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HomeMy WebLinkAboutEDCRes2016.02.02ANNA ECONOMIC DEVELOPMENT CORPORATION RESOLUTION NO. )01k-02-tX� (Ebc� A RESOLUTION OF THE ANNA ECONOMIC DEVELOMENT CORPORATION APPROVING AN AMENDMENT TO THE ECONOMIC DEVELOPMENT INCENTIVE PERFORMANCE AGREEMENT WITH NIMBIX, INC. WHEREAS, the Anna Economic Development Corporation (the "EDC") granted funds to NIMBIX,INC in support of an economic development project to create and retain primary jobs; WHEREAS, the EDC has been notified that NIMBIX, INC needs to relocate and terminate their Economic Development Incentive Performance Agreement; WHEREAS, the EDC has determined that it would be beneficial to the EDC and to the City for the EDC to grant the termination of the agreement. NOW, THEREFORE, BE IT RESOLVED BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement The EDC hereby approves the Termination Agreement ("Agreement"), attached hereto as EXHIBIT A, incorporated herein for all purposed, and authorizes the EDC President to execute same on its behalf, subject to approval as to form by legal counsel for the EDC, final content by the EDC Chief Administrative Officer. PASSED AND APPROVED by the Anna Economic Development Corporation on this day of 2016. ATTEST: AP VED: Constance Stump Sherilyn *krrey EDC President EDC SecreWry ANNA EDC RESOLUTION NO.AC6 t Et6) PAGE 1 OF 1 Exhibit A AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT This Amended Economic Development Incentive Grant for Capital Investment Performance Agreement (this "Amendment") is made and entered into by and between the Anna Economic Development Corporation and NIMBIX, Inc. (the "Company"). WITNESSETH: WHEREAS, on or about February 6, 2013, the AEDC ("AEDC") and the Company entered into a certain Economic Development Incentive Grant for Capital Investment Performance Agreement (the "Performance Agreement") and the parties thereto now desire to modify the terms of the Performance Agreement as set forth in this Amendment; and WHEREAS, under the Performance Agreement, AEDC provided grant proceeds for the use of the Company, and the Company agreed to meet certain performance criteria including, in part, the creation and retention of certain jobs within the City; and WHEREAS, the Company met some of the performance criteria under the Performance Agreement, but the Company now desires to terminate the Performance Agreement early and AEDC is willing to allow the Performance Agreement to so terminate conditioned on the Company fully and timely repaying a portion of the grant proceeds to the AEDC in accordance with the terms of this Amendment; and WHEREAS, the AEDC and the Company desire to set forth in this Amendment their understanding and agreement as to the repayment of a portion of the grant proceeds and the termination of the Performance Agreement; and WHEREAS, the AEDC and the Company agree that as of the date of this Amendment neither party is in breach or default under the Performance Agreement and that both parties are mutually interested in an amicable resolution of their business arrangement under the Performance Agreement and agree that performance of the obligations under this Amendment accomplishes said desired resolution; NOW, THEREFORE, in consideration of the foregoing, the mutual benefits, promises and undertakings of the parties to this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 1 OF 5 Exhibit A Section 1. Recitals and Other Matters Incorporated. The above -stated recitals are incorporated into this Amendment as if set forth in full for all purposes and constitute material representations by the Company and AEDC to induce the other party to enter into this Amendment. The provisions of the Performance Agreement not in conflict with the provisions of this Amendment are incorporated herein as if set forth in full for all purposes. Section 2. Definitions. Capitalized terms in this Amendment have the same meanings as specified in the Performance Agreement unless expressly set forth to the contrary in this Amendment. Section 3. Termination of Performance Agreement Subject to Repayment. (a) Obligation to Repay. The Company must repay to AFDC a portion of the grant provided under the Performance Agreement. The total repayment amount due is $95,700 (the "Total Repayment Amount"). The Total Repayment Amount may be paid in 30 minimum monthly installment amounts of $3,190, with the first payment being due on March 1, 2015, and each subsequent installment being due on or before the 10th day of each subsequent month. The Company may pay the Total Repayment Amount early without penalty; provided, however, that the Company must timely pay at least the minimum installment amount due each month until the Total Repayment Amount has been paid in full. (b) Conditional Termination. Notwithstanding any provision in the Performance Agreement to the Contrary, the Performance Agreement shall automatically terminate at the time the Company has fully and timely repaid the Total Repayment Amount to AEDC. Provided that the Company is not in default of its obligation to repay under subsection (a), above, all of the obligations of the Company under the Performance Agreement shall be suspended and the Company shall be relieved of said obligations during said suspension. If the Company should be in breach of this Amendment or default on its obligations under this Amendment, including but not limited to its obligation to fully and timely repay the Total Repayment Amount, then this Amendment shall be rendered void, the Performance Agreement shall not terminate and the Company shall be deemed to be in material breach of the Performance Agreement. In such event, the Company will be deemed to have failed to meet its Obligation to Maintain before the expiration of 5 years after the Start Date and will be obligated to make repayment to AEDC; and satisfy all other obligations under the Performance Agreement as if this Amendment had never been entered into. If the Company is deemed to be in material breach of the Performance Agreement, AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 2OF5 Exhibit A AEDC shall be entitled to retain any portion of the Total Repayment Amount paid by the Company under this Amendment and shall further be entitled to all sums due to it under the Performance Agreement and there shall be no credit or offset related to the any payments made under this Amendment. The Company shall not be entitled to notice of default or any cure period for failure to fully and timely pay the Total Repayment Amount under the terms of this Amendment. (c) Survival. Notwithstanding any provision in the Performance Agreement or in this Amendment, and regardless of whether or not the Performance Agreement is terminated under this Amendment, the Company's obligations to fully defend, indemnify, and hold harmless the AEDC and the City to the full extent set forth under the Performance Agreement —shall survive for all purposes. Section 4. Notices. (a) Any notices required or permitted under this Amendment shall be given in writing, and shall be deemed to be received upon receipt or refusal after mailing of the same via United States certified mail, postage fully pre -paid, return receipt requested or by overnight courier (refusal shall mean return or certified mail not accepted by the addressee): If to the Company, to: NIMBIX, Inc. Attention: Steve Hebert, President 2323 Bryan Street, Suite 1520, MS108 Dallas, TX 75201 If to the AEDC, to: AEDC Attention: Jessica Perkins, Chief Administrative Officer PO Box 776 Anna, Texas 75409 and with a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, TX 75034 AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 3OF5 Exhibit A (b) Either party -may change its addresses for notice by providing written notice of same to the other party and to the City via the manner set forth in subsection (a), above. IN WITNESS WHEREOF, the parties hereto have executed this Amendment, which shall be effective as of the date of the last execution of same by any party. Anna Economic Development Corporation STATE OF TEXAS § COUNTY OF COLLIN § rf r Lauretta Kay 6lacketer My Commission Expires � �..�.�. 04/01 /2017 Before me, the undersigned notary public, on the � f A day of , 2016, personally appeared Constance Ann Stump known to me (or proved to me) to be fhe person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same in her capacity as Presiden the AEDC and on behal f the AEDC. 7 r't' J4 h 0HrL)_ CW Not ry Public, State of Irexas [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 4 OF 5 .A Exhibit A NIMBIX, Inc. 4'..4 BY: Steve Hebert, its President STATE OF TEXAS § COUNTY OF COLLIN § Before me, the undersigned notary public, on the _ day of 2016, personally appeared Steve Hebert known to me (or proved to me) to be the per on whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same in his capacity as President of NIMBIX, Inc. and on behalf of NIMBIX, Inc. RY pli ANTONIO GARCIA Notary Public, Mato of Texas otary Public, State of Texas My Commission Cxpiros :T'. +' November 29, 14016f�fl 0111 �• d AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE AGREEMENT PAGE 5OF5