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HomeMy WebLinkAboutResolution 94-26 RESOLUTION NO. 94- 26 . A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, APPROVING A MASTER REPURCHASE AGREEMENT AND AN ACCOUNT AGREEMENT CASH MANAGEMENT SWEEP ACCOUNT BETWEEN SUNBANK, N.A. AND THE CITY; CONFIRMING THAT RESOLUTION NO. 94-08 REMAINS IN FULL FORCE AND EFFECT; AUTHORIZING THE CITY CLERK TO MAKE CERTAIN CERTIFICATIONS TO SUNBANK, N.A.; PROVIDING FOR SEVERABILITY; PROVIDING FOR EFFECTIVE DATE. WHEREAS, Section 166.261, Florida Statutes, authorizes the City commission of the City of Ocoee by resolution to approve the investment and reinvestment of any surplus public funds in the control or possession of the city; and WHEREAS, the City commission of the City of Ocoee desires to enter into a Master Repurchase Agreement with SunBank, N.Ao, such agreement being consistent with the provisions of Section 166.261, Florida statutes; and WHEREAS, the City commission of the City of Ocoee desires to approve certain additional resolutions regarding banking relationships with SunBank, NoA. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Authority. The city Commission of the City of Ocoee has the authority to adopt this Resolution pursuant to Article VIII of the Constitution of the state of Florida, Chapter 166, Florida statutes, and Article VI of the Charter of the City of Ocoee. . SECTION 2. The City commission of the city of Ocoee, Florida, hereby approves the Master Repurchase Agreement between SunBank, N.A. and the city of Ocoee, Florida, said agreement being iii- attached hereto as Exhibit "A" and by this reference made a part hereof, and authorizes execution thereof by the Mayor and City Clerk. ~ SECTION 3. The City commission of the City of Ocoee, Florida hereby approves the SunBank, NoA. Account Agreement Cash Management Sweep Account, said agreement being attached hereto as Exhibit "B" and by this reference made a part hereof, and authorizes execution thereof by the Mayor and City Clerk. SECTION 4. The city commission of the City of Ocoee, Florida hereby confirms that Resolution Noo 94- 08 remains in full force and effect and authorizes delivery by the City Clerk of a certified copy thereof to SunBank NoA. SECTION 5. The City Commission hereby directs the City Clerk to certify to SunBank, N.Ao the names of those persons who presently hold the positions of Mayor, City Manager, Finance Manager and Director of Administrative Services and from time to time hereafter as changes in said positions are made, to immediately certify such changes to SunBank, NoA. and that said Bank shall be fully protected in relying on such certifications and, to the extent permitted by law, shall be indemnified and saved harmless from any claims, demands, expenses, loss, or damage resulting from, or growing out of, honoring the signature of any such employee or elected official so certified, or refusing to honor any signature not so certified. ~ SECTION 6. This Resolution shall remain in full force and effect until express written notice of amendment or rescission 2 shall have been furnished to and received by SunBank, N.A. and the receipt of such notice shall not affect any action taken by said Bank prior thereto. . SECTION 7. If any section, subsection, sentence, clause, phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 8. Effective Date 0 This Resolution shall become effective immediately upon passage and adoption and shall remain in full force and effect until repealed. PASSED AND ADOPTED this 1rt day of {l7"P Be1<.. , 1994. APPROVED: Clerk CITY OF OCOEE, FLORIDA S' ~'.7X tJaM6 J''f:! S. Scott Vandergrift, Mayor ATTEST: (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA APPRO~Ep AS TO FO~~_LEGALITY this ~ day of U~ , 19940 APPROVED BY THE CITY OF OCOEE COMMISSION AT A MEETING HELD ON Dc..77J6Hi!- 'I , 1994 UNDER AGENDA ITEM NO. -sz:::r. c... ~ . ::~EY & 0:Y~ ~ City Attorney C:\WP51\DOCSIOCOElPERDDH09.2SA 191281941 DEBBIEH I PER:dh 3 S(:,'.. B~MRJ Exhibit A SunBank, N.A. Trust and Investment Services Group P.O. Box 3838 Orlando, Florida 32802 MASTER REPURCHASE AGREEMEN'l' . Between: Dated as of: SunBank, N.A. , (SELLER) and CITY OF OCOEE (BUYER) 1. Applicability: On a daily basis the parties hereto may enter into transaction in which one party (" Seller") agrees to transfer to the other ("Buyer") securities or financial instruments ("Securities") against the transfer of funds by Buyer with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand against the transfer of funds by Seller. Each such transaction shall be referred to herein as a "Transaction" and shall be governed by this Agreement, including any supplemental terms or condi tions contained in any Annex (s) hereto, unless otherwise agreed in writing. 2. Definitions: . (a) "Act of Insolvency," with respect to any party, (i) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution, or similar law, or such party seeking the appointment of a receiver, trustee, custodian, or similar official for such party or any substantial part of its property or (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment, the issuance of such a protective decree, or the entry of an order having a . similar effect, or (C) is not dismissed within 15 days or (iii) the ) making by a party of a general assignment for the benefit o~ creditors, or (iv) the admission in writing by a party of such party's inability to pay such party's debts as they become due; (b) "Additional Purchased Securities," with- respect to Securities provided by Seller to Buyer pursuant to Paragraph 4 (a) hereof; A SunTrust Bank (c) "Buyer's Margin Amount," with respect to any Transaction as of any date, the amount obtained by application of a percentage (which may be equal to the percentage that is agreed to as the Seller's Margin Amount under subparagraph (q) of this Paragraph), agreed to by Buyer and Seller prior to entering into the Transaction, to the Repurchase Price for such Transaction as of such date; . (d) "Confirmation," with respect to the meaning specified in Paragraph 3(b) hereof; (e) "Income," with respect to any Securities at any time, any principal thereof then payable and all interest, dividends or other distributions thereon; (f) "Margin Deficit," with respect to the meaning specified in Paragraph 4 (a) hereof; (g) "Margin Excess," with respect to the meaning specified in Paragraph 4 (b) hereof; (h) "Market Value," with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued income to the extent not included therein (other than any Income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities); (i) "Price Differential," with respect to any Transaction hereunder as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for Transaction of a 360-day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction); (j) "Pricing Rate," with respect to the per annum percentage rate for determination of the Price Differential; (k) "Prime Rate," with respect to the prime rate of U. S. money center commercial banks as published in the Wall Street Journal; . (1) "Purchase Date," with respect to the date on which Purchased Securities are transferred by Seller to Buyer; (m) "Purchase Price," with respect to (i) the price at which -2- Purchased Securities are transferred by Seller to Buyer on the Purchase Date, and (ii) thereafter, such price increased by the amount of any cash transferred by Buyer to Seller pursuant to Paragraph 4 (b) hereof and decreased by the amount of any cash transferred by Seller to Buyer pursuant to Paragraph 4 (a) hereof or applied to reduce Seller's obligations under clause ( ii) of Paragraph 5 hereof; . (n) "Purchased Securities" shall mean the Securities, which shall be certificated securities, transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefore in accordance with this paragraph. The term "Purchased Securities" shall also include any Additional Purchased Securities (as defined herein) delivered to Buyer pursuant to Paragraph 4 (a) of this Master Repurchase Agreement and shall exclude Securities returned pursuant to Paragraph 4 (b) of this Master Repurchase Agreement; (0) "Repurchase Date," with respect to the date on which Seller is to repurchase the Purchased Securities from Buyer, including any date determined by application of the provisions of Paragraphs 3(c) or 11 hereof; (p) "Repurchase Price," with respect to the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which termination of a Transaction will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination; (q) "Seller's Margin Amount," with respect to any Transaction as of any date, the amount obtained by application of a percentage (which may be equal to the percentage that is agreed to as the Buyer's Margin Amount under subparagraph (c) of this Paragraph), agreed to by Buyer and Seller prior to entering into the Transaction, to the Repurchase Price for such Transaction as of such date. 3. Initiation; Confirmation; Termination: (a) An Agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Sellero On the Purchase Date for the Transaction, the Purchased Securities shall be transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller. . (b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as shall be agreed, shall promptly deliver to the other party a written confirmation of each Transaction (a "confirmation") 0 For Repurchase Agreements executed under SunBank's end-of-day SWEEP system, the confirmation shall be in the form of a daily statement. The Confirmation shall describe the Purchased Securities (including CUSIP number, if any), -3- . identify Buyer and Seller, and set forth the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate of Repurchase Price applicable to the Transaction, and (v) any additional terms or conditions of the Transaction not inconsistent with this Agreement. The Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates, unless with respect to the Confirmation specific objection is made promptly after receipt thereof. In the event of any conflict between the terms of such Confirmation and this Agreement, this Agreement shall prevail 0 (c) In the case of Transactions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary in accordance with market practice, by telephone or otherwise on, or prior to, the business day on which such termination will be effective. On the date specified in such demand, or on the date fixed for termination in the case of Transactions having a fixed term, termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities any income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase Price to an account of Buyer. 4. Margin Maintenance: (a) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Buyer is less than the aggregate Buyer's Margin Amount for all such Transactions (a "Margin Deficit"), then Buyer may by notice to Seller require Seller in such Transactions, at Seller's option, to transfer to Buyer, cash or additional Securities reasonably acceptable to Buyer ("Additional Purchased Securities") so that the cash and aggregate Market Value of the Purchased Securities, including any such Additional Purchased Securities, will thereupon equal or exceed such aggregate Buyer's Margin Amount (decreased by the amount of any Margin Deficit as of such date arising from any Transactions in which such Buyer is acting as Seller). The aggregate Market Value of Purchased Securities shall be established daily and shall be at least 102%. . (b) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for all such Transactions at such time (a "Margin Excess"), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer's option, to transfer cash or Purchased Securities to Seller so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or -4- . . any Purchased Securities so transferred, will thereupon not exceed such aggregate Seller's Margin Amount (increased by the amount of any Margin Excess of such date arising from any Transactions in which such Seller is acting as Buyer). (c) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respecti ve rights of Buyer or Seller (or both) under subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions) . (d) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or Margin Excess, as the case may be, may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction here under (calculated without regard to any other Transaction outstanding under this Agreement). 5. Income Payments: Where a particular Transaction's term extends over an income payment date on the Securities subject to that Transaction, Buyer shall, as the parties may agree with respect to such Transaction (or, in the absence of any agreement, as Buyer shall reasonably determine in its discretion), on the date such income is payable either (i) transfer to or credit to the account of Seller an amount equal to such income payment or payments with respect to any Purchased Securities subject to such Transaction or (ii) apply the Income payment or payments to reduce the amount to be transferred to Buyer by Seller upon termination of the Transaction. Buyer shall not be obligated to take any action pursuant to the preceding sentence to the extent that such action would result in the creation of a Margin Deficit, unless prior thereto or simultaneously therewith Seller transfers to Buyer cash or Additional Purchased Securities sufficient to eliminate such Margin Deficit. 6. Securities Interest: Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in all of the Purchased Securities with respect to all Transactions hereunder and all proceeds thereof. -5- 7. Payment and Transfer: . Unless otherwise mutually agreed, all transfers of funds hereunder shall be in immediately available funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for transfer or shall be accompanied by duly executed instruments of transfer or assignment in blank and such other documentation as the party receiving possession may reasonably request, (ii) shall be transferred on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method mutually acceptable to Seller and Buyer. As used herein with respect to Securities, "transfer" is intended to have the same meaning as when used in section 8-313 of the Florida Uniform Commercial Code or, where applicable, in any federal regulation governing transfers of the Securities. 8. seqreqation and Substitution of Purchased Securities: (a) All Purchased Securities (as defined herein) shall be segregated from other Securities in the Seller's possession and shall be identified as subj ect to the Master Agreement. The Purchased Securities shall be segregated by being placed in an account at Trust Company Bank of Georgia ("Trust Company") and the Seller shall not retain custody of any Purchased Securities. The books and records of the Seller shall indicate such segregation. Title to all Purchased Securities shall pass to Buyer and nothing in this Agreement or in the Master Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Securities or otherwise pledging or hypothecating the Purchased Securities. (b) Seller may substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted securities shall be deemed to be Purchased Securities. (c) Seller will ensure that substitution by Seller of other Securities for Purchased Securities shall only occur when such other Securities have a Market Value, as defined in the Master Agreement at least equal to the Market Value of the Purchase Securities for which they are substituted. (d) TRANSFER. As used herein, "transfer" is the same meaning as when used in Section 8-313 Uniform Commercial Code or, where applicable, regulation governing transfer of the Securities. intended to have of the New York in any federal . 9. Representations: Each party, Buyer and Seller, represents and warrants to the other that (i) it is duly authorized to execute and deliver this -6- . . Agreement, to enter into the Transactions contemplated hereunder, and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery, and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and, (v) the execution, delivery, and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law, or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected. On the Purchase Date for any Transaction, Buyer and Seller shall each be deemed to repeat all the foregoing representations made by it. 10. Events of Default: In the event that (i) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (ii) Seller or Buyer fails, after one business day's notice, to comply with Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5 hereof, (iv) an Act of Insolvency occurs with respect to Seller or Buyer, (v) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated or, (vi) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its obligations hereunder (each an "Event of Default"). (a) At the option of the non-defaulting party, exercised by wri tten notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur. (b) In all Transactions in which the defaulting party is acting as Seller, if the non-defaul ting party exercised or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, (i) the defaulting party's obligations hereunder to repurchase all Purchased Securities in such Transactions shall thereupon become immediately due and payable (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction or the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (a) of this Paragraph (decreased as of any day by (A) -7- . . any amount retained by the non-defaulting party with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Securities pursuant to subparagraph (d) (i) of this Paragraph, and (C) any amounts credited to the account of the defaulting party pursuant to subparagraph (e) of this Paragraph on a 360-day per year basis for the actual number of days during the period from and including the date of the event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be retained by the non-defaulting party and applied to the aggregate unpaid Repurchase Prices owed by the defaulting party and, (iv) the defaulting party shall immediately deliver to the non-defaulting party any Purchased Securities subject to such Transactions then in the defaulting party's possession. (c) In all Transactions in which the defaulting party is acting as Buyer, upon tender by the non-defaulting party of payment of the aggregate Repurchase Prices for all such Transactions, the defaulting party's right, title, and interest in all Purchased Securities subject to such Transactions shall be deemed transferred to the non-defaulting party, the defaulting party shall deliver all such Purchased Securities to the non-defaulting party. (d) After one business day's notice to the defaulting party (which may be the notice given under subparagraph (a) of this Paragraph or the notice referred to in clause (ii) of the first sentence of this Paragraph), the non-defaulting party may: (i) as to Transactions in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market at such price or prices as the non- defaul ting party may reasonably deem satisfactory, any or all Purchased Securities subj ect to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party, hereunder or (B) in its sole discretion elect, in lieu of selling all of a portion of such Purchased Securities, to give the defaulting party credit for such Purchased Securities in an amount equal to the price therefore on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder; and (ii) as to Transactions in which the defaulting party is acting as Buyer, (A) purchase securities ("Replacement Securities") of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the non-defaulting party as required hereunder or (B) in its -8- sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefore on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source. . (e) As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the non- defaulting party (i) with respect to Purchased Securities (other than Additional Purchased Securities) for any excess of the price paid (or deemed paid) by the non-defaulting party for Replacement Securities therefore over the Repurchase Price for such Purchased Securities; and (ii) with respect to Additional Purchased Securities for the price paid (or deemed paid) by the non- defaulting party for the Replacement Securities thereto. In addition, the defaulting party shall be liable to the non- defaulting party for interest on such remaining liability with respect to each such purchase (or deemed purchase) or Replacement Securities from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the pricing Rate for such Transaction or the Prime Rate. (f) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise (or deemed exercise) by the non-defaulting party of its option under subparagraph (a) of this Paragraph. (g) The defaulting party shall be liable to the non- defaulting party for the amount of all reasonable legal or other expenses incurred by the non-defaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction of the Prime Rate. (h) The non-defaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. 11. sinqle Aqreement: . Buyer and Seller acknowledge that, and have entered hereunto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder and that a default in the performance of any such obligation shall constitute a default by it -9- . in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transactions hereunder, and (iii) that paYments, deliveries, and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of paYments, deliveries, and other transfers in respect of any other Transactions hereunder, and the obligations to make any such paYments, deli veries, and other transfers may be applied against each other and netted. 12. Notices and Other communications: Unless another address is specified in writing by the respective party, any notice or other communication to be given hereunder, shall be in writing or confirmed in writing and delivered at the respective addresses set forth in Annex I attached hereto. 13. Entire Agreement; severability: This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement. 14. Non-assignability; Termination: The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may be canceled by either party upon giving written notice to the other, except that this Agreement shall notwithstanding such notice, remain applicable to any Transaction then outstanding. 15. Governing Law: This Agreement shall be governed by the laws of the State of Florida without giving effect to the conflict of law principles thereof. 16. No waivers, Etc.: . No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute -10- . a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. wi thout limitation on any of the foregoing, the failure to give a notice pursuant to subparagraph 4 (a) or 4 (b) hereof will not constitute a waiver of any right to do so at a later date. 17. Use of Employee Plan Assets: (a) If assets of an employee benefit plan subject to any provision of the Employee Retirement Income security Act of 1974 ("ERISA") are intended to be used by either party hereto (the "Plan Party") in a Transaction, the Plan Party shall represent in writing to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be so required to proceed. (b) Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnished or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its fina~cial condition. (c) By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller's latest such financial statements, there has been no material adverse change in Seller's financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued so long as it is a Seller in any outstanding Transaction involving a Plan Party. 18. Intent: (a) The parties recognize that each Transaction in a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction as the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United State Code, as amended. . (b) It is understood that either party's right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. -11- (c) The parties recognize that each Transaction and this Agreement are intended to fully comply with the requirements of Section 166.261, Florida Statutes." I . (d) Notwithstanding any provision contained herein to the contrary, no investments pursuant to this Agreement shall be purchased at a higher price than their market price at the time of such purchase. 19. Disclosure Relating to Certain Federal projections: The parties acknowledge that they have been advised that: (A) THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION. (B) THIS OBLIGATION IS NOT GUARANTEED BY THE UNITED STATES GOVERNMENT OR ANY AGENCY THEREOF. (C) THE BUYER'S INTEREST IN THE UNDERLYING FEDERAL SECURITY IS PERFECTED. BUYER CITY OF OCOEE,~IDA By: tpC~ I Name: Ellis Shapiro I Title: City Manager SELLER SUNBANK, N.A. BY: Name: Titl e: Date: October 4, 1994 Da te: APPROVED: y~:OF OCOEE ,/!}ORI~A => ;-q 1/ ~i-~ S. Scott Vandergrift, a (SEAL) . FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA APPROVED, AS TO FOR~,,\ANp LEGALITY this -1t- day of ur:..~.dJ(;"" , 1994. FOL Y APPROVED BY THE CITY OF OCOEE COMMISSION AT A MEETING HELD ON Oe."OlH~.l\. 4 , 1994 UNDER AGENDA ITEM NO. )It ~ ~ & L". ER (j/.. ,1 v (..M..X 1~) City Attorney By: -12- ANNEX 1 Names and Addresses for communications Between Parties I SELLER . SunBank, N.A. Investment Banking Division P.o. Box 3833 Orlando, Fl. 32802 Contact: Martelle Boelter Phone: (407) 237-4382 BUYER Name: CITY OF OCOEE 150 N. LAKE SHORE DR. Address: OCOEE. FL 34761 Contact: WANDA B. HORTON (407) 656-2322 59-6019764 Phone: Tax I. D. : Acct #: Additional provisions Permissible Purchase securities: Only securities listed below are deemed permitted purchases under this Master Repurchase Agreement: (a) Direct obligations of, or obligations the principal and interest of which are unconditionally guaranteed by the United states of America, ie., U.s. Treasury Bills, Notes, and Bonds. (b) Evidence of indebtedness issued or guaranteed by any of the following: . Export-Import Bank of the United states Farmers Home Administration Federal Home Loan Banks Federal Home Mortgage Corporation Federal National Mortgage Association student Loan Marketing Association Resolution Funding corporation Government National Mortgage Association or Agency or instrumentality of United states of America Exhibit B Q SUN BANK ACCOUNT AGREEMENT CASH MANAGEMENT SWEEP ACCOUNT . COMPANY: CITY OF OCOEE AGREEMENT DATE: EFFECTIVE DATE: NOVEMBER 1, 1994 ACCOUNT NO.: TARGET BALANCE: 1. DEFINITIONS. The following definitions shall apply: a. "Effective Date" shall mean the banking day on which the Sweep arrangement becomes effective. The Effective Date shall be the date specified above or the soonest possible date thereafter. The undersigned Sun Bank ("Bank") shall not be liable if for any reason it is unable to process transactions to the Account on the above Effective Date. b. "Target Balance. shall mean the amount specified above. The Target Balance is subject to review by the Bank and may change from time to time with 14 days advance notice to the Company. c. "Investable Balance" shall mean the collected balance in the Account which is in excess of the Target Balance. d. "Account. shall mean the bank account with the above-written account number. 2. The Company hereby authorizes and directs Bank name to determine the Company's Target Balance and Investable Balance for each banking day. 3. On each banking day, the Company hereby authorizes the Bank to debit the Account as described below for the purpose of entering into repurchase agreements (as described in the Master Repurchase Agreement executed of even date herewith) for direct obligations that are issued by or fully guaranteed as to principal and interest by, the United States Government or any agency thereof. Such repurchase agreements shall mature on the next succeeding banking day. . 4. Subject to the following limitations, the Company authorizes the Bank to debit its Account for the purpose of effecting repurchase agreements in government securities using all, or substantially all, of its Investable Balance. The Company acknowledges that the purchases of government obligations agreed to and specified herein shall be subject to a minimum purchase of $25,000, with purchases in excess of the minimum amount to be made in increments of $1,000. These minimum purchase requirements are subject to review and may change from time to time with notice to Company. 5. The Company further authorizes and directs the Bank to debit the Account for all fees and expenses incurred against the Account in connection with the transactic:ms completed. Such debits may be made daily or at such other times as the Bank may elect. 6. Company and Bank acknowledge and agree that from time to time, Bank may be unable to acquire government securities sufficient to enter into a repurchase agreement with Company as described in Paragraphs 3 and 4, in which event, all or part of the Investable Balance shall remain in the Account and will not earn interest, and Bank shall have no liability to Company occasioned by this event. . 7. The Company will receive a monthly statement for the Sweep activity in this account, in addition to the regular checking and analysis statements (if any). The Bank shall not be liable for any unauthorized signature, alteration, misencoding or other material error on the face of any item in your bank statement, or for any incorrect amount or other error on the bank statement itself (including any item improperly charged to your account), unless you notify the Bank within 14 calendar days of the date the Bank mails, personally delivers, or otherwise makes your statement available to you or anyone to whom you request it be sent. The Bank will not be liable for any bank statements or items included in bank statements that you do not receive unless you give notice of non-receipt within 30 days of the date on which your statement is customarily received. 8. Any modifications to this Account Agreement shall not be binding on the Bank unless agreed to by the Bank in writing. Any termination or cancellation of this Account Agreement shall be effective within three (3) business days following the other party's actual receipt of notice thereof. All notices to be given in connection with this Agreement must be in writing and shaU be mailed by first class, postage pre-paid to the parties of the addresses set forth herein. Each party is responsible for advising the other of any change of address for these purposes. COMPANY: ADDRESS: FOR USE AND REUANa; OfI.,Y BY THE CITY OF OCOEE. APPROVED AS TO FORIot'& ~ .. . _ -~.." - I . .By .' 'y 'J .J Cily Attorney BANK: CITY OF OCOEE By: Date: lJJ (,,111y MAYOR Date: Or)~: (~q+ CITY CLERK By: SUN BANK By: Title: By: Title: Date: Date: