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HomeMy WebLinkAboutItem VI(C) Establish SunBank NA Accounts; Resolution No 94-26, relating to SunBank Account Documents r l "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" AGENDA 10-4-94 0000GG Item VI C 1 or% ti ....... CITY O OCOEE ONERS RUSSTYJO N ti Ilk PAUL W.FOSTER 0150 N. ORE DRIVEOCOEE FLO DA 34761-2258VERN COMBS (4� � JIM GLEASON cTrx HtAtvncat ELLIS SHAPIRO MEMORANDUM DATE: September 29, 1994 TO: The Honorable Mayor and Board of City Commissioners FROM: Montye E. Beamer, Director 9}'72/ Administrative Services SUBJECT: Establishing SunBank N.A. Accounts s As authorized by the Mayor and Board of City Commissioners at the August 16, 1994 Commission meeting, Staff has met and negotiated with SunBank N.A. The results of the discussions yielded: (1) Establishment of three accounts a) Pooled Cash - Operating b) Payroll c) Pooled Cash - Restricted (2) Overnight Investment of Surplus Funds utilizing the Cash Management Sweep Account and Master Repurchase Agreement. (3) Receipt of incoming wires. (4) Fine Sort City's paid checks - Place in numerical order and return them with the monthly statement. (5) Monthly Account Analysis of each account. (6) An adequate supply of coin bags and 'ockable deposit bags with keys at no charge. (7) A safe deposit box to City at no charge. (8) Night deposit drops at no cost. (9) Incentives for personal banking at SulBank for City Employees. The necessary agreements to allow such banking activities as repurchasing and sweep must be formalized by Resolution. Resolution No. 94-26 incorporates Commission approval and authorization for necessary signatures while confirming Resolution 94-08 and establishing indemnification as to change of individuals occupying the designated positions. The actual documents to establish these accounts with SunBank were forwarded to the City Attorney for review. The attorney recommended some changes; staff communicated these to SunBank representatives. SunBank has verbally accepted the changes; however, the revised documents did not arrive in time to include them in the agenda packet. In their stead, the original documents with the attorney's changes are included. The revised documents will be available on Tiiesday, October 4, 1994 prior to the Commission meeting. The banking relationship will be effective No ember 1, 1994. Action Requested The Mayor and City Commission (1) approve Resolution No. 94-26 and (2) authorize the Mayor and City Clerk to execute. MEB/jbw RESOLUTION NO. 94- 26 A RESOLUTION OF THE OTY OF OCOEE, FLORIDA, APPROVING A MASTER REP CHASE AGREEMENT AND AN ACCOUNT AGREEMENT ASH MANAGEMENT SWEEP ACCOUNT BETWEEN SUNG , N.A. AND THE CITY; CONFIRMING THAT RESOL ION NO. 94-08 REMAINS IN FULL FORCE AND EFFE T; AUTHORIZING THE CITY CLERK TO MAKE CERT $N CERTIFICATIONS TO SUNBANK, N.A. ; PROVI ZNG FOR SEVERABILITY; PROVIDING FOR EFFECTI DATE. I WHEREAS, Section 166.461, Florida Statutes, authorizes i the City Commission of the City of Ocoee by resolution to approve the investment and reinvestment f any surplus public funds in the control or possession of the Cit ; and WHEREAS, the City C mission of the City of Ocoee desires to enter into a Master R purchase Agreement with SunBank, N.A. , such agreement being co sistent with the provisions of Section 166.261, Florida Statutes; and 1 WHEREAS, the City Commission of the City of Ocoee desires to approve certain additional resolutions regarding banking relationships with SunBank, N.A. NOW, THEREFORE, BE IT ESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS F LLOWS: 1 SECTION 1. Authority. The City Commission of the City of Ocoee has the authority to adopt this Resolution pursuant to Article VIII of the Constitutionilof the State of Florida, Chapter 166, Florida Statutes, and Articl1e VI of the Charter of the City of Ocoee. SECTION 2. The City commission of the City of Ocoee, Florida, hereby approves the Mater Repurchase Agreement between SunBank, N.A. and the City of Ocoee, Florida, said agreement being I attached hereto as Exhibit "A" Old 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 Sunank, N.A. Account Agreement Cash Management Sweep Account, said a reement being attached hereto as Exhibit "B" and by this refe ence made a part hereof, and authorizes execution thereof by he Mayor and City Clerk. SECTION 4. The City ommission of the City of Ocoee, Florida hereby confirms that Resolution No. 94- 08 remains in full force and effect and authorizes delivery by the City Clerk of a certified copy thereof to SunBanA N.A. SECTION 5. The City CDmmission hereby directs the City Clerk to certify to SunBank, N.A . 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 change to SunBank, N.A. and that said Bank shall be fully protected in relying on such certifications and, to the extent permitted by l.1w, shall be indemnified and saved harmless from any claims, dem 'nds, expenses, loss, or damage resulting from, or growing out Of, honoring the signature of any such employee or elected officil so certified, or refusing to honor any signature not so certified. SECTION 6. This Resol tion shall remain in full force and effect until express written otice 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 sectLon, subsection, sentence, clause, phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any couri of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shallll not affect the validity of the remaining portion hereto. SECTION 8. Effective Elate. This Resolution shall become effective immediately upon passa lea and adoption and shall remain in full force and effect until repe led. PASSED AND ADOPTED this day of , 1994 . APROVED: ATTEST: CIb' OF OCOEE, FLORIDA ," Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE CITY OF OCOEE THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING APPROVED AS TO FORM AND LEGALITY HELD ON , 1994 this day of , 1994 UNDER AGENDA ITEM NO. FOLEY & LARDNER By: City Attorney! cAWP \DOcSOCOEPneDDH.2A(sr DEBsmi rekxIli 09/28/94 13:14 FiOLEY & LARDNER 01007/011 • Sun SunBank.N.A. EXHIBIT "A" anK Trust and Investment Services Group 1 P.O.Box 3838 Orlando,Florida 32802 i EXETER R2PDRCEAUE immEammNT Between: bated as of: ..T�,. C '1.s-eller `l .SunBank, N.A. s-e / and r( C)1 o -.-_ (-(�0(If o� ( r`Av ,ef•. Ir) 1. Applicability: On d daily basis the paes hereto may enter Tato transaction in which one party ,("Se l ") .agues to transfer to the other tl ("Buyer") securities or inane al instruments ("Securities") against the transfer of unds by Buyer with a simultaneous agreement by Buyer to transf yr to Seller such Securities at a date certain cr on demand against the transfer of funds by Seller. Each such transaction shall be re marred to herrin as a "Transaction" and shall be governed by this greement, including any supplemental • terms or conditions 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 -s debtor of any case or proceeding under any bankruptcy, inso vency, reorganization, liquidation, dissolution, or similar law, or such party seeking the appointment of a receiver, trustee, cus •dian., or similar official for such party or any substantial .art of its property or (ii) the commencement of any such cas= or proceeding against such party, or another seeki,nzg Such ,an appo'r tment, or the filing against a party of an application for a prot:ctive decree under the provisions of the Securities Investor Pr. tion Act of 1970, which (A} is consented to or mat timely cap tested by -suchin the entry of -an order for rel 'of, such an appointment,Btresults heissuance 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 gen-ral assignment for the benefit of creditors, or (iv) the admi-sion in writing by a party of such party's inability to pay suc party's debts as they become due; (b) "Additional Purch sod Securities," with respect to securities provided by Seller to Buyer hereof; pursuant to Paragraph 4 (a) A SunTrust Bank 1 (c) "Buyer's Margin Amount, " with respect to any Transaction as of any date, the amount obt fined by application of a percentage (which may be equal to the per antage that is agreed to as the Seller's Margin Amount under s bparagraph (q) of this Paragraph) , agreed to by Buyer and . Se ler prior to entering into the Transaction, to the Repurchas Price for such Transaction as of - such date; (d) "Confirmation, " with respect to the meaning specified in Paragraph 3 (b) hereof; (e) "Income, " with respe It to any Securities at any time, any principal thereof then payable nd all interest, dividends or other distributions thereon; (f) "Margin Deficit, " wish respect to the meaningspecified � P P 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 Secur'ties on such date obtained from a generally recognized source ag eed to by the parties or the most recent closing bid quotation from such a source, plus accrued income to the extent not inclu.ed therein (other than any Income credited or transferred to, •r applied to the obligations of, Seller pursuant to Paragraph . ' hereof) as of such date (unless contrary to market practice fo. such Securities) ; (i) "Price Differential, ' with respect to any Transaction hereunder as of any date, the =ggregate amount obtained by daily application of the Pricing •=te for such Transaction to the Purchase Price for Transaction •if a 360-day per year basis for the actual number of days durin• the period commencing on (and including) the Purchase Date -or such Transaction and ending on (but excluding) the date of det=rmination (reduced by any amount of such Price Differential previo sly paid by Seller to Buyer with respect to such Transaction) ; (j) "Pricing Rate, " with espect to the per annum percentage rate for determination of the *rice 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, " wih 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- N 4 i Purchased Securities are trans erred by Seller to Buyer on the Purchase Date, and (ii) therea ter, 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 an Securities substituted therefore in accordance with this paragrap The term "Purchased Securities" shall also include any Additiona Purchased Securities (as defined herein) delivered to Buyer pur want to Paragraph 4 (a) of this Master Repurchase Agreement and shall exclude Securities returned pursuant to Paragraph 4 (b) of his Master Repurchase Agreement; i (o) "Repurchase Date, " wi h respect to the date on which Seller is to repurchase the urchased Securities from Buyer, including any date determined b application of the provisions of Paragraphs 3 (c) or 11 hereof; (p) "Repurchase Price, " w th respect to the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Trans ction, which termination of a Transaction will be determined i each case (including Transactions terminable upon demand) as the um of the Purchase Price and the Price Differential as of the da a of such determination; (q) "Seller's Margin Amoun , " with respect to any Transaction as of any date, the amount obtai ed by application of a percentage (which may be equal to the per entage that is agreed to as the Buyer's Margin Amount under subparagraph (c) of this Paragraph) , agreed to by Buyer and Sell r prior to entering into the Transaction, to the Repurchase rice for such Transaction as of such date. ; I 1 3 . Initiation; Confirmation; ¶ermination: (a) An Agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Seller. 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 ent r into a Transaction hereunder, Buyer or Seller (or both) , as shall be agreed, shall promptly deliver to the other party written confirmation of each Transaction (a "Confirmation") . or 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 (inclu ing CUSIP number, if any) , -,3 identify Buyer and Seller, and set forth the Purchase Date, (ii) the Purchase Price, (iii) t 0 Repurchase Date, unless the Transaction is to be terminable •ri demand, (iv) the Pricing Rate of Repurchase Price applicable t. the Transaction, and (v) any additional terms or conditions •f the Transaction not inconsistent with this Agreement. The C•njfirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with r-$pect to the Transaction to which the Confirmation relates, unles - with respect to the Confirmation specific objection is made prom•tly after receipt thereof. In the event of any conflict between .he terms of such Confirmation and this Agreement, this Agreement -hall prevail. (c) In the case of Transa•tions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary; in accordance wit market practice,, by telephone or otherwise on, or prior to, ie 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 to , termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities any incom in respect thereof received by Buyer (and not previously credit d or transferred to, or applied to the obligations of Seller pursu fit to Paragraph 5 hereof) against the transfer of the Repurchase rice to an account of Buyer. 4. Margin Maintenance: (a) If at any time the aggregate Market Value of all Purchased Securities subject o all Transactions in which a particular party hereto is a ing as Buyer is less than the aggregate Buyer's Margin Amou t for all such Transactions (a "Margin Deficit") , then Buyer may by notice to Seller require Seller in such Transactions, a Seller's option, to transfer to Buyer, cash or additional Securi .es reasonably acceptable to Buyer ("Additional Purchased Securiti.0") so that the cash and aggregate Market Value of the Purchase. Securities, including any such Additional Purchased Securitie-, will thereupon equal or exceed such aggregate Buyer's Margin '" punt (decreased by the amount of any Margin Deficit as of such da $ arising from any Transactions in which such Buyer is acting as S-Her) . The aggregate Market Value of Purchased Securities shall b. established daily and shall be at least 100%. (b) If at any time the aggregate Market Value of all Purchased Securities subjecto all Transactions in which a particular party hereto is acti g as Seller exceeds the aggregate Seller's Margin Amount for all such Transactions at such time (a "Margin Excess") , then Seller m y by notice to Buyer require Buyer in such Transactions, at Buye 's option, to transfer cash or Purchased Securities to Seller 0 that the aggregate Market Value of the Purchased Securities, of er deduction of any such cash or i -4_ E f I any Purchased Securities so tra sferred, will thereupon not exceed such aggregate Seller's Margin ount (increased by the amount of any Margin Excess of such date arising from any Transactions in which such Seller is acting as Uyer) . (c) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that tie respective rights of Buyer or Seller (or both) under subpara Ohs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess exceeds a specified dollar amou t or a specified percentage of the Repurchase Prices for such Trans ctions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions) . ' I (d) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that t respective rights of Buyer and Seller under subparagraphs (a) a (b) of this Paragraph to require the elimination of a Margin Def it or Margin Excess, as the case may be, may be exercised whenev r such a Margin Deficit or Margin Excess exists with respect to iy single Transaction here under (calculated without regard to ny other Transaction outstanding under this Agreement) . i 5. Income Payments: Where a particular Transac ion's term extends over an income payment date on the Securities Ubject to that Transaction, Buyer shall, as the parties may agre With respect to such Transaction (or, in the absence of any agr ement, as Buyer shall reasonably determine in its discretion) , o. lthe 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 r duce the amount to be transferred to Buyer by Seller upon termi Ition of the Transaction. Buyer shall not be obligated to take a Y action pursuant to the preceding sentence to the extent that rich action would result in the creation of a Margin Defi it, unless prior thereto or simultaneously therewith Sell r transfers to Buyer cash or Additional Purchased Securities Ufficient 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 lo ns, Seller shall be deemed to have pledged to Buyer as security fo the performance by Seller of its obligations under each such Tr nsaction, and shall be deemed to , have granted to Buyer a securit interest in all of the Purchased Securities with respect to al Transactions hereunder and all proceeds thereof. rt5- N I I 7. Payment and Transfer: Unless otherwise mutually agreed, all transfers of funds hereunder shall be in immediate yavailable funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for transfer or sh I.1 be accompanied by duly executed - instruments of transfer or asgement in blank and such other documentation as the party re giving possession may reasonably request, (ii) shall be transfe ed on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method mutually acceptable to eller and Buyer. As used herein with respect to Securities, "tra sfer" is intended to have the same meaning as when used in Sect'oln 8-313 of the Florida Uniform Commercial Code or, where appl Cable, in any federal regulation governing transfers of the Secu ities. 8. segregation and Substituti n of Purchased Securities: (a) All Purchased Securisies (as defined herein) shall be segregated from other Securiti=e in the Seller's possession and shall be identified as subjec to the Master Agreement. The Purchased Securities shall be segregated by being placed in an account at Trust Company Bank 01 Georgia ("Trust Company") and the Seller shall not retain custody Of any Purchased Securities. The books and records of the Selle • 'shall indicate such segregation. Title to all Purchased Securiti-$ shall pass to Buyer and nothing in this Agreement or in the Mas Or Agreement shall preclude Buyer from engaging in repurchase transactions with , the Purchased Securities or otherwise pledgi 1 or hypothecating the Purchased Securities. (b) Seller may substitute Other Securities for any Purchased Securities. Such substitution -hall be made by transfer to Buyer of such other Securities and tr-nsfer to Seller of such Purchased Securities. After substitution the substituted securities shall be deemed to be Purchased Securties. (c) Seller will ensure that substitution by Seller of other Securities for Purchased Secur'ties shall only occur when such other Securities have a Market Value, as defined in the Master Agreement at least equal tohe Market Value of the Purchase Securities for which they are s bstituted. (d) TRANSFER. As used her in, "transfer" is intended to have the same meaning as when used in Section 8-313 of the New York Uniform Commercial Code or, here applicable, in any federal regulation governing transfer o the Securities. I ' 9. Representations: l Each party, Buyer and Sell r, represents and warrants to the other that (i) it is duly authorized to execute and deliver this +-6- i I Agreement, to enter into the T ansactions contemplated hereunder, and to perform its obligations hereunder and has taken all necessary action to authoriz - such execution, delivery, and performance, (ii) it will engag- in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto, as agent fo a disclosed principal) , (iii) the person signing this Agreement .1 its behalf is duly authorized to do so on its behalf (or on behal' of any such disclosed principal) , (iv) it has obtained all autho izations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizatio S are in full force and effect and, (v) the execution, delivery, an. performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law, or rule applic.bile 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 Transacti.n, Buyer and Seller shall each be deemed to repeat all the forego;ng representations made by it. 10. Events of Default: i In the event that (i) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (ii) Seller o Buyer fails, after one business day's notice, to comply with Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5 hereo (iv) an Act of Insolvency occurs with respect to Seller or Buye t (v) any representation made by Seller or Buyer shall have been hcorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated or, (vi) Seller or B der shall admit to the other its inability to, or its intenti n not to, perform any of its obligations hereunder (each an 'Event of Default") . written notice to the default ng party (which option shall be At the option of the On-defaulting party, exercised by deemed to have been exercise even if no notice is given, immediately upon the occurrenc of an Act of Insolvency) , the Repurchase Date for each Tran action hereunder shall be deemed immediately to occur. i ' (b) In all Transactions n which the defaulting party is acting as Seller, if the non- efaulting party exercised or is deemed to have exercised the opt On referred to in subparagraph (a) of this Paragraph, (i) the defau ting party's obligations hereunder to repurchase all Purchased Sec cities in such Transactions shall thereupon become immediately d e', and payable (ii) to the extent permitted by applicable law, th Repurchase Price with respect to each such Transaction shall be 'fcreased by the aggregate amount obtained by daily application f (x) the greater of the Pricing Rate for such Transaction or th Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (a) of his Paragraph (decreased as of any day by (A) I .7- ' any amount retained by the no -defaulting party with respect to such Repurchase Price purs -it to clause (iii) of this subparagraph, (B) any procee.S from the sale of Purchased Securities pursuant to subparag aph (d) (i) of this Paragraph, and (C) any amounts credited to th- , account of the defaulting party pursuant to subparagraph (e) o 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 eve t of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all In ome paid after such exercise or deemed exercise shall be retain- 1 by the non-defaulting party and applied to the aggregate unpa c Repurchase Prices owed by the defaulting party and, (iv) the •efaulting 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 'n which the defaulting party is acting as Buyer, upon tender by he non-defaulting party of payment of the aggregate Repurchase Pri es for all such Transactions, the defaulting party's right, titl and interest in all Purchased Securities subject to such Trans Otions shall be deemed transferred to the non-defaulting party, the defaulting party shall deliver all such Purchased Securities to th non-defaulting party. (d) After one business da 's notice to the defaulting party (which may be the notice give under subparagraph (a) of this Paragraph or the notice referr=d to in clause (ii) of the first sentence of this Paragraph) , th- non-defaulting party may: (i) as to Transaction- in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market at such price or prices as the non- defaulting party may r-asonably deem satisfactory, any or all Purchased Securities subject to such Transactions and apply the proceeds hereof to the aggregate unpaid Repurchase Prices an. any other amounts owing by the defaulting party, her: hder or (B) in its sole discretion elect, in lieu of s:lling all of a portion of such Purchased Securities, b give the defaulting party credit for such Purchased Se' urities in an amount equal to the prise therefore on such date, obtained from a generally recognized source of the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Pri es and any other amounts owing by the defaulting part hereunder; and (ii) as to Transactions in which the defaulting party is acting as Buyer, (A) purchase se trities ("Replacement Securities") of the same class and mount as any Purchased Securities that are not deliver d by the defaulting party to the non-defaulting party s required hereunder or (B) in its 78- r 1 sole discretion elect, in lieu of purchasing Replacement Securities, to be dee ed to have purchased Replacement Securities at the pric therefore on such date, obtained from a generally reco ized source or the most recent closing bid quotation from such a source. (e) As to Transactions i which the defaulting party is acting as Buyer, the defaulting party shall be liable to the non- defaulting party (i) with respe t to Purchased Securities (other than Additional Purchased Secur'ties) for any excess of the price paid (or deemed paid) by the no - defaulting party for Replacement Securities therefore over the R purchase Price for such Purchased Securities; and (ii) with r Spect to Additional Purchased Securities for the price pai (or deemed paid) by the non- defaulting party for the Repl Cement Securities thereto. In addition, the defaulting part shall be liable to the non- defaulting party for interest n such remaining liability with respect to each such purchase ( r deemed purchase) or Replacement Securities from the date of su h purchase (or deemed purchase) until paid in full by Buyer. uch interest shall be at a rate equal to the greater of the Pri ing Rate for such Transaction or the Prime Rate. (f) For purposes of this aragraph 11, the Repurchase Price for each Transaction hereunder 'n 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 deeme exercise) by the non-defaulting party of its option under subpa agraph (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-def glting party in connection with or as a consequence of an Event o Default, together with interest thereon at a rate equal to the g eater of the Pricing Rate for the relevant Transaction of the Pria Rate. - (h) The non-defaulting pa ty shall have, in addition to its rights hereunder, any rights of erwise available to it under any other agreement or applicable 1 w. 11. Single Agreement: Buyer and Seller acknowleda that, and have entered hereunto and will enter into each Transac ion 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 ach other. Accordingly, each of Buyer and Seller agrees (i) to erform all of its obligations in respect of each Transaction her tinder and that a default in the performance of any such obligati r► shall constitute a default by it -19- in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off cl ims and apply property held by them in respect of any Transaction a ainst obligations owing to them in respect of any other Transacti ns hereunder, and (iii) that payments, deliveries, and other transfers made by either of them in respect of any Transaction sha 1 be deemed to have been made in consideration of payments, deliveries, and other transfers in respect of any other Transactio s hereunder, and the obligations to make any such payments, deliv ries, and other transfers may be applied against each other and netted. 12. Notices and Other Communications: 1 Unless another address s specified in writing by the respective party, any notice o other communication to be given hereunder, shall be in writ'ng or confirmed in writing and delivered at the respective add eisses set forth in Annex I attached hereto. 13. Entire Agreement; Severabillity: ' i This Agreement shall super 'ede any existing agreements between the parties containing general erms and conditions for repurchase transactions. Each provision a 1 agreement herein shall be treated as separate and independent fro any other provision or agreement herein and shall be a forceable notwithstanding the unenforceability of any such of er provision or agreement. 14. Non-assignability; Termina ion: The rights and obligationsf the parties under this Agreement and under any Transaction shal not be assigned by either party without the prior written conse t of the other party. Subject to the foregoing, this Agreement an any Transactions shall be binding upon and shall inure to the enefit of the parties and their respective successors and assig S. This Agreement may be canceled by either party upon giving wr'tten notice to the other, except that this Agreement shall no withstanding such notice, remain applicable to any Transaction t en outstanding. 15. Governing Law: This Agreement shall be go erned by the laws of the State of Florida without giving effect O the conflict of law principles thereof. I 16. No Waivers, Etc. : ` No express or implied waiver of any Event of Default by either party shall constitute a waiverof any other Event of Default and no exercise of any remedy hereunder by any party shall constitute -110- I s i I i t i a waiver of its right to exerci a any other remedy hereunder. No modification or waiver of any rovision of this Agreement and no consent by any party to a depa ure herefrom shall be effective unless and until such shall be i writing and duly executed by both of the parties hereto. Without imitation on any of the foregoing, the failure to give a notice p rsuant to subparagraph 4 (a) or 4 (b) hereof will not constitute waiver of any right to do so at a later date. 17. Use of Employee Plan Asset : (a) If assets of an emp oyee benefit plan subject to any provision of the Employee Reti ement Income Security Act of 1974 ("ERISA") are intended to be use by either party hereto (the "Plan Party") in a Transaction, the P1 th Party shall represent in writing to the other party that the ransaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party ay proceed in reliance thereon but shall not be so required to pro eed. (b) Subject to the last s rtence of subparagraph (a) of this Paragraph, any such Transacti n shall proceed .only if Seller furnished or has furnished to Buyer its most recent available audited statement of its finan ial condition and its most recent subsequent unaudited statement f its financial condition. (c) By entering into Transaction pursuant to this Paragraph, Seller shall be deeed (i) to represent to Buyer that since the date of Seller's late t such financial statements, there has been no material adverse cha ge in Seller's financial condition which Seller has not disclose to Buyer, and (ii) to agree to provide Buyer with future audit d and unaudited statements of its financial condition as they are issued so long as it is a Seller in any outstanding Transaction inv lying a Plan Party. 18. Intent: (a) The parties recogni a that each Transaction in a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States C de, as amended (except insofar as the type of Securities subject b such Transaction as the term of such Transaction would render s oh definition inapplicable) , and a "securities contract" as that erm is defined in Section 741 of Title 11 of the United State Co e, as amended. i (b) It is understood that either party's right to liquidate Securities delivered to it 'B connection with Transactions hereunder or to exercise any of er remedies pursuant to Paragraph 11 hereof is a contractual righ to liquidate such Transaction as described in Sections 555 and 5 9 of Title 11 of the United States Code, as amended. -11- Per the City Attorney, the following will be added to Section 18: c) The parties recognizethat each Transaction and this Agreement are intended to fully comply with the requirements of Section 166.261, Florid Statutes. d) Notwithstanding any p °vision contained herein to the contrary, no investments p rsuant to this Agreement shall be purchased at a higher pric than their market price at the time of such purchase. 09/28/94 13:15 FOLEY & LARDNER Z1008/011 . 19. Disclosure Relating to Certain Federal Projections: The parties acknowledge that they have been advised that: (A) THIS OBLIGATION ISNOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSI7� ,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 SELLER : ' ' y: Name: �► (ret. u Name: Title: /v`ayar Title: Date: _ • Date: fffl?T • G,"k1in , Ct.4, Chi( ADD gni 47BOVEY flerttA igivkiJAN 1�or"K • -12- 09/28/94 13:15 _ FOLEY & LARDNER 11 009/011 qi •ST PV 'ANNEX 1 Names and Addresses forCommuni.cations Between Parties 4.4 SELLER SunBank, N.A. Investment Banking Division P.O. Box 3833 • Orlando, Fl. 32802 Contact: Martel)le Boelte • lr Phone: (407) 237-4382 • BUYER Name: , ) (eilteth Address: • • Contacts Phone: Tax I.D. : Acct #: • /// : Additional Provisions Permissible Purchase seculiities: Only securities listed bellow are deemed permitted purchases under this Master Repurch se Agreement: 4h)6 pa y 1n Si- • (a) Direct obligati ns of, or obligations guarantee 1)' the United Stales of America, ie. , �j.S. Treasury Bills, Notes, a d Bonds. 4. • (b) Evidence of in ebtedness issued or • any of the Poll Wing: guaranteed by j Export-Import B nk of the United States Farmers Home A ihistration /Federal Home Lo n Banks /Federal Home Mo gage Corporation /Federal Nations Mortgage Association Student Loan Ma eting Association Resolution Fundi g Corporation Government Natio al Mortgage Association or Agency or ins entality of United States of America 09/28/94 13:15 FOLEY & LARDNER El010/011 s • EXHIBIT "B" , 0 'UN BANK . • ACCOUNT AGREEMENT CASH MANAGEMENT SWEEP ACCOUNT COMPANY:- C I T Y O1 O eF.J { t` teID4 ' AGREEMENT DATE: EFFECTIVE DATE: ACCOUNT NO.: TARGET BALANCE: 1 . DEFINITIONS - The following tefinitions 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 foany reason it is unable to process transactions to the Account on the above ffective 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" shIl mean the collected balance in the Account • which is in excess of the Targ .t Balance. • d. "Account" shall mean the bank account with the above-written account ` number. 2. The Company hereby authori'es and directs Bank name to determine the Company's Target Balance an Investable Balance for each banking day. i 3. On each banking day, the Co pany hereby authorizes the Bank to debit the Account as described below for the purpose of entering into repurchase agreements (as described in t a Master Repurchase Agreement executed of even date herewith) for direct bligations that are issued by or fully guaranteed as to principal and interest by,.the United States Government or any agency thereof. Such repurchase agr ements shall mature on the next succeeding banking day. 4. Subject to the following limitati ns, the Company authorizes the Bank to debit its Account for the purpose of ffecting repurchase agreements in government . securities using all, or substanti Ily all, of its Investable Balance. The Company acknowledges that the purch ses of government obligations agreed to and specified herein shall be subj et to a minimum purchase of $25,000, with purchases in excess of the m nimum amount to be made in increments of $1,000. These minimum pure ase requirements are subject to review and may • change from time to time with notice to Company. 09/28/94 13:16 FOL1;Y & L9RDNER 0 011/011 •• 5. The Company further authoriz 's and directs the Bank to debit the Account for • all fees and expenses incurre against the Account in connection with the transactions completed. Such , ebits may be made daily or at such other times as the Bank may elect. B. Company and Bank acknowledge and agree that from time to time, Bank may be unable to acquire governme t securities sufficient to enter into a repurchase agreement with Company as d scribed in Paragraphs 3 and 4, in which event, all or part of the Investable Ba ance shall remain in the Account and will not earn interest, and Bank shall h ve no liability to Company occasioned by this event. 7. The Company will receive a m nthly statement for the Sweep activity in this • account, in addition to the reg lar checking and analysis statements (if any). The Bank shall not be liabl for any unauthorized signature, alteration, misencoding or other material error on the face of any item in your bank statement, or for any incorrec amount or other error on the bank statement itself (including any item improp rly charged to your account), unless you notify • the Bank within 14 calendar ays of the date the Bank mails, personally delivers, or otherwise makes our 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 ank statements that you do not receive unless you give notice of non-receip within 30 days of the date on which your statement is customarily receiv d. 8. Any modifications to this Acco 'nt-Agreement shall not be binding on the Bank unless agreed to by the Bank in .citing. Any termination or cancellation of this Account Agreement shall be a Ctive within three (3) business days following the other party's actual receip of notice thereof. All notices to be given in connection with this Agreemen must be in writing and shall be mailed by first class, postage pre-paid to the arties of the addresses set forth herein. Each party is responsible for advisin the other of any change of address for these purposes. , COMPANY: an o� OUEr ADDRESS: • 1 d k e, ypvd By: • rr Date: POWTitle: IS . CCati` Ott �,Geh 1 M6t76r. 0 Clefts te\CM,ef� By' I Date: Title: 1 ` em\ 6- at cek BANK: SUN BANK By: ..._ —_ Date: Title: • By: Date: i. T. Title: