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HomeMy WebLinkAbout2007-083 - T.E. Woods and McCray Lumber BILL N0.2007-83 ORDINANCE N0.2007-83 AN ORDINANCE APPROVING COLLATERAL ASSIGNMENT OF TIF AGREEMENT, AND APPROVING OTHER ACTIONS RELATED THERETO. WHEREAS, pursuant to the Real Property Tax Increment Allocation Redevelopment Act, Sections 99.800 to 99.865 of the Revised Statutes of Missouri, as amended (the "Act"), the Tax Increment Financing Commission of Riverside, Missouri did recommend, and the Board of Aldermen of the City did approve the "Upper Gateway Mixed Use Redevelopment Plan" (the "Redevelopment Plan"); and WHEREAS, T.E. Woods Construction, Inc. ("Developer") and the City entered into a Redevelopment Agreement dated December 29, 2006 relating to the Redevelopment Plan; and WHEREAS, the Developer, in connection with its financing, has requested that the City enter into the Collateral Assignment of TIF Agreement; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSH)E, MISSOURI, AS FOLLOWS: Section 1. The Collateral Assignment of TIF Agreement, in substantially the form attached as Exhibit A (with such changes, additions and deletions as maybe approved by the officer executing such document, such execution being conclusive proof of such approval), the execution and delivery of such agreement, and the performance of the City obligations thereunder are approved. The Mayor is authorized and directed to execute and deliver such Agreement on behalf of the City. Section 2. The Mayor, the City Clerk and other officers and agents of the City are hereby authorized and directed to execute all documents and take such steps as they deem necessary and advisable in order to carry out and perform the intent of this Ordinance. Section 3. This Ordinance shall take effect immediately upon passage. SED AND ADOPTED by the Board of Aldermen of the City of Riverside, Missouri this ~' day of July, 2007. ~~~ Kathleen L. Rose, Mayor, ATTE L ise Rusick, City Clerk COLLATERAL ASSIGNMENT OF TIF AGREEMENT This COLLATERAL ASSIGNMENT OF TIF AGREEMENT dated as of ,~, 2007 (the "Assignment"), is executed by T.E. WOODS CONSTRUCTION, INC., a Mi souri corporation ("Debtor', and THE CITY OF RIVERSIDE, MISSOURI (the "City") to and for the benefit of MCCRAY LUMBER COMPANY, a Missouri corporation, its successors and assigns ("Secured Party"). RECITALS: A. Secured Party has agreed to make a certain loan (the "Loan") to Debtor in the principal amount of $1,200,000.00 as evidenced by that certain Promissory Note dated of even date herewith in the principal amount of the Loan, executed by Debtor and made payable to the order of Secured Party (the "Note"). B. The Note is secured by, among other things, that certain Deed of Trust, Security Agreement, Assignment of Leases and Rents, and Fixture Filing dated of even date herewith, executed by Debtor to and for the benefit of Secured Party (the "Deed of Trust," and together with the Note, this Assignment and all of the other documents and instruments evidencing, securing or otherwise executed in connection with the Loan hereinafter collectively, the "Loan Documents"). C. .Secured Party requires as a condition precedent to its making the Loan that Debtor enter into this Assignment pursuant to which Debtor collaterally assigns to Secured Party all of Debtor's right, title and interest in that certain Redevelopment Agreement dated December 29, 2006, between the City and Debtor for the implementation of the Upper Gateway Mixed Use Development Plan (the "T]F Agreement"), including the reimbursement rights of Debtor under the TIF Agreement (the "Reimbursement Rights"). NOW, THEREFORE, in consideration of the making of the Loan and as an inducement to the Secured Party to do so, and for and in consideration of the' mutual promises, covenants and agreements hereinafter set forth, Debtor hereby grants to Secured Party a security interest in; and does hereby collaterally assign, pledge, mortgage, convey and set over unto the Secured Party, any and all of the Debtor's right, title and interest in, to and under the TIF Agreement, including all amendments thereto, together with Debtor's Reimbursement Rights thereunder. In furtherance of the foregoing, the parties hereto agree as follows: 1. Debtor's Liabilities. This Assignment is made and given as collateral security for the prompt payment and performance when due of any and all indebtedness, obligations and liabilities of Debtor to Secured Party, and evidenced by or secured by or otherwise provided in the Note, the Deed of Trust, this Assignment and/or any of the other Loan Documents, all of which have been made by Debtor with or for the benefit of Secured Party, whether such indebtedness, obligations or liabilities are now existing or hereafter created, direct or indirect, OP 119896.3 ~I absolute or contingent, joint or several, due or to become due, howsoever created, evidenced or arising and howsoever acquired by Secured Party, and any and all renewals, extensions or refinancings thereof (all of the foregoing are hereinafter collectively referred to as the "Liabilities"). Upon full payment, performance and observance by Debtor of all Liabilities, this Assignment and the lien or chazge created hereby or resulting herefrom shall automatically cease to exist. 2. Debtor's Representations, Warranties and Covenants. Debtor represents, warrants and covenants to Secured Party that: (a) Except for this Assignment, Debtor shall not sell, transfer, assign, pledge, encumber or mortgage all or any portion of its interest in the TIF Agreement or Reimbursement Rights (collectively the "Collateral") without the prior written consent of the Secured Party, or permit anything to be done that may materially impair the value of any of the Collateral or the security intended to be afforded by this Assignment. Debtor shall not terminate or consent to the cancellation of the T1F Agreement or amend, modify or terminate the T1F Agreement without the prior written consent of Secured Party. (b) Debtor hereby irrevocably authorizes the Secured Party at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto without the signature of the Debtor that (a) indicate the collateral and (b) contain any other information required by Section 5 of Article 9 of the Uniform Commercial Code of the jurisdiction wherein such financing statement or amendment is filed regazding the sufficiency or filing office acceptance of any financing statement or amendment, including whether Debtor is an organization, the type of organization and any Organizational Identification Number issued to Debtor. Debtor shall sign and execute alone or with Secured Party any other document or procure any documents and pay any connected costs, expenses and fees, including court costs and reasonable attomeys' fees, necessary to protect the security interest under this Assignment against the rights, interests or claims of third parties. (c) Debtor shall reimburse Secured Party for all reasonable costs, expenses and fees, including court costs and reasonable attomeys' fees, incurred for any action taken by Secured Party to remedy an "Event of Default" (as hereinafter defined) of Debtor under this Assignment, including without limitation, expenses incurred pursuant to Section 7 below, together with interest on all said amounts at a per annum rate equal to the default rate as provided in the Note. (d) Debtor will punctually and promptly perform all covenants, agreements and conditions required to be performed by Debtor under this Assignment, the Note, the Deed of Trust and the other Loan Documents, and under the TIF Agreement. (e) Debtor is the sole owner of all right, title and interest of the Developer under the TIF Agreement, and agrees that so long as any of the Liabilities remains unpaid, Debtor shall remain liable for all costs, fees and expenses which may be or become due OP 119896.43 2 ~i and payable under TIF Agreement and for all responsibilities of the Developer thereunder. (f) There are no defaults now existing under the TIF Agreement and there exists no state of facts which, with the giving of notice or the lapses of time, or both, would constitute a default under the T1F Agreement. (g) Debtor agrees to take reasonable efforts to enforce performance by the other parties to the TIF Agreement of each and every material obligation, covenant, condition and agreement to be performed by such other party. (h) Debtor has not performed any act which might prevent Debtor from performing its obligations under this Assignment or which might prevent Secured Party from enforcing its rights pursuant to the terms and provisions of this Agreement. (i) That the TIF Agreement. is valid and enforceable in accordance with its terms and has not been altered, modified, amended or terminated, nor have any of the terms and conditions thereof been waived in any manner. 3. City Warranties. Covenants and Aea~eements. The City warrants, covenants and agrees with Secured Party as follows: (a) The City hereby agrees to look solely to Debtor, its successors or assigns, for the performance of Debtor's obligations under the TIF Agreement until Secured Party, or its successors as Debtor's lender or permitted assigns, exercises its rights hereunder. (b) The City hereby consents to the assignment of the T1F Agreement and Reimbursement Rights to Secured Party as Debtor's lender, and agrees that in the event Secured Party, its successors as Debtor's lender or permitted assigns, succeed to the rights of the Debtor under the TIF Agreement, the City will, at Secured Party's option, complete its obligations under or pursuant to the terms thereof, and shall honor Secured Party's requests for reimbursement under the terms of the TIF Agreement so long as the conditions set out therein for reimbursement have been complied with. (c) The City hereby agrees to give Secured Party simultaneous notice of any event of default on the part of Debtor under the TIF Agreement and, in accordance with Section 7.3 of the TIF Agreement, such time as set forth therein to cure said default thereafter prior to exercising its remedies against Debtor for default thereunder. (d) Without waiving any of its rights, to the best of the City's knowledge, there are no defaults now existing under the TIF Agreement and there exists no state of facts which, with the giving of notice or lapse of time, or both, would constitute a default under the TIF Agreement. OP 119896.43 3 (e) Notwithstanding anything to the contrary contained in this Assignment, the City shall not be liable for any actions it takes prior to the time of actual receipt of a written notice from Secured Party notifying the City that Secured Party has exercised its rights under this Assignment with such notice being delivered to City of Riverside, Missouri, Attention: City Administrator, 2950 NW Vivion Road, Riverside, Missouri 64150, to City of Riverside, Missouri, Attention: Finance Director, 2950 NW Vivion Road, Riverside, Missouri 64150 and to John McClelland, Armstrong Teasdale LLP, 2345 Grand, Suite 2000, Kansas City, Missouri 64108. (f) The City hereby approves, without the necessity of any fiuther action on the part of the City, the transfer of the Property (as defined in the TIF Agreement) to MCCRAY LUMBER COMPANY, a Missouri corporation, by foreclosure under the Deed of Trust or conveyance in lieu of foreclosure if there is a default under the Loan Documents, provided that MCCRAY LUMBER COMPANY, a Missouri corporation, in a writing reasonably acceptable to the City, assumes all of Debtor's obligations under the T1F Agreement.. 4. Limitation of Secured Party's Liability. Notwithstanding anything to the contrary contained in the TIF Agreement, the interest of Debtor in the Collateral is assigned and transferred to Secured Party by way of collateral security only, and Secured Party by its acceptance hereof shall not be deemed to have assumed or become liable for any of the obligations or liabilities of Debtor under the TIF Agreement, whether provided for by the terms thereof, arising by operation of law or otherwise. Debtor hereby acknowledges that Debtor shall remain liable for the due performance of Debtor's obligations under the TIF Agreement to the same extent as though this Assignment had not been made. It is expressly intended, understood and agreed that this Assignment, the Note, the Deed of Trust, and the other Loan Documents are made and entered into for the sole protection and benefit of Secured Party and Debtor, and their respective successors and assigns (but in the case of assigns of Debtor, only to the extent permitted hereunder), and no other person or persons shall have any right of action hereunder or rights to the proceeds of the Loan at any time; that no third party shall under any circumstances be entitled to any equitable lien on the undisbursed proceeds of the Loan at any time. The relationship between Secured Party and Debtor is solely that of a lender and borrower, and nothing contained herein shall in any manner be construed as making the parties hereto partners or joint venturers or creating any other relationship other than lender and borrower. 5. Collateral Assignment. This Assignment is a collateral assignment, and until there is a default under the terms and conditions of this Assignment, the Note, the Deed of Trust or any of the other Loan Documents, Debtor or shall retain and enjoy all rights, title and privileges under the TIF Agreement, and until exercise by Secured Party of its rights upon an event of default under the this Assignment, the Note, the Deed of Trust or any of the other Loan Documents. Secured Party shall not be required to assume the obligations of Debtor under the TIF Agreement unless and until Secured Party shall so elect in writing after an event of default under this Assignment, the Note, the Deed of Trust or any of the other Loan Documents. OP 119896.43 4 rc. 6. Events of Default. An event of default ("Event of Default") shall occur under this Assignment upon the occurrence of (a) a breach by Debtor of any of the covenants, agreements, representations, warranties or other provisions contained herein that is not cured within the applicable grace or cure period, if any, or (b) any other event of default described in the Note, the Deed of Trust or any of the other Loan Documents. An Event of Default under this Assignment shall constitute an Event of Default under the Note, the Deed of Trust and the other Loan Documents. 7. Remedies. At any time upon or following the occurrence of any one or more Events of Default hereunder, the Secured Party shall without any further notice or any demand to the Debtor: (a) be entitled to declare all indebtedness secured hereby and by the Note and the other Loan Documents to be immediately due and payable; (b) exercise any and all rights and remedies provided hereunder or under the other Loan Documents, as well as all remedies available at law and in equity; (c) cure any default in such manner and to such extent as the Secured Party may deem reasonably necessary to protect the security hereof, including without limitation, the right to appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Secured Party; (d) at its sole option and discretion, by itself or through an agent, enjoy all rights and privileges due Debtor under the TIF Agreement so long as such Event of Default(s) still exist; and (e) exercise such other rights and remedies as are available to it at law or in equity. The rights and remedies of Secured Party under this Assignment are cumulative and are not in lieu of, but are in addition to any other rights or remedies which Secured Party may have under the other Loan Documents. Any costs and expenses of Secured Party, including reasonable attorneys' fees and expenses, incurred in connection with the enforcement of this Assignment shall be added to the indebtedness secured hereby and entitled to the security of this Assignment. 8. Waiver and Indemnity. Debtor hereby agrees that no liability shall be asserted or enforced by Debtor against Secured Party in its exercise of the powers and rights herein granted, all such liability being hereby expressly waived and released by Debtor. Debtor hereby agrees to indemnify, defend and hold Secured Party harmless from and against any and all liability, expense, cost or damage which Secured Party may incur by reason of any act or omission of either Debtor or any other party under the TIF Agreement. Notwithstanding anything contained herein to the contrary, the waiver and indemnification contained in this section shall not apply to any instance in which Secured Party has committed gross negligence or willful misconduct. 9. No Waiver by Citv. Notwithstanding any other provision of this Assignment, the parties hereto acknowledge and agree that in entering into this Assignment, the City has not waived or contracted away any of its rights pursuant to the T]F' Agreement and the City hereby expressly states that by entering into this Assignment, it is doing so solely for the purpose of providing clarification to the City's role as a result of Debtor's permitted assignment of its rights under the TIF Agreement to Secured Party. 10. Notices. With respect to the Secured Party and the Debtor, all notices and demands which are required or permitted to be given or served hereunder shall be deemed sufficiently served when delivered or mailed to the Secured Party or the Debtor, as applicable, at OP 119896.43 R. 1 , the address set forth below their respective names on the signature pages hereof. With respect to the City, all notices and demands which are required or permitted to be given or served hereunder shall be deemed sufficiently served only when delivered as set forth in Section 3(e) of this Assignment. 11. Miscellaneous. This Assignment and all rights and liabilities hereunder shall inure to the benefit of Secured Pazty and its successors and assigns, and shall be binding upon the City and Debtor and its successors and permitted assigns. This Assignment and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Missouri. All provisions of this Assignment shall be deemed valid and enforceable to the extent permitted by law. Any provision or provisions of this Assignment which aze held unenforceable, invalid or contrary to law by a court of competent jurisdiction, shall be of no force or effect, and in such event each and all of the rema_r~ng provisions of this Assignment shall subsist and remain and be fully effective according to the terms of this Assignment as though such invalid, unenforceable or unlawful provision or provision had not been included in this Assignment. Time is of the essence of this Assignment, the headings of sections in this Assignment aze for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions hereof. 12. WAIVER OF RIGHT TO TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DEBTOR, THE CITY AND SECURED PARTY, BY ITS ACCEPTANCE. OF THIS ASSIGNMENT, KNOWINGLY AND VOLUNTARILY MUTUALLY (A) WAIVE THE RIGHT TO TRIAL BY JURY IN ANY CIVII, ACTION, CLAIM, COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY CLAIM, DISPUTE, DEMAND, SUIT OR PROCEEDING ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS ASSIGNMENT, THE NOTE, THE DEED OF TRUST, ANY OF THE OTHER LOAN DOCUMENTS, OR THE LOAN EVIDENCED OR SECURED THEREBY, OR ANY RENEWAL, EXTENSION OR MODIFICATION THEREOF, OR ANY CONDUCT OF ANY PARTY RELATING THERETO, AND (B) AGREE THAT ANY SUCH ACTION, CLAIM, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. DEBTOR AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST THE SECURED PARTY OR ANY OTHER PERSON INDEMNIFIED UNDER THIS AGREEMENT ON ANY THEORY OF LIABILTTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES. 13. Facsimile Signatures. Receipt of an executed signature page to this Assignment by facsimile or other electronic transmission shall constitute effective delivery thereof. [SIGNATURE PAGES FOLLOW] OP 119896.43 6 T IN WITNESS WHEREOF, Debtor and the City have caused this Assignment to be executed and delivered as of the date first above written. T.E. WOODS CONSTRUCTION, INC., a Missouri corporation c~v / Name: N % ooi'J Title: f~ r ce. - Qnr~c ~ J u~/'f Address: 14400 E. 42nd Street, Suite 200 Independence, MO 64055 THE CITY OF RIVERSIDE, MISSOURI By: a~~.LGvyc~ Name: fs! oSG Title: ~ Q.t~/A~ Address: 2950 NW Vivion Road Riverside, MO 64150 ACCEPTED: MCCRAY LUMBER COMPANY. B Name: ~ Title: 10741 El Monte Lane Overland Park, KS 66211 Attention: Chandler McCray OP 119896.43 7 ~"