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R-12-10-25-H4 - 10/25/2012 RESOLUTION NO. R-12-10-25-114 WHEREAS, the City of Round Rock ("City") has established an Economic Development Program to encourage Lewis RR Properties, LLC ("Lewis") to purchase the building located at 203 E. r t Main Street, Round Rock, for use as a dining, entertainment, and/or retail shopping purpose, and WHEREAS, to further promote economic development, the City wishes to enter into an 1 Economic Development Agreement ("Agreement") with Lewis regarding Lewis's development of this Property, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City, an Economic k Development Agreement with Lewis RR Properties, LLC ("Lewis"), a copy of same being attached hereto as Exhibit"A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was , 1 open to the public as required by law at all times during which this Resolution and the subject matter 3 hereof were discussed, considered and formally acted RESOLVED this 25th day of October, 2012. r f ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: , z SARA L. WHITE, City Clerk E 0.\wdox\SCClnts\0112\1204\MUNICIPAL\00260671.DOC E1 t EXHIBIT „A„ r ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This Economic Development Program Agreement("Agreement") is entered into this day of 2012, by and between the City of Round Rock, Texas, a Texas home rule municipal corporation("City"), and Lewis RR Properties, LLC ("Lewis"). WHEREAS, the City has adopted Resolution No. attached as Exhibit A ("City Resolution"), establishing an economic development program and authorizing the Mayor to enter f into this Agreement with Lewis in recognition of the positive economic benefits to the City through Lewis's purchase of a two story building located at 203 E. Main St., Round Rock, Texas (the "Facility"), and leasing or operating the bottom floor of the Facility as a dining, entertainment, and/or retail shopping venue; and WHEREAS, the City Council has determined that one of its priority goals is to encourage economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area an authentic downtown dining, entertainment and retail shopping destination for local citizens and tourists alike; and WHEREAS, the purpose of this Agreement is to promote economic development as t contemplated by Chapter 380 of the Texas Local Government Code whereby Lewis will expend significant sums to purchase and improve the Facility to lease or operate the bottom floor of the Facility as a dining, entertainment, and/or retail shopping establishment; and z WHEREAS, the City agrees to provide an economic development real estate lien loan to Lewis to assist in the purchase of the Facility; NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Lewis agree as follows: t 1. Authority. The City's execution of this Agreement is authorized by Chapter 380 of the fi Texas Local Government Code, and the City Resolution, and constitutes a valid and binding obligation of the City in the event Lewis proceeds with the purchase and occupation of the Facility. The City acknowledges that Lewis is acting in reliance upon the City's performance of its obligations under this Agreement in making its decision to commit substantial resources and money to purchase, improve and occupy the Facility. 2. Definitions. 2.1 "Effective Date" is the date this Agreement is executed to be effective by the City and Lewis. r 2.2 "Facility" means an existing building located at 203 E. Main St., in the City. 3 i 00261062 r 2.3 "Program" means the economic development program established by the City pursuant to Chapter 380 of the Texas Local Government Code and under the City Resolution to promote local economic development and stimulate business and commercial activity within the City. 3. Intentions of Parties. The City Council of Round Rock has previously determined that one of its priority goals is to encourage economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area a dining, entertainment and retail shopping destination for local citizens and tourists alike. To further this goal, the City is willing to provide an economic development loan to Lewis to assist it in the purchase building located at 203 E. Main St. and to provide a use which accomplishes the aforesaid goal of the City. Lewis acknowledges that the use of the building will be required to further this goal, as determined by the City in its sole discretion. g 4. Term. This Agreement shall become enforceable upon its Effective Date and shall terminate on December 31, 2018 or when the Note provided for herein is paid in full, whichever first occurs. 5. Rights and Obligations of Lewis. 5.1 Purchase of Facility. Lewis agrees to purchase the Facility. At the closing of the contract to purchase the Facility, Lewis agrees to execute a second lien Real Estate Lien Note (the "Note") in the form and of the substance of the form attached to this Agreement as Exhibit B. The Note will be secured by a Vendor's Lien retained in the Warranty Deed and transferred to City. The Note will also be secured by a Deed of Trust in the form and substance of the form attached to this Agreement as Exhibit C, which shall be executed and delivered by Lewis to the City at the closing. In addition, Kip Lewis shall execute a personal guaranty of the Note in the form and substance of the form attached to this Agreement as Exhibit E D. Lewis agrees that the purchase price of the Facility shall not exceed $2,060,000 and that the amount of the first lien note shall not exceed $1,060,000. 5.2 Improvements. Lewis agrees to construct and/or install the Improvements to render the Facility suitable for a long term lease to a dining, entertainment and/or 3 retail shopping use. { 5.3 Lease and/or Use of Facility.Lewis agrees to use his best efforts to either lease the ground floor of the Facility to a use which will further the goal of the City Council and to make the historic two block Main Street area an authentic dining, entertainment and retail shopping destination for local citizens and tourists alike. Prior to leasing or occupying the building for any use, Lewis agrees to submit to ` the City its proposed use for approval. The City Manager, on behalf of the City, shall have the sole and absolute discretion to determine if the proposed use furthers the goal of the City and to approve or not approve the proposed use. 2 4 Lewis shall not allow any person or entity to use or occupy the building without the express written consent of the City Manager. 5.4 Compliance with regulations. Lewis agrees that it shall comply with the City's development approval processes and shall purchase the Facility and construct and install the improvements and lease and operate the Facility consistent with City ordinances, development regulations and requirements. 6. Rights and Obligations of the City. 6.1 Purchase Money Loan. In consideration of Lewis's compliance with this Agreement, the City agrees to make Lewis an economic development purchase i money loan at the closing in the amount of$400,000.00. F 7. Miscellaneous. 7.1 Mutual Assistance. The City and Lewis will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement. 7.2 Representations and Warranties. The City represents and warrants to Lewis that the Program and this Agreement are within its authority, and that it is duly authorized and empowered to establish the Program and enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Lewis represents and warrants to the City that it has the requisite authority to enter into this Agreement. 7.3 Default. If either the City or Lewis should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the City remains in default after notice and opportunity to cure, Lewis shall have the right to pursue any remedy at law or in equity for the City's breach. If Lewis remains in default after notice and opportunity to cure, City shall have the right to pursue any remedy at law or in equity for Lewis's breach. r 7.4 Attorney's Fees. In the event any legal action or proceeding is commenced in a court of competent jurisdiction between the City and Lewis to enforce provisions 5 of this Agreement and recover damages for breach, the prevailing party in such =` legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. 3 7.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and Lewis. 7.6 BindingEffect.ffect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 3 e } 7.7 Assignment. Lewis may not assign all or part of its rights and obligations to a third party without the express written consent of the City provided, however, that this Agreement may be assigned by either party without the consent of the other to an affiliate or to any third party who succeeds to substantially all of its business or assets. 7.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 7.9 Termination. In the event Lewis elects not to purchase the Facility as contemplated by this Agreement, Lewis shall notify the City in writing, and this Agreement and the obligations on the part of both parties shall be deemed terminated and of no further force or effect. 7.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or f by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: If to City: City of Round Rock € i 221 E. Main Street Round Rock, TX 78664 Attn: City Manager Phone: (512) 218-5400 Email: snorwoodgroundrocktexas.gov k With a required copy to: Sheets & Crossfield 309 E. Main Street Round Rock, TX 78664 z Attn: Stephan L. Sheets Phone: (512) 255-8877 Email: steve e,scrrlaw.com If to Lewis: Lewis RR Properties, LLC 1102 Martin Avenue Round Rock, Texas 78681 Phone: (512)-246-2858 Email: lewis investments(2austin.rr.com Either party may designate a different address at any time upon written notice to the other party. 4 6.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. 6.13 Severabilitv. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 6.14 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. 6.15 No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. i 6.16 Force Majeure. Except as otherwise provided herein, an equitable adjustment r shall be made for delay or failure in performing if such delay or failure is caused, ; prevented, or restricted by conditions beyond that Party's reasonable control (a 'force majeure event"). A force majeure event for the purposes of this Agreement shall include, but not be limited to, acts of God, fire; explosion, vandalism; storm or similar occurrences; orders or acts of military or civil authority; litigation; changes in law, rules, or regulations outside the control of the affected Party; national emergencies or insurrections; riots; acts of terrorism; or supplier failures, shortages or breach or delay. Except as otherwise expressly provided, herein, _ there shall be an equitable adjustment allowed for performance under this Agreement as the result of any event of force majeure. 6.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or ' joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Facility or the design, construction or operation of any portion of the Facility. EXECUTED to be effective as of the 25th day of October, 2012 (the "Effective Date"). 5 t CITY OF ROUND ROCK, TEXAS, By: Alan McGraw, Mayor x APPROVED as to form: Stephan L. Sheets, City Attorney s` i S' LEWIS RR PROPERTIES, LLC t By: Kip Lewis, Manager w E g; i s z i 1. F_- t 6 t f s RESOLUTION NO. R-12-10-25-113 j, WHEREAS, the City Council has determined that one of its priority goals is to encourage =' 3 i economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area an authentic downtown dining, entertainment and retail shopping destination for local z citizens and tourists alike; and WHEREAS, Lewis RR Properties, LLC ("Lewis") has expressed an interest in purchasing the building located at 203 E. Main Street, Round Rock, for use as a dining, entertainment, and/or retail shopping purpose, if the City is willing to provide interim financing for such purchase; and WHEREAS, the Council wishes to promote economic development as contemplated by Chapter 380 of the Texas Local Government Code whereby Lewis will expend significant sums to purchase and improve the Facility to lease or operate the bottom floor of the Facility as a dining, i entertainment, and/or retail shopping establishment; and r WHEREAS, the City wishes to provide an economic development real estate lien loan to Lewis to assist in the purchase of the Facility; and a. WHEREAS, §380.001 Local Government Code provides that a municipality may establish an economic development program ("Program")to promote local economic development and to stimulate business and commercial activity in the municipality, and WHEREAS, the City Council has determined that the Program described in Exhibit "A" will encourage economic development within the historic two blocks of Main Street in downtown Round r Rock and to make said area an authentic downtown dining, entertainment and retail shopping destination for local citizens and tourists alike and will also meet the goals set forth in said §380.001, f Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,TEXAS, O:hvdox\SCCI nts\0112\1204\MUNICIPAL\00260647MOC S fiF { 4: ti That the City offers to Lewis a §380.001 Program whereby the City will provide Lewis with interim financing for the purchase of the building located at 203 E. Main St. for use as a dining, f entertainment, and/or retail shopping establishment, and } BE IT FURTHER RESOLVED That the offer of the Program shall be as generally outlined in Exhibit "A" attached hereto and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter 5 hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 25th day of October, 2012. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk x t f 2 s EXHIBIT A TO RESOLUTION ECONOMIC DEVELOPMENT PROGRAM The terms of the §380.001 Economic Development Program to be offered to Lewis in exchange for Lewis 's relocating its existing process management facility to the City of Round Rock are as generally outlined below: # 1. Lewis's obligations: s: i 1.1 Purchase of Facility. Lewis agrees to purchase the Facility. At the closing of the contract to purchase the Facility, Lewis agrees to execute a Real Estate Lien Note. The Note will be secured by a Vendor's Lien retained in the Warranty Deed and transferred to City. The Note will also be secured by a Deed of Trust. In addition, Kip Lewis shall execute a personal guaranty of the Note. t 1.2 Improvements. Lewis agrees to construct and/or install the Improvements to render the Facility suitable for a long term lease to a dining, entertainment and/or retail shopping use. k 1.3 Lease and/or Use of Facility.Lewis agrees to use his best efforts to either lease the ground floor of the Facility to a use which will further the goal of the City Council and to make the historic two block Main Street area an authentic dining, entertainment and retail shopping destination for local citizens and tourists alike. Prior to leasing or occupying the building for any use, Lewis agrees to submit to the City its proposed use E for approval. The City Manager, on behalf of the City, shall have the sole and absolute discretion to determine if the proposed use furthers the goal of the City and to approve or not approve the proposed use. Lewis shall not allow any person or entity to use or occupy the building without the express written consent of the City Manager. 1.4 Compliance with regulations. Lewis agrees that it shall comply with the City's development approval processes and shall purchase the Facility and construct and install the improvements and lease and operate the Facility consistent with City ordinances, development regulations and requirements. : 2. City's obligations: 2.1. Purchase Money Loan. In consideration of Lewis's compliance with the aforesaid }, obligations, the City agrees to make Lewis an economic development purchase money loan at the closing in the amount of$400,000.00. 3. The terms and provisions of this Program will be set out in more detail in the Economic Development Program Agreement of even date herewith. 4 Y. EXHIBIT B Real Estate Lien Note Date: October 2012 i Borrower: Lewis RR Properties, LLC Borrower's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County E b Lender: City of Round Rock r Place for Payment: 221 E. Main St. Round Rock, Texas 78664 Williamson County Principal Amount: $400,000.00 : Annual Interest Rate: N/A Maturity Date: November 1, 2018 F Annual Interest Rate on Matured, Unpaid Amounts: Highest legal rate. Terms of Payment: The Principal Amount is due and payable in equal annual installments of EIGHTY THOUSAND DOLLARS ($80,000.00), on November 1 of each year, beginning November 1, 2014 a and continuing annually until the Principal Amount and accrued, unpaid interest have been paid in full. Security for Payment: This note is secured by a vendor's lien and superior title retained in a deed from to Borrower dated November , 2012 and by a deed of trust #' of even date from Borrower to Stephan L. Sheets, trustee, both of which cover the following real property: Lots 11 and 12, Block 10, Original Plat of Round Rock, Williamson County, Texas. Other Security for Payment: Borrower promises to pay to the order of Lender the Principal Amount. This note is payable at the Place for Payment and according to the Terms of Payment. All unpaid amounts are due by the Maturity Date. After maturity, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. If Borrower defaults in the payment of this note or in the performance of any obligation in any instrument securing or collateral to this note, Lender may declare the unpaid principal balance, earned interest, and any other amounts owed on the note immediately due. Borrower and each surety, } s 4 �t l endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. Borrower also promises to pay reasonable attorney's fees and court and other costs if this note is placed in the hands of an attorney to collect or enforce the note. These expenses will bear interest from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay Lender these expenses and interest on demand at the Place for Payment. These expenses and interest will become part of the debt evidenced by the note and will be secured by any security for payment. Interest on the debt evidenced by this note will not exceed the maximum rate or amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal i Amount has been paid, refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as of the acceleration or prepayment or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal Amount has been paid, refunded. This provision overrides any conflicting provisions in this note and all other instruments concerning the debt. Each Borrower is responsible for all obligations represented by this note. i 1' z When the context requires, singular nouns and pronouns include the plural. Lewis RR Properties, LLC r By: Kip Lewis, its Manager 1 4+ t t F b EXHIBIT C Deed of Trust Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver's license number. a Terms Date: October 2012 Grantor: Lewis RR Properties, LLC Grantor's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78664 Williamson County Trustee: Stephan L. Sheets Trustee's Mailing Address: 309 E. Main Street € Round Rock, Texas 78664 h Williamson County Lender: City of Round Rock, Texas k 1 Lender's Mailing Address: 221 E. Main St. Round Rock, Texas 78664 k` r Williamson County Obligation Note s } Date: October , 2012 Original principal amount: $400,000.00 3 Borrower: Lewis RR Properties, LLC Lender: City of Round Rock, Texas Maturity date: November 1, 2018 s Property: Lots 11 and 12, Block 10, Original Plat of Round Rock, Williamson County, Texas This deed of trust also secures payment of any debt that Grantor may subsequently owe to Lender and G that arises while Grantor owns the Property. Prior Lien: [include recording information] The lien created by this deed of trust will be subordinate to the lien securing payment of a note, and any renewals, extensions, and modifications thereof, in the original principal amount of [amount] DOLLARS ($[amount]), which is dated [date], executed by [name], payable to the order of[name], and more fully described in a deed of trust recorded in [recording data] of the real property records of Williamson County, Texas. If default occurs in payment of any part of principal or interest of that $[amount] note or in observance of any covenants of the deed of trust securing it, the entire debt secured by this deed of trust will immediately become payable at the option of Lender. } Other Exceptions to Conveyance and Warranty: 3 For value received and to secure payment of the Obligation, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property, subject to the Other Exceptions to Conveyance and Warranty. On payment of the Obligation and all other amounts secured by this deed of trust, this deed of trust will have no further effect, and Lender will release it at g Grantor's expense. K" Clauses and Covenants A. Grantor's Obligations Grantor agrees to— F 1. keep the Property in good repair and condition; 2. pay all taxes and assessments on the Property before delinquency; 3. defend title to the Property subject to the Other Exceptions to Conveyance and f Warranty and preserve the lien's priority as it is established in this deed of trust; i 4. maintain all insurance coverages with respect to the Property, revenues generated by the Property, and operations on the Property that Lender reasonably requires ("Required Insurance F Coverages"), issued by insurers and written on policy forms acceptable to Lender, and deliver evidence of the Required Insurance Coverages in a form acceptable to Lender at least ten days before the expiration of the Required Insurance Coverages; 5. obey all laws, ordinances, and restrictive covenants applicable to the Property; 6. keep any buildings occupied as required by the Required Insurance Coverages; t 7. if the lien of this deed of trust is not a first lien, pay or cause to be paid all prior lien notes and abide by or cause to be abided by all prior lien instruments; and 8. notify Lender of any change of address. B. Lender's Rights 1. Lender or Lender's mortgage servicer may appoint in writing one or more substitute trustees, succeeding to all rights and responsibilities of Trustee. 2. If the proceeds of the Obligation are used to pay any debt secured by prior liens, Lender is subrogated to all the rights and liens of the holders of any debt so paid. F 3. Lender may apply any proceeds received under the property insurance policies covering the Property either to reduce the Obligation or to repair or replace damaged or destroyed improvements covered by the policy. If the Property is Grantor's primary residence and Lender reasonably determines that repairs to the improvements are economically feasible, Lender will make the property insurance proceeds available to Grantor for repairs. 3 4. Notwithstanding the terms of the Note to the contrary, and unless applicable law prohibits, all payments received by Lender from Grantor with respect to the Obligation or this deed of trust may, at Lender's discretion, be applied first to amounts payable under this deed of trust and then to amounts due and payable to Lender with respect to the Obligation, to be applied to late charges, principal, or interest in the order Lender in its discretion determines. 5. If Grantor fails to perform any of Grantor's obligations, Lender may perform those obligations and be reimbursed by Grantor on demand for any amounts so paid, including attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of trust. 6. If there is a default on the Obligation or if Grantor fails to perform any of Grantor's obligations and the default continues after any required notice of the default and the time allowed to cure, Lender may— a. declare the unpaid principal balance and earned interest on the Obligation immediately due; b. direct Trustee to foreclose this lien, in which case Lender or Lender's agent will cause notice of the foreclosure sale to be given as provided by the Texas Property Code as then in effect; and C. purchase the Property at any foreclosure sale by offering the highest bid and then have the bid credited on the Obligation. 7. Lender may remedy any default without waiving it and may waive any default without waiving any prior or subsequent default. r C. Trustee's Rights and Duties If directed by Lender to foreclose this lien, Trustee will— 1. either personally or by agent give notice of the foreclosure sale as required by the Texas Property Code as then in effect; 2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash with a general warranty binding Grantor, subject to the Prior Lien and to the Other Exceptions to Conveyance and Warranty and without representation or warranty, express or implied, by Trustee; 6 3. from the proceeds of the sale, pay, in this order— g, a. expenses of foreclosure, including a reasonable commission to Trustee; f b. to Lender, the full amount of principal, interest, attorney's fees, and other t` charges due and unpaid; T' C. any amounts required by law to be paid before payment to Grantor; and d. to Grantor, any balance; and 4. be indemnified, held harmless, and defended by Lender against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the trust created by this deed of trust, which includes all court and other costs, including attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. #: D. General Provisions a 1. If any of the Property is sold under this deed of trust, Grantor must immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will become a tenant at sufferance of the purchaser, 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 for foreclosure, or pursuing any other remedy will not constitute an election of remedies. 4. This lien will remain superior to liens later created even if the time of payment of all or part of the Obligation is extended or part of the Property is released. 5. If any portion of the Obligation cannot be lawfully secured by this deed of trust, ¢' payments will be applied first to discharge that portion. 6. Grantor assigns to Lender all amounts payable to or received by Grantor from condemnation of all or part of the Property, from private sale in lieu of condemnation, and from d damages caused by public works or construction on or near the Property. After deducting any expenses incurred, including attorney's fees and court and other costs, Lender will either release any remaining amounts to Grantor or apply such amounts to reduce the Obligation. Lender will not be liable for 3 failure to collect or to exercise diligence in collecting any such amounts. Grantor will immediately give Lender notice of any actual or threatened proceedings for condemnation of all or part of the Property. 7. Grantor assigns to Lender absolutely, not only as collateral, all present and future rent and other income and receipts from the Property. Grantor warrants the validity and enforceability of the assignment. Grantor may as Lender's licensee collect rent and other income and receipts as long as Grantor is not in default with respect to the Obligation or this deed of trust. Grantor will apply all rent and other income and receipts to payment of the Obligation and performance of this deed of trust, but if the rent and other income and receipts exceed the amount due with respect to the Obligation and the F deed of trust, Grantor may retain the excess. If Grantor defaults in payment of the Obligation or performance of this deed of trust, Lender may terminate Grantor's license to collect rent and other income and then as Grantor's agent may rent the Property and collect all rent and other income and receipts. Lender neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Lender may exercise Lender's rights and remedies under this paragraph without taking possession of the Property. Lender will apply all rent and other income and receipts t F collected under this paragraph first to expenses incurred in exercising Lender's rights and remedies and then to Grantor's obligations with respect to the Obligation and this deed of trust in the order determined by Lender. Lender is not required to act under this paragraph, and acting under this paragraph does not waive any of Lender's other rights or remedies. If Grantor becomes a voluntary or involuntary debtor in bankruptcy, Lender's filing a proof of claim in bankruptcy will be deemed t equivalent to the appointment of a receiver under Texas law. ` 8. Interest on the debt secured by this deed of trust will 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 will 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 will 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 any conflicting provisions in this and all other instruments concerning the debt. ' } 9. In no event may this deed of trust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law. 10. Grantor may not sell, transfer, or otherwise dispose of any Property, whether voluntarily or by operation of law, without the prior written consent of Lender. If granted, consent may be conditioned upon (a) the grantee's integrity, reputation, character, creditworthiness, and management ability being satisfactory to Lender; and (b) the grantee's executing, before such sale, transfer, or other disposition, a written assumption agreement containing any terms Lender may require, such as a principal pay down on the Obligation, an increase in the rate of interest payable with respect to the Obligation, a transfer fee, or any other modification of the Note, this deed of trust, or any other instruments evidencing or securing the Obligation. Grantor may not cause or permit any Property to be encumbered by any liens, security interests, or encumbrances other than the liens securing the Obligation and the liens securing ad valorem taxes z not yet due and payable without the prior written consent of Lender. If granted, consent may be conditioned upon Grantor's executing, before granting such lien, a written modification agreement containing any terms Lender may require, such as a principal pay down on the Obligation, an increase r in the rate of interest payable with respect to the Obligation, an approval fee, or any other modification of the Note, this deed of trust, or any other instruments evidencing or securing the Obligation. Grantor may not grant any lien, security interest, or other encumbrance (a "Subordinate Instrument") covering the Property that is subordinate to the liens created by this deed of trust without 4 the prior written consent of Lender. If granted, consent may be conditioned upon the Subordinate Instrument's containing express covenants to the effect that— (a) the Subordinate Instrument is unconditionally subordinate to this deed of trust; (b) if any action is instituted to foreclose or otherwise enforce the Subordinate Instrument, no action may be taken that would terminate any occupancy or tenancy without the prior written consent of Lender, and that consent, if granted, may be conditioned in any manner Lender determines; 4., (c) rents, if collected by or for the holder of the Subordinate Instrument, will be applied first to the payment of the Obligation then due and to expenses incurred in the ownership, operation, and maintenance of the Property in any order Lender may determine, before being applied to any indebtedness secured by the Subordinate Instrument; s, (d) written notice of default under the Subordinate Instrument and written notice of the commencement of any action to foreclose or otherwise enforce the Subordinate Instrument must be given to Lender concurrently with or immediately after the occurrence of any such default or commencement; and (e) in the event of the bankruptcy of Grantor, all amounts due on or with respect to the Obligation and this deed of trust will be payable in full before any payments on the indebtedness secured by the Subordinate Instrument. Grantor may not cause or permit any of the following events to occur without the prior written consent of Lender: if Grantor is (a) a corporation, the dissolution of the corporation or the sale, pledge, encumbrance, or assignment of any shares of its stock; (b) a limited liability company, the dissolution of the company or the sale, pledge, encumbrance, or assignment of any of its membership interests; (c) a general partnership or joint venture, the dissolution of the partnership or venture or the sale, pledge, encumbrance, or assignment of any of its partnership or joint venture interests, or the withdrawal from or admission into it of any general partner or joint venturer; or (d) a limited partnership, (1) the dissolution of the partnership, (2) the sale, pledge, encumbrance, or assignment of any of its general partnership interests, or the withdrawal from or admission into it of any general partner, (3) the sale, pledge, encumbrance, or assignment of a controlling portion of its limited partnership interests, or (4) the withdrawal from or admission into it of any controlling limited partner or partners. If granted, consent may be conditioned upon (a) the integrity, reputation, character, creditworthiness, and e; management ability of the person succeeding to the ownership interest in Grantor (or security interest in such ownership) being satisfactory to Lender; and (b) the execution, before such event, by the i person succeeding to the interest of Grantor in the Property or ownership interest in Grantor (or security interest in such ownership) of a written modification or assumption agreement containing such terms as Lender may require, such as a principal pay down on the Obligation, an increase in the rate of t i : f t interest payable with respect to the Obligation, a transfer fee, or any other modification of the Note, this deed of trust, or any other instruments evidencing or securing the Obligation. } 11. When the context requires, singular nouns and pronouns include the plural. k` 12. The term Note includes all extensions, modifications, and renewals of the Note and all amounts secured by this deed of trust. 13. This deed of trust binds, benefits, and may be enforced by the successors in interest of all parties. s 14. If Grantor and Borrower are not the same person, the term Grantor includes Borrower. 15. Grantor and each surety, endorser, and guarantor of the Obligation waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. 16. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and other costs of enforcing Lender's rights under this deed of trust if this deed of trust is placed in the hands of r an attorney. 17. If any provision of this deed of trust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. 18. The term Lender includes any mortgage servicer for Lender. 1 r. f 19. Grantor represents that this deed of trust and the Note are given for the following } purposes: To provide partial funding for the purchase of the Property. g t i Lewis RR Properties, LLC x By: a Kip Lewis, its Manager i f d: E E `Y a; t STATE OF TEXAS COUNTY OF WILLIAMSON Before me, the undersigned authority, on this day personally appeared Kip Lewis, Manager for Lewis RR Properties, LLC, whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in the aforesaid capacity and for the purposes and consideration therein expressed. Given under my hand and seal of office this_day of , 2012. Notary Public, State of Texas My commission expires the_day of , 20_. G D{ t Y d' Y, y�y D k t fi a; aE 3 i s F y z f Guaranty Date: October_, 2012 Guarantor: Kip Lewis Guarantor's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County Borrower: Lewis RR Properties, LLC 8 Borrower's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County q f s Lender: City of Round Rock i Lender's Mailing Address: 221 E. Main St. Round Rock, Texas 78664 Williamson County Guaranteed Indebtedness: The debt evidenced by the note dated of even date herewith, in the original principal amount of$400,000.00, executed by Borrower and payable to the order of Lender, the obligations under the deed of trust executed in connection with the note and any other document executed by Borrower evidencing or securing the note (collectively, the "Loan Documents"), plus all interest, penalties, expenses, attorney's fees, and other collection costs as provided in the Loan Documents. 1. Guarantor agrees to pay, when due or declared due, the Guaranteed Indebtedness to Lender at Lender's Mailing Address. 2. Guarantor waives (a) diligence in preserving liability of any person on the Guaranteed Indebtedness and in collecting or bringing suit to collect the Guaranteed Indebtedness; (b) all rights of } Guarantor under chapter 34 of the Texas Business and Commerce Code, and rule 31 of the Texas Rules of Civil Procedure, section 17.001 of the Texas Civil Practice and Remedies Code, and sections 51.003, 51.004, and 51.005 of the Texas Property Code; (c) protest; (d) notice of extensions, increases, renewals, or rearrangements of the Guaranteed Indebtedness; and (e) notice of acceptance of this guaranty, of creation of the Guaranteed Indebtedness, of failure to pay the Guaranteed Indebtedness as it matures, of any other default, of adverse change in Borrower's financial condition, of release or substitution of collateral, of intent to accelerate, of acceleration, and of subordination of Lender's rights in any collateral, and every other notice of every kind. Guarantor's obligations under this guaranty will not be altered nor will Lender be liable to Guarantor because of any action or inaction of Lender in regard to a matter waived or of which notice is waived by Guarantor in the preceding sentence. i s 3. Guarantor agrees to pay reasonable attorney's fees and other collection costs if this guaranty is placed in the hands of an attorney for collection. If any party retains an attorney to enforce this guaranty, the party prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs. z j 4. This guaranty is an absolute, irrevocable, unconditional, and continuing guaranty of payment and performance and not of collection. 5. Lender need not resort to Borrower or any other person or proceed against collateral x before pursuing its rights against Guarantor or any other guarantor. Lender's action or inaction with respect to any right of Lender under the law or any agreement will not alter the obligation of Guarantor hereunder. Lender may pursue any remedy against Borrower or any collateral or under any other guaranty without altering the obligations of Guarantor hereunder and without liability to Guarantor, even though Lender's pursuit of such remedy may result in Guarantor's loss of rights of subrogation or to proceed against others for reimbursement of contribution or any other right. 6. Guarantor will remain liable for the Guaranteed Indebtedness even though the Guaranteed Indebtedness may be unenforceable against or uncollectible from Borrower or any other ' person because of incapacity, lack of power or authority, discharge, or any other reason. 7. Guarantor consents and acknowledges that Guarantor's obligations will not be released $' by (a) the renewal, extension, or modification of the Guaranteed Indebtedness or any of the Loan x Documents; (b) the insolvency, bankruptcy, liquidation, or dissolution of Borrower or any other ` obligor; (c) the failure of Lender to properly obtain, perfect, or preserve any security interest or lien in any collateral for the Guaranteed Indebtedness; (d) the release, substitution, or addition of any collateral for the Guaranteed Indebtedness; or (e) the failure of Lender to exercise diligence, commercial reasonableness, or reasonable care in the preservation, enforcement, or sale of any of the collateral. 8. Lender need not notify Guarantor that Lender has sued Borrower, but if Lender gives written notice to Guarantor that it has sued Borrower, Guarantor will be bound by any judgment or decree, to the extent permitted by law. L 9. Lender may sue any guarantor without impairing Lender's rights against any other guarantor, with or without making Borrower a party. Lender may settle with Borrower or any other guarantor for such amounts as it may elect or may release Borrower or any guarantor or any collateral !' securing the Guaranteed Indebtedness without impairing Lender's right to collect the Guaranteed Indebtedness from Guarantor. 10. This guaranty binds Guarantor and Guarantor's heirs, successors, and assigns, and it benefits and may be enforced by Lender and Lender's successors in interest. When the context requires, singular nouns and pronouns include the plural. This guaranty will be construed under the laws of the state of Texas, without regard to choice-of-law rules of any jurisdiction. The provisions of this guaranty are severable. If a court of competent jurisdiction finds that any provision of this guaranty is unenforceable, then the remaining provisions will remain in effect without the unenforceable parts. _ s. f k 11. FINAL AGREEMENT: THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF r THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE g. PARTIES. t Kip Lewis z. k t z i f. g s 5 { i ROUNDROCK,TEMS City Council Agenda Summary Sheet PURPOSE.PASSION.PROSPERITY. 4 r i d Agenda Item No. H4. z Consider a resolution authorizing the Mayor to execute an Economic Development Agenda Caption: Program Agreement with Lewis RR Properties, LLC. Meeting Date: October 25, 2012 Department: Administration Staff Person making presentation: Steve Norwood City Manager 4. P Item Summary: p, k Cost: Source of Funds: x, r i Recommended Action: Approval f: P' :i S E. { it ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ` s i This Economic Development Program Agreement ("Agreement") is entered into this day of AMD��, 2012, by and between the City of Round Rock, Texas, a Texas home rule municipal corporation ("City"), and Lewis RR Properties, LLC ("Lewis"). WHEREAS, the City has adopted Resolution No Q Z 0'26anactied as Exhibit A ("City Resolution"), establishing an economic development program and authorizing the Mayor to enter into this Agreement with Lewis in recognition of the positive economic benefits to the City through Lewis's purchase of a two story building located at 203 E. Main St., Round Rock, Texas (the "Facility"), and leasing or operating the bottom floor of the Facility as a dining, ' entertainment, and/or retail shopping venue; and WHEREAS, the City Council has determined that one of its priority goals is to encourage economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area an authentic downtown dining, entertainment and retail shopping destination for local citizens and tourists alike; and i WHEREAS, the purpose of this Agreement is to promote economic development as contemplated by Chapter 380 of the Texas Local Government Code whereby Lewis will expend significant sums to purchase and improve the Facility to lease or operate the bottom floor of the Facility as a dining, entertainment, and/or retail shopping establishment; and WHEREAS, the City agrees to provide an economic development real estate lien loan to Lewis to assist in the purchase of the Facility; NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Lewis agree as follows: E 1. Authority. The City's execution of this Agreement is authorized by Chapter 380 of the Texas Local Government Code, and the City Resolution, and constitutes a valid and binding obligation of the City in the event Lewis proceeds with the purchase and occupation of the Facility. The City acknowledges that Lewis is acting in reliance upon the City's performance of its obligations under this Agreement in making its decision to commit substantial resources and money to purchase, improve and occupy the Facility. 2. Definitions. s 2.1 "Effective Date" is the date this Agreement is executed to be effective by the City and Lewis. 2.2 "Facility" means an existing building located at 203 E. Main St., in the City. F i t 00261062 } s 2.3 "Program" means the economic development program established by the City ' pursuant to Chapter 380 of the Texas Local Government Code and under the City Resolution to promote local economic development and stimulate business and commercial activity within the City. 3. Intentions of Parties. The City Council of Round Rock has previously determined that one of its priority goals is to encourage economic development within the historic two R blocks of Main Street in downtown Round Rock and to make said area a dining, entertainment and retail shopping destination for local citizens and tourists alike. To further this goal, the City is willing to provide an economic development loan to Lewis to assist it in the purchase building located at 203 E. Main St. and to provide a use which accomplishes the aforesaid goal of the City. Lewis acknowledges that the use of the building will be required to further this goal, as determined by the City in its sole discretion. 4. Term. This Agreement shall become enforceable upon its Effective Date and shall terminate on December 31, 2018 or when the Note provided for herein is paid in full, whichever first occurs. E 9 5. Rights and Obligations of Lewis. 5.1 Purchase of Facility. Lewis agrees to purchase the Facility. At the closing of the contract to purchase the Facility, Lewis agrees to execute a second lien Real Estate Lien Note (the "Note") in the form and of the substance of the form attached to this Agreement as Exhibit B. The Note will be secured by a Vendor's Lien retained in the Warranty Deed and transferred to City. The Note will also be secured by a Deed of Trust in the form and substance of the form attached to this Agreement as Exhibit C, which shall be executed and delivered by Lewis to the City at the closing. In addition, Kip Lewis shall execute a personal guaranty of the Note in the form and substance of the form attached to this Agreement as Exhibit D. Lewis agrees that the purchase price of the Facility shall not exceed $2,060,000 and that the amount of the first lien note shall not exceed $1,060,000. 5.2 Improvements. Lewis agrees to construct and/or install the Improvements to render the Facility suitable for a long term lease to a dining, entertainment and/or F retail shopping use. 5.3 Lease and/or Use of Facility.Lewis agrees to use his best efforts to either lease the ground floor of the Facility to a use which will further the goal of the City Council and to make the historic two block Main Street area an authentic dining, entertainment and retail shopping destination for local citizens and tourists alike. Prior to leasing or occupying the building for any use, Lewis agrees to submit to the City its proposed use for approval. The City Manager, on behalf of the City, shall have the sole and absolute discretion to determine if the proposed use furthers the goal of the City and to approve or not approve the proposed use. > E f 2 q(� f d 1 a b Lewis shall not allow any person or entity to use or occupy the building without the express written consent of the City Manager. 5.4 Compliance with regulations. Lewis agrees that it shall comply with the City's development approval processes and shall purchase the Facility and construct and install the improvements and lease and operate the Facility consistent with City ordinances, development regulations and requirements. 6. Rights and Obligations of the City. f 6.1 Purchase Money Loan. In consideration of Lewis's compliance with this Agreement, the City agrees to make Lewis an economic development purchase money loan at the closing in the amount of$400,000.00. 7. Miscellaneous. 7.1 Mutual Assistance. The City and Lewis will do all things reasonably necessary or appropriate to carry out the terms and provisions of this Agreement. 7.2 Representations and Warranties. The City represents and warrants to Lewis that the Program and this Agreement are within its authority, and that it is duly authorized and empowered to establish the Program and enter into this Agreement, unless otherwise ordered by a court of competent jurisdiction. Lewis represents and warrants to the City that it has the requisite authority to enter into this Agreement. z 7.3 Default. If either the City or Lewis should default in the performance of any obligations of this Agreement, the other party shall provide such defaulting party written notice of the default, and a minimum period of thirty (30) days to cure such default, prior to instituting an action for breach or pursuing any other remedy for default. If the City remains in default after notice and opportunity to cure, Lewis shall have the right to pursue any remedy at law or in equity for the City's breach. If Lewis remains in default after notice and opportunity to cure, City shall have the right to pursue any remedy at law or in equity for Lewis's breach. r 7.4 Attorney's Fees. In the event any legal action or proceeding is commenced in a court of competent jurisdiction between the City and Lewis to enforce provisions t of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by reason of such action, to the extent allowed by law. 7.5 Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and Lewis. 7.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. 3 0 i t 7.7 Assignment. Lewis may not assign all or part of its rights and obligations to a third party without the express written consent of the City provided, however, that this Agreement may be assigned by either party without the consent of the other to an affiliate or to any third party who succeeds to substantially all of its business or assets. 7.8 Amendment. This Agreement may be amended by the mutual written agreement of the parties. 7.9 Termination. In the event Lewis elects not to purchase the Facility as contemplated by this Agreement, Lewis shall notify the City in writing, and this Agreement and the obligations on the part of both parties shall be deemed terminated and of no further force or effect. 7.10 Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: i x If to City: City of Round Rock f 221 E. Main Street Round Rock, TX 78664 Attn: City Manager Phone: (512) 218-5400 Email: snorwood(a�roundrocktexas.gov With a required copy to: Sheets & Crossfield 309 E. Main Street Round Rock, TX 78664 Attn: Stephan L. Sheets Phone: (512) 255-8877 Email: steve(cr�scrrlaw.com If to Lewis: Lewis RR Properties, LLC 1102 Martin Avenue Round Rock, Texas 78681 Phone: (512)-246-2858 t Email: lewis investments(caustin.rr.com Either party may designate a different address at any time upon written notice to the other party. 4 E j gg E 6.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. h 6.13 Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the a intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as € possible to the provision found to be illegal, invalid or unenforceable. 6.14 Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the U' various and several paragraphs. 6.15 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,privileges or causes of action upon any third party. is 6.16 Force Majeure. Except as otherwise provided herein, an equitable adjustment shall be made for delay or failure in performing if such delay or failure is caused, prevented, or restricted by conditions beyond that Party's reasonable control (a 'force majeure event"). A force majeure event for the purposes of this Agreement shall include, but not be limited to, acts of God, fire; explosion, vandalism; storm g or similar occurrences; orders or acts of military or civil authority; litigation; changes in law, rules, or regulations outside the control of the affected Party; national emergencies or insurrections; riots; acts of terrorism; or supplier failures, 4 shortages or breach or delay. Except as otherwise expressly provided, herein, there shall be an equitable adjustment allowed for performance under this Agreement as the result of any event of force majeure. 6.17 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The City, its past, present and future officers, elected officials, employees and agents of the City, do not assume any responsibilities or liabilities to any third party in connection with the development of the Facility or the design, construction or operation of any portion of the Facility. P EXECUTED to be effective as of the 25th day of October, 2012 (the "Effective Date"). E } 5 CITY OF ROUND ROCK, TEXAS, By: Alan McGraw, Mayor APPRCPfD aLo. o i Stephan . Sheets, City Attorney r LEWIS RR PROPERTIES, LLC By: ipa nager k F 4 S F 4 u } E p{ pd pIp E F i i ff� t k Y 6 I I s i i t l Y I RESOLUTION NO. R-12-10-25-113 WHEREAS, the City Council has determined that one of its priority goals is to encourage Y economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area an authentic downtown dining, entertainment and retail shopping destination for local citizens and tourists alike; and i WHEREAS, Lewis RR Properties, LLC ("Lewis") has expressed an interest inpurchasing the k g building located at 203 E. Main Street, Round Rock, for use as a dining, entertainment, and/or retail ' i shopping purpose, if the City is willing to provide interim financing for such purchase; and 0 WHEREAS, the Council wishes to promote economic development as contemplated by Chapter 380 of the Texas Local Government Code whereby Lewis will expend significant sums to purchase and improve the Facility to lease or operate the bottom floor of the Facility as a dining, entertainment, and/or retail shopping establishment; and WHEREAS, the City wishes to provide an economic development real estate lien loan to t Lewis to assist in the purchase of the Facility; and WHEREAS, §380.001 Local Government Code provides that a municipality may establish an economic development program ("Program")to promote local economic development and to stimulate 1 business and commercial activity in the municipality, and WHEREAS, the City Council has determined that the Program described in Exhibit "A" will encourage economic development within the historic two blocks of Main Street in downtown Round Rock and to make said area an authentic downtown dining, entertainment and retail shopping Roc 9 destination for local citizens and tourists alike and will also meet the goals set forth in said §380.001, Now Therefore E BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,TEXAS, s { 0A%vdos\SCC1nts\0112\12GAMUNICIPAU00260647M OC i t r That the City offers to Lewis a §380.001 Program whereby the City will provide Lewis with interim financing for the purchase of the building located at 203 E. Main St. for use as a dining, entertainment, and/or retail shopping establishment, and a t BE IT FURTHER RESOLVED i That the offer of the Program shall be as generally outlined in Exhibit "A" attached hereto and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was s open to the public as required by law at all times during which this Resolution and the subject matter is hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 25th day of October, 2012. r ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 4 E (€3 2 Y } f 5 k i F 3 4 2 Y i 1 EXHIBIT A TO RESOLUTION ECONOMIC DEVELOPMENT PROGRAM The terms of the §380.001 Economic Development Program to be offered to Lewis in exchange for Lewis 's relocating its existing process management facility to the City of Round Rock are as generally outlined below: 1. Lewis's obligations: 3 1.1 Purchase of Facility. Lewis agrees to purchase the Facility. At the closing of the contract to purchase the Facility, Lewis agrees to execute a Real Estate Lien Note. The Note will be secured by a Vendor's Lien retained in the Warranty Deed and transferred to City. The Note will also be secured by a Deed of Trust. In addition, Kip Lewis shall execute a personal guaranty of the Note. 1.2 Improvements. Lewis agrees to construct and/or install the Improvements to render the Facility suitable for a long term lease to a dining, entertainment and/or retail shopping use. 1.3 Lease and/or Use of Facility. Lewis agrees to use his best efforts to either lease the ground floor of the Facility to a use which will further the goal of the City Council and to make the historic two block Main Street area an authentic dining, entertainment and retail shopping destination for local citizens and tourists alike. Prior to leasing or occupying the building for any use, Lewis agrees to submit to the City its proposed use for approval. The City Manager, on behalf of the City, shall have the sole and absolute discretion to determine if the proposed use furthers the goal of the City and to approve or not approve the proposed use. Lewis shall not allow any person or entity to use or occupy the building without the express written consent of the City Manager. 4 1.4 Compliance with regulations. Lewis agrees that it shall comply with the City's development approval processes and shall purchase the Facility and construct and install the improvements and lease and operate the Facility consistent with City ordinances, development regulations and requirements. 2. City's obligations: 2.1. Purchase Money Loan. In consideration of Lewis's compliance with the aforesaid obligations, the City agrees to make Lewis an economic development purchase money loan at the closing in the amount of$400,000.00. 3. The terms and provisions of this Program will be set out in more detail in the Economic Development Program Agreement of even date herewith. `t w r k} 6 EXHIBIT B Real Estate Lien Note Date: October 2012 Borrower: Lewis RR Properties, LLC E Borrower's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County Lender: City of Round Rock Place for Payment: 221 E. Main St. Round Rock, Texas 78664 Williamson County Principal Amount: $400,000.00 Annual Interest Rate: N/A Maturity Date: November 1, 2018 Annual Interest Rate on Matured, Unpaid Amounts: Highest legal rate. Terms of Payment: The Principal Amount is due and payable in equal annual installments of EIGHTY THOUSAND DOLLARS ($80,000.00), on November 1 of each year, beginning November 1, 2014 and continuing annually until the Principal Amount and accrued, unpaid interest have been paid in full Security for Payment: This note is secured by a vendor's lien and superior title retained in a deed from , to Borrower dated November , 2012 and by a deed of trust of even date from Borrower to Stephan L. Sheets, trustee, both of which cover the following real property: Lots 11 and 12, Block 10, Original Plat of Round Rock, Williamson County, Texas. x Other Security for Payment: Borrower promises to a to the order of Lender the Principal Amount. This note is payable at P pay p pY the Place for Payment and according to the Terms of Payment. All unpaid amounts are due by the Maturity Date. After maturity, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. If Borrower defaults in the payment of this note or in the performance of any obligation in any instrument securing or collateral to this note, Lender may declare the unpaid principal balance, earned interest, and any other amounts owed on the note immediately due. Borrower and each surety, i i endorser, and guarantor waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. Borrower also promises to pay reasonable attorney's fees and court and other costs if this note t is placed in the hands of an attorney to collect or enforce the note. These expenses will bear interest from the date of advance at the Annual Interest Rate on Matured, Unpaid Amounts. Borrower will pay Lender these expenses and interest on demand at the Place for Payment. These expenses and interest will become part of the debt evidenced by the note and will be secured by any security for payment. Interest on the debt evidenced by this note will not exceed the maximum rate or amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the Principal Amount or, if the Principal Amount has been paid, refunded. On any acceleration or required or permitted prepayment, any excess interest will be canceled automatically as of the acceleration or prepayment or, if the excess interest has already been paid, credited on the Principal Amount or, if the Principal Amount has been paid, refunded. This provision overrides any conflicting provisions in this note and all other instruments concerning the debt. Each Borrower is responsible for all obligations represented by this note. When the context requires, singular nouns and pronouns include the plural. fi Lewis RR Properties, LLC E By: Kip Lewis, its Manager s h q Y r 5 a i EXHIBIT C i Deed of Trust Notice of confidentiality rights: If you are a natural person, you may remove or strike any or all of the following information from any instrument that transfers an interest in real property before it is filed for record in the public records: your Social Security number or your driver's license number. f Terms k 1 Date: October , 2012 r Grantor: Lewis RR Properties, LLC Grantor's Mailing Address: 1102 Martin Avenue E Round Rock, Texas 78664 Williamson County it Trustee: Stephan L. Sheets Trustee's Mailing Address: 309 E. Main Street Round Rock, Texas 78664 Williamson County Lender: City of Round Rock, Texas f Lender's Mailing Address: 221 E. Main St. Round Rock, Texas 78664 # Williamson County f Obligation Note Date: October , 2012 Original principal amount: $400,000.00 S Borrower: Lewis RR Properties, LLC Lender: City of Round Rock, Texas i Maturity date: November 1, 2018 i F Property: Lots 11 and 12, Block 10, Original Plat of Round Rock, Williamson County, Texas This deed of trust also secures payment of any debt that Grantor may subsequently owe to Lender and that arises while Grantor owns the Property. Prior Lien: [include recording information] f The lien created by this deed of trust will be subordinate to the lien securing payment of a note, and any renewals, extensions, and modifications thereof, in the original principal amount of [amount] DOLLARS ($[amount]), which is dated [date], executed by [name], payable to the order of [name], and more fully described in a deed of trust recorded in [recording data] of the real property records of Williamson County, Texas. If default occurs in payment of any part of principal or interest of that $[amount] note or in observance of any covenants of the deed of trust securing it, the entire debt secured by this deed of trust will immediately become payable at the option of Lender. t F Other Exceptions to Conveyance and Warranty: For value received and to secure payment of the Obligation, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property, subject to the Other Exceptions to Conveyance and Warranty. On payment of the Obligation and all other amounts secured by this deed of trust, this deed of trust will have no further effect, and Lender will release it at Grantor's expense. Clauses and Covenants A. Grantor's Obligations Grantor agrees to— r 1. keep the Property in good repair and condition; 2. pay all taxes and assessments on the Property before delinquency; 3. defend title to the Property subject to the Other Exceptions to Conveyance and Warranty and preserve the lien's priority as it is established in this deed of trust; 4. maintain all insurance coverages with respect to the Property, revenues generated by the Property, and operations on the Property that Lender reasonably requires ("Required Insurance Coverages"), issued by insurers and written on policy forms acceptable to Lender, and deliver evidence j of the Required Insurance Coverages in a form acceptable to Lender at least ten days before the expiration of the Required Insurance Coverages; 5. obey all laws, ordinances, and restrictive covenants applicable to the Property; 6. keep any buildings occupied as required by the Required Insurance Coverages; t } x 4 C 7. if the lien of this deed of trust is not a first lien, pay or cause to be paid all prior lien notes and abide by or cause to be abided by all prior lien instruments; and 8. notify Lender of any change of address. k B. Lender's Rights 1. Lender or Lender's mortgage servicer may appoint in writing one or more substitute trustees, succeeding to all rights and responsibilities of Trustee. 2. If the proceeds of the Obligation are used to pay any debt secured by prior liens, Lender is subrogated to all the rights and liens of the holders of any debt so paid. ' 3. Lender may apply any proceeds received under the property insurance policies covering the Property either to reduce the Obligation or to repair or replace damaged or destroyed improvements covered by the policy. If the Property is Grantor's primary residence and Lender reasonably determines that repairs to the improvements are economically feasible, Lender will make the property insurance proceeds available to Grantor for repairs. f 4. Notwithstanding the terms of the Note to the contrary, and unless applicable law prohibits, all payments received by Lender from Grantor with respect to the Obligation or this deed of trust may, at Lender's discretion, be applied first to amounts payable under this deed of trust and then to amounts due and payable to Lender with respect to the Obligation, to be applied to late charges, principal, or interest in the order Lender in its discretion determines. 5. If Grantor fails to perform any of Grantor's obligations, Lender may perform those obligations and be reimbursed by Grantor on demand for any amounts so paid, including attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in the Note for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of trust. 6. If there is a default on the Obligation or if Grantor fails to perform any of Grantor's obligations and the default continues after any required notice of the default and the time allowed to cure, Lender may— a. declare the unpaid principal balance and earned interest on the Obligation immediately due; b. direct Trustee to foreclose this lien, in which case Lender or Lender's agent will cause notice of the foreclosure sale to be given as provided by the Texas t Property Code as then in effect; and C. purchase the Property at any foreclosure sale by offering the highest bid and then have the bid credited on the Obligation. i 7. Lender may remedy any default without waiving it and may waive any default without waiving any prior or subsequent default. fi C. Trustee's Rights and Duties f k If directed by Lender to foreclose this lien, Trustee will- 1. either personally or by agent give notice of the foreclosure sale as required by the Texas Property Code as then in effect; 2. sell and convey all or part of the Property "AS IS" to the highest bidder for cash with a general warranty binding Grantor, subject to the Prior Lien and to the Other Exceptions to Conveyance and Warranty and without representation or warranty, express or implied, by Trustee; 3. from the proceeds of the sale, pay, in this order— a. expenses of foreclosure, including a reasonable commission to Trustee; b. to Lender, the full amount of principal, interest, attorney's fees, and other charges due and unpaid; C. any amounts required by law to be paid before payment to Grantor; and a d. to Grantor,any balance; and f r 4. be indemnified, held harmless, and defended by Lender against all costs, expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of the trust created by this deed of trust, which includes all court and other costs, including attorney's fees, incurred by Trustee in defense of any action or proceeding taken against Trustee in that capacity. F m D. General Provisions 1. If any of the Property is sold under this deed of trust, Grantor must immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will become a tenant at sufferance of the purchaser, subject to an action for forcible detainer. t 2. Recitals in any trustee's deed conveying the Property will be presumed to be true. s 3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other r remedy will not constitute an election of remedies. f 4. This lien will remain superior to liens later created even if the time of payment of all or { part of the Obligation is extended or part of the Property is released. t 5. If any portion of the Obligation cannot be lawfully secured by this deed of trust, payments will be applied first to discharge that portion. 6. Grantor assigns to Lender all amounts 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 and court and other costs, Lender will either release any remaining amounts to Grantor or apply such amounts to reduce the Obligation. Lender will not be liable for a c 3 failure to collect or to exercise diligence in collecting any such amounts. Grantor will immediately give Lender notice of any actual or threatened proceedings for condemnation of all or part of the Property. 7. Grantor assigns to Lender absolutely, not only as collateral, all present and future rent and other income and receipts from the Property. Grantor warrants the validity and enforceability of the assignment. Grantor may as Lender's licensee collect rent and other income and receipts as long as Grantor is not in default with respect to the Obligation or this deed of trust. Grantor will apply all rent and other income and receipts to payment of the Obligation and performance of this deed of trust, but if the rent and other income and receipts exceed the amount due with respect to the Obligation and the deed of trust, Grantor may retain the excess. If Grantor defaults in payment of the Obligation or performance of this deed of trust, Lender may terminate Grantor's license to collect rent and other income and then as Grantor's agent may rent the Property and collect all rent and other income and receipts. Lender neither has nor assumes any obligations as lessor or landlord with respect to any F occupant of the Property. Lender may exercise Lender's rights and remedies under this paragraph without taking possession of the Property. Lender will apply all rent and other income and receipts collected under this paragraph first to expenses incurred in exercising Lender's rights and remedies and then to Grantor's obligations with respect to the Obligation and this deed of trust in the order determined by Lender. Lender is not required to act under this paragraph, and acting under this w paragraph does not waive any of Lender's other rights or remedies. If Grantor becomes a voluntary or involuntary debtor in bankruptcy, Lender's filing a proof of claim in bankruptcy will be deemed equivalent to the appointment of a receiver under Texas law. 8. Interest on the debt secured by this deed of trust will 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 will be credited on the principal of the debt or, if that g has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess will 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 } any conflicting provisions in this and all other instruments concerning the debt. 9. In no event may this deed of trust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law. 10. Grantor may not sell,transfer, or otherwise dispose of any Property, whether voluntarily or by operation of law, without the prior written consent of Lender. If granted, consent may be conditioned upon (a) the grantee's integrity, reputation, character, creditworthiness, and management ability being satisfactory to Lender; and (b) the grantee's executing, before such sale, transfer, or other disposition, a written assumption agreement containing any terms Lender may require, such as a principal pay down on the Obligation, an increase in the rate of interest payable with respect to the Obligation, a transfer fee, or any other modification of the Note, this deed of trust, or any other instruments evidencing or securing the Obligation. i Grantor may not cause or permit any Property to be encumbered by any liens, security interests, or encumbrances other than the liens securing the Obligation and the liens securing ad valorem taxes not yet due and payable without the prior written consent of Lender. If granted, consent may be conditioned upon Grantor's executing, before granting such lien, a written modification agreement containing any terms Lender may require, such as a principal pay down on the Obligation, an increase r E t s F in the rate of interest payable with respect to the Obligation, an approval fee, or any other modification of the Note,this deed of trust, or any other instruments evidencing or securing the Obligation. Grantor may not grant any lien, security interest, or other encumbrance (a "Subordinate Instrument") covering the Property that is subordinate to the liens created by this deed of trust without the prior written consent of Lender. If granted, consent may be conditioned upon the Subordinate Instrument's containing express covenants to the effect that— (a) the Subordinate Instrument is unconditionally subordinate to this deed of trust; (b) if any action is instituted to foreclose or otherwise enforce the Subordinate Instrument, ? no action may be taken that would terminate any occupancy or tenancy without the prior written consent of Lender, and that consent, if granted, may be conditioned in any manner Lender determines; (c) rents, if collected by or for the holder of the Subordinate Instrument, will be applied first to the payment of the Obligation then due and to expenses incurred in the ownership, operation, and maintenance of the Property in any order Lender may determine, before being applied to any indebtedness secured by the Subordinate Instrument; (d) written notice of default under the Subordinate Instrument and written notice of the commencement of any action to foreclose or otherwise enforce the Subordinate Instrument must be given to Lender concurrently with or immediately after the occurrence of any such default or commencement; and f (e) in the event of the bankruptcy of Grantor, all amounts due on or with respect to the Obligation and this deed of trust will be payable in full before any payments on the indebtedness secured by the Subordinate Instrument. Grantor may not cause or permit any of the following events to occur without the prior written consent of Lender: if Grantor is (a) a corporation, the dissolution of the corporation or the sale, pledge, encumbrance, or assignment of any shares of its stock; (b) a limited liability company, the dissolution of the company or the sale, pledge, encumbrance, or assignment of any of its membership interests; (c) a general partnership or joint venture, the dissolution of the partnership or venture or the sale, pledge, encumbrance, or assignment of any of its partnership or joint venture interests, or the withdrawal from or admission into it of any general partner or joint venturer; or (d) a limited partnership, (1) the dissolution of the partnership, (2) the sale, pledge, encumbrance, or assignment of any of its general partnership interests, or the withdrawal from or admission into it of any general partner, (3) the sale, pledge, encumbrance, or assignment of a controlling portion of its limited partnership interests, or (4) the withdrawal from or admission into it of any controlling limited partner or partners. If granted, consent may be conditioned upon (a) the integrity, reputation, character, creditworthiness, and management ability of the person succeeding to the ownership interest in Grantor (or security interest in such ownership) being satisfactory to Lender; and (b) the execution, before such event, by the } person succeeding to the interest of Grantor in the Property or ownership interest in Grantor (or security interest in such ownership) of a written modification or assumption agreement containing such terms as Lender may require, such as a principal pay down on the Obligation, an increase in the rate of f k s interest payable with respect to the Obligation, a transfer fee, or any other modification of the Note, this deed of trust, or any other instruments evidencing or securing the Obligation. 11. When the context requires, singular nouns and pronouns include the plural. 12. The term Note includes all extensions, modifications, and renewals of the Note and all amounts secured by this deed of trust. 13. This deed of trust binds, benefits, and may be enforced by the successors in interest of all parties. 14. If Grantor and Borrower are not the same person,the term Grantor includes Borrower. 15. Grantor and each surety, endorser, and guarantor of the Obligation waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity,protest, and notice of protest, to the extent permitted by law. c i 16. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and other u costs of enforcing Lender's rights under this deed of trust if this deed of trust is placed in the hands of an attorney. 17. If any provision of this deed of trust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. 18. The term Lender includes any mortgage servicer for Lender. 19. Grantor represents that this deed of trust and the Note are given for the following purposes: To provide partial funding for the purchase of the Property. k a } Lewis RR Properties, LLC 4 By: Kip Lewis, its Manager 3 } s s r E 's } 4 s P STATE OF TEXAS P COUNTY OF WILLIAMSON Before me, the undersigned authority, on this day personally appeared Kip Lewis, Manager for Lewis RR Properties, LLC, whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in the aforesaid capacity and for the purposes and consideration therein expressed. k Given under my hand and seal of office this day of , 2012. E { i Notary Public, State of Texas My commission expires the day of , 20 z F' E 0 s i I i E i 2 f s 4 { s r Guaranty Date: October , 2012 Guarantor: Kip Lewis Guarantor's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County Borrower: Lewis RR Properties, LLC i x Borrower's Mailing Address: 1102 Martin Avenue Round Rock, Texas 78681 Williamson County E Lender: City of Round Rock Lender's Mailing Address: 221 E. Main St. Round Rock, Texas 78664 : Williamson County a_ E Guaranteed Indebtedness: The debt evidenced by the note dated of even date herewith, in the original principal amount of$400,000.00, executed by Borrower and payable to the order of Lender, the obligations under the deed of trust executed in connection with the note and any other document executed by Borrower evidencing or securing the note (collectively, the "Loan Documents"), plus all interest, penalties, expenses, attorney's fees, and other collection costs as provided in the Loan Documents. 1. Guarantor agrees to pay, when due or declared due, the Guaranteed Indebtedness to Lender at Lender's Mailing Address. 2. Guarantor waives (a) diligence in preserving liability of any person on the Guaranteed Indebtedness and in collecting or bringing suit to collect the Guaranteed Indebtedness; (b) all rights of Guarantor under chapter 34 of the Texas Business and Commerce Code, and rule 31 of the Texas Rules of Civil Procedure, section 17.001 of the Texas Civil Practice and Remedies Code, and sections 51.003, 51.004, and 51.005 of the Texas Property Code; (c) protest; (d) notice of extensions, increases, renewals, or rearrangements of the Guaranteed Indebtedness; and (e) notice of acceptance of this guaranty, of creation of the Guaranteed Indebtedness, of failure to pay the Guaranteed Indebtedness as ° it matures, of any other default, of adverse change in Borrower's financial condition, of release or substitution of collateral, of intent to accelerate, of acceleration, and of subordination of Lender's rights in any collateral, and every other notice of every kind. Guarantor's obligations under this guaranty will not be altered nor will Lender be liable to Guarantor because of any action or inaction of Lender in regard to a matter waived or of which notice is waived by Guarantor in the preceding sentence. k t s r F { S: 3. Guarantor agrees to pay reasonable attorney's fees and other collection costs if this guaranty is placed in the hands of an attorney for collection. If any party retains an attorney to enforce this guaranty, the party prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs. 4. This guaranty is an absolute, irrevocable, unconditional, and continuing guaranty of payment and performance and not of collection. 5. Lender need not resort to Borrower or any other person or proceed against collateral before pursuing its rights against Guarantor or any other guarantor. Lender's action or inaction with respect to any right of Lender under the law or any agreement will not alter the obligation of Guarantor hereunder. Lender may pursue any remedy against Borrower or any collateral or under any other f guaranty without altering the obligations of Guarantor hereunder and without liability to Guarantor, k even though Lender's pursuit of such remedy may result in Guarantor's loss of rights of subrogation or to proceed against others for reimbursement of contribution or any other right. 6. Guarantor will remain liable for the Guaranteed Indebtedness even though the Guaranteed Indebtedness may be unenforceable against or uncollectible from Borrower or any other person because of incapacity, lack of power or authority, discharge, or any other reason. 7. Guarantor consents and acknowledges that Guarantor's obligations will not be released by (a) the renewal, extension, or modification of the Guaranteed Indebtedness or any of the Loan Documents; (b) the insolvency, bankruptcy, liquidation, or dissolution of Borrower or any other obligor; (c) the failure of Lender to properly obtain, perfect, or preserve any security interest or lien in any collateral for the Guaranteed Indebtedness; (d) the release, substitution, or addition of any collateral for the Guaranteed Indebtedness; or (e) the failure of Lender to exercise diligence, R commercial reasonableness, or reasonable care in the preservation, enforcement, or sale of any of the collateral. f 8. Lender need not notify Guarantor that Lender has sued Borrower, but if Lender gives written notice to Guarantor that it has sued Borrower, Guarantor will be bound by any judgment or decree,to the extent permitted by law. 9. Lender may sue any guarantor without impairing Lender's rights against any other guarantor, with or without making Borrower a party. Lender may settle with Borrower or any other guarantor for such amounts as it may elect or may release Borrower or any guarantor or any collateral securing the Guaranteed Indebtedness without impairing Lender's right to collect the Guaranteed Indebtedness from Guarantor. 10. This guaranty binds Guarantor and Guarantor's heirs, successors, and assigns, and it benefits and may be enforced by Lender and Lender's successors in interest. When the context requires, singular nouns and pronouns include the plural. This guaranty will be construed under the laws of the state of Texas, without regard to choice-of-law rules of any jurisdiction. The provisions of F this guaranty are severable. If a court of competent jurisdiction finds that any provision of this guaranty is unenforceable, then the remaining provisions will remain in effect without the unenforceable parts. x E i f s' c 11. FINAL AGREEMENT: THIS WRITTEN AGREEMENT REPRESENTS THE FINAL I AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. : Kip Lewis r h 3 7: s S 9 d l t g� 4 r. f L E q E y F r