HomeMy WebLinkAbout10/14/08 SPECIAL MEETINGSPECIAL MEETING - C)ctaber 14, 2008
I. INVOCATION, PLEDGE & ROLL CALL
Councilmember Henderson gave the invocation followed with the pledge to the flag
The City Council of the City of Port Arthur nnet in Special Session on Tuesday,, October
14, 2008 at 5:31 p.m. in the City Council Chamber, City Hall, with the followiing
members present: Mayor Deloris "Bobbie" Prince; Councilmembers Elizabeth "Liiz"
Segler, Morris Albright, III, Martin Flood, Robert E. "Bob" Williamson, Dawana Kay Wise
and Thomas J. "Tom" Henderson; City Manager Steve Fitzgibbons, Acting Assi;>tant Ciity
Secretary Sherri Bellard, City Attorney Marty: T. Sokolow and Sergeant At Arms Terry
Chance.
Mayor Pro Tem Jack Chatman, Jr. was absent from the Special Meeting.
Councilmember John Beard, Jr. joined the Special Meeting at 5:34 p.m.
II. ITEMS REQUIRING INDIVIDUAL ACTION
(i) P.R. No. 14937 - A Resolution Authorizing The Purchase Of
Lots 9, 10, 11, Block 6 And Lots 1 & 2, Block 7 W.H.
Schmyser Subdivision 3 Of The City Of Port Arthur, Account
No. 303-1601-591.81-00, Project No. CIP 909
Mayor Prince introduced the above-mentioned Proposed Resolution.
The motion was made by Councilmember Wiilliamson and seconded by Councilmember
Flood that Proposed Resolution No. 14937 be adopted.
The City Manager and the City Attorney addressed inquiries related to the property
purchase and potential development.
Proposed Resolution No. 14937 was adopted Ibeco~ming Resolution No. 08-407.
Voting Yes: Mayor Prince; Councilmembers Segler, Albright, Flood, Beard, Williamson,
Wise and Henderson.
Voting No: None.
The caption of Resolution No. 08-407 reads as follows:
RESOLUTION NO. 08-407
A RESOLUTION AUTHORIZING THE PURCHASE
OF LOTS 9, 10, 11, BLOCK 6 AND LOTS 1 & 2,
BLOCK 7 W.H. SCHMY'SER SUBDIVISION 3 OF
THE CITY OF PORT ,ARTHUR, ACCOUNT NO.
303-1601-591.81-00, PROJECT NO. CIP 909
(2) P.R. No. 14940 - A Resolution As It Pertains To The DM(:
Incentive Agreement And The Assignment Thereof
Mayor Prince introduced the above-mentioned Proposed Resolution.
The motion was made by Councilmember Willliamson and seconded by Councilmember
Albright that Proposed Resolution No. 14940 be adopted.
The City Attorney submitted revised documents as shown in Exhibit's "A", "B"and "C".
EDC Executive Director Floyd Batiste appeared before the City Council to address
inquiries related to the proposed acquisition.
Mr. Joey Jobe, no address given, appeared bE~fore the City Council to address the
proposed acquisition. Mr. Jobe discussed providing engineering services and futuire
employment opportunities.
Mr. Joel Eastman, 4135 Windsor Parkway,, Dalllas, Texas appeared before the Ciity
Council to discuss the proposed investment.
Proposed Resolution No. 14940 was adopted becoming Resolution No. 08-408.
Voting Yes: Mayor Prince; Councilmembers Segler, Albright, Flood, Beard, Williamson,
Wise and Henderson.
Voting No: None.
The caption of Resolution No. 08-408 reads ass folllows:
RESOLUTION NO. 08-408
A RESOLUTION AS I7' PERTAINS TO THE DMC
INCENTIVE AGREEMENT AND THE
ASSIGNMENT THEREOF
III. *CLOSED MEETING EXECUTIVE SESSION
(1) Section 551.072 Government Code - To Discuss The Value
Of Land In The City's ET]
(2) Section 551.087 Government Cade - To Discuss Incentives
For Industrial Business Prospects
The City Council recessed their meeting at 5:46 p.m. to meet in Executive Session to
consider the above-mentioned topics, and reconvened their meeting at 8:05 p.m. witlh
the following members present: Mayor Prince; Councilmembers Segler, Albright, Bearcl,
Wise and Henderson; City Manager Fitzgibbons, Acting City Secretary Hanks, City
Attorney Sokolow.
IV. FUTURE AGENDA ITEMS OR REQUESTED REPORTS
Councilmember Beard
(1) Requested that an Employment Disparity Study be conducted.
(2) Requested revisiting the usage of traffic; cameras.
Councilmember Henderson
(1) Requested a report on hurricane damacles to the Department Club.
(2) Requested Civic Center Director Adam Saunders attendance at the next meeting.
(3) Requested that the Federal Emergency Management Association (FEMA) provide
a generator to the City of Port Arthur.
V. AD]OURNMENT OF MEETING
Upon the motion by Councilmember Beard, seconded by Councilmember Williamson
and carried unanimously, the City Council adjourned their meeting at 8:12 p.m.
City Council Minutes -Special Meeting (Page 2
October 14, 2008
An audio-tape of this meeting is on file in the office of the City Secretary and is madE~ a
part of the official minutes of this meeting.
MAYOR DELORIS "BOBBIE" PRINCE
ATTEST:
ACTING CITY SECRETARY TERRI HANKS
END OF SPECIAL MEETING HELD OCTOBER .14, 2008. APPROVED:
City Council Minutes -Special Meeting Page 3
October 14, 2008
I.xHIBIT 'A'
JOEL M. EAS'TMA.N, PLLC
5485 BELT LINE ROAD
SUITE 125'
DALLAS, TEXAS 75205
972-774-0606
October 14, 2008
Honorable Mayor of Port Arthur, Texas
City Council of Port Arthur, Texas
Re: Economic Incenfive Contract and Loan Agreement with Rhorer-Moniotte
Investments, LLC d/b/a Desselle-Maggard Corp. ("DMC"J dated March 8, 2007,
as amended by First Amendment dated April 3, 2008; and as supplemented by
First Supplement dated June 30, 2008 (collectively the "Agreement"J
concerning real property and improvem~°nts thereon located in Jefferson
County, Texas.
I am Texas local counsel for Desselle-Maggard Corporation, a
Delaware corporation {"Purchaser"J. Purchaser is acquiring the assets of R:horer-
Moniotte Investments, L.L.C., a Louisiana limited liability company, d/b/a
Desselle-Maggard Corporation ("Seller"). Purchaser is a subsidiary of PVI, Inc., a
Delaware corporation. The Transaction wiEl close on or about October l5, 2008.
In addition fo acquiring the assets of Seller, including the Port Arthur
facility, Purchaser is retaining Seller's senlior executive team and current
employees. Furthermore, Purchaser is paying in full the current first lien
construction loan of X3,400,000 from ~Vachovia Bank. This loan is currently
secured by a first lien Deed of Trust for the benefit of Wachovia Bank on the
facility. The Bank has -executed a Release of Lien of Deed of Trust and the
original of such Release is in Escrow with Liberty Title in New York. As part of the
closing, the Release wilt be recorded with the Jefferson County Clerk. Upon that
event, the subordinate Deed of Trust to Guy Goodson, Trustee, for the benefit of
the Port Arthur Economic Developrrrent Corporation which secures the
obligations of Seller under the Agreerr~ent and the Conditional Commercial
Promissory Note, will be o FIRST LIEN on 'the f+acility. Purchaser is assumincl all of
the obligations of Seller under the Agreement, and such assumption is being
guaranteed by Purchaser's parent, PVI Holdings, Inc. Seller is being released
from all liability under the Agreement. TI-ie transaction, when consummated, will
leave the PAEDC with stronger entii~ies assuming and guaranteeing the
obligations of Seller under the AgreemE~nt, and enhanced collateral securing
such obligations.
The documents attached are:
1. Release of the Wachovia Lien (in escrow pending consummation of i~he
Transaction).
2. Assignment and Assumption Agreement .
Ex. A - legal description of the prod>erty covering the facility
Ex. B -Consent and Estoppel AgreE;mer~t
Ex. C -letter from Purchaser and P\/I assuming the obligations under ~ihe
Agreement.
3. Conditional Commercial Promissor)~ Note (to be executed by Purchaser)
4. Guaranty Agreement
5. Title Affidavit
These are the same documents previously delivered to you with the following
changes:
1. The Assignment and Assumption Ac~reernent now references the Deed of
Trust for the benefit of the PAEDC as a Security Document. ,
2. The prior First Amendment and Supplerrrental Agreement have been
referenced in the documents with regard to the Agreement, and the
statement that there are no amendments to the Agreement now excepts
fhe First Amendment and the Supplemental Agreement.
3. The next Status Report Date has been rE:vised to December 31, 2008.
4. The Closing Date has been changE~d to October 15, 2008.
Respectfully s mitted,
Jo I M. Eastman
Cc: Guy Goodson, Esquire
EXHIBIT 'B'
Release of Lien
{Deed of Trusli)
STATE OF TEXAS X
X
COUNTY OF JEFFERSON X
WHEREAS, on the 27th day of February, 2008, Rhorer-Moniotte Investments,
L.L.C., d/b/a Deselle-Maggard Corporation, executed a deed of trust to TRSTE, Inc., a
Virginia corporation, Trustee, conveying certaiin real property in Jefferson County,
Texas, and all improvements situated thereon, more particularly described on Exhibit
"A" attached hereto, to secure the payment of a prc>missory note for the sum of $
3,400,000, payable to the order of Wachovia E3ank, National Association, a national
banking association, and more fully described in said deed of trust, which is recorded in
Clerk's File Number 2008010830, Deed of Tn_ist Records of said County:
And, WHEREAS, said indebtedness has been paid in full;
Now, THEREFORE, Wachovia Bank, P~ationaf Association, a national banking
association, the legal owner and holder of saki note, in consideration of the full and final
payment thereof, the receipt of which is hereby acknowledged, do by these presents
forever release and discharge the property above described from the lien of said deed
of trust and from any and all other liens securing said note.
EXECUTED this 3~0~ day of October, 2008
Wachiovia Bank, National Association, a
national ba{nking association n
O~ d ~i'
~..-
By: /, J~
Its: ~ y t
STATE OF TEXAS
COUNTY OF
nde~igned authority, on thils day personally appeared
~~mtf3-J- r,ICD) O~.~db~J , Iknown to me to be the person whose
name is subscribed to the forgoing instrument, and acknowledged to me that (s)he
executed the same for the purpose and consideration therein expressed.
iven under my hand nd seal of officE; this ~ day of
otary Publ~c~~jCounty, Texas
~~~~
~'~~~~
~lo~S'~IOtylGgoN
s~13NHS ~laNtldB ~ .
Exhibit. "A"
Legal Description
BEING a 10.00 acre tract or parcel of land, a portion of Block 3 of the PORT ARTHUR
ECONOMIC DEVELOPMENT CORPORATION :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 Mc:Eaddin
Survey, Abstract No. 416 of said County and being more particularly described by metes and
bounds as follows:
For locative purposes, commence at a point located on the Westerly line of Spur 93 (aka 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 locat~:d at ~rhe intersection of the North line of South
Business Park Drive with the said Westerly right. of way Line of Spur 93 marking the Soiutheast
coma of said Block 3;
THENCE South 37 deg., 29 min., 18 sec., West, along said North right of way line a distance of
111.22 feet to an angle point for corner,
THENCE South 86 deg., 11 min., 09 sec., West continuing along said North right of way line a
distance of 61.62 feet to a 1/2" steel rod with cap marked Arcenceaux & Gates set located on the
Westerly line of a landscape easement per said Business Park plat marking the Southeast corner
and PLACE OF BEGINNING of the herein described tract of land;
THENCE South 86 deg., 11 min., 09 sec., West., continuing along said North right of way line
with the South line of said Block 3 and this tract a distance of 76.88 feet to a 1/2" steel rc,d with
cap marked Arceneaux & Gates set marking an angle point for corner and point of Curvahu-e of a
curve to the right;
THENCE continuing along said North 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 feet, a central angle
of 03 deg, 48 min, 51 sec., an arc distance of 32.29 feet, a chord distance of 32.28 feet and a
chord bearing of South 88 deg., 0~ min., 32 sec., West, to a ii1" steel rod with cap marked
Arceneaux & Gates set marking an angle point for corner and point of tangency of said cwve;
THENCE West (reference bearing) continuing along said North right of way Line and 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;
THENCE 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 with the North line of this
tract a distance of 601.10 feet to a 1/2" steel rod with cap marked Arceneaux & Gales set located
on the Westerly Iine of a 10 feet wide pipeline easement and said landscape easement marking
the Northeast corner of the herein described tract of land.;
THENCE South 27 deg., 30 min., 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, East, along tike West line of said landscape easement
with the East line of this tract a distance of 198.94 feet. to the Southeast comer and PLACE OF
BEGINNING and containing in area 435,600 square feet or 10.00 acres of land, more or le:cs.
EXHIBIT 'C'
ASSIGNMENT AND ASSUMPTION AGREEMENT
STATE OF TEXAS §
COUNTY OF JEFFERSON §
Rhorer-Moniotte Investments, L.L.(:. d/b/a Desselle-Maggard 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 "Nate") dated
March 8, 2007, in the original principal sum of EIGHT HUNDRED TEN THOUSAND AND
00/100 DOLLARS ($810,000.00), bearing interest .at the rate therein specified and payable as
therein provided to the order of City of Port Arthur 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 7016294 in the Real Property Records of Jefferson County,
Texas, reference being made to the Deed of Trust and the record thereof for all purposes,
creating liens 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 F;xhibit "A", attached hereto and made a part
hereof by this reference (the "Property");
WHEREAS, Borrower is selling certain assets to Desselle-Maggard Corporation
("DMC"), a wholly owned subsidiary of PVI Holdings, Inc. ("PVI");
WHEREAS, Borrower has requested in accordance with the Consent anti Estoppel
Letter dated October 15, 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 betwc;en
Borrower and Lender dated March 8, 2007, as amended by First Amendment dated April 3,
2008, and as supplemented by First Supplc:menit dated June 30, 2008 (collecaively the
"Incentive 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 in
Exhibit "A";
WHEREAS, PVI has agreed by letter agreement 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 Incentive 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 i.n 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 be a first
lien on the Property.
NOW, THEREFORE, in consideration of the assignment and assumption herein stated
and in further consideration of the Recitals set forth above which are set forth in this
Assignment and Assumption Agreement as if sully set forth below, Borrower, Lender, DMC
and PVI agree as follows:
The Lender consents to the assignment and assumption of the obligations of Lender
under the Incentive Agreement in consideration of the assignment and assumption of staid
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 Borrower from its obligations under the Incentive
Agreement as specified in Exhibit "B".
In the event of a default under the Incentive Agreement, DMC has executed. a
Conditional Commercial Promissory Note (they "Indebtedness" and/or "Note") subject to 'the
terms and conditions of the Incentive Agreement, and the existing Conditional Commercial
Promissory Note of Borrower shall be cancelled.
DMC hereby agrees to be responsible for its obligations under the new Note which i~t is
executing (which Note will replace the existing Conditional Promissory Note of Borrower) wind
to assume all of the obligations of Borrower under the Incentive Agreement (thee Incentive
Agreement, the Note and the Deed of Trust, are collectively referred to herein as they "Security
Documents").
Notwithstanding anything contained herein or in any other separate security agreement
or other document executed heretofore, herewiith or hereafter in connection with or related. to
this credit obligation (as defined or described in 12 C.F.R. 227, Regulation AA, promulgated
by the Federal Reserve Board), the security for this credit obligation shall not extend to any
non-possessory security interest in household l;oods (as defined in said Regulation AA) othher
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 prohibil;ed
by Regulation AA.
JJ652288 Page 2
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, vrhether 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 thc: principal amount of interest thereon, whiich
remains unpaid from time to time, exceed the maximum amount permissible under applicable
law, it particularly being the intention of the I>arties 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 legal 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 t:he
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 th.e 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 until the Indebtedness has been sully paid and agrees that its assumption in no
manner affect or impair the Indebtedness or the lien or liens securing the same and that such
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 rearranged.
IT IS THE INTENTION OF THE PARTIES THAT THIS ASSUMPTION OF THE
INDEBTEDNESS BY DMC SHOULD IN IT'S ENTIRETY CONFORM 'TO THE
INDEBTEDNESS. THE PURPOSE OF THIS INSTRUMENT IS SIMPLY 7'O
ACKNOWLEDGE ASSIGNMENT AND .ASStMPTION OF PAYMENT OF THE
INDEBTEDNESS AND TO CARRY FORWARD ALL LIENS SECURING THIS SAME,
WHICH ARE ACKNOWLEDGED BY DMC TO BE VALID AND SUBSISTIr1G, AND
DMC FURTHER AGREES THAT ALL TERMS AND PROVISIONS OF THE
INDEBTEDNESS AND OF THE INSTRUMENT' OR INSTRUMENTS CREA`]CING OR
FIXING THE LIEN OR LIENS SECURING THE; SAME SHALL BE AND RE]VIAIN :[N
FULL FORCE AND EFFECT AS THEREIN WRITTEN, EXCEPT AS OTHERWI;iE
EXPRESSLY PROVIDED HEREIN.
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT REPRESEI\fTS THE
FINAL AGREEMENT BETWEEN THE PARTIES, AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEI\l ORAL
AGREEMENTS BETWEEN THE PARTIES.
#652288 page :3
EXECUTED effective as of October , 2008.
BORROWER:
Rhorer-Moniotte Investments, L.L.C.,
d/b/a Desselle-Maggard Corporation,
a Louisiana limited liability company
By:
Joseph G. Jobe, Manager
Witness
STATE OF §
COUNTY OF §
On this day of October, 2008, before me, a Notary Public in anti 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 frf;e act a.nd
deed individually as such officer and the free act and deed of
IN WITNESS WHEREOF, I have hf;reunto subscribed my name and affixed any
official seal on the day and year aforesaid.
Notary Public, State of Texas
#652288 Page 4
STATE OF §
COUNTY OF §
On this day of October, 2008, before me, a Notary Public in andl for said
County and State, personally appeared o f
,who acknowledged that, with due authorization, he dill sign the
foregoing instrument on behalf of and that the same is his free act and
deed individually as such officer and the free acct and deed of
IN WITNESS WHEREOF, I have he:reunt:o subscribed my name and ai'fixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
J1652288 Page 'i
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 did siign
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 dc;ed oi'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
STATE OF TEXAS §
COUNTY OF JEFFERSON §
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 dc;ed
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 offic;ial
seal on the day and year aforesaid.
Notary Public, State of Texas
#652288 Page 6
Desselle-Maggard Corporation
13y
Its:
Witness
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 Desselle-
Maggard Corporation, a Delaware corporation, who acknowledged that, with due
authorization, he did sign the foregoing instrument on behalf of DMC and that the same is lhis
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
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 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 aiFfixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
Jt652288 page '7
PVI Holdings, Inc.
STATE OF §
COUNTY OF §
By:
Its:
Witness
On this day of October, 2008, before me, a Notary Public in andl for said
County and State, personally appeared _ of P'VI
Holdings, Inc., who acknowledged that, with due authorization, he did sign the foregoing
instrument on behalf of PVI and that the samf; 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 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 P'VI
Holdings, Inc., who acknowledged that, with due authorization, he did sign the foregoing
instrument on behalf of PVI and that the same is riffs free act and deed individually as such
officer and the free act and deed of PVI.
IN WITNESS WHEREOF, I have he~reuni:o subscribed my name and aiFfixed my
official seal on the day and year aforesaid.
Notary Public, State of Texas
#652288 Page 6
EXHIBIT "A
Exhibit "A"'
Legal Description
BEING a 10.00 acre tact or parcel of land, a portion of Block 3 of the PORT ARTF[UR
ECONOMIC DEVELOPMENT CORPORATION BUSINESS PARK SUBDIVISION as
recorded in Clerk's File No. 2005044721 of i:he Official Public Records of Real Property,
County Clerk's Office, 7efferson 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 purposes, commence at a point located on the Westerly line of Spur 93 (aka
West Port Arthur Road) marking the Southeast corner 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 'V~lesterly right of way line of Spur 93 marking
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 111.22 feet to an angle point for corner,
THENCE South 86 deg., 11 min., 09 sec., W"est continuing along said North right of'way
line a distance of 61.62 feet to a 1/2" steel rod with cap marked Arcenceaux & Gates set
located on the Westerly fine of a landscape easement per said Business Park plat marking
the Southeast corner and PLACE OF BEGINNINCi of the herein described tract of lar.~d;
THENCE South 86 deg., 11 min., 09 sec., West, continuing along said North right of way
line with the South line of said Block 3 and. this tract a distance of 76.88 feet to a 1/2"
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 North 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 feet, a
central angle of 03 deg, 48 min, 51 sec., an arc distance of 32.29 feet, a chord distance of
32.28 feet and a chord bearing of South 88 deg., OS nun., 32 sec., West, to a 1/2" steel
rod with cap marked Arceneaux & Gates set marking an angle point for corner and point
of tangency of said curve;
THENCE West (reference bearing) continuing along said North right of way line and
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 ol~ the
herein described tract of land;
THENCE 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 :i and. South line of Block 7 marking the
Northwest coiner of the herein described tract of land;
THENCE East along the common line of said Block 3 and Block 7 with the North line of
this tract a distance of 601.10 feet to a 1/2" steel rad with cap marked Arceneaux & Gales
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 of land;
THENCE South 27 deg., 30 min., 14 sec., E-ast along the Northeasterly line of this tract
and westerly line of said pipeline and landscape e~~sements 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, East, along the West line of said landscape
easement with the East line of this tract a disstance of 198.94 feet to the Southeast comer
and PLACE OF BEGINNING and containing in axea 435,600 square feet or 10.00 acres
of land, more or less.
EXHIBIT "B"
October 15, 2008
Mr. Floyd Batiste
Chief Executive Officer
Port Arthur Economic Development Corporation
4173 39th Street
Port Arthur, Texas 77642
Re: City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC") -
Economic Incentive Contract and Loan Agreement with Rhorer-Moniotte Investments,
LLC d/b/a Desselle-Maggard Corp. ("DMC") dated March 8, 2007, as amended by
First Amendment dated April 3, 2008, amd as supplemented by First Supplement dated
June 30, 2008 (collectively the "Agreement") concerning real property and
improvements thereon located in Jefferson County, Texas, more particularly described
on Exhibit "A" attached hereto ("Property").
Dear Mr. Batiste:
As you know, the assets of DMC are being acquired by Desselle-Maggard Corporation,
a Delaware corporation ("Purchaser") from Rhc-rer-Moniotte Investments, L.L.C., a Louisiana
limited liability company, d/b/a Desselle-Maggard Corporation ("Seller"). Purchaser is a
subsidiary of PVI, Inc., a Delaware corporation. Consent is requested of the PAEDC for the
proposed asset sale ("Transaction"). The Transaction will close on or about October 15, 2008
(the actual date of Closing the "Closing Date").
In accordance with paragraph 26 of the Agreement, PAEDC hereby aclcnowledg;es
receipt of written notice of the Transaction, and hereby consents to the assignmf;nt of the
Agreement to Purchaser and the assumption of by Purchaser of Seller's obligations under the
Agreement. PAEDC also acknowledges and agrees that as of the date hereof:
1. There have been no additional amendments or modifications, written or
otherwise, to the Agreement, except as set forth above.
2. Seller is in full compliance with all of the terms and conditio~as of the
Agreement, including but not limited to all financial and performance
obligations, set forth therein.
3. The next Status Report (as that germ is defined in the Agreement) duf; pursuant
to the Agreement is due on or before December 31, 2008, for the period from
June 1, 2008 to November 30, 20108.
4. Seller is hereby released from a.nd relieved of any and all further obligations
under the Agreement, the Second Lien Deed of Trust (hereinafter defined) and
the payment and performance of any notes and obligation arising under, or
referenced in the Second Lien Deed of Trust.
239339.1; 102681.0001 P?.GE
CONSENT AND ESTOPPEL
5. That certain Deed dated May 6, 2008, executed by the PAEDC to Lockwood
Holdings, Inc., recorded under Clerk:'s File No. 2008017115, Official Public
Records of Jefferson County, Texas, does not affect the Property in any manner.
6. The Agreement refers in both the Executive Summary and Section 5(a)(4) to a
proposed $2,000,000.00 loan from the Grow Port Arthur Fund to Seller. Tliat
proposed loan was to be secured by a Deed of Trust ("First Lien Deed of Trust")
that is referred to in that certain Deed of Trust dated-April 18, 2007, executed by
Seller to Guy Goodson, Trustee, for the benefit of the PAEDC, and. recorded
under Clerk's File No. 20070162')4, Official Public Records of Jefferson County,
Texas ("Second Lien Deed of Trust") as a prior lien, as follows: "Deea! of Trust ,
dated , 2007, and recorded at _ ,for the benefit of the Grow Pert
Arthur Fund, which Deed of Trust shall be senior in priority to the with~'n Deed of
Trust up to the amount of $2, 000, 000.00 ". The proposed $2,000,000.00 loan
from the Grow Port Arthur Fundl and~'or PAEDC to Seller was never made, the
First Lien Deed of Trust was never executed, and the Second Lien Deed of Tnxst
is the only lien that the PAEDC has on the Property.
7. Those certain documents (i) Covenant and Restrictions for the Port Arthur
Business Park dated November 30, 2005 and recorded under Clerk's File No.
2006003269, Official Public Records of Jefferson County, Texas ("Restrictions")
and (ii) Amendment No. 1 To Covenants and Restrictions for the Port Arthur
Business Park dated April 30, 2007 and recorded under Clerk's File No.
2007017117, Official Public Records, of Jefferson County, Texas (`'Amended
Restrictions") affect the Property. With regard to those documents:
a. There exists no default on the part of Seller under either the Restrictions or the
Amended Restrictions.
b. The construction timetable set forth in the Conditions of Sale in the R~estrictio~ns
has been fully achieved by Seller, and the PAEDC has no option to purchase the
Property.
c. The PAEDC hereby consents to the transfer of the Property from Seller to
Purchaser as required by the Conditions of Sale in the Restrictions.
d. There is no Letter of Credit held by the; PAEDC under the requirements of Section
(k) of the Amended Restrictions.
As of the Closing Date, Purchaser hereby assumes all obligations of DMC under the Agreement
and the Second Lien Deed of Trust, including but not limited to all financial and performar.~ce
obligations set forth therein.
This Letter Agreement maybe executed in multiple counterparts.
***Signature Page Follows***
239339.1; 102681.0001 PAAGE
CONSENT AND ESTOPPEL
:Purchaser
Desselle-Maggard Corporation,
a Delaware corporation
',By:
[ts:
PAEDC
Acknowledged and Agreed to this day of October, 2008.
City of Port Arthur Section 4A Economic Development Corporation
By:
Its:
239339.1; 102681.0001 PAGE
CONSENT AND ESTOPPEL
EXHIBIT
C~
Mr. Floyd Batiste October _, 2008
Chief Executive Officer
Port Arthur Economic Development Corporation
4173 39th Street
Port Arthur, Texas 77642
Re: Incentive Contract and Loan Agreement {PAEDC)
Reference is made to that certain Economic Incentive Contract and Loan
Agreement between the City of Port Arthur SE~Ctlon 4A Economic Development
Corporation and Rhorer-Moniette Investment;;, L.L.C. d/b/a Desselle-Maggard
Corporation ("RMI"), dated March 8, 2007 {the "Incentive Agreement"}.
Desselle-Maggard Corporation, a Delaware corporation (the "Purchaser"), will
be acquiring assets from RMI which are usedl or useful by the RMI in connection with
the operation of its business, including the facility located in Port Arthur ("Facility")~.
As part of the acquisition transaction:
1. RMI is conveying to Purchaser by General Warranty Deed the real
property and improvements thereon comprising the Facility and more
particularly described on Exhibit "A" attached hereto and made a part:
hereof for all purposes ("Real Property"). Such conveyance is made by
RMI and accepted by Purchaser subject to that certain Deed of Trust to
Guy Goodson, Trustee, for the: benefit of the PAEDC, dated April 18,
2007 and recorded under Clerk's file # 2007016294 of the Official
Public Records of Jefferson County, Texas. Such Deed of Trust is a Mien
on the Real Property.
2. RMI is conveying to Purchaser by a global Bill of Sale all personal
property used in connection with the ownership and operation of the
Facility.
3. RMI is assigning to Purchaser by a global Assignment Agreement all of
RMI's rights and obligations Luxder alI contracts in effect with regard to
such Facility as of the date of closing, including but not limited to the
Incentive Agreement.
Upon consummation of the acquisition transaction, Purchaser hereby agrees to
assume, without any further action being required of it, all of RMI's covenants and
obligations under the Incentive Agreement, including, without limitation, alI of the
Promised Performance of RMI set forth in Section 5 of the Incentive Agreement in
accordance with the Schedule of Performance goals set forth in Section 7 of the
Incentive Agreement.
:DESSELLE-HAGGARD CORPORATION
.A Delaware corporation
]By:
Name: Peter Osterman
Title: President
Purchaser is a wholly owned subsidiary of PVI Holdings, Inc., a Delaware
corporation ("PVI"). PVI hereby agrees to guaranty the performance by Purchaser of
all of the obligations assumed by Purchaser above under the Incentive Agreement.
:PVI HOLDINGS, INC.
,A Delaware corporation
:By:
Name: Cees Drogendijk
Title: President
CONDITIONAL COMMER('IAL PROMISSORY NOTE
Port Arthur, Texas
This Conditional Commercial Promissory Note becomes effective on the date when Desselle-
Maggard Corporation ("DMC"), a Delaware corporation, (hereinafter called "Maker") breaches
that certain Economic Incentive Contract and Loan Agreement between the City of Port Arthur
Section 4A Economic Development Corporation (hereinafter called "Lender") and. Rhore:r-
Moniotte Investments, L.L.C. d/b/a Desselle-M[aggard Corporation, dated February 14, 2007,
which Agreement has been assigned by Rhorer-N[oniotte Investments, L.L.C. to DMC pursuant
to an Assignment and Assumption Agreement dated on or about October 15, 2008.
Effective Date of Note: the day of
20 . ("date of breach")
Principal Amount: $ ,which is $810,000 minus the incentive credits earned by
Maker according to that certain Economic Incentive Contract and Loan Agreement (described
hereinbefore).
Term of the Loan: Three years from the Effective Date of Note.
Payment Schedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office at
P.O. Box 1089, Port Arthur, Texas, 77640-1089, or• such other place or places as the holder
hereof shall from time to time designate in written notice to Maker, the principal amount, in legal
and lawful money of the United States of America, together with interest thereon fronn the date
hereof until maturity at the rate of ten percent (10%) per annum as detailed herein.
All past due principal and interest shall bear interest from date of maturity until paid at t:he
rate of fifteen percent (15 %) per annum, not to e;cceed the maximum rate allowed by law as m,ay
hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Thirty-six (36) equal monthly installlments of
principal and interest on the fifteenth of each month, starting on the month immediately following
the Effective Date of Note.
Any notices required or permitted to be liven by the holder hereof to Maker pursuant to
the provisions of this note shall be in writing and shall be either personally delivered or
transmitted by first class United States mail, addressed to Maker at the address designated below
for receipt of notice (or at such other address as Maker may, from time to time, designate in
writing to the holder hereof for receipt of notices hereunder). Any such notice ]personably
delivered shall be effective as of the date of delivery, and any notice transmitted by mail, in
accordance with the foregoing provisions, shall be deemed to have been given to and received by
Maker as of the date on which such notice was deposited with the United States Postal Service,
properly addressed and with postage prepaid.
This note is also secured by and entitled to the benefits of all other security agreements,
pledges, collateral assignments, deeds of trust, guaranties, mortgages, assignments, and lien
instruments, if any, of any kind executed by Maker or by any other party as security for any loans
owing by Maker to the Lender. Such lien mstrurnents shall include those executed simultaneously
herewith, those heretofore executed, and those hereafter executed.
If any installment or payment of principal or interest of this note is not paid when due or
any drawer, acceptor, endorser, guarantor, surety, accommodation party or other person now or
hereafter primarily or secondarily liable upon or for payment of all or any part of this :note (each
hereinafter called an "other liable party") shall dic;, or become insolvent (however such insolvency
may be evidenced); or if any proceeding, procedure or remedy supplementary to or in
enforcement of judgment shall be resorted to or' commenced against Maker or any other liable
party, or with respect to any property of any oi' them; or if any governmental authority or any
court at the instance thereof shall take possession of any substantial part of the property of or
assume control over the affairs or operations of, or a receiver shall be appointed for or take
possession of the property of, or a writ or order of attachment or garnishment shall be issued or
made against any of the property of Maker or any other liable party; or if any indebtedness i-or
which Maker or any other liable party is primarily or secondarily liable shall not be paid when
due or shall become due and payable by acceleration of maturity thereof, or if any event or
condition shall occur which shall permit the holder of any such indebtedness to declare it due and
payable upon the lapse of time, giving of notice or otherwise; or if Maker or any other liable
party (if other than a natural person) shall be dissolved, wound up, liquidated or otherwiise
terminated, or a party to any merger or consolidation without the written consent of Lender; or if
Maker or any other liable party shall sell substantially all or an integral portion of its assn°ts
without the written consent of Lender; or if Maker or any other liable party fails to furnish
financial information requested by Lender; or if Maker or any other liable party furnishes or has
furnished any financial or other information or statements which are misleading in any respect; or
if a default occurs under any instrument now or hereafter executed in connection with or as
security for this note; or any event occurs or condition exists which causes Lender to in good faith
deem itself insecure or in good faith believe the prospect of payment or performance by Maker or
any other liable party under this note, under any instrument or agreement executed in connection
with or as security for this note, or under any other indebtedness of Maker or any other liable
party to Lender is impaired; thereupon, at the option of Lender, the principal balance and accrued
interest of this note and any and all other indebtedness of Maker to Lender shall become and be
due and payable forthwith without demand, notice of default, notice of acceleration, notice of
intent to accelerate the maturity hereof, notice of nonpayment, presentment, protest or notice of
dishonor, all of which are hereby expressly waived by Maker and each other liable parh~. Lender
may waive any default without waiving any prior or subsequent default.
If this note is not paid at maturity whether by acceleration or otherwise, and is placed in
the hands of any attorney for collection, or suit is filed hereon, or proceedings are had in probate,
bankruptcy, receivership, reorganization, arrangement or other legal proceedings for collection
hereof, Maker and each other liable party agree to pay Lender its collection costs, including court
costs and a reasonable amount for attorney's fees.
It is the intention of Maker and Lender to conform strictly to applicable usury laves.
Accordingly, if the transaction contemplated hereby would be usurious under applicable law,
then, in that event, notwithstanding anything to the contrary herein or in any agreement entered
into in connection with or as security for this no1:e, it is agreed as follows: (i) the aggre-gate of all
consideration which constitutes interest under applicable law that is taken, reserved, contracted
for, charged or received under this note or under any of the other aforesaid agreements or
otherwise in connection with this note shall under no circumstances exceed the maxrmL~m amount
of interest allowed by applicable law, and any e:KCess shall be credited on this note by the holder
hereof (or, if this note shall have been paid in full, refunded to Maker); (ii) in the event thhat
maturity of this note is accelerated by reason of an election by the holder hereof resulting from
any default hereunder or otherwise, or m the event of any required or permitted prepayment, tL~en
such consideration that constitutes interest may never include more than the maximum amount
allowed by applicable law, and excess interest, ii` any, provided for in this note or otherwise shall
be canceled automatically as of the date of such acceleration or prepayment and, if ~~heretofore
prepaid, shall be credited on this note (or if thus note shall have been paid in full, refunded to
Maker); and (iii) all calculations of the rate of interest taken, reserved, contracted for, charged or
received under this note or under any of the other aforesaid agreements or otherwise in connectiion
#652317 Page 2
with this note, that are made for the purpose of determining whether such rate exceeds t:he
maximum lawful rate shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating, and spreading such interest over the entire term of the loan evidenced by
this note(mcluding all. renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, ;postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following; any such
partial prepayment until this note is fully paid.
The Maker shall be directly and primarily liable for the payment of all sums called iFor
hereunder; and, except for notices specifically required to be given by the holder hereof.' to Mal':er
pursuant to the earlier provisions of this note, Maker and each other liable party hereby expressly
waive demand, presentment for payment, notice of nonpayment, protest, notice of protest, notice
of intention to accelerate maturity, notice of acceleration of maturity, and all other notice, filing of
suit and diligence in collecting this note or enforcing or handling any of the security therefore,
and do hereby agree to any substitution, exchange or release, in whole or in part, of any security
here-for or the release of any other liable party, and do hereby consent to any and all rc;newals or
extensions from time to time, of this note, or any part hereof, either before or after maturity, all
without any notice thereof to any of them and without affecting or releasing the liability of any of
them. Each holder hereof, in order to enforce payment of this note by any other liable party,
shall be required to first institute suit or exhaust its remedies against Maker and to Enforce its
rights against any security therefore prior to enforcing payment of this Note by any other liable
party.
SIGNED AND AGREED TO on the __ clay of , 200_
By:
Its:
Desselle-Maggard Corporation,
a Delaware corporation
X652317 Page 3
ACKNOWLEGEMENT
THE STATE OF TEXAS
COUNTY OF JEFFERSON
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as the act. and deed
of Desselle-Maggard Corporation ("DMC"), a Deflaware corporation, for the pur~~oses and
consideration therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
200
Notary Public, State of Texas
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
Desselle-Maggard Corporation
19151 Highland Road
Baton Rouge, Louisiana 70809
p652317 Page 4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of '.1008 (tlhe
"Guaranty"), is made between the City of Port Arthur Section 4A Economic Development Corporation
(the "PAEDC"), a corporation validly existing under its Charter and the constitution and laws of the State
of Texas, and PVI Holdings, Inc. (the "Guarantor"}, a business corporation duly organized and validly
existing under the laws of Delaware. Capitalized terms used in this Guaranty and not defined otr~erwise a.re
used herein as defined in the Economic Incentive Contract and Loan Agreement, dated February 14, 201J7
(the "Incentive Agreement"), between the PAEDC, as grantor, and Rhorer-Moniotte Investments, L.L.C.
d/b/a Desselle-Maggard Corporation, a Louisiana limited liability company (the "RMI"). Those
definitions are incorporated in this Guaranty by reference.
RECITALS:
A. Upon the terms and conditions set forth in the Incentive Agreement, the PAEDC has
conveyed certain real property to RMI and made certain financial grants to RMI to construct a buihling and
to undertake business operations in the City of Port Arthur Section 4A Economic Development Corporation
Business Park (the "Project"), and RMI agreed to provide certain employment and economic opportunities
to the residents of Port Arthur, Texas.
B. On or about the _ day of October, 2008, operating assets of RMI including those
constituting the Project were sold to Desselle-Maggard Corporation; a Delaware corporation ("DMC").
C. DMC has requested, and the PAEDC has agreed to allow an assignment by RMI and t:he
assumption by DMC of the Incentive Agreement by DMC: with concurrent obligation of DM:C to meet
all the covenants, conditions and obligations in the Incentive Agreement due to PAEDC, as grantor.
D. In order to enhance the security of the PAEDC that the benefits under the Incentive
Agreement will inure to the benefit of the residents of Port Arthur, Texas, the Guarantor is willing, in this
Guaranty, to guaranty the obligations of DMC as the grantee under this Agreement. DMC is hereinafi:er
referred to in this Guaranty as the Grantee.
E. PAEDC affirms that RMI has completed all of its duties and obligations under the Incentive
Agreement prior to the date of this Guaranty.
F. The PAEDC and the Guarantor each have full right and lawful authority to entf;r into this
Guaranty and to perform and observe the provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the premises and representations and agreements
hereinafter contained and subject to the terms hereof., and for other good and valuable consideration, the
receipt of which is acknowledged hereby, the Guarantor agrees with the PAEDC as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
The Guarantor represents and warrants as follows:
(a) The Guarantor has full corporate power under applicable law and its articles of incorporation
and bylaws, each as amended to date, to enter into, observe and perform all covenants,
agreements and obligations on its part hereunder.
(b) The Guarantor has authorized the signing and delivery of this Guaranty by all nec;essary and
proper corporate action.
(c) The signing, delivery, observance and performance by the Guarantor of this Guaranty and
the Guarantor's covenants, agreements and obligations hereunder do not, and vrill not, (i)
violate any law now existing, (ii) contravene or constitute a default under any agreement,
indenture, trust agreement or understanding to which the Guarantor is a party or by which it
or its property may be bound, or (iii) contravene any provision of the Guarantor's articles of
incorporation or bylaws, each as amended to date.
(d) This Guaranty is, in the estimation of the Guarantor, desirable to promote the best interests
and further the mission of the Guarantor.
ARTICLE II.
COVENANTS AN1D GUARANTEES
Section 2.1. The Guarantor hereby absolutely and unconditionally guarantees to the PAEDC at
any time:
(a) the full and prompt performance of all covenants, agreements and obligations of the Grantee
under the Incentive Agreement, and
(b) the payment of all principal, interest and other sums due, whether by acceleration or
otherwise, together with all late charges, disbursements, expenses, and deficiencies pursu<rnt
to that certain Conditional Commercial Promissory Note made by the Grantee to I:he
PAEDC as of even date herewith (collectively the "Guaranteed Debt") together with the
performance of Grantee's obligations under the Incentive Agreement and the documents
listed as Exhibits "A" through "F" to ithe Incentive Agreement as follows:
Exhibit "A" Commercial Promissory Note for Conditional Grant
Exhibit "B" Deed of Trust
Exhibit "C" Special Warranty Deed
Exhibit "D" Business Park Covenants and Restrictions
Exhibit "E" Certification Regarding Lobbying
Exhibit "F" Compliance Statementt
(c) the full and prompt payment of all reasonable and necessary out-of-pocket expenses a.nd
charges, including without limitation, to the extent permitted by law, reasonable' attorneys'
fees and expenses, paid or incurred by the PAEDC acting as Grantor under the Incentive
Agreement and in realizing any of the payments guaranteed hereby or in enforcing this
Guaranty.
The Guarantor will pay all payments in lawful money of the United States of America. Each default in
payment of any amount payable hereunder shall give rise to a separate cause of action hereunder, amd
separate suits may be brought hereunder as each causes of action arises.
Section 2.2. The Guarantor's covenants, agreements and obligations under this Guaranty .are
absolute and unconditional, are a present, and shall bE; a continuing, guaranty of performance a:nd payment
and not collectibility, and shall remain in full force and effect until all covenants, agreements and
obligations of the Grantee under the Incentive Agreement have been performed or met, and all other
amounts payable hereunder shall have been paid or provision shall have been made therefor to the
satisfaction of the PAEDC.
#652453 Page 2
The obligations of the Guarantor described in the preceding paragraph shall not be amended,
modified or impaired upon the happening of any event, including without limitation, any of the following,
regardless of whether there is notice to or consent of the Guarantor with respect thereto:
(a) the failure to give notice to the Guarantor of the occurrence of a default under this Guararrty
or a default under the Incentive Agreement, except as provided specifically in this Guaranty;
(b) the extension of the time for observance or performance of any covenant, agreement or
obligation under this Guaranty or the Incentive Agreement, or the extension or the renewal
of any extension;
(c) the modification or amendment of any covenant, agreement or obligation under the Incentive
Agreement other than in connection withh amounts guaranteed hereby;
(d) the taking or the omission of any action under this Guaranty or the Incentive Agreement;
(e) any failure, omission or delay on the part of the PAEDC to enforce, assert or exercise any
right, power or remedy conferred on the PAEDC under this Guaranty or thf; Incentive
Agreement, or any act or omission on the part of the PAEDC at any time;
(f) the dissolution or liquidation of the Guarantor or any failure by the Guarantor to vacate
promptly any execution, garnishment ear attachment of such consequence that it will impair
the Guarantor's ability to observe and perform its covenants, agreements and obligatie~ns
under any agreement, contract or other instrument or document to which it is a party or by
which it or its property is or may be bound; provided that the term "dissolution or
liquidation," as used in this subsection, shall not be construed to include the cessation of the
corporate existence of the Guarantor resulting either from a merger or consolidation of the
Guarantor into or with another Person, or from a dissolution or liquidation of the Guarantor
following a transfer of all or substantiallly all of its assets as an entirety;
(g) to the extent permitted by law, the occurrence of any of the following:
(1) the admission by the Guarantor in writing of its inability to pay its debts generally as
they become due,
(2) the entering of an order for relief in any case commenced by or against the Guarantor
(except cases commenced by i:he Guarantor against third parties) under federal
bankruptcy law, as in effect from time to time,
(3) a general assignment by the Guarantor for the benefit of creditors, or
(4) the appointment of a receiver for the Guarantor or for the whole or any substantial part
of its property;
(h) the default or failure of the Guarantor to observe or perform fully any of its covenants,
agreements or obligations under this tJuaranty or any other agreement, contract or other
instrument or document to which it is a party or by which it or its property is or may be
bound;
Section 2.3. In the event of any default of the obligations of DMC under the Incentive Agreement
or in the event of breach of any of the representations of or warranties of DMC in the Incentive Agreement
and following any notice and opportunity to cure provided for in the Incentive Agreement, PAEDC may at
its sole option, terminate the Incentive Agreement in whole or in part. In the event of such termination,
H652453 Page 3
PAEDC may, at its sole option, utilize one or more of the following actions to resolve or rc;medy said
default:
(a) Declare the Conditional Commercial Promissory Note executed in conjunction with the
Incentive Agreement immediately effective. If DMC defaults on the Conditional
Commercial Promissory Note, then the PAEDC may exercise its default remedies providled
under Deed of Trust attached as Exhibit "B" to the Incentive Agreement ("Deed of Trust");
(b) Exercise any remedies provided under the Incentive Agreement or within the Deed of Trust;
(c) Withhold, whether temporarily or otherwise, disbursement of PAEDC funds pending
correction of the default or deficiency(s1 by DMC;
(d) Disallow all or a part of the incentives which are not in compliance with the terms and
conditions of the Incentive Agreement or in compliance with the representations a.nd
warranties of DMC contained within the Incentive Agreement;
(e) Withhold and/or disallow further PAELIC incentives to DMC; and
(f) Exercise any and all other remedies that may be legally available to the PAEDC, under 1;he
laws of the State of Texas and as autl-orized by the terms and conditions of the Incentiive
Agreement.
Section 2.4. If there is a default by the Grantee under the Incentive Agreement or the Conditional
Commercial Promissory Note made by the Grantee thereunder, the PAEDC shall proceed first against the
Grantee, but is not required to exhaust its remedies against the Grantee and its security or other rights in
the collateral of the Grantee, prior to resorting to any remedy of the PAEDC as to the Guarantor; however,
Guarantor will pay all reasonable and necessary out-of-pocket costs, expenses and fees (includiing without
limitation, to the extent permitted by law, all court costs, attorneys' fees, expenses, prejudgment interest
and post judgment interest) that the PAEDC incurs in the process of exercising its remedies against
Grantee, to comply with this section. If Guarantor finds that further action against Grantee is futile,
Guarantor may request in writing that PAEDC halt executing remedies against Grantee, aifter whiich
PAEDC may proceed with remedies against Guarantor.
Section 2.5. The Guarantor covenants and agrees to pay all reasonable and necessary out-~of-
pocket costs, expenses and fees (including without limitation, to the extent permitted by law, all court costs
and attorneys' fees) that may be incurred by the 1PAEDC in enforcing or attempting to enforce this
Guaranty, whether by suit or otherwise, following any default on the part of the Guarantor under this
Guaranty.
Section 2.6. The Guarantor covenants and agrees that, so long as the Incentive Agreement is in
effect, the Guarantor will preserve and will keep in full force and effect its corporate existence.
Section 2.7.
(a) The failure of the Guarantor to abide by or to observe or perform any covenant, agreement
or obligation hereunder in any material adverse respect or any inaccuracy in auny material
adverse respect of any representation or warranty herein, shall constitute a default
hereunder.
(b) The occurrence of any of the following shall also constitute a default hereunder:
(i) the admission by the Guarantor i.n writing of its inability to pay its debts I;enerally as
they become due;
#652453 Page 4
(ii) the entering of an order for relief in any case commenced by or against the Guarantor
(except any case commenced by the Guarantor against a third party) under federal
bankruptcy law, as in effect from time to time;
(iii) a general assignment by the Guarantor for the benefit of creditors;
(iv) the appointment of a receiver for the Guarantor or for the whole or any substantial part
of its property; or
(v) the dissolution or liquidation of the Guarantor or the failure by the Guarantor to vacate
within 90 days any execution, garnishment or attachment of such a consequence than it
will impair the Guarantor's ability to carry out its covenants, agreements and
obligations hereunder. The term "dissolution or liquidation of the Guarantor," as used
in this clause, shall not be construed to include the cessation of the corporate existence
of the Guarantor resulting either from a merger or consolidation of the Guarantor into
or with another Person, or from a dissolution or liquidation of the Guarantor following
a transfer of all or substantially all of its assets as an entirety, in accordance with t:he
Incentive Agreement.
The declaration of a default hereunder and the exercise of remedies upon the declaration
shall be subject to any applicable limitations of federal bankruptcy law aFfecting or
precluding the declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
(c) If the default hereunder shall consist of the breach in any material adverse respect of any of
the covenants, agreements or obligations of the Guarantor under Section 2.1, or if any
default shall occur under Section 2.7(b), upon written demand by the PAEDC, t:he
Guarantor shall (i) cause any such covenant, agreement or obligation to be performed or met
and (ii) pay forthwith, or make provision for payment, to the PAEDC without further
demand or notice and regardless of whether there has been any other default or event of
default under the Incentive Agreement, the amount due and payable under the Incentiive
Agreement and the Guaranty.
In the event that the Guarantor shall be required to make payment to the ]PAEDC as
described in the preceding paragraph, in addition to that payment, the Guarantor shall (i)
cause any such covenant, agreement or obligation to be performed or met and (ii- pay to the
PAEDC any further amount that is necessary to cover (i) the reasonable and necessary out-
of-pocket costs and expenses of collection, including reasonable compensation to ithe
PAEDC, its agents and, to the extent permitted by law, the PAEDC's attorneys and counsel,
and (ii) any reasonable and necessary out-of-pocket expenses or liabilities incurred by 'the
PAEDC hereunder.
(d) In the case of a default hereunder, other than under Section 2.7(b) or arising as ai result of a
breach of Section 2.1, the PAEDC upon obtaining knowledge of such default shall promptly
give the Guarantor written notice of the default at the Guarantor's Notice Address, by
registered or certified mail, postage prepaid, return receipt requested, and if the default
continues unremedied for 30 days following the giving of the notice, the PAEDC shall have
the rights, remedies and powers, and 'the Guarantor shall make the payments, described in
Section 2.7(c); provided, however, that if the default (other than a default under Section
2.7(b) or arising as a result of a breachh of Section 2.1) can be remedied but not within that
period, that failure shall not constitl.~te a default, so long as the Guarantor is taking
appropriate corrective action as permitted under the Incentive Agreement.
N652453 Page 5
Section 2.8. Rights, remedies and powers under this Guaranty may be exercised, either separately
or cumulatively, in the event of one or more defaults under this Guaranty.
ARTICLE III.
NOTICE AND SERVICE OF PROCESS, PLEADINGS AND OTHER PAPERS
Section 3.1. Guarantor agrees that so long as the Incentive Agreement remains in full force and
effect, Guarantor consents to the service of all process, pleadings, notices or other papers that may be
served upon the Guarantor as a result of any of its covenants, agreements and obligations under this
Guaranty, by delivery thereof by hand or by a recognized overnight courier to Guarantor, with ithe
attention of each of:
PVI Holdings, Inc.
1301 Riverplace Boulevard, Suite 1610
Jacksonville, Florida 32207
Attention: President
and:
PVI Holdings, Inc.
1301 Riverplace Boulevard, Suite 1610
Jacksonville, Florida 32207
Attention: Chief Financial Officer
In addition, service of any process, pleadings, notices or other papers that may be served upon the
Guarantor as a result of any of its covenants, agreements and obligations under this Guaranty, may also be
made to the Guarantor, care of the Secretary of State of the State of Delaware.
Section 3.2. Any process, pleadings, notices or other papers served upon any agent appointed in
the preceding Section shall be sent at the same time by registered or certified mail, postage prepaid, to ithe
Guarantor's Notice Address and to any other addresses that may be furnished by the Guarantor to ithe
PAEDC in writing from time to time.
ARTICLE IV.
MISCELLANEOUS
Section 4.1. The covenants, agreements and obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Incentive Agreement becomes effective.
Section 4.2. No remedy, right or power conferred herein upon or reserved hereu~ider to the
PAEDC is intended to be exclusive of any other available remedy, right or power, but each remedy, right
and power shall be cumulative and shall be in addition to every other remedy, right and power under the
Incentive Agreement or any other document entered into in connection with the Incentive Agreement or
existing at law, in equity or by statute or otherwise from time to time.
No delay in exercising, or omission to exercise, any remedy, right or power upon a.ny default,
omission or failure of observance or performance hereunder shall impair any remedy, right or power or
shall be construed to be a waiver thereof, but any remedy, right and power may be exercised whenever aind
as often as may be deemed expedient.
To entitle the PAEDC to exercise any remedy, right or power reserved to it under this Guaranty, it
shall not be necessary for the PAEDC to give any notice, other than any notice that may be expressly
required herein.
p652453 Page 6
In the event any provision contained in this Guaranty shall be breached by any party and the breach
shall be duly waived thereafter by the other party so ~°mpowered to act, the waiver shall be lirr~ited to the
particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver,
amendment, modification or release of this Guaranty shall be established by conduct, custom or course of
dealing, but any amendment, modification or release shall be made solely by an instrument or document in
writing duly signed by the parties hereto who have been duly authorized by this Guaranty so to ;amend tlris
Guaranty.
Section 4.3. This Guaranty may be amended and supplemented, to the same extent and upon t:he
same conditions that the Incentive Agreement may be amended and supplemented, by a written agreement
signed by the parties hereto. The purposes for which an amendment of or supplement to this Guaranty
may be made pursuant to this Section include, without limitation, the addition of, or substitution for t:he
Guarantor as guarantor hereunder of, any Person th~rt succeeds to or assumes, as the case may be, t:he
Guarantor's covenants, agreements and obligations hereunder.
Section 4.4. This Guaranty shall inure to the: benefit of the PAEDC and its permitted successors
and assigns and is binding upon the PAEDC and the Guarantor and their respective successors and assigns.
Section 4.5. This Guaranty constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, between the Guarantor and the PAEDC with respect to t:he
subject matter hereof. This Guaranty may be signed simultaneously in several counterparts, each of which
shall be deemed to constitute an original, but all of which together shall constitute but one and the same
instrument. It shall not be necessary in proving this Guaranty to produce or account for more than one of
those counterparts.
Section 4.6. The invalidity or unenforceability of any one or more phrases, sentences, clauses or
sections contained in this Guaranty shall not affect thc; validity or enforceability of the remaining phrases,
sentences, clauses and sections hereof.
Section 4.7. This Guaranty shall be governed by and construed in accordance with the 1',aws of the
State of Texas.
hereof.
Section 4.8. All representations and warranties herein shall survive the signing and delivery
Section 4.9. PAEDC acknowledges and confirms that Guarantor has executed the only Guaranty
Agreement to or for the benefit of DMC as to the Project.
IN WITNESS WHEREOF, this Guaranty has been duly signed and delivered for and in the name
and on behalf of the Guarantor and the PAEDC by their duly authorized officers or representatives, as of
the date first above written.
PVI HOLDINGS, INC.,
By:
Its:
#652453 Page: 7
ATTEST:
STATE OF §
COUNTY OF §
On this day of , 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 Holdugs, Inc. and that the same is his free acct and deed individually as such officer and the free
act and deed of PVI Holdings, Inc..
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
Notary Public, State of
STATE OF
COUNTY OF
On this day of , 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 Holdngs, Inc. and that the same is his free act and deed individually as such officer and the free
act and deed of PVI Holdings, Inc..
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on
the day and year aforesaid.
Notary Public, State of
#652453 Page 8
SIGNED AND AGREED TO on the day of , 2008.
By:
ATTEST:
By:
Secretary
STATE OF TEXAS §
COUNTY OF JEFFERSON §
City of Port Arthur Section 4A
Economic Development Corporation
President
On this day of , 2008, before me, a Notary Public in and for
said County and State, personally appeared ,President of the PAEDC, who
acknowledged that, with due authorization, he dill 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 acr and def;d
of the PAEDC.
[N 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 TEXAS §
COUNTY OF JEFFERSON §
On this day of , 2008, before me, a Notary Public in and for said
County and State, personally appeared Secretary of the PAEDC, wllo
acknowledged that, with due authorization, she died sign the foregoing instrument on behalf of t:he
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.
#652453 Page 9
Notary Public, State of Texas
#652453 Page 10
AFFIDAVIT` OF TITLE
State of Texas X
X
County of Jefferson X
The undersigned ("Affiant"), as Chief Executive Officer of the Port Arthur Economic
Development Corporation ("PAEDC"), in his capacity as such officer, on oath swears that the
following statements are true and are within the personal knowledge of Affiant:
1. That certain Deed dated May 6, 2008, executed by the PAEDC to Lockwood Holdings,
Inc., recorded under Clerk's File No. 2008017115, Official Public Records of Je;fferson
County, Texas, does not affect the real Iroperty located in Jefferson County , Tf;xas set
forth on Exhibit "A" attached hereto and made a part hereof for all purposes ("Prapert~')
in any manner.
2. That certain Economic Incentive Contract and Loan Agreement between the PAEDC and
Rhorer-Moniotte Investments, LLC d/b/a Desselle-Maggard Corporation {"DMC") dated
March 8, 2007 refers in both the Exeeuti.ve Summary and Section 5{a)(4) to a proposed
$2,000,000.00 loan from the Grow Port Arthur Fund to DMC. That proposed loan was to
be secured by a Deed of Trust {"First Lien D of T") that is referred to in that certain
Deed of Trust dated April 18, 2007, executed by DMC to Guy Goodson, Trustee, for the
benefit of the PAEDC, and recorded under Clerk's File No. 2007016294, Official Public
Records of Jefferson County, Texas ("Sec;ond Lien D of T") as a prior lien, as follows:
"Deed of Trust , dated , 2007, ana! recorded al ,for the benefit of the
Grow Port ftrthur Fund, which Deed of Trust shall be senior in priority to the; within
Deed of Trust up to the amount of $2, 000, 000.00 ". The proposed $2,000,000.00 loan
from PAEDC to DMC was never made, the First Lien D of T was never executed, and
the Second Lien D of T is the only lien that the PAEDC has on the Property.
Floyd Batiste
State of Texas X
X
County of Jefferson X
This instrument was acknowledged before me on the _ day of October, 2008, by Floyd :Batiste.
Notary Public in and for the State of Texas
My Commission Expixes:
Printed Name: