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HomeMy WebLinkAbout2014-08-817657 176830 ORDINANCE NO. 2014-8-8176 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY AUTHORIZING A WAIVER AND CONSENT BY REAL PROPERTY OWNER AMONG THE CITY OF PADUCAH, KENTUCKY, THE COUNTY OF MCCRACKEN, KENTUCKY, AND WELLS FARGO BANK, NATIONAL ASSOCIATION, WITH RESPECT TO PERSONAL PROPERTY OF GENOVA PRODUCTS, INC., LOCATED IN THE LEASED PREMISES, COMMONLY KNOWN AS 5400 COMMERCE: DRIVE, PADUCAH, KENTUCKY WHEREAS, the City of Paducah, Kentucky and McCracken County, Kentucky (collectively, "Owners") have leased certain real property located at 5400 Commerce Drive, Paducah, County of McCracken, Kentucky, (the "Leased Premises") to Genova Products, Inc. ("Tenant"); and WHEREAS, Tenant has requested a loan from Wells Fargo Bank, National Association ("Lender") to purchase equipment for Tenant's facilities located on the Leased Premises; and WHEREAS, in order to further the aforementioned intentions of Tenant, it is necessary and desirable that the City now authorize the Waiver and Consent by Real Property Owner among the Owners, and Lender. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY AS FOLLOWS: Section 1. Authorization. The Waiver and. Consent by Real Property Owner in substantially the form attached hereto as Exhibit A and made part hereof, is hereby approved and the Mayor of the City of Paducah, Kentucky, is hereby authorized and directed to execute the same which fully releases any and all claims the Owners may have to all personal property of Tenant located on the Leased Premises, including without limitation all of the Tenant's inventory, accounts receivable and other receivables, books and records, equipment, furniture, furnishings, trade fixtures, machinery, tools, certain deposit accounts and other related assets, together with all additions, substitutions, replacements, and improvements to the same (hereinafter referred to as the "Goods"), which Goods are or are to be located on and may be affixed to the Leased Premises or be improvements thereon; provided that the Goods shall exclude any and all equipment, furniture, furnishings, trade fixtures, machinery and tools of Tenant currently located on, or to be later installed at the Leased Premises and for which the Owners have provided purchase money security interest financing and the existing two (2) Dearborne cranes and engineering, 10 ton, located on the ceiling of tiie Premises, six (6) silos located on the Premises, and the rail spur located on the Premises. The Ordinance approves the form of the Waiver and Consent presented to the Board of Commissioners of the City, with such changes therein as shall not be adverse to the City and may be approved by the Mayor and City Manager. Section 2. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or un.en.forceability of such 1 , - I --,-.v -1- 1 1.-- 1 ...--7 -- f:-:: ,-'r 11--: ,- -- -7--, ...., . rr: r , . :... , 71-i ,- section, paragraph or provision shall not: affect any of the remaining provisions of this Ordinance. Section 3. Compliance With Oven Meetings Laws. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 4. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 5. Effective Date. This Ordinance shall be read on two separate days and will become effective upon summary publication pursuant to KRS Chapter 424. ATTEST: City Clerk Introduced by the Board of Commissioners, August 12, 2014 Adopted by the Board of Commissioners, August 19, 2014 Recorded by Tammara S. Sanderson, City Clerk, August 19, 2014 Published by The Paducah Sun, August 28, 2014 \ord\genova\waiver & consent 2 59 EXHIBIT A SEE ATTACHMENT M WAIVER AND CONSENT BY REAL PROPERTY OWNER ("Waiver and Consent") This WAIVER AND CONSENT is made as of , 2014 between WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association ("Wells Fargo"), as agent for each member of the Lender Group and the Bank Product Providers (as such terms are defined in the below -defined Credit Agreement) (in such capacity, together with its successors and assigns in such capacity, "Agent"), and MCCRACKEN COUNTY, KENTUCKY and CITY OF PADUCAH, KENTUCKY (individually and collectively, "Owner"), and affects that real property in the City or Town of Paducah, County of McCracken, State of Kentucky, fully described on Exhibit "A" attached hereto and made a part hereof by this reference, and more commonly known as 5400 Commerce Drive, Paducah, Kentucky (hereinafter referred to as the "Premises"). WHEREAS, reference is made to that certain Credit Agreement dated as of August _, 2014 herewith (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement") among GENOVA PRODUCTS, INC., a Michigan corporation ("Genova"), and the subsidiaries of Genova which may, from time to time, become party thereto (such subsidiaries, together with Genova, are referred to hereinafter each individually as a "Borrower" and individually and collectively, jointly and severally, as the "Borrowers"), the lenders party thereto as "Lenders" (each of such Lenders, together with its successors and assigns, is referred to hereinafter as a "Lender") and Agent, and certain other agreements related thereto (hereinafter collectively referred to as the "Agreements"), among the Lenders, Agent, Borrowers, and certain other subsidiaries of Genova (such subsidiaries together with Borrowers, are referred to hereinafter each individually as an "Obligor", and individually and collectively, jointly and severally, as the "Obligors"), which Agreements, among other things, were given by the Obligors to Agent and the Lenders for the purpose of securing the repayment of all obligations and the performance of all duties now or hereafter owing by the Obligors to the Lenders and the Bank Product Providers, of every kind and description. This Waiver and Consent does not amend any of the terms of the Agreements and reference thereto is made for further particulars; WHEREAS, by the Agreements, Agent and/or the other Lenders have loaned or have agreed to loan monies and/or extend other financial accommodations against the security of, among other collateral, certain of the Obligors' personal property, including without limitation all of the Obligors' inventory, accounts receivable and other receivables, books and records, equipment, furniture, furnishings, trade fixtures, machinery, tools, certain deposit accounts and other related assets, together with all additions, substitutions, replacements, and improvements to the same (hereinafter referred to as the "Goods"), which Goods are or are to be located on and may be affixed to the Premises or be improvements thereon; provided that the Goods shall exclude any and all equipment, furniture, furnishings, trade fixtures, machinery and tools of Tenant currently located on, or to be later installed at the Premises and for which the Owner has provided purchase money security interest financing and the existing two (2) Dearborne cranes and engineering, 10 ton, located on the ceiling of the Premises, six (6) silos located on the Premises, and the rail spur located on the Premises; and WHEREAS, Genova Products, Inc. ("Tenant"), has leased the Premises from Owner by that certain Lease Agreement dated June 30, 2014 (the "Lease"). This Waiver and Consent does not amend any of the terms of the Lease and reference thereto is made for further particulars. Agent and Owner agree that: 1. Owner acknowledges that (i) the Lease is in full force and effect and constitutes the legal, valid and binding obligation of Owner enforceable against Owner in accordance with its terms, (ii) the Lease has not been modified, changed, altered or amended in any respect (except as disclosed to Agent), and is the only lease between Owner and the Tenant, (iii) this Waiver and Consent constitutes the legal, valid and binding obligation of Owner enforceable against the Owner in accordance with its terms, and (iv) Owner is not aware of any existing default under the Lease or any such default which would result from the execution, delivery and performance of the Agreements. 2. Owner hereby consents to the grant by the Tenant to Agent of the lien on and security interest in the Goods and recognizes Agent's security interest in the Goods. 3. The Goods shall be and remain personal property notwithstanding the manner of their annexation to the Premises, their adaptability to the uses and purposes for which the Premises are used, or the intentions of the party making the annexation. 4. Owner hereby waives any rights whiclr Owner may claim to have in and to the Goods, no matter how arising, including, without limitation., all rights of levy or distraint or liens for rent or other lease obligations. 5. Owner consents to the installation of the Goods on the Premises, agrees that Agent may do to and with the Goods any or all of the acts below enumerated, and grants Agent (and its M 61 __ - - - _I 1 Li agents and representatives) a right, as set forth below, to enter into possession of the Premises to do any or all of the following (the "Permitted Actions") with respect to the Goods: assemble, have appraised, display, sever, remove in a manner that is least destructive to the Premises, maintain, prepare for sale or lease, advertise, inspect, repair, lease, transfer, and/or sell (at public auction or private sale). Agent (or its agents or representatives) shall have the right and license to enter into and to occupy the Premises, for the purposes described above, for an actual occupancy period of up to 120 days (at Agent's discretion), following the later of (a) Owner placing Agent (or its agents or representatives) in possession of the Premises; and (b) abandonment or surrender of the Premises by Tenant, whether voluntary or involuntary; provided, that if Agent (or its agent or representative) is prohibited by any process or injunction issued by any court, or by reason of any bankruptcy or insolvency proceeding involving Tenant, from enforcing its security interest in the Goods, the 120 day period shall commence upon termination of such prohibition. In consideration of the foregoing, Agent (or its agent or representative) agrees (to the extent not paid by the Tenant) that if Agent (or its agent or representative) occupies the Premises, Agent will pay to Owner, periodically for the use and occupancy of the Premises by Agent (or its agents or representatives) as provided above, a per diem occupancy fee (based upon base rent and the Tenant's operating costs, utilities and taxes payable by the Tenant under the Lease but excluding any supplemental rent or other costs, expenses or amounts or any indemnities payable thereunder, upon default or otherwise) for each day Agent (or its agent or representative) actually uses or occupies the Premises as provided above, equivalent to the monthly rental provided for in the Lease divided by 30 for actual days of occupancy by Agent (or its agents or representatives). Any extensions of the foregoing period shall be with the written consent of Owner and at the same rate. All physical damage to the Premises caused by the removal of the Goods by Agent shall be reimbursed or repaired by Agent at its expense. 6. Owner acknowledges that at any time prior to Owner placing Agent (or its agents or representatives) in possession of the Premises, or abandonment of or surrender of the Premises by Tenant, Agent may take any or all of the Permitted Actions subject only to Agent's and Lenders' Agreements with the Obligors. 7. Owner agrees that it will use its good faith efforts to give Agent notice within (i) two days of termination of, any abandonment or surrender under, or of Owner providing notice to Tenant of any default of any of the provisions of, the Lease (or any other circumstance which could lead to the termination of the Lease prior to the scheduled expiration date thereof), and (ii) 30 days prior to any termination of the Lease or repossession of the Premises by Owner, said notice to be sent to the following address: Wells Fargo Bank, National Association, 10 South Wacker Drive, 13th Floor, MAC N8405-131, Chicago, Illinois 60606, Attn: Loan Portfolio Manager (Genova), or such other address as Agent shall designate in a written notice to Owner. Agent shall have the right, without the obligation, to cure any event of default under the Lease within ten days after the receipt of such notice. Any of the foregoing done by Agent shall be effective to cure an event of default as if the same had been done by Tenant and shall not be deemed an assumption of the Lease or any of Tenant's obligations thereunder by Agent. Owner agrees that Agent shall not have any obligations to Owner under the Lease or otherwise or any obligation to assume the Lease or any obligations thereunder. 8. This Waiver and Consent shall continue until such time as all Obligors' obligations to Agent and the other Lenders., and expenses (including, without limitation, attorneys' fees) incurred in connection therewith, have been paid in full and all covenants and conditions as more specifically enumerated in the Agreements have been fully performed. 9. This Waiver and Consent shall inure to the benefit of and be binding upon the successors, heirs, and assigns of Owner and Agent. 10. This Waiver and Consent or a memorandum hereof may be recorded in the real property records of the county in which the Premises are located. 11. This Waiver and Consent may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken. together, shall constitute but one and the same Waiver and Consent. Delivery of an executed counterpart of this Waiver and Consent by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Waiver and Consent. Any party delivering an executed counterpart of this Waiver and Consent by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Waiver and Consent but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Waiver and Consent. 12. GOVERNING LAW. (a) THE VALIDITY OF THIS WAIVER AND CONSENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR 5 62 RELATED HERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LkWS OF THE COMMONWEALTH OF KENTUCKY. (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS WAIVER AND CONSENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMI'T'TED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF MCCRACKEN, COMMONWEALTH OF KENTUCKY. THE PARTIES HERETO WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b). (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE THEIR RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS WAIVER AND CONSENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A, "CLAIM"). THE PARTIES HERETO REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS WAIVER AND CONSENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. (d) THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF MCCRACKEN AND THE COMMONWEALTH OF KENTUCKY, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS WAIVER AND CONSENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS WAIVER AND CONSENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS WAIVER AND CONSENT AGAINST ANY OBLIGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. [Signature pages to follow.] 0 63 IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be executed and delivered as of the date first above written. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent Ey: __ Name: Title: [SIGNATURE PAGE TO WAIVER AND CONSENT (L.,ocation: 5400 Commerce Drive, Paducah, Kentucky)] 7 OWNER: 1MCCRACKEN COUNTY, KENTUCKY By: __ Name: Title: Address: 301 South 6th Street Paducah, Kentucky 42003 Attn: Address: Fax No.: CITY OF PADUCAH, KENTUCKY By: __. Name: Title: 300 5rh Street Paducah, Kentucky 42002 Attn: Fax No.: [SIGNATURE PAGE TO WAIVER. AND CONSENT (Location: 5400 Commerce Drive, Paducah, Kentucky)] Exhibit A Description of Premises LAND SITUATED IN THE CITY OF PADUCAH, COUNTY OF MCCRACKEN, KENTUCKY DESCRIBED AS FOLLOWS: BEING TRACT "D," CONSISTING OF 1.2 ACRES, AND TRACT "E," CONSISTING OF 7.2207 ACRES, IN THE INDUSTRIAL PARK WEST AS SET FORTH ON THE WAIVER OF SUBDIVISION OF THE INDUSTRIAL PARK WEST TO CREATE NEW TRACT "D", AND TRACT "E" OF THE PADUCAH-MCCRACKEN COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY PROPERTY OF RECORD IN PLAT SECTION "L," PAGE 1.166, MCCRACKF_,N COUNTY COURT CLERK'S OFFICE. SUBJECT TO DECLARATION OF PROTECTIVE COVENANTS AND RESTRICTIONS FOR INDUSTRIAL PARK WEST OF R.F'.CORD IN DEED BOOK, 1186, PAGE 67, AND RERECORDED IN DEED BOOK 1186, PAGE 643, IN THE AFORESAID CLERK'S OFFICE. E