HomeMy WebLinkAboutPR 15142: EDC/ORBITAL INSULATION CORPORATIONinteroffice
MEMORANDUM
To: Mayor, City Council, City Manager
From: Floyd Batiste, CEO
Date: May 29, 2009
Subject: P. R. No. 15142; Council Meeting of June 2, 2009
Attached is P. R. No. 15142 approving an Economic Incentive
Contract and Loan Agreement between Orbital Insulation Corp. and
City of Port Arthur Section 4A Economic Development Corporation.
FB:cv:ts
Attachment
z.pr15142_memo_edc_orbital
~:
GERMER°~GERTZL.L.P
A T T O R N E Y 5„~ A T L A W
May 18, 2009
Mr. Floyd Batiste
City of Port Arthur EDC
P.O. Box 3934
Port Arthur, Texas 77642
AUSTIN BEAUMONT HOUSTON
www.germer.com
GUY N. GOODSON
Partner
Direci Dial: (409) 654.6730
ggoodson@germer.com
Re: City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC") -
Economic Incentive Contract and Loan Agreement (the "Agreement") with Orbital
Insulation Corp. ("Orbital")
Deaz Mr. Batiste:
As I will be unable to attend the May 18, 2009, meeting of the Board of the PAEDC, I
submit this letter to outline the action to be taken under Non-Consent Agenda Item no. 2
(Consideration and action to approve Pazity Lien Agreement between PAEDC, Community Bank
of Texas, N.A. and Orbital Insulation Corp.). The proposed Agreement contemplates a grant in
consideration of job and payroll creation by Orbital and subject to perfecting a security interest in
collateral to securitize the Agreement.
The Board agreed to the terms, conditions and obligations under the Agreement if Orbital
granted a pazity lien in the. collateral provided to Community Bank of Texas, N.A. I have prepared
and have received preliminary approval from David May of Community Bank of Texas, N.A. for
the Parity Lien Agreement. The Parity Lien Agreement would place the indebtedness of
Community Bank of Texas, N.A. and that of PAEDC on a parity basis in shazing in collateral
proceeds if there was a default under either the Community Bank of Texas, N.A. debt or the
PAEDC debt.
The sharing ratio on any default and action against any collateral would be the outstanding
principal balance as of the date of default of the PAEDC debt and the Community Bank debt
aggregated as the denominator of a fraction, and each entity's outstanding debt as of the date of
default as the numerator of a fraction against which the total amount of a collateral recovery would
be calculated.
BEAUMONT, TX 77704 • PHONE 409.654.6700 • FAX :409.835.2115
Community Bank of Texas, N.A. has agreed to forego its future advances clause under the
debt and its cross collateralization clause, so the maximum debt for Community Bank of Texas;
N.A. securitized by the collateral would be $750;000, and the maximum debt of the PAEDC would
be $150,000. On that basis; if there was a default, and each loan was fully advanced, PAEDC
would receive approximately 17% of the collateral proceeds, and Community Bank of Texas
would receive 83% of the collateral proceeds.
We recommend the approval of this Parity Lien Agreement so that we can move forward
with the Agreement.
Yours very truly,
GERMER GERTZ, L.L.P.
By: ~r'°~
Guy N. Goodson
GNG/mgm
cc: Mr. Mazk Sokolow
City of Port Arthur -Legal Dept.
P.O. Box 1089
Port Arthur, Texas 77641-1089
P. R. No. 15142
05/28/09 cv:ts
RESOLIITION NO.
A RESOLIITION APPROVING AN ECONOMIC INCENTIVE
CONTRACT AND LOAN AGREEMENT BETWEEN ORBITAL
INSIILATION CORP AND CITY OF PORT ARTHIIR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
WHEREAS, the City Council deems it in the public interest
to authorize the City of Port Arthur Section 4A Economic
Development Corporation ("PAEDC") to enter into an Economic
Incentive Contract and Loan Agreement with Orbital Insulation
Corp. (the "Agreement"), in substantially the same form as
attached hereto as Exhibit "A"; and
WHEREAS, the Board of Directors of the PAEDC agreed to
enter into an Agreement with Orbital Insulation Corp. in the
amount of $150,000, with a Parity Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF THE
CITY OF PORT ARTHIIR:
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That the PAEDC is herein authorized to enter
into an Economic Incentive Contract and Loan Agreement with
Orbital Insulation Corp., and the President and Secretary of the
PAEDC are authorized to sign the Agreement, in substantially the
same form as attached hereto as Exhibit "A".
Section 3. That a copy of this Resolution shall be spread
z.pr15192_edc_orbi tal
upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of
A.D., 2009, at a Meeting of the City Council of the City of Port
Arthur, Texas, by the following vote: AYES:
Mayor
Councilmembers
NOES:
MAYOR
DELORIS "BOBBIE" PRINCE
ATTEST:
TERRI HANKS, CITY SECRETARY
APPROVED:
FLOYD BATISTE, PAEDC CEO
APPROVED AS TO FORM:
MARK T. SOKOLOW, CITY ATTORNEY
APPROVED AS TO THE AVAILABILITY OF FUNDS
~>`.. C.IJ~K~`-fix, i
DIRECTOR OF FINANCE
z.pr15142_edc_orbital
EXHIBIT "A" TO THE RESOLUTION
z.pr15142_edc_orbital
ECONOMIC INCENTIVE CONTRACT
& LOAN AGREEMENT BETWEEN
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
ORBITAL INSULATION CORP.
Eaeeutiv~!~'
Orbital Insulation Corp., a Texas corporation with its principal offices in Port Arthur, Texas ("Orbital"} plans
to expand its Port Arthur facility io provide warehousing for industrial projects, industrial insulation, fabrication of
fittings of insulation and fabrication of remove blankets. Orbital has spent $350,000 initially on this expansion, and
the City of Port Arthur Section 4A Economic Development Corporation ("PAEDC") will provide Orbital with a ONE
IIUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) conditional grant for renovation and
improvements (the "Improvements") to the property and building generally described as 817 Houston Avenue, Port
Arthur, Texas and more fully described and referenced in Exhibit "A" to the Deed of Trust a ocb talaslansh o desC"
(the "Building") to this Economic Incentive Contract and Loan Agreement (the "Agreement"). P ~
and construct the Improvements to the Building in order to expand operation on Houston Avenue by June 30, 2009.
In return, Orbital promises to reach u payroll from July 1 through December 31, 2009 of $288,112 and
thereafter sustain an annualized payroll through June 30, 2012 of $576,225, as measured by the Internal Revenue
Service (IRS) W-2 and W-3 forms. In addition, Orbital promises that at least fifty (50%) percent of its employees will
be Port Arthur residents. Finally, Orbital promises to pay all of PAEDC's attorney fees and expenses incurred for any
modification of or amendment to this Agreement, including any legal documents support this Agreement.
If Orbital breaches this Agreement, then the PAEDC grant, minus any credits earned, will automatically
convert to a loan by the PAEDC to Orbital, as liquidated damages and in lieu of any other damages (the "Loan"}. The
Loan will have a three year term, with monthly payments beginning on the date of Orbital's breach, and an interest rate
often (10%) percent. Orbital will execute a Commercial Security Agreement as to the Equipment and a Deed of Trust
on the Building to secure the Loan in the event of a default by Orbital. Additionally, as provided in the Economic
Incentive Contract and Loan Agreement, personal guarantees shall be provided by principals of Orbital and their
wives. PAEDC may place Orbital in default and foreclose on the Building if Orbital fails to perform its obligations
under the Loan.
Orbital will earn credits to reduce the duration of this Agreement or to reduce liquidated damages in the event
of a breach. Starting on the effective date of the Agreement, Orbital will receive $1.00 in credit for each $6.00 in
approved payroll for PoR Arthur residents only.
To keep the PAEDC informed on its progress, Orbital agrees to send PAEDC status reports on its equipment
acquisitions, building improvements and its annualized payroll, quarterly for the first year and twice per year thereafter
for the life of this Agreement.
If Orbital fails to timely submit a status report, then PAEDC shalt place Orbital on notice of its default, and
Orbital will forfeit its credits accruing during any reporting period for which it did not issue a status report if it fails to
provide the status report within fifteen (15) days after receipt of the notice of default issued by PAEDC.
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
ORBITAL INSULATION CORP.
INTRODUCTION ...................................................»......................................................................_.................1
AGREEMENT DATES ..................................».................................................................................................1
PARTIES .................»..........................................................................................................................................1
PROMISED PERFORMANCE ............_ .................................................................................................. 2
(A) PERFORMANCE BY PAEDC ........................................................................................................... 2
(A) PERFORMANCE HY ORBITAL ...................................................................................................... 2
(C) ORBITAL INSULATION CREDITS-SUBSTITUTEPERFORMANCE ..................................................3
ORBTTAL INSULATION'S PERFORMANCE MILESTONE SCHEDULE ...........................................4
PAEDC'S CONDTTIONAL OBLIGATIONS AND LIMITED LIABIIII'Y .............................................5
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY ORBITAL INSUI,ATION...........5
RECORDS /INSPECTION ! PAEDC AUDIT ....................»...........»........................».................»...............5
HOLD HARMLESS ...........................................................................................................................................6
SUBCONTRACTS .............................................................................................................................................7
CONFLICT OF INTEREST /DISCLOSURE OBLIGATION ...................................................................7
NONDISCRIlVIINATION /EMPLOYMENT /REPORTING .............................................._....................7
LEGAL AUTHORITY ......................................................................................................................................8
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST ORBTTAL INSULATION ................8
CHANGES AND AMENDMENTS .................................................................................................................8
DEFAULT /TERMINATION ..........................................................................................................................9
ORBITAL INSULATION AUDTTS .................................................................................................................9
SUPPLEMENTAL COVENANT OF ORBITAL ..........................................................................................9
ENVIRONMENTAL CLEARANCE REQUIREIVIEN'TS .........................................»...............................10
ORAL AND WRITTEN AGREEMENTS /PRIOR AGREEMENTS ......................................................11
VENUE ........» ....................................................................................................................................................11
ADDRESS OF NOTICE AND COMMUNICATIONS .....................................................................»........11
CAPTIONS ..............................................._......................................................_..............................................11
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS .........................................................11
CONDITIONS PRECEDENT.......» ...............................................................................................................12
ATTORNEY APPROYALS ...........................................................................................................................12
AGREEMENT EXECUTION .........................._....................................................................»......................13
EXHIBITS:
Exhibit "A"
Ezhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
Exhibit "G"
Conditional Commercial Promissory Note
Personal Guaranties
Deed of Trust
UCC-1 Fiaanciag Statement
Parity Liea Agreement
CertilicatioB Regarding Lobbying
Compliance Statement
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
ORBITAL INSULATION CORP.
INTRODUCTION
Orbital Insulation Corp. ("Orbital") is a Texas corporation with its principal offices in Port Arthur,
Texas and plans to expand its Port Arthur facilities to provide warehousing for industrial projects, industrial
insulation, and fabrication of fittings for insulation and fabrication of remove blankets. Orbital has initiated
the expansion of its operations on Houston Avenue in Port Arthur, Texas due to current market demand for
its services in the geographic area extending from Lake Charles, Louisiana and North Louisiana to Houston,
Texas. The City of Por[ Arthur Section 4A Economic Development Corporation ("PAEDC") will assist
Orbital in this business endeavor by providing conditional grant funds in exchange for the promise of jobs
and a payroll of $288,112 for the period beginning July 1, 2009 and ending December 31, 2009 and
thereafter sustaining a annualized payroll through June 30, 2012 of $576,225.
AGREEMENT DATES
AGREEMENT START DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered into with an
effective date of June, 2009, but in no case later than June 30, 2009, by and between PAEDC and
Orbital.
AGREEMENT END DATE
2. This Agreement expires the earlier of February 28, 2013, or 30 days after Orbital either performs
fully or breaches the Agreement, subject to earlier termination or extension, voluntary or involuntary, as
provided herein. The period from the effective date of this Agreement through and including the expiration
date of this Agreement as provided in the previous sentence hereof, is sometimes referred to in this
Agreement as the "Term" of this Agreement.
PARTIES
3. PAEDC located at 4173-39'" Street, Port Arthur, Texas, 77642, is a Texas non-profit economic
development corporation authorized to do business in the State of Texas under Section 4A, Article 5190.6
V.T.C.A. (the Development Corporation Act of 1979) and duly authorized by Resolution of the City Council
of the City of Port Arthur to enter into this Agreement. So authorized and as provided by the PAEDC
bylaws, [he designated officers of the PAEDC Boazd have the authority to execute this Agreement.
4. Orbital is a Texas corporation organized and in existence since August 8, 2006. The registered
agent in Texas for Orbital is James E. Wimberley at 3120 Central Mall Drive, Port Arthur, Texas 77642.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
i. PAEDC shall conditionally grant Orbital up to $150,000, subject to the conditions and
limitaflons herein, which Orbital is not required to repay unless Orbital breaches this
Agreement and fails to timely cure its default after notice. If Orbital breaches this Incentive
Agreement and fails to timely cure it default after notice, then the Grant shall convert to a
loan made by the PAEDC to Orbital under the terms provided in the Conditional
Commercial Promissory Note as provided in Exhibit "A".
ii. PAEDC will provide said grant by either paying vendor invoices or reimbursing Orbital for
payment of vendor invoices for approved acquisition of Equipment and the Improvements to
the Building. PAEDC has agreed to pay its incentive in three advances of approximately
$50,000 each for work completed during the periods June, 2009 through completion of
construction of the Improvements. PAEDC will use its best efforts to pay invoices or
reimburse Orbital within forty-five (45) days after receipt of a payment request. These
reimbursements up to the aggregate amount of $150,000 aze PAEDC's only obligations
under this Agreement.
iii. The principals of Orbital, Eduardo Gracian and Bruno Femandez and their spouse, further
agree to execute personal guaranties as to the financial commitments undertaken by Orbital
through the PAEDC in accordance with the personal guaranties attached hereto as Exhibit
µOtf
iv. Orbital agrees that the Deed of Trust provided in Exhibit "C" and the UCC-1 Financing
Statement described in Exhibit "D" originally executed by Orbital to and for the benefit of
Community Bank of Texas, N.A. (the "Bank") is in full force and effect and constitutes a
first priority lien, on the Building and its improvements and the property indicated in the
Addendum to the UCC-I Financing Statement.
v. Orbital agrees that it is subject to terms, conditions and obligations set forth in that certain
Parity Lien Agreement executed by and among Orbital, the Bank and PAEDC.
(b) PERFORMANCE BY ORBITAL
(I} Orbital shall use the $150,000 grant monies exclusively toward the Improvements to the
Building which are required far Orbital's planned business expansion.
(2) By December 31, 2009 Orbital shall increase its annual payroll to $576,225. Employment
and payroll will be monitored with Orbital status reports to PAEDC and Orbital's filed
Internal Revenue Service ("IRS") Fortes W-2 and W-3.
(3) Orbital covenants that at least fifty percent (50%) of its employees will be Port Arthur
residents.
(4) Contemporaneously with the PAEDC's grant to Orbital its principals, Eduardo Gracian and
Bruno Femandez and their spouse, will execute personal guaranties.
q°02761
(5) Contemporaneously with PAEDC's grant to Orbital, Orbital will execute a Parity Lien
Agreement, and shall perform all Grantor obligations, including the obligations added to
protect the PAEDC:
a) Immediately report to PAEDC in writing any tax, judgment, materialman's or
mechanic's lien on the Building; and
b) Tn the event the PAEDC herein deems itself reasonable insecure in its ability to realize
upon its lien in the Building, upon notice thereof to Orbital, provide the PAEDC with
such additional collateral as tnay reasonably secure the PAEDC's position.
(6) Orbital shall not, without the prior written consent of PAEDC:
a) Further encutnber the Building; or
b) Allow any change in ownership of Orbital either by the sale of any capital stock or
interest in Orbital or a sale of the operating assets of Orbital.
(7) Orbital shall use the Grant monies provided by the PAEDC exclusively for the
Improvements that are not materially different` from those identified by Orbital to PAEDC.
(8) On demand by PAEDC and in response to Orbital's failure to achieve a performance
milestone, Orbital shall provide PAEDC with reasonable assurances, proposed by Orbital
and reasonably acceptable to PAEDC, that It has both the intention and the capabilities tc
perform fully its contractual obligations.
(C) ORBITAL CREDITS-SUBSTITUTE PERFORMANCE
Orbital may earn credits according to the following terms, to either reduce the duration of this
Agreement or reduce [he amount of liquidated damages in the event Orbital breaches this
Agreement.
(1) Starting on the effective date of [he Agreement and for as long as Orbital performs as
specified in 5(bxl), Orbital will receive a $1.00 credit for each $6.00 of approved payroll
paid to residents of Port Arthur. Payroll to non-residents cannot be credited.
(2) Total credit cannot exceed $150,000.
(3) Orbital will forfeit any credits it earned during a period for which a report is scheduled but
Orbital fails to submit as provided in this Agreement.
(4) Once Orbital has earned credits equal to $150,000, this Agreement and its Tenn shall
terminate pursuant to Section 2 hereinabove.
(5) If Orbital does not earn credits equal to ONE HUNDRED FIFTY THOUSAND ARID
NO/100 DOLLARS ($150,000.00) during the term of and in accordance with the terms and
conditions of this Agreement, the Note (Exhibit "A"}, personal guaranties (Exhibit "B"),
Deed of Trust (Exhibit "C"), the UCC-1 Financing Statement ("Exhibit "D") and the
Parity Lien Agreement (Exhibit "E"} shall remain in effect until the dote is paid in fiill.
' "Materially different" is defined as a change in the type or asset that changes the overall business plan in Dlace at the time that This contract was
executed.
x602]61
ORBITAL'S PERFORMANCE MIIESTONE SCHEDULE
6. Although failure to achieve a performance milestone is not a breach of contract, a failure is
grounds for PAEDC to withhold further payments or reimbursements and/or demand reasonable assurances2
from Orbital that it can and will fully perform its contractual obligations. Failure to provide such reasonable
assurances following demand of PAEDC is a breach of contract.
Orbital's performance milestones are contained in the following table.
EXAMPLE OF ORBITAL'S PERFORMANCE MILESTONE SCHEDULE
Mile tone
(a) June 15, 2009 Start construction on Building at 817 Houston Avenue.
(b) Juiy 15, 2009 Issue a status report on building construction to PAEDC's Chief Executive Officer
date of this Agreement to July 15, 2009
ti
ff
"
ve
ec
) for the period from the e
("CEO
(c) Oct. 30, 2009 Issue a status report on 3'u quarter 2009 earnings achieving performance of monthly
payroll of 848, 019from the e,~`ective date of this Agreement.
(d) January 31, 2010 Issue a status report on building construction to PAEDC's Chief Executive Officer
("CEO") for the period from June 16, 2009 to December 31, 2009
(e) Feb. 28, 2010 Achieve performance of annualized payroll of $576,225 for year ending December
31, 2009
(f) July 31, 2010 Issue a status report (refer to footnote ~) to PAEDC's Chief Executive Officer
("CEO") for the period from Jan 1, 2010 to June 3, 2010
(g) Feb. 28, 2011 Achieve performance of annualized payroll of $576,225 for year ending December
31, 2010
(h) July 31, 20] 1 Issue a status report (refer to footnote 2) to PAEDC's Chief Executive Officer
("CEO") for the period from January 1, 2011 to June 30, 2011.
(i) Feb 28 2012 Issue a status report (refer to footnote ') to PAEDC's Chief Executive Officer
("CEO") for the period from July 1, 201 l to December 31, 2011
(j) Feb 28, 2012 Achieve performance of annualized payroll of $576225 for yeaz ending December
31, 2011
(k) 7uly 31, 2012 Issue a status report (refer to footnote ') to PAEDC's Chief Executive Officer
("CEO") for the period from January 1, 2012 to June 30, 2012.
(I) 2013
Feb
28 Issue a status report (refer to footnote =) to PAEDC'S Chief Executive Officer
.
, ("CEO") for the period from July 1, 2012 to December 31, 2012
(m) Feb. 28, 2013 Achieve performance of annualized payroll of $576,225 for year ending December
31, 2012
(n)
(o}
' Ezemples of reasonable assurances are espies of IRS W1s end Was wnarming payroll Port Mhur Residents hired.
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PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC obligations herein are
contingent upon the actual receipt of adequate sales tax revenue funds to meet the PAEDC's obligations
under this Agreement. If adequate funds are not available to make payments under this Agreement, the
PAEDC shall notify Orbital in writing within a reasonable time after such fact is reasonably determined by
the PAEDC Board of Directors. The PAEDC, at its sole option, may then terminate this Agreement without
further liability. Tn the event of such termination by the PAEDC, the PAEDC may, at its sole option,
immediately cease all further funding, if any, required by this Agreement and the PAEDC shall not be liable
to Orbital or to any third parties for failure to make payments to Orbital under the terms and conditions of
this Agreement.
9. The PAEDC shall not be liable, in Agreement or otherwise, to Orbital, or to any person or entity
claiming by or through Orbital, for any expense, expenditure or cost incurred by or on behalf of Orbital
related to the project made the basis of this Agreement. The PAEDC's sole liability/obligations, if any, shall
be to Orbital and shall be limited to the conditional funding obligations detailed in this Agreement.
10. Orbital shall not use the funds herein for any purpose(s) other than that specifically disclosed
herein and as further disclosed within that certain application made by or on behalf of Orbital, which
application is incorporated herein for al] purposes.
11. Funds granted by the PAEDC hereunder shall not be utilized by Orbital for repayment of costs,
expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY ORBITAL
12. In the event Orbital fails to perform its obligations under this Agreement, following notice
thereof from PAEDC and thirty-day (30-day) opportunity to cure the same, the PAEDC grant, minus any
credits earned, will automatically convert to a loan (liquidated damages), effective on the day of breach, as
agreed by Orbital in the executed Commercial Promissory Note contained in Exhibit "A". Fallowing such
conversion to a loan as aforesaid, the PAEDC, at its sole option, may terminate its remaining funding
obligations, if any, detailed in Section 5 herein. Further, the PAEDC shall be entitled to recover its
reasonable and necessary attorney's fees and court costs incurred in collection of said obligation and such
remedies as are provided at law or in equity.
13. It is expressly understood and agreed by the parties that any right or remedy shall not preclude
the exercise of any other right or remedy under this Agreement or under any provision of taw, nor shall any
action taken in the exercise of any right or remedy be deemed a waiver of any other rights or remedies.
Failure to exercise any right or remedy hereunder shall not constitute a waiver of the right to exercise that or
any other right or remedy at any time.
RECORDS !INSPECTION /PAEDC AUDIT
14. Orbital must establish and maintain sufficient records, as reasonably determined by the PAEDC,
to account for the expenditure and utilization of funds received by Orbital from PAEDC under the terms and
conditions of this Agreement.
l5. Orbital shall maintain records of the receipt and disposition of all funds provided hereunder as
necessary [o allow the PAEDC to audit and verify proper utilization of said funds in compliance with this
g60t761
Agreement and the representations and warranties contained herein and in Orbital's application. Orbital shall
provide reports of utilization of said funds, as reasonably requested by the PAEDC, and upon final
termination of this Agreement.
16. Upon ten (10) day advance notice, Orbital shall give the PAEDC, or any of its duly authorized
representatives, access to and right to examine all books, accounts, records, reports, files and other papers,
things or property belonging to or in use by Orbital. Such rights to access shall continue as long as the
records are maintained by Orbital. Orbital agrees to maintain such records in an accessible location. All
information obtained by the PAEDC, or its duly authorized representatives, shall be regarded as the
confidential business information of Orbital and the PAEDC shall take reasonable measures to protect such
information from disclosure to third parties; however, PAEDC is subject to the requirements of the Texas
Open Meetings Act and Open Records Act (Tex. Gov. Code, 551 & 552). Orbital agrees that disclosures to
the public required by the Texas Open Meetings Act, Texas Open Records Act, or any other legal
requirement will not expose PAEDC (or any party acting by, through or under PAEDC) to any claim,
liability or action by Orbital (or any party working by, through or under OrbitaQ.
17. All records pertinent to this Agreement shall be retained by Orbital at least three years following
the date of termination of this Agreement, whether said termination is a result of default or whether said
termination is a result of final submission of a close out report by Orbital detailing Orbitai's compliance with
its obligations provided herein. Further, in the event any litigation, claim or audit arising out of or related to
this Agreement is instituted before the expiration of the three (3) yeaz period and extends beyond the three
year period, the records will be maintained until all litigation, claims or audit findings involving this
Ageement and the records made the basis of same have been resolved. Further, records relating to real
property acquisition, including any long-term lease, shalt be retained for a period equal to the useful life of
any asset purchased with PAEDC funds.
I8. Orbital shall provide PAEDC with all reports necessary for PAEDC compliance with Article
5190.6 V.T.CA.
l9. It is expressly understood and agreed by the parties hereto that if Orbital fails to submit to
PAEDC in a timely and satisfactory manner any report required by this Agreement, PAEDC may, at its sole
discretion, withhold further payments to Orbital and/or demand assurances that Orbital can and will fully
perform its contractual obligations. If Orbital fails to provide adequate assurances then Orbital is in breach
and any monies advanced by PAEDC automatically became a loan. If PAEDC withholds such payments, it
shall notify Orbital in writing of its decisicn and the reasons therefore. Payments withheld pursuant to this
paragraph may be held by PAEDC until such time as the delinquent obligations for which funds are withheld
are fulfilled by Orbital.
20. The PAEDC reserves the right, from time to time, to carry out field inspections/audits to ensure
compliance with the requirements of this Agreement. ARer completion of any such audit, the PAEDC may
provide Orbital with a written report of the audit findings. If the audit report details deficiencies in Orbital's
performance under the terms and conditions of this Agreement, the PAEDC may establish requirements for
the timely correction of any such deficiencies by Orbital.
HOLD HARMLESS
21. Orbital agrees to hold harmless the PAEDC and the City of Port Arthur from any and all claims,
demands, and causes of action of any kind or character which may be asserted by any third party occurring,
arising out of or in any way related to this Agreement, the project made the basis of this Agreement, and the
utilization of grant funds provided by this Agreement, provided that such claim, demand or cause of action
does not arise from any fraud or misconduct on the part of the PAEDC or the City of PoR Arthur, or any
agent, employee or representative of either.
#601767
SiBCONTRACTS
22. Orbital may not subcontract for performance credits described in this Agreement without
obtaining PAEDC's written approval, which may be withheld for any reason. Orbital shall only subcontract
for performance credits described in this Agreement after Orbital has submitted a Subcontractor Eligibility
Request, as specified by PAEDC, for each proposed subcontract, and Orbital has obtained PAEDC's prior
written approval. Orbital, in subcontracting for any performances described in this Agreement, expressly
understands that in entering into such subcontracts, PAEDC is in no way liable to Orbital's subcontractor(s).
23. >n no event shall PAEDC's prior written approval of a subcontractor's eligibility, be construed as
relieving Orbital of the responsibility for ensuring that the performances rendered under all subcontracts are
rendered so as to comply with all terms of this Agreement, as if such performances rendered were rendered
by Orbital. PAEDC's approval does not constitute adoption, ratification, or acceptance of Orbital's or
subcontractor's performance hereunder. PAEDC maintains the right to insist upon Orbital's full compliance
with the terms of this Agreement, and by the act of subcontractor approval, PAEDC does not waive any right
of action which may exist or which may subsequently accrue to PAEDC under this Agreement.
24. Orbital, as well as all of its approved subwntractors, shall comply with all applicable federal,
state, and local laws, regulations, and ordinances for making procurement under this Agreement.
CONFLICT OF INTEREST /DISCLOSURE OBLIGATION
25. No employee, agent, officer or elected or appointed official of the City of Port Arthur or the
PAEDC who has participated in a decision making process related to this Agreement (without recusing
him herself and executing a conflict affidavit) may obtain a personal or financial interest or benefit from an
PAEDC assisted activity, or have an interest in any contract, subcontract, or agreement (or proceeds thereof)
with respect to an PAEDC assisted activity, during their tenure or for one (1) year thereafter. Insofar as
relates to the conduct hereunder of Orbital, its agents, employees or representatives, Orbital shall ensure
compliance with applicable provisions under Chapter 504, Local Government Code ("Development
Corporation Act of 1979") and Chapter 171, Local Government Code.
26. In conjunction with execution of this Agreement, Orbital has fully disclosed [o PAEDC all
known and potential owners of interests in Orbital (whether stockholder, manager, member or otherwise). in
the event of any change in ownership or control of Orbital of five (5 %} percent or greater, Orbital shall
notify PAEDC in writing. Further, Orbital shall be obligated to notify in writing the PAEDC in the event
any time prior to, during or one (1) year after the term of this Agreement, any City or PAEDC employee or
representative or any third patty with a conflict of interest obtains or proposes to obtain a financial benefit,
direct or indirect, from Orbital. Failure to provide said notice immediately or no later than five (5) business
days after receipt of information shall constitute a default herein.
NONDISCRIMINATION /EMPLOYMENT !REPORTING
27. Orbital shall ensure that no person shall on the grounds of race, color, religion, sex, handicap, or
national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity funded in whole or in part witfi funds provided under this Agreement.
Additionally, funds shall be used in accordance with the following requirements:
(a) To the greatest extent feasible, opportunities for training and employment arising in connection
with the planning and carrying out of any project assisted with PAEDC funds provided under
this Agreement be given to Port Arthur, Texas residents; and
tl602761
(b) To the greatest extent feasible, Agreements for work to be performed in connection with any
such project be awarded to Port Arthur residents and businesses, including, but not limited to,
individuals or firms doing business in the field of planning, consulting, design, architecture,
building construction, rehabilitation, maintenance, or repair, which are located in or owned in
substantial part by persons residing in the City of Port Arthur, Texas;
(c) If Orbital advertises for employment then it wilt advertise in the Port Arthur News; however,
PAEDC has no intent to restrain advertising in additional publications or media.
LEGAL AUTHORITY
28. Orbital assures and guarantees that it possesses legal endlor corporate authority to enter into this
Agreement, receive funds authorized by this Agreement, and to perform the services Orbital has obligated to
perform hereunder and has provided, and will in the future provide, as requested by the PAEDC, such
corporate resolutions necessary to evidence this authority.
29. The person or persons signing and executing this Agreement on behalf of Orbital, or
representing themselves assigning and executing this Agreement on behalf of Orbital, do hereby warrant and
guarantee that he, she, or they have been duly authorized by Orbital to execute this Agreement on behalf of
Orbital and to validly and legally bind Orbital to all terms, performances, and provisions herein set forth.
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST ORBITAL
30. Orbital shall give PAEDC immediate notice in writing of 1) any legal or regulatory action,
including any proceeding before an administrative agency filed against Orbital, directly or indirectly; and 2)
any material claim against Orbital, which may impact continued operations. For purposes herein, "material"
claims shall mean claims in excess of $5,000. Except as otherwise directed by PAEDC, Orbital shall famish
immediately to PAEDC copies of all pertinent documentation of any kind received by Orbital with respect to
such action or claim.
CHANGES AND AMENDMENTS
31. Except as specifically provided otherwise in this Agreement, any alterations, additions, or
deletions to the terms of this Agreement shall be by amendment in writing and executed by all parties to this
Agreement. Such amendments must be approved by the PAEDC Board of Directors and, in many cases, by
the City of Port Arthur, City Council.
32. It is understood and agreed by the parties hereto that performances under this Agreement must
be rendered in accordance with the Development Corporation Act of 1979 (the "Act") as codified in Chapter
504, Local Government Code, the regulations promulgated under the Act, the assurances and certifications
made to PAEDC by Orbital, and the assurances and certifications made to the City of Port Arthur with regard
to the operation of the PAEDC's Projects. Based on these considerations, and in order to ensure the legal
and effective performance of this Agreement by all parties, it is agreed by the parties hereto that the
performances under this Agreement are by the provisions of the PAEDC Program and any amendments
thereto and may further be amended in the following manner: PAEDC may from time to time during the
period of performance of this Agreement issue policy directives which serve to interpret, or clarify
performance requirements under this Agreement. Such policy directives shall be promulgated by the
PAEDC Board of Directors in the form of PAEDC issuances, shall be approved by the City Council and shall
have the effect of qualifying the terms of this Agreement and shall be binding upon Orbital, as if written
herein.
p601961
33. Any alterations, additions, or deletions to the terms of this Ageement which are required by
changes m Federal, state law or local law are automatically incorporated into this Ageement without written
amendment hereto, and shell become effective on the date designated by such law or regulation.
DEFAULTITERNIINAT[ON
34. In the event of default of any of the obligations of Orbital detailed herein or in the event of
breach of any of the representations of or warranties of Orbital either detailed herein or in Orbital's
application to the PAEDC, and following any notice and opportunity to cure provided for in this Ageement,
the PAEDC may, at its sole option, terminate this Ageement, in whole or in part. In the event of such
termination, the PAEDC may, at its sole option, utilize one or more of the following actions to resolve or
otherwise remedy said default:
(a) Declare the Commercial Promissory Note executed in conjunction with this Ageement
immediately effective. If Orbital defaults on the note, then the PAEDC may exercise its default
remedies provided under collateral documentation executed in conjunction with said Note and
this Ageement
(b) Exercise any remedies provided herein and/or within the Deed of Trust, UCC-1 Financing
Statement and the Parity Lien Ageement attached hereto respectively as Exhibits "C" through
uC, ff.
(c) Call upon the guarantors under the personal guaranty ageements attached hereto as Exhibit
..B~e.
(d) Withhold, whether temporarily or otherwise, disbursement of gaol proceeds pending correction
of the deficiency(s} by Orbital;
(e) Disallow all or a part of the incentives which are not in compliance with the terms and
conditions of this Ageement or in compliance with the representations and warranties contained
within this Ageement and Orbital's application to the PAEDC;
(f) Withhold and/or disallow further PAEDC incentives to Orbital; and
(g) Exercise any and all other remedies that may be legally available to the PAEDC, under the laws
of the State of Texas and as authorized by the terms and conditions of this Ageement.
35. In addition to the foregoing, the parties agree that this Agreement may be terminated at any time
when both parties ogee, in writing, to the terms and conditions of any such voluntary termination.
ORBITAL AUDITS
36. If directed by PAEDC Board, Orbital shall arrange for the performance of a compliance audit, by
a certified public accountant, of funds received and performances rendered under this Ageement, subject to
the following conditions and limitations:
(a) Orbital shall have a compliance audit which may be limited to use of funds received from the
PAEDC, made for any of its fiscal years included within the Tenn of this Ageement in which
Orbital receives more than $50,000 in PAEDC financial assistance provided by PAEDC in the
form of gants, contracts, loans, loan guarantees, property, cooperative ageements, interest
subsidies, or direct appropriations. Backup documentation regarding actual expenditures shall
N602761
be provided by Orbital. Said audit must be received and accepted by the Chief Executive Officer
of PAEDC and/or the PAEDC Board.
(b) A[ the option of PAEDC, each audit required by this section may cover either Orbital's entire
operations or each department, agency, or establishment of Orbital which received, expended, or
otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, Orbital shall submit the report of
such audit to PAEDC within thirty (30) days after completion of the audit, but no later than one
hundred twenty (120) days after the end of each fiscal period included within the Term of this
Agreement.
37. Orbital understands and agrees that it shall be liable to reimburse immediately PAEDC for any
costs disallowed pursuant to financial and compliance audit(s) of funds received under this Agreement and it
may be required to submit formal audits at Orbital's expense.
38. Orbital shall take all necessary actions to facilitate the performance of any and all such audits,
whether annual, mandatory or otherwise requested under this Agreement.
39. Subject to financial privacy requirements of Orbital and properly designated requests for non-
disclosuredue to proprietary reasons, all approved audit reports may be made available for public inspection.
40. PAEDC shall not release any funds for costs incurred by Orbital under this Agreement until
PAEDC has received certification from Orbital that its fiscal control and fund accounting procedures are
adequate to assure proper disbursal of and accounting for funds provided under this Agreement. PAEDC
shall specify the content and form of such certification.
SUPPLEMENTAL COVENANT OF ORBITAL
41. Orbital and any branch, division or department of Orbital certifies that they have not and will not
knowingly employ an "undocumented worker" which means "an individual who, at the time of employment,
is not lawfully admitted for permanent residence to the United States or authorized under law to be employed
in that manner in the United States."
42. Orbital acknowledges that it has reviewed Chapter 2264, Texas Government Code and hereby
affirmatively agrees by execution of this Agreement to repa~ the amount of any incentive with interest at the
rate of ten (10%) percent per annum not later than the 120' day after the date PAEDC notifies Orbital of a
violation.
43. Orbital acknowledges PAEDC may bring a civil action or cover any amounts owed under this
Chapter and further acknowledges that PAEDC may recover court costs and reasonable attorneys' fees
incurred in an action brought under §2264.I01(a). Orbital is not liable for a violation of this Chapter by a
subsidiary, affiliate or franchisee of the Orbital or by a person with whom the Orbital contracts.
ENVII20NMENTAL CLEARANCE REOIJIREMENTS
44. Orbital understands and agrees that by execution of this Agreement, Orbital shall be responsible
for providing to PAEDC all information, concerning this PAEDC funded project, required for PAEDC to
meet its responsibilities for environmental review, decision making, and other action which applies to
PAEDC in accordance with and to the extent specified in Federal, State and Local Law. Orbital further
understands and agrees that Orbital shall make all reasonable efforts to assist PAEDC in handling inquiries
A6°7761
and complaints from persons and agencies seeking redress in relation to environmental reviews covered by
approved certifications.
ORAL AND WRITTEN AGREEMENTS /PRIOR AGREEMENTS
45. All oml and written contracts between the parties to this Agreement relating to the subject
matter of this Agreement that were made prior to the execution of this Agreement have been reduced to
writing and are contained in this Agreement.
46. The documents listed below are hereby made a part of this Agreement, and constitute promised
performances by Orbital in accordance with this Agreement:
Exhibit "A" Conditional Commercial Promissory Note
Exhibit "B" Personal Guaranties
Exhibit "C" Deed of Trust
Exhibit "D" UCC-1 Financing Statement
Exhibit "E" Parity Lien Agreement
Exhibit "F" Certification Regarding Lobbying
Exhibit "G" Compliance Statement
Orbital's Application [o PAEDC for funding, by reference
VENUE
47. For purposes of litigation that may accrue under this Agreement, venue shall lie in Jefferson
County, Texas, where substantially all the performance will occur.
ADDRESS OF NOTICE AND COMMUNICATIONS
City of Port Arthur Section 4A Economic Development Corporation
4173 39's Street
Port Arthur, Texas 77642
ATTN: Floyd Batiste, Chief Executive Officer
Orbital Insulation Corp.
817 Houston Avenue
Port Arthur, Texas 77642
ATTN: Eduardo Gracian
CAPTIONS
48. This Agreement has been supplied with captions to serve only as a guide to the contents. The
caption does not control the meaning of any pazagraph or in any way determine its interpretation or
application.
COMPLIANCE WITH FEDERAL. STATE AND LOCAL LAWS
49. Orbital shall comply with all Federal, State and local laws, statutes, ordinances, resolutions,
rules, regulations, orders and decrees of any court or administrative body or tribunal, including those related
to the activities and performances of Orbital under this Agreement. Upon request by PAEDC and by the
City, Orbital shall famish satisfactory proof of its compliance herewith.
a602v61
CONDTTIONSPRECEDENT
20. This agreement hes no legal consequences, and neither party shall rely on the agreement, unless
and until both the PAEDC Board and the Port Arthur City Council approve this Agreement in its final form.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED AS CONSISTANT
WITH CITY COUNCIL RESOLUTION:
Resolution Number:
Mazk T. Sokolow, City Attorney
g6021fi1
AGREEMENT EXECUTION
CfPY OF PORT ARTIIUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the _ day of , 2009.
By:
President
Secretary
Witness
sy:
ORBTTAL INSULATION CORP.
SIGNED AND AGREED TO on the _ day of , 2009.
sy:
ATTEST:
8602761
EXHIBI'T' "A"
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This CONDITIONAL COMMERCIAL PROMISSORY NOTE becomes effective on the date when Orbital
Insulation Corp., a Texas corporation (hereinafter called "Maker's breaches that certain Economic Incentive
Contract and Loan Agreement between the City of Port Arthur Section 4A Economic Development
Corporation (hereinafter called "Lender") and Maker, dated .2009•
Effective Date of Note: the day of , 200_.("date of breach")
Principal Amount: $ ,which is $150,000 minus the incentive credits earned by Maker according
to that certain Economic Incentive Contract and Loan Agreement between the Lender and Maker (described
hereinbefore).
Term of the Loan: Three years from effective date.
Payment Schedule: Monthly until the Principal Amount and interest as hereinafter specified is paid in full.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office at P.O. Box
1089, Port Arthur, Texas, 77640-1089, or such other place or places as the holder hereof shall from time to
time designate in written notice to Maker, the principal amount, in legal and lawful money of the United
States of America, together with interest thereon from the date hereof until maturity at the rate of ten percent
(10%) per annum es detailed herein.
All past due principal and interest shall bear interest from date of maturity until paid at the rate of
fifteen perceat (15%) per annum, or to the maximum extent allowed by law (whichever is greater) as may
hereafter be in effect, payable on demand after maturity.
This Note is due end payable as follows: Thirty-six (36) equal monthly installments of principal and
interest on the fifteenth of each month, starting on the month immediately following the effective date of the
Note.
Any notices required or permitted to be given by the holder hereof to Maker pursuant to the
provisions of this Note shall be in venting and shall be either personally delivered or transmitted by fast class
United States mail, addressed to Maker at the address designated below for receipt of notice (or at such other
address as Maker may, from time to time, designate in writing to the holder hereof for receipt of notices
hereunder). Any such notice personally delivered shall be effective as of the date of delivery, and any notice
transmitted by mail, in accordance with the foregoing provisions, shall be deemed to have been given to and
received by Maker as of the date on which such notice was deposited with the United States Postal Service,
properly addressed and.with postage prepaid.
This Note is also secured by and entitled to the benefits of all other security agreements, pledges,
collateral assignments, deeds of trust, guaranties, mortgages, assignments, and lien instruments, if any, of any
kind executed by Maker or by any other party as security for any loans owing by Maker to the Lender. Such
lien instruments shall include those executed simultaneously herewith, those heretofore executed, and those
hereafter executed.
If any installment or payment of principal or interest of this Note is not paid when due or any drawer,
acceptor, endorser, guarantoq surety, accommodation party or other person now or hereafter primarily or
secondarily liable upon or for payment of all or any part of this Note (each hereinafter called an "other liable
party") shall die, or become insolvent (however such insolvency may be evidenced); or if any proceeding,
procedure or remedy supplementary to or in enforcement of judgment shall be resorted to or wmmenced
against Maker or any other liable party, or with respect to any property of any of them; or if any
governmental authority or any court at the instance thereof shall take possession of any substantial part of the
property of or assume control over the affairs or operations of, or a receiver shall be appointed for or take
possession of the property of, or a writ or order of attachment or garnishment shall be issued or made against
any of the property of Maker or any other liable party; or if any indebtedness for which Maker or any other
liable party is primarily or secondarily liable shall not be paid when due or shall become due and payable by
acceleration of maturity thereof, or if any event or condition shall occur which shall permit the holder of any
such indebtedness to declare it due and payable upon the lapse of time, giving of trotice or otherwise; or if
Maker or any other liable party (if other than a natural person) shall be dissolved, wound up, liquidated or
otherwise terminated, or a party to any merger or consolidation without the written consent of Lender, or if
Maker or any other liable party shall sell substantially all or an integral portion of its assets without the
written consent of Lender, or if Maker or any other liable party fails to fitrnish fmancial information
requested by Lender; or if Maker or any other liable party furnishes or has famished any fmancial or other
information or statements which are misleading in any respect; or if a default occurs under any instrument
now or hereafter executed in connection with or as security for this Note; or any even[ occurs or condition
exists which causes Lender to in good faith deem itself insecure or in good faith believe the prospect of
payment or performance by Maker or any other liable party under this Note, under any instrument or
agreement executed in connection with or as security for this Note, or under any other indebtedness of Maker
or any other liable party to Lender is impaired; thereupon, at the option of Lender, the principal balance and
accrued interest of this Note and any and all other indebtedness of Maker to Lender shall become and be due
and payable forthwith without demand, notice of default, notice of acceleration, notice of intent to accelerate
the maturity hereof, notice of nonpayment, presentment, protestor notice of dishonor, all of which are hereby
expressly waived by Maker and each other liable party. Lender may waive any default without waiving any
prior or subsequent default.
If this Note is not paid at maturity whether by acceleration or otherwise, and is placed in the hands of
any attorney for collection, or suit is filed hereon, or proceedings are had in probate, bankruptcy, receivership,
reorganization, arrangement or other legal proceedings for collection hereof, Maker and each other liable
party agree to pay Lender its collection costs, including court costs and a reasonable amount for attorney's
fees.
It is the intention of Maker and Lender to conform strictly to applicable usury laws. Accordingly, if
the transaction contemplated hereby would be usurious under applicable law, then, in that event,
notwithstanding anything to the contrary herein or in any agreement entered into in connection with or as
security for this Note, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest
under applicable law that is taken, reserved, contracted for, charged or received under this Note or under any
of the other aforesaid agreements or otherwise in connection with this Note shall under no cvcumstances
exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited on this
Note by the holder hereof (or, if this Note shall have been paid in full, refunded to Maker); (ii) in the event
that maturity of this Note is accelerated by reason of an election by the holder hereof resulting from any
default hereunder or otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum amount allowed by
applicable law, and excess interest, if any, provided for in this Note or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if theretofore prepaid, shall be credited
on this Note (or if this Note shall have been paid in full, refunded to Maker); and (iii) all calculations of the
rate of interest taken, reserved, contracted for, charged or received under this Note or under any of the other
aforesaid agreements or otherwise in connection with this Note, that are made for the purpose of determining
whether such rate exceeds the maximum lawful rate shall be made, to the extent permitted by applicable law,
by amortizing, prorating, allocating, and spreading such interest over the entire term of the loan evidenced by
this Note (including all renewal and extended terms).
Maker may prepay all or any part of the principal of this Note before maturity without penalty. No
partial prepayment shall reduce, postpone or delay the obligation of Maker to continue paying the
installments harem provided on their respective due dates following any such partial prepayment until this
Note is fully paid.
p602761 ~ Exhibit "A"
The Maker shall be directly and primarily liable for the payment of all sums called for hereunder;
and, except for notices specifically required to be given by the holder hereof to Maker pursuant to the earlier
provisions of this Note, Maker and each other liable party hereby expressly waive demand, presentment for
payment, notice o£nonpayment, protest, notice of protest, notice of intention to aceelerate maturity, notice of
acceleration of maturity, and all other notice, filing of suit and diligence in collecting this Note or enforcing
or handling any of the security therefor, and do hereby agree to any substitution, exchange or release, in
whole or in part, of any security here-for or the release of any other liable party, and do hereby consent to any
and all renewals or extensions from time to time, of this Note, or any pert hereof, either before or after
maturity, all without any notice thereof to any of them and without affecting or releasing the liabili shall be
of them. Each holder hereof, in order to enforce payment of this Note by any other liable parry,
required to first institute suit or exhaust its remedies against Maker and to enforce its rights against any
security therefor prior to enforcing payment of this Note by any other liable party.
SIGNED AND AGREED TO on the _ day of , 2009.
a Texas
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as the act and deed of
a Texas ,for the purposes and consideration therein expressed,
and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
2009.
Notary Public, State of Texas
U601761 - Ezhibil "A"
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
a Texas
c/o
Texas
N60376I - Eahihi[ "A"
EXHIBTT "B„
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of 2009
(the "Guaranty"), is made between the City of Port Arthur Section 4A Economic Development
Corporation (the "PAEDC'~, a corporation validly existing under its Charter and the constitution and laws
of the State of Texas, and Eduardo Grecian (the "Guarantor"), a natwal person residing in Texas.
Capitalized terms used in this Guaranty and not defined otherwise are used herein as defined in the Economic
Incentive Contract and Loan Agreement, dated 2009 (the "Agreement") between the
PAEDC, as Grantor, and Orbital Insulation Corp., a Texas corporation with its principal offices in Port
Arthur, Texas (the "Grantee"). Those definitions are incorporated in this Guaranty by reference.
WITNESSETH THAT: WHEREAS,
A. Upon the terms and conditions set forth in the Agreement, the PAEDC is willing to loan the
Grantee the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) to
enable the Grantee to acquire Equipment to design and construct Improvements to the Building described as
817 Houston Avenue, Port Arthur, Texas and to adjacent properties of the Grantee.
B, to order to enhance the security of the PAEDC that the benefits under the Agreement will
inure to the benefit of the residents of Port Arthur, Texas, the Guarantor is willing, in this Guaranty, to
guaranty the obligations of the Grantee under the Agreement.
C. The PAEDC and the Guarantor each have full right and lawful authority to enter into this
Guazanty and to perform and observe the provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the premises and representations and agreements
hereinafter wntained and subject to the terms hereof, and for other good and valuable consideration, the
receipt of which is acknowledged hereby, the Guarantor agrees with the PAEDC as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section I. i. The Guarantor represents and warrants as follows:
(a) The financial statements provided to PAEDC are true and correct, and there are no
material amendments or modifications thereto since the date of then submission to
the PAEDC.
(b) The signing, delivery, observance and performance by the Guarantor of this
Guaranty and the Guarantor's covenants, agreements and obligations hereunder do
not, and will not, (i) violate any law now existing, or (ii) contravene or constitute a
default under any agreement, indenture, trust agreement or understanding to which
the Guarantor is a parry or by which it or its property may be bound.
ARTICLE II.
COVENANTS AND GUARANTEES
Section 2.1. The Guarantor hereby absolutely and unconditionally guarantees to the PAEDC at
any time:
(a) the full and prompt performance of all covenants, agreements and obligations of the
Grantee under the Agreement, and
(b) the payment of all principal, interest and other sums due, whether by acceleration or
otherwise, together with all late chazges, disbursements, expenses, and deficiencies
pursuant to that certain Commercial Promissory Note made by the Grantee to the
PAEDC as of even daze herewith (wllectively the "Guaranteed Debt") together with
the performance of Grantee's obligations under any documents or instmments
executed in connection with or given to secure the Guaranteed Debt, and
(c) the full and prompt payment of all expenses and charges, including without
Ihnitation, to the extent permitted by law, reasonable attorneys' fees and expenses,
paid or incured by the PAEDC acting as Grantor under the Agreement and in
realizing any of the payments guazanteed hereby or in enforcing this Guaranty.
The Guarantor will pay all payments in lawful money of the United States of America. Each default th
payment of any amount payable hereunder shall give rise to a separate cause of action hereunder, and
separate suits may be brought hereunder as each cause of action arises.
Section 2.2. The Guarantor's covenants, agreements and obligations under this Guazanty are
absolute and unconditional, are a present, and shall be a continuing, guaranty of performance and payment
and not collectibility, and shall remain in full force and effect until all covenants, agreements and obligations
of the Grantee under the Agreement have been performed or met, and all other amounts payable hereunder
shall have been paid or provision shall have been made therefor to the satisfaction of the PAEDC, regardless
of the legality, validity, regularity or enforceability of the Agreement or any other document.
The obligations of the Guarantor described in the preceding paragraph shall not be amended,
modified or impaired upon the happening of any event, including without limitation, any of the following,
regazdless of whether there is notice to or consent of the Guarantor with respect thereto:
(a) the compromise, settlement, release or termination of any or all of the covenants,
agreements or obligations of the PAEDC under the Agreement;
(b) the failure to give notice to the Guarantor of the occurence of a default under this
Guaranty or an Event of Default under the Agreement, except as provided
specifically in this Guaranty;
(c) the waiver of the payment, observance or performance by the PAEDC or the
Guarantor of any of their covenants, ageements or obligations under this Guaranty
or the Ageement;
(d) the extension of the time for observance or performance of any covenant, agreement
or obligation under this Guazanty or the Agreement, or the extension or the renewal
of any extension;
(e) the modification or amendment of any covenant, agreement or obligation under the
Agreement;
p60I761 -Exhibit "B"
(f) the taking or the omission of any action under this Guaranty or the Agreement;
(g) any failure, omission or delay on the part of the PAEDC to enforce, assert or
exercise any right, power or remedy conferred on the PAEDC under this Guaranty
or the Agreement, or any actor omission on the part of the PAEDC at any time;
(h) the occurrence of any of the following:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due,
(ii) the entering of an order for relief in any case commenced by or against the
Guazantor (except cases commenced by the Guarantor against third parties) under
federal bankruptcy law, as in effect from time to time,
(iii) a general assignment by the Guaaantor for the benefit of creditors, or
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property;
(j) to the extent permitted by law, the release or dischazge by operation of taw of the
Guarantor from the observance or performance of any covenant, agreement or
obligation under this Guaranty or any other agreement, contract or other instrument
or document to which it is a party or by which i[ or its property is or may be bound;
(k) the default or failure of the Guarantor to observe or perform fully any of its
covenants, agreements or obligations under this Guaranty or any other agreement,
contract or other instrument or document to which it is a party ar by which it or its
property is or may be bound;
(1) the default of the PAEDC under the Agreement; or
(m) to the extent permitted by law, the invalidity of the Agreement, this Guaranty, any
agreement, contract or other instrument or document to which the Guarantor is a
party or by which it or its property is or may be bound.
Section 2.3. No setoff, counterclaim, reduction, or diminution of any covenant, agreement or
obligation, or any defense of any kind, which the Guarantor has or may have against the PAEDC or the
Grantee, shelf be available hereunder to the Guarantor against the PAEDC; provided, however, that the
Guarantor shall be entitled to assert in a timely manner in a separate action against the PAEDC or the
Grantee, as the case may be, any rights that could not be asserted, by virtue of this Section 2.3, by the
Guarantor as a setoff, counterclaim, reduction, diminution or defense in the action on this Guaranty, The
Guarantor shall not exercise any right of subrogation under this Guaranty until its obligations hereunder have
been dischazged in full, and such obligations shalt not be discharged by virtue of any impairment of such
rights of subrogation.
Section 2.4. If there is a default by the Grantee under the Agreement or the Commercial
Promissory Note made by the Grantee thereunder, the PAEDC is not obligated to proceed fast against the
Grantee and exhaust its remedies against the Grantee and its security or other rights in the collateral of the
Grantee, prior to resorting to any remedy of the PAEDC as to the Guazantor; If Guarantor finds that further
action against Grantee is futile, Guarantor may request in writing that PAEDC halt executing remedies
against Grantee, after which PAEDC may proceed with remedies against Guarantor.
bfi@761 - EMbibil °a"
Section 2.5. The Guarantor covenants and agrees to pay all reasonable costs, expenses and fees
(including without limitation, to the extent permitted by law, all court costs anwhether b suit orhotherwise,
incurred by the PAEDC in enforcing or attempting to enforce this Guaranty, Y
following any default on the part of the Guazantor under this Guazanty.
Section 2.6.
(a) The failure of the Guazantor to abide by or to observe or perform any covenant,
agreement or obligation hereunder, or any inaccuracy in any material adverse
respect of, or any material adverse omission from, any representation or warranty
herein, shall constitute a default hereunder.
(b) The occurrence of any of the following shall also constitute a default hereunder.
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due;
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except any case commenced by the Guarantor against a third
party) under federal bankruptcy law, as in effect from time to time;
(iii) a general assignment by the Guarantor for the benefit of creditors;
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property; or
The declaration of a default hereunder and the exercise of remedies upon the declaration shall
be subject to any applicable limitations of federal bankruptcy law affecting or prebau~Ptthe
declaration or exercise during the pendency of or immediately following any
liquidation or reorganization proceedings.
(c) If the default hereunder shall consist of the breach of any of the covenants,
agreements or obligations of the Guarantor under Section 2.1, or if any default shall
occur under Section 2.6(b), upon written demand by the PAEDC, the Guazantor
shall (i) cause any such covenant, agreement or obligation to be performed or met
and (ii) pay forthwith, or make provision for payment, to the PAEDC without
further demand or notice and regardless of whether there has been any other default
or event of default under the Agreement, the amount due and payable under the
Agreement and the Guaranty.
)n the event that the Guamntor shall be required to make payment to the PAEDC as described
in the preceding pazagraph, in addition to that payment, the Guarantor shal2o(i hce upsAeEaInY~s~y
covenant, agreement or obligation to be performed or met and (ii) pay
further amount that is necessary to cover (i) the reasonable costs and expenses of collection,
including reasonable compensation to the PAEDC, ds ag nable ex t nses or liabilftiesmcurred
law, the PAEDC's attorneys and counsel, and (ii) any reaso Pe
by the PAEDC hereunder.
(d) in the case of a default hereunder, other than under Sections 2.1 and 2.6(b), the
PAEDC upon obtaining knowledge of such default shall promptly give the
Guazantor written notice of the default at the Guarantor's Notice Address, by
registered or certified mail, postage prepaid, return receipt requested, and if the
PAEDC shall have themrights, reomediesaandopowersgand the Guarant r shall make
#60')761 -Exhibit "B"
the payments, described in Section 2.6(c); provided, however, that if the default
(other than a default under Sections 2.1 or 2.6(b)) can be remedied but not within
that period, that failure shall not constitute a default, so long as the Guazantor is
taking appropriate cortective action as permitted under the Agreement.
Section 2.7. Rights, remedies and powers under this Guaranty may be exercised, either
separately or cumulatively, in the event of one or more defaults under this Guaranty.
ARTICLE III.
NOTICE AND SERVICE OF PROCESS PLEADINGS AND OTHER PAPERS
Section 3.1. The Guarantor covenants and agrees to be subject to service of process in the State
of Texas, and that it will remain so subject to that service of process so long as the Agreement remains in full
force and effect or any obligations of the Grantee remain outstanding thereunder.
action 3.2. Any process, pleadings, notices or other papers served upon any agent appointed by
Guarantor shall be sent at the same time by registered or certified mail, postage prepaid, to the Guazantor's
Notice Address and to any other addresses that may be furnished by the Guarantor to the PAEDC in writing
from time to time.
ARTICLE N.
MISCELLANEOUS
Section 4.1. The covenants, agreements and obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Agreement becomes effective.
Section 4.2. No remedy, right or power conferred herein upon or reserved hereunder to the
PAEDC is intended to be exclusive of any other available remedy, right or power, but each remedy, right and
power shall be cumulative and shall be in addition to every other remedy, right and power under the
Agreement or any other document entered into in connection with the Agreement or existing at law, in equity
or by statute or otherwise from time to time.
No delay in exercising, or omission to exercise, any remedy, right or power upon any default,
omission or failure of observance or performance hereunder shall impair any remedy, right or power or shall
be construed to be a waiver thereof, but any remedy, right and power may be exercised whenever and as
often as maybe deemed expedient.
To entitle the PAEDC to exercise any remedy, right or power reserved to it under this Guaranty, it
shall not be necessary for the PAEDC to give any notice, other than any notice that may be expressly required
herein.
In the event any provision contained in this Guaranty shall be breached by any party and the breach
shall be duly waived thereafter by the other parry so empowered to act, the waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver,
amendment, modification or release of this Guaranty shall be established by conduct, custom or course of
dealing, but any amendment, modification or release shall be made solely by an instrument or document in
writing duly signed by the parties hereto who have been duly authorized by this Guaranty so to amend this
Guaranty.
Section 4.3. This Guaranty may be amended and supplemented, to the same extent and upon the
same conditions that the Agreement may be further amended and supplemented, by a written agreement
signed by the parties hereto. The purposes for which an amendment of or supplement to this Guaranty may
be made pursuant to this Section include, without limitation, the addition of, or substitution for the Guarantor
qfi@761 - Ezbibit "B"
as guarantor hereunder of, any Person that succeeds to or assumes, as the case may be, the Guazantor's
covenants, agreements and obligations hereunder.
Section 4.4. This Guaranty shall inure to the benefit of the PAEDC and its respective successors
and assigns and is binding upon the PAEDC and the Guarantor and his heus and assigns:
Section 4.5. This Guaranty constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the Guarantor and the PAEDC with respect to the subject
matter hereof This Guaranty may be signed simultaneously in several counterparts, each of which shall be
deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It
shall not be necessary in proving this Guaranty to produce or account for more than one of those counterparu.
Section 4.6. The invalidity or unenforceability of any one or more phrases, sentences, clauses or
sections contained in this Guaranty shall not affect the validity or enforceability of the remaining phrases,
sentences, clauses and sections hereof.
Section 4.7. This Guaranty shall be governed by and construed in accordance with the laws of
the State of Texas.
Section 4.8. All representations and warranties herein shall survive the signing and delivery
hereof.
IN WITNESS WHEREOF, [his Guaranty has been duly signed and delivered for and in the
name and on behalf of the Guarantor and the PAEDC by their duly authorized officers or representatives, as
ofthe date first above written.
EXECUTED BY:
Eduardo Grecian
STATE OF TEXAS
COUNTY OF JEFFERSON
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared Eduardo Graciao, who acknowledged that he did sign the
foregoing instrument and that the same is his free act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL) Notary Public, State of Texas
g602'r61 - ExL,Tit "B"
ACCEPTED BY:
Date:
STATE OF TEXAS §
COUNTY OF JEFFERSON §
CTI'Y OF PORT ARTHUR SECTION 4A
ECONO&IIC DEVELOPMENT CORPORATION
sy:
President
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared ,President of the PAEDC, who
acknowledged that, with due authorization, he did sign the foregoing instrument on behalf of the PAEDC
and chat the same is his free act and deed individually as such officer and the free act and deed of the
PAEDC.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL)
Notary Publio, State of Texas
X601161 -Exhibit "9"
EXHIBIT "B"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of 2009
(the "Guaranty"), is made between the City of Port Arthur Section 4A Economic Development
Corporetlon (the "PAEDC"), a corporation validly existing under its Charter and the constitution and laws
of the State of Texas, and Brnoo Fernandez (the "Guarantol'~, a natural person residing in Texas.
Capitalized terms used in this Guaranty and not defined otherwise are used herein as defined in the Economic
Incentive Contract and Loan Agreement, dated 2009 (the "Agreement") between the
PAEDC, as Grantor, and Orbital Insulation Corp., a Texas corporation with its principal offices in Port
Arthur, Texas (the "Grantee"). Those defmitions are incorporated in this Guaranty by reference.
WITNESSETH THAT: WHEREAS,
A. Upon the terms and conditions set forth in the Agreement, the PAEDC is willing to loan the
Grantee the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) to
enable the Grantee to acquve Equipment to design and construct Improvements to the Building described as
817 Houston Avenue, Port Arthur, Texas and to adjacent properties of the Grantee.
B. >n order to enhance the security of the PAEDC that the benefits under the Agreement will
inure to the benefit of the residents of Port Arthur, Texas, the Guarantor is willing, in this Guaranty, to
guaranty the obligations ofthe Grantee under [he Agreement.
C. The PAEDC and the Guarantor each have full right and lawful authority to enter into this
Guaranty and to perform and observe the provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the premises and representations and agreements
hereinafter contained and subject to the terms hereof, and for other good and valuable wnsideration, the
receipt of which is acknowledged hereby, the Guarantor agrees with the PAEDC as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 1, 1. The Guarantor represents and warrants as follows:
(a) The fmancial statements provided to PAEDC are true and correct, and there ate no
material amendments or modifications thereto since the date of thew submission to
the PAEDC.
(b) The signing, delivery, observance and performance by the Guarantor of this
Guaranty and the Guarantor's covenants, agreements and obligations hereunder do
not, and will not, (i) violate any law now existing, or (ii) contravene or constitute a
default under any ageement, indenture, trust agreement or understanding to which
the Guarantor is a party or by which it or its property may be bound.
k602761 -Exhibit "e"
ARTICLE II.
COVENANTS AND GUARANTEES
Section 2.1. The Guarantor hereby absolutely and unconditionally guarantees to the PAEDC at
any time:
{a) the full and prompt performance of all covenants, agreements and obligations of the
Grantee under the Agreement, and
(b) the payment of all principal, interest and other sums due, whether by acceleration or
otherwise, together with all late chazges, disbursements, expenses, and deficiencies
pursuant to that certain Commercial Promissory Note made by the Grantee to the
PAEDC as of even date herewith (collectively the "Guaranteed Debt") together with
the performance of Grantee's obligations under any documents or instruments
executed in connection with or given to secure the Guaranteed Debt, and
(c) the full and prompt payment of all expenses and charges, including without
limitation, to the extent permitted by law, reasonable attorneys' fees and expenses,
paid or incurred by the PAEDC acting as Grantor under the Agreement and in
realizing any of the payments guaranteed hereby or in enforcing this Guaranty.
The Guarantor will pay all payments in lawful money of the United States of America. Each default in
payment of any amount payable hereunder shall give rise to 8 separate cause of action hereunder, and
sepazate suits may be brought hereunder as each cause of action arises.
Section 2.2. The Guarantor's covenants, agreements and obligations under this Guaranty are
absolute and unconditional, are a present, and shall be a continuing, guaranty of performance and payment
and not collectibility, and shall remain in full force and effect until all covenants, agreements and obligations
of the Grantee under the Ageement have been performed or met, and all other amounts payable hereunder
shall have been paid or provision shall have been made therefor to the satisfaction of the PAEDC, regardless
of the legality, validity, regularity or enforceability of the Agreement or amy other document.
The obligations of the Guarantor described in the preceding paragraph shall not be amended,
modified or impaired upon the happening of any event, including without limitation, any of the following,
regardless of whether there is notice to or consent of the Guarantor with respect thereto:
(a) the compromise, settlement, release or termination of any or all of the covenants,
agreements or obligations of the PAEDC under the Agreement;
(b) the failure [o give notice to the Guazantor of the occurrence of a default under this
Guaranty or an Event of Default under the Agreement, except as provided
specifically in this Guaranty;
(c) the waiver of the payment, observance or performance by the PAEDC or the
Guarantor of any of thew covenants, agreements or obligations under [his Guaranty
or the Agreement;
(d) the extension of the time for observance or performance of any covenant, agreement
or obligation under this Guaranty or the Agreement, or the extension or the renewal
of any extension;
(e) the modification or amendment of any covenant, agreement or obligation under the
Agreement;
(f} the taking or the omission of any action under this Guaranty or the Agreement;
(g) any failure, omission or delay on the part of the PAEDC to enforce, assert or
exercise any right, power or remedy confersed on the PAEDC under this Guaranty
or the Agreement, or any act or omission on the part of the PAEDC at any time;
(h) the occurence of any of the following:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due,
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except cases commenced by the Guarantor against third parties) under
federal bankruptcy law, as in effect from time to time,
(iii) a general assignment by the Guarantor for the benefit of creditors, or
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property;
(j) to the extent permitted by law, the release or discharge by operation of law of the
Guarantor from the observance or performance of any covenant, agreement or
obligation under this Guazanty or any other agreement, contractor other instrument
or document to which it is a party or by which it or its property is or may be bound;
(k) the default or failure of the Guarantor to observe or perform fully any of iu
covenants, agreements or obligations under this Guaranty or any other agreement,
contract or other instmment or document to which it is a party or by which it or its
properly is or may be bound;
(I) the default of the PAEDC under the Agreement; or
(m) to the extent permitted by law, the invalidity of the Ageemen4 this Guaranty, any
agreement, contract or other instrument or document to which the Guarantor is a
party or by which it or its property is or may be bound.
Section 2.3. No setoff, counterclaim, reduction, or diminution of any covenant, agreement or
obligation, or any defense of any kind, which the Guarantor has or may have against fire PAEDC or the
Grantee, shall be available hereunder to the Guarantor against the PAEDC; provided, however, that the
Guarantor shall be entitled to assert in a timely manner in a separate action against the PAEDC or the
Grantee, as the case may be, any rights that could not be asserted, by virtue of this Section 2.3, by the
Guarantor as a setoff, counterclaim, reduction, diminution or defense in the action on this Guaranty. The
Guarantor shall not exercise any right of subrogation under this Guaranty until its obligations hereunder have
been dischazged in full, and such obligations shall not be discharged by virtue of any impairment of such
rights of subrogation.
Section 2.4. If there is a default by the Grantee under the Agreement or the Commercial
Promissory Note made by the Grantee thereunder, the PAEDC is not obligated to proceed first against the
Grantee and exhaust its remedies against the Grantee and its security or other rights in the collateral of the
Grantee, prior to resorting to any remedy of the PAEDC as to the Guazantor; If Guazantor fmds that further
action against Grantee is futile, Guarantor may request in wrifing that PAEDC halt executing remedies
against Grantee, after which PAEDC may proceed with remedies against Guarantor.
k601761 -Exhibit "B"
Section 2.. The Guarantor covenants and agrees to pay all reasonable costs, expenses and fees
(including without limitation, to the extent permitted by law, all court costs and attorneys' fees) that may be
incurred by the PAEDC in enforcing or attempting to enforce this Guaranty, whether by suit or otherwise,
following any default on the part of the Guarantor under this Guaranty.
Section 2.6.
(a) The failure of the Guarantor to abide by or to observe or perform any covenant,
agreement or obligation hereunder, or any inaccuracy in any material adverse
respect of, or any material adverse omission from, any representation or warranty
herein, shall constitute a default hereunder.
(b) The occurrence of any of the following shall also constitute a default hereunder:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due;
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except any case commenced by the Guarantor against a third
party) under federal bankruptcy law, as in effect from time to time;
(iii) a general assignment by the Guarantor for the benefit of creditors;
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property; or
The declaration of a default hereunder and the exercise of remedies upon the declaration shall
be subject to any applicable limitations of federal bankruptcy law affecting or precluding the
declaration or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganization proceedings.
(c) If the default hereunder shall consist of the breach of any of the covenants,
agreements or obligations of the Guarantor under Section 2.1, or if any default shall
occur under Section 2.6(b), upon written demand by the PAEDC, the Guazantor
shalt (i) cause any such covenant, agreement or obligation to be performed or met
and (ii) pay forthwith, or make provision for payment, to the PAEDC without
further demand or notice and regardless of whether there has been any other default
or event of default under the Agreement, the amount due and payable under the
Agreement and the Guaranty.
)n the event that the Guarantor shall be required to make payment to the PAEDC as described
in the preceding paragraph, in addition to that payment, the Guarantor shall {i) cause any such
covenant, agreement or obligation to be performed or met and (ii) pay to the PAEDC any
further amount that is necessary to cover (i) the reasonable costs and expenses of collection,
including reasonable compensation to the PAEDC, its agents and, to the extent permitted by
law, the PAEDC's attorneys and counsel, and (ii) any reasonable expenses or liabilities incurred
by the PAEDC hereunder.
(d) In the case of a default hereunder, other than under Sections 2.1 and 2.6(b), the
PAEDC upon obtaining knowledge of such default shall promptly give the
Guarantor written notice of the default at the Guarantor's Notice Address, by
registered or certified mail, postage prepaid, return receipt requested, and if the
default continues unremedied for 30 days following the giving of the notice, the
PAEDC shall have the rights, remedies and powers, and the Guarantor shall make
8602761 - ExNbit "B"
the payments, described in Section 2.6(c); provided, however, that if the default
(other than a default under Sections 2.1 or 2.6(b)) can be remedied but not within
that period, that failure shall not wnstihrte a default, so long as the Guarantor is
taking appropriate corrective action as permitted under the Agreement.
Section 2.7. Rights, remedies and powers under this Guaranty may be exercised, either
separately or cumulatively, in the event of one or more defaults under this Guaranty.
ARTICLE II[.
NOTICE AND SERVICE OF PROCESS PLEADINGS AND OTHER PAPERS
Section 3.1. The Guarantor covenants and agrees to be subject to service of process in the State
of Texas, and that it will remain so subject to that service of process so long as the Agreement remains in full
force and effect or any obligations of the Grantee remain outstanding thereunder.
Section 3.2. Any process, pleadings, notices or other papers served upon any agent appointed by
Guarantor shall be sent at the same time by registered or certified mail, postage prepaid, to the Guarantor's
Notice Address and to any other addresses that may be furnished by the Guarantor to the PAEDC in writing
from time to time.
ARTICLE N.
MISCELLANEOUS
Section 4.1. The covenants, agreements and obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Agreement becomes effective.
Section 4.2. No remedy, right or power conferred herein upon or reserved hereunder to the
PAEDC is intended to be exclusive of any other available remedy, right or power, but each remedy, right and
power shall be cumulative and shall be in addition to every other remedy, right and power under the
Agreement or any other document entered into in connection with the Agreement or existing et law, in equity
or by statute or otherwise from time to time.
No delay in exercising, or omission to exercise, any remedy, right or power upon any default,
omission or failure of observance or perfornance hereunder shall impair any remedy, right or power or shall
be construed to be a waiver thereof, but any remedy, right and power may be exercised whenever and as
often as may be deemed expedient.
To entitle the PAEDC to exercise any remedy, right or power reserved to it under this Guaranty, it
shall not be necessary for the PAEDC to give any notice, other than any notice that may be expressly required
herein.
In the event any provision contained in this Guaranty shall be breached by any party and the breach
shall be duly waived thereafter by the other party so empowered to. act, the waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver,
amendment, modification or release of this Guaranty shall be established by conduct, custom or course of
dealing, but any amendment, modification or release shall be made solely by an instrument or document in
writing duly signed by the parties hereto who have been duly authorized by this Guazanty so to amend this
Guaranty.
Section 4.3. This Guaranty maybe amended and supplemented, to the same extent and.upon the
same conditions that the Agreement may be further amended and supplemented, by a written agreement
signed by the parties hereto. The purposes for which an amendment of or supplement to this Guaranty may
be made pursuant to this Section include, without limitation, the addition of, or substitution for the Guarantor
N602'76l -Exhibit "B°
as guarantor hereunder of, any Person that succeeds to or assumes, as the case may be, the Guarantor's
covenants, agreements and obligations hereunder.
Section 4.4. This Guaranty shall inure to the benefit of the PAEDC and its respective successors
and assigns and is binding upon the PAEDC and the Guarantor and his hews and assigns.
Section 4.5. This Guaranty constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the Gtarantor and the PAEDC with respect to the subject
matter hereof This Guazanty may be signed simultaneously in several counterparts, each of which shall be
deemed to constitute an original, but sll of which together shall constitute but one and the same instrument. It
shall not be necessary in proving this Guaranty to produce or account for more than one of those counterparts.
Section 4.6. The invalidity or unenforeeability of any one or more phrases, sentences, clauses or
sections contained in this Guaranty shall not affect the validity or enforceability of the remaining phrases,
sentences, clauses and sections hereof.
Section 4.7. This Guaranty shall be governed by and construed in accordance with the laws of
the State of Texas.
Section 4.8. All representations and warranties herein shall survive the signing and delivery
hereof.
IN WITNESS WHEREOF, this Guaranty has been duly signed and delivered for and in the
name and on behalf of the Guarantor and the PAEDC by their duly authorized officers or representatives, as
of the date first above written.
EXECOTED 8Y:
Bruno Fernandez
STATE OF TEXAS
COUNTY OF JEFFERSON
On this day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared Bruno Fernandez, who acknowledged that he did sign the
foregoing instrument and that the same is his free act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL)
Notary Public, State of Texas
k602761 -Exhibit "B"
ACCEPTED BY:
Date:
STATE OF TEXAS
COUNTY OF JEFFERSON
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
By:
President
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared ,President of the PAEDC, who
acknowledged that, with due authorization, he did sign the foregoing instrument on behalf of the PAEDC
and that the same is his free act and deed individually as such officer and the free act and deed of the
PAEDC.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL)
Notary Public, State of Texas
g6M761 -Exhibit "B"
EXHLBTI' "B„
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of 2009
(the "Guaranty"), is made between the City of Port Arthur Sectioo 4A Economic Development
Corporation (the "PAEDC"), a corporation validly existing under iu Charter and the constitution and laws
of the State of Texas, and Irma Barragaa (the "Guarantor', a natural person residing in Texas. Capitalized
terms used in this Guaranty and not defined otherwise are used herein as defined in the Economic Incentive
Contract and Loan Agreement, dated 2009 (the "Agreement") between the PAEDC, as
Grantor, and Orbital Insulation Corp., a Texas corporation with its principal offices in Port Arthur, Texas
(the "Grantee"). Those defmitions are incorporated in this Guaranty by reference.
WITNESSETHTHAT: WHEREAS,
A. Upon the terms and conditions set forth in the Agreement, the PAEDC is willing to loan the
Grantee the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) to
enable the Grantee to acquve Equipment to design and construct Improvements to the Building described as
81'7 Houston Avenue, Port Arthur, Texas and to adjacent properties of the Grantee.
B. In order to enhance the security of the PAEDC that the benefits under the Agreement will
inure to the benefit of the residents of Port Arthur, Texas, the Guazantor is willing, in this Guaranty, to
guaranty the obligations of the Grantee under the Agreement.
C. The PAEDC and the Guarantor each have full right and lawful authority to enter into this
Guaranty and to perform and observe the provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the premises and representations and agreements
hereinafter contained and subject to the terms hereof, and for other good and valuable wnsideration, the
receipt of which is acknowledged hereby, the Guazantor agrees with the PAEDC as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section l.l. The Guarantor represents and warraztts as follows:
(a) The fmancial statements provided to PAEDC are true and correct, and there are no
material amendments or modifications thereto since the date of their submission to
the PAEDC.
(b) The signing, delivery, observance and performance by the Guarantor of this
Guaranty and the Guarantor's covenants, agreements and obligations hereunder do
not, and will not, (i) violate any law now existing, or (ii) contravene or constitute a
default under any agreement, indenture, host agreement or understanding to which
the Guarantor is a party or by which it or its property may be bound.
aaazas~ - ewb;e..e.
ARTICLE II.
COVENANTS AND GUARANTEES
Section 2.1. The Guarantor hereby absolutely and unconditionally guarantees to the PAEDC at
any time:
(a) the full and prompt performance of sli covenants, agreements and obligations of the
Grantee under the Agreement, and
(b) the payment of ell principal, interest and other sums due, whether by acceleration or
otherwise, together with all late charges, disbursements, expenses, and deficiencies
pursuant to that certain Commercial Promissory Note made by the Grantee to the
PAEDC as of even date herewith (collectively the "Guaranteed Debt") together with
the performance of Grantee's obligations under any documents or instruments
executed in connection with or given to secure the Guaranteed Debt, and
(c) the full and prompt payment of all expenses and charges, including without
limitation, to the extent permitted by law, reasonable attorneys' fees and expenses,
paid or incurred by the PAEDC acting as Grantor under the Agreement and in
realizing any of the payments guaranteed hereby or ht enforcing this Guaranty.
The Guarantor will pay all payments in lawful money of the United States of America. Each default in
payment of any amount payable hereunder shall give rise to a separate cause of action hereunder, and
separate suits may be brought hereunder as each cause of action arises.
Section 2.2. The Guarantor's covenants, agreements and obligations under this Guaranty are
absolute and unconditional, are a present, and shall be a continuing, guaranty of performance and payment
and not collectibility, and shall remain in full force and effect until all covenants, agreements and obligations
of the Grantee under the Agreement have been performed or met, and all other amounts payable hereunder
shall have been paid or provision shall have been made therefor to the satisfaction of the PAEDC, regardless
ofthe legality, validity, regularity or enforceability of the Agreement or any other document.
The obligations of the Guarantor described in the preceding paragraph shall not be amended,
modified or impaired upon the happening of any event, including without limitation, any of the following,
regazdless of whether there is notice to or consent of the Guarantor with respect thereto:
(a) the compromise, settlement, release or termination of any or all of the covenants,
agreements or obligations of the PAEDC under the Agreement;
(b) the failure to give notice to the Guarantor of the occurrence of a default under this
Guazanty or an Event of Default under the Agreement, except as provided
specifically in this Guaranty;
(c) the waiver of the payment, observance or performance by the PAEDC or the
Guarantor of any of their covenants, agreements or obligations under this Guaranty
or the Agreement;
(d) the extension of the time for observance or perfornance of any covenant, agreement
or obligation under this Guaranty or the Agreement, or the extension or the renewal
of any extension;
(e) the modification or amendment of any covenant, agreement or obligation under the
Agreement;
M602T61 - E<hibil "B"
(f) the taking or the omission of any action under this Guaranty or the Agreement;
(g) any failure, omission or delay on the part of the PAEDC to enforce, assert or
exercise any right, power or remedy conferred on the PAEDC under this Guaranty
or the Agreement, or any act or omission on the part of the PAEDC at any time;
(h) the occurrence of any of the following:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they became due,
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except cases commenced by the Guazantor against third parties) under
federal bankruptcy law, as in effect from time to time,
(iii) a general assignment by the Guarantor for the benefit of creditors, or
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property;
(j) to the extent permitted by law, the release or dischazge by operation of law of the
Guarantor from the observance or performance of any covenant, agreement or
obligation under this Guaranty or any other agreement, contract or other instrument
or document to which it is a party or by which it or its property is or may be bound;
(k) the default or failure of the Guarantor to observe or perform fully any of its
covenants, agreements or obligations under this Guazanty or any other agreement,
contract or other instrument or document to which it is a party or by which it or its
property is or may be bound;
(1) the default of the PAEDC under the Agreement; or
(m) to the extent permitted by law, the invalidity of the Agreement, this Guaranty, any
agreement, contract or other instrument or document to which the Guarantor is a
party or by which it or its property is or may be bound.
Section 2.3. No setoff, counterclaim, reduction, or diminution of any covenant, agreement or
obligation, or any defense of any kind, which the Guarantor has or may have against the PAEDC or the
Grantee, shall be available hereunder to the Guarantor against the PAEDC; provided, however, that the
Guarantor shall be entitled to assert in a timely manner in a separate action against the PAEDC or the
Grantee, as the case may be, any rights that could not be asserted, by virtue of this Section 2.3, by the
Guazantor as a setoff, counterclaim, reduction, diminution or defense in the action on this Guazanty. The
Guarantor shall not exercise any right of subrogation under this Guaranty until its obligations hereunder have
been discharged in full, and such obligations shall not be discharged by virtue of any impairment of such
rights of subrogation.
Section 2.4. ff there is a default by the Grantee under the Agreement or the Commercial
Promissory Note made by the Gm»tce thereunder, the PAEDC is not obligated to proceed first against the
Grantee and exhaust its remedies against the Grantee and its security or other rights in the collateral of the
Grantee, prior to resorting to any remedy of the PAEDC as to the Guarantor; If Guarantor finds that further
action against Grantee is futile, Guarantor may request in writing that PAEDC halt executing remedies
against Grantee, after which PAEDC may proceed with remedies against Guazantor.
N602763 - FxFtbit "B"
Section 2.5. The Guarantor covenants and agrees to pay all reasonable costs, expenses and fees
(including without limitation, to the extent permitted by law, all court costs and attorneys' fees) that may be
incurred by the PAEDC in enforcing or attempting to enforce this Guaranty, whether by suit or otherwise,
following any default on the part of the Guarantor under this Guaranty.
action 2.6.
(a) The failure of the Guarantor to abide by or to observe or perfortt any covenant,
agreement or obligation hereunder, or any inaccuracy in any material adverse
respect of, or any material adverse omission from, any representation or warranty
herein, shall constitute a default hereunder.
(b) The occurrence of any of the following shall also constitute a default hereunder:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due;
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except any case commenced by the Guarantor against a third
party) under federal bankruptcy.law, as in effect from time to time;
(iii) a general assignment by the Guarantor for the benefit of creditors;
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property; or
The declaration of a default hereunder and the exercise of remedies upon the declaration shall
be subject to any applicable limitations of federal banlwptcy law affecting or precluding the
declaration or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganization proceedings.
(c) If the default hereunder shall consist of the breach of any of the covenants,
agreements or obligations of the Guamntor under Section 2.1, or if any default shall
occur under Section 2.6(b), upon written demand by the PAEDC, the Guarantor
shall (i) cause any such covenant, agreement or obligation to be performed or met
and (ii) pay forthwith, or make provision for payment, [o the PAEDC without
further demand or notice and regardless of whether there has been any other default
or event of default under the Agreement, the amount due and payable under the
Agreement and the Guaranty.
Tn the event that the Guarantor shall be required to make payment to the PAEDC as described
in the preceding paragraph, in addition to that payment, the Guarantor shall (i) cause any such
covenant, agreement or obligation to be performed or met and {ii) pay to the PAEDC any
further amount that is necessary to cover (i) the reasonable vests and expenses of collection,
including reasonable compensation to the PAEDC, its agents and, to the extent permitted by
law, the PAEDC's attorneys and counsel, and (ii) any reasonable expenses or liabilities incured
by the PAEDC hereunder.
(d) In the case of a default hereunder, other than under Sections 2.l and 2.6(b), the
PAEDC upon obtaining knowledge of such default shall promptly give the
Guarantor written notice of the default at the Guarantor's Notice Address, by
registered or certified mail, postage prepaid, return receipt requested, and if the
default continues unremedied for 30 days following the giving of the notice, the
PAEDC shall have the rights, remedies and powers, and the Guarantor shall make
p60276t - Eshibil"B"
the payments, described in Section 2.6(c); provided, however, that if the default
(other than a default under Sections 2.1 or 2.6(b)) can be remedied but not within
that period, that failure shall not constitute a default, so long as the Guarantor is
taking appropriate corrective action as permitted under the Agreement.
Section 29. Rights, remedies and powers under this Guaranty may be exercised, either
separately or cumulatively, in the event of one or more defaults under this Guaranty.
ARTICLE III.
NOTICE AND SERVICE OF PROCESS. PLEADINGS AND OTHER PAPERS
Section 3.1. The Guarantor covenants and agrees to be subject to service of process in the State
of Texas, and that it will remain so subject to that service of process so long as the Agreement remains in full
force and effect or any obligations of the Grantee remain outstanding thereunder.
Section 3.2. Any process, pleadings, notices or other papers served upon any agent appointed by
Guarantor shall be sent at the same time by registered or certified mail, postage prepaid, to the Guarantor's
Notice Address and to any other addresses that may be famished by the Guarantor to the PAEDC in writing
from time to time.
ARTICLE N.
MISCELLANEOUS
Section 4.1. The covenants, agreements and obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Agreement becomes effective.
Section 4.2. No remedy, right or power conferted herein upon or reserved hereunder to the
PAEDC is intended to be exclusive of any other available remedy, right or power, but each remedy, right and
power shall be cumulative and shell be in addition to every other remedy, right and power under the
Agreement or any other document entered into in connection with the Agreement or existing at law, in equity
or by statute or otherwise from time to time.
No delay in exercising, or omission to exercise, any remedy, right or power upon any default,
omission or failure of observance or performance hereunder shall impair any remedy, right or power or shall
be constn2ed to be a waiver thereof, but any remedy, right and power may be exercised whenever and as
often as may be deemed expedient.
To entitle the PAEDC to exercise any remedy, right or power reserved to it under this Guaranty, it
shall not be necessary for the PAEDC to give any notice, other than any notice that may be expressly requ'ved
herein.
Tn the event any provision contained in this Guaranty shall be breached by any party and the breach
shall be duly waived thereafter by the other party so empowered to act, the waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver,
amendment, modification or release of this Guaranty shall be established by conduct, custom or course of
dealing, but any amendment, modification or release shall be made solely by an instrument or document in
writing duly signed by the parties hereto who have been duly authorized by this Guaranty so to amend this
Guaranty.
Section 4.3. This Guaranty may be amended and supplemented, to the same extent and upon the
same conditions that the Agreement may be further amended and supplemented, by a written agreement
signed by the parties hereto. The purposes for which an amendment of or supplement to this Guaranty may
be made pursuant to this Section include, without limitation, the addition of, or substitution for the Guarantor
8602761 - Eal,ibil °a"
as guarantor hereunder of, any Person that succeeds to or assumes, as the case may be, the Guarantor's
covenants, agreements and obligations hereunder.
Section 4.4. This Guaranty shall inure to the benefit of the PAEDC and its respective successors
and assigns and is binding upon the PAEDC and the Guarantor and his heirs and assigns.
Section 4.5. This Guamty constitutes tha entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the Guarantor and the PAEDC with respect to the subject
matter hereof. This Guaranty may be signed simultaneously in several counterparts, each of which shall be
deemed to constitute an original, but ail of which together shall wnstitute but one and the same instrument. It
shall not be necessary in proving this Guaranty to produce or account for more than one of those counterparts.
Section 4.. The invalidity or unenforceability of any one or more phrases, sentences, clauses or
sections contained in this Guaranty shall not affect the validity or enforceability of the remaining phrases,
sentences, clauses and sections hereof.
Section 4.7. This Guaranty shall be governed by and construed in accordance with the laws of
the State of Texas.
Section 4.8. All representations and warranties herein shall survive the signing and delivery
hereof.
IN WITNESS WHEREOF, this Guaranty has been duly signed and delivered for and in the
name and on behalf of the Guarantor and the PAEDC by their duly authorized officers or representatives, as
of the date first above written.
EXECUTED BY:
Irma Barragan
STATE OF TEXAS
COUNTY OF JEFFERSON
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared Irma Barregao, who acknowledged that she did sign the
foregoing instrument and that the same is her free act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL)
Notary Public, State of Texas
Mfi@761 - Exhibit "B"
ACCEPTED BY:
Date:
STATE OF TEXAS
COUNTY OF JEFFERSON
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
sy:
President
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared ,President of the PAEDC, who
acknowledged that, with due authorization, he did sign the foregoing instrument on behalf of the PAEDC
and that the same is his free act and deed individually as such officer and the free act and deed of the
PAEDC.
IN W[TNESS WIiEREOF, [have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL)
Notary Public, State of Texas
EXHIBIT "B"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of 2009
(the "Guaranty"), is made between the City of Port Arthur Section 4A Ewnomic Development
Corporation (the "PAEDC'~, a corporation validly existing under its Charter and the constitution and taws
of the State of Texas, and Julie A. Rivera (the "Guarantor"), a natural person residing in Texas. Capitalized
terms used in this Guaranty and not defined otherwise are used herein as defined in the Economic Incentive
Contract and Loan Agreement, dated , 2009 (the "Agreement") between the PAEDC, as
Grantor, and Orbital Insulation Carp., a Texas corporation with its principal offices in Port Arthur> Texas
(the "Grantee"). Those definitions are incorporated in this Guaranty by reference.
WI"I'NESSETHTHAT: WHEREAS,
A. Upon the terms and conditions set forth in the Agreement, the PAEDC is willing to roan the
Grantee the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00) to
enable the Grantee to acquve Equipment to design and construct Improvements to the Building described as
817 Houston Avenue, Port Arthur, Texas and to adjacent properties of the Grantee.
B. In order to enhance the security of the PAEDC that the benefits under the Agreement will
inure to the benefit of the residents of Port Arthur, Texas, the Guarantor is willing, in this Guaranty, to
guaranty the obligations of the Grantee under the Agreement.
C. The PAEDC and the Guarantor each have full right and lawful authority to enter into this
Guaranty and to perform and observe the provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the premises and representations and agreements
hereinafter contained and subject to the terms hereof, and for other good and valuable consideration, the
receipt of which is acknowledged hereby, the Guazantor agrees with the PAEDC as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 1.1. The Guarantor represents and warrants as follows:
(a) The financial statements provided to PAEDC are true and correct, and there are no
material amendments or modifications thereto since the date of their submission to
the PAEDC.
(b) The signing, delivery, observance and performance by the Guarantor of this
Guaranty and the Guarantor's covenants, agreements and obligations hereunder do
not, and will not, (i) violate any law now existing, or (ii) contravene or constitute a
default under any agreement, indenture, trust agreement or understanding to which
the Guarantor is a party or by which it or its property may be bound.
X602761-Exhibit"B"
ARTICLE II.
COVENANTS AND GUARANTEES
Section 2.1. The Guarantor hereby absolutely and unconditionally guazantees to the PAEDC at
any time:
(a) the full and prompt performance of all covenants, agreements and obligations of the
Grantee under the Agreement, and
(b) the payment of all principal, interest and other sums due, whether by acceleration or
otherwise, together with all late charges, disbursements, expenses, and deficiencies
pursuant to that certain Commercial Promissory Note made by the Grantee to the
PAEDC as of even date herewith (collectively the "Guaranteed Debt") together with
the performance of Grantee's obligations under any documents or instruments
executed in connection with or given to secure the Guaranteed Debt, and
(c) the full and prompt payment of all expenses and charges, including without
limitation, to the extent permitted by law, reasonable attorneys' fees and expenses,
paid or incurred by the PAEDC acting as Grantor under the Agreement and in
realizing any of the payments guaranteed hereby or in enforcing this Guaranty.
The Guarantor will pay all payments in lawful money of the United States of America. Each default in
payment of any amount payable hereunder shall give rise to a separate cause of action hereunder, and
separate suits may be brought hereunder as each cause of action arises.
Section 2.2. The Guarantor's covenants, agreements and obligations under this Guaranty are
absolute and unconditional, are a present, and shall be a continuing, guaranty of performance and payment
and not collectibility, and shall remain in full force and effect until all covenana, agreements and obligations
of the Grantee under the Agreement have been performed or met, and all other amounts payable hereunder
shall have been paid or provision shall have been made therefor to the satisfaction of the PAEDC, regardless
of the legality, validity, regularity or enforceability of the Agreement or any other document.
The obligations of the Guarantor described in the preceding paragraph shall not be amended,
modified or impaired upon the happening of any event, including without limitation, any of the following,
regardless of whether there is notice to or consent of the Guarantor with respect thereto:
(a) the compromise, settlement, release or termination of any or all of the covenants,
agreements or obligations of the PAEDC under the Agreement;
(b) the failure to give notice to the Guarantor of the occurrence of a default under this
Guaranty or an Event of Default under the Agreement, except as provided
specifically in this Guaranty;
(c) the waiver of the payment, observance or performance by the PAEDC or the
Guarantor of any of their covenants, agreements or obligations under this Guaranty
or the Agreement;
(d) the extension of the time for observoan~ oAr perfinent orethe an t nsion ortthe~renewal
or obligation under this Guaranty gree
of any extension;
(e) the modification or amendment of any covenant, agreement or obligation under the
Agreement;
8602761 -Exhibit "B"
(f) the taking or the omission of any action under this Guaranty or the Agreement;
(g) any failure, omission or delay on the part of the PAEDC to enforce, assert or
exercise any right, power or remedy conferred on the PAEDC under this Guaranty
or the Agreement, or any act or omission on the part of the PAEDC at any time;
(h) the occurrence of any of the following:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due,
(ii) the entering of an order for relief in any case commenced by or against the
Guazantor (except cases commenced by the Guarantor against third parties) under
federal bankruptcy law, as in effect from time to time,
(iii) a general assignment by the Guarantor for the benefit of creditors, or
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property;
(j) to the extent permitted by law, the release or discharge by operation of law of the
Guarantor from the observance or performance of any covenant, agreement or
obligation under this Guaranty or any other agreement, contract or other instrument
or document to which it is a party or by which it or its property is or may be bound;
(k) the default or failure of the Guarantor to observe or perform fully any of its
covenants, agreements or obligations under this Guaranty or any other agreement,
contract or other instrument or document to which it is a parry or by which it or its
property is or may be bound;
(1) the default of the PAEDC under the Agreement; or
(m) to the extent permitted by law, the invalidity of the Agreement, this Guaranty, any
agreement, contract or other instrument or document to which the Guarantor is a
party or by which it or its property is or may be bound.
Section 2.3. No setoff, counterclaim, reduction, or diminution of any covenant, agreement or
obligation, or any defense of any kind, which the Guarantor has or may have against the PAEDC or the
Grantee, shall be available hereunder to the Guarantor against the PAEDC; provided, however, that the
Guarantor shall be entitled to assert in a timely manner in a separate action against the PAEDC or the
Grantee, as the case may be, any rights that could not be asserted, by virtue of this Section 2.3, by the
Guarantor as a setoff, counterclaim, reduction, diminution or defense in the action on this Guaranty. The
Guazantor shall not exercise any right of subrogation under this Guaranty until its obligations hereunder have
been dischazged in full, and such obligations shall not be discharged by virtue of any impairment of such
rights of subrogation.
Section 2.4. If there is a default by the Grantee under the Agreement or the Commercial
Promissory Note made by the Grantee thereunder, the PAEDC is not obligated to proceed first against the
Grantee and exhaust its remedies against the Grantee and its security or other rights in the collateral of the
Grantee, prior to resorting to any remedy of the PAEDC as to the Guazantor; [f Guarantor finds that further
action against Grantee is futile, Guarantor may request in writing that PAEDC halt executing remedies
against Grantee, after which PAEDC may proceed with remedies against Guarantor.
X602761 - Ezbibit "B"
Section 2.5. The Guarantor covenants and agrees to pay all reasonable costs, expenses and fees
(including without limitation, to the extent permitted by law, all court costs and attomeys' fees) that may be
incurred by the PAEDC in enforcing or attempting tc enforce this Guaranty, whether by suit or otherwise,
following any default on the part of the Guazantor under this Guazanty.
Section 2.6.
(a} The failure of the Guarantor to abide by or to observe or perform any covenant,
agreement or obligation hereunder, or any inaccuracy in any material adverse
respect of, or any material adverse omission from, any representation or warranty
herein, shall constitute a default hereunder.
(b) The occurrence of any of the following shall also constitute a default hereunder:
(i) the admission by the Guarantor in writing of its inability to pay its debts
generally as they become due;
(ii) the entering of an order for relief in any case commenced by or against the
Guarantor (except any case commenced by the Guarantor against a third
party) under federal bankruptcy law, as in effect from time to time;
(iii) a general assignment by the Guarantor for the benefit of creditors;
(iv) the appointment of a receiver for the Guarantor or for the whole or any
substantial part of its property; or
The declaration of a default hereunder and the exercise of remedies upon the declazation shall
be subject to any applicable limitations of federal bankmptcy law affecting or precluding the
declaration or exercise during the pendency of or immediately following any bankruptcy,
liquidation or reorganisation proceedings.
(c) If the default hereunder shall consist of the breach of any of the covenants,
agreements or obligations of the Guarantor under Section 2.1, or if any default shall
occur under Section 2.6(b), upon written demand by the PAEDC, the Guarantor
shall (i) cause any such covenant, agreement or obligation to be performed or met
and (ii) pay forthwith, or make provision for payment, to the PAEDC without
further demand or notice and regazdless of whether there has been any other default
or event of default under the Agreement, the amount due and payable under the
Agreement and the Guaranty.
th the event that the Guarantor shall be required to make payment to the PAEDC as described
in the preceding paragraph, in addition to that payment, the Guarantor shall (i) cause any such
covenant, agreement or obligation to be performed or met and (ii) pay to the PAEDC any
further amount that is necessary to cover (i) the reasonable costs and expenses of collection,
including reasonable compensation to the PAEDC, its agents and, to the extent permitted by
law, the PAEDC's attorneys and counsel, and (ii) any reasonable expenses or liabilities incurred
by the PAEDC hereunder.
{d) In the case of a default hereunder, other than under Sections 2.1 and 2.6(b}, the
PAEDC upon obtaining knowledge of such default shall promptly give the
Guarantor written notice of the default at the Guarantor's Notice Address, by
registered or certified mail, postage prepaid, return receipt requested, and if the
default continues unremedied for 30 days following the giving of the notice, the
PAEDC shall have the rights, remedies and powers, and the Guarantor shall make
Nb02761 - Eoaiibi, "B"
the payments, described in Section 2.6(c); provided, however, that if the default
(other than a default under Sections 2.1 or 2.6(b)) can be remedied but not within
that period, that failure shall not constitute a default, so long as the Guarantor is
taking appropriate corrective action as permitted under the Agreement.
Section 2.7. Rights, remedies and powers under this Guaranty may be exercised, either
separately or cumulatively, in the event of one or more defaults under this Guaranty.
ARTICLE ID.
NOTICE AND SERVICE OF PROCESS PLEADINGS AND OTHER PAPERS
Section .l. The Guarantor covenants and agrees to be subject to service of process in the State
of Texas, and that it will remain so subject to that service of process so long as the Agreement remains in full
force and effect or any obligations of the Grantee remain outstanding thereunder.
Section 3.2. Any process, pleadings, notices or other papers served upon any agent appointed by
Guarantor shall be sent at the same time by registered or certified mail, postage prepaid, m the Guarantor's
Notice Address and to any other addresses that may be furnished by the Guarantor to the PAEDC in writing
from time to time.
ARTICLE N.
MLSCELLANEOUS
Section 4.1. The covenants, agreements and obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Agreement becomes effective.
Section 4.2. No remedy, right or power conferted herein upon or reserved hereunder to the
PAEDC is intended to be exclusive of any other available remedy, right or power, but each remedy, right and
power shall be cumulative and shall be in addition to every other remedy, right and power under the
Agreement or any other document entered into in connection with the Agreement or existing at law, in equity
or by statute or otherwise from time to time.
No delay in exercising, or omission to exercise, any remedy, right or power upon any default,
omission or failure of observance or performance hereunder shall impair any remedy, right or power or shall
be construed [o be a waiver thereof, but any remedy, right and power may be exercised whenever and as
often as may be deemed expedient.
To entitle the PAEDC to exercise any remedy, right or power reserved to it under this Guaranty, it
shall not be necessary for the PAEDC to give any notice, other than any notice that may be expressly requved
herein.
In the event any provision contained in this Guaranty shall be breached by any party and the breach
shall be duly waived thereafter by the other party so empowered to act, the waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver,
amendment, modification or release of this Guaranty shall be established by conduct, custom or course of
dealing, but any amendment, modification or release shall be made solely by an instrument or document in
writing duly signed by the parties hereto who have been duly authorized by this Guaranty so to amend this
Guaranty.
Section 4.3. This Guamnty may be amended and supplemented, to the same extent and upon the
same conditions that the Agreement may be further amended and supplemented, by a written agreement
signed by the parties hereto. The purposes for which an amendment of or supplement to this Guaranty may
be made pursuant to this Section include, without limitation, the addition of, or substitution for the Guarantor
!1603761 -Exhibit "B"
as guarantor hereunder of, any Person that succeeds to or assumes, as the case may be, the Guarantor's
covenants, agreements and obligations hereunder.
Section 4.4. This Guaranty shall inure to the benefit of the PAEDC and its respective successors
and assigns and is binding upon the PAEDC and the Guarantor and his heirs and assigns.
Section 4.5. This Guaranty constitutes dre entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the Guarantor and the PAEDC with respect to the subject
matter hereof. This Guaranty may be signed simultaneously in several counterparts, each of which shall be
deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It
shall not be necessary in proving this Guaranty to produce or account for more than one of those counterparts.
Section 4.6. The invalidity or unenforceability of any one or more phrases, sentences, clauses or
sections contained in this Guaranty shall not affect the validity or enforceability of the remaining phrases,
sentences, clauses and sections hereof.
Section 4.7. This Guaranty shall be governed by and construed in accordance with the laws of
the State of Texas.
Section 4.8. All representations and warranties herein shall survive the signing and delivery
hereof.
IN WITNESS WHEREOF, this Guazanty has been duly signed and delivered for and in the
name and on behalf of the Guarantor and the PAEDC by their duly authorized officers or representatives, as
of the date first above written.
EXECUTED BY:
Julie A. Rivera
STATE OF TEXAS
COUNTY OF JEFFERSON
On this _ day of , 2009, before me, a Notary Public in and for said
County and State, personally appeared Julie A. Rivera, who acknowledged that she did sign the foregoing
instrument and that the same is her free act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
(SEAL) Notary Public, State of Texas
8602761 -Exhibit "a"
ACCEPTED BY:
CITY OF PORT ARTHUR SECTION 4A
ECONONIIC DEVELOPMENT CORPORATION
Date: By'
President
STATE OF TEXAS
COUNTY OF JEFFERSON 9
On this _ day of , 2009, before me, a Notary Public in and for said
President of the PAEDC, who
County and State, personally appeared
acknowledged that, with due authorization, he did sign the foregoing instrument on behalf of the PAEDC
and that the same is his free act and deed individually as such officer and the free act and deed of the
PAEDC.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and yeaz aforesaid.
(SEAL)
Notary Public, State of Texas
asonei ~n;en-a°
EXHIBIT "C"
DEED OF TRUST
pclo~~tS~.1~r,C,nrp• ~e14~ b1~3
~~~~~~ ,f,~ z~ea~z~n
A/~l~b[~ ~Reeort0ap Plagw Asnem 7a:
WrAtreuYta~V Wf1 ~S O~~a7t4S
~~ Tw'r~lfLlz4y taw ,
r}~ri-hurlTjt; "T764:L
6WaaeT'ma apanAaare716ltm lwAere,d6eAr.
DEED OF TRUST
. (VJ1th Bmure AdNmm C(anwl
Notice of coni7dentiallgy rights: ify ou ere a natocal person, yen may remove or
stds'3ce any or eu of the ioQowlDg iDformattoD ttom auy iDafrumeat that
traDSiers eD tnterest fa teal properly bePare it is Cried Por record in the public
records: your soael security number or yonr driver's Wxase number.
1. DATE AND PAA17B9. Tho dou of th36 Deed of T7n6t (Seaadry Imaumen0 u ..43147/8W9 ................
1]ac panla and dxir addrewea ua ea fo0owa:
GAANrOR: OrDlmllnsulalion Corp
817 Hoodoo Ave
POrtAML[TX 77840
^ tltta~a,aalm to Oa amrdMAGEmarw'v:w:pontedlierofa, fw >Allliomtdtavarc
TRUSTEE: GeneO McCopum TuateeMCanmunttyeenk ofTe:w,NA.
9900 Edger ermm Ortve
Orange, 7k 77830
LbNDfiR: CanmunlgBenk ofTwma, NA
3900 Edgy Brown DrNa
orenae. rx ne3o
3. CON4EYANCY, In mmtdernion of Ten DoeYS paid in hM, fm dr puryoae of sewing Ne pcived
Deb[ (defimd bebaO od G[woYa pdtlomm~ee nvder 8Se Sxuriq Ioaa~em, Gnnoor frtavaeebty Anna,
adla, and amrya w[o 7wae, La ,.,,.a toe Ok+ bed[ of Lsaday wh6 power of adR aho fopowinp
The pmpaa[y la mood In ..JA1!9fC, 911 ........................................... a[ .........................:....._...
(Geueyi
.k17..tlM:klDOAYA .................................P.Rf1.ft!71Y.!............................ Taxas ....ZZ944.u`58.4...
ueam0 tam Rtrcaaa
7bpeaer wltb yi nnppppb, ewamma, up~p,atenaocea, m a, miaael riphU, o0:od ®a dpkb, a0 water aed
tipaden rigbn, dbclw, end waftt staK end dl ea4etay eq auote ImprovanenU. acncaua. flxmre+, xd
repiacemma eat may mw. or m 609 dma in 16a (MUre, be pan of Oe Tal asaw ~lcrioM aLWC (all
a~~ppppy~~.ymmgq.lm1nla N.~
h~/ YYwe~0aa4 e00a uMC - ~„w
,r
~.
3. SBCURBD DEBT AND !M'URB ADVANCES. The mein •Sewtod f1eM' is defined u Podowt:
A. DtM bsuored m@r nm Iemn of a proNUOry note, 'NOIC,' derodkd blow, erA dl rereads,
exnosiom ntodlflratioru or wDSdmbom. AtteeF: (IYAen rnsmfG'ng rAe dtAr aearrcd yws danrd
indrrdan~em+rhebwrarvers'aawer. tAe nose mmm+tarMdu crgnurryddu.)
" Aroekba ancudd3dWAap.ap payiabk Qdnl tnwtitbn oenwfu mahnq dxe amrdl y.paP.
® B. All fumrc atlnnca Gam Lender m Granm. or abar future oNigdlana of Ccmmr to 4ndcr uMer any
pmmtmry nom, wsuua, gurauy, or ndter evdenw of debt newted by Cnnbr In favor of LeMer
alter thh Saur(ry Imwmeat tahedta m rwl this Sewn' Intrvmem is epecEtceily rcfaerved. it
man rhaa ons ppewee aip» dm Saucily itntmmem, each Onmar egress tfiu mB Saeurhy Imaament
wltl xtma ell Nmm advarsu and mine o0ligadons Wm ore 5siven b at mmmcd DY soy one Pr mere
Grantor, at any one or more Grmmr aM o0era. AY mwe edr.nccs and Omer Neap obllgdom am
tamN by min Sewrlly Imtnumnt even Nongb ill n pan may nut Yet De adaaoad. All ftbtre
adntlw and other (once obligation ue sew[ed as U mMe oa Ux dam of chu Scwdry loswmcnL
NptANg In mL Seemity Imtcvrocln shall toMdWb a mmmluxm b make addiilonil or Auuee bans
or ¢dvermes In arty amount. Any meb mmmitokatrnutt be agseW to Ia a sepank writing.
^ C. All oDllgmlon Grufoe owes a Leader. wfilth may la[er n&e, ro tlse atrnl nm ProAibllM DY 6w,
including Ent nm Emlted t0. dehdilin for nM rc611og to any depnit amwt agtameot
betwaa ~naor and L<oA~J.
D. All BddNOOd auto advaneM eotl apemen Incurred Oy uMa for irnoting, praaving or odkraise
promNng dk Property aM In robin end aM other sums edvaneed eed apeman kwured M Imdor
under me terms o(dlis Secodty Immanent.
4. PAYABNTS. Gnotor agrees that all pps3ymems under (Ac Soused Debt will be paid when doe and In
atroordaaa wiW IDe tams of dk Semtd DeMard Ih4 Semrlry lrv(sumenl
5. SUBROGATION. Any amoun4 adramed b)) i.eMer to Ommor to ake out omswdlog lion agaiiost eny ox
all of tM Pro ny haw been advanced at GramoYS rcgnest, eM upon Gnmoi s rcprcxdtation due snrlt
emouala an dt~u and are aaumd bx n)d Ikm agaWt dta Prolwrty. To be mwa perminod by law, Isnda
.sAa11 M aubrvgota0 Id enY and sV n Rn,~auperior ddn, tiew and equdka mvned a maDned by myy obmer or
holder of ally wtsdndhlgg Item and OeDn, br]oding w imams) of CPatractoe agwdlw or wWAa edd
Ileos am aoqurced by Lecder DY asstgmnwl or ere nleascd by IAe Aalder mrceof upon pgymenr.
6. WARRANTY OF Ti9'LB. Onolor aamnn mac Grader is or wE1 6e IewfuRy seittd rd IAo nine
cooveycd DY mu Seeurfry Imwmem and Ras tAo dgm m imesmubly gem. rnnwy ud scE the Property m
Tltulee, in vin[, wide power a! sale Onomr ilm warrmu (bat me Property n uttntambered, nape for
rarxmtMocm of raord W any eotarabetsrca vapreWY approved by Lender in wrAlog.
7. PRIOR SECURITY INfSRF.BTS. Wi0 regaN to any Other swrtgage, dad et uuu, sandty agrcemem or
taha Ihn daumem due n®tM lFrmr eecud7lttlercat or encumbractce oa the Property, Onntm agrees:
A. To ma& aE paymems whw doeaod m perform ormmpty wDh s6 wvmams.
B. Tn pr dY deliver to LerAamrymtloea lAU Crutbt reaira from the holdu.
C. Nat ro draw any modUwdod or eatuulan ef, nor b reques any Mmu adwow uoder any note or
ngrantaltzcaued by Ne lien dceument uldnutt.wtla'a Prmrwridtnamem.
S. CLAIMS AGAL"tS1' TI'L'LS, Granmr wUI 77 a6 uxn asassowna, tons, encumbraaa, kao ppaymems,
grottrd rend, Wliria, aid other crosga n3icg b tln Pnpury whin duo. ixvder ouy «quim Onator to
pcovWe to [<Mer copies of all natlres dne each mooum+ ue due and me ~ttcppls otiAncmg Gruuor's
paymrni. tSranla wllt ddteod tide b the Prtgedy againz any claims thin woWC immppair dm lien of au
Scanty Inwumrnl. To dre akin pervWttd by law, Onntor agrees to aaign to Ca16n, ss requamtl by
Lentlec arp~ rlgltcR eainu a defenus Rumor may Mve quint paNa who supply BDOr err mamriils m
mdnnin or improve Iho Pmperry.
9. DUB ON SALE OR ENCUMBRANCE. 4oda may, a in option, dadme the tmin Ddarre of 00
Seaved Debt tau arty Weatntd cMrrggss, m lK Ynmediaiely duo aM payable upon IDs ereaelon of, a comer
fa the creation ol, any lies, eacvnlbnoa, aaotR+ or nle of dl o[ any pat of dk Proporp~. TABS rl t u
aW r m the mmrkdma imposed by federal law (l1 C.F.R. S9U, at aPplinble. Thu oovenn sha)I rvn
with We Preperry ud eball ramaW in effect utWl Us Scarrd Debt !t paid m NG and this Security Watmtent
U rdmred.
rw ~a a .wr'•f°rv ~"r near
.v..ew•.°,r~a„auw. o,eet emr vasu: rilrJOa
< .
30. PROPERTY CONDITlONr ALTERATIONS AND INSTSCTION. Granor will lap me Property in
food medltlan ell scale all regaira rho ve by' oeaaat3'.~Op ~ ~ mt ammLL a allow any
ivaam, lmpilemeel. a ddodotanon of rho P Garor wW putt' 4w of mdonz wrsds
and gtaxea ambr again that dm metre o! do oWID1n~Y and LLta wall ml aobbladiNl~• afiaoge Mrhaut
r ..a.r. ...n...Arr... n.,n.nm fnnm. wet rot i Nrnae G, fav Iiren,G rat[cGVS mPG-ad or
P]aims, avd aaloa, a$ahsstararaor, am ores%rox or aantags m Iae rnparry
Isada or fendoa'a ageata ®y, al [.cadet's opliov, pnrmgiy aata the Property m uy reawoabk time for
tlra potpoae of mtpedsog rbe Property. 4wdd shalt glue Graomr miles 3t Ilu trine of Pr befete su
impasle¢ ryryuu~1Q„~Ing a reas¢mble pugose for,be'aa. Aay lmpectiao a[ me Pmpery soau be
ndrety for Candor a hmefil a~ Gnorarwilr la m wtY [a~9 anlsnder's hcpesiion.
13. ALTRORITY TD PERBOAM. If Grarmr Oilm b peildm aay 6¢ry or any of Ox eovam¢u mntahud h
tltla Seauip~ mawmmt. herder m%, widwur aodw odor a requited by ~", puform u nose
diem b be pertprmed. Gnmor appomu I.aoder x altomey h foes b s (ti mror's woP n paY cry amount
moasay oaC r pes(Drmtaw m tlx exmm pamitmd Et' law. scwder's gM f0 perform far Grmbr zlull nil
...,,. an ob11gstbn topenorm. aad I.mda'a cilium b pakmt trill mt pnylvde tender from xaefzing
a% of Lwdet'a ema rigba miles lh la,r m mis Seadty mtmimea m me amt pa®lmd by Itw. F
mawdioP on she Ihoperp~ u dlwmdnoed or nos retried oa h a reaarebla manna. LaMcr+ruY,aue ill
steps aamarY b probd IeodeYa semisy iutawa in Ne proparty. tndoilag aamPledoa o/ ,ha
maamtWoa.
12, A1SlGNMENt' OF LEASPS MID AffiiTS. Graaor ¢bsdgmty me0¢Oidomlly. 'preroa6ry wd
hnmedlCep xsiga, aa¢m and eomreya b Tnnme, hr tra[ Por r>r UeWit of [aodor all the fight, tide nM
iotant h rib tedosvteg (m retested b ss Prepesry): aiding err Moro karat, wbkasw. lirenaa. ginrvr~da
and aoy o0ra vrtittev n ve[bil agrumems tin Oe ou a~ oompancy Pt dm Propa[y~ inemdmg any
mdusma, tesxwats, modiflndons or reyladmmts (ill retorted m as CasW: wd rents" , iseua and profits
(ml refertN b u Ream). In We avm say hrn Asled x Lass or Rader b dctawined b Ee pamrel
pprepesty, mla Astigrarient wilt also h «gddcd u a uariry agreement (iaator wild p .mpdY provide
lt,da widt copM of tLe Leata aad wAl ead~ Luca arc tore aad dorrm{ eop W 7fie erhdttg
iexa will 6e provldM as aeuNon of ,he Ax amt ill Metre Lasu dad arty othor mtbrmatbn
vrilh wauert to Nae LnsatvW De provWedW vafta they ax eztevld.
taedpr gnats Grantor a nvaubk Rmme b wlht, rcukc, eq{oy sad sae rbe RPnu a long et lrmror u
ad is d<f1Nt Grnuor's Qe1Wt aammelkaRy and Immalately wvoYa Ors Fasue. Upm doM1Wt Grxta
w1R recda sny Aetna in dart for Leader aed Gmm[ wN mt ceromtr~e Ow Renm with any other foods.
Who l.ada w dheW, atauor rv1A tadmae and Qeiira a% yaymenm of Aentt 5om she Prepprty ro
trades. GrYaot agrees. Wt [.enter alit ml Dc uratdaW ro bees mortgagaa*InymaRtm by ezewdng Ibla
SaorgS ImbY0lem Pi q' wllada$ e'e duNtog')YayMeda more Sawad' Wes mty may became a
moryagarlo-poaasioa after Gredx'a llunre ro mdeq rants, aq{ay aed ux Poe Rend u rental by
Leader or aobmsdesllY ravoWd m Gsmsd's defaelt om Cella tare aaod pos:exlon pf ilia Prapary.
Cnnem,rnnr. endl leader Mrea; reseal rxivealon of We Iheoerav. Iseder it mt ebdamd b rtertorm M
b lY Addy, me t.eaw a tea rcoparty, or rte miles m airy Wes br any m or Pamage w any Pawa or
.proprary audelaM h a abom me Property. armor tgrea a dill Sera b Iotvmotsu k immedialdy
eRadve betwtan Gn¢mr aad Izrdur aril et(attve u w tWM partlas on dti semrdl¢i of lltia Asstgameor.
N Iwg at dtia Asdgnment b h etRet, Grantor wartans and «ptetew ku no defaNS exiars order me
(.mra, ant she panic sPDjccl m tlw llaam hue mt vb9md any appdr~bte law on Wsa, IlPanw avd
I®meda and mach.
19. LC,L °aLDS; COdDOMINRID99s PLAMVBD UNP[ DEVHIAPMENYS. Gnaa agroa m umpl~
atilt rho proviskm Of my lose a fain Saarlry lattumm m m . leaxemd. u Ibe Properly inPltda a t
in a emdeminhu¢ or a plaaaed atilt denlopmenl, Grmw wgl perform ill of Ocuaor's dodo utda r>m
mwnmb, bY•tans. or rcgukdam o[the emidomkkmorpkoned hilt dailopmem
U. DEFAULT. Gaabr will ba h deJSdt A cry try ohligamd oa Uu Sesurtd Debt falls b male payment
wbm doe. Gretna wlll h m damdt 11 t Magi coon ,oiler be taw of lttia Seauiry t¢{taummt or am%ry
o>ba docummb ezecamd for th pnrpow oCaesting, Semda9 or guaaaryhg tha 3ecxcd Debt. A 6md fenh
hilia try Lauder Ows 1sMec n a% tiros m fnccure MtL tapat to mpr pawn err mtiry oUllgatM on the
Sewall Debs or that Om pra,pa[ of o% ppmut err ~e vdoe et the Property i! fmpairdd abdl rko
wwlmteu even{ofdaaM. -
15. RRVIEDI$9 ON DBFdULT. b toms Immru, Rderd stn acme hw wPo raWlw Leader ro provide
anntar wNt oatln of inn rleht ro core or odmr mdcm and may ambGdt tlmo acardada for fo:a7owo
adores. ~tded b• theeo mdom ll am. Lander maY araelaw 16e Soured DeW and Pocerlae mia
. ~ SKVtle'lmo¢mm:toasnmme<provrdmM wAOaasar hdefwlt.
°w~e sny Vflrala
rw.k na.a~
Mtlu„gwv MyYa,wka OrH4 as n
Al she opdov of Lendcr, dl m mmyy Da° of ma agreed Ms and durga, Kesad Imereu and DrkalWl aNll
become tmmedludy due and ppaywx, aDU n6 no[ia tf regdrrd by kw upon tlx occurranx of a defoulr
or anyaims dwrader. k umiltao, f<nder II ba mmled m VI me rmlcdi tl Lion ~widwut Ilmiudost, slhe
O,e Sasmad Der, rota Sacurlry Innrummt and eN' roLred dorumeati, g
power ro sell tiro Propcvy.
In the era^I o! oafatdt, h doll 6o me dory of me Tnslu, at IM ra4um of Lender (a'hiUS r r is nmeny
anrhuivdY Prosamcd), m kvako P°~ of nk u rrae~dvvissd 6Y 9eave SI.Wl of roe Terns Yropatry Cad?,
n men amended. 'huske mdl advenka ad sell theYreeppeerp b a whole a in scpanu puce as Puhhc
wdian to the Nghess Diddu for ash a0d conveeyy ivdefeulhte Ihk ro 1hn Properp~ wsm Wvararu at geaeml
wunnry. 7netee shall give rAdce of eta iahdhg Uw rime, arms and da¢ of ale std a dezription a! the
Prope:a m Do sold u required M the applkabklaw in effeu H mn liox of Iln pmpme6 tale.
TO me.aAmr pupnkud pDyy Imv,:p mortgage sesvrnr on bmallpf I,enper may planpbe,Usfutrmlfov regmdiog
oQoeernnp°eetmmmsd'1s M(mown ItddlaK. glpoim a rrm[ce m sabssi0ae uuuce, wflhat Iimhetlon, a
Samsrsxm mbytue~ ~[n,saaM~rromaq ketad~wltlxm Iktrihatkrp a0 os audrorvadnam misuxS ex teem
permluedDY law.
Upav sate at the Pmpslay and m ros ukm nos rok'Dilcd by Iew, Tsula spell make sod dalinr a aced m
Ito propeq sold s rgwrys Irdefeukle dYe m me Fut~~w ~[ao~d a~ik[i fleet PaYi°B ad Sacs`
~~eecd1dd m veal w,mmny from Dlaplel as dewrro ~, ivsurarcc. Hens, assaemevu
ehuga avd eos[s, shin pay lu favdar a9 Honeys advaoud u (awn,
avd pprim eslawbnap »d ksattu thereon, aril dx QQrlndPU a^d vvereu on the Samred Dab, MYI^6 Inc
msplns, if utl, ro Oraoror. lakes msY purchHe On PI°Po°Y• The `adds k any deed d wrwryaoee dull
q ps{ma tale evldena of roe mm6 sec fpalL macel0 m Ue waw puminad DY I+w•
All nmedtet w dkdriR, amvinhe sari roc uelaire, and roe Wrier is n^uded n d romedtes provldW u
kw or evnSq, whether oPam aapnwty sa[ ferro to sDe sum permitted by hw. The aaepwua tn• l.adu o!
any som lion paymms °r won IDV Saarrd Debt afar the blsmx Ie due or & andaraud or rtks
m[aclpime Psoaadygs arc (fled doll rros maNlou a waive of Le^dKS nigh[ m ttpuiro tmsrrylem wee of
®y uhueg detrain [o the asst[ p~ermbu6 DY Iaw. gy vot aesablP¢ any «mab' a0 Grnlor a defeats.
rheenam sxmdlmd DY Itw. en's dgus ro lax` cannkc dtv we0t a defsnit if is codinna a happens agai° IO
16.
l7. E~pg~, ADVANCES ON COVIIiANDSS ATTORNEYS' SrCPS COIZSC19ON CO5['S. Esrzps
when DroND1rtd by Ipw. Gnmsn agree m pq ad of Curia's eapaacr (<Oronoi bwacha svy wrmum m
Ihk Seaulry Ivsmweat. Cmosor will alto pay on demand avY~ ~r(~ry b^S~sa~L Yyca im Huai
ine-aavg,, praarb8 a ashenvise Drolydng roe P and
wuf Deer rmecm[ from dro data a( IDC DaYm^m umi (v Solt n roo 1daDeu uRCSeu sus In u
rovidsd in the rums of me Snarr4 Des. Onpspr agrees m pay ad sass ma expwe~ hx,rrrrd M Lendw
m coiluung, adosein¢c a pMUCling icoder'a rlgfiu and romod[a vmer rots Smrdsy DHUUmens. ~'
alvouns msy uxtode Dus Is na tlrN1rW ro, alroraeya' Tai, tours rose, avd a`xr icgu espersn.
smvip~ Srulmmrns eball «muo to atlas uadl released. Gsanror agree m Pay fm avy ceardwon costs a!
wch nleasa
18. STMROA7s1Td'IPAL L.WS AND )IAZAR~ CUS SCE reNEtlrRlroomanW RaPO^aa. Compeniadon
):mho^maW Law meam, wimaur Ilmlkllon, P
avd Liabik'sty acs (CHRCCA, e1 U.S.C. 960t u segJf aM all osiw fWenl, sum and tau kws,
rogmadmu adlnavca, roust ordus, worney gmml opploHm or kksuaapprulPo letkn aourviog Uu public
holds. aatiry,, welfare, enrhwmeu a a bawdom ssibaunrel am.p) Huasdas Smsuna mnrs wwryry
rock, sadtoaetrve or harmdoui musktd,, snsx, puguun m rpwamsmm whk4 Dm eD.ncmrisdn vdish
ttnda she mDsurrs davgacous m obodaily davgemus m spa pukk holm, tafary, wasfin a arwimnmaM.
Ike semf kmuda, wUhom Ilmtudon, say aubuttes dafimd m'haardaus mnulsl• loaic aubsuvco:
'hvuNOtH wama' or'h®mow rubsr>nee' uMa mY Environmrnw Law.
aM maktwaaoe the rro
E' w~Pe2s ~~~ll~rrnuk In ftsd aoaomp)'wm'+~m Y aPplloD e1 En~HSO~imOunbs I,aw. every Wnans Imes
Hain anusma
°w3$5w."°"`{,"~u~v en tsanu~ ~wr
1MpdwV riwmar,an OfH\ fqf
w
s~
'gPg ~~
,~~e$ ~~
~~ ~~
~ ~~
~~
~.s~ ,~s
»a ~a
-g~ ea
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6 ~'~
u
C~ ~~
~a
~ 1
~~
.4
~'.
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~aa $~
b ~.
~~ ~.
~~
FR
~~
~$
~9
n
4H 0~
spa ~
~'~ ~s ~
SY_ _ P° 9
~ ~ ~
G3 cs'~
s=89"aY
~K~gg~E
e....'S_..R
~x I
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e°
sg~`~Ey
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i
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amoun4 owed a oxtio{ or nNeded m Grmor. If a rtfund rrduas prindPd, ma remudon svN De ¢~~ u
a utW pr~pq~meN. To ma oxlem pemltkd by kw, a¢y curedw meeauCS 9nde Ey lender sDalf firmer
alsspolve fen' MotanY U"bitily reprdmg shn sine.
AS eonmcn, clgrgn and temlpR belwnn Gsmor svd Lcmet area Y ilmited m tbn my has
ebsrgn or feet (othu than htaraG conuaded, for. ehasgod or rativad Ih respect m Grawor. ury otmrr
ar the tironre ofnn~~aoY rower of me Property to wnnrama whh me aASlmtion, awalua:kM naln[emnrn.
aLL~owcd~by applfabla hvm~S of me nvrrd aG thdl rot eased, i¢ tlz agptcple. me hlgben smamt
29. K'AIVatRS. YXNDl ro ma stmt AroblDited by hw. GfBranr waives all aDPr^W91`~ reluln6 to dw
Property.
28. COGiA'i'ERAL.DRO'fliCfIO;i NSI1RAlcCB ROTtC&AND RHQUl~IRIv-IS. 4laolor shall karP
dp PPropen9 ioror¢d against toss by (tor Oood, UaaR and other henaaW a¢d Mtn a'nasnoahlr nnodatM
ar114 the Properip due to Ip hypo and le®lloa. Grantor m¢st malnNln lhh Ruuravcc 1¢ l e womts
and [or the D~oda Ihal Linder rnsanabls reQWrn, but m ne sums In eseas of sDa tasumms cod
of thn Imjaovemnu. Graulee rosy Ibr required Wuranee cowcaee mrossdtaer°s¢aathra°sdti -
bsmraun that b o¢aat u N¢Iro-ed 6y Grantor or ¢uY ehtafn req¢Red~ s~~ to the Nmt
Bpmvw eomppaannY a¢Iborired to do 6m1¢m h Tam or oo dl k surplus g
¢¢oamm¢¢l~ttnd by Lvr~ w~W to Le9der's approval, nddds sal be smaemm~ablp anlhhdd. The
losurancamint dams J.o9dm asl~peym mNer We pollq. V
Grantor must dellrraoprar(yeoDY mince mo~ehaogn duo N plerm of tLO~Sxarod lkbtdlo 16a pywyr's
p~nmµt~Mm y IssrP lf~Gn¢f¢lormaafa!!r n snort mP o[ Uusa requtramnta. 1e¢drr tmY. la the atent
paxfmRlM by laws but k rot rer•ulwd lo, oStnta al Grmtce's mrymsa lncmama dwt w1d sera diner
she s¢plearneol coat of Ne bnproeemen}s or the amomt of Ura ¢np91d ladrbtednns U kis, rul•Jal to
yoUry tlmits. To the eater pesWtted by law. smeunte ezp~dad togaths sdW Interest mr rods
agmmonnts anpbdpy 9tMr,rhargtn? aurally Inwrrtd stall 6e duo and ysyabk apo¢ demmd or n othernLo
Under mlpRl be~sferdlicso111 tttatm thin aha mt~of'uawvauhm Grmfoe mWd M.o aWasn~rdob~~ hl.
All 4uw+¢cn ppooViciea and renawah then be aoo¢Qtable to IsMer ord shall Inlude s ~madud 'aoort;ege
atlas" rod. where 9 Ilcable, 'toe payx cla¢e. Grantor thdl immediwely Wdry Under of mnullaiwn
or terml¢edao o! m9 Imurmw. Larder shell haw Ue rirM w hold me pollein am reawaL. If I.eMCr
reyaira, 6tmmr sbaB immedinely Jlw m 1sMer all r p0 of pnkl preWUVd and re9esral Mllaa. Uppoon
bas, Gtmmr stall r}w WmedWe nodte m me Imumme rarfkr and ISMer. Tinder mqy make ptootot Isss
(trot made imrned'mtdy by Grmtmr.
V¢ku othenvm e~rud N wddu;, dl iamravm proceeds a1wLL bra applied ro me rn~ormkn~ar repair of me
Ropeny or m the SaurW DrDt. wMmes o* ram men tlue, u LeoOm's apttoa. Aro aePppplintlon of Praouds to
pdna~l tlnll rat eaknd or pagsane the due dote at the uMdoted 44aymmt rim mange the arimnn[ of any
o~eoc to dsa ealem permitkd by taw. Arty escess wig fin paEd m ma Grains. If me Pmpaty u ecgalnM
by Leader. Gnota's nyDt to anY uwrvitt policim and Proceeds realddnn¢¢ Ran dawg9 to dx Pmpesty
behro the erlprisil(M mall paw to Leader m the ostrnt of the Seauad lkbt R9m tWY befaro dw
aegaiaYlon m me ertenl pcrmhsW 6Y law.
^ Noun ReQnrNn~ Jsudar-Ide¢ Tramacdmrs. Required 9mPer4' imura¢n bekg mtd bP or tluough
lhx l.md9[ In eonnoctlon ariW dmiai 6 at a Prerxlum n taro of rLupo net flacd or appxored by me
Terns Depumeut of I¢swrmu.
19. 01'fIHR TSSMS. Sf chttkad, me fotlovdxp ne appltpble m roll Secnlry R¢immmm
® ]Jas of Ltedta. TM Scc¢sed OcN Ixfudes a rtwiving line M amdis provides. Althoupy dw Semrrod
Debt may ha reduee0 ma tmro balsas, tNs Secarhy tmwmeattrill tmnls to elYea uxdl rosmd.
(g pfatr,r. FIW{. Drama grins m Order s security hterol in VI goods mun61suan%r owrnt ~ar~
me faros an6 1GS are u wnl bttame Ruurnt rained m me Prapeny. ty
mfRrea as a OMxine nstetomt and ay csrbm, PbokgnPlde or ode wproducuoo rosy m tiled of
recoN to purpmes of Artkk 9 of d¢ Uoifom Cmmxrclal toile.
^ iUdaa. The aorenanu sod aeramenu d mcb of me ddas rtrekd Wow aro keosponted i919 aril
tuppkrmm and ame¢61be Carnes of this Securly 7nr¢tlvam.l~ dl applksDla boxes]
^ Comtomiaium RMa D Plasma Ua4 Derdopmmt Rider D Odor ...............~......._.......
D Yurchasa Mmaey; Vmdor'e Eke; Conlrador's bJm: Rtaswai roil Hitaodoa.
NfA
a..ararn...*wn«•rx .n.mer
vweex,nNra.s^' wa,e~- arwmOa'w~
Ngtln qw.r iws6Y 4.Yw O,rN. afM
~~c~~o1~3
^ AddWmrolTerru.
SiGNA117R&4: By rIQDYgg below. Grantor a8eea m 8ie mau aDd owe:mla touaixd In mu SauNy
UallaoseaL Bn4 Is aqy tlDChvttDD. GnMar aha aelmMed~es rmlps of a copy of :Ua Secusiy LaDwveN co '
the daleslaKd as page 1.
o¢ ~~¢~~~~ V iara (94V+~1 Fecim a.ebn (Dar)
ACIINOWI.6DGA9iNT:_.
SPATS OP .Lb~4 .......................... GtlUNTY ~ .. ...... } a.
a.a+r0 ....'
Thu tmmc ledted mo ...~ .. ..~ dtY of ... &l:!.r.'~cT?$............
by .~sono.`~tanar~ti...ar,~.`~41.u9t'~~.hLA~n ....1yn .....:...........................
MY wont~im espiru: ., ~...~. 1..
AMBER L CHANDLER
lnunweae.eno,a>a,m
1bGmmiakn Ep6s17.1-09
va«ro'°G:,e. ° a~~']j~~rmRwg00iaa'
wev.. a..~°+~a.ennarro4 rao> H41a Ct"prs«r
FILED AAfD 1~CORD6D
orPLCSw- wum Drsolms
~,,,~ x,y.:~.
swe ro. ~ ro:w nn 18@@612172
Love Ne.a
tlIRDLYN L. GDId1Y RWtY CIFAX
ifFFiebDR CoUWItY 76YNa
71
HOU9YON~AVE
tY AR7DIIlR. T%T84057Zb
one
r"•"
•I" sMitpte ees^ °'^••"" -'-.-• •" --• - DNed ebv tM MPidPAI ewn of
Dawua revMr•d.l aamW to DeYn Mn. er you aNa. nYevr adbne DNltn0~ 7r^00000•
. Ne addnonY adv«e•a ae ceetvu«latw wtlu NN noa.
^ g10N AdvanPtlvrR rarNa tll al tNaDMeON win on vxndflnnA
~ MDI9Db Advmot:the DrpvWal awn eMwrl tDPe b tlameNmom •mW nl al DINNDJ t rN Dsnow arbatlda nma. On
I wN r•e•ty the •mvwt el • WA nb hpn pnrdpN •dvneea ere eenpmplNed.
lb+16tlwu:'Th• cmQtle« 1a hrvro xdvMaa en
TNt ltnw0 b owleee ra eP
bameW u0 n N• mu0num DrDldptl wm mer0 Nen au tblle•
Open lnd beAO You and I .Gras tlnt 1 m NOV h yd o0n0 -.
aher cW WIIoM endnPlr« nfl 1 wm °^IY en011me'
O cle«0 Ord Gqt Yev aM t alxae than tMY bonew IwtNat 1e aB o1Mr cwdWnel apn%N• matlmmn PtNc4e nt. q1 R nM %
WyPREET:Inq«to.0aY bra«t MtlN wlwnOAD pendPl batsce han y+cuun..~-•~+W-~--
Pry«f unW •
t$ VrbDb RaUe YNa nt• mrv eDerq• u •pt10 Debw. f 'Ap .•~~e^h.d h~W11
ohms tha loDavdrq lld«tuu
~ Ld« Wp: YDe lupu rNe wD b•1.a-------
~ CatOiq peps lbd Anr«Irtp «PNPfa N4 non bNa oe7Yq lna aHlWMed DY tho bMh COttmletb«r trwn lto. to lDM.
~ R•gnnvy aM Tlmliq: Th• nn en tN1Iw1t meY cDanP «e1W It .
ANandlAOu tM•tnt ttu w0l uk••NeN 1A nn0 tt orN«Wn
men lltt farm al We bm, N• appfceble uufuel inbistl ftp vfA not M mar. then NIA
~ IfmMlbMt p ~ N1A ~ K each
A nnn p. iM nu rmy not c14n« mvn tDn-
HI«t A Vad•p• pap: A tlurpa A Cu ppi«t rm wq Deve dt• ladewlq N!•n on Ih• Otym•nut
ATM asrvwMelneh «Mdtls0 p•Ymvnt wm cnupl. QiDe amount O/tb nw DeYm•nt vDD dunYV•
O~ - p~ Iroene -OWe.
ACCAWtI MITIQOS Inppn vN oe oebWN•d ena
DD6L MATVflRY RATE: I KIP to prv IMIn•t M tM unPld Manna of tlda Pte owhp ntu putW tY• end untP Pld N WL •s Wend bebw:
~ en tle en« filed or wnaDle me Dash In eNeet Ddae maurAY W fMnud aDDVeI•
' ^ ata ult etw to
^ tATE fiNAtnE: If d pepnmt b mttle mvr• Nm,_.._daYe Ntx h b dub I edr« le prv t IN. dltfPt et •
(~ ADDR[t1NA4 CNAROE9: In •ddluan n Inteun, 1 a0r« n PY the Itllawbp abupn Whkh 0 era ~ ae Pt Ndudad M N• akdael
- ameant sbevu
PAYMFNT6t 1 pr« to PY Odt note «fpl«n; .
Inbin4 I aQf« n D.1' eKned ImMeet _~_~...r er xanlrrAh, NnVRm .. ~~~...
B ydnelpal:I a0ru toPY tM DrDKWN
^ IMtt¢nanpr taPrea tO DeY pua nNe In PYnuMb lM IDn PMeep will «tn Na lmown ol• wplGdus~-
. A P•Ymtm el
aM W I De dw Nw•NUr. TM M1ul D•Ymem of the «rte
. unpaid DNanP of plnclpY •txl Inpr«t YITAMduv
puflPOEfi: 7N avpeae of tNl ben N .
A001110NAt TERNS:
sEOUnrrr
trsd dl~tdDmlom on eonpunt N Na Drapem- whey+r pf not •amad DY Perlamtnoe. AoWdnp, tilt ^°[ Ndted ro,.
~. ACDWnt• end DLMr RlEhp tD PaYm•Dlt AP dpnu to PymDmM,,
paymtnt kr pnp•ItY a WYI«• aan. looted. Hood. Ik•m•d, a YNpnd. Thh AckWt trry nphp •M Apr«u tYiclsdlnp •Y el.
wh1U thaw OV Nw a mneman pNMt lnY •aewM d•DNI et oDVEa. a wddds m
' ~InvnprY% AD Aventory hattl !a ulOman Into w Ne«. er evhkD hu been a wD De wppNd until cpntfeQS of aeMa•r
nw metxbN,wptkApro«ab or me0.ptubb wtd aeentun•d in mY WeA•u, lardturb Otnuub maadeeutdn9 pJpmenL"farm
«.
aM mom, ahoy • WfanenL e1RCS MO reead kaapbd tqulpmonl, Pne, tnd taob. Tha Property Dwlutlu rvry. qutpmmt
~EpMman: M aplpm«t inetudh Wt net timlt•tl to, m«1A'°r1. aerie •veYd aeudly NtlntNNO1 mY eQVPmtM.
macNMry •WID 1 mtd Vmn lwt Weh ttialNmtn•oepaY p.
d•wlbtd In o Pet a tohadule 9 p jtep •rd aM aNll wddny or nDpol
'~{DUWpunu WCDmA hPr'w~mmenu, hdudlnP n•po0ebte bu: oTtl .,bolo prey ~l paper.
Out tvlden« ND {IpM w PYmtnt of • merumrY a0ltjelbn, erq pnyp nk
/~ ^.'
tMIVEAEAI NOTE AND BECt1DIDY' AOt1EEMENP !Y~
010«.1 W11wAwe Man°• t1O^ n. <hd ea yam ttNeypYM 1aliMDS ~YV t,
®cmoat Nlmdblear All e~mrtl Inte~eMt IrrAudNp, but not BMb la, rnr roller. rytenu a.d epdsaraard rw, petMlr. copalenu,
treGmtne, trade team. 9aedwa: crdo uvnet, automrt OIp, peraltr end fnretbeY, peymmt NtelgMte compmN proereae ad
' 01 auppanlnp Nfamtfon pmJAW N oomrWOn Whb a trrn••otlenaelaMp ro oomputm Preaane, Nd Nr dpM ro wt mY nmw. ,
gp pearmrnb; An daranmu of 1kA InebdNO, twl rut bnlud to, salt of IadNp, tloaR wtmnu uH radlpu, Intl werettowr rrayta.
O Pmm Produw trd BupplN 1 /III urm aodau laluabq. Wt ret 6MW rv..n r,runrY end Meetat rqr~ tr Yw e., moo p ~~
ppduM, prodafL. all. rfysaame#u% ttl saps, rmai er pamnlel, tM ee pmdum of ill crepe;, e0 f rd.
.modkkar. and erMr wpPdee udedmr prodaMHmY7ulNadroperoaau.
~ Oewmmmt hYmenu ind Yropmm~ All pryrotnu' acaunn, Oeaul mtrtcit+u, ell eaneau mpudlnp, b,rt aat a+dtrd ro. Pe nimu
w.elnd, drtkMw paVmeqqu~, lenm of cntt0em<m, wonnouu raaiWc,~Ia~tBamYpe P~•md^O.or~~m~ire,u~lmefWad~steia
peymrnta, pr n rdWitY pentreolb rrM woermtkn nvrvo prymr -
pevemm•m goyan.
fH lnweNwnl Pre M . All imuunan property r, eut not lenhatl eo, ceNOmtad nwrtau, uaadliuted mwdtkt.
P 9. InrJUtlN st
emttlermnu, retzxmee e<camtr, ammadM ceneaeu, aamwdltywwtau, and /Yundel renv.
®wperk •aaoravr Alydrpo4t a<aaunU IeaaklnW bet net timl[od te, demoM, tlm•, wMps. paaeboat, end SN,kr epNUnU.
~¢gaaL• Progeny DerMPdem iee Property Ind Wei. eut k rot emkN Oyr me 1
iota nlmttrored eight Ihro0ph OReen (&18). Indwhe, Bbck no. 74, Cay of Pon ~ r, Te7ma, es same appears
upon Ore map Or P1et thereof, on Ole and of remora w 401 + page 60 of Ore map rrworas W Jefferson Cpullb.
Texsa .
Aaslgrdnent ofJlfe fnaunnm paflcy laved kY Lktcoln §ene0t Life Company brarin9 Pab1'#0+7194Z0741ruudng
thB Ilfe of FAuenio C•lraclan in are original fa01 amount oFS1,000,000.00 w10t only y100,0o0.OD oeing pfedgsd w
wan # e+a+a+s3
m~ifneorelu ol~emanredezem~iheonel Mteceenmwneofsaoo cat>ao ~ydn~o~rdrsl~auoao~insaiedws~~g
Icon#61x10163
11 mle atPammt cevat Ilmba to be cut, mta reii alalo daatptbn and rasa owner Ntaimetbm
Thr Prepem wNbr used IM e O pmaonJ f8 bwir,orr ^ eaioAtwal f]
9anwerlarvnn aim of apenh WeNrgleteYan er gpkrafrl
enmm~uariHIMS OPAHE 6EC fUSY AOPEEMEfd7
rewYap .Out of [M xbetpN vrD not an1DN rM to .
Wt Yov maY an el! Mf emwnl duo ]nE egi!!e
Mat enY dpht Dmmr moray kam LMl.
e mxNy Sam You''vaaY:
teeounl latarN. l lave wan yw;
ewes m m. en N u.m Wesemad to Yw u b Yxn
]
W .innw
I4at rodeuJ
IprN.
en
m naD lau re~w............ ~-. _.
amdra N wm rt~M m..[<N.
DEFAULT • 1 w9 b N dn4W an tn4lun in~d nnY ipwmmt YaWN
adabN i(.nY xax men of W fall ~~ 1 love uroanten b tNa
111 I.1>0 m wRDal4 aW aila rotr,
rpn Ol NY ]plNmxll FKYNq
IL /r~eapn 0e m ~D~aiaxl ny aNV amapp~~Dl]~ ~t,r.Wa+
nm. a NY ap~imant NadM tN rom'v Bnw4.d; Y•
OI IIWVwY.w a n. en anYdrDt er.ynamantl Dow
W%A Ywwb.a amxWpe pprvegD.e DY law.
X xq al Va anmdalWton tMr Nor any aecwil'I npraemn4 YVu
eaY nueLV your wmadlaa YMrt uW u Y of w.
flwtD~ • Y 1 w N daTedl on Ntv Mm. Yw Nwr Dot xa rot 9mttid
m. ma btlowkq rpwCM+Imm.alN ayoant al mY day 1M.r w. Mta
NI'Yw mr•`((damero D
pp~eleolgl..oxuad UnpaM bnraa and eWnaoxoa0 anxpnl.
W Veu mW Y/ e11 dNtl VDU lOtlniO]~r Ala ei ~~B t~PF'
of menW rom You. bjoet
Pp .graph Mnm. p~vyltY~ ydNerol .Yml~i x xl8tlend pWx
Dl 1'eu mW fdnand th4 nme Y a aondtbn M not u.bp oM
m a onllpnW [e wv
atAat fxlNM•
IQ YW mW noon m InYYA YdV]rfK n rM N abw pYraA.n] en
mWR DY Vx. ramady YOU hva uron Nnxfadxat lew.
IA Vau mW uN wYw al aW nmW pvM fo Yaa b enY YlaamYe
.t iprN m PW .II ena]
i ~N eWVit a~b noHtn Wo
itlommWW pDa mmt was
n p.mytd Dv ma Unced
W neNMHe emmeYa
N .vmaed W am exec
h e.aaln tldlga. I wm not
pia W[w al
:N.m.; a
Yaaa an sweryeidP ar byalmant et
1 uroxmYd Wt 1 moat D!Y, Uf `rwty
R cUe~ al Iona Ynu mYa to me x auwr .Y vl MN wan w x w w•. ••-. •-Tmnt Nidl l opal ara Yw ma
wnen iM •PofL wuma.yw ue mdtlMtd avM unM M
For WpIr1wp]aY of datldln6 x Yxm eptlm eeeero dda note or tM MYio~+~ro~ P.~m reEe
p. 11 a1.'Ua [xm'maurM' maw W a AN a1 tM nna ea MBt. inrn ttmv fx nt a11M Mn.
.ym.nf lndiatad ee paw t al Nb icu x ~~p° xx urm wNnaut aHaohq mY liebfily pMm!m~ ~ ero
aM en the nN, w vx I] aapa• vr0 rot a..tw mY a]flwden mqx dd. a/ro.a.m
pis la • .b0. NvmN b.n, Yeu a~ 1 wrinan .pprav.l.
rnH my id+]Ma el prlnapvl. Nv«.wr. You FIMpHCIM1L WiONMAl10N - 1 .pne tp FxvNV YoW own rW' x~rr
. o»rrree. MM1Yya H You mete ary Nvm.m. y~yoNl .nn +M x IMarmotbn pu mW d.u^ "YViwV
i fly N06A• puopfapn on p.w L M:tt~r.n~m. c~m~ieei:nd~taomnp~.w Nlum.tivn 1 paMb m riu ero x wi
p • 11 W a la • mWNpn .dva~N loan, ~ apd
npm Uan Oro adelMe of Fdndpal: t 1FL Y
nvOEAVIU~EM'CE OFPPiUOAr CONTENIPOAANHOUS, OR SUDBEQVENTa ORAL AGREFNIENT6 OP
THFXE AP@NO UNWPoTTPld ORAL AOAEEMENTB BETWEENTHE4AATIES. '
e10NANRFAt I AOAFI TO TXE 1EAM8 OP TNIp NDT6 AND 89CYI1RY pOflEDdtNY BNCIUWND TNOBfi ON IAaU t. Y AND eL I have recaMd
w YetlW Mta end •.ammran redry's dma.
SRXITAL IN 1D~7'
Eoupr o reclen. DBDCtor
c or
61OtUTU RIENOW
t
De By.N~Pfpdtlanl" lpapr gel Jl
F9~OIp!{. 19p1 aaMaa Y pmn lM..R O°°I. NN MmYNLtAl'T% IMY1000 .
ADORIONAL TEAMS OF THE NOTE
t and 9. 'lW • w lM wma m.a
061tOnONe . Aa wN en oapN menu .Nlr Bomewu wne dpna
epyy Y ads Iwn. '1; 'm.' M'mY 1 al emhY MvadW wanntan.
1Fy Mn uM Yvn etMr Wxon al 19
Ykpq~f ~N ~M~ W~r~ al 4aai( Nd W tucea~ wd
AY0Iln1aLC {AV/ - 1ni t.w Or an ]We 01 TYY W0 pDYmf.itN
EXHIBIT "D"
UCC-I FINANCING STATEMENT
I ` C,ghmontty0ank of Te>sa~, N.A.
9900 Edgar Brown Or
Onulge, TX 77830
L
M
T. TN IM.11C IMO ITA~ bM M fllb
Ses ABacfled UCG1 Addendum
06-0@12376411
04/10/2808 05:00 p!I
i®~'~~ F~YLED ,~,.
OiILT
I
1
f
t
t.01M.LV.H. p1.1. MwVCDtLa -lMaw~
q{WO ORiCE COM- 1V,110aA1. UCC 7111AlKInO 9TAT9MEM dORN UOC110~V. 07RL9q
""til.ra,r meua P«tr w b.x« wr. w,.a.a.r i..dw m e. dra
a. Ai tM iFra vI tM aitJ 1WnF NM ~Ikl w11nWn Ifr YN ILrI a.n w M wWr~l~Yntw.
a. M YaN. 1fh MO( WN11 YyF.1 rMM1iNY iUblwtMA p(IlFtrt1 ~' M.
aj~wp dom. of 1M
,,,T_._, .__. - - w Pgmwas All rtohu a Wri~c wNthw or rat rsm.d hY ~/amwca ir]ud+q. Out rof llmibd m. v.Ymrrt ror
fA Aeeeuar~aed Odgr cedar wd ShU MetuBn arrV +ktls wN lnt.ruts IMWM ~ ~1 '~~
pogrry w .Mtdcer eak. 1. rm{ad, knrn.M, a +. Otet a o0i0or ai Q.Ota.
WGIa mrY Mvr by ttw a aetMmaM rprYfat ap.ewinf udw cmksol. ai ..rvin. a wldofi rr. nw
Q Lmnlrry: AYn~AW wak NPraoagamt.ri4 uwa wcc~irsunM in Orbla ~wil~b ~DP~
~ Epd-irrrt: M_,~ K InO~kp, but rot YmitW lo, rnsclintrY. w6klrt~ f~anittvr. tfaww. mwhookkWbmr^r, trm mwhNwv .r+d
'~ 1 and tools. l7rpfdprtY stn aNkm.^l dwctlbtd br
eROlpnrnt, ONkr arW r.ceN twpkq .WPB • P.rl.. hnnst M aP of
a t w a able aw.a m S.ao.d P.M. Out suth r Wt b rot n.easuY u crr.w a Par.n s wW s.c~lry
prbfoh rwiprarl• dart. MrlnkNedr ~ Oros rots rnd .nY aMr wrnFpr a racortlr th.t
III Irownwrta red CJrrlld 1Kw: /JI Yurtunrnts, kldudtV neW
rvldrmftM he m P.yrrant of a ma+.dnl ebtlprtbn, rtd t.rglWa and sacerdrdc tltd prpu. ttd.m.tkr,
0a Ya a1n tr]Ydq, but rot ptk.d to. tR nlunds pound and aPrdioatkau ra ~tartl, eoP "nrNer'. nrr..
Ot O.rr.rd G.t.eaWu: Ail arr.r r!q aria }randdrnr Prmrwd tnlvgmMb c0~tp earoeppumt uw .l
irdr aeeetr tradr r+rrar. cwtom.r itlr. Prn*dt! m carrootar pngrsrn.. and tN dyOt m ton
.oPDORirW 6ramrdv. prwWN N carriretMn wiN a trmrwtWn ul.ttq _ onp
Ol parurants: as demrrarka or wt fum ommau roCriid'aW. but rat oitarMd te, bl DuaW fNwtoak ~ to~• ~f.rtD4 ~ ~ a. anA
~ Farm nrdacu .rfd &RfA`t W a arnoa m parwdrl, urd d peduou el th. aaPS: and NI (aced, rrrd,
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EXHIBIT "E"
PARITY LIEN AGREEMENT
PARITY AGREEMENT
THIS PARI'T'Y AGREEMENT (this "Agreement"), dated as of the _ day of June,
2009 is made by and among Community Bank of Texas, N.A. (the "Bank"), City of Port Arthur
Section 4A Economic Development Corporation (the "PAEDC") and Orbital Insulation
Corporation ("Borrower").
RECITALS
A. Bank and PAEDC have a common interest in extending financing to Borrower to
enable Borrower to expand or improve its operation and services.
B. Bank has an existing loan with the Borrower.
C. Borrower desires to obtain a new loan from PAEDC in order to expand or
improve its operation and service.
D. In consideration of the new loan to be made, Bank and PAEDC are willing to
share the priority of their liens in the collateral on a proportionate, co-equal basis; and
E. The parties wish to clarify their agreement with respect to jointly financing
Borrower's operations and with respect to sharing lien priority;
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and
valuable consideration, the receipt and sufficiency of which aze hereby acknowledged, the
parties hereto agree as follows:
1. Definitions: The following terms used in this Agreement shall have the following
meanings, unless the context indicates otherwise:
(a) "Collateral" shall mean the Deed of Trust (with Future Advance Clause)
dated March 7, 2008 executed by Borrower as Grantor to and for the
benefit of Gene O. McCollum, Trustee for Bank, as Lender (the "Deed of
Trust") together with that UCC Financing Statement with attached UCC-1
Addendum executed by Borrower to Lender filed of records April 10,
2008 under Secretary of State File #08-0012376411 (the "Financing
Statement").
(b) "Bank's Loan" shall mean the loan in the original amount of $750,000
made to Borrower on November 14, 2008, said loan having an
outstanding principal balance as of the date of this Agreement of
(c) NoAte inn the amount of $ 50,000 for financiallass~stance pursuant'to an
Economic Incentive Contract and Loan Agreement between the PAEDC
and the Borrower dated , 2009.
(d) "Loan" includes the promissory note(s) evidencing Bank's Loan and the
PAEDC's Loan and all other promissory notes/bonds as may be executed
subsequenE to the date of this Agreement by Borrower to amend, modify,
renew, or extend such loans.
(e) "Lenders" means the Bank and PAEDC collectively.
(f) "Loan Documents" means with respect to any of the Lenders those
agreements, instruments, and documents evidencing the terms of the loans
including, but not limited to, the loan commitment letters or agreements,
the promissory notes, bonds, the loan agreements, deeds of trust,
mortgages, guazanty agreements, estoppel letters, opinions of Borrower's
counsel, security agreements, UCC-1 financing statements, corporate
resolutions, and any other agreement ar instrument in writing evidencing
the obligations of Borrower in connection with the loans as those
agreements are thereafter amended, modified, renewed, or extended from
time to time.
(g) "Loans" shall mean Lenders' loans, collectively
2. (a) Sharin¢ of Collateral and Installments. Each of the Lenders agrees that,
non-perfection of or the priority of, any liens securing any of the Lenders'
Loans, and notwithstanding any provision of any of the Loan Documents
to the contrary, as between the Lenders, any and all liens that either
Lender now has or may hereafter acquire in the Collateral securing the
Borrower's indebtedness under the Lender's Loan Documents shall have
equal priority shared on a parity prorated basis according to the advanced
comparative outstanding balances due to Bank and to PAEDC from
Borrower and as determined in the Formula for Proportionate Sharing as
set forth herein.
In the event adequate funds are not available to meet regular installments,
the funds available will be divided between Bank and PAEDC using the
Formula for Proportionate Sharing. All collections for the Loans ands
Collateral proceeds will be divided using the same formula.
(b) Formula for Pro ortionate Sharin .All payments, Collateral proceeds,
collections, funds, or other moneys to be divided between Bank and
PAEDC pursuant to this Agreement will be multiplied by their respective
percentage multiplier which is computed as follows:
a~aaoai
(i) For Bank, the numerator is the amount then owing under the
Bank's Loan and the denominator is the sum of the amounts then
owed collectively under Bank's Loan and the PAEDC's Loan; and
(ii) For PAEDC, the numerator is the amount then owing under
PAEDC's Loan and the denominator is the sum of the amounts
then owed collectively under Bank's Loan and the PAEDC's Loan.
The Lenders' respective percentage multipliers shall be determined as of
the date that payments, proceeds, funds, or other monies are to be divided.
Division will occur not less than 120 business days after receipt by either
Lender.
(c) Priority for Advances. Notwithstanding the formula for apportioning
payments and collections between the Lenders, advances made by Bank
or PAEDC for the mutual benefit or protection of both Lenders (including
but not limited to advances to protect or preserve the collateral, or for
taxes, insurance, collection expenses such as attorney fees, advertising
and sale costs, lien searches, and title examinations), which aze agreed to
by both Lenders and which are charged to Borrower's account shall be
paid first to the party who made such advance before the apportionment
of funds between Bank and PAEDC.
(d) Receipt of Monies in Excess of Proportionate Shaze. Each Lender agrees
not to demand, sue for, take, or receive, drrectly or indirectly, in cash or
other property or by setoff or in any other manner, payments for any
proceeds of collateral in excess of the Lender's pro rata share of such
proceeds as determined in accordance with this Section 2. Any payments
or disbursements of proceeds of collateral received by a Lender contrary
to the provisions of this Section 2 (a) shall be received in trust for the
benefit of the other Lender, and shall be segregated from other funds and
property held by the receiving Lender and shall be delivered to the other
Lender within 120 business days after receipt by the Lender who is
holding such monies intrust under this provision.
(e) No Detriment. Bank and the PAEDC further agree that their lien positions
shall in all respects be on a parity and neither Bank nor the PAEDC shall
have the right to foreclose or other enforce its interest and security to the
detriment or exclusion of the other.
(f) Waiver of Future Advances/Cost Collateralization. Bank and PAEDC
further agree that by execution of this Agreement, each waives their right
to make future advances in excess of the face amount of the Loans as
referenced in pazagraphs 1(b) and {c) of this Agreement. The parties
further agree that any other indebtedness due and owing to either Bank or
PAEDC that may be cost collateralized by the collateral provided under
reference in this Agreement as such cost collateralization shall be
X688081
subordinate and subject to all the terms, conditions, agreements and
obligations contained in this Agreement.
3. Effect of Subsequent Events.
(a) All rights and interests of the Lenders under this Agreement shall remain
in full force and effect irrespective of:
(i) Any lack of validity or enforceability of any or all of the Loan
Documents;
(ii) Any change in the time, manner, or place of payment of, or in any
other term of the Loan, or any other amendment or waiver of or
any consent to departure from any of the Loan Documents;
(iii) Any exchange, release, ornon-perfection of any collateral, for any
or all of the Loan; or
(iv) Any other circumstance which might otherwise constitute a
defense available to, or a dischazge of the Borrower.
This Agreement shall continue to be effective if at any time any payment
of any of the Loan is rescinded or must otherwise be returned by any
Lender upon .the insolvency, bankruptcy, or reorganization of the
Borrower, as though such payment had not been made.
(b) Notwithstanding any provisions contained in the Agreement to the
contrary, this Agreement shall terminate and be null and void in the
event that a third party obtains rights in the Collateral which are greater
or senior to the rights of either Bank or PAEDC but not both. For the
purposes of this provision, the term "third party" shall include a debtor-
in-possession, a trustee in bankruptcy, a lien creditor, a judgement
creditor, a receiver, a purchaser, and a successor or assign of any "third
ply„
{c) Bank and PAEDC further agree that this Agreement will govern any new
indebtedness renewals, modifications, or amendments of Bank's Loan
and PAEDC's Loan.
(d) Upon satisfaction by Borrower of its obligations to Bank, Bank agrees to
assign and transfer, and Borrower agrees to execute any and all
documents necessary to sign and transfer to PAEDC the Collateral.
Upon the satisfaction of the Economic Incentive Contract and Loan
Agreement between PAEDC and Borrower, PAEDC agrees to release
and discharge the obligations, covenants and agreements in this
N686061
Agreement and to file of record any documentation necessary and as
requested by Bank.
4. Lenders' Consultation.
(a) Should any event of default set forth in any Loan document occur, the
affected Lender will promptly notify the other Lender in writing when
such event of default occurs, and when and what action may necessary.
As to Bank, notice of any default shall be provided to Community Bank
of Texas, N.A., Attn: David May, 4749 Twin City Highway, Port
Arthur, Texas 77642, or to such other name and/or address as Bank may
provide. As to PAEDC, notice of any default shall be provided to the
City of Port Arthur Section 4A Economic Development Corporation,
Attn: Floyd Batiste, P.O. Box 3934, Port Arthur, Texas 77642 or to such
other address as PAEDC may provide.
(b) The Lenders will agree to meet, at a mutually agreeable time and place,
to review the event of default and the consequences the event of default
may have on the Borrower.
(c) Each Lender's Loan will be service as required by that Lender's
respective Loan Documents, applicable regulations, policies, and
procedures. Any specie[ problems that develop in connection with the
Loan will receive due consideration by representatives of the affected
Lender.
(d) Lender will consult each other before making an advance for the
preservation or protection of the collateral or for collection expenses.
Cross Default. Any default by Borrower under a Lender's Loan and any related
Loan Documents shall automatically create a default under the other Lender's
Loan and related Loan Documents. In the event of default by Borrower under
any Loan or of any Lender takes enforcement action against Borrower, the
Lender whose Loan is in default or who is taking enforcement action shall notify
the other Lenders of such default or action taken at the eazliest possible time, but
not later than 120 business days after the default or the decision to take
enforcement action.
6. Independent Credit Judeement. Each Lender warrants to the other Lender that is
has, independently and without reliance upon the other Lender and based upon the
loan information referred to in the Loan Documents and other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to make or participate in the Loans, and that it will continue to make its
own independent credit decisions in taking or not taking action under the Loan
Documents.
8688081
Limitation of Liabiliri. No Lender, nor any of their directors, officers,
employees, or agents shall be liable to the other Lender for any action taken or not
taken by it or them under the Loan Documents.
8. Servicin¢. No Lender shall perform any servicing function on behalf of the other
Lender with respect to the other Lender's Loan unless the parties enter into an
express written agreement providing for the performance of such servicing
functions.
Term: Termination. This Agreement shall remain in full force and effect until the
Loans have been paid in full, and shall be binding on each party's successors and
assigns. Without limiting the generality of the foregoing, either party may assign
or otherwise transfer any Loan Document held by it or to which it is a garty.
10. Notice of Default. Each party shall notify the other immediately of any failure or
anticipated failure of such party to perform any of its obligations under this
Agreement.
11. Authority. Each party represents to the other that it has the requisite power and
authority to enter into this Agreement and perform its obligations hereunder, and
that the persons executing this Agreement on such party's behalf have been duly
authorized to do so.
12. Entire Agreement: Amendments. This Agreement represents the entire agreement
between the parties and cannot be modified except by an amendment in writing
signed by both parties.
13. Invalidity. The invalidity of any portion of this Agreement shall in no way affect
the remaining portions thereof.
14. Waiver. Either party may waive performance by the other party of any obligation
under this Agreement by written notice given to the other party. The waiver by
either party of a breach of any provision of this Agreement shall not operate as a
waiver of any subsequent breach.
15. Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and to their respective successors and assigns.
16. Apnlicable Law. This Agreement shalt be governed by and construed in
accordance with applicable Federal law, and to the extent that Federal law is not
applicable, laws of the State of Texas.
17. Remedies. By execution below, Lenders acknowledge the provisions of USC §
1341 and the restrictions contained therein, which prohibit an officer or employee
of the United States from involving the United States Government in a contract or
obligation for the payment of money where Congress has not acted to appropriate
funds for such purpose.
4688081
Thus, any and all contract claims for damage which may be asserted arising out of
noncompliance or breach of the terms of this Agreement will be limited to
recovery of collateral or the proceeds derived therefrom.
EXECUTED by each party in name by their duly authorized officers or representatives as
of the day, month, and year first written above.
Community Bank of Texas, N.A.
By:
Title:
STATE OF TEXAS
COUNTY OF JEFFERSON
This instrument was acknowledged before me on the _ day of
2009, in his/her capacity as , on behalf of Community Bank of Texas,
N.A.
Notary Public, State of Texas
[SEAL]
X688081
City of Port Arthur Section 4A
Economic Development Corporation
By:
Name:
President, Board of Directors
STATE OF TEXAS
COUNTY OF JEFFERSON
This instrument was acknowledged before me on the _ day of
2009, in his/her capacity as President, on behalf of City of Port Arthur Section 4A Economic
Development Corporation.
[SEAL]
Notary Public, State of Texas
k6880H1
Orbital Insulation Corporation hereby joins in execution to acknowledge, consent, and agree
to the provision of this Parity Lien Agreement.
By: _
Name
Title:
STATE OF TEXAS
COUNTY OF JEFFERSON
This instrument was acknowledged before me on the _ day of
2009, in his/her capacity as President, on behalf of Orbital Insulation Corporation.
Notary Public, State of Texas
[SEAL]
afi66081
EXHIBIT "F"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loaos, and Cooperative Aereements
The undersigned certifies, to the best of his knowledge and belief, that:
No funds have been paid or will be paid, by or on behalf of the undersigned, to any
person for influencing or attempting to influence an officer or employee of any agency, a
member of the City or of the PAEDC in connection with the awarding of any contract,
the making of any grant, the making of any loan, the entering into of any cooperative
agreement, or modification of any contract, grant, loan, or cooperative agreement.
The undersigned shall require that the language of this certification be included in the
award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and
contracts under grants, loans, and cooperative agreements), and that all Subs shall certify
and disclose accordingly.
This certification is material representation of fact which reliance was placed when this transaction was
made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction.
Signed:
sy:
Signature
Its:
Position
8602761
EXHIBIT "G"
COMPLIANCE STATEMENT
hereby certifies that it has fully complied with Local
Government Code § 176.006, effective June 18, 2005, which mandates the disclosure requirements for
persons who contract or seek to contract with a local governmental entity.
e Texas
By:
Rfi027fi1