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HomeMy WebLinkAbout1583 Taxable Industrial Revenue Bonds Series 2017 Necco Coffee BILL NO. 2018-011 ORDINANCE NO. /i X3 AN ORDINANCE AUTHORIZING THE DELIVERY OF AN OMNIBUS ASSIGNMENT, AND ASSUMPTION OF BOND DOCUMENTS RELATED TO THE CITY'S TAXABLE INDUSTRIAL REVENUE BONDS (NECCO COFFEE CO., INC.), SERIES 2017, TO MAKE CERTAIN MODIFICATIONS TO THE BOND DOCUMENTS RELATED TO SAID 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, pursuant to the Act, the governing body of the City passed Ordinance No. 1572 (the"Ordinance") on December 19, 2017, authorizing the issuance of its Taxable Industrial Revenue Bonds (Necco Coffee Co., Inc. Project), Series 2017, in the maximum aggregate principal amount of$4,000,000 (the "Bonds"), for the purpose of (a) designing and constructing an office and warehouse building at 4380 NW Belgium Boulevard in Riverside, Missouri (the "Project Site"), (b) leasing the Project Site and Project Improvements (as hereinafter defined) to Anthony Simone and Edith Simone (the "Company") for the construction of the Project and installation fixtures relating thereto (collectively, the "Project Improvements"), and (c) paying a portion of the costs of issuing the Bonds; and WHEREAS, pursuant to the Ordinance, the City (i) entered into a Trust Indenture dated as of December 1, 2017 (the"Indenture")with Security Bank of Kansas City, to issue and secure the Bonds, (ii) entered into a Lease Agreement dated as of December 1, 2017 (the "Lease Agreement") with Anthony and Edith Simone, 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, (iii) entered into a Memorandum of Lease Agreement dated December 1, 2017 (the "Lease Memorandum") with Anthony and Edith Simone, which was filed for record December 27, 2017 and recorded as Document No. 2017017146 in the office of the Recorder of Deeds of Platte County, Missouri, and (iv) entered into a Bond Purchase Agreement dated as of December 1, 2017 with the City (the "BPA," and together with the Indenture, the Lease Agreement and the Lease Memorandum, collectively referred to herein as the "Bond Documents"); and WHEREAS, Anthony and Edith Simone desire to assign to Belgium Bottoms 3, and Belgium Bottoms 3 desires to assume from Anthony and Edith Simone, all of Anthony and Edith Simone's rights, benefits, privileges, and obligations under the Bonds and the Lease Agreement. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI,AS FOLLOWS: Section 1. Authorization of Omnibus Assignment and Assumption of Bond Documents. The City is hereby authorized to enter into the Omnibus Assignment and Assumption dated as of the date set forth therein (the "Agreement"), with Anthony and Edith Simone, Belgium Bottoms 3 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 Agreement, 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 Agreement. Section 3. Effective Date. This Ordinance shall take effect and be in full force from and after its passage and adoption by the City Council and approval by the Mayor. 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 6th day of March, 2018. Kbithleen L. Rose, Mayor ATTESTt ° u Robin Ki caid, ity'Clerk .... h _ APPROVED AS TO FORM: City Attorney -2- OMNIBUS ASSIGNMENT AND ASSUMPTION OF BOND DOCUMENTS THIS OMNIBUS ASSIGNMENT AND ASSUMPTION OF BOND DOCUMENTS (the "Agreement") is made and entered into as of March , 2018 (the "Effective Date"), by the CITY OF RIVERSIDE,MISSOURI,a fourth-class city organized and existing under the laws of the State of Missouri (the "City'), SECURITY BANK OF KANSAS CITY, a banking corporation duly organized and existing under the laws of the State of Missouri("Security Bank'),ANTHONY SIMONE AND EDITH SIMONE, husband and wife("Anthony and Edith Simone'),and BELGIUM BOTTOMS 3,LLC,a Missouri limited liability company("Belgium Bottoms 3"). 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(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 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. 1572(the "Ordinance") on December 19, 2017, authorizing the City to issue its Taxable Industrial Revenue Bonds (Necco Coffee Co.,Inc.Project),Series 2017,the maximum aggregate principal amount of$4,000,000(the "Bonds"), for the purpose of(a)designing and constructing an office and warehouse building at 4380 NW Belgium Boulevard in Riverside, Missouri (the "Project Site"), (b) leasing the Project Site and Project Improvements (as hereinafter defined) to Anthony Simone and Edith Simone (the "Company") for the construction of the Project and installation fixtures relating thereto (collectively, the "Project Improvements"),and(c)paying a portion of the costs of issuing the Bonds; and WHEREAS, Pursuant to the Ordinance, the City (i) entered into a Trust Indenture dated as of December 1,2017(the"Indenture")with Security Bank of Kansas City,to issue and secure the Bonds,(ii) entered into a Lease Agreement dated as of December 1,2017(the"Lease Agreement")with Anthony and Edith Simone, 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, (iii) entered into a Memorandum of Lease Agreement dated December 1, 2017 (the "Lease Memorandum") with Anthony and Edith Simone, which was filed for record December 27, 2017 and recorded as Document No.2017017146 in the office of the Recorder of Deeds of Platte County, Missouri, and(iv)entered into a Bond Purchase Agreement dated as of December 1,2017 with the City(the"BPA," and together with the Indenture,the Lease Agreement and the Lease Memorandum,collectively referred to herein as the"Bond Documents"); and WHEREAS, Anthony and Edith Simone desire to assign to Belgium Bottoms 3, and Belgium Bottoms 3 desires to assume from Anthony and Edith Simone, all of Anthony and Edith Simone's rights, benefits, privileges, and obligations under the Bonds and the Lease Agreement;and WHEREAS, all capitalized terms which are not expressly defined herein shall have the same meaning as ascribed in the Lease Agreement. NOW THEREFORE, for and in consideration of mutual covenants, the City, Security Bank of Kansas City,Anthony and Edith Simone,and Belgium Bottoms 3 do each hereby agree as follows: 1 ARTICLE 1:ASSIGNMENT AND ASSUMPTION Section 101. Assignment. Anthony and Edith Simone do hereby assign,transfer, set over and deliver unto Assignee all of Anthony and Edith Simone's right, title and interest in and to the Bonds and the Lease Agreement. Section 102. Assumption. Belgium Bottoms 3 does hereby assume and shall timely perform all of the terns, covenants, conditions, and obligations of Anthony and Edith Simone under the Lease Agreement which are required to be performed by Anthony and Edith Simone thereunder. Section 103. Binding Effect. All of the covenants, terms and conditions set forth herein shall be binding upon and shall inure to the benefit of all the parties hereto and their respective heirs, legal representatives,successors and assigns. Section 104. Release. The City hereby releases Anthony and Edith Simone from any obligations that are part of the Lease Agreement,as of the date hereof. Section 105. Notice. All notices, requests and other communications to Anthony and Edith Simone under the Lease Agreement shall hereafter be to Belgium Bottoms 3 at the following address: Belgium Bottoms 3,LLC 2345 Grand Boulevard,Suite 1600 Kansas City,Missouri 64108 ARTICLE 2: GENERAL PROVISIONS Section 201. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri. Section 202. Ratification of Bond Documents. The Bond Documents, as hereby amended, are acknowledged,rated and confirmed in all respects as being valid,existing and of full force and effect. The execution, delivery and effectiveness of this Agreement 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 203. Severability. In the event any terms or provisions of this Agreement shall be held to be illegal, invalid, or unenforceable or inoperative as a matter of law,the remaining terms and provisions of this Assignment shall not be affected thereby,but each such term and provision shall be valid and shall remain in full force and effect. Section 204. 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. 2 Section 205. Further Assurances. The parties shall execute and deliver to the other party such other and further instruments of conveyance,assignment,transfer,and consent as said party may reasonably request to accomplish the purpose of this Agreement. Section 206. Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed an original,but all of which together shall constitute the same instrument. Section 207. 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 3 IN WITNESS WHEREOF,this Assignment and Assumption Agreement is entered into as of the Effective Date above written. CITY OF RIVERSIDE,MISSOURI,a Missouri fourth-class city By: leen L.Rose,Mayo [SEAL] Attest: ¢Robin Kin6oid, City Clerk 's- • SECURITY BANK OF KANSAS CITY • a state banking corporation .,1 By: Pete Gardner,Vice President ANTHONY SIMONE AND EDITH SIMONE, husband and wife By: Anthony Simone By: Edith Simone BELGIUM BOTTOMS 3,LLC, a Missouri limited liability company By: 4 EXHIBIT C (FORM OF BOND) This Bond has not been registered under the Securities Act of 1933,as amended,or any state securities laws, and this Bond may not be transferred unless (i) the Issuer consents in writing to such transfer, and (ii) the Issuer and the Trustee are furnished a written legal opinion from counsel acceptable to the Issuer,the Trustee and the Tenant,to the effect that such transfer is exempt from the registration requirements of the Securities Act of 1933, as amended, and any applicable state securities laws. This Bond may be transferred to any successor of the Tenant or any entity owned by or under common ownership with the Tenant without the necessity of obtaining the Issuer's consent or such an opinion. Date: March_,2018 UNITED STATES OF AMERICA STATE OF MISSOURI COUNTY OF PLATTE CITY OF RIVERSIDE,MISSOURI TAXABLE INDUSTRIAL REVENUE BOND (NECCO COFFEE CO.,LLC PROJECT) SERIES 2017 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 BELGIUM BOTTOMS 3,LLC or registered assigns,on December 1,2018,the aggregate principal amount of FOURTEEN MILLION($14,000,000.00) 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 Outstanding Principal Amount attached hereto,provided,however,that the registration books maintained by the Trustee shall be the official record of the 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 Outstanding Principal Amount(as hereinafter defined)at the rate of 2.00%per annum payable in arrears on the maturity date or upon earlier redemption,and,unless paid in full,continuing thereafter 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. As used herein,the term "Outstanding Principal Amount"means the aggregate of principal amount of all Bonds outstanding under the provisions of the hereinafter defined Indenture,as reflected in the records 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. Unless the Bond is held by the Trustee, 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 Amount" 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, unless the Bonds is held by the Trustee, 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(Necco Coffee Co,Inc.Project),Series 2017,"in the maximum aggregate principal amount of$4,000,000 (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 195,000 square foot facility,including land,buildings,structures,improvements and fixtures (the"Project',to be leased to Anthony Simone and Edith Simone,husband and wife(the"Company"),under the terms of a Lease Agreement dated as of December 1, 2017 (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 Company, 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. THIS BOND is issued under and is equally and ratably secured and entitled to the protection given by a Trust Indenture dated as of December 1,2017(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 Security Bank of Kansas City, 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 terms upon which the Bonds are issued and secured. 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 Company 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 fust class mail stating the date upon which the Bonds will be redeemed and paid. THIS BOND is a special obligation 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 Company 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—Neceo Coffee Co.,Inc.Project,Series 2017." 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 denomination of$0.01 or any multiple thereof up to the maximum principal denomination of$4,000,000. 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. 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. i l CITY OF RIVERSIDE,MISSOURI r e t J B , . Y scaA • Mayor (SEAL) ATTEST:_ .. • ' ti By �.� _ City Clerk TABLE OF OUTSTANDING PRINCIPAL AMOUNT Principal Amount Principal Amount Paid Pursuant to Outstanding Notation Deposited Into Redemption Principal Made Date Project Fund Provisions Amount By (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: CERTIFICATE OF AUTHENTICATION This Bond is the Taxable Industrial Revenue Bond(Necco Coffee Co., Inc. Project),Series 2017, described in the Trust Indenture. The effective date of registration of this Bond is set forth below. SECURITY BANK OF KANSAS CITY,as Trustee BY Date Name: Title: