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
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AMENDED ECONOMIC DEVELOPMENT INCENTIVE GRANT FOR CAPITAL INVESTMENT PERFORMANCE
AGREEMENT
PAGE 5OF5