HomeMy WebLinkAboutPR 13413: ABRAHAM MANF.interoffice
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark T. Sokolow, City Attorney ~ ~
Date: February 3, 2006
Subject: P. R. No. 13413; Joint EDC/Special Council Meeting
February 7, 2006
Attached is P. R. No. 13413 authorizing the President
and Secretary of the EDC to execute an incentive agreement
between EDC and Abraham. Manufacturing, Inc.
MTS/gt
Attachment
cc: VIA FACSIMILE (409) 962-4445
Floyd Batiste, CEO of EDC
VIA FACSIMILE (409) 835-2115
Kate McGlynn, GERMER GERTZ
z.pr13413.memo
P. R. No. 13413
02/02/06 gt
I~ESOLUTION NO.
A RESOLUTION AUTHORIZING THE PRESIDENT AND
SECRETARY OF THE CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION TO EXECUTE
AN INCENTIVE AGREEMENT BETWEEN THE CITY OF
PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION AND ABRAHAM M~NUFACTURING, INC.
WHEREAS, as noted in Exhibit "A", the Board of Directors of
the City of Port Arthur Section 4A Economic Development Corporation
has approved an incentive agreement to be entered into with Abraham
Manufacturing, Inc.; and
WHEREAS, an executive summary has been provided by Germer
Gertz as noted in Exhibit "A", which delineates (1) the major terms
of the agreement (2) that they have approved this project as being
an eligible project under Section 4A Article 5190.6 VTCA, and (3)
that they approve the agreement as to form; and
WHEREAS, pursuant to Section 8.19 of the bylaws, the City of
Port Arthur Section 4A Economic Development Corporation is
submitting this project for approval.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are
true and correct.
z.pr13413
EXHIBIT "A"
GERMEI :GERTL.L.P.'" 7.
^ "i- ~' o ~ ~4 E '*' '~,.J^ 'r t ^ w
KATHLEEN A. McGLYNN
ASSOCIATE
Direct Line: 409.813.8000
kmcglynn~germer.com
February 3, 2006
Via Facsimile No. 1-409-962-4445
Mr. Floyd Batiste
Chief Executive Officer
City of Port Arthur EDC
P.O. Box 3934
Port Arthur, Texas 77642
Re: Abraham Mfg., Inc.; GG File//56257
Dear Mr. Batiste:
Attached is the Executive Summary for the City of Port Arthur Section 4A Economic
Development Corporation's ("PAEDC's") contract with Abraham Mfg., Inc. This contract
was approved in substantially the same form as attached hereto by the PAEDC Board of
Directors on February 1, 2006, by a five to zero vote. The contract has been approved by
Germer Gertz, L.L.P. as to its legality and it is an eligible Section 4A project. The EDC
Board will need to revote on the Agreement as to include the ten year and the promise to bring
total employment to 100 employees.
Sincerely,
GERMER GERTZ, L.L.P.
By:
'I~athleen A. McGly-~( ~
KAM/lr
cc: Jana Barnes
Guy N. Goodson (in thefirm)
P.O. BOX 4915 , BEAUMONT, TX 77704 · PHONE: 409.654.6700 * FAX: 409,835.2115
474761
SECOND DRAFT
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BE'I'WEEN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION
&
ABRAHAM MFG., INC.
Executive Summary
Abraham Mfg., Inc. ("Abraham") is a Texas corporation, doing business in
Port Arthur at 1520 Woodworth Boulevard. Abraham manufactures wood and
synthetic church furniture and sells its finished product to religious institutions in
several states. Demand for the product is such that Abraham plans to expand
and modernize its facility in Port Arthur. The City of Port Arthur Section 4A
Economic Development Corporation ("PAEDC') wants to assist Abraham in its
expansion endeavor by providing conditional grant and loan funds in exchange
for the promise of fulltime permanent jobs.
The City of Port Arthur Section 4A Economic Development Corporation
("PAEDC") is conditionally .qrantin.q Abraham the sum of $251,410.00. If
Abraham breaches this Agreement then the PAEDC grant, minus any credits
earned, will automatically convert to a loan (liquidated damages), to be paid back
over three years at ten percent interest.
Additionally, PAEDC will loan Abraham the sum $299,610.76, to be paid
back over seven years at four percent interest, with the first of the 85 payments
due six months after the Agreement is executed. Up to $199,610.76 will be used
to pay off the existing mortgages and will grant PAEDC a deed of trust for the
real estate at 1520 Woodworth Blvd. in Port Arthur. In this way, PAEDC will
attain first lien priority status.
In return for the substantial PAEDC incentive, Abraham promises to
employ fifty (50} full time, permanent employees within five (5) years, distributing
$3,060,000 cumulative payroll over that five-year time period. Additionally,
Abraham promises to bring total employment to 100 employees by the end of the
contract term, that is, ten years Additionally, Abraham promises to install a dust
collector within nine months of executing this contract. Further, Abraham will
execute a Deed of Trust (mortgage} for its real property on Highway 365 in Port
Arthur.
Abraham may earn credits to reduce liquidated damages in the event of a
breach. Starting on the effective date of the Agreement, Abraham will receive a
$1.00 credit for each $12.00 of payroll paid to residents of Port Arthur.
To avoid surprises, Abraham agrees to send PAEDC brief status reports,
every three (3) months for the ten-year term of the Agreement.
421022
EXHIB IT "B"
SECOND DRAFT
ECONOMIC INCENTIVE & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
ABRAHAM MFG., INC.
INTRODUCTION ................................................................................................................................... - ! '
AGREEMENT DATES .......................................................................................................................... ' ! '
PARTIES ................................................................................................................................................. - 1 -
PROMISED PERFORMANCE ................................................................................................ - 2-
(A) PERFORMANCE BY PAEDC ...................................................
(B) PERFORMANCE BY ABRAHAM ................................................................................................... - 2 -
(C) ABRAHAM CREDITS - SUBSTITUTE PERFORMANCE ................................................................ - 3 -
ABRAHAM'S PERFORMANCE MILESTONE SCHEDULE ..........................................................- 4 -
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY ........................................ -8-
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY ABRAHAM ........................... -8 -
RECORDS / INSPECTION / PAEDC AUDIT .................................................................................... - 9 ~
HOLD HARMLESS ............................................................................................................................. - 10 -
SUBCONTRACTS ............................................................................................................................... - I0 -
CONFLICT OF INTEREST ! DISCLOSURE OBMGATION ......................................................... - 11 -
NONDISCRIMINATION / EMPLOYMENT / REPORTING ........................................................... - 11 -
LEGAL AUTHORITY .......................................................................................................................... - 12 -
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST ABRAHAM .............................. - 12 -
CHANGES AND AMENDMENTS ..................................................................................................... - 12 -
DEFAULT / TERMINATION .............................................................................................................. - 13 -
ABRAHAM AUDITS ........................................................................................................................... - 14 -
ENVIRONMENTAL CLEARANCE REQUIREMENTS .................................................................. - 15 -
ORAL AND WRITTEN AGREEMENTS I PRIOR AGREEMENTS .............................................. 15 -
VENUE .................................................................................................................................................. - 15 -
ADDRESS OF NOTICE AND COMMUNICATIONS ..................................................................... - ]5 -
CAPTIONS ........................................................................................................................................... - 16 -
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS ................................................. - 16-
CONDITIONS PRECEDENT ............................................................................................................. - 16 -
ATTORNEY APPROVALS ................................................................................................................ -/,6 -
AGREEMENT EXECUTION .............................................................................................................. - ]7 -
Exhibit"Al" Commercial Promissory Note for Loan
Exhibit "A2" Commercial Promissory Note for Conditional Grant
Exhibit "B" Equipment List for Expansion/Modernization
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
ii 2aaoo6
SECOND DRAFT
ECONOMIC INCEN'BYE CON'I'RAC'I' 8, LOAN AGREEMEN'I'
BET~NEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
ABRAHAM MFG., INC.
!NTRODUCTION
Abraham Mfg., Inc. ("Abraham") is a Texas corporation, doing business in Port
Arthur at 1520 Woodworth Boulevard. Abraham manufactures wood and synthetic church
furniture and sells its finished product to religious institutions in several states. Demand for
the product is such that Abraham plans to expand and modernize its facility in Port Arthur.
The City of Port Arthur Section 4A Economic Development Corporation ("PAEDC") wants
to assist Abraham in its expansion endeavor by providing condition al grant and loan funds
in exchange for the promise of fulltime permanent jobs.
AGREEMENT DATES
AGREEMENT START DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered
into with an effective date of ,2006, but in no case later than April 15, 2006,
by and between the PAEDC and Abraham.
AGREEMENT END DATE
2. This Agreement expires April 15, 2016. The pedod from the effective date of
this Agreement through and including the expiration date of this Agreement as provided in
the previous sentence hereof, is sometimes referred to in this Agreement as the "Term" of
this Agreement.
PARTIES
3. City of Port Arthur Section 4A Economic Development Corporation ("PAEDC"),
located at 4173-39th Street, Port Arthur, Texas, 77642, is a corporation. It is duly
authorized to do business in the State of Texas under Section 4A, Article 5190.6 V.T.C.A.
(the Development Corporation Act of 1979) and duly authorized by Resolution of the City
Council of the City of Port Arthur to enter into this Agreement. So authorized and as
provided by the PAEDC bylaws, the President and Secretary of the PAEDC Board have
the authority to execute this Agreement.
4. Abraham Mfq., Inc. ("Abraham") is a Texas corporation. The registered agent in
Texas for Abraham is Janice B. Richard, Director, at 2735 Gulfway Dr., Port Arthur, Texas
77640.
Abraham/PAEDC Agreement
DRAFT
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
(1) PAEDC shall loan Abraham the amount of $299,610.76 to pay off existin.q
liens on Abraham's property at 1520 Woodworth Blvd., Port Arthur, Texas,
and provide $100,000.00 in workinq capital according to the terms in the
Commercial Promissory Note contained in Exhibit "Al", with the material
terms being four percent (4%) interest for a term of seven (7) years;
(2) PAEDC shall conditionally qrant Abraham up to $251,410.00, subject to the
conditions and limitations herein, which Abraham is not required to pay back
unless Abraham breaches this Agreement. If Abraham broaches this
Incentive Agreement then the grant will become a loan as provided in Exhibit
"A2".
(3) PAEDC will use its best efforts to pay invoices, or reimburse Abraham for
payments, for equipment listed in Exhibit "B" within fifty-five (45) days of
roceipt.
These are PAEDC's only obligations.
(b) pERFORMANCE BY ABRAHAM
(1) Abraham promises to perform according to the following schedule: · 20 or more employees by 1/1/07 ($340,000 payroll annualized)l;
· 25 or more employees by 1/1/08 ($425,000 payroll annualized);
· 35 or more employees by 1/1/09 ($595,000 payroll annualized);
· 40 or more employees by 1/1/10 ($680,000 payroll annualized); and
· 50 or more employees by 1/1/11 ($850,000 payroll annualized);
as measured by Internal Revenue Service (IRS) forms W-2 and W-3.
(2) During the first five years of this agroement, Abraham shall have paid
aggregate compensation of at least THREE MILLION SIXTY THOUSAND
AND NO/100 DOLLARS ($3,060,000) to employees at its Port Arthur facility,
as measured by IRS forms W-2 and W-3.
(3) During the second five years of this agreement, Abraham shall increase
employment to 100 full time permanent employees.
(4) Abraham promises that at least fifty percent (50%) of its employees will be
Port Arthur residents.
Estimated payroll based on 2000 hours per year and an average wage of $8.50 per hour, per Abraham's application. - 2 - 2/3/2oo6
DRAFT
(5) Contemporaneously with PAEDC's loan to Abraham, Abraham will execute a
deed of trust for the real property located at 1520 Woodworth Blvd., Port
Arthur, Texas. See Exhibit "C".
(6) Abraham shall use the Grant monies provided by the PAEDC exclusively for
machinery and equipment that is not materially different2 from the list of
machinery and equipment provided to PAEDC by Abraham, a copy of which
is attached as Exhibit "B." With each invoice, or request for reimbursement,
sent to PAEDC, Abraham will include a copy of the Exhibit "B" list with the
specific equipment highlighted. This will enable PAEDC to verify compliance
with the list in Exhibit "B."
(7) Abraham agrees to install a new dust collector capable of improving the work
environment, within nine (9) months of the effective date of this contract.
Abraham shall notify PAEDC within 30 days after installation.
(8)Abraham will submit quaderly reports to PAEDC for the term of the
Agreement.
(9) On demand by PAEDC and in response to Abraham's failure to achieve a
performance milestone, Abraham shall provide PAEDC with reasonable
assurances, proposed by Abraham and reasonably acceptable to PAEDC,
that it has both the intention and the capabilities to perform fully its
contractual obligations.
(C) ABRAHAM CREDITS-- SUBSTITUTE PERFORMANCE
Abraham may earn credits according to the following terms, to either reduce the
duration of this Agreement or reduce the amount of liquidated damages in the
event Abraham breaches the Agreement.
(1) Starting on the effective date of the Agreement and for as long as Abraham
performs as specified in 5(b)(1), Abraham will receive a $1.00 credit for each
$12.00 of payroll paid to residents of Port Arthur. Payroll to non-residents
cannot be credited.
(2) Total credit cannot exceed $251,610.76.
(3) Abraham will forfeit any credits it earned during a period for which a report is
scheduled but Abraham fails to issue it.
2 "Materially different" is defined as a change in the type of equipment that changes the business plan in
place at the time this contract is executed.
- 3 - 2/3/2006
DRAFT
ABRAHAM'S PERFORMANCE MILESTONE SCHEDULE
6, Although failure to achieve a performance milestone is not a breach of
Agreement, a failure is grounds for PAEDC to withhold further payments to Abraham
and/or demand reasonable assurances3 from Abraham that it can and will fully pedorm its
contractual obligations. Failure to provide such reasonable assurances following demand
of PAEDC is a breach of contract.
7. Abraham's performance milestones are contained in the table on the following
page.
3 Examples of reasonable assurances are copies of pending contracts and customer commitment letters,
- 4 - 2/3;2006
DRAFT
ABRAHAM'S PERFORMANANCE MILESTONE SCHEDULE
pJ~ad!ine ~
Apr 5, 2006 Status repo~ for January 1, 2006 to March 31, 2006.
June 30, Achieve performance of 10 full-time, permanent employees;
2006 Annualized payroll of $170,000.
July 5, 2006 Status report for April 1, 2006 to June 30, 2006.
Oct. 5, 2006 Status report for July 1, 2006 to September 30, 2006.
Dec. 1, 2006 Dust collector installed and operational
Jan. 1, 2007 Achieve performance of 20 full-time, permanent employees;
. Annualized payroll of $340,000.
5, 2007 Status report for October 1, 2006 to December 31, 2006.
Feb 5, 2007 Status report4 for January 1,2006 to December 31,2006.
Apr. 5, 2007 Status report for January 1,2007 to March 31, 2007.
2007 Status report for April 1, 2007 to June 30, 2007.
Oct. 5, 2007 Status report for July 1, 2007 to September 30, 2007.
Jan. 1, 2008 Achieve performance of 25 full-time, permanent employees;
Annualized payroll of $425,000.
(m) Jan. 5, 2008 Status repo~ for October 1, 2007 to December 31, 2007.
1 Feb. 5, 2008 Status report for Janua;-y 1,20---~07 t~ ~
(n)
(o) 1/Apr. 5, 2008 Status report for January 1,2008 to March 31, 2008.
(P) 1 July 5, 2008 i Status report for Apnl 1,2008 to June 30, 2008.
(q) L/Oct. 5, 2008 '[ Slatus report for July 1, 2008 to September 30, 2008.
k~---['J Jan. 1, 2009 . Achieve performance
of
35
full-time,
permanent
employees;
j Annualized payroll of $595,000.
(s) Jan. 5, 2009 ! Status report for October 1, 2008 to December 31,
2008.
I (t) Feb. 5, 2009~! Status report for January 1, 2008 to December 31, 2008.
(u) Apr. 5, 2009 Status report for January 1,2009 to March 31, 2009.
(v) July 5, 2009 I~ Status report for April 1,2009 to June 30, 2009.
February 5th status reports shall also include identity of current General Partner and Limited Partners.
DRAFT
(w) Oct. 5, 2009 ! Status report for July 1, 2009 to September 30, 2009.
I Achieve performance of 40 full-time, permanent employees;
(x) Jan. 1, 2010 i Annualized payroll of $680,000.
(y) Jan. 5, 2010 Status report for October 1, 2009 to December 31, 2009.
(z) Feb. 5, 2010 Status report for Jan. 1, 2009 to December 31,2009.
(aa) Apr. 5, 2010 Status reportfor January 1, 2010 to March 31, 2010.
(bb) July 5, 2010 Status report for Jan. 1, 2010 to June 30, 2010.
(cc) Oct. 5, 2010 Status report for July 1, 2010 to September 30, 2010.
dd) Jan. 1, 2011 Achieve performance of 50 full-time, permanent employees;
Annualized payroll of $850,000.
(ee) Jan. 5,2011 Status report for October1, 2010 to December 31, 2010.
(ff) Apr. 5, 2011 Status report for January 1,2011 to March 31, 2011.
(gg) July 5, 2011 i Status report for Jan. 1, 2011 to June 30, 2011.
(hh) Oct. 5, 2011 Status report for July 1, 2011 to September 30, 2011.
I (ii) Jan. 5, 2012 Status report for October 1,2011 to December 31, 2011.
(jj) Apr. 5, 2012 I Status report for January 1,2012 to March 31, 2012.
(kk} July 5, 2012 I Status reportfor Jan. 1, 2012 to June 30, 2012.
(11) Oct. 5, 2012 Status report for July 1, 2012 to September 30, 2012.
(mm) Jan. 5, 2013 t Status reportfor October 1, 2012 to December 31, 2012.
(nn) Apr. 5, 2013 Status report for January 1, 2013 to March 31, 2013.
(oo) July 5, 2013 i Status report for Jan. 1, 2013 to June 30, 2013.
(pp) Oct. 5, 2013 i Status report for July 1, 2013 to September 30, 2013.
I
(qq) ' Jan. 5, 2014 i Status report for October 1, 2013 to December 31, 2013.
(rr) Apr. 5, 2014 Status report for January 1, 2014 to March 31, 2014.
; (ss) July 5, 2014 Status report for Jan. 1, 2014 to June 30, 2014.
(tt) Oct. 5, 2014 Status report for July 1, 2014 to September 30, 2014.
(uu) Jan. 5, 2015 i Status report for October 1, 2014 to December 31, 2014.
(vv) Apr. 5, 2015 ' Status report for January 1, 2015 to March 31, 2015.
~ (ww) t July 5, 2015 Status report for Jan. 1, 2015 to June 30, 2015.
- 6 - ~aaoo6
DRAFT
(xx) Oct. 5, 2015 report July 1, September 30,
Status
for
201
5
to
201
5.
(yy) Jan. 1,2016 Achieve performance of 100 full-time, permanent employees.
(zz) Jan. 5, 2016i Status report for October 1, 2015 to December 31, 2015.
(aaa) Apr. 5, 2016 Status report for January 1, 2016 to March 31, 2016.
DRAFT
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMt~ED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC
funding obligations herein are contingent upon the actual receipt of adequate sales tax
revenue funds to meet the PAEDC's liabilities under this Agreement. If adequate funds
are not available to make payments under this Agreement, the PAEDC shall notify
Abraham in writing within a reasonable time after such fact is reasonably determined by
the PAEDC Board of Directors. The PAEDC, at its sole option, may then terminate this
Agreement without further liability. In the event of such termination by the PAEDC, the
PAEDC may, at its sole option, immediately cease all further funding, if any, required by
this Agreement and the PAEDC shall not be liable to Abraham or to any third parties for
failure to make payments to Abraham under the terms and conditions of this Agreement.
9. The PAEDC shall not be liable, in contract or otherwise, to Abraham, or to any
person or entity claiming by or through Abraham, for any expense, expenditure or cost
incurred by or on behalf of Abraham related to the project made the basis of this
Agreement. The PAEDC's sole liability/obligations, if any, shall be to Abraham and shall
be limited to the conditional funding obligations detailed in this Agreement.
10. Abraham shall not use the funds herein for any purpose(s) other than that
specifically disclosed herein and as further disclosed within that certain application made
by or on behalf of Abraham, which application is incorporated herein for all purposes.
11. Funds granted by the PAEDC hereunder shall not be utilized by Abraham for
repayment of costs, expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY ABRAHAM
12. In the event Abraham fails to perform its obligations under this Agreement,
following notice thereof from PAEDC and thirty-day (30-day) opportunity to cure the same,
the PAEDC grant, minus any credits earned, will automatically convert to a loan (liquidated
damages), effective on the day of breach, as agreed by Abraham in the executed
Commercial Promissory Note contained in Exhibit '~A2". Following such conversion to a
loan as aforesaid, the PAEDC, at its sole option, may terminate its remaining funding
obligations, if any, detailed in Section 5 herein. Further, the PAEDC shall be entitled to
recover its reasonable and customary attorney's fees and court costs incurred in collection
of said obligation and such remedies as are provided at law or in equity.
13. It is expressly understood and agreed by the parties that any right or remedy
shall not preclude the exercise of any other right or remedy under this Agreement or under
any provision of 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.
- 8 - 2/3aoo6
DRAFT
RECORDS I INSPECTION I PAEDC AUDIT
14. Abraham must establish and maintain sufficient records, as reasonably
determined by the PAEDC, to account for the expenditure and utilization of funds received
by Abraham from PAEDC under the terms and conditions of this Agreement.
15. Abraham shall maintain records of the receipt and disposition of all funds
provided hereunder as necessary to allow the PAEDC to audit and verify proper utilization
of said funds in compliance with this Agreement and the representations and warranties
contained herein and in Abraham's application. Abraham shall provide reports of
utilization of said funds, as reasonably requested by the PAEDC, and upon final
termination of this Agreement.
16. Upon ten-day (10-day) advance notice, Abraham shall give the PAEDC, or any
of its duly authorized representatives, access to and right to examine all books, accounts,
records, reports, files and other papers, things or property belonging to or in use by
Abraham. Such rights to access shall continue as long as the records are maintained by
Abraham. Abraham agrees to maintain such records in an accessible location. As to job
creation performance, interim status reports shall include documentation substantiating the
accuracy of such reports, including, for example, 941 payment reports, Texas Workforce
Commission reports, or other such reports confirming total jobs, payroll and other relevant
information. Driver's license information is appropriate for interim reporting of Port Arthur
residents hired. Year end reports shall be substantiated with IRS Forms W-2 and W-3.
The reporting objective is to include documentation necessary for PAEDC to verify said
report without further outside inquiry. All such information as aforesaid obtained by the
PAEDC, or its duly authorized representatives, shall be regarded as the confidential
business information of Abraham and the PAEDC shall take reasonable measures to
protect such information from disclosure to third parties; however, PAEDC is subject to the
requirements of the Texas Open Meetings Act and Open Records Act (Tex. Gov. Code, 551
& 552). Abraham agrees that disclosures to the public required by the Texas Open
Meetings Act, Texas Open Records Act, or any other legal requirement will not expose
PAEDC (or any party acting by, through or under PAEDC) to any claim, liability or action
by Abraham (or any party working by, through or under).
17. All records pertinent to this Agreement shall be retained by Abraham 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 Abraham detailing Abraham's compliance with its obligations provided herein.
Further, in the event any litigation, claim or audit arising out of or related to this Agreement
is instituted before the expiration of the three (3) 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 Term of any machinery or equipment
purchased with PAEDC funds.
18. Abraham shall provide PAEDC with all repods necessary for PAEDC
compliance with Article 5190.6 V.T.C.A.
- 9 - 2/3/2006
DRAFT
19. It is expressly understood and agreed by the parties hereto that if Abraham fails
to submit to PAEDC in a timely and satisfactory manner any report required by this
Agreement, PAEDC may, at its sole discretion, withhold further payments to Abraham
and/or demand assurances that Abraham can and will fully perform its contractual
obligations. If Abraham fails to provide adequate assurances then Abraham is in breach
and any monies advanced by PAEDC automatically become a loan. If PAEDC withholds
such payments, it shall notify Abraham in writing of its decision and the reasons therefore.
Payments withheld pursuant to this paragraph may be held by PAEDC until such time as
the delinquent obligations for which funds are withheld are fulfilled by Abraham.
20. The PAEDC reserves the right, from time to time, to carry out field
inspections/audits to ensure compliance with the requirements of this Agreement. After
completion of any such audit, the PAEDC may provide Abraham with a written report of the
audit findings. If the audit report details deficiencies in Abraham's performance under the
terms and conditions of this Agreement, the PAEDC may establish requirements for the
timely correction of any such deficiencies by Abraham.
HOLD HARMLESS
21. Abraham agrees to hold harmless the PAEDC and the City of Port Arthur from
any and all claims, demands, and causes of action of any kind or character which may be
asserted by any third party occurring, arising out of or in any way related to this
Agreement, the project made the basis of this Agreement and the utilization of grant funds
provided by this Agreement provided that such claim, demand or cause of action does not
arise from any fraud or misconduct on the pad of the PAEDC or the City of Port Arthur, or
any agent, employee or representative of either.
SUBCONTRACTS
22. Abraham may not subcontract for performance credits described in this
Agreement without obtaining PAEDC's written approval, which may be withheld for any
reason. Abraham shall only subcontract for performance credits described in this
Agreement after Abraham has submitted a Subcontractor Eligibility Request, as specified
by PAEDC, for each proposed subcontract, and Abraham has obtained PAEDC's prior
written approval. Abraham, in subcontracting for any performances described in this
Agreement, expressly understands that in entering into such subcontracts, PAEDC is in no
way liable to Abraham's subcontractor(s).
23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility,
be construed as relieving Abraham of the responsibility for ensuring that the performances
rendered under all subcontracts are rendered so as to comply with all terms of this
Agreement, as if such performances rendered were rendered by Abraham. PAEDC's
approval does not constitute adoption, ratification, or acceptance of Abraham's or
subcontractor's performance hereunder. PAEDC maintains the right to insist upon
Abraham's full compliance with the terms of this Agreement, and by the act of
-10-
2/3/2006
DRAFT
subcontractor approval, PAEDC does not waive any right of action which may exist or
which may subsequently accrue to PAEDC under this Agreement.
24. Abraham, 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 Agreement.
CONFLICT OF INTEREST I DISCLOSURE OBLIGATION
25 Conflict of Interest: No employee, agent, officer or elected or appointed official
of the City of Port Arthur or the PAEDC who has participated in a decision making process
related to this Agreement (without recusing him/herself and executing a conflict affidavit)
may obtain a personal or financial interest or benefit from an PAEDC assisted activity, or
have an interest in any contract, subcontract, or agreement (or proceeds thereof) with
respect to an PAEDC assisted activity, during their tenure or for one (1) year thereafter.
Insofar as relates to the conduct hereunder of Abraham, its agents, employees or
representatives, Abraham shall ensure compliance with applicable provisions under Article
5190.6 V.T.C.A. and Chapter 171 Local Government Code V.T.C.A.
26. Disclosure: In conjunction with execution of this Agreement, Abraham has fully
disclosed to PAEDC all known and potential owners of interests in Abraham (whether
stockholder, manager, member or otherwise). In the event of any change in ownership or
control of Abraham of five percent (5 %) or greater, Abraham shall notify PAEDC in writing.
Fudher, Abraham shall be obligated to notify in writing the PAEDC in the event any time
prior to, during or one (1) year after the term of this Agreement, any City or PAEDC
employee or representative or any third party with a conflict of interest obtains or proposes
to obtain a financial benefit, direct or indirect, from Abraham. Failure to provide said notice
immediately or no later than five (5) business days after receipt of information shall
constitute a default herein.
NONDISCRIMINATION / EMPLOYMENT/REPORTING
27. Abraham 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 Agreement. Additionally, funds shall be used in
accordance with the following requirements:
(a) To the greatest extent feasible, opportunities for training and employment arising
in connection with the planning and carrying out of any project assisted with
PAEDC funds provided under this Agreement be given to Port Arthur residents;
and
(b) To the greatest extent feasible, Agreements for work to be performed in
connection with any such project be awarded to Port Arthur residents and
businesses, including, but not limited to, individuals or firms doing business in
the field of planning, consulting, design, architecture, building construction,
DRAFT
rehabilitation, maintenance, or repair, which are located in or owned in
substantial part by persons residing in the City of Port Arthur.
(c) If Abraham advertises for employment then it will advertise in the Port Arthur
News; however, PAEDC has no intent to restrain advertising in additional
publications or media.
LEGAL AUTHORITY
28. Abraham assures and guarantees that Abraham possesses legal and/or
corporate authority to enter into this Agreement, receive funds authorized by this
Agreement, and to perform the services Abraham has obligated to perform hereunder and
has provided, and will in the future provide, as requested by the PAEDC, such corporate
resolutions necessary to evidence this authority.
29. The person or persons signing and executing this Agreement on behalf of
Abraham, or representing themselves as signing and executing this Agreement on behalf
of Abraham, do hereby warrant and guarantee that he, she, or they have been duly
authorized by Abraham to execute this Agreement on behalf of Abraham and to validly and
legally bind Abraham to all terms, performances, and provisions herein set forth.
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST ABRAHAM
30. Abraham shall give PAEDC immediate notice in writing of 1) any legal or
regulatory action, including any proceeding before an administrative agency filed against
Abraham, directly or indirectly; and 2) any material claim against Abraham, which may
impact continued operations. For purposes herein, "material" claims shall mean claims in
excess of $5,000. Except as otherwise directed by PAEDC, Abraham shall furnish
immediately to PAEDC copies of all pertinent documentation of any kind received by
Abraham with respect to such action or claim.
CHANGES AND AMENDMENTS
31. Except as specifically provided otherwise in this Agreement, any alterations,
additions, or deletions to the terms of this Agreement shall be by amendment in writinR and
executed by all parties to this Agreement.
32. It is understood and agreed by the parties hereto that performances under this
Agreement must be rendered in accordance with Article 5190.6 V.T.C.A. (the Development
Corporation act of 1979), the regulations promulgated under Adicle 5190.6 V.T.C.A., the
assurances and certifications made to PAEDC by Abraham, and the assurances and
certifications made to the City of Port Arthur with regard to the operation of the PAEDC's
Projects. Based on these considerations, and in order to ensure the legal and effective
performance of this Agreement by all parties, it is agreed by the parties hereto that the
performances under this Agreement are by the previsions of the PAEDC Program and any
amendments thereto and may further be amended in the following manner: PAEDC may
from time to time dudng the period of performance of this Agreement issue policy
DRAFT
directives which serve to interpret, or clarify performance requirements under this
Agreement. Such policy directives shall be promulgated by the PAEDC Board of Directors
in the form of PAEDC issuances, shall be approved by the City Oouncil and shall have the
effect of qualifying the terms of this Agreement and shall be binding upon Abraham, as if
written herein.
33. Any alterations, additions, or deletions to the terms of this Agreement which are
required by changes in Federal, state law or local law are automatically incorporated into
this Agreement without written amendment hereto, and shall become effective on the date
designated by such law or regulation.
DEFAULT / TERMINATION
34. In the event of default of any of the obligations of Abraham detailed herein or in
the event of breach of any of the representations of or warranties of Abraham either
detailed herein or in Abraham's application to the PAEDC, and following any notice and
opportunity to cure provided for in this Agreement, the PAEDC may, at its sole option,
terminate this Agreement, in whole or in part. In the event of such termination, the PAEDC
may, at its sole option, utilize one or more of the following actions to resolve or otherwise
remedy said default:
(a) Declare the Commercial Promissory Note executed in conjunction with this
Agreement immediately effective. If Abraham defaults on the note, then the
PAEDC may exercise its default remedies provided under collateral
documentation executed in conjunction with said Note and this Agreement
(b) Exercise any remedies provided herein and/or within the Loan/Collateral
Documents;
(c) Withhold, whether temporarily or otherwise, disbursement of grant proceeds
pending correction of the deficiency(s) by Abraham;
(d) Disallow all or a part of the incentives which are not in compliance with the terms
and conditions of this Agreement or in compliance with the representations and
warranties contained within this Agreement and Abraham's application to the
PAEDC;
(e) Withhold and/or disallow further PAEDC incentives to Abraham; and
(f) Exercise any and all other remedies that may be legally available to the PAEDC,
under the laws of the State of Texas, as authorized by the terms and conditions
of this Agreement.
35. 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.
2/3/2006
DRAFT
ABRAHAM AUDITS
36. If directed by PAEDC Board, Abraham shall arrange for the performance of a
compliance audit, by a certified public accountant, of funds received and performances
rendered under this Agreement, subject to the following conditions and limitations:
(a) Abraham shall have a compliance audit which may be limited to use of funds
received from the PAEDC, made for any of its fiscal years included within the
Term of this Agreement in which Abraham receives more than $50,000 in
PAEDC financial assistance provided by PAEDC in the form of grants, contracts,
loans, loan guarantees, properly, cooperative agreements, interest subsidies, or
direct appropriations. Backup documentation regarding actual expenditures
shall be provided by Abraham. Said audit must be received and accepted by the
Chief Executive Officer of PAEDC and/or the PAEDC Board.
(b) At the option of Abraham, each audit required by this section may cover either
Abraham's entire operations or each department, agency, or establishment of
Abraham which received, expended, or otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, Abraham shall
submit the report of such audit to PAEDC within thirty (30) days after completion
of the audit, but no later than one hundred twenty (120) days after the end of
each fiscal period included within the Term of this Agreement.
(d) As a part of its audit, Abraham shall verify that the expenditures were exclusively
fo~r the equipment listed in Exhibit "B". Any discrepancies in excess of $500 shall
be specifically documented in writing.
37. Abraham understands and agrees that it shall be liable to reimburse immediately
PAEDC for any costs disallowed pursuant to financial and compliance audit(s) of funds
received under this Agreement and it may be required to submit formal audits at
Abraham's expense.
38. Abraham shall take all necessary actions to facilitate the performance of any and
all such audits, whether annual, mandatory or otherwise requested under this Agreement.
39. Subject to financial privacy requirements of Abraham and properly designated
requests for non-disclosure due to proprietary reasons, all approved audit reports may be
made available for public inspection.
40. PAEDC shall not release any funds for costs incurred by Abraham under this
Agreement until PAEDC has received certification from Abraham that its fiscal control and
fund accounting procedures are adequate to assure proper disbursal of and accounting for
2/3/2006
DRAFT
funds provided under this Agreement. PAEDC shall specify the content and form of such
certification.
ENVIRONMENTAL CLEARANCE REQUIREMENTS
41. Abraham understands and agrees that by execution of this Agreement, Abraham
shall be responsible for providing to PAEDC all information, concerning this PAEDC
funded project, required for PAEDC to meet its responsibilities for environmental review,
decision making, and other action which applies to PAEDC in accordance with and to the
extent specified in Federal, State and Local Law. Abraham further understands and
agrees that Abraham shall make all reasonable efforts to assist PAEDC in handling
inquiries and complaints from persons and agencies seeking redress in relation to
environmental reviews covered by approved certifications.
ORAL AND WRITTEN AGREEMENTS I PRIOR AGREEMENTS
42. All oral and written contracts between the parties to this Agreement relating to
the subject matter of this Agreement that were made pdor to the execution of this
Agreement have been reduced to writing and are contained in this Agreement.
43. The documents listed below are hereby made a part of this Agreement, and
constitute promised performances by Abraham in accordance with this Agreement:
Exhibit '%1" Commercial Promissory Note for Loan
Exhibit '%2" Commercial Promissory Note for Conditional Grant
Exhibit "B" Equipment List
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
Abraham Application to PAEDC for funding, by reference
VENUE
44. For purposes of litigation that may accrue under this Agreement, venue shall lie
in Jefferson County, Texas, where substantially all the performance will occur.
ADDRESS OF NOTICE AND COMMUNICATIONS
City of Port Arthur Section 4A Economic Development Corporation
444 4th Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, Chief Executive Officer
Abraham Mfg., Inc.
1520 Woodworth Blvd.
Port Arthur, Texas
ATTN: Janice Richard
2/3/2006
DRAFT
CAPTIONS
45. This Agreement has been supplied with captions to serve only as a guide to the
contents. The caption does not control the meaning of any paragraph or in any way
determine its interpretation or application~
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
46. Abraham shalt comply with all Federal, State and local laws, statutes,
ordinances, resolutions, rules, regulations, orders and decrees of any court or
administrative body or tribunal, including these related to the activities and performances
of Abraham under this Agreement. Upon request by PAEDC and by the City, Abraham
shall furnish satisfactory proof of its compliance herewith.
CONDITIONS PRECEDENT
47. This agreement has no legal consequences, and neither party shall rely on the
agreement, unless and until
a. Both the PAEDC Board and the Port Arthur City Councit approve the
Agreement in its final executed form.
b. Abraham provides an equipment list for Exhibit "B" of this contract.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED AS CONSISTANT
WITH CITY COUNCIL RESOLUTION:
Resolution Number:
Mark T, Sokotow, City Attorney
-16-
2/3;2006
DRAFT
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the .__ day of ,2006.
By:. By:
President Eli Roberts Secretary Linda Spears
Witness Witness
ABRAHAM MFG., INC.
SIGNED AND AGREED TO on the day of ,2006.
ABRAHAM MFG., INC., a Texas
corporation
By:
Position
Witness
-17-
2/3/2OO6
EXHIBIT "Al"
COMMERCIAL PROMISSORY NOTE
Pod Arthur, Texas
Effective Date: the day of ,2006.
Principal Amount: TVVO HUNDRED NINETY-NINE THOUSAND SIX HUNDRED TEN
AND 76/100 DOLLARS ($299,610.76).
Term of the Loan: Seven (7) years from effective date.
Payment Schedule: Monthly until principal is paid fully, starting on the 1st day of
,2006 [six months after execution].
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office
at P.O. Box 1089, Port Arthur, Texas, 77640-1089, or such other place or places as the
holder hereof shall from time to time designate in written notice to Maker, the principal
amount in legal and lawful money of the United States of America, together with interest
thereon from the date hereof unt maturity at the rate of four percent (4%) per annum as
detailed herein.
A past due principal and interest shall bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum or to the ma,ximum ex.t. ent all.ow.ed by law
(whichever s less) as may hereafter be in effect, payable on aemana aT[er mazuri~y.
This note is due and payable as follows: Eighty-four (84) equal monthly
installments of principal and interest paid on the first of each month.
Any notces requ red 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 p. ersonally delivered shall be effective as of the date of
delivery, and any notice transmitted by mail, in accordance with the foregoing provisions,
shal 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, propedy addressed and
with postage prepaid.
This note is also secured by and entitled to the benefits of all other secudty
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
~nclude these executed simultaneously herewith, those heretofore executed, and those
hereafter executed.
f any nstallment or payment of principal or interest of this note is not paid when
due or any drawer, acceptor, 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 caled an "other 1'able party') shall d~e, 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 govemmental 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, iquidated or otherw se
terminated or a pady 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 information or statements which are
misleading in any respect; or if a default occurs under any instrument now or hereafter
executed ~n 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 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 wavng any prior or subsequent
default.
If this note is not paid at maturity whether by acceleration or otherwise, and is
placed in the hands of any attorney for collection, or suit is filed hereon, or proceedings are
had in probate, bankruptcy, receivership, reorganization, arrangement or other legal
proceedings for collection hereof Maker and each other liable party agree to pay Lender
its collection costs, including court costs and a reasonable amount for attorneys 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 anyth ng 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 otherw se n 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 from any default
hereunder or otherwise or in the event of any required orpermitted prepayment, then
such consideration that constitutes interest may never inc ude more than the maximum
amount allowed by applicable law, and excess interest, if any, provided for in this note or
otherwise shall be canceled automatically as of the date of such acceleration or
prepayment and, if theretofore prepaid, shall be credited on this note (or if this note shall
have been paid in full, refunded to Maker); and (iii) all calculations of the rate of interest
taken reserved contracted for, charc~ed or received under this note or under any of the
other aforesaid agreements or otherwise in connect on with this note, that are made for the
purpose of determining whether such rate exceeds the ,maximum lawful rate shall be
made, to the extent permitted by applicable law, by amortizing,prorating, allocating, and
spreading such interest over the entire term of the loan evidenced by this note(including all
renewal and extended terms).
Maker may prepay all or any pad of the principal of this note before maturity without
pena ty No pad al prepayment shal/reduce postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker shal be directly and primarily liable for the payment of all sums called
for hereunder and except for notices specifically required to be g~ven by the holder hereof
to Maker pursuant to the eadier prov sons of th~s note, Maker and each other liable party
hereby express y waive demand presentment for payment notice of nonpayment, protest,
notice Of protest, notice of intention to accelerate maturity, notice of acceleration of
matur ty and a other notice, filing of suit and diligence in collecting this note or enforcing
or hanclling any of the security therefor and do hereby agree to any substitution, exchange
or re ease, in whole or in part, of any security here~for or the release of any other liable
party, and do hereby consent to any and all renewals or extensions from time to time, of
this note or any part hereof, either before or after maturity, all without any notice thereof to
any of them andwthout affecting or releasing the liability of any of them. Each holder
hereof in order to enforce payment of this note by any other liable party shall be required
to first institute suit or exhaust its remed es against Maker and to enforce its rights against
any security therefor prior to enforcing payment of this Note by any other liable party.
SIGNED AND AGREED TO on the day of ,2006.
ABRAHAM MFG., INC.,
a Texas corporation
By:.
Signature
Its:
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS
COUNTY OF JEFFERSON *
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act and deed of ABRAHAM MANFACTURING, INC., a Texas
corporation, for the purposes and consideration therein expressed, and the Capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
,2006.
NOTARY PUBLIC, STATE OF TEXAS
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
ABRAHAM MFG., INC., a Texas
corporation
1520 Woodworth Blvd.
Port Arthur, Texas 77640
ATTN: Janice Richard
EXHIBIT "A2"
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Abraham
Mfg., Inc., a Texas corporation (hereinafter called "Make¢') breaches that certain Economic
Incentive Contract and Loan Agreement between the City of Port Arthur Section 4A
Economic Development Corporation (hereinafter called "Lende¢') and Maker, dated
,2006.
Effective Date of Note: the. day of ,200 .("date of breach")
Principal Amount: $ , which is $251,410.00 minus the incentive credits
earned by Maker according to that certain Economic Incentive Contract and Loan
Agreement between the Lender and Maker (described hereinbefore).
Term of the Loan: Three years from effective date.
Payment Schedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office
at P.O. Box 1089, Port Arthur, Texas, 77640-1089, or such other place or places as the
holder hereof shall from time to time designate in written notice to Maker, the principal
amount in legal and lawful money of the United States of America, together with interest
thereon from the date hereof unt maturity at the rate of ten percent (10%) per annum as
detailed herein.
A past due principal and interest shall bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum, or to the, ,rnaxim. um e~en,t, allow.ed ..by law
(whichever is greater) as may hereafter be in effect, payable on aemana ar[er mazumy.
This note s due and payable as follows: Thirty-six/36) equal monthly installments
of principal and interest on the first of each month, starling on the month mmed ately
following the effective date of the Note.
Any notices requ red 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,
sha 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, propery addressed and
with postage prepaid.
Th s note s also secured by and entitled to the benefits of all other security
agreements, pledges, collateral assignments, deeds of trust, guaranties, mortgages,
assignments, and lien instruments, if any, of any kind executed by Maker or by any other
party as security for any loans owing by Maker to the Lender. Such lien instruments shall
include those executed simultaneously herewith, those heretofore executed, and those
hereafter executed.
2/2~2006
If any installment or payment of principal or interest of this note is not paid when
due or any drawer, acceptor, endorser, guarantor, surety, accommodation party or other
person now or hereafter primarily or secondarily liable upon or f,o,r payment of all or any
part of this note (each hereina~er called an "other liable party') shall die, or become
~nsolvent (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 governmental authority or any court at the instance thereof shall take
possession of any substantial part of the property of or assume control over the affairs or
operations of, or a receiver shall be appointed for or take possession of the property of, or
a writ or order of aftachment 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 hable 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 information or statements which are
misleading in any respect; or if a default occurs under any instrument now or hereafter
executed ~n 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 in good faith believe
the prospect of payment or pedormance 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 defaut wthout waiving any prior or subsequent
default.
If this note is not paid at maturity whether by acceleration or otherwise, and is
p aced n 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
~ts 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.
Accord ng y, 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 reser,/ed, 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 from any default
hereunder or otherwise or in the event of any required or permifted prepayment, then
such consideration that constitutes interest may never nc ude more than the maximum
amount allowed by applicable law and excess interest, if any, provided for in this note or
otherwise shall be canceled automatically as of the date of such acceleration or
prepayment and if theretofore prepaid, shall be credited on this note (or if this note shall
have been paid in full, refunded to Maker); and (iii) all calculations of the rate of nterest
taken reserved contracted for, charged or received under this note or under any of the
other aforesaid agreements or otherwise n connect on w th th s 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 lerm of the loan evidenced by this note(including all
renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to
continue paying the installments herein prowded on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker shall be directly and primarily liable for the payment of all sums called
for hereunder; and, except for notices specifically required to be g~ven by the holder hereof
to Maker pursuant to the earlier provisions of this note, Maker and each other liable party
hereby expressly waive demand presentment for payment, notice 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 here-for or the release of any other liable
pady, 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 andwithout affecting or releasing the liability of any of them. Each holder
hereof in order to enforce payment of this note by any other liable party, shall be required
to first institute suit or exhaust its reined es' aga nst Maker and to enforce its rights against
any secudty therefor prior to enforcing payment of this Note by any other liable party.
SIGNED AND AGREED TO on the __ day of ., 200__.
ABRAHAM MFG., INC.,
a Texas corporation
By:
Signature
Its:
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON *
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act and deed of ABRAHAM MANFACTURING, INC., a Texas
corporation, for the purposes and consideration therein expressed, and the Capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the __ day of
., 200__,
NOTARY PUBLIC, STATE OF TEXAS
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
ABRAHAM Mfg., INC., a Texas
corporation
1520 Woodworth Blvd.
Port Arthur, Texas 77640
ATTN: Janice Richard
EXHIBIT "B"
EQUIPMENT LIST FROM APPLICATION
EXHIBIT "C"
DEED OF TRUST
Date: · 2006
Grantors: Abraham Mfg., Inc.
Grantors' Mailing Address
(including county): 1520 Woodworth Blvd.
Port Arthur, Texas 77640
(Jefferson County)
Trustee: KATHLEEN A. MCGLYNN
Trustee's Mailing Address
(including county): Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
(Jefferson County)
Beneficiary: PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION ("PAEDC")
Beneficiary's Mailing Address
(including county): 4173 3 9th Street
Port Arthur, Texas 77642
(Jefferson County)
Note (No. 1)
Date: ,2013
Amount: $299,610.76
Maker: Abraham Mfg., Inc. (Grantor)
Payee: PAEDC (Beneficiary)
Final Maturity Date: ,2013
Note (No. 2)
Date: ,20__
Amount: $251,410.00 minus incentive credits earned by Maker
according to that certain Economic Incentive Contract and
Loan Agreement between Grantor and Beneficiary.
Maker: Abraham Mfg., Inc. (Grantor)
Payee: PAEDC (Beneficiary)
Final Maturity Date: Three years alter Date of Note.
Property: See Attachment for full legal description. Physical address is 1520 Woodworth
Blvd., Port Arthur, Texas 77640.
The Property covered by this Instrument includes the Land and the following items,
whether now owned or hereafter acquired, all of which, including replacements and additions
thereto, shall be deemed to be and remain part of the Property covered by this Instrument, and all
rights, hereditaments and appurtenances pertaining thereto, all of which are referred to as the
"Property":
(a) Any and all buildings, improvements, and tenements now or hereafter attached to or
placed, erected, constructed, or developed on the Land;
(b) all fixtures, now or hereafter attached to Land or Improvements, that are necessary or
useful for the complete and comfortable use and occupancy of the Land and
Improvements;
(c) all water and water rights, timber, crops, and mineral interest pertaining to the Land;
(d) all building materials and fixtures now or hereafter delivered to and intended to be
installed in or on the Land or the Improvements;
(e) all plans and specifications for the Improvements and for any future development of
or construction on the Land;
(f) all Grantor's rights (but not Grantor's obligations) under any contracts relating to the
Land or the Improvements;
(g) all deposits (including tenant security deposits), bank accounts, funds, instruments,
notes or chattel paper arising from or by virtue of any transactions related to the Land
or the Improvements;
(h) all Grantor's rights (but not Grantor's obligations) under any documents, contract
rights, accounts, commitments, construction contracts (and all payment and
performance bonds, statutory or otherwise, issued by any surety in connection with
any such construction contracts, and the proceeds of such bonds), architectural
contracts and engineering contracts arising from or by virtue of any transactions
related to the Land or the Improvements;
(i) all permits, licenses, franchises, certificates, and other rights and privileges now
owned or held or hereafter obtained in connection with the Land and the
Improvements;
(j) all development fights, utility commitments, water and wastewater taps, capital
improvement project contracts, utility construction agreements with any
governmental authority, including municipal utility districts, or with any utility
companies (and all refunds and reimbursements thereunder) relating to the Land or
the Improvements;
(k) all proceeds arising from or by virtue of the sale, lease or other disposition of the
Land or the Improvements;
(1) all proceeds (including premium refunds) of each policy of insurance relating to the
Land and the Improvements;
(m) all proceeds from the taking of any of the Land or the Improvc~ents or any rights
appurtenant thereto by right of eminent domain or by private or other purchase in lieu
thereof, including change of grade of streets, curb cuts or other rights of access, for
any public or quasi-public use under any law;
(n) all fight, tire, and interest of Grantor in and to all streets, roads, public places,
easements, and fights-of-way, existing or proposed, public or private, adjacent to or
used in connection with, belonging or pertaining to the Land;
(o) all of the Leases, rents, royalties, bonuses, issues, profits, revenues, or other benefits
of the Land or the Improvements, including without limitation cash or securities
deposited pursuant to leases to secure performance by the tenants of their obligations
thereunder (subject to the Assignment of Rents made in Article V below); and
(p) other interest of every kind and character that Grantor now has or at any time
hereafter acquires in and to the Land and the Improvements, including rights of
ingress and egress and all reversionary fights or interests of Grantor with respect to
such property and all of Grantor's rights (but not Grantor's obligations) under any
covenants, conditions, and restrictions for the Land, as the same may be amended
from time to time, including Grantor's rights, title, and interests thereunder as
declarant or developer, if applicable.
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, right-of-ways, 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 notes according to their 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, furnishing 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 all 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 al 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,
Beneficiary is submgated to all of the rights and liens of the holders of any debt
so paid;
3. Beneficiary shall apply any proceeds received under the insurance policy to repair
or replace damaged or destroyed improvements covered by the policy, unless
Grantor is in default of Notes or Deed of Trust in which case insurance proceeds
may be applied to reduce Grantor's obligation under Notes or Deed of Trust;
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
note is payable for any sums so paid, including attorney's fees, plus interest on
those sums from the dates of payments at the rate stated in the note for matured,
unpaid m,nounts. 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 principle balance and earned interest on the note
immediately due;
b. Request Trustee to foreclosure 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(s).
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 other exceptions to
conveyance and warranty; and
3. From the proceeds of the sale, pay in this order
a. Expenses of foreclosure;
b. To Beneficiary, the full amount of principle, interest, attorney's fees, and
other charges due and unpaid;
c. Any amount required by law to be paid before payment to Grantor; and
d. To Grantor, any balance.
General Provisions
1. If any of the property is reconveyed under this deed of trust, Grantor shall
immediately surrender possession to the Beneficiary. If Grantor fails to do so,
Grantor shall become a tenant at sufferance of the Beneficiary, subject to an
action for forcible detainer.
2. Recitals in any Trustee's deed conveying the property will be presumed to be true.
3. Proceeding under this deed of trust, filing suit 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 warrants the validity and enforceability of the assignment.
Grantor may as Beneficiary's licensee collect rent and other income and receipts
as long as Granlor is not in default under the note or this 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 trust, Grantor may retain the
excess. If Grantor defaults in payment of the note of 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 vacant and collect all rent and other income
and receipts. Beneficiary neither has not assumes any obligations as lessor or
landlord with respect to any occupant of the property. Beneficiary may exercise
Beneficiary's rights and remedies under this paragraph without taking possession
of the property. Beneficiary shall apply all rent and other income 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 trust in the order determined by Beneficiary. Beneficiary is not
required to act under this paragraph, and acting under this paragraph does not
waive any of Beneficiary's other rights or remedies. If Grantor becomes a
voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in
bankruptcy will be tantamount to the appointment ora receiver under Texas law.
8. Interest on the debt secured by this deed of trust shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved,
charged, or received under law; any interest in excess of that maximum amount
shall be credited on the principal of the debt or, if that has been paid, refunded.
On any acceleration or required or permitted prepayment, any such excess shall
be canceled automatically as of the acceleration or prepayment or, if already 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 deed of trust.
11. This deed of trust shall bind, insure to the benefit of, and be exercised by
successors in interest of all parties.
12. If Grantor and Maker are not the same person, the term Grantor shall include
Maker.
13. If all or any part of the Property is sold, conveyed, leased for a period longer than
three (3) years, leased with the option to purchase, or otherwise sold (including
contract for deed), without the prior written consent of Beneficiary, then
Beneficiary may at its option declare the outstanding balance of the Note(s), plus
accrued interest to be immediately due and payable. The creation ora subordinate
lien, any sale thereunder, any deed under threat or order of condemnation, any
conveyance solely between Makers, the passage of title by reason of the death of
a Maker or by operation of law shall not be construed as a sale or conveyance of
the Property,
14. THIS DEED OF TRUST IS GRANTED IN CONJUNCTION WITH THAT
CERTAIN ECONOMIC INCENTIVE CONTRACT AND LOAN AGREEMENT
OF EVEN DATE.
Abraham Mfg., Inc.
By:
Signature
Its:
Position
Subscribed and Sworn To before me this the day of January, 2006.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
Kathleen A. McGlynn
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
Attachment 1 to Deed of Trust
Legal Property Description
Lots Numbered One through Eighteen, inclusive (1 thru 18, inc.) in
Block Number Twenty-eight (28) of BEACHWAY ADDITION
SECOND UNIT, to the City of Port Arthur, Jefferson County, Texas,
as the same appears upon the map or plat thereof, on file and of record
in Vol. 5 page 31 Map Records of Jefferson County, Texas.
EXHIBIT "D"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his knowledge and belief, that:
1. No funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an
officer or employee of any agency, a member of the City or of the PAEDC
in connection with the awarding of any contract, the making of any grant,
the making of any loan, the entering into of any cooperative agreement, or
modification of any contract, 9rant, loan, or cooperative agreement.
2 The undersigned shall require that the language of this certification be
included in the award documents for all sub-awards at all tiers (including
subcontracts, sub-grants, and contracts under grants, loans, and
cooperative agreements), and that all Subs shall certify and disclose
accordingly.
This certification is material representation of fact which reliance was placed when this
transaction was made or entered into. Submission of this cedification is a prerequisite
for makin9 or entering into this transaction.
Signed:
Abraham Mfg., Inc.
By:
Signature
Its:
Position