HomeMy WebLinkAboutC21-339 ECAT + Escrow AgrmtEAGLE COUNTY AIR TERMINAL CORPORATION
IRREVOCABLY COMMITTED ESCROW AGREEMENT
This Irrevocably Committed Escrow Agreement (this “Escrow Agreement”)is entered
into on ___________,2021,by and between the EAGLE COUNTY AIR TERMINAL
CORPORATION (the “Corporation”),a nonprofit corporation organized under the laws of the
State of Colorado,and UMB BANK,N.A.(the “Escrow Bank”),a national banking association
duly organized under the laws of the United States of America.
Terms used herein and not otherwise defined have the meanings as set forth in the
Indenture as defined below.
RECITALS
A.Eagle County Air Terminal Corporation (the “Corporation”)was duly organized
in 1996 pursuant to the provisions of the Colorado Nonprofit Corporation Act,articles 20
through 29 of title 7, Colorado Revised Statutes, as amended.
B.The Corporation has been duly organized pursuant to the provisions of the
Colorado Nonprofit Corporation Act,appearing in Articles 20 through 29 of Title 7,Colorado
Revised Statutes,as amended (the “Act”),is validly existing and in good standing under the laws
of the State of Colorado,is and shall be operated exclusively on behalf of and for the benefit of
Eagle County,Colorado (the “County”),and in furtherance of such purposes has the authority to
issue its own bonds.
C.The Corporation owns a passenger terminal and certain other facilities serving the
Eagle County Regional Airport located in Eagle, Colorado (the “Airport”).
D.In order to finance or refinance the passenger terminal and certain other facilities
serving the Airport,the Corporation issued its Airport Terminal Building Project Revenue
Refunding Bonds,Series 2017A (none of which are currently outstanding)and Airport Terminal
Building Project Revenue Improvement Bonds,Series 2017B (the “2017B Bonds”)pursuant to
an Amended and Restated Indenture of Trust dated as of September 1,2017 (as it may be
amended or supplemented from time to time,the “Indenture”)between the Corporation and
UMB Bank, National Association (the “Trustee”), as trustee.
E.The Indenture also secures the Airport Terminal Project Revenue Refunding
Bonds,Series 2011A (the “2011A Bonds”and together with the 2017B Bonds,the “Bonds”)
issued by the Corporation to refinance certain projects related to the Terminal.
F.The U.S.Government passed the Coronavirus Response and Relief Supplemental
Appropriations Act,Public Law 116-260 (“CRRSAA”),providing for,among other things,the
grant of certain CRRSAA funds to the County to be used in connection with the Airport,which
CRRSAA funds are received by the County on a reimbursement basis.
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G.The CRRSAA Funds may be used for debt service payments directly related to
the Airport,and the County allocated $1,840,450.00 of such funds (“CRRSAA Funds”),upon
receipt thereof, to the Corporation for purposes of paying debt service on the Bonds.
H.The definition of “Debt Service”of the Indenture contains the following
language:
Further,in any computation relating to the issuance of additional Bonds required by
Section 3.03 hereof and any computation required by the rate maintenance covenant in
Section 5.03 hereof,there shall be excluded from the computation of Debt Service
amounts which are irrevocably committed to make such payments during such period,
including without limitation any amounts in an escrow account and any capitalized
interest amount.
Other portion of the definition of “Debt Service”describe the computation of interest and
principal payments on Bonds.
I.The Corporation has determined that it is in its best interest to irrevocably commit
all of the CRRSAA Funds to Debt Service so that such committed amounts can be excluded from
the computation of Debt Service for purposes of determining compliance with the rate
maintenance covenants contained in Section 5.03 of the Indenture.
J.The Irrevocable Escrow Account (as defined below)shall constitute an “escrow
account” as referenced in the definition of “Debt Service” in the Indenture.
K.The Escrow Bank represents that it is empowered to undertake the obligations and
commitments on its part herein set forth and that the undersigned officer of the Escrow Bank is
duly authorized to execute and deliver this Escrow Agreement in the Escrow Bank’s name and
on its behalf.
L.The Corporation represents that it is empowered to undertake the obligations and
commitments on its part herein set forth.
M.The undersigned officers of the Corporation are duly authorized to execute and
deliver this Escrow Agreement, for and on behalf of the Corporation.
In consideration of the mutual agreements contained in this Escrow Agreement and the
fee described in Section 6 of this Escrow Agreement duly paid by the Corporation to the Escrow
Bank at or before the delivery of this Escrow Agreement,the receipt of which is hereby
acknowledged,and in order to irrevocably commit the Escrow Deposit (as defined below)to
Debt Service,as further delineated herein,the parties hereto mutually undertake,promise and
agree for themselves, their respective representatives, successors, and assigns, as follows:
Creation of Escrow.
A.The Corporation hereby directs the Escrow Bank to cause $$1,840,450.00
of cash (“Escrow Deposit”),consisting of legally available funds of the Corporation,to be
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deposited into the trust account hereby established and designated as the “Eagle County Air
Terminal Corporation,Irrevocably Committed Escrow Account”(the “Irrevocable Escrow
Account”).
B.The Escrow Deposit shall be administered by the Escrow Bank in
connection with the Corporation’s obligations to the registered owners of Bonds (the
“Bondholders”) as provided in this Escrow Agreement.
C.The Escrow Deposit may be invested in Permitted Investments as directed
in writing by the Authorized Representative.All investments shall be made in the name of the
Escrow Bank.Notwithstanding anything to the contrary contained herein,the Escrow Bank may,
without notice to the Corporation,sell or liquidate any of the foregoing investments at any time
for any disbursement of Escrow Deposit permitted or required hereunder.All investment
earnings shall become part of the Escrow Deposit and investment losses shall be charged against
the Escrow Deposit.The Escrow Bank shall not be liable or responsible for loss in the value of
any investment made pursuant to this Escrow Agreement,or for any loss,cost or penalty
resulting from any sale or liquidation of the Escrow Deposit.
Purpose of Escrow.
The Escrow Bank shall hold the Escrow Deposit accounted for in the Irrevocable Escrow
Account in trust solely to secure and for the payment of Debt Service as directed by the
Corporation in accordance with Subsection B of Section 3.
Accounting for Escrow.
A.The moneys accounted for in the Irrevocable Escrow Account shall not be
subject to checks drawn by the Corporation or otherwise subject to its order except as otherwise
provided in Subsection C of Section 1 and Subsection B of this Section.
B.the Escrow Bank shall disburse,as directed by the Authorized
Representative in writing in substantially the form attached hereto in Schedule B,funds in the
Irrevocable Escrow Account to the Trustee to be applied exclusively to Debt Service in the
amount and on the date set forth in such written direction,which written direction shall be
received by the Escrow Bank at least five (5)business days prior to any disbursement and shall
be concurrently delivered to the Trustee.Upon the Escrow Bank’s receipt of a written direction
to disburse,the amounts indicated in such direction to be applied to Debt Service shall be
deemed irrevocably committed for purposes of calculating Debt Service,when determining
compliance with the rate maintenance covenants contained in Section 5.03 of the Indenture.
Notwithstanding the forgoing,if at any time moneys in Irrevocable Escrow Account shall not be
sufficient to make the disbursement directed by the Authorized Representative,the Escrow Bank
shall promptly notify the Authorized Representative of such fact and the amount of such
deficiency.
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Transfers.As provided in Subsection B of Section 3 hereof,the Escrow Bank shall
make such arrangements as will effect,to the extent of money in the Irrevocable Escrow
Account, properly allocable to and available therefor, the timely payment of the Debt Service.
Termination of the Irrevocable Escrow Account.When an aggregate amount equal to
the initial Escrow Deposit ($1,840,450.00)has been disbursed from the Irrevocable Escrow
Account in accordance with Subsection B of Section 3,the Escrow Bank shall transfer the
moneys,if any,then remaining in the Irrevocable Escrow Account,as directed in writing by the
Authorized Representative.Upon such transfer,the Escrow Bank shall make a final report to the
Authorized Representative and terminate the Irrevocable Escrow Account.
Fees and Costs.
A.The Escrow Bank’s total fees and costs for and in carrying out the
provisions of this Escrow Agreement have been approved by the parties hereto and have been
duly paid by the Corporation to the Escrow Bank at or before the delivery of this Escrow
Agreement in accordance with Schedule A attached hereto.
B.Such payment for services rendered and to be rendered by the Escrow
Bank shall not be for deposit in the Irrevocable Escrow Account and the fees of and costs
incurred by the Escrow Bank shall not be deducted from the Irrevocable Escrow Account.
Character of Deposit.
A.It is recognized that title to the moneys accounted for in the Irrevocable
Escrow Account from time to time shall remain vested in the Corporation but subject always to
the terms of this Escrow Agreement and the use thereof required to be made by the provisions of
this Escrow Agreement.
B.The Escrow Bank shall hold all money in the Irrevocable Escrow Account
as a special trust funds and accounts which is accounted for separately from other funds and
securities on deposit with it; shall never at any time use, loan, or borrow the same in any way.
Securing Escrow Deposits.
A.The uninvested Escrow Deposits in excess of FDIC coverage shall be
continuously secured by a pledge of Federal Securities or of such securities as are permitted by
Section 9.10 of Title 12 of the Code of Federal Regulations.
B.No money paid into and accounted for in the Irrevocable Escrow Account
shall ever be considered as a banking deposit,and the Escrow Bank shall not have any right or
title with respect thereto.
Amendment.This Escrow Agreement is made for the benefit of the Bondholders by
irrevocably committing the Escrow Deposit to Debt Service for purposes of calculating the same
in accordance with the terms hereof and shall not be repealed,revoked,altered or amended
without the written consent of all such Bondholders (which consent is confirmed by the Escrow
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Bank),the Escrow Bank,and the Corporation;provided,however,that the Corporation and the
Escrow Bank may,without the consent of,or notice to,such holders,enter into such agreements
supplemental to this Escrow Agreement which the Corporation confirms to the Escrow Bank
shall not materially adversely affect the rights of such holders and shall not be inconsistent with
the terms and provisions of this Escrow Agreement for any one or more of the following
purposes:
A.to cure any ambiguity or formal defect or omission in this Escrow
Agreement; or
B.to grant to or confer upon the Escrow Bank for the benefit of the
Bondholders any additional rights,remedies,powers or authority that may lawfully be granted to
or conferred upon the Escrow Bank.
The Corporation and the Escrow Bank shall be entitled to conclusively rely upon an
unqualified opinion of a nationally recognized counsel in the field of law relating to municipal
bonds with respect to compliance with this Section.
Exculpatory Provisions.
A.The duties and responsibilities of the Escrow Bank (i)are purely
administrative and limited to those expressly and specifically stated in this Escrow Agreement
and (ii)shall in no event require the Escrow Bank to apply discretion in determining any action
required of it under this Escrow Agreement.
B.The Escrow Bank shall not be liable or responsible for any loss resulting
from any investment or reinvestment made pursuant to this Escrow Agreement and made in
compliance with the provisions thereof.
C.The Escrow Bank shall not be liable in connection with the performance
of its duties hereunder except for its own negligence or willful misconduct.
D.The Escrow Bank shall neither be under any obligation to inquire into or
be in any way responsible for the performance or nonperformance by the Corporation of any of
its obligations,nor shall the Escrow Bank be responsible in any manner for the recitals or
statements contained in this Escrow Agreement,such recitals and statements being made solely
by the Corporation.
E.Nothing in this Escrow Agreement shall create any obligation or liabilities
on the part of the Escrow Bank to anyone other than the Corporation and no other person or
entity shall be deemed a third-party beneficiary of this Escrow Agreement.
Time of Essence.Time is of the essence in the performance of the obligations from time
to time imposed upon the Escrow Bank by this Escrow Agreement.
Successors.
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A.Whenever in this Escrow Agreement the Corporation or the Escrow Bank
is named or referred to,such provisions are deemed to include any successor of the Corporation
or the Escrow Bank, respectively, immediate or intermediate, whether so expressed or not.
B.All of the stipulations,obligations,and agreements by or on behalf of,and
other provisions for the benefit of,the Corporation or the Escrow Bank contained in this Escrow
Agreement:
(i)shall bind and inure to the benefit of any such successor, and
(ii)shall bind and inure to the benefit of any officer,board,authority,
agent,or instrumentality to whom or to which there shall be transferred by or in
accordance with law any relevant right,power,or duty of the Corporation or the Escrow
Bank, respectively, or of its successor.
Counterparts.This Escrow Agreement may be executed in several counterparts,each of
which shall be an original and all of which shall constitute but one and the same instrument.
Section 15.Electronic Transactions.The parties hereto agree that the transactions
described herein may be conducted and 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.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF,the parties have caused this Escrow Agreement
to be executed by their duly authorized officers, all as of the day and year first above written.
(SEAL)
ATTEST:
EAGLE COUNTY AIR TERMINAL
CORPORATION
President
Secretary
UMB BANK,NATIONAL ASSOCIATION,as
the Escrow Bank
By: Patricia Peters
Its: Vice President
IRREVOCABLY COMMITTED ESCROW AGREEMENT SIGNATURE PAGE
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SCHEDULE A
Escrow Bank Fees
Initial Acceptance Fee:$500.00
Annual Administration Fee:$500.00
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SCHEDULE B
Disbursement Instructions
[Date]
Patricia Peters, Vice President
UMB Bank, National Association
Ref: Irrevocable Escrow Account Disbursement Letter
Dear Ms. Peters,
This letter constitutes the written direction pursuant to Section 3,B.of the Irrevocably
Committed Escrow Agreement dated ___________,2021 (the “Escrow Agreement”)between
Eagle County Air Terminal Corporation and UMB Bank,National Association (the “Escrow
Bank”).All capitalized terms used and not defined herein shall have the meaning assigned to
them in the Escrow Agreement.
On [insert date],please disburse in the amount of $__________________from the Irrevocable
Escrow Account (Account number ________________) to the Trustee as noted below.
Amount: $______________
Bank: UMB Bank, National Association
ABA #:____________________
Account Name: _________________
Account No.: ________________
Further Credit to: [ECAT Irrevocable Escrow Debt Service]
Contact: ______________________________________________
These funds will be applied to the Debt Service on the Bonds Outstanding under the Indenture as
follows:
(i)$________shall be applied to pay principal and interest due on the Airport
Terminal Building Project Revenue Improvement Bonds, Series 2017B, and
(ii)$________shall be applied to pay principal and interest due on the Airport
Terminal Project Revenue Refunding Bonds, Series 2011A.
If you have any questions, please do not hesitate to contact me
Sincerely,
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