PROMISSORY NOTE
(Billboard Acquisition Loan)
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$1,000,000.00 05-01-1997 05-02-1998 50028895 030 211 53868 49MAP
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References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item.
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Borrower: Bowlin Outdoor Advertising & Lender: Norwest Bank New Mexico, National Association
Travel Centers, Incorporated Journal Center Business Banking
150 Louisiana Boulevard NE P.O. Box 1081
Albuquerque, NM 87108 7412 Jefferson Blvd. NE
Albuquerque, NM 87109
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PRINCIPAL AMOUNT: $1,000,000.00 INITIAL RATE: 8.500% DATE OF NOTE: MAY 2, 1997
PROMISE TO PAY. Bowlin Outdoor Advertising & Travel Centers, Incorporated
("Borrower") promises to pay to Norwest Bank New Mexico, National Association
("Lender"), or order, in lawful money of the United States of America, the
principal amount of One Million & 0/100 Dollars ($1,000,000.00) or so much as
may be outstanding, together with interest on the unpaid outstanding principal
balance of each advance. Interest shall be calculated from the date of each
advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on May 2, 1998. In addition, Borrower will pay
regular monthly payments of accrued unpaid interest beginning June 2, 1997, and
all subsequent interest payments are due on the same day of each month after
that. Interest on this Note is computed on a 365/360 simple interest basis; that
is, by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be
applied first to accrued unpaid interest, then to principal, and any remaining
amount to any unpaid collection costs and late charges.
VARIABLE INTERST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the NORWEST BANK
MINNESOTA, N.A. BASE LENDING RATE (the "Index"). The Index is not necessarily
the lowest rate charged by Lender on its loans. If the Index becomes unavailable
during the term of this loan, Lender may designate a substitute index after
notice to Borrower. Lender will tell Borrower the current Index rate upon
Borrower's request. Borrower understands that Lender may make loans based on
other rates as well. The interest rate change will not occur more often than
each Quarter. The Index currently is 8.500% per annum. The interest rate to be
applied to the unpaid principal balance of this Note will be at a rate equal to
the Index, resulting in an initial rate of 8.500% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges
are earned fully as of the date of the loan and will not be subject to refund
upon early payment (whether voluntary or as a result of default), except as
otherwise required by law. Except for the foregoing, Borrower may pay without
penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relive Borrower of
Borrower's obligation to continue to make payments of accrued unpaid interest.
Rather, they will reduce the principal balance due.
LATE PAYMENTS. If any payment is not received by Lender within five calendar
days after the payment is due as provided in this Note (the "Due Date"), then
additional interest will accrue beginning on the sixth calendar day on the
entire unpaid principal balance at the rate of three percent (3%) per year (the
"Additional Interest") until all past-due payments and any Additional Interest
are paid in full. All payments received more than 5 calendar days after the Due
Date will be applied first to past due interest and principal, then to current
interest and current principal, and then to cost of collection.
APPLICATION OF REGULAR PAYMENTS. Notwithstanding any provision of this Note to
the contrary, any regularly scheduled installment payment of principal and
interest which is received before the due date of such payment, or which is
received within 5 calendar days after the due date, will be applied to interest
and to principal as if such payment were received on the due date.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Any representation or statement made or furnished to Lender
by Borrower or on Borrower's behalf is false or misleading in any material
respect either now or at the time made or furnished. (d) Borrower becomes
insolvent, a receiver is appointed for any part of Borrower's property, Borrower
makes an assignment for the benefit of creditors, or any proceeding is commenced
either by Borrower or against Borrower under any bankruptcy or insolvency laws.
(e) Any creditor tries to take any of Borrower's property on or in which Lender
has a lien or security interest. This includes a garnishment of any of
Borrower's accounts with Lender. (f) Any guarantor dies or any of the other
events described in this default section occurs with respect to any guarantor of
this Note. (g) A material adverse change occurs in Borrower's financial
condition or Lender believes the prospect of payment or performance of the
Indebtedness is impaired. [MAP MLB]
LENDER'S RIGHTS. Upon default, and after lender has notified Borrower of said
Default and if such Default shall not be remedied within 15 days after such
notification then, [MAP MLB] Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, increase the variable interest rate on this Note to 5.000
percentage points over the Index. The interest rate will not exceed the maximum
rate permitted by applicable law. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower also will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's
attorney's fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums
provided by law. This Note has been delivered to Lender and accepted by Lender
in the State of New Mexico. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of Bernalillo County, the
State of new Mexico. This Note shall be governed by and construed in accordance
with the laws of the State of New Mexico.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Keogh accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on this Note against any and
all such accounts.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total
amount of principal has been advanced, Borrower is not entitled to further loan
advances. Advances under this Note, as well as directions for payment from
Borrower's accounts, amy be requested orally or in writing by Borrower or by an
authorized person. Lender may, but need not, require that all oral request be
confirmed in writing. Borrower agrees to be liable for all sums either: (a)
advanced in accordance with the instructions or an authorized person or (b)
credited to any of Borrower's accounts with Lender. The unpaid principal balance
owing on this Note at any time may be evidenced by endorsements on this Note or
by Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Note if: (a) Borrower or any
guarantor is in default under the terms of this Note or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (b) Borrower or any guarantor ceases
doing business or is insolvent; (c) any guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such guarantor's guarantee of this Note or
any other loan with Lender; (d) Borrower has applied funds provided pursuant to
this Note for purposes other than those authorized by Lender; or (e) Lender in
good faith deems itself insecure under this Note or any other agreement between
Lender and Borrower.
FINANCIAL STATEMENTS. Borrower agrees to provide Lender, upon request, any
financial statements or information Lender may deem necessary. Borrower warrants
that all financial statements and information Borrower provides to Lender are or
will be accurate, correct and complete.
ARBITRATION. Lender and Borrower agree that, except for "Core Proceedings" under
the United States Bankruptcy Code, all disputes, claims and controversies
between them, whether individual, joint, or class in nature, arising from this
Note or otherwise, including, without limitation, contract and tort disputes,
shall be arbitrated pursuant tot he Commercial Arbitration rules of the American
Arbitration association (the "AAA"), upon request of either party. No act to
take or dispose of any collateral securing this Note shall constitute a waiver
of this arbitration agreement or be prohibited by this deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the uniform Commercial Code.
Any disputes, claims or controversies concerning the lawfulness or
reasonableness of any act, or exercise of any right, concerning any collateral
securing this Note, including any claim to rescind, reform or otherwise modify
any agreement relating to the collateral securing this Note, shall also be
arbitrated, provided however than no arbitrator shall have the right or the
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing in this Note shall preclude any party from seeking equitable relief from
a court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches and similar doctrines which would otherwise be applicable in an action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement of an
action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation and enforcement of this arbitration provision.
Any arbitration hereunder shall be conducted before one arbitrator who shall be
an attorney who has practiced in the area of commercial law for at least ten
(10) years or a retired judge at the District Court or an appellate court level.
The parties to the dispute or their representatives shall obtain from AAA a list
of persons meeting the criteria outlined above and the parties shall select the
person in the manner established by the AAA.
In any arbitration hereunder: (1) the arbitrator shall decide (by documents only
or with a hearing, at the arbitrator's discretion) any pre-hearing motions which
are substantially similar to re-hearing motions to dismiss for failure to state
a claim or motions for summary adjudication; (2) discovery shall be permitted,
but shall be limited as provided in the New Mexico Rules of Civil Procedure,
with all discovery to be completed no later than 20 days before the hearing date
and within 180 days of the commencement of arbitration proceedings; and any
request for an extension of the discovery periods, or any discovery disputes
shall be subject to final determination by the arbitrator; and (3) the
arbitrator shall award costs and expenses of the arbitration proceeding in
accordance with the Lender's Rights provisions of this Note.
"BUSINESS LOAN AGREEMENT". THIS NOTE IS SUBJECT TO THAT CERTAIN BUSINESS LOAN
AGREEMENT DATED APRIL 1, 1997, AND ANY RENEWALS, REPLACEMENTS, EXTENSIONS, OR
AMENDMENTS THEREOF.
GENERAL PROVISIONS. Lender amy delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extend allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan, or
release any party or guarantor or collateral; or impair, fail to realize upon or
perfect Lender's security interest in the collateral; and take any other action
deemed necessary by Lender without the consent of or notice to anyone. All such
parties also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
Bowlin Outdoor Advertising & Travel Centers, Incorporated
By: (sig)
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Michael L. Bowlin, Chairman and President
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Variable Rate. Line of Credit. LASER PRO, Reg. U.S. Pat. & T.M. Off.,
Ver. 3.22b(c) 1997 CFI ProServices, Inc. All rights reserved.
[NM-D20 F3.22a BOW20501.LN C8.OVL]