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HomeMy WebLinkAboutResolution - 4578 - Special Escrow Agreement-Nationsbank Of Texas-Funds, Certificates Of Obligation - 08_11_1994Resolution No. 4578 August 11, 1994 Item #21 A RESOLUTION relating to the redemption of certain certificates of obligation, approving the form and content of a Special Escrow Agreement with NationsBank of Texas, National Association, for the deposit of funds in an amount sufficient to pay in full certain certificates of obligation and to pay in part certain certificates of obligation; authorizing the execution of such Agreement and resolving other matters incident and related thereto. WHEREAS, the City has heretofore issued and there are currently outstanding, obligations in the total principal amount of $6,295,000 of the following described issue: City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992 (the "Series 1992 Obligations"); WHEREAS, the City is authorized, in accordance with the ordinance authorizing the issuance of the Series 1992 Obligations to call for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption, the Series 1992 Obligations originally scheduled to mature on and after February 15, 2003, in the aggregate principal amount of $2,000,000 (hereinafter referred to as the "Defeased Obligations"); WHEREAS, in accordance with the provisions of Section 7A of Article 717k, V.A.T.C.S., as amended, the City is authorized and empowered to deposit available funds directly with any place of payment for the Defeased Obligations in an amount sufficient to provide for the full payment thereof, and such deposit, if made on or before the payment date for such obligations, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the obligations being paid; WHEREAS, in addition to the Defeased Obligations, the Series 1992 Obligations scheduled to mature on February 15 in each of the years 1995 through 2002 are outstanding in the aggregate principal amount of $4,295,000, but are not subject to redemption at the option of the City (hereinafter referred to as the "Non -callable Obligations"); WHEREAS, in order to reduce the amount of ad valorem property taxes that would otherwise be required to be assessed and collected with respect to the Non -callable Obligations, the City has determined to provide an invested sinking fund in an amount sufficient to fund $200,000, per maturity for the Non -callable Obligations scheduled to mature in each of the years 1995 through 2002; WHEREAS, a Special Escrow Agreement has been prepared in connection with the deposit of funds with NationsBank of Texas, 189311 *f National Association to provide for the final payment and discharge of the Defeased Obligations and for the creation of the invested sinking fund for the Non -callable Obligations, such agreement being attached hereto as Exhibit A and incorporated herein by reference as a part of this Resolution for all purposes; and WHEREAS, the Council hereby finds and determines that the form and content of the Special Escrow Agreement, providing for the deposit of funds with NationsBank of Texas, National Association for the final payment and discharge of the Defeased Obligations and for the creation of the invested sinking fund for the Non -callable Obligations should be approved; now, therefore, TEXAS: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, SECTION 1: That the above recitals are true and correct; SECTION 2: That the "Special Escrow Agreement", attached hereto as Exhibit A, and incorporated herein by reference as a part of this Resolution for all purposes, is hereby approved as to form and content, and such Agreement in substantially the form and substance attached hereto, is hereby authorized to be executed by the Mayor and City Secretary for and on behalf of the City and as the act and deed of the City Council; and such Agreement as executed by said officials shall be deemed approved by the City Council and constitute the Agreement herein approved. SECTION 3: That the City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992, originally scheduled to mature on February 15, 2003, and in each year thereafter (being $200,000 per year and aggregating $2,000,000 in principal amount) are hereby called for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption. SECTION 4: That the City Secretary is hereby directed to notify the Paying Agent/Registrar for the Defeased Obligations (NationsBank of Texas, National Association) of the decision to redeem the Defeased Obligations, the principal amount of each Stated Maturity to be redeemed, and the date of redemption therefor. SECTION 5: That the City Manager or any Assistant City Manager is hereby authorized and directed to cause to be deposited with NationsBank of Texas, National Association an amount not to exceed $3,617,000.00 on August 25, 1994, (or such later date as shall be mutually agreeable to the parties) in accordance with the terms of said Special Escrow Agreement. Such deposit shall be 189311 -2- made with amounts previously collected as a sales tax for economic development purposes. The City Manager or any Assistant City Manager, any one or more of such officials, are hereby authorized and directed to make the necessary arrangements for the purchase of the Federal Securities to be acquired and deposited to the credit of the "Escrow Fund" pursuant to the terms of the Special Escrow Agreement and such other arrangements as may be necessary for the for the final payment and discharge of the Defeased Obligations and the creation of the invested sinking fund for the Non -callable Obligations in accordance wi the reement and this Resolution. PASSED AND ADOPTED, t is A_gufit\ 11f, 19,q4: ATTEST: City ecret y (City Seal) 189311 -3- i Resolution No. 4578 August 11, 1994 • Item #21 SPECIAL ESCROW AGREEMENT THE STATE OF TEXAS § COUNTY OF LUBBOCK § THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), dated and made effective as of August 11, 1994, made by and between the City of Lubbock, Texas, a duly incorporated municipal corporation in the County of Lubbock, Texas (the "City"), acting by and through the Mayor and City Secretary, and NationsBank of Texas, National Association (the "Bank"), a banking association organized and existing under the laws of the United States of America, W I T N E S S E T H: WHEREAS, the City has heretofore issued and there are currently outstanding, obligations in the total principal amount of $6,295,000 of the following described issue: City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992 (the "Series 1992 Obligations"); WHEREAS, the City is authorized, in accordance with the ordinance authorizing the issuance of the Series 1992 Obligations to call for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption, the Series 1992 Obligations originally scheduled to mature on.and after February 15, 2003, in the aggregate principal amount of $2,000,000 (hereinafter referred to as the "Defeased Obligations"); WHEREAS, in accordance with the provisions of Section 7A of Article 717k, V.A.T.C.S., as amended, the City is authorized and empowered to deposit available funds directly with any place of payment for the Defeased Obligations in an amount sufficient to provide for the full payment thereof, and such deposit, if made on or before the payment date for such obligations, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the obligations being paid; WHEREAS, in addition to the Defeased Obligations, the Series 1992 Obligations scheduled to mature on February 15 in each of the years 1995 through 2002 are outstanding in the aggregate principal amount of $4,295,000, but are not subject to redemption at the option of the City (hereinafter referred to as the "Non -callable Obligations"); WHEREAS, in order to reduce the amount of ad valorem property taxes that would otherwise be required to be assessed and collected with respect to the Non -callable Obligations, the City has determined to provide an invested sinking fund in an amount sufficient to fund $200,000, per maturity for the Non -callable 189320 Obligations scheduled to mature in each of the years 1995 through 2002; WHEREAS, the Defeased Obligations are scheduled to mature 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, on the 25th day of August, 1994, the City will cause funds to be deposited to the credit of the Escrow Fund in an amount sufficient to purchase Federal Securities listed and identified in Exhibit B attached hereto and incorporated by reference as a part of this Agreement for all purposes; and WHEREAS, the Federal Securities shall be held and deposited to the credit of the "Escrow Fund" to be established and maintained by the Bank in accordance with this Agreement; and WHEREAS, the Federal Securities shall mature and the interest thereon shall be payable at such times (i) to insure the existence of moneys sufficient to pay the principal amount of the Defeased Obligations and the accrued interest thereon, as the same shall become due in accordance with the terms of the ordinance authorizing the issuance of the Defeased Obligations and (ii) to create an invested sinking fund to pay a portion of the Non - callable Obligations, in each case as set forth in Exhibit A attached hereto; and WHEREAS, the City has completed all arrangements for the purchase of the Federal Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as provided herein; and WHEREAS, the Bank is a banking association organized and existing under the laws of the United States of America, possessing trust powers and is fully qualified and empowered to enter into this Agreement; and WHEREAS, pursuant to a resolution, adopted on August 11, 1993, the City Council of the City approved and authorized the execution of this Agreement; and WHEREAS, the City and the Bank, as the case may be, shall take all action necessary to pay and retire said Defeased Obligations in accordance with the provisions thereof, including, without limitation, all actions required by the ordinance authorizing the Defeased Obligations, the Act 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 Obligations as the same shall become due, and to create an invested sinking fund for the Non- 189320 -2- callable Obligations, the City and the Bank hereby mutually undertake, promise and agree as follows: SECTION 1: Receipt of a true and correct copy of the ordinance authorizing the issuance of the Series 1992 Obligations is hereby acknowledged by the Bank. Reference to or citation herein of any provision of said 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. SECTION 2: There is hereby created by the City with the Bank a special segregated and irrevocable trust fund designated "SPECIAL 1994 CITY OF LUBBOCK, TEXAS, TAX AND WATERWORKS SYSTEM (LIMITED PLEDGE) REVENUE CERTIFICATES OF OBLIGATION ESCROW FUND" (hereinafter called the "Escrow Fund") for the payment of the Defeased Obligations and the payment of a portion of the Non - callable Obligations, and the City agrees and covenants to cause to be deposited with the Bank the following: $ 3,613,500.00 for the purchase of the Federal Securities identified in Exhibit B to be held for the account of the Escrow Fund; $ 3,500.00 for payment of escrow fees of NationsBank of Texas, N.A.; and The Bank hereby accepts the Escrow Fund and further agrees to receive said moneys, apply the same as set forth herein, and to hold the cash and Federal Securities deposited and credited to the Escrow Fund for application and disbursement for the purposes and in the manner provided in this Agreement. The City hereby allocates the Federal Securities to the Defeased Obligations and the Non -callable Obligations in accordance with Exhibit C attached hereto and incorporated by reference as a part of this Agreement for all purposes; such allocation of Federal Securities being based on the total amount of debt service on the Defeased Obligations and the Non -callable Obligations that will actually be paid from the Escrow Fund. SECTION 3: The City hereby represents that the Federal Securities specified in Section 2 hereof, together with the interest to be earned thereon, deposited to the credit of the Escrow Fund will be sufficient to pay the principal of and interest on the Defeased Obligations as the same shall become due and payable, and such Defeased Obligations, and the interest thereon, are to mature and shall be paid at the times and in the amounts set forth and identified in Exhibit A attached hereto. SECTION 4: The Bank agrees that all Federal Securities, together with any income or interest earned thereon, held in the 189320 -3- Escrow Fund shall be and is hereby irrevocably pledged to the payment of the principal of and interest on the Defeased Obligations and the Non -callable Obligations (in accordance with the allocation set forth on Exhibit C) 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 Federal Securities in the Escrow Fund shall be applied solely in accordance with the provisions of this Agreement. SECTION 5: If, for any reason, the funds on hand in the Escrow Fund shall be insufficient to make the payments for the Defeased Obligations set forth in Exhibit A attached hereto and as shown in the allocation set forth on Exhibit C, as the same becomes due and payable, the City shall make timely deposits to the Escrow Fund, from lawfully available funds, of additional funds in the amounts required to make such payments. Notice of any such insufficiency shall be immediately given by the Bank to the City by the fastest means possible, but the Bank shall in no manner be responsible for the City's failure to make such deposits. SECTION 6: The Bank shall hold said Federal Securities and moneys in the Escrow Fund at all times as a special and separate trust fund, wholly segregated from other moneys and securities on deposit with the Bank; shall never commingle said Federal Securities and moneys with other moneys or securities of the Bank; and shall hold and dispose of the assets therein only as set forth herein. Nothing herein contained shall be construed as requiring the Bank to keep the identical moneys, or any part thereof, in said Escrow Fund, if it is impractical, but moneys of an equal amount, except to the extent such are represented by the Federal Securities, shall always be maintained on deposit in the Escrow Fund by the Bank, as escrow agent; and a special account evidencing such facts shall at all times be maintained on the books of the Bank. SECTION 7: The Bank shall collect and receive the principal of and interest on the Federal Securities as they respectively mature and become due and credit the same to the Escrow Fund. On or before each principal and/or interest payment date for the Non - callable Obligations and the Defeased Obligations shown in Exhibit A attached hereto, the Bank, without further direction from anyone, including the City, shall cause to be withdrawn from the Escrow Fund the amounts (a) available to pay the accrued interest and the principal of the Non -callable Obligations due and payable on said payment date and (b) required to pay the accrued interest and the principal of the Defeased Obligations due and payable on said payment date and the amount withdrawn from the Escrow Fund shall be immediately transmitted and deposited with the paying agent for the Series 1992 Obligations to be paid with such amount. The paying agent for the Series 1992 Obligations is the Bank. 189320 -4- If any Defeased Obligation shall not be presented for payment when the principal amount shall have become due, and if cash shall at such times be held by the Bank in trust sufficient in amount and available to pay the principal of such Defeased Obligation, it shall be the duty of the Bank to hold said cash without any liability for additional interest thereon after such maturity date, in trust for the benefit of the party entitled to payment, which party or parties shall thereafter be restricted exclusively to said cash for any claim of whatever nature on their part on or with respect to said Defeased Obligation, including for any claim for the payment thereof. All cash required by the provisions hereof to be set aside or held in trust for the payment of the Defeased Obligations and interest thereon shall be applied to and used solely for the payment of the Defeased Obligations and accrued interest with respect to which such cash has been so set aside in trust. Subject to the provisions of the last sentence of Section 26 hereof, cash held by the Bank in trust for the payment and discharge of any of the Defeased Obligations which remains unclaimed for a period of four (4) years after the stated maturity date of such Defeased Obligations shall be returned to the City. Notwithstanding the above and foregoing, any remittance of funds from the Bank to the City shall be subject to any applicable unclaimed property laws of the State of Texas. SECTION 8: All Defeased Obligations canceled on account of payment by the Bank shall be cremated or otherwise destroyed by the Bank, and an appropriate certificate of destruction furnished the City. SECTION 9: The escrow created hereby shall be irrevocable and an express lien shall exist on all moneys and Federal Securities in the Escrow Fund as security for the payment of the Defeased Obligations until such funds are paid out, used, and applied in accordance with this Agreement. SECTION 10: The Bank shall have no lien whatsoever upon any of the moneys or Federal Securities in the Escrow Fund for payment of services rendered hereunder, services rendered as Paying Agent for the Series 1992 Obligations, or for any costs or expenses incurred hereunder and reimbursable from the City. SECTION 11: The Bank shall be authorized to accept initially and temporarily cash and/or substituted securities pending the delivery of the Federal Securities identified in the Exhibit B attached hereto, or shall be authorized to redeem the Federal Securities and reinvest the proceeds thereof, together with other moneys held in the Escrow Fund in noncallable direct obligations of the United States of America provided such early redemption and reinvestment of proceeds does not change the repayment schedule of the Defeased Obligations appearing in Exhibit A and the Bank receives the following: 189320 -5- (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 Federal Securities identified in Exhibit B pending the receipt and delivery thereof to the Escrow Agent or (ii) the redemption of one or more of the Federal Securities and the reinvestment of such funds in one or more substituted securities (which shall be noncallable direct obligations of the United States of America), together with the interest thereon and other available moneys then held in the Escrow Fund, will, in either case, be sufficient to pay, as the same become due in accordance with Exhibit A, the principal of, and interest on, the Defeased Obligations which have not previously been paid, and (2) with respect to an early redemption of Federal 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 obligations 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 Obligations 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 obligations. Further, as shown on Exhibit B hereto, the Bank is authorized to invest the proceeds of maturing Federal Securities in Zero Interest SLGS, on the dates and in the amounts shown on Exhibit B, to the extent such Zero Interest SLGS are available for investment. SECTION 12: Except as provided in Section 11 hereof, moneys in the Escrow Fund will be invested only in the Federal Securities listed in Exhibit B, and neither the City nor the Bank shall reinvest any moneys deposited in the Escrow Fund except as specifically provided by this Agreement. SECTION 13: If at any time there exists or it is determined an excess of interest on or maturing principal of the Federal Securities in excess of the aggregate amount needed to pay the Defeased Obligations, the Bank may transfer such excess amount to or on the order of the City. SECTION 14: The Bank shall continuously secure the moneys in the Escrow Fund not invested in Federal Securities by a pledge of direct obligations of the United States of America, in the par or face amount at least equal to the principal amount of said 189320 -6- uninvested moneys to the extent such money is not insured by the Federal Deposit Insurance Corporation. SECTION 15: The Bank shall not be liable or responsible for any loss resulting from any investment made in the Federal Securities. SECTION 16: The funds and Federal Securities received by the Bank under this Agreement shall not be considered as a banking deposit by the City and the Bank and the City shall have no right or title with respect thereto, except as otherwise provided herein. Such funds and Federal Securities shall not be subject to checks or drafts drawn by the City. SECTION 17: The City agrees to pay the Bank for the performance of services hereunder and as reimbursement for anticipated expenses to be incurred hereunder the amount of $3,500.00 and, except for reimbursement of costs and expenses incurred by the Bank pursuant to Sections 3 and 20 hereof, the Bank hereby agrees said amount is full and complete payment for the administration of this Agreement. The City also agrees to pay the Bank, the sum of $200.00 per year from lawfully available funds for the services rendered and to be rendered as paying agent for the Defeased Obligations and the Non -callable Obligations. The City acknowledges and agrees that the. above amount to be paid the Escrow Agent to cover paying agents' charges and expenses does not include amounts which shall become due and payable for services rendered as registrar and transfer agent for fully registered Defeased Obligations and Non -callable Obligations, and the City agrees to pay the Bank directly all reasonable costs, expenses and charges incurred in connection with the maintenance of the registration books and records and the transfer of such fully registered obligations as and when such costs, expenses and charges are incurred and against written invoices, statements or bills submitted therefor. SECTION 18: The Bank 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 Bank shall be entitled to rely upon a certificate signed on behalf of the City by its Mayor or City Manager of the City as sufficient evidence of the facts therein contained. The Bank 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. 189320 -7- The duties and obligations of the Bank shall be determined solely by the express provisions of this Agreement and the Bank shall not be liable except for the 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 Bank. In the absence of bad faith on the part of the Bank, the Bank 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 Bank, 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 Bank, the Bank shall be under a duty to examine the same to determine whether it conforms to the requirements of this Agreement. The Bank shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Bank unless it shall be proved that the Bank was negligent in ascertaining or acting upon the pertinent facts. The Bank 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 said Defeased Obligations at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Bank not in conflict with the intent and purpose of this Agreement. For the purposes of determining whether the holders of the required principal amount of said Defeased Obligations have concurred in any such direction, Defeased Obligations owned by any obligor upon the Defeased Obligations, 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 Bank shall be protected in relying on any such direction only Defeased Obligations which the Bank knows are so owned shall be so disregarded. The term "Responsible Officers" of the Bank, 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 Bank 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 Bank, as used in this Agreement, shall mean and include any of said officers or persons. 189320 -8- SECTION 19: Time shall be of the essence in the performance of obligations from time to time imposed upon the Bank by this Agreement. SECTION 20: In the event conflicting demands or notices are made upon the Bank growing out of or relating to this Agreement or the Bank in good faith is in doubt as to what action should be taken hereunder, the Bank 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 (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 Bank becomes involved in litigation in connection with this Section, the City to the extent permitted by law agrees to indemnify and save the Bank harmless from all loss, cost, damages, expenses and attorney fees suffered or incurred by the Bank as a result thereof. The obligations of the Bank under this Agreement shall be performable at the principal corporate office of the Bank in the City of Dallas, Texas. The Bank 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 bad faith on the part of the Bank, no liability shall be incurred by the Bank for any action taken pursuant to this Section and the Bank 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 21: Promptly after September 30 of each year, commencing with the year 1994, so long as the Escrow Fund is maintained under this Agreement, the Bank shall forward to the City, to the attention of the City Secretary, or other designated official of the City, a statement in detail of the Federal 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 22: 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: 189320 -9- CITY OF LUBBOCK: 1625 13th Street Lubbock, Texas Attention: Assistant City Manager for Financial Services NATIONSBANK OF TEXAS, N.A. 901 Main Street, 18th Floor Dallas, Texas 75202 Attention: Corporate Trust Department 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. SECTION 23: Whenever under the terms of this Agreement the performance date of any provision hereof, including the date of maturity of interest on or principal of the Defeased Obligations or the Non -callable Obligations, shall be a Sunday or a legal holiday or a day when the Bank is authorized by law to close, then the performance thereof, including the payment of principal of and interest on the Defeased Obligations, 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 Bank 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 24: The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Agreement, in any and every said Series 1992 Obligation as executed, authenticated and delivered and in all proceedings pertaining thereto as said Series 1992 Obligations shall have been modified as provided in this Agreement. The City covenants that it is duly authorized under the Constitution and laws of the State of Texas to execute and deliver this Agreement, that all actions on its part for the payment of said Series 1992 Obligations as provided herein and the execution and delivery of this Agreement have been duly and effectively taken and that said Series 1992 Obligations 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: If any one or more of the covenants or agreements provided in this Agreement on the part of the parties 189320 -10- 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 Moody's Investors Service, 99 Church Street, New York, New York 10007, Attention: Public Finance Rating Desk - Refunded Bonds. SECTION 26: This Agreement shall terminate when the Defeased Obligations, including interest due thereon, have been paid and discharged in accordance with the provisions of this Agreement. If any Defeased Obligations 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 Defeased Obligations, which are not presented for payment, and accrued interest thereon shall upon termination of this Agreement be held by the Bank for such purpose in accordance with Section 7 hereof. Any moneys or Federal 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 Obligations shall be paid or transferred to the City. SECTION 27: (a) Should the Bank not be able to legally serve or perform the duties and obligations under this Agreement, or should the Bank 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 Bank's inability or disqualification to serve hereunder, shall forthwith appoint a successor to replace the Bank, and upon being notified of such appointment, the Bank shall (i) transfer all funds and securities held hereunder, together with all books, records and accounts relating to the Escrow Fund and the Refunded Bonds, to such successor and (ii) assign all rights, duties and obligations under this Agreement to such successor. If the City should fail to appoint such a successor within ninety (90) days from the date the City discovers, or is notified of, the event or circumstance causing the Bank's inability or disqualification to serve hereunder, the Bank, or a bondholder of the Refunded Bonds, may apply to a court of competent jurisdiction to appoint a successor or assigns of the Bank and such court, upon determining the Bank 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 Refunded Bonds. (b) Furthermore, the Bank may resign and be discharged from performing its duties and responsibilities under this Agreement 189320 -11- 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 Bank under Section 16 hereof for the administration of this Agreement and the unearned proportional amount of the paying agents fees due the Bank. Any successor to the Bank shall be a commercial bank, trust company or other financial institution 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 its principal 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 Bank shall execute, acknowledge and deliver to the City and the Bank, or its successor or assigns, an instrument accepting such appointment hereunder, and the Bank 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 Bank, the City shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Bank all such rights, powers and duties. The term "Bank" as used herein shall be the Bank and its legal assigns and successor hereunder. SECTION 28: The Bank 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 on behalf of the City. The Bank 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 Bank shall not be liable in any manner as a result of such reliance. The duty of the Bank hereunder shall only be to the City and the holders of the Series 1992 Obligations. Neither the City nor the Bank shall assign or attempt to assign or transfer any interest hereunder or any portion of any such interest. Any such assignment or attempted assignment shall be in direct conflict with this Agreement and be without effect. SECTION 29: This Agreement shall be binding upon the City and the Bank and their respective successors and legal representatives and shall inure solely to the benefit of the holders of the Defeased Obligations, the City, the Bank and their 189320 -12- 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 Obligations 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 obligations 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 Bank may, without the consent of either the holders of the Defeased Obligations, amend or modify the terms and provisions of this Agreement to cure 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 Moody's Investors Service, 99 Church Street, New York, New York 10007, Attention: Public Finance Rating Desk - Refunded Bonds, prior to such amendment or modification being executed. SECTION 30: 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. This Agreement shall be governed by the laws of the State of Texas. 189320 -13- IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above writ ATTEST: city ecretar (City Seal) NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION as Escrow Agent Vice President ATTEST: Authorized Signer (Bank Seal) 189320 -14- KeSUlU_�iu(i i4U. `D/O r August 11, 1994 Item #21 CERTIFICATE OF CITY SECRETARY THE STATE OF TEXAS S S COUNTY OF LUBBOCK S S CITY OF LUBBOCK S I, the undersigned, City Secretary of the City of Lubbock, Texas, DO HEREBY CERTIFY as follows: 1. That on the 11th day of August, 1994, a regular meeting of the City Council of the City of Lubbock, Texas, was held at a meeting place within the City; the duly constituted members of the Council being as follows: DAVID R. LANGSTON RANDY NEUGEBAUER VICTOR HERNANDEZ T.J. PATTERSON WINDY "SITTON MAX INCE ALEX "TY" COOKE MAYOR COUNCILMEMBERS all of said persons were present at said meeting, except the following: Victor Hernandez Among other business considered at said meeting, the attached resolution entitled: "A RESOLUTION relating to the redemption of certain certificates of obligation, approving the form and content of a Special Escrow Agreement with NationsBank of Texas, National Association, for the deposit of funds in an amount sufficient to pay in full certain certificates of obligation and to pay in part certain certificates of obligation; authorizing the execution of such Agreement and resolving other matters incident and related thereto." was introduced and submitted to the Council for passage and adoption. After presentation and due consideration of the resolution, and upon a motion being made by Councilmember Windy Sittnn and seconded by Councilmember Randy Neugebauer the resolution was finally passed and adopted by the Council to be effective immediately by the following vote: ,_voted "For" _0 voted "Against" abstained 00190156 7 all as shown in the official Minutes of the Council for the meeting held on the aforesaid date. 2. That the attached resolution is a true and correct copy of the original on file in the official records of the City; the duly qualified and acting members of the City Council of the City on the date of the aforesaid meeting are those persons shown above and, according to the records of my office, advance notice of the time, place and purpose of the meeting was given to each member of the Council; and that said meeting, and the deliberation of the aforesaid public business, was open to the public and written notice of said meeting, including the subject of the above entitled resolution, was posted and given in advance thereof in compliance with the provisions of Chapter 551 of the Texas Government Code Ann. IN WITNESS WHEREOF, I have hereunto signed my name officially and affixed the seal of said City, this the llth day of August, 1994. (City Seal) 00107790 &-t;- Ac��a-') City eecreta' City of Lubbock, Texas -2- A RESOLUTION relating to the redemption of certain certificates of obligation, approving the form and content of a Special Escrow Agreement with NationsBank of Texas, National Association, for the deposit of funds in an amount sufficient to pay in full certain certificates of obligation and to pay in part certain certificates of obligation; authorizing the execution of such Agreement and resolving other matters incident and related thereto. WHEREAS, the City has heretofore issued and there are currently outstanding, obligations in the total principal amount of $6,295,000 of the following described issue: City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992 (the "Series 1992 Obligations"); WHEREAS, the City is authorized, in accordance with the ordinance authorizing the issuance of the Series 1992 Obligations to call for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption, the Series 1992 Obligations originally scheduled to mature on and after February 15, 2003, in the aggregate principal amount of $2,000,000 (hereinafter referred to as the "Defeased Obligations"); WHEREAS, in accordance with the provisions of Section 7A of Article 717k, V.A.T.C.S., as amended, the City is authorized and empowered to deposit available funds directly with any place of payment for the Defeased Obligations in an amount sufficient to provide for the full payment thereof, and such deposit, if made on or before the payment date for such obligations, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the obligations being paid; WHEREAS, in addition to the Defeased Obligations, the Series 1992 Obligations scheduled to mature on February 15 in each of the years 1995 through 2002 are outstanding in the aggregate principal amount of $4,295,000, but are not subject to redemption at the option of the City (hereinafter referred to as the "Non -callable Obligations"); WHEREAS, in order to reduce the amount of ad valorem property taxes that would otherwise be required to be assessed and collected with respect to the Non -callable Obligations, the City has determined to provide an invested sinking fund in an amount sufficient to fund $200,000, per maturity for the Non -callable Obligations scheduled to mature in each of the years 1995 through 2002; WHEREAS, a Special Escrow Agreement has been prepared in connection with the deposit of funds with NationsBank of Texas, 189311 National Association to provide for the final payment and discharge of the Defeased Obligations and for the creation of the invested sinking fund for the Non -callable Obligations, such agreement being attached hereto as Exhibit A and incorporated herein by reference as a part of this Resolution for all purposes; and WHEREAS, the Council hereby finds and determines that the form and content of the Special Escrow Agreement, providing for the deposit of funds with NationsBank of Texas, National Association for the final payment and discharge of the Defeased Obligations and for the creation of the invested sinking fund for the Non -callable Obligations should be approved; now, therefore, TEXAS: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, SECTION 1: That the above recitals are true and correct; SECTION 2: That the "Special Escrow Agreement", attached hereto as Exhibit A, and incorporated herein by reference as a part of this Resolution for all purposes, is hereby approved as to form and content, and such Agreement in substantially the form and substance attached hereto, is hereby authorized to be executed by the Mayor and City Secretary for and on behalf of the City and as the act and deed of the City Council; and such Agreement as executed by said officials shall be deemed approved by the City Council and constitute the Agreement herein approved. SECTION 3: That the City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992, originally scheduled to mature on February 15, 2003, and in each year thereafter (being $200,000 per year and aggregating $2,000,000 in principal amount) are hereby called for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption. SECTION 4: That the City Secretary is hereby directed to notify the Paying Agent/Registrar for the Defeased Obligations (NationsBank of Texas, National Association) of the decision to redeem the Defeased Obligations, the principal amount of each Stated Maturity to be redeemed, and the date of redemption therefor. SECTION 5: That the City Manager or any Assistant City Manager is hereby authorized and directed to cause to be deposited with NationsBank of Texas, National Association an amount not to exceed $3,617,000.00 on August 25, 1994, (or such later date as shall be mutually agreeable to the parties) in accordance with the terms of said Special Escrow Agreement. Such deposit shall be 189311 -2- made with amounts previously collected as a sales tax for economic development purposes. The City Manager or any Assistant City Manager, any one or more of such officials, are hereby authorized and directed to make the necessary arrangements for the purchase of the Federal Securities to be acquired and deposited to the credit of the "Escrow Fund" pursuant to the terms of the Special Escrow Agreement and such other arrangements as may be necessary for the for the final payment and discharge of the Defeased Obligations and the creation of the invested sinking fund for the Non -callable Obligations in accordance with the Agreement and this Resolution. PASSED AND ADOPTED, this August 11, 1994. CITY OF LUBBOCK, TEXAS ATTEST: City Secretary (City Seal) 189311 -3- Mayor SPECIAL ESCROW AGREEMENT THE STATE OF TEXAS § § COUNTY OF LUBBOCK § THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), dated and made effective as of August 11, 1994, made by and between the City of Lubbock, Texas, a duly incorporated municipal corporation in the County of Lubbock, Texas (the "City"), acting by and through the Mayor and City Secretary, and NationsBank of Texas, National Association (the "Bank"), a banking association organized and existing under the laws of the United States of America, W I T N E S S E T H: WHEREAS, the City has heretofore issued and there are currently outstanding, obligations in the total principal amount of $6,295,000 of the following described issue: City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992 (the "Series 1992 Obligations"); WHEREAS, the City is authorized, in accordance with the ordinance authorizing the issuance of the Series 1992 Obligations to call for redemption on February 15, 2002, at the price of par plus accrued interest to the date of redemption, the Series 1992 Obligations originally scheduled to mature on.and after February 15, 2003, in the aggregate principal amount of $2,000,000 (hereinafter referred to as the "Defeased Obligations"); WHEREAS, in accordance with the provisions of Section 7A of Article 717k, V.A.T.C.S., as amended, the City is authorized and empowered to deposit available funds directly with any place of payment for the Defeased Obligations in an amount sufficient to provide for the full payment thereof, and such deposit, if made on or before the payment date for such obligations, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the obligations being paid; WHEREAS, in addition to the Defeased Obligations, the Series 1992 Obligations scheduled to mature on February 15 in each of the years 1995 through 2002 are outstanding in the aggregate principal amount of $4,295,000, but are not subject to redemption at the option of the City (hereinafter referred to as the "Non -callable Obligations"); WHEREAS, in order to reduce the amount of ad valorem property taxes that would otherwise be required to be assessed and collected with respect to the Non -callable Obligations, the City has determined to provide an invested sinking fund in an amount sufficient to fund $200,000, per maturity for the Non -callable 189320 Obligations scheduled to mature in each of the years 1995 through 2002; WHEREAS, the Defeased Obligations are scheduled to mature 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, on the 25th day of August, 1994, the City will cause funds to be deposited to the credit of the Escrow Fund in an amount sufficient to purchase Federal Securities listed and identified in Exhibit B attached hereto and incorporated by reference as a part of this Agreement for all purposes; and WHEREAS, the Federal Securities shall be held and deposited to the credit of the "Escrow Fund" to be established and maintained by the Bank in accordance with this Agreement; and WHEREAS, the Federal Securities shall mature and the interest thereon shall be payable at such times (i) to insure the existence of moneys sufficient to pay the principal amount of the Defeased Obligations and the accrued interest thereon, as the same shall become due in accordance with the terms of the ordinance authorizing the issuance of the Defeased Obligations and (ii) to create an invested sinking fund to pay a portion of the Non - callable Obligations, in each case as set forth in Exhibit A attached hereto; and WHEREAS, the City has completed all arrangements for the purchase of the Federal Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as provided herein; and WHEREAS, the Bank is a banking association organized and existing under the laws of the United States of America, possessing trust powers and is fully qualified and empowered to enter into this Agreement; and WHEREAS, pursuant to a resolution, adopted on August 11, 1993, the City Council of the City approved and authorized the execution of this Agreement; and WHEREAS, the City and the Bank, as the case may be, shall take all action necessary to pay and retire said Defeased Obligations in accordance with the provisions thereof, including, without limitation, all actions required by the ordinance authorizing the Defeased Obligations, the Act 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 Obligations as the same shall become due, and to create an invested sinking fund for the Non- 189320 -2- callable Obligations, the City and the Bank hereby mutually undertake, promise and agree as follows: SECTION 1: Receipt of a true and correct copy of the ordinance authorizing the issuance of the Series 1992 Obligations is hereby acknowledged by the Bank. Reference to or citation herein of any provision of said 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. SECTION 2: There is hereby created by the City with the Bank a special segregated and irrevocable trust fund designated "SPECIAL 1994 CITY OF LUBBOCK, TEXAS, TAX AND WATERWORKS SYSTEM (LIMITED PLEDGE) REVENUE CERTIFICATES OF OBLIGATION ESCROW FUND" (hereinafter called the "Escrow Fund") for the payment of the Defeased Obligations and the payment of a portion of the Non - callable Obligations, and the City agrees and covenants to cause to be deposited with the Bank the following: $ 3,613,500.00 for the purchase of the Federal Securities identified in Exhibit B to be held for the account of the Escrow Fund; $ 3,500.00 for payment of escrow fees of NationsBank of Texas, N.A.; and The Bank hereby accepts the Escrow Fund and further agrees to receive said moneys, apply the same as set forth herein, and to hold the cash and Federal Securities deposited and credited to the Escrow Fund for application and disbursement for the purposes and in the manner provided in this Agreement. The City hereby allocates the Federal Securities to the Defeased Obligations and the Non -callable Obligations in accordance with Exhibit C attached hereto and incorporated by reference as a part of this Agreement for all purposes; such allocation of Federal Securities being based on the total amount of debt service on the Defeased Obligations and the Non -callable Obligations that will actually be paid from the Escrow Fund. SECTION 3: The City hereby represents that the Federal Securities specified in Section 2 hereof, together with the interest to be earned thereon, deposited to the credit of the Escrow Fund will be sufficient to pay the principal of and interest on the Defeased Obligations as the same shall become due and payable, and such Defeased Obligations, and the interest thereon, are to mature and shall be paid at the times and in the amounts set forth and identified in Exhibit A attached hereto. SECTION 4: The Bank agrees that all Federal Securities, together with any income or interest earned thereon, held in the 189320 -3- Escrow Fund shall be and is hereby irrevocably pledged to the payment of the principal of and interest on the Defeased Obligations and the Non -callable Obligations (in accordance with the allocation set forth on Exhibit C) 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 Federal Securities in the Escrow Fund shall be applied solely in accordance with the provisions of this Agreement. SECTION 5: If, for any reason, the funds on hand in the Escrow Fund shall be insufficient to make the payments for the Defeased Obligations set forth in Exhibit A attached hereto and as shown in the allocation set forth on Exhibit C, as the same becomes due and payable, the City shall make timely deposits to the Escrow Fund, from lawfully available funds, of additional funds in the amounts required to make such payments. Notice of any such insufficiency shall be immediately given by the Bank to the City by the fastest means possible, but the Bank shall in no manner be responsible for the City's failure to make such deposits. SECTION 6: The Bank shall hold said Federal Securities and moneys in the Escrow Fund at all times as a special and separate trust fund, wholly segregated from other moneys and securities on deposit with the Bank; shall never commingle said Federal Securities and moneys with other moneys or securities of the Bank; and shall hold and dispose of the assets therein only as set forth herein. Nothing herein contained shall be construed as requiring the Bank to keep the identical moneys, or any part thereof, in said Escrow Fund, if it is impractical, but moneys of an equal amount, except to the extent such are represented by the Federal Securities, shall always be maintained on deposit in the Escrow Fund by the Bank, as escrow agent; and a special account evidencing such facts shall at all times be maintained on the books of the Bank. SECTION 7: The Bank shall collect and receive the principal of and interest on the Federal Securities as they respectively mature and become due and credit the same to the Escrow Fund. On or before each principal and/or interest payment date for the Non - callable Obligations and the Defeased Obligations shown in Exhibit A attached hereto, the Bank, without further direction from anyone, including the City, shall cause to be withdrawn from the Escrow Fund the amounts (a) available to pay the accrued interest and the principal of the Non -callable Obligations due and payable on said payment date and (b) required to pay the accrued interest and the principal of the Defeased Obligations due and payable on said payment date and the amount withdrawn from the Escrow Fund shall be immediately transmitted and deposited with the paying agent for the Series 1992 Obligations to be paid with such amount. The paying agent for the Series 1992 Obligations is the Bank. 189320 -4- If any Defeased Obligation shall not be presented for payment when the principal amount shall have become due, and if cash shall at such times be held by the Bank in trust sufficient in amount and available to pay the principal of such Defeased Obligation, it shall be the duty of the Bank to hold said cash without any liability for additional interest thereon after such maturity date, in trust for the benefit of the party entitled to payment, which party or parties shall thereafter be restricted exclusively to said cash for any claim of whatever nature on their part on or with respect to said Defeased Obligation, including for any claim for the payment thereof. All cash required by the provisions hereof to be set aside or held in trust for the payment of the Defeased Obligations and interest thereon shall be applied to and used solely for the payment of the Defeased Obligations and accrued interest with respect to which such cash has been so set aside in trust. Subject to the provisions of the last sentence of Section 26 hereof, cash held by the Bank in trust for the payment and discharge of any of the Defeased Obligations which remains unclaimed for a period of four (4) years after the stated maturity date of such Defeased Obligations shall be returned to the City. Notwithstanding the above and foregoing, any remittance of funds from the Bank to the City shall be subject to any applicable unclaimed property laws of the State of Texas. SECTION 8: All Defeased Obligations canceled on account of payment by the Bank shall be cremated or otherwise destroyed by the Bank, and an appropriate certificate of destruction furnished the City. SECTION 9: The escrow created hereby shall be irrevocable and an express lien shall exist on all moneys and Federal Securities in the Escrow Fund as security for the payment of the Defeased Obligations until such funds are paid out, used, and applied in accordance with this Agreement. SECTION 10: The Bank shall have no lien whatsoever upon any of the moneys or Federal Securities in the Escrow Fund for payment of services rendered hereunder, services rendered as Paying Agent for the Series 1992 Obligations, or for any costs or expenses incurred hereunder and reimbursable from the City. SECTION 11: The Bank shall be authorized to accept initially and temporarily cash and/or substituted securities pending the delivery of the Federal Securities identified in the Exhibit B attached hereto, or shall be authorized to redeem the Federal Securities and reinvest the proceeds thereof, together with other moneys held in the Escrow Fund in noncallable direct obligations of the United States of America provided such early redemption and reinvestment of proceeds does not change the repayment schedule of the Defeased Obligations appearing in Exhibit A and the Bank receives the following: 189320 -5- (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 Federal Securities identified in Exhibit B pending the receipt and delivery thereof to the Escrow Agent or (ii) the redemption of one or more of the Federal Securities and the reinvestment of such funds in one or more substituted securities (which shall be noncallable direct obligations of the United States of America), together with the interest thereon and other available moneys then held in the Escrow Fund, will, in either case, be sufficient to pay, as the same become due in accordance with Exhibit A, the principal of, and interest on, the Defeased Obligations which have not previously been paid, and (2) with respect to an early redemption of Federal 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 Obligations 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 Obligations 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 Obligations. Further, as shown on Exhibit B hereto, the Bank is authorized to invest the proceeds of maturing Federal Securities in Zero Interest SLGS, on the dates and in the amounts shown on Exhibit B, to the extent such Zero Interest SLGS are available for investment. SECTION 12: Except as provided in Section 11 hereof, moneys in the Escrow Fund will be invested only in the Federal Securities listed in Exhibit B, and neither the City nor the Bank shall reinvest any moneys deposited in the Escrow Fund except as specifically provided by this Agreement. SECTION 13: If at any time there exists or it is determined an excess of interest on or maturing principal of the Federal Securities in excess of the aggregate amount needed to pay the Defeased Obligations, the Bank may transfer such excess amount to or on the order of the City. SECTION 14: The Bank shall continuously secure the moneys in the Escrow Fund not invested in Federal Securities by a pledge of direct obligations of the United States of America, in the par or face amount at least equal to the principal amount of said 189320 -6- uninvested moneys to the extent such money is not insured by the Federal Deposit Insurance Corporation. SECTION 15: The Bank shall not be liable or responsible for any loss resulting from any investment made in the Federal Securities. SECTION 16: The funds and Federal Securities received by the Bank under this Agreement shall not be considered as a banking deposit by the City and the Bank and the City shall have no right or title with respect thereto, except as otherwise provided herein. Such funds and Federal Securities shall not be subject to checks or drafts drawn by the City. SECTION 17: The City agrees to pay the Bank for the performance of services hereunder and as reimbursement for anticipated expenses to be incurred hereunder the amount of $3,500.00 and, except for reimbursement of costs and expenses incurred by the Bank pursuant to Sections 3 and 20 hereof, the Bank hereby agrees said amount is full and complete payment for the administration of this Agreement. The City also agrees to pay the Bank, the sum of $200.00 per year from lawfully available funds for the services rendered and to be rendered as paying agent for the Defeased Obligations and the Non -callable Obligations. The City acknowledges and agrees that the above amount to be paid the Escrow Agent to cover paying agents' charges and expenses does not include amounts which shall become due and payable for services rendered as registrar and transfer agent for fully registered Defeased Obligations and Non -callable Obligations, and the City agrees to pay the Bank directly all reasonable costs, expenses and charges incurred in connection with the maintenance of the registration books and records and the transfer of such fully registered obligations as and when such costs, expenses and charges are incurred and against written invoices, statements or bills submitted therefor. SECTION 18: The Bank 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 Bank shall be entitled to rely upon a certificate signed on behalf of the City by its Mayor or City Manager of the City as sufficient evidence of the facts therein contained. The Bank 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. 189320 -7- I The duties and obligations of the Bank shall be determined solely by the express provisions of this Agreement and the Bank shall not be liable except for the 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 Bank. In the absence of bad faith on the part of the Bank, the Bank 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 Bank, 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 Bank, the Bank shall be under a duty to examine the same to determine whether it conforms to the requirements of this Agreement. The Bank shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Bank unless it shall be proved that the Bank was negligent in ascertaining or acting upon the pertinent facts. The Bank 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 said Defeased Obligations at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Bank not in conflict with the intent and purpose of this Agreement. For the purposes of determining whether the holders of the required principal amount of said Defeased Obligations have concurred in any such direction, Defeased Obligations owned by any obligor upon the Defeased Obligations, 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 Bank shall be protected in relying on any such direction only Defeased Obligations which the Bank knows are so owned shall be so disregarded. The term "Responsible Officers" of the Bank, 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 Bank 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 Bank, as used in this Agreement, shall mean and include any of said officers or persons. 189320 -8- SECTION 19: Time shall be of the essence in the performance of obligations from time to time imposed upon the Bank by this Agreement. SECTION 20: In the event conflicting demands or notices are made upon the Bank growing out of or relating to this Agreement or the Bank in good faith is in doubt as to what action should be taken hereunder, the Bank 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 (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 Bank becomes involved in litigation in connection with this Section, the City to the extent permitted by law agrees to indemnify and save the Bank harmless from all loss, cost, damages, expenses and attorney fees suffered or incurred by the Bank as a result thereof. The obligations of the Bank under this Agreement shall be performable at the principal corporate office of the Bank in the City of Dallas, Texas. The Bank 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 bad faith on the part of the Bank, no liability shall be incurred by the Bank for any action taken pursuant to this Section and the Bank 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 21: Promptly after September 30 of each year, commencing with the year 1994, so long as the Escrow Fund is maintained under this Agreement, the Bank shall forward to the City, to the attention of the City Secretary, or other designated official of the City, a statement in detail of the Federal 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 22: 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: 189320 -9- CITY OF LUBBOCK: 1625 13th Street Lubbock, Texas Attention: Assistant City Manager for Financial Services NATIONSBANK OF TEXAS, N.A. 901 Main Street, 18th Floor Dallas, Texas 75202 Attention: Corporate Trust Department 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. SECTION 23: Whenever under the terms of this Agreement the performance date of any provision hereof, including the date of maturity of interest on or principal of the Defeased Obligations or the Non -callable Obligations, shall be a Sunday or a legal holiday or a day when the Bank is authorized by law to close, then the performance thereof, including the payment of principal of and interest on the Defeased Obligations, 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 Bank 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 24: The City covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Agreement, in any and every said Series 1992 Obligation as executed, authenticated and delivered and in all proceedings pertaining thereto as said Series 1992 Obligations shall have been modified as provided in this Agreement. The City covenants that it is duly authorized under the Constitution and laws of the State of Texas to execute and deliver this Agreement, that all actions on its part for the payment of said Series 1992 Obligations as provided herein and the execution and delivery of this Agreement have been duly and effectively taken and that said Series 1992 Obligations 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: If any one or more of the covenants or agreements provided in this Agreement on the part of the parties 189320 -10- 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 Moody's Investors Service, 99 Church Street, New York, New York 10007, Attention: Public Finance Rating Desk - Refunded Bonds. SECTION 26: This Agreement shall terminate when the Defeased Obligations, including interest due thereon, have been paid and discharged in accordance with the provisions of this Agreement. If any Defeased Obligations 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 Defeased Obligations, which are not presented for payment, and accrued interest thereon shall upon termination of this Agreement be held by the Bank for such purpose in accordance with Section 7 hereof. Any moneys or Federal 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 Obligations shall be paid or transferred to the City. SECTION 27: (a) Should the Bank not be able to legally serve or perform the duties and obligations under this Agreement, or should the Bank 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 Bank's inability or disqualification to serve hereunder, shall forthwith appoint a successor to replace the Bank, and upon being notified of such appointment, the Bank shall (i) transfer all funds and securities held hereunder, together with all books, records and accounts relating to the Escrow Fund and the Refunded Bonds, to such successor and (ii) assign all rights, duties and obligations under this Agreement to such successor. If the City should fail to appoint such a successor within ninety (90) days from the date the City discovers, or is notified of, the event or circumstance causing the Bank's inability or disqualification to serve hereunder, the Bank, or a bondholder of the Refunded Bonds, may apply to a court of competent jurisdiction to appoint a successor or assigns of the Bank and such court, upon determining the Bank 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 Refunded Bonds. (b) Furthermore, the Bank may resign and be discharged from performing its duties and responsibilities under this Agreement 189320 -11- 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 Bank under Section 16 hereof for the administration of this Agreement and the unearned proportional amount of the paying agents fees due the Bank. Any successor to the Bank shall be a commercial bank, trust company or other financial institution 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 its principal 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 Bank shall execute, acknowledge and deliver to the City and the Bank, or its successor or assigns, an instrument accepting such appointment hereunder, and the Bank 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 Bank, the City shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Bank all such rights, powers and duties. The term "Bank" as used herein shall be the Bank and its legal assigns and successor hereunder. SECTION 28: The Bank 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 on behalf of the City. The Bank 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 Bank shall not be liable in any manner as a result of such reliance. The duty of the Bank hereunder shall only be to the City and the holders of the Series 1992 Obligations. Neither the City nor the Bank shall assign or attempt to assign or transfer any interest hereunder or any portion of any such interest. Any such assignment or attempted assignment shall be in direct conflict with this Agreement and be without effect. SECTION 29: This Agreement shall be binding upon the City and the Bank and their respective successors and legal representatives and shall inure solely to the benefit of the holders of the Defeased Obligations, the City, the Bank and their 189320 -12- 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 Obligations 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 Obligations 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 Bank may, without the consent of either the holders of the Defeased Obligations, amend or modify the terms and provisions of this Agreement to cure 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 Moody's Investors Service, 99 Church Street, New York, New York 10007, Attention: Public Finance Rating Desk - Refunded Bonds, prior to such amendment or modification being executed. SECTION 30: 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. This Agreement shall be governed by the laws of the State of Texas. 189320 -13- IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. CITY OF LUBBOCK, TEXAS Mayor ATTEST: City Secretary (City Seal) NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION as Escrow Agent Vice President ATTEST: Authorized Signer (Bank Seal) 189320 -14- FULBRIGHT & .JAWORSKI L.L.P. A REGISTERED LIMITED LIABILITY PARTNERSHIP HOUSTON 2200 Ross AVENUE WAS HAUSTI N, D.C. SUITE 2800 SAN ANTONIO D TELEPHONE: 214/85S-8000 FACSIMILE: 214/855-8200 DALLAS, TEXAS 75201 NEWW YPOORK LOS ANGELES LONDON WRITER'S DIRECT DIAL NUMBER: ZURICH 214/855-8154 HONG KONG August 3, 1994 VIA FEDERAL EXPRESS Ms. Betty M. Johnson City Secretary City of Lubbock 1625 13th Street Lubbock, Texas 79401 Re: Defeasance of the "City of Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue Certificates of Obligation, Series 1992" Dear Ms. Johnson: Enclosed herewith are six (6) copies each of the Certificates of Secretary, the Resolution, and the Escrow Agreement prepared in connection with captioned financing. Please execute all enclosures, retain one copy of the Certificate of Secretary and the Resolution for the City's records and return the remaining documents to us. Should you have any questions, please call me. Very tr I ours, ichard F. Roman RFR jle Enclosures cc: Joe Smith Betsy Wood 151170.10 IUN i"t i TR f . USE I HE INTE /LI fUN L AIR WAYBILL FOR SHIPMENTS PPE TO RX A NO ALL ON U,S, USE THE INIERNAlIONAL AIR Nt1Y&LL FOR SNIPYENTS TO PUERiO RICO ANO ALL NON U.S. LOCATIONS. OUESTIONS? CALL 800-238-5355 TOLL FREE. 4148 4 48334 TRACKII PACKAGE NUMBER 4148.448334 p I( w J ykrtali—�;(( r S Dm (YGur Nerve) .Please Pnnt d _ .., Your Phone Number (Very Important) To (Recipie • r (_ V) _ �� _ ' Department/Floor No. Company ta1a�: _ �1Jliti Tests -- F t?-'Congrss�- Avg0 *--suite -2400___. Y State ZIP Required 78701 R L LING EFER N RMATION (gpdXW) (Fist 24 dtaactes will apyar m inWoice.) 92G.= LUTW : , MENT 1 Sella 2 ❑ Bin Recipient's FedEx AOct No. 3 ❑ Big 3rd Party FedEx Acct No 4 f Cash�_ Req'd. Fill Account Number below Fig in Account Number below (req 0) L ❑Casft Check Acct/Credit Card No. SERVICES O.DELIVERYAND SPECIAL HANDLING "p4 (Check onty one box) (Ctleck services required) Pnionly Ol emlght Standard Ovenight ' ` . . ) dak.yerarsra.xw ngrl 0auwyA�erwo ab nmrl 1 ❑ HOLD FOR PCX (Fa., B. H) 11 ❑ P CKAGING 57 ❑ PAC DXAG/NG 2 ,D IVER WEEKDAY 16 ❑ FEDEX LETTER 56 ❑ FEDEX LETTER'.. 3 DELIVER SATURDAY dlaael ❑ -- !. (Nd anleele bark Jaaw) 12 PAK • 52 ❑ FEDEX PAK • 4 ❑DANGEROUS GOODS IFs a U e pPl 13 ❑ FEDEEIrwx 53 ❑ FEDEXGOX 5 ❑ total 4 14 ❑ FEDEX TUBE 54 ❑ FEDd TUk , Z'.` . 6 ❑ DRY ICE i Economy Two -Day Government Overnight 7 ❑ OTNfASPECL4L SERVICE DIM SH tar.wYby'- iv r ayrl /abnsbal �Yanm11 30 ❑ EtXNr0rr1' ❑ LLEErrTER B ❑ ❑ ,-._ 41 ElGOV7 g ❑ SATURDAYPCK•UP PACKAGE IE.."gel Freight Service rb'10 ❑ Ed twge wayP.,,w—ISOfsl 80 TWD•OAY 11 DE r ip?"CN ( 101 ❑ �raof ❑ FREIGHT •• ❑ .. i tOrwyaeevent t '0erltedWae1.1001I 12 ❑ MOLIDAYDEUVEAYtildraMl be rleplea "hrr airou", 1fi°°darga7 2IM61 ztA SENDER'S COPY wry Ali'&Ce _Loobv , Falbrigbt 3 Javorski Fxacl Campt Dells ro P.O. Bran err P.O. iq Cads.) ' `' 600 Coogr"s Avenue ClryAustius State _ ZIPRequred "'TX 78T01 IF HOLD FOR PICK-UP, Print FEDFX Ad*= Hem 10. Street > !Address . J �',i�i �' 1,;t•I y Bill credit card City vv - State - . ZIP Required -A o Credd Card No. below (req 4) - WEIGHT rwaoaaAAFO SERVICECONDITIONS, DECLARED VALUE Federal r now) AND LIMIT OF LIABILITY M g Used msairbig corrssues yaurepeenlar loaasavice wrdNorun err naRa4 ser Ice Guioe, available upon rack" Sea back or sxtlNs cop/ d - ___ il.s airbil la ^for —bon Servke co,*W i may vary kr GoveimnM p"rngla SeMm. See US Goermlat SensmGuOe lu draOs ,- Declared Ya We will net be responsMe for any clam n m d $100 per pac1wW , wtelrrer the re" a loss. derape.*my.--desrery. wk*Wty. a m— - lermation, bless you declare a nigher value. Pay an soonaW clsr". and Other 1 documMyouractualimkira enieycbim Lit.etasloudirhecrrerl - Federal Express Service Gwe appy. Yda rrpr lo�lecaa from FeOerr Fapress la any &A mdL4 g.nmvc vaMla d ee paUapa. bit d sales. al ^_ Total krcdme anaea, Droll. arlor ey's lees. cwts: end mar lams a danaga Olher 2 wheowdirem ncdotal. consequenoator epedi almaidloesg owd 9100 or the declared a us spenAieO 10 to kill R000my can of exceed actual documented low. Tie maximum Oecamdtlaastor FecFA Lena and Total Chargf FedEx Pak packagaa ki S100.O0. . - N. ENT (Chargeable Weghl) Mmeewa otusrneydef.ery.Fedaal Espmv Arycurrequea andwah Some Fkkiwns relui ag vaspatanon chvgaa paid See Sawa Gu de kx hrtler .tonrellon. REVISION DATE lbs. Sdpr authorizes Federal Express to degver Me Wiprrent without PART A13T205 obtaining a eekvay signature and stall ndemry and hold nrnaess FOribMT n099 ,� X Federal^ Express from any claims resulting pereham 0 9 9 3 ❑ Drop box Signature: 1.199 PRIM 4 0 Bsc Fe Date[Tirne USA 5 0 station Emp. No. Express Use FULEIRIGHT & .JAWORSKI L.L.P. m5. Wv, Q I ecl.ak.�� d i6xvi in "O d Tel 4 � ? tJ.� tee. Jam, +L HOUSTON MARY ALICE LAPHAM 1" eT9 WASHINGTON,O.0 ��jj��� AUSTIN ATTORNEY AT LAW `14L( SAN ANTONIO OALLAS TELEPHONE: S12/474-5201 p/� 1' t n �/ C NEW YORK 1 FACSIMI LE:512/320-4598 1 16 LOS ANGELES LONDON 600 CONGRESS AVENUE, SUITE 2400 ( ZURICH AUSTIN, TEXAS 78701 0' - HONG KONG .0�� . USE INIS AIRBILL FOR SNN'YEM WHIN THECON17NENTAL U.S A., ALASKA AND NA WI. PACKAGE • USE THE INT&Wl' NAL AM AKYBILL FOR SHIPMENTS TO PUERTO RICO AND ALL NON U S. LOr4WN5 TRACKING NUMBER ry , a8633 QUESTIONS? CALL 800 238-5355 TOLL FREE �• „ _ ; t Y Del+ 5 N R'S{ q y CC ',��, ,tl.�—,'.�3 ;T�Tetkdr8r•3.>,'j-` Y ��� - .�., E..�DE_ aCOPIY �:� IIIS�C���46-�'9�•... 1"�i'+ti %' l • . IV .' ., .." Frcal. our Name) Please Print = t r%•� 4A9 r our Plans Numb+(Very Inponanq To (Reoptent's Name) Please Pnnt n, r: r :.ty »Aw e§a 11 a .� sr.�v �,rw < r 33 r^ ' IGrr _4- n,I 'i ".,... ' t'? s.: t=_ ° .___. ___ .. _. ..oari� rb ,tea s�I,. 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