Loading...
HomeMy WebLinkAboutCity of Tamarac Resolution R-87-131Introduced by: Temp. Reso. #4585 1 2 3 4 rs 7 8 9 10 11 12 13 14 15 16 �I 19 20 21 22 23 24 25 '6 27 28 29 31 32 33 34 3E CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-87- 13 1 A RESOLUTION APPROVING AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE THE FIDATA/SECURITY PACIFIC CLEARING AND SERVICES CORPORATION SETTLEMENT AGREEMENT PERTAINING TO THE BRADFORD TRUST LITIGATION MATTER AND ACKNOWLEDGING TAMARAC'S ACCEPTANCE OF THE SECOND INTERIM BANKRUPTCY SETTLEMENT AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: That the City Council of the City of Tamarac hereby approves the Fidata/Security Pacific Clearing and Services Corporation Settlement Agreement pertaining to the Bradford litigation matter, attached hereto and made part hereof as Exhibit 111". SECTION 2: That the City of Tamarac acknowledges its acceptance "of the Second Interim Bankruptcy Settlement Agreement, also attached and made part hereof as Exhibit 11211. SECTION 3: That the appropriate City Officials are hereby authorized to execute said Agreement. SECTION 4: This Resolution shall become effective immediately upon adoption. p PASSED, ADOPTED AND APPROVED this day of 1987. BERNkRD H RT MAYOR ATTEST: r CAROL E. BARBUTO CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. —,-- DIST. ?: C/M POH3— - DIST. 2: C/M S EELZER DIST. 3: C/M HOFFMAN DIST. 4. V/M STEIN ..... EXHIBIT 1 J MEMORANDUM OF PUBLIC BODY FIDATA SECPAC SETTLEMENT AGREEMENT This memorandum is the complete and final expression of an to agreement by and among the undersigned parties and having the following terms: 1. PARTIES AND ABBREVIATIONS: (a) "Public Body" and "Public Bodies" hereinafter identify each and all, respectively, of the City of Allentown, Pennsylvania; the City of Beaumont, Texas; the City of Birmingham, Michigan; Clark County, Nevada; Dauphin County, Pennsylvania; First Atlantic Savings & Loan Association; the city of Harrisburg, Pennsylvania; the city of Hayward, California; the city of Pompano Beach, Florida; the city of Tamarac, Florida; the Board of Education of the city of Memphis, Tennessee; Garden City, Michigan; the city of Toledo, Ohio; Liberty Group (formerly known as Liberty Government Securities, Ltd.); Chelan County, Washington; Clallam County, Washington; Clallam County, Washington Public Utility District No. 1; Jefferson County, Washington; the Clallam County, Washington Public Utility District No. 1 Self -Insurance Fund; the Port of Port Angeles, Washington; Public Hospital District No. 1; Clallam County Fire Protection District No. 1; Black Diamond Water District; Clallam County Transit System; Port Angeles School District No. 121; Crescent School District No. 313; Cape Flattery School District No. 401; Quilayute School District No. 402; Clallam County Fire Protection District No. 3; Public Hospital District No. 2; Port of Port of Townsend; Port Townsend School District No. 50; and Educational Service District No. 114. (b) Fidata Trust hereinafter identifies Fidata Trust Company New York (formerly known as Bradford Trust Company). "Fidata" hereinafter identifies Fidata Trust, Fidata Corporation (formerly known as Bradford National Corporation), and Fidata Securities Management, Incorporated (formerly known as Bradford Securities Operations, Inc.). (c) "SeFPac" hereinafter identifies Security Pacific Clearing & Services Corp. 2. OTHER ABBREVIATIONS: (a) "Estate" hereinafter refers to the bankruptcy estate of ESM Government Securities, Inc. (b) "ESM" refers to each entity ever named ESM Government Securities, Inc.; ESM Securities, Inc.; ESM Group, Inc.; ESM Financial Group, Inc.; and/or ESM Aviation, Inc. (c) "Bankruptcy Agreement" refers to the separate agreement El 2 memorialized by that certain "Memorandum of Second Interim Bankruptcy Settlement Agreement" recently or shortly hereafter executed by the parties hereto and others. (d) "Home State Agreement" refers to the separate agreement integrated in that certain "Memorandum of Home State/Fidata/SecPac Settlement Agreement" recently or shortly hereafter executed by 10 some of the parties hereto. (e) "Grant" refers to Grant Thornton (formerly known as . Alexander Grant & Company), its partners, principals, employees, other agents, and insurers, and the respective heirs, successors, and assigns of each. (f) Trustee/Receiver refers to Thomas Tew, in his capacities as Bankruptcy Trustee and/or Equity Receiver of ESM. (g) "2/28/86 Agreement" hereinafter refers to the contract memorialized by that certain memorandum consisting of 8 "Articles" executed by substantially all of the undersigned parties as of February 28, 1986 and entitled, simply, "Agreement." 3. CONDITIONS AND DEADLINE FOR COMMENCEMENT OF EXISTENCE AS LEGAL CONTRACT; AUTOMATIC CANCELLATION: This agreement shall commence existence as such immediately when this written memorandum has been executed by each above -named party, provided both: (a) that by no later than 12:00 Noon Eastern Time on April 10, 1987, good U.S. funds in at least the amount of $435,000 shall be on deposit for the account of Fidata at a bank or trust company in the Southern District of Florida, subject to no condition or encumbrance which would in any way hinder or delay their full distribution to Public Bodies at the time and under the circumstances provided in Paragraph 6(a) hereinbelow; and (b) that April 30, 1987 has not passed. Time is absolutely of the essence in the formation as well as the performance of this agreement. If the deposit of funds described in sub -paragraph 3(a) just above has not occurred by 12:00 Noon Eastern Time on April 10, 1987, then at that time this agreement shall, regardless of complete party execution, be cancelled automatically and without any notice or other action whatsoever. Even though the deposit of funds described in sub -paragraph (a) above has timely occurred, if this agreement has not commenced existence by every party's execution prior to 11:59 p.m. Eastern Time on April 30, 1987, then this agreement shall still be . cancelled automatically. 4. PRELIMINARY PERFORMANCE: (a) By no later than 12:00 Noon Eastern time on April 10, 1987, Fidata Trust: (i) shall deposit good U.S. funds in the sum of $435,000 in a bank or trust company in the Southern District of Florida in an account or accounts that will earn interest at a commercially reasonable rate without penalty for withdrawal; and (ii) shall provide Public Bodies or their designate with such bank's or trust company's written confirmation(s) of such deposit(s) and interest rate(s). 10 (b) As among all parties to this agreement, the risk of loss of any and all of the funds described in Sub -Paragraph (a) just above (hereinafter abbreviated "the $435,000 escrow"), including interest earned thereon, shall be borne solely by Fidata Trust at all times until the distribution to Public Bodies provided for hereinbelow has been fully accomplished. 5. ADDITIONAL CONDITIONS TO REMAINING PERFORMANCE: (a) The additional conditions set forth in Paragraph 5 of the Bankruptcy Agreement shall also be conditions precedent to all further performance provided in this instant agreement. (b) It shall also be a condition to all remaining performance under this agreement that Public Bodies join in any motion of the • Trustee/Receiver to fix and allow Fidata's claims as against all creditors. By executing this agreement, Public Bodies hereby do join in any pending such motion and authorize Trustee/Receiver to represent their joinder in any such motion filed hereafter. 6. PRINCIPAL PERFORMANCE: Immediately after occurrence of the conditions specified in Paragraph 5 hereinabove, Fidata shall cause to be paid to those Public Bodies having actions against Fidata, or to their designate, the entire $435,000 escrow plus all interest Nearned thereon. 7. STIPULATIONS RELEASES AND COVENANTS FOR ONGOING PERFORMANCE: Effective immediately and automatically upon the completion of the performance specified in Paragraph 6 just above: (a) Each Public Body releases and covenants never to sue Fidata, each Fidata predecessor, subsidiary, affiliate, successor and assign, SecPac, each SecPac predecessor, subsidiary, affiliate, successor and assign, and each former and current director, officer, employee, attorney, other agent, other representative, and insurer on every insurance contract of any of them, together with all of their respective heirs, successors, and assigns, from and for all obligation of any kind (including without limitation all claims under the Bankruptcy Code and all claims, actions, suits, causes of action, accounts, judgments, agreements, promises, executions, debts, damages, demands, liabilities, and controversies of every nature and description, in law or equity, whether arising M by statute, at common law, or otherwise, whether arising under Federal, state, international, foreign, or other law, and whether assertable by such Public Body or against Fidata or SecPac directly or in any representative capacity whatsoever), accruing and/or discovered at any time including the future, connected in any way with ESM (including without limitation the operations or demise of ESM, any account maintained by ESM with Fidata or SecPac, any service provided to ESM by Fidata or SecPac, and/or any alleged breach of duty to any third party with respect thereto). (b) Fidata and SecPac each and both release and covenant never to sue each and every Public Body, each and all of its former and present officials, employees, attorneys and experts, each employee and agent of every such attorney and expert, and each and every insurer on every insurance contract of any of them, and all of their respective heirs, successors, and assigns, from and for all obligation of any kind (including without limitation all claims under the Bankruptcy Code and all claims, actions, suits, causes of action, accounts, judgments, agreements, promises, executions, debts, damages, demands, liabilities, and controversies of every nature and description, in law or equity, whether arising by statute, at common law, or otherwise, whether arising under Federal, state, international, foreign, or other law, and whether • assertable by such Public Body or against Fidata or SecPac directly or in any representative capacity whatsoever), accruing and/or discovered at any time including the future, connected in any way with ESM (including without limitation the operations or demise of ESM, any account maintained by ESM with Fidata or SecPac, any service provided to ESM by Fidata or SecPac, and/or any alleged breach of duty to any third party with respect thereto (including without limitation all sanctions heretofore awarded but not yet paid to Fidata from the city of Allentown, Pennsylvania)). (c) All monetary and other performance by Fidata and SecPac under this agreement: (i) is rendered for reimbursement of attorney fees, legal expenses, and as payment and satisfaction of all claims of each' Public Body against Fidata and SecPac under the Securities Act of 1933 and/or the Securities Exchange Act of 1934 associated in any way with ESM; and partial (though not complete) payment and satisfaction of the injuries and losses sustained by the Public Bodies in connection with the former operations of ESM; such injury and loss being the same as that previously satisfied in part or otherwise redressed by distributions from the Estate and previous actions by Public Bodies against Grant (and settlements thereof); and a(ii) constitutes complete satisfaction of each and every Public Body's own individual claim, if any, against Fidata and SecPac associated in any way with ESM. w 5 (d) Fidata and SecPac each and both agree to forego, disclaim, renounce, and extinguish any and all rights, if any, to any entitlements from Grant predicated upon claims by Fidata and SecPac as to which the Public Bodies who are signatories to the "Memorandum of Settlement Agreement" heretofore entered into with Grant would be obligated to indemnify Grant pursuant to Paragraph 5 of that agreement. The provisions of this instant sub -paragraph are not intended in any way to affect Fidata's non -contribution or non --indemnity direct claims against Grant, or any other claim by Fidata or SecPac not covered by the preceding sentence of this Paragraph. (e) Each party shall perpetually exercise reasonable care to keep in confidence all Fidata-related documents and/or work product obtained or generated in discovery in litigation with Fidata (including work product generated by experts and/or consultants which the party has authority to control); provided that any lawful use may be made of any matter supportive of a party's claim against any unreleased obligor or the defense of any claim. (f) Each party except Fidata and SecPac shall instruct its legal counsel and request any and all of its experts and/or consultants not to participate, assist, or voluntarily cooperate in the prosecution of any claim by anyone not a party to this agreement against Fidata or SecPac associated with operations of ESM, Bevill, Bresler, & Schulman, Inc., and/or Bevill, Bresler & Schulman Asset Management Corp. and/or their affiliates and/or subsidiaries. (g) Each Public Body, Fidata, and SecPac shall promptly take all action necessary and possible to cause the entry of a final order or final orders dismissing, with prejudice and as an adjudication upon the merits within the meaning of Rule 41, Federal Rules of Civil Procedure, all pending adversary litigation between or among them; said order or orders to provide for (i) vacation solely in the event of a circumstance described in Paragraph 8 hereinbelow, and for (ii) retention of continuing jurisdiction by the ordering Court or Courts over the parties for purposes of any such vacation. (h) Continuously throughout the existence of this agreement, (i) any and all statutes of limitation applicable to any and all claims and/or potential claims being settled by this agreement shall be tolled; and (ii) each and every party to this agreement consents to the continuing jurisdiction of the United States . District Court for the Southern District of Florida for purposes of any proceeding to enforce, modify, set aside, or otherwise carry out or effect this agreement. (i) For 100 days after Finality of Court Approval of the Bankruptcy Agreement (as defined in the Bankruptcy Agreement), Fidata shall preserve the original (or, only if none, a legible • duplicate) of each document whose production has been made by Fidata or requested by any other party to this agreement (whatever the present status of court action on any objection to such production) in any litigation relating to ESM. W Concurrently with or immediately following the "second interim bankruptcy distribution" provided in Paragraph 8 of the Bankruptcy Agreement, each Public Body-distributee shall either return to Fidata, or certify to Fidata that it has destroyed, all documents in its possession or control which Fidata produced or served in ESM-related litigation except for unsealed court papers and correspondence. L 8. REMEDIES FOR DEFAULT OR AVOIDANCE. (a) Notwithstanding any other provision of this agreement, should any material provision of this agreement or the Bankruptcy Agreement be modified, voided, rescinded, or otherwise nullified in any way; or should the Principal Performance provided in Paragraph 6 of this agreement hereinabove not be rendered in strictly the amount, time, and manner provided therein; or should there occur any other event or condition which authorizes the remedies provided in Paragraph 9 of the Bankruptcy Agreement; then the or each affected party at its it separate option, within fourteen (14) calendar days of such modification, voidance, rescission, or other nullification, may by notice to all parties to this agreement and without need of litigation have, do, and/or cause to be done all (but not only part) of the following relief and reciprocal acts: (i) all stipulations, releases, covenants not to sue, and litigation dismissals provided herein or effectuated hereunder (except the limitation -tolling, continuing -jurisdiction, and Fidata document preservation provisions herein) may be voided; (ii) all claims released, purportedly released, or reduced by or pursuant to this agreement shall be restored in full, in substance and amount, to their status immediately prior to the date this agreement commenced existence; (iii) all dismissal orders entered pursuant to this agreement shall be set aside; (iv) all litigation thereby dismissed may be refiled and shall, for all purposes including any limitation defense, be deemed to have commenced at the same date as the date of commencement of the predecessor litigation dismissed pursuant to this agreement; (v) all payments received by virtue of this agreement, the Home State Agreement, and the Bankruptcy Agreement shall be returned to the payor(s); - (vi) Fidata shall, in all re -filed litigation, promptly re -produce all Fidata-related documents which the plaintiff or other relevant opposing party may have previously destroyed or returned to Fidata pursuant to this agreement; and (vii) In the event that a Public Body is required to return a distribution received under the Bankruptcy Agreement but fails to return such distribution to Trustee/Receiver, that Public Body shall pay Fidata a sum equal to the amount of the distribution which was money or property that the Estate recovered from Fidata. (b) Notwithstanding anything in sub -paragraph (a) just above, if the Bankruptcy Agreement should be modified, voided, rescinded or otherwise nullified in any way, and a distribution to a Public Body pursuant to that Bankruptcy Agreement which was funded by or derived from Fidata is not returned to the Estate-payor, then (but only then) each such defaulting Public Body agrees: (i) to seek to have the Trustee/Receiver of the ESM Estate reduce his claim (if any) against Fidata by the higher of (A) such defaulting Public Body's pro rats share of any Future Customer Property, as defined in the 2/28/86 Agreement, or (B) the amount of the previous Bankruptcy Agreement distribution (plus interest as provided in the Bankruptcy Agreement) which that Public Body has undertaken and become liable, but failed, to return to the ESM Estate; and (ii) in the event that the Trustee/Receiver does not reduce his claim as described just above, then any and each such defaulting Public Body agrees to assign to Fidata that portion of any further distribution of Customer Property (as that term is defined in the Bankruptcy Agreement) which such Public Body thereafter receives from the ESM Estate. This Sub -paragraph (b) is intended only to apply to a Public Body which receives a Customer Property distribution from the ESM Estate as a benefit of the settlement represented by this agreement and the Bankruptcy Agreement, but then breaches an undertaking to return such distribution upon some nullification of the settlement or some other event legally dictating the return of such prior distribution. In no event shall this sub -Paragraph (b) be applied to any Public Body who has not undertaken and become presently liable, but failed, to return a distribution previously made under the Bankruptcy Agreement in connection with the settlement represented by the Bankruptcy Agreement and this instant agreement. So long as a Public Body honors and performs an applicable undertaking to return an ESM Estate distribution in an event which requires the return of such distribution under the terms of such 40 undertaking or the Bankruptcy Agreement, this Sub -paragraph (b) shall have no effect upon that Public Body or its claim(s) against the ESM Estate. (c) Except as provided in sub -paragraph (a) above, E3 interdependence of covenants in this agreement shall not be implied and breach of a covenant and/or failure of a condition with respect to one party or some parties shall not be implied to excuse any other party from the continued performance of all of the latter's obligations hereunder. This agreement is intended to terminate and avoid litigation, and specific enforcement shall be granted at the option of any aggrieved party without regard to the level of adequacy of any other remedy or combination of remedies. (d) Relief recovered for any breach of this agreement by any party shall include all legal expense (including without limitation attorney and expert fees) caused by and/or incurred in redressing such breach. 9. SUCCESSORS AND ASSIGNS: PRESERVATION OF OTHER RIGHTS. (a) This agreement shall bind and benefit, according to its terms, both the named parties and their respective heirs, successors, and assigns, and, to the extent provided for in the releases and covenants in this agreement, each of their past and present principals, officials, directors, officers, shareholders, attorneys, agents, employees, subsidiaries, affiliates, representatives, and constituents, together with all of the respective heirs, successors, and assigns of all of them, to the fullest extent authorized by law. All individuals and entities included in the scope of releases and covenants herein are intended third -party beneficiaries and, together with their own heirs, successors, and assigns, may enforce this agreement as if a named party. (b) Neither this agreement nor any other agreement or transaction referred to herein or executed pursuant hereto between or among the parties hereto constitutes a release, waiver, reduction, covenant not to sue, or any other action upon any claim • or obligation of any person or entity except as explicitly provided herein; all of which other claims and obligations (including without limitation all claims against former principals and employees of ESM, Touche Ross & Company, Grant, Marvin L. Warner, Burton M. Bongard, any former director, officer, or employee of Home State, the estate of Stephen Arky, Arky Freed, Watson, Stearns, Greer, Weaver & Harris, P.A., and the partners, affiliates, successors, and assigns of any and all of the foregoing) are hereby expressly reserved. Should any release contained in this agreement be subject to a construction negatively affecting the obligation of any person or entity beyond the named releasees, such release shall automatically be amended into a covenant not to sue or such other equivalent covenant as does'not affect unnamed obligors under applicable law. 10. MISCELLANEOUS. (a) Each party covenants to perform any lawful additional acts, including execution of additional agreements, as are reasonably necessary to effectuate this agreement. 0 9 (b) Nothing in this agreement constitutes an admission, declaration, or other evidence of the rights or liability of any person or entity except with respect to the contractual duties and stipulations provided in this agreement itself. All parties acknowledge that every party heretofore alleged to be liable to any other has denied liability for any claim encompassed by this ragreement, and that each party intends by this settlement agreement merely to end litigation and controversy. (c) Each party acknowledges and stipulates that the compromise and settlement which form the basis of this agreement have been arrived at after thorough bargaining and negotiation, and represent a final, mutually agreeable compromise of the matters provided herein. Each party further acknowledges that it may hereafter discover facts in addition to or different from those which it now knows or believes to be true with respect to matters encompassed by this agreement; but that it is the intention of each party to, and each party does hereby, fully, finally, and forever settle the matters provided by this agreement notwithstanding the discovery or existence of any such additional or different facts. (d) Each release and/or covenant not to sue provided in this • agreement shall take effect as such, at the time and one the other conditions provided herein, without further action or notice; and no such release shall be construed as a mere promise requiring a further memorandum or other action to become effective. (e) Each party herein making a release, and/or a covenant with respect to a claim or right, hereby represents and warrants that, except as provided in this agreement or in the previous Grant settlement referred to hereinabove, it has not assigned or . transferred, or purported to assign or transfer, either voluntarily, involuntarily, or by operation of law, any claim or right which is the subject of such release and/or covenant. (f) Any controversy over the construction of this agreement shall be decided neutrally, in light of its conciliatory purposes, and without regard to events of authorship or negotiation. (g) This memorandum of agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one single agreement. (h) Each person signing this memorandum either as an individu-al named party or as the representative of a named party hereby represents and warrants, both individually and on behalf of any such represented named party, that he or she is authorised to so sign; that the execution, formation, and performance of this agreement by that named party is duly authorized and in accordance with all applicable laws relating thereto; and that this agreement is fully enforceable against that named party according to its terms. n LJ COUNTERPART EXECUTION PROVISIONS City of Tamarac 5811 NW 88 Avenue Tamarac Fla. 33321 [printed entity name] ("Public By: manual signs ure] Bernard Hart [printed name] Mayor [printed title or capacity] April 22 1987 [printed date of execution] FIDATA TRUST COMPANY NEW YORK ("Fidata Trust" and "Fidata") By: _.. [manual signature] [printed name] [printed title or capacity] [printed date of execution] 11 L J FIDATA CORPORATION ("Fidata") By: [manual signature] 40 [printed name] [printed title or capacity] [printed date of execution] FIDATA SECURITIES MANAGEMENT, INCORPORATED ("Fidata") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution] SECURITY PACITIC CLEARING & SERVICES CORP. ("SecPac") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution] o"'RoD . 9I- ► EXHIBIT 2 MEMORANDUM OF SECOND INTERIM BANKRUPTCY SETTLEMENT AGREEMENT This memorandum is the complete and final expression of an agreement by and among the undersigned parties and having the following terms: 1. PARTIES AND ABBREVIATIONS: (a) "Trustee/Receiver" hereinafter identifies Thomas Tew, in his capacities as Bankruptcy Trustee of ESM Government Securities, Inc. and Equity Receiver of ESM Securities, Inc.; ESM Group, Inc.; and ESM Financial Group, Inc. (b) "Customer" and "Customers" hereinafter identify each and all, respectively, of the City of Allentown, Pennsylvania; the City of Beaumont, Texas; the City of Birmingham, Michigan; Clark County, Nevada; Dauphin County, Pennsylvania; First Atlantic Savings & Loan Association; the city of Harrisburg, Pennsylvania; the city of Hayward, California; the city of Pompano Beach, Florida; the city of Tamarac, Florida; the Board of Education of the city of Memphis, Tennessee; Garden City, Michigan; the city of Toledo, Ohio; Liberty Group (formerly known as Liberty Government Securities, Ltd.); Chelan County, Washington; Clallam County, Washington; Clallam •County, Washington Public Utility District No. 1; Jefferson County, Washington; the Clallam County, Washington Public Utility District No. 1 Self -Insurance Fund; the Port of Port Angeles, Washington; Public Hospital District No. 1; Clallam County Fire Protection District No. 1; Black Diamond Water District; Clallam County Transit System; Port Angeles School District No. 121; Crescent School District No. 313; Cape Flattery School District No. 401; Quilayute School District No. 402; Clallam County Fire Protection District No. 3; Public Hospital District No. 2; Port of Port of .Townsend; Port Townsend School District No. 50; Educational Service District No. 114; and Home State (as defined hereinbelow). As used to identify the foregoing parties, customer also has the same meaning defined in the "2/28/86 Agreement" further identified hereinbelow. (c) Home State hereinafter separately identifies the Home State Savings Bank and each of its representatives, liquidators, agents, affiliates, successors and assigns and the liquidation estate of Home State Savings Bank; the same meaning defined in the 2/28/86 Agreement further identified hereinbelow. (d) Fidata Trust hereinafter identifies Fidata Trust Company New York (formerly known as Bradford Trust Company). "Fidata" hereinafter identifies Fidata Trust, Fidata Corporation (formerly known as Bradford National Corporation), and Fidata Securities Management, Incorporated (formerly known as Bradford Securities Operations, Inc.). (e) "SecPac" hereinafter identifies Security Pacific Clearing & C� Services Corp. 2. OTHER ABBREVIATIONS: (a) "2/28/86 Agreement" hereinafter refers to the contract memorialized by that certain memorandum consisting of 8 "Articles" executed by substantially all of the 48 undersigned parties as of February 28, 1986 and entitled, simply, "Agreement." (b) "Court approval" hereinafter refers to the approval of this agreement by an "Approval Order" as defined in Article I, Paragraph 4 of the 2/28/86 Agreement, and evidenced by either (i) an oral decision at hearing of which a certified transcript is provided to Trustee/Receiver, or (ii) a written memorandum of which an attested copy is provided to Trustee/Receiver (whichever first occurs). "Finality of Court approval" or language of equivalent meaning hereinafter refers to the event and/or time at which such Court approval has become a final order from which no appeal or certiorari is pending or thereafter may be taken. (c) "Estate" hereinafter refers to the bankruptcy estate of ESM Government Securities, Inc. (d) "Receivership" hereinafter refers to the equity receivership estate of ESM Securities, Inc., ESM Group, Inc., and ESM Financial Group, Inc. (e) "ESM" refers to each entity ever named ESM Government Securities, Inc.; ESM Securities, Inc.; ESM Group, Inc.; ESM Financial Group, Inc.; and/or ESM Aviation, Inc. (f) "Public Body Agreement" refers to the separate agreement memorialized by that certain "Memorandum of Public Body/Fidata/SeoPac Settlement Agreement" recently or shortly hereafter executed by some of the parties hereto. (g) "Home State Agreement" refers to memorialized by that certain "Memorandum State/Fidata/SeoPac Settlement Agreement" hereafter executed by some of the parties the separate agreement of Home .recently or shortly hereto. (h) "Customer Property" hereinafter has the same meaning defined in 11 U.S.C. 741(4) and in Article I, Paragraph 8 of the 2/28/86 Agreement. (i) "Grant" hereinafter refers to Grant Thornton (formerly known as Alexander Grant & Company), its partners, principals, employees, other agents, and insurers; and the respective heirs, successors, and assigns of each. 0 3 3. CONDITIONS AND DEADLINE FOR COMMENCEMENT OF EXISTENCE AS LEGAL CONTRACT: AUTOMATIC_ CANCELLATION__ This agreement shall commence existence as such immediately when this written memorandum has been executed by each above -named party, provided both: (a) that by no later than 12:00 Noon Eastern Time on April 10, 1987, good U.S. funds in at least the amount of $8,515,000 shall be { on deposit for the account of Fidata and/or SecPac at a bank or trust company in the Southern District of Florida, subject to no condition or encumbrance which would in any way hinder or delay their full distribution to Trustee/Receiver at the time and under the circumstances provided in Paragraph 6(a) hereinbelow; and (b) that April 30, 1987 has not passed. Time is absolutely of the essence in the formation as well as the performance of this agreement. If the deposit of funds described in sub -paragraph 3(a) just above has not occurred by 12:00 Noon Eastern Time on April 10, 1987, then at that time this agreement shall, regardless of complete party execution, be cancelled automatically and without any notice or other action whatsoever. Even though the deposit of funds described in sub -paragraph (a) above has timely occurred, if this agreement has not commenced existence by every party's execution prior to 11:59 p.m. Eastern Time on April 30, 1987, then this agreement shall still be cancelled automatically. 4. PRELIMINARY PERFORMANCE: (a) By no later than 12:00 Noon Eastern time on April 10, 1987, Fidata Trust and SecPac (i) shall deposit good U.S. funds in the sums of $8,015,000 and $500,000, respectively, in a bank or trust company in the Southern District of Florida in an account or accounts that will earn interest at a commercially reasonable rate without penalty for withdrawal; and (ii) shall provide Trustee/Receiver and Customers (or their designate) with such bank's or trust company's written confirmation(s) of such deposit(s) and interest rate(s). Such deposit(s) and all interest thereon is hereinafter collectively abbreviated "the $8,515,000 escrow". (b) As among all parties to this agreement, the risk of loss of any and all of the $8,515,000 escrow (including interest earned thereon) shall be born solely by Fidata Trust and SecPac according to their respective deposits at all times until the distribution to Trustee/Receiver provided in Paragraph 6(a) hereinbelow has been fully accomplished. (c) Promptly following his execution of this agreement, Trustee/Receiver shall file and notice for hearing no later than April 27, 1987, an appropriate application for Court approval of this agreement and all actions of Trustee/Receiver provided hereunder. 0 E 4 5. ADDITIONAL CONDITIONS TO REMAINING PERFORMANCE: (a) The commencement of existence of the Public Body Agreement and (b) the commencement of existence of the Home State Agreement as legal contracts, according to their own terms, and (c) Court approval of this instant agreement (as defined hereinabove), all by 11:59 p.m. Eastern Time on April 30, 1987, shall each and all be conditions precedent to all further performance provided in this instant agreement. Should any of such conditions not occur by 11:59 p.m. Eastern Time on April 30, 1987, then this instant agreement shall immediately terminate automatically and without any notice or other action whatsoever. 6. PRINCIPAL MONETARY PERFORMANCE; PREPARATION OF ADDITIONAL CUSTOMER PROPERTY FOR DISTRIBUTION: Immediately after occurrence of the conditions specified in Paragraph 5 hereinabove, commencing no later than May 1, 1987, and in the following order: (a) Fidata and SecPac shall cause the entire $8,515,000 escrow plus all interest earned thereon to be paid to Trustee/Receiver; • (b) Trustee/Receiver shall accept all such funds as "Customer Property", and shall reinvest all of the same so as to earn further interest at commercially reasonable rates without penalty for withdrawal; and (c)(i) the account of approximately $1,125,000 heretofore held by Trustee/Receiver pursuant to that certain May 21, 1985 agreement with Fidata Trust and Article I, Paragraph 12 of the 2/28/86 Agreement; and (ii) the account of approximately $125,000 in additional funds originating from SecPac and heretofore held by Trustee/Receiver pursuant to Article I, Paragraph 21 of the 2/28/86 Agreement; together with (iii) all of the approximately $100,000 in interest earned on either and both such accounts; shall be released from such escrow and also held by the Trustee/Receiver as Customer Property; and shall all be invested by Trustee/Receiver so as to earn further interest at commercially reasonable rates without penalty for withdrawal. 7. STIPULATIONS. RELEASES AND COVENANTS FOR ONGOING PERFORMANCE. Effective immediately and automatically upon the completion of all items of performance specified in Paragraph 6 just above: (a) Trustee/Receiver releases and covenants never to sue Fidata, each Fidata predecessor, subsidiary, affiliate, successor, and assign, SecPac, each SecPac predecessor, subsidiary affiliate, successor, and assign, and each former and current director, officer, employee, attorney, other agent, other representative, and insurer on any insurance contract of any of them, together with all 0 5 of their respective successors and assigns, from and for all obligation of any kind (including without limitation all claims under the Bankruptcy Code and all claims, actions, suits, causes of action, accounts, judgments, agreements, promises, executions, debts, damages, demands, liabilities, and controversies of every nature and description, in law or in equity, whether arising by statute, at common law, or otherwise, whether arising under • Federal, state, international, foreign, or other law, and whether assertable by Trustee/Receiver or against Fidata or SecPac directly or in any representative capacity whatsoever), accruing and/or discovered at any time including the future, connected in any way with ESM (including without limitation the operations or demise of ESM, any account maintained by ESM with Fidata or SecPac, any service provided to ESM by Fidata or SecPac, and/or any alleged breach of duty to any third party with respect thereto). (b) Fidata Trust has a non -customer unsecured claim against the Estate, allowed as to amount and priority and not subject to subordination, in the total principal amount of $10,200,000. (c) Except for the Fidata Trust claim against the Estate stipulated in the immediately preceeding sub -paragraph, neither Fidata nor SecPac has or shall have any further claim against the Estate or the Receivership. (d) Fidata and SecPac each and both release and covenant never to sue Trustee/Receiver, the Estate, the Receivership, their successors and assigns, each attorney and expert ever engaged by any of them, and each former and current employee, agent, other representative, and insurer on every insurance contract of every such attorney and expert, and all of their respective heirs, successors, and assigns, from and for all obligation of any kind, .(including without limitation all claims under the Bankruptcy Code and all claims, actions, suits, causes of action, accounts, judgments, agreements, promises, executions, debts, damages, demands, liabilities, and controversies of every nature and description, in law or in equity, whether arising by statute, at common law, or otherwise, whether arising under Federal, state,. international, foreign, or other law, and whether assertible by Fidata or SecPac or against Trustee/Receiver directly or in any representative capacity whatsoever), accruing and/or discovered at any time including the future, connected in any way with ESM (including without limitation the operations or demise of ESM, any account maintained by ESM with Fidata or SecPac, any service provided to ESM by Fidata or SecPac, and/or any alleged breach of duty to any third party with respect thereto); except for the, Fidata Trust claim against the Estate approved in sub --paragraph (b) hereinabove. (e) All monetary and other performance by Fidata and SecPac under this agreement is rendered in payment and satisfaction for all the claims by the Customers, the Estate, and the Receivership W 6 against Fidata and SecPac and in partial (though not complete) payment and satisfaction of the respective injuries and losses sustained by the Estate, the Receivership, and the Customers in connection with the former operations of ESM. Such injuries and losses include those previously satisfied in part or otherwise redressed by prior distributions from the Estate and previous . actions by Customers against Grant and the settlement thereof. (f) All money or equivalent property hereafter received by Fidata through any and all claims associated with ESM (except for payment on a Fidata insurance contract which subrogates the paying insurer) shall apply to reduce, dollar -for -dollar, Fidata's remaining unsecured claim against the Estate. (g) Each party shall perpetually exercise reasonable care to keep in confidence and/or not sell all and any Fidata-related work product obtained or generated in discovery in litigation with Fidata (including work product generated by experts and/or consultants which the party has authority to control); and each party except Trustee/Receiver shall perpetually exercise reasonable care to keep in confidence all Fidata-related documents (including documents generated by experts and/or consultants which the party has authority to control); provided, however, that any lawful use may be made of any matter supportive of a party's claim against any person or entity not a party to this agreement or the defense of any claim whatsoever. (h) Except insofar as the Trustee/Receiver may be otherwise controlled by fiduciary duty to creditors of the Estate and/or Receivership, each party except Fidata and SecPac shall instruct its legal counsel and request any and all of its experts and/or consultants not to participate, assist, or voluntarily cooperate in .the prosecution of any claim by anyone not a party to this agreement against Fidata or SecPac associated with operations of ESM, Bevill, Bresler, & Schulman, Inc., and/or Bevill, Bresler & Schulman Asset Management Corp. and/or their affiliates or subsidiaries. (i) All expenses of the Estate and/or Receivership (including attorney fees) associated with litigation against Fidata shall.be paid as soon as practicable after Court Approval upon appropriate application for such payment. (j) Trustee/Receiver and Fidata shall promptly take all action necessary and possible to cause the entry of a final -order or final orders dismissing, with prejudice and as an adjudication upon"the merits within the meaning of Rule 41, Federal Rules of Civil Procedure, all adversary litigation between them; said order or orders to provide for (i) vacation solely in the event of a circumstance described in Paragraph 9 hereinbelow, and for (ii) retention of continuing jurisdiction by the ordering Court or Courts over the parties for purposes of any such vacation. 0 (k) Continuously throughout the existence of this agreement, (i) any and all statutes of limitation applicable to any and all claims and/or potential claims being settled by this agreement shall be tolled; and (ii) each and every party to this agreement consents to the continuing jurisdiction of the Court entering the •Approval Order for purposes of any proceeding to enforce, modify, set aside, or otherwise carry out or effect this agreement. (1) All Customers except Home State collectively and individually as to their pro rats portion assign to Fidata the first $1,000,000 of future distribution which any and each such assigning Customer hereafter receives from the ESM Estate, excluding both (i) all distribution made pursuant to Paragraph 8 of this agreement below, and (ii) any and all distribution occuring by reason of and/or derived from a payment or equivalent property transfer by Grant to the Estate, as to which distribution the Customer has to indemnify Grant under the terms of a prior settlement between such Customer and Grant; such assignment to terminate immediately and forever when Fidata or its designee has received $1,000,000 or property of that value by reason of such assignment. (m) Each Customer, by executing this memorandum of agreement and attached schedule, hereby verifies for the Trustee/Receiver, for purposes of accuracy in the second interim bankruptcy distribution provided in Paragraph 8 below, the amount of all of such customer's collateral source recoveries (within the meaning of Article VIII, Paragraph 1 of the 2/28/86 Agreement) and the amount of its net equity claim(s). (n) For one hundred (100) days after Finality of Court approval, Fidata shall preserve the original (or, only if none, a legible duplicate) of each document whose production has been made by Fidata or requested by any other party to this agreement (whatever the present status of court action on any objection to such production) in any litigation relating to ESM. 8. SECOND INTERIM BANKRUPTCY DISTRIBUTION;CONDITIONS AND EXECUTION: a Conditions: The distribution to each Customer provided in this Paragraph 8 shall be conditioned, separately as to each such distributee, upon both of the following: (i) ten (10) calendar days must have passed since the entry of an order constituting Court approval of this agreement; • and (ii) Court approval of this agreement must have become a final order from which no appeal or certiorari may be taken or is 8 pending; provided, however, that any -party to this agreement who would otherwise be entitled to a distribution hereunder upon the above -described Finality of Court approval shall be entitled to receive its distribution in advance of such finality promptly upon providing an undertaking to the Estate, also subject to Court approval (but without requirement of finality) as to sufficiency, to repay to the Estate, in the event that Court approval of this agreement is thereafter reversed, materially modified or vacated after any appeal or certiorari, the amount of such party's distribution together with interest accrued thereon from the date of such distribution at the average prevailing twenty-six week United State Government Treasury Bill rate during such period as set forth in the national editions of The Wall Street Journal. (b) Execution of distribution: Provided that each of the conditions specified in sub -paragraph (a) just above has occurred, and then not later than twenty-four (24) hours after the earlier of (i) Finality of Court approval of this agreement or (ii) Court approval of the above -described undertaking of an affected distributee/Customer: (I) the Trustee/Receiver shall distribute good and immediately available U.S. funds in the sum of $1,300,000, plus 15.27% of all interest earned on the $8,515,000 escrow between its deposit by Fidata and/or SecPac pursuant to Paragraph 4 hereinabove and its turnover to Trustee/Receiver pursuant to Paragraph 6(a) hereinabove, all as Customer Property, to Home State; and (II) the Trustee/Receiver shall distribute good and immediately available U.S. funds in the sum of: (A) the balance of the $8,515,000 escrow, including the remaining 84.73% of all interest earned thereon prior to turnover to Trustee/Receiver pursuant to Paragraph 6(a) hereinabove, and 100% of all further interest earned thereon through investment by Trustee/Receiver pursuant to Paragraph 6(b) hereinabove; and (B) the entire amount of additional Customer Property described in Paragraph 6(c) hereinabove, including all interest earned thereon, to all Customers other than Home State (or such remaining Customers' designate) severally in proportion to the net equity claim (if any) which each such Customer then has under the 2/28/86 Agreement, the attached schedule, and applicable law. (c)-Amounts and disposition of remaining Customer claims: The net equity claim of each Customer (except Home State) heretofore existing as against the Estate shall be reduced by the amount. received or to be received by such Customer from the Trustee/Receiver distribution provided in this Paragraph 8; and the remaining balance of each such Customer's net equity claim constitutes an unsecured claim, allowed as to amount and priority and not subject to subordination. Nothing in this stipulation shall abrogate the effectiveness of Article VIII, Paragraph 1 of • the 2/28/86 Agreement relating to the reduction of such claims by 9 collateral source recoveries. d Amount and disposition of remaining Home State claim: The unsecured claim of Home State heretofore existing as against the Estate is reduced by the amount received or to be received by Home State from the Trustee/Receiver distribution provided in Sub - Paragraph 8(b)(I) hereinabove; and Home State has unsecured claim against the Estate, allowed as to a non -customer amount and priority and not subject to subordination, in the total sum of: (i) $98,000,000 less (ii) the amount received or to be received by Home State from Trustee/Receiver pursuant to Paragraph 8(b) hereinabove; Provided, however, that nothing in this stipulation shall abrogate the effectiveness of Article VIII, Paragraph 1 of the 2/28/86 Agreement relating to the reduction of such claim by collateral source recoveries. (e) Customer return or destruction of Fidata documents following distribution: Except as otherwise agreed by Fidata, concurrently with or immediately following the distribution to each Customer (including Home State) hereunder, such Customer- distributee shall either certify to Fidata that it has destroyed, or return to Fidata, all documents in its possession or control which Fidata produced or served in ESM-related litigation except for unsealed court papers and correspondence. Sf Trgstee/Recei_v_erand his attorneys_are hereby* held harmless and shall have no liability in the event that Trustee/Receiver makes a distribution hereunder prior to Finality of Court approval under the terms and conditions set forth herein, and such Court approval is subsequently reversed, materially modified or vacated, and the recipient of such distribution does not repay to the Estate the amount of the prior distribution together with interest accrued. Also in that event, any amount not repayed, if any, shall reduce any claim by Trustee/Receiver against Fidata in an amount equal to the greater of (i) the defaulting recipient's pro rats share of any Future Customer Property, as defined in the 2/28/86 Agreement, or (ii) the total amount which such defaulting recipient has become liable, but failed, to return to the Estate (including interest on the affected distribution as provided in Paragraph 8(a)(ii) hereinabove). Trustee/Receiver shall take such action as appropriate to effectuate such claim reduction. 9. REMEDIES FOR DEFAULT OR AVOIDANCE. (a) Notwithstanding any other provision of this agreement, should any material provision of this agreement be modified, voided, rescinded, or otherwise nullified in any way; or should there occur any failure or deficiency in the timely and full performance of the monetary payment provided in Paragraph 6 hereinabove; or should the second interim bankruptcy distribution described in Paragraph 8(b) hereinabove, as approved upon Finality of Court Approval, provide that a Customer receive materially less than provided by the 10 attached schedule without that Customer's express consent; then the or each affected party at its separate option, within fourteen (14) calendar days of such modification, voidance, rescission or other nullification, may by notice to all parties to this agreement and without need of litigation have, do, and/or cause to be done all (but not only part) of the following relief and reciprocal acts: (i) all stipulations, releases, covenants not to sue, and litigation dismissals provided herein or effectuated hereunder (except the limitation -tolling, continuing -jurisdiction, and Fidata document -preservation provisions and the provisions of Paragraph 8(f) hereinabove) may be voided; (ii) all claims purportedly released or reduced by or pursuant to this agreement shall be restored in full, in substance and amount, to their status immediately prior to the date this agreement commenced existence; (iii) all dismissal orders entered pursuant to this agreement shall be set aside; (iv) all litigation thereby dismissed may be refiled and shall, for all purposes including any limitation defense, be deemed to have commenced at the same date as the date of the commencement of the litigation dismissed pursuant to this agreement; (v) all payments received by virtue of this agreement, the Home State Agreement, and the Public Body Agreement shall be returned to their payor(s); and (vi) Fidata shall promptly re -produce any and all Fidata- related documents previously produced or served by Fidata which the aggrieved party may have destroyed or returned to Fidata pursuant to this agreement. (b) Except as provided in sub -paragraph (a) just above, interdependence of covenants in this agreement shall not be implied and breach of a covenant and/or failure of a condition with respect to one party or some parties shall not be implied to excuse any other party from the continued performance of all of the latter's obligations hereunder. This agreement is intended to terminate and avoid litigation, and specific enforcement shall be granted at the option of any aggrieved party without regard to the level of adequacy of any other remedy or combination of remedies. (c) Relief recovered for any breach of this agreement by any party shall include all legal expense (including without limitation attorney and expert fees) caused by and/or incurred in redressing . such breach. 10. SUCCESSORS AND ASSIGNS• PRESERVATION OF OTHER RIGHTS. (a) 0 11 This agreement shall bind and benefit, according to its terms, both the named parties, their respective successors and assigns, and, to the extent provided for in the releases and covenants in this agreement, each of their past and present principals, officials, directors, officers, shareholders, attorneys, agents, employees, subsidiaries, affiliates, representatives, and constituents, and their respective heirs, successors, and assigns to the fullest extent authorized by law. All individuals and entities included in the scope of releases and covenants herein are intended third -party beneficiaries and, together with their own heirs, successors, and assigns, may enforce this agreement as if a named party. (b) Neither this agreement nor any other agreement or transaction referred to herein or executed pursuant hereto between or among the parties hereto constitutes a release, waiver, reduction, covenant not to sue, or any other action upon any claim or obligation of any person or entity except as explicitly provided herein or in such other agreement or transaction; all of which other claims and obligations (including without limitation all claims against former principals and employees of ESM, Grant, Mervin L. Warner, Burton M. Bongard, and former directors, officers, or employees of Home State, the estate of Stephen Arky, Arky Freed, Watson, Stearns, Greer, Weaver & Harris, P.A., and Touche Ross & Company, and the partners, affiliates, successors, and assigns of any and all of the foregoing) are hereby expressly reserved. Should any release contained in this agreement be subject to a construction negatively affecting the obligation of any person or entity beyond the named releasees, such release shall automatically be amended into a covenant not to sue or such other equivalent covenant as does not affect unnamed obligors under applicable law. . 11. MISCELLANEOUS. (a) Each party covenants to perform any lawful additional acts, including execution of additional agreements, as are reasonably necessary to effectuate this agreement. (b) Nothing in this agreement constitutes an admission, declaration, or other evidence of the rights or liability of any person or entity except with respect to the contractual duties and stipulations provided in this agreement itself. All parties acknowledge that every party heretofore alleged to be liable to any other has denied liability for any claim encompassed by this agreement, and that each party intends by this settlement agreement merely to end litigation and controversy. (c) Each party acknowledges and stipulates that the compromise and settlement which form the basis of this agreement have been arrived at after thorough bargaining and negotiation, and represent • a final, mutually agreeable compromise of the matters provided herein. Each party further acknowledges that it may hereafter discover facts in addition to or different from those which it now 0 12 knows or believes to be true with respect to matters encompassed by this agreement, but that it is the intention of each party to, and each party does hereby, fully, finally, and forever settle the matters provided by this agreement notwithstanding the discovery or existence of any such additional or different facts. (d) Each release and/or covenant not to sue provided in this agreement shall take effect as such, at the time and on the other conditions provided herein, without further action or notice; and no such release shall be construed as a mere promise requiring a further memorandum or other action to become effective. (e) Each party herein making a release, and/or a covenant concerning a right or claim, hereby represents and warrants that, except as provided in this agreement or in the previous Grant settlement referred to hereinabove, it has not assigned or transferred, or purported to assign or transfer, either voluntarily, involuntarily, or by operation of law, any right or claim which is the subject of such release and/or covenant. (f) Any controversy over the construction of this agreement shall be decided neutrally, in light of its conciliatory purposes, and without regard to events of authorship or negotiation. S(g) This memorandum of agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one single agreement. (h) Each person signing this memorandum either as an individual named party or as the representative of a named party hereby represents and warrants, both individually and on behalf of any such represented named party, that he or she is authorized to so sign; that the execution, formation, and performance of this agreement by that named party is duly authorized and in accordance with all applicable laws relating thereto; and that this agreement is fully enforceable against that named party according to its terms. The foregoing representation and warranty by Trustee/Receiver is subject to Court approval; and the foregoing representation by Home State is subject to the approval of Home State's execution of this agreement by the Court of Common Pleas, Hamilton County, Ohio in the case therein captioned "In the Matter of the Liquidation of Home State Savings Bank, Cincinnati, Ohio," Case No. A8503190. s 0 Cl COUNTERPART EXECUTION PROVISIONS THOMAS TEW, BANKRUPTCY TRUSTEE FOR ESM GOVERNMENT SECURITIES, INC. AND EQUITY RECEIVER OF ESM SECURITIES, INC., ESM GROUP, INC., AND ESM FINANCIAL GROUP, INC. ("Trustee/Receiver") By: [manual signature] [printed date of execution] City of Tamarac 5811 NW 88 Avenue Tamarac Fla. 33321 [printed entity name] /Z I / - V By • ymanual signature] Bernard Hart [printed name] Mayor [printed title or capacity] April 22, 1987 [printed date of execution] LJ 14 CONNIE J. HARRIS, SUPERINTENDENT OF THE OHIO DIVISION OF SAVINGS AND LOAN ASSOCIATIONS, IN HER CAPACITY AS LIQUIDATOR OF THE HOME STATE SAVINGS BANKS ("Home State") By: [manual signature] [Printed name] [printed title or capacity] [printed date of execution] FIDATA TRUST COMPANY NEW YORK ("Fidata Trust" and "Fidata") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution] FIDATA CORPORATION ("Fidata") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution] v • 11 15 FIDATA SECURITIES MANAGEMENT, INCORPORATED ("Fidata") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution] SECURITY PACIFIC CLEARING & SERVICES CORP. ("SecPac") By: [manual signature] [printed name] [printed title or capacity] [printed date of execution]