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HomeMy WebLinkAbout1515 First Supplemental Indenture of Trust Tax-Exempt Industrial Revenue Bonds Series 2012A Premium Waters BILL NO. 2017-013 ORDINANCE NO. ISIS- AN ORDINANCE AUTHORIZING AND APPROVING A FIRST SUPPLEMENTAL INDENTURE OF TRUST IN CONNECTION WITH TAX-EXEMPT INDUSTRIAL REVENUE BONDS (PREMIUM WATERS, INC. PROJECT), SERIES 2012A; AND AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE OF THE BONDS. WHEREAS, the City of Riverside, Missouri, a fourth-class city and political subdivision of the State of Missouri (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 (RSMo) (collectively, the "Act"), to purchase, construct, extend and improve certain projects (as defined in Section 100.010 RSMo) and to issue industrial development revenue bonds for the purpose of providing funds to pay the costs of such projects and to lease or otherwise dispose of such projects 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, the City, in accordance with Section 100.050 of the Act, has previously approved a plan for industrial development (the "Plan") for Premium Waters, Inc., a Minnesota corporation (together with any successors or assigns, the "Company"), with respect to a project consisting of the acquisition and installation of new equipment and machinery at the Company's existing plant (the "Project"), after notice of the Project was given to the taxing jurisdictions in accordance with Section 100.059.1 of the Act; and WHEREAS, the City issued its $10,000,000 Tax-Exempt Industrial Development Revenue Bonds (Premium Waters, Inc. Project), Series 2012 A(the "Series 2012A Bonds") and its $5,000,000 Subordinate Taxable Industrial Revenue Bonds (Premium Waters, Inc. Project) Series 2012B (the "Series 2012B Bonds") pursuant to and Indenture of Trust dated as of February 1, 2012 (the "Indenture") between the City and Wells Fargo Bank, National Association (the "Trustee") and the City leased the Project to the Company pursuant to a Lease Agreement dated as of February 1, 2012 between the City and the Company; and WHEREAS, the Series 2012B Bonds are no longer outstanding under the Indenture; and WHEREAS, the City finds and determines that it is necessary and desirable in connection with the Series 2012A Bonds that the City enter into certain documents, and that the City take certain other actions and approve the execution of certain other documents as herein provided; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: SECTION 1. APPROVAL AND AUTHORIZATION OF DOCUMENTS. The First Supplemental Indenture of Trust dated as of the date set forth therein (the "Supplemental Indenture"), between the City and the Trustee and consented to by the Company is hereby approved in substantially the form presented to the Board of Aldermen at this meeting (a copy of which shall be filed in the records of the City), and the City is hereby authorized to execute and deliver the Supplemental Indenture with such changes therein as shall be approved by the officials of the City executing such document, such officials' signatures thereon being conclusive evidence of their approval thereof. SECTION 2. EXECUTION OF DOCUMENTS. The City is hereby authorized to enter into and the Mayor and City Clerk are hereby authorized and directed to execute and deliver, for and on behalf of and as the act and deed of the City, the Supplemental Indenture and such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance. SECTION 3. SEVERABILITY. The sections, paragraphs, sentences, clauses and phrases of this Ordinance shall be severable. In the event that any such section, paragraph, sentence, clause or phrase of this Ordinance is found by a court of competent jurisdiction to be invalid, the remaining portions of this Ordinance are valid, unless the court finds the valid portions of the Ordinance are so essential to and inseparably connected with and dependent upon the void portion that it cannot be presumed that the Board of Aldermen has enacted the valid portions without the void ones, or unless the court finds that the valid portions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. SECTION 4. FURTHER AUTHORITY. The officers of the City, including the Mayor and the City Clerk, are hereby authorized and directed to execute all documents and take such actions as they may deem necessary or advisable in order to carry out and perform the purposes of this Ordinance and to make ministerial alterations, changes or additions in the foregoing agreements, statements, instruments and other documents herein approved, authorized and confirmed which they may approve, and the execution or taking of such action shall be conclusive evidence of such necessity or advisability. SECTIONS. GOVERNING LAW. This Ordinance shall be governed exclusively by and construed in accordance with the applicable laws of the State of Missouri. SECTION 6. CONFLICTS. All ordinances or parts of ordinances in conflict herewith are hereby repealed. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect and be in full force from and after the date of its passage by the Board of Aldermen. 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 21st day of February, 2017. thleen L. Rose, M yor •ATfESTr Robin Kincaid, City Clerk -2- KUTAK ROCK LLP DRAFT 02/15/17 FIRST SUPPLEMENTAL INDENTURE OF TRUST THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST (this "First Supplement") effective as of February 28, 2017 (the "Effective Date"), between the CITY OF RIVERSIDE, MISSOURI (the "Issuer") and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the"Trustee"). WITNESSETH : WHEREAS, the Issuer and the Trustee have previously entered into the Indenture of Trust dated as of February 1, 2012 (the "Original Indenture"), respecting the Issuer's $10,000,000 Tax-Exempt Industrial Revenue Bonds (Premium Waters, Inc. Project) Series 2012A (the "Series 2012A Bonds") and $5,000,000 Subordinate Taxable Industrial Revenue Bonds(Premium Waters, Inc. Project) Series 2012B (the "Series 2012B Bonds"); WHEREAS, the Series 2012B Bonds are no longer outstanding under the Original Indenture; WHEREAS, the Issuer and the Trustee wish to amend the provisions of the Original Indenture as herein provided. NOW, THEREFORE, in consideration of the foregoing and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I INTENTION OF PARTIES,INDENTURE PROVISIONS The Issuer and the Trustee have entered into this First Supplement pursuant to Article VIII of the Original Indenture to amend their rights and obligations set forth in the Original Indenture. The terms of the Original Indenture, as amended by this First Supplement (as so amended, the "Indenture"), shall govern the rights and obligations of the Issuer and the Trustee in connection with the transactions contemplated by the Indenture. Capitalized terms used but not defined in this First Supplement shall have the respective meanings assigned thereto in the Original Indenture. 4834-0364-0739.2 ARTICLE II AMENDMENTS Section 2.01. Amendments to Definitions. The Original Indenture is hereby amended by deleting the definition of Initial Bank Purchase Date and in place thereof inserting the following: "Initial Bank Purchase Date"means February 28, 2022. ARTICLE III FULL FORCE AND EFFECT The Original Indenture is hereby amended to the extent provided in this First Supplement and, except as specifically provided herein, the Original Indenture shall remain in full force and effect in accordance with its terms. ARTICLE IV GOVERNING LAW THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FIRST SUPPLEMENT SHALL BE GOVERNED AS PROVIDED IN SECTION 9.08 OF THE ORIGINAL INDENTURE. ARTICLE V HEADINGS Section headings in this First Supplement are included herein for convenience of reference only and shall not have any effect for purposes of interpretation or construction of the terms of this First Supplement. ARTICLE VI COUNTERPARTS This First Supplement may be signed in any number of counterpart copies, but all such copies shall constitute one and the same instrument. ARTICLE VII REPRESENTATIONS Each parry hereto hereby represents and warrants to the other that this First Supplement has been duly authorized and validly executed by it and that the Indenture as hereby amended constitutes its valid obligation enforceable in accordance with its terms. The representations and 2 4834-03644739.2 warranties contained in the Original Indenture are hereby remade by each parry hereto as of the Effective Date. For the avoidance of doubt, all references in such representations and warranties to defined terms shall be deemed to refer to such terms as defined in the Original Indenture, as amended by this First Supplement. ARTICLE VIII ELECTRONIC SIGNATURES The parties agree that the electronic signature of a party to this First Supplement, including all acknowledgements, authorizations, directions, waivers and consents thereto (or any amendment or supplement thereto) shall be as valid as an original signature of such party and shall be effective to bind such party to this First Supplement. The parties agree that any electronically signed document (including this First Supplement) shall be deemed (i)to be "written" or"in writing," (ii)to have been signed, and (iii)to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. For purposes hereof, "electronic signature" means a manually-signed original signature that is then transmitted by electronic means; "transmitted by electronic means" means sent in the form of a facsimile or sent via the Internet as a pdf(portable document format) or other replicating image attached to an e-mail message; and, "electronically signed document' means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature. Paper copies or "printouts", if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule. [Remainder of page intentionally left blank] 3 4834-0364-0739.2 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture of Trust to be executed, sealed and delivered in their names and on their behalf by their respective duly authorized representatives, all as of the day and year first above written. CITY OF RIVERSIDE, MISSOURI By kafhleen L. Rose Mayor JSEAL) r, a ATTEST:, 3 4 BY ( , Robin Kincaid, ityClerk [Signatures continued on next page] 4834-036411739.2 [Signature page to First Supplemental Indenture of Trust] WELLS FARGO BANK,NATIONAL ASSOCIATION, as Trustee By Name Title 4834-0364-4739.2 ACKNOWLEDGMENT,AUTHORIZATION,DIRECTION, WAIVER AND CONSENT(BANK) The undersigned, Wells Fargo Bank, National Association, hereby certifies that it is (a)the legal, registered and beneficial owner of one hundred percent (100%) in aggregate principal amount of the Outstanding City of Riverside, Missouri $10,000,000 Tax-Exempt Industrial Revenue Bonds (Premium Waters, Inc. Project) Series 2012A (the "Series 2012A Bonds") which were issued under the Indenture of Trust dated as of February 1, 2012 (the "Indenture"), between the City of Riverside, Missouri (the "Issuer") and Wells Fargo Bank, National Association, as trustee (the "Trustee"), and (b)the Bank (under and as defined in the Indenture). The undersigned hereby(i)acknowledges and consents to the execution and delivery of the First Supplemental Indenture of Trust dated as of February 28, 2017, between the Issuer and the Trustee to which this Acknowledgement, Authorization, Direction, Waiver and Consent is attached (the "First Supplemental Indenture") for any and all purposes as may be required under the Indenture, the Loan Agreement and otherwise, and (ii)authorizes and directs the Trustee to execute and deliver the First Supplemental Indenture. The undersigned further hereby irrevocably waives any notice required to have been received by it and any and all other requirements which may otherwise be required as a condition to the execution, delivery and/or effectiveness of the First Supplemental Indenture or the amendments effected thereby. Capitalized terms used but undefined herein shall have the respective meanings ascribed thereto in the First Supplemental Indenture. WELLS FARGO BANK,NATIONAL ASSOCIATION, as Bank By Name Title 4834-0364-0739.2 ACKNOWLEDGMENT,AUTHORIZATION,DIRECTION, AGREEMENT,WAIVER AND CONSENT(COMPANY) The undersigned hereby (a)certifies that it is the Company (under and as defined in the Loan Agreement and in the Indenture, each as defined in the First Supplemental Indenture of Trust dated as of February 28, 2017, between the City of Riverside, Missouri and Wells Fargo Bank, National Association, as trustee (the "Trustee"), to which this Acknowledgement, Authorization, Direction, Agreement, Waiver and Consent is attached (the "First Supplemental Indenture")), (b)acknowledges and consents to the execution and delivery of the First Supplemental Indenture for any and all purposes as may be required under the Indenture, the Loan Agreement and otherwise, and (c) authorizes and directs the Trustee to execute and deliver the First Supplemental Indenture. The undersigned further hereby irrevocably waives any notice required to have been received by it and any and all other requirements which may otherwise be required as a condition to the execution, delivery and/or effectiveness of the First Supplemental Indenture or the amendments effected thereby. Capitalized terms used but undefined herein shall have the respective meanings ascribed thereto in the First Supplemental Indenture. PREMIUM WATERS, INC. By Name Title 4834-0364-4739.2