AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1998
SEC REGISTRATION NO. 33-71630
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LUCOR, INC.
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(Exact name of registrant as specified in its charter)
North Carolina
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(State or other jurisdiction of incorporation or organization)
2750
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(Primary Standard Industrial Classification Code Number)
65-0195259
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(I.R.S. Employer Identification Number)
790 Pershing Road
Raleigh, North Carolina 27608
(919) 828-9511
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(Address, including zip code, and telephone number, including area
code, registrant's principal executive offices)
Copies to:
Jonathan L. Shepard, Esquire
Siegel & Lipman
The Plaza, Suite 801
5355 Town Center Road
Boca Raton, Florida 33486
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(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this registration statement becomes
effective
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the securities Act
of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
This amendment contains four exhibits which could not be located with the
original S-1 registration filing in the public records and are now being
filed electronically.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
city of Raleigh, State or North Carolina, on April 24, 1998
LUCOR, INC.
/s/ Stephen P. Conway
_________________________________________
Stephen P. Conway
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of the Registrant
and in the capacities indicated on the 24th day of April, 1998.
/s/ Stephen P. Conway
__________________________ Chairman, Chief Executive Officer and Director
Stephen P. Conway (Principal Executive Officer)
/s/ Jerry B. Conway
__________________________ President, Chief Operating Office and
Jerry B. Conway Director
/s/ Kendall A. Carr
__________________________ Vice President - Finance
Kendall A. Carr (Principal Financial Officer)
/s/ Martin Kauffman
__________________________ Controller
Martin Kauffman (Principal Accounting Officer)
/s/ D. Fredrico Fazio
__________________________ Director
D. Fredrico Fazio
__________________________ Director
Anthony J. Beisler, III
Exhibit 10.4
Amendment to ADA - Cincinnati Lubes
AMENDMENT TO
JIFFY LUBE INTERNATIONAL, INC.
AREA DEVELOPMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment" ) is entered into on March
1, 1992 by and between Jiffy Lube International, Inc., a Nevada corporation
with its principal place of business at 700 Milam, Houston, Texas 77002
("JLI"), and Cincinnati Lubes, Inc., a Florida corporation with its
principal place of business at 1900 Corporate Blvd., East Building, Suite
302, Boca Raton, Florida 33431 ("Franchisees).
WHEREAS, JLI and Cincinnati Lubes, Inc., or its predecessors, entered
into a Jiffy Lube International, Inc. Area Development Agreement on or
about March 31, 1987 and certain agreements relating to the Area
Development Agreement (hereinafter collectively referred to as the
"Development Agreement") ; and
WHEREAS, JLI and Franchisee desire to amend the Area Development
Agreement as set forth in this Amendment;
NOW THEREFORE, the parties agree as follows:
1. Form of Franchise Agreement for Further Development
Notwithstanding anything to the contrary in the Development
Agreement, any franchise agreement executed after the date of this
Amendment for a Jiffy Lube service center developed by Franchisee pursuant
to the Development Agreement shall incorporate the substantive provisions
of the License Agreement Amendment attached as Exhibit A to this Amendment.
The franchise agreement shall otherwise be in the form specified by the
Development Agreement or, if no form is specified, in the then-current form
of franchise agreement prescribed by JLI.
2. Development Obligations
Notwithstanding anything to the contrary in the Development
Agreement, Franchisee's obligation to develop new Jiffy Lube service
centers pursuant to the Development Agreement shall be as set forth in
Exhibit B to this Amendment. If no Exhibit B is attached to this Amendment,
Franchisee's development obligations shall remain as set forth in the
Development Agreement.
3. Effect of Amendment
This Amendment constitutes an integral part of the Development
Agreement. Except as explicitly modified or supplemented by this Amendment,
the terms of the Development Agreement and any prior written amendments
specific to the Development Agreement are hereby ratified and confirmed.
Any other prior oral or written agreements that purport to modify or
supplement the Development Agreement shall have no further force or effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date indicated above.
JIFFY LUBE INTERNATIONAL, INC.
BY: /s/ Richard A. Holmes
Richard A. Holmes Vice President
CINCINNATI LUBES, INC.
BY: /s/ Stephen P. Conway
Stephen P. Conway, President
Each undersigned corporation represents and warrants to JLI that the
undersigned corporation is the sole shareholder of Franchisee as of the
date of this Amendment and that the officer who has executed this Amendment
on behalf of Franchisee is duly authorized to bind Franchisee to the terms
of this Amendment.
/s/ Stephen P. Conway
Lucor, Inc. President
Exhibit 10.6
Amendment to License Agreement
AMENDMENT TO
JIFFY LUBE INTERNATIONAL, INC.
LICENSE AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment") is entered into on June 30,
1992 by and between JIFFY LUBE INTERNATIONAL, INC., a Nevada corporation
with its principal place of business at 700 Milam, Houston, Texas 77002
("JLI"), and CB Lubes, Inc., Congress Corporate Plaza, 902 Clint Moore
Road, Suite 100, Building 4, Boca Raton, Florida 33487 ("Franchisee");
WHEREAS, JLI and Franchisee are parties to a Jiffy Lube International,
Inc. License Agreement or Franchise Agreement dated June 30, 1992 for Jiffy
Lube service center No. 1333, 6304 North Blvd., Raleigh, North Carolina
27604 (the "Agreement");
WHEREAS, JLI and Franchisee desire to amend the Agreement as set forth
in this Amendment;
NOW THEREFORE, the parties agree as follows:
1. Definitions
1.1 For purposes of this Amendment:
"Service Center" means the Jiffy Lube service center to which the
Agreement is applicable.
"Pennzoil" means Pennzoil Company.
"PPC" means Pennzoil Products Company.
The term "affiliates means an entity controlling, controlled by,
or under common control with entity referred to.
1.2 All other capitalized terms used but not defined in this Amendment
shall have the same meaning as in the Agreement.
2. Royalty Fee
Notwithstanding anything to the contrary in the Agreement:
2.1 Franchisee shall pay JLI a monthly Royalty Fee equal to five percent
(5%) of the Gross Sales of the Service Center, as Gross Sales is defined in
Paragraph 2.2 below. The Royalty Fee is due and payable on or before the
fifteenth (15th) of each month, based on Gross Sales for the preceding
month. If (i) Franchisee is then current on its royalty obligation to JLI
under the Agreement, and (ii) Franchisee's monthly sales report is received
by JLI by the fifteenth (15th ) of the month, and (iii) Franchisee's full
monthly Royalty Fee is received at a lockbox, or wire transferred to an
account, designated by JLI on or before the fifteenth (15th) of the month,
then Franchisee shall be entitled to deduct from the Royalty Fee prompt
payment discount equal to one percent (1%) of the Gross Sales of the
Service Center for the preceding month.
2.2 For the purposes of the Agreement, Gross Sales shall mean the entire
amount of sales and business receipts of the Service Center, including, but
not limited to, retail sales and any other sums or the value of any
services received or charged for services provided, but excluding the
amount of any sales and use taxes, gross receipts taxes, and similar taxes
paid by Franchisee based on sales; any bona fide refunds or discounts from
the original purchase price; and sales of used motor oil and other
recovered fluids or materials.
2.3 If Franchisee has made timely royalty payments at or above the rate set
forth in Paragraph 2.1 on all business done on and after June 1, 1991, the
effective date of Paragraph 2.1 shall be June 1, 1991. Otherwise, the
effective date of Paragraph 2.1 shall be the first day of the month nearest
the date of execution of this Amendment.
3. Advertising
Notwithstanding anything to the contrary in the Agreement:
3.1 Franchisee shall spend or contribute five percent (5%) of Gross Sales
for advertising and promotion of the Service Center, as follows:
3.1.1 If a Cooperative applicable to the Service Center has been
established or is established pursuant to the terms of the Agreement,
Franchisee shall contribute monthly to the Cooperative the entire five
percent (5%) of Gross Sales, unless JLI has consented in writing to the
Cooperative's assessment of monthly contributions at a rate of less than
five percent of Gross Sales, in which case Franchisee shall contribute to
the Cooperative at the rate consented to by JLI and spend the balance of
the five percent of Gross Sales on local advertising. Franchisee
acknowledges that JLI's right of approval with respect to a Cooperative
under the Agreement include the right to monitor and/or audit advertising
expenditures by the Cooperative.
3.1.2 If no Cooperative has been or is established, or if Franchisee is
not required to become a member of an otherwise applicable Cooperative,
Franchisee shall spend five percent (5%) of Gross Sales on local
advertising. Franchisee shall be deemed to have satisfied this requirement
if Franchisee's aggregate calendar-year expenditures on local advertising
equal or exceed five percent of the aggregate Gross Sales of the Service
Center during such calendar year.
3.1.3 Upon request of JLI, Franchisee shall make available to JLI at
Franchisee's principal place of business, or such other location where
Franchisee's books and records are maintained, invoices, receipts, and
other documentation to verify any required minimum local advertising
expenditure hereunder.
3.2 JLI shall not arbitrarily refuse to approve proposed advertising
or promotional plans or materials submitted for approval by Franchisee
pursuant to the Agreement.
3.3 During the term of the Agreement, JLI shall provide print, radio,
and/or television marketing materials at no charge to Franchisee. Such
marketing materials shall include materials which use only the Jiffy Lube
name and do not contain references to any specific supplier to Jiffy Lube
service centers ("Generic Materials"). Franchisee acknowledges and agrees
that there shall be no requirement of numerical or other equality between
Generic Materials, on the one hand, and supplier-specific materials
(including materials which feature Arnold Palmer or other Pennzoil
spokesmen and/or Pennzoil-brand products ad or Pennzoil-marketed products
(such as Gumout)), on the other, including with respect to the relative
amounts spent to produce such Generic Materials and supplier-specific
materials.
4. Territorial Protection
Without limiting the rights explicitly granted in the Agreement:
4.1 During the term of the Agreement, JLI shall not establish, operate,
or license others to establish or operate a service center under the Jiffy
Lube name or system within three (3) miles of the Service Center. The
foregoing sentence shall not apply to:
4.1.1 Any Jiffy Lube service center within two (2) miles of the
service center which was operating, under construction, under contract, or
for which a site was purchased, leased, or optioned before March 17, 1989;
or
4.1.2 Any Jiffy Lube service center more than two (2) miles, but less
than three (3) miles, from the Service Center which was operating, under
construction, under contract, or for which a site was purchased, leased or
optioned before the date of this Amendment; or
4.1.3 Any Jiffy Lube service center which may be established by
another Jiffy Lube franchisee pursuant to the terms of, and within the area
defined in, an area development agreement existing on the date of this
Amendment.
4.2 JLI represents and warrants to Franchisee that during the term of
the Agreement (but only as long as Pennzoil owns or controls, directly or
indirectly, both JLI and PPC) PPC, as set forth in the Commitment and
Release attached to this amendment, will not:
4.2.1 Authorize the installation of any new "Pennzoil 10-Minute Oil
Change" signs within a two (2) mile radius of the Service Center, other
than the replacement in the normal course of business of any sign installed
prior to the date of this Amendment; or
4.2.2 Extend new major financing to any free-standing quick lube
center located within one (1) mile of the Service Center. For purposes of
this provision, "major financing" means financing substantially in excess
of that generally offered by Castrol, Quaker State, Valvoline, or other
major marketers in order to obtain the borrower's commitment to purchase
that marketer's brand of oil (other than financing packages made available
only to franchisees of those marketers or their affiliates), and "lube
center" means any automotive service center the primary business of which
is to provide fast, convenient lubrication and fluid maintenance service.
4.3 Paragraphs 4.1 and 4.2 shall not be construed to reduce any
territorial protection to which Franchisee is entitled under the terms of
any separate written arrangement with JLI or PPC existing on the date of
this Amendment. A copy of each such separate written arrangement (if any)
is attached to this Amendment in Exhibit 1. Any territorial protection
granted by JLI or PPC under a separate arrangement remains binding only on
JLI or PPC, as the case may be.
5. Renewal Rights
5.1 This Paragraph 5 shall apply if the Agreement contains no provision
regarding renewal of the Agreement or of the rights granted Franchisee
thereunder, or if the Agreement contains renewal rights of less than two
(2) consecutive ten (10) year terms.
5.2 Franchisee, at its option, may renew the rights granted under the
Agreement for two (2) consecutive terms of ten (10) years each, subject to
the following conditions:
5.2.1 Franchisee shall have given JLI written notice of Franchisee's
election to renew not less than six (6) months nor more than twelve (12)
months prior to the end of the then-current term.
5.2.2 Franchisee shall have completed, to JLI's satisfaction, such
maintenance, renovation, and remodeling of the Service Center as JLI may
reasonably require.
5.2.3 Franchisee, at the expiration of the then-current term, shall
not be in default of any provision of the Agreement, this Amendment, any
other amendment of or successor to the Agreement, or any other agreement
between Franchisee and JLI or its subsidiaries, and shall not have
committed more than two (2) defaults identified in notices of default
received from JLI (whether or not such defaults were cured ) during the
last five (5) years of the then-current term.
5.2.4 Franchisee, at the expiration of the then-current term, shall
have satisfied all monetary obligations owed by Franchisee to JLI and its
subsidiaries, and shall not have committed more than two (2) monetary
defaults identified in notices of default received from JLI (whether or not
such defaults were cured) during the last five (5) years of the
then-current term.
5.2.5 At JLI's option, Franchisee shall execute the form of franchise
agreement then being offered by JLI to new System Franchisees, as modified
to (i) delete the initial franchisee fee payable thereunder and substitute
the renewal fee payable pursuant to Paragraph 5.2.8 of this Amendment; and
(ii) provide for a term of ten (10) years, with such renewal terms (if any)
as are then remaining under the terms of this Amendment. The new franchise
agreement shall supersede the Agreement and this Amendment (or the
agreement then expiring) in all respects, and its terms may differ from the
terms of the Agreement and this Amendment (or the agreement then expiring).
Franchisee acknowledges and agrees that the new franchise agreement may
provide for, among other things, a higher monthly Royalty Fee and a greater
required advertising expenditure than are specified in the agreement then
expiring.
5.2.6 Franchisee shall comply with JLI's then-current qualification
and training requirements.
5.2.7 Franchisee and JLI shall execute a mutual general release, in a
form acceptable to both parties, of any and all claims against each other
and their respective affiliates, officers, directors, shareholders, agents,
and employees, except (1) claims for which either party has previously
given written notice to the other party; and (ii) any claims Franchisee may
have which arise from its express third party beneficiary rights under
Paragraphs 7, 8, 10, and 11 of the Settlement Agreement dated July 29,
1991, between JLI, PPC, and Jiffy Lube Association of Franchisee, Inc. Any
claim excepted under (i) shall be lost and forever waived in the event such
claim is not resolved or suit instituted within one (1) year from the date
of the written notification of such claim.
5.2.8 Franchisee shall pay to JLI a nonrefundable renewal fee of ten
thousand dollars ($10,000) for the first renewal term hereunder and seven
thousand five hundred dollars ($7,500) for the second renewal term
hereunder. The applicable renewal fee shall be adjusted upward in
proportion to the rate of inflation from the date of this Amendment to the
date of renewal, as measured by the Consumer Price Index for urban wage
earners and clerical workers, U.S. city average (all items, 1967=100).
6. Supervision of Service Center
Notwithstanding anything to the contrary in the Agreement, the
requirement of direct, personal supervision of the Service Center by
Franchisee may be satisfied by a manager who has successfully completed the
standard Operations Training Course and who devotes full time and best
efforts to the operation of the Service Center.
7. Manager Training
Notwithstanding anything to the contrary in the Agreement, Franchisee
shall have the right to conduct the standard Operations Training Course
required to be completed by each person employed by Franchisee as a manager
of the Service Center, provided that the content and administration of
Franchisee's training program are approved in advance by JLI. JLI shall
have the right to review Franchisee's training program periodically to
ensure its quality and to verify that managers are being trained in a
timely manner. JLI shall notify Franchisee of any deficiencies in the
program. If Franchisee fails to take action to cure such deficiencies
within a reasonable time, JLI may revoke its approval of the training
program and require Franchisee's managers to attend an Operations Training
Course conducted by JLI, until such time as the deficiencies have been
corrected.
8. Point-of-Sale Computer System
8.1 JLI shall provide to Franchisee, and when provided Franchisee
shall accept and operate, a point-of-sale computer system specified by JLI
(the "POS System"), on the terms set forth below. JLI shall have sole
discretion as to the timing of implementation of the POS System for
Franchisee. Franchisee shall have the right to substitute, at Franchisee's
expense, a POS System for all of Franchisee's existing and future Jiffy
Lube Service centers other than the system specified by JLI, but only if
(i) Franchisee, prior to or concurrently with the execution of this
Amendment, executes a POS election form in the form designated by JLI; (ii)
the substitute system is capable of transmitting to JLI the same data at
the same times and in the same form prescribed by JLI for franchisees using
the approved POS System; (iii) the substitute system is capable of
receiving fleet data from JLI; and (iv) Franchisee actually transmits and
receives such data at the same times and in the same form prescribed by JLI
for franchisees using the approved POS System.
8.2 JLI shall provide, at no charge to Franchisee:
8.2.1 A single-station POS unit for the Service Center;
8.2.2 The basic POS System software, and periodic updates of such
software:
8.2.3 Written standards and procedures for the operation of the POS
System, as modified from time to time in accordance with Paragraph 8.5; and
8.2.4 At the time of installation of the POS unit, a training session
for Franchisee, Franchisee's managers, and Service Center employees in the
operation of the POS System.
8.3 Franchisee shall commence installation of the POS System within
ninety (90) days of its receipt of written notice from JLI to implement the
POS System.
8.4 JLI shall bear the cost of initial installation of the POS System
at the Service Center, except for any extraordinary costs resulting from
special installation needs (such as construction, remodeling, rewiring,
additional wiring, or telephone line installation). In addition, JLI shall
bear the cost of telecommunication charges associated with Franchisee's
daily transmission of data to, or Franchisee's receipt of data from, JLI.
Franchisee shall bear (i) all costs of operation of the POS System other
than such telecommunications charges, including but not limited to the cost
of having available a separate telephone line and labor costs; (ii) all
costs of hardware maintenance, repair, and replacement; and (iii)
third-party vendor charges for hardware maintenance and support and
software operational support, subject to a maximum annual increase in such
charges of no more than the annual increase in the unadjusted Producer
Price Index for finished goods.
8.5 Franchisee shall operate the POS System in conformance with the
standards and procedures prescribed by JLI from time to time. Franchisee
shall, among other things, transmit individual work order/invoice
information daily to JLI, and shall transmit specified demographic data
(which may, at Franchisee's option, include names and addresses of
customers) at least weekly to JLI. Except as otherwise provided in
Paragraph 16, JLI shall not sell, disclose, or use such transmitted data
for the benefit of any other person or entity without Franchisee's consent.
8.6 JLI shall solicit comments from Franchisees before making any
substantial modification in the POS System. JLI may satisfy this obligation
by soliciting comments from (i) a committee or group of franchisees formed
specifically to monitor POS matters (which may also include representatives
of JLI); or (ii) from a representative sample of Jiffy Lube franchises.
8.7 JLI shall not license, sublicense, furnish, or provide any
enhancements to the POS System developed specifically for, and licensed to,
JLI to any person or entity other than a Jiffy Lube franchisee or a Jiffy
Lube service center operated by JLI or affiliated of JLI.
9. Transfer Restrictions
Notwithstanding anything to the contrary in the Agreement, JLI shall
not unreasonably withhold its consent to any proposed transfer of an
interest which requires the consent of JLI under the terms of the
Agreement.
10. Changes to Manual
JLI shall not act arbitrarily in making changes to the Policies and
Procedures Manual.
11. Unexecuted Agreements
If the Agreement was signed before January 8, 1990, or if the Service
Center was opened before that date, JLI hereby forever discharges
Franchisee from any unfulfilled obligation under the Agreement to execute a
purchase option agreement or a contingent assignment and assumption
agreement pertaining to the Service Center or to lease or sublease the
Service Center to JLI. Any such agreements executed by Franchisee before
the date of this Amendment shall remain in effect according to their terms.
12. Personal Guaranties
JLI shall not request any shareholder, partner, or transferee of
Franchisee to execute personal guaranty of the obligations of Franchisee to
JLI under the Agreement unless such request is based on reasonable credit
standards. This Paragraph 12 does not enlarge, reduce, or otherwise affect
any guaranty existing on the date of this Amendment. Shareholders and
partners of Franchisee who are not guarantors of the Agreement as of the
date of this Amendment shall not be required to execute a personal guaranty
of Franchisee's obligations under this Amendment.
13. Volume Purchasing Arrangements
Notwithstanding anything to the contrary in the Agreement, JLI shall
have no obligation to negotiate or attempt to negotiate volume purchasing
arrangements for products or services used by Franchisee or other Jiffy
Lube franchisees.
14. Services Provided by JLI
Franchisee hereby forever discharges JLI from any and all oral and
written agreements and representations, express or implied and written
agreements and representations, express or implied, made prior to January
8, 1990 (whether by side letter, course of conduct, or any other means)
regarding services to be provided by JLI and/or JLI's personnel in support
of the development or operation of the Service Center, such as training,
marketing, and store operations (for example, number of long-form reviews,
inspections, and site reviews), except such service commitments as are
explicitly set forth in the Agreement (as modified by this Amendment).
15. Fleet Credits
So long as JLI is generally notifying franchisees of the amount of
fleet credits earned by franchisees within thirty (30) days of JLI's
receipt of the necessary documentation from franchisees, JLI shall have the
right, without prior notice to Franchisees, to apply fleet credits earned
by Franchisee against past due amounts owed by Franchisee to JLI and its
affiliates, as follows: first, to past due royalties owed to JLI; second,
to past due rent owed to JLI and its affiliates; third, to past due amounts
owed to Heritage Merchandising Co., Inc.; and fourth, to any other past due
amounts owed to JLI and its subsidiaries. After JLI has received payment
from the fleet customer, JLI shall pay to Franchisee (or, at Franchisee's
option, credit against future obligations of Franchisee) the amount of any
fleet credits remaining after deduction of the items referred to in the
preceding sentence, if the aggregate balance for Franchisee's Jiffy Lube
service centers at the end of the month exceeds one hundred dollars ($100).
If the aggregate monthly balance is less than one hundred dollars ($100),
JLI shall hold the balance as a credit until such time as the aggregate
monthly balance exceeds $100.
16. Franchisee Financial Information
JLI shall have the right to use any financial statements, sales
reports, or other financial or statistical information in connection with
efforts by JLI to attract additional franchisees, obtain financing, or
raise capital, provided that JLI shall not use such information in any
fashion by which such information is or could be traceable to, or identify,
a particular franchisee or service center (except with respect to the
remarketing by JLI of a service center acquired from a franchisee). In
addition, JLI may disclose any such information as may be required by any
federal or state agencies or laws, court orders, etc. Except as
specifically provided in this Paragraph 16, JLI shall treat such
information as confidential and shall not disclose or sell such information
or use it for the benefit of any other person or entity.
17. Covenants
17.1 The undersigned individual shareholders of Franchisee's parent
hereby acknowledge and agree to be bound individually by all covenants not
to compete applicable to Franchisee under the terms of the Agreement. In
the event of termination of any undersigned shareholder's relationship with
Franchisee before the expiration or termination of the Agreement, such
shareholder or partner hereby agrees to be bound individually, commencing
upon the termination of the relationship, by a covenant of the same scope
and duration as the covenant applicable to Franchisee upon the expiration,
termination, or assignment of the Agreement.
17.2 Franchisee shall cause each individual or entity who becomes a
holder of more than 8% of Franchisee's or its parent's stock or who or which
owns any of Franchisee's or its parent's stock and who assumes an active role in
Franchisee's management after the execution of this Amendment to execute
and deliver to JLI a covenant similar in substance to Paragraph 17.1. Such
covenants shall be in a form approved by JLI, including, without limitation,
specific identification of JLI as a third party beneficiary with the
independent right to enforce such covenants.
18. INTENTIONALLY DELETED
19. INTENTIONALLY DELETED
20. INTENTIONALLY DELETED
21. Acknowledgment
21.1 Franchisee (for itself and its successors and assigns) and the
undersigned shareholders, partners, and guarantors of Franchisee hereby
acknowledge and agree that the following do not violate any of their rights
as
a Jiffy Lube franchisee or as shareholders, partners, or guarantors of
Franchisee:
21.1.1 Common ownership of JLI and PPC
21.1.2 Pennzoil's employment of personnel who provide management and
staff support for Pennzoil, JLI and PPC, so long as JLI and PPC have
separate
operating management.
21.1.3 Pennzoil's and/or PPC's efforts in support of their positions
regarding disposal of used motor oil, including applicable existing and
proposed
laws and regulations.
21.2 Paragraph 21.1 shall have no further force or effect if Pennzoil
ceases to own a controlling interest in JLI or in PPC.
21.3 Subject to Paragraph 21.2, Pennzoil, PPC, their officers, directors,
agents, and employees, and the officers, directors, agents and employees of
JLI shall be third party beneficiaries of Paragraph 21.1.
22. Future Franchise Agreements
For two (2) years from the date of this Amendment, if Franchisee exercises
any renewal rights granted under the Agreement (as modified by this
Amendment), or if Franchisee is offered and executes one or more additional
franchise agreements with JLI (whether for new or acquired Jiffy Lube
service centers), the franchise agreement(s) offered to Franchisee shall
incorporate all of the substantive provisions of this Amendment, and
otherwise shall be in the then-current form prescribed by JLI.
23. Effect of Amendment
This Amendment constitutes an integral part of the Agreement. In the
event of any conflict between the Agreement and this Amendment, the terms
of this Amendment shall control. Except as explicitly modified or
supplemented by this Amendment, the Agreement are hereby ratified and
confirmed, and the Agreement, as so modified and supplemented, shall remain
in full force and effect.
24. Effective Date
Except as otherwise provided in Paragraph 2.3, the effective date of
this Amendment shall be the date of its execution by Franchisee and JLI, as
set forth in the first paragraph of this Amendment.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
indicated above.
JIFFY LUBE INTERNATIONAL
Date: 07/30/92
By: /s/ Richard A. Holmes
JDP Vice President
Richard A. Holmes
CB LUBES, INC.
By: /s/ Stephen P. Conway
Stephen P. Conway
President
Each undersigned individual represents and warrants to JLI that the
undersigned individuals own shares of Lucor, Inc., the parent corporation
of Franchisee, as of the date of this Amendment, that they are the only
shareholders of Lucor, Inc. who have an active role in the Franchisee's
management and that the officer who has executed this Amendment on behalf
of Franchisee is duly authorized to bind the Franchisee to the terms of
this Amendment.
/s/ Stephen P. Conway
Stephen P. Conway
EXHIBITS TO
LICENSE AGREEMENT AMENDMENT
Exhibit 1 Separate Written Arrangements
Granting Territorial Protection
Exhibit 2 Intentionally Deleted
Exhibit 3 Intentionally Deleted
Exhibit 4 Intentionally Deleted
Exhibit 5 Current Ownership of Franchisee
EXHIBIT 1
TO LICENSE AGREEMENT AMENDMENT
(See Paragraph 4.3)
Franchisee has no separate written arrangements with JLI or PPC
concerning territorial protection.
EXHIBIT 5
TO LICENSE AGREEMENT AMENDMENT (See Paragraph 19.1.3)
FRANCHISEE'S OWNERSHIP
TYPE OF ENTITY: Corporation
STATE OF INCORPORATION: Florida
OWNER'S PERCENT OWNER'S OWNER'S
NAME OWNERSHIP SPOUSE ADDRESS
LUCOR, INC. 100% N/A Congress Corp. Plaza
902 Clint Moore Road
Suite 100, Bldg. 4
Boca Raton, FL 33487
Jiffy Lube approves of these owners in the percentages shown above.
Exhibit 10.14
Prepared By: Richard O. Gamble Mail To: Richard O. Gamble
State of North Carolina
County of Wake
DEED OF TRUST AND SECURITY AGREEMENT
(PERMANENT LOAN)
THIS DEED OF TRUST AND SECURITY AGREEMENT "The Deed of Trust" is made and
entered into this 5th day of August, 1992, by and between Carolina Lubes,
Inc., a Florida Corporation which has been domesticated in North Carolina,
whose address is 902 Clint Moore Road, Suite 100, Building 4, Boca Raton,
Florida 33487 (hereinafter called the "Grantor" whether one or more in
number, a corporation, partnership, or an individual), and Raymond S.
Kestler, as Trustee (hereinafter called the "Trustee"), and CENTURA BANK, a
North Carolina banking corporation, whose principal office address is 134
North Church Street, Rocky Mount, North Carolina 27804 (hereinafter called
the "Beneficiary"):
WITNESSETH, WHEREAS, the Grantor is indebted to the Beneficiary in the
sum of EIGHTY SIX THOUSAND AND NO/100 Dollars ($86,000), as evidenced by
its note dated August 5, 1992 (hereinafter called the "Note"), which Note
may contain provisions for the adjustment of the interest rate, adjustments
in the payments, extension or renewal of the term, among other things, the
terms of which are incorporated herein by reference and the final date for
payment of which, if not sooner paid and if payment thereof is not
extended, is August 10, 1998:
AND WHEREAS, the Grantor desires to secure the payment of the Note
with interest, and any extensions, renewals, modifications or amendments
thereof, or substitutions or replacements, therefor, in whole or in part,
the payment of all other sums, with interest thereon, advanced in
accordance with the Note or herewith to protect the security of this Deed
of Trust or to protect the rights of the Beneficiary under the Note or
hereunder and to secure the performance of the covenants and agreements of
the Grantor contained in the Note and herein, by a conveyance of the lands
and a grant of the security interests hereinafter described:
NOW THEREFORE, in consideration of the premises and for the purposes
aforesaid, and in further consideration of the sum of One Dollar ($1) paid
to the Grantor by the Trustee, receipt of which is hereby acknowledged, the
Grantor has given, granted, bargained, sold and conveyed, and by these
presents does give, grant, bargain, sell and convey unto the Trustee, his
heirs, successors, and assigns the following described parcel of land and
all improvements now or hereafter located thereon, lying and being in
Raleigh Township, Wake County, State of North Carolina, and more
particularly described as follows:
(Description)
BEING all of Unit 5 of the Park on Millbrook Condominium according to
Condominium File No. 45, Wake County Registry, North Carolina, and as shown
on a recorded plat entitled "The Park on Millbrook Condominuim, Phase I",
dated April 29, 1983, and revised on June 9, 1983, prepared by L. I.
Chasak, R.L.S., as recorded in Book of Maps 1983, Page 688, together with
all property rights and benefits, and subject to the restrictions contained
in the "Declaration of Condominium of the Park on Millbrook Condominium,
Condominium File No. 45", dated November 30, 1982, recorded in Book 3073,
Page 324, and further amended in Book 3118, Page 558, Book 3133, Page 15,
and in Book 4859, Page 18. Unit No. 5 shall be a "B type unit" as defined
in the Declarations referred to herein, but in accordance wit the "Seventh
Amendment to Declaration of Condominium Park on Millbrook Condominium,
Condominium File No. 45", recorded in Book 4859, Page 18, as between Units
4 and Units 5 of the Park on Millbrook Condominium Unit 5 shall consist of
a 3.57% ownership and Unit 4 shall consist of a 2.65% ownership. It is the
further intent of the Grantors by this Conveyance to affect the relocation
of the boundaries between Units 4 and Units 5 of the Park on Millbrook
Condominium, as set forth and authorized in the "Seventh Amendment to the
Declaration of Condominium, as set forth and authorized in the "Seventh
Amendment to Declaration of Condominium Park on Millbrook Condominium,
Condominium File No. 45", as recorded in Book 4859, Page 18, Wake County
Registry.
Such parcel of land together with all structures, buildings and other
improvements (hereinafter called the "Improvements") now or hereafter
located thereon being hereinafter called the "Property".
TOGETHER WITH all fixtures, equipment and other articles of personal
property now owned by the Grantor and located in or upon the Property, or
hereafter acquired and located thereon and used in connection with the
operation and maintenance of the Property (hereinafter called the
"Collateral").
TO HAVE AND TO HOLD the Property and Collateral with all the rights,
privileges, and appurtenances thereunto belonging or appertaining to the
Trustee, his heirs, successors and assigns, in fee simple forever, upon the
trusts and for the uses and purposes hereinafter set out.
And the Grantor covenants with the Trustee that it is seized of the
Property and Collateral in fee and has the right to convey the same in fee
simple that title is marketable and free and clear of all encumbrances and
that will warrant and defend the title to the Property and Collateral
against the lawful claims of all persons whomsoever except for the
exceptions hereinafter state:
Declaration of Condominium of the Park on Millbrook Condominium, File
No. 45, dated November 30, 1992, recorded in Book 3073, Page 324, as
amended in Book 3118, Page 558, Book 3133, Page 15 and Book 4859, Page 18,
Wake County Registry.
THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST that if the Grantor
shall pay the Note in accordance with its terms together with interest
thereon, and any renewals extensions, modifications amendments,
substitutions or replacements thereof in whole or in part shall pay all
sums advanced under the Note or hereunder to protect the security of this
Deed of Trust or the rights of the Beneficiary together with interest
thereon, and shall comply with all the covenants terms and conditions of
the Note and this Deed of Trust that this conveyance shall be null and void
and may be canceled of record at the request and at the cost of the
Grantor.
Section 1. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event of Default hereunder:
(a) The Grantor's failure to pay when due the principal of and
interest on the Note or any other sum due under the Note;
(b) The Grantor's breach of any of the terms, conditions or
covenants contained in this Deed of Trust;
(c) The actual or threatened demolition, injury or waste to the
Property or Collateral which ma impair its value;
(d) The appointment of a receiver for, or the filing of a
petition of bankruptcy by or against the Grantor;
(e) The Grantor's default in or breach of any of the terms,
conditions, covenants or agreements contained in any separate assignments
of leases given as additional security for the loan;
(f) The Grantor's default under the terms of any instrument to
which the Deed of Trust is subordinate or which is subordinate to this Deed
of Trust;
(g) Default by the Grantor in keeping, performing or observing
any term, covenant, agreement or condition of the Commitment, if any, upon
which the loan hereby secured was predicated or default by the Grantor
under any separate loan agreement or other agreement executed concurrently
with the execution and delivery of this Deed of Trust, including, without
limitation, any agreement containing provisions relating to the rights of
the Grantor to receive future advances from the Beneficiary, the repayment
of which is intended to be secured by this Deed of Trust and
(h) False statement, misrepresentations or withholding facts by
Grantor in any loan application or other instruments provided by Grantor to
Beneficiary or its agents as to any matter relied upon by Beneficiary in
evaluating whether to extend financing to the Grantor
Section 2. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of
Default, the Beneficiary and Trustee shall have the following rights and
remedies;
(a) The Beneficiary shall have the right, at its option, to
declare all amounts payable under the Note to be immediately
due and payable, whereupon the same shall become immediately
due and payable regardless of the maturity date thereof.
(b) On the application of the Beneficiary, if the Beneficiary
shall have declared the outstanding principal balance of the
Note to be immediately due and payable the Trustee shall be
obligated and is hereby authorized and empowered to expose at
one or more sales and sell the Property at public auction(s)
for cash and the Collateral, if any, at public or private
sale(s) for cash, after first having complied with all then
applicable requirements of North Carolina law.
Upon such sale(s) the Trustee shall convey title to the
purchaser in fee simple. The Beneficiary shall have the right to
bid at any sale thereunder. The Trustee may require the
successful bidder at any sale to deposit immediately with the
Trustee cash or certified check in an amount not to exceed
twenty-five percent (25%) of the bid, provided notice of such
requirement is contained in the advertisement of the sale. The
Trustee may reject the bid if the deposit is not immediately
made, and thereupon the Trustee may declare the next highest
bidder to be the Purchaser. Such deposit shall be refunded in
case a resale is had; otherwise, it shall be applied to the
purchase price. If Collateral is sold hereunder, it need not be
at the place of sale. The published notice of public sale,
however, shall state the time and place where the Collateral may
be inspected prior to sale.
In the event a proceeding to exercise the power of sale
contained herein is begun but not completed, the Grantor shall
pay all expenses incurred by the Trustee and a partial commission
computed as follows: one-fourth of the hereinafter-specified
commission prior to the Trustee's issuance of a notice of hearing
on the right to foreclose and one-half of the hereinafter-
specified commission after the issuance of such notice and prior
to a sale. Such expenses and partial commission may be paid by
the Beneficiary on behalf of the Grantor but, in any event, shall
be secured by this Deed of Trust.
The foregoing shall in no way be construed to limit the
powers of sale or restrict the discretion the Trustee may have
under the provisions of Article 2A of Chapter 45 of the General
Statutes of North Carolina, as the same may be from time to time
amended, or such other laws as the Beneficiary or Trustee may be
proceeding under, including the laws relating to judicial
foreclosure if such is determined to be either the necessary or
appropriate process to follow in foreclosing on the lien of this
Deed of Trust. Each legal, equitable or contractual right, power
or remedy of the Beneficiary or Trustee now or hereafter provided
herein or by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power
and remedy. The exercise or beginning of the exercise of any one
or more of such rights, powers and remedies shall not preclude
the simultaneous or later exercise of any or all such other
rights, powers and remedies and without limiting the foregoing,
the Trustee may sell the Property and Collateral separately or
together, as a whole or in parts or parcels, at one or more sales
conducted at different times and places.
(c) The Beneficiary shall have the right to collect rents,
issues, profits and revenues according to the terms of Section 8
hereof.
(d) if the Grantor and the Beneficiary have contemporaneously
entered into a building loan agreement or any other agreement by
any other designation containing remedies exercisable by the
Beneficiary upon the occurrence of an Event of Default
thereunder, then the Beneficiary shall be entitled to exercise
such rights and remedies as are contained in such separate
agreement. The Beneficiary shall have the right to the
appointment of a receiver to collect the rents and profits from
the Property and Collateral without consideration of the value
thereof or the solvency of any person liable for the payment of
the amounts then owing. The Beneficiary at its option, in lieu
of an appointment of a receiver, shall have the right to do all
those things the receiver could have done. If such receiver
should be appointed, or if there should be a sale of the Property
and Collateral by foreclosure, as provided above, the Grantor or
any person in possession of the Property and Collateral, as
tenant or otherwise, shall become a tenant at will of the
receiver or of the purchaser and may be removed by a writ of
ejectment, summary ejectment or other lawful remedy.
(e) The exercise by the Beneficiary of any right or remedy
granted to the Beneficiary or Trustee in law or equity, or by
this or any other document shall not be deemed an irrevocable
election of remedies thereby precluding the Beneficiary or the
Trustee from exercising or pursuing any other right or remedy
granted to the Trustee or the Beneficiary under this or any other
document or at law or in equity. All remedies contained herein
or in any other separate agreement executed contemporaneously
with the execution of this Deed of Trust are intended to be
cumulative.
Section 3. APPLICATION OF PROCEEDS. Proceeds derived from the
exercise of either the power of sale or the collection of rents and profits
shall be applied to pay, first, costs and expenses, including the Trustees
commission in the amount of five percent (5%) in the event of sale,
reasonable attorney's fees for legal services actually performed, and
reasonable auctioneer's fees if such expenses have been incurred and any
other expenses or advances made or incurred in the protection of the rights
of the Trustee or in the pursuit of any remedy hereunder; second, to taxes
and assessments due and unpaid, if the Trustee deems it appropriate to do
so; third, to the payment of any indebtedness (including principal and
interest on the Note) secured by this Deed of Trust and fourth, the
balance, if any, to the person or persons entitled thereto.
Section 4. PAYMENT OF AMOUNTS DUE UNDER THE NOTE. The Grantor
covenants and agrees that it will pay when due the principal and interest
on the Note or any other sum due under the Note.
Section 5. PAYMENT OF TAXES, ASSESSMENTS AND OTHER AMOUNTS;
MAINTENANCE OF INSURANCE
(a) The Grantor covenants and agrees that it will pay when due,
all taxes, assessments, levies and charges upon or against the Property and
Collateral, of every character which are now due or which may hereafter
become liens thereon, including all taxes assessed in North Carolina
against the Trustee or the Beneficiary on this instrument or the sum hereby
secured or evidenced by the Note, provided the amount of such latter taxes
with the interest on the sum hereby secured does not exceed the maximum
contract rate permitted by law, but if it does, the excess to be paid by
the Beneficiary; and immediately deliver to the Beneficiary official
receipts therefor. The Beneficiary may, at its option, pay any such taxes
assessments, levies or charges against the Property or Collateral and the
official receipts therefor shall be conclusive evidence of payment, the
amount due and validity thereof. Any amounts so expended shall immediately
become debts due by the Grantor payable on demand, shall bear interest at
the rate specified in the Note secured hereby, and their payment shall be
secured by this Deed of Trust.
(b) The Grantor covenants and agrees that it will keep the
improvements and Collateral now or hereafter on the Property insured
against loss and damage by fire, tornado and windstorm, and against such
other hazards as the Beneficiary may require, including business
interruption (if required by the Beneficiary), in amounts satisfactory to
the Beneficiary, plus an amount sufficient to prevent any co-insurance
liability of the owner of the Property or the Beneficiary, for the benefit
of the Beneficiary, loss, if any, to be made payable in the policy or
policies of insurance to the Beneficiary as its interest may appear, the
loss payable clauses to be in such form as the Beneficiary may require.
All insurance shall be in companies approved by the Beneficiary and the
policies and renewals thereof shall, when issued, be immediately delivered
to the Beneficiary, to be held by it and all insurance policies shall
provide for at least ten (10) days prior written notice of cancellation to
Beneficiary. The Grantor will pay all premiums for such insurance when due
and immediately deliver to the Beneficiary official receipts therefor, in
the event of loss, the Grantor will give immediate notice by mail to the
Beneficiary, who may make proof of loss if not made promptly by the
Grantor. Each insurance company concerned is hereby authorized and
directed to make payment of such loss directly to the Beneficiary instead
of to the Grantor and the Beneficiary jointly. The proceeds of any
insurance, or any part thereof, may be applied by the Beneficiary, at its
option, either to the reduction of the indebtedness hereby secured or to
the restoration or repair of the property damaged. If the Grantor fails or
refuses to keep such property so insured, the beneficiary may obtain such
insurance without prejudice to its right to foreclose hereunder by reason
of such default. The Beneficiary may, at i In the event a proceeding to
exercise the power of sale contained herein is begun but not completed, the
Grantor shall pay all expenses incurred by the Trustee and a partial commission
computed as follows: one-fourth of the hereinafter-specified
commission prior to the Trustee's issuance of a notice of hearing
on the right to foreclose and one-half of the hereinafter-
specified commission after the issuance of such notice and prior
to a sale. Such expenses and partial commission may be paid by
the Beneficiary on behalf of the Grantor but, in any event, shall
be secured by this Deed of Trust.
The foregoing shall in no way be construed to limit the
powers of sale or restrict the discretion the Trustee may have
elfth of the known or estimated (by the
Beneficiary) yearly taxes, assessments and insurance premiums on or against
the Property and the Collateral. The Beneficiary shall be under no
obligation to pay interest on such payments. The Beneficiary shall hold
and apply such payments to the payment of taxes, assessments and insurance
l of such monthly payments shall
exceed the amount needed, the excess shall be held for future needs; but
should such monthly payments at any time fail to provide sufficient funds
to pay taxes, assessments and insurance premiums when due, the Grantor
shall, upon written demand, pay the Beneficiary within ten (10) days of
receipt of such demand the amount necessary to cover the deficiency. When
the Grantor shall have paid the Note, the Beneficiary shall refund to the
Grantor any excess funds accumulated hereunder, in the event of a
foreclosure sale, the Beneficiary may apply any balance remaining of the
funds accumulated for the above purposes to the payment of the Note.
Section 6. MAINTENANCE OF THE PROPERTY. The Grantor covenants and agrees
that it will not commit or permit any waste to the Property or Collateral,
and will keep the Property and Collateral in as good order, repair, and
condition as it is now, reasonable wear and tear excepted. The Beneficiary
shall have the right to inspect the Property and Collateral at all
reasonable times, and access thereto shall be permitted for the purpose to
it or its authorized agents. Such inspection may include, but not be
limited to, such investigation as Beneficiary in its sole discretion
believes necessary to determine the nature and extent of any actual or
potential environmental risks, changes, liabilities or contamination
relating to the Property, in the event that such investigation reveals any
matter constituting a breach of representation or warranty made by Grantor
to Beneficiary, then the costs of such investigation shall be reimbursed to
Beneficiary by Grantor.
Section 7. ANNUAL STATEMENTS. The Grantor covenants and agrees that it
will furnish to the Beneficiary when required as a condition of the loan or
otherwise requested by Beneficiary and without cost to the Beneficiary (a)
an annual statement in form and certified in a manner satisfactory to the
Beneficiary, setting forth all income and expenses derived or incurred from
the operation of the Grantor's business conducted on the Property and the
operation of any improvements or Collateral situate thereon within ninety
(90) days from the end of the calendar or fiscal year of such operations,
and (b) within ninety (90) days of the end of each fiscal year the
financial statements (in form and certified in a manner satisfactory to the
Beneficiary) of the Grantor, and each of the guarantors or endorsers, if
any, of the indebtedness hereby secured.
Section 8. ASSIGNMENT OF RENTS, LEASES AND PROFITS
(a) As further security for the payment of the Note and for the faithful
performance of all the covenants, agreements, terms and provisions of this
Deed of Trust, the Grantor hereby sells, transfters and assigns unto the
Beneficiary all the Grantor's rights, title and interest in and to the
rents, issues, profits, revenues, royalties, rights and benefits from the
Property. To that end, the Grantor hereby assigns and sets over unto the
Beneficiary all leases of all or a part of the Property now made, executed
or delivered, whether written or verbal, or to be hereafter made, whether
written or verbal (hereinafter referred to individually and collectively as
"Tenants' Leases"). The Grantor hereby authorizes and empowers the
Beneficiary to collect these rents, issues, profits, revenues, royalties,
rights and benefits as they shall become due and hereby directs each and
all of the tenants of the Property to pay such rents as may now be due or
shall hereafter become due, to the Beneficiary, upon demand for payment
thereof by the Beneficiary. No such demand shall be made unless and until
there has been a default under the Note or the occurrence of an Event of
Default under this Deed of Trust. Until such demand is made, the Grantor
is authorized by the Beneficiary to collect or continue collecting such
rents, issues, profits, revenues, royalties, rights and benefits; provided,
however, the Grantor shall not collect any rents more than two months in
advance without the prior written consent of the beneficiary.
(b) The Grantor covenants and agrees (i) that it is promptly and fully
keep, perform and comply with all the terms, covenants, conditions and
agreements imposed upon or assumed by it as Landlord (or similar
designation under the Tenants' Leases, and (ii) that it will not do, permit
to be done, or omit or refrain from doing anything the doing or omission of
which will any tenant to terminate any of the Tenants' Leases.
(c) If the Grantor shall in any manner fail in any of the covenants and
agreements, the Beneficiary may (but shall not be obligated to) take any
action the Beneficiary deems necessary or desirable to prevent or cure any
default by the Grantor in the performance of or compliance with any of the
grantor covenants or obligations under any of the Tenants' Leases. The
Beneficiary shall have the right to enter upon the Property to such extent
and as often as the Beneficiary, in its sole discretion deems necessary or
desirable in order to prevent or cure any such default by the Grantor. The
Beneficiary may expend such sums of money as the Beneficiary in its sole
discretion deems necessary for any such purpose. The Grantor hereby agrees
to pay to the Beneficiary, immediately upon demand all sums so expended by
the Beneficiary together with interest thereon from the day of each such
payment at the rate provided for in the Note. All sums so expended by the
Beneficiary, and the interest thereon, shall be secured by this Deed of
Trust. The Grantor will give the Beneficiary immediate notice by certified
mail of any notice of default or notice of cancellation received from any
tenant.
Section 9. CONDEMNATION Upon the condemnation of the Property or any part
thereof, the entire unpaid balance of the Note shall, at the option of the
Beneficiary, at once become due and payable. Any award paid for such
taking is hereby assigned to the Beneficiary to further secure the payments
due under the Note. The Beneficiary is hereby authorized and empowered
(but not required) to collect and receive such award and is authorized to
apply it in whole or in part in reduction of the then outstanding debt
secured by the Deed of Trust, notwithstanding the fact that the debt may
not then be due and payable. Any amounts so applied in principal shall be
applied to the principal last maturing hereon. The Grantor agrees to
execute such further assignments of any such awards as the Beneficiary may
require.
Section 10. SALE OR TRANSFER OF PROPERTY: JUNIOR LIENS. If all or any part
of the Property, or any interest or estate thereon, is sold, further
encumbered or otherwise transferred by Grantor (including without
limitation by way of mortgage, deed of trust, or declaration of trust)
without the Beneficiary's prior written consent, the Beneficiary at an
option may declare the whole sum secured by this Deed of Trust with
interest thereon to be immediately due and payable without regard to the
date of maturity of the obligation to pay any such sum provided, however,
that the Beneficiary may waive this right of acceleration and permit the
assumption of the obligations secured hereby on such terms and conditions,
specifically including, without limitation, an increase in the interest
rate charged under the Note, and the payment of fees, as it may deem
appropriate if the Grantor is a corporation with thirty five (35) or fewer
shareholders, the aggregate transfer(s) of voting shares in the Grantor
whereby persons or entities not owning on the date hereof, singly or in the
aggregate, 50% or more of the voting shares of such Grantor, become the
owner(s) singly or in the aggregate of 50% or more of such voting shares
shall be deemed a sale of the Property of or the purposes of this Section:
if the Grantor is a limited or general partnership, any change in general
partnership interest(s) in the Grantor shall be deemed a sale of the
Property for the purposes of this Section; provided, however, no change in
general partnership interest(s) or transfer of voting shares occasioned by
devise, descent or operation of law upon the death of a shareholder or
general partner, as the case may be, shall constitute a sale of the
Property for the purposes of this Section. The Grantor hereby covenants to
give the Beneficiary notice by certified mail of any sale, further
encumbrance or transfer of the Property, as contemplated by this Section,
within ten (10) days after the occurrence of such sale, further encumbrance
or transfer.
Section 11. SECURITY AGREEMENT. (a) This Deed of Trust shall constitute a
security agreement with respect to all Collateral of the Grantor now owned
or hereafter acquired and located upon the Property and used in the
operation and maintenance of the improvements. The Grantor hereby grants
to the Beneficiary a security interest in the Collateral including, without
limitation, all boilers, all heating, air conditioning and ventilating
components and systems, all lighting, electrical power, plumbing, sprinkler
and water components and systems, all carpets, wall coverings, screens and
drapes, all mechanical and hydraulic components and systems and all
appliances (including stoves, ranges, refrigerators, disposals,
dishwashers, washers and dryers, trash compactors and similar appliances)
located on and used in connection with the operation or maintenance of the
improvements.
(b) With respect to those items of the Collateral which are or are to
become fixtures related to the Property, this Deed of Trust shall
constitute a financing statement filed as a fixture filing. The lien upon
fixtures granted herein and perfected hereby shall be in addition to and
not in lieu of any lien upon fixtures acquired under real property law.
Section 12. HAZARDOUS MATERIALS (a) Grantor represents and warrants that,
to the best of Grantor's knowledge, after due inquiry and investigation,
(i) There are no Hazardous Materials (hereinafter defined) on the property,
except those in compliance with all applicable federal, state and local
laws, ordinances, rules and regulations, and (ii) no owner or occupant nor
any prior owner or occupant of the Property has received any notice or
advice from any governmental agency or any source whatsoever with respect
to Hazardous Materials on, from or affecting the Property. Grantor
covenants that the Property shall be kept free of Hazardous Materials, and
neither Grantor nor any occupant of the Property shall use, transport,
store, dispose of or in any manner deal with Hazardous Materials on the
Property, except to the extent that such use, transport, storage or
disposal shall be necessary and proper for the Grantor to use the Property
and carry out the activities set forth in the loan application, commitment
letter, if any, or any separate loan agreement or other agreement executed
concurrently with this Deed of Trust, provided that such use, transport,
storage, disposal or handling of Hazardous Materials on the Property shall
be in compliance with all applicable federal, state and local laws,
ordinances, rules and regulations. Grantor shall not, without prior notice
to Beneficiary, engage in any use or activity on the Property which results
in initial use or increased use, as the case may be, of Hazardous Materials
on the Property which were not disclosed to the Beneficiary or described in
the loan application, commitment letter, if any, or separate loan agreement
or other agreement executed concurrently with this Deed of Trust. Grantor
shall comply with, and ensure compliance by all occupants of the Property
with all applicable federal, state and local laws, ordinances, rulers and
regulations, and shall keep the Property free and clear of any liens
imposed pursuant to such laws, ordinances, rules or regulations. In the
event that Grantor receives any notice or advice from any governmental
agency or any source whatsoever with respect to Hazardous Materials on,
from or affecting the Property, Grantor shall immediately notify
Beneficiary. Grantor shall promptly conduct and complete all
investigations, studies, sampling and testing, and all remedial actions
necessary to clean up and remove all Hazardous Materials from the Property
in accordance with all applicable federal, state and local laws,
ordinances, rules and regulations. Grantor further covenants that it will
promptly notify Beneficiary of any discharge or release of Hazardous
Materials on, from or affecting the Property or of any change in the
nature or extent of any Hazardous Materials, substances or wastes
maintained on, in or under the Property or used in connection therewith,
and will transmit to Beneficiary copies of any citations, orders, notices
or other communication received with respect to any other Hazardous
Materials, substances, wastes or other environmentally regulated substances
affecting the Property. The term "Hazardous Materials" as used in this
Deed of Trust shall include, without limitation, gasoline, petroleum
products, explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, asbestos or asbestos-containing-materials or
any other substance or material defined as a hazardous or toxic substance
or material by any federal, state or local law, ordinance, rule, or
regulation. Grantor's violation of any covenant, representation, or
warranty within this Section shall be an Event of Default and Beneficiary
may pursue all rights and remedies to which it is entitled as set forth in
this Deed of Trust.
(b) Grantor shall protect, defend, indemnify and save harmless Beneficiary
and the Trustee from and against all liabilities, obligations, claims,
damages, penalties, causes of action, response and cleanup costs, and other
costs and expenses (including without limitation reasonable attorneys' fees
and expenses), imposed upon or incurred by or asserted against Trustee or
Beneficiary by reason of (i) the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of
any Hazardous Materials (as defined above in this Section) on, from, or
affecting the Property or any other property, (ii) any personal injury
(including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials, (iii) any lawsuit brought or
threatened, settlement reached, or government order relating to such
Hazardous Materials; or (iv) any violation of laws, orders, regulations,
requirements, or demands of government authorities which are based upon or
in any way related to Hazardous Materials, including, but not limited to,
the following laws: the Comprehensive Environmental Response, Compensation,
and Liability Act the Resource Conservation and Recovery Act; the Clean
Water Act; the Toxic Substances Control Act; Coastal Area Management Act,
N.C. G. S. 113A-113 et seq; Solid Waste Management Act, N.C.G.S. 130A-290
et seq.; inactive Hazardous Sites Act, N.C.G.S. 138-310 et seq.; Water and
Air Resources Act, N.C.G.S. Chapter 143, Article 21; Oil Pollution and
Hazardous Substances Control Act, N.C.G.S. Chapter 143, Article 21A; Air
Pollution Control Act, N.C.G.S. Chapter 143, Article 21B; and the
Sedimentation Pollution Control Act of 1973, N.C.G.S. Chapter 113A, Article
4, including, without limitation, the costs and expenses of any remedial
action, attorney and consultant fees, investigation and laboratory fees,
court costs, and litigation expenses. Any amounts payable to Trustee or
Beneficiary by reason of the application of this paragraph shall be secured
by this Deed of Trust and shall become immediately due and payable and
shall bear interest at the rate of interest specified in the Note secured
hereby from the date loss or damage is sustained by Beneficiary until paid.
The obligations and liabilities of Grantor under this indemnification
paragraph of the Deed of Trust shall survive any termination, satisfaction,
assignment, entry of a judgment of foreclosure or delivery of a deed in
lieu of foreclosure of this Deed of Trust.
(c) Notwithstanding the description of Collateral contained in this Deed of
Trust, all Hazardous Materials (as defined in this Section) are
specifically excluded from Collateral subject to this Deed of Trust. In
addition, any and all underground storage tanks and piping located on the
Property described above are specifically (Check one);
XX included as part of the Collateral excluded as part of the
Collateral
Section 13: NOTICES: All notices, certificates and other communications
hereunder shall be deemed given when mailed by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows; if
to the Bank, to Centura Bank, 134 North Church Street, Rocky Mount, N.C.
27804 if to the Trustee, to Raymond S. Kestler, if to the Grantor, to
Carolina Lubes, Inc., 902 Clint Moore Road, Suite 100, Building 100, Boca
Raton, Florida 33487. The Grantor, the Trustee and the Bank may, by
written notice given hereunder, designate a different address where
communications should be sent.
Section 14: MISCELLANEOUS. (a) In the event of the subsequent passage of
any law of the State of North Carolina deducting from the value of the land
for the purposes of taxation any lieu thereon, or amending in any way the
laws now in force for the taxation of deeds of trust or debts secured
thereby, for state or local purposes or the manner of the collection of any
such taxes so as to affect the interest of the Beneficiary, the whole sum
secured by this instruments with interest thereon, at the option of the
Beneficiary, shall immediately become due, payable and collectible without
notice to any party.
(b) No delay or forebearance by the Beneficiary in exercising any or all of
its rights hereunder or rights otherwise afforded by law shall operate as a
waiver thereof or preclude the exercise thereof during the continuance of
any default as set forth herein or in the event of any subsequent default
hereunder, in the event that the Beneficiary or the Trustee voluntarily or
otherwise shall become a party to any suit or legal proceeding to protect
the Property or to protect the title of the Trustee created by this Deed of
Trust, the Trustee created by this Deed of Trust, the Trustee and the
Beneficiary shall be saved harmless and shall be reimbursed by the Grantor
for any amounts paid, including all reasonable costs, charges and
attorney's fees incurred in any such suit or proceeding. These amounts
together with interest on the amounts at the rate set forth in the Note
shall be secured by this Deed of Trust and their payment enforced as if
they were a part of the original debt.
(c) It is specifically agreed that the parties hereto shall in no event be
deemed to have contracted for a greater rate of interest that the maximum
contract rate permitted by law. Should be greater amount be collected,; it
shall be construed as a mutual mistake of the parties and the excess shall
be returned to the party making such payment.
(d) The Beneficiary shall at any time have the irrevocable right to remove
the Trustee herein named without notice or cause and to appoint his
successor by an instrument in writing, duly acknowledged, in such form as
to entitle such written instrument to be recorded in North Carolina. In the
event of the death or resignation of the Trustee herein named, the
Beneficiary shall have the right to appoint his successor by such written
instruments. Any Trustee so appointed shall be vested with the title to
the Property and shall possess all the powers, duties and obligations
herein conferred on the Trustee in the same manner and to the same extent
as though he were named herein as trustee.
(e) All the terms and conditions of the Commitment, if any upon which the
loan hereby secured is predicated, and a loan agreement, if any pursuant to
which the obligations secured hereby are incurred are incorporated by this
reference and made a part hereof.
(f) The covenants, terms and conditions herein contained shall bind, and
the benefits and powers shall inure to, the respective heirs, executors,
administrators, successors and assigns of the parties hereto. Whenever
used herein, the singular number shall include the plural the singular. If
two or more parties have joined as Grantor, each of the parties shall be
jointly and severally obligated to perform the conditions and covenants
herein contained. Notwithstanding the foregoing, any Grantor who executes
this Deed of Trust but who does not execute the Note hereby secured has
executed the Deed of Trust only to subject whatever interest such Grantor
has or may hereafter have in the Property and improvements and Collateral
to the lien and security interest created by this Deed of Trust. The term
"Beneficiary" shall include any payee of the indebtedness hereby secured
and any transferee or assignee thereof, whether by operation of law or
otherwise.
IN WITNESS WHEREOF, this Deed of Trust is executed (i) if by individuals,
by hereunto setting their hands under seal by adoption of the word "SEAL"
appearing next to the individuals; names, (ii) if by a corporation, by the
duly authorized officers of the corporation on its behalf under seal by
adoption of the facsimile seal printed hereon for such purpose or, if an
impression seal appears hereon, by affixing such impression seal, or (iii)
if by a partnership, by the duly authorized partners of the partnership on
its behalf under seal by adoption of the word "SEAL" appearing next to the
name of the partnership and/or the signatures of the partners, on the day
and year first above written.
Carolina Lubes, Inc., A Florida Corporation domesticated in N.C.
/s/ Stephen P. Conway
Stephen P. Conway, President
Exhibit 10.17
Deed & Note, Store #1333 - Carolina Lubes
Prepared by: William D. Harazin
STATE OF NORTH CAROLINA
COUNTY OF WAKE
TRUSTEE'S DEED
This deed made this 1st day of June, 1992 by Richard E. Fowler,
Substitute Trustee, party of the first part, to C. B. Lubes, Inc., 902
Clint Moore Road, Suite 100, Bldg 4, Boca Raton, Florida 33487, party of
the second part.
WITNESSETH
WHEREAS, on the 4th day of September, 1987, Robert E. Thum and Deborah
H. Thum currently known as Deborah Riegal executed and delivered unto
Jerone C. Herring, Trustee, a certain Deed of Trust, which is recorded in
the Office of the Registry of Deeds for Wake County, North Carolina, in
Book 4134, Page 0177 and
WHEREAS, by an instrument recorded in the Office of the Registry of
Deeds for Wake County, North Carolina in Book 4973, Page 0517, the said
Richard E. Fowler, is the duly qualified and acting Substitute Trustee
under said Deed of Trust; and
WHEREAS, under and by virtue of the authority conferred by the said
Deed of Trust, and in accordance with the terms and stipulations of the law
provided, the said Richard E. Fowler, Substitute Trustee, did on the 7th
day of May, 1992, at 11:00 a.m. expose to public re-sale the lands
hereinafter described, where and when Richard O. Gamble, Agent became the
last and highest bidder for the same at the price of One Hundred Forty-Six
Thousand and 00/100 Dollars ($146,000); and
WHEREAS, Richard O. Gamble, Agent, has assigned his bid to C. B.
Lubes, Inc. and the said purchase price has been fully paid or arranged to
be paid as in said Deed of Trust prescribed:
NOW, THEREFORE, in consideration of the premises and of the sum of One
Hundred Forty-Six Thousand and 00/100 Dollars ($146,000), paid to the said
party of the first part by the party of second part, the receipt whereof is
hereby acknowledged, and under and by virtue of the power and authority by
said Deed of Trust conferred, the said Richard E. Fowler, Substitute
Trustee, as aforesaid, does hereby bargain, sell and convey unto the said
C. B. Lubes, Inc., its successors and assigns, that certain parcel or tract
or lot of land lying and being in City of Raleigh, County of Wake, State of
North Carolina, and defined and described as follows to wit:
BEING ALL OF lot 4, Plantation Square Shopping Center, as per plat
recorded in Book of Maps 1987 at Page 224, Wake County Registry.
To have and to hold said land and premises and all privileges and
appurtenances thereto belonging unto the said C. B. Lubes, Inc., its
successors and assigns forever, in as full and ample manner as the said
Richard E. Fowler, Substitute Trustee, as aforesaid, is authorized and
empowered to convey the same.
IN WITNESS WHEREOF, the said Richard E. Fowler, Substitute Trustee as
aforesaid has hereunto set his hand and affixed his seal, the day and year
first above written.
/s/Richard E. Fowler
Richard E. Folwer
Substitute Trustee
