AMENDED AND RESTATED TERM NOTE AND CREDIT AGREEMENT
THIS IS NOT A NOVATION
$4,676,203.00 Springfield, Missouri
July ___, 2000
For value received, ITEC ATTRACTIONS, INC., a Nevada corporation, successor by
merger to International Tourist Entertainment Corporation, a U.S. Virgin Islands
corporation (Borrower), promises to pay to the order of BANK OF AMERICA, N.A.,
formerly NationsBank, N.A., formerly The Boatmen's National Bank of St. Louis,
or any other Person who becomes a holder (in any case, Lender) of this Amended
and Restated Term Note and Credit Agreement (as it may be amended, restated,
extended, renewed, replaced, or otherwise modified from time to time, this Note
and Credit Agreement), the principal sum of $4,676,203 or so much thereof as has
been advanced to Borrower as provided herein, together with interest, as
follows:
Accrued interest under this Note and Credit Agreement shall be due and
payable on the first day of each month commencing August 1, 2000 and
continuing through and including the Maturity Date, and on demand after
the Maturity Date if any principal remains outstanding on this Note and
Credit Agreement after the Maturity Date. Principal outstanding under
this Note and Credit Agreement shall be due and payable in monthly
installments commencing April 1, 2001, and continuing on the first day
of each month thereafter until June 30, 2013 (the Maturity Date), each
in the amounts described in Attachment A hereto. All outstanding
principal and accrued, unpaid interest thereon is due and payable in
full on the Maturity Date. Amounts repaid hereunder may not be
reborrowed.
Interest on the outstanding principal balance of this Note and Credit
Agreement shall accrue at the Prime Rate plus or minus the Prime Rate
Increment determined as provided herein. The Prime Rate Increment shall
be determined by Lender on the date hereof and shall be re-determined
annually thereafter from the following table based upon the ratio of
(a) EBITDA to (b) Debt Service (the Debt Service Coverage Ratio) for
the fiscal year then most recently ended as reflected in Borrower's
Financial Statements for such fiscal year:
If the Debt Service Coverage Ratio The Prime Rate
is: Increment shall be:
------------------------------------- --------------------
Greater than or equal to 2.0 to 1.0 Minus 0.25%
Less than 2.0 to 1.0 and greater Zero
than or equal to 1.5 to 1.0
Less than 1.5 to 1.00 Plus 0.25%
The Prime Rate Increment shall remain in effect until re-determined as
provided herein. Any change in the Prime Rate Increment shall become
applicable on the first day following the day when Borrower delivers to
Lender its Financial Statements for its fiscal year most recently ended
as required herein. If Borrower does not deliver such Financial
Statements to Lender within the period required herein, the highest
possible Prime Rate Increment shall become applicable as of the last
day of such period and shall remain applicable until Borrower delivers
such Financial Statements to Lender.
After maturity of this Note and Credit Agreement or, at the option of
Lender, upon the occurrence of any Event of Default, all outstanding
principal and, to the extent permitted by law, interest accrued under
this Note and Credit Agreement, shall bear interest at the rate that
would otherwise apply plus 4%.
Both principal and interest are payable in Dollars in immediately available
funds to Lender at Bank of America, N.A., 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000, or at such other address of which Lender gives notice to
Borrower. Lender may debit against checking account no. 220111012388 maintained
with Lender by Borrower (or any successor account to such account) the amount of
each payment hereunder on the date due.
If any payment of principal or interest due on this Note and Credit Agreement is
payable on a day other than a Business Day, then such payment shall be made on
the next Business Day, and the amount of such payment, in such case, shall
include all interest accrued to the date of actual payment; provided, however,
that if the next succeeding Business Day would be in the following calendar
month, such payment shall instead be due on the immediately preceding Business
Day.
Borrower may prepay the principal amount of this Note and Credit Agreement
without penalty or premium wholly at any time or in part from time to time.
Borrower will make a prepayment on or before June 30 of each year in the amount
by which Borrower's cash balance exceeded $1,000,000 as of May 31 of such year.
On the date hereof, Lender will make an advance to Borrower in the amount of
$3,176,810 for the sole purpose of restructuring the existing Indebtedness of
Borrower to Lender under loan number 5059710-0001. Lender will make additional
advances thereafter as provided herein to finance the construction of three new
theaters and additional parking related thereto and the remodeling of the
restaurant area adjacent to the theaters. The date and amount of each advance
hereunder and all payments from Borrower under this Note and Credit Agreement
will be recorded in the records that Lender normally maintains for this type of
transaction. The failure to record, or any error in recording, such payments
shall not, however, affect the obligation of Borrower to make payments strictly
as required under this Note and Credit Agreement. Borrower shall have the burden
of proving that Lender's records are not correct.
Advances after the date hereof may be made in Lender's commercially reasonable
discretion, and Lender shall have no liability to Borrower or any other Person
for refusing to make any such subsequent advance. Without limiting Lender's
commercially reasonable discretion to make or refuse to make subsequent advances
hereunder, no advance will be made which would result in the amount outstanding
hereunder exceeding the face amount of this Note and Credit Agreement, no
advances will be made at any time a Default has occurred and is continuing, and
no advance will be made after March 31, 2001. Lender may, however, in its
absolute discretion make such advances, but shall not be obligated to make any
such advances thereafter.
Borrower may request an advance at any time, but not more often than once each
Business Day, by submitting a request therefor to Lender. Every request for an
advance shall be irrevocable. A request for an advance received by Lender on a
day that is not a Business Day or that is received by Lender after 1:00 p.m.
(St. Louis time) on a Business Day shall be treated as having been received by
Lender prior to 1:00 p.m. (St. Louis time) on the next Business Day. No advance
will be made unless it is in an amount greater than or equal to $20,000 and
unless it is a whole multiple of $5,000. Each request for an advance shall
constitute a certification by Borrower that (i) there is no Default which has
occurred and is continuing, and (ii) the representations and warranties herein
and in the other Loan Documents are true as if made on the date of such advance.
Borrower agrees that Lender may, in its sole and absolute discretion, advance
the entire unadvanced portion of this Note and Credit Agreement to Borrower on
March 31, 2001.
Representations and Warranties
------------------------------
Borrower represents and warrants to Lender (and all such representations and
warranties, as made or deemed made as of a particular time, shall survive
execution of each of the Loan Documents and the making of every advance
hereunder, and may be relied upon by Lender as being true and correct as of the
date when made or deemed made until all of the Loan Obligations are fully and
indefeasibly paid), except as otherwise disclosed to Lender in the Disclosure
Schedule attached hereto as Attachment B (the Disclosure Schedule), as follows:
1. Borrower is a corporation duly organized and validly existing in the
state of its organization, and is qualified to do business and is in
good standing in every state where the nature or extent of its business
or properties require it to be so qualified, except where the failure
to so qualify will not have a Material Adverse Effect. Borrower has the
power and authority to own its properties and carry on its business as
now being conducted.
2. The execution and delivery of this Note and Credit Agreement has
been duly authorized by proper corporate proceedings and constitutes
the valid and binding obligation of Borrower. No consent, approval or
authorization of, or declaration or filing with, any Governmental
Authority, and no consent of any other Person, is required in
connection with Borrower's execution, delivery or performance of this
Note and Credit Agreement, except for those already duly obtained.
3. This Note and Credit Agreement has been executed on behalf of
Borrower by a Person duly authorized to do so.
4. This Note and Credit Agreement constitutes the legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except to the extent that the enforceability
thereof against Borrower may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by equitable principles of general application.
5. The execution, delivery, and performance of this Note and Credit
Agreement will not violate, conflict with or constitute a default under
any law, rule, regulation, order, judgment, organizational documents,
indenture, instrument, or agreement by which Borrower is bound.
6. Borrower is not a party to or bound by any Contract nor is subject
to any provision in the Charter Documents of Borrower which would, if
performed by Borrower, result in a Default or Event of Default either
immediately or within the reasonably foreseeable future.
7. There is no pending or, to Borrower's knowledge, threatened union
organization or recognition effort, strike, work stoppage, material
unfair labor practice claim or other material labor dispute against or
affecting Borrower or its employees which has had or is reasonably
likely to have a Material Adverse Effect.
8. There are no pending or threatened Material Proceedings involving
Borrower. None of the operations of Borrower are the subject of any
judicial or administrative complaint, order or proceeding alleging the
violation of any applicable Environmental Law. None of the operations
of Borrower are the subject of investigation by any Governmental
Authority regarding the improper transportation, storage, disposal,
generation or release into the environment of any Hazardous Material,
the results of which are reasonably likely to have a Material Adverse
Effect.
9. All Material Licenses have been obtained or exist for Borrower.
10. Other than in the ordinary course of business and in accordance
with all applicable Laws, Borrower has not and to the best of
Borrower's knowledge, no other Person, has at any time transported,
stored, disposed of, generated or released any Hazardous Materials on
the surface, below the surface, or within the boundaries of any real
property owned or operated by Borrower or any improvements thereon.
Borrower has no knowledge of any Hazardous Materials on the surface,
below the surface, or within the boundaries of any real property owned
or operated by Borrower or any improvements thereon, except such
Hazardous Materials as may be located on such real property in the
ordinary course of business and in accordance with all applicable Laws.
No property of Borrower is subject to a Security Interest in favor of
any Governmental Authority for any liability under any Environmental
Law or damages arising from or costs incurred by such Governmental
Authority in response to a spill of release of Hazardous Materials into
the environment.
11. There is no litigation or proceeding pending or, to Borrower's
knowledge, threatened against or affecting Borrower or any circumstance
existing which would in any manner adversely affect the enforceability
of this Note and Credit Agreement or the ability of Borrower to perform
its obligations under this Note and Credit Agreement.
12. Borrower is in compliance with all applicable statutes, rules,
regulations, orders, judgments and decrees of Governmental Authorities
which, if enforced, may have a Material Adverse Effect on Borrower.
13. Borrower has no Affiliates who are not individuals and has no
Subsidiaries.
14. Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U). None of the transactions contemplated by this Note
and Credit Agreement will violate Regulations T, U or X of the FRB.
15. The financial statements of Borrower as of March 31, 2000, as
delivered to Lender by Borrower are complete and correct in all
material respects, have been prepared in accordance with GAAP, and
fairly reflect the financial condition, results of operations and cash
flows of Borrower as of the date and for the periods stated therein.
16. Since March 31, 2000, nothing has occurred which has had or is
reasonably likely to have a Material Adverse Effect.
17. Borrower has no Indebtedness except Permitted Indebtedness.
18. Borrower has no Indirect Obligations.
19. Borrower has no Investments other than loans to employees in an
aggregate amount not exceeding $25,000 outstanding at any time.
20. All Pension Benefit Plans maintained by Borrower or an ERISA
Affiliate of Borrower qualify under Section 401 of the Code and are in
compliance with the provisions of ERISA.
21. Neither Borrower nor any ERISA Affiliate of Borrower maintains a
Welfare Benefit Plan that has a liability which, if enforced or
collected, is reasonably likely to have a Material Adverse Effect.
Borrower and each ERISA Affiliate of Borrower has complied in all
material respects with the applicable requirements of Section 4980B of
the Code pertaining to continuation coverage as mandated by COBRA.
22. Neither Borrower nor any ERISA Affiliate of Borrower has an
obligation to provide any Person with any medical, life insurance, or
similar benefit following such Person's retirement or termination of
employment (or to such Person's beneficiary subsequent to such Person's
death), including obligations under COBRA, which if enforced or
collected, is reasonably likely to have a Material Adverse Effect.
23. Borrower has good and marketable or merchantable title to all real
and personal property purported to be owned by it or reflected in the
Financial Statements, except for personal property sold in the ordinary
course of business after the date of the Financial Statements. There
are no Security Interests on any of the property purported to be owned
by Borrower, including the Collateral, except Permitted Security
Interests. Each tangible item of Collateral which is personal property
purported to be owned by Borrower shall be in good operating condition
and repair and suitable for the use to which it is customarily put by
its owner.
24. No information, certification or report submitted to Lender by
Borrower pursuant to this Note and Credit Agreement contains any
material misstatement of fact or omits to state a material fact or any
fact necessary to make the information not misleading.
25. No default, or event which with the giving of notice or lapse of
time or both would be a default exists under this Note and Credit
Agreement or any other agreement or instrument to which Borrower is a
party or an obligor.
26. Borrower has filed all required federal and local tax returns and
paid all taxes due pursuant to said returns except for those taxes
being contested in good faith and for which adequate reserves have been
provided.
27. Except as described in the Disclosure Schedule: (a) Borrower has
not used any name other than the full name which identifies Borrower in
this Note and Credit Agreement; and (b) the only trade name or style
under which Borrower sells Inventory or creates Accounts, or to which
instruments in payment of Accounts are made payable, is the name which
identifies Borrower in this Note and Credit Agreement. Borrower's chief
executive office is located at 3562 Shepherd of the Hills Expressway,
Branson, Missouri, and Borrower has no other places of business, and
has no books and records or other property located at any other
location.
Covenants
---------
Borrower covenants and agrees that, until all outstanding principal and accrued
interest on this Note and Credit Agreement are fully and indefeasibly paid,
Borrower shall do, cause to be done, or refrain from doing, and shall cause each
of its Subsidiaries, if any, to do or refrain from doing, to the same extent as
if such Subsidiary were Borrower, the following without the prior written
consent of Lender:
1. Borrower shall maintain its existence in good standing and shall
maintain in good standing its right to transact business in those
states in which it is now or hereafter doing business, except where the
failure to so qualify is not reasonably likely to have a Material
Adverse Effect.
2. Borrower shall obtain and maintain all Material Licenses for
Borrower.
3. Borrower shall use the proceeds advanced pursuant to this Note and
Credit Agreement solely for restructuring existing Indebtedness of
Borrower to Lender and for the construction of three new theaters and
additional parking related thereto and the remodeling of the restaurant
area adjacent to the theaters.
4. Borrower shall pay to Lender, on the date of the initial advance
hereunder, a non-refundable commitment fee of $15,000.
5. Borrower shall pay or reimburse to Lender, within 30 days of the
presentation of an invoice all of Lender's reasonable out-of-pocket
costs incurred in connection with Lender's due diligence review before
making the loan evidenced by this Note and Credit Agreement and in
connection with the negotiation and preparation of this Note and Credit
Agreement and the Loan Documents and the closing of the transactions
contemplated hereby. Borrower further agrees to pay or reimburse to
Lender all of Lender's reasonable out-of-pocket costs, without limit,
incurred in connection with (i) amendments of this Note and Credit
Agreement and the Loan Documents, and (ii) the enforcement of Lender's
rights and remedies under this Note and Credit Agreement and the Loan
Documents after an Event of Default, and (iii) any waiver, consent or
forbearance with respect to any Default or Event of Default. Lender's
out-of-pocket costs include all attorneys' and paralegals' expenses and
reasonable fees. Attorneys' and paralegals' expenses may include but
are not limited to filing charges; telephone, data transmission,
facsimile and other communication costs; courier and other delivery
charges; and photocopying charges. Litigation costs may include but are
not limited to filing fees, deposition costs, expert witness fees,
expenses of service of process, and other such costs paid or incurred
in any administrative, arbitration, or court proceedings involving
Lender and Borrower, including proceedings under the Federal Bankruptcy
Code.
6. Borrower shall maintain in good condition and working order, and
repair and replace as required, all buildings, equipment, machinery,
fixtures and other real and personal property whose useful economic
life has not elapsed and which is necessary for the ordinary conduct of
the business of Borrower. Borrower shall maintain in good standing and
free of defaults all of its leases of buildings, equipment, machinery,
fixtures and other real and personal property whose useful economic
life has not elapsed and which is necessary for the ordinary conduct of
the business of Borrower.
7. Borrower shall promptly pay and discharge or cause to be paid and
discharged, as and when due, all Taxes lawfully assessed or imposed
upon it, and all Taxes lawfully assessed upon any of its property, or
upon the income or profits therefrom, and all claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons for
labor, materials, supplies, storage or other items or services which if
unpaid might be or become a Security Interest or charge upon any of its
property; provided, however, that Borrower may diligently contest in
good faith by appropriate proceedings the validity of any such Taxes if
Borrower has established adequate reserves therefor in conformity with
GAAP on the books of Borrower, and no Security Interest, other than a
Permitted Security Interest, results from such non-payment.
8. Borrower shall comply with all Material Laws.
9. Borrower shall, promptly upon Borrower obtaining knowledge or notice
thereof, give written notice in reasonable detail to Lender of (i) any
Default or Event of Default; (ii) the commencement of any Material
Proceeding or any litigation with an amount in controversy of greater
than $100,000; and (iii) any loss of or damage to any material part of
the other assets of Borrower or the commencement of any proceeding for
the condemnation or other taking of any material part of the assets of
Borrower, if such loss, damage or proceeding has or is reasonably
likely to have a Material Adverse Effect.
10. Borrower shall deliver written notice to Lender of any change in
the name, state of organization, or form of organization of Borrower,
or the trade names or styles under which a Borrower conducts business,
at least 30 days prior to such change. Borrower shall, promptly after
becoming aware thereof, deliver notice to Lender of any event that has
or is reasonably likely to have a Material Adverse Effect and of any
potential or contingent liability in excess of $100,000.
11. Borrower shall maintain a system of accounting from which Financial
Statements may be prepared in accordance with GAAP.
12. Borrower shall deliver to Lender:
a. Within 120 days after the close of each fiscal year of Borrower,
year-end consolidated and consolidating financial statements of
Borrower and its Subsidiaries, containing a balance sheet, income
statement, statement of cash flows, statement of changes in
shareholders' equity and an audit report without qualification by
an independent certified public accounting firm selected by
Borrower and satisfactory to Lender, and in each case accompanied
by a Compliance Certificate of the Chief Financial Officer of
Borrower.
b. Within 90 days after the end of each fiscal quarter of Borrower,
unaudited consolidated and consolidating financial statements of
Borrower and its Subsidiaries for the quarters not covered by the
latest year-end Financial Statements, in each case containing a
balance sheet, income statement and statement of cash flows.
13. Each Compliance Certificate shall be in the form of Attachment C
hereto, shall contain detailed calculations of the compliance or
non-compliance by Borrower with its financial covenants herein for the
relevant periods, and shall contain statements by the signing officer
to the effect that, except as explained in reasonable detail in such
Compliance Certificate, (i) the attached Financial Statements are
complete and correct in all material respects and have been prepared in
accordance with GAAP applied consistently throughout the periods
covered thereby and with prior periods (except as disclosed therein),
(ii) all of the representations and warranties in the Note and Credit
Agreement and the other Loan Documents are true and correct as of the
date such certification is given as if made on such date (and each such
representation and warranty shall be deemed to be made on such date
regardless of whether such certification is given), and (iii) there is
no existing Default or Event of Default. If any Compliance Certificate
delivered to Lender discloses that a representation or warranty is not
true and correct, or that a Default or Event of Default has occurred
that has not been waived in writing by Lender, such Compliance
Certificate shall state what action Borrower has taken or proposes to
take with respect thereto.
14. Borrower shall also deliver to Lender such additional information
about the business, operations, revenues, financial condition,
property, or business prospects of Borrower as Lender may, from time to
time, reasonably request.
15. Borrower shall permit Lender or Persons authorized by and acting on
behalf of Lender, at any time and from time to time during normal
business hours and upon reasonable notice to Borrower, to audit the
books and records of Borrower, and in the course thereof may make
copies or abstracts of such books and records, and to inspect the
Collateral. Borrower shall cooperate with Lender and such Persons in
the conduct of such audits and inspections and shall deliver to Lender
any instrument necessary for Lender to obtain records from any service
bureau maintaining records for Borrower. Lender shall perform no more
than one such audit in each fiscal year, unless a Default or Event of
Default has occurred that has not been cured or waived, in which case
such audits may be conducted as often as Lender chooses. Borrower shall
reimburse Lender for Lender's reasonable out-of-pocket costs of such
audits and inspections if a Default or Event of Default has occurred
and is continuing at the time such audit or inspection is initiated or
if such audit or inspection reveals that a Default or Event of Default
has occurred .
16. Borrower shall permit Lender and Persons authorized by Lender to
discuss the accounts, affairs, finances, books and records of Borrower
with its accountants, officers and employees as often as Lender may
reasonably request, and Borrower shall direct such accountants,
officers and employees to cooperate with Lender and make full
disclosure to Lender of those matters that they may deem relevant to
the continuing ability of Borrower timely to pay and perform
obligations under this Note and Credit Agreement. Lender agrees that it
will not disclose to third Persons any information that it obtains
about Borrower or its operations or finances that are designated by
Borrower in writing as confidential or that Borrower has advised Lender
in writing constitutes non-public information. Lender may, however,
disclose such information to any participants in its rights and
obligations under this Note and Credit Agreement and its and their
respective officers, attorneys, auditors, accountants, examiners,
agents and representatives who have a need to know such information in
connection with the administration, interpretation or enforcement of
this Note and Credit Agreement, but Lender shall advise such persons
that such information is to be treated as confidential. Lender may also
disclose such information to the extent required by Law or a
Governmental Authority. Lender may also disclose such information in
any documents that it files in any legal proceeding to pursue, enforce
or preserve its rights under this Note and Credit Agreement to the
extent that Lender's counsel advises in writing that such disclosure is
reasonably necessary. Lender's non-disclosure obligation shall not
apply to any information that (i) is disclosed to Lender by a third
Person not affiliated with or employed by Borrower who does not have a
commensurate duty of non-disclosure, or (ii) becomes publicly known
other than as a result of disclosure by Lender.
17. Borrower shall execute and deliver, or cause to be executed and
delivered, to Lender such documents and agreements, and shall take or
cause to be taken such actions, as Lender may from time to time request
to carry out the terms and conditions of this Note and Credit
Agreement.
18. Borrower shall not create, incur, assume, or allow to exist any
Indebtedness of any kind or description, except the following (the
Permitted Indebtedness):
a. Indebtedness to trade creditors incurred in the ordinary course
of business, to the extent that it is not overdue past the original
due date by more than 90 days.
b. Indebtedness secured by Permitted Security Interests other than
Permitted Security Interests described in covenant 20 (g).
c. Indebtedness to Lender.
d. Indebtedness existing on the date hereof and disclosed in the
Disclosure Schedule.
e. Indebtedness for borrowed money not otherwise described above,
in an aggregate amount not to exceed $100,000.
19. Borrower shall not create, incur, assume or allow to exist any
Indirect Obligations.
20. Borrower shall not create, incur, assume or allow to exist any
Security Interest upon any property of Borrower, now owned or hereafter
acquired, except the following (the Permitted Security Interests):
a. Security Interests for taxes, assessments or governmental
charges not delinquent or being diligently contested in good faith
and by appropriate proceedings and for which adequate book reserves
in accordance with GAAP are maintained.
b. Security Interests arising out of deposits in connection with
workers' compensation insurance, unemployment insurance, old age
pensions, or other social security or retirement benefits
legislation.
c. Deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds, and other obligations of like
nature arising in the ordinary course of business.
d. Security Interests imposed by any Law, such as mechanics',
workmen's, materialmen's, landlords', carriers', or other like
Security Interests arising in the ordinary course of business which
secure payment of obligations which are not past due or which are
being diligently contested in good faith by appropriate proceedings
and for which adequate book reserves in accordance with GAAP are
maintained.
e. Security Interests of customers of Borrower in items of
Inventory for the manufacture of which such customers have paid
deposits to Borrower, to the extent such Security Interests secure
the repayment of such deposits.
f. Security Interests in favor of Lender.
g. Security Interests securing payment of the purchase price of
capital assets acquired by Borrower after the date hereof in an
aggregate principal amount outstanding at any one time that does
not exceed $50,000.
h. Security Interests existing on the date hereof and disclosed in
the Disclosure Schedule.
21. Borrower shall not make any Investments.
22. Borrower shall not merge or consolidate with or into another
Person, acquire an ownership interest in any other Person, acquire all
or substantially all of the assets of any other Person, or cause or
permit Xxxx Xxxxx, his spouse, and his estate to control, in the
aggregate, securities representing less than 60% of the voting power of
Borrower's outstanding securities having the power to vote.
23. Borrower shall not organize, create or acquire any Subsidiary.
24. Borrower shall not make any change in its capital structure which
has or could have a Material Adverse Effect; or create any new class of
stock or membership interest, issue any stock or membership interest,
or issue any other equity securities, or non-equity securities that are
convertible into equity securities.
25. Borrower shall not engage in any business other than substantially
as conducted on the date hereof or as contemplated herein.
26. Borrower shall not enter into or be a party to any transaction or
arrangement, including the purchase, sale or exchange of property of
any kind or the rendering of any service, with any Affiliate, or make
any loans or advances to any Affiliate. If there is no existing Default
or Event of Default, however, Borrower may engage in such transactions
in the ordinary course of business and pursuant to the reasonable
requirements of its business and on fair and reasonable terms
substantially as favorable to it as those which it could obtain in a
comparable arm's-length transaction with a non-Affiliate.
27. Borrower shall not enter into any agreement, that would, if fully
complied with by it, result in a Default or Event of Default either
immediately or in a reasonably foreseeable time.
28. Borrower shall not change its fiscal year.
29. Borrower shall not, directly or indirectly, declare or make, or
incur any liability to make, any Distribution without the prior written
consent of Lender. For purposes of this Section, a Distribution means
and includes (i) any cash dividend, (ii) any purchase or redemption of
any outstanding stock, (iii) any retirement or prepayment of
outstanding debt securities before their regularly scheduled maturity
dates, and (iv) any loan or advance to a shareholder other than loans
to employees in an aggregate amount not exceeding $25,000 outstanding
at any time.
30. Borrower shall not enter into any transaction which has or is
reasonably likely to have a Material Adverse Effect.
31. The ratio of Borrower's (i) EBITDA to (ii) Debt Service, calculated
at the end of each fiscal year of Borrower, shall not be less than 1.20
to 1.00.
32. Borrower shall not make Capital Expenditures in excess of $75,000
in the aggregate in any fiscal year.
33. Borrower shall not amend the Ground Leases.
34. Borrower shall at all times keep insured or cause to be kept
insured, in insurance companies having a rating of at least A by Best's
Rating Service, all property owned by it of a character usually insured
by others carrying on businesses similar to that of Borrower in such
manner and to such extent and covering such risks as such properties
are usually insured. Borrower shall at all times carry insurance, in
insurance companies having a rating of at least A by Best's Rating
Service, against liability on account of damage to persons or property
(including product liability insurance and insurance required under all
applicable workers' compensation Laws) and covering all other
liabilities common to Borrower's business, in such manner and to such
extent as such coverage is usually carried by others conducting
businesses similar to that of Borrower. All policies of liability
insurance maintained hereunder shall name Lender as an additional
insured. All policies of insurance maintained hereunder shall contain a
clause providing that such policies may not be canceled, reduced in
coverage or otherwise modified without 30 days prior written notice to
Lender. Borrower shall upon request of Lender at any time furnish to
Lender updated evidence of insurance (in the form required as a
condition to Lender's lending hereunder) for such insurance.
35. Borrower shall not sell, transfer, exchange, lease, or otherwise
dispose of any of its assets except obsolete or unusable equipment in
the ordinary course of business.
Events of Default
-----------------
The occurrence of any of the following shall constitute an Event of Default
under this Note and Credit Agreement (and for purposes of each of the Events of
Default listed below, the term Borrower is defined to include Borrower, any
Subsidiary of Borrower, or any Guarantor of the Loan Obligations, and an Event
of Default will occur if any of the listed Events of Default occur with respect
to Borrower, any Subsidiary of Borrower, or any Guarantor of the Loan
Obligation, to the same extent as if such Subsidiary or Guarantor were
Borrower):
1. Failure by Borrower to make any payment of principal or interest
under this Note and Credit Agreement, or with respect to any of the
Loan Obligations, when such payment is due.
2. Failure of Borrower to make any payment due on any Indebtedness or
other obligation of Borrower to any affiliate or subsidiary of Bank of
America Corporation which continues unwaived beyond any applicable
grace period specified in the documents evidencing such Indebtedness;
or failure of Borrower to make any payment aggregating $5,000 or more
due on Indebtedness of Borrower to any Person other than an affiliate
or subsidiary of Bank of America Corporation or to a trade creditor or
customer of Borrower, in either case which continues unwaived beyond
any applicable grace period specified in the documents evidencing such
Indebtedness.
3. Any obligation of Borrower for the payment of borrowed money in an
amount over $10,000 becomes or is declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment or
prepayment) prior to the original maturity thereof as a consequence of
a default with respect thereto by Borrower.
4. Any representation or warranty made by Borrower in this Note and
Credit Agreement or any statement or representation made in any
certificate, report, opinion or other document (including any Loan
Document) delivered to Lender by Borrower is discovered to have been
false in any material respect when made.
5. Failure of Borrower to comply with any term, condition, agreement,
or covenant applicable to Borrower herein or in the Loan Documents.
Notwithstanding the foregoing sentence, a failure to comply with
covenants 2, 6, 7, or 8 of this Note and Credit Agreement shall not
constitute an Event of Default if such failure is remedied or waived in
writing by Lender within 20 days after the initial occurrence of such
failure; provided, however, that no such grace period shall apply, and
an Event of Default shall exist promptly upon such failure to comply,
if such failure may not, in Lender's reasonable determination, be cured
by Borrower during such 20 day period.
6. An individual Guarantor of the Loan Obligations, if any, dies, or
any Guarantor of the Loan Obligations denies any further liability
under its guaranty, or any guaranty of the Loan Obligations becomes or
is asserted to be unenforceable or void, or there is a default under
any guaranty of the Loan Obligations.
7. The occurrence of a material adverse change in the financial
condition, operations, assets, or prospects of Borrower.
8. The occurrence of any default or event of default under any Material
Agreement to which Borrower is a party which continues unwaived beyond
any applicable grace period provided therein; provided, however, that
such default or event of default will not constitute an Event of
Default hereunder if Borrower is diligently contesting it in good faith
by appropriate proceedings, has established adequate reserves therefor
in conformity with GAAP on the books of Borrower, and no Security
Interest in the property of Borrower, other than a Permitted Security
Interest, results therefrom.
9. Borrower (i) fails to pay, or admits in writing its inability to
pay, its debts as they become due, or otherwise becomes insolvent
(however evidenced); (ii) makes an assignment for the benefit of
creditors; (iii) files a petition in bankruptcy, is adjudicated
insolvent or bankrupt, petitions or applies to any tribunal for any
receiver or any trustee of Borrower or any substantial part of its
property; (iv) commences any proceeding relating to Borrower under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such proceeding
which remains undismissed for a period of 45 days, or by any act
indicates its consent to, approval of, or acquiescence in any such
proceeding or the appointment of any receiver of or any trustee for it
or of any substantial part of its property, or allows any such
receivership or trusteeship to continue undischarged for a period of 45
days; or (vi) takes any action to authorize any of the foregoing.
10. Any one or more judgments or orders is entered against Borrower or
any attachment or other levy is made against the property of Borrower
with respect to a claim or claims involving in the aggregate
liabilities (not paid or fully covered by insurance, less the amount of
reasonable deductibles in effect on the advance date) in excess of
$150,000, is not satisfied within 30 days after becoming final and
non-appealable, or if timely appealed, within 30 days after such appeal
is filed if such judgment is not fully bonded and collection thereof
stayed pending the appeal.
11. Any termination by the PBGC of a Pension Benefit Plan of Borrower
or an ERISA Affiliate of Borrower or the appointment by the appropriate
United States District Court of a trustee to administer any Pension
Benefit Plan of Borrower or an ERISA Affiliate of Borrower or to
liquidate any Pension Benefit Plan of Borrower or an ERISA Affiliate of
Borrower; or any event which constitutes grounds either for the
termination of any Pension Benefit Plan of Borrower or an ERISA
Affiliate of Borrower by PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer or liquidate
any Pension Benefit Plan of Borrower or an ERISA Affiliate of Borrower
has occurred and is continuing for 30 days after Borrower has notice of
any such event; or any voluntary termination of any Pension Benefit
Plan of Borrower or an ERISA Affiliate of Borrower which is a defined
benefit pension plan as defined in Section 3(35) of ERISA while such
defined benefit pension plan has an accumulated funding deficiency,
unless Lender has been notified of such intent to voluntarily terminate
such plan and Lender has given its consent and agreed that such event
shall not constitute an Event of Default; or the plan administrator of
any Pension Benefit Plan of Borrower or an ERISA Affiliate of Borrower
applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(1) of the Code and Lender determines
that the substantial business hardship upon which the application for
such waiver is based could subject Borrower or any ERISA Affiliate of
Borrower to a liability in excess of $150,000.
12. Any substantial part of the property of Borrower is nationalized,
expropriated, seized or otherwise appropriated, or custody or control
of such property or of Borrower is assumed by any Governmental
Authority, unless the same is being contested in good faith by
appropriate proceedings diligently pursued and a stay of enforcement is
in effect.
13. Borrower files a certificate of dissolution under applicable state
law or is liquidated or dissolved or suspends or terminates the
operation of its business, or has commenced against it any action or
proceeding for its liquidation or dissolution or the winding up of its
business, or takes any action in furtherance thereof.
14. Any default by Borrower occurs under the Ground Leases which is not
cured within the applicable cure period therein, if any.
15. For any reason other than the failure of Lender to take any action
available to it to maintain perfection of the Security Interests
created in favor of Lender pursuant to the Loan Documents, any Loan
Document ceases to be in full force and effect or any Security Interest
with respect to any portion of the Collateral intended to be secured
thereby ceases to be, or is not, valid, perfected and prior to all
other Security Interests (other than the Permitted Security Interests)
or is terminated, revoked or declared void or invalid.
Any Event of Default under this Note and Credit Agreement will constitute an
event of default under any other agreement of Borrower with Lender and under any
evidence of Indebtedness of Borrower held by Lender, whether or not such is an
event of default specified therein.
Upon an Event of Default described in paragraph 9 above, or upon the sale,
assignment, transfer or conveyance of all or any part of the Collateral
comprised of real property or any interest therein without the prior written
consent of Lender, all outstanding principal and accrued interest under this
Note will become immediately due and payable without notice or demand by Lender,
all of the outstanding Loan Obligations shall automatically become immediately
due and payable. Upon any other Event of Default as described in this Note and
Credit Agreement, all outstanding principal and accrued interest under this Note
and Credit Agreement shall, at the option of Lender, become immediately due and
payable. Upon an Event of Default as described in this Note and Credit
Agreement, Lender may exercise all of its rights under the Loan Documents and at
law and equity, including its rights with respect to the Collateral.
Lender may apply and reverse and reapply, payments and proceeds of the
Collateral in such order and manner as Lender determines in its absolute
discretion. Borrower hereby irrevocably waive the right to direct the
application of payments and proceeds of the Collateral.
General
-------
All of the Loan Obligations are hereby cross-collateralized. Any property of
Borrower in which Lender has a Security Interest to secure the repayment of any
of the Loan Obligations is deemed to secure the repayment of each of the other
Loan Obligations, whether or not the Loan Documents giving rise to such Security
Interest so provides. At the request of Lender, Borrower agrees to execute and
deliver to Lender, or cause to be executed and delivered to Lender, such
documents and agreements (including without limitation amendments to existing
Loan Documents), and shall take or cause to be taken such actions as Lender
deems necessary to carry out the intent of this paragraph.
Demand for payment, presentment, protest, notice of protest and nonpayment,
notice of dishonor, and all other notices and demands under this Note and Credit
Agreement and any and all lack of diligence in the enforcement of this Note and
Credit Agreement are hereby waived by all who are or shall become parties to
this Note and Credit Agreement and the same hereby assent to each and every
extension or postponement of the time of payment, before or after maturity of
this Note and Credit Agreement, at or after demand, or other indulgence, and
hereby waive any and all notice thereof. Every such party by becoming a party to
this Note and Credit Agreement further waives any defenses which such party may
have based on suretyship or impairment of collateral with respect to this Note
and Credit Agreement.
No amendment to or waiver of any provision of this Note and Credit Agreement nor
consent to any departure by Borrower from the requirements imposed on Borrower
in this Note and Credit Agreement, shall be effective unless it is in writing
and signed by authorized officers of Borrower and Lender. No notice to or demand
on Borrower in any case shall entitle Borrower to any other or further notice or
demand in similar or other circumstances. No failure by Lender to exercise, and
no delay by Lender in exercising, any right, remedy, power or privilege under
this Note and Credit Agreement or law shall operate as a waiver thereof, nor
shall any single or partial exercise by Lender of any such right, remedy, power
or privilege preclude any other exercise thereof, or the exercise of any other
right, remedy, power or privilege. Every right granted to Lender in this Note
and Credit Agreement or in any of the other Loan Documents or allowed to it by
law shall be deemed cumulative and may be exercised concurrently or
consecutively at the option of Lender from time to time.
All notices, consents, requests and demands to or upon Borrower and Lender shall
be in writing and shall be deemed to have been given or made when delivered in
person to those persons listed on the signature page hereof, or two days after
being deposited in the United States mail, postage prepaid, registered or
certified (return receipt requested), or in the case of telegraphic notice or an
overnight courier service, one day after delivery to the telegraph company or
overnight courier service, or in the case of telex or telecopy notice, when sent
and verification is received, in each case addressed to the address of the
intended recipient listed below, or such other address as either party may
designate by notice to the other:
If to Lender:
Bank of America, N.A.
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxx Xxx
Fax No. (000) 000-0000
If to Borrower:
0000 Xxxxxxxx xx xxx Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxxxxx
Fax No. (000) 000-0000
This Note and Credit Agreement shall be binding upon Borrower and its successors
and assigns and shall inure to the benefit of Lender and its successors and
assigns, including all holders of this Note and Credit Agreement.
This Note and Credit Agreement and the rights and obligations of the parties
under this Note and Credit Agreement shall be governed by and construed and
interpreted in accordance with the internal Laws of the State of Missouri
applicable to contracts made and to be performed wholly within Missouri, without
regard to choice or conflict of laws provisions.
Lender may assign or sell participations in all or a portion of Lender's rights
under this Note and Credit Agreement to any other Person.
This Note and Credit Agreement is secured by, among other things, that certain
Future Advance and Future Obligation Leasehold Deed of Trust dated July 30,
1993, that certain Leasehold Deed of Trust, Assignment of Rents and Leases and
Security Agreement dated March 9, 1998, and that certain Security Agreement
dated July 30, 1993, as each of them may have been amended from time to time.
Definitions
-----------
As used in this Note and Credit Agreement, the following terms have the
following meanings (capitalized terms used and not defined in this Note and
Credit Agreement have the meanings given them in the Uniform Commercial Code as
adopted by the State of Missouri):
Affiliate -- with respect to any Person, (a) any other Person who is a
partner, director, officer, member, or stockholder of such Person; and
(b) any other Person which, directly or indirectly, is in control of,
is controlled by or is under common control with such Person, and any
partner, director, officer, member or stockholder of such other Person
described. For purposes of this Note and Credit Agreement, control of a
Person by another Person shall be deemed to exist if such other Person
has the power, directly or indirectly, either to (i) vote twenty
percent (20%) or more of the securities having the power to vote in an
election of directors of such Person, or (ii) direct the management of
such Person, whether by contract or otherwise and whether alone or in
combination with others.
Asbestos Material -- either asbestos or asbestos-containing materials.
Business Day -- a day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required to close under the
Laws of the United States or the State of Missouri.
Capital Expenditure -- an expenditure for an asset that must be
depreciated or amortized under GAAP, for goodwill, or for any asset
that under GAAP must be treated as a capital asset, including payments
under Capital Leases. An expenditure for purposes of this definition
includes any deferred or seller financed portion of the purchase price
of an asset and the original capitalized amount of a Capital Lease.
Capital Lease -- any lease that has been or should be capitalized under
GAAP.
Charter Documents -- the articles or certificate of incorporation and
bylaws of a corporation; the certificate of limited partnership and
partnership agreement of a limited partnership; the partnership
agreement of a general partnership; the articles of organization and
operating agreement of a limited liability company; or the indenture of
a trust.
COBRA -- the Consolidated Omnibus Budget Reconciliation Act.
Code -- the Internal Revenue Code of 1986, as amended, and the
regulations, rulings and proclamations promulgated and proposed
thereunder.
Collateral -- all of the Goods, Equipment, Accounts, Inventory,
Instruments, Documents, Chattel Paper, General Intangibles, and other
personal property and Fixtures of Borrower, and all real property of
Borrower, and all other property of Borrower, whether now owned or
hereafter acquired, in which Lender holds or will hold a Security
Interest to secure the payment or performance of any of the
Obligations, and all proceeds thereof.
Commonly Controlled Entity -- a Person which is under common control
with another Person within the meaning of Section 414(b) or (c) of the
Code.
Contract -- any contract, note, bond, indenture, deed, mortgage, deed
of trust, security agreement, pledge hypothecation agreement,
assignment, or other agreement or undertaking or any security.
Debt Service -- for any period of calculation, the sum of (i) interest
expense, and (ii) current maturities of principal of long term
Indebtedness, all as accrued in such period.
Default -- an event which, after giving effect to any requirement
herein for the giving of notice, for the lapse of time, or both, or for
the happening of any other condition, event or act, would constitute an
Event of Default.
Dollars and the sign $ -- lawful money of the United States.
EBITDA -- for any period of calculation, an amount equal to the sum of
(i) net income, (ii) federal, state and local income tax expense, (iii)
interest expense in such period, (iv) depreciation and amortization
expense, (v) losses on the sale or other disposition of assets, (vi)
extraordinary losses, and (vii) costs accrued during such period but
not paid in cash (but without duplication) minus (a) gains on the sale
or other disposition of assets, and (b) extraordinary gains, all as
accrued in such period.
Environmental Law -- the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act,
the Clean Water Act, the Clean Air Act, or any other Law pertaining to
environmental quality or remediation of Hazardous Material.
ERISA -- the Employee Retirement Income Security Act of 1974, as
amended, and the regulations, rulings and proclamations promulgated and
proposed thereunder.
ERISA Affiliate -- as to any Person, any trade or business
(irrespective of whether incorporated) which is a member of a group of
which such Person is a member and thereafter treated as a single
employer under ss.414(b), (c), (m) or (o) of the Code or applicable
Treasury Regulations.
Financial Statements -- the financial statements of Borrower that are
furnished to Lender as required herein.
GAAP -- those generally accepted accounting principles set forth in
Statements of the Financial Accounting Standards Board and in Opinions
of the Accounting Principles Board of the American Institute of
Certified Public Accountants or which have other substantial
authoritative support in the United States and are applicable in the
circumstances, as applied on a consistent basis.
Governmental Authority -- the federal government of the United States;
the government of any foreign country that is recognized by the United
States or is a member of the United Nations; any state of the United
States; any local government or municipality within the territory or
under the jurisdiction of any of the foregoing; any department, agency,
division, or instrumentality of any of the foregoing; and any court
whose orders or judgements are enforceable by or within the territory
of any of the foregoing.
Ground Leases - the Ground Lease Agreement dated July 27, 1993, the
Lease Agreement dated March 1, 1998, and the Lease Agreement dated
December 18, 1999, each between Treasure Lake R. V. Resort Camping
Club, Inc. and International Tourist Entertainment Corporation
(predecessor to Borrower) and/or Borrower.
Group -- as used in Regulation 13-D issued by the Securities and
Exchange Commission.
Guarantor -each Person who hereafter executes and delivers to Lender a
guaranty of part or all of the Loan Obligations.
Hazardous Material -- any hazardous, radioactive, toxic, solid or
special waste, material, substance or constituent thereof, or any other
such substance (as defined under any applicable Law), including
Asbestos Material. Hazardous Material does not include materials or
products containing hazardous constituents which are not considered to
be waste under the applicable Environmental Law or which are considered
to be waste but are transported, handled or disposed of in accordance
with the applicable Environmental Law, or Asbestos Material which is
not friable.
Indebtedness -- as to any Person at any particular date, any
contractual obligation enforceable against such Person (i) to repay
borrowed money; (ii) to pay the deferred purchase price of property or
services; (iii) to make payments or reimbursements with respect to bank
acceptances or to a factor; (iv) to make payments or reimbursements
with respect to letters of credit whether or not there have been
drawings thereunder; (v) with respect to which there is any Security
Interest in any property of such Person; (vi) to make any payment or
contribution to a Multi-Employer Plan; (vii) that is evidenced by a
note, bond, debenture or similar instrument; (viii) under any
conditional sale agreement or title retention agreement; or (ix) to pay
interest or fees with respect to any of the foregoing. Indebtedness
also includes any other Obligation that either (a) is non-contingent
and liquidated in amount or (b) should under GAAP be included in
liabilities and not just as a footnote on a balance sheet.
Indirect Obligation -- as to any Person, (a) any guaranty by such
Person of any Obligation of another Person; (b) any Security Interest
in any property of such Person that secures any Obligation of another
Person, (c) any enforceable contractual requirement that such Person
(i) purchase an Obligation of another Person or any property that is
security for such Obligation, (ii) advance or contribute funds to
another Person for the payment of an Obligation of such other Person or
to maintain the working capital, net worth or solvency of such other
Person as required in any documents evidencing an Obligation of such
other Person, (iii) purchase property, securities or services from
another Person for the purpose of assuring the beneficiary of any
Obligation of such other Person that such other Person has the ability
to timely pay or discharge such Obligation, (iv) grant a Security
Interest in any property of such Person to secure any Obligation of
another Person, or (v) otherwise assure or hold harmless the
beneficiary of any Obligation of another Person against loss in respect
thereof; (d) any Obligation arising from the endorsement by such Person
of an instrument; (e) any Obligation of such Person as a surety; and
(f) any other contractual requirement enforceable against such Person
that has the same substantive effect as any of the foregoing. The term
Indirect Obligation does not, however, include the endorsement by a
Person of instruments for deposit or collection in the ordinary course
of business or the liability of a general partner of a partnership for
Obligations of such partnership. The amount of any Indirect Obligation
of a Person shall be deemed to be the stated or determinable amount of
the Obligation in respect of which such Indirect Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good
faith.
Interest Hedge Obligation -- any obligations of Borrower to Lender or
any Affiliate or Subsidiary of Bank of America Corporation under an
agreement or agreements between Borrower and Lender or any Affiliate or
Subsidiary of Bank of America Corporation, whenever entered into, under
which the exposure of Borrower to fluctuations in interest rates is
effectively limited, whether in the form of one or more interest rate
cap, collar, or corridor agreements, interest rate swaps, or the like,
or options therefor.
Investment -- (a) a loan or advance of money or property to a Person,
(b) stock or other equity interest in a Person, (c) a debt instrument
issued by a Person, whether or not convertible to stock or other equity
interest in such Person, or (d) any other interest in or rights with
respect to a Person which include, in whole or in part, a right to
share, with or without conditions or restrictions, some or all of the
revenues or net income of such Person (other than rent charged to
tenants of Borrower which is based on a percentage of such tenant's
sales).
Law -- any statute, rule, regulation, order, judgment, award or decree
of any Governmental Authority.
Loan Documents -- this Note and Credit Agreement, the Amended and
Restated Revolving Note executed by Borrower of even date herewith and
payable to the order of Lender, any guaranty of the Loan Obligations,
any security agreement, deed of trust, mortgage, or assignment, or any
other document granting a Security Interest to Lender in any asset of
Borrower or any other Person to secure the Loan Obligations from time
to time, any reimbursement agreement between Borrower and Lender, and
all other agreements, certificates, documents, instruments and other
writings executed in connection herewith. Loan Obligations -- all of
Borrower's Indebtedness owing to Lender under the Loan Documents,
whether as principal, interest, fees or otherwise, all reimbursement
obligations of Borrower to Lender with respect to issued letters of
credit, all other obligations and liabilities of Borrower to Lender
under the Loan Documents, and all Interest Hedge Obligations (in each
case including all extensions, renewals, modifications, rearrangements,
restructures, replacements and refinancings of the foregoing, whether
or not the same involve modifications to interest rates or other
payment terms), whether now existing or hereafter created, absolute or
contingent, direct or indirect, joint or several, secured or unsecured,
due or not due, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, including but not limited to
the obligation of Borrower to repay future advances by Lender, whether
or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Lender in the Loan Documents.
Material Adverse Effect -- as to any Person and with respect to any
event or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, investigation or
proceeding), a material adverse effect on the business, operations,
revenues, financial condition, property, or business prospects of such
Person, or the ability of such Person to timely pay or perform such
Person's obligations generally, or in the case of Borrower,
specifically the ability of Borrower to pay or perform any of
obligations under this Note and Credit Agreement.
Material Agreement -- as to any Person, any Contract to which such
Person is a party or by which such Person is bound which, if violated
or breached, would have a Material Adverse Effect on such Person or
Borrower.
Material Law -- any separately enforceable provision of a Law whose
violation by a Person would have a Material Adverse Effect on such
Person.
Material License -- (i) as to any Person, any license, permit or
consent from a Governmental Authority or other Person and any
registration and filing with a Governmental Authority or other Person
which if not obtained, held or made would have a Material Adverse
Effect on Borrower, and (ii) as to any Person who is a party to this
Note and Credit Agreement or any of the other Loan Documents, any
license, permit or consent from a Governmental Authority or other
Person and any registration or filing with a Governmental Authority or
other Person that is necessary for the execution or performance by such
party, or the validity or enforceability against such party, of this
Note and Credit Agreement or any of the other Loan Documents.
Material Proceeding -- any litigation, investigation or other
proceeding by or before any Governmental Authority (i) which involves
any of the Loan Documents or any of the transactions contemplated
thereby, or involves Borrower as a party or any property of Borrower,
and would have a Material Adverse Effect on Borrower, (ii) in which
there has been issued an injunction, writ, temporary restraining order
or any other order of any nature which purports to restrain or enjoin
the making of any advance, the consummation of any other transaction
contemplated by the Loan Documents, or the enforceability of any
provision of any of the Loan Documents, (iii) which involves the actual
or alleged breach or violation by Borrower of, or default by Borrower
under, any Material Agreement, or (iv) which involves the actual or
alleged violation by Borrower of any Material Law.
Multi-employer Plan -- a Pension Benefit Plan which is a multi-employer
plan as defined in Section 4001(a)(3) of ERISA.
Obligation -- as to any Person, any Indebtedness of such Person, any
guaranty by such Person of any Indebtedness of another Person, and any
contractual requirement enforceable against such Person that does not
constitute Indebtedness of such Person or a guaranty by such Person but
which would involve the expenditure of money by such Person if complied
with or enforced.
PBGC -- the Pension Benefit Guaranty Corporation.
Pension Benefit Plan -- any pension or profit-sharing plan which is
covered by Title I of ERISA and all other benefit plans and in respect
of which a Person or a Commonly Controlled Entity of such Person as an
employer as defined in Section 3(5) of ERISA.
Permitted Indebtedness - defined in covenant 18.
Permitted Security Interest -- defined in covenant 20.
Person -- any individual, partnership, corporation, trust,
unincorporated association, joint venture, limited liability company,
limited liability partnership, Governmental Authority, or other
organization in any form that has the legal capacity to xxx or be sued.
If the context so implies or requires, the term Person includes
Borrower.
Prime Rate -- on any day, the rate of interest per annum then most
recently established by Lender as its Prime Rate. Such rate is a
general reference rate of interest, may not be related to any other
rate, and may not be the lowest or best rate actually charged by Lender
to any customer or a favored rate and may not correspond with future
increases or decreases in interest rates charged by other lenders or
market interest rates in general.
Security Interest -- as to any item of tangible or intangible property,
any interest therein or right with respect thereto that secures an
Obligation or Indirect Obligation, whether such interest or right is
created under a Contract, or by operation of law or statute (such as
but not limited to a statutory lien for work or materials), or as a
result of a judgment, or which arises under any form of preferential or
title retention agreement or arrangement (including a conditional sale
agreement or a lease) that has substantially the same economic effect
as any of the foregoing.
Subsidiary -- as to any Person, a corporation, limited liability
company, trust or partnership with respect to which more than 80% of
the outstanding shares of stock, membership interests, partnership
interests or trustee powers having ordinary voting power (other than
stock having such power only by reason of the happening of a
contingency) is at the time owned by such Person or by one or more
Subsidiaries of such Person.
Tax -- as to any Person, any tax, assessment, fee, or other charge
levied by a Governmental Authority on the income or property of such
Person, including any interest or penalties thereon, and which is
payable by such Person.
United States -- when used in a geographical sense, all the states of
the United States of America and the District of Columbia; and when
used in a legal jurisdictional sense, the government of the country
that is the United States of America.
Welfare Benefit Plan -- any plan described by Section 3(1) of ERISA.
Miscellaneous
-------------
Unless the context otherwise requires, accounting terms herein that are not
defined herein shall be calculated under GAAP. All Financial Statements and
financial measurements contemplated hereunder respecting Borrower shall be
presented and calculated for Borrower and all of its Subsidiaries, if any,
unless otherwise expressly provided herein, on a consolidated basis in
accordance with GAAP.
Unless the context clearly requires otherwise: (i) references to the plural
include the singular and vice versa; (ii) references to a party include such
party's successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Note and Credit Agreement; (iii) references to one
gender include all genders; (iv) including is not limiting; (v) or has the
inclusive meaning represented by the phrase and/or; (vi) the words hereof,
herein, hereby, hereunder and similar terms in this Note and Credit Agreement
refer to this Note and Credit Agreement as a whole and not to any particular
provision of this Note and Credit Agreement; (vii) reference to any instrument
(including this Note and Credit Agreement), document or agreement means such
agreement, document or instrument as amended, modified or restated and in effect
from time to time in accordance with the terms thereof and, if applicable, the
terms hereof; and (vii) general and specific references to any law means such
law as amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time. In the computation of periods of time from a specified
date to a later specified date, the word from shall mean from and including and
the words to and until shall each mean to but excluding. Periods of days
referred to in this Note and Credit Agreement shall be counted in calendar days
unless Business Days are expressly prescribed. References in this Note and
Credit Agreement to months and years means calendar months and calendar years
unless otherwise specified, and periods counted as a number of months or years
from a particular date shall be measured to the numerically corresponding date
of each following month or year, as applicable.
Any controversy or claim between Borrower and Lender, including those arising
out of or relating to this instrument or any other document evidencing or
securing the loan transaction herein involved, or any related agreements or
instruments, including any claim based on or arising from an alleged tort, shall
be determined by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and the Special Rules
set out below in this paragraph. In the event of any inconsistency, the Special
Rules shall control. Judgment upon any arbitration award may be entered in any
court having jurisdiction. Any party to such document may bring an action,
including a summary or expedited proceeding, to compel arbitration of any
controversy or claim to which this paragraph applies in any court having
jurisdiction over such action. The Special Rules are as follows: (1) there shall
be one arbitrator selected from a panel of disinterested arbitrators as provided
in the Commercial Arbitration Rules; (2) the arbitration shall be conducted in
Taney County, Missouri; (3) all arbitration hearings shall be commenced within
90 calendar days after the demand for arbitration; and (4) the arbitrator shall
only, upon a showing of cause, be permitted to extend the commencement of such
hearing for up to an additional 60 calendar days. Nothing in this paragraph
shall be deemed to (i) limit the applicability of any otherwise applicable
statutes of limitation or repose and any waivers contained in this Note; or (ii)
limit the right of Lender (A) to exercise self help remedies such as (but not
limited to) setoff, or (B) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief or the appointment of a
receiver. Neither the exercise of self help remedies nor the institution or
maintenance of an action for provisional or ancillary remedies shall constitute
a waiver of the right of any party, including the claimant in any such action,
to arbitrate the merits of the controversy or claim occasioning resort to such
remedies. No provision in this Note and Credit Agreement regarding submission to
jurisdiction and/or venue in any court is intended or shall be construed to be
in derogation of this paragraph for arbitration of any controversy or claim.
TO THE EXTENT THE PRECEDING PARAGRAPH DOES NOT APPLY FOR ANY REASON, AND SUBJECT
ONLY TO THE EXCEPTION IN THE NEXT SENTENCE, BORROWER AND LENDER HEREBY AGREE TO
THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURT OF THE WESTERN DISTRICT OF
MISSOURI AND THE STATE COURTS OF MISSOURI LOCATED IN TANEY COUNTY, AND WAIVE ANY
OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
INSTITUTED ON THIS NOTE AND CREDIT AGREEMENT, AND AGREE THAT ANY DISPUTE
CONCERNING THE RELATIONSHIP BETWEEN BORROWER AND LENDER OR THE CONDUCT OF EITHER
OF THEM IN CONNECTION WITH THIS NOTE AND CREDIT AGREEMENT SHALL BE HEARD ONLY IN
THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING: (1) LENDER SHALL HAVE
THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR ITS PROPERTY IN
ANY COURTS OF ANY OTHER JURISDICTION LENDER DEEMS NECESSARY OR APPROPRIATE IN
ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE LOAN OBLIGATIONS,
IF ANY, AND (2) BORROWER AND LENDER ACKNOWLEDGE THAT ANY APPEALS FROM THE COURTS
DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE THOSE JURISDICTIONS.
BORROWER AND LENDER HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT
AND CONSENT THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL
(RETURN RECEIPT REQUESTED) DIRECTED TO BORROWER OR LENDER (AS APPLICABLE) AT ITS
ADDRESS SET FORTH IN THIS NOTE AND CREDIT AGREEMENT, AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED
IN THE U.S. MAILS, CERTIFIED OR REGISTERED. NOTHING IN THIS SECTION SHALL AFFECT
THE RIGHT OF LENDER OR BORROWER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
BORROWER AND LENDER HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS NOTE AND CREDIT
AGREEMENT, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER AND LENDER OR EITHER OF THEM IN RESPECT OF THIS NOTE AND
CREDIT AGREEMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE. BORROWER AND LENDER AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT LENDER OR BORROWER (AS APPLICABLE) MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS NOTE AND CREDIT AGREEMENT WITH ANY COURT IN THE JURISDICTIONS
AGREED TO IN THIS NOTE AND CREDIT AGREEMENT AS WRITTEN EVIDENCE OF THE CONSENT
OF BORROWER AND LENDER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
This Note and Credit Agreement is an amendment and restatement, but not a
novation or refinancing, of the Note from Borrower to Lender dated as of July
30, 1993 in the original principal amount of $3,500,000 (the Original Note).
This Note does not evidence or effect a release or relinquishment of the
priority of the Security Interests of Lender in any of the Collateral (including
Collateral which secured the repayment of the Original Note.) This Note and
Credit Agreement also supersedes the representations and covenants contained in
that certain Third Modification Agreement executed by Borrower dated as of March
1, 1997 in favor of Lender.
The following notice is given pursuant to Section 432.045 of the Missouri
Revised Statutes; nothing contained in such notice shall be deemed to limit or
modify the terms of the Loan Documents: ORAL AGREEMENTS OR COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
The following notice is given pursuant to Section 427.120 of the Missouri
Revised Statutes; nothing contained in such notice shall be deemed to limit or
modify the terms of the Loan Documents: UNLESS YOU PROVIDE EVIDENCE OF THE
INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE
AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY
ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH
THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY
AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR
AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE
FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND
ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE
INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING
BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
[The next page is the signature page]
THIS CONTRACT CONTAINS A BINDING ARBITRATION CLAUSE WHICH MAY BE ENFORCED BY THE
PARTIES.
ITEC ATTRACTIONS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Acknowledged and Agreed:
BANK OF AMERICA, N.A.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ATTACHMENT A
Amortization Schedule
ATTACHMENT B
Disclosure Schedule
Trade Names Used:
IMAX Entertainment Complex
Ozark Discovery IMAX Theater
Remember When Theater
XxXxxxxxx'x Restaurant
Legacy and Legend Gift Shop
IMAX Food Court
Existing Indebtedness
Xxx Xxxxx $100,000
Great Southern Bank $100,000
GMAC (Tahoe Lease) $564.18 per month
GMAC (Van Lease) $474.05 per month
GMAC (Oldsmobile Aurora loan) $20,700
Caterpillar Financial Services $22,000
Xxxxxx Financial Services $3,300
Ozark Mountain Bank (sign lease) $13,000
ATM Machine $5,200
ATTACHMENT C
Form of Compliance Certificate
TO: BANK OF AMERICA, N.A.
This Compliance Certificate is furnished pursuant to that Amended and
Restated Term Note and Credit Agreement dated as of July ___, 2000 (as the same
may be amended, restated or otherwise modified from time to time, the Note and
Credit Agreement), from ITEC ATTRACTIONS, INC., as Borrower, to BANK OF AMERICA,
N.A., as Lender. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings defined in the Note and Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________ of Borrower.
2. I have reviewed the Note and Credit Agreement and I have made, or
have caused to be made under my supervision, a review of the
transactions and conditions of Borrower during the accounting period
covered by the attached Financial Statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which
constitutes a Default or Event of Default as of the date of this
Compliance Certificate; and to my knowledge all of the representations
and warranties of Borrower contained in the Note and Credit Agreement
are true and correct.
4. Schedule I attached hereto contains the Financial Statements for
Borrower for the fiscal year ended, which are complete and correct in
all material respects and have been prepared in accordance with GAAP
applied consistently throughout the period and with prior periods
(except as disclosed therein).
5. Borrower is in compliance with all of the covenants in the Note and
Credit Agreement, including the financial covenants therein, and
Schedule II attached hereto contains calculations based on Borrower's
financial statements and other financial records that show Borrower's
compliance with such financial covenants. The calculations and the data
upon which they are based are believed by me to be complete and
correct.
This Compliance Certificate, together with the Schedules hereto, is executed and
delivered this ______ day of -------------------.
ITEC ATTRACTIONS, INC.
by its -------------------------------
--------------------------------------
Signed:
-------------------------------
SCHEDULE I TO COMPLIANCE CERTIFICATE
------------------------------------
See current Financial Statements.
SCHEDULE II TO COMPLIANCE CERTIFICATE
-------------------------------------
Calculations of Compliance with Financial Covenants
for fiscal year ended ______________ (Date)
Covenant 31--Debt Service Coverage Ratio
1) EBITDA
a) net income $________________
b) plus federal, state and local income tax expense $________________
c) plus interest expense $________________
d) plus depreciation and amortization expense $________________
e) plus losses on the sale or other disposition of assets $________________
f) plus extraordinary losses $________________
g) plus costs accrued but not paid in cash $________________
h) minus gains on the sale or other disposition of assets $(_______________)
i) minus extraordinary gains $(_______________)
j) Total EBITDA $________________
2) Debt Service
a) interest expense $________________
b) current principal maturities of long term indebtedness $________________
c) Total Debt Service $________________
3) Debt Service Coverage Ratio (1(j) to 2(c)) _________________
4) Ratio required by Covenant 31 1.20 to 1.00
