such time on Company
matters as is necessary to perform his duties as a director of
the Company.
34. INFORMATION CONCERNING OUTSIDE OR OTHER DIRECTORS (I.E., THOSE NOT
DESCRIBED ABOVE):
Not Applicable
35. (a) HAVE ANY OF THE OFFICERS OR DIRECTORS EVER WORKED FOR OR
MANAGED A COMPANY (INCLUDING A SEPARATE SUBSIDIARY OR DIVISION
OF A LARGER ENTERPRISE) IN THE SAME BUSINESS AS THE COMPANY?
[ ] Yes [x] No
Explain: Not Applicable
(b) IF ANY OF THE OFFICERS, DIRECTORS OR OTHER KEY PERSONNEL HAD
EVER WORKED FOR OR MANAGED A COMPANY IN THE SAME BUSINESS OR
INDUSTRY AS THE COMPANY OR IN A RELATED BUSINESS OR INDUSTRY,
DESCRIBE WHAT PRECAUTIONS IF ANY, (INCLUDING THE OBTAINING OF
RELEASES OR CONSENTS FROM PRIOR EMPLOYERS), HAVE BEEN TAKEN TO
PRECLUDE CLAIMS BY PRIOR EMPLOYERS FOR CONVERSION OR THEFT OF
TRADE SECRETS, NO-HOW OR OTHER PROPRIETARY INFORMATION.
Not Applicable.
(c) IF THE COMPANY HAS NEVER CONDUCTED OPERATIONS OR IS OTHERWISE
IN THE DEVELOPMENT STAGE, INDICATE WHETHER ANY OF THE OFFICERS
OR DIRECTORS HAS EVER MANAGED ANY OTHER COMPANY IN THE
START-UP OR DEVELOPMENT STAGE AND DESCRIBE THE CIRCUMSTANCES,
INCLUDING RELEVANT DATES.
Many of the officers and directors of the Company have managed
or been involved in managing small businesses, some of which
were start-up enterprises. The experience of each officer and
director in managing businesses is described in the
biographical information included in response to Questions 29
through 33.
(d) IF ANY OF THE COMPANY'S KEY PERSONNEL ARE NOT EMPLOYEES BUT
ARE CONSULTANTS OR OTHER INDEPENDENT CONTRACTORS, STATE THE
DETAILS OF THEIR ENGAGEMENT BY THE COMPANY.
Not Applicable.
16
<PAGE> 19
(e) IF THE COMPANY HAS KEY MAN LIFE INSURANCE POLICIES ON ANY OF
ITS OFFICERS, DIRECTORS OR KEY PERSONNEL, EXPLAIN, INCLUDING
THE NAMES OF THE PERSONS INSURED, THE AMOUNT OF INSURANCE,
WHETHER THE INSURANCE PROCEEDS ARE PAYABLE TO THE COMPANY AND
WHETHER THERE ARE ARRANGEMENTS THAT REQUIRE THE PROCEEDS TO BE
USED TO REDEEM SECURITIES OR PAY BENEFITS TO THE ESTATE OF THE
INSURED PERSON OR TO A SURVIVING SPOUSE.
Not Applicable.
36. IF A PETITION UNDER THE BANKRUPTCY ACT OF ANY STATE INSOLVENCY LAW WAS
FILED BY OR AGAINST THE COMPANY OR ITS OFFICERS, DIRECTORS OR OTHER
KEY PERSONNEL, OR A RECEIVER, FISCAL AGENT OR SIMILAR OFFICER WAS
APPOINTED BY A COURT FOR THE BUSINESS OR PROPERTY OF ANY SUCH PERSONS,
OR ANY PARTNERSHIP IN WHICH ANY OF SUCH PERSONS WAS A GENERAL PARTNER
AT OR WITHIN THE PAST 5 YEARS, OR ANY CORPORATION OR BUSINESS
ASSOCIATION OF WHICH ANY SUCH PERSON WAS AN EXECUTIVE OFFICER AT OR
WITHIN THE PAST 5 YEARS, SET FORTH BELOW THE NAME OF SUCH PERSONS, AND
THE NATURE AND DATE OF SUCH ACTIONS.
Not Applicable.
NOTE: AFTER REVIEWING THE INFORMATION CONCERNING THE BACKGROUND OF
THE COMPANY'S OFFICERS, DIRECTORS AND OTHER KEY PERSONNEL,
POTENTIAL INVESTORS SHOULD CONSIDER WHETHER OR NOT THESE
PERSONS HAVE ADEQUATE BACKGROUND AND EXPERIENCE TO DEVELOP AND
OPERATE THIS COMPANY AND TO MAKE IT SUCCESSFUL. IN THIS
REGARD, THE EXPERIENCE AND ABILITY OF MANAGEMENT ARE OFTEN
CONSIDERED THE MOST SIGNIFICANT FACTORS IN THE SUCCESS OF A
BUSINESS.
PRINCIPAL STOCKHOLDERS
37. PRINCIPAL OWNERS OF THE COMPANY (THOSE WHO BENEFICIALLY OWN DIRECTLY
OR INDIRECTLY 10% OR MORE OF THE COMMON AND PREFERRED STOCK PRESENTLY
OUTSTANDING) STARTING WITH THE LARGEST COMMON STOCKHOLDER. INCLUDE
SEPARATELY ALL COMMON STOCK ISSUABLE UPON CONVERSION OF CONVERTIBLE
SECURITIES (IDENTIFYING THEM BY ASTERISK) AND SHOW AVERAGE PRICE PER
SHARE AS IF CONVERSION HAS OCCURRED. INDICATE BY FOOTNOTE IF THE
PRICE PAID WAS FOR A CONSIDERATION OTHER THAN CASH AND THE NATURE OF
ANY SUCH CONSIDERATION.
<TABLE>
<CAPTION>
Percentage
of Total (as
if conversion No. of Shares of
No. of of no 8% Common Stock
Shares of Convertible Issuable Upon
Common Promissory Conversation of 8%
Average Price Stock Notes has Convertible Percentage
Class of Shares: Common Stock per Share(1) Now Held occurred) Promissory Notes(2) of Total(3)
- ----------------------------- ------------ -------- --------- ------------------- -----------
<S> <C> <C> <C> <C> <C>
NAME: $0.97 166,454 14.19% 77,725 15.16%
T.M. Rhoton
OFFICE STREET ADDRESS:
Rt. 2, Box 180
Cheyenne, Oklahoma 73628
TELEPHONE NO.
(405) 225-3486
PRINCIPAL OCCUPATION:
Director
</TABLE>
17
<PAGE> 20
<TABLE>
<CAPTION>
Percentage
of Total (as
if conversion No. of Shares of
No. of of no 8% Common Stock
Shares of Convertible Issuable Upon
Common Promissory Conversation of 8%
Average Price Stock Notes has Convertible Percentage
Class of Shares: Common Stock per Share(1) Now Held occurred) Promissory Notes(2) of Total(3)
- ----------------------------- ------------ -------- --------- ------------------- -----------
<S> <C> <C> <C> <C> <C>
NAME: $0.99 150,214 12.81% 187,261 20.96%
Agnes W. Warren
OFFICE STREET ADDRESS:
3212 Blue Sage Drive
Woodward, Oklahoma 73801
TELEPHONE NO.
(405) 256-2634
PRINCIPAL OCCUPATION:
Treasurer
NAME: 0.98 128,192 10.93%(4) 18,548 9.11%(4)
L. Wm. Hiser, Jr.
OFFICE STREET ADDRESS:
1502 S. Boulder, Apt. 17A
Tulsa, Oklahoma 74119
TELEPHONE NO.
(918) 582-7522
PRINCIPAL OCCUPATION:
Chairman of the Board/CEO
NAME: $1.00 125,000 10.66%(4) 0 7.76%(4)
L. Wm. Hiser, Jr. and/or
Stephen L. Lower
OFFICE STREET ADDRESS:
221 S. Broadway
P.O. Box 802
Cleveland, Oklahoma 74020
TELEPHONE NO.
918-358-3331
PRINCIPAL OCCUPATION:
Officers of the Company
NAME: $0.95 120,497 10.27% 57,171 11.03%
Myrtle A. Moody
OFFICE STREET ADDRESS:
2210 Western Drive
Duncan, Oklahoma 73533
TELEPHONE NO.
(405) 255-9581
PRINCIPAL OCCUPATION:
Officer of the Company
</TABLE>
18
<PAGE> 21
<TABLE>
<CAPTION>
Percentage
of Total (as
if conversion No. of Shares of
No. of of no 8% Common Stock
Shares of Convertible Issuable Upon
Common Promissory Conversation of 8%
Average Price Stock Notes has Convertible Percentage
Class of Shares: Common Stock per Share(1) Now Held occurred) Promissory Notes(2) of Total(3)
- ----------------------------- ------------ -------- --------- ------------------- -----------
<S> <C> <C> <C> <C> <C>
NAME: $0.98 116,436 9.93%(4) 8,130 7.74%(4)
Stephen L. Lower
OFFICE STREET ADDRESS:
1100 W. Fulton Street
Broken Arrow, Oklahoma 74012
TELEPHONE NO.
(918) 455-9257
PRINCIPAL OCCUPATION:
Officer of the Company
</TABLE>
(1) The average price per share is shown as if conversion of all 8%
Convertible Promissory Notes occurred as of June 30, 1996. Certain of
the Common Stock purchased was purchased for $.80 each and services
rendered.
(2) Figures are as of June 30, 1996. Thirteen individuals have loaned the
Company an aggregate of $376,311 in exchange for 8% Convertible
Promissory Notes. The holders of such 8% Convertible Promissory Notes
are permitted to convert all principal and accrued interest into
shares of Common Stock on a ratio of one share of Common Stock for
each dollar of accrued principal and interest. As of June 30, 1996,
the total principal and accrued interest owed under such 8%
Convertible Promissory Notes was $437,553. To date, none of the
holders of such 8% Convertible Promissory Notes have exercised their
rights to convert any of the principal and accrued interest into
shares of Common Stock.
(3) The percentage of total assumes that all principal and accrued
interest owed under the 8% Convertible Promissory Notes has been
converted into Common Stock, in which case the total number of
outstanding shares of Common Stock of the Company as of June 30, 1996
would have been 1,610,331.
(4) The combined percentage of Common Stock now owned by Messrs. Hiser and
Lower is approximately 31.5% of the total outstanding Common Stock.
If all principal and accrued interest owed under the 8% Convertible
Promissory Note was converted to Common Stock as of June 30, 1996,
Messrs. Hiser and Lower would collectively own approximately 24.6% of
the total outstanding Common Stock.
38. NUMBER OF SHARES BENEFICIALLY OWNED BY OFFICERS AND DIRECTORS AS A
GROUP: 920,582 shares (78.5% of total outstanding). If all the
officers and directors had converted the principal and accrued
interest owed to them under the 8% Convertible Promissory Notes, they
would own in the aggregate as of June 30, 1996, 1,344,000 shares
(which, assuming all 8% Convertible Promissory Notes had been
converted to Common Stock, would be 83.46% of the total outstanding).
19
<PAGE> 22
MANAGEMENT RELATIONSHIPS, TRANSACTIONS AND REMUNERATION
39. (a) IF ANY OF THE OFFICERS, DIRECTORS, KEY PERSONNEL OR PRINCIPAL
STOCKHOLDERS ARE RELATED BY BLOOD OR MARRIAGE, PLEASE
DESCRIBE.
Not Applicable.
(b) IF THE COMPANY HAS MADE LOANS TO OR IS DOING BUSINESS WITH ANY
OF ITS OFFICERS, DIRECTORS, KEY PERSONNEL OR 10% STOCKHOLDERS,
OR ANY OF THEIR RELATIVES (OR ANY ENTITY CONTROLLED DIRECTLY
OR INDIRECTLY BY ANY OF SUCH PERSONS) WITHIN THE LAST TWO
YEARS, OR PROPOSES TO DO SO WITHIN THE FUTURE, EXPLAIN. (THIS
INCLUDES SALES OR LEASE OF GOODS, PROPERTY OR SERVICES TO OR
FROM THE COMPANY, EMPLOYMENT OR STOCK PURCHASE CONTRACTS,
ETC.) STATE THE PRINCIPAL TERMS OF ANY SIGNIFICANT LOANS,
AGREEMENTS, LEASES, FINANCING OR OTHER ARRANGEMENTS.
In addition to the loans shown in Part II, the
Company may obtain additional loans from officers,
directors and shareholders as cash flow needs
warrant. Any such transaction must be approved by a
majority of the Company's disinterested directors and
must be made on terms at least as favorable to the
Company as terms available from unaffiliated persons.
Also, as stated above, it is expected that the
Ralston Opera Company, which is a not-for-profit
corporation formed by Messrs. Hiser and Lower and
Timothy Tall Chief, will serve as the production
company for theatrical productions at the Opera
House.
As stated in response to Answer 3(k) above, the
Company has acquired the assets of two limited
partnerships related through common ownerships.
The Company rents its office space from Landmark
Restoration Company Limited Partnership, for which
the Company and Messrs. Hiser and Lower are the
general partners.
The Company has also been advanced funds by a major
stockholder through utilization of his personal
vehicle for Company purposes.
Compensation of $311,186 has been paid to
stockholders for services rendered, including $86,000
paid by the issuance of 86,000 shares of common stock
at $1.00 each.
Certain stockholders periodically receive advances
from the Company which are subsequently used to
offset reimbursement of expenses incurred. Any
resulting balances are classified as advances to or
advances from the stockholders. One stockholder
utilized excess advances to pay towards a note owed
him by the Company in the amount of $4,810.
20
<PAGE> 23
(c) IF ANY OF THE COMPANY'S OFFICERS, DIRECTORS, KEY PERSONNEL OR
10% STOCKHOLDERS HAS GUARANTEED OR CO-SIGNED ANY OF THE
COMPANY'S BANK DEBT OR OTHER OBLIGATIONS, INCLUDING ANY
INDEBTEDNESS TO BE RETIRED FROM THE PROCEEDS OF THIS OFFERING,
EXPLAIN AND STATE THE AMOUNTS INVOLVED.
The following Company bank debt has been guaranteed
or co-signed by Officers and/or Directors of the
Company, as follows:
<TABLE>
<CAPTION>
Approximate
Guarantor/Co-signer Debt Amount
------------------- ---- ------
<S> <C> <C>
Messrs. Hiser and Lower First National Bank
of Pawhuska $ 20,000
Messrs. Hiser and Lower
and Agnes Warren NBC Bank 24,000
L. Wm. Hiser, Jr. First State Bank 22,554
Messrs. Hiser and Lower American National Bank 50,000
L. Wm. Hiser, Jr. John Guthrie 27,544
</TABLE>
40. (a) LIST ALL REMUNERATION BY THE COMPANY TO OFFICERS, DIRECTORS
AND KEY PERSONNEL FOR THE LAST FISCAL YEAR:
These figures reflect the remunerations for the period of July
1, 1995 through June 30, 1996:
<TABLE>
<CAPTION>
Cash Other
---- -----
<S> <C> <C>
Chief Executive Officer $ 16,272 10,000 shares of Common Stock
Chief Operating Officer 37,087 10,000 shares of Common Stock
Chief Accounting Officer 5,000 shares of Common Stock
Key Personnel: Shirley Bowman-
Secretary 7,800 5,000 shares of Common Stock
Total: $ 61,159 30,000 shares of Common Stock
========
Total Directors as a group 9 : $ 61,159 30,000 shares of Common Stock
---
</TABLE>
(b) IF REMUNERATION IS EXPECTED TO CHANGE OR HAS BEEN UNPAID IN
PRIOR YEARS, EXPLAIN:
The Company has no present plans to change the
compensation structure for its officers and
employees. However, the Company does intend to
employ additional employees as its projects and
properties are renovated and begin operations. As
the Company's revenues increase, the Company may be
required to increase the compensation paid to its
officers and key personnel to compensate them for
their additional responsibilities.
(c) IF ANY EMPLOYMENT AGREEMENTS EXIST OR ARE CONTEMPLATED,
DESCRIBE:
There are no existing employment agreements with any
officers, directors or other personnel.
21
<PAGE> 24
41. (a) NUMBER OF SHARES SUBJECT TO ISSUANCE UNDER PRESENTLY
OUTSTANDING STOCK PURCHASE AGREEMENTS, STOCK OPTIONS, WARRANTS
OR RIGHTS: 437,553 shares (as of June 30, 1996) were subject
to issuance under the 8% Convertible Promissory Notes.
INDICATE WHICH HAVE BEEN APPROVED BY SHAREHOLDERS. STATE THE
EXPIRATION DATES, EXERCISE PRICES AND OTHER BASIC TERMS FOR
THESE SECURITIES:
The issuance of the 8% Convertible Promissory Note was not
approved by the shareholders of the Company. Those 8%
Convertible Promissory Notes provide that, upon maturity as
originally agreed or as extended, the amounts due and owing
may be paid in cash or converted to shares of Common Stock of
the Company equal to the sum of the amounts due and owing.
(b) NUMBER OF COMMON SHARES SUBJECT TO ISSUANCE UNDER EXISTING
STOCK PURCHASE OR OPTION PLANS BUT NOT YET COVERED BY
OUTSTANDING PURCHASE AGREEMENTS, OPTIONS OR WARRANTS:
The Company has been loaned $376,311 in exchange for its 8%
Convertible Promissory Notes which permit the holders thereof
to convert all principal and accrued interest into shares of
Common Stock on a ratio of one share of Common Stock for each
dollar of principal and interest owed to such noteholder. As
of June 30, 1996, the total principal and accrued interest
owed under those 8% Convertible Promissory Notes was $437,553.
If so, state conversion price or formula. See above
---------------------
Date when conversion becomes effective: Immediate
Date when conversion expires: Not applicable
(c) DESCRIBE THE EXTENT TO WHICH FUTURE STOCK PURCHASE AGREEMENTS,
STOCK OPTIONS, WARRANTS OR RIGHTS MUST BE APPROVED BY
SHAREHOLDERS.
All such future actions with regard to stock must be approved
by a majority of the Board of Directors or by a committee of
board members pursuant to the Bylaws of the Company.
Shareholder approval is only required if the number of
authorized shares is to be increased to accommodate such
arrangements.
42. IF THE BUSINESS IS HIGHLY DEPENDENT ON THE SERVICES OF CERTAIN KEY
PERSONNEL, DESCRIBE ANY ARRANGEMENTS TO ASSURE THAT THESE PERSONS
WILL REMAIN WITH THE COMPANY AND NOT COMPETE UPON ANY TERMINATION:
The business of the Company is highly dependent on the services of
Messrs. Hiser and Lower. There are no arrangements to ensure that
these persons will remain with the Company and not compete upon
termination. In addition, Mr. Hiser has recently had medical problems
which have prevented him from devoting full attention to the Company.
Mr. Hiser expects that it will be four to six months until he will be
able to work full-time for the Company.
NOTE: AFTER REVIEWING THE ABOVE, POTENTIAL INVESTORS SHOULD CONSIDER
WHETHER OR NOT THE COMPENSATION TO MANAGEMENT AND OTHER KEY
PERSONNEL, DIRECTLY OR INDIRECTLY, IS REASONABLE IN VIEW OF
THE PRESENT STAGE OF THE COMPANY'S DEVELOPMENT.
22
<PAGE> 25
LITIGATION
43. DESCRIBE ANY PAST, PENDING OR THREATENED LITIGATION OR ADMINISTRATIVE
ACTION WHICH HAS HAD OR MAY HAVE A MATERIAL EFFECT UPON THE COMPANY'S
BUSINESS, FINANCIAL CONDITION OR OPERATIONS, INCLUDING ANY LITIGATION
OR ACTION INVOLVING THE COMPANY'S OFFICERS, DIRECTORS OR OTHER KEY
PERSONNEL. STATE THE NAMES OF THE PRINCIPAL PARTIES, THE NATURE AND
CURRENT STATUS OF THE MATTERS, AND AMOUNTS INVOLVED. GIVE AN
EVALUATION BY MANAGEMENT OR COUNSEL, TO THE EXTENT FEASIBLE, OF MERITS
OF THE PROCEEDINGS OR LITIGATION AND THE POTENTIAL IMPACT ON THE
COMPANY'S BUSINESS, FINANCIAL CONDITION OR OPERATIONS.
Neither the Company nor any of its officers, directors or key
personnel is or has been involved in any litigation or administrative
actions related to the Company which could have a material effect on
the Company. The Company knows of no threatened litigation or
administrative actions against it.
MISCELLANEOUS FACTORS
45. DESCRIBE ANY OTHER MATERIAL FACTORS, EITHER ADVERSE OR FAVORABLE, THAT
WILL OR COULD AFFECT THE COMPANY OR ITS BUSINESS (FOR EXAMPLE, DISCUSS
ANY DEFAULTS UNDER MAJOR CONTRACTS, ANY BREACH OF BYLAW PROVISIONS,
ETC.) OR WHICH ARE NECESSARY TO MAKE ANY OTHER INFORMATION IN THIS
DISCLOSURE DOCUMENT NOT MISLEADING OR INCOMPLETE.
Not Applicable.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF CERTAIN RELEVANT FACTORS
47. IF THE COMPANY'S FINANCIAL STATEMENTS SHOW LOSSES FROM OPERATIONS,
EXPLAIN THE CAUSES UNDERLYING THESE LOSSES AND WHAT STEPS THE COMPANY
HAS TAKEN OR IS TAKING TO ADDRESS THESE CAUSES.
The Company's losses are due to the fact that the Company has been
engaged solely in the acquisition and renovation of properties. The
Company plans to begin to open renovated properties for sale of goods
and services to the public so as to generate the necessary revenue to
become profitable. However, the Company will need substantial capital
in order to begin to renovate and open its properties.
48. DESCRIBE ANY TRENDS IN THE COMPANY'S HISTORICAL OPERATING RESULTS.
INDICATE ANY CHANGES NOW OCCURRING IN THE UNDERLYING ECONOMICS OF THE
INDUSTRY OR THE COMPANY'S BUSINESS WHICH, IN THE OPINION OF
MANAGEMENT, WILL HAVE A SIGNIFICANT IMPACT (EITHER FAVORABLE OR
ADVERSE) UPON THE COMPANY'S RESULTS OF OPERATIONS WITHIN THE NEXT 12
MONTHS, AND GIVE A ROUGH ESTIMATE OF THE PROBABLE EXTENT OF THE
IMPACT, IF POSSIBLE.
Not Applicable.
49. IF THE COMPANY SELLS A PRODUCT OR PRODUCTS AND HAS HAD SIGNIFICANT
SALES DURING ITS LAST FISCAL YEAR, STATE THE EXISTING GROSS MARGIN
(NET SALES LESS COST OF SUCH SALES AS PRESENTED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES) AS A PERCENTAGE OF SALES FOR
THE LAST FISCAL YEAR: _____%. WHAT IS THE ANTICIPATED GROSS MARGIN
FOR NEXT YEAR OF OPERATIONS? APPROXIMATELY ____%. IF THIS IS
EXPECTED TO CHANGE, EXPLAIN. ALSO, IF REASONABLY CURRENT GROSS MARGIN
FIGURES ARE AVAILABLE FOR THE INDUSTRY, INDICATE THESE FIGURES AND THE
SOURCE OR SOURCES FROM WHICH THEY ARE OBTAINED.
Not Applicable.
23
<PAGE> 26
50. FOREIGN SALES AS A PERCENT OF TOTAL SALES FOR LAST FISCAL YEAR:
____%. DOMESTIC GOVERNMENT SALES AS A PERCENT OF TOTAL DOMESTIC SALES
FOR THE FISCAL YEAR: _____%. EXPLAIN THE NATURE OF THESE SALES,
INCLUDING ANY ANTICIPATED CHANGES:
Not Applicable.
24
<PAGE> 27
PART II
MARKET PRICE OF AND DIVIDENDS ON THE COMPANY'S COMMON EQUITY
AND OTHER SHAREHOLDER MATTERS
As of September 24, 1996, there were 59 holders of record of Common
Stock of the Company. No cash dividends have been declared on the
Common Stock in the last two fiscal years. The Company's lack of cash
flow and revenues will limit the ability to pay dividends on any
Common Stock in the future.
RECENT SALES OF UNREGISTERED SECURITIES
Within the past three years, the Company has sold, without
registration under the Securities Act of 1933, 267,629 shares of
Common Stock and $314,827 of 8% Convertible Promissory Notes. No
underwriters were involved in such sales. The specifics of such sales
are as follows.
The Company issued to six (6) of its employees 86,000 aggregate shares
of Common Stock under the Company's non-qualified employee stock
option plan for $1.00 per share as follows: 35,000 shares to Mr.
Hiser, 20,000 to Mr. Lower, 10,000 shares to Ms. Bowman, 10,000
shares to Ms. Warren, 6,000 shares to Floyd Allison, and 5,000 shares
to Lee Dallas. Such shares were issued without registration in
reliance upon the exemptions under Sections 3(a)(11), 4(2) and 4(6) of
the Securities Act and Rule 504 of the Securities Act.
On or about December 31, 1995, the Company terminated its office
facility lease with the Tulsa Business Center. At the time of such
termination, the Company owed rental payments of $16,099, of which the
Company paid $7,622. in cash and issued to the Tulsa Business Center
a 8% Convertible Promissory Note with the face value of $8,477. Such
8% Convertible Promissory Note was issued without registration in
reliance upon the exemption under Section 4(2) of the Securities Act
and Rule 504 of the Securities Act.
The Company sold to several individuals, as set forth in the following
table, 181,629 shares of Common Stock and $306,350 of 8% Convertible
Promissory Notes. With the exception of the 122,867 shares of Common
Stock sold from February 21, 1995 through December 18, 1995, all
shares of Common Stock shown in the table below were sold for $1.00
per share. As for the 122,867 shares of Common Stock sold from
February 21, 1995 through December 18, 1995, the consideration for
such shares was $.80 per share plus services rendered. All 8%
Convertible Promissory Notes were issued in exchange for loans from
the various individuals listed below on a dollar-for-dollar basis
(i.e., a $2,000 note was issued in exchange for a $2,000 loan). The
Common Stock and 8% Convertible Promissory Notes as shown in the below
table were sold without registration in reliance upon the exemptions
under Sections 3(a)(11), 4(2) and 4(6) of the Securities Act and Rule
504 of the Securities Act.
Title and Amount of Securities Sold
<TABLE>
<CAPTION>
8%
Convertible
Common Promissory Persons to Whom the
Date Stock Notes Securities were Sold
---- ------------------------------------ --------------------
<S> <C> <C> <C>
10/12/93 900 Agnes W. Warren
11/02/93 10,000 Agnes W. Warren
12/02/93 1,000 Franklin Stecher
12/20/93 15,000 Agnes W. Warren
</TABLE>
25
<PAGE> 28
Title and Amount of Securities Sold
<TABLE>
<CAPTION>
8%
Convertible
Common Promissory Persons to Whom the
Date Stock Notes Securities were Sold
---- ------------------------------------ --------------------
<S> <C> <C> <C>
1/26/94 2,000 Ruric N. Webster
2/04/94 2,000 Agnes W. Warren
2/04/94 3,000 Ruric N. Webster
2/04/94 2,000 Franklin Stecher
2/23/94 23,000 Agnes W. Warren
3/17/94 5,000 Myrtle A. Moody
3/17/94 5,000 T.M. Rhoton
4/01/94 1,200 Robert B. Hanis
4/06/94 1,500 Agnes W. Warren
4/15/94 15,000 Ruric N. Webster
5/17/94 1,000 Agnes W. Warren
5/20/94 5,000 Myrtle A. Moody
6/09/94 2,762 John Daniel
6/09/94 5,000 T.M. Rhoton
6/09/94 1,000 Yvonne D. Byerly
6/23/94 20,000 Myrtle A. Moody
7/13/94 4,000 Ruric N. Webster
7/22/94 100 Kevin Isenbart
7/25/94 2,000 Franklin Stecher
8/16/94 10,000 Agnes W. Warren
8/26/94 5,000 William Hiser/Stephen Lower
9/01/94 10,000 William Hiser/Stephen Lower
10/07/94 5,000 T.M. Rhoton
10/07/94 3,000 Ruric N. Webster
10/18/94 4,000 T.M. Rhoton
10/28/94 3,000 Myrtle A. Moody
10/28/94 1,000 Agnes W. Warren
10/31/94 5,000 Agnes W. Warren
10/31/94 1,000 Franklin Stecher
11/10/94 10,000 T.M. Rhoton
11/14/94 700 Robert B. or Billie K. Hanis
12/02/94 11,000 T.M. Rhoton
12/09/94 4,000 Agnes W. Warren
</TABLE>
26
<PAGE> 29
Title and Amount of Securities Sold
<TABLE>
<CAPTION>
8%
Convertible
Common Promissory Persons to Whom the
Date Stock Notes Securities were Sold
---- ------------------------------------ --------------------
<S> <C> <C> <C>
1/04/95 5,000 William Hiser/Stephen Lower
1/06/95 5,000 T.M. Rhoton
1/06/95 3,000 Ruric N. Webster
2/06/95 1,000 Yvonne D. Byerly
2/21/95 25,000 T.M. Rhoton
2/28/95 8,750 Myrtle A. Moody
3/08/95 8,750 Myrtle A. Moody
3/15/95 16,250 Myrtle A. Moody
3/28/95 4,000 Robert J. or Mary L.
Williams
3/31/95 4,000 Agnes W. Warren
3/31/95 3,750 Agnes W. Warren
4/10/95 1,875 Myrtle A. Moody
4/17/95 12,500 William Hiser
4/17/95 12,500 Stephen Lower
5/02/95 3,750 T.M. Rhoton
5/02/95 2,500 Ruric N. Webster
5/02/95 5,625 Myrtle A. Moody
5/05/95 2,500 Franklin Stecher
5/05/95 1,000 Yvonne D. Byerly
5/23/95 200 Leon Patten
5/23/95 200 William J. or Ardene
Dickerson
6/01/95 2,100 Myrtle A. Moody
6/01/95 100 Raymond Theis
6/07/95 1,000 Myrtle A. Moody
6/16/95 8,917 T.M. Rhoton
6/20/95 250 Vera L. or Adolph Shotts
7/05/95 15,000 Myrtle A. Moody
7/10/95 10,000 Agnes W. Warren
7/17/95 10,000 Myrtle A. Moody
7/28/95 15,000 T.M. Rhoton
7/28/95 5,000 Myrtle A. Moody
7/28/95 1,000 D. Warren
7/28/95 100 Mark J. or Linda Simms
</TABLE>
27
<PAGE> 30
Title and Amount of Securities Sold
<TABLE>
<CAPTION>
8%
Convertible
Common Promissory Persons to Whom the
Date Stock Notes Securities were Sold
---- ------------------------------------ --------------------
<S> <C> <C> <C>
8/29/95 1,000 Stephen Lower
8/31/95 2,000 T.M. Rhoton
9/18/95 2,000 William Hiser
9/30/95 2,500 Myrtle A. Moody
9/30/95 3,000 T.M. Rhoton
10/24/95 2,000 Franklin Stecher
10/30/95 3,000 Myrtle A. Moody
11/07/95 5,000 Myrtle A. Moody
11/24/95 1,000 A.R. Deckard
12/04/95 2,000 Myrtle A. Moody
12/04/95 2,000 T.M. Rhoton
12/04/95 2,000 Franklin Stecher
12/18/95 2,000 Myrtle A. Moody
12/18/95 250 Myrtle A. Moody
12/28/95 1,500 Franklin Stecher
1/15/96 2,000 Weigant Pharmacy
1/15/96 6,000 Franklin Stecher
1/15/96 6,000 T.M. Rhoton
2/20/96 1,000 Myrtle A. Moody
2/22/96 1,000 Franklin Stecher
3/19/96 2,500 Franklin Stecher
3/23/96 1,450 Myrtle A. Moody
4/04/96 2,500 Patricia R. Yarbrough
4/04/96 1,000 Raymond Theis
4/22/96 2,000 Myrtle A. Moody
5/02/96 14,000 William Hiser/Stephen Lower
5/06/96 5,000 D. Warren
5/06/96 5,000 Myrtle A. Moody
5/28/96 9,000 T.M. Rhoton
6/18/96 2,500 Patricia R. Yarbrough
</TABLE>
28
<PAGE> 31
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Oklahoma law, directors of the Company are not liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty, except for liability in connection with a breach of
duty of loyalty, for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, or for
dividend payments or stock purchase redemptions in violation of
Oklahoma law or for any transaction in which a director has derived an
improper personal benefit.
In addition, the Company's Bylaws provide that the Company shall, to
the fullest extent authorized by law, indemnify its officers and
directors and other persons against expenses, judgments, fines and
amounts paid in settlement with threatened, pending or completed suits
or proceedings against such persons by reasons of serving or having
served as officers, directors or in other capacities, except in
relation to matters with respect to which such persons shall be
determined not to have acted in good faith, lawfully or in the best
interests of the Company.
29
<PAGE> 32
MARVIN MORSE, INC.
Certified Public Accountants
================================================================================
6506 South Lewis, Suite 258 Phone (918) 749-1040
Tulsa, Oklahoma 74136-1071 FAX (918) 749-1050
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
Riverside Parkway, Inc.
Cleveland, Oklahoma
We have audited the accompanying balance sheet of Riverside Parkway, Inc. (a
development stage company) as of December 31, 1995, and the related statements
of operations, stockholders' equity, and cash flows for the eighteen months
ended December 31, 1995, and the period from July 1, 1990, through December 31,
1995. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit.
We conducted our audit in accordance with the generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatements. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Riverside Parkway, Inc. as of
December 31, 1995, and the results of its operations and its cash flows for the
eighteen months ended December 31, 1995, and the period from July 1, 1990,
through December 31, 1995, in conformity with generally accepted accounting
principles.
/s/ MARVIN MORSE, INC.
Tulsa, Oklahoma
May 20, 1996
================================================================================
MEMBER AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS
<PAGE> 33
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
DECEMBER 31, 1995
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Cash (Note A) $ 45
Certificates of deposit (Note D) 50,000
Interest receivable 528
Deposits 2,780
Organization costs, net of accumulated
amortization of $940 (Note A) -
Property, plant, and equipment (Notes A,B,C,D,E,F and H) 946,601
Less accumulated depreciation (4,769)
---------
941,832
---------
$ 995,185
=========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
Checks released in excess of bank balance $ 647
Trade accounts payable 37,023
Accrued and withheld taxes 7,533
Advances from stockholders (Note C) 6,240
Notes payable - banks (Note D) 117,972
Notes payable - stockholders (Note E) 306,887
Contracts payable (Note F) 26,814
Note payable - Lessor (Note G) 8,479
Accrued interest 47,802
Advance from Land Mark Restoration (Note K) 5,000
---------
564,397
STOCKHOLDERS' EQUITY (NOTES B, I, J, and K):
Common stock, $1.00 par value, 2,000,000 shares
authorized, 1,172,778 shares issued and outstanding 1,172,778
Common stock discount (122,745)
Additional paid in capital 40,200
Deficit (659,445)
---------
430,788
---------
$ 995,185
=========
</TABLE>
See accompanying notes to financial statements.
F-2
<PAGE> 34
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31,1995
<TABLE>
<CAPTION>
Eighteen months July 1, 1990
ended through
December 31, December 31,
1995 1995
---------------- --------------
<S> <C> <C>
REVENUES (Note A):
Interest income $ 2,730 $ 2,773
(Loss) Gain on disposal of (2,467) 17,033
assets
Miscellaneous income 827 1,123
--------- ----------
TOTAL REVENUE 1,090 20,929
COSTS AND EXPENSES:
Accounting and legal 16,721 60,818
Advertising 3,091 6,340
Amortization 387 940
Auto expense 19,848 50,248
Bank charges 629 2,278
Contract services 29,655 259,010
Contributions - 420
Depreciation (Note A) 4,182 4,769
Insurance 1,064 3,867
Interest 46,506 81,292
Office expense 8,160 13,618
Penalties 1,346 1,347
Rent (Note L) 16,099 32,593
Supplies 1,304 1,304
Taxes 13,472 19,757
Telephone 8,962 29,466
Travel 11,680 42,555
Underwriting - 13,188
Utilities 7,986 12,121
Wages 44,443 44,443
---------- ----------
TOTAL COSTS AND EXPENSES 235,535 680,374
---------- ----------
NET LOSS $ (234,445) $ (659,445)
========== ==========
</TABLE>
See accompanying notes to financial statements.
F-3
<PAGE> 35
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF STOCKHOLDERS' EQUITY
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
<TABLE>
<CAPTION>
Number Common
of Preferred Common Stock
Shares Stock Stock Discount Deficit
------ --------- ------ -------- -------
<S> <C> <C> <C> <C> <C>
Issuance of 4,500 shares
of preferred stock
for initial working capital 4,500 $ 45,000 $ $ $
Issuance of 270,626 shares
of common stock to acquire
the assets of Ralston Opera
Company Limited Partnership
at $1.00 per share 270,626 270,626 (75,507)
Conversion of 4,500
shares of preferred stock
to 111,654 shares of
common stock at $1.00
per share (4,500) (45,000)
(111,654) 111,654
Issuance of 8,059 shares
of common stock to pay
dividends to preferred
stockholders at $1.00
per share 8,059 8,059 (8,059)
Accrued dividends owed to
preferred stockholders (1,786)
Sale of 379,627 shares of
common stock for cash
at $1.00 per share 379,627 379,627
</TABLE>
(CONTINUED)
F-4
<PAGE> 36
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF STOCKHOLDERS' EQUITY
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
<TABLE>
<CAPTION>
Number Common
Of Preferred Common Stock
Shares Stock Stock Discount Deficit
------ --------- ------ -------- -------
<S> <C> <C> <C> <C> <C>
Issuance of 23,434 shares
of common stock to
individuals for payment of
debt at $1.00 per share 23,434 $ $ 23,434 $ $
Issuance of 66,000 shares
of common stock for
services at $1.00 per share 66,000 66,000
Issuance of 120,967 shares
of common stock to individuals
at $.80 per share 120,967 120,967 (26,316)
Issuance of 192,411 shares of
common stock to acquire the
assets of Triangle Restoration
Company Limited Partnership
at $.89 per share. 192,411 192,411 (20,922)
Net Loss (649,600)
--------- --------- ---------- --------- ---------
BALANCE, December 31, 1995 1,172,778 $ - $1,172,778 $(122,745) $(659,445)
========= ========= ========== ========== =========
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE> 37
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
<TABLE>
<CAPTION>
Eighteen July 1, 1990
months ended through
December 31, December 31,
1995 1995
------------- ---------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss $ (234,445) $ (659,445)
Adjustments to reconcile net loss to net cash
consumed by operating activities:
Loss (Gain) on sale of property 2,467 (17,033)
Depreciation 4,182 4,769
Amortization 387 940
Increase in advances from stockholders 8,758 6,240
Increase in trade accounts payable 30,204 37,023
Increase in checks released in excess of
bank balance 647 647
Increase in deposits (1,050) (2,780)
Increase in accrued and withheld taxes 7,533 7,533
----------- ----------
(181,317) (622,106)
NET CASH (CONSUMED) BY OPERATING ACTIVITIES
CASH FLOWS FROM INVESTING ACTIVITIES:
Increase in interest receivable (528) (528)
Acquisition of land and buildings (15,656) (314,711)
Collection of affiliate advances 13,559 -
Improvements to building (373,793) (606,846)
Purchase of office furniture and equipment - (8,011)
Payment of organization costs - (940)
Purchase of certificates of deposit (50,000) (50,000)
Acquisition of partnership assets 54,752 -
------------ ------------
NET CASH (CONSUMED) BY INVESTING ACTIVITIES $ (371,666) $ (981,036)
</TABLE>
(CONTINUED)
F-6
<PAGE> 38
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1. 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
<TABLE>
<CAPTION>
Eighteen July 1, 1990
months ended through
December 31, December 31,
1995 1995
-------------- --------------
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of preferred stock $ - $ 45,000
Redemption of preferred stock - (45,000)
Issuance of common stock 384,823 1,212,978
Proceeds of notes payable - stockholders 124,681 311,881
Payment of notes payable (4,992) (4,992)
Proceeds of note payable - lessor 8,477 8,477
Proceeds of notes payable - banks 69,107 117,972
Proceeds of contract financing - 44,400
Payments on contracts (17,586) (17,586)
Increase in accrued interest payable 24,741 47,802
Advance from affiliate 5,000 5,000
Discount on issuance of common stock (47,238) (122,745)
------------- -------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 547,013 1,603,187
NET (DECREASE) INCREASE IN CASH (5,970) 45
CASH, BEGINNING OF PERIOD 6,015 -
------------- -------------
CASH, END OF PERIOD $ 45 $ 45
------------- -------------
SUPPLEMENTAL DISCLOSURE OF
CASH FLOWS INFORMATION:
Interest paid $ 7,241 $ 16,605
------------- -------------
Income taxes paid $ - $ -
============= =============
SUPPLEMENTAL DISCLOSURE OF NON-CASH
INVESTING AND FINANCING ACTIVITIES:
Disposition of property in exchange for cancellation
of bank indebtedness and contract payable $ 23,400 $ 37,048
============= =============
</TABLE>
See accompanying notes to financial statements.
F-7
<PAGE> 39
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
NOTE A - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Business
Riverside Parkway, Inc. was originally formed with the intent of
operating a production company to utilize the Ralston Opera House in
Ralston, Oklahoma. The financial statements include activity prior to
June 30, 1990; however, substantially all transactions occurred
subsequent to that date.
The Company has acquired and pursued restoration of the Ralston
Opera House and several other properties in the city of Ralston,
Oklahoma and the neighboring city of Fairfax. Effective December 31,
1995, it also acquired a commercial office building located in
Pawhuska, Oklahoma (Note B).
Planned operations include the presentation of entertainment at
the Ralston Opera House and related services of meals and lodging from
the restored facility which are owned by the Company. The Company also
intends to engage in commercial office facility rental at the Pawhuska
property.
Operations through December 31, 1995, have consisted primarily of
raising capital through common stock sales, acquiring and financing of
real estate, restoration of real estate, and administrative functions.
Basis of Financial Statements
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets
and liabilities at the date of the financial statements and the
reported amounts of expenses during the reporting period. Actual
results could differ from those estimates.
(CONTINUED)
F-8
<PAGE> 40
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
NOTE A - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED):
Property and Equipment
Property and equipment are recorded at cost, including allocated
salaries of Company employees and labor costs of independent
contractors. Depreciation has not been provided for buildings and
improvements, since they had not been placed in service for the
purpose acquired at December 31, 1995. Depreciation of office
furniture and equipment is provided utilizing accelerated methods over
periods of time believed to approximate estimated service lives of
five and seven years.
Revenue and Expense Recognition
Planned principle operations have not commenced as of December 31,
1995; thus, no revenue had been earned.
Costs and expenses are recognized in the period in which they are
incurred.
Organization Costs
Costs associated with the organization of Riverside Parkway, Inc.
were amortized over a period of five years using the straight-line
method.
Cash and Cash Equivalents
For purposes of the statement of cash flows, the Company considers
all bank accounts to be cash equivalents. It has no other cash
equivalents.
F-9
<PAGE> 41
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
NOTE B - ACQUISITIONS:
The Company acquired the assets of Ralston Opera Company Limited
Partnership on February 15, 1991, in exchange for 270,626 shares of
common stock with a par value of $1.00 per share, plus debt issuance
and assumption of $73,798, a total consideration of $344,424. The
assets acquired consisted principally of land, building, and
improvements.
The Company and the limited partnership were related through
common ownership; thus, the assets were recorded utilizing the cost
basis of the limited partnership, increased by amounts agreed to by
the parties as a return of investment to the sellers. Such additional
amount was not a significant portion of the total purchase price. The
additional payment was allocated to the cost of the Ralston Opera
House since the majority of original funds had been utilized towards
its purchase and restoration.
The assets of Triangle Restoration Co., an Oklahoma limited
partnership, were acquired effective December 31, 1995, in exchange
for 192,411 shares of $1.00 par common stock and assumption of the
partnership's liabilities of $23,602.
The partnership was created on March 31, 1993, when Riverside
Parkway, Inc. transferred real estate to the partnership in exchange
for a 49% ownership interest. The property was transferred at
historical cost. Improvements were made to the property while owned
by the limited partnership. Since the corporation and limited
partnership were related through common ownership, the assets were
recorded utilizing historical cost of the corporation and the limited
partnership. Excess of par value of common stock issued over
historical cost of $20,922 was classified as common stock discount.
F-10
<PAGE> 42
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD ENDING JULY 1, 1990, AND THROUGH DECEMBER 31, 1995
NOTE C - RELATED PARTY TRANSACTIONS:
The Company has acquired the assets of two limited partnerships
related through common ownership (Note B). It also was advanced funds
by a major stockholder through utilization of his personal vehicle for
Company purposes.
Compensation of $311,186 paid to stockholders is included in
contract services and includes $86,000 paid by the issuance of 86,000
shares of common stock at $1.00 each.
Certain stockholders periodically receive advances from the
corporation which are subsequently used to offset reimbursement of
expenses incurred. Any resulting balances are classified as advances
to or advances from the stockholders. One stockholder utilized excess
advances to pay towards a note owed him by the Company in the amount
of $4,810.
<TABLE>
<CAPTION>
NOTE D - NOTES PAYABLE - BANKS:
<S> <C>
Notes payable to 1st State Bank due June 1, 1996,
including interest ranging from 7.5% to 20%. Certain
of the notes are collateralized by real estate known
as Tallchief Theater, with a carrying value of
$22,448. The remainder are unsecured. $ 23,864
Note payable to American National Bank which matured
May 2, 1996, including interest at 8.5%. The note is
collateralized by certificates of deposit, and the
bank has agreed to renew it until October 29, 1996. 50,000
Note to NBC Bank payable in eighteen monthly
installments commencing May 15, 1996, of 12.5%.
The Ralston Opera property which has a
carrying value of $473,803, serves as collateral. 19,008
</TABLE>
(CONTINUED)
F-11
<PAGE> 43
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
<TABLE>
<CAPTION>
NOTE D - NOTES PAYABLE - BANKS (CONTINUED):
<S> <C>
Note payable to First National Bank of Pawhuska due
June 11, 1996, including interest at the rate of 12%.
Office lease proceeds serve as collateral. 20,060
11.75% unsecured note to First National Bank of
Pawhuska due May 27, 1996. 5,040
--------
$117,972
========
NOTE E - NOTES PAYABLE - STOCKHOLDERS:
Seven stockholder notes with interest of 8% and due
upon demand. The Company plans to collateralize the
notes with all its property and improvements. $306,887
========
</TABLE>
NOTE F - CONTRACTS PAYABLE:
<TABLE>
<CAPTION>
Contracts payable are as follows:
ORIGINAL
ORIGINAL PROPERTY CONTRACT AMOUNT BALANCE DATE
DATE DESCRIPTION AMOUNT PAID DUE DUE
- -------- ----------------- -------- --------- --------- -------
<S> <C> <C> <C> <C> <C>
5-01-91 Triangle Building $ 41,600 $ 15,812 $ 25,788 Demand
5-31-91 Tallchief Theatre 2,800 1,774 1,026 Demand
-------- --------- ---------
$ 44,400 $ 17,586 $ 26,814
======== ========= =========
</TABLE>
The properties are pledged as collateral for performance of the
contracts and will be forfeited if the contracts are not consummated
or renegotiated.
F-12
<PAGE> 44
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
NOTE G - NOTE PAYABLE - LESSOR:
8% unsecured note, payable on demand.
The note was for payment of office facilities
rental (Note L). $8,479
======
NOTE H - LEASING ACTIVITIES:
The office building acquired from Triangle Restoration Co. (Note
B) has two tenants for which long-term lease agreements are in effect.
One of the leases, however, is dependent upon funding by a
federal grant, and no material rents have been collected. The stated
annual rental is $85,050 through December 31, 1997.
The remaining lease agreement requires monthly rentals of $1,436
through December, 1997. The proceeds of this lease are pledged as
collateral for a bank loan (Note D).
Minimum future annual rentals as of December 31, 1995, are as
follows:
<TABLE>
<CAPTION>
Year ending
December 31, Amount
------------ ------
<S> <C>
1996 $17,232
1997 17,232
-------
$34,464
=======
</TABLE>
NOTE I - STOCK COMMITMENTS:
The Company has authorized 64,000 shares of common stock for
future issue to key personnel.
F-13
<PAGE> 45
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
EIGHTEEN MONTHS ENDED DECEMBER 31, 1995, AND
THE PERIOD FROM JULY 1, 1990, THROUGH DECEMBER 31, 1995
(CONTINUED)
NOTE J - COMMON STOCK DISCOUNT:
The recorded net assets of the Company as of December 31, 1995,
were less than the par value of the common stock shares issued;
therefore, the difference has been reflected as a reduction of common
stock issued, in accordance with generally accepted accounting
principles.
NOTE K - COMMON STOCK:
The Company issued 11,000 shares of stock to its board Chairman
in 1991 for services provided in 1988 and 1989.
NOTE L - RENT EXPENSE:
The Company terminated its office facility lease during the
eighteen months ended December 31, 1995. Total rental payments for the
period were $16,099, which included a note of $8,479 (Note G).
NOTE M - SUBSEQUENT EVENT:
The Company became the general partner of Land Mark Restoration
Company, an Oklahoma limited partnership, in September, 1995. The
partnership had no activity until February, 1996, at which time it
purchased a building located in Cleveland, Oklahoma with notes
totaling $27,335.
F-14
<PAGE> 46
[MARVIN MORSE, INC. LETTERHEAD]
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENT
THREE MONTHS ENDED MARCH 31, 1996
<PAGE> 47
[MARVIN MORSE, INC. LETTERHEAD]
Board of Directors and Stockholders
Riverside Parkway, Inc.
Cleveland, Oklahoma
We have compiled the accompanying balance sheet of Riverside
Parkway, Inc. (a Development Stage Company) as of March 31,
1996, and the related statement of operations for the three
months then ended in accordance with Statements on Standards
for Accounting and Review Services issued by the American
Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of
financial statements information that is the representation of
management. We have not audited or reviewed the accompanying
financial statements and, accordingly, we do not express an
opinion or any other form of assurance on them.
Management has elected to omit substantially all of the
disclosures and the statement of cash flows required by
generally accepted accounting principles. If the omitted
disclosures were included in the financial statements, they
might influence the user's conclusions about the company's
financial position, results of operations, and cash flow.
Accordingly, these financial statements are not designed for
those who are not informed about such matters.
The company's financial statements do not present cumulative
revenues and expenses and cash flows from inception.
Presentation of this information is required by generally
accepted accounting principles for a development stage
company; however, management believes it is impractical to
develop the information.
MARVIN MORSE, INC.
Tulsa, Oklahoma
May 21, 1996
<PAGE> 48
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
MARCH 31,1996
<TABLE>
<CAPTION>
ASSETS
------
<S> <C>
Cash $ 1,231
Certificates of deposit 50,000
Interest receivable 528
Deposits 2,780
Advance to Partnership 200
Property, plant, and equipment 950,896
Less accumulated depreciation 5,573
------------
945,323
------------
$ 1,000,062
============
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
LIABILITIES:
Trade accounts payable $ 37,413
Accrued and withheld taxes 8,680
Advances from stockholders 6,290
Notes payable - banks 130,574
Notes payable - stockholders 326,834
Notes payable - lessor 8,477
Contracts payable 26,042
Accrued interest 57,618
STOCKHOLDERS' EQUITY:
Common stock, $1.00 par value, 2,000,000 shares
authorized, 1,172,778 shares issued and
outstanding 1,172,778
Common stock discount (122,745)
Additional paid in capital 40,200
Deficit (692,099)
----------
398,134
----------
$1,000,062
==========
</TABLE>
See accountants' report.
-2-
<PAGE> 49
RIVERSIDE PARKWAY, INC,
(A DEVELOPMENT STAGE COMPANY)
<TABLE>
<CAPTION>
STATEMENT OF OPERATIONS
THREE MONTHS ENDED MARCH 31,1996
<S> <C>
REVENUES:
Rental income $ 5,004
---------
TOTAL REVENUE 5,004
COSTS AND EXPENSES:
Accounting and legal 10,788
Advertising 230
Auto expense 3,293
Bank charges 117
Contract services 3,489
Depreciation 804
Interest 11,027
Office expense 194
Supplies 7
Taxes 347
Telephone 861
Travel 413
Utilities 1,664
Wages 4,424
---------
TOTAL COSTS AND EXPENSES 37,658
---------
NET LOSS $ (32,654)
=========
</TABLE>
See accountants' report.
-3-
<PAGE> 50
[MARVIN MORSE, INC. LETTERHEAD]
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
SIX MONTHS ENDED JUNE 30, 1996
<PAGE> 51
[MARVIN MORSE, INC. LETTERHEAD]
Board of Directors and Stockholders
Riverside Parkway, Inc.
Cleveland, Oklahoma
We have compiled the accompanying balance sheet of Riverside Parkway, Inc. (a
Development Stage Company) as of June 30, 1996, and the related statement of
operations for the six months then ended in accordance with Statements on
Standards for Accounting and Review Services issued by the American Institute
of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. We have not audited or
reviewed the accompanying financial statements and, accordingly, we do not
express an opinion or any other form of assurance on them.
Management has elected to omit substantially all of the disclosures and the
statement of cash flows required by generally accepted accounting principles.
If the omitted disclosures were included in the financial statements, they
might influence the user's conclusions about the company's financial position,
results of operations, and cash flow. Accordingly, these financial statements
are not designed for those who are not informed about such matters.
The company's financial statements do not present cumulative revenues and
expenses and cash flows from inception. Presentation of this information is
required by generally accepted accounting principles for a development stage
company; however, management believes it is impractical to develop the
information.
/s/ MARVIN MORSE, INC.
Tulsa, Oklahoma
August 9, 1996
<PAGE> 52
RIVERSIDE PARKWAY, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
JUNE 30,1996
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Cash $ 96
Certificates of deposit 50,000
Interest receivable 528
Deposits 3,480
Advance to partnership 666
Property, plant, and equipment 950,896
Less accumulated depreciation (10,096)
-----------
940,800
-----------
$ 995,570
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
Trade accounts payable $ 37,658
Accrued and withheld taxes 6,768
Advances from stockholders 16,976
Notes payable - banks 128,574
Notes payable - stockholders 367,835
Note payable - lessor 8,477
Contracts payable 24,499
Accrued interest 69,418
STOCKHOLDERS' EQUITY:
Common stock, $1.00 par value, 2,000,000 shares
authorized, 1,172,778 shares issued and outstanding 1,172,778
Common stock discount (122,745)
Additional paid-in capital 40,200
Deficit (754,868)
-----------
335,365
-----------
$ 995,570
===========
</TABLE>
See accountants' report.
-2-
<PAGE> 53
RIVERSIDE PARKWAY, INC,
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30,1996
<TABLE>
<S> <C>
REVENUES:
Rental income $ 10,868
-----------
TOTAL REVENUE 10,868
COSTS AND EXPENSES:
Accounting and legal 19,447
Advertising 230
Automobile expense 6,074
Bank charges 184
Contract services 26,116
Depreciation 5,327
Dues and memberships 250
Interest 25,116
Office expense 473
Repairs and maintenance 503
Supplies 125
Taxes 864
Telephone 2,596
Travel 3,758
Utilities 4,053
Wages 11,174
-----------
TOTAL COSTS AND EXPENSES 106,290
-----------
NET LOSS $ (95,422)
===========
</TABLE>
See accountants' report.
-3-
<PAGE> 54
PART III
INDEX TO EXHIBITS
The following exhibits have been filed as part of this registration statement:
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
3.(i) Certificate of Incorporation of the Company
3.(ii) Bylaws of the Company
4.1 Form of Common Stock Certificate
4.2 Form of 8% Convertible Promissory Note
10.1 Promissory Note, dated July 20, 1993 of the
Company to NBC Bank
10.2 Real Estate Mortgage, dated July 20, 1993 of
the Company to NBC Bank
10.3 Modification Agreement to a Promissory Note
and to a Mortgage held by NBC Bank, dated
April 3, 1995
10.4 Loan Extension Agreement for Promissory Note
and Mortgage held by NBC Bank, dated May 1,
1996, and Notice and Consent to Extension by
Guarantors
10.5 Note of the Company to First National Bank in
Pawhuska, dated February 10, 1995
10.6 Security Agreement, dated February 10, 1995 of
the Company to First National in Pawhuska
10.7 Contract of Sale, dated June 30, 1993, among
John Guthrie, Lyn Guthrie and the Company
10.8 Triangle Building Lease Agreement between the
Company and Shadow Mountain Hospital of Tulsa,
Oklahoma
</TABLE>
III-1
<PAGE> 55
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act
of 1934, the registrant caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
RIVERSIDE PARKWAY, INC.
BY: /s/ STEPHEN L. LOWER
-------------------------------------
Stephen L. Lower, President
BY: /s/ L. WM. HISER, JR.
-------------------------------------
L. Wm. Hiser, Jr., Chief Executive
Officer and Chairman of the Board
Date: September 30, 1996
III-2
<PAGE> 56
INDEX TO EXHIBITS
The following exhibits have been filed as part of this registration statement:
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
3.(i) Certificate of Incorporation of the Company
3.(ii) Bylaws of the Company
4.1 Form of Common Stock Certificate
4.2 Form of 8% Convertible Promissory Note
10.1 Promissory Note, dated July 20, 1993 of the
Company to NBC Bank
10.2 Real Estate Mortgage, dated July 20, 1993 of
the Company to NBC Bank
10.3 Modification Agreement to a Promissory Note
and to a Mortgage held by NBC Bank, dated
April 3, 1995
10.4 Loan Extension Agreement for Promissory Note
and Mortgage held by NBC Bank, dated May 1,
1996, and Notice and Consent to Extension by
Guarantors
10.5 Note of the Company to First National Bank in
Pawhuska, dated February 10, 1995
10.6 Security Agreement, dated February 10, 1995 of
the Company to First National in Pawhuska
10.7 Contract of Sale, dated June 30, 1993, among
John Guthrie, Lyn Guthrie and the Company
10.8 Triangle Building Lease Agreement between the
Company and Shadow Mountain Hospital of Tulsa,
Oklahoma
</TABLE>
<PAGE> 1
EXHIBIT 3.(i)
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
[STATE OF OKLAHOMA SEAL]
CERTIFICATE OF TRANSCRIPT
I, the undersigned Secretary of State of the State of Oklahoma, do
hereby certify that the annexed transcript has been compared with the record on
file in my office of which it purports to be a copy, and that the same is full,
true and correct copy of.
CERTIFICATE OF INCORPORATION
AND
ALL AMENDMENTS THERETO
OF
RIVERSIDE PARKWAY, INC.
FORMERLY: RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
FORMERLY: RALSTON OPERA COMPANY
[STATE OF OKLAHOMA SEAL] In testimony whereof, I hereto set my hand
and cause to be affixed the Great Seal of
the State of Oklahoma, done at the City of
Oklahoma City this 8TH day of AUGUST, A.D.
1996.
/s/ [ILLEGIBLE]
----------------------------------------
Secretary of State
By: /s/ KAY JONES
-------------------------------------
<PAGE> 2
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
CERTIFICATE OF INCORPORATION
To all to Whom these Presents shall Come, Greetings:
WHEREAS, The Certificate of Incorporation, duly signed and verified, of
RALSTON OPERA COMPANY
- --------------------------------------------------------------------------------
has been filed in the office of the Secretary of State as provided by the laws
of the State of Oklahoma.
NOW THEREFORE, I, the undersigned, Secretary of State of the State of
Oklahoma by virtue of the powers vested in me by law, do hereby issue this
Certificate of Incorporation.
IN TESTIMONY WHEREOF, I hereunto set my hand and cause to be affixed the
Great Seal of the State of Oklahoma.
Filed at the City of Oklahoma
City this 16th day of April,
A.D., 1987
[GREAT SEAL OF THE STATE OF OKLAHOMA]
/s/ JEANNETTE B. EDMONDSON
[1907] ----------------------------
Secretary of State
By: /s/ CHERYL E. BRADLEY
-------------------------
SOS Corp. Key: DB 455515
--------------
<PAGE> 3
CERTIFICATE OF INCORPORATION
OF
RALSTON OPERA COMPANY
FIRST: The name of the corporation (herein referred to as the
"Company") is: RALSTON OPERA COMPANY.
SECOND: The address of the registered office of the Company in the
State of Oklahoma is 124 East Fourth Street, Suite 400, Tulsa, Tulsa
County, Oklahoma. The name of its registered agent of the Company at such
address is W. Thomas Finley.
THIRD: The purposes of the Company are (i) to establish, acquire, own,
hold, sell, lease, conduct, and manage an operatic, musical, and/or theatrical
production Company for the purpose of providing dramatic, operatic, and musical
performances, concerts, motion pictures, intellectual and instructive
entertainments, and to do every other act or acts and thing or things
incidental to or connected with the aforesaid; and (ii) to engage in, promote,
conduct, and carry on lawful acts or activities for which corporations may be
organized under the General Corporation Act of the State of Oklahoma.
FOURTH: The total number of shares of capital stock of all classes that
the Company shall have authority to issue is 20,000 shares. The designation of
each class, the number of shares of each class, and the par value of the shares
of each class are as follows:
<TABLE>
<CAPTION>
CLASS SERIES NUMBER OF SHARES PAR VALUE TOTAL
- ----- ------ ---------------- --------- -----
<S> <C> <C> <C> <C>
COMMON A 15,000 $ 1.00 $15,000.00
PREFERRED A 5,000 $10.00 $50,000.00
</TABLE>
A. PREFERRED STOCK
1. Shares of Preferred Stock may be issued in one or more series
at such time or times and for such consideration as the Board of
Directors may determine. All shares of any one series shall be of equal
rank and identical in all respects.
2. Authority is hereby expressly granted to the Board of
Directors to fix from time to time, by resolution or resolutions
providing for the establishment and/or issuance of any series of
Preferred Stock, the designation of the series and the powers,
preferences, and rights of the shares of the series, and the
qualifications, limitations, or restrictions thereof, including the
following:
<PAGE> 4
(a) The distinctive designation and number of shares comprising
the series, which number may, except where otherwise provided by the
Board of Directors in creating the series, be increased or decreased
from time to time by action of the Board of Directors, but not below the
number of shares then outstanding;
(b) The rate of dividends, if any, on the shares of that series,
whether dividends shall be noncumulative, cumulative to the extent
earned, or cumulative and if cumulative, from which date or dates,
whether dividends shall be payable in cash, property, or rights, or in
shares of the Company's capital stock, and the relative rights of
priority, if any, of payment of dividends on shares of that series over
shares of any other series;
(c) Whether the shares of that series shall be redeemable and,
if so, the terms and conditions of the redemption, including the date or
dates upon or after which they shall be redeemable, the event or events
upon or after which they shall be redeemable or at whose option they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at
different redemption dates, or the property or rights, including
securities of any other corporation, payable in case of redemption;
(d) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms
and amounts payable into the sinking fund;
(e) The rights to which the holders of the shares of that series
shall be entitled in the event of voluntary or involuntary liquidation,
dissolution, or winding-up of the Company, and the relative rights of
priority, if any, of payment of shares of that series in any such event;
(f) Whether the shares of that series shall be convertible into
or exchangeable for shares of stock of any other class or any other
series and, if so, the terms and conditions of the conversion or
exchange, including the rate or rates of conversion or exchange, the
date or dates upon or after which they shall be convertible or
exchangeable, the duration for which they shall be convertible or
exchangeable, the event or events upon or after which they shall be
convertible or exchangeable or
-2-
<PAGE> 5
at whose option they shall be convertible or exchangeable, and the
method, if any, of adjusting the rates of conversion or exchange in the
event of a stock split, stock dividend, combination of shares, or
similar event;
(g) Whether the issuance of any additional shares of the series,
or of any shares of any other series, shall be subject to restrictions
as to issuance, or as to the powers, preferences, or rights of any such
other series; and
(h) Any other preferences, privileges, and powers and relative,
participating, optional, or other special rights and qualifications,
limitations, or restrictions of the series, as the Board of Directors
may deem advisable and as shall not be inconsistent with the provisions
of the Certificate of Incorporation and to the full extent now or
hereafter permitted by the laws of the State of Oklahoma.
3. Payment of dividends shall be as follows:
(a) The holders of any series of Preferred Stock, in preference
to the holders of the Common Stock and the holders of any junior-ranking
series of Preferred Stock, shall be entitled to receive, as and when
declared by the Board of Directors out of funds legally available
therefor, dividends in cash, property, or rights, or in shares of the
Company's capital stock, at the rate for such series fixed in with the
provisions of paragraph A(2)(b) of this Article FOURTH.
(b) No dividend shall be paid upon, or declared or set aside
for, any series of Preferred Stock with respect to any dividend period
unless:
i All dividends on all senior-ranking series of Preferred
Stock shall, for the same dividend period, and for all past
dividend periods, to the extent the dividends on such
senior-ranking series of Preferred Stock are cumulative, have
been fully paid or declared and provided for; and
ii At the same time, a like proportionate dividend with
respect to the same dividend period, ratably in proportion to the
respective annual dividend rates fixed
-3-
<PAGE> 6
therefor, shall be paid upon, or declared and provided for, all
equally ranking series of Preferred Stock.
(c) As long as any shares of any series of Preferred Stock shall
be outstanding, in no event shall any dividend, whether in cash,
property, excluding shares of Common Stock of the Company, or rights, be
paid upon, or declared and provided for, nor shall any distribution be
made, on the outstanding shares of Common Stock, unless all dividends on
all cumulative series of Preferred Stock with respect to all past
dividend periods and unless all dividends on all series of Preferred
Stock for the then current dividend period shall have been paid upon, or
declared and provided for, and unless the Company shall not be in
default under any of its obligations with respect to any sinking fund
for any series of Preferred Stock. The foregoing provisions of this
paragraph (c) shall not, however, in any way prohibit or limit the
Company from making a dividend or other distribution of shares of Common
Stock on the outstanding shares of Common Stock.
(d) No dividends shall be deemed to have accrued on any share of
any series of Preferred Stock with respect to any period prior to the
date of the original issuance of the share or the dividend payment date
immediately preceding or following the date of original issue, except as
may otherwise be provided in the resolution or resolutions of the Board
of Directors creating such series. Accruals of dividends shall not bear
interest.
4. In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Company, the holders of the shares of any
series of Preferred Stock then outstanding shall be entitled to receive out of
the net assets of the Company, whether capital or surplus, but only in
accordance with the preferences, if any, provided for such series, before any
distribution or payment shall be made to the holders of the Common Stock and
the holders of any junior-ranking series of Preferred Stock, the amount per
share fixed by the resolution or resolutions of the Board of Directors to be
received by the holders of such shares on such voluntary or involuntary
liquidation, dissolution, or winding-up, as the case may be. If the payment
shall have been made in full to the holders of all outstanding Preferred Stock
of all series, or duly provided for, the remaining net
-4-
<PAGE> 7
assets of the Company shall be available for distribution to the holders of the
Common Stock to the extent the Board of Directors shall determine as provided
for in paragraph B(2) of this Article FOURTH. If, upon any such voluntary or
involuntary liquidation, dissolution, or winding-up, the net assets of the
Company available for distribution among the holders of any one or more series
of the Preferred Stock which (i) are entitled to a preference over the holders
of the Common Stock upon such voluntary or involuntary liquidation,
dissolution, or winding-up, and (ii) rank equally in connection therewith,
shall be insufficient to make payment in full of the preferential amount to
which the holders of such shares shall be entitled, then the assets shall be
distributed among the holders of each series of the Preferred Stock ratably
according to the respective amounts to which they would be entitled in respect
of the shares held by them upon the distribution if all amounts payable on or
with respect to the shares were paid in full. Neither the consolidation nor
merger of the Company, nor a reduction of the capital of the Company, nor the
sale, lease, or conveyance of all or part of its assets, whether for cash,
securities, or other property, shall be deemed a voluntary or involuntary
liquidation, dissolution, or winding-up of the Company within the meaning of
the foregoing provisions.
B. COMMON STOCK
1. After the requirements with respect to preferential dividends, if
any, on any series of Preferred Stock, fixed pursuant to paragraph A(2)(b) and
as further provided for in paragraph A(3), both of this Article FOURTH, shall
have been met, and after the Company shall have complied with all requirements,
if any, with respect to the setting aside of sums in a sinking fund for the
purchase or redemption of shares of any series of Preferred Stock, fixed
pursuant to paragraph A(2)(d) of this Article FOURTH, then, and not otherwise,
the holders of Common Stock shall receive, to the extent permitted by law and
to the extent the Board of Directors shall determine, such dividends as may be
declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount, if any, fixed
pursuant to paragraph A(2)(e) and as further provided for in paragraph A(4),
both of this Article FOURTH, to be distributed to the holders of any series of
Preferred Stock in the event of the voluntary or involuntary liquidation,
dissolution, or winding-up of the Company, the holders of the Common Stock
shall be
-5-
<PAGE> 8
entitled to receive such of the remaining assets of the Company of
whatever kind available for distribution to the extent the Board of
Directors shall determine.
3. Except as may be otherwise required by law or by this
Certificate of Incorporation, each holder of Common Stock shall have one
vote in respect of each share of such stock hold by him on all matters
voted upon by the stockholders.
C. PREEMPTIVE RIGHTS
No holder of shares of the Company of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe
for, purchase, or receive any shares of stock of the Company of any
class, now or hereafter authorized, or any options or warrants for such
shares, or any rights to subscribe to or purchase such shares, or any
securities convertible into or exchangeable for such shares, which may at
any time or from time to time be issued, sold, or offered for sale by the
Company.
FIFTH: The incorporator is W. Thomas Finley, whose mailing address is
124 East Fourth Street, Suite 400, Tulsa, Oklahoma 74103
SIXTH: In furtherance and not in limitation of the powers, rights,
privileges, and discretionary authorities granted and conferred by statute, the
Board of Directors is expressly authorized as follows:
A. To make, alter, amend, or repeal the Bylaws of the Company.
B. To authorize and cause to be executed or granted mortgages,
security interests, and liens upon the real and personal property of the
Company.
C. To set apart out of any of the funds of the Company available
for dividends a reserve or reserves for any proper purpose and to
abolish or reduce any such reserve in the manner in which it was
created.
D. By a majority of the whole Board of Directors, to designate
one or more committees, each committee to consist of one (1) or more of
the directors of the Company. The board may designate one (1) or more
directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution or in the Bylaws of
the
-6-
<PAGE> 9
Company, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the Company,
and may authorize the seal of the Company to be affixed to all papers
which may require it; provided, however, that the Bylaws may provide
that in the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a
quorum,, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or
disqualified member.
E. When and as authorized by the affirmative vote of the holders
of a majority of the stock issued and outstanding having voting power
given at a shareholders' meeting duly called upon such notice as is
required by law, or when authorized by the written consent of the
holders of a majority of the voting stock issued and outstanding, to
sell, lease, or exchange all or substantially all of the property and
assets of the Company, including its goodwill and its corporate
franchises, upon such terms and conditions and for such consideration
(which may consist in whole or in part of money or property including
shares of stock in, and/or other securities of, any other corporation or
corporations) as the Board of Directors shall deem expedient and in the
best interests of the Company.
SEVENTH: Whenever a compromise or arrangement is proposed between the
Company and its creditors or any class of them, and/or between the Company and
its shareholders or any class of them, any court of equitable jurisdiction
within the State of Oklahoma, on the application in a summary way of the
Company, or of any creditor or shareholder thereof, or on the application of
any receiver or receivers appointed for the Company under the provisions of
section 1106 of Title 18 of the Oklahoma Statutes, or on the application of
trustees in dissolution or of any receiver or receivers appointed for the
Company under the provisions of Section 1100 of Title 18 of the Oklahoma
Statutes, order a meeting of the creditors or class of creditors, and/or of the
shareholders or class of shareholders, of the Company, as the case may be, to
be summoned in such manner as the court directs. If a majority in number
representing three fourths (3/4ths) in value of the creditors or class of
creditors, and/or of the shareholders or class of shareholders of the Company,
as the case may be, agree to any compromise, arrangement, or to any
reorganization of the Company as a consequence of such compromise or
arrangement, then the compromise, arrangement, or the reorganization shall, if
sanctioned by the court to which the application has been made, be binding on
all the creditors or class
-7-
<PAGE> 10
of creditors and/or on all the shareholders or class of shareholders of the
Company, as the case may be, as well as on the Company.
EIGHTH: Meetings of shareholders may be held within or without the
State of Oklahoma, as the Bylaws may provide. The books of the Company may be
kept (subject to applicable law) inside or outside the State of Oklahoma at
such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Company. Elections of directors need not be
by written ballot unless the Bylaws of the Company shall so provide.
NINTH: To the extent permitted by law, no contract or transaction
between the Company and one or more of its directors or officers, or between
the Company and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for
that reason; or solely because the directors or officers are present at or
participate in the meeting of the board or committee thereof that authorizes
the contract or transaction; or solely because the directors or officers or
their votes are counted for such purpose.
TENTH: The Board of Directors is expressly authorized to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, other than an action by or in the
right of the Company, by reason of the fact that such person is or was a
director, officer, employee, or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expense, including attorneys' fees, judgments, fines, and settlement
amounts paid to the extent and in the manner permitted by the laws of the State
of Oklahoma.
ELEVENTH: The Company reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by law; and all rights, powers, privileges,
and discretionary authorities granted or conferred upon the shareholders herein
are granted subject to this reservation.
TWELFTH: The Company is to have perpetual existence.
THIRTEENTH: The private property or assets of the stockholders of the
Company shall not to any extent whatsoever be subject to the payment of the
debts of the Company.
-8-
<PAGE> 11
FOURTEENTH: The number of directors of the Company shall be such number
as from time to time shall be fixed by, or in the manner provided in, the
Bylaws of the Company. None of the directors need be a stockholder or a
resident of the State of Oklahoma.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Oklahoma General Corporation
Act, does make this Certificate, hereby declaring, affirming, acknowledging,
and certifying under penalties of perjury that this is the act and deed of the
undersigned, and that the facts herein stated are true, and accordingly has
hereunto set his hand this fifteenth day of April, 1987.
/s/ W. THOMAS FINLEY
------------------------------------
W. Thomas Finley, Sole Incorporator
-9-
<PAGE> 12
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
AMENDED
CERTIFICATE OF INCORPORATION
WHEREAS, The Certificate of Incorporation, executed and acknowledged by
RALSTON OPERA COMPANY
- --------------------------------------------------------------------------------
has been filed in the office of the Secretary of State as provided by the laws
of the State of Oklahoma.
NOW THEREFORE, I, the undersigned, Secretary of State of the State of
Oklahoma by virtue of the powers vested in me by law, do hereby issue this
certificate evidencing such filing.
IN TESTIMONY WHEREOF, I hereunto set my hand and cause to be affixed the
Great Seal of the State of Oklahoma.
Filed in the City of Oklahoma
City this 5th day of
[GREAT SEAL OF THE STATE OF OKLAHOMA] February, 1991.
[1907] /s/ [ILLEGIBLE]
----------------------------
Secretary of State
By: /s/ [ILLEGIBLE]
-------------------------
<PAGE> 13
AMENDMENT TO THE CERTIFICATE OF INCORPORATION
OF RALSTON OPERA COMPANY
By unanimous Resolution of the Board of Directors of Ralston Opera
Company, the Certificate of Incorporation of Ralston Opera Company as filed
with the Oklahoma Secretary of State on April 16, 1987, is hereby amended as
follows:
FOURTH:
The total number of shares of capital stock of all classes that the
Company shall have authority to issue is One Million, Five Thousand (1,005,000)
shares. The designation of each class, the number of shares of each class, and
the par value of the shares of each class are as follows:
<TABLE>
<CAPTION>
CLASS SERIES NUMBER OF SHARES PAR VALUE TOTAL
- ----- ------ ---------------- --------- -----
<S> <C> <C> <C> <C>
Common A 1,000,000 $ 1.00 1,000,000.00
Preferred A 5,000 1.00 5,000.00
</TABLE>
This Amendment to the Certificate of Incorporation of Ralston Opera
Company shall be effective immediately upon its filing with the Secretary of
State for the State of Oklahoma. A copy of the Resolution authorizing this
Amendment has been attached hereto.
/s/ L. WILLIAM HISER, JR.
-------------------------------
L. William Hiser, Jr.,
President and Chairman of Board
of Ralston Opera Company,
on behalf of the Board
of Directors of the Company
I, L. William Hiser, Jr., do hereby acknowledge that the foregoing
Amendment to the Certificate of Incorporation of Ralston Opera Company is the
act and deed of the Company, and the facts therein are true.
/s/ L. WILLIAM HISER
--------------------------
L. William Hiser
<PAGE> 14
A C K N 0 W L E D G M E N T
STATE OF OKLAHOMA )
) ss.
County of Tulsa )
On this 4 DAY of Feb. 1991, before me the undersigned, a Notary Public
in and for said County and State, personally appeared to me L. William Hiser,
Jr., known to me to be the person whose name is subscribed to the within and
foregoing instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
/s/ INETA N. WELLS
-------------------------
Notary Public
MY COMMISSION EXPIRES:
DECEMBER 9, 1992
- ----------------------
<PAGE> 15
OKLAHOMA TAX COMMISSION
BUSINESS TAX
STATE OF OKLAHOMA (405) 521-3161
2501 LINCOLN BLVD. DIVISION
OKLAHOMA CITY, OKLAHOMA 73194
February 7, 1991
John Kennedy
Secretary of State
State Capitol Building
Oklahoma City, OK 73105
RE: RALSTON OPERA COMPANY
QUALIFIED: 4/16/87
Dear Mr. Kennedy:
This is to certify that the records of this office show that the referenced
corporation has filed a Franchise Tax Return and is in good standing through
June 30, 1991.
No certification is made as to any corporate Franchise Taxes which may be due
but not yet assessed, nor which have been assessed and protested. This letter
may not, therefore, be accepted for purposes of dissolution or withdrawal.
Sincerely,
BUSINESS TAX DIVISION
/s/ JEFF KISER
Jeff Kiser, Supervisor
Franchise Tax Section
JK:CT:jj
<PAGE> 16
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
AMENDED
CERTIFICATE OF INCORPORATION
WHEREAS, The Certificate of Incorporation, executed and acknowledged by
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
- --------------------------------------------------------------------------------
has been filed in the office of the Secretary of State as provided by the laws
of the State of Oklahoma.
NOW THEREFORE, I, the undersigned, Secretary of State of the State of
Oklahoma by virtue of the powers vested in me by law, do hereby issue this
certificate evidencing such filing.
IN TESTIMONY WHEREOF, I hereunto set my hand and cause to be affixed the
Great Seal of the State of Oklahoma.
Filed in the City of Oklahoma
City this 11th day of March,
[GREAT SEAL OF THE STATE OF OKLAHOMA] 1991.
[1907] /s/ [ILLEGIBLE]
----------------------------
Secretary of State
By: /s/ BRENDA L. COFFMAN
-------------------------
<PAGE> 17
AMENDMENT TO THE CERTIFICATE OF INCORPORATION
OF RALSTON OPERA COMPANY
By Resolution of the Board of Directors of Ralston Opera Company, the
Certificate of Incorporation of Ralston Opera Company as filed with the
Oklahoma Secretary of State on April 16, 1987, is hereby amended as follows:
FIRST:
The name of the corporation (herein referred to as the "Company") is:
Ralston/Fairfax Riverside Parkway, Inc.
This Amendment to the Certificate of Incorporation of Ralston Opera
Company shall be effective immediately upon its filing with the Secretary of
State for the State of Oklahoma. A copy of the Resolution authorizing this
Amendment has been attached hereto.
/s/ L. WILLIAM HISER, JR.
-------------------------------
L. William Hiser, Jr.,
President and Chairman of Board
of Ralston Opera Company,
on behalf of the Board
of Directors of the Company
I, L. William Hiser, Jr., do hereby acknowledge that the foregoing
Amendment to the Certificate of Incorporation of Ralston Opera Company is the
act and deed of the Company, and the facts therein are true.
/s/ L. WILLIAM HISER
-----------------------
L. William Hiser
<PAGE> 18
A C K N 0 W L E D G M E N T
STATE OF OKLAHOMA )
) ss.
County of Tulsa )
On this 8th day of March, 1991, before me the undersigned, a Notary
Public in and for said County and State, personally appeared to me L. William
Hiser, Jr., known to me to be the person whose name is subscribed to the within
and foregoing instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal, the day and year in this certificate first above written.
/s/ JANICE KATE MODE
------------------------------
Notary Public
My Commission Expires:
12/4/91
- ----------------------
<PAGE> 19
RESOLUTION
WHEREAS, we, the undersigned, as Members of the Board of Directors of
the Ralston Opera Company, are empowered to exercise all such powers and do all
such acts and things as may be exercised or done by the Company pursuant to
Article III, Section 8 of the Bylaws of the Ralston Opera Company; and
WHEREAS, a need has arisen to change the name of the Company to more
accurately reflect the nature and scope of it's planned business activities;
BE IT RESOLVED, that by a majority vote of the undersigned Members,
the Board of Directors of the Ralston Opera Company hereby authorizes the
filing of an amendment to the Certificate of Incorporation to change the name
of the Company to Ralston/Fairfax RIVERSIDE PARKWAY, Inc.
Dates this 27 day of February, 1991.
Members of the Board
/s/ L. WILLIAM HISER, JR.
-----------------------------
L. William Hiser, Jr.
/s/ CLARENCE E. KENNEDY
-----------------------------
Clarence E. Kennedy
/s/ JOHNNIE SUMMY
-----------------------------
Johnnie Summy
/s/ SHIRLEY L. BOWMAN
-----------------------------
Shirley Bowman
/s/ G.W. PEASE, III
-----------------------------
G.W. Pease, III
-----------------------------
Agnes W. Warren
-----------------------------
Franklin Stecher
<PAGE> 20
-----------------------------
T.M. Rhoton
-----------------------------
Robert J. Williams
<PAGE> 21
OFFICE OF THE SECRETARY OF STATE
STATE OF OKLAHOMA
AMENDED
CERTIFICATE OF INCORPORATION
WHEREAS, The Certificate of Incorporation, executed and acknowledged by
RIVERSIDE PARKWAY, INC.
has been filed in the office of the Secretary of State as provided by the laws
of the State of Oklahoma.
NOW THEREFORE, I, the undersigned, Secretary of State of the State of
Oklahoma by virtue of the powers vested in me by law, do hereby issue this
certificate evidencing such filing.
IN TESTIMONY WHEREOF, I hereunto set my hand and cause to be affixed the
Great Seal of the State of Oklahoma.
Filed in the City of Oklahoma
[GREAT SEAL OF THE STATE OF OKLAHOMA] City this 10th day of March,
1995.
[1907]
/s/ JIM COLE
----------------------------
Secretary of State
By: /s/ BRENDA L. COFFMAN
-------------------------
<PAGE> 22
FEE: $50.00
(Minimum)
AMENDED
FILE IN DUPLICATE CERTIFICATE OF INCORPORATION
(After Receipt of Payment of Stock)
PRINT CLEARLY
SOS CORP. KEY:
DB 455515-3
- --------------
PLEASE NOTE: This form MUST be filed with a letter from the Oklahoma Tax
Commission stating the franchise tax has been paid for the current fiscal year.
If the authorized capital is increased in excess of fifty thousand dollars
($50,000.00), the filing fee shall be an amount equal to one-tenth of one
percent (1/10 of 1%) of such increase.
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA, 101 State Capitol Bldg.,
Oklahoma City, OK 73105.
The undersigned Oklahoma corporation, for the purpose of amending its
certificate of incorporation as provided by Section 1077 of the Oklahoma
General Corporation Act, hereby certifies:
1. A. The name of the corporation is: RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
- --------------------------------------------------------------------------------
B. As amended: The name of the corporation has been changed to:
RIVERSIDE PARKWAY, INC.
- --------------------------------------------------------------------------------
2. A. No change, as filed ________________.
B. As amended: The address of the registered office in the State of
Oklahoma and the name of the registered agent at such address is;
Stephen L. Lower 7136 S. Yale, Ste. 300 Tulsa Tulsa 74136
- --------------------------------------------------------------------------------
NAME STREET ADDRESS CITY COUNTY ZIP CODE
(P.O. BOXES ARE NOT ACCEPTABLE)
3. A. No Change, as filed ______________.
B. As amended: The duration of the corporation is:______________________
4. A. No change, as filed _____________.
B. As amended: The purpose or purposes for which the corporation is formed
are:
5. A. No change, as filed ______________.
B. As amended: The aggregate number of the authorized shares, itemized by
class, par value of shares, shares without par value, and series, if any,
within a class is:
NUMBER OF SHARES SERIES PAR VALUE PER SHARE
Common 2,000,000 1.00
--------- --------
Preferred
--------- --------
TOTAL NO. SHARES: 2,000,000 TOTAL AUTHORIZED CAPITAL: 2,000,000
--------- ---------
<PAGE> 23
That at a meeting of the Board of Directors, a resolution was duly
adopted setting forth the foregoing proposed amendment(s) to the Certificate of
Incorporation of said corporation, declaring said amendment(s) to be advisable
and calling a meeting of the shareholders of said corporation for consideration
thereof.
That thereafter, pursuant to said resolution of its Board of
Directors, a meeting of the shareholders of said corporation was duly called
and held, at which meeting the necessary number of shares as required by
statute were voted in favor of the amendment(s).
SUCH AMENDMENT(S) WAS DULY ADOPTED IN ACCORDANCE WITH 18 O.S., 11077.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by its _________________ President and attested by its
__________________ Secretary, this ______________ day of _________________,
19 ______.
/s/ STEPHEN L. LOWER
---------------------------
By X President
----
STEPHEN L. LOWER
---------------------------
(PLEASE PRINT NAME)
ATTEST:
/s/ L. WM. HISER, JR.
- -------------------------
CEO X Secretary
-----
L. WM. HISER, JR.
- -------------------------
(PLEASE PRINT NAME)
<PAGE> 24
[OKLAHOMA TAX COMMISSION LETTERHEAD]
MARCH 10, 1995
Secretary of State
Room 101, State Capitol Building
Oklahoma City, OK 73105
Re: RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
Qualification date: April 16, 1987
Dear Secretary:
This is to certify that the files of this office show the referenced
corporation has filed a Franchise Tax return of the fiscal year ending June 30,
1995 and has paid the Franchise Tax as shown by said return.
No certification is made as to any corporate Franchise Taxes which may be due
but not yet assessed, nor which have been assessed and protested.
This letter may not therefore be accepted for purposes of dissolution or
withdrawal.
Sincerely,
OKLAHOMA TAX COMMISSION
/s/ [ILLEGIBLE]
Business Tax Division
Registration Section
<PAGE> 1
Exhibit 3.(ii)
BYLAWS
OF
RIVERSIDE PARKWAY, INC.
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting
An annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and to fill any vacancies, and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 2. Notice of Annual Meeting
Notice of each annual meeting stating the place, date, and hour of
such meeting shall be given to each shareholder entitled to vote thereat not
less than ten days nor more than sixty days before the date of the meeting
unless otherwise required by law.
Section 3. Special Meetings
Special meeting of the stockholders, for any purpose of purposes
prescribed in the notice of the meeting, may be called by the Board of
Directors or the chief executive officer and shall be held at such place, on
such date, and at such time as they or he shall fix.
Section 4. Notice of Special Meetings
Written notice of the place, date, and time of all meetings of the
stockholders shall be given not less then ten not more than sixty days before
the date on which the meeting is to be held to each stockholder entitled to
vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the General
Corporation Law of the State of Oklahoma or the Certificate of Incorporation).
<PAGE> 2
Section 5. Quorum
At any meeting of the stockholders, the holders of a majority of all
of the shares of the stock entitled to vote at the meeting, present in person
or by proxy, shall constitute a quorum for all purposed, unless or except to
the extent that the presence of a larger number may be required by law, but in
no event shall a quorum consist of less than a majority of the shares entitled
to vote at the meeting. If quorum shall fail to attend any meeting, the
chairman of the meeting or the holders of a majority of the shares of the stock
entitled to vote who are present, in person of by proxy, may adjourn the
meeting to another place, date, or time. If a notice of any adjourned special
meeting of stockholders is sent to all stockholders entitled to vote thereat,
stating that it will be held with those present constituting a quorum, then,
except as otherwise required by law, those present at such adjourned meeting
shall constitute a quorum, and all matters shall be determined by a majority of
the votes cast at such meeting.
Section 6. Conduct of Business
Such person as the Board of Directors may have designated or, in the
absence of such a person, the highest ranking officer of the Company who is
present shall call to order any meeting of the stockholders and act as chairman
of the meeting. In the absence of the secretary of the Company, the secretary
of the meeting shall be such person as the chairman appoints. The chairman of
any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to him in order.
Section 7. Proxies and Voting
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing filed in
accordance with the procedure established for the meeting. Each stockholder
shall have one vote for every share of stock entitled to vote that is
registered in his name on the record date of the meeting, except as otherwise
provided herein or required by law. All voting, except on the election of
directors and where otherwise required by law, may be by a voice vote;
provided, however, that upon demand therefor by a stockholder entitled to vote
or his proxy, a stock vote shall be taken. Every stock vote shall be taken by
ballots, each of which shall state the name of the stockholder or proxy voting
and such other information as may be required under the procedure established
for the meeting. Every vote taken by ballot
<PAGE> 3
shall be counted by an inspector or inspectors appointed by the chairman of the
meeting. All elections shall be determined by plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast.
Section 8. Stock Ledger
A complete list of stockholders entitled to vote at any meeting of the
stockholders, arranged in alphabetical order for each class of stock and
showing the address of each such stockholder and the number of shares
registered in his name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the place where the
meeting is to be held. The stock list shall also be kept at the place of the
meeting during the whole time thereof and shall be open to the examination of
any stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office
The number of directors who shall constitute the whole board shall be
such number not less than five nor more than nine as the Board of Directors
shall at the time have designated. Each director shall be elected for a term of
one year and until his successor is elected and qualified, except as otherwise
provided herein or required by law. Whenever the authorized number of directors
is increased between annual meetings of the stockholders, a majority of the
directors then in office shall have the power to elect such new directors for
the balance of a term and until their successors are elected an qualified. Any
decrease in the authorized number of directors shall not become effective until
the expiration of the term of the directors then in office unless, at the time
of such decrease, there shall be vacancies an the board which are being
eliminated by the decrease.
<PAGE> 4
Section 2. Vacancies
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal, or other cause, then a majority of the
directors remaining in office, although less than a quorum, may elect a
successor for the unexpired term and until his successor is elected an
qualified.
Section 3. Regular Meetings
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among the directors. A
notice of each regular meeting shall not be required.
Section 4. Special Meetings
Special meetings of the Board of Directors may be called by a majority
of the directors then in office and or by the chief executive officer and shall
be held at such place, on such date, and at such time as they or he shall fix.
Notice of the place, date, and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not less than
three days before the meeting or by delivering the same by any means not less
then eighteen hours before the meeting. Unless otherwise indicated in the
notice thereof, any and all business may be transacted at a special meeting.
Section 5. Quorum
At any meeting of the Board of Directors, a majority of the total
number of the whole board, but not less than five shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time without further
notice or waiver thereof.
Section 6. Participation in Meetings by Conference Telephone
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such board or committee by means of
<PAGE> 5
conference telephone or similar communications equipment that enables all
persons participating in the meeting to hear each other. Such participation
shall constitute presence in person at such meeting.
Section 7. Conduct of Business
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the board from time to time may determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein of required by law. Action may be taken by
the Board of Directors without a meeting if the required number of members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes proceedings of the Board of Directors.
Section 8. Powers
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the Company, including, without limiting the generality of the
foregoing, the following unqualified powers:
(a) To declare dividends from time to time in accordance
with law;
(b) To purchase or otherwise acquire any property, rights
or privileges on such terms as it shall determine;
(c) To authorize the creation, making, and issuance, in
such form as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to do all
things necessary in connection therewith;
(d) To remove any officer of the Company with just cause,
and from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
(e) To confer upon any officer of the Company the power
to appoint, remove, and suspend subordinate officers and agents;
(f) To adopt from time to time such stock, stock option,
stock purchase, bonus or other compensation plans for directors,
officers, and agents of the Company and its subsidiaries as it may
determine;
<PAGE> 6
(g) To adopt from time to time such insurance,
retirement, and other benefit plans for directors, officers, and
agents of the Company and its subsidiaries as it may determine; and
(h) To adopt from time to time regulations, not
inconsistent with these Bylaws, for the management of the Company's
business and affairs.
Section 9. Compensation of Directors
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, reimbursement of expenses, fixed fees, and other compensation for
their services as directors, including (without limitation) their services as
members of committees of the directors.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors
The Board of Directors, by a vote of a majority of the whole board,
may from time to time designate committees of the board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the board and shall, for those committees and any other provided for herein,
elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternative members who may replace any
absent or disqualified member at any meeting of the committee. Any committee so
designated may exercise the power and authority of the Board of Directors to
declare a dividend or to authorize the issuance of stock if the resolution of
the Board of Directors shall so provide. In the absence or disqualification of
any member of any committee and any alternate member in his place, the member
or members of the committee present at the meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may by unanimous vote
appoint another member for the Board of Directors to act at the meeting in the
place of the absent or disqualified member.
Section 2. Conduct of Business
Each committee may determine the procedural rules for meeting
<PAGE> 7
and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; a majority of the members shall
constitute a quorum unless the committee shall consist of one or two members,
in which event one member shall constitute a quorum; and all matters shall be
determined by a majority vote of the members present. Action may be taken by
any committee without a meeting if the required number of members thereof
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 1. Generally
The officers of the Company shall be chosen by the Board of Directors
and shall, at a minimum, consist of a President and a Secretary. The Board of
Directors may also choose additional officers, including a Chairman or Vice-
Chairman of the Board of Directors, one or more Vice-Presidents who may be
classified by their specific function, a Secretary, a Treasurer and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person, except the offices of President and Secretary. The Board of
Directors at its first meeting and after each annual meeting of shareholders
shall choose a President and a Secretary, and may choose such other officers
and agents as it shall deem necessary.
Section 2. Salaries
The salaries or other compensation, if any, of all officers and agents
of the Company shall be fixed by the Board of Directors.
Section 3. Terms of Office
The officers of the Company shall hold office until their successors
are chosen and qualify, or until their earlier resignation or removal. Any
vacancy occurring in any office of the Company shall be filled by the Board of
Directors.
<PAGE> 8
Section 4. The Chairman or, in the absence of the Chairman, a
Vice-Chairman of the Board of Directors, if chosen, shall preside at all
meetings of the Board of Directors, and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 5. President
The President shall be the chief executive officer of the Company,
shall preside at all meetings of the shareholders and may be expressly
empowered by waiver of the Chairman of the Board to preside over all meetings
of the Board of Directors, and shall have general and active management of the
business of the Company an shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President shall execute bonds,
mortgages, and other contracts requiring a seal, under the seal of the company,
except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors to some other officer or agent of the company.
Section 6. Vice-President
The Vice-President, or if there shall be more than one, the
Vice-Presidents in the order determined by the Board of Directors, shall, in
the absence or disability of the President, perform the duties and exercise the
powers of the President and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Section 7. Secretary
The Secretary shall attend all meetings of the Board of Directors and
all meetings of the shareholders and record all the proceedings of the meetings
of the Company and the Board of Directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. The
Secretary shall give, or cause to be given, notice of all meetings of the
shareholders and regular and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President, under whose supervision the Secretary shall be. Additionally, the
Secretary shall have custody of the corporate seal of the Company, and the
Secretary or an Assistant Secretary shall have authority to affix it to any
instrument requiring it, and
<PAGE> 9
when so affixed, it may be attested by the Secretary's signature or by the
signature of such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Company and to attest
the affixing by the Secretary's signature.
Section 8. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors from time to time prescribe.
Section 9. Treasurer
The Treasurer, if one is chosen or, if not, the Secretary, shall have
the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Company and shall deposit all money and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the
Board of Directors. The Treasurer, if one is chosen or, if not, the Secretary,
shall disburse the funds of the Company as may be ordered by the Board of
Directors' taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all transactions performed by the
Treasurer (or Secretary, as the case may be) and of the financial condition of
the Company. If required by the Board of Directors, the Treasurer, if one is
chosen or, if not, the Secretary, shall be bonded in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of the office of a treasurer and for the
restoration to the Company, in case of the Treasurer's (or Secretary's)
death, resignation, retirement, or removal from office, of all books, papers,
vouchers, money, and other property of whatever kind in the possession or under
the control of the Treasurer (or Secretary), belonging to the Company.
Section 10. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors, shall,
in the absence or disability of the Treasurer,
<PAGE> 10
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Board of directors may from
time to time prescribe.
Section 11. Delegation of Authority
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
Section 12. Removal
Any officer or agent elected or appointed by the directors may be
removed by the directors whenever in their judgment the best interests of the
Company would be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Any removal of said
officer must be with just cause and ratified by a quorum of the Board of
Directors.
ARTICLE IV
RIGHT OF INDEMNIFICATION OF DIRECTORS, OFFICERS, AND OTHERS
Section 1. Right to Indemnification
Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative, arbitral, or investigative (proceeding), by reason of
the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director, officer, employee, or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent, shall be
indemnified and held harmless by the company to the fullest extent authorized
by the Oklahoma General Corporation Act, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent such
amendment permits the Company to provide broader indemnification rights than
the Act permitted the Company to provide prior to such Amendment) against all
<PAGE> 11
expenses, liabilities, and loss (including attorneys' fees, judgments, fines,
E.R.I.S.A. excise taxes, or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. Such right shall be a contract right and shall include the right to
be paid by the Company expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that the payment of such
expenses incurred by a director or officer of the Company in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery
to the Company of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that
such director or officer is not entitled to be indemnified under this section
or otherwise.
Section 2. Right of Claimant to Bring Suit
If a claim under Section 1 is not paid in full by the Company within
ninety days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim, and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking has been tendered to
the Company) that the claimant has not met the standards of conduct which make
it permissible under the Oklahoma General Corporation Act for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
its Board of Directors, independent legal counsel, or its stockholders) that
the claimant had not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that claimant had not met the
applicable standard of conducts.
Section 3. Non-Exclusivity of Rights
The rights conferred by Sections 1 and 2 shall not be exclusive of any
other right which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation,
<PAGE> 12
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Section 4. Insurance
The Company may maintain insurance, at its expense, to protect itself
and any such director, officer, employee, or agent of the Company or another
corporation, partnership, joint venture, trust, or other enterprise against any
such expense, liability or loss, whether or not the Company would have the
power to indemnify such person against such expense, liability, or loss under
the Oklahoma General Corporation Act.
ARTICLE VI
STOCK
Section 1. Certificates of Stock
Each stockholder shall be entitled to a certificate in the name of the
Company signed by the Chairman or Vice-Chairman of the Board of Directors, or
the President or a Vice-President, and by the Treasurer or an Assistant
Treasurer, Secretary or the Assistant Secretary, certifying the number of
shares owned by the shareholder of the Company. Any or all the signatures on
the certificate may be a facsimile.
Section 2. Transfers of Stock
Transfers of stock shall be made only upon the transfer books of the
Company kept at an office of the Company or by transfer agents designated to
transfer shares of the stock of the Company. Except where a certificate is
issued in accordance with Section 4 of Article VI of these Bylaws, an
outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
The Board of Directors may fix a record date, which shall not be more
than sixty nor less than ten days before the date of any meeting
<PAGE> 13
of stockholders, nor more than sixty days prior to the time for the other
action hereinafter described, as of which there shall be determined the
stockholders who are entitled (i) to notice of or to vote at any meeting of
stockholders or any adjournment thereof; (ii) to express consent to corporate
action in writing without a meeting; (iii) to receive payment of any dividend
or other distribution or allotment of any rights; or (iv) to exercise any
rights with respect to any change, conversion, or exchange of stock or with
respect to any other lawful action.
Section 4. Lost, Stolen, or Destroyed Certificates
In the event of the loss, theft, or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft, or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Registration Under Securities Act
The stock of the Company has not been registered under the Securities
Act of 1933 or the Oklahoma Securities Act. The stock may not be sold,
assigned, transferred, or pledged except with the express written consent of
the Company; and such consent will be given only if: (i) the sale, assignment,
transfer, or pledge is pursuant to an effective registration statement under
the Securities Act of 1933, and qualification thereof under applicable state
law; or (ii) the Company has received an opinion of counsel, which opinion is
satisfactory to the Company's counsel, that the proposed sale, assignment,
transfer, or pledge without such registration and qualification will not
violate the Securities Act of 1933 or any other securities statutes or
regulation. In recognition of the fact that the stock has not been registered
under the Securities Act of 1933 or the Oklahoma Securities Act, each
certificate shall bear the following legend:
The (shares of Common Stock) (shares of Preferred Stock) evidenced by
this Certificate have not been registered under the Securities Act of
1933, as amended (the "Act"), or the Oklahoma Securities Act (the
"State Act"). (i) No resales, pledges, hypothications, or other
transfers of the (Common Stock) (Preferred Stock) represented by this
Certificate shall be made to any person or organization not having a
principal residence or office, respectively, within the State of
Oklahoma and/or (ii) no resales, pledges, hypothications, or other
transfers of the (Common Stock)
<PAGE> 14
(Preferred Stock) evidenced by this Certificate shall be made at any time
whatsoever, except upon the issuance of a favorable opinion of counsel to the
Company to the effect that the resale, pledge, hypothecation, or other transfer
of such (Common Stock) (Preferred Stock) will not be in violation of the Act
and/or the State Act and/or any rule or regulations promulgated thereunder.
ARTICLE VIII
NOTICES
Section 1. Notices
Notices to directors and shareholders shall be in writing and
delivered personally or mailed to the directors or shareholders at their
addresses appearing on the books of the Company. Notice by mail shall be deemed
to be given at the time when the same shall be deposited in the United States
mail, postage prepaid. Notice to directors may also be given by telegram.
Notice by telegram shall be deemed to be given when delivered to the sending
telegraph office.
Section 2. Waivers
Whenever any notice is required to be given under the provisions of
law or of the Certificate of Incorporation or of these Bylaws, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE IX
MISCELLANEOUS
Section 1. Corporate Seal
The Board of Directors may provide a suitable seal, containing the
name of the Company, which seal shall be in charge of the Secretary. If and
when so directed by the Board of Directors or a committee thereof, duplicates
of the seal may be kept and used by the Treasurer or by the Assistant Secretary
or Assistant Treasurer. The seal may be used by causing it, or a facsimile
thereof, to be impressed or affixed or in any other manner reproduced.
<PAGE> 15
Section 2. Reliance Upon Books, Reports, and Records
Each Director, each member of any committee designated by the Board of
Directors, and each officer of the Company shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account
or other records of the Company, including reports made to the Company by any
of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
Section 3. Fiscal Year
The fiscal year of the Company shall be as fixed by the Board of
Directors.
Section 4. Time Periods
In applying any provision of these Bylaws that requires that an act be
done or not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event, calendar
days shall be used, the day of the doing of the act shall be excluded, and the
day of the event shall be included.
ARTICLE X
AMENDMENTS
Section 1. Amendments
The Bylaws may be amended by the shareholders or by the Board of
Directors at any regular meeting of the shareholders or of the Board of
Directors, or at any special meeting of the shareholders or of the Board of
Directors, if notice of such amendment, repeal, or adoption of the Bylaws be
contained in the notice of such special meeting.
<PAGE> 16
MEMORANDUM: From L. Wm. Hiser, Jr./ Chairman of the Board-CEO
TO: Officers and Directors of Riverside Parkway, Inc.
By the authority vested in me at the Directors Meeting of 10-27-94,
being duly and unanimously elected Chairman of the Board and further at this
same meeting of 10-27-94 the newly elected Directors, by the authority given
them by Article IV. Section 4, of the By-Laws which states the Chairman of the
board "shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe" appointed me, L. Wm Hiser, Jr.
chief Executive Officer, to perform all duties of that designation.
That I, L. Wm. Hiser, Jr., Chairman of the Board/CEO of Riverside
Parkway, Inc., by the authority given by the Board of Directors as described
above, do hereby create and delegate the offices and duties of Vice Chairman
and Co-Treasurer to be inclusive with the office of President.
This action while having little or no change in existing duties or
responsibilities of the officers of the corporation would only cause the
following amendments to the By-Laws to read:
Article IV
Officers
Section 4 - Chairman of the Board (Amended)
The Chairman shall be the chief executive officer of the company or,
in the absence of the chairman, a Vice Chairman of the Board of Directors, if
chosen, shall perform such other duties and have such powers as the Board of
Directors may from time to time prescribe.
Article IV
Section V - President, Vice Chairman, (Amended)
The President shall preside at all meetings of the share holders and
may be expressly empowered by waiver of the Chairman of the Board to preside
over all meetings of the Board of Directors, and shall have general and active
management of the business of the company and shall see that all orders of the
Chairman and Chief Executive Officer and resolutions of the Board of Directors
are carried into affect. The President and Chief Executive shall execute bonds,
mortgages and other contracts requiring a seal, render the seal of the company,
with both signatures in evidence, except where required or permitted by law to
be otherwise signed and executed but in no case without the expressed approval
of the Chief Executive Officer and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Company.
<PAGE> 17
Stephen L. Lower, President,
Compensation $700.00 a week salary.
Expenses Furnishes own car but is allowed .28 a mile
Travel-Auto for all expenses relevant to its operation.
This is within the I.R.S. guidelines of
corporate deductible expenses for automobiles.
Travel-Hotels, All expenses within the I.R.S. guidelines as
Meals, etc. outlined as deductible expenses for those
categories.
*Bonuses All bonuses are paid in common shares of the
corporation, and are determined annually by
the Board of Directors. None have been
authorized for 1995.
No other compensation, expenses or bonuses have been approved by the Board nor
have they been paid for those officers listed above.
Dated this 29th day of December, 1994.
/s/ L. WM. HISER, JR. /s/ STEPHEN L. LOWER
- -------------------------------- --------------------------------
L. Wm. Hiser, Jr. Stephen L. Lower
CEO-Chief Executive Officer President
/s/ SHIRLEY L. BOWMAN /s/ AGNES W. WARREN
- -------------------------------- --------------------------------
Shirley L. Bowman Agnes W. Warren
/s/ FRANKLIN STECHER /s/ T. M. RHOTON
- -------------------------------- --------------------------------
Franklin Stecher T. M. Rhoton
- -------------------------------- --------------------------------
Clarence E. Kennedy Robert J. Williams
/s/ MYRTLE A. MOODY
- -------------------------------- --------------------------------
Myrtle A. Moody
<PAGE> 1
EXHIBIT 4.1
SPECIMEN
NO. SHARES
Incorporated Under the Laws of the State of Oklahoma
RIVERSIDE PARKWAY INC.
Common Voting Stock
2,000,000 Authorized Shares - $1.00 Par Value
This Certifies that __________________________ is the
registered holder of _________________________ Shares
transferable only on the books of the Corporation by the holder hereof in
person or by Attorney upon surrender of this Certificate properly endorsed.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate [seal]
to be hereunto affixed this ____________ day of ____________ A.D. 19
[SEAL]
------------------------ ---------------------------
Secretary President
SHARES $ 1.00 PAR EACH
<PAGE> 2
CERTIFICATE
FOR
SHARES
of the
COMMON
STOCK
RIVERSIDE PARKWAY INC.
-------------------
ISSUED TO
DATE
The shares of Common Voting Stock evidenced by this Certificate have
not been registered under the Securities Act of 1933, as amended (the "Act"),
or the Oklahoma Securities Act (the "State Act"). No resales, pledges,
hypothecations, or other transfers of the Common Voting Stock evidenced by this
Certificate shall be made at any time whatsoever, except upon the issuance of a
favorable opinion of counsel to the Company to the effect that the resale,
pledge, hypothecation, or other transfer of such Common Voting Stock will not
be in violation of the Act and/or the State Act and/or any rule or regulations
promulgated thereunder.
All rights by virtue hereof are expressly subject to the provisions of
the Certificate of incorporation of the corporation and to all Bylaws and other
provisions and proceedings authorized thereby or by any present or future law
of the State of Oklahoma.
For Value Received, _______ hereby sell, assign and transfer unto
________________________________________________________________________________
_____________________________________________________________________ Shares
of the Common Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ___________________________________________
Attorney to transfer the said Stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated ____________________________ 19 _______
In presence of ________________________________
__________________________________________
NOTE. THE SIGNATURE OF THIS ASSISGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.2
SPECIMEN
PROMISSORY NOTE
This Promissory Note is by and between RIVERSIDE PARKWAY, INC.
(Promissory), and ____________________ (Promise).
By the terms of this Note, Promisor does hereby agree and promise to
pay Promise the sum of __________________ ($_________) plus eight percent (8%)
interest per annum on this sum of money six (6) months from the date of this
Note, provided however, that this Note may be extended at the end of this six
(6) month period for an additional six (6) month period at the option of either
party upon notice of intent to extend being given to the other party on of
before the date of note maturity, and subject to approval of such extension by
the parties. Renewal of this note may continue by mutual agreement of the
parties for two (2) additional six (6) month periods.
Upon maturity of this Note as originally agreed or as extended by
mutual agreement to renew, the moneys due and owing to Promise may be taken in
cash or converted to shares of common stock in RIVERSIDE PARKWAY, INC., equal
to the sum of moneys due and owing to Promisee, with said election to be made
by Promisee at the time of the Note maturity.
Interest on the loaned moneys described herein shall be paid to
Promisee quarterly at the rate of eight percent (8) per annum throughout the
entire term of the Note as originally agreed or as extended by mutual agreement
to renew.
Dated this ________ day of ________________, 199_.
----------------------------------------
L. Wm. Hiser, Jr. - Chairman/CEO
Riverside Parkway, Inc.
----------------------------------------
Stephen L. Lower - President
----------------------------------------
Promisee
<PAGE> 1
EXHIBIT 10.1
Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301 OK-34-020893-2.44
<TABLE>
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
LOAN NO. LOAN NAME ACCOUNT NO. NOTE DATE RATE NOTE AMOUNT MATURITY INITIALS
3172000 RIVERSIDE PARKWAY 07/20/93 10% $25,000.00 07/20/94 TBB
Revolving Draw
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------(For Bank Purposes Only-AC)---------------------------
PROMISSORY NOTE
(Business Purpose)
NBC BANK
- --------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this promissory note (Note) is July 20,
1993. This Note evidences a loan which includes all extensions, renewals,
modifications and substitutions (Loan). The parties to this Note and Loan
are:
BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
an OKLAHOMA corporation
P.O. Box 175
RALSTON, OKLAHOMA 74650
Tax I.D. # 73-1379352
BANK:
NBC BANK
an OKLAHOMA banking corporation
8TH & KIHEKAH
P.O. Box 27
PAWHUSKA, OKLAHOMA 74056
Tax I.D. # 73-0368670
2. PROMISE TO PAY. For value received, Borrower promises to pay to Bank's
order at its office at the above address, or such other place as Bank may
designate, the sum of $25,000.00 (Principal) or so much thereof as may,
from time to time, be advanced to Borrower hereunder plus interest from
the date of disbursement, on the unpaid principal balance at the rate of
10% per annum (Contract Rate) until this Note matures or the obligation
is accelerated. After maturity or acceleration, the unpaid balance shall
bear interest at the rate specified in the paragraph in this Note
entitled "DEFAULT RATE OF INTEREST" until paid in full. The Loan and this
Note are limited to the maximum lawful amount of interest (Maximum Lawful
Interest) permitted under federal and state laws. If the interest accrued
and collected exceeds the Maximum Lawful Interest as of the time of
collection, such excess shall be applied to reduce the principal amount
outstanding, unless otherwise required by law. If or when no principal
amount is outstanding, any excess interest shall be refunded to Borrower
according to the actuarial method. Interest shall be computed on the
basis of a 360-day year and the actual number of days elapsed.
This is a revolving draw Note and all or part of the Principal shall be
advanced from time to time by Bank upon request of Borrower or any
authorized agent of Borrower subject to all of the following conditions:
A. There has not been a default by Borrower or any other party.
B. Bank has received all documents, information, and warranties
as Bank may require, all properly executed, if appropriate,
in a form acceptable to Bank.
C. A request for the advance is received from Borrower or
Borrower's authorized agent prior to the maturity date of the
Loan in a form acceptable to Bank.
D. Bank has made all inspections which Bank considers necessary
and is satisfied with the same.
Any authorized agent of Borrower shall have authority to direct the
disposition of any such advances until written notice of the revocation
is received by Bank. However, the amount of advances under this Note that
are outstanding and unpaid shall never exceed the Principal. Interest
shall accrue only on the amount of outstanding Principal that is drawn
and unpaid. In the event of default, Bank is not obligated to make any
additional advances regardless of the amount of Principal that has not
been drawn at the time of default.
ALL UNPAID PRINCIPAL, ACCRUED INTEREST, OTHER COSTS AND EXPENSES ARE DUE
AND PAYABLE IN ONE PAYMENT ON JULY 20, 1994, WHICH PAYMENT IS ESTIMATED
TO BE $27,534.72. THIS PAYMENT AMOUNT IS BASED UPON TIMELY PAYMENT. THE
AMOUNT SHALL BE PAID IN LEGAL U.S. CURRENCY. ANY PAYMENT MADE WITH A
CHECK WILL CONSTITUTE PAYMENT ONLY WHEN COLLECTED.
3. EFFECT OF PREPAYMENT. Borrower may prepay this Loan in full, subject to
any prepayment penalty or minimum charge as agreed to below. Interest
will cease to accrue on the amounts prepaid on the day actually credited
by Bank.
4. MINIMUM INTEREST CHARGE. If Borrower pays this Note in full before the
maturity date or otherwise, Borrower agrees to pay Bank a minimum
interest charge of $15.00 or the earned finance charge, whichever amount
is greater.
5. EVENTS OF DEFAULT. Borrower shall be in default upon the occurrence of
any of the following events, circumstances or conditions (Events of
Default):
A. Failure by any party obligated on this Note or any other
obligations Borrower has with Bank to make payment when due;
or
B. A default or breach by Borrower or any co-signer, endorser,
surety, or guarantor under any of the terms of this Note, any
construction loan agreement or other loan agreement, any
security agreement, mortgage, deed to secure debt, deed of
trust, trust deed, or any other document or instrument
evidencing, guarantying, securing or otherwise relating to
this Note or any other obligations Borrower has with Bank; or
C. The making or furnishing of any verbal or written
representation, statement or warranty to Bank which is or
becomes false or incorrect in any material respect by or on
behalf of Borrower, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations Borrower has
with Bank; or
D. Failure to obtain or maintain the insurance coverages
required by Bank, or insurance as is customary and proper for
any collateral (as herein defined); or
E. The death, dissolution or insolvency of, the appointment of a
receiver by or on behalf of, the assignment for the benefit
of creditors by or on
- --------------------------------------------------------------------------------
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RIVERSIDE PARKWAY PAGE 1
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 2
Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301 OK-34-020893-2.44
behalf of, the voluntary or involuntary termination of
existence by, or the commencement of any proceeding under any
present or future federal or state insolvency, bankruptcy,
reorganization, composition or debtor relief law by or
against Borrower, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations Borrower has
with Bank; or
F. A good faith belief by Bank at any time that Bank is insecure
with respect to Borrower, or any co-signer, endorser, surety
or guarantor, that the prospect of any payment is impaired or
that any collateral (as herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow
deficiency on or before its due date; or
H. A material adverse change in Borrower's business, including
ownership, management, and financial conditions, which in
Bank's opinion, impairs any collateral or repayment of the
Obligations; or
I. A transfer of a substantial part of Borrower's money or
property.
6. DEFAULT RATE OF INTEREST. If there is a default in this Note, the rate of
interest, at Bank's option, shall immediately be increased by 2
percentage points whether or not Bank accelerates the maturity, and
interest shall accrue thereafter at the resulting rate until all
obligations under this Note are paid in full. Unless Bank has accelerated
the maturity, Bank shall, within 10 days following the effective date of
such interest rate increase, notify Borrower of the fact that the
interest rate has been increased pursuant to this provision.
7. REMEDIES ON DEFAULT. On or after the occurrence of an Event of Default,
at the option of Bank, all or any part of the principal and accrued
interest on this Note, the Loan and all other obligations which Borrower
owes Bank shall become immediately due and payable without notice or
demand. Bank may exercise all rights and remedies provided by law,
equity, this Note, any mortgage, deed of trust or similar instrument and
any other security, loan, guaranty or surety agreements pertaining to
this Note and all other obligations of Borrower to Bank. All rights and
remedies are cumulative and not exclusive, and Bank is entitled to all
remedies provided at law or equity, whether or not expressly set forth.
In addition to the remedies provided by law upon default, Bank also has
the right of set-off against this Note, including but without limiting
the generality, all money owed by Bank to Borrower, whether or not due.
8. COLLECTION EXPENSES. On or after an Event of Default, Bank may recover
from Borrower and all guarantors or any of them, all fees and expenses in
collecting, enforcing and protecting liabilities and reasonable expenses
in realizing on any security incurred by Bank, plus expenses of
collecting and enforcing this Note. Such fees and expenses shall include,
but are not limited to, filing fees, publication expenses, deposition
fees, stenographer fees, witness fees and any other court costs. Any such
fees and expenses shall be added to the Principal of this Note and shall
accrue interest at the same rate as provided for in this Note.
9. ATTORNEYS' FEES. Upon default of this Note, Bank may recover from
Borrower and all guarantors or any of them, reasonable attorneys' fees
incurred by Bank. Such reasonable attorneys' fees shall include, without
limitation, paralegal fees. Any such reasonable attorneys' fees shall be
added to the principal amount of this Note and shall accrue interest at
the same rate as this Note. Borrower agrees that reasonable attorneys'
fees shall be construed to mean 15% of the total of the unpaid balance at
the time of default, plus all accrued interest. Such recovery will be to
the extent not prohibited by law.
10. NO DUTY BY BANK. Bank is under no duty to preserve or protect any
Collateral until Bank is in actual, or constructive, possession of the
Collateral. For purposes of this paragraph, Bank shall only be considered
to be in "actual" possession of the Collateral when Bank has physical,
immediate and exclusive control over the Collateral and has affirmatively
accepted such control. Bank shall only be considered to be in
"constructive" possession of the Collateral when Bank has both the power
and the intent to exercise control over the Collateral.
11. WAIVER AND CONSENT BY BORROWER AND OTHER SIGNERS. Regarding this Note, to
the extent not prohibited by law, Borrower and any other signers:
A. waive protest, presentment for payment, demand, notice of
acceleration, notice of intent to accelerate and notice of
dishonor.
B. consent to any renewals and extensions for payment on this
Note, regardless of the number of such renewals or
extensions.
C. consent to Bank's release of any borrower, endorser,
guarantor, surety, accommodation maker or any other
co-signer.
D. consent to the release, substitution or impairment of any
collateral.
E. consent that Borrower is authorized to modify the terms of
this Note or any instrument securing, guarantying or relating
to this Note.
F. consent to Bank's right of set-off as well as any right of
set-off of any bank participating in the Loan.
G. consent to any and all sales, repurchases and participations
of this Note to any person in any amounts and waive notice of
such sales, repurchases or participations of this Note.
12. SECURITY. This Note is secured by the following type(s) (or items) of
property (Collateral):
REAL ESTATE
The real property portion of the Collateral includes the following
described property (Property) situated in PAWNEE County, OKLAHOMA,
to-wit:
LOT 9 AND LOT 10 IN BLOCK 13 IN THE ORIGINAL TOWN OF RALSTON,
PAWNEE COUNTY, OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF.
The term "Collateral" further includes, but is not limited to, the
following property, whether now owned or hereafter acquired, and whether
or not held by a bailee for the benefit of the Owner or owners, all:
accessions, accessories, additions, fittings, increases, insurance
benefits and proceeds, parts, products, profits, renewals, rents,
replacements, special tools and substitutions, together with all books
and records pertaining to the Collateral and access to the equipment
containing such books and records including computer stored information
and all software relating thereto, plus all cash and non-cash proceeds
and all proceeds of proceeds arising from the type(s) (items) of property
listed above.
13. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by Bank shall be applied first to
costs, then to accrued interest and the balance, if any, to Principal
except as otherwise required by law.
14. LOAN PURPOSE. Borrower represents and warrants that the purpose of this
Loan is WORKING CAPITAL FOR CORPORATION.
15. JOINT AND SEVERAL. Borrower or any other signers shall be jointly and
severally liable under this Note.
16. FINANCIAL STATEMENTS. Until this Note is paid in full, Borrower shall
furnish Bank upon Bank's request and in the event of no request, at least
annually a current financial statement which is certified by Borrower and
Borrower's accountant to be true, complete and accurate.
17. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Borrower's
performance of all duties and obligations imposed by this
Note.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of Bank's
rights, remedies,
- --------------------------------------------------------------------------------
Promissory Note-Business 07/20/93 Initials LWH
RIVERSIDE PARKWAY PAGE 2
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 3
Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301 OK-34-020893-2.44
privileges or right to insist upon Borrower's strict
performance of any provisions contained in this Note, or
other loan documents, shall not be construed as a waiver by
Bank, unless any such waiver is in writing and is signed by
Bank.
C. AMENDMENT. The provisions contained in this Note may not be
amended, except through a written amendment which is
signed by Borrower and Bank.
D. INTEGRATION CLAUSE. This written Note and all documents
executed concurrently herewith, represent the entire
understanding between the parties as to the Obligations and
may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Borrower, upon request of Bank, agrees to
execute, acknowledge, deliver and record or file such
further instruments or documents as may be required by Bank
to secure this Note or confirm any lien.
F. GOVERNING LAW. This Note shall be governed by the laws of the
State of OKLAHOMA, provided that such laws are not otherwise
preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to
this Note, the exclusive forum, venue and place of
jurisdiction shall be in the State of OKLAHOMA, unless
otherwise designated in writing by Bank or otherwise
required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind
the heirs, personal representatives, successors and assigns
of the partes; provided however, that Borrower may not
assign, transfer or delegate any of the rights or
obligations under this Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include
the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
J. DEFINITIONS. The terms used in this Note, if not defined
herein, shall have their meanings as defined in the other
documents executed contemporaneously, or in conjunction,
with this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Note are for
convenience only and shall not be dispositive in
interpreting or construing this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be
held unenforceable or void, then such provision shall be
severable from the remaining provisions and shall in no way
affect the enforceability of the remaining provisions nor
the validity of this Note.
M. CHANGE IN APPLICATION. Borrower will notify Bank in writing
prior to any change in Borrower's name, address, or other
application information.
N. NOTICE. All notices under this Note must be in writing. Any
notice given by Bank to Borrower hereunder will be effective
upon personal delivery or 24 hours after mailing by first
class United States mail, postage prepaid, addressed to
Borrower at the address indicated below Borrower's name on
page one of this Note. Any notice given by Borrower to Bank
hereunder will be effective upon receipt by Bank at the
address indicated below Bank's name on page one of this Note.
Such addresses may be changed by written notice to the other
party.
O. HOLDER. The term "Bank" shall include any transferee and
assignee of Bank or other holder of this Note.
P. BORROWER DEFINED. The term "Borrower' includes each and every
person signing this Note as a Borrower and any co-signers.
18. RECEIPT OF COPY. By signing below, Borrower acknowledges that Borrower
has read and received a copy of this Note.
BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. [CORPORATE SEAL*]
AN OKLAHOMA CORPORATION
BY: /s/ L. WILLIAM HISER, JR.
----------------------------------
L. WILLIAM HISER, JR., PRESIDENT
/s/ SHIRLEY L. BOWMAN
----------------------------------
ATTEST
("Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
BANK:
NBC BANK [CORPORATE SEAL*]
AN OKLAHOMA BANKING CORPORATION
BY: /s/ T. BRENT BALLINGER
----------------------------------
T. BRENT BALLINGER, PRESIDENT
/s/ GEORGIA HALL
----------------------------------
ATTEST
("Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
THIS IS THE LAST PAGE OF A 3 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY FOLLOW.
- --------------------------------------------------------------------------------
Promissory Note-Business 07/20/93 Initials
RIVERSIDE PARKWAY PAGE 3
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<PAGE> 1
EXHIBIT 10.2
Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301 OK-79-111992-2.44
- --------------------------------------------------------------------------------
(Space above this line for recording purposes)
REAL ESTATE MORTGAGE
To Secure a Loan
From NBC BANK
(with Power of Sale)
- --------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this Real Estate Mortgage (Mortgage) is
July 20, 1993, and the parties and their mailing addresses are the
following:
MORTGAGOR:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
an OKLAHOMA corporation
P.O. Box 175
RALSTON, OKLAHOMA 74650
Tax I.D. # 73-1379352
BANK:
NBC BANK
an OKLAHOMA banking corporation
8TH & KIHEKAH
P.O. Box 27
PAWHUSKA, OKLAHOMA 74056
Tax I.D. # 73-0368670
(as Mortgagee)
2. OBLIGATIONS DEFINED. The term "Obligations" is defined as and includes
the following:
A. A promissory note, No. 3172000, (Note) dated July 20, 1993,
with a maturity date of July 20, 1994, and executed by
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. (Borrower) payable to
the order of Bank, which evidences a loan (Loan) to Borrower
in the amount of $25,000.00, plus interest, and all
extensions, renewals, modifications or substitutions thereof.
B. All future advances by Bank to Borrower, to Mortgagor, to any
one of them or to any one of them and others (and all other
obligations referred to in the subparagraph(s) below, whether
or not this Mortgage is specifically referred to in the
evidence of indebtedness with regard to such future and
additional indebtedness).
C. All additional sums advanced, and expenses incurred, by Bank
for the purpose of insuring, preserving or otherwise
protecting the Property (as herein defined) and its value,
and any other sums advanced, and expenses incurred by Bank
pursuant to this Mortgage, plus interest at the same rate
provided for in the Note computed on a simple interest
method.
D. All other obligations, now existing or hereafter arising, by
Borrower owing to Bank to the extent the taking of the
Property (as herein defined) as security therefor is not
prohibited by law, including but not limited to liabilities
for overdrafts, all advances made by Bank on Borrower's,
and/or Mortgagor's, behalf as authorized by this Mortgage and
liabilities as guarantor, endorser or surety, of Borrower to
Bank, due or to become due, direct or indirect, absolute or
contingent, primary or secondary, liquidated or unliquidated,
or joint, several, or joint and several.
E. Borrower's performance of the terms in the Note or Loan,
Mortgagor's performance of any terms in this Mortgage, and
Borrower's and Mortgagor's performance of any terms in any
deed of trust, any trust deed, any trust indenture, any other
mortgage, any deed to secure debt, any security agreement,
any assignment, any construction loan agreement, any loan
agreement, any assignment of beneficial interest, any
guaranty agreement or any other agreement which secures,
guaranties or otherwise relates to the Note or Loan.
However, this Mortgage will not secure another debt:
A. if Bank fails to make any disclosure of the existence of this
Mortgage required by law for such other debt.
3. CONVEYANCE. In consideration of the Loan and Obligations, and to secure
the Obligations (which includes the Note according to its specific terms
and the obligations in this Mortgage), Mortgagor hereby bargains, grants,
mortgages, sells, conveys and warrants to Bank, as Mortgagee, the
following described property (Property) situated in PAWNEE County,
OKLAHOMA, to-wit:
LOT 9 AND LOT 10 IN BLOCK 13 IN THE ORIGINAL TOWN OF RALSTON,
PAWNEE COUNTY, OKLAHOMA, ACCORDING TO THE RECORDED PLAT THEREOF.
such property not constituting the homestead of Borrower, together with
all buildings, improvements, fixtures and equipment now or hereafter
- --------------------------------------------------------------------------------
Mortgage 07/20/93 Initials LWH
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<PAGE> 2
Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301 OK-79-111992-2.44
attached to the Property, including, but not limited to, all heating, air
conditioning, ventilation, plumbing, cooling, electrical and lighting
fixtures and equipment; all landscaping; all exterior and interior
improvements; all easements, issues, rights, appurtenances, rents,
royalties, oil and gas rights, privileges, proceeds, profits, other
minerals, water, water rights, and water stock, crops, grass and timber
at any time growing upon said land, including replacements and additions
thereto, all of which shall be deemed to be and remain a part of the
Property. The term "Property" further includes, but is not limited to,
any and all wells, water, water rights, ditches, laterals, reservoirs,
reservoir sites and dams, used, appurtenant, connected with, or attached
to the Property, whether or not evidenced by stock or shares in an
association or corporation howsoever evidenced. All of the foregoing
Property shall be collectively hereinafter referred to as the Property.
To have and to hold the Property, together with the rights, privileges
and appurtenances thereto belonging, unto Bank forever to secure the
Obligations. Mortgagor does hereby warrant and defend the Property unto
Bank forever, against any claim or claims, of all persons claiming or to
claim the Properly or any part thereof.
4. LIENS AND ENCUMBRANCES. Mortgagor warrants and represents that the
Property is free and clear of all liens and encumbrances whatsoever.
Mortgagor agrees to pay all claims when due that might result, if unpaid,
in the foreclosure, execution or imposition of any lien, claim or
encumbrance on or against the Property or any part thereof. Mortgagor may
in good faith contest any such lien, claim or encumbrance by posting any
bond in an amount necessary to prevent such claim from becoming a lien,
claim or encumbrance or to prevent its foreclosure or execution.
5. WARRANTY OF TITLE. Mortgagor agrees to forever warrant and defend the
title to the Property and represents and warrants that Mortgagor is the
fee simple owner of the Property, that it is authorized to convey the
Property and that it will forever defend the title against all claims.
6. CORPORATE WARRANTIES AND REPRESENTATIONS. If Mortgagor is a corporation,
Mortgagor makes to Bank the following warranties and representations
which shall be continuing so long as the Obligations remain outstanding:
A. Mortgagor is a corporation which is duly organized and
validly existing in Mortgagor's state of incorporation as
represented in the DATE AND PARTIES paragraph above;
Mortgagor is in good standing under the laws of all states in
which Mortgagor transacts business; Mortgagor has the
corporate power and authority to own the Property and to
carry on its business as now being conducted; Mortgagor is
qualified to do business in every jurisdiction in which the
nature of its business or its property makes such
qualification necessary; and Mortgagor is in compliance with
all laws, regulations, ordinances and orders of public
authorities applicable to it.
B. The execution, delivery and performance of this Mortgage by
Mortgagor and the borrowing evidenced by the Note: (1) are
within the corporate powers of Mortgagor; (2) have been duly
authorized by all requisite corporate action; (3) have
received all necessary governmental approval; (4) will not
violate any provision of law, any order of any court or other
agency of government or Mortgagor's Articles of Incorporation
or Bylaws; and (5) will not violate any provision of any
indenture, agreement or other instrument to which Mortgagor
is a party or to which Mortgagor is or any of Mortgagor's
property is subject, including but not limited to any
provision prohibiting the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of
Mortgagor's property or assets. The Note and this Mortgage
when executed and delivered by Mortgagor will constitute the
legal, valid and binding obligations of Mortgagor, and of the
other obligers named therein, if any, in accordance with
their respective terms.
C. All other information, reports, papers and data given to Bank
with respect to Mortgagor or to others obligated under the
terms of this Mortgage are accurate and correct in all
material respects and complete insofar as completeness may be
necessary to give Bank a true and accurate knowledge of the
subject matter.
D. Mortgagor has not changed its name within the last six years,
unless otherwise disclosed in writing; other than the trade
names or fictitious names actually disclosed to Bank prior to
execution of this Mortgage, Mortgagor uses no other names;
and until the Obligations shall have been paid in full,
Mortgagor hereby covenants and agrees to preserve and keep in
full force and effect its existing name, corporate existence,
rights, franchises and trade names, and to continue the
operation of its business in the ordinary course.
7. ASSIGNMENT OF LEASES AND RENTS. Mortgagor hereby absolutely assigns as
additional security all present and future leases and rents, issues and
profits effective immediately upon the execution of this Mortgage.
Mortgagor also covenants and agrees to keep, observe and perform, and to
require that the tenants keep, observe and perform, all of the covenants,
agreements and provisions of any present or future leases of the
Property. In case Mortgagor shall neglect or refuse to do so, then Bank
may, at Bank's option, perform and comply with, or require performance
and compliance by the tenants, with any such lease covenants, agreements
and provisions. Any sums expended by Bank in performance or compliance
therewith or in enforcing such performance or compliance by the tenants
(including costs, expenses, attorneys' fees and paralegal fees) shall
accrue interest from the date of such expenditures at the same rate as
the Obligations and shall be paid by Mortgagor to Bank upon demand and
shall be deemed a part of the debt and Obligations and recoverable as
such in all respects.
In addition to the covenants and terms herein contained and not in
limitation thereof, Mortgagor covenants that Mortgagor will not in any
case cancel, abridge or otherwise modify tenancies, subtenancies, leases
or subleases of the Property or accept prepayments of installments of
rent to become due thereunder. The Obligations shall become due at the
option of Bank if Mortgagor fails or refuses to comply with the
provisions of this paragraph. Each lease of the Property shall provide
that, in the event of enforcement by Bank of the remedies provided for by
law or by this Mortgage, any person succeeding to the interest of
Mortgagor as a result of such enforcement shall not be bound by any
payment of rent or additional rent for more than one month in advance.
All leases made with tenants of the Property shall provide that their
lease securities shall be treated as trust funds not to be commingled
with any other funds of Mortgagor and Mortgagor shall on demand furnish
to Bank satisfactory evidence of compliance with this provision together
with a verified statement of all lease securities deposited by the
tenants and copies of all leases.
8. EVENTS OF DEFAULT. Mortgagor shall be in default upon the occurrence of
any of the following events, circumstances or conditions (Events of
Default):
A. Failure by any party obligated on the Obligations to make
payment when due; or
B. A default or breach by Borrower, Mortgagor or any co-signer,
endorser, surety, or guarantor under any of the terms of this
Mortgage, the Note, any construction loan agreement or other
loan agreement, any security agreement, mortgage, deed to
secure debt, deed of trust, trust deed, or any other document
or instrument evidencing, guarantying, securing or otherwise
relating to the Obligations; or
C. The making or furnishing of any verbal or written
representation, statement or warranty to Bank which is or
becomes false or incorrect in any material respect by or on
behalf of Mortgagor, Borrower, or any co-signer, endorser,
surety or guarantor of the Obligations; or
D. Failure to obtain or maintain the insurance coverages
required by Bank, or insurance as is customary and proper for
the Property (as herein defined); or
E. The death, dissolution or insolvency of, the appointment of a
receiver by or on behalf of, the assignment for the benefit
of creditors by or on behalf of, the voluntary or involuntary
termination of existence by, or the commencement of any
proceeding under any present or future federal or state
insolvency, bankruptcy, reorganization, composition or debtor
relief law by or against Mortgagor, Borrower, or any
co-signer, endorser, surety or guarantor of the Obligations;
or
F. A good faith belief by Bank at any time that Bank is insecure
with respect to Borrower, or any co-signer, endorser, surety
or guarantor, that the prospect of any payment is impaired or
that the Property (as herein defined) is impaired; or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow
deficiency on or before its due date; or
H. A material adverse change in Mortgagor's business, including
ownership, management, and financial conditions, which in
Bank's opinion,
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impairs the Property or repayment of the Obligations; or
I. A transfer of a substantial part of Mortgagor's money or
property; or
J. If all or any part of the Property or any interest therein is
sold, leased or transferred by Mortgagor except as permitted
in the paragraph below entitled "DUE ON SALE OR ENCUMBRANCE".
9. REMEDIES ON DEFAULT. At the option of Bank, all or any part of the
principal of, and accrued interest on, the Obligations shall become
immediately due and payable without notice or demand, upon the occurrence
of an Event of Default or at any time thereafter. In addition, upon the
occurrence of any Event of Default, Bank, at its option, may immediately
commence foreclosure proceedings and may immediately invoke any or all
other remedies provided in the Note, this Mortgage or related documents.
All rights and remedies are distinct, cumulative and not exclusive, and
Bank is entitled to all remedies provided by law or equity, whether or
not expressly set forth.
10. POWER OF SALE. Mortgagor grants, conveys and confers to Bank the power to
sell the Property (in accordance with 46 Okl.St.Ann. 40 et seq.) after a
breach or default in the performance of this Mortgage, the Note and
related loan documents or upon the occurrence of an Event of Default.
11. DUE ON SALE OR ENCUMBRANCE. Bank may, at Bank's option, declare the
entire balance with all accrued interest on the Obligations to be
immediately due and payable upon the contract for, or creation of, any
lien, encumbrance, transfer or sale of the Property, or any portion
thereof, by Mortgagor. Lapse of time or the acceptance of payments by
Bank after such creation of any lien, encumbrance, transfer or sale, or
contract for any of the foregoing, shall not be deemed a waiver or
estoppel of Bank's right to accelerate the Obligations. If Bank exercises
such option to accelerate, Bank shall mail, by certified mail or
otherwise, Mortgagor notice of acceleration to the address of Mortgagor
shown on Bank's records; the notice shall provide for a period of not
less than 30 days from the date the notice is mailed within which
Mortgagor shall pay the sums declared due. If Mortgagor fails to pay such
sums prior to the expiration of such period, Bank may, without further
notice or demand on Mortgagor, invoke any remedies permitted on Default.
This covenant shall run with the Property and shall remain in effect
until the Obligations and this Mortgage are fully paid.
In the preceding paragraph, the phrase "transfer or sale" includes the
conveyance of any right, title or interest in the Property, whether
voluntary or involuntary, by outright sale, deed, installment contract
sale, land contract, contract for deed, leasehold interest with a term
greater than three years, lease-option contract or any other method of
conveyance of the Property interests; the term "interest" includes,
whether legal or equitable, any right, title, interest, lien, claim,
encumbrance or proprietary right, choate or inchoate, any of which is
superior to the lien created by this Mortgage.
12. POSSESSION ON FORECLOSURE. If an action is brought to foreclose this
Mortgage for all or any part of the Obligations, Mortgagor agrees that
the Bank shall be entitled to immediate possession as Mortgagee in
possession of the Property to the extent not prohibited by law; or the
court may appoint, and Mortgagor hereby consents to such appointment,
without notice, a receiver to take possession of the Property and to
collect and receive rents and profits arising therefrom. Any amounts so
collected shall be used to pay taxes on, provide insurance for, pay costs
of needed repairs and for any other expenses relating to the Property or
the foreclosure proceedings, sale expenses or as authorized by the court.
Any sum remaining after such payments will be applied to the Obligations.
13. PROPERTY OBLIGATIONS. Mortgagor shall promptly pay all taxes,
assessments, levies, water rents, other rents, insurance premiums and all
amounts due on any encumbrances, if any, as they become due. Mortgagor
shall provide written proof to Bank of such payment(s).
14. INSURANCE. Mortgagor shall insure and keep insured the Property against
loss by fire, and other hazard, casualty and loss, with extended coverage
including but not limited to the replacement value of all improvements,
with an insurance company acceptable to Bank and in an amount acceptable
to Bank. Such insurance shall contain the standard "Mortgagee Clause" and
where applicable, "Loss Payee Clause", which shall name and endorse Bank
as mortgagee and loss payee. Such insurance shall also contain a
provision under which the insurer shall give Bank at least 30 days notice
before the cancellation, termination or material change in coverage.
If an insurer elects to pay a fire or other hazard loss or damage claim
rather than to repair, rebuild or replace the Property lost or damaged,
Bank shall have the option to apply such insurance proceeds upon the
Obligations secured by this Mortgage or to have said Property repaired or
rebuilt. Mortgagor shall deliver or cause to deliver evidence of such
coverage and copies of all notices and renewals relating thereto. Bank
shall be entitled to pursue any claim under the insurance if Mortgagor
fails to promptly do so.
Mortgagor shall pay the premiums required to maintain such insurance in
effect until such time as the requirement for such insurance terminates.
In the event Mortgagor fails to pay such premiums, Bank may, at its
option, pay such premiums. Any such payment by Bank shall be repayable
upon demand of Bank or if no demand is made, in accordance with the
paragraph below titled "BANK MAY PAY".
15. WASTE. Mortgagor shall not alienate or encumber the Property to the
prejudice of Bank, or commit, permit or suffer any waste, impairment or
deterioration of the Property, and regardless of natural depreciation,
shall keep the Property and all its improvements at all times in good
condition and repair. Mortgagor shall comply with and not violate any and
all laws and regulations regarding the use, ownership and occupancy of
the Property. Mortgagor shall perform and abide by all obligations and
restrictions under any declarations, covenants and other documents
governing the use, ownership and occupancy of the Property.
16. CONDITION OF PROPERTY. As to the Property, Mortgagor shall:
A. keep all buildings occupied and keep all buildings,
structures and improvements in good repair.
B. refrain from the commission or allowance of any acts of waste
or impairment of the value of the Property or improvements
thereon.
C. not cut or remove, or permit to be cut or removed, any wood
or timber from the Property, which cutting or removal would
adversely affect the value of the Property.
D. prevent the spread of noxious or damaging weeds, preserve and
prevent the erosion of the soil and continuously practice
approved methods of farming on the Property if used for
agricultural purposes.
17. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
A. As used in this paragraph:
(1) "Environmental Law" means, without limitation,
the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA", 42
U.S.C. 9601 et seq.), all federal, state and
local laws, regulations, ordinances, court
orders, attorney general opinions or interpretive
letters concerning the public health, safety,
welfare, environment or a Hazardous Substance (as
defined herein).
(2) "Hazardous Substance" means any toxic,
radioactive or hazardous material, waste,
pollutant or contaminant which has
characteristics which render the substance
dangerous or potentially dangerous to the public
health, safety, welfare or the environment. The
term includes, without limitation, any substances
defined as "hazardous material," "toxic
substances," "hazardous waste" or "hazardous
substance" under any Environmental Law.
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B. Mortgagor represents, warrants and agrees that, except as
previously disclosed and acknowledged in writing:
(1) No Hazardous Substance has been, is or will be
located, transported, manufactured, treated,
refined, or handled by any person on, under or
about the Property except in the ordinary course
of business and in strict compliance with all
applicable Environmental Law.
(2) Mortgagor has not and shall not cause, contribute
to or permit the release of any Hazardous
Substance on the Property.
(3) Mortgagor shall immediately notify Bank if: (a) a
release or threatened release of Hazardous
Substance occurs on, under or about the Property
or migrates or threatens to migrate from nearby
property; or (b) there is a violation of any
Environmental Law concerning the Property. In
such an event, Mortgagor shall take all necessary
remedial action in accordance with any
Environmental Law.
(4) Mortgagor has no knowledge of or reason to
believe there is any pending or threatened
investigation, claim, or proceeding of any kind
relating to (a) any Hazardous Substance located
on, under or about the Property or (b) any
violation by Mortgagor or any tenant of any
Environmental Law. Mortgagor shall immediately
notify Bank in writing as soon as Mortgagor has
reason to believe there is any such pending or
threatened investigation, claim, or proceeding.
In such an event, Bank has the right, but not the
obligation, to participate in any such proceeding
including the right to receive copies of any
documents relating to such proceedings.
(5) Mortgagor and every tenant have been, are and
shall remain in full compliance with any
applicable Environmental Law.
(6) There are no underground storage tanks, private
dumps or open wells located on or under the
Property and no such tank, dump or well shall be
added unless Bank first agrees in writing.
(7) Mortgagor will regularly inspect the Property,
monitor the activities and operations on the
Property, and confirm that all permits, licenses
or approvals required by any applicable
Environmental Law are obtained and complied with.
(8) Mortgagor will permit, or cause any tenant to
permit, Bank or Bank's agent to enter and inspect
the Property and review all records at any
reasonable time to determine: (a) the existence,
location and nature of any Hazardous Substance
on, under or about the Property; (b) the
existence, location, nature, and magnitude of any
Hazardous Substance that has been released on,
under or about the Property; (c) whether or not
Mortgagor and any tenant are in compliance with
any applicable Environmental Law.
(9) Upon Bank's request, Mortgagor agrees, at
Mortgagor's expense, to engage a qualified
environmental engineer to prepare an
environmental audit of the Property and to submit
the results of such audit to Bank. The choice of
the environmental engineer who will perform such
audit is subject to the approval of Bank.
(10) Bank has the right, but not the obligation, to
perform any of Mortgagor's obligations under this
paragraph at Mortgagor's expense.
(11) As a consequence of any breach of any
representation, warranty or promise made in this
paragraph, (a) Mortgagor will indemnify and hold
Bank and Bank's successors or assigns harmless
from and against all losses, claims, demands,
liabilities, damages, cleanup, response and
remediation costs, penalties and expenses,
including without limitation all costs of
litigation and reasonable attorneys' fees, which
Bank and Bank's successors or assigns may
sustain; and (b) at Bank's discretion, Bank may
release this Mortgage and in return Mortgagor
will provide Bank with collateral of at least
equal value to the Property secured by this
Mortgage without prejudice to any of Bank's
rights under this Mortgage.
(12) Notwithstanding any of the language contained in
this Mortgage to the contrary, the terms of this
paragraph shall survive any foreclosure or
satisfaction of any deed of trust, mortgage or
any obligation regardless of any passage of title
to Bank or any disposition by Bank of any or all
of the Property. Any claims and defenses to the
contrary are hereby waived.
18. INSPECTION BY BANK. Bank or its agents may make or cause to be made
reasonable entries upon the Property and inspect the Property provided
that Bank shall make reasonable efforts to give Mortgagor prior notice of
any such inspection.
19. PROTECTION OF BANK'S SECURITY. If Mortgagor fails to perform any
covenant, obligation or agreement contained in the Note, this Mortgage or
any loan documents or if any action or proceeding is commenced which
materially affects Bank's interest in the Property, including, but not
limited to, foreclosure, eminent domain, insolvency, housing or
Environmental Law or law enforcement, or arrangements or proceedings
involving a bankrupt or decedent, then Bank, at Bank's sole option, may
make such appearances, disburse such sums, and take such action as is
necessary to protect Bank's interest. Mortgagor hereby assigns to Bank
any right Mortgagor may have by reason of any prior encumbrance on the
Property or by law or otherwise to cure any default under said prior
encumbrance. Without Bank's prior written consent, Mortgagor will not
partition or subdivide the Property.
20. COLLECTION EXPENSES. In the event of any default or action by Bank for
collection of the Obligations, for protection of the Property or for
foreclosure, Mortgagor agrees to pay all fees and expenses incurred by
Bank. Such fees and expenses include but are not limited to filing fees,
stenographer fees, witness fees, costs of publication, foreclosure
minutes, and other expenses of collecting and enforcing the Obligations
and protecting the Property. Any such collection expenses shall be added
to the principal amount of the Obligations, shall accrue interest at the
same rate as the Obligations and shall be secured by this Mortgage.
21. ATTORNEYS' FEES. In the event of any default or action by Bank for
collection of the Obligations, for protection of the Property or for
foreclosure, Mortgagor agrees to pay reasonable attorneys' fees,
paralegal fees and other legal expenses incurred by Bank. Any such
reasonable attorneys' fees shall be added to the principal amount of the
Obligations, shall accrue interest at the same rate as the Obligations
and shall be secured by this Mortgage.
22. CONDEMNATION. In the event all or any part of the Property (including but
not limited to any easement therein) is sought to be taken by private
taking or by virtue of the law of eminent domain, Mortgagor will promptly
give written notice to Bank of the institution of such proceedings.
Mortgagor further agrees to notify Bank of any attempt to purchase or
appropriate the Property or any easement therein, by any public authority
or by any other person or corporation claiming or having the right of
eminent domain or appropriation. Mortgagor further agrees and directs
that all condemnation proceeds or purchase money which may be agreed upon
or which may be found to be due shall be paid to Bank as a prepayment
under the Note. Mortgagor also agrees to notify the Bank of any
proceedings instituted for the establishment of any sewer, water,
conservation, ditch, drainage, or other district relating to or binding
upon the Property or any part thereof. All awards payable for the taking
of title to, or possession of, or damage to all or any portion of the
Property by reason of any private taking, condemnation, eminent domain,
change of grade, or other proceeding shall, at the option of Bank, be
paid to Bank. Such awards or compensation are hereby assigned to Bank,
and judgment therefor shall be entered in favor of Bank.
When paid, such awards shall be used, at Bank's option, toward the
payment of the Obligations or payment of taxes, assessments, repairs or
other items provided for in this Mortgage, whether due or not, all in
such order and manner as Bank may determine. Such application or release
shall not cure or waive any default. In the event Bank deems it necessary
to appear or answer in any condemnation action, hearing or proceeding,
Mortgagor shall hold Bank harmless from and pay all legal expenses,
including but not limited to reasonable attorneys' fees and paralegal
fees, court costs and other expenses.
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23. OTHER PROCEEDINGS. If any action or proceeding is commenced to which Bank
is made or chooses to become a party by reason of the execution of the
Note, this Mortgage, any loan documents or the existence of any
Obligations or in which Bank deems it necessary to appear or answer in
order to protect its interests, Mortgagor agrees to pay and to hold Bank
harmless for all liabilities, costs and expenses paid or incurred by Bank
in such action or proceedings, including but not limited to reasonable
attorneys' fees, paralegal fees, court costs and all other damages and
expenses.
24. WAIVER BY MORTGAGOR. To the extent not specifically prohibited by law,
Mortgagor hereby waives and releases any and all rights and remedies
Mortgagor may now have or acquire in the future relating to:
A. homestead;
B. exemptions as to the Property;
C. marshalling of liens and assets; and
D. statutes of limitations.
25. APPRAISEMENT. In the event that Mortgagor does not elect to exercise the
power of sale rights granted herein in the event of default, an
appraisement of the Property is hereby expressly waived or not, at the
option of the Bank, such option to be exercised at the time judgment is
rendered in any foreclosure hereof or at any time prior thereto.
26. PARTIAL FORECLOSURE. In case of default in the payment of the Obligations
or in case of payment by Bank of any tax, insurance premium, cost or
expense or the filing, imposition or attachment of any lien, judgment or
encumbrance, Bank shall have the right, without declaring the whole
indebtedness due and payable, to foreclose against the Property or any
part thereof on account of such specific default. This Mortgage shall
continue as a lien on any of the property not sold on foreclosure for
such unpaid balance of the Obligations.
27. BANK MAY PAY. If Mortgagor fails to pay when due any of the items it is
obligated to pay or fails to perform when obligated to perform, Bank may,
at its option:
A. pay, when due, installments of principal, interest or other
obligations, in accordance with the terms of any mortgage
senior to that of Bank's lien interest;
B. pay, when due, installments of any real estate tax imposed on
the Property; or
C. pay or perform any other obligation relating to the Property
which affects, at Bank's sole discretion, the interest of
Bank in the Property.
Mortgagor agrees to indemnify Bank and hold Bank harmless for all the
amounts so paid and for Bank's costs and expenses, including reasonable
attorneys' fees and paralegal fees.
Such payments when made by Bank shall be added to the principal balance
of the Obligations and shall bear interest at the rate provided for by
the Note as of the date of such payment. Such payments shall be a part of
this lien and shall be secured by this Mortgage, having the benefit of
the lien and its priority. Mortgagor agrees to pay and to reimburse Bank
for all such payments.
28. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Mortgagor's
performance of all duties and obligations imposed by this
Mortgage.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of Bank's
rights, remedies, privileges or right to insist upon
Mortgagor's strict performance of any provisions contained in
this Mortgage, or other loan documents, shall not be
construed as a waiver by Bank, unless any such waiver is in
writing and is signed by Bank. The acceptance by Bank of any
sum in payment or partial payment on the Obligations after
the balance is due or is accelerated or after foreclosure
proceedings are filed shall not constitute a waiver of Bank's
right to require full and complete cure of any existing
default for which such actions by Bank were taken or its
right to require prompt payment when due of all other
remaining sums due under the Obligations, nor will it cure or
waive any default not completely cured or any other defaults,
or operate as a defense to any foreclosure proceedings or
deprive Bank of any rights, remedies and privileges due Bank
under the Note, this Mortgage, other loan documents, the law
or equity.
C. AMENDMENT. The provisions contained in this Mortgage may not
be amended, except through a written amendment which is
signed by Mortgagor and Bank.
D. INTEGRATION CLAUSE. This written Mortgage and all documents
executed concurrently herewith, represent the entire
understanding between the parties as to the Obligations and
may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Mortgagor, upon request of Bank, agrees
to execute, acknowledge, deliver and record or file such
further instruments or documents as may be required by Bank
to secure the Note or confirm any lien.
F. GOVERNING LAW. This Mortgage shall be governed by the laws of
the State of OKLAHOMA, provided that such laws are not
otherwise preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to
this Mortgage, the exclusive forum, venue and place of
jurisdiction shall be in the State of OKLAHOMA, unless
otherwise designated in writing by Bank or otherwise required
by law.
H. SUCCESSORS. This Mortgage shall inure to the benefit of and
bind the heirs, personal representatives, successors and
assigns of the parties; provided however, that Mortgagor may
not assign, transfer or delegate any of the rights or
obligations under this Mortgage.
I. NUMBER AND GENDER. Whenever used, the singular shall include
the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
J. DEFINITIONS. The terms used in this Mortgage, if not defined
herein, shall have their meanings as defined in the other
documents executed contemporaneously, or in conjunction, with
this Mortgage.
K. PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Mortgage are for
convenience only and shall not be dispositive in interpreting
or construing this Mortgage.
L. IF HELD UNENFORCEABLE. If any provision of this Mortgage
shall be held unenforceable or void, then such provision
shall be severable from the remaining provisions and shall in
no way affect the enforceability of the remaining provisions
nor the validity of this Mortgage.
M. CHANGE IN APPLICATION. Mortgagor will notify Bank in writing
prior to any change in Mortgagor's name, address, or other
application information.
N. NOTICE. All notices under this Mortgage must be in writing.
Any notice given by Bank to Mortgagor hereunder will be
effective upon personal delivery or 24 hours after mailing by
first class United States mail, postage prepaid, addressed to
Mortgagor at the address indicated below Mortgagor's name on
page one of this Mortgage. Any notice given by Mortgagor to
Bank hereunder will be effective upon receipt by Bank at the
address indicated below Bank's name on page one of this
Mortgage. Such addresses may be changed by written notice to
the other party.
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O. FILING AS FINANCING STATEMENT. Mortgagor agrees and
acknowledges that this Mortgage also suffices as a financing
statement and as such, may be filed of record as a financing
statement for purposes of Article 9 of the OKLAHOMA Uniform
Commercial Code. A carbon, photographic or other reproduction
of this Mortgage is sufficient as a financing statement.
29. ACKNOWLEDGMENT. By the signature(s) below, Mortgagor acknowledges that
this Mortgage has been read and agreed to and that a copy of this
Mortgage has been received by the Mortgagor.
NOTICE
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW
THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT
IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE.
MORTGAGOR:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. [CORPORATE SEAL*]
AN OKLAHOMA CORPORATION
BY: /s/ L. WILLIAM HISER, JR.
--------------------------------
L. WILLIAM HISER, JR., PRESIDENT
/s/ SHIRLEY L. BOWMAN
--------------------------------
ATTEST
("Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
STATE OF OKLAHOMA
ss:
COUNTY OF OSAGE
Before me, a notary public in and for said County and State on this 20th day of
July, 1993, personally appeared L. WILLIAM HISER, JR., PRESIDENT to me known to
be the identical person who subscribed the name of the maker thereof to the
foregoing instrument in said capacity, and acknowledged to me that (he/she)
executed the same as (his/her) free and voluntary act and deed, and as the free
and voluntary act and deed of such corporation for the uses and purposes therein
set forth.
My commission expires:
8-20-94 /s/ GEORGIA A. HALL
- ---------------------- ----------------------------------
NOTARY PUBLIC
PLEASE RETURN THIS DOCUMENT AFTER RECORDING TO NBC BANK, 8TH & KIHEKAH, P.O.
BOX 27, PAWHUSKA, OKLAHOMA 74056.
THIS IS THE LAST PAGE OF A 6 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY FOLLOW.
- --------------------------------------------------------------------------------
Mortgage 07/20/93 Initials
RIVERSIDE PARKWAY PAGE 6
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 1
EXHIBIT 10.3
OK-107-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
TREASURER'S ENDORSEMENT [COUNTY CLERK, PAWNEE COUNTY
I hereby certify that I received $10.00 STATE OF OKLAHOMA SEAL]
and issued receipt No. 832 therefor in
payment of mortgage tax and certification 12.00
fee on the current mortgage. STATE OF OKLAHOMA
Dated this 3rd day of May, 1995 PAWNEE COUNTY
ANITA HARRIS, County Treasurer FILED OR RECORDED
Pawnee County, Oklahoma 95 MAY - 3 AM 11:01
/s/ ALISA ARGO, Deputy LB
- -------------- MARCELEE WELCH
PAWNEE COUNTY CLERK
- --------------------------------------------------------------------------------
(Space above this line for recording purposes)
MODIFICATION AGREEMENT
TO A PROMISSORY NOTE(S)
AND TO A MORTGAGE HELD BY
NBC BANK
- --------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this Modification Agreement (Agreement) is
April 3, 1995, and the parties are the following:
MORTGAGOR OF PROPERTY/BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
an OKLAHOMA corporation
P.O. Box 175
RALSTON, OKLAHOMA 74650
Tax I.D. # 73-1379352
BANK: NBC BANK
an OKLAHOMA banking corporation
8th & Kihekah
P.O. Box 27
Pawhuska, Oklahoma 74056
Tax I.D. # 73-0368670
(as Mortgagee)
2. BACKGROUND. Borrower executed a promissory-note payable to the order of
Bank dated July 20,1993, (Note) evidencing a loan (Loan) which Note is
further described as follows: Note number 3172000,.in,the principal
amount of $25,000.00, and payable on APRIL 9, 1995. As of the date of
this Agreement the principal balance on the Note is 25,000.00. The total
amount currently due on the Note is $25,000.00. Borrower and Bank hereby
agree to modify the Note on the terms contained in this Agreement
3. SECURITY. This Agreement is secured by the following type(s) (or items)
of property (Collateral):
REAL ESTATE
The real property portion of the Collateral includes the following
described property (Property) situated in PAWNEE County, OKLAHOMA,
to-wit:
LOT 9 AND LOT 10, BLOCK 13, IN THE ORIGINAL TOWNSITE OF
RALSTON, ACCORDING TO THE RECORDED PLAT THEREOF.
The term "Collateral" further includes, but is not limited to, the
following property, whether now owned or hereafter acquired, and whether
or not held by a bailee for the benefit of the Owner or owners, all:
accessions, accessories, additions, fittings, increases, insurance
benefits and proceeds, parts, products, profits, renewals, rents,
replacements, special tools and substitutions, together with all books
and records pertaining to the Collateral and access to the equipment
containing such books and records including computer stored information
and all software relating thereto, plus all cash and non-cash proceeds
and all proceeds of proceeds arising from the type(s) (items) of property
listed above.
4. MODIFICATION. The above described note(s) have been renewed and the
Renewal Note (Renewal Note) now evidences the indebtedness (Obligations)
of RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. (Borrower) to Bank as
evidenced by Borrower's promissory note payable to the order of Bank
dated April 3, 1995 evidencing a loan (Loan) in the principal amount of
$25,000.00. Subject to the actual terms and conditions under the Renewal
Note, the following provisions of the Loan have been modified to read as
follows:
THE LOAN IN THE PRINCIPAL AMOUNT OF $25,000.00 IS PAYABLE TO
BANK'S ORDER WITH INTEREST FROM APRIL 3, 1995, ON THE UNPAID
PRINCIPAL BALANCE AT THE RATE OF 12.5% PER ANNUM (CONTRACT
RATE) UNTIL THE NOTE MATURES OR THE OBLIGATION IS ACCELERATED.
AFTER MATURITY OR ACCELERATION, THE UNPAID BALANCE SHALL BEAR
INTEREST AT THE RATE SPECIFIED IN THE NOTE UNTIL PAID. THE
LOAN AND THE NOTE ARE LIMITED TO THE MAXIMUM LAWFUL AMOUNT OF
INTEREST (MAXIMUM LAWFUL INTEREST) PERMITTED UNDER FEDERAL
- --------------------------------------------------------------------------------
Modification Agreement 04/03/95 Initials SLL
RALSTON/FAIRFAX PWKY PAGE 1
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 2
OK-107-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
AND STATE LAWS. IF THE INTEREST ACCRUED AND COLLECTED EXCEEDS
THE MAXIMUM LAWFUL INTEREST AS OF THE TIME OF COLLECTION,
SUCH EXCESS SHALL BE APPLIED TO REDUCE THE PRINCIPAL AMOUNT
OUTSTANDING, UNLESS OTHERWISE REQUIRED BY LAW. IF OR WHEN NO
PRINCIPAL AMOUNT IS OUTSTANDING, ANY EXCESS INTEREST SHALL BE
REFUNDED TO BORROWER ACCORDING TO THE ACTUARIAL METHOD.
INTEREST SHALL BE COMPUTED ON THE BASIS OF A 360-DAY YEAR AND
THE ACTUAL NUMBER OF DAYS ELAPSED.
PRINCIPAL AND ACCRUED INTEREST ARE DUE AND PAYABLE IN 5 EQUAL
MONTHLY PAYMENTS OF $1,000.00 ON THE 10TH DAY OF EACH MONTH,
BEGINNING MAY 10, 1995, OR THE DAY FOLLOWING IF THE PAYMENT
DAY IS A HOLIDAY OR IS A NON-BUSINESS DAY FOR BANK. UNLESS
PAID PRIOR TO MATURITY, THE LAST SCHEDULED PAYMENT PLUS ALL
OTHER UNPAID PRINCIPAL, ACCRUED INTEREST, COSTS AND EXPENSES
ARE DUE AND PAYABLE ON OCTOBER 10, 1995, WHICH IS THE DATE OF
MATURITY. THESE PAYMENT AMOUNTS ARE BASED UPON TIMELY PAYMENT
OF EACH INSTALLMENT. ALL AMOUNTS SHALL BE PAID IN LEGAL U.S.
CURRENCY. ANY PAYMENT MADE WITH A CHECK WILL CONSTITUTE
PAYMENT ONLY WHEN COLLECTED.
5. COVENANTS AND WARRANTIES BY MORTGAGOR. Mortgagor affirmatively
represents, warrants and covenants:
A. that the Mortgage liens described herein and granted to NBC
BANK are subordinate to no other lien or interest;
B. that Mortgagor has good and marketable title to all of the
Property; and
C. that the Property is subject to no outstanding liens or other
encumbrances.
6. CONTINUATION OF ALL OTHER TERMS AND CONDITIONS. All other terms and
conditions of this Loan contained in the loan documents not specifically
referred to and modified herein continue in full force and effect.
7. RECEIPT OF COPY. Borrower acknowledges receiving a copy of this
Agreement.
BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. [CORPORATE SEAL*]
AN OKLAHOMA CORPORATION
BY: /s/ L. WILLIAM HISER
----------------------------
L. WILLIAM HISER, CHAIRMAN
/s/ STEPHEN L. LOWER
----------------------------
STEPHEN L. LOWER, PRESIDENT
/s/ GEORGIA HALL
----------------------------
ATTEST
("Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
APPROVED: APRIL 3, 1995
BANK:
NBC BANK
AN OKLAHOMA BANKING CORPORATION
[CORPORATE SEAL*]
BY: /s/ T. BRENT BALLINGER
-----------------------------
T. BRENT BALLINGER, PRESIDENT
/s/ GEORGIA HALL
-----------------------------
ATTEST
("Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
STATE OF OKLAHOMA
ss:
COUNTY OF OSAGE
Before me, a notary public in and for said County and State on this 3rd day of
April, 1995, personally appeared L. WILLIAM HISER, CHAIRMAN and STEPHEN L.
LOWER, PRESIDENT to me known to be the identical person who subscribed the name
of the maker thereof to the foregoing instrument in said capacity, and
acknowledged to me that they executed the same as their free and voluntary
act and deed, and as the free and voluntary act and deed of such corporation for
the uses and purposes therein set forth.
My commission expires:
[ILLEGIBLE] /s/ DEBBIE S. SMITH
- ---------------------- -------------------
NOTARY PUBLIC
[NOTARY SEAL]
- --------------------------------------------------------------------------------
Modification Agreement 04/03/95 Initials
RALSTON/FAIRFAX PWKY PAGE 2
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 3
OK-107-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
STATE OF OKLAHOMA
ss:
COUNTY OF OSAGE
Before me, a notary public in and for said County and State on this 3rd day of
April, 1995, personally appeared T. BRENT BALLINGER, PRESIDENT, to me known to
be the identical person who subscribed the name of the maker thereof to the
foregoing instrument in said capacity, and acknowledged to me that (he/she)
executed the same as (his/her) free and voluntary act and deed, and as the free
and voluntary act and deed of such corporation for the uses and purposes therein
set forth.
My commission expires:
[ILLEGIBLE] /s/ DEBBIE S. SMITH
- ---------------------- -------------------
NOTARY PUBLIC
[NOTARY SEAL]
PLEASE RETURN THIS DOCUMENT AFTER RECORDING TO NBC BANK, 8TH & KIHEKAH, P.O.
BOX 27, PAWHUSKA, OKLAHOMA 74056.
THIS IS THE LAST PAGE OF A 3 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY FOLLOW.
- --------------------------------------------------------------------------------
Modification Agreement 04/03/95 Initials
RALSTON/FAIRFAX PWKY PAGE 3
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 4
OK-107-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
NOTICE AND CONSENT TO MODIFICATION BY GUARANTOR
GUARANTOR:
AGNES WARREN
3212 BLUE SAGE DRIVE
WOODWARD, OK 73801
L. WILLIAM HISER, JR.
14 WESTWIND-DIAMOND HEAD
SAND SPRINGS, OK 74063
STEPHEN L. LOWER
1100 W. FULTON
BROKEN ARROW, OK 74012
BANK:
NBC BANK
an OKLAHOMA banking corporation
8th & Kihekah
P.O. Box 27
Pawhuska, Oklahoma 74056
Tax I.D. # 73-0368670
NBC BANK hereby notifies Guarantor, and Guarantor acknowledges, that Borrower
has requested a modification to the terms of the Loan and that Bank has agreed
to modify the Loan, subject to the terms and conditions contained in a
Modification Agreement dated April 3, 1995, and executed by RALSTON/FAIRFAX
RIVERSIDE PARKWAY, INC. (Borrower). Guarantor unconditionally consents to such
modification.
Except to the extent that the Modification Agreement expressly modifies the
terms and conditions of the Loan, Guarantor acknowledges that the terms and
conditions of the Note and Guaranty Agreement continue in full force and
effect.
Dated: 4-13-95
-------
GUARANTOR:
/s/ AGNES WARREN
-------------------------
AGNES WARREN
INDIVIDUALLY
/s/ L. WILLIAM HISER, JR.
-------------------------
L. WILLIAM HISER, JR.
INDIVIDUALLY
/s/ STEPHEN L. LOWER
-------------------------
STEPHEN L. LOWER
INDIVIDUALLY
STATE OF OKLAHOMA
ss:
COUNTY OF WOODWARD
Before me, a notary public in and for said County and State, on this 13th day of
April, 1995, personally appeared AGNES WARREN, to me known to be the identical
person who executed the within and foregoing instrument, and acknowledged to me
that (he/she) executed the same as (his/her) free and voluntary act and deed for
the uses and purposes therein set forth.
My commission expires:
10-26-97 /s/ SHIRLEY ALLISON
- ---------------------- -------------------
NOTARY PUBLIC
STATE OF OKLAHOMA
ss:
COUNTY OF OSAGE
Before me, a notary public in and for said County and State, on this 13th day of
April, 1995, personally appeared L. WILLIAM HISER, JR., to me known to be the
identical person who executed the within and foregoing instrument, and
acknowledged to me that (he/she) executed the same as (his/her) free and
voluntary act and deed for the uses and purposes therein set forth.
My commission expires:
4-7-97 /s/ DEBBIE S. SMITH
- ---------------------- -------------------
NOTARY PUBLIC
STATE OF OKLAHOMA
ss:
COUNTY OF OSAGE
Before me, a notary public in and for said County and State, on this 13th day of
April, 1995, personally appeared STEPHEN L. LOWER, to me known to be the
identical person who executed the within and foregoing instrument, and
acknowledged to me that (he/she) executed the same as (his/her) free and
voluntary act and deed for the uses and purposes therein set forth.
My commission expires:
4-7-97 /s/ DEBBIE S. SMITH
- ---------------------- -------------------
NOTARY PUBLIC
<PAGE> 1
EXHIBIT 10.4
OK-83-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
- --------------------------------------------------------------------------------
(Space above this line for recording purposes)
LOAN EXTENSION AGREEMENT
for Promissory Note and Mortgage held by
NBC BANK
- --------------------------------------------------------------------------------
1. DATE AND PARTIES. The date of this Extension Agreement (Agreement) is May
1, 1996 and the parties are the following:
MORTGAGOR OF PROPERTY/BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
an OKLAHOMA corporation
P.O. Box 175
RALSTON, OKLAHOMA 74650
Tax I.D. # 73-1379352
BANK:
NBC BANK
an OKLAHOMA banking corporation
8th & Kihekah
P.O. Box 27
Pawhuska, Oklahoma 74056
Tax I.D. # 73-0368670
2. BACKGROUND. Borrower executed a promissory note payable to the order of
Bank dated July 20, 1993, (Note) evidencing a loan (Loan) which Note is
further described as follows: Note number 3172000, in the principal
amount of $25,000.00, and payable on APRIL 15, 1996. As of the date of
this Agreement, the principal balance on the Note is $16,610.22, and the
accrued interest is $247.99. The total amount currently due on the Note
is $16,858.21. Borrower and Bank hereby agree to extend the Note on the
terms contained in this Agreement.
3. SECURITY. This Agreement is secured by the following type(s) (or items)
of property (Collateral):
REAL ESTATE
The real property portion of the Collateral includes the following
described property (Property) situated in PAWNEE County, OKLAHOMA,
to-wit.
LOT 9 AND LOT 10, BLOCK 13, IN THE ORIGINAL TOWNSITE OF RALSTON,
ACCORDING TO THE RECORDED PLAT THEREOF.
The term "Collateral" further includes, but is not limited to, the
following property, whether now owned or hereafter acquired, and whether
or not held by a bailee for the benefit of the Owner or owners, all:
accessions, accessories, additions, fittings, increases, insurance
benefits and proceeds, parts, products, profits, renewals, rents,
replacements, special tools and substitutions, together with all books
and records pertaining to the Collateral and access to the equipment
containing such books and records including computer stored information
and all software relating thereto, plus all cash and non-cash proceeds
and all proceeds of proceeds arising from the type(s) (items) of property
listed above.
4. TERMS. Borrower shall pay Bank as follows:
A. THE NOTE IS HEREBY AMENDED TO PROVIDE THAT FROM THE DATE OF
THIS AGREEMENT, THE UNPAID PRINCIPAL OF $16,858.21
(PRINCIPAL) WILL ACCRUE INTEREST AT THE RATE OF 12.5% PER
ANNUM (CONTRACT RATE) UNTIL THE NOTE MATURES OR THE
OBLIGATION IS ACCELERATED. AFTER MATURITY OR ACCELERATION,
THE UNPAID BALANCE SHALL BEAR INTEREST AT THE RATE SPECIFIED
IN THE NOTE UNTIL PAID. THE LOAN AND THE NOTE ARE LIMITED TO
THE MAXIMUM LAWFUL AMOUNT OF INTEREST (MAXIMUM LAWFUL
INTEREST) PERMITTED UNDER FEDERAL AND STATE LAWS. IF THE
INTEREST ACCRUED AND COLLECTED EXCEEDS THE MAXIMUM LAWFUL
INTEREST AS OF THE TIME OF COLLECTION, SUCH EXCESS SHALL BE
APPLIED TO REDUCE THE PRINCIPAL AMOUNT OUTSTANDING, UNLESS
OTHERWISE REQUIRED BY LAW. IF OR WHEN NO PRINCIPAL AMOUNT IS
OUTSTANDING, ANY EXCESS INTEREST SHALL BE REFUNDED TO
BORROWER ACCORDING TO THE ACTUARIAL METHOD. INTEREST SHALL BE
COMPUTED ON THE BASIS OF A 360-DAY YEAR AND THE ACTUAL NUMBER
OF DAYS ELAPSED.
B. PRINCIPAL AND ACCRUED INTEREST ARE DUE AND PAYABLE IN 18
EQUAL MONTHLY PAYMENTS OF $1,000.00 ON THE 15TH DAY OF EACH
MONTH, BEGINNING MAY 15, 1996, OR THE DAY FOLLOWING IF THE
PAYMENT DAY IS A HOLIDAY OR IS A NON-BUSINESS DAY FOR BANK.
UNLESS PAID PRIOR TO MATURITY, THE LAST SCHEDULED PAYMENT
PLUS ALL OTHER UNPAID PRINCIPAL, ACCRUED INTEREST, COSTS AND
EXPENSES ARE DUE AND PAYABLE ON NOVEMBER 15, 1997, WHICH IS
THE DATE OF MATURITY. THESE PAYMENT AMOUNTS ARE BASED UPON
TIMELY PAYMENT OF EACH INSTALLMENT. ALL AMOUNTS SHALL BE PAID
IN LEGAL U.S. CURRENCY. ANY PAYMENT MADE WITH A CHECK WILL
CONSTITUTE PAYMENT ONLY WHEN COLLECTED.
- --------------------------------------------------------------------------------
Extension Agreement 05/01/96 Initials
RALSTON/FAIRFAX PWKY PAGE 1
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 2
OK-83-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
5. WARRANTIES. To induce Bank to enter into this Agreement, Borrower
warrants that:
A. Borrower has no existing defenses or right of offset against
the Note or any documents securing the Note.
B. Borrower reaffirms all of the terms of the Note and any
documents securing the Note.
C. Since the Note was signed by Borrower, the ownership of the
property securing the Note has not been altered nor has any
lien or claim been filed or threatened to be filed against
the property (other than Bank's lien securing the Note).
6. CONTINUATION OF PROVISIONS. Except as expressly modified in this
Agreement, all of the provisions of the Note and any other documents
securing the Note remain in full force and effect.
7. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in Borrower's
performance of all duties and obligations imposed by this
Agreement.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of Bank's
rights, remedies, privileges or right to insist upon
Borrower's strict performance of any provisions contained in
this Agreement, or other loan documents, shall not be
construed as a waiver by Bank, unless any such waiver is in
writing and is signed by Bank.
C. AMENDMENT. The provisions contained in this Agreement may not
be amended, except through a written amendment which is
signed by Borrower and Bank.
D. INTEGRATION CLAUSE. This written Agreement and all documents
executed concurrently herewith, represent the entire
understanding between the parties as to the Obligations and
may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Borrower, upon request of Bank, agrees to
execute, acknowledge, deliver and record or file such further
instruments or documents as may be required by Bank to secure
the Note or confirm any lien.
F. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of OKLAHOMA, provided that such laws are not
otherwise preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to
this Agreement, the exclusive forum, venue and place of
jurisdiction shall be in the State of OKLAHOMA, unless
otherwise designated in writing by Bank or otherwise required
by law.
H. SUCCESSORS. This Agreement shall inure to the benefit of and
bind the heirs, personal representatives, successors and
assigns of the parties; provided however, that Borrower may
not assign, transfer or delegate any of the rights or
obligations under this Agreement.
I. NUMBER AND GENDER. Whenever used, the singular shall include
the plural, the plural the singular, and the use of any
gender shall be applicable to all genders.
J. DEFINITIONS. The terms used in this Agreement, if not defined
herein, shall have their meanings as defined in the other
documents executed contemporaneously, or in conjunction, with
this Agreement.
K PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Agreement are for
convenience only and shall not be dispositive in interpreting
or construing this Agreement.
L. IF HELD UNENFORCEABLE. If any provision of this Agreement
shall be held unenforceable or void, then such provision to
the extent not otherwise limited by law shall be severable
from the remaining provisions and shall in no way affect the
enforceability of the remaining provisions nor the validity
of this Agreement.
M. CHANGE IN APPLICATION. Borrower will notify Bank in writing
prior to any change in Borrower's name, address, or other
application information.
N. NOTICE. All notices under this Agreement must be in writing.
Any notice given by Bank to Borrower hereunder will be
effective upon personal delivery or 24 hours after mailing by
first class United States mail, postage prepaid, addressed to
Borrower at the address indicated below Borrower's name on
page one of this Agreement. Any notice given by Borrower to
Bank hereunder will be effective upon receipt by Bank at the
address indicated below Bank's name on page one of this
Agreement. Such addresses may be changed by written notice to
the other party.
8. RECEIPT OF COPY. Borrower acknowledges receiving a copy of this
Agreement.
MORTGAGOR/BORROWER:
RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC. [CORPORATE SEAL*]
AN OKLAHOMA CORPORATION
BY: /s/ L. WILLIAM HISER
----------------------------
L. WILLIAM HISER, CHAIRMAN
/s/ STEPHEN L. LOWER
----------------------------
STEPHEN L. LOWER, PRESIDENT
----------------------------
ATTEST
(*Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
APPROVED: MAY 1, 1996
BANK:
NBC BANK
AN OKLAHOMA BANKING CORPORATION [CORPORATE SEAL*]
BY:
-----------------------------
T. BRENT BALLINGER, PRESIDENT
-----------------------------
ATTEST
- --------------------------------------------------------------------------------
Extension Agreement 05/01/96 Initials
RALSTON/FAIRFAX PWKY PAGE 2
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 3
OK-83-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
(*Corporate seal may be affixed, but failure to affix shall not affect validity
or reliance.)
STATE OF
------------------
ss:
COUNTY OF
------------------
Before me, a notary public in and for said County and State on this ___ day of
_________, 19__, L. WILLIAM HISER, CHAIRMAN and STEPHEN L. LOWER, PRESIDENT to
me known to be the identical person who subscribed the name of the maker
thereof to the foregoing instrument in said capacity, and acknowledged to me
that (they) executed the same as (their) free and voluntary act and deed,
and as the free and voluntary act and deed of such corporation for the uses and
purposes therein set forth.
My commission expires:
- ---------------------- --------------------------------
NOTARY PUBLIC
STATE OF
------------------
ss:
COUNTY OF
------------------
Before me, a notary public in and for said County and State, on this ___ day of
_________, 19__, personally appeared T. BRENT BALLINGER, PRESIDENT, to me known
to be the identical person who subscribed the name of the maker thereof to the
foregoing instrument in said capacity, and acknowledged to me that (he/she)
executed the same as (his/her) free and voluntary act and deed, and as the free
and voluntary act and deed of such banking corporation for the uses and purposes
therein set forth. My commission expires:
- ---------------------- --------------------------------
NOTARY PUBLIC
PLEASE RETURN THIS DOCUMENT AFTER RECORDING TO NBC BANK, 8TH & KIHEKAH,
P.O. BOX 27, PAWHUSKA, OKLAHOMA 74056.
THIS IS THE LAST PAGE OF A 3 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY FOLLOW.
- --------------------------------------------------------------------------------
Extension Agreement 05/01/96 Initials
RALSTON/FAIRFAX PWKY PAGE 3
**READ ANY PAGE WHICH FOLLOWS FOR ANY REMAINING PROVISIONS.**
<PAGE> 4
OK-83-070794-2.64 Copyright 1984, Bankers Systems, Inc. St. Cloud, MN 56301
NOTICE AND CONSENT TO EXTENSION BY GUARANTOR
GUARANTOR:
AGNES WARREN
3212 BLUE SAGE DRIVE
WOODWARD, OK 73801
L. WILLIAM HISER, JR.
14 WESTWIND-DIAMOND HEAD
SAND SPRINGS, OK 74063
STEPHEN L. LOWER
1100 W. FULTON
BROKEN ARROW, OK 74012
BANK:
NBC BANK
an OKLAHOMA banking corporation
8th & Kihekah
P.O. Box 27
Pawhuska, Oklahoma 74056
Tax I.D. # 73-0368670
NBC BANK hereby notifies Guarantor, and Guarantor acknowledges, that Borrower
has requested an extension of the Loan and that Bank has agreed to modify the
Loan, subject to the terms and conditions contained in an extension Agreement
dated May 1, 1996, and executed by RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC.
(Borrower). Guarantor unconditionally consents to such extension.
Except to the extent that the Extension Agreement expressly modifies the terms
and conditions of the Loan, Guarantor acknowledges that the terms and
conditions of the Note and Guaranty Agreement continue in full force and
effect.
Dated:
--------------------
GUARANTOR:
-------------------------
AGNES WARREN
INDIVIDUALLY
/s/ L. WILLIAM HISER, JR.
-------------------------
L. WILLIAM HISER, JR.
INDIVIDUALLY
/s/ STEPHEN L. LOWER
-------------------------
STEPHEN L. LOWER
INDIVIDUALLY
STATE OF )
--------------
ss:
COUNTY OF )
-------------
Before me, a notary public in and for said County and State, on this ____ day of
_________, 19__, personally appeared AGNES WARREN, to me known to be the
identical person who executed the within and foregoing instrument, and
acknowledged to me that (he/she) executed the same as (his/her) free and
voluntary act and deed for the uses and purposes therein set forth.
My commission expires:
- ---------------------- --------------------------------
NOTARY PUBLIC
STATE OF )
--------------
ss:
COUNTY OF )
-------------
Before me, a notary public in and for said County and State, on this ____ day
of _________, 19__, personally appeared L. WILLIAM HISER, to me known to be the
identical person who executed the within and foregoing instrument, and
acknowledged to me that (he/she) executed the same as (his/her) free and
voluntary act and deed for the uses and purposes therein set forth.
My commission expires:
- ---------------------- --------------------------------
NOTARY PUBLIC
STATE OF )
--------------
ss:
COUNTY OF )
-------------
Before me, a notary public in and for said County and State, on this ____ day
of _________, 19__, personally appeared STEPHEN L. LOWER, to me known to be the
identical person who executed the within and foregoing instrument, and
acknowledged to me that (he/she) executed the same as (his/her) free and
voluntary act and deed for the uses and purposes therein set forth.
My commission expires:
- ---------------------- --------------------------------
NOTARY PUBLIC
<PAGE> 1
EXHIBIT 10.5
<TABLE>
___________________________________________________________________________________________________________
<S> <C> <C>
RALSTON/RIVERSIDE PARKWAY INC. FIRST NATIONAL BANK IN PAWHUSKA ACCOUNT #: 666580
7136 S. YALE, SUITE 300 100 W MAIN ST PO BOX 809 Loan Number _______________________
TULSA, OK 74136 PAWHUSKA, OK 74056 Date FEBRUARY 10, 1995
______________________________ Maturity Date APRIL 11, 1995
______________________________ Loan Amount $20,060.00
______________________________ Renewal Of ________________________
BORROWER'S NAME AND ADDRESS LENDER'S NAME AND ADDRESS
"I" includes each borrower "You" means the lender, its
above, joint and severally. successors and assigns.
___________________________________________________________________________________________________________
For value received, I promise to pay to you, of your order, at your address listed above the PRINCIPAL sum
of TWENTY THOUSAND SIXTY AND NO/100 * * * * * * * * * * Dollars $20,060.00
[XX] SINGLE ADVANCE: I will receive all of this principal sum on FEBRUARY 10, 1995. No additional advances
are contemplated under this note.
[ ] MULTIPLE ADVANCE: The principal sum shown above is the maximum amount of principal I can borrow under
this note. On _____________________ I will receive the amount of $___________________ and future
principal advances are contemplated.
Conditions: The conditions for future advances are
___________________________________________________
______________________________________________________________________________________________________
______________________________________________________________________________________________________
[ ] OPEN END CREDIT: You and I agree that I may borrow up to the maximum amount of principal more than
one time. This feature is subject to all other conditions and expires on________________________.
[ ] CLOSED END CREDIT: You and I agree that I may borrow up to the maximum only one time (and subject
to all other conditions).
INTEREST: I agree to pay interest on the outstanding principal balance from FEBRUARY 10, 1995 at the rate
of 12.000% per year until APRIL 11, 1995.
[ ] VARIABLE RATE: This rate may then change as stated below.
[ ] INDEX RATE: The future rate will be _____________________ the following index rate:_______________
______________________________________________________________________________________________________
______________________________________________________________________________________________________
[ ] NO INDEX: The future rate will not be subject to any internal or external index. It will be
entirely in your control.
[ ] FREQUENCY AND TIMING: The rate on this note may change as often as ______________________________.
A change in the interest rate will take effect ________________________________________________.
[ ] LIMITATIONS: During the term of this loan, the applicable annual interest rate will not be more
than ______________% or less than _______________________%.
EFFECT OF VARIABLE RATE: A change in the interest rate will have the following effect on the payments:
[ ] The amount of each scheduled payment will change. [ ] The amount of the final payment will change.
[ ] .
_________________________________________________________________________________________________
ACCRUAL METHOD: Interest will be calculated on a ACTUAL/365 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note owing after maturity, and
until paid in full, as stated below:
[xx] on the same fixed or variable rate basis in effect before maturity (as indicated above).
[ ] at a rate equal to .
_____________________________________________________________________________
[ ] LATE CHARGE: If a payment is made more than ___________ days after it is due, I agree to pay a late
charge of .
___________________________________________________________________________________________
[ ] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following charges which [ ] are
[ ] are not included in the principal amount above:_________________________________________________.
PAYMENTS: I agree to pay this note as follows:
[XX] INTEREST: I agree to pay accrued interest WITH THE PRINCIPAL.
_____________________________________________________________________________________________________
[XX] PRINCIPAL: I agree to pay the principal APRIL 11, 1995.
_____________________________________________________________________________________________________
[XX] INSTALLMENTS: I agree to pay this note in _______ payments. The first payment will be in the amount
of $_________________ and will be due ________________________________________________________. A
payment of $_____________ will be due ____________________________________________________ thereafter.
The final payment of the entire unpaid balance of principal and interest will be due_________________
.
ADDITIONAL TERMS:
THIS NOTE IS FURTHER SECURED BY COLLATERAL AS DESCRIBED IN SECURITY AGREEMENT ATTACHED DATED 02/10/95.
PURPOSE: The purpose of this loan is BUSINESS: SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE
CONSTRUCTION EXPENSE INCLUDING THOSE ON PAGE 2). I have received a copy
on today's date.
Signature for Lender RALSTON/RIVERSIDE PARKWAY INC.
X BY:
______________________________________________ ____________________________________________________
WILLIAM J. DICKERSON, PRESIDENT L. WILLIAM HISER, JR., CHAIRMAN
______________________________________________ ____________________________________________________
UNIVERSAL NOTE ____________________________________________________
@ 1984, 1991 BANKERS SYSTEMS, INC., ST. CLOUD, MN (1-800-397-2341) FORM UN 6/30/91 (page 1 of 2)
</TABLE>
<PAGE> 1
EXHIBIT 10.6
<TABLE>
__________________________________________________________________________________________________________
<S> <C>
RALSTON/RIVERSIDE PARKWAY INC. FIRST NATIONAL BANK IN PAWHUSKA
7136 S. YALE, SUITE 300 100 W MAIN ST PO BOX 809
TULSA, OK 74136 PAWHUSKA, OK 74056
_____________________________________________________
TAXPAYER I.D. NUMBER: -
_____________________________________________________
DEBTOR'S NAME, ADDRESS AND SSN OR TIN SECURED PARTY'S NAME AND ADDRESS
("I" means each Debtor who signs.) ("You" means the Secured Party, its successors
and assigns.)
___________________________________________________________________________________________________________
I am entering into this security agreement with you on FEBRUARY 10, 1995 (date).
SECURED DEBTS. I agree that this security agreement will secure the payment and performance of the debts,
liabilities or obligations described below that (Check one) [XX] I [ ] (name)
________________________
______________________________________________________________________________________________________
owes(s) to you now or in the future: (Check one below):
[XX] SPECIFIC DEBT(S). The debt(s), liability or obligations evidenced by (describe):
PROMISSORY NOTE DATED 2/10/95 IN THE PRINCIPAL AMOUNT OF $20,060.00 PLUS INTEREST and all
extensions, renewals, refinancings, modifications and replacements of the debt, liability
or obligation.
[ ] All Debt(s). Except in those cases listed in the "LIMITATIONS" paragraph on page 2, each and every
debt, liability and obligation of every type and description (whether such debt, liability or
obligation now exists or is incurred or created in the future and whether it is or may be direct or
indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several or joint and several).
SECURITY INTEREST. To secure the payment and performance of the above described Secured Debts, liabilities
and obligations, I give you a security interest in all of the property described below that I now own
and that I may own in the future (including, but not limited to, all parts, accessories, repairs,
improvements, and accessions to the property), wherever the property is or may be located, and all
proceeds and products from the property.
[ ] INVENTORY: All Inventory which I hold for ultimate sale or lease, or which has been or will be
supplied under contracts of service, or which are raw materials, work in process, or materials
used or consumed in my business.
[ ] EQUIPMENT: All equipment including, but not limited to, all machinery, vehicles, furniture,
fixtures, manufacturing equipment, farm machinery and equipment, shop equipment, office and
recordkeeping equipment, and parts and tools. All equipment described in a list or schedule
which I give to you will also be included in the secured property, but such a list is not
necessary for a valid security interest in my equipment.
[ ] FARM PRODUCTS: All farm products including, but not limited to:
(a) all poultry and livestock and their young, along with their products, produce and
replacements;
(b) all crops, annual or perennial, and all products of the crops; and
(c) all feed, seed, fertilizer, medicines, and other supplies used or produced in my farming
operations.
[ ] ACCOUNTS, INSTRUMENTS, DOCUMENTS, CHATTEL PAPER AND OTHER RIGHTS IN PAYMENT: All rights I have
now and that I may have in the future to the payment of money including, but not limited to:
(a) payment for goods and other property sold or leased or for services rendered, whether or not
I have earned such payment by performance; and
(b) rights to payment arising out of all present and future debt instruments, chattel paper and
loans and obligations receivable.
The above include any rights and interests (including all liens and security interests) which I may
have by law or agreement against any account debtor or obligor of mine.
[ ] GENERAL INTANGIBLES: All general intangibles including, but not limited to, tax refunds,
applications for patents, patents, copyrights, trademarks, trade secrets, good will, trade names,
customer lists, permits and franchises, and the right to use my name.
[ ] GOVERNMENT PAYMENTS AND PROGRAMS: All payments, accounts, general intangibles, or other benefits
(including, but not limited to, payments in kind, deficiency payments, letters of entitlement,
warehouse receipts, storage payments, emergency assistance payments, diversion payments, and
conservation reserve payments) in which I now have and in the future may have any rights or
interest and which arise under or as a result of any preexisting, current or future Federal or
state governmental program (including, but not limited to, all programs administered by the
Commodity Credit Corporation and the ASCS).
[XX] The secured property includes, but is not limited by, the following: ASSIGNMENT OF TRIANGLE BUILDING
LEASE FROM SHADOW MOUNTAIN HOSPITAL INC., TULSA, OKLAHOMA DATED 12/22/94, IN THE AMOUNT OF $51,768.00
EXPIRES 12/31/1997
If this agreement covers timber to be cut, minerals (including oil and gas), fixtures or crops growing or
to be grown, the legal description is:
__________________________________________________________________________________________________________
I am a(n) [ ] individual [ ] partnership I AGREE TO THE TERMS SET OUT ON PAGES 1 AND 2 OF
[XX] corporation THIS AGREEMENT. I have received a copy of this
[ ] ______________________________ document on today's date.
[ ] If checked, file this agreement in the
real estate records.
Record Owner (if not me):_____________________
RALSTON/RIVERSIDE PARKWAY INC.
______________________________________________ ____________________________________________________
_____________________________________________. (Debtor's Name)
The property will be used for [ ] personal By:
[XX] business [ ] agricultural _________________________________________________
[ ] ____________________________ reasons. L. WILLIAM HISER, JR.
FIRST NATIONAL BANK IN PAWHUSKA Title: CHAIRMAN
______________________________________________ _____________________________________________
(Secured Party's Name)
By: By:
___________________________________________ _________________________________________________
WILLIAM J. DICKERSON, PRESIDENT
Title: PRESIDENT Title:
______________________________________ ______________________________________________
@ 1986, 1990 BANKERS SYSTEMS, INC., ST. CLOUD, MN (1-800-397-2341) SECURITY AGREEMENT FORM SA-OK 7/9/91
(page 1 of 2)
</TABLE>
<PAGE> 1
EXHIBIT 10.7
CONTRACT OF SALE
THIS AGREEMENT dated as of June 30, 1993 by and between JOHN GUTHRIE and
LYN GUTHRIE, husband and wife ("Seller"), and RIVERSIDE PARKWAY, INC., an
Oklahoma corporation ("Buyer").
W I T N E S E T H:
1. Agreement to Sell and Purchase. Subject to the terms and
conditions of this Agreement, Buyer hereby offers to purchase from Seller, and
Seller hereby agrees to sell to Buyer the following described property
(collectively, the "Property"):
(i) The surface of the real estate (the "Land") described as
follows:
Beginning at the southwest corner of Lot 33, Block 84 of
the City of Pawhuska; Thence, 62' in a westerly direction
across Osage Avenue, being the place of beginning; Thence,
in a northerly direction along Osage Avenue, 111'; Thence,
due westerly 16'; Thence, in a southwesterly direction
along Kikekah Avenue, 119'; Thence, in a easterly along
Main Street, 62' to the Place of Beginning;
a/k/a Triangle Building in Osage County, Oklahoma, not including all of
Seller's right, title, interest and estate in and to oil, gas and other
minerals in and under the Land not previously reserved or conveyed of record;
(ii) all of the buildings, structures and improvements in, upon
and under the Land, including but not limited to that certain office building
containing approximately 21,090 square feet of interior space, together with
those certain separate storage and garage buildings associated therewith,
including any and all permanently attached fixtures and equipment therein and
thereon including but not limited to all electrical, mechanical, heating,
ventilation, plumbing and other utility fixtures (the "Improvements");
(iii) all of the appurtenances belonging to the Land and all of
Seller's right, title and interest in and to all streets, alleys and other
public or private ways adjacent thereto, before or after vacation thereof.
(iv) The Property to be sold in "as is" condition.
<PAGE> 2
2. Purchase Price. The purchase price which Buyer shall pay to
Seller for the Property shall be FIFTY-TWO THOUSAND AND NO/100 Dollars
($52,000.00), payable in the following manner:
(a) Upon execution of this Agreement Buyer shall pay Seller as
earnest money, ONE THOUSAND FIVE HUNDRED SIXTY AND NO/100 DOLLARS ($1,560.00).
(b) At Closing, Buyer shall pay by certified check, EIGHT
THOUSAND EIGHT HUNDRED FORTY AND NO/100 Dollars ($8,840.00).
(c) Buyer, as evidenced by a promissory note shall within
thirty (30) days of closing pay principal and accrued interest for the first
year in 12 monthly installments of $843.50, with an additional $2,951.26 lump
sum due on or before August 15, 1994;
(d) Beginning August 16, 1994, buyer shall pay in 12 monthly
installments of $771.45, with an additional $3,018.29 lump sum due on or before
August 15, 1995;
(e) Beginning August 16, 1995, buyer shall pay in 12 monthly
installments of $676.87, with an additional $3,365.81 lump sum due on or before
August 15, 1996;
(f) Beginning August 16, 1996, buyer shall pay in 12 monthly
installments of $524.64, with an additional $6,031.07 lump sum due on or
before August 15, 1997. Note to be paid in full no later than August 15, 1997,
including principal and interest.
(g) Each of the foregoing monthly payments shall be payable
on or before the first of each month.
3. Time and Place of Closing. Closing shall be held at the offices
of Pawhuska Abstract & Title Company, Pawhuska, Oklahoma, as escrow agents, at
2:00 p.m., Sunday, August 15, 1993 (the "Closing Date"), at the offices of
Buyer, or at such other location or at such earlier date and time as Buyer may
select provided Buyer shall have given Seller at least ten (10) days' advance
written notice thereof. In no event shall Closing be held earlier than plus or
minus thirty (30) days from July 16, 1993.
4. Pre-Closing Requirements. Within ten (10) days from the date of
acceptance by Seller or such later time as may be provided for with respect to
specific matters Seller, at Seller's sole cost and expense (except where stated
otherwise) shall furnish, or cause to be furnished, to Purchaser each of the
following items:
2
<PAGE> 3
4.1 Title Insurance Commitment. Buyer shall furnish a
commitment for an ALTA 1987 owner's policy of title insurance (the
"Commitment") issued by a title company in the amount of the purchase price,
showing marketable record title to the Land and Improvements in Seller
according to the Title Standards adopted by the Oklahoma Bar Association,
subject to the recorded plat restrictions, recorded utility easements and
zoning ordinances, less and except any of the oil, gas and other minerals
previously reserved or conveyed of record, and subject to such other exceptions
or encumbrances of record which may be approved in writing by Buyer (the
"Permitted Title Exceptions"), provided, however, that the plat restrictions,
utility easements, zoning ordinances and other recorded exceptions shall not
impair the continued usage of the Property as an historical office complex.
Copies of all instruments constituting an exception in the Commitment shall
accompany the Commitment. The policy, when issued, shall (a) insure over
encroachments, overlaps, boundary line disputes and any other matters which
would be disclosed by an accurate survey and inspection and shall delete all
exceptions relating to survey matters and to mechanics' and materialmen's liens
and (b) contain an affirmative zoning endorsement.
4.2 Buyer shall pay the abstracting charges and premium, for
the owner's title policy.
5. Structural and Mechanical Inspection.
5.1. Inspection. Buyer shall have the privilege at Buyer's cost
and expense for a period of fifteen (15) days following the date hereof to have
an engineering study made by an engineer of Buyer's choice to determine that
all mechanical equipment comprising a part of the Improvements is in good
operating condition and that there are no substantial structural defects or
violations of any zoning, building or other applicable ordinance or regulation
with respect to any of the Improvements or any environmental hazard conditions.
5.2. Environmental Inspection. Buyer hereby takes full
responsibility and liability for any and all environmental hazardous conditions
and remedial measures required therefrom regarding the subject real property
and indemnify Seller of same.
6. Buyer's Objections as to Status of Title; Seller's Option to
Cure. Buyer understands it is purchasing the subject real property "as is";
however Buyer upon receipt and review of the title of the subject real property
shall be entitled to deliver to Seller any specific objections to the status of
title.
7. Insurance.
7.1 Insurance and Risk of Loss Pending Closing. Seller shall
immediately cause all fire and similar hazard insurance policies covering the
Property
3
<PAGE> 4
to be endorsed to protect the parties hereto as their respective interests may
appear, and shall continue the insurance in force during the life of this
Agreement. The risk of loss or damage to or destruction of the Property
occurring prior to the Closing Date shall be upon Seller. Buyer shall promptly
notify Seller of any damage to or destruction of the Property.
7.2 Insurance and Risk of Loss Subsequent to Closing. Until
the Promissory Note referred to in paragraph 2(c) is paid in full, the Buyer
agrees to maintain insurance on the Property, making Seller as an additional
loss payee, insuring the Seller in such amount reasonably necessary to protect
its interest against loss or damage to the Property.
8. Events Occurring at Closing.
8.1 Seller's Performance. Seller shall deliver to Buyer:
(a) A good and sufficient warranty deed accompanied by
necessary documentary stamps paid by Buyer, fully and duly executed and
acknowledged, conveying fee simple title in and to the Property to Buyer less
and except any of the oil, gas and other minerals previously reserved or
conveyed of record, and subject only to the Permitted Title Exceptions.
(b) A duly executed assignment of all manufacturer's
warranties, if any, relating to the Improvements.
(c) A "bills paid affidavit" executed by Seller and
verifying that there are no unpaid bills for labor performed, material supplied
or services provided for or to the Property prior to the Closing.
8.2 Buyer's Performance. Buyer shall deliver to Seller upon
closing $8,840.00 as set forth in paragraph 2(b).
9. Closing Costs.
9.1 Buyer's Costs. Buyer shall pay the following costs and
expenses in connection with the Closing:
(i) Documentary stamp taxes;
(ii) Recording fees for any title curative documents and
for the warranty deed;
(iii) 1992 Real Estate Taxes;
(iv) Abstracting charges;
4
<PAGE> 5
(v) Title policy premium; and,
(vi) Pawhuska Title and Abstract Co. closing costs.
9.3 Other Costs. All other expenses incurred by Seller or Buyer with
respect to the consummation of the transaction contemplated by this Agreement,
including but not limited to attorneys' fees of Buyer and Seller, are to be
borne and paid exclusively by the party incurring same, without reimbursement
except to the extent otherwise specifically provided in this Agreement.
10. Possession and Condition of the Property. Possession of the
Property shall be given to Buyer at Closing in "as is" condition.
11. Access Pending Closing. Prior to Closing, Buyer, Buyer's
agents, architects and contractors shall have the right to enter the Property,
at their own risk and at reasonable times, for the purpose of examination and
study. Entries shall be made at such times and in such a manner as to not
interfere with Seller's conduct of business on the Property. Buyer shall give
Seller at least twenty-four (24) hours advance notice of any such entry. Upon
request Seller shall deliver to Buyer, without charge, copies of all drawings,
specifications, utility plans, and other plans and engineering data with
respect to the Property that are now in the possession of Seller.
12. Seller's Representations. Seller hereby makes the following
representations to Buyer:
(a) As of the date hereof Seller has received no notice
from any governmental authority of any building code violations or any other
violations of law or governmental regulation affecting the Property which have
not been disclosed.
(b) Seller is not now a party to any litigation affecting
the Property or Seller's right to sell the Property, or any part thereof,
except as to the case referred to in paragraph 12(c).
(c) Seller knows of no condemnation or eminent domain
proceeding pending or contemplated against the Property or any part thereof,
except the case City of Pawhuska, Oklahoma, a Municipal Corporation v. John R.
Guthrie, C-92-81. Representations.
(a) Buyer is an Oklahoma corporation in good standing duly
authorized to conduct business for any lawful purpose.
(b) The officers and agents of Buyer have, by proper
corporate action, been empowered to enter into this Agreement.
14. Commissions. There are no real estate commissions.
5
<PAGE> 6
15. Notices. Any notices required or permitted to be given by either
party to the other shall have been deemed to have been served when hand
delivered or, if the United States Mail is used, on the fifth (5th) business
day after the notice is deposited in the United States Mail, postage prepaid,
registered or certified mail, and addressed to the parties as follows:
To Seller:
John Guthrie and Lyn Guthrie
P O Box 1300
Tehachapi, California 93581
To Buyer:
Riverside Parkway, Inc.
7136 So Yale, Ste 300
Tulsa, Oklahoma 74136
Attn: Stephen L. Lower
Either party, by written notice to the other, may change its address to which
notices are to be sent.
16. Default and Penalties.
16.1. Seller's Defaults; Buyer's Remedies.
(a) Seller's Defaults. Seller shall be deemed to be in
default hereunder in the event that Seller shall fail to comply with or observe
any covenant, agreement, or obligation on Seller's part to be performed within
the time limits and in the manner required herein or in the event any of the
conditions preceded described herein shall not have been complied with or
waived by Buyer.
(b) Buyer's Remedies. In the event Seller shall be
deemed to be in default by virtue of the occurrence of any one or more of the
events specified herein, Buyer may at Buyer's option do one of the following as
Buyer's sole and exclusive remedy for such default:
(i) Terminate this Agreement by written notice
delivered to Seller on or before Closing Date, in which event Buyer shall be
entitled to a return of the Deposit, plus interest; or
(ii) Enforce specific performance of this
Agreement against Seller.
16.2. Buyer's Defaults; Seller's Remedies.
6
<PAGE> 7
(a) Buyer's Defaults. Buyer shall be deemed to be in
default hereunder in the event that Buyer shall fail to comply with or observe
any covenant, agreement, or obligation on Buyer's part to be performed within
the time limits and in the manner required herein.
(b) Seller's Remedies. In the event Buyer shall be
deemed to be in default, Seller may, at Seller's sole option, terminate this
Agreement by written notice to Buyer and pursue any and all remedies
(cumulative rather than exclusive) under Oklahoma law.
17. Guaranty. Buyer's principal shall at closing execute a guaranty
agreement.
18. Indemnification.
18.1. Indemnification by Seller. The Seller agrees to indemnify
the Buyer and to hold the Buyer wholly harmless from any loss, damage,
liability, and expense whatsoever (including, without limitation, reasonable,
attorneys' fees and litigation expenses) resulting to the Buyer from any
inaccuracy in or breach of any material representation, warranty, covenant, or
agreement made by the Seller under this Agreement or contained in any
certificate, agreement, or document delivered or assigned to Buyer in
connection with the transactions contemplated by this Agreement. The Buyer
agrees to give the Seller prompt written notice of the assertion of any claim
of which it has knowledge which is covered by the indemnity provisions
described in this Section 19.2 and to afford the Seller an opportunity to be
represented by counsel of its choice, at its own expense, and to diligently and
in good faith defend, contest, litigate, negotiate, settle or otherwise deal
with any such claim. After any final judgment or award shall have been rendered
by a court, arbitration board or administrative agency of competent
jurisdiction, or a settlement shall have been consummated, or the parties shall
have arrived at a mutually binding agreement, with respect to any matter
indemnified against by the Seller hereunder, the Buyer shall forward to the
Seller notice of any sums due and owing by the Seller with respect to such
matter and the Seller shall be required to pay all sums so determined by the
Buyer, in cash, within thirty days after the date of such notice.
18.2. Indemnification by the Buyer.
(a) The Buyer agrees to indemnify the Seller and to
hold the Seller wholly harmless from any losses, damages, liability, and
expenses (including, without limitation, reasonable attorneys' fees and
litigation expenses) resulting to the Seller from any inaccuracy in or breach
of any warranty, representation, warranty, covenant or agreement made by the
Buyer under this Agreement or contained in any certificate, agreement,
document, schedule, list, exhibit, or other writing furnished to the Seller,
pursuant to this Agreement and the transactions contemplated hereby. The Seller
agrees to give the Buyer prompt written notice of the assertion of any claim of
which it
7
<PAGE> 8
has knowledge which is covered by the indemnity provisions described in this
Section 19.3 and to afford the Buyer an opportunity to be represented by
counsel of its choice, at its own expense, and to diligently and in good faith
defend, contest, litigate, negotiate, settle or otherwise deal with any such
claim. After any final judgement or award shall have been rendered by a Court,
arbitration board or administrative agency of competent jurisdiction, or a
settlement shall have been consummated or the parties shall have arrived at a
mutually binding agreement with respect to any matter indemnified against by
the Buyer hereunder, the Seller shall forward to the Buyer notice of any sums
due and owing by the Buyer with respect to such matter, and the Buyer shall be
required to pay all sums so determined by the Seller, in cash, within thirty
days after the date of such notice.
(b) Notwithstanding anything to the contrary, Buyer takes the
property subject to the existing lawsuit noted in paragraph 12(c) hereof,
indeminifies Seller as to costs and damages resulting therefrom. Buyer to cure
all violations at buyer's cost regarding said lawsuit, and arrange for and
obtain a dismissal with prejudice from the litigation. Buyer shall immediately
notify the appropriate authorities of the property change of ownership and the
buyer's responsibility resulting therefrom.
19. Breach or Failure to Close. If, after the Seller has performed
Seller's obligations under this Contract, and if within five (5) days after the
date specified for Closing under paragrpah 3 the Buyer fails to make the
payments or to perform any other obligation of the Buyer under this Contract,
then all sums theretofore paid on the purchase price shall be retained as such
or as liquidated damages for the breach of this Contract by the Buyer. The
Seller and Buyer agree that such amount is a reasonable amount for liquidated
damages and that it would be impractical and extremely difficult to determine
actual damages. If the Buyer shall perform all of the obligations of Buyer
hereunder and Seller shall breach this Contract or fail to perform any of
Seller's obligations hereunder, then Buyer shall be entitled either to cancel
and terminate this Contract, return the abstract to Seller, and receive a
refund of the earnest money or pursue any other legal remedy.
20. Miscellaneous Provisions.
20.1 Survival. The provisions of Paragraphs 8, 14, 15 and 16
of this Agreement shall survive Closing and shall not be merged upon the
delivery and acceptance of the deed for the Property.
20.2 Gender. As used herein the singular shall include the
plural, the plural the singular, and the use of any gender shall be applicable
to all genders.
20.3 Binding Effect. This Agreement shall be binding upon the
parties hereto and on their respective successors or assigns.
8
<PAGE> 9
20.4. Entire Agreement. This Agreement contains the final and
entire agreement between the parties and they shall not be bound by any terms,
conditions statements or representations, oral or written, not herein contained.
Any subsequent amendment to this Agreement shall be valid only if executed in
writing by the parties or their successors or assigns.
20.5. Headings. The headings in this Agreement are for
convenience of reference only and do not constitute a part hereof.
20.6. Governing Law. This Agreement shall be construed,
interpreted and enforced according to the laws of the State of Oklahoma without
regard to principles of conflict of laws. Buyer consents to California
jurisdiction, Venue at location of Sellers place of business.
20.7. Time. Time shall be of the essence for this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract
of Sale and affixed their seals as of the date and year first above written.
EXECUTED this 30th day of June, 1993.
SELLER
/s/ JOHN GUTHRIE
-------------------------------------------
John Guthrie
/s/ LYN GUTHRIE A.K.A. MARLYN GUTHRIE
-------------------------------------------
Lyn Guthrie
ATTEST: BUYER
RIVERSIDE PARKWAY, INC.
By: /s/ SHIRLEY L. BOWMAN
----------------------------------
Secretary
By: /s/ L. WILLIAM HISER, JR.
----------------------------------------
L. William Hiser, Jr.,
its President
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<PAGE> 1
EXHIBIT 10.8
TRIANGLE BUILDING LEASE AGREEMENT
THIS LEASE is entered into this _____ day of _________________, 1994,
by and between RALSTON/FAIRFAX RIVERSIDE PARKWAY, INC., an Oklahoma
corporation, organized under the laws of the State of Oklahoma, having its
principal office at 7136 South Yale, Suite 300, Tulsa, Oklahoma, hereinafter
called the "Lessor", and SHADOW MOUNTAIN HOSPITAL of Tulsa, Oklahoma,
hereinafter called the "Lessee".
IN CONSIDERATION of the mutual covenants and promises hereinafter
contained, the parties hereby mutually agree as follows:
1. LEASED PREMISES: LANDLORD hereby leases to LESSEE that portion
of the second floor of the building known as The Triangle Building (hereby
called the "Building"). The building is located at 101 W. Main in Pawhuska,
Oklahoma.
2. TERM: The term of this lease shall be three years commencing
January 1, 1995 and ending the last day of December, 1997.
3. RENTAL: TENANT agrees to pay LANDLORD, as Rental for the
Leased Premises during the term thereof the total of fifty-one thousand seven
hundred sixty-eight dollars ($51,768.00). Such Rental shall be due and payable
in equal monthly installments of fourteen hundred thirty-six dollars
($1,436.00) each. Said monthly installments shall be due on or before the first
day of each and every month until paid in full. The rental for any fractional
month shall be prorated.
4. IMPROVEMENT OF LEASED PREMISES: Improvements, alterations and
decorations to the Leased Premises shall be made by LANDLORD. No alterations,
additions, or improvements to the Leased Premises shall be made without first
having the written consent of LANDLORD. Any improvements, additions, or
alterations made to the Leased Premises shall become a part of the realty and
shall not thereafter be removed from the premises by the TENANT. TENANT shall
have the right to install trade fixtures without having first obtained written
consent of LANDLORD, and the right to remove said trade fixtures upon payment
to LANDLORD of the cost of repairing any damage caused by the removal of said
trade fixtures.
5. USE OF PROPERTY: TENANT shall use the Leased Premises as
office and counseling space and for no other purpose without the written
consent of LANDLORD. LANDLORD or its agents shall have the right to enter the
Leased Premises upon reasonable notice and at reasonable hours of the day to
examine the same or to make such repairs and alterations as may be necessary,
provided that such repairs or alterations shall be made by LANDLORD or its
agents in the manner least intrusive to the TENANT's business activities within
the Leased Premises. TENANT shall not commit waste or suffer or permit waste to
be committed on said premises. TENANT shall keep the Leased Premises and all
its improvements to the extent covered by this Lease in sound condition and
good repair and will neither do nor permit to be done anything to the said
premises that may impair the value thereof.
Said TENANT shall take good care of the Leased Premises and fixtures
therein and shall quit and surrender said premises at the end or other
termination of said lease term in as good a condition as the reasonable use
thereof will permit.
6. UTILITIES AND MAINTENANCE: LANDLORD shall share equally
with TENANT, all utilities except telephone, and specifically including
heating, air conditioning (during normal operation hours) and janitor service.
LANDLORD shall be responsible for the maintenance of the building and shall
keep the same in good condition.
7. POSSESSION: If this Lease is executed before the premises
herein become ready for occupancy and LANDLORD cannot acquire and/or deliver
possession of the herein Leased Premises by the time the term of this Lease is
fixed herein to begin, TENANT waives any claim for damage due to such delay and
LANDLORD waives the payment of any rental until notwithstanding any other
provision herein to the contrary, this Lease shall actually commence on the date
LANDLORD delivers possession to TENANT and the term hereof shall be reduced by
the same number of days as delivery of possession to TENANT is delayed.
The TENANT agrees to occupy the premises not later than the term of
commencement date. The taking of possession by the TENANT shall be conclusive
evidence that, at such time, the premises were in satisfactory condition, and
the LANDLORD up to such time, had performed all of its obligations hereunder.
8. UNIFORM RULES AND REGULATIONS: LANDLORD shall have the right
to prescribe uniform rules and regulations for the Building as LANDLORD may
reasonable deem necessary, advisable, and appropriate; provided, however, that
if any such rule or regulation renders TENANT's continued use of the Leased
Premises for its intended use unpracticable, then TENANT may request in writing
to be excepted from the enforcement of
<PAGE> 2
said rule or regulation and, in the event TENANT's written request is denied or
in the event LANDLORD fails to respond to TENANT's written request within
fourteen (14) days from the date LANDLORD receives said written request, TENANT
shall have the right to terminate this Lease Contract by giving LANDLORD sixty
(60) days written notice of his intent to do so.
9. CASUALTY DAMAGE: If, during the term of this Lease, the
building or the Leased Premises be destroyed by any cause or means whatsoever,
or partially destroyed or damaged so as to render the Leased Premises unfit for
occupancy, then this Lease shall cease to surrender said premises and all
interests therein to said LANDLORD, and TENANT shall pay rent within this term
only to the date of surrender, unless, within a period of thirty (30) days from
the occurrence of any such damage to or destruction of the Leased Premises,
LANDLORD and TENANT shall mutually agree that LANDLORD will restore the Leased
Premises to substantially the condition as existed prior to the occurrence of
such casualty and shall also mutually agree to keep this Lease in full force and
effect; and in the event that LANDLORD and TENANT mutually agree within such
thirty (30) day period, restoration of the Leased Premises by LANDLORD (but not
thereafter) rent payable by TENANT shall abate. If the premises shall not be
destroyed and are rendered only partially unfit for occupancy, and if the
premises shall be repairable within sixty (60) days from the happening of said
damage, then for the period of repairs (but not thereafter) the rental shall be
abated in part in the same proportion that the premises are rendered unfit for
occupancy, but if LANDLORD makes a reasonable effort to effect the repair of the
premises, this Lease and the obligations of the parties hereunder shall not be
otherwise affected, and the rent shall recommence immediately after the
completion of said repairs. If LANDLORD fails to make a reasonable effort to
complete the repair of the Leased Premises within said sixty (60) day period,
TENANT shall have the option of terminating this Lease Contract by giving
written notice of his intent to terminate the Lease Contract to LANDLORD within
five (5) days following the end of said sixty (60) day period. If said premises
be so slightly injured as not to be unfit for occupancy and if said LANDLORD
shall make reasonable efforts to effect the repair of the premises, then and in
that event, the rent accrued or accruing shall not be abated in whole or in part
and this Lease and the obligations of the parties hereunder shall not be
otherwise affected. If LANDLORD fails to make reasonable efforts to effect the
repair of the premises within a reasonable time, TENANT shall have the option of
terminating this Lease Contract by giving LANDLORD thirty (30) days written
notice of this intent to terminate the Lease Contract. If LANDLORD fails to
effect the repair of the premises during said thirty (30) day period, then this
Lease Contract shall be deemed terminated. If LANDLORD effects the repair of the
premises within said thirty (30) day period, then this Lease and the obligations
of the parties hereunder shall not be otherwise affected and the rent accrued or
accruing shall not be abated in whole or in part.
10. LIABILITY: LANDLORD or its agent shall not be liable for any
damage to any property at any time in the Leased Premises or the Building from
gas, smoke, water, rain, or snow, which may leak into or issue from any part of
the Building or from the pipes or plumbing works of the same or from any other
place or corridor, except for any such damage arising as the result of the
negligence of LANDLORD or its agents in maintaining the Building, as required
in paragraph 6 hereof. LANDLORD and TENANT further agree each to indemnify and
hold the other and its agents harmless from any and all damages which the said
LANDLORD, TENANT, or their agents may be compelled to pay on account of
injuries to the personal property of any other tenant in the Building or to any
other person whomsoever, occurring or happening in, on, or about the Leased
Premises or the Building, when the injuries aforesaid are caused by a party's
negligence or misconduct, whether LANDLORD or TENANT, its agents, servants, or
employees or by any other person entering upon the Leased Premises or in the
Building under the express or implied invitation of the party, whether LANDLORD
or TENANT, or where said injuries are the result of the violations of the rules
and regulations provided for in paragraph 8 herein by any of the parties named.
11. CASUALTY INSURANCE: LANDLORD shall maintain standard fire and
extended coverage insurance on the Building and on all Building standard
leasehold improvements. TENANT shall, at his option, maintain at his expense,
standard fire and extended coverage insurance on all of his personal property
located in the Leased Premises and on his non-Building standard improvements.
12. TERMINATION: LANDLORD shall have the right to terminate this
Lease in the event of bankruptcy, insolvency, or receivership of TENANT or an
assignment by TENANT for the benefit of the creditors of TENANT. TENANT, or
TENANT's representatives, shall have the right to terminate this Lease in the
event of the death or career ending disability of TENANT, and in the event of
the bankruptcy, insolvency, closing, or receivership of LANDLORD.
13. DEFAULT: If TENANT shall be in default or any provision
herein, other than the provisions for the payment of rentals reserved
hereunder, for more than thirty days after
2
<PAGE> 3
receipt of LANDLORD's written notice specifying such default, LANDLORD may
declare the term ended, and enter the Leased Premises. In such event, LANDLORD
shall use its best efforts to relet the Premises or any part thereof as agent
of the TENANT or otherwise, and shall receive the rent therefrom applying the
same first to the payment of such reasonable expenses as LANDLORD may have
incurred in connection with such resumption or possession and reletting,
including the reasonable cost of brokerage, cleaning, repairs, and decorations,
and then to the payment of rent and performance of the other covenants of the
TENANT as herein provided; and the TENANT agrees, whether or not LANDLORD has
relet, to pay LANDLORD the rent and the other sums herein agreed to be paid by
the TENANT, less the proceeds of the reletting, if any, as from time to time,
and the same shall be payable by the TENANT as heretofore provided.
Should the LANDLORD relet the demised premises for any amount greater
than the rents reserved herein, TENANT shall be entitled to no credit on
TENANTS' then existing rent arrearage for any amounts paid by a subsequent
tenant which might exceed the amount of rent reserved herein. Provided,
however, that such excess amounts shall be applied to any arrearage resulting
from the reasonable expenses incurred by LANDLORD in reletting the Leased
Premises and to future rent payments.
If, on account of any breach or default of any obligation arising
under any paragraph of this Lease, the non-breaching party shall employ an
attorney to enforce or defend any of said party's rights and remedies
hereunder, the breaching party agrees to pay all legal costs and expenses,
including a reasonable attorney's fee, incurred in such connection.
TENANT shall pay to LANDLORD interest at the rate of eighteen percent
(18%) per annum on all rents and other sums due LANDLORD hereunder not paid
within ten days from the date same became due and payable, such interest to
accrue from the date such payment is due and payable.
14. ABANDONMENT: It is hereby agreed that an absence of the TENANT
from the Leased Premises for three consecutive weeks after rentals have become
delinquent shall create a conclusive presumption of abandonment, and the
LANDLORD or the agent of the LANDLORD may immediately, or at any time
thereafter, exercise all of LANDLORD's rights as set forth in 41 O.S. Section
52 with respect to any property located in the Leased Premises.
15. HOLDING OVER. If TENANT remains in possession of the Leased
Premises after the expiration of this Lease, without the execution of a new
lease and without the assent of LANDLORD, TENANT, at the option of the
LANDLORD, shall be deemed to be occupying the Leased Premises as a TENANT from
month-to-month, at a rental equal to the rental herein provided plus fifty
percent (50%) of such amount and otherwise subject to all of the conditions,
provisions, and obligations of this Lease insofar as the same are applicable to
a month-to-month tenancy.
16. RIGHT TO SHOW PREMISES: At any time within sixty days before
the expiration of this Lease, LANDLORD may enter the Leased Premises upon
reasonable notice given to TENANT (such notice not to be less than twenty-four
(24) hours) and at all reasonable hours of the day for the purpose of offering
and showing the premises for lease.
17. ASSIGNMENT: TENANT may not assign this Lease or sublease the
Leased Premises or any part thereof without the written consent of LANDLORD.
LANDLORD shall have the right to transfer and assign, in whole or in part, all
its rights and obligations hereunder and in the Building, the Land, and all
other property referred to herein, and such event and upon such transfer no
further liability or obligation shall thereafter accrue against LANDLORD
hereunder.
18. CONSTRUCTION OF LEASE: The terms and provisions of this Lease
shall be construed in accordance with the laws of the State of Oklahoma.
19. MODIFICATIONS: No modifications of any of the terms and
conditions of this Lease shall be effective unless reduced to writing and
executed by the parties hereto.
20. SUBORDINATION: The lien of any present or future mortgage or
deed of trust upon the Leased Premises shall be subordinated to this Lease and
all rights of TENANT hereunder. TENANT agrees that if any mortgage or other
lienholder acquires the said premises as a purchaser at a foreclosure sale (any
such mortgagee or other lienholder or purchaser of a foreclosure sale being
hereinafter referred to as the "Purchaser at Foreclosure"), upon receiving
written notice of said purchase TENANT, will thereafter attorn to the Purchaser
at Foreclosure and will recognize the Purchaser at Foreclosure as LANDLORD
under this Lease.
3
<PAGE> 4
21. LANDLORD shall provide free parking spaces to TENANTS and
their guests in the nearest parking area adjacent to the Building. In
consideration of the rental being paid by TENANT hereunder and at no additional
cost to TENANT, LANDLORD agrees to provide adequate parking spaces within said
parking area to accommodate typical parking requirements for the use and
benefit of TENANT, his guests, employees, clients, and invitees. The parking
area in question is located one-half block South of the Building and to be
maintained by the City of Pawhuska.
22. DESTRUCTION OF PREMISES AND EMINENT DOMAIN: If any portion of
the Leased Promises shall be taken under any right of eminent domain, LANDLORD
may within a reasonable time restore the Leased Premises to an architectural
unit as nearly comparable as practicable to the unit existing just prior to
such taking, and this Lease shall continue, except, beginning on the date on
which TENANT is deprived of the use of any portion of the Leased Premises, the
rent shall be proportionally reduced according to the extent to which TENANT is
deprived of such use. In the event LANDLORD is unwilling or unable to restore
the Premises to such an architectural unit within a reasonable time, then this
Lease shall terminate as of the date of the taking. Not withstanding the
forgoing, if the taking of any portion of the Leased Premises under any right
of eminent domain renders the continued use of the Leased Premises for its
intended purpose unpracticable, TENANT shall have the right to declare this
Lease terminated as of the date of taking by giving written notice thereof to
LANDLORD.
All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) of the demised premises or Common Area shall be the
property of the LANDLORD, and TENANT hereby assigns its interest in any such
award to LANDLORD: provided, however, LANDLORD shall have no interest in any
award made to TENANT for loss of business, for the loss or impairment of a
beneficial lease interest, or for the taking of TENANT's fixtures and other
property if a separate award for such items is made to TENANT.
23. NET RENTABLE AREA DEFINITION: The term "Net Rentable Area", as
used herein, shall refer to all floor areas within the Leased Premises as
measured from the midpoint of all exterior walls and all walls separating the
Leased Premises from other lease space or from areas devoted to corridors,
vending areas, and other similar facilities for the use of all tenants
(hereinafter sometimes called "Common Area") and including a proportionate
part of the Common Area based upon the ratio which the Tenant's Net Rentable
Area (excluding Common Areas) bears to the aggregate Net Rentable Area
(excluding Common Areas) of the complex. No deductions from Net Rentable Area
shall be made for columns or projections necessary to the Building.
24. SPECIAL PROVISIONS:
A). NOTICES: Each provision of this Lease, or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the making of a payment by TENANT to LANDLORD, or the delivery of
any notice or document, shall be deemed to have been complied with when and if
the following steps are taken:
1) All rent and other payments required to be made by the TENANT
hereunder shall be payable to the LANDLORD at the address listed in 2) below,
or at such other address as the LANDLORD may specify, from time to time, by
written notice delivered in accordance herewith.
2) Any notice or document required to be delivered hereunder
shall be deemed to be delivered, whether actually received or not, when
deposited in the United States mail, postage hereon fully prepaid, certified
mail, return receipt requested, addressed to the LANDLORD or TENANT at their
address as listed below:
a) LANDLORD: b) TENANT:
Ralston/Fairfax Riverside Parkway, Inc. Shadow Mountain Hospital, Inc.
7136 S. Yale, Suite 300 6262 S. Sheridan
Tulsa, OK 74136 Tulsa, OK 74133
or at such other address as the parties theretofore have specified by written
notice given in the manner herein specified.
B). TERMINATION OPTION: TENANT may terminate this Lease Agreement under
the following conditions:
1) In the event that government funding or eligibility
requirements for TENANT's
4
<PAGE> 5
program is changed or eliminated, TENANT shall have the option of terminating
this Lease by giving 30 days written notice, providing evidence of the change
in funding and paying the balance of the unamortized improvement expense.
**
3) For 1) above, the amount of improvement expense shall be set
at $6,000.00 and shall be amortized over a period of 24 months.
This Lease shall be binding on the heirs, executors, administrators,
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed the day and year first above written.
LANDLORD
Ralston/Fairfax Riverside Parkway, Inc.
By /s/ L. WM. HISER, JR. By /s/ STEPHEN L. LOWER
----------------------------- -------------------------------------
Title Chairman of the Board Title President
-------------------------- ----------------------------------
TENANT
Shadow Mountain Hospital, Inc.
By [ILLEGIBLE]
-------------------------------------
Title Vice President
----------------------------------
**
2) In the event that TENANT'S patient population at the Leased Premises
exceeds 25, making the Leased Premises too small to operate the Program in an
efficient manner, TENANT shall have the option of terminating this Lease by
giving 30 days' written notice providing evidence of the number of patients in
the Program.
5
