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HomeMy WebLinkAboutCRA-R-24-0067 Exhibit EEXHIBIT "E" FORM OF ESCROW DEPOSIT AGREEMENT . • cfl 16829 Exhibit E ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated , 2024, by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY (the "Issuer"), a community redevelopment agency by virtue of the laws of the State of Florida and Argent Trust Company, Tampa, Florida, a national banking association organized under the laws of the United States, as Escrow Agent, and its successors and assigns (the "Escrow Agent"); WITNESSETH: WHEREAS, the Issuer has previously authorized and issued its Refunded Bonds as hereinafter described, and the Issuer has determined to defease and refund the Refunded Bonds as to which the Debt Service for the Refunded Bonds is set forth on Schedule A; and WHEREAS, the Issuer has determined to provide for payment of the Total Debt Service for the Refunded Bonds by depositing with the Escrow Agent an amount which is at least equal to such Debt Service for the Refunded Bonds; and WHEREAS, in order to obtain certain of the funds needed for such purpose, the Issuer has authorized and is, concurrently with the delivery of this Agreement, issuing its Tax Increment Revenue Bonds, Series 2024; and WHEREAS, the execution of this Escrow Deposit Agreement and full performance of the provisions hereof shall defease and discharge the Issuer's obligations relating to the Refunded Bonds. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Issuer and the Escrow Agent agree as follows: SECTION 1. Definitions. As used herein, the following terms mean: "Agreement" means this Escrow Deposit Agreement. "Escrow Account" means the account hereby created and entitled Escrow Account established and held by the Escrow Agent pursuant to this Agreement in which cash and investments will be held for payment of the principal or value at maturity, as the case may be, interest, if applicable, and redemption premium, if applicable, on the Refunded Bonds as they come due. "Escrow Agent" means Argent Trust Company and its successors and assigns organized and existing under the laws of the United States of America, having its designated corporate trust office in Tampa, Florida, as Escrow Agent hereunder. "Escrow Requirements" means, as of any date of calculation, the sum of an amount in cash and principal amount of Refunding Securities in the Escrow Account which together with the interest to become due on the Refunding Securities will be sufficient to pay the Total Debt Service on the Refunded Bonds in accordance with Schedule A. "Issuer" means the Southeast Overtown/Park West Redevelopment Agency, a community redevelopment agency. "Refunded Bonds" means [all or a portion] of the Issuer's outstanding Tax Increment Revenue Bonds, Series 2014A. "Refunding Securities" means any Acquired Obligations, as defined in the Resolution. "Resolution" Resolution No. CRA-R-12-0061 adopted on September 17, 2012, as amended and supplemented from time to time, as further supplemented by Resolution No. adopted on September 26, 2024. "Series 2024 Bonds" means the Issuer's $ Tax Increment Revenue Bonds, Series 2024. "Total Debt Service for the Refunded Bonds" means, as of any date, the sum of the principal, interest and redemption premium, if applicable, remaining unpaid with respect to the Refunded Bonds in accordance with Schedule A attached hereto. SECTION 2. Deposit of Funds. The Issuer hereby deposits $ with the Escrow Agent for deposit into the Escrow Account, in immediately available funds, which funds the Escrow Agent acknowledges receipt of, to be held in irrevocable escrow by the Escrow Agent separate and apart from other funds of the Escrow Agent and applied solely as provided in this Agreement. $ of such funds are being derived from the Debt Service Fund of the Refunded Bonds being held by the Issuer, and $ of such funds are being derived from proceeds of the Series 2024 Bonds ($ being wired from the Issuer plus $ being wired from the underwriter). The Issuer represents that such funds are equal to the Escrow Requirement as of the date of such deposit. 2 SECTION 3. Use and Investment of Funds. The Escrow Agent acknowledges receipt of the sums described in Section 2 and agrees: (a) to hold the funds pursuant to this Agreement in irrevocable escrow during the term of this Agreement for the sole benefit of the holders of the Refunded Bonds; (b) to immediately invest $ in the Refunding Securities set forth on Schedule B attached hereto and to hold such securities and cash proceeds therefrom in accordance with the terms of this Agreement. The remaining cash balance equal to $1.76 shall be held uninvested by the Escrow Agent; (c) to provide timely notice for receipt of the funds invested in the Refunding Securities in order to receive sufficient funds to pay the Total Debt Service for the Refunded Bonds coming due on such date, as shown on Schedule A; (d) in the event the securities described on Schedule B cannot be purchased, substitute securities may be purchased with the consent of the Issuer but only upon receipt of verification from an independent certified public accountant that the Refunding Securities, the interest thereon, and the cash deposited in the Escrow Account will not be less than the Total Debt Service for the Refunded Bonds, and only upon receipt of an opinion of Bryant Miller Olive P.A. that (i) such securities constitute Refunding Securities for purposes of this Agreement, and (ii) such substitution shall not affect the tax-exempt status of interest on the Refunded Bonds; (e) there will be no investment of funds except as set forth in this Section 3 and in Section 5 hereof. SECTION 4. Payment of Refunded Bonds. (a) Refunded Bonds. On the date and in the amount set forth on Schedule A, the Escrow Agent shall transfer to , or its successors or assigns, the paying agent for the Refunded Bonds (the "Paying Agent"), in immediately available funds solely from amounts available in the Escrow Account, a sum sufficient to pay the Total Debt Service for the Refunded Bonds coming due on such date, as shown on Schedule A. (b) Surplus. After making the payments from the Escrow Account described in Subsection 4(a) above, the Escrow Agent shall retain in the Escrow Account any remaining cash in the Escrow Account in excess of the Total Debt Service for the Refunded Bonds until the termination of this Agreement, and shall then pay any remaining funds to the Issuer. 3 (c) Priority of Payments. The holders of the Refunded Bonds shall have an express first priority security interest in the funds in the Escrow Account until such funds are used and applied as provided in this Agreement. SECTION 5. Reinvestment. (a) Except as provided in Section 3, the Escrow Agent shall have no power or duty to invest any funds held under this Agreement. (b) At the written request of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent shall sell, transfer or otherwise dispose of any of the Refunding Securities acquired hereunder and shall substitute other Refunding Securities. The Issuer will not request the Escrow Agent to exercise any of the powers described in the preceding sentence in any manner which will cause interest on the Refunded Bonds to be included in the gross income of the holders thereof for purposes of Federal income taxation. Except as provided in Section 3 hereof, the transactions may be effected only if (i) an independent certified public accountant selected by the Issuer shall certify or opine in writing to the Issuer and the Escrow Agent that the cash and principal amount of Refunding Securities remaining on hand after the transactions are completed will, assuming no reinvestment earnings, be not less than the Escrow Requirement, and (ii) the Escrow Agent shall receive an opinion from a nationally recognized bond counsel acceptable to the Issuer to the effect that the transactions, in and by themselves will not cause interest on such Refunded Bonds to be included in the gross income of the holders thereof for purposes of Federal income taxation and such substitution is in compliance with this Agreement. Subsection 4(c) above notwithstanding, cash in excess of the Total Debt Service for the Refunded Bonds caused by substitution of Refunding Securities shall, as soon as practical, be paid to the Issuer. SECTION 6. Redemption or Acceleration of Maturity. The Issuer shall not accelerate or defer the maturity or redemption of the Refunded Bonds so as to modify the debt service set forth on Schedule A attached hereto. SECTION 7. Indemnity. To the extent permitted by law and without waiving sovereign immunity, the Issuer hereby assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless, the Escrow Agent and its respective successors, assigns, agents and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against at any time, the Escrow Agent (whether or not also indemnified against the same by the Issuer or any other person under any other agreement or instrument) which relates to or arises out of the execution and delivery of this Agreement, the establishment of the Escrow Account established hereunder, the acceptance of the funds and securities deposited therein, the purchase of the Refunding Securities, the retention of the Refunding Securities or the proceeds 4 thereof and any payment, transfer or other application of funds or securities by the Escrow Agent in accordance with the provisions of this Agreement; provided, however, that the Issuer shall not be required to indemnify the Escrow Agent against its own negligence or willful misconduct or that of a third party. In no event shall the Issuer be liable to any person by reason of the transactions contemplated hereby other than to the Escrow Agent as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement. The Escrow Agent shall not be liable for any deficiencies in the amounts necessary to pay the Total Debt Service for the Refunded Bonds. Furthermore, the Escrow Agent shall not be liable for the accuracy of the calculation as to the sufficiency of moneys and the principal amount of Refunding Securities and the earnings thereon to pay the Total Debt Service for the Refunded Bonds. SECTION 8. Responsibilities of Escrow Agent. The Escrow Agent and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Refunding Securities, the retention of the Refunding Securities or the proceeds thereof or for any payment, transfer or other application of moneys or securities by the Escrow Agent in accordance with the provisions of this Agreement or by reason of any non -negligent or non -willful act, omission or error of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall, however, be responsible for its negligent or willful failure to comply with its duties required hereunder, and its negligent or willful acts, omissions or errors hereunder (including full reimbursement to the Issuer of any rebate liability of the Issuer, including interest and penalties thereon). The duties and obligations of the Escrow Agent may be determined by the express provisions of this Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the Issuer, at the Issuer's expense, and in reliance upon the opinion of such counsel, shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. SECTION 9. Resignation of Escrow Agent. The Escrow Agent may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the Issuer, any rating agency then providing a rating on the Refunded Bonds, and the Paying Agent for the Refunded Bonds not less than sixty (60) days before such resignation shall take effect. Such resignation shall not take effect until the appointment of a new Escrow Agent hereunder. 5 SECTION 10. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one percent (51%) in aggregate principal amount of the Refunded Bonds then outstanding, such instruments to be filed with the Issuer, and notice in writing given by such holders to the original purchaser of the Series 2024A Bonds and published by the Issuer once in a newspaper of general circulation in the territorial limits of the Issuer, and in a daily newspaper or financial journal of general circulation in the City of New York, New York, not less than sixty (60) days before such removal is to take effect as stated in said instrument or instruments. A photographic copy of any instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the Issuer to the Escrow Agent. (b) The Escrow Agent may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Agent by any court of competent jurisdiction upon the application of the Issuer or the holders of not less than five percent (5%) in aggregate principal amount of the Series 2024A Bonds then outstanding, or the holders of not less than five percent (5%) in aggregate principal amount of the Refunded Bonds then outstanding. (c) The Escrow Agent may not be removed until a successor Escrow Agent has been appointed in the manner set forth herein. SECTION 11. Successor Escrow Agent. (a) If, at any time hereafter, the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Agent shall thereupon become vacant. If the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any other reason, the Issuer shall immediately appoint an Escrow Agent to fill such vacancy and, upon such appointment, all assets held hereunder shall be transferred to such successor. The Issuer shall either (i) publish notice of any such appointment made by it once in each week for four (4) successive weeks in a newspaper of general circulation published in the territorial limits of the Issuer and in a daily newspaper or financial journal of general circulation in the City of New York, New York, or (ii) mail a notice of any such appointment made by it to the holders of the Refunded Bonds within thirty (30) days after such appointment. (b) At any time within one year after such vacancy shall have occurred, the holders of a majority in principal amount of the Series 2024A Bonds then outstanding or a majority in 6 principal amount of the Refunded Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by either group of such bondholders and filed with the governing body of the Issuer, may appoint a successor Escrow Agent, which shall supersede any Escrow Agent theretofore appointed by the Issuer. Photographic copies of each such instrument shall be delivered promptly by the Issuer, to the predecessor Escrow Agent and to the Escrow Agent so appointed by the Bondholders. In the case of conflicting appointments made by the Bondholders under this paragraph, the first effective appointment made during the one year period shall govern. (c) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the holder of any Refunded Bonds then outstanding, or any retiring Escrow Agent, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Agent. (d) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Escrow Agent hereunder and vested with all the trust, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding, provided such successor shall have reported total capital and surplus in excess of $500,000,000, provided that such successor Escrow Agent assumes in writing all the trust, duties and responsibilities of the Escrow Agent hereunder. SECTION 12. Payment to Escrow Agent. The Escrow Agent hereby acknowledges that it has agreed to accept compensation under the Agreement in the sum of $750.00 payable at closing, for services to be performed by the Escrow Agent pursuant to this Agreement. The Escrow Agent shall have no lien or claim against funds in the Escrow Account for payment of obligations due it under this Section. SECTION 13. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance with the proceedings authorizing the Refunded Bonds. SECTION 14. Severability. If any one or more of the covenants or agreements provided in this Agreement on the part of the Issuer or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, notice of such event shall 7 be sent to Moody's Investors Service, Fitch Ratings, Inc. and S&P Global Ratings (but only to the extent such agencies have a rating outstanding on any of the Refunded Bonds), but such covenant or agreements herein contained shall be null and void and shall in no way affect the validity of the remaining provisions of this Agreement. SECTION 15. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer and the holders from time to time of the Refunded Bonds and it shall not be repealed, revoked, altered or amended in whole or in part without the written consent of all affected holders, the Escrow Agent and the Issuer; provided, however, that the Issuer and the Escrow Agent may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent, for the benefit of the holders of the Refunded Bonds any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. The Escrow Agent shall, at its option, be entitled to request at the Issuer's expense and rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the Issuer with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Refunded Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section. Prior written notice of such amendments, together with proposed copies of such amendments, shall be provided to Moody's Investors Service, Fitch Ratings, Inc., and S&P Global Ratings (but only to the extent such agencies have a rating outstanding on any of the Refunded Bonds). SECTION 16. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. SECTION 17. Governing Law. This Agreement shall be construed under the laws of the State of Florida. 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. SOUTHEAST OVERTOWN PARK/WEST COMMUNITY REDEVELOPMENT AGENCY (SEAL) By: Chair Attested By: By: Board Clerk Approved as to Form: By: Agency Attorney [Signature Page to Escrow Deposit Agreement] 9 ARGENT TRUST COMPANY, as Escrow Agent By: Name Title: ATTEST: By: Name: Title: [Signature Page to Escrow Deposit Agreement] 10 SCHEDULE A TOTAL DEBT SERVICE FOR REFUNDED BONDS Principal Redemption Date Due Interest Redeemed Premium Debt Service SCHEDULE B REFUNDING SECURITIES Type of Security Maturity Date Par Amount Rate B-1