HomeMy WebLinkAboutCity of Tamarac Resolution R-87-131Introduced by:
Temp. Reso. #4585
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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
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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
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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.
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(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.
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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,
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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.
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(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.
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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
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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.
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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.
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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.
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(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)
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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.
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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]