Tab 2 Escrow Deposit AgreementExecution Copy
ESCROW DEPOSIT AGREEMENT
ESCROW DEPOSIT AGREEMENT, dated as of October 21, 2014, by and
between MONROE COUNTY, FLORIDA, a political subdivision of the State of
Florida (the "County "), and THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. (the "Escrow Agent "), a national banking association organized and
existing under the laws of the United States of America, having a corporate trust office in
Jacksonville, Florida, as escrow agent hereunder.
WHEREAS, the County has heretofore issued its Monroe County, Florida
Infrastructure Sales Surtax Revenue Bonds, Series 2003 (the "Series 2003 Bonds ")
pursuant to Resolution No. 077 -2003, adopted on February 19, 2003, as amended and
supplemented (collectively, the "Resolution "); and
WHEREAS, the County has determined to exercise its option under the
Resolution to refund all of the outstanding Series 2003 Bonds, as described on Schedule
A hereto (the "Refunded Bonds "); and
WHEREAS, the County has determined to issue its $31,885,000 principal amount
of a Monroe County, Florida Infrastructure Sales Surtax Improvement and Refunding
Revenue Bond, Series 2014 (the "Series 2014 Bond ") pursuant to the Resolution, a
portion of the proceeds of which Series 2014 Bond will be used, together with other
legally available moneys of the County, to provide payment for the Refunded Bonds and
discharge and satisfy the pledge of the Pledged Funds (as defined in the Resolution) and
all covenants, agreements and other obligations of the County under the Resolution in
regard to such Refunded Bonds;
WHEREAS, the issuance of the Series 2014 Bond, the deposit of cash into an
escrow deposit trust fund to be held by the Escrow Agent, the discharge and satisfaction
of the pledge of the Pledged Funds and all covenants, agreements and other obligations of
the County under the Resolution in regard to the Refunded Bonds shall occur as a
simultaneous transaction; and
WHEREAS, this Agreement is intended to effectuate such simultaneous
transaction;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
SECTION 1. PREAMBLES. The County represents that the recitals
stated above are true and correct, and the same are incorporated herein.
SECTION 2. RECEIPT OF RESOLUTION. Receipt of a true and
correct copy of the above - mentioned Resolution is hereby acknowledged by the Escrow
Agent. The applicable and necessary provisions of the Resolution, including, without
limitation, Article III and Section 8.01 thereof, are incorporated herein by reference.
Reference herein to or citation herein of any provisions of the Resolution shall be deemed
to incorporate the same as a part hereof in the same manner and with the same effect as if
the same were fully set forth herein.
SECTION 3. DISCHARGE OF PLEDGE OF HOLDERS OF
REFUNDED BONDS. In accordance with Section 8.01 of the Resolution, the County
by this writing exercises its option to have all covenants, agreements and other
obligations of the County under the Resolution to the holders of the Refunded Bonds to
cease, terminate and become void and be discharged and satisfied.
SECTION 4. ESTABLISHMENT OF ESCROW FUND. There is
hereby created and established with the Escrow Agent a special, segregated and
irrevocable escrow deposit trust fund designated the "Monroe County, Florida
Infrastructure Sales Surtax Revenue Bonds, Series 2003 Escrow Deposit Trust Fund" (the
"Escrow Fund "). The Escrow Fund shall be held in the custody of the Escrow Agent as a
trust fund for the benefit of the holders of the Refunded Bonds, separate and apart from
other funds of the County and the Escrow Agent. The Escrow Agent hereby accepts the
Escrow Fund and acknowledges the receipt of and deposit to the credit of the Escrow
Fund the sum of $7,097,180.79 received from the County from proceeds of the Series
2014 Bond (the "Cash Deposit "). MONEYS IN THE ESCROW FUND SHALL BE
HELD BY THE ESCROW AGENT AS UNINVESTED CASH.
SECTION 5. SUFFICIENCY OF CASH DEPOSIT. The County
represents that the Cash Deposit is sufficient such that moneys will be available to the
Escrow Agent in amounts sufficient and at the times required to pay the amounts of
principal of and interest due and to become due on the Refunded Bonds as described in
Schedule B attached hereto. If the Cash Deposit shall be insufficient to make such
payments, the County shall timely deposit to the Escrow Fund, solely from legally
available funds of the County, such additional amounts as may be required to pay the
Refunded Bonds as described in Schedule B hereto. Notice of any insufficiency shall be
given by the Escrow Agent to the County as promptly as possible, but the Escrow Agent
shall in no manner be responsible for the County's failure to make such deposits.
SECTION 6. CASH DEPOSIT IN TRUST FOR HOLDERS OF
REFUNDED BONDS. The deposit of the Cash Deposit in the Escrow Fund shall
constitute an irrevocable deposit of moneys by the County in accordance with the
Resolution in trust solely for the payment of the principal, redemption premium, if any,
and interest due and to become due on the Refunded Bonds on the hereinafter defined
Redemption Date as set forth in Schedule B hereto.
2
SECTION 7. ESCROW AGENT TO PAY REFUNDED BONDS
FROM ESCROW FUND. The County hereby directs, and the Escrow Agent hereby
agrees, that it will take all actions required to be taken by it under the provisions of the
Resolution referenced in this Agreement, including the timely transfer of money to the
Paying Agent for the Refunded Bonds (Wells Fargo Bank, N.A.) as provided in the
Resolution, in order to effectuate this Agreement and to pay the Refunded Bonds in the
amounts and at the times provided in Schedule B hereto. The Cash Deposit shall be used
to pay the principal of, redemption premium, if any, and interest on the Refunded Bonds
as the same may mature or be redeemed. If any payment date shall be a day on which
either the Paying Agent for the Refunded Bonds or the Escrow Agent is not open for the
acceptance or delivery of funds then the Escrow Agent may make payment on the next
business day. The liability of the Escrow Agent for the payment of the principal of,
redemption premium, if any, and interest on the Refunded Bonds pursuant to this
Agreement shall be limited to the application of the Cash Deposit and the interest
earnings thereon available for such purposes in the Escrow Fund.
SECTION 8. REDEMPTION OF REFUNDED BONDS. The County
hereby irrevocably instructs the Escrow Agent to cause the Registrar for the Refunded
Bonds (Wells Fargo Bank, N.A.) to give, on behalf of the Issuer, at the appropriate times
the notice or notices, if any, required by the Resolution in connection with the redemption
of the Refunded Bonds. The Refunded Bonds shall be redeemed on November 20, 2014
(the "Redemption Date ") at a redemption price equal to 100% of the principal amount
thereof, plus accrued interest.
SECTION 9. DEFEASANCE. Concurrently with the deposit of the Cash
Deposit set forth in Section 4 hereof, the Refunded Bonds shall be deemed to have been
paid within the meaning and with the effect expressed in Section 8.01 of the Resolution.
SECTION 10. ESCROW FUND IRREVOCABLE. The Escrow Fund
hereby created shall be irrevocable and the holders of the Refunded Bonds shall have an
express lien on the Cash Deposit deposited in the Escrow Fund pursuant to the terms
hereof and the interest earnings thereon until paid out, used and applied in accordance
with this Agreement and the Resolution. Neither the County nor the Escrow Agent shall
cause nor permit any other lien or interest whatsoever to be imposed upon the Escrow
Fund.
SECTION 11. AMENDMENTS TO AGREEMENT. This Agreement is
made for the benefit of the County and the holders from time to time of the Refunded
Bonds and it shall not be repealed, revoked, altered or amended without the written
consent of all such holders and the written consent of the Escrow Agent; provided,
however, that the County 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
3
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, 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 be entitled to rely exclusively upon an unqualified
opinion of nationally recognized Bond Counsel with respect to compliance with this
Section 11, including the extent, if any, to which any change, modification or addition
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 11.
SECTION 12. FEES AND EXPENSES OF ESCROW AGENT;
INDEMNIFICATION. In consideration of the services rendered by the Escrow Agent
under this Agreement, the County agrees to and shall pay to the Escrow Agent the fees
and expenses as shall be agreed to in writing by the parties hereto. The Escrow Agent
shall have no lien or right of set -off whatsoever upon any of the Cash Deposit in said
Escrow Fund for the payment of such proper fees and expenses. The County further
agrees to indemnify and save the Escrow Agent harmless, to the extent allowed by law,
against any liabilities which it may incur in the exercise and performance of its powers
and duties hereunder, and which are not due to the Escrow Agent's negligence or
misconduct. Indemnification provided under this Section 12 shall survive the termination
of this Agreement. Escrow Agent has no obligation to use or risk its own funds.
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 County. The Escrow Agent may conclusively rely,
as to the correctness of statements, conclusions and opinions therein, upon any certificate,
report, opinion or other document furnished to the Escrow Agent pursuant to any
provision of this Agreement; the Escrow Agent shall be protected and shall not be liable
for acting or proceeding, in good faith, upon such reliance; and the Escrow Agent shall be
under no duty to make any investigation or inquiry as to any statements contained or
matters referred to in any such instrument. The Escrow Agent may consult with counsel,
who may be counsel to the County or independent counsel, with regard to legal questions,
and the opinion of such counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in good faith in accordance
91
o,
herewith. Prior to retaining such independent counsel, the Escrow Agent shall notify the
County of its intention to retain counsel.
SECTION 13. REPORTING REQUIREMENTS OF ESCROW AGENT.
As soon as practicable after November 20, 2014, the Escrow Agent shall forward in
writing to the County a statement in detail of the withdrawals of money from the Escrow
Fund.
SECTION 14. RESIGNATION OR REMOVAL OF ESCROW AGENT.
The Escrow Agent, at the time acting hereunder, may at any time resign and be
discharged from the duties and obligations hereby created by giving not less than 30 days
written notice to the County and mailing notice thereof, specifying the date when such
resignation will take effect to the holders of the Refunded Bonds, but no such resignation
shall take effect unless a successor Escrow Agent shall have been appointed by the
holders of the Refunded Bonds or by the County as hereinafter provided and such
successor Escrow Agent shall have accepted such appointment, in which event such
resignation shall take effect immediately upon the appointment and acceptance of a
successor Escrow Agent.
The Escrow Agent may be replaced at any time by an instrument or concurrent
instruments in writing, delivered to the Escrow Agent at least 30 days prior to the
scheduled replacement date, and signed by either the County or the holders of the
Refunded Bonds. Such instrument shall provide for the appointment of a successor
Escrow Agent, which appointment shall occur simultaneously with the removal of the
Escrow Agent.
In the event the Escrow Agent hereunder shall resign or be removed, or be
dissolved, or shall be in the course of dissolution or liquidation, or otherwise become
incapable of acting hereunder, or in case the Escrow Agent shall be taken under the
control of any public officer or officers, or of a receiver appointed by a court, a successor
may be appointed by the holders of the Refunded Bonds by an instrument or concurrent
instruments in writing, signed by such holders, or by their attorneys in fact, duly
authorized in writing; provided, nevertheless, that in any such event, the County shall
appoint a temporary Escrow Agent to fill such vacancy until a successor Escrow Agent
shall be appointed by the holders of the Refunded Bonds in the manner above provided,
and any such temporary Escrow Agent so appointed by the County shall immediately and
without further act be superseded by the Escrow Agent so appointed by such holders.
The County shall mail notice of any such appointment made by it at the times and in the
manner described in the first paragraph of this Section 14.
In the event that no appointment of a successor Escrow Agent or a temporary
successor Escrow Agent shall have been made by such holders or the County pursuant to
N
the foregoing provisions of this Section 14 within 30 days after written notice of
resignation of the Escrow Agent has been given to the County, the holders of the
Refunded Bonds or any retiring Escrow Agent may apply to any court of competent
jurisdiction for the appointment of a successor Escrow Agent, and such court may
thereupon, after such notice, if any, as it shall deem proper, appoint a successor Escrow
Agent.
In the event of replacement or resignation of the Escrow Agent, the Escrow Agent
shall remit to the County the prorated portion of prepaid fees not yet incurred or payable,
less any termination fees and expenses at the time of discharge, the County shall pay all
accrued and unpaid fees and expenses of the Escrow Agent and the Escrow Agent shall
have no further liability hereunder and the County shall indemnify and hold harmless
Escrow Agent, to the extent allowed by law, from any such liability, including costs or
expenses incurred by the Escrow Agent or its counsel.
No successor Escrow Agent shall be appointed unless such successor Escrow
Agent shall be a corporation with trust powers organized under the banking laws of the
United States or any State, and shall have at the time of appointment capital and surplus
of not less than $50,000,000.
Every successor Escrow Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the County an instrument in writing accepting such
appointment hereunder and thereupon such successor Escrow Agent, without any further
act, deed or conveyance, shall become fully vested with all the rights, immunities,
powers, trusts, duties and obligations of its predecessor; but such predecessor shall
nevertheless, on the written request of such successor Escrow Agent or the County
execute and deliver an instrument transferring to such successor Escrow Agent all the
estates, properties, rights, powers and trust of such predecessor hereunder; and every
predecessor Escrow Agent shall deliver all securities and moneys held by it to its
successor; provided, however, that before any such delivery is required to be made, all
fees, advances and expenses of the retiring or removed Escrow Agent shall be paid in
full. Should any transfer, assignment or instrument in writing from the County be
required by any successor Escrow Agent for more fully and certainly vesting in such
successor Escrow Agent the estates, rights, powers and duties hereby vested or intended
to be vested in the predecessor Escrow Agent, any such transfer, assignment and
instruments in writing shall, on request, be executed, acknowledged and delivered by the
County.
Any corporation into which the corporate trust business of the Escrow Agent, or
any successor to it in the trusts created by this Agreement, may be merged or converted
or with which it or any successor to it may be consolidated, or any corporation resulting
from any merger, conversion, consolidation or tax -free reorganization to which the
6
corporate trust business of the Escrow Agent or any successor to it shall be a party shall
be the successor Escrow Agent under this Agreement without the execution or filing of
any paper or any other act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 15. TERMINATION OF AGREEMENT. Except for
provisions hereof which are stated to survive the termination hereof, this Agreement shall
terminate when all transfers and payments required to be made by the Escrow Agent
under the provisions hereof shall have been made. Upon such termination, all moneys
remaining in the Escrow Fund shall be released to the County.
SECTION 16. GOVERNING LAW. This Agreement shall be governed by
the applicable laws of the State of Florida.
SECTION 17. SEVERABILITY. If any one or more of the covenants or
agreements provided in this Agreement on the part of the County or the Escrow Agent to
be performed should be determined by a court of competent jurisdiction to be contrary to
law, such covenant or agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in no way affect the
validity of the remaining provisions of this Agreement.
SECTION 18. 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 19. NOTICES. Any notice, authorization, request or demand
required or permitted to be given in accordance with the terms of this Agreement shall be
in writing and sent by registered or certified mail addressed to:
Monroe County, Florida
I 100 Simonton Street
Key West, Florida 33040
Attn: County Administrator
with a copy to:
Monroe County Clerk of Court
500 Whitehead Street
Key West, Florida 33040
The Bank of New York Mellon Trust Company, N.A.
11061 Centurion Parkway
Jacksonville, Florida 32256
Attn: Corporate Trust
N
IN WITNESS WHEREOF, the parties hereto have each caused this Escrow
Deposit Agreement to be executed by their duly authorized officers and appointed
officials and their seals to be hp,pmwip, -F-F, q 4
AA, cui attested as of the date
m
Deputy Clerk
first written
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Escrow Agent
By: �— &Ut Jized, na�tory
SCHEDULE A
REFUNDED BONDS
Maturity Date Interest Rate Par Amount Call Date Call Price
04/01/2015
3,700%
$1,645,000.00
11/20/2014
100.000%
04/01/2016
3.750%
1,720,000.00
11/20/2014
100.000%
04/01/2017
4,000%
1,805
11/20/2014
100.000%
04/01/2018
.... . ..... . .. . .. . . ......
4.000%
1,890,000.00
11/20/2014
100.000%
SCHEDULE B
DEBT SERVICE REQUIREMENTS FOR REFUNDED BONDS
Period Ending Interest Principal Redeemed Total
11/20/2 $37,180. $7,060,00 $7, 097,180.79
$37,1 80.79 $7,060,000.00 $7,097,1 80.79