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HomeMy WebLinkAboutResolution - 2006-R0074 - Loan Agreement - MLK Burger - Economic Development Fund - 02_24_2006Resolution No. 2006-ROO74 February 24, 2006 Item No. 5.3 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. Asaad Mousavijam d.b.a. MLK Burger 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 Februg" , 2006. OUGAL, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: 7~ ) to,., Bill owerton, Jr., Commu ' evelopment Director APPROVED AS TO FORM: Amy L. S1n -%;` SJt orney as/cityAtty/Georgia/CDSB-MLK Burger.res Jan 24, 2006 PROMISSORY NOTE $45,800.82 Lubbock, Texas February, 2006 FOR VALUE RECEIVED, the undersigned, Asaad Mousavijam, individual and Mousavijam d!b/a MLS Burger, (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-five Thousand Eight Hundred and 82/100 Dollars ($45,800.82), 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 (144) monthly installments, each in the amount of Three Hundred Seventy-nine and 13/100 Dollars ($379.13), commencing on April 1, 2006 and thereafter, on the first day of each succeeding calendar month through and including March, 2018. 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 & Asaad Mousavijam 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 & Asaad Mousavijam 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: Asaad Mousavijam Residence 3001 S. Loop 289, Apt, B-202 Lubbock, TX 79424 MLK Burger Business 107 Beech Street 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 & Asaad Mousavijam 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 24rh day of February , 2006. SECURED PARTY: PROVED AS Nancy Haney Executive Dire CONTENT: of MAKER: 1�-5 AA(D J;1 /L- YvqO (4 Asaad Mousavijam Individual Asaad Mousavijam d/b/a MLK Burger Development APPROVED AS TO FORM: Amyf. City Attorney ATTEST: Q Rebecca Garza, City Secretary Promissory Note Page 5 of 5 City of Lubbock & Asaad Mousavijam ECONOMIC DEVELOPMENT FUNDS PROGRAM REAL ESTATE LIEN FIRST PROMISSORY NOTE Date: February 24, 2006 Maker: Asaad Mousavijam Maker's Mailing Address (including county): (Business) (Home) 107 Beech Avenue 3001 S. Loop 289, Apt. B202 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: $45,800.82 Annual Interest Rate: 3.0% Terms of Payment: $379.13/month for 12 years (144 months) Interest and principal shall be paid on the first day of each month in installments in the amount of Three hundred seventy-nine and 13/100 dollars ($379.13) each, commencing on the first day of April 1, 2006, with the final installment of Three hundred seventy-nine and 13/100 ($379.13) due on March 1, 2018, 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, Asaad Mousavij am, to B, Trustee, that conveys the following real property: Lots Two Hundred Eighty -Three (283) through Two Hundred Eighty Seven (287), WILSHIRE PARK ADDITION to the City of Lubbock Lubbock County, Texas, according to the map, plan and/or dedication deed thereof, recorded in Volume 783, Page 31, of the Deed Records of Lubbock County, Texas. 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 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. Real Estate lien First Promissory Note/ Economic Development Funds Program — Page 2 IN WITNESS WHEREOF, the Note has been duly executed by the undersigned MAKER, as of the date shown above. Asaad Mousavijam, Individual 05A9)mun (,)- W'-� Asaad Mousavijam, Owner MLK Burger CITY OF MCDOUGAL, MAYOR ATTEST: Rebec a Garza, City Secretary APPROVED AS TO CONTENT: N" ancy Haney Executive Dir for of Comm 4ty Development APPROVED A$ TO FORM: A ity Attorney Real Estate Lien First Promissory Note/ Economic Development Funds Program — Page 3