HomeMy WebLinkAboutPR 12911:3D ARCHITECTURAL METALinteroffice
MEMORANDUM
To: Mayor, City Council & City Manager ~1
From: Mark T. Sokolow, City Attorney ~g 4
Subject: P. R. No. 12911; EDC/City Joint of December ,
2004
Date: December 10, 2004
Attached is P. R. No. 12911 approving an economic incentive
agreement between the City of Port Arthur Section 4A Economic
Development Corporation and 3D Architectural Metal Sales, Inc.
MTS/ts
Attachment
z .pr12911 .memo
P. R. NO. 12911
12/09/04 ts
RESOLUTION NO.
A RESOLUTION APPROVIN~ AN ECONOMIC INCENTIVE
AGREEMENT BETWEEN THE CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
AND 3D ARCHITECTUIRAL METAL SALES, INC.
WHEREAS, it is in the public interest of the citizens for the
City of Port Arthur Section 4A Economic Development Corporation to
enter into an Economic Incentive Contract and Loan Agreement with
3D Architectural Metal Sales, InC, and
WHEREAS, 3D Architectural Metal Sales, Inc desires a grant of
$112,000 and a loan of $103,000 to construct a manufacturing
facility as to produce light gauge steel products; and
WHEI~EAS, the facility will be located adjacent to Highway 365
in Port Arthur.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TEE CITY
OF PORT ARTHUR=
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That the Executive Director of City of Port
Arthur Section 4A Economic Development Corporation is herein
authorized to execute an Economic Incentive Agreement with 3D
Architectural Metal Sales, Inc., in substantially the same forms
as attached hereto as Exhibit ~A", with an effective date
(starting date) of January 1, 2005.
Section 3. That the budget shall reflect the following:
"The recipient shall receive the grant or loan in the
following phases:
· PHASE I - Construction of Building and Disbursement of
Loan of $103,000.00.
1) Upon approval of the plans by the City's
inspection departments, the EDC will pay for
either the reimbursement or direct payment of
invoices for a 40' x 100' x 12' eave height metal
building to be constructed on Lot 7, Block 12,
Montrose Addition in the City of Port Arthur.
Each installment of loan funds will require
execution of a note and a security instrument.
2) The final payment of $23,000 of the total of
$105,000 in loan funds will only be issued after
the building is constructed to City Codes and has
received a certificate of occupancy.
Once the recipient has constructed the building to City
Code and has received a certificate of occupancy, the
funding for the Phase II expansion shall commence.
· PHASE II - Disbursement of Grant of $112,000.
The EDC will disburse up to $112,000 upon presentation
of invoices for a roll form stud machine, computer
brake, and inventory wherein UCC-1 will be issued
thereon.
Section 4. That the recipient, as well as Richard Daley
and Jeanette Daley, will also sign a Deed of Trust, Guarantees,
and other security instruments as detailed in the agreement.
Section 5. That a copy of the caption be spread upon the
Minutes of the City Council.
READ, ADOPTED AND APPROVED on this __ day Of
, A.D., 2004, at a Regular Meeting of the City
Council of the City of Port Arthur, Texas, by the following vote:
AYES: Mayor
Council Members '
NOES-
MAYOR
ATTEST:
CITY SECRETARY
APPROVED AS TO FORM:
CITY ATTORNEY
APPROVED FOR A~INISTRATION=
CITY MANAGER
APPROVED AS TO THE AVAILABILITY OF FUNDS:
DIRECTOR OF PINA-NCE
APPROVED BY CITY OF PORT ARTHUR SECTION 4A
k---~DC ~RECTOR
EXHIBIT "A"
PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION
ECONOMIC INCENTIVE CONTRACT and LOAN AGREEMENT
This Economic Incentive Contract and Loan Agreement ("Agreement') is entered into this the
__ day of ,2004, with an e~fective date of January 1,2005, by and between
the Port Arthur Economic Development Corporation and 3 D Architectural Metal Sales, Inc..
RECITALS
WHEREAS, the Recipient operates as a Texas corporation that will provide Port Arthur's
citizens with amhitectural metal roofinq manufacturinq and distribution business and iobs related to
same; and
WHEREAS, the EDC has funds derived from sales tax revenue that may be utilized for
economic development projects as defined under Article 5190.6 V.T.C.A.; and
WHEREAS, the proposed project and economic incentive agreements related to same must
be approved by the City of Port Arthur, as well as the Port Arthur Economic Development
Corporation ("PAEDC"); and
WHEREAS, projects undertaken by the Recipient pursuant to this Contract must principally
be for economic development as has been determined by the PAEDC and as established under the
guidelines of Article 5190.6 V.T.C.A., as amended;
NOW, THEREFORE, The Parties hereto do mutually agree as follows:
AGREEMENT TERMS
SECTION 1. PARTIES
This Economic Incentive Contract ("Agreement") is made and entered into by and between
the Port Arthur 4A Economic Development Corporation (hereinafter called the "EDC") acting herein
by its Executive Director, duly authorized by Resolution of the City Council of the City of Port Arthur
and 3 D Architectural Metal Sales, Inc., (hereinafter called "Recipien'~') acting herein by its President,
duly authorized by its Board of Directors. Recipient agrees by the execution hereof, that it is bound
to the obligations and to the performance of the tasks described herein.
SECTION 2. CONTRACT TERM
This Agreement shall commence on January 1,2005 and shall continue for a term of ei.qhty-
four (84) months, subject to earlier termination, voluntary or involuntary, as provided herein.
SECTION 3. PERFORMANCE BY RECIPIENT
(A) The Recipient shall relocate, modify and/or remodel its Facility within the City of Port
Arthur. Recipient has represented and warranted to the EDC, and the loan/conditional grant
provided herein has been extended in reliance upon said representations, that Recipient will employ
not less than ten (10) new full-time equivalent employees at an average wage rate of $20,000.00
annually within the initial eighty-four (84) months after the effective date hereof (the "employment
obligation"). The timing of said employment shall be as detailed in Exhibit C attached hereto and
incorporated herein for all purposes. The Recipient shall perform all activities in accordance with
the Performance Statement attached hereto as Exhibit A, the Budget attached hereto as Exhibit B,
the Project Implementation Schedule attached hereto as Exhibit C, the Applicable Laws and
Regulations attached hereto as Exhibit D, the Certifications attached hereto as Exhibit E, and the
assurances, certifications and other statements, representations and warranties made by the
Recipient in its application for the project funded under the terms and conditions of this Agreement.
It shall be Recipient's responsibility to furnish its own accounting services including clerical,
statistical and bookkeeping for expenditures made by the Recipient in performance with the
obligations detailed herein. Recipient shall receive "performance credits" in partial payment of the
Promissory Note detailed in Exhibit "E-la" as follows: For each $5.00 in l~avroll (Exc udin.q
manaqement payroll which shall be deemed to include Jeanette Daley and Richard Dale,/. Further,
credits for pa,/roll paid to Kevin Daley and Steve Daley shall be limited to no more than $20,000.0u
annuall,/each) created, Recipient will receive a $1.00 credit aqainst said Note subiect to a maximu.,
credit in year one of $16,000.00, a maximum credit in `/ear two of $24,000.00, a maximum credit i.
year three of $32,000.00 and a maximum credit in year four of $40,000.00.
(B) Loan/Collateral Documents: The Recipient shall execute and deliver to the EDC, in
conjunction with the execution of the Agreement, the following:
X (a) Commercial Promissory Notes in the form and content detailed in Exhibit "E-1 a"
and "E-lb";
N/A_ (b) Commemial Security Agreement evidenced by Exhibit "E-2";
N/A (c) Security Agreement Pledge evidenced by Exhibit "E-3";
X (d) Deed of Trust evidenced by Exhibit "E-4";
--X (e) Guaranty Agreement(s) to be executed by Jeanette Dale,/and Richard Dale,/in
the form and content evidenced by Exhibit "E-5";
N/A_ (f) UCC-1 financing statements in conjunction with Exhibit "E-2";
X (g) such Corporate Authorizations as requested by EDC; and
-'~/A (h) such other documentation detailed in Exhibit "E-6" as reasonably requested by
EDC and/or its counsel.
SECTION 4. EDC'S OBLIGATIONS
A. Conditional Fundinq Obliqations of EDC
The EDC's sole obligation to Recipient hereunder shall be to provide funding of the
loan/conditional grant, not to exceed the funding limitation declared both herein and within
the Promissory Note, for actual and reasonable costs incurred by Recipient for "Authorized
Expenditures" defined herein. This conditional funding shall be subject to limitations detailed
herein and shall further constitute the EDC's sole obligation under the terms and conditions
of this Contract.
1. It is expressly understood and agreed by the parties hereto that the EDC funding
obligations herein are contingent upon the actual receipt of adequate sales tax
revenue funds to meet the EDC's liabilities under this Agreement. If adequate funds
are not available to make payments under this Agreement, the EDC shall notify
Recipient in writing within a reasonable time after such fact is reasonably determined
by the EDC Board of Directors. The EDC, at its sole option, may then terminate this
Agreement without further liability. In the event of such termination by the EDC, the
EDC may, at its sole option, immediately cease all further funding, if any, required by
this Agreement, and the EDC shall not be liable to Recipient or to any third parties
for failure to make payments to Recipient under the terms and conditions of this
Agreement.
2. The ED(3 shall not be liable, in contract or otherwise, to the Recipient, or any person
or entity claiming by or through Recipient, for any expense, expenditure or cost
incurred by or on behalf of Recipient related to the project made the basis of this
Agreement. The EDC's sole liability/obligations, if any, shall be to Recipient and
shall be limited to the conditional funding obligations detailed in Section 4 of this
Agreement.
3. Recipient shall not use the funds conditionally granted 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 Recipient, which application is
incorporated herein for all purposes.
4. Funds conditionally granted by the EDC hereunder shall not be utilized by Recipient
for repayment of costs, expenditures or expenses incurred prior to the date of this
Agreement unless specifically disclosed in writing by Recipient as part of or incident
to Recipient's application and as specifically approved by this Agreement.
5. EDC shall not be liable for costs incurred or performances rendered by Recipient
before commencement of this Contract or after termination of this Contract.
Notwithstanding the foregoing, Recipient shall be authorized to submit for
reimbursement of Authorized Expenditures incurred prior to the execution date of
this Contract, subject to the maximum liability limit detailed in Section 4B.
B. Maximum
1. (a) Subject to the limitations provided herein, the EDC shall provide credit extensions
to Recipient in the amount of not more than $215,000.00, as detailed in Exhibits "E-
la" and "E-1 b" (the Promissory Notes), repayment of which shall be governed by the
terms of this Agreement and said Promissory Notes.
(b) The Recipient shall execute Promissory Notes, evidenced by Exhibits "E-la" and
"E-1 b", of which the conditional/partial repayment of Exhibit 1 (a) is governed herein.
SECTION 5. DEFAULT/REFUND OBLIGATIONS
A. In the event Recipient defaults in performance of its obligations hereunder, including failure
to meet the new employment schedule attached hereto as Exhibit C (Employment
Obligations) or in the event Recipient breaches its representations and warranties to the
EDC contained herein or in its application for grant, the EDC, at its sole option, may
terminate its remaining funding obligations, if any, detailed in Section 4 herein. Further, as
provided in Section 5 (B) herein, the EDC .may recover from Recipient all or a portion of the
conditional grant made the basis of this Agreement, in addition to such remedies as are
defined in Section 18 herein.
B. In the event the EDC demands that Recipient reimburse all or any part of the funds
advanced hereunder, same shall be due and payable immediately upon tender of EDC's
demand advising of Recipient's full or partial default. In the event Recipient fails to
reimburse said funds within thirty (30) days of the tender of written demand by EDC, in
addition to reimbursement of the principle funds advanced hereunder, Recipient shall further
be obligated to reimburse EDC interest on said advanced funds at the default rate detailed
within the Promissory Notes, accruing from thirty days subsequent to EDC's default notice.
Further, in the event of default and failure of the Recipient to reimburse to EDC the funds
advanced hereunder, the EDC shall further be entitled to recover its reasonable and
customary attorney's fees and costs of Court incurred in collection of said obligation.
C. It is expressly understood and agreed by the parties hereto that any right or remedy provided
for in this Section 5 or in any other provision of this Contract shall not preclude the exercise
of any other right or remedy under this Contract or under any provision of law, 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.
SECTION 6. RECORDS / INSPECTIO~I / AUDIT
A. Recipient must establish and maintain sufficient records, as reasonably determined by the
EDC, to account for the expenditure and utilization of funds received by Recipient from the
EDC under the terms and conditions of this Agreement.
B. Recipient shall maintain records of the receipt and disposition of all grant funds provided
hereunder as necessary to allow the EDC to audit and verify proper utilization of said funds
in compliance with this Agreement and the representations and warranties contained herein
and in Recipient's application. Recipient shall provide reports of utilization of said grant
funds, as reason to be requested by the EDC, and upon final termination of this contract.
C. Recipient shall give the EDC, 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 Recipient pertaining to this Agreement. Such rights to
access shall continue as long as the records are maintained by Recipient. Recipient agrees
to maintain such records in an accessible location. Recipient fur[her agrees to provide to the
EDC, not less than quarterly, such reports in a form and content acceptable to the EDC,
confirming Recipient's performance status, including pertormance related to project
construction (as may be applicable) and job creation pertormance. As to job creation
performance, such reports ~shall include such documentation substantiating the accuracy of
such reports, including, at a minimum, 941 payment reports, Texas Workforce Commission
reports, or other such reports confirming total jobs, payroll and other relevant information. In
the event the EDC prescribes a form for such reporting, Recipient shall utilize same and
attach such relevant documentation necessary to allow the EDC to verify said report without
further outside inquiry.
D. All records pertinent to this Agreement shall be retained by Recipient 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
Recipient detailing Recipient'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 year period and extends beyond the three year period, the
records will be maintained until all litigation, claims or audit findings involving this Agreement
and the records made the basis of same have been resolved. Further, records relating to
real property acquisition, including any long-term lease, shall be retained for a period equal
to the useful life of any repairs made by the Recipient utilizing EDC funds.
E. All records pertinent to this Contract shall be retained by Recipient for three years following
the date of termination of this Contract or submission of the final close-out report, whichever
is later, with the following exceptions:
1. If any litigation, claim or audit is started before the expiration of the three year period
and extends beyond the three year period, the records will be maintained until all
litigation (including any appeal), claims or audit(s) involving the records have been
resolved.
2. Records relating to real property acquisition or long-term lease shall be retained for a
period equal to the useful life of any repairs made with EDC funds.
F. Recipient shall submit to EDC such reports on the operation and performance of this
Contract as may be required by EDC including but not limited to the reports specified in this
Section 8. Recipient shall provide EDC with all reports necessary for EDC compliance with
Article 5190.6 V.T.C.A. Recipient further agrees to provide to the EDC, not less than
ouarterlv, such reports in a form and content acceptable to the EDC, confirming Recipient's
pedormance status, including performance related to project construction (as may be
applicable) and job creation performance. As to job creation performance, such reports
shall include such documentation substantiating the accuracy of such reports, including, at a
minimum, 941 payment reports, Texas Workforce Commission reports, or other such reports
confirming total jobs, payroll and other relevant information. In the event the EDC prescribes
a form for such reporting, Recipient shall utilize same and attach such relevant
documentation necessary to allow the EDC to verify said report without further outside
inquiry.
G. It is expressly understood and agreed by the parties hereto that if Recipient fails to submit to
EDC in a timely and satisfactory manner any report required by this Contract, EDC may, at
its sole discretion, withhold any or all payments otherwise due or requested by Recipient
hereunder. If EDC withholds such payments; it shall notify Recipient in writing of its decision
and the reasons therefore. Payments withheld pursuant to this paragraph may be held by
EDC until such time as the delinquent obligations for which funds are withheld are fulfilled by
Recipient. Notwithstanding the foregoing, if Recipient fails to fully and completely comply
with its reporting requirements despite written demand by EDC, after expiration of thirty (30)
days from the date of said written notice, EDC, at its sole option, may terminate this
Agreement and demand reimbursement of all, or any portion thereof, of the funds advanced
hereunder.
H. The EDC reserves the right, from time to time, to carry out field inspections/audits to ensure
compliance with the requirements of this Agreement. Recipient shall attend a compliance
meeting after the notice of award of funds provided herein and prior to the first draw of any
such funds. After completion of any such audit, the EDC, at its option, may provide the
Recipient with a written report of the audit findings. If the audit report details deficiencies in
the Recipient's performance under the terms and conditions of this Agreement, the EDC
may establish requirements for the timely correction of any such deficiencies by the
Recipient.
I. CHANGE IN CONTRACT/OWNERSHIP: In conjunction with execution of this Agreement,
Recipient has fully disclosed to EDC all owners/known potential owners of interests in
Recipient (whether stockhold or otherwise). In the event of any change in ownership or
control of Recipient of five percent (5 %) or greater, Recipient shall notify EDC in writing.
Any change in ownership or contract in excess of twenty percent (20 %) (whether individual
or aggregate) shall constitute an event of default under this Agreement, 'the Promissory Note
attached as Exhibit "E-I" and all collateral documentation at the sole discretion of EDC. In
the event of exercise of said discretion, the EDC shall be entitled to all default remedies
provided herein, within the Promissory Note or within the collateral documentation.
SECTION 10. HOLD HARMLESS
Recipient agrees to hold harmless the EDC 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.
SECTION 11. SUBCONTRACTS
A. Recipient may not subcontract for performances described in this Contract without obtaining
EDC's written approval, which may be withheld for any reason. Recipient shall only
subcontract for performance described in this Contract after Recipient has submitted
Subcontractor Eligibility Request, as specified by EDC, for each proposed subcontract, and
Recipient has obtained EDC's prior written approval, based on the information submitted, of
Recipient's intent to enter into such proposed subcontract. Recipient, in subcontracting for
any performances described in this contact, expressly understands that in entering into such
subcontracts, EDC is in no way liable to Recipient's subcontractor(s).
B. In no event shall any provision of this Section 11, specifically the requirement that Recipient
obtain EDC's prior written approval of a subcontractor's eligibility, be construed as relieving
Recipient of the responsibility for ensuring that the performances rendered under all
subcontracts are rendered so as to comply with all terms of this Contract, as if such
performances rendered were rendered by Recipient. EDC's approval under Section 11 does
not constitute adoption, ratification, or acceptance of Recipient's or subcontractor's
performance hereunder. EDC maintains the right to insist upon Contractor's full compliance
with the terms of this Contract, and by the act of approval under Section 11, EDC does not
waive any right of action which may exist or which may subsequently accrue to EDC under
this Contract.
C. Recipient, as well as all of its approved subcontractors, shall comply with all applicable
federal, state, and local laws, regulations, and ordinances for making procurement under this
Contract.
SECTION 12. CONFLICT OF INTEREST/DISCLOSURE OBLIGATION
A. Conflict of Interest: No person who (1) is an employee, agent, officer or elected or appointed
official of the City of Port Arthur or the EDC and (2) who has participated in a decision
making process (without recusing him/herself and executing a conflict affidavit) may obtain a
personal or financial interest or benefit from an EDC assisted activity, or have an interest in
any contract, subcontract, or agreement (or proceeds thereof) with respect to a EDC
assisted activity, during their tenure or for one year thereafter. Recipient shall ensure
compliance with applicable provisions under Article 5190.6 V.T.C.A. and Chapter 171 Local
Government Code V.T.C.A.
B. Disclosure: In conjunction with execution of this Agreement, Recipient has fully disclosed to
EDC all owners/known potential owners of interests in Recipient (whether stockhold or
otherwise). In the event of any change in ownership or control of Recipient of five pement (5
%) or greater, Recipient shall notify EDC in writing. Any change in ownership or contract in
excess of twenty percent (20 %) (whether individual or aggregate) shall constitute an event
of default under this Agreement, the Promissory Note attached as Exhibit "E-I" and all
collateral documentation at the sole discretion of EDC. In the event of exercise of said
discretion, the EDC shall be entitled to all default remedies provided herein, within the
Promissory Note or within the collateral documentation. Further, Recipient shall be obligated
to notify in writing the EDC Director and EDC counsel in the event any time prior to, during or
one (1) year after the term of this Agreement, any City of EDC employee or representative or
any third party with a conflict of interest (whether disclosed or not) detailed in Section 12 (A)
obtains or proposes to obtain a financial benefit, direct or indirect, from Recipient. Failure to
provide said notice immediately or no later than five (5) business days after receipt of
information detailing said violation shall constitute a default herein.
SECTION 13. NONDISCRIMINATION/EMPLOYMENT/REPORTiNG
A. Recipient 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 with
funds provided under this Contract. Funds shall be used in accordance with the following
requirements:
1. To the greatest extent feasible, opportunities for training and employment arising in
connection with the planning and carrying out of any project assisted with EDC funds
provided under this Contract be given to Port Arthur residents; and
2. To the greatest extent feasible, contracts 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.
3. The Recipient shall notify the Economic Development Corporation of employment
opportunities as to give the EDC a reasonable opportunity to forward names and
resumes of Port Arthur residents.
4. The Recipient shall advertise in the Port Arthur News as to all contracting
employment and/or training opportunities.
B. Beginning on the 6 month anniversary of the Contract and continuing at each 6 month
interval of the term of the Contract, the Recipient shall furnish to the EDC reports detailing
the total number of new full time employees hired by Recipient, with said report detailing (i)
the new employee(s) by number or otherwise so as to ensure privacy, (ii) the job
description/position, (iii) the wage rate, (iv) date of hire, (v) residence of the employee(s)
and, (vii) any other information reasonably requested by EDC, together with supporting
documentation. Further, said report shall provide similar information on all terminations
(whether voluntary or otherwise) occurring during the same period, together with supporting
documentation.
SECTION 14. LEGAL AUTHORITY
A. Recipient assures and guarantees that Recipient possesses legal and/or corporate authority
to enter into this Contract, receive funds authorized by this Contract, and to perform the
services Recipient has obligated to perform hereunder and has provided, and will in the
future provide, as requested by the EDC, such corporate resolutions necessary to evidence
this authority.
The person or persons signing and executing this Contract on behalf of Recipient, or
representing themselves as signing and executing this Contract on behalf of Recipient, do
hereby warrant and guarantee that he, she or they have been duly authorized by Recipient
to execute this Contract on behalf of Recipient and to validly and legally bind Recipient to all
terms, performances, and provisions herein set forth.
B. Identity of Officers/Directors/Shareholders of Recipient shall be disclosed in writing annually
to EDC within ten (10) days of the Recipient's annual meeting but in no event later than
March 31 of any calendar year. This disclosure shall be in addition to change in control
disclosure required by Section 9 (I) hereinabove.
SECTION 15. LITIGATION AND CLAIMS
Recipient shall give EDC immediate notice in writing of 1) any legal or regulatory action, including
any proceeding before an administrative agency filed against Recipient, directly or indirectly, in
compliance with this Contract; and 2) any material claim against Recipient which may impact
continued operations. For purposes herein, "material" claims shall mean claims in excess of
$50,000.00 not fully insured. Except as otherwise directed by EDC, Recipient shall furnish
immediately to EDC copies of all pertinent documentation of any kind received by Recipient with
respect to such action or claim.
SECTION 16. CHANGES AND AMENDMENTS
A. Except as specifically provided otherwise in this Contract, any alterations, additions, or
deletions to the terms of this Contract shall be by amendment in writing and executed by
both parties to this Contract.
B. It is understood and agreed by the parties hereto that performances under this Contract
must be rendered in accordance with Article 5190.6 V.T.C.A., the regulations promulgated
under Article 5190.6 V.T.C.A., the assurances and certifications made to EDC by Recipient,
and the assurances and certifications made the City of Port Arthur with regard to the
operation of the EDC's Projects. Based on these considerations, and in order to ensure the
legal and effective performance of this Contract by both parties, it is agreed by the parties
hereto that the performances under this Contract are by the provisions of the EDC Program
and any amendments thereto and may further be amended in the following manner: EDC
may from time to time during the 'period of performance of this Contract issue policy
directives which serve to establish, interpret, or clarify performance requirements under this
Contract. Such policy directives shall be promulgated by the Executive Director when
authorized by the City Council of Port Arthur and the EDC Board of Directors in the form of
EDC issuances shall have the effect of qualifying the terms of this Contract and shall be
binding upon Recipient, as if written herein.
C. Any alterations, additions, or deletions to the terms of this Contract which are required by
changes in Federal, state law or local law are automatically incorporated into this Contract
without written amendment hereto, and shall become effective on the date designated by
such law or regulation.
SECTION t7. DEFAULT/TERMINATION
In the event of default of any of the obligations of the Recipient detailed herein or in the event of
breach of any of the representations of or warranties of Recipient either detailed herein or in
Recipient's application to the EDC, the EDC may, at its sole option, terminate this Agreement, in
whole or in part. In the event of such termination, in addition to (i) any other remedies available to
the EDC as provided by the laws of the State of Texas or (ii) any other remedies available to the
EDC as provided herein, the EDC may, at its sole option, utilize one or more of the following actions
to resolve or otherwise remedy said default:
1. Exercise any remedies provided herein and/or within the Loan/Collateral Documents
identified in Section 3 (B).
2. Withhold, whether temporarily or otherwise, disbursement of grant proceeds
pending correction of the deficiency(s) by Recipient;
3. Disallow all or a part of the grant expenditure which is not in compliance with the
terms and conditions of this Agreement or in compliance with the representations
and warranties contained within this Agreement and the Recipient's application to
the EDC;
4. Withhold and/or disallow further EDC grants to the Recipient;
5. Take any and all other remedies that may be legally available to the EDC, as
authorized by the terms and conditions of this Agreement and as may be authorized
by the laws of the State of Texas; and
6. Notwithstanding the foregoing, if Recipient fails to fully and completely comply with
its obligations hereunder despite written demand by EDC, after expiration of thirty
(30) days from the date of said written notice, EDC, at its sole option, may terminate
this Agreement and demand reimbursement of all, or any portion thereof, of the
funds advanced hereunder as provided more particularly in Section 5 (B)
hereinabove.
7. Declare the Promissory Notes executed in conjunction with this Agreement
immediately due and payable, in full and exercise its default remedies provided
under collateral documentation (Deed of Trust, Security Agreement and/or Pledge)
executed in conjunction with said Note and this Agreement.
In addition to the foregoing, the parties agree that this Agreement may be terminated at any time
when both parties agree, in writing, to the terms and conditions of any such voluntary termination.
SECTION 18. AUDIT
A. Unless otherwise directed by EDC, Recipient shall arrange for the performance of an annual
financial and compliance audit of funds received and performances rendered under this
Contract, subject to the following conditions and limitations:
1. Recipient shall have an audit, which audit may be limited to use of funds received
from the EDC, made for any of its fiscal years included within the contract period
specified in Section 2 of this Contract in which the Recipient receives more than
$25,000 in EDC financial assistance provided by EDC in the form of grants,
contracts, loans, loan guarantees, property, cooperative agreements, interest
subsidies, or direct appropriations. Backup documentation regarding actual
expenditures shall be provided by the Recipient. Said audit must be received and
accepted by the Director of the Recipient and/or the Board of Directors of the
Recipient.
2. At the option of Recipient, each audit required by this section may cover either
Recipient's entire operations or each department, agency, or establishment of
Recipient which received, expended, or otherwise administered EDC funds;
3. Unless otherwise specifically authorized by EDC in writing, Recipient shall submit the
report of such audit to EDC 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 period of this Contract.
4. As a part of its audit, Recipient shall verify expenditures according to the Budget
attached as Exhibit B. Any discrepancies in excess of $1,000 shall be specifically
documented in writing.
B. Notwithstanding Subsection A of this Section 19, EDC reserves the right to conduct annual
and/or semiannual financial and compliance audit(s) of funds received and performances
rendered under this Contract. Recipient agrees to permit EDC or its authorized
representative to audit Recipient's records and to obtain any documents, materials, or
information necessary to facilitate si~ch audit.
C. Recipient understands and agrees that it shall be liable to immediately reimburse EDC for
any costs disallowed pursuant to financial.and compliance audit(s) of funds received under
this Contract.
D. Recipient shall take all necessary actions to facilitate the performance of any and all such
audits, whether annual, mandatory or otherwise requested under this Agreement, including
audits conducted pursuant to this Section 18.
E. Subject to financial primary requirements and properly designated requests for non-
disclaimer due to proprietary reasons, all approved EDC audit reports may be made
available for public inspection.
F. EDC shall not release any funds for costs incurred by Recipient under this Contract until
EDC has received certification from Recipient that its fiscal control and fund accounting
l0
procedures are adequate to assure proper disbursal of and accounting for funds provided
under this Contract. EDC shall specify the content and form of such certification.
SECTION 19. ENVIRONMENTAL CLEARANCE REQUIREMENTS
A. Recipient understands and agrees that by execution of this Contract Recipient shall be
responsible for providing to EDC all information, concerning this EDC funded project,
required for EDC to meet its responsibilities for environmental review, decision making, and
other action which applies to EDC in accordance with and to the extent specified in Federal,
State and Local Law. Recipient further understands and agrees that Recipient shall make
all reasonable efforts to assist EDC in handling inquiries and complaints from persons and
agencies seeking redress in relation to environmental reviews covered by approved
certifications.
SECTION 20. ORAL AND WRITTEN CONTRACTS/PRIOR AGREEMENTS
A. All oral and written contracts between the parties to this Contract relating to the subject
matter of this Contract that were made prior to the execution of this Contract have been
reduced to writing and are contained in this Contract.
B. The attachments enumerated and denominated below are hereby made a part of this
Contract, and constitute promised per[ormances by Recipient in accordance with Section 3
of this Contract:
1. Exhibit A, Pedormance Statement
2. Exhibit B, Budget (where applicable)
3. Exhibit C, Project Implementation Schedule
4. Exhibit D, Applicable Laws and Regulations
5. Exhibit E, Certifications
SECTION 21. VENUE
For purposes of collection litigation pursuant to this Contract, venue shall lie in Jefferson County,
Texas.
SECTION 22. ARBITRATION
Recipient agrees that any disputes related to this Agreement shall be resolved through binding
arbitration. The arbitration proceeding shall take place in Jefferson County, Texas unless both
parties agree otherwise. Further, the arbitrator shall be selected by the parties and in the event the
parties do not agree as to the selection of an arbitrator, the dispute shall be arbitrated by the
American Arbitration Association and the Houston office of the American Arbitration Association
shall be authorized to select the arbitrator utilizing its normal selection procedures.
NOTWITHSTANDING THE FOREGOING, ANY AND ALL COLLECTION LITIGATION
ASSOCIATED WITH THIS AGREEMENT, THE PROMISSORY NOTE OR OTHER LOAN AND
COLLATERAL DOCUMENTATION IN THE EVENT OF DEFAULT BY RECIPIENT AS DECLARED
BY THE EDC IS EXCLUDED FROM ARBITRATION.
]]
SECTION 23. ADDRESS OF NOTICE AND COMMUNICATIONS
Port Arthur Economic Development Corporation
444 4th Street
Port Arthur, Texas 77640
ATTN: Ignacious "lke" Mills, Executive Director
3 D Architectural Metal Sales, Inc.
101 West Hwy. 365
Port Arthur, Texas 77640
ATTN: Jeanette Daley, President
SECTION 24. CAPTIONS
Each paragraph of this Contract has been supplied with a caption to serve only as a guide to
contents. The caption does not control the meaning of any paragraph or in any way determine its
interpretation or application.
SECTION 25. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
Recipient 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 related to the
activities and performances of Recipient under this Contract. Upon request by City, Recipient shall
furnish satisfactory proof of its compliance herewith.
APPROVED AS TO FORM:
Mark T. Sokolow, City Attorney
SIGNED on the day of ,2004.
Port Arthur Economic Development
Corporation
By:
Executive Director
Witnessed
SIGNED on the .day of ,2004.
(Recipient)
3 D Architectural Metal Sales, inc.
By:
Its:
Witnessed
EXHIBIT A
Performance Statement
Recipient's performance:
Recipient shall complete construction of the Facility as defined and detailed in Section 3.
Funding Parameters:
Upon execution of this Contract and the Promissory Note and related Other Loan and Collateral
Documentation, Recipient shall receive a loan, the funding of which shall be
and the repayment of which may be forgiven, in whole or in part, pursuant to the terms of this
Agreement. The funds shall be utilized by Recipient and/or advanced on behalf of Recipient solely
for costs related to "Authorized Expenditures" as defined within the Agreement. As detailed therein,
Authorized Expenditures shall be limited to expenses detailed in Recipient Budget attached hereto
as Exhibit B including costs incurred by or on behalf of the Recipient related to (i) construction of the
Facility, (ii) acquisition and/or construction of fixtures within the Facility, and/or (iii) acquisition and/or
installation of equipment, furniture and fixtures to be utilized in operation of the business operations
which comprise the Facilities, including the architectural metal rOofing manufacturing and distribution
facility. Funds hereunder shall be advanced to Recipient by EDC, subject to the maximum sum of
$215,000.00, solely to reimburse Recipient for the Authorized Expenditures detailed hereinabove,
with verification related to said Authorized Expenditures being provided to the EDC, prior to funding,
in the form of invoices, purchase orders or other appropriate documentation which would be
reasonably necessary to allow the EDC to verify that the requested advance and/or reimbursement
are for costs/expenses which constitute Authorized Expenditures. Recipient agrees to complete
construction of the Facility and complete acquisition of all furniture, fixtures, equipment, software
and other components utilized in operation Of the Facility within twelve (12) months of the effective
date of this Agreement.
Administrative Costs:
Recipient shall utilize its own funds to carry out all project administration activities, including the
costs associated with the required annual program in compliance in fiscal audits as detailed in the
Agreement. It is further understood that any costs incurred by Recipient for these activities shall be
paid with private and/or other funds.
]4
EXHIBIT B
Budget
EXHIBIT C
Project Implementation Schedule
CONTRACT START DATE:, CONTRACT ENDING DATE:,
IMPLEMENTATION SCHEDULE
MONTHS
Activities 6 12 24 36 48 60 72 84
Construction/Start up X
General Administration X X x X x X X X
Final Report & Close-out X
New Full-Time Equivalent
Jobs (aggregate) 4 6 8 10 10 10 10
· Recipient shall complete construction of the Facility, including construction,
acquisition and installation of all furniture, fixtures, equipment, software and other
components utilized in operation of the Facility and commence actual operation of the
Facility, including all businesses located therein, on or before the expiration of eighty
four (84) months from the effective date of this Contract.
· Recipient shall operate continuously the Facility for a minimum period of eighty four
(84) months, which eighty-four (84) months shall commence from the effective date of
this Contract.
EXHIBIT D
The Applicable Laws and Regulations
Recipient shall comply with all federal, state, and local laws and regulations applicable to the
activities and performances rendered by Recipient under this Contract including, but not limited to,
the civil rights laws and regulations as well as Articles 5190.6 V.T.C.A.
EXHIBIT E
Certification Regarding Lobbying for
Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his knowledge and belief, that:
1. No federal appropriated 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 congress, an officer or employee of
congress, or an employee of a member of congress in connection with the awarding
of any federal contract, the making of any federal grant, the making of any federal
loan, the entering into of any cooperative agreement, or modification of any federal
contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to
any person for influencing or attempting to influence an officer or employee of any
agency, a member of congress, an officer or employee of congress, or an employee
of a member of congress in connection with this federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit standard form
-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions.
3. 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 Sub-recipients 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 imposed by section 1352, Title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than $100,000 for each such
failure.
Signed: , Recipient
By:
Its:
Date:
EXHIBIT "E-la"
COMMERCIAL PROMISSORY NOTE
,2004 $112,000.00
Port Arthur, Texas
FOR VALUE RECEIVED, the undersigned (hereinafter called "Maker", whether one or more, and
if more than one, then jointly and severally) promise(s) to pay to the order of PORT ARTHUR
ECONOMIC DEVELOPMENT CORPORATION, a 4A development corporation (herein called
"Lender"), at its office at P.O. Box 1089, Port Arthur, Texas 77640,. or such other place or places as
the holder hereof shall from time to time designate in written not, ce to Maker, the sum of ONE
HUNDRED TWELVE THOUSAND AND NO/100 ($112,000.00) DOLLARS, in legal and lawful
money of the United States of America, together with interest thereon from the date hereof until
- - ~ ~ ^0% -'er armum as detailed herein. Notwithstanding anything to the
maturity at the rare m u.v F
contrary contained herein, absent a prior default by Maker and a resulting acceleration of maturity
date, this note shall not begin to accrue interest until the expiration of forty-eight (48) months after
the date of advance of the funds provided hereunder.
· ci al and interest shall bear interest from date of maturity until paid at the
, ~A,11,p~st, ~ue pnn_~, (1 ~O/o~ ncr annum, or (b) at the maximum rate of non-us, uriou~ in?re~_t
lesser ot [a) elgmeen per¢~**~ ,* v .., v . .~ _ .~-, .u,,,,,~ h,,/~w as may hereafter oe m
allowed from nme to t~me by law as now, or to me ~x~c~, m~,~ ..... ~ .__, .
effect, payable on demand after maturity.
Interest shall be computed on a per annum basis of a year of three hundred sixty (360) days
. er of da s (including the first but excluding the last day) elapsed, unless
and for the actual numb . . Y - · ~ · ' ' case interest shall be calculated
' would result m a usurious rate of ~nterest, m which · ' as the
such calculanon . dred six -five 365) or three hundred stxty-s~x (366) days,
on a per annum bas~s of three hun ty (
case may be.
This note is due and payable as follows. On demand; which demand may not be
made on or before 2008 absent a default by Maker in its
obligations under that certain Economid'Lncentive Agreement defined hereinafter.
THIS LOAN IS DUE AND PAYABLE IN FULL ON OR BEFORE
2008. AT MATURITY MAKER
MUST REPAY THE EN'IiKT~ PRINCIPAL BALANCE OF THE
LOAN AND UNPAID INTEREST THEN DUE. LENDER IS
UNDER NO OBLIGATION TO REFINANCE THE LOAN AT
THAT TIME. MAKER WILL THEREFORE BE REQUIRED TO
MAKE PAYMENT OUT OF OTHER ASSETS IT MAY OWN,
OR IT WILL HAVE TO FIND A LENDER WILLING TO LEND
IT THE MONEY AT pREVAILING MARKET RATES, WHICH
MAY BE CONSIDERABLY HIGHER THAN THE INTEREST
ON THIS LOAN. IF MAKER REFINANCES THIS LOAN AT
MATURITY, IT MAY HAVE TO PAY SOME OR ALL OF THE
CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW
LOAN EVEN IF IT OBTAINS REFINANCING FROM THE
SAME LENDER.
Any notices required or permitted to be given by the holder hereof to Maker pursuant to the
provisions of this note shall be in writing and shall be either personally delivered or transmitted by
first 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.
Prior to maturity of this note, whether by acceleration or otherwise, Maker agrees to pay
Lender a late payment service charge (a "Late Charge") to cover the extra expense of handling
delinquent payments in an mount equal to five percent (5%) of any installment not received by
Lender within fifteen (15) days after such installment is due. The Late Charge will be collected
only once on any late payment. The Late Charge will be paid promptly upon Lender's notice
thereof to Maker.
THE FUNDS ADVANCED HEREUNDER AND PAYMENT OF THIS NOTE ARE
BEING MADE PURSUANT TO THAT CERTAIN ECONOMIC INCENTIVE
CONTRACT AND LOAN AGREEMENT ("INCENTIVE AGREEMENT") OF EVEN
DATE ENTERED INTO BY AND BETWEEN MAKER AND LENDER. pREPAYMENT
OF THIS DEBT SHALL BE GOVERNED NOT ONLY BY THE TERMS OF THIS NOTE
AND THE COLLATERAL DOCUMENTATION EXECUTED IN CONJUNCTION WITH
SAME, AND BUT SHALL ALSO BE GOVERNED BY THE TERMS OF THE SUBJECT
INCENTIVE AGREEMENT WHICH MAY PROVIDE, AMONG OTHER THINGS, FOR
NON-PAYMENT RELATED CREDITS IN PARTIAL SATISFACTION OF THIS NOTE
IN CONJUNCTION WITH PERFORMANCE CRITERIA DETAILED WITHIN THE
INCENTIVE CONTRACT.
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 included those executed simultaneously
herewith, those heretofore executed, and those hereafter executed.
If any installment or payment of,p_rincipal or interest of this note is not paid when due; or if
Maker defaults incident to any of Maker s obligations under the terms and conditions of that certain
Economic Incentive Cuntract and Loan Agreement between Maker and Lender of even date and as
a result of same, Lender declares Maker to be in default of said Economic Inventive Contract and
Loan Agreement; or if Maker or any drawer, accepter, endorser, guarantor, 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 commenced against Maker
or any other liable party, or with respect to any property of any of them; or if any govenunental
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 notice 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 furnish financial information requested by
Lender; or if Maker or any other liable party furnishes or has furnished any financial or other
infom~ation or statements which are misleading in any respect; or if a default occurs under any
2
instrument now or hereafter executed in connection with or as security for this note; or any event
occurs or condition exists which causes Lender to in good faith deem itself insecure or to 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, protest or 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
coitS and a reaionable 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 circumstances 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, reftmded 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 automaticmiy 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).
This note shall be construed under and governed by the laws of the State of Texas (including
applicable federal law), but in any event Tex. Rev. Civ. Stat. Ann. art. 5069 ch. 15 (which regulates
certain revolving loan accounts and revolving triparty accounts) shall not apply to the loan
evidenced by this note. Unless changed in accordance with law, the applicable rate ceiling under
Texas law shall be the indicated (weekly) rate ceiling in effect as provided in Tex. Rev. Civ. Stat.
Ann. art. 506%1.04, as amended; except, however, if any other lawful rate exceeds the indicated
(weekly) ceiling rate referenced above, then such higher ceiling rate shall apply.
Maker may prepay all or any part of the principal of this note before maturity without
~enalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to continue
Caying the installments herein provided on their respective due dates following any such partial
prepayment until this note is fully paid.
The Maker and each other liable party are and shall be directly and primarily, jointly and
severally, liable for the payment of all sums called for hereunder; and, except for notices
3
~?ifically required to be given by the holder hereof to Maker pursuant to the earlier provisions of
s note, Maker and each other liable party hereby expressly waive demand, presentment for
ayment, notice of nonpayment, protest, notice of protest, notice of intention to accelerate maturity,
Pnotice 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 herefor 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 part hereof, either before or after maturity, all without any notice thereof to any of them and
without affecting or releasing the liability of any of them. Each other liable party does further agree
that it will not be necessary for the holder hereof, in order to enforce .payment of this note by such
other liable party, to first institute suit or exhaust its remedies agmnst Maker or any other liable
party or to enforce its rights against any security therefor.
3 D 31~HITECTURAL METAL SALES, 1NC.
By.
?
NarmS: Jeanette Dale'/
Title: President
"Maker"
MAKER'S ADDRESS FOR RECEIPT OF NOTICE:
3 D Architectural Metal Sales, Inc.
Arm: Jeanette Daley
101 West Hwy. 365
Port Arthur, TX 77640
EXHIBIT "E-i" b.
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas ,2004__ $_103,000.00
FOR VALUE RECEIVED, the undersigned (hereinafter called "Maker", whether one or more, and
if more than one, then jointly and severally) promise(s) to pay to the order of PORT ARTHUR
~CON_O,,,MIC DEVELOPMENT CORPOi~TION, a 4A development corporation (herein called
Lender ), at its office at P.O. Box 1089, Port Arthur, Texas 77640, or such other place or places as
the holder hereof shall from time to time designate in written notice to Maker, the sum of ONE
HUNDRED THREE THOUSAND AND NO/100 ($103,000.00) DOLLARS, in legal and
lawful money of the United States of Amefi-~a, together with interest thereon from the date hereof
~x~ltr,~tnrltv at the rate of 6.00°/o l~er annum as detailed herein. No .t.w. ithstand,ing..anythiong t.o ~e
~o~a~ed herein, absent dprior default by Maker and a resultxng acce~eranon oxmamrny
date, this note shall not beg/n to accrue interest until the expiration of TWELVE (12) months after
the date of advance of the funds provided hereunder.
All past due ~ori/'ncipal and interest shall bear interest from date of maturity until paid at the
lesser of 6 percent (6 '/o) per annum, or to the extent allowed by law, as may hereafter be in effect,
payable on demand after maturity.
Interest shall be computed on a per annum basis of a year of three hundred sixty (360) days
and for the actual number of days (including the first but excluding the last day) elapsed, unless
such calculation would result in a usurious rate of interest, in which case interest shall be calculated
on a per annum basis of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the
case may be.
This note is due and payable as follows. On demand; if no demand, then:
In SEVENTY-TWO (72) consecutive equal monthly installments of
$1,698.51, including interest, or more each. An interest only
payment of $6,899.58 will be due and payable on or before January
10, 2006, and the first installment is payable on or before Janua~ 10,
2006, and a like installment is payable on or before the same day of
each succeeding month, with a 72n° and final installm.ent cons!st!ng
of the entire unpaid balance of principal and accrued interest I>elng
due and payable on or before December 10, 2011. Each installment
will be applied first to the paym.en~t of a.c.er?ed int,.ere,st, paya?l _e,_.o~n_tho~
unpaid principal, and the remalnaer WlU De appnea to reuuct~on
principal.
THIS LOAN IS DUE AND PAYABLE IN FULL ON OR BEFORE
DECEMBER 10, 2011. AT MATURITY MAKER MUST REPAY THE
ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID
1NTEREST THEN DUE. LENDER IS UNDER NO OBLIGATION TO
REFINANCE THE LOAN AT THAT TIME. MAKER WILL
THEREFORE BE REQUIRED TO MAKE PAYMENT OUT OF OTHER
ASSETS IT MAY OWN, OR IT WILL HAVE TO FIND A LENDER
WILLING TO LEND IT THE MONEY AT PREVAILING MARKET
RATES, WHICH MAY BE CONSIDERABLY HIGHER THAN THE
INTEREST ON THIS LOAN. IF MAKER REFINANCES THIS LOAN
AT MATURITY, IT MAY HAVE TO PAY SOME OR ALL OF THE
CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW
LOAN EVEN IF IT OBTAINS REFiNANCING FROM THE SAME
LENDER.
Any notices required or permitted to be given by the holder hereof to Maker pursuant to the
provisions of this note shall be in writing and shall be either personally delivered or transmitted by
first 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.
Prior to maturity of this note, whether by~.accel,e,,ration or o~erwi~e, Maker agreoe, s to~,p, ay
Lender a late payment service charge (a "Late ~narge ) to cover me extra expense m nanm~ng
delinquent payments in an amount equal to five percent (5%) of any installment not received by
Lender within fifteen (15) days after such installment is due. The Late Charge will be collected
only once on any late payment. The Late Charge will be paid promptly upon Lender's notice
thereof to Maker.
TIlE FUNDS ADVANCED HEREUNDER AND PAYMENT OF THIS NOTE ARE
BEING MADE PURSUANT TO TIlAT CERTAIN ECONOMIC INCENTIVE
CONTRACT AND LOAN AGREEMENT ("INCENTIVE AGREEMENT") OF EVEN
DATE ENTERED INTO BY AND BETWEEN MAKER AND LENDER. pREPAYMENT
OF THIS DEBT SItALL BE GOVERNED NOT ONLY BY TIlE TERMS OF TItIS NOTE
AND TIlE COLLATERAL DOCUMENTATION EXECUTED IN CONJUNCTION WITH
SAME, AND BUT SIlALL ALSO BE GOVERNED BY THE TERMS OF THE SUBJECT
INCENTIVE AGREEMENT WltICII MAY PROVIDE, AMONG OTBER TIlINGS, FOR
NON-PAYMENT RELATED CREDITS IN PARTIAL SATISFACTION OF Tills NOTE
IN CONJUNCTION WITH PERFORMANCE CRITERIA DETAILED WITHIN THE
INCENTIVE CONTRACT.
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 execut, ed .by Maker,or .by,,ap.y ,ot ~h~ ~arty as sec. ~ur~W_..f__o_r_,,a~..Y~loOusa~
owing by Maker to the Lender. Such hen ~nstruments shall lnctuoen mose execmeu s~mmtmx*uu y
herewith, those heretofore executed, and those hereafter executed.
If any installment or payment of,p_rincipal or interest of this note is not paid when due; or if
Maker defaults incident to any of Maker s obligations under the terms and conditions of that certain
Economic Incentive Contract and Loan Agreement between Maker and Lender of even date and as
a result of same, Lender declares Maker to be in default of said Economic Inventive Contract and
Loan Agreement; or if Maker or any drawer, accepter, endorser, guarantor, surety, acx:ommodation
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 commenced against Maker
or any other liable party, or with respect to any property of any of them; or if any g.ovemmental
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 app, ointed for
or take possession of the property of, or a writ or order o.,f att,a.c ,l,w,n, ent o.r .gam!~shmen. t s~h_~a!! b~_e ~i~s~SUfoe~r
or made against any of the property of. Maker o.,r any~ omer ?.o,~e,p,_a_,r~_,_, ~or_,~_~Y~_a~e:oje.~n~a.
which Maker or any other hable party ~s pnmamy or seconaamy name snm~ nut u*
2
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 notice or otherwise; or if Maker or any other liab. le p.arty (if other
than a natural person) shall be dissolved, .woun.d up, liquidated° o.r o~erwise.t~ ,elm, ~,nated, or a p.,arty
to any merger or consolidation without the written consent or ~enoer; or ~I haa~er or any omer
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 pa~:y fails to furnish financial information requested by
Lender; or if Maker or any other liable party furnishes or has furnished any financial or other
information or statements which are misleading in any respect; or if a default occurs under any
insmunent now or hereafter executed in connection with or as security for this note; or any event
occurs or condition exists which causes Lender to in good faith deem itself insecure or to 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, protest or 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 othenvise 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 circumstances 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 fi.om 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 noie 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).
This note shall be construed under and governed by the laws of the State of Texas (including
applicable federal law), but in any event Tex. Rev. Civ. Stat. Ann. art. 5069 ch. 15 (which regulates
certain revolving loan accounts and revolving triparty accounts) shall not apply to the loan
evidenced by this note. Unless changed in accordance with law, the applicable rate ceiling under
Texas law shall be the indicated (weekly) rate ceiling in effect as provided in Tex. Rev. Civ. Stat.
Ann. art. 5069-1.04, as amended; except, however, if any other lawful rate exceeds the indicated
3
(weekly) ceiling rate referenced above, then such higher ceiling rate shall apply.
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 herein provided or/their respective due dates following any such partial
prepayment until this note is fully paid.
The Maker and each other liable party are and shall be directly and primarily, jointly and
severally, 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 Ior
payment, notice of nonpayment, protest, notice of protest, notice of intention to accelerate 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 herefor 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 part hereof, either before or afier maturity, all without any notice thereof to any of them and
without affecting or releasing the liability of any of them. Each~ other liable par[y~ .d. oes .fu~t, her a,gree
that it will not be necessary tbr the holder hereof, in order to enlorce payment otthls note oy SUCh
other liable party, to first institute suit or exhaust its remedies against Maker or any other liable
party or to enforce its rights against any security therefor.
By:
Name:_Jeanette Daley
Title: President
"Maker"
MAKER'S ADDRESS FOR RECEIPT OF NOTICE:
3 D Architectural Metal Sales, Inc.
ATTN: Jeanette Daley
101 West Hwy 365
Port Arthur, TX 77640
12/10/Z00 4:07.:41 PM Po le 1
3D
Compound Period ......... Monthly
Nominal Annual Rate .... 6.000 %
CASH FLQW DATA
Event Date Amount Number Period End Date
1 Loan 12/10/2004 103,000.00 1
2 Payment 01/10/2006 6,899.58 1
3 Payment 01/10/2006 1,698.51 72 Monthly 12/10/2011
AMORTIZATION SCHEDULE- Normal Amortization
Date Payment Interest Principal Balance
Loan 12/10/2004 103,000.00
2004 Totals 0.00 0.00 0.00
6,899.58 0.00 103,000.00
1 01/10/2006 6,899.58 ~,
2 01/10/2006 1,698.51 0.00 1,698.51 101,301.49
3 02/10/2006 1,698.51 506.51 1,192.00 100,109.49
4 03/10/2006 1,698.51 500.55 1,197.96 98,911.53
5 04/10/2006 1,698.51 494.56 1,203.95 97,707.58
6 05/10/2006 1,698.51 488.54 1,209.97 96,497.61
7 06/10/2006 1,698.51 482.49 1,216.02 95,281.59
8 07/10/2006 1,698.51 476.41 1,222.10 94,059.49
9 08/10/2006 1,698.51 470.30 1,228.21 92,831.28
10 09/10/2006 1,698.51 464.16 1,234.35 91,596.93
11 10/10/2006 1,698.51 457.98 1,240.53 90,356.40
12 11/10/2006 1,698.51 451.78 1,246.73 89,109.67
13 12/10/2006 1,698.51 445.55 1,252.96 87,856.71
2006 Totals 27,281.70 12,138.41 15,143.29
14 01/10/2007 1,698.51 439.28 1,259.23 86,597.48
15 02/10/2007 1,698.51 432.99 1,265.52 85,331.96
16 03/10/2007 1,698.51 426.66 1,271.85 84,060.11
17 04/10/2007 1,698.51 420.30 1,278.21 82,781.90
18 05/10/2007 1,698.51 413.91 1,284.60 81,497.30
19 06/10/2007 1,698.51 407.49 1,291.02 80,206.28
20 07/10/2007 1,698.51 401.03 1,297.48 78,908.80
21 08/10/2007 1,698.51 394.54 1,30397 77,604.83
22 09/10/2007 1,698.51 388.02 1,310.49 76,294.34
23 10/10/2007 1,698.51 381.47 1,317.04 74,977.30
24 11/10/2007 1,698.51 374.89 1,323.62 73,653.68
25 12/10/2007 1,698.51 368.27 1,330.24 72,323.44
2007 Totals 20,382.12 4,848.85 15,533.27
26 01/10/2008 1,698.51 361.62 1,336.89 70,986.55
27 02/10/2008 1,698.51 354.93 1,343.58 69,642.97
28 03/10/2008 1,698.51 348.21 1,350.30 68,292.67
12/10/2004 4:02;41 PM Page
3D
Date Payment Interest Principal Balance
29 04/10/2008 1,698.51 341.46 1,357.05 66,935.62
30 05/10/2008 1,698.51 334.68 1,363.83 65,571.79
31 06/10/2008 1,698.51 327.86 1,370.65 64,201.14
32 07/10/2008 1,698.51 321.01 1,377.50 62,823.64
33 08/10/2008 1,698.51 314.12 1,384.39 61,439.25
34 09/10/2008 1,698.51 307.20 1,391.31 60,047.94
35 10/10/2008 1,698.51 300.24 1,398.27 58,649.67
36 11/10/2008 1,698.51 293.25 1,405.26 57,244.41
37 12/10/2008 1,698.51 286.22 1,412.29 55,832.12
2008 Totals 20,382.12 3,890.80 16,491.32
38 01/10/2009 1,698.51 279.16 1,419.35 54,412.77
39 02/10/2009 1,698.51 272.06 1,426.45 52,986.32
40 03/10/2009 1,698.51 264.93 1,433.58 51,552.74
41 04/10/2009 1,698.51 257.76 1,440.75 50,111.99
42 05/10/2009 1,698.51 250.56 1,447.95 48,664.04
43 06/10/2009 1,698.51 243.32 1,455.19 47,208.85
44 07/10/2009 1,698.51 236.04 1,462.47 45,746.38
45 08/10/2009 1,698.51 228.73 1,469.78 44,276.60
46 09/10/2009 1,698.51 221.38 1,477.13 42,799.47
47 10/10/2009 1,698.51 214.00 1,484.51 41,314.96
48 11/10/2009 1,698.51 206.57 1,491.94 39,823.02
49 12/10/2009 1,698.51 199.12 1,499.39 38,323.63
2009 Totals 20,382.12 2,873.63 17,508.49
50 01/10/2010 1,698.51 191.62 1,506.89 36,816.74
51 02/10/2010 1,698.51 184.08 1,514.43 35,302.31
52 03/10/2010 1,698.51 176.51 1,522.00 33,780.31
53 04/10/2010 1,698.51 168.90 1,529.61 32,250.70
54 05/10/2010 1,698.51 161.25 1,537.26 30,713.44
55 06/10/2010 1,698.51 153.57 1,544.94 29,168.50
56 07/10/2010 1,698.51 145.84 1,552.67 27,615.83
57 08/10/2010 1,698.51 138.08 1,560.43 26,055.40
58 09/10/2010 1,698.51 130.28 1,568.23 24,487.17
59 10/10/2010 1,698.51 122.44 1,576.07 22,911.10
60 11/10/2010 1,698.51 114.56 1,583.95 21,327.15
61 12/10/2010 1,698.51 106.64 1,591.87 19,735.28
2010 Totals 20,382.12 1,793.77 18,588.35
62 01/10/2011 1,698.51 98.68 1,599.83 18,135.45
63 02/10/2011 1,698.51 90.68 1,607.83 16,527.62
64 03/10/2011 1,698.51 82.64 1,615.87 14,911.75
65 04/10/2011 1,698.51 74.56 1,623.95 13,287.80
66 05/10/2011 1,698.51 66.44 1,632.07 11,655.73
67 06/10/2011 1,698.51 58.28 1,640.23 10,015.50
68 07/10/2011 1,698.51 50.08 1,648.43 8,367.07
69 08/10/2011 1,698.51 41.84 1,656.67 6,710.40
70 09/10/2011 1,698.51 33.55 1,664.96 5,045.44
71 10/10/2011 1,698.51 25.23 1,673.28 3,372.16
12/10/2004 4:02:41 PM Page
3D
Date Payment Interest Principal Balance
72 11/10/2011 1,698.51 16.86 1,681.65 1,690.51
73 12/10/2011 1,698.51 8.00 1,690.51 0.00
2011 Totals 20,382.12 646.84 19,735.28
Grand Totals 129,192.30 26,192.30 103,000.00
EXHIBIT "E-4"
DEED OF TRUST
Date: ,2004__
Grantor: 3 D ARCHITECTURAL METAL SALES, INC.
Grantor's Mailing Address 101 West Highway 365
(including county): Port Arthur, TX 77640
(Jefferson County)
Jeanette Daley
101 West Highway 365
Port Arthur, TX 77640
(Jefferson County)
Richard J. Daley
101 West Highway 365
Port Arthur, TX 77640
(Jefferson County)
Trustee: Mark T. Sokolow
Tmstee's Mailing Address
(including county): 444 4th Street
P.O. Box 1089
Port Arthur, Texas 77641-1089
(Jefferson County)
Beneficiary: PORT ARTHUR 4A ECONOMIC
DEVELOPMENT CORPORATION
Beneficiary's Mailing Address
(including county): 4173 39th Street,
Port Arthur, Texas 77642
(Jefferson County)
Note(s)
Date: ,2004
Amount: $112,000.00
(One Hundred Twelve Thousand and no/00 Dollars)
Maker: 3 D Architectural Metal Sales, Inc.
Payee: Port Arthur 4A Economic Development Corporation
Final Maturity Date: As therein provided.
Date: _ . , 2004
Amount: $103,000.00
(One Hundred Three Thousand and no/100 Dollars)
Maker: 3 D Architectural Metal Sales, Inc.
Payee: Port Arthur 4A Economic Development Corporation
Final Maturity Date: As therein provided.
Property (including any improvements):
THAT TRACT OF REAL PROPERTY, KNOWN AS LOT 7, BLOCK 12,
MONTROSE 2 ADDITION, PORT ARTHUR, JEFFERSON COUNTY, TEXAS,
BEING MORE PARTICULARLY DESCRIBED 1N EXHIBIT "A" ATTACHED
HERETO.
Prior Lien(s) (including recording information): None
Other Exceptions to Conveyance and Warranty:
This conveyance is made expressly SUBJECT TO any and all restrictions, covenants,
conditions, easements, rights-of-way, and mineral and/or royalty reservations of record, if
any, affecting this Property.
For value received and to secure payment of the note, Grantor conveys the property to
Trustee in trust. Grantor warrants and agrees to defend the title to the property. If Grantor performs
all the covenants and pays the note according to its terms, this deed of trust shall have no further
effect, and Beneficiary shall release it at Grantor's expense.
Grantor's Obligations Grantor agrees to:
1. keep the property in good repair and condition;
2. pay all taxes and assessments on the property when due and by January 31 of the
year immediately following, furnish Beneficiary copies of tax receipts showing that all such taxes
and assessments have been paid;
3. preserve the lien's priority as it is established in this deed of trust;
4. maintain, in a form acceptable to Beneficiary, an insurance policy that:
a. covers all improvements for their full insurable value as determined when
the policy is issued and renewed, unless Beneficiary approves a smaller
amount in writing;
b. contains an 80% coinsurance clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary with a standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard area;
and
f. contains such other coverage as Beneficiary may. reasonably require;
5. comply at alt times with the requirements of the 80% coinsurance clause;
6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
7. keep any buildings occupied as required by the insurance policy; and
8. if this is not a first lien, pay all prior lien notes that Grantor is personally liable to
pay and abide by all prior lien instruments.
Beneficiary's Rights
1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to
all rights and responsibilities of Trustee;
2. If the proceeds of the note are used to pay any debt secured by prior liens,
2
Beneficiary is subrogated to all of the rights and liens of the holders of any debt so paid.
3. Beneficiary may apply any proceeds received under the insurance policy either to
reduce the note or to repair or replace damaged or destroyed improvements covered by the policy.
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary ma.y perform
those obligations and be reimbursed by Grantor on demand at the place where the note ts payable
for any sums so paid, including attorney's fees, plus interest on those sums from the dates of
payment at the rate stated in the note for matured, unpaid amounts. The sum to be reimbursed shall
be secured by this deed of trust.
5. If Grantor defaults on the note or fails to perform any of Grantor's obligations or if
default occurs on a prior lien note or other instrument, and the default continues after Beneficiary
gives Grantor notice of the default and the time within which it must be cured, as may be required
by law or by written agreement, then Beneficiary may:
a. declare the unpaid principal balance and earned interest on the note
immediately due;
b. request Trustee to foreclose this lien, in which case Beneficiary or
Beneficiary's agent shall give notice of the foreclosure sale as provided by
the Texas Property Code as then amended; and
c. purchase the property at any foreclosure sale by offering the highest bid and
then have the bid credited on the note.
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. sell and convey all or part of the property to the highest bidder for cash with a
general warranty binding Grantor, subject to prior liens and to other exceptions to conveyance and
warranty; and
3. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of 5% of the bid;
b. to Beneficiary, the full amount of principal, interest, attorney's fees, and
other charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor; and
d. to Grantor, any balance.
General Provisions
I. If any of the property is sold under this deed of trust, Grantor shall immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor shall become a tenant at
sufferance of the purchaser, subject to an action for fomible detainer.
2. Recitals in any Trustee's deed conveying the property will be presumed to be tree.
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of
all or part of the note is extended or part of the property is released.
5. If any portion of the note cannot be lawfully secured by this deed of trust, payments
shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the property, from private sale in lieu of condemnation, and from
damages caused by public works or construction on or near the property. After deducting any
expenses incurred, including attorney's fees, Beneficiary may release any remaining sums to
Grantor or apply such sums to reduce the note. Beneficiary shall not be liable for failure to collect
or to exercise diligence in collecting any such sums.
7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and
future rent and other income and receipts from the property. Leases are not assigned. Grantor
collect rent and other Income ano receipts as long as ~-[m~gvt ~ hi,-,,
deed of trust. Grantor will apply all rent and other income and receipts to payment of the note and
performance of this deed of trust, but if the rent and other income and receipts exceed the amount
due under the note and deed of ~xust, Grantor may retain _the excess. If Grantor defaul~ in.payment
of the note or performance of this deed of trust, Beneficiary may terminate Grantor s. license to
collect and then as Grantor's agent may rent the property if it is vacan.t and c~,llect all ~nt,,and. o~.e,r
income and receipts· Beneficiary neither has not. assumes any o. blig~at,on~s .as l..e~ss_.~h~rs ~,rOe~e~iems
respect to any occupant of the property. Beneficiary may exercise menencIary ~ ~,~ ....
under this aragraph without taking possession of the property. Beneficiary shall apply an rent and
other incor~e and receipts collected under this paragraph first to expenses incurred in exercising
Beneficiary's rights and remedies and then to Grantor's obligations under the note and this deed of
· the order determined by Beneficiary Beneficiary is not required to act under this paragraph,
trust in . ' . ' ' ther ri hts or remedies. If
under th/s aragraph does not wave any of Benefi_cmry ~ o ~ g .....
and acting P . ' ' 'n a rooI oI clam
Grantor becomes a voluntary or involuntary bankrupt, Benelicimy s mi g p
bankruptcy will be tantamount to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this deed of trust shall not exceed the maximum
unt of nonusurious interest that may be contracted for, taken, reserved, charged, or received
arno . · · credited on the principal of the
under law; any interest In e.x?ss~of,tha, t m,_,axunum an?tt? sh~_l _b,,e~_;~,.,~ or -,ermitted nremyment,
debt or, if that has been pact, remnaea, un any accelemtIo:~l~e~a~'~'~ re~ ayment (~r, (f already
any such excess shall be canceled automatically as of the ac P P
paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded.
This provision overrides other provisions in this and all other instruments concerning the debt.
9. When the context requires, singular nouns and pronouns include the plural.
10. The term note includes all sums secured by this dee~d oft, m, st. ' ~ by successors
1 1. This deed of trust shall bind, inure to the benefit o~, and oe exerciseu
in interest of all parties.
1 2. If Grantor and Maker are not the same person, the term Grantor shall include Maker.
1 3. If all or any part of the Property is sold, conveyed, leased for a period longer than
3 ears leased with an option to purchase, or otherwise sold (including any contract for
t?e~e, (.):,y~_, ,,~ '-rior written consent of the Beneficiary, then the Beneficiary, may at,h.i.s ,opt!on
aeeu), v41tllUUtut~. If, ' ' ed interest to De immeolately abe
e the outstan&n principal balance of the Note, plus accru
declar g. . . ea unoer mrem or order
and ayable The creation of a subordmate lien, any sale thereunder, any ae ....
P ' ~ --'-~- ~- .........~'ers the nassaae of title by reason olr the oeath
df condemnation an3' conveyance ~m~y uctw~, m,~ , r
;~-~ker or by ~)pe'ration of law shall not be construed as a s_ale, o~r
14. THIS DEED OF TRUST IS GRANTED IN UtJma~u~x~~ .... '~'F EVEN
CERTAIN ECONOMIC INCENTIVE CONTRACT AND LOAN
DATE.
3 D ARCHITECTURAL METAL SALES, INC.
By:
Jeanette Daley,
President
4
f/IPT FOR TAXES PAID FOR ACCOUNT 044750-000/010700-00000
J ~FFERSON COUNTY TAX OFFICE 18/29/a003
J ~.o. ~ox 81ie RECEIPT 41401-53ie8908
~ /~A~T, TX 77704 MORT CO
· J PARCEL ADDRESS:
J DAILEY RICHARD LT 7 BLK 12 MONTROSE
/ PO BOX 643
NEDERLAND TX 77687-0643
0.0000 ACRES
TAX TAXABLE TAX LEVY PENALTY ATTORNEY COURT TOTAL
YEAR UNIT VALUE RATE PAID INTEREST FEES COSTS PAYMENT
2003 O1 200 365000 .75 .73
2003 09 200 1 500000 5.00 5.00
8003 35 800 775000 1.55 i.55
8003 43 eO0 130870 .26 .e6
2003 51 200 188100 .]8 .38
8003 55 800 031868 .06 ,06
OWNER: DAILEY RICHARD TOTAL TAXES PAID: 5.98
PO BOX 64] DATE PAID: 18/2918003
CHECK NUMBER: 6344
NEDERLAND TX 77627-0645
OPERATOR: PY
O1 dEFFERSON COUNTY 09 PORT ARTHUR 1SD 55 CITY OF PORT ARTHUR
43 PO~T OF PORT ARTHUR 51 DRAINAGE DISTRICT #7 55 NAVIQATION DISTRICT
EXHIBIT "E- 5"
AGREEMENT OF GUARANTY
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
WHEREAS, on this date, 3 D ARCHITECTURAL METAL SALES, INC. ("Borrower"), a
Texas corporation, made, executed and delivered its Commercial Promissory Notes (the "Notes"),
together in the aggregate principal sum of $215,000.00, bearing interest at the rate therein
specified, and payable as therein provided to the order of PORT ARTHUR ECONOMIC
DEVELOPMENT CORPORATION ("Lender"), a 4A development corporation; and
WHEREAS, to secure the payment of said Note, Borrower did execute, acknowledge and
deliver its Deed of Trust of even date therewith, granting Lender a lien on the security interest in a
the following described property located in Jefferson County, Texas, to-wit:
THAT CERTAIN TRACT OF REAL PROPERTY, KNOWN AS LOT 7, BLOCK 12,
MONTROSE 2 ADDITION, PORT ARTHUR, JEFFERSON COUNTY, TEXAS,
BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" A'FI'ACHED
HERETO AND IN THAT CERTAIN DEED OF TRUST OF EVEN DATE
WHEREAS, in the commitment agreed to by Borrower for the loan evidenced by the Note,
the Economic Incentive Contract, and various other instruments and documents (the "Other Loan
and Collateral Documents") (the "Loan"), Borrower committed to Lender that Richard and
Jeanette Daley will execute and deliver to Lender a guaranty (the "Guaranty") of the payment of
Borrower's Note and the performance of all of Borrower's obligations under the Other Loan
Documents; and
WHEREAS, Lender has agreed to make said Loan to Borrower conditioned upon the
execution and delivery of said Guaranty; and
WHEREAS, RICHARD J. DALEY and JEANETTE DALEY ("Guarantor", whether one or
more), have agreed to execute and deliver to Lender the Guaranty; and
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That Guarantor, in consideration of the premises and of the benefits accruing to Borrower
and Guarantor from the Loan, and as an inducement to Lender to make the Loan, Guarantor
does hereby guarantee, without offset or deduction, (i) the prompt payment when due of all
amounts payable by Borrower to Lender pursuant to the Note (whether of principal, interest or
attorney's fees), and the Other Loan and Collateral Documents, and (ii) to do or cause to be done
or perform or cause to be performed all obligations contained in the Note and Other Loan and
Collateral Documents, this Guaranty constituting a guaranty (a) of payment, and not of collection,
and (b) that Borrower will perform punctually and faithfully under and in accordance with the terms
of the Note and Other Loan and Collateral Documents.
Guarantor hereby agrees that Guarantor1 as principal obligor, will pay or otherwise provide
for or bring about promptly when due such payments and the performance of such duties of
Borrower under the Note and Other Loan and Collateral Documents, notwithstanding any fact or
circumstance, including, but not limited to, the liquidation, dissolution, receivership, insolvency,
bankruptcy, the making of an assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of Borrower, or any proceeding affecting the status, existence or
assets of Borrower. Without limiting the foregoing, each Guarantor specifically agrees that it will
not be necessary or required, and Guarantor shall not be entitled to require, that Lender shall file
suit, proceed to or obtain a claim for personal judgment against Borrower or any other party
(including, without limitation, any other Guarantor), or make any effort of collection from Borrower
or any other party (including, without limitation, any other Guarantor), or look to its security before
or as a condition to enforcing the liability of Guarantor under this Guaranty; and Guarantor,
knowingly and with the express intention of extinguishing his legal rights (if any may exist), hereby
expressly waives any and all right, whether existing by rule, statute, general law, equity or
otherwise, to assert or require (i) that Lender previously seek or obtain judgment against Borrower
or any other person or entity (including, without limitation, any other Guarantor) prior to LendeCs
suing Guarantor for the enforcement of ti',is Guaranty, or for the collection of any sum or sums
due hereunder, or (ii) that Lender join Borrower or any other person or entity (including, without
limitation, any other Guarantor) in any suit against Guarantor for the enforcement of this
Guaranty, or for the collection of any sum or sums hereunder.
Guarantor hereby waives notice of the acceptance of this Guaranty, or the performance or
nonperformance of any of the agreements between or among Borrower, Lender and/or any third
pady or parties. The obligations of Guarantor shall be continuous from the date hereof until the
indebtedness and performance hereby guaranteed have been fully paid or performed, and
Guarantor's obligation hereunder shall continue in full force and effect notwithstanding (i) any
release of any person (including, without limitation, any other Guarantor) obligated for the
payment of the indebtedness or the performance of any obligation, (ii) any adjustments or
rearrangements (including, without limitation, renewals or extensions) in or of the indebtedness
evidenced by the Note or secured by the Other Loan and Collateral Documents, (iii) adjustments
or rearrangements of obligations to be performed by Borrower thereunder, or (iv) the release of
any collateral, in whole or in part.
Guarantor agrees that he shall have no rights of subrogation whatsoever with respect to
the Note or Other Loan and Collateral Documents unless and until Lender shall have received full
payment of the Note and all other sums due Lender under the terms of the Other Loan and
Collateral Documents.
Guarantor hereby waives demand, presentment for payment, protest, notice of protest,
notice of nonpayment, notice of intention to accelerate maturity, notice of acceleration of maturity
and all other notices, including, without limitation, notice of default or nonperformance. Should it
be necessary to institute legal proceedings or employ an attorney to enforce the provisions of this
Guaranty, Guarantor hereby agrees to pay all costs incurred, including, without limitation,
reasonable attorney's fees, which costs shall be in addition to all other sums which Guarantor
might otherwise be obligated to pay hereunder.
This Guaranty (i) constitutes the entire agreement between Guarantor and Lender, and
supersedes all prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, (ii) shall inure to the benefit of Lender, its successors
and assigns, and shall be binding upon the Guarantor and his respective heirs, executors and
administrators, and (iii) may be modified only by written instrument signed by Guarantor and
Lender, and dated subsequent to the date hereof.
Whenever the context so requires-, all singular nouns and pronouns shall include the
plural, and all nouns and pronouns of the masculine gender shall include all other genders.
EXECUTED by Guarantor on this the __ day of ,2004.
Richard Daley
"Guarantor"
Jeanette Daley
"Guarantor"