HomeMy WebLinkAboutResolution - 2004-R0428 - Loan Agreement - Dressin' Divas - 09_16_2004Resolution No. 2004-RO428
September 16, 2004
Item No. 26
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 Ms. Leslie Everson d.b.a. Dressin' Divas from the Economic Development Funds
Program and all related documents. Said agreement is attached hereto and incorporated in this
resolution as if fully set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council this 16th day of
MARC McDQAUGAL, MAYOR
ATTEST:
Q'L" n',
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Amy Sims, Assistant City Attorney
ccdocs/Res-Loan Agrmnt-Ms Leslie Everson dbaDressin DivasCDBG.res
Aug. 27, 2004
Resolution No. 2004-RO428
September 16, 2004
Item No. 26
PROMISSORY NOTE
$40,000.00 Lubbock, Texas September, 2004
FOR VALUE RECEIVED, the undersigned, Leslie Everson, individual and
d/b/a Dressin' Divas, (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 Thousand and no/100 Dollars
($40,000.00), 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 (120) monthly installments, each in the amount
of Three Hundred Thirty-one and 11/100 Dollars ($331.11), commencing on
February 1, 2005 and thereafter, on the first day of each succeeding calendar
month through and including January, 2017.
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
and intention to accelerate or other notice of any kind, and agree that their liability
Promissory Note
City of Lubbock & Leslie Everson
Page 2 of 5
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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
any specific contingency, exceeds the Maximum Rate, if any, Maker and Payee or
Promissory Note
City of Lubbock & Leslie Everson
Page 3 of 5
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: Leslie Everson Residence
2305 56th Street
Lubbock, TX 79412
Dressin' Divas Business
6816 Slide Road #3
Lubbock, TX 79424
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 & Leslie Everson
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 16th day of September, 2004.
SECURED P
APPROVED AS TO CONTENT:
APPROVED AS TO FORM:
Z—Amy L. Sims, Assistant City Attorney
ATTEST:
Rebecca Garza
City Secretary
Promissory Note
City of Lubbock & Leslie Everson
Page 5 of 5