Norton Rose Fulbright US LLP draft of 08/03/26
305639601.3 1001189816
Escrow Agreement
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of __________ 1, 2027 (the “Escrow Agreement”), is entered into between the City of Anaheim, California (the “City”) and U.S. Bank Trust Company, National Association, as escrow agent hereunder (the “Escrow Agent”).
W I T N E S S E T H :
WHEREAS, pursuant to an Indenture of Trust, dated as of [March 1, 2020]/[April 1, 2022] (the “Prior Indenture”), by and among the Anaheim Housing and Public Improvements Authority (the “Authority”), the City, and U.S. Bank Trust Company, National Association, as [successor] trustee, the Authority has heretofore issued $__________ initial principal amount of its [Revenue Bonds, Series 2022-A (Water System Project) (the “2022-A Bonds”)]/[Revenue Refunding Bonds, Series 2022-B (Water System Refunding) (Taxable) (the “2022-B Bonds”)]/[Revenue Refunding Bonds, Series 2022-C (Water System Refunding) (the “2022-C Bonds”)]; WHEREAS, a portion of the proceeds of the Refunding Bonds (as defined herein) will be used to refund all of the outstanding [__________] Bonds maturing on October 1, 20__ through October 1, 20__, both dates inclusive, October 1, 20__ and October 1, 20__ (the “Refunded Bonds”);
WHEREAS, the Anaheim Housing and Public Improvements Authority Revenue Refunding Bonds, Series 2026-B (Water System Refunding) (Forward Delivery) (the “Refunding Bonds”) are being issued pursuant to that certain Indenture of Trust, dated as of __________ 1, 2026, by and among the Authority, the City and U.S. Bank Trust Company, National Association, as trustee, for the purpose of, among other things, refunding the Refunded Bonds, by providing a portion of the funds sufficient to redeem the Refunded Bonds on [October 1, 20__]; and WHEREAS, in order to accomplish the refunding of the Refunded Bonds in accordance with Section 10.03 of the Prior Indenture, the City will deposit, or cause to be deposited, with the Escrow Agent a portion of the proceeds of the Refunding Bonds and certain other amounts in accordance with this Escrow Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Escrow Agent agree as follows:
SECTION 1. Deposit of Moneys. The City hereby irrevocably deposits with the Escrow Agent in immediately available funds [(i)] $__________ comprised of a portion of the net proceeds of the sale of the Refunding Bonds [and (ii) $__________ comprised of amounts transferred from the Interest Account under the Prior Indenture], to be held uninvested in irrevocable escrow by the Escrow Agent, separate and apart from other funds of the Authority, the City and the Escrow Agent, in a fund hereby created and established to be known as the “Escrow Fund” and to be applied solely as provided in this Escrow Agreement. The moneys are at least equal to an amount sufficient (i) to pay interest coming due on the Refunded Bonds on [October 1, 2027] and (ii) to redeem the Refunded Bonds on [October 1, 2027], at a redemption price equal to 100% of the principal amount thereof, as set forth in Schedule I hereto. The sufficiency of the moneys to redeem 305639601.3
2 the Refunded Bonds on said redemption date has been verified in a report prepared by [________________________], Certified Public Accountants, dated __________, 2027.
SECTION 2. Redemption of Refunded Bonds.
(a) Redemption of Refunded Bonds. From the moneys on deposit in the Escrow Fund, the Escrow Agent shall redeem the Refunded Bonds at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to said redemption date. Any moneys remaining in the Escrow Fund after payment of the redemption price of the Refunded Bonds in full as provided herein shall be repaid by the Escrow Agent to the City. (b) Irrevocable Instructions to Provide Notices.
(i) The Escrow Agent is hereby instructed to mail, by first-class mail, at least twenty (20) days prior to [October 1, 2027], notice of redemption to the owners of the Refunded Bonds containing the information prescribed in Section 2.03[(g/h)] of the Prior Indenture, substantially in the form of Exhibit A attached hereto. (ii) The Escrow Agent is hereby further instructed to post a copy of such notice, when mailed, to (A) the Securities Depositories (as hereinafter defined) and (B) the Information Services (as hereinafter defined). The sole remedy for failure to post such notices to the Information Services shall be an action by the holders of the Refunded Bonds in mandamus for specific performance or a similar remedy to compel performance. “Securities Depositories" means The Depository Trust Company, 55 Water Street, 50th Floor, New York, New York 10041-0099, Attn. Call Notification Department, Fax (212) 855- 7232, or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories as the City may designate in a Certificate of the City delivered to the Escrow Agent.
“Information Services” means the Electronic Municipal Market Access system (referred to as “EMMA”), a facility of the Municipal Securities Rulemaking Board, at www.emma.msrb.org; or, in accordance with then-current guidelines of the Securities and Exchange Commission, to such other addresses and/or such other services providing information with respect to called bonds as the City may designate in a Certificate of the City delivered to the Escrow Agent. (c) Unclaimed Moneys. Subject to the laws of the State of California, any moneys that remain unclaimed for one (1) year after the date when such moneys have become due and payable shall be repaid by the Escrow Agent (without liability for interest) to the City as its absolute property and free from trust, and the Escrow Agent shall thereupon be released and discharged with respect thereto and the owners of the applicable Refunded Bonds shall look only to the City for the payment thereof; provided, however, that before being required to make any such payment to the City, the Escrow Agent shall, at the expense of the City, cause to be mailed to the owners of the applicable Refunded Bonds a notice that said moneys remain unclaimed and that, after a date named in said notice — which date shall be not less than thirty (30) days after the date of the mailing of such notice — the balance of such moneys then unclaimed will be returned to the City. 305639601.3
3 (d) Priority of Payments. The owners of the Refunded Bonds shall have a lien on moneys in the Escrow Fund, including any redemption premium thereon, in accordance with this Escrow Agreement until such moneys and such securities are used and applied as provided in this Escrow Agreement.
(e) [Reserved].
SECTION 3. Resignation and Removal of Escrow Agent. The Escrow Agent may at any time resign and be discharged of the duties and obligations hereunder by giving at least thirty (30) days’ prior written notice to the City. The Escrow Agent may be removed upon thirty (30) days’ prior written notice by an instrument in writing signed by the City. In either such event, the City shall appoint a successor escrow agent by an instrument in writing. Any such resignation or removal shall become effective upon acceptance of appointment of a successor escrow agent. If a successor has not been appointed within thirty (30) days of the delivery of such notice of resignation or removal, the Escrow Agent may petition a court of competent jurisdiction for the appointment of a successor.
SECTION 4. Performance of Duties. The Escrow Agent agrees to perform only the duties set forth herein and shall have no responsibility to take any action or omit to take any action not set forth herein.
SECTION 5. Escrow Agent’s Authority to Make Investments. Except as expressly provided in Sections 1 and 2 hereof, the Escrow Agent shall have no power or duty to invest any funds held under this Escrow Agreement or to sell, transfer or otherwise dispose of the moneys held hereunder.
SECTION 6. Indemnity. The City hereby assumes liability for, and hereby agrees (whether or not any of the transactions contemplated hereby are consummated) to indemnify, protect, save and keep harmless the Escrow Agent and its respective successors, assigns, agents, directors, officers, employees 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 whatever kind and nature that may be imposed on, incurred by, or asserted against the Escrow Agent at any time (whether or not also indemnified against the same by the City or any other person under any other agreement or instrument, but without double indemnity) in any way relating to or arising out of the execution, delivery and performance of this Escrow Agreement, the establishment hereunder of the Escrow Fund, the acceptance of the funds deposited therein, and any payment, transfer or other application of moneys or securities by the Escrow Agent in accordance with the provisions of this Escrow Agreement; provided, however, that the City shall not be required to indemnify the Escrow Agent against the Escrow Agent’s own negligence or willful misconduct or the willful breach by the Escrow Agent of the terms of this Escrow Agreement. In no event shall the City or the Escrow Agent be liable to any person by reason of the transactions contemplated hereby other than to each other as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Escrow Agreement and the resignation or removal of the Escrow Agent.
SECTION 7. Responsibilities of Escrow Agent. The Escrow Agent and its employees, 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 Escrow Agreement, the 305639601.3
4 establishment of the Escrow Fund, the acceptance of the moneys, the sufficiency of the moneys held in the Escrow Fund to pay the Refunded Bonds, or any payment, transfer, or other application of moneys or obligations by the Escrow Agent in accordance with the provisions of this Escrow Agreement, or by reason of any non-negligent act, non-negligent omission, or non-negligent error of the Escrow Agent made in good faith in the conduct of its duties. The recitals of fact contained in the “Whereas” clauses herein shall be taken as the statements of the City, and the Escrow Agent assumes no responsibility for the correctness thereof. The Escrow Agent makes no representation as to the sufficiency of the moneys held in the Escrow Fund to accomplish the refunding of the Refunded Bonds or as to the validity of this Escrow Agreement as to the City and, except as otherwise provided herein, the Escrow Agent shall incur no liability in respect thereof. The Escrow Agent shall not be liable in connection with the performance of its duties under this Escrow Agreement except for its own negligence or willful misconduct, and the duties and obligations of the Escrow Agent shall be determined by the express provisions of this Escrow Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written 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 Escrow Agreement, such matter may be deemed to be conclusively established by a certificate signed by an officer of the City. Notwithstanding anything in this Escrow Agreement to the contrary, in no event shall the Escrow Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Escrow Agent has been advised of such loss or damage and regardless of the form of action. No provision of this Escrow Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance or exercise of any of its duties hereunder, or in the exercise of its rights or powers.
The Escrow Agent may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Escrow Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or negligence on the part of any agent, attorney, custodian or nominee so appointed.
Any bank, corporation or association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any bank, corporation or association resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any bank, corporation or association succeeding to all or substantially all of the corporate trust business of the Escrow Agent shall be the successor of the Escrow Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except on the part of any of the parties hereto where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
The Escrow Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”), given pursuant to this Escrow Agreement and delivered using 305639601.3
5 Electronic Means (“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Escrow Agent, or another method or system specified by the Escrow Agent as available for use in connection with its services hereunder); provided, however, that the City shall provide to the Escrow Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the City whenever a person is to be added or deleted from the listing. If the City elects to give the Escrow Agent Instructions using Electronic Means and the Escrow Agent in its discretion elects to act upon such Instructions, the Escrow Agent’s understanding of such Instructions shall be deemed controlling. The City understands and agrees that the Escrow Agent cannot determine the identity of the actual sender of such Instructions and that the Escrow Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Escrow Agent have been sent by such Authorized Officer. The City shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Escrow Agent and that the City and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the City. The Escrow Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Escrow Agent’s reliance upon and compliance with such Instructions, notwithstanding that such directions conflict or are inconsistent with a subsequent written instruction. The City agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Escrow Agent, including without limitation the risk of the Escrow Agent acting on unauthorized Instructions and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Escrow Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the City; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Escrow Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
SECTION 8. Amendments. This Escrow Agreement is made for the benefit of the City and the owners 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 owners, the Escrow Agent, and the City; provided, however, that the City and the Escrow Agent may, without the consent of or notice to such owners, amend this Escrow Agreement or enter into such agreements supplemental to this Escrow Agreement as shall not materially adversely affect the rights of such owners and as shall not be inconsistent with the terms and provisions of this Escrow Agreement or the applicable document pursuant to which such Refunded Bonds were issued, for any one or more of the following purposes: (i) to cure any ambiguity or formal defect or omission in this Escrow Agreement and (ii) to include under this Escrow Agreement additional funds, securities or properties. The Escrow Agent shall be entitled to rely conclusively upon an opinion of nationally recognized municipal bond counsel 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 owners of the Refunded Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section.
305639601.3
6 SECTION 9. Term. This Escrow Agreement shall commence upon its execution and delivery and shall terminate on the later to occur of either (i) the date upon which all of the Refunded Bonds have been paid in accordance with this Escrow Agreement or (ii) the date upon which no unclaimed moneys remain on deposit with the Escrow Agent pursuant to Section 2(c) of this Escrow Agreement.
SECTION 10. Compensation. The Escrow Agent shall receive its reasonable fees and expenses as previously agreed to by the Escrow Agent and the City; provided, however, that under no circumstances shall the Escrow Agent be entitled to any lien whatsoever on any moneys or obligations in the Escrow Fund for the payment of fees and expenses for services rendered or expenses incurred by the Escrow Agent under this Escrow Agreement.
SECTION 11. Severability. If any one or more of the covenants or agreements provided in this Escrow Agreement on the part of the City or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenants or agreements shall be null and void and shall be deemed separate from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Escrow Agreement.
SECTION 12. Counterparts. This Escrow Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all of which shall constitute and be but one and the same instrument.
SECTION 13. Governing Law. THIS ESCROW AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
SECTION 14. Insufficient Funds. If at any time the moneys in the Escrow Fund will not be sufficient to make all payments required by this Escrow Agreement, the Escrow Agent shall notify the City in writing, immediately upon becoming aware of such deficiency, of the amount thereof and the reason therefor, if known. The Escrow Agent shall have no further responsibility regarding any such deficiency.
SECTION 15. Electronic Signatures. Each of the parties hereto agrees that the transaction consisting of this Escrow Agreement may be conducted by electronic means. Each party agrees, and acknowledges that it is such party’s intent, that if such party signs this Escrow Agreement using an electronic signature, it is signing, adopting, and accepting this Escrow Agreement and that signing this Escrow Agreement using an electronic signature is the legal equivalent of having placed its handwritten signature on this Escrow Agreement on paper. Each party acknowledges that it is being provided with an electronic or paper copy of this Escrow Agreement in a usable format.
305639601.3
7 IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed by their duly authorized officers and attested as of the date first above written.
CITY OF ANAHEIM
By _______________________________________
Public Utilities Acting General Manager
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION,
as Escrow Agent
By _______________________________________
Authorized Officer
305639601.3
SCHEDULE I
ESCROW REQUIREMENTS FOR REFUNDED BONDS
305639601.3
Exhibit A
NOTICE OF REDEMPTION TO THE OWNERS OF
ANAHEIM HOUSING AND PUBLIC IMPROVEMENTS AUTHORITY
REVENUE [REFUNDING] BONDS, [SERIES 2022-A (WATER
SYSTEM PROJECT)]/[SERIES 2022-B (WATER SYSTEM REFUNDING) (TAXABLE)]/[SERIES 2022-C (WATER SYSTEM REFUNDING)]
NOTICE IS HEREBY GIVEN pursuant to the terms of the Indenture of Trust, dated as of [March 1, 2020]/[April 1, 2022] (the “Indenture”), by and among the Anaheim Housing and Public Improvements Authority (the “Authority”), the City of Anaheim and U.S. Bank Trust Company, National Association, as successor trustee, that the Anaheim Housing and Public Improvements Authority Revenue [Refunding] Bonds, [Series 2022-A (Water System Project)]/[Series 2022-B (Water System Refunding) (Taxable)]/[Series 2022-C (Water System Refunding)], issued on [March 4, 2020]/[April 28, 2022], in the principal amount of $__________, as listed below (the “Refunded Bonds”), have been selected for redemption on [October 1, 2027] (the “Redemption Date”) at a redemption price equal to the principal amount of the Refunded Bonds to be redeemed (the “Redemption Price”), together with interest accrued to the Redemption Date.
Refunded [Series 2022-A (Water System Project)]/[Series 2022-B (Water System Refunding) (Taxable)]/[Series 2022-C (Water System Refunding)] Bonds Maturity Date
(October 1)
Principal
Amount
Outstanding
Interest
Rate
CUSIP*
(032556)
2026 $ %
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
2039
2040
2045
2050
305639601.3
There has been deposited with U.S. Bank Trust Company, National Association, as escrow agent (the “Escrow Agent”), moneys in an amount that will be sufficient (as evidenced by the accountants’ report delivered to the Escrow Agent) (i) to pay interest coming due on the Refunded Bonds on [October 1, 2027] and (ii) to redeem the Refunded Bonds on [October 1, 2027] at the Redemption Price. The Redemption Price of, and interest on, such Refunded Bonds shall be paid only from amounts deposited with the Escrow Agent as aforesaid. As a result of such deposit, such Refunded Bonds are deemed to have been paid in accordance with the applicable provisions of the Indenture pursuant to which the Refunded Bonds were issued.
Pursuant to the governing documents, payment of the Redemption Price on the Refunded Bonds called for redemption will be paid upon presentation of the Refunded Bonds in the following manner:
If by Mail:
U.S. Bank Trust Company, National
Association
Global Corporate Trust Services
111 Fillmore Ave. E
St. Paul, MN 55107
If by Hand or Overnight Mail:
U.S. Bank Trust Company, National
Association
Global Corporate Trust Services
111 Fillmore Ave. E
St. Paul, MN 55107
1-800-934-6802
Bondholders presenting their bonds in person for same day payment must surrender their bond(s) by 1:00 P.M. CST on the Redemption Date and a check will be available for pick up after 2:00 P.M.
CST. Checks not picked up by 4:30 P.M. will be mailed out to the bondholder via first class mail.
If payment of the redemption price is to be made to the registered owner of the Bond, you are not required to endorse the Bond to collect the redemption price.
Interest on the principal amount designated to be redeemed shall cease to accrue or accrete on and after the Redemption Date.
REQUIREMENT INFORMATION
For a list of redemption requirements please visit our website at www.usbank.com/corporatetrust and click on the “Bondholder Information” link.
IMPORTANT NOTICE
Federal law requires the Escrow Agent to withhold taxes at the applicable rate from the payment if an IRS Form W-9 or applicable IRS Form W-8 is not provided. Please visit www.irs.gov for additional information on the tax forms and instructions.
Dated: __________, 2027
By: U.S. Bank Trust Company, National Association,
as Trustee and Escrow Agent