Exhibit 10.28
AMENDED AND RESTATED MASTER LOAN AGREEMENT
This Master Loan Agreement dated effective November 10, 2000, is between
BOWLIN OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED ("BOA"), BOWLIN TRAVEL
CENTERS, INC. ("BTC") (collectively, the "Borrowers") and FIRST SECURITY BANK OF
NEW MEXICO, N.A. ("Bank"), a national banking association and is an amendment
and restatement of the Master Loan Agreement dated effective November 10, 1998.
In consideration of the mutual covenants and agreements contained in this
Agreement and for other good and valuable consideration, the Borrower and the
Bank agree:
SECTION 1 - DEFINITIONS.
As used in this Agreement, the following terms shall have the respective
meanings indicated:
1.01 AGREEMENT means this Amended and Restated Master Loan Agreement.
1.02 BANK means First Security Bank of New Mexico, N.A. and its successors
and assigns.
1.03 BORROWERS mean, individually and collectively, both Bowlin Outdoor
Advertising & Travel Centers Incorporated ("BOA"), a Nevada corporation whose
office and principle place of business is 150 Louisiana Blvd, NE, Albuquerque,
NM 87108, and its successors and assigns, AND Bowlin Travel Centers, Inc.
("BTC"), a newly formed Nevada corporation and a wholly owned subsidiary of BOA
with its principal place of business also at 150 Louisiana Blvd, NE,
Albuquerque, NM 87108 and its successors and assigns.
1.04 BORROWERS' RESOLUTIONS AND APPROVALS mean, the resolutions duly
adopted by the Borrower authorizing and consenting to the Loan and to the
execution and delivery of the Loan Documents. The Borrower's Resolutions must be
evidenced by resolutions and authorizations in form acceptable to the Bank.
1.05 BUSINESS DAY means a day when the Bank is open for business.
1.06 CLOSING AND CLOSING DATE mean the effective date of November 10, 2000.
1.07 GOVERNMENTAL AUTHORITY means the United States of America and any
state government; any political subdivision of any of the foregoing and any
agency, department, commission, board, bureau or instrumentality of any of them
which now or hereafter exercises jurisdiction over the Borrower.
1.08 LOAN means, collectively all loans from the Bank to the Borrower
described in this Agreement, evidenced by the Notes or other Loan Documents.
1.09 COMMITMENT means the written commitment letter dated October 10, 2000,
from the Bank, accepted October 11, 2000, by BOA outlining the general proposed
structure for the BOA/BTC credit facilities.
1.10 LOAN DOCUMENT(S) means this Agreement, the Notes, and all other
security interest, deeds of trust, pledges, mortgages, assignments, collateral,
lien, lien perfection, lien protection, or instruments executed in connection
with or as security for the payment of the Loan or for performance of the
Borrower's Obligations under this Agreement, or for both such payment and
performance and all renewals, extensions, modifications and amendments of any of
the foregoing. Such term also includes any of the foregoing types or categories
of documents created, executed, or required after Closing as part of or
contemplated by the Loan, this Agreement, or which is hereafter made pursuant to
this Agreement.
1.11 NOTE(S) means individually and collectively all of the promissory
notes, or obligations referred or in the form attached as follows, executed and
delivered to the Bank by the Borrower, together with all extensions, amendments,
modifications, revisions, replacements, and substitutions thereof permitted by
the Bank:
a.) The existing Notes by BOA to the Bank listed in EXHIBIT 1.11,
including those notes modified by a Promissory Note Change in Terms
Agreement.
b.) The new notes to BTC listed in EXHIBIT 1.11.
c.) Any new notes hereafter created, executed, and delivered by Borrower
and accepted by the Bank.
1.12 OBLIGATIONS means all obligations of the Borrower:
a.) To pay the principal of, and interest on, each Note and any Renewal
Note in accordance with their respective terms, now existing or
existing in the future, and to satisfy all of its other liabilities to
the Bank whether hereunder or otherwise, whether now existing or
hereafter incurred, matured or unmatured, direct or contingent, joint
or several, including any extensions, modifications, renewals thereof
and substitutions therefor;
b.) To repay to the Bank all amounts advanced by the Bank hereunder or
otherwise on behalf of the Borrower, including, but without
limitation, advances for Loan Fees, principal or interest payments to
prior secured parties or lienholders, or for taxes or levies; and
c.) To reimburse the Bank, on demand, for all of the Bank's expenses and
costs, including the reasonable fees and expenses of its counsel, in
connection with the administration, amendment, modification or
enforcement of the Loan Documents and any documents evidencing or
relating to a Renewal Note, including, without limitation, any
proceeding brought or threatened to enforce payment of any of the
Obligations.
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d.) To pay all other liabilities and indebtedness and to perform all
obligations and duties to the Bank required in any Loan Document or by
any other contractual agreement with the Bank.
1.13 RENEWAL NOTE means any promissory note executed and delivered by the
Borrower to the Bank in connection with a renewal, extension, modification,
amendment, revision, replacement or substitution of any Note in accordance with
the terms of this Agreement.
SECTION 2 - THE LOAN.
2.01 PURPOSE OF THE LOAN RESTRUCTURING. BOA is presently indebted to the
Bank on a number of loans pursuant to the Master Loan Agreement dated effective
November 10, 1998. BOA has formed BTC, as a wholly owned subsidiary, and has in
process, several fundamental changes to its present business structure, which
include:
a.) Separation of its outdoor advertising and travel center activities by
transferring all travel center assets including its Albuquerque, New
Mexico office building to BTC,
b.) To apportion and divide the existing loans with the Bank between BOA
and BTC based on the allocations and calculations prepared by the
Borrower and its accountants as outlined in the Commitment,
c.) That such apportionment will include transfer of some existing notes
in whole and the division and apportionment of parts of existing notes
to BTC as the primary Borrower. (BTC will be added as a co-maker on
all notes which will remain with BOA, and BOA will be a co-maker on
all notes made to BTC),
d.) All assets of the Borrower, including the outdoor advertising assets
of BOA and the travel center and office assets of BTC will secure the
Notes to the Borrower,
e.) All collateral documents will contain cross-collateralization clauses
and will secure repayment of all Notes to the Borrower and all Notes
and all Collateral Documents will contain cross-default clauses as to
both Borrowers,
f.) BOA has entered into an Agreement and Plan of Merger, dated October 3,
2000, with Lamar Advertising Company ("Lamar") to exchange shares of
BOA for shares of Lamar ( the "BOA Merger"). BOA anticipates that
under the terms of the proposed BOA Merger, that the balance of all
BOA's term Notes will be paid in full by March 31, 2001,
g.) In consideration for such payment of the BOA term Notes from the BOA
Merger, the Bank will, provided no Event of Default has occurred,
release its lien on all BOA assets and release BOA as a co-borrower on
the BTC Notes,
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h.) Pending closing of the BOA Merger, and payment on the BOA term Notes,
the undisbursed portions of certain of the BOA and BTC Notes are
restricted as detailed in this Agreement.
2.02 AMENDMENT AND RESTATEMENT OF MASTER LOAN AGREEMENT. This Agreement is
an amendment and restatement of the Master Loan Agreement dated November 10,
1998 and the language, terms and provisions of this amended and restated version
shall control for all purposes.
2.03 RIGHT OF SET-OFF. Collateral includes the Bank's right of set-off
against any balance or share belonging to Borrower of any deposit or other
account with the Bank, notwithstanding any other security for the Loan.
2.04 INTEREST RATES. Interest shall accrue on each Note at the rate or
index specified in such Note as established at the time the Note is executed or
later changed and in accordance with the terms of such Note. The Bank may, at
its option, calculate and charge interest as though each payment is made on the
payment due date with principal reductions effective as of the date of receipt.
2.05 REPAYMENT OF NOTES. Each Note shall be due and payable on the date(s)
specified in the Note and in accordance with the terms thereof. All payments
shall be paid directly to the Bank in immediately available funds. Alternatively
and at its sole discretion, the Bank may charge any deposit account of Borrower
for all or any part of the Obligations due or declared due. The records
maintained by the Bank shall be deemed to be evidence of the date of the amount
of each payment on each Note and the other Obligations. Payments may be applied
to a Note in such amounts and in such order or priority as the Bank deems
necessary and as provided in the Note or in this Agreement. Additional principal
payments on certain notes may be required based on the Borrower's earnings as
provided in Section 3.01(l), below.
2.06 COMMITMENT AND LOAN FEES. Borrower shall pay to the following
non-refundable fees in connection with the Loan:
i.) $20,000.00 paid upon acceptance of the Commitment Letter
ii.) $20,000.00 payable at Closing, and
iii.) If the proposed BOA Merger, including payment of the BOA Notes,
does not occur by March 31, 2001, an additional fee of
$20,000.00 is payable by the Borrower to the Bank on April 1,
2001.
2.07 OTHER FEES AND COSTS: the Borrower will reimburse the Bank at Closing
for all out-of-pocket expenses and costs incurred by the Bank in connection with
this Loan including the cost of all lien creation, lien searches, filing, and
recording fees, any title insurance, title endorsements, appraisals,
environmental, any legal fees and expenses, and preparation and review of this
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Agreement and other Loan Documents. The Bank's legal fees will not exceed
$20,000.00 (plus costs and applicable tax) of which $8,895.00 has already been
paid. The Borrower will promptly reimburse the Bank after Closing for such cost
and expense amounts not available at Closing or incurred after the date of
Closing.
SECTION 3 - COVENANTS OF THE BORROWER.
3.01 AFFIRMATIVE COVENANTS. So long as any Obligations remain unpaid, the
Borrower will, unless the Bank shall otherwise consent in writing:
a.) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its subsidiaries
to comply, in all material respects with (i) all material laws, rules,
regulations and orders (including, without limitation, ERISA and all
applicable environmental laws) and (ii) all other laws, rules,
regulations and orders, promptly upon discovery of any non-compliance.
b.) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its
subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property PROVIDED, HOWEVER, that
neither the Borrower nor any of its subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained.
c.) MAINTENANCE OF INSURANCE. Maintain, and cause each of its subsidiaries
to maintain, insurance with responsible and reputable insurance
companies or associations, in such amounts and covering such risks as
is acceptable to the Bank, and not less than the usual amounts and
coverage types carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower or such subsidiary operates. The Borrower and all
subsidiaries may maintain reasonable amounts of self insurance
consistent with their financial condition and other relevant criteria,
provided that any such self insurance must be approved by the Bank in
writing.
d.) PRESERVATION OF CORPORATE EXISTENCE AND APPROVALS. Preserve and
maintain, and cause each of its subsidiaries to preserve and maintain
(i) its corporate existence, rights (charter and statutory),
franchises and privileges in the jurisdiction of its incorporation,
and qualify and remain qualified, and causes each of its subsidiaries
to qualify and remain qualified, as a foreign corporation in each
jurisdiction in which such qualification is necessary or desirable in
view of its business and operations or the ownership of its
properties.
e.) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause each
of its subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
f.) PERFORMANCE OF OTHER OBLIGATIONS. Perform and observe all of the terms
and provisions of all other loans, debts and obligations to all other
lenders and creditors except liabilities not exceeding $100,000 being
contested in good faith.
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g.) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
subsidiaries to conduct, all transactions with any of their affiliates
on terms that are fair and reasonable and no less favorable to the
Borrower or such subsidiary than it would obtain in a comparable
arm's-length transaction with a person not an affiliate.
h.) FINANCIAL RATIO COVENANTS. BOA, and BTC, shall each maintain
individually, and on a consolidated basis (with intercompany related
transactions eliminated) during the term of this Loan, each of the
following minimum financial ratios:
i. Minimum debt coverage ratio of 1.15 to 1.0
ii. Minimum interest coverage ratio of 1.5 to 1.0
iii. Net worth of company must increase by at least 50% of net profit
on an annual basis.
iv. Tangible leverage ratio of not more than 3.5 to 1.0
v. For purposes of calculating these ratios, the following
definitions and formulas apply:
"Earnings" means earnings before interest, taxes,
depreciation and amortization.
"Interest Coverage Ratio" means earnings divided by
(Interest expense (+) taxes).
"Debt Coverage Ratio" means earnings divided by (Prior year
current maturities of long term debt (+) interest expense
(+) taxes).
"Tangible Leverage Ratio" means total liabilities / tangible
net worth. Tangible net worth is defined as the sum of
(Capital stock, paid in capital and retained earnings) Less
the sum of a good will or other intangible assets.
All ratios will be calculated quarterly from the Borrower's
fiscal quarter reviewed statements with income and expense items
annualized.
i.) The Borrower shall furnish to the Bank:
i.) as soon as possible and in any event within five days after the
occurrence of each Default or Event of Default continuing on the
date of such statement, a statement by the chief financial
officer of the Borrower setting forth details of such Default and
the action that the Borrower has taken and proposes to take with
respect thereto;
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ii.) as soon as available and in any event within 50 days after the
end of each of the first three fiscal quarters of each fiscal
year of the Borrower, a copy of the 10-Q and other related
filings submitted by the Borrower to the Securities and Exchange
Commission (the "SEC");
iii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the annual
10-K submitted by the Borrower to the SEC to include the
Borrower's audited financial statements and all schedules,
accounts, opinions, and notes;
iv) promptly after the commencement thereof, notice of all actions,
suits and proceedings threatened or pending before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, materially affecting the
Borrower or any of its subsidiaries;
v) promptly after the sending or filing thereof, copies of all proxy
statements, other financial statements and reports that the
Borrower sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements and
other reports or information, that the Borrower files with the
Securities and Exchange Commission or any governmental authority
that may be substituted therefor, or with any national securities
exchange;
vi) promptly after the furnishing thereof, copies of any statement or
report furnished to any other holder of the securities of the
Borrower or of any of its subsidiaries with respect to any
pending or potential non-compliance with the terms of any other
indenture, loan or credit or similar agreement, and not otherwise
required to be furnished to the Lenders pursuant to any other
clause of this Section;
j.) EXAMINATION RIGHTS. At any reasonable time and from time to time, the
Bank shall have the right to, (i) to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower or any such subsidiary and, (ii) to
discuss the affairs, finances and accounts of the Borrower and any of
its subsidiaries with any of their officers or directors and with
their independent certified public accountants.
k.) BOOKS AND RECORDS. Keep, and cause each of its subsidiaries to keep,
proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and
business of the Borrower and each such subsidiary in accordance with
GAAP.
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l.) ADDITIONAL DEBT SERVICE BASED ON EXCESS CASH FLOW. Additional
principal payment of up to $400,000 per year, applied to the balance
of the BOA Term Note Number 9015. Provided no default exists, the
Borrower may direct which Note(s) the additional payments will reduce.
Excess Cash Flow means 50% of the excess EBITDA above the 1.3 to 1.0
debt service coverage ratio (calculated as of the Company's fiscal
year-end) up to the maximum amount of $400,000. The additional debt
service payments will be due annually beginning May 1, 2001, for the
fiscal year ending January 31, 2001. Upon closing of the BOA Merger
and payment of the BOA Notes, this provision is eliminated and shall,
thereafter, not apply to BTC.
m.) LIST OF BILLBOARDS AND LOCATIONS. The Borrower shall provide to the
Bank annually, within 30 days of the end of the Borrower's fiscal
year, a listing of all of Borrower's Billboards by state and county.
The initial list shall include the specific property address or legal
description and for Billboards located on sites not owned by the
Borrower, the name and address of the property owner, lessor or
licensor of the site.
n.) BILLBOARD RECEIVABLES LISTING. At the Bank's written request, the
Borrower shall provide to the Bank within 10 days of the receipt of
the request, a listing of all receivables for all Billboard
advertising contracts, leases, rentals and revenues to include the
name and address of the obligor and an aging of the receivables.
o.) ADDITIONAL LOAN DOCUMENTS. The Borrower shall immediately execute and
deliver any additional or further Loan Documents which the Bank in its
sole discretion determines necessary to create, document, perfect, or
insure the lien priority as to any of the collateral, lien, or lien
perfection interests contemplated or referenced in this Agreement,
including any exhibit hereto. Additional documents may, at the Bank's
option, include documents to create or perfect liens as to travel
centers, Billboard sites, and leasehold interest to be filed in county
real property records.
p.) SUBORDINATION OF SELLER FINANCING. Any lien(s) or security interests
in favor of any seller to secure repayment of any portion of the
purchase of billboard or outdoor advertising assets or businesses
shall be subordinated to the Bank. The subordination amount shall be
equal to all down payments and principal payments made thereafter on
such financing.
q.) LIBOR RATE NOTES; INDEMNIFICATION FOR PREPAYMENTS. If the Borrower
elects to prepay any portion of any Note for which the interest rate
is based on the London Interbank Offered Rate ("LIBOR"), all such
prepayments shall be subject to, and shall require that the Borrower
pay to the Bank at the time of such prepayment, an amount(s) which the
Bank reasonably determines will be sufficient to compensate for any
loss, cost, expense or risk incurred by the Bank as a result of the
Borrower's prepayment(s) prior to the expiration of applicable LIBOR
Rate Period elected. The Bank will provide to the Borrower its
calculation of such cost. Additional debt service payments required
under subsection 3.01(l), above, are not prepayments under this
provision.
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SECTION 3.02 NEGATIVE COVENANTS. So long as any obligations remain unpaid, the
Borrower will not, without the prior written consent of the Bank:
a.) MERGERS, ETC. Except as contemplated by the proposed BOA Merger, merge
with or into or consolidate with or into any other entity, or acquire
all or substantially all of the assets of any non-outdoor advertising
or non-travel center business or entity, or permit any of its
subsidiaries to do so, except that (i) any subsidiary of the Borrower
may merge or consolidate with or into or acquire assets of, any other
subsidiary of the Borrower and (ii) any of the Borrower's subsidiaries
may merge into or dispose of assets to the Borrower; PROVIDED,
HOWEVER, that in each case, immediately after giving effect thereto,
no Event of Default would exist, and in the case of any such merger to
which the Borrower is a party, the Borrower is the surviving
corporation.
b.) SALES, PLEDGE, TRANSFER OF ASSETS. Sell, pledge, grant liens,
mortgages, deeds of trust or security interests in, transfer or
otherwise dispose of, or permit any of its subsidiaries to sell,
transfer, or otherwise dispose of, any of its assets (including,
without limitation, all or substantially all of its assets, whether in
one transaction or a series of related transactions) except (i) in
connection with a transaction authorized by this Agreement; or (ii)
sale, transfer or disposition of assets, having an aggregate book
value of not more than $500,000 in any fiscal year. (In no event will
any such sale of assets allowed by this subsection be at less than
fair market value.) The Bank acknowledges that it has consented to the
formation of BTC, transfer of assets by BOA to BTC, and to the BOA
Merger.
c.) INVESTMENTS IN OTHER ENTITIES. Make or hold, or permit the Borrower or
any of its subsidiaries to make or hold, any investment in any other
entity in excess of $500,000, without the Bank's prior written
consent. This restriction shall not prevent the Borrower from
purchasing, acquiring a travel centers or billboard business(es)
allowed under the terms of this Agreement.
d.) CHANGE IN NATURE OF BUSINESS. Except in connection with transactions
permitted under Section 3.02(b) and (c) above, make, or permit any of
its subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof.
e.) ACCOUNTING CHANGES. Make or permit, or permit any of its subsidiaries
to make or permit, any change in accounting policies or reporting
practices, except as required by GAAP, or as permitted by GAAP, unless
the amounts involved or the resulting changes are not material.
f.) LIMITATION ON OTHER BORROWINGS. The Borrower shall not, except with
the Bank's prior written consent:
i) incur, assume or otherwise become obligated on loans, borrowings,
debts, leases, or other financing with any person or entity in an
amount exceeding the aggregate of $750,000 per fiscal year and
the aggregate maximum amount of $1,500,000. (Such obligation
limits do not include amounts due to vendors for fuels, supplies,
materials, labor, and similar day to day operating expenses
incurred in the ordinary course of the Borrower's travel center
and outdoor advertising business), or
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ii) incur any indebtedness or other obligations to any lender to
finance the acquisition of any outdoor advertising business or
billboards, or
iii) incur any indebtedness or other obligations to the owner or
seller of any single or related group of outdoor advertising
assets or businesses to finance the purchase of such assets
(seller financing) in excess of $750,000 and in no event in
excess of the aggregate maximum amount of $1,500,000 for all such
types of indebtedness.
g.) EXECUTIVE MANAGEMENT. The Bank is relying, as a material factor to
grant the restructure requested by the Borrower and commit to the
terms and conditions contained in this Agreement including the release
of collateral upon payment of certain indebtedness as detailed herein,
on the experience and expertise of Michael Bowlin and Chris Bess as
executive management of BTC, and of BOA, until Closing on the BOA
Merger and payment of all BOA Notes. Therefore, in the event either
one or both of them is, for any reason, no longer willing or able to
serve as executive management for the Borrower for any reason other
than their death or incapacity, the Bank shall have the option, upon
30 days written notice, to declare all sums due and owing under the
Notes, and all other Obligations of the Borrower immediately due and
payable in full and the failure to pay all such amounts within 5 days
of the date due shall constitute an Event of Default under section
6.01(a) of this Agreement.
SECTION 4 - ADVANCES ON LINES.
Provided no Default exists, provided the Borrower has compiled with and
observed all covenants, requirements and conditions of this Agreement, and
provided the Borrower is not prohibited from doing so by any Governmental
Authority, Borrower may request advances on the various Lines as provided below.
The Bank shall have no obligation to make advances, which would; 1) cause the
aggregate outstanding principal balance of the Notes to exceed the applicable
maximum loan amount for that Line, or 2) be inconsistent with any restriction or
provision of this Agreement. Specific conditions and restrictions are contained
in Exhibit 5.03.
SECTION 5 - COLLATERAL.
5.01 COLLATERAL. The Bank and the Borrower intend and agree that the
collateral for this Loan is a first lien (except where a second or inferior lien
position is specifically referenced) on all of the assets of each Borrower, both
real and personal, tangible and intangible, ( excluding however, all fuel
storage tanks and connecting lines including underground storage tanks and
connecting lines, systems and plumbing) and including all currently owned or
later acquired subsidiaries. Such collateral secures all Obligations of the
Borrower to the Bank and includes, but is not limited to, the following liens,
mortgages, security interests and other collateral documents:
a.) All existing collateral documents and lien interests listed,
referenced or created with the Master Loan Agreement dated November
10, 1998, all collateral documents, lien interests granted prior to or
subsequent to such agreement including, but not limited to all real
estate, personal property, real and intangible interests and all
insurance policies and coverages on BOA's assets.
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b.) A first real estate mortgage (or deed of trust, leasehold mortgage or
leasehold deed of trust) on the real property and improvements for all
real property now owned by BTC including the travel centers and
Albuquerque office as listed in EXHIBIT 5.01(B) and including the
Mortgage title policies insuring such mortgages in the amounts listed
and in form acceptable to the Bank.
c.) The security interests, liens, pledges, assignments, leasehold
mortgages, leasehold deeds of trust, second or inferior mortgages, and
other collateral interests granted, previously by BOA together with
all such liens and interests granted to the Bank by BOA and BTC as
part of this closing, as referenced in this Agreement, and all such
liens and interests which may hereafter by granted by Borrower to the
Bank.
d.) Insurance coverage and loss payee provisions for all of Borrower's
assets which are collateral for the Loans.
e.) Collateral liens on any travel centers purchased, constructed, or
remodeled on Outdoor Acquisition Assets, and any additional collateral
liens which the Bank requires the Borrower to grant to the Bank during
the term of the Loan including real estate lien and lien perfection
documents on billboard site leases.
5.02 RELEASE OF BOA AND COLLATERAL. The Bank hereby agrees to release BOA
as co-maker (Co-Borrower) on the various BTC Notes and to release its liens on
certain collateral as detailed below. There are no other agreements to release
any other collateral liens, interests, or rights.
a.) STUCKEYS RIO PUERCO TRAVEL CENTER. BOA is presently under a written
agreement to sell the real property commonly known as the Stuckeys Rio
Puerco in Bernalillo County, New Mexico. Provided such sale closes by
December 31, 2000, the Bank will release its mortgage on such real
property in exchange for payment of the greater of fifty percent (50%)
of the net sale proceeds or $275,000.00, such net proceeds to be
applied to reduce BTC term Notes. If Closing does not occur by such
date, the Borrower will, at its expense: i) execute and deliver a new
mortgage by BTC on such property to the Bank, ii) transfer title of
the property into BTC, and iii) provide the Bank with a mortgagee's
title insurance in the amount of $550,000, in form acceptable to the
Bank.
b.) If the BOA Merger closes by March 31, 2001, the Bank will, provided no
Event of Default has occurred, in exchange for payment in full of all
BOA Notes (excluding up to $300,000 outstanding on the revolving
working capital Note #9016 which may be paid by advancing on the
undisbursed portion of the $1,000,000 BTC RLOC) by such date, the Bank
will release its liens on the BOA assets and will release BOA from all
liabilities, as Co-Borrower and co-maker on the BTC Notes. Such
release shall include the release of any security interest, lien or
right to the funds of BOA deposited with the Bank as described in
Section 7.02(b), below. The Bank will provide, as part of such
releases, any documents or releases necessary to evidence such
releases.
5.03 COMMITMENTS AND REVOLVING NOTES. All commitments to fund under any
lines, or credit facilities as wells as the undisbursed amount on any unfunded
note or line of credit under or pursuant to the November 10, 1998, Master Loan
Agreement are terminated excepted those specifically detailed in EXHIBIT 5.03.
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SECTION 6 - DEFAULT AND REMEDIES.
6.01 EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
a.) Failure of Borrower to make any payment on any Note, , or any other
Obligations to the Bank within five (5) Business Days after receipt of
certified written notice from the Bank.
b.) Any warranty, representation or statement made or furnished to Bank by
or on behalf of Borrower under this Agreement or any Loan Document is
false or misleading in any material respect at the time made or
furnished.
c.) This Agreement or any other Loan Document ceases to be in full force
and effect other than as contemplated by this Agreement or by the
mutual written consent of the parties.
d.) Any default by Borrower on any indebtedness to any other lender or
default or material non-compliance by the Borrower on any borrowing,
obligation, or contractual liability with any third party except
liabilities not exceeding $100,000 being contested in good faith.
e.) The dissolution or termination of Borrower's existence as a going
business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, or the commencement of any proceeding under any bankruptcy
or insolvency laws by or against Borrower.
f.) Commencement of foreclosure or forfeiture proceedings, whether by
judicial proceeding, self-help, repossession or any other method, by
any creditor of Borrower, including any garnishment, attachment, or
levy on or of any of Borrower's deposit accounts with Lender.
g.) A material adverse change occurs in Borrower's financial condition, or
Bank in good faith believes the prospect of payment or performance of
the Indebtedness is impaired.
h.) As to any breach or failure to observe or perform any non-payment
(non-monetary) condition, requirement or restriction under this
Agreement or any other Loan Document when such breach is susceptible
to cure, the Borrower fails to cure or remedy such breach within 15
days after receipt of certified written notice from the Bank of such
breach.
i.) Borrower breaches or fails to observe any other term, condition,
requirement, or restriction under this Agreement, in any other Loan
Document, or in any other agreement with the Bank which is not
susceptible to cure.
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j.) Any enforcement action is commenced against the Borrower by the SEC,
or trading in the Borrower's stock is suspended or halted by the SEC
or any exchange regulated by the SEC.
6.02 CESSATION OF ADVANCES, ACCELERATION AND OTHER REMEDIES. Upon the
occurrence of any Event of Default as defined in Section 6.01, the Bank may
forthwith or at any time during such default or events, without notice to the
Borrower refuse to make further advances on any Line or Note, and may,
independent of such decision, declare the unpaid balance of the Obligations,
including all principal and all interest then accrued, to be immediately due and
payable; and the Obligations shall become and be immediately due and payable
without presentment, notice of protest or other notice of dishonor or of any
other kind of notice whatsoever, including, without limitation, notice of
default, notice of intent to accelerate and notice of acceleration, all of which
are hereby expressly waived by Borrower; and the Bank may immediately enforce
its rights under the Loan Documents; and may exercise all rights available to it
in law or equity including all rights available under this Agreement or under
the other Loan Documents.
SECTION 7 - MISCELLANEOUS.
7.01 EXECUTION AND FORM OF DOCUMENTS. Each written instrument required by
this Agreement or any of the other Loan Documents to be furnished to the Bank
shall be duly executed by the person or persons specified (or where no
particular person is specified, by such person as the Bank shall require), duly
acknowledged where required by the Bank and, in the case of affidavits and
similar sworn instruments, duly sworn to and subscribed before a notary public
duly authorized to act in the premises by Governmental Authority; shall be
furnished to the Bank in one or more copies as required by the Bank; shall be in
such form and of such substance as shall be effective, in the judgment of the
Bank, to accomplish the results intended by such instrument; and shall in all
respects be in form and substance satisfactory to the Bank and to its legal
counsel.
7.02 ASSIGNMENT OF LOAN PROCEEDS. Borrower irrevocably assigns to the Bank
and grants a security interest to the Bank in and to its right, title and
interest in:
a.) All Loan proceeds held by the Bank, whether or not disbursed; and
b.) All funds deposited by the Borrower with the Bank under this Agreement
or otherwise.
7.03 SEVERABILITY. If any item, term or provision contained in the Loan
Documents is in conflict, or may hereafter be held to be in conflict with the
laws of the United States or the State of New Mexico, as applicable, or any
political subdivision of any of them, then only the documents containing such
provision shall be affected and it shall be affected only as to such particular
item, term or provision and shall in all other respects remain in full force and
effect.
7.04 NO WAIVER. No course of dealing between the Bank and the Borrower or
any guarantor, or any delay on the part of the Bank in exercising any rights
hereunder or under the Loan Documents shall operate as a waiver of any rights of
the Bank, except to the extent, if any, expressly waived in writing by the Bank.
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7.05 SURVIVAL. All covenants, agreements, representations and warranties
made by the Borrower in the Loan Documents and in any certificates or other
documents or instruments delivered pursuant to this Agreement shall survive the
making by the Bank of the Loan and the execution and delivery of the Loan
Documents, and shall continue in full force and effect until the Obligations are
paid in full.
7.06 NOTICES. All notices required to be given in writing under this
Agreement shall be given by hand delivery, by a certified delivery by a
nationally recognized overnight courier service, or by the U.S. Postal Service,
and shall be effective when actually delivered, or when delivery during regular
business hours is attempted on a Business Day at the notice address of the party
to whom the notice is to be given. Any party may change its address for notices
under this Agreement by giving written notice to the other party.
Notice Addresses: Borrower:
BOWLIN Outdoor Advertising & Travel Centers, Inc.
150 Louisiana Blvd. NE
Albuquerque, NM 87108
Attn: Michael L. Bowlin, President
and
Bowlin Travel Centers, Inc.
150 Louisiana Blvd. NE
Albuquerque, NM 87108
Attn: Michael L. Bowlin, President
Bank:
First Security Bank of New Mexico, N.A.
P.O. Box 1305
Albuquerque, NM 87103
Attn: Commercial Loans, David Gandy, Vice President
7.07 MODIFICATION. This Agreement shall not be changed orally or by course
of conduct or dealing but shall be changed only by agreement in writing signed
by all parties hereto.
7.08 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which, when so executed and delivered, shall be
an original, but such counterparts shall together constitute one and the same
instrument.
7.09 BINDING EFFECT. This Agreement shall be binding upon the Bank, the
Borrower and their respective successors, assigns, heirs and personal
representatives.
7.10 NO PARTNERSHIP OR JOINT VENTURE. Notwithstanding anything to the
contrary in the Loan Documents, and notwithstanding any action the Bank takes
pursuant to the Loan Documents, the Bank and the Borrower shall not be deemed to
be engaged in a partnership or joint venture, nor shall the Bank be deemed to be
an agent or principal of the Borrower.
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7.11 ASSIGNMENT BY THE BANK. The Loan Documents, each Note, any Renewal
Note and the Loan contemplated thereby, may be placed, participated, assigned
and/or serviced by the Bank and/or its successors and assigns, and in connection
with any of the foregoing, the Bank may retain a portion of the fees or interest
paid on the Notes or may receive servicing, brokerage or other fees from the
purchaser or participant. Any such placement, participation, assignment or
servicing shall be at the Bank's sole option; and the Bank and its successors
and assigns shall have no obligations to disclose to the Borrower the receipt,
or contemplated receipt, of any such fees, nor shall the Borrower have any claim
or right to the same. The Bank shall have the right to disclose and to provide
to any prospective purchaser or participant copies of Loan Documents and
financial and other information of or about the Borrower.
7.12 RELATION TO OTHER DOCUMENTS. This Loan Agreement supersedes and
replaces all prior agreements, commitments, and understandings between the Bank
and the Borrower, written or unwritten, including all previous loan agreements.
The provisions of this Agreement are not intended to supersede the provisions of
the other Loan Documents, but should be construed as supplemental thereto.
However, except as specifically provided herein, if there is any inconsistency
between the provisions of this Agreement and the other Loan Documents, this
Agreement shall control.
7.13 JURISDICTION. Borrower hereby irrevocably agrees that any legal action
or proceedings against the Borrower with respect to this Agreement may be
brought in the courts of the State of New Mexico or in the U.S. District Court
for the District of New Mexico. Borrower hereby consents and submits to the
jurisdiction of such courts and further consents to the personal jurisdiction of
any court located within Bernalillo County, New Mexico, with respect to any
lawsuit to enforce the obligations of Borrower under this Agreement. This
provision shall not limit the right of the Bank to bring such action or
proceedings against the Borrower in the courts of such other states or
jurisdictions where the Borrower may be subject to jurisdiction nor to any
action required to be brought in another jurisdiction as the Borrower(s) real
property assets or interests located in such other jurisdictions.
7.14 GOVERNING LAW. This Agreement and the Loan Documents have been
negotiated, executed and delivered solely within the State of New Mexico. The
rights and obligations of the parties under this Agreement and under each of the
Loan Documents shall be governed by and construed and interpreted in accordance
with the laws of the State of New Mexico.
7.15 JURY TRIAL WAIVER. IN ANY ACTION, CLAIM, COUNTERCLAIM, OR OTHER
PROCEEDING BASED UPON OR RELATED IN ANY MANNER TO THIS AGREEMENT, THE NOTE, OR
THE OTHER LOAN DOCUMENTS, BORROWER, THE BANK, AND ALL MAKERS, SURETIES,
GUARANTORS OF THE NOTE, AND THIS AGREEMENT, TOGETHER WITH ALL SUCCESSORS AND
ASSIGNS OF THE FOREGOING, WAIVE THE RIGHT TO A JURY DEMAND AND TO A TRIAL BY
JURY AND STIPULATE THAT THE TRIER OF FACT SHALL BE THE DESIGNATED JUDGE IN SUCH
PROCEEDING AND ACKNOWLEDGE AND AGREE THAT SUCH WAIVER MAY SIGNIFICANTLY LIMIT AN
IMPORTANT COMMON LAW, CONSTITUTIONAL, AND/OR STATUTORY RIGHT WHICH WOULD BE
OTHERWISE AVAILABLE.
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BANK:
FIRST SECURITY BANK OF NEW MEXICO, N.A.
/s/ David Gandy
- ----------------------------------
By: David Gandy, Vice President
BORROWER:
BOWLIN OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED
/s/ Michael L. Bowlin
- ----------------------------------
By: Michael L. Bowlin, President
BOWLIN TRAVEL CENTERS, INC.
/s/ Michael L. Bowlin
- ----------------------------------
By: Michael L. Bowlin, President
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SCHEDULE OF EXHIBITS TO MASTER LOAN AGREEMENT
Exhibit 1.11: Existing BOA Promissory Notes and new BTC Promissory Notes
payable to First Security Bank of New Mexico, N.A.
Exhibit 5.01(b): The existing Mortgages (or Deeds of Trust, Leasehold
Mortgages, Leasehold Deeds of Trust) on all real property to
be retained by BOA and the title polices insuring such
Mortgages by BOA to the Bank, together with new mortgages
and leasehold mortgages on each parcel listed (excluding the
Albuquerque, New Mexico billboard plant) executed by BTC at
closing, each to be insured by a mortgagee's title policy in
the amount shown.
Exhibit 5.03: Lines of Credit and Undisbursed Proceeds
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