HomeMy WebLinkAbout1422 Lease Agreement BABRA LLC Golden Lake LLC and City of Riverside BILL NO. 2015-049 ORDINANCE NO. NJ�
AN ORDINANCE AUTHORIZING THE EXECUTION AND DELIVERY OF AN ASSIGNMENT
AND ASSUMPTION OF LEASE AGREEMENT BY AND AMONG BABRA, L.L.C., GOLDEN
LAKE, LLC, AND THE CITY OF RIVERSIDE, MISSOURI
WHEREAS, pursuant to that certain Lease Agreement between the City of Riverside,
Missouri ("City') and BABRA, L.L.C. ("BABRA"), authorized by Ordinance No. 1350 on October
7, 2014, such Lease Agreement being dated January 1, 2015 and Memorandum of Lease
recorded January 29, 2015 (the "Lease"), the City leases to BABRA all of that part of Lots 1 and
2, PARTITION PLAT OF THE ESTATE OF GEORGE ROBERTS, located in the Southeast 114,
of Section 6, Township 50, Range 33, in the City of Riverside, Platte County, Missouri, (the
"Project"), according to the recorded plat thereof, together with the improvements located
thereon; and
WHEREAS, as contemplated by Section 13.1(a) of the Lease, BABRA ("Assignor") may
assign its interest in the Lease upon receiving the City's consent and upon BABRA's
compliance with certain conditions described thereunder; and
WHEREAS, BABRA, the City, and Golden Lake, LLC ("Golden Lake") desire to enter
into the Assignment and Assumption of Lease Agreement (the "Assignment") attached hereto
as Exhibit A and incorporated herein, whereby BABRA will assign, and Golden Lake will
assume, an undivided 24.1935% tenant-in-common interest in the leasehold estate created
under the Lease Agreement, together with an undivided 24.1935% tenant-in-common interest in
Assignor's rights and interest under the Lease Agreement, which demises the Project, as more
particularly described on Exhibit A to the Assignment, attached thereto and incorporated therein,
and an undivided 24.1935% tenant-in-common interest in Assignor's rights and interests in the
Project, including the buildings, structures, improvements, fixtures, machinery and equipment
situated on the real estate and all additions, alterations, modifications, and improvements
thereof(collectively, the "Property"), subject to the provisions of the Lease Agreement; and
WHEREAS, pursuant to the Assignment, BABRA shall remain jointly and severally liable
under the Lease, including, without limitation, to the indemnification obligations owing to the City
and Trustee (as defined in the Lease) pursuant to Section 10.5 of the Lease; and
WHEREAS, the Board of Aldermen find it to be in the best interests of the City in order
to further the objectives of industrial and economic development of the City, and the terms and
conditions of the Lease, as well as in furtherance of the objective to protect the health, safety,
and welfare of the businesses and citizens of the City, to enter into and deliver the Assignment
as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1 - BEST INTEREST OF THE CITY TO APPROVE ASSIGNMENT. In order
to further the objectives of industrial and economic development of the City, and the terms and
conditions of the Lease, as well as in furtherance of the objective to protect the health, safety,
and welfare of the businesses and citizens of the City, the Assignment attached hereto as
Exhibit A and incorporated herein is hereby approved.
WA 6980962.1
SECTION 2 - AUTHORITY GRANTED. The City hereby authorizes the Mayor of the City
to execute and deliver the Assignment, consistent with the terms of this Ordinance and Missouri
law, and hereby authorizes the Mayor, the City Administrator, Special Counsel to the City and
other appropriate City officials to take any and all actions as may be deemed necessary or
convenient to carry out and comply with the intent of this Ordinance and to execute and deliver
for and on behalf of the City all certificates, instruments, agreements and other documents, as
may be necessary or convenient to perform all matters herein authorized.
SECTION 3 - EFFECTIVE DATE. This Ordinance shall be in full force and effect from
and after its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, PASSED AND
APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City
of Riverside, Missouri, this 2nd day of June, 2015.
Riath� D
leen L. Rose, M yor
Robin Littrell, City Clerk
Appro ed as to form:
Sp en / ne Britt & Browne LLP
Sp ial C nsel to the City
by Joe Bednar
2 WA 69809611
EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
3 WA 6980962.1
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(The above space is reserved for Recorder's Certification.)
TITLE OF DOCUMENT: ASSIGNMENT AND ASSUMPTION OF LEASE
AGREEMENT
DATE OF DOCUMENT: 12015
ASSIGNOR: BABRA, LLC
ASSIGNOR'S MAILING ADDRESS: c/o Block Real Estate Services, Inc.
700 West 47`h Street, Suite 200
Kansas City, Missouri 64112
Attn: Manager
ASSIGNEE: GOLDEN LAKE LLC
ASSIGNEE'S MAILING ADDRESS: 73 Old Dublin Pike #10/305
Doylestown, Pennsylvania 18901
RETURN DOCUMENTS TO: Spencer Fane Britt & Browne LLP
304 East High Street
Jefferson City, Missouri 65101-3237
Attn: Joe Bednar
LEGAL DESCRIPTION: See Exhibit A attached hereto.
PRIOR DOCUMENT REFERENCE: Book 1238, Page 797
This cover page is attached solely for the purpose of complying with the requirements stated in
§§59.310.2; 59.313.2 Revised Missouri Statutes.
969766570
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (the
"Agreement") is made and entered into as of , 2015 (the "Effective Date"),
by and among BABRA, LLC, a Missouri limited liability company ("Assignor"), GOLDEN
LAKE LLC, a Missouri limited liability company ("Assignee'), and CITY OF RIVERSIDE,
MISSOURI, a fourth-class city duly organized and validly existing under the laws of the State
of Missouri (the "City").
Recitals:
A. On or about January 28, 2015, Assignor purchased that certain real estate situated
in the City of Riverside, Missouri as more particularly described on Exhibit "A" attached hereto
and incorporated herein by this reference (the "Real Proyerty").
B. In order to finance the construction of the Project (hereinafter defined) on the
Real Property, Commerce Bank, a Missouri state bank and trust company and ("Lender") made a
loan (the "Loan") in the original principal amount of $10,230,000.00 (the "Note") to Assignor,
the repayment of which is evidenced by a Promissory Note dated January 28, 2015 in the original
principal amount of$10,230,000.00 (the "Note") and which is secured by a Deed of Trust dated
January 28, 2015 (the "Deed of Trust"), recorded on January 28, 2015, in Book 1238, Page 736
in the Office of the Recorder of Deeds for Platte County, Missouri.
C. The City issued its $14,000,000.00 (Aggregate Maximum Principal Amount) City
of Riverside Taxable Industrial Revenue Bonds (BABRA, LLC Project) Series 2015 (the
"Bonds"), pursuant to a Trust Indenture dated as of January 1, 2015 (the "Indenture"), between
the City and First Bank of Missouri, a Missouri state banking corporation (the "Trustee"), for the
purpose of (a) acquiring the Real Property from Assignor, (b) leasing the Real Property to
Assignor for the construction of an approximately 245,000 square foot industrial facility (the
"Project") upon the Real Property, and (c) paying a portion of the costs of issuing the Bonds.
D. In conjunction with the issuance of the Bonds, subsequent to the closing of the
Loan, Assignor transferred fee title to the Real Property to the City, who in turn leased the Real
Property and Project back to Assignor pursuant to a Lease Agreement dated as of January 1,
2015 (the "Lease Agreement") between Assignor and the City, and Assignor and the City filed
for record a Memorandum of Lease Agreement dated January 1, 2015, which was recorded on
January 29, 2015 in Book 1238, Page 797 in the Office of the Recorder of Deeds for Platte
County, Missouri.
E. Assignor desires to assign and to transfer to Assignee an undivided 24.1935%
tenant-in-common interest in Assignor's right, title, and interest as Tenant (as defined in the
Lease Agreement) in and to the Lease Agreement.
F. Assignee desires to accept and assume such assignment of an undivided
24.1935% tenant-in-common interest in Assignor's right, title, and interest as Tenant in and to
the Lease Agreement, as more particularly set forth herein, and agrees to be bound by the terms
and provisions of the Lease Agreement.
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Agreement:
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound, mutually agree as follows:
1. Assignment. Effective as of the Effective Date, Assignor does hereby grant,
assign, sell, convey and set over unto Assignee the following (collectively, the "Assigned
Interests"):
An undivided 24.1935% tenant-in-common interest in the leasehold estate created
under the Lease Agreement, together with an undivided 24.1935% tenant-in-
common interest in Assignor's rights and interest under the Lease Agreement,
which demises the Project, including the real estate situated in the City of
Riverside, Missouri as more particularly described on Exhibit "A" attached
hereto and incorporated herein by this reference, and an undivided 24.1935%
tenant-in-common interest in Assignor's rights and interests in the Project,
including the buildings, structures, improvements, fixtures, machinery and
equipment situated on the real estate and all additions, alterations, modifications,
and improvements thereof(collectively, the "Property"), subject to the provisions
of the Lease Agreement.
2. Assumption. Assignee, for itself and its successors and assigns, does hereby
accept the assignment of the Assigned Interests as of the Effective Date, and agrees to assume
and perform, observe and discharge jointly and severally with Assignor all of the obligations,
terms, covenants and conditions to be performed or observed by Assignor under the Lease
Agreement which accrue on or after the Effective Date through the entire unexpired term of the
Lease, including, without limitation, the indemnification obligations owing to the City and
Trustee pursuant to Section 10.5 of the Lease Agreement, and agrees to be bound by the terms
and provisions of the Lease Agreement as if Assignee was the original Tenant under the Lease
Agreement.
3. Delivery of Documents; Representations. Pursuant to Section 13.1(a)(4) of the
Lease Agreement, Assignor represents that all conditions precedent to the assignment have been
satisfied. Assignor further represents that there has been no damage or destruction to the Project
that has not been repaired, restored and replaced in accordance with the terms of the Lease
Agreement.
4. Deed. The parties hereto agree that in the event that Assignor and Assignee, as
Tenant under the Lease Agreement, exercise the Tenant's option to purchase the Project pursuant
to Section 11.1 of the Lease Agreement, that, notwithstanding anything in the Lease Agreement
to the contrary, the deed from the City shall be to Assignor and Assignee, as tenants-in-common,
in accordance with their respective interests in the Lease Agreement, as set forth herein.
469766570
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5. Consent of City. Pursuant to Section 13.1(a) of the Lease Agreement, as
evidenced by its signature hereto, the City hereby consents to this Assignment and the terms and
provisions set forth herein.
6. Consent of the Trustee. The Trustee hereby consents to this Assignment and
Assumption of the Lease Agreement as evidenced by its signature hereto.
7. Consent of the Lender. Lender consents to this Assignment and Assumption of
the Lease Agreement as evidenced by its signature hereto.
8. No Further Assignment. Neither Assignor nor Assignee shall further assign any
of its right, title or interest in or to the Lease Agreement, the leasehold estate created thereby or
any right in the Project without the prior written consent of the City, and any such purported
assignment without the City's prior written consent shall be ineffective and shall constitute a
breach of the Lease Agreement.
9. No Release of Assignor. Assignor, who is retaining an undivided 75.8065%
tenant-in-common interest in the Assigned Interests, shall remain jointly and severally liable for
all liability under the Lease Agreement, whether occurring before or after the Effective Date,
including, without limitation, the indemnification obligations owing to the City and Trustee
pursuant to Section 10.5 of the Lease Agreement.
10. Successors and Assigns. This Assignment shall be binding upon, and shall inure
to the benefit of, Assignor and Assignee and their respective successors and assigns, and shall
shall constitute a covenant running.
11. Ratification of Lease Agreement. Except as specifically provided for in this
Assignment, the terms and conditions of the Lease Agreement shall remain in full force and
effect. In the event that any provision of this Assignment shall be construed to conflict with a
provision of the Lease Agreement, the provision of this Assignment, this Assignment shall be
deemed to be controlling.
12. Receipt of Transcript. Assignee hereby represents that it has received and
reviewed complete copies of the various other documents relating to the Bonds (the "Other Bond
Documents"), a complete set of which is contained in the Transcript of Proceedings Relating to
the Issuance of the Bonds (the "Transcript").
13. Recording. Assignee shall submit this Assignment for recording in the Office of
the Recorder of Deeds of Platte County, Missouri on or about the date hereof.
14. Recitals Incorporated. The recitals set forth herein are hereby incorporated into
the substantive provisions of this Assignment.
15. Governing Law. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of Missouri and each party agrees to jurisdiction and
venue in said state and the federal and state courts located in such state.
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16. Counterparts. This Assignment may be executed in one or more counterparts
which when taken together shall constitute but one original.
[Remainder of Page Left Intentionally Blank; Signature Page Follows]
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SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed
as of the Effective Date.
ASSIGNOR:
BABRA,LLC,
a Missouri limited liability company
By: BK PROPERTIES, LLC, a Missouri
limited liability company, Its Manager
By:
Kenneth G. Block, Trustee of the
Kenneth G. Block Trust, dated
January 11, 1991, as amended, Its
Manager
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day of , 2015, before me, appeared Kenneth G. Block,
Trustee of the Kenneth G. Block Trust, dated January 11, 1991, the Manager of BK
PROPERTIES, LLC, a Missouri limited liability company, the Manager of BABRA, LLC, a
Missouri limited liability company, to me personally known, who being duly sworn, did say that
the foregoing instrument was signed for the purposes therein contained on behalf of said limited
liability company and by authority of the company; and he further acknowledged said instrument
to be the free act and deed of the said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
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ASSIGNEE:
GOLDEN LAKE LLC,
a Missouri limited liability company
By:
Philip Simon, Manager
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day of , 2015, before me, appeared Philip Simon, to me
personally known, who being duly sworn, did say that he is the Manager of Goldne Lake LLC, a
Missouri limited liability company, and that the foregoing instrument was signed for the
purposes therein contained on behalf of said limited liability company and by authority of the
company; and he further acknowledged said instrument to be the free act and deed of the said
limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
N6976657v3
6
CONSENT OF CITY
City of Riverside, Missouri hereby acknowledges and consents to the execution and
delivery of this Assignment and Assumption of Lease dated 2015 and all of the
terms and provisions set forth therein.
CITY:
CITY OF RIVERSIDE, MISSOURI
By:
Kathleen L. Rose, Mayor
(Seal)
ATTEST:
By:
Robin Littrell, City Clerk
STATE OF MISSOURI )
) ss:
COUNTY OF PLATTE )
On this day of , 2015, before me, personally appeared the
Honorable Kathleen L. Rose to me personally known, who being by me duly sworn, did say that
she is the Mayor of the City of Riverside, Missouri, a fourth-class city duly organized and validly
existing under the laws of the State of Missouri, and that the foregoing instrument was signed for
the purposes therein contained on behalf of said City of Riverside, Missouri by authority of its
Board of Aldermen, and Mayor Rose acknowledged said instrument to be the free act and deed
of said City of Riverside, Missouri.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the
day and year last above written.
Notary Public
Printed Name
My Commission Expires:
46976657v3
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CONSENT OF LENDER
hereby acknowledges and consents to the execution and delivery of this
Assignment and Assumption of Lease dated 2015 and all of the terms and
provisions set forth therein.
LENDER:
COMMERCE BANK, a Missouri state
bank and trust company
By:
Name:
Title:
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day of 2015, before me, appeared to me
personally known, who being duly sworn, did say that s/he is the of
' a , and that the foregoing instrument was signed
for the purposes therein contained on behalf of said and by authority of the
; and s/he further acknowledged said instrument to be the free act and deed of the
said
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
CONSENT OF TRUSTEE
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First Bank of Missouri, as trustee, hereby acknowledges and consents to the execution and
delivery of this Assignment and Assumption of Lease dated 2015 and all of the
terms and provisions set forth therein.
TRUSTEE:
FIRST BANK OF MISSOURI,
a Missouri state banking corporation
By:
Name:
Title:
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day of 2015, before me, appeared to me
personally known, who being duly sworn, did say that s/he is the of First Bank of
Missouri, a Missouri state banking corporation, and that the foregoing instrument was signed for
the purposes therein contained on behalf of said and by authority of the
; and s/he further acknowledged said instrument to be the free act and deed of the
said
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
469766570
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CONSENT OF BONDHOLDER
, as the holder of the Bonds, hereby acknowledges and consents
to the execution and delivery of this Assignment and Assumption of Lease dated
2015 and all of the terms and provisions set forth therein.
BONDHOLDER:
BABRA,LLC,
a Missouri limited liability company
By: BK PROPERTIES, LLC, a Missouri
limited liability company, Its Manager
By:
Kenneth G. Block, Trustee of the
Kenneth G. Block Trust, dated
January 11, 1991, as amended, Its
Manager
STATE OF MISSOURI )
ss.
COUNTY OF )
On this day of , 2015, before me, appeared Kenneth G. Block,
Trustee of the Kenneth G. Block Trust, dated January 11, 1991, the Manager of BK
PROPERTIES, LLC, a Missouri limited liability company, the Manager of BABRA, LLC, a
Missouri limited liability company, to me personally known, who being duly sworn, did say that
the foregoing instrument was signed for the purposes therein contained on behalf of said limited
liability company and by authority of the company; and he further acknowledged said instrument
to be the free act and deed of the said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name
My Commission Expires:
469766570
10
EXHIBIT "A"
Legal Description
The North 652. 84 feet of the South 677 .84 feet of Lots 1
and 2 of the Partition Plat of the Estate of George Roberts ,
deceased, located in the East Half of Section 6, Township 50,
Range 33 , more particularly described as follows , to-wit:
Commencing at the Southwest corner of said Lot 1 , which point is
also the Southwest corner of the Southeast quarter of said Section
6 , Township 50, Range 33, thence North along the West line of said
Lot 1 and the West line of said Southeast Quarter a distance of
677. 84 feet; thence East parallel with the South line of said
Section 6, a distance of 1021.93 feet to a point on the East
line of said Lot 2 of said Partition Plat; thence South along
said East line of said Lot 2 a distance of 677. 84 feet to a point
on the South line of said Section 6; thence West along the South
line of said Lots 1 and 2 and the South line of said Section 6,
a distance of 1019 .7 feet to the point of beginning, EXCEPT the
South 25 feet thereof.
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