HomeMy WebLinkAboutResolution - 2006-R0073 - Loan Agreement - Anzley's Family Dining - Economic Development Fund - 02_24_2006Resolution No. 2006-R0073
February 24, 2006
Item No. 5.2
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Loan Agreement by and
between the City of Lubbock and Mr. Michael Anzley d.b.a. Anzley's Family Dining
from the Economic Development Fund Program. Said Agreement is incorporated in this
Resolution and is available for review in the City Secretary's office, as if fully set forth
herein and shall be included in the minutes of the Council.
Passed by the City Council this 24th day of February , 2006.
ATTEST:
A�
3��
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
APPROVED AS TO FORM:
y i Attorney
as/cityAtty/Georgia/CDSB-Anzleys Family Dining.res
Jan 24,2006
PROMISSORY NOTE
$44,451.02 Lubbock, Texas February, 2006
FOR VALUE RECEIVED, the undersigned, Michael Andey, individual and
Michael d/b/a Andey's Family Dining, (referred to herein as "Maker"), hereby promises
to pay to the order of THE CITY OF LUBBOCK, TEXAS, a Texas municipal
corporation (referred to herein as "Payee"), at P.O. Box 2000, Lubbock, Texas 79457, or
at such other address given to Maker by Payee, the principal sum of Forty-four
Thousand Four Hundred fifty-one and 021100 Dollars ($44,451.02), or so much
thereof as may be advanced prior to maturity, in lawful money of the United States of
America, together with interest (calculated on the basis of a 360-day year) on the unpaid
principal balance from day-to-day remaining, computed from the date of advance until
maturity at the rate per annum which shall from day-to-day be equal to the lesser of: (a)
three point zero percent (3.0%) (the "Contract Rate"), or (b) the. Maximum Rate.
Notwithstanding the foregoing, if at any time the Contract Rate shall exceed the
Maximum Rate, thereby causing the interest upon this Note to be limited to the
Maximum Rate, then any subsequent reductions in the Contract Rate shall not reduce the
rate of interest charged hereunder below the Maximum Rate until the total amount of
interest accrued hereon equals the amount of interest which would have accrued hereon if
the Contract Rate had at all times been in effect.
The term "Maximum Rate," as used herein, shall mean, with respect to the holder
hereof, the maximum nonusurious interest rate, if any, that at any time, or from time to
time may under applicable law be contracted for, taken, reserved, charged or received on
the indebtedness evidenced by this Note. Payee hereby notifies and discloses to Maker
that, for the purposes of Tex. Rev. Statutes Ann. Art. 5069-1.04 as it may from time to
time be amended, the "applicable rate ceiling" shall be the "indicated rate ceiling" referred
to in Article 5069-1.04(a)(1) from time to time in effect, as limited by Article 5069-
1.04(b); provided, however, that to the extent permitted by applicable law, Payee reserves
the right to change the "applicable rate ceiling" from time to time by further notice and
disclosure to Maker; and, provided, further, that the "Maximum Rate" for purposes of this
Note shall not be limited to the applicable rate ceiling under Article 5069-1.04 if Federal
laws or other state laws now or hereafter in effect and applicable to this Note (and the
interest contracted for, charged and collected hereunder) shall permit a higher rate of
interest.
Principal and accrued interest on this Note, computed as aforesaid, shall be due
and payable as follows:
The Principal and accrued interest on this Note, computed as aforesaid, shall be
due and payable as follows: (i) in (360) monthly installments, each in the amount
of One Hundred Eighty-seven and 41/100 Dollars ($187.41) commencing on
April 1, 2006 and thereafter, on the first day of each succeeding calendar month
through and including March, 2036.
All past due principal and, to the extent permitted by applicable law,
interest upon this Note shall bear interest at the Maximum Rate, or if no such
Maximum Rate is established by applicable law, then at the rate per annum which
shall be equal to sixteen percent (16%).
Maker hereby agrees to abide by any federal, state, and local law regarding
the use of and reporting requirements for the monies lent to Maker pursuant to this
Note, including but not limited to the Community Development Block Grant
Regulations located at 24 CFR Part 570.
An 'Event of Default" shall exist hereunder if any one or more of the
following events shall occur: (a) Maker shall fail to pay when due any principal
of, or interest on, this Note; (b) any written representation or warranty made by
Maker to Payee shall prove to be untrue or inaccurate in any material respect; (c)
default shall occur in the performance of any of the covenants or agreements of
Maker contained herein or in any other document executed in connection
herewith; (d) default shall occur in the payment of any material indebtedness of
Maker, or any such indebtedness shall become due before its stated maturity by
acceleration of the maturity thereof or otherwise; (e) Maker shall (1) apply for or
consent to the appointment of a receiver, trustee, intervenor, custodian or
liquidator of itself or of all or substantial part of its assets, (2) become bankrupt
or insolvent or file a voluntary petition for bankruptcy or admit in writing that it is
unable to pay its debts as they become due, (3) make a general assignment for
the benefit of creditors, (4) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or insolvency
laws, or (5) file an answer admitting the material allegations or, or consent to, or
default in answering, a petition filed against it in any bankruptcy, reorganization
or insolvency proceeding, or take action for the purpose of effecting any of the
foregoing; (f) an order, for relief, judgment or decree shall be entered by any
court of competent jurisdiction or other competent authority approving a petition
appointing a receiver, trustee, custodian, intervenor or liquidator of Maker, or of
all or substantially all of its assets, and such order, judgment or decree shall
continue unstayed and in effect for a period of sixty (60) days; (g) Maker fails to
abide by any Federal, State or Local law which govern the monies lent to Maker
pursuant to this Note or (h) the occurrence of an event of default, as defined in
Security Agreement as described below.
This Note is secured by, among other things, that certain Security
Agreement of even date hereof and executed by Maker, and in favor of Payee,
encumbering the property of Maker as described therein.
Maker and any other party ever liable for payment of any sums of money
payable upon this note, jointly and severally waive presentment, demand, protest,
notice of protest and non-payment or other notice of default, notice of acceleration
Promissory Note Page 2 of 5
City of Lubbock & Michael Anzley
and intention to accelerate or other notice of any kind, and agree that their liability
under this Note shall not be affected by an renewal or extension in the time of
payment hereof, or in any indulgences, or by any release or change in any security
for the payment of this Note, and hereby consent to any and all renewals,
extensions, indulgences, releases or changes, regardless of the number of such
renewals, extensions, indulgences, releases or changes.
No waiver by Payee of any of its rights or remedies hereunder or under any
other document evidencing or securing this Note or otherwise, shall be considered
a waiver of any other subsequent right or remedy of Payee; no delay or omission
in the exercise or enforcement by Payee of any right or remedy of Payee; and no
exercise or enforcement of any such right rights or remedies shall ever by held to
exhaust any right or remedy of Payee.
Upon the occurrence of any Event of Default hereunder or under any other
agreement or instrument securing or assuring the payment of this Note or executed
in connection herewith, then in any such event, the holder hereof may, at its
option; (i) declare the entire unpaid balance of principal of and accrued interest
upon the Note to be immediately due and payable without presentment or notice
of any kind which Maker waives pursuant to the terms hereof; (ii) reduce any
claim to judgment; and/or (iii) pursue and enforce any of Payee's rights and
remedies available pursuant to any applicable law or agreement including, without
limitation, foreclosing all liens and security interests securing payment thereof or
any part thereof.
Any provision herein, or in any document securing this Note, or any other
document executed or delivered in connection herewith, or in any other agreement
or commitment, whether written or oral, expressed or implied, to the contrary
notwithstanding, neither Payee nor any holder hereof shall in any event be entitled
to receive or collect, nor shall any amounts received hereunder be credited, so that
Payee or any holder hereof shall be paid, as interest, a sum greater than the
maximum amount permitted by applicable law to be charged to the person,
partnership, firm, corporation, or other legal entity primarily obligated to pay this
note at the time in question. If any construction of this Note or any document
securing this Note, indicate a different right given to Payee or any holder hereof to
ask for, demand or receive any larger sum as interest, such is a mistake in
calculation or wording which this clause shall override and control, it being the
intention of the parties that this Note, and all other instruments securing the
payment of this Note or executed or delivered in connection herewith shall in all
things comply with applicable law and proper adjustments shall automatically be
made accordingly. In the event that Payee or any holder hereof ever receives,
collects or applies as interest, any sum in excess of the Maximum Rate, if any,
such excess amount shall be applied to the reduction of the unpaid principal
balance of this Note, and if this Note is paid in full, any remaining excess shall be
paid to Maker. In determining whether or not the interest paid or payable, under
Promissory Note Page 3 of 5
City of Lubbock & Michael Anzley
any specific contingency, exceeds the Maximum Rate, if any, Maker and Payee or
any holder hereof shall, to the maximum extent permitted under applicable law;
(a) characterize any nonprincipal payment as an expense or fee rather than as
interest; (b) exclude voluntary prepayments and the effects thereof; (c) "spread"
the total amount of interest throughout the entire term of this Note; provided, that
if this Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence thereof
exceeds the maximum lawful rate, if any, Payee or any holder hereof shall refund
to Maker the amount of such excess, or credit the amount of such excess against
the aggregate unpaid principal balance of all advances made by Payee or any
holder hereof under this Note at the time in question.
Maker reserves the right to prepay the accrued interest on and the
outstanding principal balance of this Note, in whole or in part, at any time and
from time to time, without premium or penalty. Notwithstanding anything in this
Note to the contrary, all amounts tendered as a prepayment shall first be applied to
the payment of all accrued interest to the date of such prepayment and then to the
outstanding principal balance of this Note.
If this Note is placed in the hands of an attorney for collection, or if it is
collected through any legal proceeding at law or in equity, or in bankruptcy,
receivership or other court proceedings, Maker agrees to pay all costs of
collection, including, but not limited to, court costs and reasonable attorneys' fees,
including all costs of appeal.
All demands, notices or other communications shall be in writing and shall
be deemed given when delivered in person or deposited in the United States mail,
postage prepaid, registered or certified, return receipt requested, addressed to the
party to be notified at the following address (or at such other address as may have
been designated by written notice):
Maker: Michael Anzley
2914 76th Street
Lubbock, TX 79424
Residence
Anzley's Family Dining Business
1721 Parkway Drive
Lubbock, TX 79403
Payee: City of Lubbock
ATTN: Economic Development Loan Program
P.O. Box 2000
Lubbock, Texas 79457
Promissory Note Page 4 of 5
City of Lubbock & Michael Anzley
This Note is intended to be performed in the State of Texas. Except to the
extent that the laws of the United States of America may apply to the terms
hereof, the substantive laws of the State of Texas shall govern the validity,
construction, enforcement and interpretation of this Note. In the event of a
dispute involving this Note or any other instruments executed in connection
herewith, the undersigned irrevocably agrees that venue for such dispute shall lie
in any court of competent jurisdiction in Lubbock County, Texas.
Signed this 24th day of February , 2006.
SECURED PARTY:
CA4ilad
Michael Anzley
Individual
APPROVED AS TO CONTENT: Michael Anzley
? d/b/a Anzley's Family Dining
Nancy Hane
Executive r for of Co unity Development
APPROVED AS -TO FORM:
ATTEST:
Reb cca Garza, City Secretary
Promissory Note Page 5 of 5
City of Lubbock & Michael Auzley
ECONOMIC DEVELOPMENT FUNDS PROGRAM
REAL ESTATE LIEN FIRST PROMISSORY NOTE
Date: February 24, 2006
Maker: Michael Anzley
Maker's Mailing Address (including county):
(Business) (Home)
1721 Parkway Drive 2914 76' Street
Lubbock, Texas 79403 Lubbock, Texas 79424
Payee: THE CITY OF LUBBOCK, TEXAS, a Texas municipal corporation
Place for Payment:
City of Lubbock
Community Development Department
P.O. Box 2000
Lubbock, Texas 79457
Principal Amount: $41,248.98
Annual Interest Rate: 3.0%
Terms of Payment: $173.91/month for 30 years (360 months)
Interest and principal shall be paid on the first day of each month in installments in the amount of
One hundred seventy-three and 91/100 dollars ($173.91) each, commencing on the first day of
April 1, 2006, with the final installment of One hundred seventy-three and 91/100 ($173.91) due
on March 1, 2036 unless a different amount or day is endorsed on this Note by LENDER. All
payments on this Note shall be applied first to the interest due on this Note, and then to the
principal due on this Note, and any remaining amount shall be applied to late charges, if any.
Except as provided below, all monthly installment payments on the Note shall be credited as of the
due day thereof without adjustment of interest because paid either before or after due date.
SECURITY FOR PAYMENT: This Note is secured by an ECONOMIC DEVELOPMENT FUNDS
PROGRAM DEED OF TRUST signed this date from MAKER, Michael Anzley, to B, Trustee, that
conveys the following real property:
Tract G. MACKENZIE TERRACE, an Addition to the City of Lubbock, Lubbock County, Texas, more
commonly known as 1721 Parkway Drive, Lubbock, Lubbock County, Texas 79403.
MAKER promises to pay to the order of PAYEE, City of Lubbock, Texas, at the place for payment and
according to the terms of payment the principal amount plus interest at the rates stated above. All unpaid
amounts shall be due by the final scheduled payment, except as otherwise noted herein.
MAKER may prepay at any time all or any part of the principal amount due on this Note without the
payment of penalties or premiums, provided that MAKER is not in default under this Note, and the
payment is identifiable as a prepayment of principal. In the event of a prepayment, PAYEE shall notify
MAKER of the new date and amount of the final payment due under this Note.
If any monthly installment of interest and principal, or any part of such installment, remains unpaid for a
period of fifteen (15) days from its due date, MAKER hereby agrees to pay to the PAYEE a late charge
of Fifteen and No/100 Dollars ($15.00). PAYEE shall not be obligated to accept any monthly payment
made after its due date, unless that monthly payment shall be accompanied by the full amount of the late
charges assessed by PAYEE as provided in this Note; however, in the event that a late monthly payment
is accepted, that payment shall first be applied to late charges.
If MAKER defaults in the payment of this Note or in the performance of any obligation in any instrument
securing or collateral to it, and the default continues after PAYEE gives MAKER notice of the default and
the time within which it must be cured, as may be required by law or by written agreement, then PAYEE
may declare the unpaid principal balance and earned interest on this Note immediately due. MAKER and
each surety, endorser, and guarantor waive all demands for payment, notices of intention to accelerate
maturity, notices of acceleration of maturity, protests, and notices of protest, to the extent permitted by
law.
It is hereby specially agreed that if this Note or any instrument securing or collateral to it is placed in the
hands of an attorney for collection, or if collected by suit or enforced through probate, bankruptcy, or any
other judicial proceedings, the undersigned MAKER agrees to pay all cost of collection and enforcement
including ten percent (10%) additional on the principal then due hereon as reasonable attorney's fees.
Interest on the debt evidenced by this Note shall not exceed the maximum amount of non -usurious
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 of 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.
Maker hereby agrees to abide by any federal, state, and local law regarding the us of and reporting
requirements for the monies lent to Maker pursuant to this Note, including but not limited to the
Community Development Block Grant Regulations located at 24 CFR Part 570.
Maker shall create within 36 months from the date of execution of this Agreement three (3) new job(s)
within Maker's business located at 1721 Parkway Drive. This/these job(s) shall be full time employment
as that term is defined by the Federal Fair Labor Standards Act. Further, Maker shall use its best efforts
to maintain said jobs during the term of this Agreement. Secured Party shall monitor any and all jobs
created pursuant to this Agreement and all requirements contained herein for a period of 36 months.
Maker shall make any and all jobs created pursuant to this Agreement available to persons that are
defined "low to moderate income" as that term is defined pursuant to the Community Development Block
Grant regulations located at 24 CFR Part 570. Make shall give said low to moderate income persons
"first consideration" for any and all positions created pursuant to this Agreement. Maker will have
provided "first consideration" if Maker can demonstrate that it has complied with the following: (1)
Maker must use a hiring practice that under usual circumstances would result in over 51 % of low to
moderate income persons interviewed for applicable jobs being hired; (2) the business must seriously
consider a sufficient number of low to moderate income job applicants to give reasonable opportunity to
fill the position with such a person; and (3) the distance from residence and availability of transportation
to the job site must be reasonable before a particular low to moderate income person may be considered a
serious applicant for the job. The jobs that must be created include: (1) Cook; (2) Waitress; and (3)
Waitress.
A. Advertising job(s) created pursuant to this Agreement. Maker shall take all necessary
steps to appropriately advertise the availability of any and all jobs created pursuant to this
Agreement. Maker shall have appropriately advertised said jobs if it does the following: (1)
place advertisements for the opening in the Lubbock Avalanche-Joumal; and/or (2) place ad
in at least 2 of the local weekly newspapers; and/or (3) place job listing with the offices of
WorkSource of the South Plains.
Records to be maintained by Maker.
(1) For job creation where job is held by low to moderate income person:
(a) A listing by job title of the specific jobs to be created;
(b) A listing by job title of the jobs filled;
(c) The name and income status of the person who filled each position, and
(d) The full-time equivalency status of the jobs.
Real Estate Lien First Promissory Note/
Economic Development Funds Program — Page 2
(2) For job creation where job is made available to low to moderate income person:
(a) The title and description of the jobs made available, and the full-time equivalency
status of the job at that time;
(b) The prerequisites for the job; special skills or education required for the job, if any; and
the business commitment to provide needed training for such jobs (and the training that
the business provided to the low to moderate income person hired, if applicable); and
(c) How first consideration was given to low to moderate income persons for the job, such
as:
(i) The name(s) of the person(s) interviewed for the job;
(ii) The date of the interview(s); and
(iii) The income status of the person(s) interviewed
MAKER shall complete the form entitled ` ED Fund Programs Use of Funds Report" and return said form
to PAYEE on or before October 1, 2006.
Each MAKER is responsible for all obligations represented by this Note.
When the context requires, singular nouns and pronouns include the plural.
IN WPTNESS WHEREOF, the Note has been duly executed by the undersigned MAKER, as of the date
shown above.
Real Estate Lien First Promissory Note/
Economic Development Funds Program— Page 3
4&&1 ��,&
—
Michael Anzley, Indivi al
Michael Anzley, d.b.a.Amrleyls Family Dining
CITY OF
MAYOR
ATTEST:
Re ecca Garza, City Secretary
APPROVED AS TO CONTENT:
Nancy Haney
Executive Diretor f Commu4 Development
APPROVED
Amy
Attorney
Real Estate Lien First Promissory Note/
Economic Development Funds Program — Page 4