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1989-31 . r <' B~HRJ Between: 8 8 RECEIVED SEP 2 9 1989 SunBank, N.A. Investment Banking DIvISion POBox 3833 Orlando, Florida 32897 85-031 MASTER REPURCHASE AGREEMENT Dated as of November I, 1989 Sun Bank, N.A. and City of Clermont 1. 2. A SunTrust Bank Applicability From time to time the parties hereto may enter into transactions in which Sun Bank, N.A. ("Seller") agrees to transfer to ("Buyer") securities or financial instruments ("Securities") against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller. Each such transaction shall be referred to herein as a "Transaction" and shall be governed by this Agreement, including any supplemental terms or conditions contained in Annex 1 hereto, unless otherwise agreed in writing. Definitions (a) "Act of Insolvency", with respect to any party, (i)the commence- ment by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law, or such party seeking the appointment of a receiver, trustee, custodian or similar official for such party or any substantial part of its property, or (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment, the issuance of such a protective decree qr the entry of an order having a similar effect, or (C) is not dismissed within 15 days, (iii) the making by a party of a general assignment for the benefit of creditors, or (iv) the admission in writing by a party of such party's inability to pay such party's debts as they become due; . (b) "Additional Purchased Securities", Securities provided by Seller to Buyer pursuant to Paragraph 4 (a) hereof; (c) "Buyer's Hargin Amount", with respect to any Transaction as of any date, the amount obtained by application of a percentage (which may be equal to the percentage that is agreed to as the Seller1s Margin Amount under subparagraph (q) of this Paragraph), agreed to by Buyer and Seller prior to entering into the Transaction, to the Repurchase Price for such Transaction as of such date; (1) . i 8 8 (d) "Confirmation", the meaning specified in Paragraph 3(b) hereof; (e) "Income", with respect to any Security at any time, any principal thereof then payable and all interest, dividends or other distributions , thereon; (f) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof; (g) "Margin Excess", the meaning specified in Paragraph 4(b) hereof; (h) "Market Value", with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued income to the extent not included therein (other than any income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities); (i) "Price Differential", with respect to any Transaction hereunder as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction); (j) "Pricing Rate, the per annum percentage rate for determination of the Price Differential; (k) "Prime Rate", the prime rate of U.S. money center commercial banks as published in The Wall Street Journal; (1) "Purchase Date", the date on which Purchased Securities are transferred by Seller to Buyer; (m) "Purchase Price", (i) on the Purchase Date, the price at which Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter, such price increased by the amount of any cash transferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to reduce Seller's obligations under clause (ii) of Paragraph 5 hereof; (n) "Purchased Securities", the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term "Purchased Securities" with respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant to Paragraph 4(a) and shall exclude Securities returned pursuant to Paragraph 4(b); (0) "Repurchase Date'., the date on which Seller is to repurchase the Purchased Securities from Buyer including any date determined by application of the provisions of Paragraph 3(c) or 11 hereof; (p) "Repurchase Price", the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination, increased by any amount determined by the application of the provisions of Paragraph 11 hereof; (2) . . 8 8 (b) If at any time the aggregate Market of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for all such Transactions at such time (a "Margin Excess"), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer1s option, to transfer cash or Purchased Securities to Seller, so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or any purchased Securities so transferred, will thereupon not exceed such aggregate Sellerls Margin Amount (increased by the amount of any Margin Excell as of such date arising from any Transactions in which such Seller is acting as Buyer). (c) Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall be agreed upon by Buyer and Seller. (d) Seller and Buyer may agree to any or all Transactions hereunder, that the respective rights of Buyer of Seller (or both) undersubparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin' Deficit or Margin Excess exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions). (e) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as the case may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without regard to any other Transaction outstanding under this Agreement). 5. Income Payments Where a particular Transaction's term extends over an income payment date on the Securities subject to that Transaction, Buyer shall, as the parties may agree with respect to such Transaction (or, in the absence of any agreement, as Buyer shall reasonably determine in its discretion, on the date such income is payable either (i) transfer to or credit to the account of Seller an amount equal to such income payment or payments with respect to any Purchased Securities subject to such Transaction or (ii) apply the income payment or payments to reduce the amount to be transferred to Buyer by Seller upon termination of the Transaction. Buyer shall not be obligated to take any action pursuant to the preceding sentence to the extent that such action would result in the creation of a Margin Deficit, unless prior thereto or simultaneously therewith Seller transfers to Buyer cash or Additional Securities sufficient to eliminate such Margin Deficit. 6. Security Interest Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of the Purchased Securities with respect to all Transactions hereunder and all proceeds thereof. (4) . . 8 8 9. Substitution (a) Seller may, subject to agreement with and acceptance by Buyer, substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities. (b) In Transactions in which the Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to and accepted in this agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other Securities shall have a Market Value at least equal to the Market Value of the Purchased Securities for which they are substituted. 10. Representations Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto as agent for a disclosed principal), (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law ordinance charter by-law or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected. On the Purchase Date for any Transaction Buyer and Seller shall each be deemed to repeat all the foregoing representations made by it. 11. Events of Default In the event that (i) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (ii) Seller or Buyer fails, after one business day's notice, to comply with Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5 hereof, (iv) an Act of Insolvency occurs with respect to Seller or Buyer, (v) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated, or (vi) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its obligations hereunder (each an "Event of Default"): (a) At the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur. (b) In all Transactions in which the defaulting party is acting (6) - r 8 8 of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source. (e) As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the nondefaulting party (i) with respect to Purchased Securities (other than Additional Purchased Securities), for any excess of the price paid (or deemed paid) by the nondefaulting party for Replacement Securities therefor over the Repurchase Price for such Purchased Securities and (ii) with respect to Additional Purchased Securities, for the price paid (or deemed paid) by the nondefaulting party for the Replacement Securities therefor. In addition, the defaulting party shall be liable to the nondefaulting party for interest on such remaining liability with respect to each such purchase (or deemed purchase) or Replacement Securities from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. (f) For purposes of this Paragraph 11, the Repurchase Price for each Transaciton hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of its option under subparagraph (a) of this Paragraph. (g) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. (h) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. 12. Single Agreement Buyer and Seller acknowledge that, and have entered hereinto and will enter into each transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. (8) 8 8 (b) Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition. (c) By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller's latest such financial statements, there has been no material adverse change in Seller's financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party. 19. Intent (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended. (b) It is understood that either party.s right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof, is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. 20. Disclosure Relating to Certain Federal Protections The parties acknowledge that they have been advised that: (a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission ("SEC") under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other party with respect to any Transaction hereunder; (b) in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEe under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and (c) in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation or the National Credit Union Share Insurance Fund as applicable ::ame of P:lJ Title ~ty Manager By --' Date J¡/. tI~ / Þ r!r7 I I ' Date 9-13-'89 00) , '. 8 8 Sun Bank, N.A. 200 S. Orange Avenue Orlando, Florida 32801 Annex I SUPPLEMENTAL PROVISIONS TO MASTER REPURCHASE AGREEMENT Dated as of November 1,1989 Between: Sun Bank, N.A. and City of Clermont The parties hereto agree that, notwithstanding any prior agreements between them, the following terms and conditions shall govern all trans- actions hereafter entered into between them in which Sun Bank, N.A. ("Seller") agrees to transfer to City of Clermont ("Buyer") securities or financial instruments ("Securities") against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller (each such transaction referred to herein as a "Transaction"): 1. Disclosure Relating to Certain Federal Protections. The parties acknowledge that they have been advised that: (a) Funds held by Sun Bank, N.A. pursuant to a Transaction here under are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation. Substitution. (a) Seller may, subject to agreement with an acceptance by Buyer, substitute other Securities for any Purchased Securities (as defined below). Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities for purposes of this Agreement or any prior Agreement between the parties with respect to Transactions hereunder. (b) In Transactions in which the Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to the accepted in this Agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other Securities shall have a market value (determined as previously agreed between the parties or, in the absence of any such prior agreement, as the parties may hereafter agree) at least equal to the market value (as so determined) of the Purchased Securities for which they are substituted. 2. (1) " . \ 8 8 ANNEX II Names and Addresses for Communications Between Parties SELLER SunBank, N.A. Investment Banking Division P.O. Box 3833 Orlando, FL 32897 Contact: r~artelle Boelter Phone: 305-237-4382 BUYER Name: City of Clermont Address: P.,o. Box 120..:.219 Clermont. FL 34712-0219 Contact: Joseph E. Van Zile Phone: 904/394..:.4081 59-6000290 Tax ID: Account: # (3) 8 8 CITY OF CLERMONT POBOX 219. CLERMONT, FLORIDA 32711. PHONE 904/394-4081 September 19, 1989 Cynthia Huges Corporate Services Sun Bank, N.A. P.O. Box 3833 Orlando, Florida Specialist 32897 Dear Cynthia: Enclosed are the following signed documents you requested: Corporate Deposit Account Resolution Zero Balance Account Service Agreement Controlled Disbursement Service Agreement Master Repurchase Agreement - Two Copies Signature Card If you should need additional information, please contact me. Sincerely, CITY OF CLERMONT ~ £i y.1 ~s'~PH E. VAN ZILE Finance Director JVz/jrnb Enclosures " - "- L-e6186-F.w. I ['USINESS ACCOUNT SIGNATURE CARD I **Please Sign Both Cards 8ãñK Accounts Payable Account Controlled Disbursement Account 8 ¡ -- ------ AC TYPE I 1 DDA/Bc I - PARTNERSHIP -X CORPORATION - CLUB/ORG - PROPRIETOR - OTHER ,eNO SIGNATURESREOUIRED TAX 10 NUMBER 59-6000290 PHONE (904) 394-4081 AUTHORIZED NATUREIS) NAMEIS) AND TITLE 8 WAYNE SAUNDERS - CITY MANAGE~ 8 ROBERT SMYTHE - PUBLIC WORKS ¡DIR. t .~ v. 3-1 JOSEPH VAN ZILE - FINANCE DI~. 4 Y>u. ~ JULIE BRANDT - ADMIN. ASSIST.: ID/ FEI~RED Don Wickham SBNA Clermont ~ I BANK Sun Bank, N. A . OFFICE Main : ACCEPTED BY Cynthia Hughes DATE 9-1-89 ; I IT IS AGREED TI-/AT ALL TRANSACTIONS BETWEEN THE BANK AND THE ABOVE SIGNED SHALL BE GOVERNED BY THE CONTRACT PRINTED I DN TI-/E REVERSE SIDE OF TI-/IS CARD, TOGETHER WITH THE RULES AND REGULATIONS GOVERNING THIS ACCOUNT, AND THE ABOVE SIGNED I HER¡;~ ACKNO'Nl.EDGE RECEIPT OF A COpy OF SUCH RULES AND REGULATIONS AND THE FUNDS AVAILABILITY POLICY I I OChock tho bar II rau are NOT lubJect to backup.wlthhaldlng duo ta Natlflad Payee UndelT8partlng I' defIned In 18c1lan 34DS[c] Intemll RRanne Code I CERTIFICAT10NI Urder the penal lies of pel ¡¡ Y, I certify that the information provided on this form IS Irue, correct and completo I I I I I 8 8SIgnatllre 3.t240- Date 1fi-~t!J ..i1 :..- , .. . t 8 8 ZERO BALANCE ACCOUNT SERVICE AGREEMENT BANK: Sun Bank COMPANY: City of Clermont 200 South Orange Avenue P.O. Box 2-19 Orlando, FL 32801 Clermont, FL 32711 ATTN: Lorraine McCullers Mailing Address ATTN: Joseph E. Vanzile Mailing Address BANK and COMPANY, desiring to set for,h the terms and conditions on which BANK will provide COMPANY Zero Balance Account Service, agree as follows: 1. ACCOUNT SERVICE. COMPANY requests and agrees to accept from BANK, and BANK agrees to provide, Zero Balance Account Service for the accounts of COMPANY and/or COMPANY'S subsidiaries maintained at BANK and/or BANK'S affiliates as set forth on Exhibit A, attached hereto and incorporated herein by this reference. 2. COMPANY'S OBLIGATIONS. (A) COMPANY agrees to maintain sufficient collected balances in the Zero Balance Master Account to cover debit balances at the end of each banking day of any or all Intermediate/Subsidiary Account(s). BANK shall not be obligated to pay any checks presented on the COMPANY'S Zero Balance Master Account or any of the COMPANY'S Zero Balance Intermediate/Subsidiary Accounts unless COMPANY has sufficient collected funds on deposit in COMPANY'S Zero Balance Master Account. (B) COMPANY agrees that in the event the Zero Balance HaBter Account is not adequately funded, BANK may return any items received for payment or, if a line of credit to COMPANY has been previously approved, BAN~ may extend credit to COMPANY in an amount sufficient to cover such items. In the event BAN~'S payment of any items creates an overdraft in the Zero Balance Master Account, COMPANY agrees that it will make immediate reimbursement to BANK for the full amount of such overdraft, plus all related transaction and funds usage fees charged. (C) COMPANY agrees that BANK may fund Zero Balance Intermediate/Subsidiary Account activity from the Zero 8alance Master Account whether or not the ownership and/or authorized signatories of the Zero Balance Intermediate/Subsidiary AccountCs) are the owners and/or authorized signatories of the Zero Balance Master Account. ,'~ . , \. 8 - 2 - 8 (D) COMPANY may establish additional Zero Balance Intermediate/Subsidiary Account(s) for one or more of its subsidiary companies subsequent to the date of this Agreement to receive the benefit of the Zero Balance Master Account Service referred to in this Agreement. COMPANY shall add the account numbers of any such additional Zero Balance Intermediate/Subsidiary Account(s) to Exhibit A of this Agreement and procure a written acknowledgment of its inclusion by an authorized officer of such subsidiary, and COMPANY agrees that the addition of any such account will not be considered a modification subject to the thirty days' prior written notice provided for herein. COMPANY agrees that BANK may act upon written or verbal instructions from parties who BANK could reasonably believe to be acting in good faith and within their authority in requesting such arrangements. 3. BAN~'S OBLIGATIONS. (A) At the end of each banking day, BANK agrees to post the debits or credits from each related Zero Balance Intermediate/ Subsidiary Account to COMPANY'S Zero Balance Master Account. (B) BANK agrees to confirm to COMPANY in writing the establishment of any Zero Balance Intermediate/Subsidiary Account(s) subsequent to the date of this Agreement to receive the benefit of the Zero Balance Master Account referred to in this Agreement. 4. PEES ARD OTHER CHARGES. COMPANY agrees to pay BANK monthly such fees and other charges as BANr4aey- from~ime--tø--t;-ime- estëtbl-i-sft. for the Zero Balance Account Service. Any increase in such fees and charges shall ~e effective forthwith unless COMPANY terminates this Agreement as provided in paragraph 6 below. ** indicated in Banking service proposal, dated August 23, 1989. 5. MODIPICATION OP AGREEXERT. COMPANY agrees that BANK may modify such other terms and conditions for the Zero Balance Account Service any time upon 3D days' prior written notice to COMPANY. Any such modification shall become effective after such 3D-day period, unless COMPANY terminates this Agreement prior to such effective date as provided in paragraph 6 below. 6. TERMIRATIOR or S~CES. Either party may terminate the Zero Balance Account Service Agreement and all subsequent obligations with res~ct to such services upon five days' prior written notice to the other party. No such termination shall affect any obligations previously incurred by any party under this Agreement. 7. LIMITATION OR LIABILITY, IRDEKRITY. BANK shall in no event have any liability.in connection with the Zero Balance Account Service " \ . - 3 - 8 8 provided to COMPANY hereunder due to interruption or failure of communications or data processing facilities or systems, emergency conditions, or any other cause beyond the control of BANK. COMPANY agrees to indemnify and hold BANK harmless from any and all penalties, charges, assessments, claims, liabilities, costs or expense, including attorneys' fees, incurred by or assessed against BANK in connection with the Zero Balance Account Service, except such amounts as may result from BANK's gross negligence or willful misconduct. 8. NOTICES. Any notices given pursuant to this Agreement shall be delivered by hand or sent by first class U.S. Mail, postage prepaid, to the address for the respective party indicated above. 9. MISCELLARBOOS. This Agreement contains the entire terms of the agreement with respect to the Zero Balance Account Service. This Agreement shall bind and inure to the benefit of the respective successors and assigns of BANK and COMPANY, whether so expressed or not, and shall be governed in all respects by the laws of Florida. IN WITNESS WHEREOF, the undersigned, through their duly authorized officers, have executed this Agreement under hand and seal, this day of , 198_. BA!ŒI COMPANY! By: (L.S.) City of Clermont By: Wt/~ --lJ..oS.) ~: City Manager SUN BANK Title: ACKNOWLEDGEMENT OF Zero Balance Intermediate/Subsidiary Account Holders other than COMPANY: By: Title: (L.S.) By: Title: (L.S. ) By: Title: (L.S.) cc: All Sun Banks maintaining Zero Balance Intermediate/Subsidiary Accounts ... BRANOf/BANK NMB C1ermont/SBNA 8RANCH/BANIC NME .J ~ 0137 £XII 18ft A I EIQ IIAJ.AM:B MST8R ACCOUNI' ACCOUNT I ACCOUNT TITLE City of Clermont I BJO IIAJ.AM:B I.. J. ~ IA TB ACCOUNI' ( S) ~ ACCOUNT I ACCOUNT TITLE Z Ell) IIAJ.AM:B SIBS I D 1AØ ACCOUNI' ( S) ACCOUNT TITLE City of Cl~rmont Accounts Payable 0 & M Account!': P;:¡y;:¡hlp Arrnunt Controlled Disbursement City of Clermont Payroll Account '. . . BRANCH/BANK NMB ABA I ACCOUNT I , ClermontlSBNA ZERO OR - T ARG ET ØAI..tW E ZER> OR TARGET 8A~ -0- -0- -0- '. .. 80 B~HR J A SunTrust Bank 8 8 SunBank, N.A. Investment Banking D,vision POBox 3833 Orlando. Florida 32897 MASTER REPURCHASE AGREEMENT Dated as of November I. 1989 Between: Sun Bank, N.A. and City of Clermont 1. Applicability From time to time the parties hereto may enter into transactions in which Sun Bank, N.A. (8'Seller") a~rees to transfer to ("Buyer") securities or financial instruments ("Securities") against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller. Each such transaction shall be referred to herein as a "Transaction" and shall be governed by this Agreement, including any supplemental terms or conditions contained in Annex 1 hereto, unless otherwise agreed in writing. 2. Definitions (a) "Act of Insolvency", with respect to any party, (i)the commence- ment by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law, or such party seeking the appointment of a receiver, trustee, custodian or similar official for such party or any substantial part of its property, or (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment, the issuance of such a protective decree or the entry of an order having a similar effect, or (C) is not dismissed within 15 days, (iii) the making by a party of a general assignment for the benefit of creditors, or (iv) the admission in writing by a party of such party.s inability to pay such party's debts as they become due; (b) "Additional Purchased Securities", Securities provided by Seller to Buyer pursuant to Paragraph 4 (a) hereof; , - (c) "Buyer's Hargin Amount", with respect to any Transaction as of any date, the amount obtained by application of a percentage (which may be equal to the percentage that is agreed to as the Seller's Margin Amount under subparagraph (q) of this Paragraph), agreed to by Buyer and Seller prior to entering into the Transaction, to the Repurchase Price for such Transaction as of such date; (1) "" 8 8 (d) "Confirmation", the meaning specified in Paragraph 3(b) hereof; (e) "Income", with respect to any Security at any time, any principal thereof then payable and all interest, dividends or other distributions thereon; (f) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof; (g) "Margin Excess", the meaning specified in Paragraph 4(b) hereof; (h) "Market Value", with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued income to the extent not included therein (other than any income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities); (i) "Pri ce Differenti a 1", with respect to any Transacti on hereunder as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction); (j) "Pricing Rate, the per annum percentage rate for determination of the Price Differential; (k) "Prime Rate", the prime rate of U.S. money center commercial banks as published in The Wall Street Journal; (1) "Purchase Date", the date on which Purchased Securities are transferred by Seller to Buyer; (m) "Purchase Pri ce", (i) on the Purchase Date, the pri ce at whi ch Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter, such price increased by the amount of any cash transferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to reduce Seller's obligations under clause (ii) of Paragraph 5 hereof; (n) "Purchased Securities", the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term "Purchased Securities" with respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant to Paragraph 4(a) and shall exclude Securities returned pursuant to Paragraph 4(b); (0) "Repurchase Date", the date on which Seller is to repurchase the Purchased Securities from Buyer including any date determined by application of the provisions of Paragraph 3(c) or 11 hereof; (p) "Repurchase Price", the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination, increased by any amount determined by the application of the provisions of Paragraph 11 hereof; (2) 8 8 (q) "Seller's Margin Amount", with respect to any Transaction as of any date, the amount obtained by application of a percentage (which may be equal to the percentage that is agreed to as the Buyer's Margin Amount under subparagraph (c) of this paragraph), agreed to by Buyer and Seller prior to entering into the transaction, to the Repurchase Price for such Transaction as of such date. 3. Initiation; Confirmation; Termination (a) An agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Seller. On the Purchase Date for the Transaction, the Purchased Securities shall be transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller. (b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as shall be agreed, shall promptly deliver to the other party a written confirmation of each Transaction (a "Confirmation"). The Confirmation shall describe the Purchased Securities (including CUSIP number if any), identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction and, (v) any additional terms or conditions of the Transaction not inconsistent with this Agreement. The Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates, unless with respect to the Confirmation specific objection is made promptly after receipt thereof. In the event of any conflict between the terms of such Confirmation and this Agreement, this Agreement shall prevail. (c) In the case of Transactions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary in accordance with market practice, by telephone or otherwise on or prior to the business day on which such termination will be effective. On the date specified in such demand, or on the date fixed from termination in the case of Transactions having a fixed term, termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities and any income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase Price to an account of Buyer. 4. Margin Maintenance (a) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Buyer is less than the aggregate Buyer's Margin Amount for all such Transactions (a "Margin Deficit"), then Buyer may by notice to Seller require Seller in such Transactions, at Seller's option, to transfer to Buyer cash or additional Securities - reasonably acceptable to Buyer ("Additional Purchased Securities"), so that the cash and aggregate Market Value of the Purchased Securities, including any such Additional Purchased Securities, will thereupon equal or exceed such aggregate Buyer's Margin Amount (decreased by the amount of any Margin Deficit as of such date arising from any Transactions in which such Buyer is acting as Seller). (3) 8 8 (b) If at any time the aggregate Market of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for all such Transactions at such time (a IIMargin Excess"), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer's option, to transfer cash or Purchased Securities to Seller, so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or any purchased Securities so transferred, will thereupon not exceed such aggregate Seller's Margin Amount (increased by the amount of any Margin Excell as of such date arising from any Transactions in which such Seller is acting as Buyer). (c) Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall be agreed upon by Buyer and Seller. (d) Seller and Buyer may agree to any or all Transactions hereunder, that the respective rights of Buyer of Seller (or both) undersubparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions). (e) Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as the case may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without regard to any other Transaction outstanding under this Agreement). 5. Income Payments Where a particular Transaction's term extends over an income payment date on the Securities subject to that Transaction, Buyer shall, as the parties may agree with respect to such Transaction (or, in the absence of any agreement, as Buyer shall reasonably determine in its discretion, on the date such income is payable either (i) transfer to or credit to the account of Seller an amount equal to such income payment or payments with respect to any Purchased Securities subject to such Transaction or (ii) apply the income payment or payments to reduce the amount to be transferred to Buyer by Seller upon termination of the Transaction. Buyer shall not be obligated to take any action pursuant to the preceding sentence to the extent that such action would result in the creation of a Margin Deficit, unless prior thereto or simultaneously therewith Seller transfers to Buyer cash or Additional Securities sufficient to eliminate such Margin Deficit. Security Interest Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions - are deemed to be loans, Seller shall be deemed to have pledged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of the Purchased Securities with respect to all Transactions hereunder and all proceeds thereof. 6. (4) :>" 8 8 7. Payment and Transfer Unless otherwise mutually agreed, all transfers of funds hereunder shall be in immediately available funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for transfer or shall be accompanied by duly executed instruments of transfer or assignment in blank and such other documentation as the party receiving possession may reasonably request, (ii) shall be transferred on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method mutually acceptable to Seller and Buyer. As used herein with respect to Securities, "transfer" is intended to have the same meaning as when used in Section 8-313 of the New York Uniform Commercial Code or, where applicable, in any federal regulation governing transfers of the Securities. 8. Segregation of Purchased Securities To the extent required by applicable law, all Purchased Securities in the possession of Seller shall be segregated from other securities in its possession and shall be identified as subject to this Agreement. Segregation may be accomplished by appropriate identification on the books and records of the holder, including a financial intermediary or a clearing corporation. Title to all Purchased Securities shall pass to Buyer and, unless otherwise agreed by Buyer and Seller, nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Securities or otherwise pledging or hypothecating the Purchased Securities, but no such transaction shall relieve Buyer of its obligations to transfer Purchased Securities to Seller pursuant to Paragraphs 3,4 or 11 hereof, or of Buyer's obligation to credit or pay Income to, or apply Income to the obligations of, Seller pursuant to Paragraph 5 hereof. Required Disclosure for Transactions in Which the Seller Retains Custody of the Purchased Securities Seller is not permitted to substitute other securities for those subject to this Agreement and therefore must keep Buyer's securities segregated at all times, unless in this Agreement Buyer grants Seller the right to substitute other securities. If Buyer grants the right to substitute, this means that Buyer's securities will likely be commingled with Seller's own securities during the trading day. Buyer is advised that, during any trading day that Buyer's securities are commingled with Seller's securities, they may be subject to liens grated by Seller to third parties and may be used by Seller for deliveries on other securities transactions. Whenever the securities are commingled, Seller's ability to resegregate substitute securities for Buyer will be subject to Seller's ability to satisfy any lien or to obtain substitute securities. (5 ) 8 8 9. Substitution (a) Seller may, subject to agreement with and acceptance by Buyer, substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities. (b) In Transactions in which the Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to and accepted in this agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other Securities shall have a Market Value at least equal to the Market Value of the Purchased Securities for which they are substituted. 10. Representations Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing in advance of any Transaction by the other party hereto as agent for a disclosed principal), (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law ordinance charter by-law or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected. On the Purchase Date for any Transaction Buyer and Seller shall each be deemed to repeat all the foregoing representations made by it. 11. Events of Default In the event that (i) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (ii) Seller or Buyer fails, after one business day's notice, to comply witb Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5 hereof, (iv) an Act of Insolvency occurs with respect to Seller or Buyer, (v) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated, or (vi) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its obligations hereunder (each an "Event of Default"): (a) At the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to - have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur. (b) In all Transactions in which the defaulting party is acting (6) ,~ 8 8 as Seller, if the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, (i) the defaulting partyls obligations hereunder to repurchase all Purchased Securities in such Transactions shall thereupon become immediatley due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction or the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (a) of this Paragraph (decreased as of any day by (A) any amounts retained by the nondefaulting party with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Securities pursuant to subparagraph (d)(i) of this Paragraph, and (C) any amounts credited to the account of the defaulting party pursuant to subparagraph (e) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be retained by the nondefaulting party and applied to the aggregate unpaid Repurchase Prices owed by the defaulting party, and (iv) the defaulting party shall immediately deliver to the nondefaulting party any Purchased Securities subject to such Transactions then in the defaulting party's possession. (c) In all Transactions in which the defaulting party is acting as Buyer, upon tender by the nondefaulting party of payment of the aggregate Repurchase Prices for all such Transactions, the defaulting party's right, title and interest in all Purchased Securities subject to such Transactions shall be deemed transferred to the nondefaulting party, and the defaulting party shall deliver all such Purchased Securities to the nondefaulting party. (d) After one business dayls notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given upon subpara9raph (a) of this Paragraph or the notice referred to in clause (ii) of the first sentence of this Paragraph), the nondefaulting party may: (i) as to Transactions in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market at such price or prices as the nondefaulting party may reasonably deem satisfactory, any or all Purchased Securities subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to give the defaulting party credit for such Purchased Securities in an amount equal to the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder; and (ii) as to Transactions in which the defaulting party is acting as Buyer, (A) purchase securities ("Replacement Securities") (7) .... 8 of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source. (e) As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the nondefaulting party (i) with respect to Purchased Securities (other than Additional Purchased Securities), for any excess of the price paid (or deemed paid) by the nondefaulting party for Replacement Securities therefor over the Repurchase Price for such Purchased Securities and (ii) with respect to Additional Purchased Securities, for the price paid (or deemed paid) by the nondefaulting party for the Replacement Securities therefor. In addition, the defaulting party shall be liable to the nondefaulting party for interest on such remaining liability with respect to each such purchase (or deemed purchase) or Replacement Securities from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. (f) For purposes of this Paragraph 11, the Repurchase Price for each Transaciton hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of its option under subparagraph (a) of this Paragraph. (9) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. (h) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. 8 12. Single Agreement Buyer and Seller acknowledge that, and have entered hereinto and will enter into each transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each - of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owin~ to them in respect of any other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. (8) ~ 8 8 13. Notices and Other Communications Unless another address is specified in writing by the respective party to whom any notice or other communication is to be given hereunder, all other notices or communications shall be in writing or confirmed in writing and delivered at the respective addresses set forth in Annex II attached hereto. 14. Entire Agreement; Severability This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the uninforceability of any such other provision or agreement. 15. Non-assignability; Termination The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may be cancelled by either party upon given written notice to the other, except that this Agreement shall, notwithstanding such notice, remain applicable to any Transactions then outstanding. 16. Governing Law This Agreement shall be governed by the laws of the State of Florida without giving effect to the conflict of law principles thereof. 17. No Waivers, Etc. No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the foregoing, the failure to give a notice pursuant to subparagraphs 4(a) or 4(b) hereof will not constitute a waiver of any right to do so at a 1 ater date. 18. Use of Employee Plan Assets (a) If assets of any employee benefit plan subject to any provision of the Employee Retirement Income Security Act of 1974 ("ERISA") are intended to be used by either party hereto (the "Plan Party") in a Transaction, the Plan Party shall so notify the other party prior to the Transaction. The Plan Party shall represent in writing - to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be required so to proceed. (9) ~ 8 8 (b) Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition. (c) By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller's latest such financial statements, there has been no material adverse change in Sellerls financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party. 19. Intent (a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities contract" as that term is defined in Section 741 of Title 11 of the United States Code, as amended. (b) It is understood that either party's right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof, is a contractual right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States Code, as amended. 20. Disclosure Relating to Certain Federal Protections The parties acknowledge that they have been advised that: (a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission ("SEC") under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other party with respect to any Transaction hereunder; (b) in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and (c) in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation or the National - Credit Union Share Insurance Fund as applicable Sun Bank, N.A. ~:ame~ Title Ci ty Manager By Title Date Date 9-13-89, (10) 8 8 Sun Bank, N.A. 200 S. Orange Avenue Orlando, Florida 32801 Annex I SUPPLEMENTAL PROVISIONS TO MASTER REPURCHASE AGREEMENT Dated as of Noyember 1, ~989 .' Between: Sun Bank, N.A. and City of Clermont The parties hereto agree that, notwithstanding any prior agreements between them, the following terms and conditions shall govern all trans- actions hereafter entered into between them in which Sun Bank, N.A. ("Sell er") agrees to transfer to City of Clermont ("Buyer") securi ti es or financial instruments C'Securities") against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller (each such transaction referred to herein as a "Transaction"): 1. Disclosure Relating to Certain Federal Protections. The parties acknowledge that they have been advised that: (a) Funds held by Sun Bank, N.A. pursuant to a Transaction here under are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation. Substitution. (a) Seller may, subject to agreement with an acceptance by Buyer, substitute other Securities for any Purchased Securities (as defined below). Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities for purposes of this Agreement or any prior Agreement between the parties with respect to Transactions hereunder. (b) In Transactions in which the Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to the accepted in this Agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other Securities shall have a market value (determined as previously agreed between the parties or, in the absence of any such prior agreement, as the parties may hereafter agree) at least equal to - the market value (as so determined) of the Purchased Securities for which they are substituted. 2. (1) 8 8 (c) As used herein, "Purchased Securities" shall mean the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefore in accordance with this Paragraph. The term "Purchased Securiti es" shall al so i ncl ude any other Securi ti es delivered to Buyer pursuant to any margin maintenance or similar agreements between the parties and shall exclude any Securities returned pursuant to any such agreements. 3. Transfer. As used herein, and in any prior agreement between the parties with respect to Transactions hereunder, "transfer" is intended to have the same meaning as when used in Section 8-313 of the New York Uniform Commercial Code or, where applicable, in any federal regulation governing transfer of the Securities. 4. Segregation. Seller shall be required to segregate Purchased Securities in its possession from other securities in its possession and to identify such Purchased Securities as subject to this Agreement (and any prior agreement between the parties with respect to any Transactions hereunder) solely to the extent that such segregation and identification are required by applicable law or to effect validly a transfer hereunder. By ::a~ Titl e i ty Manager ---- Sun Bank, N.A. Titl e Date Date 9-13-89 ' (2) IT' _1 8 8 ANNEX II Names and Addresses for Communications Between Parties SELLER SunBank, N.A. Investment Banking Division P.O. Box 3833 Orlando, FL 32897 Contact: Ma rte 11 e Boelter Phone: 305-237-4382 BUYER Name: City of Clermont Address: P..D. Box 120-219 Clprmoni:, FT. 34712-0?19 Contact: Joseph E.' Van Zile Phone: 904/394~4081 Tax ID: 59-6 (3) 8 8 SUN BANK, NATIetmL ASSCX:IATICfi COO'IROLLID DI~ sœvICE ~ City of Clermont TAX I. D. NUMBER 59-6000290 COMPANY ADDRESS P.O. Box 219 Clermont, (CITY) (S'IREET) Florida (STATE) 32711 ( ZIP ODE) EF'F'EX::TIVE DATE November 1. 1989 Ci~f Clermont (the "Company") and Sun Bank, National Association, (the" ") hereby agree to establl.sh, subj ect to the terms and conditions set forth herelI1, a Controlled Disburserœnt service to provl.de daily infonnation on and to pay checks through a controlled d1.sbur&ing account (the "Dl.sburserænt Account"). The aggregate dally dollar arrount of such checks and adjustments thereto (herelI1after the "Funding hrount") wl.ll be paid by the Corrpany and credited to the Ca'rpany's Disburserrent Account ( s) at the Bank. The Ccmpany may specl.fy the source of the Funding Amount to be another checkJ.ng account (hereinafter the "Funding Account" ) wtu.ch the Corrpany maintains at the Bank, or a checking account the Carcpany maintains at another financial instl.tutl.on (herelI1after the "Funding Bank"), or such other source as is descr1bed in Paragraph 7 herein. I. P'.R(X]!:SSD[; J\lÐ Wl'll" .lCATICfi I. Information as to the Funding Amount required to fund all Disburserœnt Accounts rnëU.ntclll1ed by the Company at the Bank, titled and numbered as follows, including those appearlI1g on any scheduled attached: SUN BANK LOCATION SBNA/Main TITLE ABA Accounts Payable Account 0215 Controlled Disbursement ACCOUNT NUMBER shall be reported by the Bank to the Carpany on a daily banking basis at the earhest tJ.Iœ possl.ble under the Bank's operating schedule then in effect, or as it may be arœnded from tiIœ to tlIte. Deviations or changes in the normal rrodification procedures of the Bank may be made at the discretl.on of the Bank, or if the Canpany requests these changes in wrl.ting and the Bank consents thereto in wrl.ting. 2. Items processed after the daily notification will be posted and charged to the Canpany' s Disburserœnt Account ( s) on the SaIœ day as presentment thereof. SUch presentrœnts will be included in the FundJ...ng Amount on the following business day. Overdrafts will be handled in accordance with Bank's policies then in effect or in accordance Wl.th any other agreerœnt specific to overdraft handling wtu.ch is in effect between the Canpany and the Bank. 3. 'J'he Bank reserves the right to adjust the Company' s Funding ArlDunt each day if the Bank determines that l.tems presented after the Bank's dal.ly notl.fication are creating a net average negative balance position. 'II 8 8 4. Company understands that the Bank must rely on the Jacksonville Federal Reserve Bank to create an All-Items Tape containing items drawn on the Carpany's Disbursement Þ.ccount(s) as specified in Paragraph I hereof in accordance with the services rendered pursuant to this Agreerrent and to electronically transmit such tape to the Bank each business day. Cœpany understands and agrees that at any t.iIœ adequate daily infoI'IMtion is unavailable due to delays or failures in perfonnance caused by events beyond the Bank's reasonable control, a historical estimate may be used by Bank and/or CaTrpany to detennine required Funding Arrount. 5. The Conpany agrees to exercise reasonable care to maintain a target balance or a net positive collected balance from business day to business day in its Disbursement Account(s) at Bank. 6. Each day's Funding Arrount, when available, will be reported by the Bank to the Ccrnpany. Telephone notification to the Conpany will be made to: PHONE ( PHONE ( NAME TITLE ALTERNATE TITLE 7. The Disbursement Account (s) will be funded by transfer of collected funds fran one or more of the following sources: A. Internal bank transfer from Funding Account Coopany maintains at Bank: Account Number: B. Incoming FedWire (Funding Bank: C. Other: Routing & Transit No.: ) FRD- ABA (Describe) 8. Corrpany agrees to maintain a target balance in the Disbursement Account (s ) specified in Paragraph I hereof, at the level specified below including those appearing on any schedule attached: ABA/ACCOUNI' NO. BALAN::E 9. Stcç payrœnts may be issued against items issued through a Controlled Disbursement Account subject to Bank's usual rules, regulations and policies with respect: thereto, and shall be billed at Bank's normal stop payment fee. 10. Statements for Controlled Disbursement Accounts shall be rendered according to Bank's normal processing schedule. Statement cycles other than end of rronth statement processing shall be established at the tirœ of opening the Controlled Disbursement Account as evidenced by the attachrænt authorizing out of cycle statements. iT 8 II. 8 MI&:ELLANIØJS 'ß!mf) AN) <XH>I'l'I(R) II. Tlus Agreem:nt may be terminated by e~ther party at any t:uœ by giving 30 days' pr~or written notice to the other party, provided that this Agreerœnt shall, notwithstandlng any such te.rnu.nation by Canpany, remain ill effect W1.th respect to the lndemnificat~on provis~ons hereof and with respect to any transact~on initiated prior to such tennination. Bank reserves the r~ght to prorate the fees at a daily average rate for the number of days Carpany is deficient in providlng notice. 12. The Bank shall be carpensated by the Carpany for the services described in this Agreerœnt by one of the following rœthods: (a) maintenance of levels of collected funds with the Bank as may be specified from t:uœ to t:uœ- in demand deposit account(s), or in non:interest bearing certificate(s) of deposit, or payrænt of fees, or (c) ccmbination of fees and balances. i. ~i. (b) The requ.lIed balances In in such demand depos~t or certlficate of deposit account(s) or the fees charged by the Bank to provide canperlsation for the services described hereill may vary from tl.Iœ to t.uœ pursuant to changes in the Federal Reserve Bank's reserve requuernent for demand or t:uœ deposits; changes ill the Bank's earnings allowance which is applied to collected funds, and changes in the Bank' s uru t pr~cillg schedule then ill effect. 13. Paragraphs I through 12 of the Agreerœnt may be IIDdified or arœnded by mutual agreerœnt of the part~es hereto from t:uœ to t:uœ, prov~ded, however, that no such rrodlhcation or arrendrœnt shall be effect~ve against the Bank unless accepted in wrÜlng by the Bank. 14. The Carpany agrees to strictly comply with the check printillg requirerænts identlfied on the attached Bank check specificatl0n sheet. IS. The Company understands that Bank will consider the aggregate total of all balances in Carpany's accounts maintained at the Bank on a daily basis ill order to determine the Company's net balance posltion. In the event the net daily balance posltion is negative, the Carpany understands and agrees that such negative balance will be deerœd to be a loan, subject to the tenns and provisions of the applicable Depositor's Agreerœnt, includl.ng W1.thout limitation the illterest rate provisions thereof. The Carpany further understands that Bank may offset the balance in any of the Company's deposit accounts at any tirœ for repayrænt of such loans, together Wlth interest thereon, and that if Bank refers such loans to an attorney for collectlon, Ccmpany shall pay Bank's reasonable attorney's fees and costs of collection. " 8 8 16. The Catpany agrees that Bank's responslbili ty to the Company under this Agreaœnt shall be limited to the exercise of ord.1.nary care. Carrpany understands and agrees that, due to the automated nature of the serv~ces rendered pursuant to tlu.s Agreerœnt, the large voluræ of items presented daJ.ly for payrænt fran the D~sburserœnt Account ( s ), and the desire of Catpany to IDl.nim1.ze the fees assocaated w~th such services, the Bank shall not be deemed to have failed to exercise ord1.nary care if ~ t adheres to a standard of manual examination of items being processed for payrœnt that represents a sarrpling or selection of items drawn on the Disbursaœnt Account(s) or other s1.IDilar disbursing accO\mts, or which meet criteria established by Bank for manual illspection, such as large artDunts. The Company further agrees that occas~onal unintent~onal deviation by the Bank fran the procedures set forth herem or dev~at~on ill accordance w~ th verbal instruct~ons of the Carpany shall not be deerœd fal.lure to exercise ordinary care. In addition, with respect to all claims or controversies raised by third parties, the Caripany agrees to rellnburse, indemnify and hold the Bank harmless for any loss or liability of any kJ.nd arising out of the performance by the Bank of its duties and obligations under this Agreerœnt as well as the cost and expense, including but not limited to reasonable attorney's fees, or defendlng against any clalffi or liability ar~sing out of or related to thls Agreement. The Company expressly agrees that in no event will the Bank be liable for lost profits or other consequential damages which may arise in connection with the serv~ces contemplated by the Agreement. The Bank shall not be responsible for delays or failures in performance caused by events beyond Bank's reasonable control. 17. The Conpany agrees that all D1sburserœnt Accounts added subsequent to this Agreerrent Wl.ll be governed by this Agreement except and unless another Agreerœnt is entered mto by the parties hereto. 18. The Company represents and warrants to Bank that it has full authority to open accounts for, to receive information on behalf of, and to Otherw1se act for all ent1t1es whose names are l1sted m Paragraph I above and for all entit1es whose accounts shall be added to and governed by the Agreaœnt in the future. Upon the request of Bank, CUstomer shall furnlsh evldence satisfactory to Bank of such author1ty. 19. This Agreerœnt shall be governed by and construed in accordance with the laws of the State of FlorÜia. The Company further lrrevocably consents and sutmits to the personal jur1sdiction of the state and federal courts located where the headquarters of the Bank in Florida are located. 20. Tlus Agreerœnt contains the complete agreaœnt and understanding of the parties Wl.th respect to the subject matter hereof and supersedes any prlor or conterrp::>raneous oral or written agreerrent. Cœq;>any further agrees that 1t does not rely on any statements, representations, agreerœnts, or warranties, except as expressed herein. 8 8 21. This Agreement has been duly executed by the parties hereto as of this of , 1 9 c City of Clermont l Company Name J By: Title: ~ ~ Manager' Sun Bank, National Association By: Title: .....