HomeMy WebLinkAboutContract 41669 A
City Secretary Contract No.
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
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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.
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(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
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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. There 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 or 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.
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(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.
(f) 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.
0) 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.
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(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 other 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 appropriate 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.
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(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 Affiliate 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.
0) 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.
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(c) Compliance Certificate. A certificate signed by Borrower's Executive
Director, on or before the 10th 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
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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.
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l l. RLPhts 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 herein 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 further 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: Lender's Address:
6238 Camp Bowie Blvd 1000 Throckmorton Street
Fort Worth, Texas 76116 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
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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 STATE 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.
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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: LENDER:
FORT WORTH AIR AND SPACE CITY OF FORT WORTH
MUSEUM FOUNDATION
By: -�t-� By
Name: Jeff J Name: Karen L.Montgomery
Title: Executive Director Title: Assistant City Manager
Date: I YA&,U'J L X1.6[ Date:
ATTEST: nTn�T
IF
end da" °°0 o�° 0 pff'�B y:
d�
Marty H 4
d
City Secretary OZ
°ao @cc- °o
°o
APPROVED T O G ,
By:
Mal s da B.T armer
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: G-17186
Date Approved: 1/25/2011
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City Secretary Contract No.
ATTACHMENT A
ADVANCE PROMISSORY NOTE
('ity ot'Fort Worth 13
Fort Worth Air and Space Museum Foundation
Loan Agreement
ADVANCE PROMISSORY NOTE
(FIXED RATE)
(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 February 3,2011 (the"Date")
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 STATES 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 I'day of each
month thereafter and at maturity when all unpaid principal and accrued and unpaid interest is finally 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 records 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.
t=ort Worth Air and Span Museum Foundation
Advance Promissory Note-Fixed Rate Page I 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 LOCATED 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 STATE OR FEDERAL COURT IN SUCH COUNTY TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW. TO THE EXTENT PERMITTED 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 REGISTERED MAIL,RETURN
RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED BELOW. LENDER MAY SERVE PROCESS IN ANY OTHER
MANNER PERMITTED 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: �
Jeff J '
Executive Director
Date:
Fort Worth Air and Space Museum Foundation
Advance Promissory Note-Fixcd Rate Page 3 of 3 Pages
City Secretary Contract No.
ATTACHMENT B
SECURITY AGREEMENT
l'itx of Fort Worth 14
Port Worth Air and Space Museum Foundation
Loan Agreement
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'
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 in 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 terms of any Account without the
Fort Worth Air and Space Museum Foundation
General Security Agreement
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 ofthe 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 al l 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 of the 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 of the 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 of this Agreement is unenforceable or invalid,
that provision will not affect the enforceability or validity of any other provision. If the application of any provision
of this 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
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 AIR AND SPACE
MUSEUM FOUNDATION
By: 4LQ�1/-
Jeff ohn
Executive Director
Date: gnnI J",�;;t -��► G
Fort Worth Air and Space Museum Foundation
General Security Agreement
5
City Secretary Contract No.
ATTACHMENT C
DISBURSEMENT SCHEDULE
OtN of Fort Worth 15
Fort Worth Air and Space Mux um Foundation
Loan Agreement
Fort Worth Air Space Museum Foundation
2011 Cash Flow Projections for Exhibition Development and Installation
EXHIBIT C-DISBURSEMENT SCHEDULE
Educational Exhibition Image/Video
Exhibition Design, Acivity Catalogue Aircraft Model License and
Fabrication,and Development Development Development Usage Fees for
Installation* for Exhibition** and Printing** for Exhibition** Exhibition** Total
2011
January $435,000.00 $435,000.00
February $250,000.00 $1,500.00 $4,950.00 $1,650.00 $6,000.00 $264,100.00
March $250,000.00 $1,500.00 $4,450.00 $1,650.00 $2,000.00 $259,600.00
April $300,000.00 $2,500.00 $4,450.00 $306,950.00
May $350,000.00 $2,500.00 $29,950.00 $382,450.00
June $400,000.00 $400,000.00
July $450,000.00 $450,000.00
Contingency*** $50,000.00
Total $2,435,000.00 $8,000.00 $43,800.00 $3,300.00 $8,000.00 $2,548,100.00
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
3/29/2011 Page 1
City Secretary Contract No.
ATTACHMENT D
DISBURSEMENT REQUEST FORM
('ity of Fort Worth 16
Fort Worth Air and Space Museum Foundation
Loan Agreement
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
f
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:
I am the duly elected and qualified Secretary of the Corporation and the custodian of
i 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 -3—i t{-26 l 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
U-11 U
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 L- of ,2011.
ffia,-J, -�
Secretary,Fort Worth Air and
Museum Foundation
2
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.
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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 actively 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 on-going 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 by: Karen Montgomery (6222)
Originating Department Head: Lena Ellis (8517)
Additional Information Contact: 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