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HomeMy WebLinkAboutContract 41669 (2)City Secretary Contract No. q � LOAN AGREEMENT This Loan Agreement (the "Loan Agreement"), which is effective as of February 3, 2011, is by and between FORT WORTH AIR AND SPACE MUSEUM FOUNDATION, a nonprofit corporation organized under the laws of the State of Texas ("Borrower"), and CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas ("Lender"), collectively referred to as the "parties." PREAMBLE WHEREAS, on or about January 28, 2011, the parties entered into a Memorandum of Understanding ("MOU") setting forth the preliminary terms of a loan agreement for the creation, design and implementation of a travelling aviation exhibition; and WHEREAS, both parties acknowledge that the terms and conditions of the MOU are intended to be subject to, and governed by, the final terms and conditions of this Loan Agreement upon execution by both parties; and WHEREAS, the parties now wish to formalize the aforementioned relationship and enter into this Loan Agreement as set forth herein. NOW THEREFORE, the parties hereby agree as follows: AGREEMENT 1. Credit Facilities. Subject to the terms and conditions set forth in this Loan Agreement and the other agreements, instruments and documents evidencing, securing, governing, guaranteeing and/or pertaining to the Loans (as hereinafter defined), including the Advance Promissory Note attached hereto as "Attachment A" and the Security Agreement attached hereto as "Attachment B" (collectively, together with the Loan Agreement, referred to hereinafter as the "Loan Documents"). The Loan Documents are hereby incorporated herein by reference and subject to the terms and conditions set forth herein as applicable. Lender hereby agrees to provide to Borrower the credit facility or facilities hereinbelow (whether one or more, the "Credit Facilities"): (a) Advance Facility. Subject to the terms and conditions set forth herein, Lender agrees to lend to Borrower, on a non -revolving basis from time to time during the period commencing on the date hereof and continuing through the maturity date of the promissory note evidencing this Credit Facility from time to time, an aggregate amount not to exceed $2,548,100.00 in multiple advances in accordance with the Disbursement Schedule, which is attached hereto and incorporated herein for all purposes as "Attachment C," as may be requested by Borrower from time to time (the "Advance Facility"). Borrower shall not be allowed to reborrow under the Advance Facility after a repayment. All sums advanced under the Advance Facility shall be used solely for the creation, design, and installation of a temporary travelling aviation City of Fort Worth Fort Worth (Mr aM Space V i$e l Loan tjat SECRETARY Et WORTH) TX hdation 1 City Secretary Contract No. exhibition (the "Exhibit") pursuant to and in accordance with the Disbursement Request Form submitted under subsection (2) below. Lender's obligation to make advances under the Advance Facility shall also be subject to the following additional conditions precedent: (1) Borrower shall provide to Lender, a monthly statement as set forth in section 8(a) herein; and (2) Borrower shall submit a Disbursement Request Form to Lender indicating the specific amount requested for each disbursement in the form of "Attachment D " which is attached hereto and incorporated herein for all purposes, or some other form acceptable to Lender. All advances under the Credit Facilities shall be collectively called the "Loans" Lender reserves the right to require Borrower to give Lender not less than five (5) business days prior notice of each requested advance under the Credit Facilities, specifying (i) the aggregate amount of such requested advance, (ii) the requested date of such advance, and (iii) the purpose for such advance, with such advances to be requested in a form satisfactory to Lender. 2. Advance Promissory Note. The Loans shall be evidenced by the Advance Promissory Note attached hereto as "Attachment A" (together with any renewals, extensions and increases thereof, the "Note') duly executed by Borrower and payable to the order of Lender, in form and substance acceptable to Lender Interest on the Note shall accrue at the rate set forth therein. The principal of and interest on the Note shall be due and payable in accordance with the terms and conditions set forth in the Note and in this Loan Agreement. 3. Collateral. As collateral and security for the indebtedness evidenced by the Note and any and all other indebtedness and obligations from time to time owing by Borrower to Lender, Borrower shall grant and hereby grants, to Lender, its successors and assigns, subject to the Permitted Liens described in Section 7(d) hereof, a first and prior lien and security interest in and to the property described hereinbelow, together with any and all products and proceeds thereof (the "Collateral"): (a) All present and future accounts, chattel paper, documents, instruments, deposit accounts and general intangibles (including any right to payment for goods sold or services rendered arising out of the sale or delivery of personal property or work done or labor performed by Borrower) now or hereafter owned, held, or acquired by Borrower, together with any and all books of account, customer lists and other records relating in any way to the foregoing. (b) All present and hereafter acquired inventory (including without limitation, all raw materials work in process and finished goods) held, possessed, owned, held on consignment, or held for sale, lease, return or to be furnished under contracts of service, in whole or in part, by Borrower wherever located. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 2 City Secretary Contract No. (c) All equipment and fixtures of whatsoever kind and character now or hereafter possessed, held, acquired, leased or owned by Borrower and used or usable in Borrower s business, together with all replacements, accessories, additions, substitutions and accessions to all of the foregoing. (d) The Exhibit, all pledges made to Borrower's capital campaign in connection with the Exhibit, and all funds received in connection with Borrower capital campaign. The Exhibit is initially to be housed at the Fort Worth Museum of Science and History located at 1600 Gendy Street, Fort Worth, Texas 76107, and later to travel to other museums as designated by Borrower. The term "Collateral" shall also include all records and data relating to any of the foregoing (including without limitation, any computer software on which such records and data may be located). Borrower agrees to execute such security agreements, assignments deeds of trust and other agreements and documents as Lender shall deem appropriate and otherwise require from time to time to more fully create and perfect Lender's lien and security interests in the Collateral. 4. Representations and Warranties. Borrower hereby represents and warrants and upon each request for an advance under the Credit Facilities further represents and warrants, to Lender as follows: (a) Existence. Borrower is a nonprofit corporation duly organized, and validly existing and in good standing under the laws of the State of Texas and all other states where it is doing business, and has all requisite power and authority to execute and deliver the Loan Documents. (b) Binding Obligations. The execution, delivery and performance of this Loan Agreement and all of the other Loan Documents by Borrower have been duly authorized by all necessary action by Borrower, and constitute legal, valid and binding obligations of Borrower, enforceable in accordance with their respective terms except as limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors' rights and except to the extent specific remedies may generally be limited by equitable principles. (c) No Consent. The execution, delivery and performance of this Loan Agreement and the other Loan Documents, and the consummation of the transactions contemplated hereby and thereby, do not (i) conflict with, result in a violation of, or constitute a default under (A) any provision of its certificate of formation or bylaws, or any agreement or other instrument binding upon Borrower, or (B) any law, governmental regulation, court decree or order applicable to Borrower, or (ii) require the consent, approval or authorization of any third party. (d) Financial Condition Each financial statement of Borrower supplied to the Lender is complete and correct in all material respects and presents fairly, in all material respects, Borrower's financial condition as of the date of each such statement. There has City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 3 City Secretary Contract No. been no material adverse change in such financial condition or results of operations of Borrower subsequent to the date of the most recent financial statement supplied to Lender. (e) Litigation. These are no actions, suits or proceedings, pending or, to the knowledge of Borrower, threatened against or affecting Borrower or the properties of Borrower, before any court or governmental department, commission of board, which, if determined adversely to Borrower, would have a material adverse effect on the financial condition, properties, or operations of Borrower. (f) Taxes: Governmental Charges. Borrower has filed all federal, state and local tax reports and returns required by any law or regulation to be filed by it and has either duly paid all taxes, duties and charges indicated due on the basis of such returns and reports, or made adequate provision for the payment thereof, and the assessment of any material amount of additional taxes in excess of those paid and reported is not reasonably expected. 5. Conditions Precedent to Advances Lender's obligation to make any advance under this Loan Agreement and the other Loan Documents shall be subject to the conditions precedent that, as of the date of such advance and after giving effect thereto (i) all representations and warranties made to Lender in this Loan Agreement and the other Loan Documents shall be true and correct in all material respects, as of and as if made on such date, (ii) no material adverse change in the financial condition of Borrower since the effective date of the most recent financial statements furnished to Lender by Borrower shall have occurred and be continuing, (iii) no event has occurred and is continuing, or would result from the requested advance, which with notice or lapse of time, or both, would constitute an Event of Default (as hereinafter defined), and (iv) Lender's receipt of all Loan Documents appropriately executed by Borrower and all other proper parties. 6. Affirmative Covenants. Until (i) the Note and all other obligations and liabilities of Borrower under this Loan Agreement and the other Loan Documents are fully paid and satisfied, and (ii) the Lender has no further commitment to lend hereunder, Borrower agrees and covenants that it will, unless Lender shall otherwise consent in writing: (a) Accounts and Records. Maintain its books and records in accordance with generally accepted accounting principles. (b) Right of Inspection. During the term of this Loan Agreement and for a period up to two years after full repayment is made by Borrower, and all obligations are satisfied under this Loan Agreement, permit Lender to visit its properties and installations and to examine audit and make and take away copies or reproductions of Borrower's books and records related to transactions under this Loan Agreement, at all reasonable times, and at no additional cost to Lender. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 4 City Secretary Contract No. (c) Right to Additional Information. Furnish Lender with such additional information and statements, lists of assets and liabilities, tax returns, and other reports with respect to Borrower's financial condition and business operations as Lender may reasonably request from time to time. (d) Compliance with Laws. Conduct its business in an orderly and efficient manner consistent with good business practices and perform and comply with all statutes, rules, regulations and/or ordinances imposed by any governmental unit upon Borrower and its businesses, operations and properties (including without limitation all applicable environmental statutes, rules, regulations and ordinances). (e) Taxes Pay and discharge when due all of its indebtedness and obligations, including without limitation, all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and all lawful claims that, if unpaid might become a lien or charge upon any of Borrower's properties, income or profits; provided however, Borrower will not be required to pay and discharge any such assessment, tax, charge, levy, lien or claim so long as (i) the legality of the same shall be contested in good faith by appropriate judicial, administrative or other legal proceedings, and (ii) Borrower shall have established on its books adequate reserves with respect to such contested assessment tax, charge levy, lien or claim in accordance with generally accepted accounting principles. (0 Insurance. Maintain property insurance on the Exhibit and any other insurance, including but not limited to, fire insurance, comprehensive property damage, public liability, worker's compensation, business interruption and other insurance deemed reasonably necessary by Lender. (g) Notice of Indebtedness. Promptly inform Lender of the creation, incurrence or assumption by Borrower of any actual or contingent liabilities not permitted under this Loan Agreement. (h) Notice of Litigation. Promptly, after the commencement thereof, notify Lender of all actions, suits and proceedings before any court or any governmental department, commission or board affecting Borrower or any of its properties. (i) Notice of Material Adverse Change. Promptly inform Lender of (i) any and all material adverse changes in Borrower's financial condition and (ii) all claims made against Borrower which could result in a materially adverse change in Borrower's financial condition. (j) Additional Documentation. Execute and deliver, or cause to be executed and delivered, any and all other agreements, instruments or documents which Lender may reasonably request in order to give effect to the transactions contemplated under this Loan Agreement and the other Loan Documents. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 5 City Secretary Contract No. (k) 501(c)(3) Status. Continue to conduct its operations in a manner that will result in it continuing to qualify as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, including, but not limited to, the timely filing of all returns, reports, and requests for determination with the IRS and the timely notification of the IRS of all changes in its organization and purposes from the organization and purposes previously disclosed to the IRS. 7. Negative Covenants. Until (i) the Note and all other obligations and liabilities of Borrower under this Loan Agreement and the othei Loan Documents are fully paid and satisfied, and (ii) the Lender has no further commitment to lend hereunder, Borrower will not, without the prior written consent of Lender: (a) Nature of Business. Make any material change in the nature of its business as carried on as of the date hereof. (b) Liquidations, Mergers, Consolidations Liquidate, merge or consolidate with or into any other entity. (c) Sale of Assets. Sell, transfer or otherwise dispose of any of its assets or properties, other than in the ordinary course of business. (d) Liens. Create or incur any lien or encumbrance on any of its assets, other than (collectively, the "Permitted Liens"): (i) liens and security interests securing indebtedness owing to Lender; (ii) liens for taxes, assessments or similar charges that are (1) not yet due or (2) being contested in good faith by appiopriate proceedings and for which Borrower has established adequate reserves (iii) liens and security interests existing as of the date hereof which have been disclosed to and approved by Lender in writing; (iv) liens, not delinquent, arising in the ordinary course of business and created by statute in connection with worker s compensation, unemployment insurance, social security and similar statutory obligations; and (v) liens of mechanics materialmen, carriers, warehousemen and other like statutory or common law liens securing obligations incurred in good faith in the ordinary course of business without violation of any Loan Document that are not yet due and payable. (e) Indebtedness. Create, incur or assume any indebtedness for borrowed money or issue or assume any other note, debenture, bond or other evidences of indebtedness, or guarantee any such indebtedness or such evidences of indebtedness of others, other than (i) borrowings from Lender, and (ii) borrowings outstanding on the date hereof and disclosed in writing to Lender. (f) Transfer of Ownership. Permit the sale, pledge or other transfer of any of the ownership interests in Borrower. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 6 City Secretary Contract No. (g) Change in Management. Permit a change in the senior management of Borrower (h) Loans. Make any loans to any person or entity. (i) Transactions with Affiliates. Enter into any transaction, including, without limitation, the purchase, sale or exchange of property or the rendering of any service, with any Affiliate (as hereinafter defined) of Borrower, except in the ordinary course of and pursuant to the reasonable requirements of Borrower's business and upon fair and reasonable terms no less favorable to Borrower than would be obtained in a comparable arm's-length transaction with a person or entity not an Affihate of Borrower. As used herein the term "Affiliate" means any individual or entity directly or indirectly controlling, controlled by, or under common control with, another individual or entity. (j) Dividends. Borrower agrees not to declare or pay any dividends on any shares of Borrower's capital stock, make any other distributions with respect to any payment on account of the purchase, redemption, or other acquisition or retirement of any shares of Borrower's capital stock, or make any other distribution, sale, transfer or lease of any of Borrower's assets other than in the ordinary course of business, unless any such amounts are directly utilized for the payment of principal or interest on indebtedness and obligations owing from time to time by Borrower to Lender. (k) Salaries. Borrower agrees not to pay or contract to pay any salaries, commissions bonuses or other compensation, or administrative, fiscal or legal costs or fees from the Advance Facility, in whatever form. 8. Reporting Requirements. Until (i) the Note and all other obligations and liabilities of Borrower under this Loan Agreement and the other Loan Documents are fully paid and satisfied, and (ii) the Lender has no further commitment to lend hereunder, Borrower will unless Lender shall otherwise consent in writing, furnish to Lender: (a) Monthly Financial Statements. As soon as available, on or before the 10th day of each month commencing on the 10th day of March 2011, a balance sheet and income statement of Borrower as of the end of the preceding month, all in form and substance and in reasonable detail satisfactory to Lender and duly certified (subject to year-end review adjustments) by Borrower's Executive Director or a Certified Public Accountant (CPA) retained by Borrower to prepare such statement(s), (i) as being true and correct in all material aspects to the best of his or her knowledge and (ii) as having been prepared in accordance with generally accepted accounting principles (b) Annual Financial Statements. As soon as available and in any event within sixty (60) days after the end of each fiscal year of Borrower, a balance sheet and income statement of Borrower as of the end of such fiscal year, in each case audited by independent public accountants of recognized standing acceptable to Lender. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 7 City Secretary Contract No. (c) Compliance Certificate. A certificate signed by Borrower's Executive Director, on or before the loth day of each month, stating that Borrower is in full compliance with all of its obligations under this Loan Agreement and all other Loan Documents and is not in default of any term or provisions hereof or thereof, and demonstrating compliance with all financial ratios and covenants set forth in this Loan Agreement. (d) Pledge Report. A pledge report signed by Borrower's Executive Director, on or before the 10th day of each month, in form and detail satisfactory to Lender. Such report shall include subject to applicable confidentiality restrictions (whether of contract or by law), a schedule of pledges (by amount and payment schedule) and contributions received by Borrower during the preceding month. (e) Tax Returns. Copies of Borrower's income tax returns (federal and state, if any) within thirty (30) days after filing. 9. Events of Default. Each of the following shall constitute an "Event of Default" under this Loan Agreement: (a) The failure, refusal or neglect of Borrower to pay when due any part of the principal of, or interest on, the Note or any other indebtedness or obligations owing to Lender by Borrower from time to time. (b) The failure of Borrower or any Obligated Party (as defined below) to timely and properly observe, keep or perform any covenant, agreement, warranty or condition required herein or in any of the other Loan Documents and the failure of Borrower or any Obligated Party to cure such default within 30 days after written notice from Lender specifying such default. (c) The occurrence of an event of default under any of the other Loan Documents or under any other agreement now existing or hereafter arising between Lender and Borrower after the giving of any required notice and expiration of any applicable cure period. (d) Any representation contained herein or in any of the other Loan Documents made by Borrower or any Obligated Party is false or misleading in any material respect. (e) The occurrence of any event which permits the acceleration of the maturity of any indebtedness owing by Borrower to any third party under any agreement or understanding. (f) If Borrower or any Obligated Party: (i) becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they become due; (ii) generally is not City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 8 City Secretary Contract No. paying its debts as such debts become due; (iii) has a receiver, trustee or custodian appointed for, or take possession of, all or substantially all of the assets of such party, either in a proceeding brought by such party or in a proceeding brought against such party and such appointment is not discharged or such possession is not terminated within sixty (60) days after the effective date thereof or such party consents to or acquiesces in such appointment or possession; (iv) files a petition for relief under the United States Bankruptcy Code or any other present or future federal or state insolvency, bankruptcy or similar laws (all of the foregoing hereinafter collectively called "Applicable Bankruptcy Law") or an involuntary petition for relief is filed against such party under any Applicable Bankruptcy Law and such involuntary petition is not dismissed within sixty (60) days after the filing thereof, or an order for relief naming such party is entered under any Applicable Bankruptcy Law, or any composition, rearrangement, extension, reorganization or other relief of debtors now or hereafter existing is requested or consented to by such party; (v) fails to have discharged within a period of thirty (30) days any attachment, sequestration or similar writ levied upon any property of such party; or (vi) fails to pay within thirty (30) days any final money judgment against such party. (g) If Borrower or any Obligated Party is an entity, the liquidation, dissolution, merger or consolidation of any such entity or, if Borrower or any Obligated Party is an individual, the death or legal incapacity of any such individual. (h) The entry of any judgment against Borrower or the issuance or entry of any attachment or other lien against any of the property of Borrower for an amount in excess of $25,000, if undischarged, unbonded or undismissed within thirty (30) days after such entry Nothing contained in this Loan Agreement shall be construed to limit the events of default enumerated in any of the other Loan Documents and all such events of default shall be cumulative. The term "Obligated Party", as used herein, shall mean any party other than Borrower who secures guarantees and/or is otherwise obligated to pay all or any portion of the indebtedness evidenced by the Note. 10. Remedies. Upon the occurrence of any one or more of the foregoing Events of Default, and upon the expiration of thirty (30) days following the giving of notice in accordance with Section 14 hereof with respect to such Event of Default (a) the entire unpaid balance of principal of the Note, together with all accrued but unpaid interest thereon and all other indebtedness owing to Lender by Borrower at such time shall, at the option of Lender, become immediately due and payable without further notice, demand, presentation, notice of dishonor, notice of intent to accelerate, notice of acceleration, protest or notice of protest of any kind, all of which are expressly waived by Borrower, and (b) Lender may, at its option, cease further advances under the Note. All rights and remedies of Lender set forth in this Loan Agreement and in any of the other Loan Documents may also be exercised by Lender, at its option to be exercised in its sole discretion, upon the occurrence of an Event of Default. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 9 City Secretary Contract No. 11. Rights Cumulative. All rights of Lender under the terms of this Loan Agreement shall be cumulative of, and in addition to, the rights of Lender under any and all other agreements between Borrower and Lender (including, but not limited to, the other Loan Documents), and not in substitution or diminution of any rights now or hereafter held by Lender under the terms of any other agreement. 12. Waiver and Agreement. Neither the failure nor any delay on the part of Lender to exercise any right, power or privilege herem or under any of the other Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or privilege preclude any other or furthei exercise thereof or the exercise of any other right, power or privilege. No waiver of any provision in this Loan Agreement or in any of the other Loan Documents and no departure by Borrower therefrom shall be effective unless the same shall be in writing and signed by Lender, and then shall be effective only in the specific instance and for the purpose for which given and to the extent specified in such writing. No modification or amendment to this Loan Agreement or to any of the other Loan Documents shall be valid or effective unless the same is signed by the party against whom it is sought to be enforced. 13. Benefits. This Loan Agreement shall be binding upon and inure to the benefit of Lender and Borrower, and their respective successors and assigns, provided, however, that Borrower may not, without the prior written consent of Lender, assign any rights, powers, duties or obligations under this Loan Agreement or any of the other Loan Documents 14. Notices. All notices, requests, demands or other communications required or permitted to be given pursuant to this Agreement shall be in writing and given by (i) personal delivery, (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid registered or certified mail, return receipt requested, sent to the intended addressee at the address set forth below and shall be deemed to have been received either, in the case of personal delivery or expedited delivery service, as of the date of delivery, or in the case of mail, within three days following the date of mailing Either party shall have the right to change its address for notice hereunder to any other location within the continental United States by notice to the other party of such new address at least thirty (30) days prior to the effective date of such new address. Borrower's Address: 6238 Camp Bowie Blvd Fort Worth, Texas 76116 Lender s Address: 1000 Throckmorton Street Fort Worth, Texas 76102 15. Construction. This Loan Agreement and the other Loan Documents have been executed and delivered in the State of Texas shall be governed by and construed in accordance with the laws of the State of Texas, and shall be performable by the parties hereto in the county in Texas where the Lender's address set forth in Section 14 hereof is located. 16. Invalid Provisions. If any provision of this Loan Agreement or any of the other Loan Documents is held to be illegal, invalid or unenforceable under present or future laws, such City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 10 City Secretary Contract No. provision shall be fully severable and the remaining provisions of this Loan Agreement or any of the other Loan Documents shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance. 17. Expenses. Borrower shall pay all costs and expenses (including, without limitation, reasonable attorneys' fees) in connection with (i) any action required in the course of protection and enforcement of the indebtedness and obligations evidenced by the Loan Documents, and (ii) any action in the enforcement of Lender's rights upon the occurrence of Event of Default. 18. Participation of the Loans Borrower agrees that Lender may, at its option, sell interests in the Loans and its rights under this Loan Agreement to a financial institution or institutions and, in connection with each such sale, Lender may disclose any financial and other information available to Lender concerning Borrower to each prospective purchaser. 19. Conflicts. In the event any term or provision hereof is inconsistent with or conflicts with any provision of the other Loan Documents, the terms and provisions contained in this Loan Agreement shall be controlling. 20. Counterparts. This Loan Agreement may be separately executed in any number of counterparts, each of which shall be an original, but all of which, taken together, shall be deemed to constitute one and the same instrument. 21. Facsimile Documents and Signatures. For purposes of negotiating and finalizing this Loan Agreement, if this document or any document executed in connection with it is transmitted by facsimile machine ("fax"), it shall be treated for all purposes as an original document. Additionally, the signature of any party on this document transmitted by way of a facsimile machine shall be considered for all purposes as an original signature. Any such faxed document shall be considered to have the same binding legal effect as an original document. At the request of any party, any faxed document shall be re -executed by each signatory party in an original form. If the foregoing correctly sets forth our mutual agreement, please so acknowledge by signing and returning this Loan Agreement to the undersigned. NOTICE TO COMPLY WITH STA 1'E LAW For the purpose of this Notice, the term "WRITTEN AGREEMENT" shall include the document set forth above, together with each and every other document relating to and/or securing the same loan transaction, regardless of the date of execution. City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 11 City Secretary Contract No. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. BORROWER: FORT WORTH AIR AND SPACE MUSEUM FOUNDATION LENDER: CITY OF FORT WORTH By: Ora-kriC)-)1/ By��� Name: Jeff Johrisi Name: Karen L. Montgomery Title: Executive Director Title: Assistant City Manager Date: fYLavtk 3D Lo L � City 'o f fFort: Worth:: Fort Worth Air and Space Museum Loan Agteement Foundation 12 Date: ATTEST: By: 'ilr/i/ IA Marty Hend City Secretary APPROVED TO By. 0 ' AND LEG Mal • shia B. Farmer Assistant City Attorney CONTRACT AUTHORIZATION: M&C: G-17186 Date Approved: 1/25/2011 Viit; ffr City Secretary Contract No. ATTACHMENT A ADVANCE PROMISSORY NOTE City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 13 ADVANCE PROMISSORY NOTE (FIXED RA IL) (this `Note") NAME AND ADDRESS OF BORROWER Fort Worth Air and Space Museum Foundation 6238 Camp Bowie Blvd Fort Worth, Texas 76116 U.S. $2,548,100.00 I February 3, 2011 (the "Date") 1 FOR VALUE RECEIVED, the "Borrower" (jointly and severally if more than one), promises to pay to the order of CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas ("Lender") on or before September 30, 2011 at its office at 1000 Throckmorton Street, Fort Worth, Tarrant County, Texas 76102, or at such other location as Lender may designate, in immediately available funds, TWO MILLION FIVE HUNDRED FORTY EIGHT THOUSAND ONE HUNDRED UNITED STA 1'> S DOLLARS (U.S $2 548,100 00) (the ' Maximum Amount of Note") or the aggregate unpaid amount of all advances hereunder, whichever is less. Borrower will also pay interest on the unpaid principal balance outstanding from time to time at a rate per annum equal to a fixed rate of three percent (3%). Accrued and unpaid interest is due and payable monthly, beginning on March 1, 2011, and continuing on the 1st day of each month thereafter and at maturity when all unpaid principal and accrued and unpaid interest is fmally due and payable. Interest on this Note is computed on a 30/360 simple interest basis; that is, with the exception of odd days in the first payment period, monthly interest is calculated by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance multiplied by a month of 30 days. Interest for the odd days is calculated on the basis of the actual days to the next full month and a 360-day year. All past -due principal and interest on this Note will, at Lender's option, bear interest at a rate per annum equal to a fixed rate of four percent (4%). In addition to all principal and accrued interest on this Note, Borrower agrees to pay (a) all reasonable costs and expenses incurred by Lender and all owners and holders of this Note in collecting this Note through probate, reorganization, bankruptcy or any other proceeding; and (b) reasonable attorney's fees if and when this Note is placed in the hands of an attorney for collection. Borrower and Lender intend to conform strictly to applicable usury laws. Therefore, the total amount of interest (as defined under applicable law) contracted for, charged or collected under this Note will never exceed the maximum nonusurious rate of interest (the "Highest Lawful Rate"). If Lender contracts for, charges or receives any excess interest, it will be deemed a mistake Lender will automatically reform the contract or charge to conform to applicable law, and if excess interest has been received Lender will either refund the excess to Borrower or credit the excess on the unpaid principal amount of this Note. All amounts constituting interest will be spread throughout the full term of this Note in determining whether interest exceeds lawful amounts. If Texas law determines the Highest Lawful Rate, Lender has elected the weekly rate ceiling as defined in the Texas Finance Code Chapter 303. Lender may from time to time as to current and future balances elect and implement any other ceiling under such Code and/or revise the index, formula or provisions of law used to compute the rate on this open-end account by notice to Borrower, if and to the extent permitted by and in the manner provided in such Code. The unpaid principal balance of this Note at any time will be the total amounts advanced by Lender, less the amount of all payments of principal. Absent manifest error, the recoi ds of Lender will be conclusive as to amounts owed. Subject to the terms and conditions of this Note and the Loan Documents, Borrower may use all or any part of the credit provided for herein at any time before the maturity of this Note and may borrow and repay but not reborrow. There is no limitation on the number of advances made so long as the total amount advanced does not exceed the Maximum Amount of Note. Borrower may at any time pay the full amount or any part of this Note without the payment of any premium or fee. All payments may, at Lender's sole option, be applied to accrued interest, to principal, or to both. ' Loan Document" means this Note and any document or instrument evidencing securing, guaranteeing or given in connection with this Note. "Obligations" means all principal, interest and other amounts which are or become owing under this Note or any other Loan Document ' Obligor" means Borrower and any guarantor, surety, co-signer, general partner or other person who may now or hereafter be obligated to pay all or any part of the Obligations Where appropriate, the masculine gender includes the feminine and the neuter and the singular number includes the plural number. Fort Worth Air and Space Museum Foundation Advance Promissory Note -Fixed Rate Page 1 of 3 Pages If any Event of Default (as defined in the Loan Agreement of even date herewith between Borrower and Lender) occurs, then Lender may do any or all of the following: (i) cease making advances hereunder; (ii) declare the Obligations to be immediately due and payable, without notice of acceleration or of intention to accelerate, presentment and demand or protest or notice of any kind, all of which are hereby expressly waived; (iii) set off, in any order, against the Obligations any debt owing by Lender to any Borrower, including, but not limited to, any deposit account, which right is hereby granted by Borrower to Lender and (iv) exercise any and all other rights under the Loan Documents at law, in equity or otherwise. No waiver of any default is a waiver of any other default. Lender's delay in exercising any right or power under any Loan Document is not a waiver of such right or power. Each Obligor severally waives notice, demand, presentment for payment notice of nonpayment, notice of intent to accelerate, notice of acceleration, protest, notice of protest, and the filing of suit and diligence in collecting this Note and all other demands and notices, and consents and agrees that its liabilities and obligations will not be released or discharged by any or all of the following, whether with or without notice to it or any other Obligor, and whether before or after the stated maturity hereof: (i) extensions of the time of payment; (ii) renewals; (iii) acceptances of partial payments; (iv) releases or substitutions of any collateral or any Obligor; and (v) failure, if any, to perfect or maintain perfection of any security interest in any collateral. Each Obligor agrees that acceptance of any partial payment will not constitute a waiver and that waiver of any default will not constitute waiver of any prior or subsequent default. Borrower represents and agrees that: all advances evidenced by this Note are and shall be for business, commercial, investment or other similar purpose and not primarily for personal family or household use as such terms are used in the Texas Finance Code. Borrower represents and agrees that no advances will be used primarily for agricultural purposes as such term is used in the Texas Finance Code and no advances will be used for the purpose of purchasing or carrying any margin stock as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the "Board"). Notwithstanding anything contained herein or in any other Loan Document, if this is a consumer credit obligation (as defined or described in 12 C.F.R. 227, Regulation AA, promulgated by the Board), the security for this credit obligation will not extend to any non -possessory security interest in household goods (as defined in Regulation AA) other than a purchase money security interest, and no waiver of any notice contained herein or therein will extend to any waiver of notice prohibited by Regulation AA Texas Finance Code Chapter 346 shall not apply to this Note or to any advance evidenced by this Note. This Note is governed by Texas law. If any provision of this Note is illegal or unenforceable, that illegality or unenforceability will not affect the remaining provisions of this Note BORROWER(S) AND LENDER AGREE THAT THIS NOTE WILL BE PERFORMED IN THE COUNTY IN WHICH LENDER'S PRINCIPAL OFFICE IS LOCA FED IN TEXAS, AND THAT SUCH COUNTY IS PROPER VENUE FOR ANY ACTION OR PROCEEDING BROUGHT BY BORROWER(S) OR LENDER, WHETHER IN CONTRACT, TORT OR OTHERWISE ANY ACTION OR PROCEEDING AGAINST BORROWER(S) MAY BE BROUGHT IN ANY STA lE OR FEDERAL COURT IN SUCH COUNTY TO THE EXTENT NOT PROHIBI FED BY APPLICABLE LAW TO THE EX 1 ENT PERMI VIED BY APPLICABLE LAW BORROWER(S) HEREBY IRREVOCABLY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS AND (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. BORROWER(S) AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGIS IERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW. LENDER MAY SERVE PROCESS IN ANY OTHER MANNER PERMUTED BY LAW AND MAY BRING ANY ACTION OR PROCEEDING AGAINST BORROWER(S) OR WITH RESPECT TO ANY OF ITS PROPERTY IN COURTS IN OTHER PROPER JURISDICTIONS OR VENUES. For purposes of this Note, any assignee or subsequent holder of this Note will be considered the `Lender," and any successor to Borrower will be considered the "Borrower." Each Borrower and cosigner represents that if it is not a natural person, it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or organization; has full power to own its properties and to carry on its business as now conducted; is duly qualified to do business and is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification desirable; and has not commenced any dissolution proceedings. Each of the persons signing below as Borrower or cosigner represents that he/she has full requisite power and authority to execute and deliver this Note to Lender on behalf of the party for whom he/she signs and to bind such party to the terms and conditions of this Note and that this Note is enforceable against such party. NO COURSE OF DEALING BETWEEN BORROWER AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EXTRINSIC EVIDENCE OF ANY NATURE MAY BE USED TO CONTRADICT OR MODIFY ANY TERM OF THIS NOTE OR ANY OTHER LOAN DOCUMENT. Fort Worth Air and Space Museum Foundation Advance Promissory Note -Fixed Rate Page 2 of 3 Pages THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. IN WITNESS WHEREOF, Borrower has executed this Note effective as of the Date. BORROWER: FORT WORTH AIR AND SPACE MUSEUM FOUNDATION By: 0 'ACM Jeff Johnst/lv Executive Director Date: eL2t>12tk Fort Worth Air and Space Museum Foundation Advance Promissory Note -Fixed Rate Page 3 of 3 Pages City Secretary Contract No. ATTACHMENT B SECURITY AGREEMENT City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 14 SECURITY AGREEMENT This Security Agreement (this "Agreement") is effective as of February 3, 2011, and made by FORT WORTH AIR AND SPACE MUSEUM FOUNDATION, a nonprofit corporation organized under the laws of the State of Texas, whose address is 6238 Camp Bowie Blvd Fort Worth, Texas 76116 ("Debtor"), and for the benefit of CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas ("Secured Party"), whose address is 1000 Throckmorton Street, Fort Worth, Texas 76102. Debtor hereby agrees with Secured Party as follows: SECTION 1. DEFINITIONS. (a) "Collateral" means all Accounts, all Equipment, all Inventory and all Proceeds, the temporary travelling aviation exhibition initially to be housed at the Fort Worth Museum of Science and History located at 1600 Gendy Street, Fort Worth, Texas 76107, together with all books and records of Debtor, whether in paper or electronic form, relating to the Collateral. "Accounts" means all accounts, Pledge Collateral, general intangibles instruments, negotiable documents, chattel paper, deposit accounts and intellectual property. "Equipment" means all equipment, furniture, furnishings and fixtures, including all accessions and appurtenances to, renewals or replacements of or substitutions for any Equipment, and all documents or certificates of title relating to the foregoing. "Inventory' means all inventory, including without limitation materials, supplies, returned or repossessed goods, goods in transit and goods held by others under lease, consignment or other arrangements, and all documents or certificates of title relating to the foregoing. ` Pledge Collateral" means all pledges made by a person or entity to Debtor's capital campaign. (b) ` Obligations" means all debts, obligations and liabilities of every kind and character of Debtor, whether joint or several, contingent or otherwise, now or hereafter existing in favor of Secured Party including without limitation all liabilities arising under or from any note, open account, overdraft, letter of credit, endorsement surety agreement, guaranty, interest rate swap or other derivative product, acceptance foreign exchange contract or depository service contract, whether payable to Secured Party or to a third party and subsequently acquired by Secured Party Debtor and Secured Party specifically contemplate that Debtor may hereafter become further indebted to Secured Party (c) ` Past Due Rate" means a rate per annum equal to a fixed rate of four percent (4%). (d) `Proceeds" means all products and proceeds, in cash or otherwise, of all other Collateral. (e) "Security Interest" means the security interests created by this Agreement. (f) "UCC" means the Texas Uniform Commercial Code, as amended from time to time. All terms defined in the UCC are used in this Agreement as defined in the UCC unless otherwise defined in this Agreement. SECTION 2. CREATION OF SECURITY INTEREST. To secure the payment and performance of the Obligations, Debtor grants to Secured Party a security interest in and assigns to Secured Party all Collateral which Debtor owns or later acquires. SECTION 3. DEBTOR'S REPRESENTATIONS. (a) Debtor is the sole lawful owner of the Collateral, free and clear of all encumbrances, and has the right and power to transfer the Collateral to Secured Party No financing statement covering the Collateral, other than in favor of Secured Party, is on file in any public office (b) This Agreement constitutes the legal, valid and binding obligation of Debtor, enforceable in accordance with its terms. (c) The Collateral and the Debtor's use thereof comply with all applicable laws, rules and regulations, and Debtor has obtained any consents necessary to execute deliver and perform its obligations under this Agreement. (d) Debtor is a corporation organized under the laws of the State of Texas and the address set forth above is Debtor's place of business. (e) The Collateral is free from damage caused by fire or other casualty. (f) Except as disclosed on attached schedules, no Collateral is covered by a certificate of title or subject to certificate of title law or subject to registration with the Federal Aviation Administration, Coast Guard or Interstate Commerce Commission. SECTION 4. DEBTOR'S AGREEMENTS. (a) Debtor will warrant and defend its title to and Secured Party's interest m the Collateral against any adverse claimant. Debtor will promptly take all reasonable and appropriate steps to collect the Accounts. Debtor will not agree to a material modification of the -Willis of any Account without the Fort Worth Air and Space Museum Foundation General Security Agreement 1 written consent of Secured Party (b) Notwithstanding the security interest in Proceeds granted herein, Debtor will not sell, transfer, assign or otherwise dispose of any interest in the Collateral, except as authorized in this Agreement or in writing by Secured Party, and Debtor will keep the Collateral (including Proceeds) free from unpaid charges, including taxes and assessments, and from all encumbrances other than those in favor of Secured Party Debtor may sell or lease inventory in the ordinary course of business. Sale in the ordinary course of business does not include a transfer in total or partial satisfaction of a debt. (c) Secured Party may require that Debtor (i) deposit all payments on the Accounts in a special bank account over which Secured Party alone has power of withdrawal, and (ii) direct each account debtor to send remittances to an address designated by Secured Party. Secured Party may hold the funds in the account as security, or apply the funds to pay the Obligations. (d) Debtor will furnish Secured Party all information Secured Party may request with respect to the Collateral. Debtor will notify Secured Party promptly of any event that could have a material adverse effect on the aggregate value of the Collateral or on the Security Interest, or any change in Debtor's location, name, identity or organizational structure. (e) Debtor will keep accurate books and records regarding the Collateral and will allow Secured Party to inspect the Collateral and to inspect and make copies (including electronic copies) of its books and records during regular business hours. The names of all persons or entities who have pledged to make a contribution to Debtor s capital campaign, amounts paid, amounts owing due dates and other information with respect to Debtor's capital campaign and the Pledge Collateral are and will be correctly stated in all records of Debtor relating thereto and in all invoices and reports with respect thereto furnished to Secured Party by Debtor from time to time. (f) Notwithstanding anything to the contrary contained herein, (i) Debtor shall remain liable under the contracts and agreements included in the Pledge Collateral to the extent set forth therein to perform all of its respective duties and obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by Secured Party of any of its rights hereunder shall not release Debtor from any of its duties or obligations under the contracts and agreements included in the Pledge Collateral and (iii) Secured Party shall not have any obligation or liability under any of the contracts and agreements included in the Pledge Collateral by reason of this Agreement, nor shall Secured Party be obligated to perform any of the obligations or duties of Debtor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. SECTION 5. FURTHER ASSURANCES. Secured Party may file this Agreement or any financing statements wherever Secured Party believes necessary to perfect the Security Interest. A photographic or other reproduction of this Agreement or any financing statement relating to this Agreement will be sufficient as a financing statement Debtor authorizes Secured Party and irrevocably appoints Secured Party as Debtor's attorney -in -fact to file any financing statement (including any amendments) relating to this Agreement electronically, and Secured Party's transmission of Debtor' s name as part of any filing relating to this Agreement will constitute Debtor s signature on the financing statement Debtor will take such action as Secured Party may at any time require to protect, assure or enforce the Security Interest. If any Collateral is located on or in leased property, Debtor will furnish Secured Party an executed landlord's waiver satisfactory to Secured Party. Debtor will promptly deliver to Secured Party any part of the Collateral that constitutes instruments and will make a designation on all of its chattel paper, instruments and negotiable documents to reflect the Security Interest. SECTION 6 DEBTOR'S USE OF COLLATERAL; INSURANCE. (a) Debtor will keep the Equipment and the Inventory at the address set forth above or other locations of which Debtor notifies Secured Party in writing from time to time, except for temporary removal in connection with ordinary use. (b) Debtor will properly maintain the Equipment and the Inventory and will comply with all applicable laws, rules and regulations in the use, sale and production of the Equipment and the Inventory (including without limitation the Fair Labor Standards Act). Debtor will replace obsolete or worn-out Equipment with comparable new Equipment, and may sell obsolete or worn-out Equipment which has been replaced with comparable new Equipment. (c) DEBTOR WILL MAINTAIN INSURANCE ON THE COLLATERAL against all customary risks for goods of the same type and use, including without limitation fire and theft, and any other risks designated by Secured Party DEBTOR MAY FURNISH INSURANCE THROUGH EXISTING POLICIES DEBTOR OWNS OR CONTROLS OR THROUGH NEW Fort Worth Air and Space Museum Foundation General Security Agreement 2 POLICIES ISSUED BY ANY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN TEXAS. Secured Party will be named on a customary loss payee endorsement to all such insurance, providing for payment to Secured Party and Debtor (and no other person) as their interests appear, and providing for at least 30 days written notice to Secured Party before cancellation. Secured Party is irrevocably appointed attorney -in -fact for Debtor to obtain, adjust, settle and cancel such insurance. Secured Party may apply all proceeds of insurance to repayment of the Obligations, whether Debtor is in default or not. SECTION 7. FIXTURES AND APPURTENANCES. If any part ofthe Collateral is or will be affixed to real estate or other goods, a description of the real estate or other goods and the record owner of the real estate or other goods is listed below: REAL ESTATE OR GOODS TO WHICH RECORD OWNER ATTACHED None of the real estate is subject to a construction mortgage. Debtor will furnish Secured Party on demand one or more instruments signed by all persons having an interest in the real estate or other goods, subordinating any interest in any Collateral to Secured Party's interest. SECTION 8. COSTS AND EXPENSES. Debtor will pay, or reimburse Secured Party for, all costs and expenses of every character incurred from time to time in connection with this Agreement (and all modifications and renewals) and the Obligations, including costs and expenses incurred (a) for mortgage or recording taxes, (b) to satisfy any obligation of Debtor under this Agreement or to protect the Collateral, (c) in connection with the protection and enforcement of the Obligations or the Collateral (whether or not an Event of Default has occurred), and (d) in connection with the exercise of Secured Party's rights and remedies. Costs and expenses include reasonable fees and expenses of outside counsel and other outside professionals and charges imposed for the services of attorneys and other professionals employed by Secured Party or its affiliates Any amount owing under this Section will be due and payable on demand and will bear interest from the date of expenditure by Secured Party until paid at the Past Due Rate SECTION 9. DEFAULT. Each of the following events or conditions is an "Event of Default:" (a) Debtor fails to pay when due (or within any contractually agreed grace period) any ofthe Obligations; (b) any event occurs that gives Secured Party the immediate right to declare any of the Obligations due and payable in full prior to final maturity; (c) any warranty, representation or statement contained in this Agreement or made in connection with this Agreement or any ofthe Obligations was false or misleading in any respect when made; (d) Debtor violates any covenant, condition or agreement contained in this Agreement or any other document relating to the Obligations; (e) any Collateral is lost, stolen, substantially damaged, destroyed, abandoned, levied upon, seized or attached; or (f) Debtor conceals or removes any part of the Collateral with intent to hinder, delay or defraud the Secured Party After an Event of Default occurs, Secured Party may without notice to any person declare the Obligations to be immediately due and payable Debtor WAIVES demand, presentment and all notices, including without limitation notice of dishonor and default notice of intent to accelerate and notice of acceleration. SECTION 10. SECURED PARTY'S RIGHTS AND REMEDIES After an Event of Default occurs, Secured Party will have all rights and remedies of a secured party after default under the UCC and other applicable law Fort Worth Air and Space Museum Foundation General Security Agreement 3 Secured Party may require Debtor to assemble the Collateral and make it available at a reasonably convenient place Secured Party designates. Except for the safe custody of any Collateral in its possession and accounting for moneys actually received by it, Secured Party will have no duty as to any Collateral including any duty to preserve rights against prior parties. Debtor irrevocably appoints Secured Party Debtor's attorney -in -fact to endorse any checks or other instruments included in the Collateral, or to take any other action to enforce, collect or compromise the Collateral. Secured Party is not required to take possession of any Collateral prior to any sale, nor to have any Collateral present at any sale. Secured Party may sell part of the Collateral without waiving its right to proceed against the remaining Collateral If any sale is not completed or is defective in the opinion of Secured Party, Secured Party may make a subsequent sale of the same Collateral. Any bill of sale or other instrument evidencing any foreclosure sale will be prima facie evidence of factual matters stated or recited therein. If a sale of Collateral is conducted in conformity with customary practices of banks disposing of similar property, the sale will be deemed commercially reasonable, but Secured Party will have no obligation to advertise or to sell Collateral on credit. Written notice to Debtor mailed 10 days prior to public or private sale is reasonable notice. By exercising its rights, Secured Party will not become liable for, and Debtor will not be released from, any of Debtor s duties or obligations under the contracts and agreement included in the Collateral. Secured Party may purchase Collateral at any public sale, and may credit the purchase price against the Obligations All remedies in this Agreement are cumulative of any and all other legal equitable or contractual remedies available to Secured Party. Debtor WAIVES any rights to a marshaling of assets or sale in inverse order of alienation, and any rights to notice except as provided in the UCC. SECTION 11. ADDITIONAL AGREEMENTS. (a) This Agreement will remain in effect until Secured Party executes and delivers to Debtor a written termination statement. (b) No modification or waiver of the terms of the Agreement will be effective unless in writing and signed by Secured Party Secured Party may waive any default without waiving any other prior or subsequent default. Secured Party s failure to exercise or delay in exercising any right under this Agreement will not operate as a waiver of such right. No single or partial exercise of any right under this Agreement will preclude any other or further exercise of that right or any other right (c) Any notice required or permitted under this Agreement will be given in writing by United States mail, by hand delivery service, or by telegraphic, telex telecopy or cable communication, sent to the intended addressee at the address shown in this Agreement, or to such different address as the addressee designates by 10 days notice Notice by United States mail will be effective three (3) days following the date of mailing. All other notices will be effective when received. Written confirmation of receipt will be conclusive (d) If any provision ofthis Agreement is unenforceable or invalid that provision will not affect the enforceability or validity of any other provision If the application of any provision ofthis Agreement to any person or circumstance is illegal or unenforceable, that application will not affect the legality or enforceability of the provision as to any other person or circumstance. (e) If more than one person executes this Agreement as Debtor, their obligations under this Agreement are joint and several, and the term Collateral includes any property described in Section 1 that is owned by any Debtor individually or jointly with any other Debtor, and the term "Obligations" includes both several and joint obligations of each Debtor. (f) The section headings in this Agreement are for convenience only and shall not be considered in construing this Agreement (g) This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which will constitute one and the same agreement. (h) This Agreement benefits the Secured Party and its successors and assigns and is binding on Debtor and its heirs, legal representatives, successors and assigns (i) This Agreement is governed by the laws of the State of Texas. (k) Secured Party is executing this Agreement for the purpose of acknowledging the following notice and Secured Party's failure to execute this Agreement will not invalidate this Agreement. Fort Worth Air and Space Museum Foundation General Security Agreement 4 Date: This written loan agreement represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. DEBTOR: FORT WORTH AM AND SPACE MUSEUM FOUNDATION By: sqd\CdAnee' JeffJdinUU U Executive Director (MAMA 10) JD (1 Fort Worth Air and Space Museum Foundation General Security Agreement 5 City Secretary Contract No. ATTACHMENT C DISBURSEMENT SCHEDULE City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 15 2011 January February March April May June July Contingency *** Total Fort Worth Air Space Museum Foundation 2011 Cash Flow Projections for Exhibition Development and Installation Exhibition Design, Fabncation, and Installation* $435,000.00 $250,000.00 $250,000.00 $300,000.00 $350,000.00 $400,000.00 $450,000.00 $2,435,000.00 EXHIBIT C - DISBURSEMENT SCHEDULE Educational Acivity Development for Exhibition** $1,500.00 $1,500.00 $2,500.00 $2,500.00 $8,000.00 Exhibition Catalogue Aircraft Model Development Development and Printing** for Exhibition** $4,950.00 $4,450.00 $4,450.00 $29,950.00 $43,800.00 $1,650.00 $1,650.00 Image/Video License and Usage Fees for Exhibition** $6,000.00 $2,000.00 $3,300.00 $8,000.00 Notes * Contract invoices for Design and Production, Inc. * *Costs that the Foundation is responsible for outside of the contract with Design and Production, Inc. * ** Costs related to the interpretive catalog, artifact preparation, and image fees/licenses Total $435,000.00 $264,100.00 $259,600.00 $306,950.00 $382,450.00 $400,000.00 $450,000.00 $50,000.00 $2,548,100.00 3/29/2011 Page 1 City Secretary Contract No. ATTACHMENT D DISBURSEMENT REQUEST FORM City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Agreement 16 City of Fort Worth Fort Worth Air and Space Museum Foundation Loan Disbursement City Secretary Contract No. Exhibit D Disbursement Request Form Date of Disbursement Request: Amount of Disbursement Request: Wiring Instructions: Account of Deposit: Name on Account: Routing (ABA) Number: Comments (if needed): Approved by Assistant City Manager: Approved by Foundation Executive Director: Signature: Signature: Printed Name. Printed Name: Title: Title: Date: Date: For City Use Only Total Loan Amount: Adjustments, including interest: Loan Balance: Date of Approval: Fort Worth Air and Space Museum Foundation CERTIFICATE OF CORPORATE RESOLUTIONS OF FORT WORTH AIR AND SPACE MUSEUM FOUNDATION I, P.D. Shabay, Secretary of the Board of the Fort Worth Air and Space Museum Foundation, a Texas nonprofit corporation (the "Corporation"), do hereby certify as follows: 1. I am the duly elected and qualified Secretary of the Corporation and the custodian of the Corporation's records. 2, Set forth below is a true and correct extract from the records of the Corporation showing resolutions duly adopted on i'4 - 26 k t , either: (a) at a meeting of its Board of Directors duly called and held, at which meeting a quorum was present and acting throughout, or (b) by unanimous written consent of the Board of Directors of the Corporation, which resolutions have not in any way been amended or modified and are in full force and effect: RESOLVED, that the Executive Director of the Corporation, be and is hereby authorized and directed to obtain a loan in the amount of two million five hundred forty eight thousand one hundred dollars ($2,548,100.00) from City of Fort Worth ("Lender"), upon such terms and conditions as the said officer shall in his or her sole discretion deem necessary or advisable; to execute and deliver on behalf of the Corporation, all promissory notes, deeds of trust, security instruments, documents, certificates and agreements (collectively, the "Loan Documents") required by Lender, and to pledge as security for the loan such assets of the Corporation as such officer deems necessary or advisable; and to do any and all things in connection with such loan or any renewal, extension or rearrangement thereof that such officer deems necessary or advisable and in the best interests of the Corporation. FURTHER RESOLVED, that all acts of the Executive Director of the Corporation authorized and directed herein, including the execution and delivery of the Loan Documents and all other documents referenced herein relating to the loan herein referenced, are reasonably expected to benefit, directly or indirectly, the Corporation; FURTHER RESOLVED, that the Executive Director of the Corporation is hereby authorized to (a) sign, execute, certify to, verify, acknowledge, deliver, accept, file and record any and all instruments and documents, and (b) take, or cause to be taken, any and all such action, in the name and on behalf of the Corporation, or otherwise, as in any such officer's judgment is necessary, desirable or appropriate in order to consummate the transactions contemplated by or otherwise to effect the purposes of the foregoing resolutions; FURTHER RESOLVED, that all actions heretofore taken by the Executive Director of the Corporation, and all things done by his or her authority, in connection with the Fort Worth Air and Space Museum Foundation Certificate of Corporate Resolutions Page 1 of 2 transaction described herein, be and the same are hereby ratified, approved and adopted as the acts of the Corporation; FURTHER RESOLVED, that said Executive Director is authorized and empowered to perform all acts and execute and deliver all instruments, documents and agreements required by Lender to carry out the purposes of these resolutions; 3. The following individual is a duly appointed or elected, qualified and serving officer of the Corporation, and that the signature set out opposite the name of the officer is the genuine signature of such person, to -wit: Name Title Signature Jeff Johns Executive Director QoALLC>iphivUU �� 4. (a) all franchise and other taxes required to maintain the Corporation's corporate existence have been paid when due and that no such taxes are delinquent; (b) no proceedings are pending for the forfeiture of the Corporation's Certificate of Formation or the Corporation's dissolution, voluntary or involuntary; (c) the Corporation is duly qualified to do business in the State of Texas and any other states in which it is doing business, and is in good standing in such states; (d) there is no provision of the Certificate of Formation or Bylaws of the Corporation limiting the power of the Board of Directors to pass the resolutions set out above, and that such resolutions are in conformity with the provisions of said Certificate and Bylaws. IN WITNESS WHEREOF, I have hereto set my hand this It tZIay of Lia , 2011. Secretary, Fort Worth Air and Museum Foundation Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/25/2011 DATE: Tuesday, January 25, 2011 REFERENCE NO.: G-17186 LOG NAME 1311 AVIATION LOAN SUBJECT Authorize the Execution of a Loan Agreement with Fort Worth Air and Space Museum Foundation for Up to $3 Million from the General Fund and Other Agreements Necessary to Secure Such Loan RECOMMENDATION: Based on direction from Council Proposal No. 284, it is recommended that the City Council: 1. Authorize the City Manager to execute a loan agreement with the Fort Worth Air and Space Museum Foundation for up to $3 million from the General Fund and any other agreements deemed necessary by the parties to secure such loan; and 2. Find that this loan is for a public purpose and is consistent with recommendations made by the Mayor's Aviation Museum Task Force and Lord Cultural Resources, the City's consultant on the creation of the Fort Worth Air and Space Museum. DISCUSSION: On January 4, 2011, the City Council approved Council Proposal (CP No. 284), directing the City Manager to appropriate $3 million for a loan to the Fort Worth Air and Space Museum Foundation (the Foundation) and to bring forward for the City Council's consideration a recommended nine -month loan agreement and such other documents necessary to secure such loan. The purpose of this loan is to assist the Foundation in leading the development of the Fort Worth Air and Space Museum The first step in this process is the creation of a temporary exhibition in the Fort Worth Museum of Science and History. This temporary exhibition is expected to open in late May 2011 and will consist of a 10,000 square foot demonstration with interactive displays where visitors will see four areas of focus on the history of aviation: Pioneers and Innovators, Creativity, The Future, and Aviation in North Texas. The 2011 opening of this exhibition coincides with the 100th anniversary of the first flight in Fort Worth, performed by Roland Garros in an aerial demonstration sponsored by Amon Carter. This exhibition will be the first glimpse of what is to be expected in the permanent Fort Worth Air and Space Museum and is intended to build momentum for the fund raising efforts currently underway. After the temporary exhibit closes at Fort Worth Museum of Science and History, a 5,000 square foot portion of the exhibit will be toured through other aviation, science and history museums in the region and nation The purpose of the loan is to provide the Foundation with money necessary to fund construction and installation of the exhibit. The maximum amount of the loan is $3 million although City staff and the Foundation will review current cash flow projects to determine whether the loan agreement can provide for a lower amount, and all loan proceeds must be repaid by the Foundation in full by September 30, 2011. Interest on the outstanding principal balance of the loan shall accrue at the rate of three percent per annum based on a 360-day year consisting of twelve 30-month days. From and after the occurrence of any default, interest will accrue at four percent per annum. http://apps.cfwnet org/ecouncil/printmc.asp?id=14796&print=true&DocType=Preview 4/6/2011 Page 2 of 2 The loan will be a general obligation of the Foundation and shall be further secured by a lien on and security interest in all personal property and real property owned by the Foundation, including the exhibit and any pledges received by the Foundation. Although the Foundation has not yet secured any pledges, the Foundation is activoly pursuing them, and numerous requests with various corporations and non-profit foundations are under serious consideration. Nevertheless, a risk exists that the Foundation may not be able to repay the loan. The establishment of the Fort Worth Air and Space Museum was recommended by the Mayor's Aviation Museum Task Force, established pursuant to Resolution No. 3572-01-2008, and Lord Cultural Resources, the City's consultant hired in March 2008 to assist the City and the Mayor's Aviation Museum Task Force in developing a strategic master plan for the Fort Worth Air and Space Museum. The City Council's approval of this M&C will constitute a finding by the City Council that this loan is consistent with and helps meet the public purposes outlined in that master plan and generally stated by the City Council since establishing the Mayor's Aviation Museum Task Force. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that funds are available to fund this short term loan with no material effect on ongoing City operations. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers GG01 122141 0000000 $3, 000, 000. 00 CERTIFICATIONS: Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: Karen Montgomery (6222) Lena Ellis (8517) James Mauldin (2438) ATTACHMENTS 1. Term Sheet --Fort Worth Air and Space Museum Foundation Loan (1 18 2011).DOC (CFW Internal) http://apps.cfwnet.org/ecouncil/printmc.asp?id=14796&print=true&DocType=Preview 4/6/2011