HomeMy WebLinkAboutPR 14940: DMC INCENTIVE AGREEMENTinteroffice
MEMORANDUM
To: Mayor, City Council, and City Marn7age~r o~
From: Mark T. Sokolow, City At=torney ~ ~/.~ ~~jt~`-v`-'~--
Date: October 10, 2008
Subject: P. R. No. 14940; Special Council Meeting October 19:, 2008
Attached is P. R. No. 14040 as it pertains to ttie DMC
Incentive Agreement and the Assignment thereof. The attorneys are
still reviewing the documentation and I expect that there will be
minor modifications to clearly reflect that this is an assignment
of the March 8, 2007 Incentive AgrE=_ement, First Amendment sic~ned by
Rhorer Moniotte Investments on April 3, 2008, and the First
Supplement signed by Rhorer Moniotte Investments on June 30, 2008.
The parent company, PVI Holdings, Inc. will be signing a Guaranty.
Also, the status reports need t:o reflect the new performance
schedules and the next status report is December 31, 2008.
MTS:ts
Attachment
cc: Floyd Batiste
Guy Goodson
z.pr14940 memo
P. R. No. 14940
10/10/08 edc/ts
RESOLUTION NO.
A RESOLUTION AS IT Ik?ERTAINS TO THE DMC
INCENTIVE AGREEMENT AND THE ASSIGNMENT THEREOF
WHEREAS, the City of Port: Arthur Section 4A Economic
Development Corporation has had a request that the Economic
Incentive Contract and Loan Agreement originally executed between
the PAEDC and Rhorer-Moniotte Investments, L.L.C.. d/b/a Desselle-
Maggard Corporation (DMC) (as amended and supplemented) be assigned
and assumed by DMC, a Delaware Corporation, which is a wholl~,r owned
subsidiary of PVI Holdings, Inc., <~nd PVI Holdings, Inc. has agreed
to guaranty the obligations of DMC'., as delineated in substar.~tially
the same forms as attached hereto as Exhibit "A",; and
WHEREAS, it is deemed in the best interests of the citi~:ens to
approve the assignment and assumpt:ion.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF Tf[E CITY
OF PORT ARTHUR:
Section 1. That the fact: and opinions :in the preamble
are true and correct.
Section 2. That the City Council approves the assignment
of the Economic Incentive Contract and Loan Agreement between the
City of Port Arthur Section 4A Eco:nomic Development Corporation and
Rhorer-Moniotte Investments, I.L.C. d/b/a Desselle-bIaggard
Corporation to DMC, a Delaware Corporation, which is a wholl~r owned
subsidiary of PVI Holdings, Inc., as delineated in substantially
z.pr14940
the same forms as attached hereto as Exhibit "A".
Section 3. That this assignment and the documentation
shall be adjusted to reflect the M<~rch 8, 2007 Incentive Agre>ement,
First Amendment signed by Rhorer Moniotte Investments on Aril 3,
2008, and the First Supplement signed by Rhorer Moniotte
Investments on June 30, 2008. It shall also be adjusted to reflect
that the next status report as to performance is December 31, 2008.
Section 4. That a copy of the caption of this Resolution
be spread upon the Minutes of the Corporation.
READ, ADOPTED AND APPROVED oil this day of
A.D., 2008, at a Meeting of the City Council of
the City of Port Arthur, by the following vote: AYES:
Mayor
NOES:
MAYOR
ATTEST:
TERRI HANKS, ACTING CITY SECRETAR'i~
APPROVED AS TO FORM:
~~
CITY ATTORNEY
z.pr14940
EXHIBIT "A"
Page 1 of 1
Mark Sokolow
From: "Guy Goodson" <GGoodson(a~germer.com>
To: <mark@portarthur.net>; <fbatiste@paedc.org>
Sent: Thursday, October 09, 2008 3::?9 PM
Attach: img-X091520-0001.pdf
Subject: PAEDC/DMC
Please see attached corres~~mc~ence zvlr~ftac~hrr~erits.
Mistay ~. M~cse
L~gs~l Asst. to C~xty 11~. ~r=g~
Ger~nc~s• Get•t,~, L.I,.I'.
550 F~t~tr~ti~a, 5uit~ 4Q(?
P.D. ~3ax X925
li~Jr~ttnzc»tt, Texas 7?7~'~
P. (~09} 65~-h730
F. (~09} 835-2115
10/ 10/2008
GERME~ERTZ L.L.F~
A T T O R N E Y ~A T ! A W
C)ctober 9, 2008
Mr. Mark Sokolow
City of Port Arthur -Legal Dept.
P.O. Box 1089
Port Arthur, Texas 77641-1089
AUSTIN BFJ~U~AON4 HOUSTON
w~rvw.germer.com
GUY N. GOODSON
Partner
Direct Dial: (409) 654-6730
gg oods ~~nC g erm er. c om
Re: City of Port Arthur Section 4A Economic Development Corporation {the "EDC")
Dear Mark:
Thank you for your prompt review and consideration of the documents we submitted
relative to the assignment and assumption of the Economic Incentive Contract anti Loan
Agreement (the "Agreement") originally executed between PAEDC as Grantor and 1'Zhorer-
Moniotte Investments, L.L.C. d/b/a Desselle-M.aggard Corporation as Grantee. The attached
documents which include the following:
1) Assignment and Assumption Agreement (prepared by the undersigned) with I~xhibits
"A" through "C";
2) Conditional Commercial Promissory Note;
3) Guaranty Agreement; and
4) Affidavit of Tifle.
The essence of the transaction as discussed will allow the release from the Agreement of
the original Grantor Rhorer-Moniotte Investments, L.L.C. d/b/a Desselle-Maggard Corporation
and the assumption of the covenants, conditions and obligations of the Agreement by the
Desselle-Maggard Corporation ("DMC"}, a Delaware corporation which is a wholly owned
subsidiary of PVI Holdings, Inc., which has agreed to guaranty the obligations of DMC,
Further, in the transfer of the operating assets described above, the new ownE;rs will
discharge the $4 million indebtedness of Wachovia Bank, N.A. which was a superior deed of
trust lien on the real property and improvements in the Business Park to which the PAEDC
$810,000 incentive agreement was subordinate. This will place the PAEDC collateral in a
superior lien position on the facility in the Businf~s Park.
P.O. BOX 4915 • BEAUMONT, TX 77704 • PHONE 409.654.6700 • FAX :409.835.2115
As advised by Floyd Batiste, all obligations, covenants, conditions and reports required
under the Agreement had been undertaken by the Incentive Recipient, and there were no
defaults under the Agreement at the time the proposed assignment and assumption.
We respectfully request the attached be presented to the Ciry Council and a request
made for their approval of this transaction.
Yours very truly,
GERMER GERTZ, L.L.P.
By_ ~aaC'.y~..
Guy N. Goodson
GNG/mgxn
Attachments
ASSIGNMENT AND A5SCrMPTION AGREEMENT
STATE OF TEXAS §
COUNTY OF JEFFERSON §
Rhorer-Moniotte Investments, L.L.C. d/b/a Desselle-Haggard Corporation (the
"Borrower"), is legally obligated to pay the outstanding principal balance set forth in that
certain Conditional Commercial Promissory Note (the "Indebtedness" and/or "Note";) dated
March 8, 2007, in the original principal sum of :EIGHT HUNDRED TEN THOUSANL) AND
00/100 DOLLARS ($810,400.00), bearing interest at the rate therein specified and payable as
therein provided to the order of City of Port Arthwr Section 4A Economic Development
Corporation, an economic development corporation (the "Lender"), said Indebtedness; being
secured by a Deed of Trust (the "Deed of Trust") of even date therewith and filed for record
under County Clerk's File No. 200 701b294 in the Real Property Records of Jefferson t:ounty,
Texas, reference being made to the Deed of Trust and the record thereof for all purposes,
cxeating hens upon and against certain real property located in Jefferson County, Texas,
hereinafter described, together with Liens upon the improvements and fixtures therein
described, said property being described in Exhibit "A°, attached hereto and made a part
hereof by this reference (the "Property");
WHEREAS, Borrower is selling certain assets to Desselle-Haggard Corporation
("DMC"), a wholly owned subsidiary of PVI Holdings, Inc. ("PVI");
WHEREAS, Borrower has requested ire accordance with the Consent and Estoppel
Letter dated October 3, 2008 (the "Consent") attached hereto as Exhibit "B" and made: a part
hereof for all purposes for Lender to release Borrower from the terms, conditions and
obligations of that certain Economic Incentive Contract and Loan Agreement between
Borrower and Lender dated March 8, 2007 (the "Agreement");
WHEREAS, Lender has agreed to execute the Consent and to provide a release of
Borrower from its obligations in consideration of an assignment and assumption of said
obligations by DMC, a Delaware corporation, including the operation of the facility located in
the City of Port Arthur Section 4A Economic Development Corporation Business Park in Port
Arthur, Texas (the "Facility") which Facility is located on the Property herein described.;
WHEREAS, PVI has agreed by correspondence dated October _, 2008, attached
hereto as Exhibit "C" and made a part hereof for all purposes (the "Letter Agreement") to
guarantee the performance by DMC of all the obligations assumed by DMC under the
Agreement;
WHEREAS, Lender heretofore executed a Renewal, Extension and Modification
Agreement (the "Modification Agreement") subordinating its Deed of 'Trust lien in favor of a
deed of trust lien of Wachovia Bank, N.A. pursuant to a Subordination Agreement in favor of
Wachovia Bank, N.A. (the "Subordination Agreement");
WHEREAS, as a part of the sale of assets of Borrower to DMC, the indebtedness of
Wachovia Bank, N.A. will be paid in full and that lien discharged; and
WHEREAS, the Deed of Trust lien of Lender described in the :Deed of Trust will now
be a superior Deed of Trust lien on the Property„
NOW, THEREFORE, in consideration of the assignment and assumption herevi stated
and in further consideration of the Recitals set forth above which are set forth in this
Assignment and Assumption Agreement as if fully set forth below, Borrower, Lender, DMC
and FVI agree as follows:
The Lender consents to the assignment and assumption of the obligations of Lender
under the Agreement in consideration of the assignment and assumption of said obligations by
DMC and the guarantee of such obligations by PVI. Any and all obligations of Lender
pursuant to the Subordination Agreement in favor of Wachovia Bank, N.A. as to the Property
are released and discharged.
Lender releases and discharges Baxrowe:r from its obligations under the Agreement as
specified in Exhibit "B".
DMC agrees to execute a conditional co~mrnercial promissory note (the "Indebtedness"
and/or "Note"), and the Conditional Commercial Promissory Note of Borrower shall be
cancelled.
Except as provided in the instruments securing the Indebtedness, as assigned and
assumed by this Agreement (hereinafter collectively referred to as the "Security Documents"),
in the event of default in the payment of any part of the principal amount or interest on the
Indebtedness as and when due, or in the event of default in the performance of any covenant,
condition or agreement contained in any of the condition or agreement contained in any of the
Security Documents, then Lender shall have the unconditional right, without presentment,
demand, notice, notice of intent to accelerate, notice of acceleration or other action, to declare
the unpaid balance of the principal amount of the Indebtedness, together with accrued and
unpaid interest thereon, at once due and payable and to foreclose each Lien securing the
payment thereof, either under any power of sale contained in such documents or agreement or
by court proceedings, as such holder may elect.
Default (a) under any other written agreement between DMC, as borrower, and
Lender, or (b) with respect to any indebtedness of DMC, as borrower, 'to Lender when due, or
(c) in the performance of any other obligation incurred in connection with indebtedness due to
Lender by DMC, if the effect of such default is to accelerate the maturity of such indebtedness
or to permit the holder thereof to cause such :indebtedness to become due before thc; stated
maturity.
N652288 Page 2
Notwithstanding anything contained herein or in any other separate security agreement
or other document executed heretofore, herewitlx or hereafter in connection with or related to
this credit obligation (as defined or described in I2 C.F.R. 227, Regulation AA, promulgated
by the Federal Reserve Board), the security fox• this credit obligation shall not extend to any
non_possessory security interest in household goods (as defined in said Regulation AA) other
than a purchase money security interest, and :no waiver of any notice contained herein or
therein shall be construed under any circumstances to extend to any waiver of notice prohibited
by Regulation AA.
In no event shall the Security Documents secure payment of any debt that applicable
law would prohibit.
All agreements and transactions between Lender and DMC, whether now existing or
hereafter arising, whether contained herein or in any other instrument, and whether written or
oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of the maturity of the Indebtedness, prepayment, demand for payment or
otherwise, shall the amount contracted for, charged or received by holder herewith from DMC
for, the use, forbearance, or detention of the principal amount of interest thereon, which
remains unpaid from time to time, exceed the maximum amount permissible under applicable
law, it particularly being the intention of the parties hereto to conform strictly to the laws of
the State of Texas and of the United States of America, whichever is applicable. Any :interest
payable under the Indebtedness or under any other instrument relating to the loan evidenced
hereby that is in excess of the Iegal maximum under applicable law shall, in the event of
acceleration of maturity, prepayment, demand for payment or otherwise, be automatically, as
of the date of such acceleration, prepayment, demand or otherwise, applied to a reduction of
the principal amount and not to the payment of interest, or if such excessive interest exceeds
the unpaid balance of the principal amount, such excess shall be refunded to DMC. To the
extent permitted by applicable law, determination of the legal maximum amount of interest
shall at all times be made by amortizing, prorating, allocating and spreading in equal parts
during the period of the full stated term of the loan, all interest at any time contracted for,
charged or received from DMC in connection with the loan, so that the actual rate of interest
on account of such indebtedness is uniform throughout the term thereof.
DMC acknowledges all liens on all collateral security for the repayment of the
Indebtedness and the Indebtedness until the Indebtedness has been fully paid and agree that its
assumption in no manner affect or impair the :[ndebtedness or the lien or liens securing the
same and that lien or liens shall not in `any manner be waived. DMC hereby acknowledges
the validity and continuation of the liens in the Security Documents and any security
agreements as security for the payment of the Indebtedness as herein modified and rearr~~nged.
IT IS THE INTENTION OF THE PARITIES THAT THIS ASSUMPTION OF THE
INDEBTEDNESS BY DMC SHOULD IN ITS ENTIRETY CONFORM T0~ THE
INDEBTEDNESS. THE PURPOSE OF THIS INSTRUMENT IS SIMPLY TO
ACKNOWLEDGE ASSIGNMENT AND ASSUMPTION OF PAYMENT OP THE
It652288 Page 3
INDEBTEDNESS AND TO CARRY FORWARD ALL LIENS SECURING THE ;TAME,
WHICH ARE ACKNOWLEDGED BY DMC TO BE VALID AND SUBSISTING, AND
THE DMC FURTHER AGREES THAT ALL TERMS AND PROVISIONS OIL THE
INDEBTEDNESS AND OF THE INSTRUMENT OR INSTRUMENTS CREATIrfG OR
FIXING THE LIEN OR LIENS SECURING 'CHE SAME SHALL BE AND REMAIN IN
FULL FORCE AND EFFECT AS THEREI:L~I WRITTEN, EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN.
THE AGREEMENT FOR THIS LOAN OR OTHER EXTENSION OF CREDIT
DESCRIBED ABOVE REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF F'RIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PA.}ZTIES.
THERE ARE NO UNWRITTEN ORAL AGREI~MENTS BETWEEN THE PARTIES.
EXECUTED effective as of October , 200$.
BORROWER:
Rhorer-Moniotte Investments, L.L.C.,
d/b/a Desselle-Maggazd Corporation,
a Louisiana limited liability company
By:
Charles H. Moniotte, Manager
Witness
~f652288 Page 4
STATE OF §
COUNTY OF §
On this day of October, 2008, before me, a Notary public in and for said
County and State, personally appeared of
,who acknowledged that, with due authorization, he did sign the
foregoing instrument on behalf of and that the same is his free act and
deed individually as such officer and the free act and deed of
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
STATE OF
COUNTY OF
On this day of October, 2008, before me, a Notary Public in and for said
County and State, personally appeared of
,who acknowledged that, with due authorization, he did sign the
foregoing instrument on behalf of and that the same is his free act and
deed individually as such officer and the free act and deed of
IN WITNESS WHEREOF, I have hereunto subscribed my name and affix:ed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
#b52288 Page 5
LENDER:
ATTEST:
Secretary
STATE OF TEXAS
COUNTY OF JEFFERSON
Port Arthur Section 4A Economic
Development Corporation
By:
President
On this day of October, 2008, before me, a Notary Public in and for said County
and State, personally appeared ,President of the City of Port Arthur Section 4A
Economic Development Corporation, who acknowledged that, with due authorization, he dlid sign
the foregoing instrument on behalf of the PAEDC and that the same is his free act and deed
individually as such officer and the free act and deed of the PAEDC.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal on the day and year aforesaid.
STATE OF TEXAS
COUNTY OF JEFFERSON
Notary Public, State of Texas
On this day of October, 2008, before me, a Notary Public in and for said County
and State, personally appeared _, Secretary of the City of Port Arthur Section
4A Economic Development Corporation, who acknowledged that, with due authorization, she did
sign the foregoing instrument on behalf of the PAEDC and that the same is her free act and deed
individually as such officer and the free act and deed of the PAEDC.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official
seal on the day and year aforesaid.
Notary Public, State of Texas
71652288 Page 6
Desselle-Maggard Corporation
STATE OF §
COUNTY OF §
By:
Its:
Witness
On this day of October, 2008, before me, a Notary Public in and for said
County and State, personally appeared of Desselle-
Maggard Corporation, who acknowledged that, with due authorization, he did sign the
foregoing instrument on behalf of DMC and that, the same is his free act and deed indivrdually
as such officer and the free act and deed of DMC'.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
STATE OF §
COUNTY OF §
On this day of October, 2008, Y-efore me, a Notary public in and fir said
County and State, personally appeared of Desselle-
Maggard Corporation, who acknowledged that, with due authorization, he did sign the
foregoing instrument on behalf of DMC and that: the same is his free act and deed individually
as such officer and the free act and deed of DMC:.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
8652288 Page 7
PVI Holdings, Inc.
By:
Its:
Witness
STATE OF §
COUNTY OF §
On this day of October, 2008, before rne, a Notary Public in and for said
County and State, personally appeared of pVI
Holdings, Inc., who acknowledged that, with due authorization, he did sign the foregoing
instrument on behalf of PVI and that the same is his free act and deed individually pis such
officer and the free act and deed of PVI.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affi~:ed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
STATE OF §
COUNTY OF §
On this day of October, 2008, before me, a Notary Public in and for said
County and State, personally appeared of PVI
Holdings, Inc., who acknowledged that, with due authorization, he did sign the foregoing
instrument on behalf of PVI and that the same is his free act and deed individually as such
officer and the free act and deed of PVI.
IN WITNESS WHEREOF, I have hereunto subscribed my Warne and affi~.ed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
p652288 Page 8
EXHIBIT "A"
Exhibit "A"
Legal Description
BEING a 10.00 acre tact or parcel of land, a portion of Block 3 of the PORT ARTHiJR
ECONOMIC DEVELOPMENT CORPORAT:[ON BUSINESS PARK. SUBDIVISION as
recorded in Clerk's File No. 2005044721 of the Official Public Records of Real Property,
County Clerk's Office, Jefferson County, Texas, as situated in and a part of the William
McFaddin Survey, Abstract No. 416 of said County and being more particularly
described by metes and bounds as follows:
For locative puzposes, commence at a point located on the Westerly line of Spur 93 (<ika
West Port Arthur Road) marking the Southeast: comer of said Business Park Subdivision;
THENCE North 27 deg., 30 min., 14 sec., West, along the said Westerly right of way line
of Spur 93 a distance of 813.06 feet to a point located at the intersection of the North line
of South Business Park Drive with the said Westerly right of way line of Spur 93 markiing
the Southeast coma of said Block 3;
THENCE South 37 deg., 29 min., 18 sec., West, along said North ;right of way line a
distance of 11122 feet to an angle point for corner,
THENCE South 86 deg., 11 min., 09 sec., West continuing along said North right of vc~ay
line a distance of 61.62 feet to a 1/2" steel rocl with cap marked Arcenceaux & Gates set
located on the Westerly line of a landscape eatiement per said Business Park plat markiing
the Southeast corner and PLACE OF BEGINl\TNG of the herein described tract of land;
THENCE South 86 deg., 11 min., 09 sec., West, continuing along said. North right of v~ay
line with the South line of said Block 3 and this tract a distance of 76.8$ feet to a 1J2"
steel rod with cap marked Arceneaux & Gates set marking an angle point for corner and
point of Curvature of a curve to the right;
THENCE continuing along said Nozh right of way line and South Fine of Block 3 with
the South line of this tract and said curve to the right having a radius of 485.00 feel;, a
central angle of 03 deg, 48 min, 51 sec., an arc distance of 32.29 feet, a chord distance of
32.2$ feet and a chord bearing of South 88 deg., OS min., 32 sec., West, to a 1/2" steel
rod with cap marked Arceneaux & Gates set marking an angle point for corner and paint
of tangency of said curve;
THENCE West (reference bearing) continuing along said North right of way line Fwd
South line of Block 3 with the South line of this tract a distance of 694.03 feet to a 1/2"
steel rod with cap marked Arceneaux & Gates set marking the Southwest corner of the
herein described tract of land;
TIiENCE North, departing said North right of way line along the West line of this tract a
distance of 591.66 feet to a 1/2" steel rod with cap marked Arceneaux & Gates set
located on the North line of said Block 3 and South line of Block 7 marking the
Northwest corner of the herein described tract of land;
THENCE East along the common line of said Block 3 and Block 7 wiith the North line of
this tract a distance of 601.10 feet to a 1/2" steel rod with cap marked Arceneaux & Ga.Ies
set located on the Westerly line of a 10 feet wide pipeline easement and said landscape
easement marking the Northeast corner of the :herein described tract oi' land;
THENCE South 27 deg., 30 nun., 14 sec., East along the Northeasterly line of this tract
and westerly line of said pipeline and landscape easements a distance of 435.78 feet to a
1/2" steel rod with cap marked Arceneaux & Gates set marking an angle point for corner
of said landscape easement and the herein described tract of land;
THENCE South 00 deg, 11 min., 19 sec, E~~st, along the West Iine of said landscape
easement with the East line of this tract a distance of 198.94 feet to fhe Southeast corner
and PLACE OF BEGINNING and containing in area 435,600 square feet or 10.00 acres
of land, more or Iess.
EXHIBIT rrBrr