HomeMy WebLinkAboutResolution 2022-012RESOLUTION NO. 2022-012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS, AUTHORIZING THE DEFEASANCE AND
CALLING FOR REDEMPTION OF CERTAIN CURRENTLY OUTSTANDING
DEBT OBLIGATIONS OF THE CITY; DIRECTING THAT AUTHORIZED CITY
OFFICIALS EFFECTUATE THE DEFEASANCE AND REDEMPTION OF
SUCH OBLIGATIONS; AND RESOLVING OTHER MATTERS INCIDENT AND
RELATED TO THE REDEMPTION AND DEFEASANCE OF SUCH
OBLIGATIONS.
WHEREAS, pursuant to ordinances passed and adopted by the City Council of the City
of North Richland Hills, Texas (the "City"), the following described obligations
were duly authorized to be issued and are currently outstanding, to wit:
(1) "City of North Richland Hills, Texas, Tax and Waterworks and Sewer
System (Limited Pledge) Revenue Certificates of Obligations, Series 2010,"
dated May 15, 2010 (the "Series 2010 Obligations);
(2) "City of North Richland Hills, Texas, General Obligation Refunding
Bonds, Series 2012," dated December 1, 2011 (the "Series 2012 Bonds");
(3) "City of North Richland Hills, Texas, General Obligation Refunding and
Improvement Bonds, Series 2014," dated October 15, 2014 (the "Series
2014 Bonds"); and
(4) "City of North Richland Hills, Texas, General Obligation Refunding
Bonds, Series 2016," dated February 15, 2016 (the "Series 2016 Bonds");
and
WHEREAS, the City Council hereby finds and determines that it is in the best interest of
the City and the citizens of the City to defease the
(1) Series 2010 Obligations maturing on February 15 in each of the years
2023 through 2027, inclusive, in the aggregate principal amount of
$5,525,000,
(2) Series 2012 Bonds maturing on February 15, 2023, in the aggregate
principal amount of $105,000,
(1) the Series 2014 Bonds maturing on February 15 in each of the years
2023 through 2026, inclusive, in the aggregate principal amount of
$1,610,000, and
(4) the Series 2016 Bonds maturing on February 15 in each of the years
2023 through 2027, inclusive, in the aggregate principal amount of
$490,000 (such obligations are collectively hereinafter referred to as the
"Defeased Obligations"); and
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WHEREAS, each of the Defeased Obligations are subject to redemption prior to their
maturity, at the option of the City; and
WHEREAS, in accordance with the provisions of Texas Government Code, Sections
1207.061 and 1207.062, as amended (the "Act"), the City is authorized and
empowered to deposit funds and/or securities directly with the place of
payment for the Defeased Obligations, or other authorized depository, and
enter into an escrow or similar agreement with such place of payment for the
safekeeping, investment, reinvestment, administration and disbursement of
such deposit; and such deposit, when made in accordance with the Act, shall
constitute the making of firm banking and financial arrangements for the
discharge and full payment of the Defeased Obligations; and
WHEREAS, in accordance with the provisions of Texas Government Code, Sections
1207.061 and 1207.062, as amended (the "Act"), the City is authorized and
empowered to deposit funds and/or securities directly with the place of
payment for the Defeased Obligations, or other authorized depository, and
enter into an escrow or similar agreement with such place of payment for the
safekeeping, investment, reinvestment, administration and disbursement ,of
such deposit; and such deposit, when made in accordance with the Act, shall
constitute the making of firm banking and financial arrangements for the
discharge and full payment of the Defeased Obligations; and
WHEREAS, the City Council hereby finds and determines that such Escrow Agreement
for the payment and defeasance of the Defeased Obligations should be
approved and authorization for its execution provided; and
WHEREAS, the City Council further finds and determines that certain Defeased
Obligations should be redeemed prior to maturity on the dates and in the
manner hereinafter provided and in accordance with the requirements
prescribed therefor and notices of redemption of such obligations should be
approved and authorized by the City Council to be given at this time.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
NORTH RICHLAND HILLS, TEXAS, THAT:
SECTION 1. The Mayor, Mayor Pro Tem, City Manager, Deputy City Manager, Assistant
City Manager, Director of Finance or City Secretary (each of the foregoing,
an "Authorized Official') is hereby authorized and directed, from lawfully
available and otherwise unencumbered funds of the City, to cause the sum
needed to pay the principal of, premium, if any, and interest on the
Defeased Obligations to their maturity and/or redemption dates, as
applicable, to be deposited with The Bank of New York Mellon Trust
Company, N.A., Dallas, Texas, as paying agent/registrar for the Defeased
Obligations (in such capacity, the "Paying Agent/Registrar"), or as Escrow
Agent pursuant to the Escrow Agreement (defined below).
SECTION 2. The Escrow Agreement, dated as of March 15, 2022 (the "Escrow
Agreement"), by and between the City and the Escrow Agent and relating
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to the Defeased Obligations, attached hereto as Exhibit E and incorporated
herein by reference as a part of this Resolution for all purposes, is hereby
approved as to form and content. The Escrow Agreement, together with
such changes or revisions as may be necessary to accomplish the
defeasance of the Defeased Obligations or benefit the City, is hereby
authorized to be executed by the Mayor or Mayor Pro Tern for and on behalf
of the City and as the act and deed of this City Council; and such Escrow
Agreement as executed by such officials shall be deemed approved by the
City Council and constitute the Escrow Agreement herein approved.
Furthermore, each Authorized Official, the City's Financial Advisor, and
Bond Counsel, in cooperation with the Escrow Agent, are hereby authorized
and directed to make the necessary arrangements for the deposit of cash
and/or the purchase of any securities referenced in the Escrow Agreement
and the delivery thereof to the Escrow Agent for deposit to the credit of the
escrow fund established pursuant to the Escrow Agreement (the "Escrow
Fund"), including the execution of the subscription forms, if any, for the
purchase and issuance of the "United States Treasury Securities State and
Local Government Series" for deposit to the Escrow Fund; all as
contemplated and provided by the provisions of the Act, the ordinances
authorizing the issuance of the Defeased Obligations, this Resolution, and
the Escrow Agreement.
SECTION 3. The Series 2010 Obligations, the Series 2012 Bonds, the Series 2014
Bonds and the Series 2016 Bonds are hereby called for redemption and
shall be redeemed as set forth in the forms of notice of redemption that are
attached hereto as Exhibit A through Exhibit D, respectively, and
incorporated herein by reference as a part of this Resolution for all
purposes. Each Authorized Official is hereby authorized and directed to file
a copy of this 69747654.3 - 3 - Resolution, together with such forms of
notice of redemption to be sent to holders, with the Paying Agent/Registrar,
in accordance with the redemption provisions applicable to such
obligations. Additionally, the Paying Agent/Registrar is hereby authorized
and directed to make a lot selection of the obligations to be redeemed and
make arrangements to notify obligation holders of such lot selection as soon
as possible. Each Authorized Official or other appropriate City official is
hereby authorized and directed to transfer lawfully available funds to the
Escrow Agent to accomplish the defeasance and redemption of the
Defeased Obligations in accordance with the terms of the Escrow
Agreement.
SECTION 4. The City Council hereby delegates to each Authorized Official the authority
to select a verification agent (the "Verification Agent") to verify the
sufficiency of the deposit to the Escrow Fund, and/or with the Paying
Agent/Registrar, to accomplish the defeasance of the Defeased
Obligations, to the extent such appointment is necessary or desired.
SECTION 5. Each Authorized Official is hereby authorized and directed to make all
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arrangements necessary to notify the holders of the obligations of the City's
decision to redeem such obligations on the dates and in the manner herein
provided and in accordance with the ordinances authorizing the issuance of
the Defeased Obligations. Each Authorized Official is authorized to provide
evidence of adoption of this Resolution and to do any and all things
necessary or convenient to effect the defeasance and redemption
described herein and otherwise give effect to the intent and purpose hereof,
including the selection of a verification agent and execution of the Escrow
Agreement.
SECTION 6. The City Council hereby approves payment from lawfully available City
funds of professional fees and expenses of the City's Bond Counsel, the
City's Financial Advisor, the Escrow Agent, the Verification Agent, the
Paying Agent/Registrar, and any other party whose services have been
determined by the City to be necessary to accomplish the purpose and
intent of this Resolution.
SECTION 7. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes
and are adopted as a part of the judgement and findings of the City Council.
SECTION 8. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the
time, place, and subject matter of the public business to be considered at
such meeting, including this Resolution, was given, all as required by Texas
Government Code, Chapter 551, as amended.
SECTION 9. This Resolution shall be in force and effect from and after its passage on
the date shown below.
PASSED AND APPROVED on this 14th day of February, 2022.
CITY OF RT H AND HILLS
1Wuuintn /0##, By:
,����.�`�•� �L. 4" Oscar Trevino ayor
ATTEST:
Et%
Alicia Richardson , '••..,,,., .•�' �\������
City Secretary/Chief Gov'� 1 „ i1)cer
Resolution No. 2022-012
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APPROVED AS TO FORM AND LEGALITY:
Maleshia B. McGinnis, City Attorney
APPROVED AS TO CONTENT:
Mark C. Mills, Director of Finance
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement"), made and entered into as of March
15, 2022, by and between the City of North Richland Hills, Texas, a governmental agency, body
politic and corporate and political subdivision of the State of Texas in Tarrant County (the
"City"), and The Bank of New York Mellon Trust Company, N.A., Dallas, Texas (the "Escrow
Agent"), a national banking association organized and existing under the laws of the United
States of America,
WITNESSETH:
WHEREAS, the City Council of the City has heretofore issued, sold, and delivered and
there is currently outstanding obligations in the aggregate principal amount of $2,100,000 of the
following issues or series (hereinafter collectively referred to as the "Defeased Bonds"), to wit:
(1) "City of North Richland Hills, Texas, General Obligation Refunding
and Improvement Bonds, Series 2014," dated October 15, 2014, scheduled to
mature on February 15 in each of the years 2023 through 2026, inclusive, and
aggregating in the principal amount of $1,610,000 (the "Series 2014 Defeased
Bonds");
(2) "City of North Richland Hills, Texas, General Obligation Refunding
Bonds, Series 2016," dated February 15, 2016 scheduled to mature on
February 15 in each of the years 2023 through 2027, inclusive, and aggregating
in the principal amount of $490,000 (the "Series 2016 Defeased Bonds"); and
WHEREAS, in accordance with the provisions of Texas Government Code, Chapter
1207, as amended (the "Act"), the City is authorized to deposit funds with the place of payment
for the Defeased Bonds, or other authorized depository, and enter into an escrow or similar
agreement with such place of payment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and conditions as the parties
may agree, provided such deposits may be invested only (i) direct noncallable obligations of the
United States of America, including obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America, (ii) noncallable obligations of an
agency or instrumentality of the United States, including obligations unconditionally guaranteed
or insured by the agency or instrumentality and on the date of their acquisition or purchase by
the City are rated as to investment quality by a nationally recognized investment rating firm not
less than AAA or its equivalent and (iii) noncallable obligations of a state or an agency or a
county, municipality, or other political subdivision of a state that have been refunded and on the
date of their acquisition or purchase by the City, are rated as to investment quality by a
nationally recognized investment rating firm not less than AAA or its equivalent (hereinafter
called "Governmental Securities") that mature and/or bear interest payable at such times and in
such amounts as will be sufficient to provide for the scheduled payment of the Defeased Bonds;
and
WHEREAS, the Defeased Bonds are scheduled to mature, or be redeemed, and interest
thereon is payable on the dates and in the manner set forth in Exhibit A attached hereto and
incorporated herein by reference as a part of this Agreement for all purposes; and
WHEREAS, the City on the 14th day of February, 2022, pursuant to a Resolution (the
"Resolution") finally passed and adopted by the City Council, authorized an Authorized Official
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(as defined in the Resolution) to transfer and deposit at the time specified therein certain
lawfully available funds of the City in an amount sufficient to pay, redeem, discharge, and make
final payment of the principal of and premium, if any, on the Defeased Bonds at their respective
stated maturity or redemption dates and interest thereon to such dates; and
WHEREAS, the City will cause funds to be deposited to the credit of the Escrow Fund
(as defined below) in an amount sufficient to purchase the Governmental Securities listed and
identified in the verification report prepared by Samuel Klein and Company, Certified Public
Accountants, in conjunction with Public Finance Partners LLC, attached hereto as Exhibit B (the
"Verification Report") (together with substituted securities therefor in accordance with the
provisions of Section 11 hereof hereinafter referred to as the "Escrowed Securities"); and
WHEREAS, the Escrowed Securities shall be held and deposited to the credit of the
"Escrow Fund" to be established and maintained by the Escrow Agent in accordance with this
Agreement; and
WHEREAS, the Escrowed Securities, together with the beginning cash balance in the
Escrow Fund, shall mature and the interestthereon shall be payable at such times to insure the
existence of monies sufficient to pay the principal amount of the Defeased Bonds and the
accrued interest thereon, as the same shall become due in accordance with the terms of the
ordinances authorizing the issuance of the Defeased Bonds and as set forth in Exhibit A
attached hereto; and
WHEREAS, the City has completed all arrangements for the purchase of the Escrowed
Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as
provided herein; and
WHEREAS, the Escrow Agent is a banking association organized and existing underthe
laws of the United States of America, possessing trust powers and is fully qualified and
empowered to enter into this Agreement; and
WHEREAS, in Section 2 of the Resolution, the City Council duly approved and
authorized the execution of this Agreement; and
WHEREAS, the City and the Escrow Agent, as the case may be, shall take all action
necessary to call, pay, redeem and retire such Defeased Bonds in accordance with the
provisions thereof, including, without limitation, all actions required by the ordinances
authorizing the Defeased Bonds, the Act, the Resolution and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and
to secure the payment of the principal of and the interest on the Defeased Bonds as the same
shall become due, the City and the Escrow Agent hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Defeased Bonds Ordinances. Receipt of true and correct
copies of the ordinances authorizing the issuance of the Defeased Bonds and the pricing
certificates related thereto, if any, and the Resolution are hereby acknowledged by the Escrow
Agent. Reference herein to or citation herein of any provision of such documents shall be
deemed an incorporation of such provision as a part hereof in the same manner and with the
same effect as if it were fully set forth herein.
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FURTHERMORE, the Escrow Agent acknowledges receipt of a copy of the Resolution
which provides for the redemption of the (i) Series 2014 Defeased Bonds maturing on February
15, 2025, and February 15, 2026, on February 15, 2024, at the price of par plus accrued interest
to the date of redemption, and (ii) the Series 2016 Defeased Bonds maturing on February 15,
2027, on February 15, 2026, at the price of par plus accrued interest to the date of redemption;
all in accordance with the provisions of the notice requirements applicable to such Defeased
Bonds and the notice requirements contained in the ordinances authorizing the issuance of the
Defeased Bonds.
The EscrowAgent, as paying agent/registrarfor the Defeased Bonds, agrees to cause a
notice of redemption pertaining thereto to be sent to the registered owners thereof appearing on
the registration books at least thirty (30) days prior to the respective redemption dates therefor.
SECTION 2: Escrow Fund Creation/Funding. There is hereby created by the City with
the Escrow Agent special segregated and irrevocable. trust funds designated "SPECIAL 2022
CITY OF NORTH RICHLAND HILLS, TEXAS, SERIES 2014 DEFEASED BONDS ESCROW
FUND" (the "2014 Escrow Fund") and "SPECIAL 2022 CITY OF NORTH RICHLAND HILLS,
TEXAS, SERIES 2016 DEFEASED BONDS ESCROW FUND" (the "2016 Escrow Fund" and,
together with the 2014 Escrow Fund, the "Escrow Fund") for the benefit of the holders of the
Defeased Bonds.
The City agrees and covenants to cause to be deposited with the Escrow Agent to the
credit of the 2014 Escrow Fund the following:
$1,694,409.00 for the purchase of the Escrowed Securities listed in
Exhibit B to be held for the account of the 2014
Escrow Fund;
$0.48 for deposit in the 2014 Escrow Fund as a beginning
cash balance.
The City further agrees and covenants to cause to be deposited with the EscrowAgent
to the credit of the 2016 Escrow Fund the following:
$513,205.00 for the purchase of the Escrowed Securities listed in
Exhibit B to be held for the account of the 2016
Escrow Fund;
$0.51 for deposit in the 2016 Escrow Fund as a beginning
cash balance.
The EscrowAgent hereby accepts the Escrow Fund and further agrees to receive such
moneys, apply the same as set forth herein, and to hold the cash and Escrowed Securities
deposited and credited to each Escrow Fund for application and disbursement for the purposes
and in the manner provided in this Agreement.
SECTION 3: Escrow Fund Sufficiency Warranty. The City hereby represents that the
cash and Escrowed Securities, togetherwith the interest to be earned thereon, deposited to the
credit of the Escrow Fund will be sufficient to pay the principal of and premium and interest on
the Defeased Bonds as the same shall become due and payable, and such Defeased Bonds,
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and the interest thereon, are to mature or be redeemed and shall be paid at the times and in the
amounts set forth and identified in Exhibit A attached hereto.
SECTION 4: Pledge of Escrow. The Escrow Agent agrees that all cash and Escrowed
Securities, togetherwith any income or interest earned thereon, held in the respective Escrow
Fund shall be and is hereby irrevocably pledged to the payment of the principal of and interest
on the respective series of Defeased Bonds which will mature and become due on and after the
date of this Agreement, and such funds initially deposited and to be received from maturing
principal and interest on the Escrowed Securities in the respective Escrow Fund shall be applied
solely in accordance with the provisions of this Agreement.
SECTION 5: Escrow Insufficiency. If, for any reason, at any time, the funds on hand in
the Escrow Fund shall be insufficient to make the payments set forth in Exhibit A attached
hereto, as the same becomes due and payable, notice of any such insufficiency shall be
immediately given by the Escrow Agent.to the City by the fastest means possible, but neither
the Escrow Agent nor the City shall in any manner be responsible for any insufficiency of funds
in the Escrow Fund.
SECTION 6: Escrow Fund Securities/Segregation. The EscrowAgent shall hold such
Escrowed Securities and moneys in each Escrow Fund at all times as a special and separate
trust fund for the benefit of the holders of the respective series of Defeased Bonds, wholly
segregated from other moneys and securities on deposit with the Escrow Agent; shall never
commingle such Escrowed Securities and moneys with other moneys or securities of the
Escrow Agent; and shall hold and dispose of the assets therein only as set forth herein. Nothing
herein contained shall be construed as requiring the Escrow Agent to keep the identical
moneys, or any part thereof, in such Escrow Fund, if it is impractical, but moneys of an equal
amount, except to the extent such are represented by the Escrowed Securities, shall always be
maintained on deposit in the respective Escrow Fund by the Escrow Agent and a special
account evidencing such facts shall at all times be maintained on the books of the Escrow
Agent.
SECTION 7: Escrow Fund Collections/Payments. The Escrow Agent shall from time to
time collect and receive the principal of and interest on the Escrowed Securities as they
respectively mature and become due and credit the same to the respective Escrow Fund. On or
before each principal and/or interest payment date or redemption date, as the case may be, for
the Defeased Bonds shown in Exhibit A attached hereto, the Escrow Agent, without further
direction from anyone, including the City,, shall cause to be withdrawn from the respective
Escrow Fund the amount required to pay the accrued interest on the respective series of
Defeased Bonds due and payable on such payment date and the principal of the respective
series of Defeased Bonds due and payable on such payment date or redemption date, as the
case may be, and the amount withdrawn from the respective Escrow Fund shall be immediately
transmitted and deposited with the paying agent for the Defeased Bonds to be paid with such
amount. The paying agent for the Defeased Bonds is the Escrow Agent.
If any Defeased Bonds or interest coupon thereon shall not be presented for payment
when the principal thereof or interestthereon shall have become due, and if cash shall at such
times be held by the Escrow Agent in trust for that purpose sufficient and available to pay the
principal of such Defeased Bonds and interest thereon it shall be the duty of the Escrow Agent
to hold such cash without liability to the holder of such Defeased Bonds for interest thereon after
such maturity or redemption date, in trust for the benefit of the holder of such Defeased Bonds,
who shall thereafter be restricted exclusively to such cash for any claim of whatever nature on
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his part on or with respect to such Defeased Bonds, including for any claim for the payment
thereof and interest thereon. All cash required by the provisions hereof to be set aside or held
in trust for the payment of the Defeased Bonds, including interest thereon, shall be applied to
and used solely for the payment of the Defeased Bonds and interest thereon with respect to
which such cash has been so set aside in trust.
Subject to the provisions of the last sentence of Section 25 hereof, cash held by the
Escrow Agent in trust for the payment and discharge of any of the Defeased Bonds and interest
thereon which remains unclaimed for a period of three (3) years after the stated maturity date or
redemption date of such Defeased Bonds shall be returned to the City. Notwithstanding the
above and foregoing, any remittance of funds from the EscrowAgent to the City shall be subject
to any applicable unclaimed property laws of the State of Texas.
SECTION 8: Disposal of Defeased Bonds. All Defeased Bonds cancelled on account
of payment by the Escrow Agent shall be cremated or otherwise destroyed by the Escrow
Agent, and an appropriate certificate of destruction furnished the City.
SECTION 9: Escrow Fund Encumbrance. The escrow created hereby shall be
irrevocable and the holders of the Defeased Bonds shall have an express lien on all moneys
and respective Escrowed Securities in the respective Escrow Fund until paid out, used and
applied in accordance with this Agreement.
Unless disbursed in payment of the Defeased Bonds, all funds and the Escrowed
Securities received by the Escrow Agent for the account of the City hereunder shall be and
remain the property of the Escrow Fund and the City and the owners of the Defeased Bonds
shall be entitled to a preferred claim and shall have a first Lien upon such respective funds and
respective Escrowed Securities enjoyed by a trust beneficiary. The funds and Escrowed
Securities received by the Escrow Agent under this Agreement shall not be considered as a
banking deposit by the City and the Escrow Agent and the City shall have no right or title with
respect thereto, except as otherwise provided herein. Such funds and Escrowed Securities
shall not be subject to checks or drafts drawn by the City.
SECTION 10: Absence of Claim/Lien on Escrow Fund. The EscrowAgent shall have no
lien whatsoever upon any of the moneys or Escrowed Securities in the Escrow Fund for
payment of services rendered hereunder, services rendered as paying agent/registrar for the
Defeased Bonds, or for any costs or expenses incurred hereunder and reimbursable from the
City.
SECTION 11: Substitution/Reinvestments. (a) The EscrowAgent shall be authorized to
accept initially and temporarily cash and/or substituted Governmental Securities pending the
delivery of the Escrowed Securities identified in Exhibit B attached hereto, or shall be authorimd
to redeem the Escrowed Securities and reinvest the proceeds thereof, together with other
moneys held in the respective Escrow Fund in Governmental Securities, provided such early
redemption and reinvestment of proceeds does not change the repayment schedule of the
Defeased Bonds appearing in Exhibit A and the Escrow Agent receives the following:
(1) an opinion by an independent certified public accountant to the
effect that (i) the initial and/or temporary substitution of cash and/or securities for
one or more of the Escrowed Securities identified in Exhibit B pending the receipt
and delivery thereof to the EscrowAgent or (ii) the redemption of one or more of
the Escrowed Securities and the reinvestment of such funds in one or more
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substituted Governmental Securities, together with the interest thereon and other
available moneys then held in the respective Escrow Fund, will, in either case, be
sufficient without reinvestment to pay, as the same become due in accordance
with Exhibit A, the principal of, and interest on, the respective series of .Defeased
Bonds which have not previously been paid, and
(2) with respect to an early redemption of Escrowed Securities and
the reinvestment of the proceeds thereof, an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a) such investment will not
cause interest on the Defeased Bonds to be included in the gross income for
federal income tax purposes, under the Code and related regulations as in effect
on the date of such investment, or otherwise make the interest on the Defeased
Bonds subject to Federal income taxation and (b) such reinvestment complies
with the Constitution and laws of the State of Texas and with all relevant
documents relating to the issuance of the Defeased Bonds.
(b) If on the date and in the amount shown in Exhibit C attached hereto there exists
cash in the Escrow Fund, the EscrowAgent and the City agree at least fifteen (15) days prior to
such date, to subscribe for the purchase of United States Treasury Securities - State and Local
Government Series (SLGS) bearing zero interest (0%) and on such date, in the amount and
scheduled to mature as provided in Exhibit C and subscription forms prepared therefor as may
be then' required by the United States Department of the Treasury; provided that the then
existing rules and regulations and policy of United States Department of the Treasury permit
and authorize such investments. Should the policy, rules and regulations of the United States
Department of Treasury not permit or authorize the purchase of such SLGS at such time or
times, such cash balance or balances shall remain uninvested and held in trust for the benefit of
the holders of the Defeased Bonds and used for the payment of the Defeased Bonds on the
dates and in the amount such moneys would have been expended had such SLGS been
acquired and matured.
SECTION 12: Restriction Re: Escrow Fund Investments/ Re -investment, Except as
provided in Section 11 hereof, moneys in the Escrow Fund will be invested only in the Escrowed
Securities listed in Exhibit B and neither the City nor the Escrow Agent shall reinvest any
moneys deposited in the Escrow Fund except as specifically provided by this Agreement.
SECTION 13: Excess Funds. If at any time through redemption or cancellation of the
Defeased Bonds there exists or will exist excesses of interest on or maturing principal of the
Escrowed Securities in excess of the amounts necessary hereunder for the Defeased Bonds,
the Escrow Agent may transfer such excess amounts to or on the order of the City, provided
that the City delivers to the Escrow Agent the following:
(1) an opinion by an independent certified public accountant that after
the transfer of such excess, the principal amount of securities in the respective
Escrow Fund, togetherwith the interest thereon and other available monies then
held in the respective Escrow Fund, will be sufficient to pay, as the same become
due, in accordance with Exhibit A, the principal of, and interest on, the respective
series of Defeased Bonds which have not previously been paid, and
(2) an unqualified opinion of nationally recognized municipal bond
counsel to the effect that (a) such transfer will not cause interest on the Defeased
Bonds to be included in gross income for federal income tax purposes, under the
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Code and related regulations as in effect on the date of such transfer, or
otherwise make the interest on the Defeased Bonds subject to Federal income
taxation, and (b) such transfer complies with the Constitution and laws of the
State of Texas and with all relevant documents relating to the issuance of the
Defeased Bonds.
SECTION 14: Collateralization. The EscrowAgent represents that the deposit covered
by this Agreement shall constitute firm banking arrangements to insure payment of the
Defeased Bonds and, to the extent not invested in Escrowed Securities, such deposit is
collateralized to insure against any loss or diminution by virtue of any action of the. Escrow
Agent or as a result of its lack of financial integrity and such deposit, if not invested in the
Escrowed Securities, will be continuously collateralized by securities or obligations which qualify
and are eligible under both the laws of the State of Texas and the laws of the United States of
America to secure and be pledged as collateral for paying agent accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
SECTION 15: Absence of Escrow Agent's Liability Re: Investments. The EscrowAgent
shall not be liable or responsible for any loss resulting from any investment made in the
Escrowed Securities or substitute securities as provided in Section 11 hereof.
SECTION 16: Escrow Agent's Compensation - Escrow Administration Settlement of
Paying Agents' Charges. The City agrees to pay the Escrow Agent for the performance of
services hereunder and as reimbursement for anticipated expenses to be incurred hereunder
the amount of $4,500 and, except for reimbursement of costs and expenses incurred by the
Escrow Agent pursuant to Sections 11 and 19 hereof, the Escrow Agent hereby agrees such
amount is full and complete payment for the administration of this Agreement; provided,
however, notwithstanding anything herein to the contrary, the aggregate value of this
Agreement shall not exceed the dollar limitation set forth in Section 2271.002(a)(2) of the Texas
Government Code or Section 2274.002(a)(2) of the Texas Government Code.
The City also agrees to deposit with the Escrow Agent on the effective date of this
Agreement, the sum of $1,000, which represents the total charges due the paying agent for the
Defeased Bonds and the Escrow Agent acknowledges and agrees that such amount is and
represents the total amount of compensation due the EscrowAgent for services rendered as
paying agent for the Defeased Bonds. The EscrowAgent hereby agrees to pay, assume and
be fully responsible for any additional charges that it may incur in the performance of its duties
and responsibilities as paying agent for the Defeased Bonds.
SECTION 17: Escrow Agent's Duties/Responsibilities/Liability. The EscrowAgent shall
not be responsible for any recital herein, except with respect to its organization and its powers
and authority. As to the existence or nonexistence of any fact relating to the City or as to the
sufficiency or validity of any instrument, paper or proceedings relating to the City, the Escrow
Agent shall be entitled to rely upon a certificate signed on behalf of the City by its City Secretary
or City Manager of the City as sufficient evidence of the facts therein contained. The Escrow
Agent may accept a certificate of the City Secretary under the City's seal, to the effect that a
resolution or other instrument in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other instrument has been duly
adopted and is in full force and effect.
The duties and obligations of the Escrow Agent shall be determined solely by the
express provisions of this Agreement and the EscrowAgent shall not be liable except for the
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performance of such duties and obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against the EscrowAgent.
In the absence of willful misconduct on the part of the Escrow Agent, the Escrow Agent
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificate or opinion furnished to the Escrow Agent, conforming to
the requirements of this Agreement; but notwithstanding any provision of this Agreement to the
contrary, in the case of any such certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the EscrowAgent, the EscrowAgent shall be
under a duty to examine the same to determine whether it conforms to the requirements of this
Agreement.
The EscrowAgent shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the EscrowAgent unless it shall be proven that the Escrow
Agent was negligent in ascertaining or acting upon the pertinent facts.
The Escrow Agent shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not less than a
majority in aggregate principal amount of all such Defeased Bonds at the time outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to
the Escrow Agent not in conflict with the intent and purpose of this Agreement. For the
purposes of determining whetherthe holders of the required principal amount of such Defeased
Bonds have concurred in any such direction, Defeased Bonds owned by any obligor upon the
Defeased Bonds, or by any person directly or indirectly controlling or controlled by or under
direct or indirect common control with such obligor, shall be disregarded, except that for the
purposes of determining whether the EscrowAgent shall be protected in relying on any such
direction only Defeased Bonds which the EscrowAgent actually knows are so owned shall be
so disregarded unless all Defeased Bonds are so owned.
The term "Responsible Officers" of the Escrow Agent, as used in this Agreement, shall
mean and include the Chairman of the Board of Directors, the President, any Vice President
and any Second Vice President, the Secretary and any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and every other officer and assistant officer of the Escrow Agent
customarily performing functions similar to those performed by the persons who at the time shall
be officers, respectively, or to whom any corporate trust matter is referred, because of his
knowledge of and familiarity with a particular subject; and the term "Responsible Officer" of the
Escrow Agent, as used in this Agreement, shall mean and include any of such officers or
persons.
The Escrow Agent may consult with "independent legal counsel' (such term does not
include an attorney who is an employee of the Escrow Agent) and the Escrow Agent shall be
entitled to conclusively rely on such advice of such independent legal counsel in good faith.
Such advice or opinion of independent legal counsel, relied upon in good faith, shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it in
accordance with such advice. The Escrow Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its agents or
attorneys and may in all cases pay reasonable compensation to any agent or attorney retained
or employed by it in connection therewith. The EscrowAgent may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, written investment direction,
statement, instrument, opinion, notice or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party. The Escrow Agent need not
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investigate any fact or matter stated in the document. None of the provisions of this Agreement
shall require the EscrowAgent to expend or risk its own funds or otherwise to incur any liability,
financial or otherwise, in the performance of any of its duties hereunder.
To the extent permitted by law, the City shall indemnify, defend and hold harmless the
Escrow Agent and its officers, directors, employees, representatives and agents, from and
against and reimburse the Escrow Agent for any and all claims, obligations, liabilities, losses,
damages, actions, suits, judgments, reasonable costs and expenses (including reasonable
attorneys' and agents' fees and expenses) of whatever kind or nature regardless of their merit,
demanded, asserted or claimed against the Escrow Agent directly or indirectly relating to, or
arising from, claims against the Escrow Agent by reason of its participation in the transactions
contemplated hereby, except to the extent caused by the Escrow Agent's negligence or willful
misconduct. The foregoing indemnity shall survive the termination of this Agreement or the
earlier resignation or removal of the EscrowAgent.
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 EscrowAgent shall be a party, or any
bank, corporation or association succeeding to all or substantially all of the corporate trust
business of the EscrowAgent shall be the successor of the EscrowAgent hereunderwithout 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.
SECTION 18: Limitation Re: Escrow Agent's Duties/Responsibilities/Liabilities to Third
Parties. The Escrow Agent shall not be responsible or liable to any person in any manner
whatever for the sufficiency, correctness, genuineness, effectiveness, or validity of this
Agreement with respect to the City, or for the identity or authority of any person making or
executing this Agreement for and on behalf of the City. The Escrow Agent is authorized by the
City to rely upon the representations of the City with respect to this Agreement and the deposits
made pursuant hereto and as to the City's right and power to execute and deliver this
Agreement, and the EscrowAgent shall not be liable in any manner as a result of such reliance.
The duty of the Escrow Agent hereunder shall only be to the City and the holders of the
Defeased Bonds. Neither the City nor the EscrowAgent shall assign or attempt to assign or
transfer any interest hereunder or any portion of any such interest; provided, however, that such
assignment or transfer by the EscrowAgent shall be permitted if such assignment or transfer is
due to a merger, consolidation, conversion, or business sale of the EscrowAgent as described
in the last paragraph of Section 17 hereof. Any such assignment or attempted assignment shall
be in direct conflict with this Agreement and be without effect.
SECTION 19: Interpleader. In the event conflicting demands or notices are made upon
the EscrowAgent growing out of or relating to this Agreement or the EscrowAgent in good faith
is in doubt as to what action should be taken hereunder, the EscrowAgent shall have the right
at its election to:
(a) Withhold and stop all further proceedings in, and performance of, this Agreement
with respect to the issue in question and of all instructions received hereunder in regard to such
issue; and
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(b) File a suit in interpleader and obtain an order from a court of appropriate jurisdiction
requiring all persons involved to interplead and litigate in such court their several claims and
rights among themselves.
In the event the Escrow Agent becomes involved in litigation in connection with this
Section, the City, to the extent permitted by law, agrees to indemnify and save the Escrow
Agent harmless from all loss, cost, damages, expenses and attorney fees suffered or incurred
by the Escrow Agent as a result thereof. The obligations of the Escrow Agent under this
Agreement shall be performable at the corporate office of the Escrow Agent in the City of
Dallas, Texas. To the extent permitted by law, and subject to any applicable statutes of
limitation, the foregoing indemnification shall survive the resignation or removal of the Escrow
Agent or the termination of this Agreement.
The EscrowAgent may advise with legal counsel in the event of any dispute or question
regarding the construction of any of the provisions hereof or its duties hereunder, and in the
absence of negligence or willful misconduct on the part of the EscrowAgent, no liability shall be
incurred by the Escrow Agent for any action taken pursuant to this Section and the Escrow
Agent shall be fully protected in acting in accordance with the opinion and instructions of legal
counsel that is knowledgeable and has expertise in the field of law addressed in any such legal
opinion or with respect to the instructions given.
SECTION 20: Accounting - Annual Report. Promptly after September30th of each year,
commencing with the year 2022, while the Escrow Fund is maintained under this Agreement,
the Escrow Agent shall forward to the City, to the attention of the Finance Director, or other
designated official of the City, a statement in detail of the Escrowed Securities and monies held,
and the current income and maturities thereof, and the withdrawals of money from the Escrow
Fund for the preceding 12 month period ending September 30th of each year.
SECTION 21: Notices. Any notice, authorization, request or demand required or
permitted to be given hereunder shall be in writing and shall be deemed to have been duly given
when mailed by registered or certified mail, postage prepaid addressed as follows:
CITY OF NORTH RICHLAND HILLS, TEXAS
P. O. Box 820609
North Richland Hills, Texas 76182-0609
Attention: Finance Director
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
2001 Bryan Street, 10th Floor
Dallas, Texas 75201
Attention: Corporate Trust Division
The United States Post Office registered or certified mail receipt showing delivery of the
aforesaid shall be conclusive evidence of the date and fact of delivery.
Any party hereto may change the address to which notices are to be delivered by giving
to the other parties not less than ten (10) days prior notice thereof.
SECTION22: Performance Date. Whenever under the terms of this Agreement the
performance date of any provision hereof, including the date of maturity or interest on or
principal of the Defeased Bonds, shall be a Sunday or a legal holiday or a day on which the
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Escrow Agent is authorized by law to close, then the performance thereof, including the
payment of principal of and interest on the Defeased Bonds, need not be made on such date
but may be performed or paid, as the case may be, on the next succeeding business day of the
Escrow Agent with the same force and effect as if made on the date of performance or payment
and with respect to a payment, no interest shall accrue for the period after such date.
SECTION 23: Warranty of Parties Re: Power to Execute and Deliver Escrow
Agreement. The City covenantsthat it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Agreement, in any and every such
Defeased Bonds as executed, authenticated and delivered and in all proceedings pertaining
thereto as such Defeased Bonds shall have been modified as provided in this Agreement. The
City covenants that it is duly authorized underthe Constitution and laws of the State of Texas to
execute and deliver this Agreement, that all actions on its part for the payment of such
Defeased Bonds as provided herein and the execution and delivery of this Agreement have
been duly and effectively taken and that such Defeased Bonds and coupons in the hands of the
holders and owners thereof are and will be valid and enforceable obligations of the City
according to the import thereof as provided in this Agreement.
SECTION 24: Severability. If any one or more of the covenants or agreements provided
in this Agreement on the part of the parties 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. In the event
any covenant or agreement contained in this Agreement is declared to be severable from the
other provisions of this Agreement, written notice of such event shall immediately be given to
each national rating service (Moody's Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Defeased Bonds on the basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate when the Defeased Bonds,
including interest due thereon, have been paid and discharged in accordance with the
provisions of this Agreement. If any Defeased Bonds are not presented for payment when due
and payable, the nonpayment thereof shall not prevent the termination of this Agreement.
Funds for the payment of any nonpresented Defeased Bonds and accrued interest thereon shall
upon termination of this Agreement beheld by the Escrow Agent for such purpose in
accordance with Section 7 hereof. Any moneys or Escrowed Securities held in the Escrow
Fund at termination and not needed for the payment of the principal of or interest on any of the
Defeased Bonds shall be paid or transferred to the City.
SECTION 26: Time of the Essence. Time shall be of the essence in the performance of
obligations from time to time imposed upon the Escrow Agent by this Agreement.
SECTION 27: Successors/Assigns.
(a) Should the Escrow Agent not be able to legally serve or perform the duties and
obligations under this Agreement, or should the Escrow Agent be declared to be insolvent or
closed for any reason by federal or state regulatory authorities or a court of competent
jurisdiction, the City, upon being notified or discovering the Escrow Agent's inability or
disqualification to serve hereunder, shall forthwith appoint a successor to replace the Escrow
Agent, and upon being notified of such appointment, the EscrowAgent shall (i) transfer all funds
and securities held hereunder, together with all books, records and accounts relating to the
Escrow Fund and the Defeased Bonds, to such successor and (ii) assign all rights, duties and
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obligations under this Agreement to such successor. If the City should fail to appoint such a
successor within sixty (60) days from the date the City discovers, or is notified of, the event or
circumstance causing the Escrow Agent's inability or disqualification to serve hereunder, the
Escrow Agent, or a bondholder of the Defeased Bonds, may apply, at the expense of the City,
to a court of competent jurisdiction to appoint a successor or assigns of the Escrow Agent and
such court, upon determining the EscrowAgent is unable to continue to serve, shall appoint a
successor to serve under this Agreement and the amount of compensation, if any, to be paid to
such successor for the remainder of the term of this Agreement for services to be rendered both
for administering the Escrow Fund and for paying agent duties and responsibilities for the
Defeased Bonds.
(b) Furthermore, the EscrowAgent may resign and be discharged from performing its
duties and responsibilities underthis Agreement upon notifying the City in writing of its intention
to resign and requesting the City to appoint a successor. No such resignation shall take effect
until a successor has been appointed by the City and such successor has accepted such
appointment and agreed to perform all duties and obligations hereunder for a total
compensation equal to the unearned proportional amount paid the EscrowAgent under Section
16 hereof for the administration of this Agreement and the unearned proportional amount of the
paying agents fees for the Defeased Bonds due the EscrowAgent. If the City does not make
such appointment within sixty (60) days of the date that such resignation notice is sent to the
City, the Escrow Agent shall be entitled to petition of a court of competent jurisdiction for the
appointment of a successor.
Any successor to the Escrow Agent shall be a bank, trust company or other financial
institution that is duly qualified under applicable law (the Act, or other appropriate statute) to
serve as escrow agent hereunder and authorized and empowered to perform the duties and
obligations contemplated by this Agreement and organized and doing business under the laws
of the United States or the State of Texas, having an office and place of business in the State of
Texas, having a combined capital and surplus of at least $5,000,000 and be subject to the
supervision or examination by Federal or State authority.
Any successor or assigns to the EscrowAgent shall execute, acknowledge and deliver
to the City and the Escrow Agent, or its successor or assigns, an instrument accepting such
appointment hereunder, and the Escrow Agent shall execute and deliver an instrument
transferring to such successor, subject to the terms of this Agreement, all the rights, powers and
trusts created and established and to be performed under this Agreement Upon the request of
any such successor EscrowAgent, the City shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to such successor Escrow Agent all such
rights, powers and duties. The term "EscrowAgent as used herein shall be the Escrow Agent
and its legal assigns and successor hereunder.
SECTION 28: Escrow Agreement - Amendment/Modification. This Agreement shall be
binding upon the City and the Escrow Agent and their respective successors and legal
representatives and shall inure solely to the benefit of the holders of the Defeased Bonds, the
City, the EscrowAgent and their respective successors and legal representatives. Furthermore,
no alteration, amendment or modification of any provision of this Agreement (1) shall alter the
firm financial arrangements made for the payment of the Defeased Bonds or (2) shall be
effective unless (i) prior written consent of such alteration, amendment or modification shall
have been obtained from the holders of all Defeased Bonds outstanding at the time of such
alteration, amendment or modification and (ii) such alteration, amendment or modification is in
writing and signed by the parties hereto; provided, however, the City and the Escrow Agent
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may, without the consent of the holders of the Defeased Bonds, amend or modify the terms and
provisions of this Agreement to cure in a manner not materially adverse to the holders of the
Defeased Bonds as evidenced by an opinion of counsel delivered to the Escrow Agent any
ambiguity, formal defect or omission in this Agreement. If the parties hereto agree to any
amendment or modification to this Agreement, prior written notice of such amendment or
proposed modification, together with the legal documents amending or modifying this
Agreement, shall be furnished to each national rating service (Standard & Poor's Corporation,
Moody's Investors Service or Fitch Investors Service) which has rated the Defeased Bonds on
the basis of this Agreement, prior to such amendment or modification being executed.
SECTION 29: Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 30: Executed 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 31: Iran. Sudan and Foreign Terrorists Organizations. The Escrow Agent
represents that neither it nor any of its parent company, wholly- or majority -owned subsidiaries,
and other affiliates is a company identified on a list prepared and maintained by the Texas
Comptroller of Public Accounts under Section 2252.153 or Section 2270.0201, Texas
Government Code, and posted on any of the following pages of such officer's internet website:
hftps://comptroller.texas.gov/purchasing/docs/Sudan-list.pdf,
https://comptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https://comptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to comply with Section 2252.152, Texas
Government Code, and to the.extent such Section does not contravene applicable Federal law
and excludes the Escrow Agent and each of its parent company, wholly- or majority -owned
subsidiaries, and other affiliates, if any, that the United States government has affirmatively
declared to be excluded from its federal sanctions regime relating to Sudan or Iran or any
federal sanctions regime relating to a foreign terrorist organization. The Escrow Agent
understands "affiliate" to mean an entity that controls, is controlled by, or is under common
control with the Escrow Agent within the meaning of SEC Rule 133(f), 17 C.F.R. § 230.133(f),
and exists to make a profit.
SECTION 32: Governing Law. This Agreement shall be governed by the laws of the
State of Texas and shall be effective as of the date first written above.
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
CITY OF NORTH RICHLAND HILLS, TEXAS
ATTEST: `.%J11111111 APPROVED AS TO FORM AND LEGALITY:
co
City Secretary it Attorney
+''�18118111ot��®
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., Dallas, Texas, as Escrow Agent
Title: ASSOCIATE
ATTEST:
Title: Associate
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EXHIBIT A
(page 1 of 2)
DEBT SERVICE REQUIREMENTS FOR DEFEASED BONDS
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EXHIBIT A
(page 2 of 2)
DEBT SERVICE REQUIREMENTS FOR DEFEASED BONDS
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EXHIBIT B
VERIFICATION REPORT
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EXHIBIT C
ZERO REINVESTMENTS
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