HomeMy WebLinkAboutPR 13619: CLEARWATER SALE P. R. No. 13619
06/19/06 gt
RESOLUTION NO.
A RESOLUTION AS IT PERTAINS TO THE SALE OF
APPROXIMATELY FIVE (5) ACRES OF LAND OUT OF
LOT 2, BLOCK I OF THE CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
BUSINESS PARK TO SETX CLEARWATER
ENVIRONMENTAL, L.L.C.
WHEREAS, the City of Port Arthur Section 4A Economic
Development Corporation deems it in the public interest to sale
approximately five acres out of Lot 2, Block 1 of the City of Port
Arthur Section 4A Economic Development Corporation Business Park to
SETX Clearwater Environmental, L.L.C.; and
WHEREAS, Germer Gertz, L.L.P. has prepared the sales agreement
and has approved the real estate documents as to legality as
denoted in Exhibit "A"; and
WHEREAS, the total purchase price is $ with
$ being the down payment and the remainder of the purchase
price being paid over months with __ % interest per annum
being assessed; and
WHEREAS, 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.
Section 2. That the City of Port Arthur approves the
program or project of the City of Port Arthur Section 4A Economic
Development Corporation as to sale a portion of Lot 2, Block 1 of
the Business Park to SETX Clearwater Environmental, L.L.C.
Section 3. That the President and Secretary of the City
of port Arthur Section 4A Economic Development Corporation is
herein authorized to execute the Sales Agreement in substantially
the same form as attached hereto as Exhibit "B" for a total
purchase price of $
Section 4. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this __ day of
, A.D., 2006, at a Special Meeting of the City
Council of the City of Port Arthur, Texas, by the following vote:
AYES: Mayor
Councilmembers '
;
NOES:
MAYOR
ATTEST:
CITY SECRETARY
APPROVED AS TO FORM:
(See Confidential Memo)
CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
CITY MANAGER
EXHIBIT "A"
AUSTIN BEAUMONT HOUSTON
KATHLEEN A. McGL?NN
ASSOCIATE
Direct Line: 40~.812.8000
kmcglynn~ermer, com
June 19, 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: SETX Clearwater Environmental, L.L.C.; GG File #69805
Contract for submission to Joint EDC Board/City Counsel Meeting on June 22,
2006.
Dear Mr. Batiste:
Attached is a Sales Contract for the sale of five acres of Lot 2, Block 1 of the Port Arthur
EDC Business Park to SETX Clearwater Environmental, LLC., and the form of Special Warranty
Deed with Vendor's Lien, Commercial Promissory Note, and Deed of Trust.
Germer Gertz, L.L.P. has approved the contract and real estate documents as to legality. An
incentive to SETX Clearwater Environmental, L.L.C, is not an eligible Section 4A project and,
therefore, the price for the land should be the fair market price.
Sincerely,
GERMER GERTZ, L.LP.
Kathieen A. McG~ynn - (~
KAM]Ir
cc: Deborah Freeman
Guy N. Goodson (in thefirm)
P.O. BOX 4915 · BEAUMONT, TX 77704 · PHONE: 409.654.6700" FAX: 409.835.2115
EXHIBIT "B"
SALE AGREEMENT
BY THIS SALE AGREEMENT ("Aerecwnent") entered into as of the day of
,2006, THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION, a Texas not-for-profit corporation, 4173 39th Street, Port
Arthur, Texas 77642 ("Seller"), and SETX Clearwater Environmental, L.L:C., 3787 Doctors Drive,
Suite 105, Port Arthur, Texas 77642-5560 ("Buyer").
FOR GOOD AND VALUABLE CONSIDERATION and the mutual covenants contained herein, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
1. AGREEMENT.
Seller is the owner of that certain real property of five acres more or less situated in Port
Arthur, Jefferson County, Texas described in Exhibit "A", and incorporated herein by this reference.
Subject to the terms and conditions of this Agreement, Seller agrees to sell and Buyer agrees to
purchase a portion of Seller's property as shown on Exhibit "A" and legally described on Exhibit
"B' attached hereto, together with all improvements located thereon, if any, and any and all rights
appurtenant thereto (the "Property").
2. OPENING AND CLOSING OF ESCROW.
Upon execution of this Agreement by Seller and Buyer, the parties shall cause an escrow (the
"Escrow") to be established with Port Arthur Abstract & Title Company, 2950 Turtle Creek, Port
Arthur, Texas 77642; tel: (409) 727-8871 ("Escrow Agent"). As used herein, the term "Opening of
Escrow" shall mean the day on which Escrow Agent receives a copy of this Agreement executed by
both Buyer and Seller. Consummation of the sale provided for herein (the "Closing") shall take
place on the Closing Date through the Escrow at Port Arthur Abstract & Title Company, 2950 Turtle
Creek, Port Arthur, Texas 77642 or at such other place as Buyer and Seller mutually agree in writing.
For purposes of this Agreement, the Closing Date shall mean on or before July 31, 2006, or such
other time as Seller and Buyer mutually agree in writing.~ At or prior to the Closing, each of the
parties shall execute and deliver such documents and perform such acts as are provided for herein, or
as are necessary, to consummate the transaction contemplated hereunder. All obligations of the
parties to be performed at or prior to Closing are conditions precedent to the Closing as well as
covenants.
3. PURCHASE PR1CE AND PAYMENT TERMS.
3.1 Price. The total purchase price to be paid for the Property shall be
AND NO/100 DOLLARS ($ ), the estimated fair market value
of the Property, payable as follows:
Time extensions up to December 31, 2006, do not require City Council approval.
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(a) $4,500.00, as an earnest money deposit (the "Earnest Money") shall
be deposited by Buyer in cash, cashier's check, certified check or wire transfer in
Escrow simultaneously upon Opening of Escrow and shall be paid to Seller at
Closing; and
(b) the balance of the purchase price shall be paid under the terms of that
(1) certain commercial promissory note in the original principal sum of
AND NO/100 DOLLARS ($ ), executed by
Buyer, and payable to the order of Seller, bearing interest at the rate of seven-percent
(7%), which is one-percent (1%) below the prime rate effective on June 16, 2006,
payable in monthly installments of AND NO/100
DOLLARS ($ ) each, with the tlrst of such monthly installments of
principal and interest due and payable on the 15th of the month following the calendar
month of closing, and on the 15th of each of the next fifty-nine (59) consecutive
months, in the form of Exhibit "C", attached hereto and made a part hereof by this
reference (the "Note"). The Note shall be secured by a vendor's lien, with superior
title retained in the Deed conveying the Property to Buyer, contained in Exhibit "D"
and by a Deed of Trust, contained in Exhibit "E', attached hereto and made a part
hereof by this reference.
The sums described in subparagraphs (a) and Oo) above are collectively referred to herein as the
"Purchase Price".
4. ESCROW INSTRUCTIONS.
The parties shall deliver to Escrow Agent an executed copy of this Agreement, which shall
constitute instructions to Escrow Agent. If required by Escrow Agent, the parties shall execute the
printed form escrow instructions used by Escrow Agent including any mutually acceptable
modifi cations thereto (the "Escrow Instructions"), to which shall be attached an executed copy of this
Agreement, and which together shall constitute instructions to Escrow Agent. If any of the
provisions of this Agreement conflict with the Escrow Instructions, the provisions of this Agreement
shall govern and control. No provision of the Escrow Instructions shall excuse any performance by
either party at the times provided in this Agreement, extend the Closing Date provided for herein or
provide either party hereto with any brace period not provided in this Agreement, and any such
provision in the Escrow instructions shall be deleted.
5. TITLE REPORT~ SURVEY.
As soon as reasonably possible after Opening of Escrow, Buyer may obtain, at Buyer's
expense, and deliver a copy to Seller if so obtained, a current commitment for Owner Policy of Title
Insurance ("Commitment'). Buyer shall have prepared, at Buyer's expense, a survey ofthe Property
(the "Survey'), said surveyor shall also stake around the Retained Property, if any. If any matters
indicated as exceptions in such Commitment (other than the standard printed exclusions or
exceptions) or shown on the Survey would materially and adversely affect Buyer's contemplated use
of the Property, Buyer shall be entitled to object to such matters by delivering written notice to Seller
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and Escrow Agent on or before five (5) days a~er receipt of the last of said Commitment and Survey,
said notice to speci~ in reasonable detail the matter to which Buyer objects and the manner in which
said matter materially and adversely affects Buyer's contemplated use of the Property. Buyer shall be
deemed to have approved the condition of title i fit fails to notify Seller and Escrow Agent in writing
of any objections by said date. After receipt of Buyer's objections, Seller shall be entitled to attempt
to eliminate the matters to which Buyer has objected or to cause Escrow Agent to insure over said
matters. Seller shall have until the Closing Date to eliminate said matters or to cause Escrow Agent
to insure over said matters. If Seller eliminates said matters or causes Escrow Agent to insure over
said matters, Seller shall notify Buyer thereof and Closing shall occur on the later of (i) ten (10) days
after Buyer's receipt of such notification from Seller; or (ii) the Closing Date. If Seller at any time
notifies Buyer in writing that Seller is unable or unwilling to eliminate said matters or cause Escrow
Agent to insure over said matters, this Agreement shall automatically terminate seven (7) days after
the delivery of such notice by Seller unless Buyer waives the objection by written not/ce delivered to
Seller and Escrow Agent on or before the expiration of such seven (7) day period, in which event
Buyer shall be obligated to close the Escrow on the later of (i) five (5) days after Seller's receipt of
notification from Buyer of Buyer's willingness to close; or (ii) the Closing Date. In the event of such
termination by either Seller or Buyer, the Earnest Money shall be refunded to Buyer and the parties
hereto shall have no further obligations to each other under this Agreement, except as otherwise
specifically set forth in this Agreement.
6. TRANSFERRING DOCUMENT.
Title to the Property shall be conveyed to Buyer by a special warranty deed with vendor's lien
(the "Transferring Document", contained in Exhibit "D") duly executed by Seller and delivered at the
Closing. Seller shall bear the cost of said Transferring Document preparation.
7. INSPECTION OF PROPERTY.
Buyer acknowledges that, prior to the execution of this Agreement, Buyer has had adequate
opportunities to make such inquiries and inspections, conduct such tests, obtain such reports and
undertake any other feasibility studies or inquiries as respects the Property or the transaction
contemplated hereby as Buyer in its sole discretion deems appropriate and that Buyer is entering into
this Agreement and is purchasing the Property based solely upon its own inspection and
investigation. Except for surveying the Property, Buyer shall have no further right of entry upon the
Property for such purposes prior to the Closing. Should Buyer fail to consummate this transaction,
Buyer shall promptly deliver to Seller true and correct copies of all data, reports, analyses, pre
formas, test results, studies and other documents generated by Buyer's previous inspections and
testing of the Property or otherwise in Buyer's possession pertaining to the Property. Buyer agrees
that all such infbnnation is confidential and shall not be released to persons not a party to this
contract, except as required by law.
8. PROPERTY CONDITION.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE
CONTRARY, BUYER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO
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REPRESENTATJONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF HABITABILITY, AND SUITABILITY AND FITNESS
FOR INTENDED PURPOSE, WITH RESPECT TO ANY ASPECT OF THE PROPERTY.
BUYER IS PURCHASING THE PROPERTY STRICTLY IN "AS IS" "WHERE AS"
CONDITION, AND BUYER ACCEPTS AND AGREES TO BEAR ALL RISKS REGARDING
ALL ATTRIBUTES AND CONDITIONS, LATENT OR OTHERWISE OF THE PROPERTY.
BUYER HAS MADE OR WILL MAKE PRIOR TO THE CLOSING ITS OWN INSPECTION
AND INVESTIGATION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ITS
SUBSURFACE, SOIL, ENGINEERING AND OTHER CONDITIONS AND REQUIREMENTS,
WHETHER THERE ARE ANY EMINENT DOMAIN OR OTHER PUBLIC OR QUASI-PUBLIC
TAKINGS OF THE PROPERTY CONTEMPLATED, AND ALL ZONING AND REGULATORY
MATTERS PERTINENT TO THE PROPERTY AND TO THE PRESENT USE OR OCCUPANCY
OF THE PROPERTY. BUYER IS ENTERING INTO THIS AGREEMENT AND PURCHASING
THE PROPERTY BAS ED UPON ITS OWN INSPECTION AND INVESTIGATION AND NOT 1N
REL1ANCE ON ANY STATEMENT, REPRESENTATION, INDUCEMENT OR AGREEMENT
OF SELLER EXCEPT AS SPECIFICALLY PROVIDED HEREIN. BUYER AGREES THAT
NEITHER SELLER NOR ANYONE ACTING ON BEHALF OF SELLER HAS MADE ANY
REPRESENTATION, GUARANTEE OR WARRANTY WHATSOEVER, EITHER WRI'I'! EN OR
ORAL, CONCERNING THE PROPERTY EXCEPT AS SPECIFICALLY SET FORTH HEREIN.
ANY ENGINEERING DATA, SOILS REPORTS, OR OTHER INFORMATION THAT SELLER
OR ANY OTHER PARTY MAY HAVE DELIVERED TO BUYER IS FURNISHED WITHOUT
ANY REPRESENTATION OR WARRANTY WHATSOEVER. SELLER SHALL HAVE NO
RESPONSIBILITY, LIABILITY OR OBLIGATION SUBSEQUENT TO THE CLOSING WITH
RESPECT TO ANY CONDITIONS, INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL CONDITIONS, OR AS TO ANY OTHER MATTERS WHATSOEVER
RESPECTING IN ANY WAY THE PROPERTY, AND BUYER HEREBY RELEASES SELLER,
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WITH RESPECT TO SUCH
CONDITIONS.
9. COVENANTS AND RESTRICTIONS. Buyer has read the Covenants and Restrictions for
the Port Arthur Economic Development Corporation Business Park, recorded in the Public Records
of Jefferson County, Texas.
10. REMEDIES.
1 0.1 Termination. Except as expressly prohibited in this Agreement, in the event of any
default in this Agreement by either of the parties hereto, the other party, in addition to any ri ,ght or
remedy available hereunder, at law or in equity, shall have the right to terminate this Agreement by
written notice to the defaulting party and Escrow Agent. If any such termination is the result of
default hereunder by Seller, then the Earnest Money and interest accrued thereon shall be retumed to
Buyer. lfBuyer defaults hereunder, actual damages to Seller will be difficult to calculate but Buyer
and Seller agree that the amount of the Earnest Money designated above is a reasonable
approximation thereofi Accordingly, if Buyer defaults, Seller shall be entitled to terminate this
Agreement and immediately upon such termination by Seller, Escrow Agent shall pay to Seller, as
Seller's sole remedy, the Earnest Money, together with interest thereon, and any other monies paid on
D R A F T - 4 - EDC B0ard~City Council V~rsion ~q9/06
behalf of Seller. Nothing contained in this Section shall prevent Seller from enforcing Buyers
obligations and liabilities which survive a termination of this Agreement.
10.2 No Specific Performance. If either Buyer or Seller breaches this Agreement prior to
the Closing and, as a result, the Closing does not occur, each party waives the right to specific
pertbrmance. Each party al~'ees that this clause shall constitute an absolute defense to any action
filed by one of the parties hereto against the other for specific performance. This clause, if asserted
by one of the parties hereto against an action fbr specific performance, shall enable said party to
cause the action for a specific performance to be set aside at any time nunc pro tunc.
10.3 Costs and Fees. If either party hereto breaches any term of this Agreement, the
breaching party agrees to pay the non-breaching party all reasonable fees, including but not limited to
reasonable attorneys' fees, expert witness fees, investigation costs, costs of tests and analysis, travel
and accommodation expenses, deposition and trial transcript costs, court costs and other costs and
expenses incurred by the non-breaching party in enforcing this Agreement or preparing for legal or
other proceedings, whether or not instituted. Ifanylegal or other proceedings are instituted, the party
prevailing in any such proceeding shall be paid all of the aforementioned costs, expenses and fees by
the other party, and if any judgment is secured by such prevailing party, all such costs, expenses, and
fees shall be included in such judgment, attorneys' fees to be set by the court and not by the jury.
10.4 Default Interest. If any monies become payable by one party to the other pursuant to
this Agreement and are not paid when due then all sums unpaid shall bear interest at the then highest
lawful contractual rate from the due date or, if there is no maximum rate then in existence, at the per
annum rate of 18%.
10.5 Waiver. Excuse or waiver of the performance by the other party of any obligation
under this Agreement shall only be effective if evidenced by a written statement signed by the party
so excusing. No delay in exercising any right or remedy shall constitute a waiver thereof, and no
waiver by Seller or Buyer of the breach of any covenant of this Agreement shall be construed as a
waiver of any preceding or succeeding breach of the same or any other covenant or condition of this
Agreement.
11. PRORATIONS; CLOSING COSTS.
11.1 Prorations. At the Closing, Escrow Agent shall obtain all necessary information and
shall prorate and adjust real estate taxes, assessments, and fees between Seller and Buyer as of the
Closing based on the latest available information. No further adjustment in such tax figures shall
occur following the Closing Date and Buyer shall be responsible for any roll back taxes or other
increase in real estate taxes and assessments on the Property due to a change in the use or ownership
of such Property. Seller and Buyer shall each pay their respective attorneys' fees. All recording
charges and other costs of Closing shall be allocated between Seller and Buyer in accordance with
the standard custom and practice of Escrow Agent, and Seller and Buyer shall each pay one-half of
Escrow Agent's fees; provided, however, that the defaulting party shall be responsible to pay any
escrow cancellation fees if the Escrow fails to close.
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11.2 Possession. Seller will deliver and Buyer will accept possession of the Property on
the Closing Date.
12. MISCELLANEOUS.
12.1 Notices. No notice, consent, approval or other communication provided for herein or
given in connection herewith shall be validly given, made, delivered or served unless it is in writing
and delivered personally, sent by overnight courier or sent by registered or certified United States
mail, postage prepaid, with return receipt requested, if to:
Seller, at: THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
Attn: Jana Barnes
4173 39th Street
Port Arthur, Texas 77642
Buyer, at: SETX CLEARWATER ENVIRONMENTAL, L.L.C.
Atto: Saeed A. Ally, Managing Member
3787 Doctors Drive, Suite 105
Port Arthur, Texas 77642-5560
Escrow Agent, at: PORT ARTHUR ABSTRACT & TITLE COMPANY
Attn:
2950 Turtle Creek
Port Arthur, Texas 77642
or to such other addresses as any party hereto may from time to time designate in writing and deliver
in a like manner to the other party. Notices, consents, approvals, and communications given by mail
shall be deemed delivered upon the earlier of forty-eight (48) hours after deposit in the United States
mail in the manner provided above or upon delivery to the respective addresses set forth above, if
delivered personally or sent by overnight cour/er.
12.2 Interpretation. The captions of the Sections of this Agreement are for convenience
only and shall not govern or influence the interpretation hereof: This Agreement is the result of
negotiations between the parties and, accordingly, shall not be construed for or against either party
regardless of which party drafted this Agreement or any portion thereof. Time is of the essence of
this Agreement.
12.3 Successors and Assimas. All of the provisions hereof shall inure to the benefit of and
be binding upon the personal representatives, heirs, successors and assigns of Seller and Buyer.
Buyer shall have no right to assign its interest hereunder without the prior written consent of Seller,
and any such assignment without Seller's consent shall be void at Seller's option. If Buyer is a
corporation, partnership, or trust, the transfer or assignment of any stock, interest or beneficial
interest in such corporation, partnership or trust in excess of forty-nine percent (49%) shall be
deemed an assignment within the meaning of this paragraph.
D R A F T - 6 - £DC BoardtCity Council Version 6/19t06
12.4 No Partnership, Third Person. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or othec arrangement between
Seller and Buyer. No term or provision of this Agreement is intended to, or shall, be for the benefit
of any person, firm, corporation or other entity not a party hereto (including, without limitation, any
broker), and no such party shall have any right or cause of action hereunder.
12.5 Entire Agreement. This Agre~nnent constitutes the entire agreement between and the
reasonable expectations of the parties pertaining to the subject matter hereof. All prior and
contemporaneous agreements, representations and understandings of the parties, oral or written, are
hereby superseded and merged herein. No change or addition is to be made to this Agreement except
by a written agreement executed by all of the parties. Buyer shall not record this Agreement or any
memorandum thereof in the public records without the prior written approval of Seller, which
approval may be withheld in Seller's sole and absolute discretion.
12.6 Further Documents. Buyer and Seller shall execute and deliver all such documents
and pertbrm all such acts as reasonably requested by the other party ti'om time to time, prior to and
following the Closing, to carry out the matters contemplated by this Agreement.
12.7 Utility Refunds. No agreements or contracts in existence at the Closing relating to
utility refunds, deposit returns or otherwise are included in the transactions provided for in this
Agreement, and Buyer shall have no fight, title or interest therein or in any monies now or hereafter
due Seller thereunder. All refunds, credits and discounts of any nature received by or accruing to the
benefit of Buyer at any time after the Closing relative to the Property or any part thereof or to any
utility for any part of the Property that were earned or agreed to prior to Closing shall be immediately
remitted by Buyer to Seller in cash.
12.8 Incorporation of Exhibits. All exhibits attached to this Agreement are by this
reference incorporated herein.
12.9 Choice of Law and Venue. This Agreement shall be govemed by the laws of the State
of Texas and venue shall lie in Jefferson County.
12.10 Date of Pertbrmance. If the date of performance of any obligation or the last day of
any time period provided for herein should fall on a Saturday, Sunday or legal holiday, then said
obligation shall be due and owing, and said time period shall expire, on the first day thereafter which
is not a Saturday, Sunday or legal holiday.
12.11 Counterparts. This Agreement may be executed in any number of counterparts. Each
such counterpart hereof shall be deemed an original, but all counterparts shall constitute but one
agreement.
12.12 Authority. If the Buyer is a corporation, partnership or limited liability company,
each of the parties represents and warrants to the other that it is duly formed and validly existing in
the state of its formation or pursuant to federal laws and is in good standing in the State of Texas.
D R A F T - 7 - EI)C Beard/City Council Vession 6/19/06
Each party further represents and warrants that ithas full power and authority to enter into and carry
out the provisions of this Agreement and all documents and instruments contemplated hereunder;
that doing so will not violate or be in conflict with any law, rule, regulation or order or any
agreement to which it is a party or under which it is bound; that this Agreement has been authorized
by all necessary action and is the valid and binding obligation of such party.
IN V, qTNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written above.
SELLER:
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
By:
Eli Roberts, President
By:
Linda Spears, Secretary
BUYER:
SETX CLEARWATER ENVIRONMENTAL, L.L.C.
By:
Saeed A. Ally, Managing Member
By:
O. LaWayne Miller, Managing Member
D R A F T - 8 - EDC Bt~x[£, tyCounc I Vets on 6/19 06
APPROVAL BY ESCROW AGENT
Escrow Agent hereby (1) acknowledges receipt of a fully executed copy or counterpart copies
of the foregoing Sale Agreement on this __ day of ,2006, which date is hereby
designated as the "Opening of Escrow" date, and (2) agrees to establish an escrow (Escrow No.
) in accordance therewith and to act in accordance with the provisions of
the Sale Agreement. Escrow Agent further agrees to deliver immediately to Buyer and Seller fully
executed copies of the Sale Agreement.
PORT ARTHUR ABSTRACT & TITLE COMPANY
By:
, Authorized Agent
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LIST OF EXHIBITS
Exhibit "A" Plat Showing Properly
Exhibit "B" Legal Description
Exhibit "C" Commercial Promissory Note
Exhibit "D" General Warranty Deed with Vendor's Lien
Exhibit "E' Deed of Trust
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EXHIBIT "A"
EXHIBIT "B"
LEGAL DESCRIPTION
The west 397.71 feet of Lot two (2) in Block one (1) of the Port Arthur Economic
Development Corporation Business Park, in the City of Port Arthur, Jefferson
County, Texas, according to the replat thereof recorded as Instrument number
2006021509 in the Map Records, Jefferson County, Texas.
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EXHIBIT "C"
COMMERCIAL PROMISSORY NOTE
Po~t Arthur, Texas
Effective Date: the __ day of ,2006.
Principal Amount: $
Term of the Loan: Five years (60 months).
Payment Schedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned SETX CLEARWATER ENVIRO~AL, L.L.C.,
hereinafter "Maker", whether one or more, and if more than one, then jointly and severally, promise(s) to
pay to the order of CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION, (herein called "Lender"), at its office at P.O. Box 1089, Port Ax~ur, 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 principle amount, in legal and lawful money of the United States of America, together with
interest thereon from the date effective hereof until maturity at the rote of seven percent (7%) per annum as
detailed herein.
All 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 maximum non-usurions amount allowed by law (whichever is
less) as may hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Monthly on the 15th of each month, starting the month
immediately following the month the Note became effective. The amount of monthly payment will be a
payment of principal and interest sufficient to fully amortize the principal amount of tiffs Note by its maturity
date.
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.
This note is also secured by and entitled to the benefits of all other security agreements, pledges,
assignments, and lien inslruments covering certificates of deposit or other personal property only 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 .... v,v~,v--~ ................... 2 -~. v
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If any installment or payment of principal or interest of this note is not paid when due or any drawer,
acceptor, endorser, 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 enfomement o f 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 themof 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 evem 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 proxy to any merger or consolidation without the written consent of Lender; or if Maker or any other
liable patty 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 fhils to furnish financial information requested by Lender; or if
Maker or any other liable party fiamishes or has furnished any f'mancial or other information or statements
which are misleading in any respect; or ifa default occurs under any inslrument now or hereaRer executed in
connection wkh or as security for this note; 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 defanlt, 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 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 tbr 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 from any
default hereunder or otherwise, or in the event of any required or perrrdtted prepayment, then such
consideration that constitutes interest may never include more than the maximum amount allowed by
applicable law, and excess interest, if any, provided for in this note or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, iftheretofore prepaid, shall be credited
on this note (or if this note shall have been paid in lhll, 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 me made for the purpose of determining
D R A F T ~x.,.c" - 2 - EDC Boarcb'City Council Ve~ion 6/19/06
whether such rate exceeds the maximum lawful rate shall be made, to the extent permitted by applicable law,
by amortizing, prorating, allocating, and spreading such interest over the entire term of the loan evidenced by
this note(including all renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without penalty. No
partial prepayment shall reduce, postpone or delay the obligation of Maker to continue paying the
installments 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 specifically required to be
given by the holder hereof to Maker, except as otherwise expressly provided herein, pursuant to the earlier
provisions ofth/s note, Maker and each other liable party hen'eby expressly waive demand, presentment for
payment, notice of nonpayment, protest, notice ofprotast, 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 secmity therefor, and do hereby agree to any substitution, exchange or release, in
whole or in part, of any security here-for or the release of any other liable party, and do hereby consent to
any and all renewals or extensions from thne 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 enlbrce payment of this note by such other liable party, to first institute suit or exhaust its remedies against
Maker or any other liable party or to enfome its rights against any security therefor.
SIGNED AND AGREED TO on the __ day of ,200__.
SETX CLEARWATER ENVIRONMENTAL, L.L.C.,
a Texas limited liability company
By:
Saeed A. Ally, Managing Member
By:
O. LaWayne Miller, Managing Member
- 3 - E X Board/City Council Version 6/10!06
D R A F T Ex."c"
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the __ day of_ ,2006, by Saeed A.
Ally, Managing Member of SETX Clearwater Environmental, L.L.C., on behalf of such corporation.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the __ day of ., 2006, by O.
LaWayne Miller, Managing Member of SETX Clearwater Environmental, L.L.C., on behalf of such
corporation.
Notary Public, State of Texas
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
SETX Clearwater Environmental, L.L.C.
3787 Doctors Drive, Suite 105
Port Arthur, Texas 77642-5560
D R A F T nx. "c" - 4 - EDC Boa~4/City Council V~ion 6/19/06
EXHIBIT "D"
SPECIAL WARRANTY DEED WITIt VENDOR'S LIEN
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF JEFFERSON §
That the City of Port Arthur Section 4A Economic Develonmem Comoration~ a Texas not-for-profit
corporation, hereinafter called "Grantor," whether one or more, in consideration of the sum of FOUR
TttOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($4,500.00) and other good and valuable
consideration, to Grantor in hand paid by SETX Clearwater Environmental, L.L.C., a Texas lim/ted liability
company, hereinafter called "Grantee," whether one or more, the receipt of which is hereby acknowledged,
AND THE FURTHER CONSIDERATION of the execution and delivery by Grantee of one certain
commercial promissory note of even date herewith in the original principal sum of
AND NO/100 DOLLARS ($ ), payable to the order of Grantor,
which note is payable and bears interest as set out therein with a final maturity of ., 2011, said
note containing provisions for acceleration of maturity, default and attorney's fees, and in addition to the
Vendor's Lien and Superior Title retained herein securing its payment, the Grantee has executed its Deed of
Trust of even date to Kathleen A. McGlyrm, Trustee, has GRANTED, SOLD and CONVEYED, and by these
presents does GRANT, SELL and CONVEY unto Grantee, all that certain property situated in the County of
Jefferson, State of Texas, described as follows, to-wit:
The west 397.71 feet of Lot two (2) in Block one (1) of the Port Arthur Economic Development
Corporation Business Park, in the city of Port Arthur, Jefferson County, Texas, according to the replat
thereof recorded as Instrument Number 2006021509 in the Map Records, Jefferson County, Texas
(hereinafter sometimes called the "Property").
This conveyance is made subject to the following:
(I) easements and rights-of-way appearing of record in the office of the County Clerk of Jefferson
County, Texas;
(2) the tight of Grantor and its desit,mees to use and maintain storm water stub-outs, which extend
a few feet from the South Business Park Drive right-of-way, and serve to connect the Property
drainage system to the drainage system of the Port Arthur Economic Development
Corporation Business Park;
(3) all covenants, restrictions, and all conditions and exceptions, reservations and conveyances of
minerals and/or royalties, oil and gas and/or mineral leases, affecting the above described
D R A F T 5:x. ,,/)" . ! . ED(2 Board/City Council Version 6/19/06
property, of record in the Office of the County Clerk of Jefferson County, Texas, to the extent
they are still in effect and relate to the above described property;
(4) the treatment or storage of the following is prohibited:
· hazardous' indu.vtrial waste, as defined by 30 Texas Administrative Code ("TAC")
{}335.1(60) (in accordance with RCRA of 1976 and 40 Code of Federal Regulations
("CFR") Part 261);
· hazardous waste, as defined by 30 TAC §335.1 (62) (in accordance with the federal Solid
Waste Disposal Act, as amended by RCRA, 42 United States Code {}§6901 et seq., as
amended) and as determined by the procedures in 30 TAC §335.504;
· hazardous waste constituent, as defined by 30 TAC {}335.1(63) (listed in 40 CFR Part
261, Subpart D or in Table 1 of 40 CFR §261.24); and
· tanks, drums, or containers used for shipping or storing any material that has been listed
as a hazardous constituent in 40 code of Federal Regulations (40 CFR), Part 261,
Appendix VIII but has not been listed as a commercial chemical product in 40 CFR,
§261.33(e) or (f);
(5) taxes on the above described property for 2006 and subsequent years not yet due and payable;
and
(6) all zoning laws, regulations and ordinances of municipal and other governmental authorities, if
any, but only to the extent that they are still in effect, relating to the above described property.
Grantor has executed and delivered this Special Warranty Deed with Vendor's Lien and has granted, bargained,
sold, and conveyed the Property to Grantee, and Grantee has received and accepted this Special Warranty Deed
and has purchased, received, and, accepted the Property, ON AN ASdS, WHERE IS BASIS, WITH ALL
FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES WttATSOEVEP~ EXPRESS OR
IMPLIED, WRITTEN OR ORAL, 1T BEING THE INTENTION OF GRANTOR AND GRANTEE 'FO
EXPRESSLY REVOKE, RELEASE, NEGATE, AND EXCLUDE ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES AS TO (i) THE CONDITION OF THE PROPERTY OR ANY
ASPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL EXPRESS OR IMPLIED
REPRESENTATIONS AND WARRANTIES RELATED TO SUITABILITY FOR HABITATION,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE; (ii) THE NATURE OR
QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF ANY
IMPROVEMENTS WHICH ARE PART OF THE PROPERTY OR WHICH SERVE THE PROPERTY (the
"IMPROVEMENTS"); (/ii) THE QUALITY OF THE LABOR OR MATERIAL INCLUDED IN THE
IMPROVEMENTS; (iv) THE SOIL CONDFI'IONS, DRAINAGE, TOPOGRAPHICAL FEATURES OR
OTHER CONDITIONS WHICH AFFECT THE PROPERTY; (v) THE AREA, SIZE, SHAPE,
CONFIGURATION, LOCATION, CAPACITY, USE, DEVELOPMENT POTENTIAL, PURPOSE OR
OTHER CHARACTERISTIC CONCERNING OR RELATING TO THE PROPERTY; (v) ANY FEATURES
OR CONDITIONS AT OR WHICH AFFECT THE PROPERTY wrIlt RESPECT TO ANY PARTICULAR
PURPOSE, USE, DEVELOPMENTAL POTENTIAL, CASH FLOW, OR OTHERWISE; (vi) ALL EXPRESS
OR IMPLIED REPRESENTATIONS OR WARRANTIES CREATED BY ANY AFFIRMATION OF FACT
OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY; (vii) ANY ENVIRONMENTAL,
GEOLOGICAL, METEOROLOGICAL, STRUCTURAL OR OTHER CONDITION OR HAZARD OR THE
ABSENCE THEREOF HERETOFORE, NOW, OR HEREAFTER AFFECTING IN ANY MANNER ANY OF
THE PROPERTY; AND (viii) ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND
REPRESENTATIONS BY GRANTOR WHATSOEVER, EXCEPT SOLELY THE SPECIAL WARRAN~IW
OF TITLE EXPRESSLY SET FORTH IN THIS DEED CONVEYING IllE PROPERTY TO GRANTEE.
D R A F T ~:x..,D" - 2 - ELY.: Board/City Coumcil Version 6/19t06
TO HAVE AND TO HOLD, the said Property, together with all rights, hereditaments and appurtenances thereto
belonging, unto Grantee, its successors, heirs, and assigns forever. And Grantor does hereby bind itself, its
successors, heirs, executors, administrators, and personal representatives to WARRANT AND FOREVER
DEFEND thc title to said Property unto Grantee, its successors, heirs, and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under Grantor, but not
otherwise.
When Grantor or Grantee or both of tbem are mom than one (1) person, or when Grantor or Grantee or both of
them arc a corporation, limited liability company, partnership, trustee, administrator, cxeeutor, or personal
representative, this Deed shall read as though pertinent verbs, nouns, and pronouns are changed correspondingly,
and pronouns of thc masculine gendex where used herein shall be consWaed to include persons of thc female sex.
When this Deed is executed by or to or by and to a corporation, limited liability company or partnership,
references to "heirs, executors, admiuistrators, and personal representatives' shall be appropriately disregarded,
and when this Deed is executed by or to or by and to a natural person or persons, references to "successors" shall
be appropriately disregarded.
Grantee has joined in this Deed to evidence Grantee's acceptance of this Deed.
EXECUTED this the .-- day of ,2006.
GRANTO.g:
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMNIC DEVELOPMENT CORPORATION,
a Texas not-for-profit corporation
By:
Eli Roberts, President
By:
Linda Spears, Secretary
Accepted by GRANTEE:
SETX CLEARWATER ENVIRONMENTAL, L.L.C.,
a Texas limited liability company
By:
Saeed A. Ally, Managing Member
By:
O. LaWayne Miller, Managing Member
STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of ,2006, by Eli Roberts,
President of the City of Port Arthur Section 4A Economic Development Corporation, a Texas not-for-profit
corporation, on behalf of such corporation.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the __ day of ,2006, by Linda
Spears, Secretary of the City of Port Arthur Section 4A Economic Development Corporation, a Texas not-for-
profit corporation, on behalf of such corporation.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the __ day of ,2006, by Saend A.
Ally, Managing Member of SETX Clearwater Environmental, L.L.C., on behalf of such corporation.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of _, 2006, by O.
LaWayne Miller, Managing Member of SETX Clearwater Environmental, L.L.C., on behalf of such
corporation.
Notary Public, State of Texas
GRANTEE'S MAILING ADDRESS:
3787 Doctors Drive, Suite 105
Port Arthur, Texas 77642~5560
D R A F T E~. "o" - 4 - EDC Board;City Council Version 6119/06
EXHIBIT "E"
DEED OF TRUST
Date: ,2006
Grantor: SETX Clearwater Environmental, LL.C.
Grantor's Mailing Address: 3787 Doctors Drive, Suite 105
Port Arthur, Texas 77642-5560
ATTN: Saeed A. Ally
(Jefferson County)
Trustee: KATHLEEN A. MCGLYNN
Trustee's Mailing Address: Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
(Jefferson County)
Beneficiary: CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
Beneficiary's Mailing Address: 4173 39th Street
Port Arthur, Texas 77642
Attn: Chief Executive Officer
(Jefferson County)
Note
Date: ,2006.
Amount: $.
Maker: SETX Clearwater Environmental, L.L.C.
Payee: Same as Beneficiary.
Final Matudty Date: ,2011.
Property
The west 397.71 feet of Lot two (2) in Block one (1) of the Port Arthur Economic
Development Corporation Business Park, in the city of Port Arthur, Jefferson
County, Texas, according to the replat thereof recorded as Instrument Number
2006021509 in the Map Records, Jefferson County, Texas (hereinafter sometimes
called the "Property").
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
D R A F T F~. "~" - 1 - EDC Board/City Council Version 6/19/06
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), 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 dghts (but not GrantoCs 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),
amhitectural 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 rights, utility commitments, water and wastewater taps, capital
improvement project contracts, utility construction agreements with any
govemmental authority, including municipal utility districts, or with any utility
companies (and ali 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;
(I) 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 Improvements 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 right, title, and interest of Grantor in and to all streets, roads, public places,
easements, and rights-of-way, existing or proposed, public or pdvate, 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
D R A F T [,, "~" - 2 - EDC BoarECity Cotmcil Verslo~ 6/19/06
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 dghts 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 Liens: none
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 amount of indebtedness on the Note
which relates to Beneficiaries cash grants to Grantor (not to exceed $500,000) plus all
interest attributable to such indebtedness 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, 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 reasonably 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
D R A F T E~. "E" - 3 - EDC Boar&'City Council Version 6/19/~06
8. immediately report lo Beneficiary in writing any tax, judgment, matedalman"s
or mechanic's lien on the Property;
9. in the event the Beneficiary herein reasonably deems itself reasonably
insecure, because the value of the Property is close to equaling the total
amount of indebtedness secured or represented by this Deed of Trust, upon
notice thereof to Grantor, provide the Beneficiary with (or cause the
Beneficiary to be provided with) such additional collateral as may reasonably
secure the Beneficiary's position, subject to the rights and restrictions
imposed by the senior lien holder.
Grantor shall not, without the pdor written consent of Beneficiary, further encumber
the Property.
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 senior (prior)
liens, Beneficiary is subrogated to all of the rights and liens of the holders of
any debt so paid;
3. Subject to the provisions of the Covenants and Restrictions recorded in the
Real Property Records of Jefferson County, Texas, which shall control and
supercede anything herein contained to the contrary, 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 Note or Deed of Trust in which case insurance proceeds may
be applied to reduce Grantor's obligation under Note 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 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 the senior lien note or Senior Deed of Trust, 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 eamed interest on the note
immediately due; and
b. Request Trustee to reconvey property to Beneficiary following a non-
judicial foreclosure as required by law by a proper recorded warranty
deed.
Trustee's Duties
If requested by Beneficiary to reconvey this property following a non-judicial
foreclosure as required by law, Trustee shall:
D R A F T ~. ,'E" - 4 - EDC Board/City Council Version 6/19/06
1. Either personally or by agent give notice to Grantor at least 30 days before
reconveyance.
Beneficiary will pay Trustee's expenses and fees.
General Provisions
1. If any of the property is reconveyed under this deed of trust following a non-
judicial foreclosure as required by law, 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 Grantor 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 ofthe 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
D R A F T Ex. "v:" - 5 - EDC Board/City Council Versioa 6~19/06
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 of a 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.
SETX CLEARWATER ENVIRONMENTAL, L.L.C.,
a Texas limited liability company
By:
Saeed A. Ally, Managing Member
By:
O. LaWayne Miller, Managing Member
D R A F T Ex. "~" - 6 - nix: Board/Ciiy Council Version 6,'19/06
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of
2006, by Saeed A. Ally, Managing Member of SETX Clearwater Environmental, L.L.C., on
behalf of such corporation.
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of
2006, by O. LaWayne Miller, Managing Member of SETX Clearwater Environmental,
L.L.C., on behalf of such corporation.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
Kathleen A. McGlynn
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
D R A F T Ex. "u" - 7 - nr)c Boar~'City Council V¢lsion 6/I 9/06