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HomeMy WebLinkAbout1491 Omnibus Amendment to Series 2015 Taxable Industrial Revenue Bonds BILL NO. 2016-050 ORDINANCE NO. 1491 AN ORDINANCE AUTHORIZING THE DELIVERY OF AN OMNIBUS AMENDMENT TO BOND DOCUMENTS RELATED TO THE CITY'S TAXABLE INDUSTRIAL REVENUE BONDS (BABRA, LLC PROJECT), SERIES 2015, TO MAKE CERTAIN MODIFICATIONS TO THE BOND DOCUMENTS RELATED TO SAID BONDS. WHEREAS, the City of Riverside, Missouri (the "City") is authorized and empowered under the Article VI, Section 27(b) of the Missouri Constitution, as amended, Sections 100.010 to 100.200, inclusive, of the Revised Statutes of Missouri, as amended (collectively the"Act"), to issue its revenue bonds for the purpose of providing funds to purchase, construct, extend and improve certain manufacturing, commercial, warehousing and industrial development projects and to lease or otherwise dispose of such projects to private persons or corporations upon such terms and provisions as the City deems advisable; and WHEREAS, pursuant to the Act, the governing body of the City passed Ordinance No. 1350 (the "Ordinance") on October 7, 2014, authorizing the issuance of its Taxable Industrial Revenue Bonds (BABRA, LLC Project), Series 2015, in the maximum aggregate principal amount not to exceed $14,000,000 (the "Bonds"), for the purpose of acquiring, constructing, installing and equipping an approximately 245,000 square foot industrial facility, including land, buildings, structures, improvements and fixtures (the "Project'), located at 4106 Mattox Road in Riverside, Missouri, for BABRA, LLC (the "Company"); and WHEREAS, pursuant to the Ordinance, the City (i) entered into a Trust Indenture dated as of January 1, 2015 (the "Indenture") with the Trustee, to issue and secure the Bonds, (ii) entered into a Lease Agreement dated as of January 1, 2015 (the "Lease") with the Company, pursuant to which the City, as lessor, acquired title to the Project and leased the Project to the Company in consideration of rentals which will be sufficient to pay the principal of and interest on the Bonds, and (iii) entered Memorandum of Lease Agreement dated January 1, 2015 with the Company, which was filed for record January 29, 2015 in Book 1238, Page 797 in the office of the Recorder of Deeds of Platte County, Missouri (the "Lease Memorandum," and together with the Indenture and the Lease, collectively referred to herein as the"Bond Documents"); and WHEREAS, the term of the Lease is set to expire on December 1, 2016; and WHEREAS, the Bonds are set to mature on December 1, 2016; and WHEREAS, the City and the Company now desire to amend the Bond Documents to extend the term of the Lease and the maturity date of the Bonds to December 1, 2017. NOW,THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: Section 1. Authorization of Omnibus Amendment to Bond Documents. In order to amend the Bond Documents to reflect an extended lease term, an extended maturity date for the Bonds and to make other conforming changes, the City is hereby authorized to enter into the Omnibus Amendment to Bond Documents dated as of October /g, 2016 (the "Omnibus Amendment"), with the Company and the Trustee, in substantially the form presented to and reviewed by the Board of Aldermen of the City(a copy of which, upon execution, will be filed in the office of the City Clerk), with such changes therein as shall be approved by the officers of the City executing the Omnibus Amendment, such officers' signatures thereon being conclusive evidence of their approval thereof. Section 2. Further Authority. The City shall, and the officers, employees and agents of the City are hereby authorized and directed to execute such other documents, certificates and instruments and take such actions as may be necessary or desirable to carry out and comply with the intent of this Ordinance and to carry out, comply with and perform the duties of the City with respect to the Omnibus Amendment. 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 18th day of October, 2016. ' Kathleen L. Rose, Mayor (SEAL)_ ' s ATTEST-- Robin TTESTwRobin Kincaid, City Clerk -2- OMNIBUS AMENDMENT TO BOND DOCUMENTS THIS OMNIBUS AMENDMENT TO BOND DOCUMENTS (the "Omnibus Amendment"), entered into as of October 18,2016(the"Effective Date"), is by and among the CITY OF RIVERSIDE, MISSOURI, a fourth-class city organized and existing under the laws of the State of Missouri (the "City', BABRA, LLC, a Missouri limited liability company (the "Company"), and FIRST BANK OF MISSOURI, as trustee, a state banking corporation duly organized and existing under the laws of the State of Missouri and authorized to accept and execute trusts of the character herein set forth under the laws of the State of Missouri, with a corporate trust office located in Kansas City, Missouri (the "Bond Trustee'); RECITALS WHEREAS, The City is authorized and empowered pursuant to the provisions of Article VI, Section 27(b), of the Missouri Constitution, as amended, and Sections 100.010 through 100.200, inclusive, of the Revised Statutes of Missouri,as amended(collectively,the"Act"),to purchase,construct,extend and improve certain"projects for industrial development"(as defined in Section 100.010 of the Revised Statutes of Missouri, as amended) and to issue industrial development revenue bonds for the purpose of providing funds to pay the costs of such projects for industrial development and to lease or otherwise dispose of such projects for industrial development to private persons or corporations for manufacturing, commercial, warehousing and industrial development purposes upon such terms and conditions as the City shall deem advisable;and WHEREAS,Pursuant to the Act,the governing body of the City passed Ordinance No. 1350(the "Ordinance") on October 7, 2014, authorizing the issuance of its Taxable Industrial Revenue Bonds (BABRA, LLC Project), Series 2015, in the maximum aggregate principal amount not to exceed $14,000,000 (the "Bonds"), for the purpose of acquiring, constructing, installing and equipping an approximately 245,000 square foot industrial facility, including land, buildings, structures, improvements and fixtures(the "Project"), located at 4106 Mattox Road in Riverside, Missouri (the"Project Site"), for the Company;and WHEREAS, Pursuant to the Ordinance, the City (i) entered into a Trust Indenture dated as of January 1,2015 (the"Indenture")with the Trustee,to issue and secure the Bonds,(ii)entered into a Lease Agreement dated as of January 1, 2015 (the "Lease") with the Company, pursuant to which the City, as lessor, acquired title to the Project and leased the Project to the Company in consideration of rentals which will be sufficient to pay the principal of and interest on the Bonds, and(iii)entered Memorandum of Lease Agreement dated January 1, 2015 with the Company, which was filed for record January 29, 2015 in Book 1238, Page 797 in the office of the Recorder of Deeds of Platte County, Missouri (the "Lease Memorandum," and together with the Indenture and the Lease, collectively referred to herein as the"Bond Documents"); and WHEREAS,The term of the lease is set to expire on December 1,2016; and WHEREAS,The Bonds will mature on December 1,2016;and WHEREAS,The City and the Company now desire to amend the Bond Documents to extend the lease term and the Bonds' maturity date. NOW,THEREFORE, in consideration of the premises, the City, the Company and the Trustee hereby agree: Section 1. Amendment of the Bond Documents. (a) Section 208(a)of the Indenture is hereby modified as follows: "(a) There shall be issued and secured by this Indenture a series of Bonds in the aggregate maximum principal amount of$14,000,000 for the purpose of providing funds for paying the costs of the Project, which Bonds shall be designated "City of Riverside, Missouri Taxable Industrial Revenue Bond (BABRA, LLC Project), Series 2015." The Bonds shall be dated as provided in Section 203(b)hereof, shall become due on December 1, 2017 (subject to prior redemption as hereinafter provided in Article M and shall bear interest as specified in Section 208(e) hereof, payable on the dates specified in Section 208(e)hereof." (b) Section 3.2.of the Lease is hereby modified as follows: "This Lease shall become effective upon its delivery, and subject to sooner termination pursuant to the provisions of this Lease, shall have an initial term commencing as of the date of this Lease and terminating on December 1,2017." Section 2. Amendment of the Bond Form. The form of Bond attached as Exhibit A to the Indenture is hereby deleted and the form of Bond attached hereto as Exhibit A is substituted therefor. Section 3. Ratification of Bond Documents. The Bond Documents, as hereby amended, are acknowledged, ratified and confirmed in all respects as being valid, existing and of full force and effect. The execution, delivery and effectiveness of this Omnibus Amendment shall not operate as a release or waiver of any right, power, liability or remedy of the parties hereto(or of any person or entity who may now or hereafter be liable under or on account of the Bond Documents)nor constitute a release or waiver of any provision of the Bond Documents. All of the Bonds described in the Bond Documents shall remain subject to the lien, charge and encumbrance of the respective Bond Documents, and nothing herein contained and nothing done pursuant hereto, shall affect the lien or encumbrance of the Bond Documents or the priority thereof in relation to other liens or encumbrances affecting such Bond. Section 4. Severability. If any provision in this Omnibus Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 5. Headings and Complete Agreement. The captions and headings contained herein are solely for convenience and reference and do not constitute a part of this Agreement. This Assignment contains the full and complete agreement between the parties hereto and supersedes any prior agreement or understandings between the parties. This Agreement may be amended only by a written instrument executed by both parties hereto. Section 6. Execution in Counterparts. This Omnibus Amendment may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. -2- Section 7. Electronic Transactions. The parties agree that the arrangement described herein may be conducted and the related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim,action or suit in the appropriate court of law. Section S. Governing Law. This Omnibus Amendment shall be governed by and construed in accordance with the laws of the State of Missouri. [The remainder of this page intentionally left blank] -3- IN WITNESS WHEREOF, the City, the Company and the Trustee have caused this Omnibus Amendment to Bond Documents to be duly executed,and their respective seals to be hereunto affixed and attested, by their duly authorized officers,all as of the Effective Date above written. CITY OF RIVERSIDE,MISSOURI By: Kathleen L. Rose,Mayor [SEAL] ATTEST:: ^� Robin Kincaid,City Clerk FIRST BANK OF OURI, as Bond Trustee [SEAL] By:— Name.-.Xie y:Name: to Gardner TitIVIVice President BABRA,LLC, a Missouri limited liability company, By: BK Pro rt' ,LLC, a Missouri liabil' co ny Manager By: — ;r Kenneth 13.Block,Trustee of the Kenneth G. Block Trust,dated January 11, 1991,as amended,Manager S-1 IN WITNESS WHEREOF, the City, the Company and the Trustee have caused this Omnibus Amendment to Bond Documents to be duly executed,and their respective seals to be hereunto affixed and attested,by their duly authorized officers,all as of the Effective Date above written. CITY OF RIVE E,MISSOURI Kathleen L.Rose,Mayor [SEAL] ATTEST: By: Robin4Cmcaid,City Clerk FIRST BANK OF MISSOURI, as Bond Trustee [SEAL] Name: Pete Gardner Title: Vice President BABRA,LLC, a Missouri limited liability co any, By: BK Properties, a Missouri limite ability company,Manager By: Kenn G.Block,Trustee of the Kenneth G. Bl_qK Trust,dated January 11, 1991,as wfiended,Manager S-1 CONSENT OF BONDOWNER The undersigned,as the sole owner of all of the Bonds, consents to the execution and delivery of the Omnibus Amendment to Bond Documents dated as of October 18, 2016, between the City of Riverside,Missouri,BABRA,LLC and First Bank of Missouri. Dated: October 1.9 2016. BABRA,LLC, a Missouri limited liability company, By: BK Properties,LLC, a Missouri limi abilic mp� M r By: Kenn Block,Trustee of the Kenneth G. Block Trust,dated January 11, 1991,as amended,Manager S-2 EXHIBIT A FORM OF BONDS THIS BOND OR ANYPORTIONHEREOFHAY BE TRANSFERRED,ASSIGNED OR NEGOTIATED ONLYAS PROVIDED IN THE HEREINDESCRIBED INDENTURE. No.2 UNITED STATES OF AMERICA STATE OF MISSOURI COUNTY OF PLATTE CITY OF RIVERSIDE,MISSOURI TAXABLE INDUSTRIAL REVENUE BOND (BABRA,LLC PROJECT) SERIES 2015 THE CITY OF RIVERSIDE,MISSOURI,a fourth-class city organized and existing under the laws of the State of Missouri (the "Issuer"), for value received, promises to pay, but solely from the source hereinafter referred to,to BABRA,LLC or registered assigns,on December 1,2017,the maximum principal amount of FOURTEEN MILLION DOLLARS or such lesser amount as may be outstanding hereunder as reflected in the bond registration books maintained by the Trustee. The registered owner shall note the principal amount outstanding hereunder in the Table of Cumulative Outstanding Principal Amount attached hereto, provided, however, that the registration books maintained by the Trustee shall be the official record of the Cumulative Outstanding Principal Amount of this Bond,in any coin or currency of the United States of America which on the date of payment thereof is legal tender for the payment of public and private debts,and in like manner to pay to the registered owner hereof, either by check or draft mailed to the registered owner at a stated address as it appears on the bond registration books of the Issuer kept by the Trustee under the within mentioned Indenture or, in certain situations authorized in the Indenture,by internal bank transfer or by wire transfer to an account in a commercial bank or savings institution located in the continental United States, interest on the Cumulative Outstanding Principal Amount (as hereinafter defined) at the rate of 2.00% per annum payable in arrears on January 1,2016,and continuing thereafter on each January I until the said Cumulative Outstanding Principal Amount is paid in full; provided, however, in no event shall the interest rate on the Bond exceed the maximum permitted amount under Section 108.170 of the Revised Statutes of Missouri.. Interest shall be computed on the basis of a year of 360 days consisting of 12 months of 30 days each. Principal on this Bond shall be payable on the maturity date set forth above,unless such principal shall have been paid as a result of a redemption of the Bonds prior to such maturity date. A-1 As used herein, the term "Cumulative Outstanding Principal Amount" means an amount equal to the aggregate of all amounts paid into the Project Fund in accordance with the terms of the hereinafter defined Indenture,as reflected in the bond registration books maintained by the Trustee. The Trustee shall keep and maintain a record of the amounts deposited into the Project Fund pursuant to the terms of the Indenture as"Principal Amount Deposited into Project Fund"and shall enter the aggregate principal amount of this Bond then outstanding on its records as the "Cumulative Outstanding Principal Amount" on its records maintained for this Bond. On each date upon which a portion of the Cumulative Outstanding Principal Amount is paid to the registered owner hereof, pursuant to the optional redemption provisions of the Indenture, the Trustee shall enter on its records the principal amount paid on the Bond as"Principal Amount Paid Pursuant to Optional Redemption Provisions,"and shall enter the then outstanding principal amount of this Bond as "Cumulative Outstanding Principal Amount" on its records. The registered owner may from time to time enter the respective amounts deposited into the Project Fund pursuant to the terms of the Indenture under the column headed "Principal Amount Deposited Into Project Fund"on the attached Table of Cumulative Outstanding Principal Amount(the"Table")and may enter the aggregate principal amount of this Bond then outstanding under the column headed "Cumulative Outstanding Principal Amounf' on the attached Table. On each date upon which a portion of the Cumulative Outstanding Principal Amount is paid to the registered owner hereof pursuant to the optional redemption provisions of the Indenture, the registered owner may enter the principal amount paid on this Bond under the column headed "Principal Amount Paid Pursuant to Optional Redemption Provisions" on the Table and may enter the then outstanding principal amount of this Bond under the column headed "Cumulative Outstanding Principal Amount"on the Table. However,the records maintained by the Trustee as to amounts deposited into the Project Fund or principal amounts paid on this Bond shall be the official records of the Cumulative Outstanding Principal Amount for all purposes. THIS BOND is a duly authorized Bond of the Issuer designated "City of Riverside, Missouri Taxable Industrial Revenue Bonds (BABRA, LLC Project), Series 2015," in the maximum aggregate principal amount of$14,000,000 (the`Bonds'),to be issued for the purpose of providing funds to pay the cost of acquiring,constructing and equipping an industrial distribution warehouse project,consisting of an approximately 245,000 square foot facility, including land, buildings, structures, improvements and fixtures(the"Project'),to be leased to BABRA,LLC,a Missouri limited liability comapny (the"Tenant"), under the terms of a Lease Agreement dated as of January 1,2015 (said Lease Agreement,as amended and supplemented from time to time in accordance with the provisions thereof,being herein called the"Lease"), between the Issuer and the Tenant, all pursuant to the authority of and in full compliance with the provisions, restrictions and limitations and Article VI, Section 27(b) of the Missouri Constitution and Sections 100.010 through 100.200, inclusive, of the Revised Statutes of Missouri, as amended, and pursuant to proceedings duly had by the governing body of the Issuer. THE BONDS are issued under and are equally and ratably secured and entitled to the protection given by a Trust Indenture dated as of January 1,2015 (said Trust Indenture,as amended and supplemented from time to time in accordance with the provisions thereof, being herein called the "Indenture"), between the Issuer and FIRST BANK OF MISSOURI, as trustee (the "Trustee"). Subject to the terms and conditions set forth therein,the Indenture permits the Issuer to issue Additional Bonds (as defined therein) secured by the Indenture on a parity with the Bonds. Reference is hereby made to the Indenture for a description of the provisions, among others, with respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the Issuer, the Trustee and the owners of the Bonds, and the terns upon which the Bonds are issued and secured. A-2 THIS BOND shall be subject to redemption and payment as provided in the Indenture: In the event the Bonds are to be called for redemption as provided in paragraphs(a) or(b)above, the Tenant shall deliver written notice to the Issuer and the Trustee that it has elected to redeem all or a portion of the Bonds in accordance with paragraph (a) or(b)above at least ten days prior to the scheduled redemption date. The Trustee shall then deliver written notice to the Owner of this Bond at least five days prior to the scheduled redemption date by first class mail stating the date upon which the Bonds will be redeemed and paid. THE BONDS are special obligations of the Issuer payable solely out of the rents, revenues and receipts derived by the Issuer from the Project and not from any other fund or source of the Issuer, and are secured by a pledge and assignment of the Project and of such rents, revenues and receipts, including all rentals and other amounts to be received by the Issuer under and pursuant to the Lease,all as provided in the Indenture. The Bonds do not constitute general obligations of the Issuer or the State of Missouri, and neither the Issuer nor said State shall be liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction,and are not payable in any manner by taxation. Pursuant to the provisions of the Lease, rental payments sufficient for the prompt payment when due of the principal of and interest on the Bonds are to be paid by the Tenant directly to the Trustee for the account of the Issuer and deposited in a special account created by the Issuer and designated the "City of Riverside, Missouri, Taxable Industrial Revenue Bond Fund —BABRA, LLC Project, Series 2015." THE OWNER of this Bond shall have no right to enforce the provision of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then Outstanding may become or may be declared due and payable before the stated maturity thereof, together with interest accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the extent and in the circumstances permitted by the Indenture. SUBJECT TO the requirements for transfer set forth above in the legend contained on the face of this Bond,this Bond is transferable,as provided in the Indenture,only upon the books of the Issuer kept for that purpose at the above-mentioned office of the Trustee by the registered owner hereof in person or by such person's duly authorized attorney, upon surrender of this Bond together with a written instrument of transfer satisfactory to the Trustee duly executed by the registered owner or such person's duly authorized attorney, and thereupon a new fully registered Bond or Bonds,without coupons, and in the same aggregate principal amounts, shall be issued to the transferee in exchange therefor as provided in the Indenture, and upon payment of the charges therein prescribed. The Issuer, the Trustee and any Paying Agent may deem and treat the person in whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment of,or on account of,the principal or redemption price hereof and interest due hereon and for all other purposes. THE BONDS are issuable in the form of one fully registered Bond without coupons in the maximum principal denomination of$14,000,000. THIS BOND shall not be valid or become obligatory for any purposes or be entitled to any security or benefit under the Indenture until the Certificate of Authentication hereon shall have been executed by the Trustee. A-3 IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and laws of the State of Missouri. IN WITNESS WHEREOF, the City of Riverside,Missouri, has caused this Bond to be executed in its name by the manual or facsimile signature of its Mayor, attested by the manual or facsimile signature of its City Clerk and its corporate seal to be affixed hereto or imprinted hereon,and has caused this Bond to be dated as of the date set forth above. CITY OF RIVERSIDE,AUSSOURI BY ° a Mayor (SBAL) A17EST;' City Clerk A-4 TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT Principal Amount Cumulative Principal Amount Paid Pursuant to Outstanding Notation Deposited Into Redemption Principal Made Date Project Fund Provisions Amount By A-5 (FORM OF ASSIGNMENT) (NOTE RESTRICTIONS ON TRANSFERS) FOR VALUE RECEIVED,the undersigned hereby sells,assigns and transfers unto Print or Typewrite Name,Address and Social Security or other Taxpayer Identification Number of Transferee the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Bond on the books kept by the Trustee for the registration and transfer of Bonds,with full power of substitution in the premises. Dated: NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular. Signature Guaranteed By: [Seal] (Name of Eligible Guarantor Institution(as) defined by SEC Rule 17Ad-15, 12CFR 240.17Ad-15,or any similar rule which Trustee deems applicable)) By Title: A-6 CERTIFICATE OF AUTHENTICATION This Bond is the Taxable Industrial Revenue Bond(BABRA, LLC Project), Series 2015,described in the Trust Indenture. The effective date of registration of this Bond is set forth below. FIRST BANK OF MISSOURI,as Trustee By Date Name: Title: A-7 GILMOkEBELL 816-221-1000 MAIN GILMORE 6 BELL PC ST.LOUIS 816-221-1018 FAX 2405 GRAND BOULEVARD,SUITE 1100 WICHITA GILMOREBELL.COM KANSAS CITY.MISSOURI 64108-2521 OMAHA I LINCOLN October 20,2016 VIA MESSENGER Mr.Pete Gardner,Vice President First Bank of Missouri 701 Minnesota Avenue,Suite 206 Kansas City,Kansas 66101 Re: $14,000,000 Industrial Revenue Bonds (BASRA, LLC Project), Series 2014 of the City of Riverside,Missouri Dear Pete: In connection with the above-referenced issue, enclosed please find Bond R-2, maturing on December 1,2017,in the aggregate principal amount of$14,000,000,for authentication. Please cancel Bond R-1. If you have any questions,please do not hesitate to call. Very truly yours, 4aWZ7 Gary A. Anderson GAA:plk Encl.